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KENNETH S. HIXSON, Judge
hAt issue in this appeal is whether certain life insurance proceeds constituted marital property subject to division in a divorce case. Appellant Shelby Hargrove contends that the trial court erred in finding that the death-benefit proceeds were marital property and awarding a portion to his ex-wife, appellee Robbie Hargrove. After de novo review, we hold that the trial court clearly erred in failing to adhere to statutory mandate, and thus we reverse.
We begin with our standard of review. We review domestic-relations decisions de novo on the record. Scott v. Scott, 86 Ark. App. 120, 161 S.W.3d 307 (2004). Although review is de novo, we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Id. A trial court’s determination of whether certain property is marital property is a fact question that will not be reversed unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the |2entire evidence is left with a distinct and firm conviction that a mistake has been committed. Id. As to issues of law, however, we give no deference to the trial court and rather review issues of law and statutory construction de novo. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006).
In a divorce action, statutory law requires that all marital property be evenly distributed to each party, unless the trial court finds such a division to be inequitable, in which event the trial court may make a division that the trial court deems equitable. Ark. Code Ann. § 9-12-315(a)(1) (Repl. 2009). Arkansas Code Annotated section 9-12-315(b) specifically provides, however, that “marital properly” does not include “property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds.” Id. at (b)(1). The trial court, however, created an exception to this statutory exemption by considering the proceeds equivalent to retirement benefits or active appreciation of a non-marital asset. This defies the plain statutory language and constitutes clear error.
What follows is an examination of the undisputed facts in greater detail. Appellant, Shelby Hargrove, had a son from a previous marriage. In 1995, appellant purchased a life insurance policy on his son, appellant being the named beneficiary of the policy. In 1997, appellant and ap-pellee married. From the date . of marriage through May 2013, when the parties separated and divorce proceedings were initiated, the premiums on the life insurance policy were paid with marital funds. The final three months of premiums (June, July, and August 2013) were paid with non-marital funds, specifically deemed gifts to appellant from | (¡appellant's first wife and adult daughter. Appellant continued to be the beneficiary of the life insurance policy. Appellant’s son passed away in August 2013, while the divorce was still pending.
Although the insurance policy was never made part of the record, commentary and stipulations before the trial court reveal that this was a flexible premium adjustable life insurance policy through Conseco with an estimated death benefit of $100,000. Although the policy accrued some cash value, that cash value was never realized because the life insurance was to pay solely a death benefit to the beneficiary of the policy, the appellant. The parties litigated whether the death benefit proceeds were marital property and subject to division, and if so, to what extent.
Appellee’s attorney argued that the policy was “brought out of’ the statutory exemption by virtue of marital funds paying many years of premiums. Appellee’s attorney characterized this as “commingling.” Appellant’s attorney contended that the life insurance proceeds were appellant’s separate non-marital property by virtue of a plain reading of the division-of-marital-property statute, Arkansas Code Annotated section 9-12-315 (Repl. 2009).
After considering stipulations of fact and arguments of counsel, the trial court concluded that there was “sufficient commingling” of marital funds over sixteen years of [¿monthly premium payments “to classify a portion of this policy, and any resulting proceeds, as marital property.” The trial judge stated:
You know, I don’t understand why I would treat this any differently than I would, say, a retirement account that someone has somewhere where they’ve worked years before they get married and then they work a number of years during the marriage and then the parties divorce. Clearly, the retirement account is set up prior to the marriage with nonmarital funds, but the retirement funds that were contributed during the course of the marriage are marital property.
Marital funds were utilized to pay this premium on this policy that was owned by Mr. Hargrove.
You know, those cases that start back with Box vs. Box and those line of cases — J.T. Box owned his house outright. He married this lady and they did all kinds of work and did things and improved the value of that home. And when they got divorced, she was able to show the difference between when they were married and when they were divorced. And this is — you know, that started this sort of equitable claim against nonmarital assets line of cases that we now have.
And in this particular situation, I don’t see why I would treat this differently.
The trial judge concluded that because 86 percent of the premiums were paid with marital funds, then 86 percent of the life insurance benefits were marital property. The judge then awarded appellant 60 percent of the marital portion and awarded the appellee 40 percent of the portion deemed marital.
In Arkansas, property that is acquired during the marriage is presumptively marital property unless it meets one of the statutory exceptions contained in Arkansas Code Annotated section 9-12-315. See Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989). By virtue of the plain wording of section 9-12-315(b)(1), the life insurance proceeds are property acquired by reason of the death of another and exempt from the definition of “marital property” for purposes of division of assets in divorce. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Farrell, supra. For the trial court to deem an asset marital that is clearly prohibited by statute is in defiance of our legislature’s mandate. Property classification is a question of fact, and we review the circuit court’s findings of fact and affirm unless the findings are clearly erroneous. Farrell, supra; Dozier v. Dozier, 2014 Ark. App. 78, 432 S.W.3d 82. This was clearly erroneous.
Further, there was no active increase of value of this non-marital asset, which may in certain circumstances lead to a non-owning spouse’s right to an equitable interest in the non-marital property. See, e.g., Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36; Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008); Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). Indeed, cash value of a life insurance policy may be divided as a marital asset, as demonstrated by Jones, supra. That is not the issue before us as there was no cash value to distribute. Nor was there “commingling.” Commingling occurs, by way of example, if one spouse receives non-marital life insurance proceeds and then places that money in a joint account or uses it to improve or reduce debt on a marital asset. See, e.g., Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989). The non-marital character of an asset can thus be lost when it is combined or commingled with a marital asset. In this instance, there was no commingling; no life insurance proceeds were disbursed to appellant prior to the divorce.
We hold that the life insurance proceeds payable on account of appellant’s son’s death are not marital properly. We, therefore, reverse.
Reversed.
Gladwin, C.J., and Virden, J., agree.
. The parties reached a settlement for the vast majority of issues related to this divorce action, and of the two issues that were present ed for resolution by the trial court, only the life insurance issue is before us on appeal. | [
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PER CURIAM.
| ,In 2014, appellant James Edward Green filed a petition for writ of error coram nobis in the trial court challenging a judgment entered in 2008 that reflected appellant’s guilty pleas in three cases. Appellant entered his pleas to first-degree terroristic threatening, second-degree sexual assault, and having violated the terms of a suspended imposition of sentence on an additional count of first-degree terroristic threatening, and he received an aggregate sentence of thirty-six months’ imprisonment in the Arkansas Department of Correction. The trial court denied the petition for the writ, and appellant lodged this appeal. He has now filed a motion requesting an extension of time in which to file his brief and another motion in which he requests that this court direct its clerk to file his tendered brief on the basis that personnel at the prison have interfered with his ability to mail the brief in a timely manner. Because we dismiss |athe appeal, the motions are moot.
An appeal from an order that denied a petition for postconviction relief, including a petition for writ of error coram nobis, will not be permitted to go forward where it is clear that the appellant could not prevail. Millsap v. State, 2014 Ark. 493, 449 S.W.3d 701 (per curiam). It is clear from the record that appellant cannot prevail.
Where a judgment of conviction was entered on a plea of guilty or nolo contendere or where the judgment of conviction was not appealed, a petition for ■writ of error coram nobis is filed directly in the trial court. McJames v. State, 2010 Ark. 74, 2010 WL 569752. The trial court denied the petition on the basis that this court had not granted permission for appellant to proceed in the trial court. A prisoner who appealed his judgment and who wishes to attack his conviction by means of a petition for writ of error coram nobis must first request that this court reinvest jurisdiction in the trial court because the filing of the transcript in an appellate court deprives the trial court of jurisdiction. Maxwell v. State, 2012 Ark. 251, 2012 WL 1950253 (per curiam). Appellant did not appeal the judgment at issue; nevertheless, we affirm the denial of the petition. This court can affirm the circuit court if it reached the right result albeit for the wrong reason. See Nalls v. State, 2014 Ark. 434, 445 S.W.3d 509 (per curiam).
Where a petitioner in a coram-nobis proceeding has served the sentence imposed in the criminal judgment, the petition is moot. Williford v. State, 2014 Ark. 86, 2014 WL 689030 (per curiam). Appellant filed his petition more than six years after the judgment had been entered imposing the thirty-six-month sentence. The public records of the Department of Correction reflect that appellant is currently incarcerated on other charges. Where it is evident that a petitioner has served his | sterm of incarceration for the conviction challenged, his claim is moot because the remedy that he seeks, a new trial, is not available even if the petition states cause for the writ. Webb v. State, 2009 Ark. 497, 2009 WL 3235635 (per cu-riam). Appellant could not demonstrate that he was entitled to the writ, and the trial court did not err in denying relief.
Appeal dismissed; motions moot. | [
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BRANDON J. HARRISON, Judge
| j Fifteen-year-old A.D. appeals the Benton County Circuit Court’s order that found him guilty as an accomplice to theft of property and adjudicated him delinquent. On appeal, he argues that the evidence was insufficient to support the court’s ruling. We affirm.
In an amended delinquency petition filed 22 January 2014, A.D. was charged as an accomplice to theft of property, a Class A misdemeanor. The State alleged that A.D. aided two other juveniles in shoplifting from Gordman’s. The court held a hearing in February 2014, and Jill Timbes, a Gordman’s employee, testified that she was in charge of “audit safety” and monitored security cameras, associates, and people entering the building. She explained that on September 7, 2013, she observed A.D. and another juvenile, C.B., enter the store, and that A.D. “looked up for a camera” when they entered the store. She agreed that it was protocol for her to observe anyone that either looked up |2at the cameras or proceeded to the fragrance and jewelry areas, which are the store’s highest theft areas. She observed the two young men wander around the store and stated that A.D. seemed nervous, describing him as “rocking back and forth, kind of wringing his hands, and just looking down the aisles. He was looking out more than he was looking at merchandise.” The two young men then met up with a female, A.M., who was carrying “a lot” of store merchandise and a large black purse. Around this time, Timbes was also notified that store employees had found several empty hangers in the shoe department.
Timbes observed the three juveniles walking through the store and eventually stopping in the shoe department, where C.B. and A.M. proceeded to squat down to the floor for several minutes with A.D. standing “right over them.” Timbes described A.D. as looking “back and forth” and “nervous.” The prosecutor then played a DVD of the store surveillance footage from that day, which was a stipulated exhibit. Timbes explained that she confronted A.M. and C.B. as they left the store and took them to her office, then went back to confront A.D., who was walking out of the store. Timbes found several items in A.M.’s purse, including a leather jacket, shirts, socks, and a speaker. C.B. also had a speaker down his pants. A.D. did not have any merchandise in his possession.
Officer Christopher Douglas with the Rogers Police Department testified that he responded to a shoplifting report on September 7 and that he observed the three juveniles in Timbes’s office. Douglas stated that the juveniles were cooperative and that A.D. “admitted to shoplifting, as well as the others. I can’t give you specifics of what it was. But | fit made me believe he was just as culpable as the other two that were there.” He explained that the juveniles were arrested but released to their parents’ custody.
At the close of the State’s case, A.D. moved to dismiss, arguing that he was “just there” and that “mere presence is not an accomplice to the theft.” The court denied the motion and stated that
if you’re going to stand right next to your friends stealing stuff, and you block the aisle, you are — by your actions— helping the theft occur.
And then when you walk around with your friends like you’re just some good old shoppers, just out there to spend the money, acting like normal kids that are going to do some shopping, you’re, after-the-fact, helping complete the crime.
And when you stand there watching them steal, looking around, making sure nobody else is watching them steal, you’re a part of the crime. You’re a lookout.
C.B. then testified and admitted that he shoplifted from Gordman’s. He stated that he and A.D. had ridden in A.M.’s ear to the store, but he denied A.D.’s involvement, stating that “when we were literally done, he [A.D.] goes, ‘Come on man, I’m leaving. There’s people coming, and I don’t want to be a part of this.’ ” C.B. testified that A.D. was angry and that he did not help them shoplift.
A.D. renewed his motion to dismiss, which was again denied. The court stated, “I didn’t see [A.D.] getting mad, and telling them it was stupid, and trying to leave. I didn’t see any of that in the video.” Addressing A.D., the court found that “once you have knowledge that the stolen items are on the possession of your friends, and walking around the store, acting like normal teenagers, that nothing is going on; you’ve now become part 14of the scheme, the plan.” The court found A.D. guilty, sentenced him to three months’ probation, and assessed various costs and fees. A.D. now appeals to this court.
While a delinquency adjudication is not a criminal conviction, it is based upon an allegation by the State that the juvenile has committed a certain crime. J.F. v. State, 2009 Ark. App. 499, 2009 WL 1813239. Our standard of review is the same as it would be in a criminal case, that is, whether the adjudication is supported by substantial evidence. E.S. v. State, 2013 Ark. App. 378, 2013 WL 2445213. Substantial evidence is evidence, direct or circumstantial, that is of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. A.F. v. State, 2010 Ark. App. 523. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the finder of fact. Id.
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating its commission, the person (1) solicits, advises, encourages, or coerces the other person to commit the offense, (2) aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or (3) having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense. T.D. v. State, 2012 Ark. App. 140, 2012 WL 474326. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both; one cannot disclaim accomplice liability simply because he did not personally take part in every act that made up the crime as a whole. Id. Mere presence at the scene of a crime is not enough to make a person an accomplice. Id. Except in extraordinary cases, even presence at the scene of the crime | .^combined with actual knowledge that a crime is being committed is not sufficient to make a person an accomplice in the absence of any purpose to further the accomplishment of the offense. Id. Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in the proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Id.
The issue presented here is whether there was substantial evidence presented at trial to prove that A.D. aided, attempted to aid, or agreed to aid C.B. and A.M. in shoplifting. A.D. argues that he was merely present while the other two juveniles shoplifted and that the evidence did not show that he aided or encouraged the commission of the crime. The State counters that the testimony and video footage showed, and the circuit court specifically found, that A.D. aided the other juveniles by acting as a lookout. A.D. disagrees and argues that this case is similar to F.C. v. State, 2014 Ark. App. 196, 2014 WL 1092591, in which this court reversed a juvenile’s delinquency adjudication. F.C. was accused of being an accomplice in the theft of a cell phone, and in reversing, we explained:
J.J. was identified on the video as the person walking by the phone and bending down. However, F.C.’s accomplice liability is based entirely on testimony that he came into the gym with J.J. and the third juvenile, stood near the curtains separating the gyms, and looked through the curtains. We hold that this evidence is not of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. We therefore reverse F.C.’s delinquency adjudication.
Id. at 6.
F.C. is distinguishable from this case. In F.C., the circuit court made no specific finding that F.C. acted as a lookout, and the witnesses only testified as to their ^observations of the surveillance tape, but here, the court was able to view the surveillance first-hand and make a determination that A.D. acted as a lookout. Having reviewed the testimony and the video footage in this case, we find substantial evidence to support the court’s finding that A.D. acted as a lookout and was part of the overall plan to shoplift. To hold otherwise would require us to re-weigh the evidence or re-assess the witnesses’ credibility, which we will not do. See A.F. v. State, supra.
Affirmed.
Abramson and Glover, JJ., agree.
. A.D.’s motion for a directed verdict is treated as a motion for dismissal because the case was tried to the court. | [
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DAVID M. GLOVER, Judge
[|On December 9, 2011, Larry Lee Cooper entered negotiated guilty pleas to the underlying offenses of attempted possession/intent to deliver a controlled substance, possession of drug paraphernalia, and driving with a suspended license. He was placed on probation. The State subsequently filed a petition to revoke, alleging that Cooper violated the terms and conditions of his probation by failing to report, failing to abstain from illegal substances, and failing to pay fines, fees, and court costs. Following the revocation hearing on October 3, 2013, the trial court revoked Cooper’s probation and sentenced him to eighteen months in a regional correction facility, with an additional twenty-four months’ suspended imposition Uof sentence. On October 16, 2013, Cooper filed a pro se “petition for appeal,” even though he was still represented by his trial counsel. A joint motion for substitution of counsel was subsequently filed and granted by our court. Substituted counsel has filed a motion to withdraw, accompanied by an abstract, brief, and addendum, asserting that an appeal in this matter would be wholly without merit. We deny the motion to withdraw and order rebrief-ing by Cooper’s counsel. In addition, we direct our court clerk to serve a copy of Cooper’s “points,” and this opinion, on the Attorney General’s Office pursuant to Rule 4-3(k)(3) for preparation and submission of a responsive brief.
The foundational authorities for seeking to withdraw from representation on the ground that an appeal is wholly without merit lie in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. Because our court is receiving more and more Anders briefs that do not fully embrace the underlying rationale for allowing “no-merit” briefs and presenting them to this court, we take this opportunity to review the foundations.
In Anders, the United States Supreme Court was “concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.” 386 U.S. at 739, 87 S.Ct. 1396. The Court explained that thé “constitutional | ¡¿requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae,” and that the “no-merit letter and the procedure it triggers do not reach that dignity.” Id. at 744, 87 S.Ct. 1396. The Court made clear, however, that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. The Court further explained:
A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
Id.
Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals incorporates the Anders concerns and provides in pertinent part:
(1) Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for permission to withdraw made after notice of appeal has been given shall be addressed to the Court, shall contain a statement of the reason for the request and shall be served upon the defendant personally by first-class mail. A request to withdraw on the ground that the appeal is wholly without merit shall be | ¿accompanied by a brief including an abstract and Addendum. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract and Addendum of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court.
(Emphasis added.)
Here, counsel made no reference to either the Anders case or Rule 4-3(k). We do not deny the motion to withdraw because of those omissions, but we take this opportunity to note that, in filing motions to withdraw and accompanying “no-merit” briefs with our court, it is the better practice, even though not a fatal omission, to explain that the motion and brief are being filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Ark. Sup. Ct. R. 4-3(k): Doing so assures our court that counsel understands the applicable framework and rules.
The basis upon which we deny the motion lies in the emphasized portion of Rule 4^-3(k)(l) above. The brief discusses one adverse ruling, the revocation itself, but at no point in the brief does counsel state clearly that the revocation is the only adverse ruling in the record. In general, records include not only hearing transcripts, but also motions and other requests decided adversely to the defendant. Our review of the record seems to confirm that the revocation itself is the only adverse ruling, but we must be confident that counsel has undertaken that task. Particularly pertinent tó our decision in this regard, denying counsel’s motion to withdraw in the instant case, is the following passage from Anders:
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its oum review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords | ^neither the client nor the court any aid. The former must shift entirely for 'himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.
Id. at 745, 87 S.Ct. 1396 (emphasis added).
Finally, the clerk of our court sent, by certified mail, a copy of counsel’s motion to withdraw and accompanying brief to Cooper’s last-known address. Cooper did not submit points in response; however, in searching Cooper’s court correspondence file, the clerk of our court discovered that he did submit pro se “points” during the time frame in which he was still represented by his trial counsel and before substitution of counsel was granted and the motion to withdraw was filed. Because Cooper prematurely submitted his pro se “points,” while still represented by trial counsel and before the motion to withdraw was filed, the Attorney General’s Office was not notified pursuant to Rule 4-3(k)(3). We direct our court clerk to serve a copy of Cooper’s “points,” and this opinion, on the Attorney General’s Office pursuant to Rule 4-3(k)(3) for preparation and submission of a responsive brief.
Motion to withdraw denied; rebriefing ordered; and clerk directed to serve a copy of Larry Cooper’s pro se points on the Attorney General’s Office pursuant to Rule 4 — 3(k)(3).
Gladwin, C.J., and Gruber, J., agree.
. We note that Cooper raised two appellate arguments in his pro se "petition for appeal.” A notice of appeal is clearly not the appropriate vehicle for raising appellate arguments. It is not necessary for us to discuss the status of those points because his arguments were also raised in his separately submitted points, which are being forwarded to the Attorney General's Office for response pursuant to Ark. Sup. Ct. R. 4 — 3(k)(3).
. Counsel’s letter in the Anders case provided: " 'I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him.... (H)e wishes to file a brief in this matter on his own behalf.’ " 386 U.S. at 742, 87 S.Ct. 1396. | [
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McCulloch, C. J.
This is an action institüted by appellants, Mattie Wood and C B. Primm, against appellee, Freeman-Smith Lumber Company, to quiet title to certain tracts of land in Calhoun County, Arkansas, and to restrain appellees from removing timber from such lands.
Appellee held a timber deed, executed to it by W. C. Dunn, dated November 2, 1899, conveying to appellee the timber on the lands and giving time to remove the same. That time has, according to the allegations of the complaint and proof in the case, expired, and the purpose of this suit is to cancel the timber deed as a cloud on the title of appellants and to prevent appellee from cutting the timber as it threatens to do.
The chancery court granted the relief sought as to some of the tracts and cancelled the timber deed as to those tracts; but dismissed the complaint as to the other tracts on the ground that appellants had failed to prove title to those tracts.
Both parties appealed to this court, but it is not insisted by the defendant, Freeman-Smith Lumber Company, that the decree against it cancelling its timber deed as.to some of the tracts was erroneous; therefore, that part of the decree will stand affirmed without further discussion.
W. C. Dunn conveyed the lands to appellant subsequent to the execution of his timber deed to appellee. The parties, therefore, claim title from a common source, and it was unnecessary for appellants to deraign title beyond the common source. That is the rule in actions of ejectment as well as those to quiet title. Stafford v. Watson, 41 Ark. 17; Griesler v. McKennon, 44 Ark. 517; Harrison Machine Works v. Bowen, 200 Mo. 235. The rule is stated as follows in Sedgwick & Wait on Trials of Title to Land, § 803: “Whenever plaintiff and defendant both deraign title from the same source, the plaintiff usually need not go behind this source to prove his title. # * * Where the defendant can show a better title outstanding, and has acquired it, the rule ceases to apply. Where the defendant is allowed to impeach the common source of title, he must establish that he himself has acquired a superior title, and, except to this extent, he is not permitted to invoke the rule that the defendant can defeat the plaintiff by showing a better title in a third person.”
This principle applies with peculiar force- to the present action wherein appellants seek to cancel, as a cloud on their title, a timber deed previously executed by their grantor to appellee. Appellee is estopped to deny the title of its grantor, W. C Dunn, who is also the grantor of appellants, and it does not claim any right to take the timber except under that deed. The court, therefore, erred in denying relief as to all of the tracts of land described in the complaint. The decree as to those traets to which appellants were denied relief is, therefore, reversed and the cause remanded with directions to enter a decree in appellant’s favor as to those tracts. | [
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Smith, J.,
(after stating tbe facts). Tbe first question is tbe right of administration pending tbe contest. Section 13 of Kirby’s Digest provides that if tbe validity of any will be contested, letters of administration shall be granted during tbe time of such contest to some person other than tbe executor, who shall take charge of tbe property and administer tbe same under tbe direction of tbe court and account for, pay and deliver all moneys and property of tbe estate to tbe executor or regular administrator when qualified to act. It appears from tbe record that Mrs. Evins consented to tbe appointment of Turley as administrator, but there is nothing to indicate that she was thereby waiving her claim to bave letters testamentary issued to her upon tbe determination of tbe contest. In fact, it affirmatively appears that such was not her intention. Prior to tbe probate of tbe will, she could not act, and her consent to tbe appointment of Turley during the time of her disqualification is not inconsistent with her subsequent demand for the issuance of letters to her. Nor is she required to postpone her demand for letters until the litigation is finally settled. In the case of Steen v. Springfield, 91 Ark. 75, it was held that section 13 of Kirby’s Digest, above quoted, did not require the appointment of a temporary administrator to take the place of the executor during the period of the contest after the will has once been admitted to probate and letters testamentary have been issued to the executor. It was there said, “The sole design (of section 13) is to provide for a temporary administrator to take charge of and preserve the estate until the will can be admitted to probate and letters testamentary issued to the executor, if qualified. It is merely for the protection of the estate, and not to provide for neutrality towards both contestants and the beneficiaries under the will. * * * The pendency of a contest does not disqualify; even temporarily, the executor named in the will, but the delay in admitting the will to probate prevents his appointment by the court, and may render it necessary that a temporary administrator be appointed. If the will be admitted to probate and the letters testamentary granted, then there is no necessity for the appointment of a temporary administrator under section 13, even though the contest continue or is thereafter instituted.” The circuit court was therefore not in error in ordering the issuance of letters to Mrs. Evins.
It is urged that Mrs. Horn shows no right to prosecute this contest, and that if there was a lost or destroyed will which gave her any interest in Doctor Stone’s estate that she would first have to establish it in the manner pointed out in sections 8062 to 8065 of Kirby’s Digest.
The existence of the will of May 4, 1905, is recited in the will of March 5, 1912, and is expressly revoked by it, and, under the terms of the first will, Mrs. Horn is made the residuary legatee, although she was only a sister-in-law of the testator. Under the allegations of the remonstrance, the 1905 will was not revoked because of the lack of testamentary capacity at the time the 1912 will was made. We think the proceeding adopted by Mrs. Horn was a proper one to raise the question of the validity of this 1912 will and to defeat its probate, if invalid.
Sections 8038, 8039 and 8040 of Kirby’s Digest provide for the contest of probate of wills before the probate court and define the practice by which all persons interested in the probate may be summoned to appear. And when any contest has been decided in the probate court and an appeal taken to the circuit court, the decision there given is a bar to any other proceeding to call the probate or rejection of the will in question, subject to the right of appeal or writ of error to the Supreme Court, and subject also to the right of a court of chancery to impeach such final-decision for any reason which would give it jurisdiction over any other judgment at law. Kirby’s Digest, § 8041. And when a will has been probated, the court’s order to that effect is not subject to collateral attack. Caraway v. Moore, 75 Ark. 146; St. Joseph’s Convent v. Garner, 66 Ark. 623; Ludlow v. Flournoy, 34 Ark. 451.
The establishment of the wall of 1905, whether lost or destroyed, is one question, the probate of the will of 1912 is another. Mrs. Horn, under the allegations of her remonstrance, had the right to resist the probate of the 1912 will, and for that purpose could offer proof of the first will which gave her an interest in the estate which she would not have if the 1912 will was a valid one. Flowers v. Flowers, 74 Ark. 215.
If by the introduction of this proof the probate of the 1912 will was defeated, then Mrs. Horn could proceed under the provisions of sections 8062 to 8065 of Kirby’s Digest to establish the 1905 will as a lost or destroyed will, and, if successful in that attempt, the title to the property devised would vest in the legatees therein named. It would require this proceeding to vest the title to property devised in the 1905 will. But appel lant’s purpose is not to vest title, but to defeat tbe probate of tbe 1912 will. Kirby's Digest, § 8062, is as follows :
“Whenever any will shall be lost, or destroyed by accident or design, the court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds."
But this provision of the statute for the restoration of lost deeds and mils is not exclusive. The existence of a deed may be proved at a trial, although it has never been reinstated as a lost record. Carpenter v. Jones, 76 Ark. 163; Stewart v. Scott, 57 Ark. 153; Calloway v. Cossart, 45 Ark. 81.
So in this contest the existence of the 1905 will may be proved for the purpose of defeating the probate of the 1912 will. But a proceeding in chancery under the provisions of sections 8062 to 8065 would be necessary to establish the 1905 will as an instrument devising property and vesting title.
The judgment of the circuit court is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
Appellant was convicted of embezzlement under section 1839, Kirby’s Digest, which reads as follows:
“If any carrier or other bailee shall embezzle, or convert to Ms own use, or make way with, or secrete with intent to embezzle, or convert to Ms own use, any money, goods, rights in action, property, effects or valuable security, which shall have come to Ms possession, or have been delivered to him, or placed under Ms care or custody, such bailee, although he shall not break any trunk, package, box or other tMng in which he received them, shall be deemed guilty of larceny, and on conviction shall be pumshed as in cases of larceny.”
It is alleged in the indictment that appellant was the “agent, bailee and treasurer of Local No. 313 (known as the Bartender’s Union of Little Bock, Arkansas), of the Hotel and Bestaurant Employees International Alliance of Bartender’s League of America, the same being a labor orgamzation and affiliated with the American Federation of Labor, and as such treasurer, agent and bailee, having received from said Local No. 313, as aforesaid, the sum of $1,265 * * * unlawfully and feloniously did convert and embezzle to Ms own use the said above-described money.”
There was a demurrer to the indictment, which the court overruled, and it is insisted that the indictment is defective in failing to state whether the orgamzation mentioned was a partnersMp, or a corporation, and, if the former, to set forth the names of the individuals composing it.
The language of the indictment indicates with sufficient certainty that the organization is a voluntary, unincorporated association, and such the proof shows it to be. The words, “Union,” “League,” and “Federation,” in their ordinary acceptation imply an unincorporated union or association of persons for a common purpose.
We hold that it is not necessary in indictments for larceny or embezzlement to state the names of persons composing a partnersMp or other umncorporated association. That was the effect of the decision of tMs court in Andrews v. State, 100 Ark. 184, where we said:
“If the statute has any application at all to larceny and Mndred oases, and if any effect at all is to be given to it in such, cases, we must hold that it applies, and that, there being a sufficient identification of the property in stating the partnership name, the statute applies and renders the erroneous allegation as to one of the persons injured, immaterial. It is true that ordinarily in cases of this Mnd the rules of criminal pleadings require that the names of partners be given, but, so far as identification of the property is concerned, it is described by naming the partnership and, by operation of the statute, an error as to the individual names of the partners is immaterial.”
The statute referred to provides that “where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material.” Kirby’s Digest, § 2233.
If an erroneous allegation as to the names of the persons composing a partnership is immaterial, it necessarily follows that the naming of the persons is immaterial, and we think that under a fair construction of this statute the indictment is sufficient if it charges the ownership to be in a partnership. It is unnecessary'to name the individuals, for that is, of itself, a sufficient identification, and is all that the statute requires. That conclusion is reached in the case of Ivy v. State, 109 Ark. 446.
This view is in conflict with the language in the opinion in the case of McCowan v. State, 58 Ark. 17, where it was held that it is necessary, in an indictment for larceny of property of a partnership, to set out the names of the individuals composing the partnership. The language, holding to that effect, seems to be dictum, for it appears that the indictment did not allege that the owners were partners, and it also failed to give the names of the persons. We think it is sufficient where the name of the partnership or association is set forth in such words as amounts to an allegation that it is a voluntary association or partnership unincorporated. That is sufficient identi fication, and the individual names need not be set forth. The case of McCowan v. State, supra, is to that extent overruled.
The following cases cited in the' McCowan case bear out the rule we here announce, and are, we think, correct: People v. Ah Sing, 19 Cal. 598; Reed v. Commonwealth, 7 Bush (Ky.) 641.
• There is little else for discussion in the case. The testimony shows, beyond dispute that the defendant was treasurer of the organization named, that he received $3 ,- 265 in money into his hands as such treasurer, and wrongfully converted it to his own use. The testimony shows that he admitted to several members that he had received the money and appropriated it, and promised to make it good. His books, introduced in evidence, also show that he had received the money, and he made no attempt to account for it except in his admissions to some of the members that he had used it.
The point is made that the court erred in admitting testimony as to the rules of the organization without proper identification.
It is difficult for us to see what bearing the rules have upon this controversy, for the proof is that he admitted receiving the money and using it. The effort is to bring the case within the rule announced by this court in Supreme Lodge K. of P. v. Robbins, 70 Ark. 364, where it was held that a law governing a society of this kind is not sufficiently proved by a witness' stating its terms, and offering a pamphlet which he says is an official publication of the same, unless the witness shows that he has compared it with the record of the original, and knows it to be a true copy.
The testimony shows that the by-laws came through the hands of the appellant himself, and were given out by him as the rules under which he and other members of the association were working, so, if proof of the rules was essential to establishing the material facts of this ca'se, that would be sufficient.
There are other assignments of error which we have considered and found to be without merit or worth.discussion in this opinion. Judgment affirmed. | [
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Wood, J.
Appellant was convicted on an indictment charging him with the crime of maliciously killing a certain cow which it was made larceny to steal, the property of J. S. Brown, of the value of twenty-five dollars. Brown testified: “I had a cow shot about 3 or 4 o’clock on the morning of the 1st day of September, 1911. She was a big red cow about six years old, no marks or brands. She had a young calf up, and she ran out on the range and came up at night to be milked. She was worth about $25 or $30. ’ ’ He says, ‘ ‘ She was running at large on the range with other cattle when she was shot.”
The appellant asked for an instruction to the effect that if the jury found that the defendant did shoot and kill the cow of Brown, as charged in the indictment, but also found that at the time of said shooting the cow was over twelve months old, unmarked and unbranded and running at large on the range, they should find the defendant not guilty. The court refused the instruction, which the appellant assigns as error.
There was no error in the ruling of the court. The uncontradicted testimony brings this case well within the rule announced in Jefferies v. State, 102 Ark. 373-6, and shows that the cow alleged to have been killed was not running at large within the meaning of section 1898, of Kirby’s Digest. Tbe uncontroverted evidence shows that the cow was the subject of larceny.
Witness, Mrs. Davis, testified that on Sunday, after she heard that the cow had been shot, Ben Jones, Arthur Burrow and Howard Sayers “came to our house, all in a buggy, and Arthur Burrow and Howard Sayers stated that they had raised hell over across the river; had shot Brown’s cow and Carleton’s cow, and had set Neilson’s barn on fire.”
Mrs. W. M. Jones testified that Arthur Burrow stated to her that “they had shot Brown’s cow and Carleton’s cow, and set Neilson’s barn on fire.”
The court gave instructions to the effect that if the defendants, or either of them, admitted that they, or either of them, shot J. S. Brown’s cow, this was sufficient to convict the defendant, if other proof on the part of the State showed that the crime, as alleged in the indictment, was committed.
The defendant requested the court to instruct the jury as follows: “You are instructed that a defendant in a criminal case can not be convicted on statements alone made out of court if he denies the commission of the offense in court. Before you would be authorized to convict the defendants, or either of them, on statements made out of court, such crime must be proved by other competent testimony, which tends to establish his guilt and connect him with the commission of the crime.” This instruction the court refused. These rulings of the court are assigned as error.
Section 2383, of Kirby’s Digest, provides: “A confession of a defendant, unless made in open court, will not warrant a conviction of a crime, unless accompanied with other proof that such offense was committed.”
The instructions given by the court conform to this statute. There, was other proof besides appellant’s own confession that the offense charged had been committed. Under the above statute, where the offense charged is shown by other evidence to have been committed, then the party charged may be convicted upon proof of his confession, although made out of court; and where the offense is shown by other evidence than that of the accused’s confession out of court to have been committed, then his confession will be sufficient to warrant his conviction, whether there is any other testimony tending to connect bim with the crime or not. The rulings of the court were correct. Greenwood v. State, 108 Ark. 568; Turner v. State, 109 Ark. 332.
Witnesses Mrs. Davis and Mrs. Jones testified that they never said anything about the appellant’s confession to them until recently. Something over a year had elapsed since these confessions were made to them. One of the witnesses stated that she did not say anything about it until she went before the grand jury.
The appellant contends that this testimony shows that Mrs. Jones and Mrs. Davis were accessories after the fact. Appellant requested the court to instruct the jury that the appellant could not be convicted upon the testimony of an accomplice, unless he is corroborated by other evidence which, in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances thereof,” which the court refused.
The court did not err in refusing to instruct the jury as requested. Under the evidence adduced, neither Mrs. Davis nor Mrs. Jones was an accomplice. In Davis v. State, 96 Ark. 7, we held, “The mere fact that one remains passively silent after being informed of a crime, and without intent to shield the criminal, does not make him an accessory to the crime.”
There is no testimony to show that a failure of these witnesses to report or disclose the confession of appellant was prompted by a desire to shield him from punishment for the crime.
The bill of exceptions contains the following: “The attorney for the State, in opening the case, read to the jury the instructions of the court, and explained in Ms way what he thought they meant. He then toM the jury that he would argue the testimony after the counsel for the defendant made Ms argument. Thereupon, the counsel for the defendant moved the court to require the State’s attorney to state to the jury the testimony and the grounds upon wMch he relied for a conviction. The court refused to do so, and the defendant excepted. ’ ’
“After the attorney for the defense had closed his argument, the State’s attorney made Ms closing argument, and, over the protest of the defendant, argued the testimony of- all of the witnesses, including the testimony of Ambrose Henry, which the court said could not be considered. The defendant objected and asked the court to stop the said prosecuting attorney, and to instruct the jury not to consider said argument, which the court refused to do, but permitted him to proceed with the same over the objections of the defendant, to which defendant excepted. ’ ’
Section 2388, of Kirby’s Digest, provides: “If the case be not submitted without argument, the party having the burden of proof shall have the opening and conclusion of the argument, and if, upon the demand of the adverse party, the attorney prosecuting for the State shall refuse to open and fully state the grounds on which he claims a verdict, the party so refusing shall be refused the conclusion of the argument.”
The court erred in not giving the appellant the benefit of this statute. The mere reading of the instructions by the prosecuting attorney, and “explaining in his way what they meant,” was not a compliance with the statute requiring him, upon demand of the adverse party, “to open and fully state the grounds on which he claims a verdict. ’ ’ The burden was on the State, and it was the duty of the prosecuting attorney, representing the State, upon demand of the appellant, to open and fully state the grounds on which he claimed a verdict.
After the prosecuting attorney, upon the demand of the appellant, had failed to open and fully state the grounds upon which he claimed a verdict, the court, un der this statute, should have denied him the privilege of concluding the argument on hehalf of the State. The statute confers upon the party having the burden of proof the privilege of concluding the argument provided he makes a “full” opening of his case. This is regarded as a very important right, so much so that to deprive one of it is prejudicial error. But the statute contemplates that the party having the burden shall not enjoy the privilege of concluding the argument without first being fair to the adverse party in making a full statement of the grounds upon which he claims a verdict against him. This is to give the adverse party the opportunity to explain away, if he can, those grounds. The statute intends, as far as possible, to give the respective parties litigant a fair opportunity to be heard in the argument of their respective contentions, and, as far as possible, not to give the one an undue advantage over the other. Hence the party having the burden of proof and the right to close the argument can not do so until he has given the adverse party an opportunity to know what his claims are by making a full opening.
In the case at bar, appellant introduced proof which, if believed by the jury, would have fully warranted them in returning a verdict of not guilty. While there was evidence amply sufficient to sustain the verdict, yet the case was one so sharply contested on the facts that it was very unfair and very prejudicial to appellant to deprive him of the benefit of the statute. To have properly conserved the rights of the appellant the court should have refused the prosecuting attorney the privilege of closing the argument when he had failed in his opening argument to state fully the grounds upon which he relied for a conviction of the defendant. The ruling of the court in this regard is error for which the judgment must be reversed and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the ¡facts). It is first earnestly insisted by counsel for appellant that the court erred in not directing a verdict in its favor. Under the act of March 8,1907, all corporations are made liable for injuries to their servants resulting from the negligence of other servants, regardless of the grade of service. Soard v. Western Anthracite Coal & Mining Co., 92 Ark. 502; Aluminum Company of North America v. Ramsey; 89 Ark. 522; St. Louis Southwestern Ry. Co. v. Burdg, 93 Ark. 88.
It is well settled that the rule which imposes upon the master the duty to exercise ordinary care to provide his servant with a reasonably safe place in which to work requires the master to make réasonable inspection to see that the place of work and appliances are safe. St. Louis, I. M. & S. R. Co. v. Holmes, 88 Ark. 181. This is conceded to be the law by counsel for appellant, but they contend that under the facts as disclosed by the record the master delegated to appellee the duty to inspect its machinery and appliances and to make them 'safe or to report their unsafe condition to the foreman and that, therefore, the case falls within the principles of law decided in the ease-of Southern Anthracite Coal Company v. Bowen, 93 Ark. 140, and other cases of like character. Under the rule contended for, if it was the duty of appellee to have inspected the appliance at which he was working when he received his injuries before he went to work there, then he ought not to recover; for in that event the injury was the result of his own negligence because he admits that he did not inspect the appliance for de fects at the time he went to work there. We do not think the evidence as disclosed by the record bears out their contention. It is true that a part of the duties of appellee was to assist in inspecting the machinery and appliances of appellant. The mill plant of appellee had •two floors and appellant was injured while working’ on .the upper floor. The testimony shows that it was the custom of the foreman to have an inspection made of the machinery on the floor on which appellee was hurt, every day at the noon hour. The machinery was then idle and the foreman, together with appellee and two others, at that hour made an inspection of all the machinery and appliances used by appellant in operating its mill. Appellee states that such inspection was made at the noon hour on the day preceding the accident and that the plank which was nailed to the table on which ran the moving’ rollers was in its place and that the cog wheels which ran the moving rollers were not exposed. He says that during the rest of the day his duties kept him on the first floor of the mill and that it was not necessary for him to go on the second floor unless he was called there by signal or directed by the foreman to go there for the purpose of making repairs or doing such other work as he was required to perform. He says that he did not go on the second floor during the afternoon after the inspection just referred to had been made and that he went up there to work early in the morning at the command of his foreman. That the slabs were piled around the table in such a way as to conceal the fact that the plank had been removed and left the cog wheel exposed and that he did not notice this fact until after he was injured.
Other evidence shows that the plank was pried off about 5 o’clock in the afternoon before and that Mullins, whose duty it was to repair any defects that he might discover in the machinery or to report them to the foreman, was present and knew that the plank had been pulled off. The evidence shows that it was dangerous to work at the table where the live rollers were without the cog wheels and gearing being guarded and that they were kept from being exposed by a plank four feet long, one inch thick and eight inches wide. Therefore, the jury might reasonably infer that the act of Mullins in not restoring the plank to its position or in reporting the fact of its being off to the foreman, was an act'of negligence which would render appellant liable for any injuries caused thereby. Appellee according to his testimony was acting as a substitute for another servant at the time he was injured and was not acting in his capacity of inspector. He said that he was not required to inspect the appliances before using them when he took the place of another servant. He said that he went up there hurriedly that morning and began to place the accumulated slabs on the live rollers in order that they might be cleared out of the way so it would not become necessary to stop the machinery. That the slabs were so piled around the table that they concealed the fact that the plank had been removed and left the cog wheels exposed. Hnder these circumstances, we think that the contributory negligence of appellee was a question for the jury.
Counsel for appellant next insist that the court erred in giving the following instruction:
“In this case, if the injury was the result of any risk or hazard ordinarily or usually incident to the'plaintiff’s employment at the mill, he assumed that risk, and can not recover; but he does not assume the risk created at' the time of the injury by the negligence of the defendant, its agents or servants, of which he did not know; and if his injury was the result of said' negligence of the agents or servants of the defendant, then he did not assume such risk. ’ ’
They contend that the instruction ignores the contention of appellant, as it was appellee’s duty to discover and remedy any defect that existed in the appliances about appellant’s sawmill before he began to work around the same. We do not think that it was proved that such was his duty. As we have already seen, appellee stated that he was required only to inspect the machinery and appliances on the floor on which he was hurt at stated intervals, and testified in effect that when he was substituted for another servant he was not required to inspect the machinery or appliances before going to work at them. It is true the foreman testified that appellant’s duty carried him all over the mill plant and that it was his duty, if he knew of any defect in the machinery or appliances, to repair it himself or to report the fact to the foreman. His testimony, however, does not go to the extent of showing that it was the duty of appellant to make an inspection of the machinery and appliances before he went to work at them when he was substituted for another servant. The undisputed testimony shows that the inspection of the machinery was made at regular and stated intervals and at other times appellee was employed in the work of making repairs and performing such other duties as were assigned to him by the foreman. The fact that it was his duty to repair any defect that he might discover in the course of performing his duties does not show that he would be required to inspect machinery before going to work at it as a substitute for another workman. In this view of the case it does not make any difference whether he went to work at the place where he was injured by the direction of the foreman or in the discharge of his usual and ordinary duties. We think that the undisputed testimony shows that it was not his duty to have made an inspection of the machinery where he was injured before he went to work at it in place of another servant, and that there was no error in giving the instruction.
Other assignments of error in regard to instructions given and those refused are raised by appellant’s counsel in their brief and argument. We have not overlooked them, but think they are sufficiently covered by the principles of law which we have announced. We have considered the instructions given and those refused and think that the issues raised by the pleadings and the evidence were fairly covered by the instructions given, and the judgment will be affirmed. | [
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Habt, J.
J. W. Jameson chartered an immigrant car from the St. Louis, Iron Mountain & Southern Railway Company, within which to ship his household goods, including a milch cow and some chickens, from a station on its line of railroad in the State of Arkansas to another point on its railroad within the State. He placed French Loyd, his brother-in-law, in charge of the car, and Loyd rode in it for the purpose of milking the cow and taking care of her. While en route, a brake beam fell down upon Loyd and severely injured him, and he instituted this suit against the .railway company to recover damages therefor. This is the second appeal in the case. The opinion on the former appeal is reported in 105 Ark. 340, under the style of St. Louis, Iron- Mountain & Southern Railway Co. v. Loyd, and reference is made to that opinion for a more extended statement of the issues. Upon the retrial of the case in the circuit court, the jury again returned a verdict for the plaintiff, Loyd, and to reverse that judgment, the railroad company prosecutes this ap peal. On the former appeal, which is the law of the case, thei court held:
“Where, in an action by a caretaker for injuries received in being struck by a falling brace while he was riding in a box car in charge of a shipment of live stock, there was evidence of a general custom for caretakers to ride in box cars, and that the conductor knew and assented to plaintiff so riding, it was a question for the jury whether plaintiff was negligent, though there was evidence that it was against the carrier’s rules for a passenger to ride in a box car with live stock.”
Upon a retrial of the case, the evidence in regard to the manner in which the plaintiff was injured, and the character and extent of his injuries was substantially the same as on the former trial. As no question is raised on this point, we do not deem it necessary to abstract the testimony in regard to it, but confine ourselves to the questions upon which the railway company bases its right for the reversal of the judgment.
At the request of the railway company, the court told the jury that the mere occasional violation of a rule by the company does not make a custom that will have force or effect; and also gave the following:
“Before custom would be deemed to give plaintiff any right to ride in the box car, such custom must have been brought to the actual knowledge of the officials of the-defendant of higher authority than a mere conductor, and acquiesced in by such higher officials, or the violation of the rule and the existence of the custom must have been of such long and continued and general existence that such higher officials would be presumed to have acquiesced therein.”
The plaintiff and two other witnesses for him testified that they had worked-on the defendant’s line of railroad, as well as other lines! of railroad in the same section of the State, for the past six or seven years, and that it was the custom for a caretaker to ride in an immigrant car to take care of the stock placed in it, and that every few days they would see immigrant cars .contain ing household goods and livestock going up and down the railroad, and that it was the custom for a caretaker to ride in the car and take care of the live stock; that this custom obtained as to immigrant cars, and did not obtain when cattle were exclusively'shipped in a car.
On the part of the railroad company, it was shown by the trainmaster, conductor and one of its station agents, that, under the rules and regulations1 of the railway company, caretakers of immigrant outfits are permitted to ride free to care for the live stock, but that they are required to ride in the caboose, and that no conductor is authorized to permit a man to ride in the car with the stock, and that they had no knowledge of a custom permitting caretakers to ride in an immigrant car with the stock and household goods.
The plaintiff testified for himself, and said that it was warm weather, and it was necessary for him, or some one else, to be in the car to milk the cow and otherwise care for her. That he rode with the door of the car open. That the conductor knew he was to go along to take care of the cow, and that the conductor passed along by the side of the open door of the car, and that he was standing in the door, and saw the conductor, and supposed the conductor saw him. That at another stop, he saw the conductor standing near where a brakeman had been injured, and that he thought the conductor saw him at that time. The injured brakeman testified that he saw the plaintiff at the time and spoke to him, but did not know whether or not the conductor saw him. The conductor stated that he did not see the plaintiff, and that if he had done so, he would have ordered him back to the caboose.
Counsel for the railway company insist that the testimony of plaintiff and his witnesses in regard to the custom was not competent; but we do not agree with them in their contention. The existence of a custom of the kind under consideration in this case may be testified to by any person who possesses knowledge of the custom. The plaintiff and his witnesses testified that for several years they had seen immigrant cars going up and down the railroad every few days, and that it was the custom for the caretaker to ride in said cars. This testimony, if believed by the jury, was sufficient to establish the custom, and the jury might have inferred from it that it had continued with such uniformity and for such a length of time as that the trainmaster had knowledge of it. See St. Louis; Iron Mountain & Southern Ry. Co. v. Wirbel, 158 S. W. (Ark.) 118; 108 Ark. 437,
The conductor placed the car in his .train, and does not deny but that he saw plaintiff at the immigrant ear then in charge of it. He knew that plaintiff did not ride in the caboose, at least, the jury might have found from the attendant circumstances, that such was the fact. The jury then was justified in inferring from plaintiff’s testimony, and the surrounding circumstances that he saw the plaintiff riding in the immigrant car, and acquiesced in his so doing. The conductor had sole charge of the train, and it was his duty, when he saw the plaintiff riding in the immigrant car, to notify him that it was against the rules of the company to ride there, if such was the case, and from the fact that he did not do so, the jury was warranted in finding that he acquiesced in his riding in the immigrant car.
Again, it was objected by counsel for the railway company that the plaintiff and Jameson, the owner of the goods shipped in the immigrant car, were permitted to testify that it was necessary for some one to ride in the car to milk the cow and care for her, because it was warm weather. Even if it could be said that this testimony was incompetent because it. did not tend to establish a custom, we do not think it was prejudicial to the rights of the railway company. The instructions given by the court, both at the request of the plaintiff and of the defendant railway company, predicated the plaintiff’s right to recover solely upon the existence of the custom above referred to, and on the further fact of whether or not the conductor knew that the plaintiff was riding in the immigrant car, and acquiesced in his so doing. The question of the contributory negligence of the plaintiff was fully submitted to the jury in the instructions given by the court. Objections have been made by counsel for the railway company to certain instructions given by the court, but we do not deem it necessary to set them out. We have carefully examined the instructions given by the court and those refused, and we have reached the conclusion that the case was submitted to the jury upon the principles of law announced in our decision on the former appeal, which is the law of the case. The judgment will be affirmed. | [
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Frauenthal, J.
This was an action instituted to recover damages for an illegal arrest and false imprisonment. The defendants were Bullard, Eannheart & Magness, a domestic corporation, W. K. Rudd ell, a justice of the peace, and W. C. Meacharn, a constable of Ruddell Township, Independence County, Arkansas.
In his complaint the plaintiff, in substance, alleged that W. C. Bullard, the president of said corporation, acting for and on its behalf, filed an affidavit in the court of said justice of the peace charging that the plaintiff did “commit the crime of perjury by false swearing in a material matter of in re W. R. McIntosh, pending before. Ohas. F. Cole, referee in bankruptcy;” and in the affidavit there was a prayer that said justice of the peace should issue a warrant “to apprehend said McIntosh, and bring him before him to be dealt with according to law.” Thereupon said justice of the peace issued a warrant addressed “to any constable of Independence County,” commanding him to arrest said McIntosh, and bring him before the said justice of the peace to answer said charge. Under this warrant the constable arrested the plaintiff and deprived him of his liberty and brought him before the justice of the peace, who set the hearing of the matter for a subsequent day, and required the plaintiff to give bond for his appearance on that day. On the hearing of the charge the justice of the peace ordered that plaintiff be bound over for h-is appearance to answer the charge before the grand jury of Independence County. He alleged further that the justice of the peace had no jurisdiction over the offense charged in the affidavit, and had no authority to issue'the warrant, and that on this account the arrest was illegal, and the deprivation of his liberty thereunder was a false imprisonment. He also alleged that said prosecution was instigated wrongfully, and that he was discharged by said grand jury.
To this complaint the defendants interposed a general demurrer, which was sustained; and, the plaintiff refusing to plead further, the lower court dismissed the complaint; and from the judgment dismissing the complaint the plaintiff has appealed to this court.
It is urged by counsel for plaintiff that the allegations of the complaint are sufficient to constitute a cause of action for false imprisonment. It is claimed that the complaint alleges .that plaintiff was arrested upon a charge which was an offense, if any, only against the United States, and not against the sovereignty of the State of Arkansas; and therefore it is contended that the justice of the peace, who was an official of the State, had no jurisdiction over such alleged offense, and that the warrant issued by him in such matter was void; and that his arrest and detention thereunder was a false imprisonment. The offense charged against the plaintiff in the affidavit filed before the justice of the peace was perjury, font it was therein alleged that the perjury was committed before a referee in bankruptcy, an official of the United States, and not before an officer or tribunal of the State of Arkansas. A witness who gives his testimony in a matter pending in a court of the United States or before a judicial tribunal of that sovereignty is accountable for the truth of h's testimony only to the United States, and perjury committed in so testifying is a crime only against the laws of the United States, and the prosecution therefor is within the exclusive jurisdiction of its courts. The courts of the State have no jurisdiction to entertain or proceed with a prosecution for Ae offense of perjury committed in a matter pending before the judicial tribunals of the United States. State v. Kirkpatrick, 32 Ark. 117; Thomas v. Loney, 134 U. S. 372.
But, notwithstanding the justice of the peace had no jurisdiction as a State official to entertain proceedings for a prosecution for this offense under the laws of the State of Arkansas, nevertheless, as an agency and officer designated by the laws of the United States, he did have authority' and jurisdiction to arrest and imprison or bail for trial any offender against the laws of the United States.
It is provided by enactment of Congress (United States Compiled Statutes, 1901, p. 716, Rev. Stat. § 1014) that “for any crime or offense against the United States, the offender may by any * * * justice of the peace * * * be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of such offense.”
The justice of the peace was designated by Congress as an official upon whom it conferred the authority to issue the warrant for and to bind over the person charged with perjury committed against the laws of the United States. The justice of the peace had, therefore, the jurisdiction to perform this function; and the warrant issued by him was not illegal and void. Thomas v. Loney, 134 U. S. 372.
Inasmuch as the justice of the peace had jurisdiction over this matter by virtue of the laws of the United States, the defendant, who only gave the information and merely preferred the charge, would not be liable for false imprisonment. 19 Cyc. 329; Langford v. Boston & Alb. Rd. Co., 144 Mass. 431; Gifford v. Wiggins, 50 Minn. 401; Murphy v. Walters, 34 Mich. 180.
False imprisonment is a trespass committed against the person of another by unlawfully arresting and detaining him without any legal authority or by institgating such unlawful arrest. It must be alleged that the arrest was without legal authority before an action can be founded upon a false imprisonment. It is not claimed that the complaint alleges a cause of action for malicious prosecution. In such action the arrest must be made by legal' process; the prosecution is apparently legal, but it is instigated by malice and without probable cause. Vinson v. Flynn, 64 Ark. 453; 26 Cyc. 9; Davis v. Pac. Tel. & Tel. Co., 57 Pac. 764; Nebenzahel v. Townsend; 10 Daly 235.
It is not alleged that the defendant preferring the charge before the justice of the peace in any way participated in the arrest of plaintiff or his commitment, nor that it interfered therewith by giving any direction to the officer or otherwise. Where a person does no more than to give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for the acts done under a. warrant which the officer issues on said charge. 9 Cyc. 330; 12 Am. & Eng. Enc. Law, 739.
It therefore follows that, even though the complaint had made sufficient allegations that the corporation had authorized the preferment of the charge, it does not make sufficient allegations to show that it is liable for an action for false ■ imprisonment.
Nor do we think that the allegations in the complaint are sufficient to constitute a cause of action for false imprisonment against the justice of the peace who issued the warrant and entertained the charge against the plaintiff. The rule is well established that judges of courts of superior or general jurisdiction are not liable to civil action for their judicial acts, even when those acts are in excess of their jurisdiction; and we think that the weight of authority is that this immunity from civil liability is equally applicable to a judge whose jurisdiction is limited. There is a clear distinction between an absence of all jurisdiction and a jurisdiction exercised erroneously or irregularly over the subject-matter. Where a justice of the peace or a judge of an inferior court is invested by law with jurisdiction over the general subject-matter of an alleged offense, and acts with entire good fai'th, he should not be held liable in damages for an erroneous decision to a party who has been injured thereby.
If he has the power under authority of law to hear and pass on cases to which the particular offense belongs, the same reason should require that he should be protected from civil liability for an erroneous decision which exempts judges of superior or general jurisdiction from such liability.
“Nothing is more essential and important than that the judiciary shall be independent. Every judge should feel per fectly free to follow the dictates of his own judgment; and the one thing essential to that independence' is that they shall not be exposed to a private action for damages for anything that they may do in their official capacity. No judge would feel free if he knew that upon the rendition of a judgment or order he might be subjected to a suit by the defeated party, and, in the event that it should be held erroneous, and that he had mistakenly exceeded his jurisdiction and powers in some particular, be mulcted in damages.” Comstock v. Eagleton, 11 Okla. 491.
As is said in the case of Trammell v. Russellville, 34 Ark. 105, “It is a universally recognized principle that one acting judicially in a matter within the scope of his jurisdiction is not liable in an action for his conduct. Whenever the State confers judicial powers upon an individual, it confers them with full immunity from private suit.” Bradley v. Fisher, 13 Wall. 335; Austin v. Vrooman, 14 L. R. A. 138; Lange v. Benedict, 73 N. Y. 12; Grove v. Van Duyn, 44 N. J. R. 654; 23 Cyc. 568; Savacool v. Boughton, 5 Wend. 172.
The statute of the United States has designated the justice of the peace as an official upon whom it has conferred the power and jurisdiction to issue a warrant for the apprehension of alleged offenders against its laws and to hear and determine in such matter whether or not to discharge or hold such alleged offender for trial before its courts. Being invested with that judicial authority, the justice of the peace is-not liable to a civil action for any erroneous decision made in entire good faith in the exercise of that jurisdiction which was conferred upon him. The allegations of the complaint do not show an absence of jurisdiction of the justice of the peace to issue the warrant as an official of the United States .for the offense charged against the laws of the United States, nor such an exercise’ of that jurisdiction for which he could be held liable in damages in an action for false imprisonment.
Nor do we think that the allegations of the complaint are sufficient to constitute a cause of action for false imprisonment against the constable. The law protects an officer in the execution of process or a warrant, if it is fair and regular on its face. He is not to look beyond the warrant; he is not to exercise his judgment as to whether or not the process is valid. If it is in due form and issued by an official who apparently has ju risdiction of the case or the subject-matter, the officer must obey its commands. In suoh case the officer is protected in the service of the process, although it may have in fact been issued wrongfully or without authority. Lavender v. Hudgens, 32 Ark. 763; Trammell v. Russellville, 34 Ark. 105; Chrisman v. Carney, 33 Ark. 316; Cassier v. Fales, 139 Mass. 461; Haskins v. Ralston, 69 Mich. 63; Page v. Citizens Banking Co., 111 Ga. 73; Savacool v. Boughton, 5 Wend. 172; 12 Am. & Eng. Enc. Law, 739; 19 Cyc. 344; Emerson v. Hopper, 94 Ark. 384.
The allegations of the complaint do not state facts sufficient to constitute a cause of action for false imprisonment against any of the defendants.
The judgment is affirmed. | [
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McCulloch, C. J.
Appellants were petitioners to the county court of- Lawrence County for the establishment of a drainage district in that county. When the final report of the viewers came on for hearing in the county court, certain landowners in the proposed district appeared, and made objection, and the court ■ rendered a judgment declaring that said improvement would not be “conducive to the public health, convenience or welfare,” and dismissing the petition. The petitioners appealed to the circuit court, where, on motion of ap pellees, the appeal was dismissed on the ground that the petitioners had no right of appeal from the judgment of the county court dismissing the petition.
The statute regulating appeals to the circuit court in proceedings to establish drainage districts reads as follows:
“Any person or corporation party to proceedings may, on filing the bond, to be approved by the county court, conditioned to pay all costs occasioned thereby, file exceptions to the apportionment, or to any claim for compensation or damages at any time before the day set for the hearing of said report by the court. The county court may hear testimony and examine witnesses upon all questions made by the- exceptions, and for that purpose may compel the attendance of witnesses by subpoena, and their decisions upon each of the exceptions shall be entered of record; and if they sustain the exceptions the cost of hearing the same shall be paid out of the county treasury, and if they overrule the same such cost shall be taxed against the person or corporation filing the exception. Any person or corporation may appeal from the order of the court, and upon such appeal may determine either of the following questions:
“First. Whether such improvement will be conducive of public health, convenience or welfare, or the location of any part changed.
“Second. Whether the route is practicable.
“Third. Whether the compensation has been allowed for property appropriated.
“Fourth. Whether proper damages have been allowed for property affected by the improvements.
“The appellant shall pray an appeal to the circuit court and file a motion in writing specifying therein the matters appealed from; which motion shall be filed and recorded. The county court shall then fix the amount of bonds to be given - by the appellant, and cause an order thereof to be made on their record. The party appealing shall within ten days thereafter file with the county clerk a bond in the amount fixed by the county court, with at least two good and sufficient sureties, to be approved by the clerk, conditioned to pay all costs made on appeal in case the appellant fails to sustain the same or the appeal be dismissed for any reason, and the said clerk shall make a complete transcript of the proceedings had before the county court and certify the same with all the original papers filed in his office and file them in the office of the clerk of the circuit court within thirty days from the day of filing said bond.” Kirby’s Digest, § 1428.
This statute clearly gives the right of appeal to “any person or corporation” aggrieved by the judgment, whether petitioner or remonstrant. But, even if it did not, as contended, give-the right of appeal to petitioners, the Constitution and the general statutes confer that right. Constitution, art. 7, § 33; Kirby’s Dig., § § 1487-1493; Huddleston v. Coffman, 90 Ark. 219.
The circuit court erred in dismissing the appeal.
Reversed and remanded. | [
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Frauenthal, J.
This is an original action instituted in this court for a mandamus to the circuit court of Clark County, in the nature of a writ of procedendo, to compel that court to assume jurisdiction of a cause, which was brought in that court, and to try and determine the same. The Automatic Weighing Machine Company, the petitioner herein, instituted a suit in the Clark Circuit Court against the Arkadelphia Milling Company, and in its complaint it alleged that the defendant was indebted to it, under and by virtue of a written contract, for the value of two weighing machines; and it sought to recover judgment therefor. To said action the defendant filed an answer and cross complaint, in which it claimed to set forth certain equitable rights and defenses, and it incorporated in said pleading a motion to transfer said cause to the Clark Chancery Court. Upon a hearing of said motion the cir.cuit pourt sustained the same, and entered an order transferring the cause to the chancery court, and thereafter refused to proceed with or to exercise further jurisdiction over said cause. Thereupon the plaintiff in said case filed its petition in this court against the Hon. Jacob M. Carter, as judge of the Clark Circuit Court, seeking the issuance of said mandamus. In said petition it has set forth the complaint, and answer, cross complaint and motion to transfer filed in said case of the Automatic Weighing Machine 'Company against Arkadelphia Milling Company, and claims that therefrom it clearly appears that the Clark Circuit Court has jurisdiction to hear and try said cause, and that the defendant has pleaded no right or defense that is exclusively cognizable in a court of chancery. It therefore contends that the circuit court had no power to transfer said case to the chancery court and to thus divest it of the jurisdiction and duty to hear and determine same. In the answer to this petition the respondent contends that the said answer and cross complaint do set forth equitable rights and equitable defenses, and that the Clark Circuit Court made said order of transfer in the due exercise of its judicial discretion.
We do not deem it necessary to set forth the allegations of said answer and cross complaint, or to determine whether or not any equitable defense is therein set forth, or whether or not the circuit court erred in transferring the case to the chancery court, or whether or not in the present status of the case such order of the circuit court was an exercise of judicial discretion which could not be controlled by mandamus; because the petitioner has not shown that he has no other adequate remedy, and that he can not secure such remedy by following said case to the chancery court to which it has been transferred. The writ of mandamus is only employed in unusual cases, and where no other remedy is available.
The exercise of the jurisdiction to issue the writ rests within the sound discretion of the court. It has been uniformly held that it will be issued only on extraordinary occasions to meet emergencies and to prevent a failure of justice. On this account the discretion to issue the writ will' not be exercised until the parties have used all other available means to obtain the enforcement of their rights. High’s Extraordinary Remedies, § 9; Ex parte Whitney, 13 Pet. 404.
In the case of Goings v. Mills, 1 Ark. 11, it is said: “It is believed to be well settled that the writ of mandamus is not to be considered as a writ of right, but it is understood to be within the discretion of the court to. grant it; and it is held to be a general rule that the party applying for this writ must show a specific legal right and the absence of any specific legal remedy to induce the court to grant it.” In the case of Fitch v. McDiarmid, 26 Ark. 482, the court said: “Upon the strength of the foregoing authorities, emanating as they do from such eminent jurists, we have no hesitancy in announcing that before a person can obtain-the writ of mandamus he must present such a case or show that he has a clear, legal right to the subject-matter of his petition; second, that he has no other adequate remedy.” Mr. High, in his work on Extraordinary Remedies, § 188, says that a review of the authorities show “the doctrine to be too firmly established to be easily shaken that the existence of another adequate and specific remedy is a sufficient bar to the granting of relief by mandamus, and that the writ is never allowed when the grievance in question may be corrected on error or appeal. Closely allied to this doctrine, and'founded upon the same reasoning, is the principle that mandamus will not be allowed to take the place or to usurp the functions of an appeal or writ of error. Ex parte Trapnall, 6 Ark. 9; Underwood v. White, 27 Ark. 382; Barham v. Carroll, 44 Ark. 284; 19 Am. & Eng. Enc. Law, 756; 26 Cyc. 168.
In the case at bar it appears that the Automatic Weighing Machine Company instituted an action at law against the Arkadelphia Milling Company in the circuit court. The defendant in that case set forth, as it claimed,, an equitable defense to that action, and moved that the case be transferred to the chancery court. This the defendant had the right to do. It was the duty of the defendant to interpose all defenses that it had to the action, whether legal or equitable; and, if equitable, to ask that the cause be transferred to the chancery court. Kirby’s Digest, § § 1282, 5995; Reeve v. Jackson, 46 Ark. 272; Daniel v. Garner, 71 Ark. 484.
The circuit court did not refuse to assume jurisdiction of the action, but proceeded to hear and pass upon the motion to transfer. This it had the right to do. In the exercise of its judicial discretion it determined that the answer set forth an equitable defense, and ordered the transfer of the case to the chancery court. Before the chancery court has taken any action, relative to the case, the petitioner now seeks this extraordinary remedy of mandamus from this court. The chancery court may, within its judicial discretion, determine that it should entertain jurisdiction of this case. If it does so, and shall make an order or judgment therein which is appealable, then the petitioner has the remedy of appeal or writ of error, if it shall believe that it, is aggrieved by such decision; and upon such appeal to have the order of transfer reviewed.,. It has now the right to proceed with said cause to the chancery court; and, until that court shall refuse to take cognizance of the case, it can not be said that the petitioner is without adequate remedy.
The petitioner relies upon the case of Gilbert v. Shaver, 91 Ark. 231, for his action herein. In that case the action was instituted in the circuit court, and the defendant filed thereto an answer and cross complaint in which he claimed to set forth an equitable defense; and upon his motion the case was transferred to the chancery court. The chancery court thereupon refused to take jurisdiction of the case and remanded it to the circuit court. After this action was taken by the chancery court a petition was filed in this court for a mandamus seeking to compel the chancery court to assume jurisdiction of the case and to try and determine same. In that case it was held that, inasmuch as an appeal could not be taken from an order of transfer (Womack v. Connor, 74 Ark. 352), the petitioner was without a remedy. In that case the circuit court had refused to assume jurisdiction of the action, and the chancery court had also refused to take jurisdiction thereof. The petitioner bad used all available means to obtain an enforcement of his rights. An extraordinary occasion was presented where the lower courts, which by the statute and Constitution were invested with jurisdiction to hear and determine such rights as the petitioner presented, refused to assume jurisdiction thereof and refused to make a final order from which the petitioner could appeal. The writ was therefore awarded to meet the emergency presented and to prevent a failure of justice. But no such emergency is presented by the petitioner in the action at bar. It has not followed its cause to the chancery court and there prosecuted same. It has not sought that remedy which at present appears to be open to it, but rather seeks, by this proceeding for a mandamus, to review the alleged error of the circuit court in making the order of transfer. This it cannot do. Until the chancery court shall fail to take jurisdiction of the action, or until such court shall refuse to make some final order that will be appealable, it cannot be said that the petitioner has no available remedy.
The petition for a mandamus is therefore denied. | [
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Frauenthal, J.
This was an action instituted by the appellee in the chancery court to recover the amount of rent for certain land, which he alleged he leased to one of the defend ants for the year of 1908, and to fix his landlord’s lien on the proceeds of the cotton raised on the land during that year in the hands of the other defendants, who, he alleged, had purchased the cotton with notice of said rent, and by sale had wrongfully converted same; and to secure a judgment against the defendants for the amount of said rent.
In January, 1908, the appellee entered into a contract with Eph. H. Hicks, by which he agreed to sell to him certain land in Ouachita County upon deferred payments to be made in four installments of $375 each, the first of which was to be made on December 1, 1908, and the others on December 1 of each year thereafter. The contract further provides:
“But in case the said second party shall fail to make the payments aforesaid, or any of them, punctually and upon the strict terms and at the times limited, and likewise to perform and to complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, then this contract shall, from the date of such failure, be null and void, and all right and interests hereby created or then existing in favor of the said second party, his heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted shall revert to and revest in said first party, his heirs or assigns (without any declaration of forfeiture or reentry, or without any other act by said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or improvements made), as absolutely, fully and perfectly as if this contract had never been made. And it is hereby further covenanted and agreed by and between the parties hereto that, immediately upon the failure to pay any of the notes above described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties hereto for one year from December 1, immediately preceding the date of default, and the said party of the second part shall pay rent at the rate of one hundred and seventy-five dollars for occupying the premises from the said December 1 to the time of default, such rent to be due and collectable immediately upon such default.”
Hicks went into possession of the land tinder'the above contract, and cultivated and raised on the land ten 'biles' ¡o'f cotton during the year of 1908. He sold nine of thes'e baié'á' prior to December 1, 1908, to the appellants, and' sold one b'al'é to them after that date. At the time of the purchase oftli'e cotton the appellants had full notice of the above contract under which Hicks held the land. Hicks failed to pay to appellee the first installment on the land on December- 1, 1908, or at any time thereafter. The appellants sold the cotton for a sum far in excess of $175, the amount of the alleged rent. ' ■
The appellee made the above allegations in his complaint, and the appellants denied these allegations in their answer, and also incorporated in the answer a general demurrer to the complaint, which was overruled.
Upon the hearing of the cause the chancellor found that the allegations in the complaint were sustained by the evidence adduced in the case. He found that the relation of landlord and tenant existed between appellee and Hicks, and that there was due to appellee $175 for rent of said land for 1908. He declared the amount of said rent a lien on the proceeds of the. cotton which had been sold and converted by appellants, and entered a judgment in favor of appellee and against appellants therefor.
Contracts similar to the one entered into by appellee and Hicks relative to said land have been construed by this court several times, and the nature and effect thereof determined. By the first clause of the contract an agreement- to sell the land was made, but only upon an express condition of payment of the purchase money at a stated time. Upon the failure to perform that condition, the relation of landlord and tenant existed between the parties, 'which related back to the time of the execution of the contract. In the case of Ish v. Morgan, 48 Ark. 415, in speaking of such a contract, this court said: “The first stipulation of the contract is one of purchase and sale. It binds the vendor to convey to the defendant; but to the terms of this agreement there is annexed the condition that, in case of failure of performance of the agreement to pay the first installment of purchase money, the intended vendee shall thereafter pay rent for the use of the land. It was certainly competent for the parties to enter into a binding agreement of- this nature. * * * The vendee here has in effect agreed that his rights shall depend upon .the scrupulous adherence to the engagement he made to pay the purchase price, and that time should be a material consideration in the contract. Thé contingency thus provided for by the vendor had occurred, * * * and the defendant was then holding under his agreement to account to the owner for the rental value of the land.” Block v. Smith, 61 Ark. 266; Thomas v. Johnston, 78 Ark. 574; Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark. 185; Carpenter v. Thornburn, 76 Ark. 578; Smith v. Caldwell, 78 Ark. 333.
By the terms of the contract involved in this case it is manifest that it was the intention of the parties thereto that their relation should be determined by the performance or failure to perform the condition of payment named in the contract. If the condition was performed, then the relation of vendor and vendee should exist; but if it was not performed, then the relation that should exist between them was that of landlord and tenant. The relation that thus was created and arose between the parties sprung from the contract, and began with its execution, whether it was that of vendor and vendee or of landlord and tenant. The exact nature of the relation that would exist was determined on December 1, the date of the performance or non-performance of the condition, but the inception of that relation arose at the date of the making of the contract. So that when, by the performance or non-performance of the condition, the relation between the parties was determined, that relation went back to the time of the execution of the contract and continued thereafter. In the case of Thomas v. Johnston, 78 Ark. 574, the rule is thus quoted with approval from 18 Am. & Eng. Enc. Law, pp. 168-169:
“The parties to an agreement for the sale of land may also contract with the right, at the election of either party in the future, upon the performance or non-performance of. certain conditions, to treat the transaction either as a purchase and sale contract or a lease; and if the election is made to treat it as a tenancy, it relates to the time of making the contract, and the relation of landlord and tenant, with all the incidents and liabilities, will be regarded as having begun at that time.”
Under the terms of the contract herein Hicks was the tenant of appellee upon his failure to make the payment of the purchase money on December 1, and his tenancy related back and began on January 28, 1908, the date when the contract was made, and continued from that date.
The lien of the appellee as landlord became a charge upon the crop raised upon the land as soon as it came into existence. Sevier v. Shaw, 25 Ark. 417; Adams v. Hobbs, 27 Ark. 1.
It was immaterial, in the enforcement of the lien upon the cotton so raised on the land, whether the appellants purchased it prior to or after December 1, 1908, if they purchased with notice of the appellee’s rights as landlord. This they did, under the evidence. The appellee had a lien on this cotton for the payment of the rent of the land; and, after the appellants had, with notice of his rights, purchased the cotton from the tenant, and by sale had' wrongfully converted it, the appellee had a right to fix his lien on the proceeds, thereof in equity, and in that court to obtain judgment against appellants therefor. In the case of Judge v. Curtis, 72 Ark. 132, the rights and remedies of an owner of personal property and of a holder of a lien on such property wrongfully converted by another are thus stated:
“When the plaintiff is the absolute owner of the property taken and sold, * * * he must sue at law for the value of the property against the wrongdoer, and thus be indemnified for the loss he has been put to by the deprivation. Where the plaintiff has a lien on the property taken and sold by the conversioner, * * :|i his remedy is in equity, not for the value of the property taken, for he is not in that case the owner thereof, but to fix his lien upon the proceeds of the property in the hands of the conversioner, it being an equitable doctrine that a lien may be fixed upon the proceeds of the property where the lien on the property itself has been destroyed by the wrongdoer.” The party who wrongfully takes and sells property upon which a landlord’s lien exists is liable to the landlord for the violation or destruction of his lien, and in a court of equity can be made to account for such liability. Reavis v. Barnes, 36 Ark. 575; Anderson v. Bowles, 44 Ark. 108; Dickenson v. Harris, 48 Ark. 355; Merchants & Planters Bank v. Meyer, 56 Ark. 499; 7 Am. & Eng. Enc. Law, 477; 3 Pomeroy, Eq. (3d ed.) 1233.
It is urged by counsel for appellant that the court erred in rendering a decree against them without rendering judgment against the tenant. But we do not think that this contention is well founded. The tenant, Hicks, was made a party defendant, but appears not to have been .served with summons. The appellants did not demur to the complaint on the ground of a defect or nonjoinder of parties. Without making any objection upon this ground, they filed their answer and proceeded to a trial of the case upon its merits. It is provided by section 6093 of Kirby’s Digest that a demurrer may be interposed upon the ground that there is - a defect of parties. This must specifically be made a ground of demurrer. By section 6094 of Kirby’s Digest it is provided that “the demurrer shall distinctly specify the grounds of objection to the complaint; unless it does so, it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action.”
The objection made to a complaint on the ground that there is a defect of parties, which is in effect a nonjoinder of parties, must, therefore, be made in the manner above provided for in the statute; and if it is not so doné it will be waived. Eagle v. Beard, 33 Ark. 497; Chapline v. Robinson, 44 Ark. 202; Fordyce v. Merrill, 49 Ark. 277.
Furthermore, the action herein brought against appellants in equity for the wrongful violation or destruction by them of appellee’s lien is similar in its effect to an action brought at law against one who purchases the property from the first taker and then converts the same. The first taker in the action of trover and conversion and the tenant in the equitable proceeding to fix the landlord’s lien on the property converted may be proper parties, but they are not necessary parties to the determination of the case." And if the defendant does not by special demurrer raise the question of defect of parties, or by motion ask that such person be made a party to the suit, he waives such objection. Upon examination of the evidence, we find that the appellee instituted this suit within the time required by the statute for the enforcement of a landlord’s lien, and that the lien covered every portion of the cotton purchased by the appellants.
We find no error in the decree, and it is -accordingly affirmed. | [
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Battle, J.
O. J. Lindsey charged the St. Louis, Iron Mountain & Southern Railway Company with slandering him. He alleged in his complaint that he was employed by the defendant as station agent at Monticello, in this State; “that while he was so employed, about 21st day of October, 1907, the defendant, through its agents and servants, negligently, recklessly, wilfully and maliciously slandered him by stating in the presence uand hearing of L. PI. Edwards, P. T. Hammock and Ed Ahrens that two cars of cotton had been stolen out of the yards of the defendant at Dermott and brought to the station of Monticello, and 14 bales had been unloaded in the depot, and that plaintiff got said cotton; and by asking him what he did with it. That the servants of defendant who spoke said slanderous words of plaintiff were O. J. Cantley and C. Perman, who were special agents in the employ of defendant for the purpose of finding said missing cotton, and said charge was made by them in furtherance of the defendant’s business, which they were employed to do for the purpose of ascertaining whether plaintiff was the guilty person or had guilty knowledge of the matter, and of inducing him, if guilty, to confess it. That said slanderous words were wholly false, and were spoken maliciously and without probable cause, and plaintiff had not then or since then received said cotton, and had no knowledge concerning it. That thereafter he demanded of defendant that the slañderous charge be retracted, but defendant failed and refused to retract. That immediately after said slanderous charge defendant discharged him from its employ. That previous to that time he had the reputation in the community where he lived of being an upright, honest man, and had never been charged with or suspected of being engaged in any dishonest practice -whatever.' That said Edwards, Hammock and Ahrens, before whom the slanderous words were uttered, were citizens and residents of Monticello, where plaintiff lived. That by reason of the said slander plaintiff had been damaged, in his business standing and otherwise, in the sum of $10,000, and that, by reason of the wilful, reckless, and malicious conduct of defendant in uttering said slander, defendant became indebted to him in the sum of $20,000 punitive damages.”- He asked judgment for $30,000.
The defendant answered, and denied that its servants used the slanderous language complained of, or any other language which amounted to charging plaintiff with larceny or any other crime, or that such language was used for the purpose of ascertaining the guilty knowledge of plaintiff with, respect to said cotton and of inducing him to confess. It denies that Cantley and Perman had authority to charge any person with having-stolen the cotton, or to use any other language which would injure him in his 'business standing. Defendant had no knowledge of the truth or falsity of the words alleged to have been spoken, further than that the cotton was taken from the yards at Dermott, and had at no time charged plaintiff with having taken it, or being a party to the publication of such a charge. It denies that he demanded that it retract the charge or that it refused to do so. That, never having made or authorized the charge, it had nothing to retract. “That no language was used toward or about plaintiff calculated to injure him in his reputation, socially or in business circles, or calculated to charge him with a crime, but all that was said was to give him such facts as had been ascertained concerning the loss of the cotton to enlist his assistance in finding it; that all communications made to him were of privileged character, and without intent to injure him and without any suspicion of his guilt. It admits that it discharged him, but denies that it was on account of said cotton being lost, and says it was solely on account of his insubordination 'to those in authority over him. It denies that he was damaged as alleged in the complaint or in any other sum, and prays to be dismissed.”
A jury tried the issues in the case, and returned a verdict in favor of the defendant, and plaintiff appealed.
Both parties adduced evidence for the purpose of proving the allegations of their respective pleadings.
Among other things plaintiff testified in his own behalf that he was discharged from the service of the defendant imme-. diately after he was accused of having or taking the missing fourteen bales of cotton.
The defendant adduced evidence, over the objection of the plaintiff, to prove that he was. discharged from its service on account of incivility while acting as its agent.
George M. Parker testified, in behalf of the plaintiff, substantially as follows: “I am a conductor in the employ of the defendant, and in 1907 ran the freight train between McGehée, Arkansas City and AVarren, passing through Monticello. There were two crews on that run. Conductor AVeed was the other conductor. I know C. Perman, special agent for defendant. In October, 1907, Perman came into the lunch room at McGehee, and said he wanted to talk to me. AVe went outside, and he asked me if I didn’t take two cars of cotton out of the Dermott yards to Monticello about the 15th of October, and if O. J. Lindsey, the agent at Monticello, didn’t unload this cotton there. I told him I didn’t take the cars over to Monticello, and had no record of handling them. He turned and asked me what I did with the 14 bales of cotton, and I told him I didn’t know anything about the cotton at all. . He told me if I was mixed up in these 14 bales of cotton I had better get clear and unload on Lindsey. I told him I knew nothing whatever of the cotton. He said that he wanted to stick Lindsey for the 14 bales of cotton, that they knew where the cqtton was, and could lay hands on it, and wanted me to get in the clear.”
The court instructed the jury at the request of the plaintiff, in part, as follows:
“1. A slander is any publication or utterance which accuses a person of a crime punishable by law, or which amounts to a charge of having been guilty of any dishonest business or transaction, the effect of which would be to injure the credit or business standing of the person so slandered.
“8. In order to award punitive or exemplary damages, it must appear that the slanderous words were spoken of the plaintiff by the defendant through its agent acting within the scope of his employment, with malice. Malice, as used in this instruction, does not mean that the agent using the alleged slanderous words must have any personal spite, ill-will or hatred of the plaintiff, but means if the defamatory words complained of were wrongfully used, and were used intentionally, without just cause or excuse, or in wanton and reckless disregard of the rights and feelings of the plaintiff, then, in the legal sense, they were maliciously used.
“9. While it is true that malicious intent is not to be presumed, but must be proved, this proof need not be in the form of direct testimony, but may be shown by circumstantial evidence. It is for the jury to say, after considering the language of defendant's agent complained of, together with all the circumstances attending its utterance, whether such slanderous words were or were not spoken with malice, either express or legal, as hereinbefore defined.”
And refused to instruct as follows:
“2. You are instructed that it is alleged, and not denied, that the plaintiff had the reputation in the community in which fie lived of being an upright, honest man, and he had never been charged or suspected of any dishonest practice of any kind whatever; therefore you will accept said allegation as proved.”
And instructed them at the request of the defendant, over the objections of the plaintiff, as follows:
“1. The court instructs • the jury that the burden of proof is on the plaintiff in this case to prove by a clear preponderance of the evidence that the language complained of, as set out in the complaint, was used and published by the agent or agents of the defendant as alleged, and that such agent was acting under the authority of the defendant and acting within the scope of his employment in using such language, or that the defendant had afterwards ratified the same, and to prove that, as a result -of such slanderous publication by the agent of defendants, the plaintiff has been damaged in his character and reputation, and it must further appear that the slander was uttered with the malicious intent on the part of the defendant company to injure the plaintiff in his business or social standing.
“2. The court instructs the jury that, unless it appears to your satisfaction by a fair preponderance of the weight of the testimony after a careful comparison of all the evidence in the case that the language set out in the complaint was uttered or published toward or about the plaintiff by the agent or agents of the defendant, acting within the scope of their authority, you will not be warranted in presuming that any language, was used which was detrimental to plaintiff’s character or reputation, nor was intended to be used in a slanderous way, but the presumption is that no language was used or intended to be used to injure plaintiff’s reputation in his business or social standing, and this presumption must be overcome by proof.
“4. The court instructs the jury that the liability of a corporation for oral slander uttered by its agents stands upon a different footing than written or published slander, the law ascribing them to the personal malice of the agent rather than to the act performed in the course of his employment and in the .aid of the interest of his employers, and exonerating the company, unless it authorized, ratified or approved the act of the agent in uttering the particular slander complained of, or the agent was acting within the scope of his employment.
“5. The court instructs the jury that, although- you may find from the evidence in the case that the language set out in the complaint was ^lsed by the agent, or emploj^ee of the company, that such language, in its common acceptation, amounts to charging the plaintiff with a breach of the criminal law, or other dishonest practice, yet, if you further find from the evidence that such .language was spoken by the agent of the company to another in the course of his duty, and that it was necessary or proper in the course of the investigation for such communication to have been made, in the course of duty, and not with a malicious intent to injure the plaintiff, then the court tells you as a matter of law that this would be a privileged communication, for which the agent nor the company would be liable, and your verdict would be for the defendant.”
Appellant contends that the trial court committed an error in admitting evidence to prove that he was discharged for incivility. But the evidence was competent. He -alleged in his complaint that, immediately after the slanderous charge was made by the detectives against him, the defendant discharged him from its employment. In response to which allegation the defendant denied that he was discharged on account of the loss of the fourteen bales of cotton, but said that his discharge was due solely to his insubordination to those in authority over him. He testified that he was discharged immediately after the alleged slanderous charges were made. The inference to be drawn from his testimony was that his discharge was based upon the charges. The testimony as to incivility was admissible to show the cause of his discharge, and that the defendant did not thereby ratify the charges of its agent.
Appellant complains of the refusal of the court to grant his request as to his reputation in the community in which he lived of being an upright, honest man. It was properly refused. His reputation was not attacked and not involved in the issues in the case. Townshend on Slander and Libel, § 387.
Appellant says that “the first instruction given at the defendant’s request was erroneous in this, that the jury were thereby told, in order for plaintiff to recover, ‘it must further appear that the slander was uttered with a malicious intent on the part of the defendant company to injure the plaintiff in his business or social standing.’ ” In this connection the court first instructed the jury at the request of the plaintiff as follows : “While it is true that malicious intent is not to be presumed, but must be proved, this proof need not be in the form of direct testimony, but may be shown by. circumstantial evidence. It is for the jury to say, after considering the language of defendant’s agent complained of, together with all the circumstances attending its utterance, whether such slanderous words were or were not spoken with malice, either express or legal, as hereinbefore defined;” which was as follows: “Malice, as used in this instruction, does not mean that the agent using the alleged slanderous words must have any personal spite, ill will or hatred of the plaintiff, but means if the defamatory words •complained of were wrongfully used, and were used intentionlly, without just cause or excuse, or in wanton and reckless disregard of the rights and feelings of the plaintiff, then, in the legal sense, they were maliciously used.” The words objected to in defendant’s instruction are fully explained in instructions given .at plaintiff’s request, and are in harmony with the same. The words objected to do not say how the malicious intent to injure must appear — that is shown by the instructions given at plaintiff’s request. In that respect the jury were instructed as plaintiff requested, and he has no cause to complain.
The objection to instruction numbered 2, given at the request of the defendant, are the words: “the presumption is that no language was used or intended to be used to injure plaintiff’s reputation in his business or social standing, and this presumption must be overcome by proof.” To the same effect -the court instructed the jury at the request of plaintiff by saying: “while it is true that malicious intent is not to be presumed, but must be proved.” The plaintiff has no right to complain .of the defendant or court repeating, his own request for in•structions.
The appellant objected to the instruction numbered 4, and given at the instance of the defendant, because a corporation could not, according to it, be held liable for a slander uttered by its agent “unless it authorized, approved or ratified the act of the agent in uttering the particular slander complained' of, •or the agent was acting within the scope of his employment.” Is this a correct declaration of law? Slander is unlike other torts. It is the ’individual act of him who utters it, and often .arises entirely out of his momentary' feelings and passions, without forethought on the speaker’s part. It is such an act as can not be anticipated, and for that reason can not be impliedly ■ .authorized in advance. Hence it has been held that the utterance of slanderous words by an agent of a corporation must be ascribed to the personal malice of the agent who uttered them, ■“rather than to the act performed in the course of his employment and in aid of the interest of his employer,” and the cor poration must be exonerated “unless it authorized,' approved or ratified the act of the agent in uttering the particular slander.” Mere proof of agency will not be sufficient to prove such authority or ratification. Singer Sewing Machine Co. v. Taylor, 150 Ala. 574; Redditt v. Singer Mfg. Co., 124 N. C. 100; Sawyer v. Railroad, 142 N. C. 1; Behre v. National Cash Register Co., 100 Ga. 213; Kane v. Boston Mutual Life Ins. Co., 200 Mass. 265; State v. Morris & Essex Railroad Co., 23 N. J. Law 360; Dodge v. Bradstreet Co., 59 How. Pr. 104; 18 Am. & Eng. Enc. Law (2 ed.), 1059, 1063; 10 Cyc. 1216.
Appellant contends that instruction numbered 5, and given at the request of the defendant, should not have been given, because there was no evidence to support it. We think the testimony of Parker was sufficient for that purpose.
Finding no reversible error in the proceedings of the court,, its judgment is affirmed.-. | [
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Hart, J.
This is an appeal by the St. Louis, Iron Mountain & Southern Railway Company from a judgment rendered against it in favor of Mrs. Ervina McGettie Freeman. The actio'n was brought by her to recover the penalty provided by section 6620 of Kirby’s Digest for an overcharge in passenger fare.
The ticket in question was bought and paid for by Cyrus Gordan, her father. It was purchased for the use of the plaintiff, and was used by her on one of the defendant’s passenger trains in going from Hope, Ark., to Mandeville, .Ark.
The sole question raised by the appeal is, was she entitled to maintain the .action? Sec. 6620 of Kirby’s Digest, under which the suit was brought, reads as follows: .
“Any of the persons or corporations mentioned in sections 6611, 6612, 6613 and 6614 that shall charge, demand, take or receive from any person or persons aforesaid any greater compensation for the transportation of passengers than is in this act allowed or prescribed shall forfeit and pay for every such offense any sum not less than fifty dollars, nor more than three hundred dollars and costs of suit, including a reasonable attorney’s fee, to be taxed by the court, where the same is heard on original action, by appeal or otherwise, to be recovered in a suit at law by the party aggrieved in any court of competent jurisdiction. And any officer, agent or employee of any such person or corporation who shall knowingly and wilfully violate the previsions of this act shall be liable to the penalties prescribed in this section, to be recovered in the same manner.”
It is contended by the counsel for the defendant that she is not the “.party aggrieved” within the meaning of the statute, and therefore not entitled to maintain the "action.
In construing this statute in the case of St. Louis, Iron Mountain & Southern Railway Company v. Waldrop, 93 Ark. 42, the court held (quoting syllabus) :
“The rule that a penal statute should be construed strictly does not require that the words of a penal statute should be so narrowed as to exclude cases which those words, in their common and ordinary acceptation, would comprehend.”
We think the persons referred to in tlie first part of the section of the statute quoted are those intending to become passengers, and that the statute was passed for their protection. The ticket in question, although paid for by Gordan, was destined for the use of the plaintiff. It was purchased for her benefit, and was accepted by the railroad company in payment of her fare. We are of the opinion that she was the “party aggrieved,” and was entitled to maintain the action.
The judgment will be affirmed. | [
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McCulloch, C. J.
W. O. Wingfield was convicted of the crime of manslaughter, and appeals. Among other assign ments of error, he shows that when the jury returned a verdict against him he requested the court to poll the jury, but that the court refused to do so. The statute, which is a part of the Code of Criminal Procedure, provides that, “upon a verdict being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answers in the negative the verdict cannot be received” (Kirby’s Digest, § 2419).
There seems to be some doubt whether defendant could, as a matter of right, in the absence of a statute expressly conferring that right, demand a polling of the jury, or - whether it rests in the discretion of the trial court. The authorities are conflicting on that question. But there can be no serious doubt that our statute on the subject was intended to be mandatory, and that it confers an absolute right, on demand, to have a jury polled.
In Alabama there is a statute on the subject reading as follows: “When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party, in which case they must be severally asked if it is their verdict, and, if .any answer in the negative, the jury must be sent out for further deliberation.” The Supreme Court of that State decided that the statute is mandatory. Brown v. State, 63 Ala. 97.
If the statute is mandatory, it follows that the refusal to poll the jury was a prejudicial error, for it deprived the defendant of a substantial right to ascertain to a certainty from the individual expression of each juror whether or not the verdict reported by the foreman was concurred in by all.
But the circuit judge refused to certify this exception in the bill of exceptions, and defendant procured and filed within the time allowed the certificate of two bystanders attesting the truth of the exception as by him prepared. No controverting affidavits were filed by counsel for the State, and we must treat the exception’ as having been properly taken and preserved. Smith v. State, 87 Ark. 459; Boone v. Holder, 87 Ark. 461.
The Attorney General insists that the cases cited above are wrong, and that we should overrule them, and accept the certificate of the trial judge, refusing the exception. We decline to overrule those decisions, for they represent the deliberate judg ment of this court in construction of a statute prescribing a rule of practice on appeals to this court. Moreover, we are more fully convinced on further consideration of this question that those decisions are correct. The Legislature is entirely untrammeled by constitutional limitation in prescribing the mode in which exceptions to ruling of trial courts must be preserved in order to have them reviewed by the appellate court. No judicial act is involved in recording an exception, and the statute authorizing the attestation by bystanders of the truth of an exception is not unconstitutional, as contended by the Attorney General.
“The object of a bill of exceptions,” says the Supreme Court of Mississippi, in opinion by Judge Simrall, “is to perpetuate, for the use of the appellate court, a full and complete history of what transpired on the trial, or so much as may be needed for the purpose of reviewing the proceedings. It is the creation originally of the statute of Westminster the 2d. The sole purpose is to certify to the court of review matters during the progress of the cause which are not noted in the record proper, and which in this mode becomes part of it. It is purely narrative and historical, and not judicial, except in the sense that it is the duty of the judge to sign and seal it. No judgment of the court is pronounced, it is a ministerial act, which by legislation could be committed to the clerk or other fit person.” Vicksburg & M. R. R. Co. v. Ragsdale, 51 Miss. 447.
The statute makes it the duty of the trial judge, primarily, to sign the bill of exceptions prepared by the party if he conceives it to be true, or to correct it if he believes it to be incorrect. Then, “if the party excepting is not satisfied with the correction, upon his procuring the signatures of two bystanders attesting the truth of his exceptions as by him prepared, the same shall be filed as a part of the record” (Sec. 6226). When the trial judge allows the exception as presented to him by the party, his certificate of the fact is conclusive of the truth of the exception, and cannot be inquired into. But, if he refuses to allow it, then the statute points out another method of bringing the exception into the record — that is, by the certificate of two bystanders. The certificate of the bystanders is not conclusive when controverted; but it establishes the truth of the exception, and must be accepted by this court, unless controverted in the manner pointed out in the statute, which does not contemplate nor require the maintenance, by other affidavits, of the certifi-. cate of the bystanders unless controverted. The statute ought to provide for notice -to the adverse party of the filing of the certificate of bystanders, so as to give opportunity for controverting its truth. But this is a defect which must be corrected by the Legislature, if done at all. This court can only enforce the .statute, not change it.
Other assignments of error need not be discussed. For the error in refusing to poll the jury, the judgment is reversed, and the cause is remanded for new trial. | [
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Wood, J.,
(after stating the facts), x. The finding of the chancellor that appellant had acquired the interest of Addie Porter, one of the Terrell heirs, 'and also- the interest of George Terrell, another heir, is not clearly against the weight of the evidence. This was purely a question of fact, and it could serve-no useful purpose to set out and discuss the evidence bearing upon the court’s finding in these particulars.
2. The rents and profits of the place in controversy during the years 1901 'and 1902 went into the hands of appellant as administrator. He was holding them as administrator, whether he had the legal right to do so or not, and he was accounting for them as administrator. The administration was not closed. The court did not err in refusing to take jurisdiction of these rents and profits. The probate court, having already acquired jurisdiction of these rents, is vested with ample power to grant appellees all the relief, if any, to which they may be entitled with reference to these.
3. The evidence does not warrant any finding of actual' fraud on the part of the administrator (appellant) in connection-, with the suit to foreclose, or in connection with his purchase of the lands. But the appellant as administrator, having these lands in possession as trustee for all parties interested in the estate, had a duty to perform with reference to them which was inconsistent with his character as purchaser for his own benefit. He was a party to the suit to foreclose, and it was his duty to make any defense to the suit that could have been made, and it was for him to determine whether there was any defense that could or should be set up to the foreclosure proceedings. Having a duty to discharge with reference to the estate and all persons interested therein, public policy will not permit him to acquire an interest, or to assume an attitude in his own behalf, that might be antagonistic to that of those whom he represents. The law will not permit him to be tempted by self-interest to neglect any duty he owes to those for whom he is trustee. Hence it is well established in this State, and generally, we believe, “that where property of a decedent is sold under order of the court, the executor or administrator can not lawfully become the purchaser.” 18 Cyc. 769, 4 and note 92; Imboden v. Hunter, 23 Ark. 622; Mock v. Pleasants, 34 Ark. 63; Culberhouse v. Shirey, 42 Ark. 25; McLeod, v. Griffis, 45 Ark. 505; Hindman v. O’Connor, 54 Ark. 627; Gibson v. Herriott, 55 Ark. 85; Bland v. Fleeman, 58 Ark. 84; Montgomery v. Black, 75 Ark. 184. See also Crawford County Bank v. Bolton, 87 Ark. 142.
It is wholly immaterial whether the sale at which the trustee purchases is brought about at his instance or whether it is made at the instance of another, provided he has a duty to perform with reference to the property to be sold that may be in conflict with his interest as purchaser. So it was here. It was appellant’s duty to the estate to have the land bring the highest price possible. His duty as a trustee would be to do all 'in his power to encourage bidders, but his interest as purchaser would be to “beat down” the price and discourage competition in bidding. See Montgomery v. Black, supra.
“An administrator or executor is not allowed to pu'rchase or speculate' upon the estate confided to him for the purposes of administration.” Handlin v. Davis, 81 Ky. 34; Reeder v. Meredith, 78 Ark. 111, 115.
Appellant purchased the land on a credit of three months, paying therefor the sum of $1,400. He received the commissioner’s deed November 18, 1902, and four days after sold the land to Barton for the sum of $6,600. Appellant testified that the land was worth at a cash valuation between $2,000 and $2,500. The land was appraised at $2,150. The land was sold to Barton on a credit of five years, notes being given bearing six per cent, interest, and the notes were secured by mortgage on the land. There were about two hundred acres in cultivation on the place, and there was evidence tending to prove that it had a rental value of five or six dollars per acre. The appellant sold the land to Barton in November, 1902. It was in December, 1909, when the decree was rendered. There is nothing in the record to show that appellant did not receive the full price for which he sold the lands and interest on the deferred payments. The decree of the chancellor was therefore correct.
Affirm.
Hart, J., not participating. | [
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Hart, J.
This is a proceeding to contest the will of Warren Thompson, deceased, late of Lee County, Arkansas. The appellees were the proponents of the will, and the appellants appeared, and contested its probate. From a judgment of Lee Probate Court admitting the will to probate the contestants appealed to the circuit court, and from a judgment rendered against them there they have appealed to this court.
The ground of the contest was the mental'in capacity of the testator to make a will at the time it was executed. That issue was submitted to jury upon the evidence adduced at the trial under proper instructions of the court, and, the verdict of the jury being -against them, it is not now claimed by the contestants that the proceedings in that respect present any ground for reversal. Hence there is no need to abstract that part of the case.
They seek to reverse the judgment on the sole ground that the court erred in permitting evidence to be introduced of the handwriting of R. R. Clark, one of the attesting witnesses of the will.
R. A. Campbell and R. R. Clark were the subscribing witnesses to the will. The first-named witness was present, and testified when the will was offered for probate. Clark was not present, and proof was made that he had left Lee County, where he resided when the will was executed, because he feared arrest on account of some trouble he had got into. The proof showed that he first went to Woodruff County, Arkansas, and later to some point in Mississippi. The proponents of the will introduced testimony tending to show that they failed to locate him in Mississippi, although he was reported to be at Tupelo in that State. The court, upon that showing, admitted proof of the handwriting of the testator and of the absent witness.
There was no error in this., Under the head of proving wills and contesting their .probate, we have a statute providing that where an attesting witness resides out of the State, or through infirmity is unable to attend the court before which the will is offered for probate, such court may cause his deposition to be taken in the manner directed therein. Kirby’s Digest, § 8033. The two succeeding sections of the statutes are as follows:
“Sec. 8034. When one of the witnesses to such will shall be examined, and the other witnesses are dead, insane, or their residence unknown, then such proof shall be taken of the handwriting of the testator, and of the witnesses dead, insane or absent, and of such other circumstances as would be sufficient to prove such will on a trial at common law.
“Sec. 8035. If it shall appear to the satisfaction of the court or clerk that all the subscribing witnesses to the will are dead, insane or absent, the court or clerk shall take and receive such proof of the handwriting of the testator and subscribing 'witnesses to the will and of such other facts and circumstances as would be sufficient to prove such will in a trial at law.”
We think these sections of our statute, when read and construed together, invest the court with a large discretion in the matter. This is necessary in order to facilitate the proving of wills to the end that the executor may take charge of the estate and preserve it for those to whom it is given under the terms of the will. In this case the absent witness had left the county of his residence on account of having become involved in some^ trouble. An effort was made to locate him in this State at a place to which proponents had been informed he had removed. Upon their arrival there they were informed that he had gone to Mississippi, and an effort was made to locate him at his supposed residence in that State. The effort was unsuccessful.
There was some testimony to the effect that Clark was heard of at Senatobia, Mississippi, a few weeks before the will was offered for probate, but this testimony was hearsay, and, when taken in connection with the other testimony, tends to show that Clark was a wanderer, and that he had no fixed place of abode.
We are of the opinion that no abuse of discretion is manifest because the court treated him as an attesting witness whose residence was unknown.
The judgment is affirmed. | [
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Frauenthal, J.
This was an action instituted by G. N. Graham, the plaintiff below, to recover damages for a personal injury which he alleged he sustained while in the employment of the defendants. The defendants, F. E. Thrall and Stephen Shea, were the members of a partnership, which was doing business under the firm name of Thrall & Shea. They were engaged in the construction and equipment of a large sawmill plant, and had employed a number of laborers in doing this work, amongst whom was the plaintiff. One of these laborers permitted a large chain to fall from a considerable height upon plaintiff’s hand, injuring his fingers to such an extent that one of them had to be amputated.
Upon the trial of the case, the lower court, after the introduction of all the testimony, directed the jury, to return a verdict in favor of the defendants, which was done; and from this action of the court the plaintiff has appealed. In testing the trial court’s action in thus directing a verdict for the defendants we will upon this appeal consider the testimony in its most favorable aspect to the plaintiff. For, in determining, upon appeal to this court, whether or not the trial court was correct in directing a verdict in favor of either party, the rule is to give the testimony in behalf of the party against whom the verdict is directed its strongest probative force in his favor. Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 447; Rodgers v. C. O. & G. Ry. Co., 76 Ark. 522; Oliver v. Fort Smith Light & Traction Co., 89 Ark. 222; Jones v. Lewis, 89 Ark. 372.
Considering the testimony adduced on the trial in this manner, the case, in substance, is this: The plaintiff had been in the employment of the defendants in the construction of the mill plant some time prior to the day of the injury. He was employed as a laborer to carry piping and timbers and to assist in raising the same to the place where they were desired in the building. On the day of the injury he was working with a crew of men who were engaged in raising and adjusting some piping which was necessary for the equipment of the boilers to he used in the operation of the plant. A pile of this piping was placed a short distance from the building, and the men of •this crew carried the piping to the boiler, whence it was raised to the place desired. A piping was carried to the boilers by a number of the laborers by means of hand sticks or spikes placed thereunder. It was then raised by tackle blocks by means .of a chain which was let down and attached to the piping. It appears that above the boilers were iron girders about four inches in width extending from one side of the building to the other, and sometimes the chain was 'carried upon these girders from one point to another as it was needed in raising the piping. On this occasion the plaintiff and other members of his crew had carried a piping to the boiler, and the plaintiff had left his hand stick lying thereunder. These men then went to a place on top of the boilers, but were soon directed to go down and get another piping. At this time one of the members of the crew named Sullivan was moving the chain along the girder above the boilers from one end to the other in order to use the chain in raising the piping which had been placed at the foot of the boilers. In going after the second piping the other men went down from the top of the boilers by means of a stairway, but the plaintiff went down between the boilers by means of hand holds and proceeded, as he claimed, to the first piping, which had been laid at the foot of the boilers in order to get his hand stick. This first piping was immediately under the girder upon which Sullivan was moving the chain. The plaintiff testified that Sullivan moved the chain along the girder with his feet while he held to the rafters above him with his hands; and that he saw him thus begin to move the chain as he started down after the hand stick and saw him afterwards move it along the girder. The plaintiff went immediately under this girder to get his hand stick, and while he was in the act of getting it the chain fell from the girder on plaintiff’s hand, injuring it as above stated.
In their answer the defendants pleaded, and now contend, that under the uncontroverted testimony in the case the injury which the plaintiff received was due to the risk which was ordinarily incident to the employment in which he was engaged, and which he therefore assumed; and also that plaintiff was himself guilty of negligence which contributed to the cause of the injury. It is well settled that a servant does, in accepting and continuing in the employment, assume all the ordinary and usual hazards incident thereto and- also all the risks which he knows to exist. By his contract of service he impliedly agrees to bear the risk of all dangers that are ordinarily incident to the employment, and consequently he can not recover for injuries which result to him therefrom. He thus assumes all •obvious risks of the work in which he is employed, including the risk of injury from the manner in which he knowingly sees and observes that the business is being operated and the work done. Southwestern Tel. Co. v. Woughter, 56 Ark. 206; St. Louis, I. M. & S. Ry. Co. v. Tuohey, 67 Ark. 209; Archer-Foster Construction Co. v. Vaughan, 79 Ark. 20; Choctaw, O. & G. Ry. Co. v. Thompson, 82 Ark. 11; Arkansas Mid. Ry. Co. v. Worden, 90 Ark. 407; 1 Gabatt on Master and Servant, § 259.
It has been usually held that one of the ordinary risks incident to the employment, and one assumed by the servant, is the negligence of a fellow servant. But, whether based upon that ground or from other reasons, the rule of law is well settled that a master is not bound to indemnify one servant for injuries caused by the negligence of a.fellow servant.. This rule has been modified in this State by the act of the Legislature of March 8, 1907 (Acts 1907, p. 162), when applied to a corporation employing servants; but this act does not affect this rule when the employers, as in the case at bar, are the individual members of a partnership. In the case of Hough v. Texas & Pac. Rd. Co., 100 U. S. 213, the Supreme Court of the United States approves the following rule relative to the exemption from liability of a master for injuries caused by the negligence of a fellow servant, announced by Chief Justice Shaw in Farwell v. Boston & W. Rd. Corp., 4 Met. 49: “The general rule, resulting from considerations as well of justice as of policy, is that he who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such services; and in legal contemplation the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment.” Railway Co. v. Triplett, 54 Ark. 289; St. Louis S. W. Ry. Co. v. Henson, 61 Ark. 302; Kennefick-Hammond Co. v. Rohr, 77 Ark. 290; McGrory v. Ultima Thule, Ark. & Miss. Ry. Co., 90 Ark. 210; 2 Labatt on Master and Servant, § 470.
The evidence in the case most favorable to the plaintiff 'shows that the injury which he sustained was caused by the negligence of Sullivan, who was a fellow servant. These two servants were employed by the same master to accomplish one object. They were both engaged in the discharge of the duty of placing the piping at the points upon the boilers where desired, arid were under the control of the same directing official. While thus engaged in the performance of duties which were directed to the attainment of the same end, Sullivan negligently let the chain fall upon the plaintiff’s hand. The cause of the injury was therefore due to the negligence of a fellow servant.
But it is urged by counsel for plaintiff that, while the servant assumes the risks ordinarily incident to the employment, he does not assume the risk of danger caused by the master’s negligence. It is contended that it is the duty of the master to furnish to the servant a safe place in 'which to work and safe appliances with which to work, and in failing to observe this duty the master is guilty of negligence. It is urged that the iron girder upon which Sullivan moved the chain was not a safe place upon which to do the work; that a platform or scaffold should have been furnished; and that the defendants, in failing to furnish this servant such a place on which to carry the chain, was guilty of negligence that caused the injury. But, even if the failure to furnish such a platform should be considered an act of negligence on the part of the defendants, still the uncontroverted evidence shows that the plaintiff knew the method in which the work was being done; that he was aware of the manner in which the chain was being moved along the girder and appreciated all risks that arose therefrom; and after such knowledge he still continued in the employment without objection. In Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, this court said: ’ “If, having sufficient intelligence and knowledge to enable him to see and appreciate the dangers to which he will be exposed, he knowingly assents to occupy a place set apart for him by the master, and he does so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. It is then no longer a,question of whether such place could not with reasonable care and diligence be made safe. Having voluntarily accepted the place occupied by him, he can not hold the master liable for injuries received by him because the place was not safe.” The servant assumes the risks of his employment which are open to ordinary observation; and where he knows the methods that are adopted, the place furnished in which to do the work and the manner in which it is done, and continues in the employment without complaint, he assumes the risks which may result from such known methods and defects, if any. Railway Company v. Kelton, 55 Ark. 483; Patterson Coal Co. v. Poe, 81 Ark. 343; St. Louis, I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424; St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 387.
Furthermore, in the progress of the work in which the plaintiff and his co-laborers were engaged, the risks were constantly changing in regard to the increase or diminution of safety; the place of work was necessarily changed frequently in the progress of the work; the safety of such place of work was necessarily at times increased or diminished. The risks which thus arise as the work progresses are regarded as being the ordinary dangers of the employment; and the failure under such circumstances on the part of the master to furnish a safe place is one of the risks assumed iby the servant in his acceptance of and continuing in the employment. If it could be said,under the testimony of the plaintiff, that the injury was due to any negligence on the part of the defendants or their representatives in charge of the work or in control of this crew of men, still the uncontroverted evidence shows that the plaintiff was fully aware of such negligence and appreciated the dangers arising therefrom.
Under the testimony adduced in this case most favorable to the cause of the plaintiff, we are of opinion that the injury which he received occurred by reason of a risk which under the law he assumed.
The lower court did not err in directing a verdict in favor of defendants.
The judgment is affirmed. | [
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McCulloch, C. J.
This is an appeal from a decree of the chancery court of Hot Spring County dismissing appellant’s complaint for want of equity. The action was instituted against A. I. Roland, as county judge of that county, and against certain bridge commissioners of the county and the county clerk; also against the Illinois Steel Bridge Company, a corporation. The complaint alleged in substance that the county court had ordered the construction of two bridges, and that the contract for the construction of same was let by the county commissioners to said bridge company; that, before the letting of the contract, and as an inducement to bidders, the county judge had procured from appellant a written proposal to take the county scrip issued in payment for the work and to pay the contractors therefor at the rate of 80 cents on the dollar, and that the bridge company, at the time its bid for the work was accepted, had accepted the terms proposed by appellant and agreed to let him have the scrip at that price; that subsequently the county judge procured from J. E. Stanley a bid of 81 cents on the dollar, and was about to issue the scrip to the latter (the bridges having been completed) and pay off the bridge company at the agreed price of 80 cents on the dollar, turning the balance of one per cent, back into the county treasury. It is also alleged that, while this is sought to be done by the county judge ostensibly for the purpose of giving the county the benefit of the additional one per cent., it is in fact for the purpose of gaining some personal advantage for the county judge in controlling the scrip. The complaint does not, however, state how any personal advantage is to be gained, nor does' it state any facts to base the charge upon.
The complaint alleges that, unless restrained, the county ■court will allow the claims for constructing the bridges, and that the county clerk will issue the scrip to Stanley; and the prayer is that such proceedings be restrained and, upon payment of 80 cents on the dollar to the bridge company, which appellant offers to pay, .that the latter be required to turn over the scrip to him.
The action is in substance one to require the bridge company to specifically perform its alleged contract with appellant for the sale of the scrip when issued, and, incidentally, to restrain the county officials from issuing the Scrip to any other person. The last mentioned incidental relief does not, however, strip the action of its character as one to compel specific performance of a contract; for, if the bridge company has bound itself by a contract with the county to allow the issuance of the scrip to another person and accept 80 cents on the dollar in lieu thereof, the remedy of appellant would still be against the bridge company, and not against the county. The contract of appellant, as stated in the complaint, is with the bridge cpmpany, and he must look alone to that company for performance of the contract or for compensation in damages for its nonperformance. The question then presented is whether or not the allegations of the complaint are sufficient to justify a court of equity to decree specific performance of the alleged contract for the sale and purchase' of the scrip.
. The general rule, subject to some exceptions, undoubtedly is that courts of -equity will not enforce specific performance of executory contracts for the sale of chattels, and this court has announced its adherence to that general rule. Collins v. Karatopsky, 36 Ark. 316. The rule established by the authorities is well stated in a note in volume 5 of American & English Cases Annotated, p. 269: “Courts of equity decree the specific performance of contracts, not upon any distinction between fealty and personalty, -but because damages at law may not in the particular case afford a plain, adequate and complete remedy. Therefore a court of equity will not generally decree performance of a contract in respect of personalty, not because of its personal nature, but because damages at law are as complete a remedy as the delivery of the 'property itself, inasmuch as with the damages like property may be purchased.”
Professor Pomeroy in his work on Specific Performance (§ 11) stated the rule as follows: “The doctrine is equally well settled that in general a court of equitáble jurisdiction will not decree the specific performance of contracts relating to chattels, because there is not any specific quality in the individual articles which gives them a special value to the contracting party, and their money value recovered as damages will enable him to purchase others in the market of like kind and quality.”
In the other sections of the volume he states the various exceptions to this rule, as where chattels have some peculiar value above the market value, such as heirlooms, paintings or other works of art, etc. For cases applying the general rule stated above to contracts for the sale of stocks and bonds, see the same note in 5 Am. & Eng. Ann. Cas., where all the authorities on the subject are collected. Memphis v. Brown, 20 Wall. 289, is a case of that kind, and the court decided that specific performance would not be decreed of a contract for the return and cancellation of city bonds.
An exception to this rule is found in some cases where stocks and bonds which are the subject of the contract have no market value, and also where shares of stock in private corporations have peculiar value in excess of the market value by reason of the control over the corporation which the ownership of the stock would give. The latter ground could not of course apply to county warrants, which are mere evidences of the county’s indebtedness. The fact that the value of the scrip is fluctuating and speculative affords no grounds for equitable interference.
The complaint contains an ambiguous allegation to the effect that the scrip has no market value; but, taking the whole allegation together, it means that the scrip has no stable market value, and that its value fluctuates from time to time according to the assessable value of the taxable property in the county.
The complaint does not allege insolvency on the part of the bridge company, therefore it is unnecessary to discuss the effect of such an allegation in an action of this kind.
It is further insisted that, according to the allegations of the complaint, a trust relation subsisted sufficient to give jurisdiction to a court of equity by reason of the fact that Roland, the county judge, acted as the agent of appellant in negotiating for the purchase of the scrip. There is, however, no relation of trust between appellant and the bridge company, and the question of Roland’s alleged agency does not enter into the controversy.
We discover nothing in the allegations of the complaint which can be held sufficient as a statement of grounds for equitable interference: Therefore the demurrer was properly sustained. The case 'was submitted on motion for temporary restraining order, but the questions are fully argued on both sides, and the controversy may as well be finally decided now.
The decree is affirmed. | [
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McCulloch, C. J.
The sheriff of Benton County, pursuant to a warrant authorizing him so to do, seized a large quantity of whisky and brandy in a prohibition district in that county, which was alleged to be stored there for sale contrary to law. Appellants, J. W. Leonard and J. D. Yeargin, claiming to be the owners of the liquor, intervened and asserted their right to it, and on a trial the court found that the liquors were kept in a prohibition district of the county to be sold contrary to-law, and ordered the same to be destroyed by,the sheriff.
The liquors in controversy (22 barrels of whisky, two half-barrels of brandy and a ten-gallon keg of brandy) were found by the sheriff stored in a cabin on the premises of one Mc-Kuerly. The cabin is near the north and west lines of Benton County a few hundred yards from the Missouri line and about two miles from South West City, which is in McDonald County, Missouri. The cabin was locked, and the keys were in the possession of appellants, who resided and were engaged in business at South West City. They had formerly been in the liquor business at that place, and this is a lot of liquors which they had on hand when certain prohibition laws went into force in Missouri. It seems that they had purchased the liquor jointly, but divided it, and had it stored in a building in South West City when a raid and seizure by Missouri officers was threatened ; and Leonard, in the absence of Yeargin, hurried it out of Missouri and brought it to the place referred to in Benton County, Arkansas, and there stored it in the cabin to prevent its seizure. There is no evidence at all that any of the liquor was ever sold in Arkansas, or that it was here for sale in this State; but the evidence does justify the finding that it was stored in Benton County to prevent its seizure by Missouri officers, and was kept there to be sold contrary to law in the State of Missouri.
The question thus presented is whether or not intoxicating liquors kept in this State for sale contrary to law in another State are subject to confiscation under our statutes. This depends upon a construction of our statutes on the subject; for, unless they be construed to authorize confiscation under those circumstances, we need not pass on the question whether it is within the power of the Legislature to authorize the confiscation of liquors not kept for sale in this State contrary to law.
The General Assembly of 1883 passed what is known as the “blind tiger statute,” which makes unlawful the clandestine sale or giving away of alcohol, ardent, vinous or malt liquors, etc., by a device known as the blind tiger, or by any other name or device. That statute provides that proof of certain things shall constitute prima facie evidence of guilt on the part of any owner of a house in which such liquor is found; and it provides that warrants may be issued authorizing a search for and seizure of such liquors, but it does not provide for the confiscation of. the liquors thus seized. ' (Act of March 30, 1883; Kirby’s Digest, § § 5140-5145).
The statute under which the present proceedings were instituted was passed by the General Assembly of 1899. The title is “An Act to suppress the illegal sale of liquors and to destroy same when found in prohibited districts;” and the first section reads as follows:
“It is hereby made and declared to be the duty of the chancellors, circuit judges, justices of the peace, mayors and police judges, on information given or on their own knowledge, or when they have reasonable grounds to believe that alcohol, spirituous, ardent, vinous, malt or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors of any kind, are kept in any prohibited district to be sold contrary to law, or have been shipped into any prohibited district to be sold contrary to law, that they issue a warrant, directed to some peace officer, directing in' such warrant a seizure of such intoxicating liquors, and directing such officer on finding any such liquors in any prohibited district to publicly destroy the same, together with the vessels, bottles, barrels, jugs or kegs containing such liquors. Provided, that this act shall not apply to the giving away or selling of native wines where the sale is authorized by law. Provided further, any sheriff or other officer having knowledge of any such blind tigers and failing to perform his duty shall forfeit his commission. Provided, further, that the provisions of this act shall not repeal or affect section 5145. Provided, that any persons •on whose premises or in whose custody any such liquor may be found under warrant of this act shall be entitled to his day in court before said property shall be destroyed.” (Act of February 13, 1899; Kirby’s Digest, § § 5I37"SI39)-
This statute does not create a criminal offense nor provide a penalty for the commission of any act further than the seizure and confiscation of liquors “kept in any ■ prohibited district to be sold contrary to law.” The manifest purpose of the statute was to supply the omission of the former statute by authorizing the destruction of liquor kept for unlawful sale. We are of the opinion that the words of the statute “to be sold contrary to law” refer to liquors kept for sale in this' State contrary to law, and not to sales to be made outside of the State. This is plain from the title and the body of the statute, and particularly from that part which declares that “any sheriff or other officer having knowledge of any such blind tigers and failing to perform his duty shall forfeit his commission,” .which obviously refers to the keeping of the liquor for sale in this State contrary to law. Now, the term “blind tiger” is used in our statute with reference to a place for the clandestine sale or giving away of liquors by some device or other, and in employing the term “sold contrary to law” the Legislature is presumed to have aimed at liquors kept for unlawful sale here, not under any particular statute but unlawful under any statute of this State directed against sales without license. An intent to give extraterritorial effect to a statute will not be ascribed to the lawmakers unless the language employed affords no escape from such construction. State v. Lancashire Fire Ins. Co., 66 Ark. 466.
The statute, is highly penal, and should be strictly construed. We have said, when construing the statute, that the liquor is the offender, and that it is immaterial who owns it. (Osborne v. State, 77 Ark. 439). But the intent with which it is, kept here is controlling; for, in order to come within the terms of the statute, it must be kept for sale contrary to law, which means sale in this State contrary to law. Such is, we think, the only reasonable interpretation of the statute; and it follows that the decree is unsupported by evidence and is erroneous.
A decision of the Supreme Court of Rhode Island (State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 767), is cited by the Attorney General in support of his contention that the statute means to confiscate liquor kept in this State to be sold anywhere contrary to law; but there is a difference between the precise language of our statute and that of the Rhode Island statute.
It is earnestly insisted by the Attorney General that the construction we now place on the statute would bring the laws of this State into disrepute by permitting whisky to be kept on its borders for unlawful sale in other States. This, however; is a matter for the Legislature, as it is- our province only to construe the statutes, not to enact them.
Reversed and remanded. | [
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McCulloch, C. J.
A tract of land in Independence County,' containing 229.32 acres, was assigned to the defendant, Mrs. Angie Wilson, as dower out of the estate of her deceased husband, about 150 acres of this tract being cleared and in cultivation, and the remainder being woodland. Plaintiff, W. A. Rutherford, is the owner of the reversion.
In the year 1907 defendant sold and allowed to be removed the timber on 20 or 25 acres of the. woodland, for which she received the sum of $104.77, its market value; and in February, 1909, plaintiff instituted this action against her to recover said sum so received, alleging that she committed waste by removing the standing timber,- and that the freehold was damaged to that extent. A trial before a jury resulted in a verdict for defendant, and plaintiff appealed.
The evidence shows that the land from which the timber was removed is tillable, but that it had not been put in cultivation at the time of the trial, except a small part — something less'than an acre. It will be ready for the plow as soon as the brush and undergrowth is burned. Defendant-testified that she sold and allowed the -timber to be cut so that she could put the land in cultivation as soon as practicable, and that she is proceeding to put it in cultivation.
This'court, in the -case of McLeod v. Dial, 63 Ark. 10, laid down the following rule as to the rights of a life tenant: “He had no right to cut trees growing on this portion of the land, or allow them to be cut, except so.far as was necessary to -the proper and reasonable enjoyment of his life estate in conformity with good husbandry. For -the purpose of using it as farming land, he had the right to clear a part of it, provided such part and -that already prepared for cultivation, as compared with the remainder of the tract, did not exceed the proportion of cleared to wooded land usually maintained in good husbandry; and provided, further, that he did not materially lessen the value of the inheritance. He also had the right to cut and use so much of the timber standing on the one-half which belonged to his wife as was necessary for fuel, and for making and repairing fences and buildings on the same. But the timber could only be cut or used for the proper enjoyment of the estate for life, and not merely for sale.” Citing Davis v. Clark, 40 Mo. App. 515; Owen v. Hyde, 6 Yerger 334; Jackson v. Brownson, 1 John. 227; Clemence v. Steere, 1 R. I. 272; Ballentine v. Poyner, 2 Hayw. 110; 1 Washburn, Real Property, pp. 146, 148. The same rule has been stated by this court in subsequent cases. Nashville Lumber Co. v. Barefield, 93 Ark. 353; Cherokee Const. Co. v. Harris, 92 Ark. 260.
Now, measured by the law thus announced, it was a question for the jury to determine whether or not the removal of the timber amounted to waste, and constituted an injury to the inheritance. What is “good husbandry” is not always easily determined, as that depends on the peculiar facts and circumstances of each case. The whole tract contained 229.32 acres, with about X50 acres already in cultivation. With 20 or 25 acres more in cultivation, there would be left 55 or 60 acres of woodland. This may be sufficient to afford firewood and material for repairs, such as fenceposts, rails, boards or even lumber with which to build houses. That, of course, depends on the amount and kind of timber. We can not say that the jury were unwarranted in finding that it would be good husbandry to put the additional quantity of land in cultivation.
Another element of the inquiry is the relative value of the land and the timber. There is nothing to show that this land is chiefly valuable for timber. On the other hand, there is testimony to the effect that the land is not injured by removing the timber and putting it in cultivation, and that it will be a benefit to the freehold, in point of value, to remove the timber and put the land in cultivation. All of the land is tillable, so the witnesses say, and the value of the timber on the 20 or 25 acres was only $104.77.
The jury were also warranted in finding that the defendant sold the timber, not for profit, but for the purpose of imme diately putting the land in cultivation. She did not do that at once, but it is not essential that it be done within any given time. There may be more or less delay in getting land ready for tifie plow, even after the timber was removed. It may not be poor husbandry to wait for the roots to decay and for the land to dry out to some extent after the timber is removed, before commencing to cultivate. Defendant testified that a considerable part of the land would be ready for the plow as soon as the brush was burned off; and at the time of the trial her tenant was going ahead with the clearing. Under all the facts and circumstances of the -case we think it was peculiarly a question for the jury to decide whether or not waste had been committed. There being evidence to sustain the verdict, we are not concerned with its weight, for that was within the province of the jury.
The instructions of the court were, we think, within the principles of law herein announced, and we find no error in the proceedings. It devolved on the plaintiff to show that waste had been committed to his injury, and the amount of damage, if any, to the freehold. This includes the burden of proving that the alleged act of the life tenant was not rightfully done, for the presumption is in favor of the latter until the contrary appears from the evidence. 30 Am. & Eng. Enc. Law, 304; Lynn’s Appeal, 31 Pa. St. 44.
Judgment affirmed. | [
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Battle, J.
G. O. Duffey and others sought to quash an order of the Independence County Court, made on the 18th day of January, 1909, levying a tax or license fee on the public ferries of Independence County. The circuit court quashed the order, and the county appealed.
The grounds upon which the appellee asked the court to quash the order are as follows: First: “That said order and judgment * * * was rendered without notice to petitioners, and without giving them an opportunity to be present, or to be heard -in said matter;” and, second, “that said county court had no jurisdiction to change, alter or levy the tax to be paid by petitioners for the privilege of operating such ferries, said ferries having been established and the annual tax therefor fixed by proper orders of court many years prior to the date of January 18, 1909; and in making said order of January • 18, 1909, as aforesaid, said county court of Independence County assumed jurisdiction of the subject-matter without authority of law.”
The statutes of this State do not sustain the contention of appellees. Section 3562 of Kirby’s Digest provides: “Before any ferry shall be established, the court shall determine what tax shall be paid by such applicant for the privilege of such ferry, which shall not be less than $1 nor more than $100.” And section 3566 of the same digest provides: “Upon the payment of the tax levied by the county court -for the privilege of such ferry, and executing the bond required by law, such court shall grant a license to such applicant for the term of one year from the date of such license.”
Section 3570 provides: “It shall be the duty of the county, courts to levy a tax on all ferry privileges in their respective counties, whether application be made by any person for the same or not.”
Section 3571 provides: “It shall be the duty of the clerk of the county court, immediately after the assessment of any tax for ferry privileges by the court, to issue a license for the ferryman to whom such privileges were granted, and to deliver the same to the sheriff, and charge him with the amount thereof, in the same manner that he is required to be charged with other county -revenue.”
In Murray v. Menefee, 20 Ark. 561, the court said: “By sections 7 (3561 of Kirby’s Digest) and 11 (3566 of Kirby’s Digest) it is provided that any person wishing to establish a ferry shall apply to the county court, and, on showing that he is in possession of the land where the ferry is sought to be established and that its establishment will promote the public convenience, the court shall grant him a license for the term of one year. When the license has been so granted, and the ferry once established, it is made the duty of the county court to levy a tax on the privilege annually thereafter, whether application for a renewal of the license be made or not; and the duty of the clerk to issue, annually, a license, and deliver it to the sheriff for the person to whom the privilege was granted, who, on presentation of the license, is bound 'to pay for it.” Kirby’s Digest, § § 3570, 3571, 3572, 3573, 3574; Lindsay v. Lindley, 20 Ark. 573, 581.
Whenever a license tó operate a ferry is granted, it is the duty of the county court to levy a tax on such privilege annually thereafter, and the person to whom the privilege is granted must take notice of that fact and act accordingly. No additional notice is necessary or required in order to authorize the county court to make the levy.
Judgment of circuit court reversed;.and judgment of county court affirmed. | [
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Kirby, J.
Appellant company sued W. S. Wood in the justice court to recover a balance of $39.86, claimed to be due on some merchandise shipped by it from Memphis to him at Strong, Arkansas, consisting of fencing, wire, nails and staples. On appeal to the circuit court, judgment was rendered in favor of Wood, from which judgment appellant brings this appeal. The amount sued for was the exact amount of the freight charges from Memphis,- Tenn., the point of shipment, to the point of destination, Strong, Arkansas. Appellant claims the fencing was sold to him at an agreed price, f. o.. b. Memphis, Tenn., and the wire nails and staples at a price f. o. b. Strong; appellee insisting that the entire bill of goods was to be sold f. o. b. Strong, for the agreed price. The written order, signed by appellee, expressing the terms of the contract, was read in evidence and is as -follows:
The salesman testified that appellee executed the contract and that there was no agreement that the entire car was to he delivered at Strong and that Mr. Wood did not tell him he wouldn’t buy it unless it was sold f. o. b’ Strong. Appellee denied owing the account, stated that he did not agree to pay the freight on any part of the merchandise purchased, and that it was his understanding that it was all to he delivered f. o. b. Strong; just like it reads above his signature, “All above goods, f. o. b. Strong. ’ ’ That when he signed the order he glanced up and noticed above the place for the signature, “All above goods f. o. h. Strong,” and that if he had not understood that the goods were to he delivered he would not have signed the order. He admitted that he signed the order; that he did not notice the line, “Fencing 73 per cent off, f. o. b. Memphis, Tenn.” That he did not always read every line of an order, and having seen the “f. o. b. Strong,” supposed that it stated the terms and that he kept a duplicate of the order, which was introduced in evidence. That the order was made out in his store and handed to him right away, and that he filed it away and did not think any more about it until the question came up about the freight when he looked it up and noticed that it did have some stuff on the left-hand column, marked f. o. b. Memphis; that that was the first time he ever knew the order had been taken that way. One of the clerks in his store testified that he heard part of the conversation when the trade was made and heard Mr. Wood tell the salesman at the time the order was executed that he wouldn’t buy the wire unless it was delivered at Strong. The salesman stated that the words, “All above goods f. o. b. Strong,” mean only the items on the right-hand side of the double column of the order. That the left side specified the terms of payment.
The court refused to instruct the jury to find for the plaintiff and instructed them1 that if they should find from a preponderance of the testimony that the contract provided that a certain part of the hill of goods was to he delivered f. o. b. Strong, and that another part was sold f. o. b. Memphis, that they would find for the plaintiff, and that if they should find under the terms of the contract all the property was to be delivered f. o. b. cars at Strong, they would find for the defendant.
The written order executed by appellant expressed the terms of the contract and its construction was a question for the court, there being no ambiguity arising from it and no fraud claimed.to have been practiced in its procurement. 9 Cyc. 591; Estes v. Booth, 20 Ark. 583; Arkansas Fire Insurance Co. v. Wilson, 67 Ark. 553; Dugan v. Kelly, 75 Ark. 55.
The intent of the parties to a written .contract should be derived from-the whole instrument. Kelly v. Dooling, 23 Ark. 582, Railway v. Williams, 53 Ark. 58; Vaugine v. Taylor, 18 Ark. 65.
Appellant does not contend that the contract as executed has been changed, but only says that he did not in fact examine it sufficiently and closely to discover the provision that the fencing was priced f. o. b. Memphis. He executed the order, and, no fraud having been practiced upon him in its procurement and there being no ambiguity in its terms, he can not excuse himself from his liability thereon hy saying that he did not read/ it all and that if he had understood that it read as it appears to read that he would not have signed it. He is bound, under the law, to know the contents of a paper signed by him, and he can not excuse himself by saying he did not read it or know what it contained. Upton v. Tribilcock, 91 U. S. 45; 9 Cyc. 391; Stewart v. Fleming, 105 Ark. 37.
The terms of the contract are plain and unambiguous and the court erred, in not instructing a verdict for the appellant.
The judgment is reversed and judgment will be entered here for the amount sued for. It is so ordered. | [
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Smith, J.
This suit was brought by appellees against appellant to recover $1,000 for the total destruction by fire of a dwelling house in the town of McNeil, Ark., on the night of the 28th of January, 1912, which the appellant, by its contract, agreed to pay appellees upon the destruction by fire of this building.
The appellant denied liability under this contract for the reason that the house was vacant at the time it was destroyed by fire, and had remained so for more than ten days prior to its destruction, in violation of the terms of said contract of insurance. The appellees admit that the house was vacant at the time it was destroyed by fire, and had been vacant for more than ten days prior to its destruction, but they say appellant has waived its right to insist upon a forfeiture on account of the violation of this part of the contract of insurance.
At the conclusion of the introduction of the evidence in the case, each party requested the court to give a peremptory instruction in his favor, and neither asked any instruction except that the court direct a verdict. In the case of St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71, it was said, to quote the syllabus of that case: “Where each of the parties to an action request the court to direct a verdict in his favor, and request no other instruction, they, in effect, agreed that the question at issue should be decided by the court, and the court’s finding had the same effect as the decision of a jury would have had.” The court directed the jury to return a verdict for appellees for the full amount of the policy, together with the statutory penalty of 12 per cent, and also fixed the attorney’s fee at the sum of $150. The court’s action in assessing the penalty and fixing the attorney’s fee is not complained of except appellant says that neither should have been done, because a verdict for appellant should have been directed by the court.
In testing the correctness of the court’s action in directing a verdict for the appellees, under the authority of the Mulkey case, we give to the evidence its highest probative value in support of appellees’ theory of the case. However, there are no serious conflicts in the evidence, and the facts may be stated as follows: The policy sued on was originally issued to one Ed M. Rhodes, who was then the owner of the property, but who sold and conveyed it to appellees, Wilson and Grayson. The policy was transferred to Wilson and Grayson, written consent therefor having been given by a Mr. Rhea, who was the company’s agent, and endorsed upon the policy. Appellees were residents of Magnolia, while Rhea resided at McNeil, and the evidence is, that Rhea promised appellees that he would look after the insurance and keep this policy in force. They had spoken of taking out this insurance at Magnolia, where they could look after it, but Rhea agreed to keep this policy in force, and for that reason, they turned this piece of property over to him, and he agreed to look after it and to keep the insurance in force. Mr. Grayson testified as follows: “We arranged with Mr. Rhea to keep this place insured. We had the place right there, and were afraid we might overlook it, and made arrangements with him, and he said he would. We-told him whatever was necessary to keep it insured, notify us and we would settle the bill.” and upon his cross examination, he made the following answers:
Q. You stated in your direct examination that you had some kind of an agreement with Mr. Rhea to keep the property insured?
A. Yes, sir.
Q. What was that agreement?
A. Well, we were in there, me and Mr. Wilson, and told Mr. Rhea we had that piece of property over there, and wanted him to look after the insurance and keep that policy in force, and whatever the insurance—whatever the cost was—not to let it go out, but to notify us and we ivould pay it. ’ ’
And he further said:
“I spoke to Mr. Rhea to do whatever was necessary to keep it in force, and we would pay the hill, and he agreed to keep this one in force, and we turned that piece of property over to him.”
The testimony of Mr. Wilson was substantially to the same effect. Rhea testified on behalf of the appellees, and was asked:
Q. State to the jury whether or not you have, ever been authorized to keep up the insurance on this place?
■ A. Well, I do not remember about the conversation, but, of course, I was supposed to do my part of it.
Q. What do you understand your part to be?
A. To do what they said to do.
The house was bought by appellees, not for their own use or occupancy, but as an investment, of which fact Rhea was apprised at the time the policy was assigned to appellees. The house, was occupied at that time, but later became vacant, and had been unoccupied for from three to five months before the fire. Rhea was aware of the fact that the property was unoccupied, and had been requested by appellees to procure a tenant for the property.
The policy contained the following clause: “This entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days,” but appellees insist that the acts, statements, and conduct of appellant’s agent estop it from insisting upon a forfeiture on account of the violation of the vacancy clause of the insurance contract. In effect, its position is that the agent’s promise to keep the policy in force is a waiver of the right to insist on a forfeiture on account of the violation of any condition or stipulation of the policy. That such a promise having been made in the inception of the contract, an agreement would be implied not to insist upon a forfeiture upon a ground of the existence of which the company’s agent was advised before the fire, but had made no attempt to cancel the policy.
Rhea was a local agent with authority to issue and countersign policies of insurance and to collect premiums, and had the right to issue vacancy permits which become effective when reported to and ratified by the company. But his issuance of a permit was subject to the company’s approval, and if this approval was not given, the permit was annulled.
The rule is well settled that the mere knowledge of the agent that the insured property is vacant, and has been for a longer period than that limited by the policy is not a waiver of that provision of the policy where no attempt is made to cancel it on that account. 2 Clement on Fire Ins., page 389. But appellees do not base their right to recover upon that ground, their position being that their agreement with the agent is either a waiver of the provisions of the policy as a part of the contract of insurance, or, that, if not, the company is estopped to deny that a vacancy permit was, in fact, granted. It is not contended that anything was said between appellees and the agent in regard to the issuance of a vacancy permit, nor does the proof show for what length of time one might have been issued, nor whether a single permit would have been sufficient to cover the entire period of the vacancy. Appellees say that the facts stated imply an agreement upon the part of the agent to secure such a permit as may have been necessary, and estop the insurance company from denying that fact.
It can not be said that any act or declaration of the agent would make a contract of insurance between the parties other than the one evidenced by the policy assigned to appellees and sued upon by them. In the case of Hartford Fire Ins. Co. v. Webster, 69 Ill. 392, the facts were somewhat similar to those of this case, and the court there said (quoting syllabus): “What an insurance agent may say as to the effect or waiver of certain conditions in the policy of insurance while the contract is being made, can not be received to explain or vary the effect of the written contract. ’ ’ Bnt, while evidence may not be received for the purpose of explaining or varying the terms of the written policy, it is still well settled, by the decisions of this and other States, that these provisions may be waived, and are waived, if the agent has knowledge of the existence of conditions contracted against by the terms of the policy, and yet, with the knowledge of their existence, issues the policy.
But this is not the case of property being vacant at the time of the issuance of the policy, and of that vacancy being known to the agent issuing the policy, for, in such cases as stated, the authorities hold that the insurance company has waived the conditions of the policy against vacancy. Clement, on Fire Insurance, volume 1, page 418. Nor is this the case of an insured advising the company’s agent of a condition which would work a forfeiture,, if not waived, yet one which could and would be waived upon the doing of some act by the#agent which the insured assumed, in reliance upon the agent’s promise, was done or would be done, but which the agent had, in fact, failed to do, for, in such cases, the authorities hold that the agent’s neglect does not invalidate the policy.
If, before the policy is issued, the agent has knowledge of some fact, circumstance or condition contracted against by the terms and provisions of the policy which he thereafter issues, such provisions of the policy are said to be waived. New Hampshire Fire Ins. Co. v. Blakeley, 97 Ark. 567; Peoples Fire Ins. Asso. v. Goyne, 79 Ark. 315. But an agent’s executory agreement .to waive future breaches, if any should occur, is not enforceable, for such an agreement is not a waiver of the effect of an existing condition, but is an amendment to the extent of such an agreement, of the terms of the written contract between the parties, evidenced by the policy of insurance. The understanding between appellees and Rhea, when given the highest effect of any inference that can be drawn from the conversation between them, is no more than an executory contract to keep ap pellees’ insurance in effect, and to do whatever may be necessary for that purpose. A similar question arose in the case of Home Fire Ins. Co. v. Scales, reported in 15 Southern 134, where the proof was that a vacancy permit had been issued, but had expired, and where the court found that at the time of the fire, the house was vacant, and no permit was outstanding, waiving the vacancy, and where the insurance company’s agent, who issued the first permit, testified that he would have issued another, but for the fact that he did not regard the house as vacant. Chief Justice Campbell, speaking for the court, said: “-It was no part of his business, as agent for the company, to keep policies from being avoided by violations of their conditions, whatever obligations he may have assumed by his engagements to the insured, as to which engagements he could not bind the insurer. * * * If Hibler (the agent), knew the facts, and thought the house occupied, he was mistaken in his judgment of what was required to constitute occupation. Granting that his knowledge is imputed to the company, the case is not altered. Hibler may have been under obligations to Scales (the owner), and he may have disregarded it or erred in. his judgment, and Scales may have cause of complaint against him, but, in all of this, Hibler was the friend and agent, if at all, of Scales, and not of the company. If Hibler, the agent, had done anything in his capacity as agent, after the house was unoccupied, to mislead the insured, the case would be different, but nothing of that sort occurred. There was silence, and that is never ground for estoppel except where it is a fraud which can not be predicated of this silence. The agent had a right to be silent, and give no notice as to the unoccupied condition of the house.”
Appellees also insist that they should recover here because the unearned premium was not returned nor tendered, but this question was decided adversely to that contention in the case of Capitol Fire Ins. Co. v. Shearwood, 87 Ark. 326, where it was said: “Where a fire insurance policy is issued, and the premium is paid and afterward the assured violates the provisions of the policy against incumbrances which creates a forfeiture, the insurer having no knowledge of the forfeiture until after the loss occurs, does not waive same by merely failing to return the premium before the suit is brought to recover the amount of the policy, nor is it precluded by such failure from setting up the forfeiture in defense to the suit.”
The judgment of the court below is reversed and the cause remanded. | [
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Wood, J.,
(after stating the facts). There was no error in the ruling of the court in permitting the testimony in regard to the amount of the doctor’s bills. The testimony was not hearsay, but was original evidence. One witness saw the doctor present his bill for his services. He saw what the amount was and saw the itemized bill, and there was no objection made to it by the appellee, to whom it was presented and for whom the services were rendered.
Another witness testified that he saw the statement rendered to Hydrick by Doctor Justis for the amount of his services. The witness says the statement was rendered to Hydrick at the request of the witness. The testimony was competent as tending to show the amount the physicians charged for their services, and the amount that appellee would have to pay for same.
The fact that the doctors rendered the accounts to the appellee, and that he acquiesced in the amounts thereof tends to establish the fact that appellee was indebted to the physicians for professional services in the sum of $246. Brown v. Brown, 16 Ark. 202. See also Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 440.
There was no prejudicial error in the ruling of the court in granting appellee’s prayer for instruction No. 6. While this court, in the case of St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205, criticised a similar prayer because it did not tell the jury in specific terms that their finding as to the amount of damages must be based on the evidence, yet the court did not hold that the giving of the instruction in that ease was reversible error.
In Railway Company v. Cantrell, 37 Ark. 522, this court, in commenting upon a similar instruction, said that it was “clearly correct.” "While such an instruction is not to be commended in form, and is open, to the objection mentioned in recent cases, yet, unless the attention of the court is specifically called to it, and the court refuses to make the correction, it can not be held that such an instruction is reversible error, and this court has not as yet reversed a case for a failure to qualify the instruction in the particular mentioned, although instructions in practically the same form as the one under consideration have often appeared in eases passed upon by this court. See L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 344; St. Louis, I. M. & S. Ry. Co. v. Price, 83 Ark. 437; St. Louis, 1. M. & S. Ry. Co. v. Dallas, 93 Ark. 214.
While it is always better form, and the better practice, for the court to tell the jury that its findings on every issue of fact in the case must be based upon the evidence, yet where it is plain from the charge of the court, taken as a whole, that the jury were told that their findings must be based upon the evidence, the jury could not be misled nor feel authorized to make a finding that was not based upon the evidence because some separate or particular instruction omitted this precaution. The jury were sworn, in the first instance, to try the case and a true verdict render according to the law and the evidence. That being true, it is not likely that any man of sufficient intelligence to be a competent juror would feel authorized to wander beyond the evidence to find matters upon which to predicate his findings in the case. The conscientious juror would necessarily feel restrained by his oath to base his findings upon the evidence.
In several other instructions which the court gave, both at the instance of the appellee and the appellant, the jury were given to understand that their findings upon the particular phases presented in each of the prayers for instructions should be based upon the evidence ; and, taking the charge as a whole, the jury could not possibly have understood that they were authorized to render any finding of fact that was not warranted by the evidence.
This court, in McGee v. Smitherman, 69 Ark. 632, in passing upon an instruction that was challenged because it did not say that the amount of compensation “should be fixed and determined from the evidence,” used this language: “There is no means by which the jury could determine what would be a fair compensation for the loss sustained by the appellee, except the evidence, and it was, therefore, plainly implied, and every intelligent juror is presumed to have understood that the jury were to be governed by the evidence.’ ’
Mr. Thompson says that “juries are supposed to have some small trace of sense; there is a presumption that they are to find from the evidence, and, accordingly, it is not necessary to repeat this expression at every turn in the charge.”
In other instructions in the case the court indicated to the jury that their findings must be based upon “a preponderance of the evidence,” and this was sufficient to prevent the possibility of their going outside of the evidence in making their verdict.
Appellant contends that personal disfigurement wás not an element of damages in the case, for the reason that plaintiff was a convicted felon, and sentenced to confinement in the penitentiary for eleven years, and further objects to instruction No. 6 on that ground.
A man does not cease to be a human being because he is convicted and is imprisoned in the State penitentiary. He does not thereby necessarily lose all sense of pride and pleasure in the perfection of his physical organism. Although occupying a felon’s cell, he may experience as great mental anguish over the dismemberment of his body and consequent disfigurement of his person as if'he were a free man, and the law is not so inhuman as to deny Mm compensation in damages against any one who may have negligently inflicted an injury upon him. The law makes no exceptions in such eases, against those convicted of and imprisoned for crime.
The court, in its sixth instruction, enumerated the elements of damage which the jury were entitled to consider, under the pleadings and evidence in the case, and the loss of earning power was not mentioned as one of these elements of damage. This charge of the court was the guide to the jury; and the remarks by counsel concerning the loss of appellee’s leg must have had reference to his personal disfigurement. Indeed, the court so limited it, in response to the objection of appellant to such remarks. There was therefore no prejudicial error in the court’s refusing appellant’s prayer for instruction No. 10. The court having affirmatively told the jury in instruction No. 6 what elements of damage should be considered, it was not necessary to further instruct them that certain elements were not to be considered. Besides, as we have shown, the court, by its remarks, in effect, instructed the jury that there could be no recovery for loss of time or incapacity to labor. It must have been clear to the jury, from the court’s remarks and his formal charge in the sixth instruction, that the loss of the leg could only be considered as an element of' damage in the way of personal disfigurement.
The other remarks of counsel did not transcend the bounds of legitimate argument.
The pain and suffering and the mental agony which plaintiff has endured, and must continue to endure, by reason of the injuries he has received, as shown by the evidence, convinces us that the amount of the verdict is not excessive.
The record is free from prejudicial error, and the judgment must therefore be affirmed. | [
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McCulloch, C. J.
The defendant, Claud Turner, appeals from a conviction of the crime of grand larceny, alleged to have been committed by stealing five hats, of the value of $4.50 each, the property of the Pacific Express Company, a corporation.
Packages containing men’s hats were consigned over the Pacific Express Company to Dickerson Bros., a firm of merchants at Fulton, Ark., and after the packages were unloaded at the railroad station at Fulton, and whilst still in the possession of the express company, one was broken open and several hats stolen therefrom.
Some of the hats were found in the barn where defendant kept his team, and there was proof that defendant sold hats of the description of those stolen, about the time the larceny was committed.
In addition to that, evidence was adduced to the effect that defendant confessed his guilt, and offered to enter a plea of petit larceny.
The hats were proved to be of sufficient value to make the offense grand larceny.
The testimony was abundant to sustain the conviction. The officer who arrested defendant testified that, after the arrest had been made, defendant confessed his guilt of- the crime charged, and that he (the officer) advised him that “it was the best to plead guilty and get the lowest punishment, probably a fine,” or something to that effect. The witness stated that he thought the confession preceded the advice which he gave defendant, but he was not sure about that, and the court refused to allow the testimony of that witness to go to the jury.
But another witness was allowed to testify, over defendant’s objection, that the latter admitted his guilt, and offered to plead guilty to petit larceny.
It is insisted that this ruling of the court was erroneous, and prejudicial.
That witness was the justice of the peace before whom defendant was taken for -examination, and he testified that defendant’s confession was after he had made an offer to the prosecuting attorney to plead guilty, and that officer had refused to accept the plea, and had told the defendant that he couldn’t promise him anything in the way of leniency. The witness testified that, after that conversation with the prosecuting attorney, the defendant, upon being asked whether he was guilty or not guilty, entered a plea of guilty.
Counsel for defendant invoke the rule that, when improper influences have been exerted to obtain a confession from one accused of crime, the “presumption arises that a subsequent confession of the same crime flows from that influence.”
That contention, it is true, involves a correct proposition of law; but it is equally well settled that such presumption “may be overcome by positive evidence that the subsequent confession was given free from undue influence.” Smith v. State, 74 Ark. 397.
The testimony of the justice of the peace was, we think, sufficient to warrant the court in holding that the promise of a lower punishment had been revoked, and that the last confession was voluntarily given without any inducement or influence. All that the arresting officer had said to defendant was to advise him to “plead guilty and get the lowest punishment,” but the prosecut ing attorney had expressly declinéd to extend any leniency, so that it was a question primarily for the court, and then for the jury, to determine whether the last confession was voluntarily given free from any inducement. In other words, the evidence of the justice of the peace was sufficient to overcome the presumption that the confession flowed from the original promise or advice given by the arresting officer.
The evidence sufficiently established the fact that the Pacific Express Company was a corporation as alleged in the indictment. That fact could be, and was, established by proving the general reputation of the concern doing business in the locality. Brown v. State, 108 Ark. 336.
No error was committed and the judgment is, therefore, affirmed. | [
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Kirby, J.
W. J. Couch brought an action in replevin against W. M. Hutchinson and Y. Starks, for the possession of two mules, alleged to have been sold to Hutchinson by Couch and a note given in payment upon which Starks was endorser. The title to the property was retained in the note until it was paid for. Suit was brought in a justice court in Pulaski County, and appellant, being ill, did not appear and judgment was rendered against him, and he appealed to the circuit court. Upon the calling of the case for trial there, it appeared •that no service of process had been had on Hutchinson and appellant demanded a trial by a jury. The court refused to allow the cause to be tried by a- jury, stating, “Let the record show that the court has no jury and is not willing to put the county to the expense of going out and summoning twenty-four jurors at two dollars a piece to try a thirty or forty dollar case. All of these cases were tried before the justice of the peace without a jury.”
The note was introduced in testimony and also the return of the constable upon the summons that he had found but one mule, the other one having been traded off.
The appellee testified that he sold the mules to Hutchinson, taking the note therefor, with the reservation of title, until the purchase money was paid ; that Starks was not present when the contract was executed but afterward came in and endorsed it, and that neither he nor Hutchinson had ever paid the note. He also said he would not have turned the stock over to Hutchinson if Starks had not endorsed the note, and that Starks came once and asked him for an extension of time on the note. That he had told' Starks to take possession of the stock after Starks had failed to pay the note.
Starks testified that he did not recollect endorsing the note, that he could neither read nor write, that he had plenty of stock and did not desire the purchase of the mules by Hutchinson in order that he could make a crop on his place. He said the mules were never in his possession at any time and that he had nothing whatever to do with them. That they were bought by Hutchinson to haul lumber with. That he was going to let him have stock to make the crop. That Hutchinson had possession of them all the time, that the other mule died and that Hutchinson traded off the one that was left and went away. Two other witnesses testified positively that they visited Stark’s house often, knew his stock, and also that they knew Hutchinson kept these mules out in the country all the time and that Starks never had possession of either one of them at any time. There was other testimony as to whether Starks signed the note, and as to what his condition was, whether drunk or sober, at the time. ■
• The court erred in not granting appellant the right to a trial of his case by a jury. Section 7, article 2, of the Constitution provides:
“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy. ’ ’
.As early as the 4th Arkansas, the court said: “It is certainly true that each party, under the Constitution of the United States and of our own State, is entitled to the benefit of a trial by jury.” Wilson v. Light, 4 Ark. 158; State v. Cox, 8 Ark. 436.
In' Ashley v. Little Rock, 56 Ark. 391, the court said: “The right of trial by jury extends to all cases in which legal rights are to be ascertained and determined, in contradistinction to those where equitable rights alone are recognized and equitable remedies administered. In Louisiana & N. W. Rd. Co. v. State, 75 Ark. 443, it is said:
“It was thoroughly settled at common law that issues of fact were triable by jury, therefore the .right of trial by jury of issues of fact is a constitutional right under our Constitution.”
Replevin cases were triable by a jury at common law, and the right to trial by jury being guaranteed, by our Constitution, the court’s refusal to grant it to the appellant was a deprivation of a substantial right, operating to his prejudice, for which the case must be reversed. Williams v. Citizens, 40 Ark. 297; Kirby’s Digest, § 6170; Reynolds v. State, 61 Ind. 415.
It may be that the court can try a lawsuit, where the amount involved is small, as well as it could be done by a jury, or one for a large amount, for that matter, but our Constitution and law guarantees the right to a trial by jury which shall extend to- all cases at law, without regard to the amount involved. Constitution, § 7, art. 2; Kirby’s Digest, § 6170.
It also appears from the testimony herein that the property in controversy was not sold to appellant and was never in his possession nor under his control, and an action for replevin would not lie against him therefor. Casey v. Scott, 82 Ark. 364, 18 Am. St. R. 80; Hodges v. Nall, 66 Ark. 135.
Por the errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Hart, J.
It was shown by the State that, within a year prior to the return of the indictment in this case, Dale Young, a minor sixteen years of age, played pool in the pool room of the defendant, W. A. Schnables, in the town of Corning, in the Western District of Clay County; that Dale Young saw the defendant in there, and that the defendant did not say anything to him about staying in there or order him out of the place.
The defendant and another person who assisted him in running the pool hall testified that notices were posted up in it forbidding minors to enter the place, and that each of them, at different times, had ordered the minor, Dale Young, out of the pool room, and that they had stopped him playing on one occasion, and that he had never played there by their consent.
The defendant was indicted under an act of the General Assembly of the State of Arkansas which makes it unlawful for the owner or keeper of any pool room, or any employee of such owner or keeper, to permit any person under the age of eighteen years to play pool, billiards, or any other game, or to frequent or congregate in such pool room. (General Acts of 1911, page 63.) The punishment provided for by the act is a fine of not less than ten dollars nor more than one hundred dollars.
The State asked the court to instruct the jury that wilful knowledge is not one of the necessary elements to convict under this statute, and that if the jury found that Dale Young was a minor under the age of eighteen years, and that he played pool in the pool room of the defendant, Schnables, within one year next before the finding of the indictment, then it should find the defendant guilty, even though it might find that the defendant did not consent to the minor playing in his pool hall. The court refused to give the instruction asked for, and the State excepted to the ruling of the court. The court then read the statute under which the indictment was found, and instructed the jury that the defendant would be guilty if he permitted the minor to play in his pool room, and that if he did not permit him to play he would not be guilty. The State duly excepted to the instructions given by the court. Under the instructions given, the jury returned a verdict of riot guilty, and the State has appealed.
One of the definitions of the words “to permit” is: “To allow by not prohibiting.” In the case of the State v. Probasco, 17 N. W. (Iowa) 607, the defendant was indicted under a statute making it unlawful for the keeper of a billiard hall to permit any minor to remain in such hall or to take part in any of the games known as billiards, nine or ten pins. The court held that where the keeper, or his employee, failed to take proper measures to prevent minors remaining in their saloons, they permit it within the meaning of the statute, and knowledge of the presence of minors therein, or of the fact of their minority, need not be shown to sustain a conviction. The court said:
“It is the duty of saloon keepers not to permit, but to prevent, minors remaining in their saloons. The same duty is imposed upon their employees. If the keeper or his employee fails to take proper measures to prevent minors remaining in their saloons, they permit it. Hence, if proper watchfulness is not exercised by either; if the keeper fails to enforce watchfulness on the part of his employee and thereby a minor is permitted to remain in the saloon, both violate the statute. It is obvious that, in the absence of watchfulness and proper effort to discharge the duty.imposed by the statute, if a minor remains in the saloon without the knowledge of the keeper or employee, each are hable for the penalty provided by the statute. Neither can plead ignorance of the presence of the minor. If was their duty to know of his presence. Ignorance, especially when there has been no effort to gain knowledge, will excuse no one for the omission of duty, either in morals or law. In the case of the defendant, it was his duty to be vigilant to prevent the presence of minors. When he has failed to do his duty in this regard, he can not escape on the mere ground that he did not know he was violating his duty, as prescribed by the statute. ’ ’■
In the case of the Commonwealth v. Emmons, 98 Mass. 6, the keeper of a billiard room was indicted for admitting a minor thereto without the written consent of his parent or guardian, and the court, in construing that statute, said:
“The prohibition of the statute is absolute. The defendant admitted them to the room at his peril, and is liable to the penalty, whether he knew them to be minors or not. ' The offense is of that class where knowledge or guilty intent is not an essential ingredient in its commission, and need not be proved. Commonwealth v. Boynton, 2 Allen 160; Commonwealth v. Farren, 9 Allen 489; Commonwealth v. Waite, 11 Allen 264. If the minors were actually present in the room and suffered to remain therein, either by the defendant .or by his servants or agents who had the charge and keeping thereof, it was irrelevant and immaterial to prove that the defendant had previously forbidden them to enter, or that he was not present when they were permitted to be there. ’ ’
In the case of Bell v. State, 93 Ark. 600, the court held that the owner of a saloon is criminally responsible for illegal sales of liquors made by his servants within the scope of their general employment.
We think that in the statute under consideration, the Legislature intended to impose the penalty irrespective of any intent on the part of the proprietor of the pool room to violate the statute.
Inasmuch as no punishment by imprisonment is provided by the statute, the judgment must be reversed and the cause remanded for a new txial. | [
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Smith, J.,
(after stating the facts). It will be observed that the act establishing the district requires only that the Dardanelle District procure a courthouse, and it is not made a condition precedent to the continued existence of the district that the courthouse shall be maintained. When the conditions of the act were met the district became an entity, and now exists and will continue to exist, until abolished by the Legislature, whether the courthouse is ever rebuilt or not. Under the law, the courts may be held temporarily at some place in Dardanelle until a permanent courthouse is constructed, whether the cost of the construction be met by the county or by the district, and the jurisdiction of these courts, and the validity of their orders, judgments and decrees will not depend on the erection of a building as a courthouse. Hudspeth v. State, 55 Ark. 323.
Nor will the validity of any record be impaired because there now stands in Dardanelle only the fireproof vault over which the courthouse was burned down.
Appellant insists that in the absence of express legislative authority, the county can build a courthouse only at the county seat, and that “seat of justice,” as used in section 1009, of Kirby’s Digest, means the “county seat,” because at the time of its passage there was only one place where courts were held, and it was the seat of justice, and that was the county seat. But, however nearly “seat of justice” and “county seat” are synonymous, it is apparent that a seat of justice is not always a county seat, although a county seat is perhaps always a seat of justice.
When this act became effective, upon the building of the courthouse, Dardanelle became a seat of justice, for here the courts sat and administered justice, and the public officers kept their offices and perforined the functions of their offices; Whallon v. Ingham, 16 N. W. 876; Words and Phrases, vol. 7, p. 6376; Jesse Hinton v. Perry County, 84 Miss. 536; State ex rel. v. Hughes, 16 S. W. 489.
And being thus a seat of justice there existed the same authority to build a new courthouse at Dardanelle that there would have been to build a new one at Dan-ville. Section 1009, Kirby’s Digest.
The existence of this seat of justice could not depend upon the occurrence or extent of a ñre, and Dardanelle being the established seat of .justice in said county for the Dardanelle District thereof, the authority exists under the law for the county court’s order, directing the erection of a new building, and the judgment of the court below is therefore affirmed. | [
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McCulloch, C. J.
Appellant was tried, and convicted, for the offense of vagrancy as defined by the following statute:
. “All keepers or exhibitors of any gaming table, bank or other gambling device, and all persons who travel or remain in steamboats, or go about from place to place for the purpose of gaming, shall bel deemed and treated as vagrants.” Section 2068, Kirby’s Digest.
The particular feature of the statute upon which the charge against appellant was predicated is the latter clause of the section which defines persons to be vagrants who “go about from place to place for the purpose of gaming. ’ ’
The chief contention of counsel for appellant is that this language refers to banking games, and not to gaming of any other kind. The case of Tully v. State, 88 Ark. 411, is relied on, where we held that the gambling device mentioned in' another section of the same statute referred to banking games.
The first clause of the section doubtless should be interpreted as referring to banking games which constitute gambling devices, but the last clause of the section is disconnected from the preceding clauses, and is broad enough to include all persons who “go about from place to place for the purpose of gaming,” whether the purpose is to participate in banking games or in other kinds of gambling. Our conclusion is that this is the proper construction of the statute.
It is next contended that the testimony is not sufficient to sustain the conviction. But, after careful consideration, we are of the opinion that the evidence warranted the jury in finding that the defendant had no other means of support, and that he went about from place to place in Polk. County and other adjoining counties in that part of the State for the purpose of gambling.
One of the witnesses introduced by the State was permitted, over appellant’s objection, to testify as to the amount of money he lost in one of the games in which he participated with appellant.
This was immaterial, but we are unable to see that any prejudice resulted to appellant in admitting the testimony.
The court also permitted the State to prove games participated in by appellant in other counties, and this was done over appellant’s objection.
We think such testimony was competent, not for the purpose of proving the commission of the same offense in another county, but to show the purpose of his wanderings, whether to pursue a lawful avocation, or to habitually engage in the pursuit of gambling.
Judgment affirmed. | [
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Wood, J.,
(after stating tbe facts). Tbe chancellor was correct in finding that tbe third section of tbe act defines tbe system of drainage contemplated by tbe Legislature, and also in finding that tbe board could not expend more than tbe sum of three hundred thousand dollars ($300,000) to carry out tbe purpose of tbe Legislature as expressed in tbe act. Tbe intent of tbe Legislature is not left to be gathered from doubtful language in various sections of tbe act, but it is clearly and unmistakably expressed in the third section, and where tbe intent is clearly expressed in unambiguous language, it is the duty of the court to give that language its full force and effect. The court can not change the plain meaning of the words used by the Legislature without trenching upon its functions. Therefore, we are of the opinion that no authority can be found in the act for the construction of five main drains or canals, with laterals, at a cost of two million, two hundred and seven dollars ($2,000,207), when the language of the act defining the system clearly expresses that there shall be one main drain or canal, with laterals, to cos! not more than three hundred thousand dollars ($300,000). To do so would be doing violence to the language of the áct, and would be, in our opinion, the baldest kind of judicial legislation. The language of the third section plainly shows that the Legislature had in mind only one main drain or canal, and this the Legislature divided into two parts, viz: “From the Lincoln County line to Boggy Bayou,” and “of Boggy Bayou from the Government levee to Clay Bayou.” It is plain that in the matter of construction the Legislature had in mind these divisions of the main drain into two parts, for it says: “The work from-Boggy Bayou on down shall be completed before the Government is asked to move its Boggy Bayou Levee.” Then in another portion of this section the language is: “The board shall provide in like manner for the opening and constructing of a ditch or canal from the Lincoln County line to Boggy Bayou.” It is clear that the main ditch or canal was treated as having these two parts, for, after the description of these parts, the language continues: “After the completion of the main ditches or canals as above set forth, it may construct such general or main laterals as will be of benefit to the community, etc., out of the funds in its hands, from the surplus and if there be a surplus.” The use of the terms “main ditches” or “canals” in the plural shows that the main drainage ditch or canal before described was to be composed of the two parts as above stated, the one part running “from the Lincoln County line to Boggy Bayou,” and the other “of Boggy Bayou from the government levee to Clay Bayou,” both together constituting the main drainage canal from its beginning at “the Lincoln County line” to its terminus at “Clay Bayou.” In other words, the main canal, consisting of these two parts, was to begin at the Lincoln County line and to end at Clay Bayou. Wherever the words “drains,” “ditches” and “canals” are used in other sections of the act, they must be held to have reference to the “general or main laterals” to the one main drainage canal. These “general or main laterals” are provided for in the third section of the act and are contemplated as a part of the drainage system, by which the water was to be run into and conducted through the one main drainage canal, as above described. To our minds it is clear that the Legislature did not intend that the system of drainage provided by the act should cost exceeding the sum of three hundred thousand dollars. The money to be expended for the work was to be borrowed “at a rate of interest not exceeding six per cent per annum,” and “to that end negotiable bonds of the district were to be issued not exceeding three hundred thousand dollars.”” The only purpose of issuing bonds was to borrow money to do the work. That was the only method provided for raising the necessary funds, and as we construe this provision, it was a limitation upon the power of the board to borrow money in excess of the sum of three hundred thousand dollars. No greater sum than this was authorized to be expended in the prosecution of the work. This construction is strengthened by the language also of the third section providing that after the completion of the main ditches or canals, constituting the one main channel of the drainage system, as above explained, “general or main laterals” could be constructed from the “surplus fund,” if there should be a “surplus.” In other words, this shows that the sum of three hundred thousand was named as the sum to be expended and no more, and if it did not require this sum to construct the main drainage canal then the residue could be used in the construction of lateral drains. To give the act the construction contended for by appel lants, the third and twelfth sections would have to he entirely ignored. The construction we have indicated will harmonize all parts of the act, and at the same time effectuate the legislative intent so clearly expressed and shown in the third and twelfth sections. It is our duty to so construe the act that every clause, sentence or part shall stand if possible. No section should, be rendered nugatory, where it is possible to carry out the purpose of the Legislature without so doing. Wilson v. Biscoe, 11 Ark. 44; Kelly Heirs v. McGuire, 15 Ark. 555; Scott v. State, 22 Ark. 369; McNair v. Williams, 28 Ark. 203; Little Rock & Fort Smith Rd. Co. v. Howell, 31 Ark. 119; Beavers v. State, 60 Ark. 129. The Legislature must be presumed to have had a competent knowledge of the subject-matter of the legislation. It must be presumed to have ascertained in advance the kind of improvement needed by the people affected thereby and the proximate cost of that kind of improvement. Page & Jones on Assessments, § 290. ' Since it has limited the cost of irmprovement to three hundred thousand dollars, it would be unreasonable to conclude that it had provided at the same time for a drainage system that would cost more than six times the sum fixed as the limit of its cost. Therefore, the chancery court was clearly correct in holding that the assessment based upon the alleged benefits to be derived .from a system to be constructed according to the plan adopted by the appellant district was illegal and void. This conclusion makes it unnecessary to determine whether the assessment was also void for the other reasons alleged in the complaint.
The court further decreed “that no future assessment for drainage purposes be levied against any of the hereinafter described lands under the above mentioned act, creating the defendant district.”
The assessments which the court declared illegal and void were made upon the alleged benefits to be derived from a system of drainage according to the plan adopted by the board of directors of the district, and that plan, as we have seen, was not authorized by the act. There has been no assessment as yet npon the benefits, if any, to be derived by a system of drainage contemplated by the act, as we now construe it. When such assessments are made if any of the land owners in the district are not benefited they will have their remedy. It was premature in the lower court to pass upon that question before an assessment is made upon the plan of drainage contemplated by the act. It will be time enough when such assessments are made, if they are called in question, to determine that issue.
So much of the decree of the lower court, therefore, as declared that no future assessment for drainage purposes should be levied against any of the lands described under the above-mentioned act was premature, and therefore erroneous.
So much of the decree of the ]ower court, therefore, as declares that “no future assessment for drainage purposes be levied against any of the hereinafter described lands under the above mentioned act shall be levied” will be vacated and set aside, and the decree as thus modified will be affirmed. | [
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Hart, J.,
(after stating the facts). Counsel for defendant moved the court to quash the indictment because it was not concurred in by twelve members of the grand jury, and assigns as error the action of the court in overruling his motion.
The record shows that the grand jury came into court, in charge of a deputy sheriff, and that all its members were present; that the indictment in question was returned in open court and was properly endorsed “A true bill” and signed by the foreman; that it was handed to the clerk and ordered filed and numbered, as the law directs.
Where an indictment is properly returned into court, it will be presumed that it was duly found with the concurrence of the requisite number of the grand jury, and the court did not err in overruling the defendant’s motion to quash the indictment. St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1; Nash v. State, 73 Ark. 399.
It is next contended by counsel for defendant that the testimony is not sufficient to support the verdict. They first contend that there was no testimony, other than that of the accomplice, Howell McElroy, tending to show that the saloon was broken into in the night time.
The defendant himself introduced in evidence an almanac showing sunrise to have been at 4:39 o ’clock on the morning of May 21, 1912. The proprietor of the saloon testified that he left there at 12 o’clock at night and that the saloon showed evidence of having been broken into when he returned the next morning. The bartender said that he opened the saloon at 4:10 o’clock in the morning; that the glass door had been broken into since he had left the night before; and the evidence of both the proprietor and the bartender showed that whiskey and money had been taken from the saloon since it was closed up the night before. The jury might have inferred from their evidence that the saloon was broken into in the night time.
Counsel for defendant also insist that there is no evidence, other than that of Howell McElroy, tending to connect the defendant with the commission of the offense.
The proprietor of the saloon testified that Howell McElroy and the defendant came into the saloon about 11 o ’clock on the night it was burglarized, and asked him to let Howell McElroy have some whiskey. He refused to do so, and the defendant told him that they were going to have it before morning if they had to take it.
Other witnesses testified that the defendant and Howell McElroy were seen together early the next morning; that- they had in their, possession whiskey of the same brand as that taken from the saloon, and that a few days thereafter the defendant was seen in possession of several dollars in nickels and dimes, and the • proprietor of the saloon said that the money taken from it consisted of quarters, nickels and dimes.
It was also shown that Howell McElroy and the defendant were seen together shortly before and shortly after the burglary was committed.
This was a sufficient corroboration of Howell McElroy. Celender v. State, 86 Ark. 23.
Finally, it is insisted that the court erred in admitting questions concerning defendant’s character.
The defendant took the stand in his own behalf, and thereby became subject to impeachment as any other witness. Younger v. State, 100 Ark. 321.
It was shown that the defendant had in his posses sion a few days after the burglary was committed several dollars, consisting of nickels, dimes and quarters. On cross examination the prosecuting attorney asked him where he had gotten this money and what kind of business he had been engaged in lately. The defendant responded that he had won it in a crap game. This was competent for the purpose of discrediting the defendant’s testimony, and the court did not abuse its discretion in permitting the prosecuting attorney to ask the questions and requiring the defendant to answer them. Turner v. State, 100 Ark. 199; Hollingsworth v. State, 53 Ark. 387; McAllister v. State, 99 Ark. 604.
The judgment will be affirmed. | [
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Hart, J.,
(after stating the facts). It is contended by counsel for the defendant insurance company that when Hill deposited the letter containing the check for his premium in the postoffice he thereby made the United States mail his agent for the delivery of the letter and check to the defendant, and the failure of his agent to deliver the check on or before the 15th day of January, 1912, by virtue of the terms of the policy and the premium note, worked a forfeiture of the policy. On the other hand, it is contended by the plaintiff that the United States mail had been employed by the insured for transmitting his premiums to the company on the policy sued on, and that the insured “having deposited in the postoffice, properly addressed and stamped, a letter containing a check for the premium in apt time to have reached the insurance company before the premium note was due no forfeiture of the policy could be declared. The conclusion we have reached renders it unnecessary to decide this contention. If it be assumed that the insurance company had no legal rights under the terms of the insurance policy and of the premium note under the circumstances to forfeit the policy the fact remains that it claimed the right to do so and exércised that right.
“The rule as to the inability of the insurer .to cancel the policy on its own initiative does not prevent an abandonment of the contract by agreement of the parties. And in the absence of fraud or coercion, such abandonment, if definite, will be effective, though at the time the •company is erroneously claiming the right to forfeit or avoid the policy on account of some alleged violation of its conditions.” Cooley’s Briefs on the Law of Insurance, § 2883-
The defendant insurance company several times wrote to Hill, the insured, and called his attention to the fact that, under the provisions of his insurance policy and premium note and the strict insurance laws of the State of Missouri, it was necessary to file an application for reinstatement and that, unless he did so, bis policy would be forfeited. Tlie insurance company called his attention to the fact that nothing was to be feared in making bis application for reinstatement provided he was in as good health as when he took out the policy and had had no serious sickness, accident, etc., since that time. Upon his repeated refusal or neglect to answer its letters, the insurance company on March 22, 1912, returned to the insured his check tendered in payment of his renewal premium note, and the insured received and accepted the check returned to him. The record shows that he after-wards procured a policy in another company and this is conclusive proof of the fact that he was not sick at the time the company declared his policy forfeited and is also proof of the fact that, by signing up the blank application for reinstatement, he might have kept his policy in force. He made no attempt to obtain a judicial interpretation of Ms contract of Ms insurance. He did not return to the insurance company his check for the premium note and insist that his policy of insurance was still in force. On the contrary, he kept the check and made no reply to the insurance company. Under the circumstances this amounted to a voluntary agreement between Mmself and the insurance company to cancel Ms policy and the effect was to terminate the contractual relation between Mmself and the insurance company. The ease is not one where the company is seeking after the death of the insured to declare the insurance forfeited, but the question is whether or not, under all the circumstances adduced in evidence, the contract of insurance was terminated by the parties themselves during the insured’s lifetime, and we hold that it was. Under the undisputed facts and circumstances adduced in evidence no other conclusion can be drawn than that both parties considered the contract of insurance at an end, and, in accordance with the general rule as to the construction of contracts in determining the intention of the parties, we will follow the construction and interpretation of the contract adopted by the parties themselves as shown by the acts and conduct.
The plaintiff, who was the wife of the insured, and the beneficiary named in the policy, had knowledge of all the facts which we have above set forth and which we do not deem it necessary to repeat here. Therefore, we hold that under the principles announced in the case of Franklin Life Insurance Company v. Morrell, 84 Ark. 511, the plaintiff was estopped to assert that the policy had not been cancelled and that she can not assert any rights under the policy in this suit.
The evidence in the case is undisputed and the case appears to have been fully developed. Therefore, the judgment will be reversed and the cause of action dismissed.» | [
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Wood, J.,
(after stating the facts). Appellants’ objection to the instruction can not avail for the reason that the parts of the instruction complained of were separate paragraphs of a general instruction, given of tthe court’s own motion, which contains several paragraphs, none of which are numbered, but several of which contain correct propositions of law. The general objection to the charge as a whole, did not raise in thé mind of the trial court the specific objection of which appellants now complain. Moreover, to get the benefit of their exceptions here, the appellants should have called the attention of the trial court to the alleged error of which they here complain. Also, we are of the opinion that the instruction, except as to the form of the verdict, when taken in connection with the evidence, was substantially correct, and could not have misled the jury. The court meant to tell the jury, in that part of the instruction objected to, that if the plaintiff continued to exercise control over the land for the year 1912 with the acquiescence and consent of the appellants, that they would'he authorized to find for the appellee. Upon the testimony tending to show that the appellee was in possession of the land for the year 1912, and that this was with the knowledge and consent of the appellants, the instruction was free from error.
There was testimony to warrant a .finding that appellee, at the time1 the possession of the hay was taken from him, was holding the land under Ms contract for the year 1912. In other words there was testimony to warrant the jury in finding that appellee, under the contract, was a tenant from year to year.
But the appellants denied that there was any contract for the lease of the land to appellee for the year 1912, and the testimony in their behalf would have also warranted a finding to that effect. They contended that the contract with Bruce ended with the year 1911, that being a verbal contract for the lease of land, it could not last longer than the year 1911, and that the conversation that Yancey had with the appellee, in wMch he told him that he could go ahead under the contract with Cain until they disposed of the place, had reference to the lease of the land for the year 1911; that tMs conversation took place some time in February, 1911, and had reference to the rent for that year.
According to the testimony of Yancey, the conversation that he had with appellee in the fall of 1911 had reference to paying appellee for putting in the meadow. He says that he thought that'appellee at that time had “thrown up Ms claim of lease,.” and was asMng remuneration for Ms trouble and expense in putting in the meadow. Yancey stated that he did not know that appellee had been on the land weeding it out and cleaning it up in the spring of 1912.
In view of the controversy developed by the testimony as to whether Yancey had consented in November, 1911, for appellee to continue the contract for the year 1912, the' argument of Mr. Jones was prejudicial. The time for the taking of testimony had closed. It was then a matter for the recollection of the jury as to whether witness Bruce, while on the stand as a witness, had made the statement attributed to him by counsel in argument. It was disputed by the appellants. Appellants- contended that Bru-ce had made no such statement, and it was highly improper and prejudicial for the court to permit counsel to give his recollection of what the witness’s testimony was, and call upon the witness, during his argument, to vouch for the correctness of his recollection by asking the witness if that was not what he testified to, and receiving an affirmative answer from the witness. This method of conducting an argument would necessarily result in great prejudice to the opposite party, who, at the .time, had no opportunity to cross examine the witness on the matter about which he was being interrogated.
Even if counsel, in his argument, was not misstating the testimony, it would be giving the party he represented an undue advantage to have his statements, as he proceeded in the argument, corroborated by an affirmative and approving nod of the witness. Such method of argument is contrary to the order of procedure prescribed by our statute for the conduct of trials by jury, and should uever .be tolerated by the court. Kirby’s Digest, § 6196. Prejudice must necessarily result in such procedure, for it is tantamount to having a witness, after the testimony is closed, repeat material parts of his testimony without any opportunity afforded the opposite party to cross examine or challenge the accuracy of his statements.
For this error, the judgment must be reversed and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). Defendants ask for a reversal of the judgment because the court erred in the admission of evidence as to the plaintiff’s damages and because the court adopted the wrong theory as to the measure of damages. The particular instruction complained of ds instruction numbered 3, which reads as follows:
“If you should find that defendants sold plaintiff Klondyke strawberry plants, but delivered some other kind you should find for plaintiff. If lands set in these plants so bought and delivered were less valuable as a strawberry investment than if set to Klondyke plants, you should find for plaintiff the amount of such difference, considering the ordinary productive lifetime of the strawberry plant.”
This instruction must be construed with reference to the testimony upon which it was predicated, and, when so considered, it was erroneous and prejudicial to the rights of the defendant. It will be noted from the abstract of the testimony that the court tried the case on the theory that the measure of damages was the difference in value of the lease had it been set out in Klondyke plants, and what it was set out in the kind of plants actually grown on it. This was erroneous. It is true the measure of damages for the injury or destruction of trees on land is the difference in the market value of the land immediately before and immediately after the destruction of the trees. St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371. The reason given is that it requires several years to replace trees, and that it can only be done at considerable expense. Neither is the measure of damages the same as that fixed by the court for the destruction of an annual crop, which is the actual value of the crop at the time of its destruction. Railway Company v. Yarbrough, 56 Ark. 612. Strawberry plants are what are commonly called perennial plants. They do not begin to bear until the second year after they are set out and require cultivation for the first year. Their life as a commercial, productive plant is variously estimated at from four to seven years by the witnesses. Some of them say they begin to decline rapidly in production after the third year. The plaintiff at the time he made the purchase of the strawberry plants informed the defendants of the particular kind he desired, of the locality and character of the soil where they were to be planted and of his purpose in setting them out. There was a warranty by the defendant that the plants were of the kind sold. In such cases the purchaser is entitled to recover from the seller damages for the breach of warranty. The general rule is that only such damages may be recovered as are direct and certain, or which are capable of being ascertained with a reasonable degree of certainty, and which result directly from the breach, and which may reasonably be regarded as within the contemplation of the parties at the time of the sale as the probable consequences of the breach. 35 Cyc. 405-6.
In the case of the Railway Company v. Jones, 59 Ark. 105, the court held:
“The damage to a meadow destroyed by fire is measured by the cost of reseeding it and its rental value from the time of its destruction until it is restored.”
As we have already seen, strawberries are not like cotton and com, which are planted, grown and harvested annually, nor are they like orchards, which are required to be set out and cultivated for several years before they bear fruit and which with proper care and cultivation last for a great number of years. Strawberry plants become productive the second year after they are set out and are only profitable commercially for a few years.
The evidence on the part of the plaintiff tended to show that it could not he ascertained that the plants set out were not of the Klondyke variety until after they bore fruit. Therefore, in the application of the principles above announced, we hold that the measure of damages in the instant case is the difference between the value of the crop of strawberries of the kind that was produced during the season of 1911 and the crop which would have been produced under ordinary circumstances if the plants had been Klondyke plants as represented, together with the cost of resetting the plants, the cost of recultivating and the cost of the new plants, the plaintiff having already paid for the plants which he set out. The testimony shows that the first year the plants are set out they require cultivation hut are not productive, and for this reason the plaintiff is entitled to the cost of recultivation, as stated above. See Depew v. Peck Hdw. Co., 105 N. Y. Supp. 390. In that case it was held that where seed, if true to name, would result in a perennial crop; that is, one lasting from year to year, the measure of damages is the fair value of the crop lost, or the crop which would have been produced under ordinary circumstances, if the seed had been as represented, together with the cost of reseeding, the cost of recultivation and the cost of new seed sown. To the same' effect see 30 Am. & Eng. Enc. of Law, 219.
It follows, therefore, that for the errors in giving-instruction numbered 3, quoted above, and in admitting improper evidence on the measure of damages, the judgment will he reversed, and the cause remanded for a new trial. | [
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Smith, J.
Appellant, together with one Peter Glass, was indicted for burglary alleged to have been committed by entering the house of G. C. Jackson in the night time, with the burglarious intent of stealing $300 in money being in said house. There was a severance and appellant was convicted and sentenced to three years’ imprisonment in the penitentiary, and this appeal is prosecuted from that judgment. The appellant demurred to the indictment, and assigns as error, in the motion for a new trial, the court’s action in overruling the demurrer, but he points out no defect in it and we have observed none.
The point upon which appellant chiefly relies is that the evidence is insufficient to support the verdict, and it must be said that it is somewhat scant, but we think it legally sufficient to support the verdict. The evidence on the part of the State was to the effect that G. 0. Jackson, the' owner of the building alleged to have been broken into, was engaged in the grocery business in Fort Smith, and had two rooms connected with his store in which he lived with his wifé, and his sister-in-law lived with them and had been keeping company with the appellant, who was entirely familiar with the premises.
Jackson testified that on January 15 he lost between $235 and $240 in silver and bills, a small diamond ring and a gold watch, all of which were in a washstand drawer in the living room, and that he saw the money there a few minutes before he left the house at 7:40 p. m. to get a shave, and as he went out he saw the appellant standing across the street, talking with a companion, and he testified that no one could have gotten to the money without coming through the store or entering the back door, which he had locked before leaving, but which door was open when he returned. He also testified that appellant had been without employment for eight months prior to the loss of his money, although the proof shows he had done a few days’ work in the factory of a folding bed company. Jackson further testified that since the loss of bis money appellant had apparently had plenty of money and had been riding around to neighboring towns on the cars.
Mrs. Jackson testified that appellant’s companion who had been standing out on the street with him came in just after her husband left and bought a nickel’s worth of tobacco, and she was impressed that something was wrong and went into the back room and found the back door slightly open and the money gone. It was shown by a police officer, a jeweler who had sold Jackson the ring, and by appellant’s sister that appellant had given the missing ring to this sister, who lived in Sallisaw, Oklahoma. Appellant undertook to prove an alibi, and offered evidence in support of it, which, while not alto getker consistent, would kave keen sufficient for tkat purpose kad it been credited by tke jury. But it evidently was not believed by tke jury, and tkeir verdict concludes tkat question. If appellant took tke money and tke ring ke must necessarily kave committed tke offense of burglary in doing so, and tke unexplained possession of property recently stolen will warrant a conviction of burglary as well as of larceny where tke larceny is proved to kave occurred at tke time of tke breaking and entry of tke house. Gunter v. State, 79 Ark. 432.
Appellant excepted to various statements made by tke prosecuting attorney in his argument to tke jury, none of wkick would call for tke reversal of the-case, except tke statement tkat “if defendant was not guilty, tke court would kave taken this case from tke jury when tke defendant made tke motion.” Tkere is a supplemental certificate to tke bill of exceptions made by tke trial judge in wkick ke certifies tkat tke above quotation was erroneously copied into tke bill of exceptions, and tkat tke language quoted skould be stricken out as it was not used by tke prosecuting attorney. However tkat may be, tke record wkick skows tke use of tke language quoted also skows tkat appellant objected to it as an improper argument and tkat tke court sustained tkat objection. Tke language above quoted is very similar to tkat employed by tke prosecuting attorney in tke case of Thomas v. State, reported in 107 Ark. 469, 155 S. W. 1165, and for tke use of wkick tkat case was reversed. But there tke court did not sustain tke objection while here tke objection was sustained. In tke Thomas case, supra, it was said that tke language used would ordinarily be understood by jurors of average intelligence to mean an expression of opinion as to tke weight of tke evidence, and tkat, when understood in tkat light, tke failure of tke court to disapprove tke statement would be accepted as an approval of a statement of tke court’s view tkat tke evidence was of sufficient weight to sustain tke verdict and would call for tke reversal of tke case. In suck cases tke court skould leave no uncertainty in tke minds of the jury, and such action should he taken as would remove all doubt about the opinion entertained by the court, and, if this is not done, a reversal only can cure the error. But such action was taken here, if the language was in fact used.
Other questions are presented in the brief which we consider unnecessary to discuss, and the judgment of the court below is affirmed. | [
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Wood, J.,
(after stating the facts). The testimony on behalf of the appellees as to the value of the land taken for the right-of-way and the damages to the remainder by reason thereof was competent, and was sufficient here to sustain the verdict. See Fort Smith & Van Buren Dist. v. Scott, 103 Ark. 405.
Appellant complains that the instructions of the court assumed that the balance” of the tract of land was damaged by the taking of the right-of-way and the construction of the street railway, and that, inasmuch as this was controverted by the testimony in behalf of the appellant, the instructions were erroneous and prejudicial. When these instructions are taken in connection with the instructions given at the instance of appellant, we are of the opinion that they could not have misled the jury, and that, they were not conflicting, but submitted the question to the jury as to whether the remainder of the land had been damaged.
In Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, it was contended that an instruction assumed the existence of a fact which was in dispute, and we held that, the instruction standing alone might be open to that construction, but not so when read in connection with the other instructions, and that it would not be susceptible of the construction contended for by appellant.
So we say here, the instructions, when considered together, as they must be, are not contradictory, and they furnished the jury a correct guide as to the elements to be considered in determining the measure of damages in suits to condemn according to the rule that has been often announced by this court. Stuttgart & Rice Belt Ry. v. Kocourek, 101 Ark. 47, and cases there cited.
Judgment affirmed. | [
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OPINION OF
THE COURT.
This was an action of covenant, brought on a penal obligation for failure on the part of Flanakin to run a horserace. The plaintiff has made pro-fert of the obligation, and after setting out the terms of the race, states the condition, substantially as expressed in the obligation. It is also alleged that Lemmons was ready and offered to perform the condition on his part, and that Flanakin failed and refused to run the race according to the condition of the obligation. The allegation as to the failure to run the race is as follows, namely; “And it was then and there by the aforesaid parties further agreed, that should either of them fail to run agreeable to the said obligation, that the same for six cows and calves was to be in full force and virtue against the other.” This allegation conforms to the condition of tile obligation, and the defendant by his demurrer questions the right of the plaintiff to maintain this action. He urges that, agreeable to the literal reading of the obligation, the party who failed to comply with the condition would have the right of action against the other; in other words, that it is not in force against him who fails to run, but against him who complies with the condition. This unquestionably is the literal reading. For the plaintiff it is urged, that it was obviously a mistake in the scrivener, and that the court should disregard the words and construe the obligation according to what may be supposed to have been the intention of the parties; that is, that it should be in full force and virtue against him who failed to comply, contrary to the letter, that it “should be in full force and virtue against the other.” When there is ambiguity we will search out, if possible, the true intention and meaning of the. parties, and enforce the contract in conformity with that intention and meaning. 11 Coke, 34; 1 Term R. 313. But certainly we cannot adopt a construction in direct violation of the reading and letter of an obligation, nor can we say that, under certain circumstances, one party shall be liable to the penálty of an obligation when it is expressed that the other shall be. 1 Term R. 51, 52; 6 East, 51S; 9 East, 101. The least that can be said of this contract is, that it is absurd in its terms, and however much the court, for the purpose of doing justice to botn parties, might be disposed to rectify a mistake in a contract, entered into in good faith and for a full and valuable consideration, yet, we do not feel authorized or required to go the same length in support of one without a valuable consideration, absurd on its face, and immoral in its tendency. We think this action cannot be maintained, and therefore the demurrer must be sustained, and judgment entered for the defendant. Judgment accordingly. | [
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Frauenthal, J.
The defendant, James Gaston, was convicted of the crime of incest, and he has appealed to this court to obtain a reversal of the judgment of conviction. The testimony on the part of the State tended to prove that the defendant was a married man, and the father of Annie Martin, and that he did have carnal knowledge of his said daughter. The principal witness on behalf of the State was the daughter; and the testimony tended to prove that the defendant obtained the sexual intercourse with her without her consent and forcibly and against her will. It is urged that, in order to constitute the crime of incest, it is necessary that both parties should assent to the intercourse. In some jurisdictions it has been held that such consent is necessary .upon the theory that the crime is a joint one. Our statute (Kirby’s Digest, § 181.1) ■ provides that “persons marrying who are within the degrees of consanguinity within which marriages are declared by law to be incestuous or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest.” The crime of incest is committed by adultery when the accused party is married. The gravamen of the crime of incest is the unlawful carnal knowledge, and it is unlawful because of consanguinity. The object of the statute is to prohibit by punishment the sexual intercourse of those who are ■ related within the prescribed degrees. The intercourse is unlawful because of consanguinity, and without regard to the means by which the intercourse is accomplished. The intent of the male is equally criminal, and his act is equally unnatural, whether the female consents or not. The consent of the female can add nothing to the moral or legal turpitude of the male. The defendant is punished, not because of the act of another, but because of his own evil intent and criminal act. Mr. Bishop in his work on Statutory Grimes, § 660, says': “Where the crime consists of one’s unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not.” In 10 Am. & Eng. Enc. Law, 341, it is said: “The weight of authority seems to be to the effect that where incestuous fornication is shown to have been committed by defendant in full knowledge of the relationship between himself and the other participant the fact that he may have or did use force in the accomplishment of his object is entirely immaterial, and he may be convicted of the crime of incest notwithstanding.” We are of opinion that under our statute where the parties to the sexual intercourse are within the prohibited degrees the male may be convicted of, incest, even though he accomplished the act without consent of the female and against her will. Wharton on Criminal Law, § 1751; State v. Ellis, 74 Mo. 385; Mercer v. State, 17 Tex. App. 452; Porath v. State, 90 Wis. 527; People v. Barnes, 2 Idaho 161; Smith v. State, 108 Ala. 1; Norton v. State, 106 Ind. 163; Com. v. Bakeman, 131 Mass. 577.
It is urged that the testimony of the witness Annie Martin was not corroborated, and that the defendant can not be convicted of the crime of incest upon her uncorroborated testimony because she is necessarily an accomplice in the commission of-the crime. An accomplice has been defined to be one who unites in the'commission of a crime and who participates in the crim; nality of the act. The female upon whom the crime of rape is committed does not participate in the criminality of the act, and is therefore not an accomplice to that crime. And for the same reason the female with whom adulterous intercourse is obtained by force or against her will does not unite with the commission of the crime. She does not intentionally co-operate with or aid in the commission of the criminal act. She is free of guilt, and she is therefore not an accomplice. Her testimony does not require corroboration as a matter of law. Wharton on Criminal Ev., § 440; Bridges v. State, 113 N. W. 1048; Mullinix v. State, 26 S. W. 504; Whittaker v. Com., 95 Ky. 632.
It is earnestly contended by counsel for defendant that a prejudicial error was committed in the trial of the case by the improper remarks that were made by the attorney for the State in his closing argument to the jury. The defendant had introduced testimony tending to prove that the members of his family were' expecting money upon what they called an “Indian Claim” pending before a department of the United States, and that the prosecuting witness and her mother were anxious for defendant’s conviction, so that he could not be free to spend this money. He introduced at the trial several witnesses who testified to contradictory statements made by the prosecuting witness. His most important witness was Tom Delaney, who testified that he overheard a conversation between the prosecuting witness and her husband in an adjoining room, after the alleged commission of the offense charged against the defendant, in which she stated that her father did not commit the crime, and that she on that account was unwilling to give testimony against him, and that her husband in forcible language insisted with threats that she must g-ive the testimony against her father, even if it was false. In the course of his closing argument to the jury the prosecuting attorney said:
“The defendant has produced a mass of perjured testimony. Marshall Causey, Jim Appleby, Epp Potts and Tom Delaney, all are unworthy of belief. You take the witness Tom Delaney, and, bless your heart, Tom Delaney is the biggest liar in this whole country. I tell you, he is a professional witness. He testifies in all the criminal cases in this court. Absolutely, he would not know the truth if he met it in the road.”
Defendant at this point objected to the remarks, as being improper argument, and called on the prosecuting attorney to stop until he could make his objections, and appealed to the court, but the prosecutor refused to stop, and proceeded in a very loud tone of voice: “I tell you another very significant fact. Tom Delaney was here all last July term of court, when Gaston was being tried for raping this same daughter of his, and the defendant never put him on the stand as a witness. I tell you, gentlemen, this is a strong circumstance to show his testimony was made up to suit this occasion.”
At this point defendant called on the prosecuting attorney to stop until he could make his objections and exceptions, and appealed to the court to compel him to desist from this course of argument; but, before there was any ruling, the prosecutor proceeded in a very loud tone of voice, talking to the defendant’s attorney: “Yes, you object. You always object. You can’t get along without objecting; but I will tell you you can object till you bawl your head off. I am arguing this case, and I don’t want you to butt in.”
The defendant asked the court to rebuke the prosecuting attorney, and asked that he instruct the jury that his remarks were improper, and should not be considered by them. The court said: “I have already told the jury not to consider anything not in evidence, and I believe they understand it.” And: “They will try this case on the law and the evidence, and not on the argument of counsel.”
In the trial of the case there was no testimony tending to impeach any of these witnesses referred to by the prosecuting attorney on the ground that their general reputation for truth and morality was bad; there was no testimony tending to prove that the witness Delaney was a professional witness, and no testimony tending to show whether or not this witness had been present at a former trial of the defendant, or whether or not he bad testified at such trial. We have repeatedly called to the attention of the lower courts and their prosecuting officers that the due and proper administration of justice demands that the remarks of the attorneys before the jury should be kept within the bounds of legitimate argument; that no remarks should be made, especially by the prosecuting .attorney, which would tend to deprive the accused of a fair, unprejudiced and impartial trial. In the case of Holder v. State, 58 Ark. 473, we said: “A prosecuting attorney is a public official acting in a quasi judicial capacity.” His statements to a jury should and do carry great weight on account of his judicial position. In t'he case of Kansas City, F. S. & M. Rd. Co. v. Sokal, 61 Ark. 130, we said: “Material statements made by counsel of appellee outside of the evidence, which were likely to injure appellant and were excepted to -by him at the time and were not cured by the court, do constitute a good cause for reversal.” And in the same case it is said: “Ordinarily, an objection by opposing counsel, followed by a rebuke from the bench and an admonition from the presiding judge to the jury to disregard prejudicial statements, is sufficient to cure the prejudice; but instances sometimes occur in which it is not sufficient.” And in Vaughan v. State, 58 Ark. 353; speaking of improper remarks by counsel in argument, we said: “Whenever it occurs to us that any prejudice has most likely resulted therefrom, we shall not hesitate to reverse on that account.” The object and purpose of a judicial trial is to obtain a true determination based solely upon the evidence and the law. If therefore an undue advantage has been obtained by an improper argument which has worked such a prejudice to the losing party that if cannot be said that he has obtained a fair and impartial trial under the law and facts of t'he case, then an error has been committed in the trial which is prejudicial, and which should call for a reversal of the judgment arrived at in such a trial. No fixed and rigid test can be laid down by which to determine what is and what is not legitimate argument. The legitimacy of remarks of attorneys in • their argument to the jury must necessarily depend upon the peculiar circumstances of each case. Counsel have undoubtedly the right to criticise opposing witnesses where the testimony in the case shows contradicting facts or their interest in the result of the trial or the parties to the case; and mere expressions of opinion will not ordinarily be deemed prejudicial. But they have not the right to make statements of or argue relative formatters of fact about which'there has been no. evidence introduced in the trial of the case. And when it manifestly appears that such argument' has; worked such an.undue advantage to the. ppposirig-"party as to-deprive him of an impartial trial under the law- and evidfence of the case, it will be determined that such argument is a prejudicial error.
In the case at bar the prosecuting witness was the sole witness who testified to any incriminating act against the defendant. Her testimony was uncorroborated. The defendant introduced a witness who gave evidence tending to prove that the testimony of the prosecuting witness was false. The prosecuting attorney in his closing argument to the jury stated that this witness of defendant was a professional witness. That was a statement of a fact not supported by any testimony in the case, and not merely an expression of opinion. He further stated that this witness had been present at a former trial of the defendant relative to the same act, and that he had not been called as a witness' in that trial. There was no testimony in the case upon which to base these statements of alleged facts. This argument was highly improper and prejudicial. Upon objection being made thereto, the court told the jury that they should try the case on the law and the evidence,' and not on the argument of counsel. But the counsel had made statements which were not in the evidence; and, being made by the prosecuting officer as facts testified to in the case, the jury may have thought that the statements were a part of the evidence. The court should have gone further, and told the jury specifically that these statements of the prosecuting attorney were not evidence in the case, and that they should disregard them. We do not think that the statement of the court cured the prejudice of these remarks. The improper argument of counsel, we think, worked such a prejudice to the cause and defense of the prisoner that we cannot say that he has had a fair and impartial trial under the law and the evidence that was actually adduced in the case.
For 'this error the judgment is reversed, and the cause remanded for a new trial. | [
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Battle, J.
On the 20th day of April, 1907, Maude Lafon filed, in Craighead Chancery Court, Western District, a complaint against A. E. Gatlin and sureties on his bond as guardian of plaintiff during her minority, and alleged substantially as follows: That T. T. Gatlin died on the first day of August, 1896, leaving V. F. Gatlin, his widow, who afterwards married R. H. Altman, and seven children, one of whom was the defendant, A. E. Gatlin, and three others, were Burton Gatlin, Myrtle Gatlin and Maude Lafon, born Gatlin, the plaintiff, who were minors.
“That at the date of his death T. T. Gatlin owned south half of southwest quarter, northwest quarter, and 14 acres on the west side of northeast quarter of southwest quarter of section 17; northeast quarter of northeast quarter of 18; west half of southeast quarter and southeast quarter of northwest quarter, and 8 acres on the north side of northeast quarter of southwest quarter and 32 acres 011 the north side of southwest quarter of northwest quarter of section 20; southwest quarter of section 21; and south half of southwest quarter of section 28; all 'in township 15 north, range 5 east — 726 acres.
“That on August 28, 1896, thé widow, Y. E. Gatlin, became administratrix of the estate, and so continued until her marriage with Altman, when she made final settlement in the probate court, which was confirmed January II, 1897. That A. E. Gatlin, defendant, then became administrator, and later, July T2, 1898, A. E. Gatlin was appointed guardian of Maude Gatlin (now Eafon),-plaintiff, and Myrtle Gatlin, minors; that the other defendants, C. G. Gregson and J. T. Gibson, and Vinson, were securities upon his bond as guardian.
“That, during the administration of the widow, dower and homestead were assigned, final order being made April 14, 1897, setting apart southeast quarter of southwest quarter of section 17, and northeast quarter of northwest quarter of section 20, township 15 north, range 5 east, as the homestead of the widow and minors, Burton, Maude and Myrtle, and northeast quarter of southwest quarter, and southeast quarter of northwest quarter, and northwest quarter of southeast quarter of section 20 were set apart to the widow as dower.
' “That thereafter, while defendant Gatlin was acting as guardian, he, without right, ‘made a pretended trade with the said V. F. Altman whereby the said A. E. Gatlin attempted to surrender and release unto the said V. F. Altman all the interest of his said wards in and to the land set apart as their homestead, and attempted to take in lieu thereof from the said widow, V. F. Altman, northeast quarter of southwest quarter of section 20, and at the January term of the probate court for the year 1899, the said court on the 9th day of January, 1899, tempted to approve and confirm the said pretended trade.
“That thereafter the widow abandoned the homestead and released the same to the defendant A. E. Gatlin who, while acting as guardian of plaintiff, entered into possession of the homestead, and has since held it without accounting to plaintiff for rents and profits.
“That the pretended trade or release between the widow and defendant A. E. Gatlin was fraudulent for the reason that the homestead consisted of 80 acres, and the land given to the minors under the trade or release was but 40 acres, and that plaintiff Maude Gafon should have been credited by her guardian, A. E. Gatlin, with one-third o.f the rents and profits of the homestead up to January 13, 1902, the date of the death of Burton Gatlin, and that thereafter she should have been credited with one-half of the rents and profits. That the homestead as originally set off, 80 acres, had a rental value of $3.50 per acre; that none of the minors had resided on it since its alleged abandonment by the widow. That plaintiff was ready and willing to account for and be charged with rents and profits of northeast quarter of southwest quarter of section 20, and prayed that the settlements of A. E. Gatlin as guardian be restated, and that she have judgment against him for an amount found to be due; and that she have possession of an undivided one-half of the homestead until she arrived at the age of twenty-one years, and for other relief.-
“An amendment to the original complaint was filed, the same being similar to the original except that it more specifically alleges the items rendering it erroneous, fraudulent and necessary to restate the account of the guardian, A. E. Gatlin, as shown in the several settlements, and further stating that some land in section 28-15-5 had been sold by the guardian for $150,' which had not been accounted for in any settlement made by him; that land of the minor wards was sold to Robinson for $80, and not accounted for in the settlements.
“The answer admits the death of Gatlin, survival of the widow, and heirships alleged 'in the complaint; that V. E. Altman, widow, was appointed administratrix August 28, 1806; that she afterwards married Altman, filed her final settlement; which was approved January 11, 1897; that the defendant A. E. Gatlin then became administrator; that dower and homestead were assigned as alleged; denied that A. E. Gatlin, without power or authority, entered into the trade or made the release or surrendered any of the rights of his minors as alleged in the complaint; denied that the widow had abandoned her homestead rights; denied that any fraudulent or wrongful conduct on his part occurred, or that his settlements were erroneous or ■fraudulent; alleged that he became administrator and guardian solely on account of his regard and affection for the children and his interest in the estate; that he had undertaken to faithfully perform all his duties; and that he was equally desirous with the children that, if any mistake had occurred, it should be corrected; that all charges made by him against the minors were but a meagre compensation for the expense, trouble, annoyance and responsibility involved.”
(The above is a copy of appellant’s synopsis of the pleadings).
A master was appointed by the court to state an account between the parties, with leave to take proof.
The following were a part of the facts proved: T. T. Gatlin died on the first day of August, 1896, leaving heirs and children and widow, and seized and possessed of a homestead and other lands as stated in the pleadings. Three of his children, Burtoji Gatlin, Maude Lafon and Myrtle Gatlin were minors. Burton died on the 13th ¿ay of January, 1902, without issue; Maude was twenty years old in February, 1908, and Myrtle was eighteen years of age on the first day of April, 1908. A. E. Gatlin was appointed and qualified as guardian of Maude and Myrtle, and as such filed annual accounts in the probate court. Dower was assigned to the widow in the estate of her deceased husband.
It was also proved that A. E. Gatlin, as guardian of Maude and Myrtle Gatlin, attempted to exchange his wards’ interest in the homestead for the interest of V. F. Altman, the widow of T. T. Gatlin, deceased, in one tract of forty acres of land that had been assigned to her as dower, for and during the minority of the wards or either of them. This was evidenced by an instrument of writing, “by the terms thereof,” the record says, “said V. F. Altman, as widow of said T. T. Gatlin, releases to ■ A. E. Gatlin, as such guardian, and his said wards for and during minority of said wards, or the minority of either of them, the northeast quarter of the southwest quarter of section twenty, township fifteen north, range five east, and the said A. E. Gatlin, as such guardian, releases to said V. F. Altman, for and during her natural life, the entire homestead of said T. T. Gatlin as the same has heretofore been assigned and set apart to said V. F. Altman as widow, and the minor heirs of said T. T. Gatlin; and it being further provided in said contract that the said V. F. Altman shall during the period of her life pay all taxes assessed against said homestead, and the said A. E. Gatlin, as such guardian, shall, during the period of minority of said wards or either of them, pay the taxes upon said northeast quarter of the southwest quarter of section twenty in township fifteen north, range five east.” This exchange was submitted by the parties to the probate court, and was by it in all things confirmed and approved.
On the 29th day of May, 1900, V. F. Altman, in consideration of the sum of $700, conveyed to A. E. Gatlin all her right of dower and homestead in the entire estate of T. T. Gatlin, deceased. The deed was read as evidence in the hearing of the case.
The master, having heard the evidence adduced ¡by both parties, stated an account between them, and returned it into court. He treated the exchange of the minor’s interest in the homestead for an interest in other lands as void. He refused to allow an account for repairs, taxes and insurance filed by Gatlin with his deposition, he having already been allowed in his several annual settlements filed by him as guardian in the probate court a sum aggregating $54.84 for taxes, and $58-57 for repairs, which was allowed by the master in the account stated. He found the rental value of the homestead to be $200 per annum, repairs being made by the tenant, and charged the defendant, A. E. Gatlin, at that rate for the years 1898-9-1900, 1901, 1902, 1903, 1904, 1905, 1906 and 1907, and found that the amount owing to the plaintiff by the defendant A. E. Gatlin to be $1,030. Both ¡parties filed exceptions to his report.
The report of the master and exceptions to the same were presented to the chancery court, and heard upon the pleadings, depositions and exhibits, and the ¡court found:
That V. F. Altman, the widow of T. T. Gatlin, deceased, abandoned the homestead which had been set apart to her and the minor heirs of the deceased, and that such abandonment occurred on the 29th of May, 1900. That the master’s finding as to the rental value of the homestead is excessive, and that the same ought to be reduced to $175 per year, and that the report should be restated so as to charge Gatlin at that rate for the years 1900, 1901, 1902, 1903, 1904, 1905'and 1906, and by consent at the same rate for 1907 and 1908. That the master’s report should be restated so as to show a credit claimed by Gatlin of $542.64, same being amounts claimed by him for improvements and repairs, taxes and insurance up to date of April 21, 1908, which does not include $56 claimed for hauling manure. And the court found that upon a statement of account, according to its findings, the defendant Gatlin was indebted to plaintiff in the sum of. $751.75, and rendered judg ment against him in her favor for that amount. Both parties have appealed.
Appellant Gatlin insists that the exchange of his wards’ interest in the homestead for an interest in a tract of forty acres of land ought to be sustained; that such exchange on his part was a lease of his wards’ interest in the homestead. It does not so appear in the record. He, as guardian, released his wards’ interest in the homestead to Mrs. Altman for and during her natural life, in consideration of a release by her of a forty acres of land assigned to her as dower for and during the minority of his wards or either of them. The interest conveyed by the parties was for an indefinite period of time and as a whole, and was not conveyed as a compensation for use and occupation of land, but an interest for an interest, which is an exchange of property. Meyer v. Rousseau, 47 Ark. 460.
The Constitution of this State ordains: “If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof sháll vest in her during her natural life; provided, that if the owner leaves children, one or more, said child or children shall share with said.'widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age — each child’s rights to cease at twenty-one years of age- — and the shares to go to the younger children; and then all to go to the widow; and provided that said widow or children may reside on the homestead or not. And in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.” Const. 1874, art. 9, § 6. One of the objects of this provision of the Constitution is to “secure to the widow an'd orphans the family roof-tree as a fixed home during the widowhood or life of the widow and minority of the children.” It sets it apart as a home and sanctuary for the widow and minor children in which they can always find the shelter, comfort and security of a home, and, for the purpose of preventing other persons from invading it under a claim of right, guards and protects it against sales and .transfers of the land constituting it for the payment of the debts of the deceased owner, and forbids the partition of it between the widow and children. Garibaldi v. Jones, 48 Ark. 230; Kessinger v. Wilson, S3 Ark. 402; Sansom v. Harrell, 51 Ark. 429. It can not be lawfully exchanged for an interest in other lands to serve the same purpose; none other can do so.
In Merrill v. Harris, 65 Ark. 355, this court held that the interests of the minor in the homestead may be sold under an order of the proper probate court, where it is unavailable to him and his necessities demand the sale of it. Only in such cases did the court in that case justify the exercise of the power ■to sell.
The exchange made by the guardian and Mrs. Altman was null and void.
Mrs. Altman by the conveyance of the homestead to A. E. Gatlin, on the 29th day of May, 1900, abandoned her rights therein, and the same became vested in the minor children. Her rights in the same were personal, and could not be transferred. Garibaldi v. Jones, 48 Ark. 230; Gates v. Steele, 48 Ark. 539.
The right to surcharge and falsify the account of Gatlin, as guardian, is unquestioned. One of the grounds for doing so is the failure of the guardian to charge himself with proper amounts for rent of homestead and other property. The court in restating his accounts charged him in his account with plaintiff for rents of the homestead at the rate of $175 annually. After a careful reading of the evidence we find, according to the preponderance of the same, he'should be charged at the rate of $200 annually for the years 1898-1907, both inclusive. The court allowed Gatlin in his accounts as guardian $542.64 for improvements and repairs, taxes' and insurance. As to improvements and repairs this court said in Sparkman v. Roberts, 61 Ark. 27, 32: “Minors are not liable for permanent and valuable improvements placed on their homestead. They can not be improved out of their homesteads; nor can the occupants be lawfully charged an increased rent on account of their improvements. In the absence of a contract, the occupant should be allowed a reasonable compensation for necessary repairs, and charged with such rents for the premises as they would have yielded without the improvements. McCloy v. Arnett, 47 Ark. 456; Reynolds v. Reynolds, 55 Ark. 369.”
According to the rule stated, cross appellant, Lafon, should be charged for improvements and repairs, and credited with rents.
The decree of the chancery court is reversed as to rental value of homestead and improvements and repairs, and judgment for $751.75, and in other respects is affirmed; and the cause is remanded with directions to the court to restate the account between the parties and render judgment in accordance with this opinion. | [
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Hart, J.,
(after stating the facts). “Where a cause has proceeded to final adjudication without judgment of the court upon demurrer filed in same, the demurrer will be considered to have been waived.” Kiernan v. Blackwell, 27 Ark. 235. As far as the record discloses, the court was never called upon to rule upon the demurrer, and the cause may be said to have proceeded to final adjudication in the chancery court by consent of the parties.
The rule is well settled that it is only where the complaint discloses on its face the court’s total lack of jurisdiction that the defect can not be waived and can not be cured by consent, and may be raised for the first time in the appellate court. Conceding, without deciding, that the appellant had a right to have the cause transferred to the law court, he waived that right by voluntarily submitting to a trial of all the issues by the chancery court. Love v. Bryson, 57 Ark. 589; Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, and cases cited.
Under the facts set out in the statement of the case, the agreement entered into between the parties to the suit for the purpose of selling the insurance stock constituted a partnership. Culley v. Edwards, 44 Ark. 423; Buford v. Lewis, 87 Ark. 412; Rector v. Robins, 74 Ark. 437; Herman Kahn Co. v. Bowden, 80 Ark. 23.
In the case of Smith v. Hill, 13 Ark. 173, the court held: (quoting from syllabus) : “A partnership for the practice of law is legal, and, as in other partnerships, the act of one partner in the professional business is the act of all the partners. Every responsibility incident to other partnerships in general attaches to legal partnerships as well as corresponding rights.” In like manner the employment of the services of persons to sell the stock of insurance companies is a legitimate business, and a partnership may be formed for that purpose. Such firms are denominated in law non-trading partnerships, or partnerships in occupation. 1 Bates, Partnership, § 329.
Here appellant and appellee entered into such a partnership. They' agreed to share equally the profits and losses. They received a sum as compensation which depended upon the amount of sales of stock they made. , The expenses of conducting -the business were first to be deducted, and then the profits, if any, were to be divided equally between them. The word “commission” as used in the contract, evidently was intended to mean the compensation they were to receive for their services, just as the compensation paid to a firm of attorneys is usually called their fee. The $1 additional which the company agreed to pay appellant as a bonus was but an additional compensation for the extra exertion. In this, as well as in other partnerships, the members -must be loyal to each other. Good faith required that appellant should make known to appellee the fact that he was receiving e^ctra compensation, and, in the absence of an_ agreement to the contrary, the partnership having been entered into upon equal terms, each partner was entitled to receive an equal division of the profits made by the firm whether the contract was made in the name of the firm or in that of one of the individual members. This is so because, from their relationship, the partners are agents for the firm, and what is done by either in furtherance of the partnership business is regarded as the act of the firm. White v. Smith, 63 Ark. 513; Boqua v. Marshall, 88 Ark. 373.
The decree will be affirmed. | [
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Frauenthal, J.
The appellant instituted this action to recover the sum of $51 upon an account for work done and material furnished in 'building a foundation on a lot owned by appellee. The suit was brought in the court of a justice of the peace from whose judgment an appeal was taken to the circuit court. The case was there tried by a jury, who returned a verdict in favor of appellee. It appears from the evidence that appellee made a written contract with certain contractors to build a house for him on this lot according to certain plans and specifications and for an entire price. The contractors employed or entered into a contract with appellant to build the foundation. While the foundation was being built, a controversy arose between appellee and the principal contractors relative to the material that was being used therein. The principal contractors then refused to proceed further with the work and abandoned their contract to build the house. The testimony on the part of the appellant tended to prove that thereupon the appellee told him to proceed with the construction of the foundation, which he did. On the other hand, the testimony on the part of the appellee tended to prove that he directed that the material be removed from the lot, and that no further work be done on the foundation, and that he made no contract, either expressly or impliedly, with appellant for the construction of any portion of the foundation. The testimony tended further to prove that the appellee did not accept and did not use any part of the foundation, but on the contrary that a portion of the foundation was torn out and the material removed by appellant. The court gave instructions that were rather favorable to appellant, and he makes no complaint as to any of them; nor did he request any declaration of law which the court refused.
In effect, the court instructed the'jury that if appellee told the appellant to proceed with the construction of the foundation after the principal contractors had abandoned the contract, or if thereafter the appellant proceeded with the work with the full knowledge of appellee, and the appellee did not object thereto, then in either event the appellant was entitled to a recovery. One cannot be forced to pay for something he did not contract for, either expressly or impliedly. To constitute a contract upon which to base a liability, both parties must agree thereto. One cannot be held liable for services rendered with out his request or knowledge or against his express direction. Blake v. Scott, 92 Ark. 46; 9 Cyc. 252.
The question involved in this case was therefore one of fact; and that question was one within the peculiar province of the jury to decide. The jury decided the question of fact in favor of appellee. There is some substantial evidence to sustain the verdict, and therefore, under the repeated rulings of this court, it should not be disturbed.
Counsel for appellant urge that the lower court erred in refusing to permit the appellant and the witness, Langford, one of the principal contractors, to testify whether they understood from what took place between the parties that the appellee assumed the same contractual relation with appellant that had been borne by the principal contractors with him, and that appellant had released the principal contractors. When these questions were asked, the court told the witnesses not to give their conclusions, but to state the facts as to what occurred. In this ruling we think the court was correct. It has been repeatedly held by this court that as a general rule the witness must state only facts, and must not state the conclusions at which he has arrived from some state of facts.. Dickerson v. Johnson, 24 Ark. 251; Walker v. Fuller, 29 Ark. 448; Blevins v. Case, 66 Ark. 416; Little Rock T. & Elec. Co. v. Nelson, 66 Ark. 494; Benson v. Files, 70 Ark. 423.
It is also urged that the lower court erred in permitting the witness, McAfee, to testify to a conversation had by him with appellee in the absence of appellant. The conversation related to an inquiry made by appellee of the witness as to whether he would buy some of the stone used by appellant in the construction of the foundation. The witness testified that the appellee made such an inquiry of him', and he told him he did not wish to purchase the stone. We do not think that there was any prejudicial error in permitting the witness to give this testimony. The testimony related to an undisputed fact, and was not material to the issue involved’ in the case. The appellant testified that when the principal contractors abandoned their contract the appellee told him that he would help him dispose of the stone, to which appellant assented. So that the reason for the attempt to dispose of the material was in effect undisputed. If the testimony was incompetent, it was a harmless error to permit its introduction, because it related to an undisputed matter. Triplett v. Rugby Distilling Co., 66 Ark. 219; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588; Pace v. Crandell, 74 Ark. 417; Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74.
Furthermore, the testimony did not tend to corroborate the appellee on any material issue in the case, and was itself immaterial. The admission or exclusion -of immaterial testimony will not constitute a prejudicial error. Kelly v. Matthews, 5 Ark. 223; Merritt v. Hinton, 55 Ark. 12; Railway Company v. Fair Assoc., 55 Ark. 163.
The true issue upon which was based the right of the appellant to recover hgainst the appellee was submitted to the jury upon competent testimony and proper instructions. The jury found upon that issue against the appellant.
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Hart, J.
(after stating the facts). Counsel for the Federal Union Surety Company insist that its principal was a mutual fire insurance 'company organized under the laws of the State of Nebraska, and that, by virtue of the laws of that State, the articles of incorporation and the by-laws of the company, its policy holders became members of the company, and as such were not entitled to a return of the unearned premium.
In making this contention learned counsel have not duly considered the effect of our statutes on foreign mutual insurance companies.
It is settled that the Legislature may dictate the terms upon which such companies may do business in the State. Hartford Fire Insurance Co. v. State, 76 Ark. 303; State v. Lancashire Fire Ins. Co., 66 Ark. 466.
The General Assembly of the State of Arkansas in 1905, among other conditions imposed upon foreign mutual insurance companies as a prerequisite to their doing business in the State of Arkansas, provided as follows: “Section 4. All foreign mutual fire insurance companies authorized to do business in this State shall annually give a qualified indemnity bond to the State of Arkansas, with not less than three good and sufficient sureties, or with a surety, trust or indemnity company authorized to do- business in this State, as surety, to be approved by the Auditor of State, in the sum of twenty thousand dollars, conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond by virtue of any policy issued by any such company upon any property situated in the State, and said bond shall be in full force and effect during the lifetime of any policy issued by said company.”
A comparison of the provisions of the above section with those prescribing the conditions of the bond of stock insurance companies will show that in all essential particulars they are the same. Acts of Arkansas, 1905, p. 772, and Kirby’s Digest, § 4339-
The effect of this statute is to make the liabilities of foreign mutual insurance companies doing business in this State under policies issued by them here the same as those of stock fire insurance companies.
In the case of Minneapolis Fire & Marine Mutual Insurance Company v. Norman, 74 Ark. 190, the court held (quoting syllabus) : 1. “Where a foreign insurance company, authorized to insure property upon the assessment plan, gave the bond required of stock companies issuing standard policies, and pro ceeded to issue policies on the standard plan, instead of the assessment plan, it can not, after receiving the benefit of such contracts, invoke the doctrine of ultra vires to defeat an action brought against it on Such a contract.”
2. “A surety on the bond of a foreign mutual fire insurance company, executed to enable it to do a standard, and not a mutual, insurance business, can not plead as a defense that the policies issued by the company were ultra vires.”
The effect of this decision is to hold that the charter powers, by-laws and the laws of the State under which the company was organized do not determine the character of the insurance issued, but that it is settled by the terms of the policy and the laws of this State. This was evidently the view taken of our statute by the National Mutual Fire Insurance Company; for it issued policies in this State in the usual form of standard policies issued by stock insurance companies.
The policies provided that the insured incurred “no other or greater liability for premium or otherwise than that expressly provided in this policy.” This provision is inconsistent with the idea that the policy holder was a member of the company, and should be liable for losses sustained by other members.
The policy also contained a clause providing for the cancellation of the policy by the insured and the payment’to him of the unearned premium, and, as' above stated, it conformed in all other respects to the form of standard policies issued by stock insurance companies. The policies do not refer to the articles of incorporation or the by-laws of the company.
Therefore the right of the policy holder to a return of the unearned part of the premium on account of the insolvency of the insurer is the same in this case as in that of a stock company. The rule in such cases is well stated by the annotation to the case note to State v. Minnesota Title Insurance & Trust Company, 19 L. R. A. (N. S.) 639. It is as follows: “As to stock companies, the courts are in harmony in holding that the insured, upon the dissolution of the company, is a creditor to the amount of the unearned premiums.”
In Franzen v. Hutchinson, 94 Iowa 95, 62 N. W. 698, it was held that local policy holders of a foreign insurance company, which had made an assignment for creditors in a different State, could avail themselves of a clause in their policies author izing them to cancel the same and demand the unearned portions of premium which they had paid, and that they could enforce these demands against any property of the company within the State. See also 22 Cyc. 1405 and nóte 27.
2. The court erred in holding that the policy of W. H. Cajul was cancelled by operation of law at the time of the appointment of the receiver. As we have already seen, the insuranee company in question was a foreign corporation. The courts of this State had no authority to dissolve the corporation or wind up its business. The chancery court had only authority to appoint a receiver to collect and distribute its assets in this State to the creditors. Culver Lumber & Manufacturing Co. v. Culver, 81 Ark. 102. There was no adjudication of insolvency, and no decree dissolving the corporation in the present case. Moreover, no order of court had been made cancelling the policy of Cajul. As we have already held, the act of 1905 made the insurance company in effect a stock company, as far as the Arkansas policies are concerned, and the insurance contracts were not terminated by the appointment of the receiver. Insurance Commissioner v. People’s Fire Insurance Co., 44 Atl. 82, 68 N. H. 51. At the time Cajul’s property was destroyed by fire his policy had not Ibeen ordered cancelled, and his claim was provable against the estate of the insurance company. Hence the Federal Union Surety Company was liable therefor.
3. Mrs. M. B. Evans filed an intervention based upon a policy for $1,000 issued by the National Mutual Fire Insurance Company, dated May 21, 1907, on a certain hotel near Rogers, Arkansas, which was afterwards destroyed by fire. ' The chancellor found in favor of Mrs. Evans for the face of her policy, and it is conceded by counsel that the only question raised by the appeal is whether or not the finding of the chancellor that said insurance company did, at the time the policy was issued, have notice of the fact that other policies of insurance had been previously issued on said property is against the preponderance of the evidence; for it is conceded that, if McLeod had notice of the other insurance, Mrs. Evans is entitled to recover. Mrs. Evans testified that at the time she applied for the insurance in question she informed McLeod, the agent of the company, that she had a policy for $1,000 in the Citizen’s Fire Insurance Company. McLeod denies that she gave him this information, but says she told him that she had no other insurance.
T. R. Smallwood testified that he went with Guy E. Thompson to the office of McLeod for the purpose of adjusting the loss of Mrs. Evans, and that, while there, Mrs. Evans stated to McLeod that she never gave him any notice of other insurance, and that McLeod stated to her that she positively did not give any notice.
Thompson relates the conversation in this way. He said that McLeod stated to her that he had no knowledge of the prior insurance, and his recollection is that she made no reply at all. It appears that soon afterwards Mrs. Evans left ihe office for the purpose of consulting with friends as to whether she should sign a non-waiver agreement which had been presented her in McLeod’s office. It will be remembered that the question is whether or not Mrs. Evans gave McLeod notice of the prior insurance at the time she applied to him for the policy. Mrs. Evans claims she gave him such notice and McLeod denies it. Smallwood attempted to corroborate McLeod by testifying that Mrs. Evans admitted at McLeod’s office that she had not given him notice of the prior insurance. In this, however, he is contradicted by Thompson, who stated that she made no reply to McLeod when he stated that she had not given him ■the notice. Under the circumstances, her failure to reply might have been considered of no probative force against her. She was at the same time being pressed to sign.a non-waiver agreement, and no doubt thought it prudent to say nothing until she had consulted with friends, which the evidence shows that she did at once. Other circumstances in connection with the matter tended to corroborate her testimony, and, everything considered, we are of the opinion that the finding of the chancellor is not against the weight of the evidence..
4. The record shows that the Federal Union Surety Company signed each of the bonds, and that each bond was for $20,000. It further shows that the liabilities that accrued for any one year did not exceed the sum of $20,000. Therefore no prejudice can result to the surety company from the failure of the chancellor to segregate the amounts found to be due on the several bonds, and it is well settled that this court only reverses for errors that are prejudicial to the rights of the appellant.
Opinion delivered July 11, 1910.
5. The chancellor was of the opinion that the Federal Union Surety Company should pay the fees allowed the receiver and his attorneys, and so provided in the decree. This was error. The fees allowed them in cases like this should be taxed and paid out of the fund collected and distributed by the receiver. The costs which a successful litigant may recover do not include fees allowed to a receiver and to his attorneys. Bradshaw v. Bank of Little Rock, 76 Ark. 501.
The question whether the claimants of fire losses were entitled to attorney’s fees under the act of March 29, ■ 1905, at p. 308, is not before the court, for the reason that no claim under this act was made in the court below.
We find that the court erred in not allowing the claim of W. H. Cajul, and in -taxing the fees of the receiver and his attorneys against the Federal Union Surety Company, and in that respect the decree is reversed, and the cause remanded with directions to the chancellor to enter a decree in accordance with this opinion.
In all other respects the decree is affirmed. | [
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McCulloch, C. J.
Appellant was prosecuted before a justice of the peace of Sebastian County, on information filed by the deputy prosecuting attorney, for the offense of obstructing or resisting an officer in the service of process. She was convicted, and appealed to the circuit court, where she was tried and again convicted, her punishment being fixed at a fine of $50, which is the minimum prescribed by the statute.
The form of the writ which the officer was executing when resisted is not set forth in the bill of exceptions, but the witnesses testified, without objection, that it was a writ issued by the mayor of the incorporated town of Hartford, Arkansas, to the marshal directing him to search the house of Lem Appling appellant’s husband, for intoxicating liquors and to seize the liquors. The witnesses did not testify very clearly about the form of the writ, but speak of it as a search warrant or a seizure warrant; but it is fairly inferable from the testimony that it was an order issued by the mayor directing the officer to search the house for liquor, and to seize the liquor when found. No question was raised on this point, but it is insisted that, as the evidence shows that the writ was issued without an affidavit being filed, the writ was therefore void, and no offense was committed in resisting or obstructing the officer in serving it.
This question has given us no little concern, but after careful consideration we have reached the conclusion that, in the absence of an affidavit, a writ of the kind, regular on its face, is sufficient to protect the officer to whom it is directed, and an individual can not bid defiance to the writ and obstruct its execution without subjecting himself to criminal prosecution under the statute. In reaching this conclusion we are greatly aided by a very satisfactory opinion of the Supreme Court of New Hampshire. State v. Weed, 21 N. H. 262. The authorities are fully collected in that opinion, and the subject is exhaustively treated. The court in that case said: “The general principle, however, we hold to be quite clear: that where the process or warrant is regular and legal in its frame, bearing upon its face all the legal requisites to make it perfect in form, and, so far as can be discovered from its inspection, in substance also, and it appears to have been issued by a court or magistrate having jurisdiction of the subject-matter, and of the person of the respondent, the officer is to be protected in the service, notwithstanding any error or irregularity in the previous issuing of the same, or any imposition practiced upon the court in obtaining it; and that the party resisting the officer is liable;” -citing the following cases: Savacool v. Boughton, 5 Wend. 170; Rogers v. Mulliner, 6 Wend. 597; Horton v. Hendershot, 1 Hill (N. Y.) 118; Fox v. Wood, 1 Rawle 143; Jones v. Hughes, 5 Serg. & Rawle, 299; Paul v. Van Kirk, 6 Binn. 103; Sturbridge v. Winslow, 21 Pick. 83; Wright v. Gould, 1 Wright 709; Brother v. Cannon, 1 Scam. 200; Robinson v. Harlan, 1 Scam. 237; State v. Curtis, 1 Hayw. (N. C.) 471; Foster v. Gault, 2 McMullan (S. C.) 335.
In Sandford v. Nichols, 13 Mass. 286, Chief Justice Parker of the Supreme Judicial Court of Massachusetts, said: “We think that the defendants could have justified the acts complained of by showing a regular warrant from a magistrate having jurisdiction over the subject, without showing that it was founded upon a complaint under oath. It will not do to require of executirm officers, -before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the. execution of legal process, as officers so situated would be necessarily obliged to judge for themselves, and would often judge wrong as to the lawfulness of the authority under which they are required to act. It is a general and known principle that executive officers, obliged by law to serve legal writs and process, are protected in the rightful discharge of their duty if those precepts are sufficient in point of form and issue from a court or magistrate having jurisdiction of the subject-matter.”
In People v. Warren, 5 Hill (N. Y.) 440, it was held that “a ministerial officer is protected in the execution of process regular and legal upon its face, though he has knowledge of facts rendering it void for want of jurisdiction.”
It is also insisted that the judgment should be reversed because the evidence fails to show that the officer, when resisted, was serving process within the corporate limits of the town of Hartford, neither the mayor who issued the writ nor the marshal who executed it having jurisdiction beyond those limits. It is true that nowhere in the testimony is it directly stated by a witness that the house of Lem Appling was situated in the town. The witnesses all relate the circumstances of the marshal and posse going to Appling’s house to search for and seize contraband liquors. They all lived at Hartford, and speak of going “around to Appling’s house,” or “down to Appling’s house” to serve the writ. The marshal testified in the case, and told about standing on the street corner near a certain brick building talking to the mayor, when a man came along and told them that a dray-load of liquor was then being unloaded “down to Appling’s house,” whereupon the mayor went upstairs and issued the warrant, and he (witness) summoned two others, a deputy sheriff and a constable, to go with him, and they “went down to Appling’s residence” to search' for the liquor. The evidence showed that appellant’s acts of obstructing the officers occurred at Appling’s residence. Another witness testified as to the occurrence at Appling’s house, and spoke of “coming along the street” when he heard what Mrs. Appling said to the officers. Numerous other witnesses introduced by each party testified about living in Hartford and being present when the officers raided Appling’s house. Appellant testified herself about what occurred there at the house, but said nothing about the situation of the premises. She claimed that she did not resist the officers, but that on the contrary she told them where the liquor could be found in the house. It seems to have been taken for granted by all the parties that the Appling house was in the town, though the prosecuting attorney took pains to' show directly by witnesses that the town of Hartford was in the Greenwood District of Sebastian County. No instructions were asked on that point.'
We think the judgment should not be reversed on this ground. The authorities seem to agree that a presumption should be indulged as to the regularity and validity of official acts. Wharton, Crim. Ev., § § 833, 835; Putman v. State, 49 Ark. 449; State v. Freeman, 8 Ia. 428.
This presumption is not to be extended so as to cover substantive, independent facts essential to establish an issue. “The true principle intended to be asserted by this rule seems to be,” says Mr. Best in his work oh Evidence, § 300, “that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them inoperative; and, with this view, where there is general evidence of facts having been legally and regularly done, to dispense with proof of circum stances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy.” Now, when the rule stated by Mr. Best is applied to the facts proved in this case, we think the evidence is sufficient. The witnesses testified in general terms as to the form and substance of the writ, and the writ itself was not introduced, no objection being made to proving it in this way. It must be taken as established that the writ was regular in form, and commanded the officers to search for liquors in Appling’s house in the town of Hartford, and to'seize the same when found. The witnesses, including appellant herself, testified about the marshal serving the writ in the regular way, the only dispute being whether appellant resisted its execution. ■ No violence is done to the presumption of innocence in favor of the accused by holding that under these circumstances the jury were warranted in finding that the officer was not attempting to serve a warrant beyond the limits of his territorial jurisdiction. The only evidence offered by appellant was to the effect that she did not obstruct the 'execution of the writ, but on the contrary yielded to it. There is a sharp conflict as to whether or, not appellant obstructed the officers in executing the writ, and there is also a sharp conflict as to whether the alleged acts of resistance on the part of appellant occurred before or after the liquor was found by the officers and seized. The court submitted the question to the jury, and instructed them to find appellant not guilty of the charge if they believed from the evidence “that the search had been completed at the time the altercation happened between the officers and defendant.” We conclude that there was evidence sufficient to warrant a finding that while the officers were executing the writ appellant resisted them and obstructed their efforts to serve it.
One of the officers testified that when the marshal informed her of the writ and told her he had come to seize the liquors, she said to them that they could not go in the house, and that •she swore at them, called them vile names and threatened to get a gun and kill all of them. Afterwards, while the marshal had gone to get a dray to haul off the liquors, she insisted on her son being allowed to go in the house, and assaulted one of the officers who attempted' to prevent the boy from entering the house.
Error of the court is assigned in refusing to give the following instruction at appellant’s request: “4. The mere stating by defendant that the officers could not search the house, unaccompanied by any overt act or threat by her, would not be a violation of the law; and if you should find that this was all that she did, you will acquit.”
This instruction is incorrect, and was properly refused. It would not do to hold that one who stands in the way and refuses to permit an officer to execute process is guiltless of obstructing the officer. Such refusal is of itself an obstruction, for the officer may desist in order to avoid violence or bloodshed and the service of process would be thus hindered. It is the purpose of the statute to prevent this. The statute is broad, and covers any resistance or obstruction to an officer in the execution of process. If appellant stood on the threshold of the house and refused to permit the officer to enter for the purpose of executing the writ, her attitude was of itself an obstruction and resistance, and no further overt act was necessary to complete the offense. Williams v. State, 70 Ark. 393.
We are of the opinion that there is no error in the record. So the judgment is affirmed.
Wood and Hart, JJ., dissenting. | [
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Battle, J.
The Bank of Clarksville brought an action against Clarksville Cumber Company, alleging that it was a corporation organized under the laws of. Arkansas, and that the defendant was a partnership composed of Bluff City Cumber Company, a corporation, J. F. Rutherford, D. T. Reynolds and others, and from 1906 until September, 1909, was engaged in buying and selling lumber and • building material in the town of Clarksville, in this State; that soon after defendant began business, as alleged above, it opened an account with the plaintiff, and from time to time borrowed sums of money from it until the 5th day of October, 1907, when it executed its two promissory notes to plaintiff for the sum of $500 each, due and payable, respectively, the 5th and 30th days of January, 1908, and bearing ten per centum per annum interest from maturity until paid. The prayer of the complaint was for $1,000 and interest.
To this complaint Rutherford and Bluff City Cumber Company separately answered; and denied the foregoing allegations.
E. O. Strong and Dwight Strong, partners doing business under the firm name and style of E. O. Strong & Son, brought an action against the same parties, and made the same allegations as to the Clarksville Cumber Company as contained in the complaint of the Bank of Clarksville, and alleged that they became indebted to them in the sum of $964.43 as principal, for lumber material purchased at various times, as evi denced by two notes for $250 each, dated 8th day of November, 1907, payable, respectively, the ,5th and 20th days of January,; 1908, by a note for $248.62, dated November 8, 1907, and due February 5, 1908, by a note for $215.81, dated April 20, 1908, and due sixty days after date, all of which notes bear ten per cent, per annum interest from date until paid. The prayer of this complaint was for $946.43 and interest.
The defendants, J. F. Rutherford and Bluff City Lumbei Company, answered and denied the allegations of the complaint of E. O. Strong & Son.
It being conceded by the parties in these actions that the only issue therein was whether or not the defendants were liable as partners, the actions were tried together, by consent, upon that issue in a trial by a- jury, with directions to' them to find for or against the defendants in each case, which was done, and a verdict was returned in one case in favor of Bank of Clarksville and J. F. Rutherford and against Bluff City Lumber Company, and a judgment was accordingly rendered, and a verdict was returned in the other case in favor of E. O. Strong & Son and • against Rutherford and Bluff City Lumber Company, and a judgment was rendered upon the verdict. The Bluff City Lumber Company appealed from the judgment against it in both cases, and Rutherford from the judgment’against him in the latter.
Was the evidence adduced in the trial of the two actions sufficient to sustain the verdicts of the-jury?
The Bluff City Lumber Company was a corporation engaged in the sale of lumber. J. B. York, Robert York, M. F. Rutherford and J. F. Rutherford were its principal stockholders. Some time in 1905 or 1906 D. F. Reynolds, undertook to establish a lumber yard and a business in lumber at Clarksville, in this State. Reynolds had little money, and needed help. He endeavored to enlist J. F. Rutherford, one of the’ Yorks, and one Samstag, another stockholder of the Bluff City Lumber Company. Reynolds contributed $1,000 to the enterprise. That much of an interest was acquired — he was the owner. The negotiation for the promotion of a company seems .to have drifted from the stockholders to the corporation itself. In a short time the company was in progress. It had assumed the. name of its locality — Clarksville Lumber Company. Reynolds; was -representing Bluff City Lumber Company as maintaining the business. On the faith of such representation debts were contracted, the debts sued on in these cases being a part of the-rh. The Bluff City Lumber Company apparently accepted the proposition to' enter into the proposed partnership by taking joint control with Reynolds of the business;, receiving at its principal place of business at Pine Bluff, Arkansas, from the Clarksville Lúmber Company daily reports of its business and “a trial balance” at the end of each month, and furnishing the new company with .all necessary stationery, such as letter heads, envelopes, books, etc. There is no evidence that Reynolds ever parted with his interest in the business. On the 5th day of April, 1907, the Bluff City Lumber Company disposed of its interest by executing the following instrument of writing:
“This agreement entered into at Pine Bluff, Arkansas, the 5th day of April, 1907, by and between the .Bluff City Lumber Company, a corporation, party of the first part, and D. T. Reynolds, E. T, Reynolds and A. D. Reynolds, parties of the second part.
“Witnesseth That, whereas, the Clarkstille Lumber Compariy is now indebted to the party of the first part in the sum of fourteen thousand nine hundred and fourteen dollars and ninety-six cents, as is evidenced by their twenty-five promissory notes as follows: * * * All of said notes bearing interest from date until paid at the rate of eight per cent, per annum. That, whereas, the party of the first part has this day agreed to .sell to the parties of the second part the entire business known and now conducted under the firm name of Clarksville Lumber Company, at Clarksville, Johnson County, Arkansas, in consideration of the payment of the above indebtedness upon the following terms, * * * with interest thereon at the rate of eight per cent, per annum from the respective dates of said notes until paid.
“Now, therefore, the said party of the first part does hereby agree, upon the payment of the named amounts, to execute a bill of sale of the said Clarksville Lumber Company, including the stock of lumber on hand, all buildings and machinery, tool.s, appliances, accounts, dioses in action and other evidénce of indebtedness. It is, however, understood and agreed that the parties of the second part shall execute to the parties of the first part a proper deed of trust conveying the above named property and also a farm consisting of one hundred and fourteen acres of land, situated along the east side of the town of Clarksville, as security for the payment of the notes herein named. Upon payment of the amounts herein specified, with interest, said deed of trust is to ¡be satisfied and surrendered.
“It is also understood and agreed that, so far as the profits arising from conducting the business of the said Clarksville Lumber Company are concerned, said business shall be held to belong to the said parties of the second part from this day,- and such profits shall be theirs, subject to the payment, however, of the above named notes.
“Bluff City Lumber Company.”
How did it acquire the interest in the property it undertook to sell? There is no evidence that it purchased it. The jury might have inferred that he acquired it through a course of partnership dealings. This is supported by the use of the following language in the instrument: “The entire business known and now conducted under the firm name of Clarksville Lumber Company, at Clarksville, Johnson County, Arkansas,” thereby impliedly acknowledging that the business was a partnership, and it was a partner. After this sale to the Reynoldses the Clarksville Lumber Company furnished its own stationery, and printed upon its letter heads the names of those composing it, and ceased to furnish the Bluff City Lumber Company with daily reports of its business and monthly balance sheets, although the Reynoldses still remained greatly indebted to it. These facts, although by no means satisfactory, furnish some evidence to sustain the verdict against Bluff City Lumber Company. It was not sufficient, however, to sustain the verdict against Rutherford. He was not connected with the Clarksville Lumber Company except by his relation of stockholder and officer to the Bluff City Lumber Company.
, But it is said that it was beyond the power of Bluff City Lumber Company to form a partnership with individuals. The contracts with the appellees, Bank of Clarksville and E. O. Strong & Son, have been performed 'on their part, and were the transactions of such business for which the Bluff City .Lumber Company was created, and was presumably for its benefit, as it enabled it to dispose of a part or much of its goods. Under such circumstances the corporation is liable for • the contracts. Cleveland Paper Co. v. Courier Co., 67 Mich. 152, 158; I Clark & Marshall on Private Corporations, § 185, sub. d. and cases cited.
It is said that the notes sued on were executed after the partnership was dissolved. But they were renewals of other notes and for an indebtedness created before the dissolution. The creditors had dealings with the old firm, and had no notice of .the dissolution before the indebtedness sued for was incurred, and hence were not affected by the dissolution. Rector v. Robins, 74 Ark. 437.
The court refused to instruct the jury as follows at the request of the defendant:
“XI. You are instructed that when the deed of trust introduced m evidence was executed and filed for record, conveying the property of the Clarksville Lumber Company and the. real estate of the defendants, D. T., A. D. and E. T. Reynolds, to secure the indebtedness of the Bluff City Lumber Company, the filing of the said deed of trust was notice of its contents to every one, and the plaintiffs cannot plead ignorance of its contents.”
The appellants contend that the trial court erred in refusing to so instruct; but it did not. The record of a deed is only constructive notice of that for which it is required. As it is not required to give notice of the dissolution of partnership, it does not subserve that purpose. Kirby’s Dig., § 762.
Judgment in both cases against Bluff City Lumber Company is affirmed; and the judgment against Rutherford is reversed, and the action instituted by E. O. Strong & Son is dismissed as to him. | [
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Wood, J.,
(after stating the facts). 1. The appellant contends that the Columbia Circuit Court had no jurisdiction of the subject-matter as to the timber cut from the land in Nevada County upon the authority of section 6060 of Kirby’s Digest and Jacks v. Moore, 33 Ark. 31. Section 6060 of Kirby’s Digest provides: “Actions for the following causes must be brought in the county in which the subject of the action or some part thereof is situated.
# 5j< ?{c 5¡< íjí íjí iK 5}í H* *
“Subdiv. 4: For an injury to real property.”
In Jacks v. Moore, supra, the complaint alleged “that the defendant entered upon the following land” (describing it) “and cut the timber growing thereon, and otherwise injured the same, to the damage of the plaintiff $200.”
That was a suit for trespass upon the land and injury to it. But such is not the nature of this suit. It is simply a suit for the value of timber, which appellee alleged belonged to him, and which his agent, appellant, had converted to his own use. There is no allegation that the land itself was injured or damaged, or tllat appellant had trespassed thereon in order to convert the timber. The Columbia Circuit Court had jurisdiction, under the allegations of this complaint, to render judgment for the value of timber, if any, that was converted by appellant from the land in Nevada County.
. 2. The court erred in giving prayer number 2 of appellee and 'in refusing prayer number 2 of appellant. Prayer number 2 of appellee was abstract. There was no testimony tending to prove that appellant converted to his own use any of the timber of appellee on the land in Nevada County. No evidence that appellant entered upon these lands himself and cut the timber therefrom, nor that he authorized any one else to do so. There is no evidence that he sold the timber on these lands. • There is no affirmative tortious act shown on the part of appellant, by which the timber on the land in Nevada County was lost to appellee. That would be necessary before appellant could be held liable as for conversion.
“Trover does not lie by a principal against his agent, unless he has converted the property of his principal to his own use or disposed of it contrary to his instructions. Trover does not lie for an omission of duty by the agent, though the property is lost by his negligence; nor does it lie where, though wanting in good faith, he has acted within the general scope of his powers.” McMorris v. Simpson, 21 Wend. 610, and other cases cited in appellant’s brief.
However, since all forms of action have been abolished in this State, it would be wholly immaterial whether the loss of appellee’s timber was caused by some tortious act committed by appellant, or by some duty on his part with reference thereto which he omitted or neglected to perform. In either case, upon proper allegations and proof of the facts set up, appellant would be liable. Fordyce v. Nix, 58 Ark. 136. But here appellee has set up affirmative and positive acts on the part of appellant constituting conversion, and he has failed to prove any of these acts. It is not charged in the complaint that the timber of appellee in Nevada County was lost to appellee by reason of the negligence of appellant in failing to notify appellee, that such timber had been cut. It is not alleged that such notice would have been effectual in preventing the loss of the timber. Furthermore, even if such allegations had been made, or the complaint be treated as so amended, still there is no evidence in the record to warrant a finding that appellee lost the timber in Nevada.County because appellant failed to notify him that such timber had been removed from the land. There is an allegation that it was the duty of appellant to report depredations upon the timber, and that the cutting and conversion of the timber aforesaid was known to the appellant, and that he never reported same to appellee. But this allegation, when proved, would only go to establish negligence on the part of the appellant. The presumption would be that the principal had suffered at least nominal damages from such negligence. But the burden would still be upon -the appellee, the principal, to show that 'he sustained actual damages from such negligence, and the amount that it would require to compensate him for such damages, before he could recover for such. Tiffany on Agency, p. 398; I Clark & Skyles on Agency, 398.
The evidence entirely fails to establish that appellee sustained any actual damage by reason of appellant’s negligence, if he was- negligent, in failing to notify appellee of depredations upon his timber. Before appellee could recover for the value of 'the timber cut in Nevada ‘County, it was incumbent upon him to prove that he lost the timber by reason of the failure of appellant to notify him of the cutting and removal of such t-im ber. Suppose appellee had notice of the depredations upon his timber through some other source than appellant. Then the failure of appellant to give him notice could not have been the .cause of any actual damage to appellee. To justify actual or compensatory damages, the loss sustained must be the direct and proximate result of the negligence alleged. Instruction number 4 given at appellant’s request has reference to a failure on the part of appellant to prevent a trespass upon the lands, and not to his failure to notify appellee after the trespass had been committed. It does not cover the same ground as instruction number 2, supra, given at request of appellee. The instruction under consideration allows appellee to recover of appellant “unless appellant notified appellee of said cutting and removal.” The instruction was prejudicial. The error in giving it is not waived by appellant or cured by any other instruction. It follows also that the court erred in not giving appellant’s prayer for instruction number 2.
3. The statute of limitations, under the evidence, did not bar appellee of any right he might have had to recover. There was no error in giving appellee’s prayer number 3.
4. As it is impossible for us to determine from the evidence here what amount of the verdict represents the timber from the lands in Nevada County, we are unable to eliminate the error of the ruling of the court upon the instructions indicated.
The cause therefore, for this error, must be reversed and remanded for new trial.
Instruction number 4, given at appellant’s request, was as follows:
“4. You are instructed that if you find from the evidence that the timber was cut on any of the lands described in plaintiffs complaint,_ and without the authority of Emerson, then you are instructed that plaintiff cannot recover for such timber so cut unless you further find from the evidence that it was Emerson’s duty to look after said land and prevent trespasses upon the same and that he was negligent in the performance of his duty..”
Appellee’s prayer number 3 was as follows: “3. The court instructs the jury that upon a plea of the statute of limitations filed herein they will find for the plaintiff.” | [
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Battle, J.
Macey Easater brought an action against Henry Wade and Eliza Howell to recover possession of certain lands, claiming to have purchased the same from Isaac Easater on the nth day of January, 1908.
The defendants answered as follows: “Defendants, further answering,, say that on the .. day of ...., 189.., defendant Henry Wade and Henry Howell purchased the above land from Sarah A. Smith, and executed to said Sarah A. Smith a mortgage on same for $450, the balance of the purchase money, said mortgage debt being due and payable on the .. day of ...., 190... The defendant Henry Wade and Henry Ho well’ were unable to pay off said mortgage, and Sarah A. Smith became the purchaser thereof and took title in herself.
The defendant Wade, procured one Isaac Easater to redeem said land and take deed to same in his own name, with the understanding, and by express agreement, that his mother, the mother-in-law of Wade, and the grandmother of plaintiff, Macey Easater, should have and use said land as a home, so long as she should live, and that defendant Wade should have the right, and be allowed, at any time before the death of the said defendant Eliza Howell, to pay to said Isaac Easater the amount expended in redemption of said land, and upon said payment said Isaac Lasater agreed to and was to deed said land to said Wade. In furtherance of said agreement said Isaac Easater redeemed said land, or purchased the same, from Sarah A. Smith, and took the deed in his own name.
“Defendants further say that they deposited in the Citizens’ Bank of Van Burén, to the credit of Isaac Basater, the yearly interest on the money expended by him on said lands, and have now on hand and now tender in payment the whole amount due said Isaac Basater, and have frequently notified him, Basater, of said fact.
“Defendants, further answering, say that on the .. day of ...., 190.., with full knowledge of said agreement before mentioned and in utter disregard of the same, permitted said land to be returned as delinquent for taxes for the year 190.., and allowed the same to be sold for said taxes and afterwards redeemed the same from Bewis Bryan, taking title in his own name. That afterwards on the .. day of ...., 1907, said Isaac Basater, with intent to defraud these defendants, sold and conveyed by warranty deed said land in controversy to this plaintiff, Macey Basater, he, Macey Basater, having full knowledge of the agreement entered into between his uncles, Isaac Basater, Henry Wade and his grandmother, Eliza Howell, and being fully apprised of the right by which said Isaac Basater held said land.”
They asked to be allowed to pay into court “the amount due said Isaac Basater upon said land; that the deed of Isaac Basater to Macey Basater for said land be cancelled, and that Isaac Basater be required upon the payment of amount due him to convey the land to the defendant Henry Wade, and for other relief.”
Upon motion of the defendants the action was transferred to the Crawford Chancery Court.
After hearing the evidence, the court cancelled the deed executed by Isaac Basater to Macey Basater; and upon payment of $50 and interest and $470 and taxes paid on the lands by Isaac Basater to the clerk of the court for Isaac Basater, decreed that all right, title and interest that Isaac Basater may have in the lands shall be annulled, set aside and held for naught, and that the title in the land vest in the defendant Henry Wade, subject only to a life estate of the defendant Eliza Howell; and the plaintiff appealed.
Some time in 1902 Henry Wade and his wife and Henry Howell and Fanny Howell purchased from Sarah A. Smith the land in controversy; they agreed to pay her $550 for it, and paid in cash $100, and gave her their note for the remainder, $450. Mrs. Smith conveyed the land to them by a warranty deed, and they executed a mortgage to her to. secure the $450. Afterwards they paid her about $245, and were unable to pay the balance. She then foreclosed the mortgage, and purchased the land. They were entitled to redeem at any time before the 1st day of January, 1905. On the 9th ‘day of January, 1905, after the time for redemption had expired, Isaac Easater purchased the land from Mrs. Smith, paying her $475 for the same. After purchasing the land he said to his mother, Eliza ITowell, that she cóuld continue to reside on the land for the remainder of her life, and to Henry Wade that he might have the land by paying taxes on it and keeping improvements in repair, and paying him the money he had paid for the land, $475, and interest during the lifetime of his mother or at her death. These promises were gratuitous, and in parol. The defendants were in possession at the time, and .continued in possession the same as they, had been before. Wade failed to pay the taxes, or keep the improvements in repair, or pay the interest on the $475, but permitted the' land to sell for taxes, and allowed Isaac Lasater to pay $50 to redeem the same. Isaac Lasater was neither legally nor equitably bound to convey the lands to the defendants or either of them. Moore v. Gordon, 44 Ark. 334; Phillips v. Jones, 79 Ark. 100; Hackney v. Butts, 41 Ark. 393; Bland v. Talley, 50 Ark. 71.
The plaintiff, Macey Easater, is entitled to the possession of the land, he having title to the same.
The decree of the court is reversed, and the cause is remanded with directions to the court to enter a decree in accordance with this opinion. | [
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Hart, J.,
(after stating the facts). Appellants admit that the lease gave the lessor the right to sell the land, and that a sale terminated the lease; but they claim that they were entitled as damages to the payment of a reasonable valuation for the unexpired term. This they claim under the clause of the lease which provides that upon a sale of the land the lessor “shall remunerate the aforesaid John H. Miller in a reasonable amount for all damages he may sustain from sale of said land.” Their contention is inconsistent. If the lessor has the right to terminate the lease by a sale of the land, there can be no unexpired term; and it is evident then that the remuneration for damages sustained by the sale relates to compensation for amounts expended by the lessee for permanent improvements and for taxes paid by, him which were in excess of the usable value of the land. In no other way can the provisions of the lease be reconciled.
“Such a provision is not void as being repugnant to the ¡habendum of the lease. Any provision stipulating that during the term a lessor may enter or may terminate the lease is in a sense repugnant to words demising land for a fixed term, but such stipulations are found in most leases, and are not held void because repugnant to the words of the demise. If it is clear that the contract means that the lessee should take his estate subject to a defeasance by a sale of the demised property by the lessor, to hold the clause defining the reserved right of the lessor void because repugnant to the demise would be unwarrantable to defeat an intention which the parties have clearly expressed.” Jones on Landlord and Tenant, § 388, and cases cited.
It is next contended by the appellants that the suit was premature because it was brought before payment or tender was made. It was the contention of appellees that appellants had already been compensated for the damages sustained by them. It is true that the verdict of the jury was against their contention, but the court required the amount found by he jury to be due appellants to be paid into 'court for their use before judgment was rendered in favor of appellees for the possession of the land, and also rendered judgment in favor of appellants for the costs of suit. In this respect this case is different from that of Bunch v. Williams, 76 Ark. 102. In that case the court held that a tender was not necessary, and an absolute judgment was rendered in favor of the plaintiffs. Here there was a dispute, not as to whether a tender should have been made, but as to whether anything was due, and, the court having required that the amount found due should be paid before appellants were required to give up possession of the land, they are not prejudiced, and it is the settled rule of this court that a judgment will only be reversed for errors prejudicial to the rights of the appellant.
It is next insisted by appellants that there is no evidence to support the verdict of the jury that tire appellants did not pay $400 in consideration of the lease. They contend that appellant John H. Miller testified positively that at the time the lease was executed McAfee owed him $400, and the payment of this debt was a part of the consideration of the lease; and that this testimony stands uncontradicted. It is true that the testimony of John H. Miller is all there is on this point; but it -must be remembered that he is a party to the suit, .that no contention of this sort was made by him when his answer was first filed, but was interposed afterwards by way of amendment. Then, too, he testified about other matters in the case, and his testimony in that regard was flatly contradicted by other witnesses. These facts and some evasive answers made by him in regard to the alleged $400 debt bring the case within the rule announced in Skillern v. Baker, 82 Ark. 86, and we hold that there was evidence to support the verdict.
We find no error in the record, and the judgment will be affirmed. | [
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McCulloch, C. J.
Plaintiff, John Bauschka, was employed by the defendant, Western Coal & Mining Company, as a shot firer in its coal mine at Jenny Lind, Sebastian County, Arkansas, and was injured by falling rock while in the discharge of his duties. He was passing along the entry or air course in the mine, and a large rock fell from the roof and struck him down, severely injuring him. He sues to recover damages for the injury thus received, alleging that the same was caused by negligence of the company in failing to exercise ordinary care to provide a reasonably safe place for him to work, and also in failing to furnish props with which to make safe the roof of the air course.
Defendant in its answer denied that plaintiff had received' his injury on account of its negligence, and pleaded assumption of risk and contributory negligence on the part of plaintiff.
A trial before jury resulted in a verdict in favor of defendant, and the plaintiff appealed.
Plaintiff’s duties were to go into the mine at the close of the day, after the miners quit work, and to go from room to room and fire the shots put in by the miners, to break down coal for the next day’s work. He was passing along the air course when the rock fell on him. It was a large rock, five or six feet long and six feet wide. He was alone when it fell and weighed him down, but succeeded with great difficulty in getting himself from beneath it. Pie states that, while lying beneath the rock, he observed another large rock hanging loose,, and that this frightened him into renewed effort and strength to get from under it. After he had extricated himself and gotten out of further danger, his groans and cries attracted the attention of another shot firer, who carried him out of the mine.
The testimony tends to show that the roof was in a dangerous condition and needed propping, though it is not shown when the rock which fell became loosened or gave evidence of being loose. The kind of roof is what the miners call a draw-slate roof, or shaly roof, and there was evidence to the effect that such a roof is dangerous unless propped. One of the workers in the mine testified that, two days before plaintiff’s injury occurred, he saw a small rock fall from this roof about •ten feet from the place where the large rock fell which injured plaintiff. It appears that the entries and air courses are mined out by the miners, and that they constitute the working place of the miners so engaged so long as they are engaged in taking out coal, but that thereafter it is the duty of the company as employer to keep the place safe as a common pass-way for the use of all employees whose duties call them there.
During the course of the examination of one of the witnesses, the plaintiff offered to prove that one of the miners, while working in the air course, called for timbers with which "to prop the roof, and that the same were not furnished. After "the question was propounded and ruled out by the court, plaintiff’s counsel made the offer in the following language: “We also offer to show that there was no timber there to prop it.” The court then made the following ruling thereon: “You may .show the condition of the mine, but the company is not bound by any demands this man made, unless you connect it with the plaintiff.” Plaintiff saved exceptions to the ruling. He again •offered to prove by another witness that the latter “was on .a committee of the local union, and called on the company for props and notified the company that there were no props there to prop that roof.” The court refused to allow it, and exceptions were saved.
The language in which the ruling of the court is couched •indicates that it was necessary, in order to make the testimony •competent, to connect plaintiff with the demand for props by showing that he caused the demand to be made, or was relying •on the company to furnish the props. This is not correct. It was competent to show that timbers were demanded by any one for use in propping this particular portion of the roof. This for the purpose of showing notice to the company of the dangerous condition of the roof. It was the duty of the company, even if props had not been demanded, to exercise ordinary care to discover the condition of the roof of the air course, and to keep same in a reasonably safe condition, for the air course was the working place of all the employees who used it, in the sense that it was the duty of the employer to exercise ordinary care to make it reasonably safe. It is questionable, however, whether the plaintiff’s offer was sufficiently specific to show that it related to the particular part of the roof where plaintiff was injured, as the air course was more than one thousand feet long at that time. Notice of the necessity of props at another place in the air course would not necessarily constitute notice that the roof was in a dangerous condition at the place where plaintiff was injured. The judgment is to be reversed on other grounds, and, as the testimony may be different on the next trial, we need not decide whether, the-offer was sufficiently specific to constitute prejudice in the ruling of the court in refusing to allow the offered testimony.
The court gave the following instruction at defendant’s-request, over plaintiff’s objection: “9. If it is shown by the evidence that prior to the accident the rock which fell was-loose and needed propping, that of itself is not sufficient to-establish such negligence as would authorize plaintiff to recover.”
This instruction was clearly on the weight- ,of the evidence, and invaded the province of the jury. It was. prejudicial,, and calls for a reversal of the judgment. Plaintiff proved that the large rock was loose and fell, and that another large rode was hanging loose; also, that the roof was in a dangerous-condition by reason of being shaly and composed of draw-slate. The jury had the right to infer from these facts that the dangerous condition of the roof could have been discovered by the company in the exercise of ordinary care, and that it was-guilty of culpable negligence in failing to discover it. Yet this instruction in effect told the jury that the mere fact that the rock which fell was loose and needed propping for any length of time prior to the time of plaintiff’s injury was not. sufficient 'to warrant a finding of negligence on the part of defendant in failing to discover a defect in the roof; and it thus-cut off the inference which could have legitimately been drawn that the defect was one which could have been discovered by the exercise of ordinary care. The jury must have understood’ it to mean that, regardless of the "time before the accident the-dangerous condition of the roof existed by reason of the loose-rock which needed propping, defendant was not responsible unless it had notice of the condition. It is true, we have held that, in order to make the master responsible for an unsafe-condition of the working place of a servant, it must be shown,. not only that' there was a defect which caused injury, but also that the' defect was one that the master had discovered or could have discovered by the exercise of ordinary care. St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 437; St. Louis & S. F. Rd. Co. v. Wells, 82 Ark. 372.
But in the present case the defect recited in the instruction was one which was discoverable if it existed any length of time, or at least such an inference might reasonably have been drawn by the jury; and to deny to the jury the right to draw such an inference amounted to an instruction on the weight of the evidence. Other instructions properly submitted the question whether or not defendant exercised ordinary care to discover and repair the defect; but they did not cure the vice of this instruction, which was inherently incorrect and prejudicial.
Another instruction, given at the instance of defendant, was erroneous. It reads as follows: “3. The defendant is not the insurer of the safety of the plaintiff while at work in its coal mine. If there are dangers connected with the business in which plaintiff was injured, he assumes the risk by the wages paid him.” It is too broad, for plaintiff by his contract of employment did not assume the risk of dangers created by the negligence of the plaintiff unless he was aware of the defect and appreciated the danger. A servant only assumes the risk of dangers which are incident to the work in which he is engaged, or dangers from defects caused or permitted by the master of which he is aware.
Inasmuch as the question of assumed risk was correctly submitted in other instructions, we need not decide whether or not the fault of this instruction should have been called to the attention of the court by a specific objection. We mention it now so that it may be corrected on the next trial.
* Counsel for defendant insist that the abstract furnished by plaintiff is insufficient, and ask for an affirmance on that ground. We are of the opinion that the abstract, though not perfect, is sufficient to comply with the rules of the court. There is enough to show that instruction number 9 was erroneous and prejudicial.
For the error indicated, the judgment is reversed and the cause remanded for new trial. | [
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Hart, J.
T. C. Neece brought this suit in the circuit court against A. W. Shirey to recover an amount alleged to be due him under the following contract:
“Minturn, Ark., Eeb. 27, 1906.
“This is an agreement an a contract made bye Dr. T. C. Neece and John Bennett, bye the consent and bye the request of A. W. Shirey, of the town -of Minturn, wherein the sed T. C. Neece do agree to go with John Bennett and to find and furnish all the proofs that can be established bye the docttors wherein that thed sed Bell Shirey the wyfe of the sed A. W. Shirey did give birth to one child an oup on sed proofs furnished by the sed T. C. Neece, that Bell Shire)! did live the State of Arkansas and give birth to sed child then an thare his fees and truble for such would be five hundred dollars wherein the sed John Bennett as A. W. Shirey agent, by consent of A. W. Shirey do agree to pay the sed T. C. Neece the five 500 hundred dollars as fees time a truble and expenses.
“Written and sind by John Bennett agt an etnploid by A. W. Shirey.”
The plaintiff testified in his own behalf, and also introduced as a witness John Bennett, who signed the instrument copied above. No evidence was offered by the defendant. The testimony of these witnesses is very voluminous, but its effect is to show that plaintiff knew that there was a divorce suit pending between defendant and his wife when the contract was made; that one of the contentions of defendant in that suit was that his wife had given birth to a child at some place unknown to him, and that he was not the father of it; that the testimony to be procured under the agreement was for use in that suit, and was so used.
The circuit court held that the agreement was contrary to public policy and void; and directed the jury to return a verdict in favor of the defendant, which was accordingly'done.
From the judgment rendered the plaintiff has prosecuted an appeal to this court.
The defendant Shirey died testate during the pendency of the appeal, and the case has been duly revived in the name of the executor of his will.
The circuit court was right in holding that the contract was against public policy and void. The vice of the contract does not consist in the fact that the defendant employed the plaintiff to obtain evidence in his divorce suit; but the contract is, on its face, illegal because of the improper provision that the evidence to be procured should be of a given state of facts, of a tendency to enable defendant to win his suit. It will be observed that the contract did not provide for the payment of his services in procuring for use such testimony as actually existed, but it contemplated the procurement' of evidence tending to establish a given state of facts, regardless of any other consideration. With reference to such contracts the Supreme Court of Montana held:
“A contract is void as against public policy if by it one of the parties agrees to secure such testimony as will enable the other to win an existing or contemplated suit. It is not necessary that the contract should contemplate the production of perjured testimony. It is void because its tendency is to promote unlawful acts.” Quirk v. Muller, 14 Mont. 467, 43 Am. St. Rep. 647.
In the opinion of the court in that case is contained a quotation from the Supreme Court of Illinois in the case of Gillett v. Board of Supervisors, 67 Ill. 256, which is so clear a statement of the reason for the rule that we repeat it here. The facts were that the county supervisors desired to overthrow the result of an election in regard to whether the county should subscribe for certain railroad bonds. They made a contract with a person to procure evidence to show that certain votes cast at such election were illegal, and the contract had a scale of prices, varying according to the number of votes that were proved to be illegal. The court said:
“The evidence' disproved the actual use by the committee of any corrupt means or any corrupt design, on their part, in the use of fhe money. But the contracts themselves are pernicious in their- nature. They created a powerful pecuniary inducement on the part of the agents so employed that the testimony should be given of certain facts, and that a particular result of the suit should be had. A strong temptation was held out to them to make use of improper means to procure the needful' testimony, and to secure the desired result of the suit. The nature of the agreement was such as to encourage attempts to suborn witnesses, to tamper with jurors, and to ■make use of other Tase appliances’ in order to secure the necessary results which were to bring to these agents their stipulated compensation. The tendency of such arrangement must be to taint with corruption the atmosphere of courts, and to pervert the court of justice. A pure administration of justice is of vital public concern. It tends to evil consequences that any such venal agency as is constituted by these contracts should have a part in the conduct of judicial proceedings, where the attainment of right and justice is the end. Should such contracts of this character receive countenance, we might, among the multiplying forms of agency of the time, have to witness the scandalous spectacle of a class of agents holding themselves out to the public as professional procurers of desired testimony for litigants in court for pay, contingent upon success in their suits. In Marshall v. Railroad Co., 16 How. 314, it was held that a contract for a contingent compensation for obtaining leg islation was void by the policy of the law. . With much greater reason, we think, should the contract under consideration be held vicious. We can not sanction them. On account of their corrupting tendency, we must hold them to be void, as inconsistent with public policy.” See, also, Patterson v. Donner, 48 Cal. 379; Lyon v. Hussey, 82 Hun (N. Y.) 15.
We agree with the reasoning of the court in the above cited cases that contracts like the one under consideration are void as against public policy and as tending to impede the administration of justice.
“Where the ground of a promise on one part, or the thing • promised to be done on the other part, is unlawful, the courts will not enforce the contract for either party.” Mendel v. Davies, 46 Ark. 420. See also Tatum v. Kelly, 25 Ark. 209; Ruddell v. Landers, 25 Ark. 238; Hencke v. Standiford, 66 Ark. 535.
The judgment will be affirmed. | [
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CLAYTON, J.
The original bill in this case was filed by William Lenox and wife, both now deceased, to divest the legal title of ■certain property therein mentioned out of the defendents, the Hamiltons, then four in number, to have the bill of sale under which they claimed declared void, and to have the title vested in, and the property decreed to, the complainants. The defendants, the Hamil-tons being still infants, filed a cross-bill by their guardian ad litem for the discovery of certain facts necessary to their defense of the original bill, and prayed that Lenox may be compelled to give bond not to remove the property, and to have the same forthcoming to abide the decree. The answer to the cross-bill states the death of Mrs. Lenox and of two of the heirs of Hamilton, and sets up a title to the property in question upon two grounds distinct from those stated in the original bill. To determine upon this motion for the appointment of a receiver, it is not necessary to consider the title to the property, or to discuss the merits of the cause. The material affidavit upon which this motion is made, states the administrators of William Lenox, deceased, have failed to inventory the estate and personal property, including the negroes mentioned in the original and cross-bill, in this ease, as the property of William Lenox, deceased, and that as the representatives of said William Lenox, deceased, they do not hold themselves responsible for the property mentioned in said bills. The application for a receiver is addressed to the sound discretion of the court, regulated by legal principles, and is exercised by the courts upon many occasions with great benefit to the parties. It is particularly serviceable when there is danger that the subject-matter of the controversy may be'wasted and destroyed, impaired, injured, or removed during the progress of the suit The-object is to secure the fund for the party found upon final hearing to be entitled, and to produce as little prejudice as possible to any of those concerned. When one party has a clear right to the possession of property, and when the dispute is as to the title only, the court would very reluctantly disturb that possession. But when the property is exposed to danger and to loss, and the party in possession has not a clear legal right to the possession, it is the duty of the court to interpose and to have it secured. Who is .legally entitled to the possession of the property in this case? It will be borne in mind at the time of.filing the original bill, it appears from the papers in this cause, that the complainants, Lenox and wife and the infant children of Hamilton, the defendants here, resided together, the possession was joint, and the law would cast the actual possession upon the legal owners of the property. Who were at that time the legal owners? The infant children of Hamilton claiming under Notrebe’s deed of conveyance. The very object of the original bill was to divest them of the legal title, to have the deed of Notrebe rescinded, and the property deci'eed to the complainants. The bill was filed in right of Mrs. Lenox, who had been the wife of Hamilton, and who was the mother of the defendants. In December, 1828, Mrs. Lenox and two of the defendants died, and the suit since has been prosecuted against the remaining defendants without any administration upon her estate. After the death of the mother, the two surviving defendants in February, 1829, ceased to reside with William Lenox, and he kept possession of the property. He had not the legal right • do so. The law cast the right of possession with the legal and apparent right of property, and it was his duty to have given up the possession to them. Having failed to do so, he became a trustee as to the legal estate for them, for a court of equity converts any one who intermeddles with an infant’s property into a trustee for such infant. The answer to the cross-bill states that in January, 1831, the complainant Lenox purchased an outstanding legal title to the same property, and claims to hold it by virtue of this purchase. It is believed that upon well-settled principles this •■•was a breach of trust upon his part, and that an implied trustee cannot purchase an outstanding legal title and claim the trust property under it, at least until he restores possession to the party for whose use as trustee he holds. At the time of the death of Lenox, he held possession in this manner, and so confident were his administrators that he had not either the right of property, or the right of possession, that they refused to return the property in their inventory as his, and state expressly, according to the affidavit, that they do not hold themselves responsible for it, as his administrators. If they are not responsible for it as his administrators, they are not, in the present aspect of the cause, responsible for it at all. They are only before the court in their representative character, and if it should ever become necessary to proceed against them individually, they must be before the court in their individual character. If they do not hold the property as administrators, they have no right to the possession, so far as this court can see from the facts before it. They may waste and destroy it, and at the end of this suit the party declared entitled may have to institute new proceedings against new parties, and travel the weary round of a chancery cause a second time. The appointment of a receiver will prevent this, and will have no other effect than to secure property which seems to be cast upon the world without any legal protector. The only circumstance which has interposed the slightest obstacle to our coming to the conclusion to appoint a receiver in this cause, grows out of the bond executed by William Lenox, in his lifetime, to have the property in question forthcoming to abide the final decree in this cause. The words in the condition of the bond are these: “Now if the above bound William Lenox, shall keep said negroes and property safe, and not remove them beyond the jurisdiction of this territory, until the final hearing of this cause, and to abide the final order and decree of the court in this suit, then this obligation to be void.” This obligation is merely personal. It rests upon and binds William Lenox alone. His securities in the bond are not bound for the acts of any other person. If he committed no breach, they would not be bound in our opinion for a breach committed by any third person after his death. But if we are mistaken in this opinion, enough doubt hangs over the matter to authorize the court to interpose and place the property beyond doubt, to render the parties safe instead of leaving them to uncertain controversy in a court of law. We think, therefore, the motion ought to be allowed, and a receiver appointed.
Order. It is hereby directed and ordered that Benjamin Desha be appointed receiver in this cause, upon his entering into bond with Frederick Notrebe, William Cummins, Samuel J. Hall, and Emzy Wilson, as his securities in the penal sum of $10,000, payable to William Field, the clerk of this court, and his successors in the office of clerk of this court, for the use and benefit of such person •or persons as this court may finally decree to be entitled to this property, and upon his so giving bond and security within sixty •days from this time, his power and authority and duty as receiver in this cause shall be full and complete; and it shall be the duty of said Lenox and Scull to deliver up all the property in the proceedings mentioned, together with the issue and increase of the slaves and stock or such part thereof as is In their possession, to the said Desha, upon Lis producing to them a certified copy of the order.
[The court subsequently dismissed the bill and granted the prayer of the cross-bill. Case No. S,24Ge.] | [
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Kirby, J.,
(after stating the facts). It is contended that the court erred in overruling the demurrer to the indictment and in the admission and exclusion of certain testimony.
It is necessary, in cases of removing mortgaged property, upon which a lien exists, with the intention to defeat the holder of the lien and the collection of the debt secured by the mortgage or deed of trust, to allege the existence of the debt at the time of the commission of the offense, for, unless there be a debt in existence, there can be no lien. McCaskill v. State, 68 Ark. 491.
The indictment herein charges that the appellant, with the intent to cheat and defraud one Eugene Williams, sold the cow, of a certain value upon which “the said Eugene Williams then and there had a lien by virtue of a certain mortgage or deed of trust, duly executed; * * * that the said Chester Osborne’s sale of said cow was with the felonious intent to defeat the said Eugene Williams, the holder of said lien, in the collection of his debt, which was more than ten dollars, etc. ’ ’
The indictment does not say in exact words that there was a debt in existence from appellant to Eugene Williams, but it does say that he sold the cow with the felonious intent to defeat the holder of said lien in the collection of his debt, which was a sufficient allegation of the existence of the debt.
We do not think the court erred in the admission of the trust deed executed by the appellant to S. H. Mann, as trustee, to secure the payment of the debt to Eugene Williams, under the allegations of the indictment. The court has held that a mortgage and deed of trust are the same in legal effect, and it conld make no difference to the accused in giving him notice of the offense with which he was charged, and there is no variance from the allegations of the indictment in the proof of the deed of trust.
We are of the opinion that the court did err, however, in refusing to allow appellant to introduce his mortgage to Scott Bond & Sons, in which the red cow, with the disposition of which he was charged in the indictment, was included. It also erred in refusing to permit the appellant to prove the amount of the indebtedness still existing, secured by the mortgage to Scott Bond & Sons, as well as the value of the property included in it, at the time of the sale of the cow. There must be shown to exist an intention to defeat the holder of the hen in the collection of his debt, or facts from which such intention can reasonably be inferred, in order to convict the defendant of the charge, and if he could show, as he had the right to do, that the property was covered by a prior mortgage to secure a debt past due and still existing, much larger in amount than the entire value of all the property included therein, and that he sold the cow with the approval of the holder of the said prior mortgage, it would, if not conclusive, tend strongly to show that there was no intention by the sale to defeat the holder of the lien under the second mortgage in the collection of Ms debt, and these errors were highly prejudicial to appellant.
The other contentions are not noticed, as the matters complained of will doubtless not occur upon a second trial. For the errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). It may be said at the outset that a director of a corporation stands in the relation of a trustee to the stockholders and creditors of the corporation. Some of the authorities hold that a purchase by a director of all the assets of the corporation is absolutely void, without regard to the good faith of the transaction, and that the property belongs to the corporation the same as it did before such sale. Our court has held, however, that such sale is only to be voided at the instance of some party in interest for fraud. Jones, McDowell & Co. v. The Arkansas Mechanical & Agricultural Co., 38 Ark. 17; Wesco Supply Co. v. El Dorado Light & Water Co., 107 Ark. 424. In the last mentioned case, the court held (quoting from syllabus):
“When one corporation of which A is the president, manager and owner of all the stock, sells all its assets to another corporation of which A. is also president and manager and owner of four-fifths of its stock, and the new company issued its stock directly to A. in payment for the transfer, and A. knew that the old company was indebted to the plaintiff, and knew of the insolvent condition of the old company, held, the new company is not an innocent purchaser of the assets of the old company and is bound to the payment of the creditors of the old company to the extent of the value of the assets received therefrom, whether it agreed to assume the obligations of the old company or not.”
In that case, however, it appears that the president and principal owner of the stock of the old corporation as well as the purchasing corporation was also the principal creditor of the old corporation, and that the assets of the old corporation were chiefly used for the payment of his debt, and the court held that under all the circumstances of the case the sale was fraudulent and could be set aside by a creditor of the corporation. Here the facts are essentially different. It is true that John Vaile was surety on the debt due the First National Bank, which was the principal creditor of the company, but he was not primarily liable for the debt. The testimony clearly shows that the Fort Smith Automobile & Supply Company was actually indebted to the bank in the amount claimed by it, and the mere fact that Vaile was surety for the debt is not sufficient to make the transfer of the assets of the corporation to him fraudulent. Vaile testified (and his testimony in this respect is not contradicted) that he paid the fair market value for all the assets of the company which were conveyed to him., and that the assets were conveyed to him, under resolution passed by the board of directors for the purpose of enabling him to pay the debts of the company, which he did pay, and which are listed in the statement of facts. These claimants were all bona fide creditors of the company, and the company actually owed them the amounts paid to them by Vaile. Vaile sold one of the lots conveyed to him by the automobile company for $10,000, and he said this was the fair market value of the lot. So-it will be seen from the statement of facts that Vaile lost $2,000 in the transaction and reaped no personal benefit from it. It is true that when placed upon the stand by the plaintiffs, the record shows that he stated that the money borrowed from the First National Bank was used in paying for cars consigned to the company, and that, he does not know what became of the cars or the proceeds of sale thereof. When placed upon the stand by the defendants, however, he testified that some of the money arising from the sale of cars was used in paying the running expenses and the commercial debts of the corporation. He testified that he made an inventory of all the assets of the company and has accounted for these assets and the disposition he made of them. If it was thought or believed by the plaintiffs that assets belonging to the company had been concealed by Vaile or the other defendants, an effort should have been made by them to develop that fact. The present suit is not predicated upon the fact that any of the assets of the company were not accounted for, but is based solely upon the fact that the sale to Vaile was in fraud of the rights of the creditors, and on the further fact that under the laws of this State insolvent corporations can not prefer creditors. It will thus be seen that no attempt was made by plaintiffs to develop the fact, if such be a fact, that assets of the corporation were concealed by the directors and not accounted for. Hence, under all the circumstances, we think that the finding of the chancellor that the sale to Vaile was made in good faith for the purpose of paying the commercial debts of the corporation, and that the same was free from fraud, was not against the preponderance of the evidence. '
Section 949 of Kirby’s Digest provides that no preference shall be allowed among the creditors of .insolvent corporations, except for the wages and salaries of laborers and employees. Section 951 provides, in substance, that every preference obtained, or sought to be obtained, by any creditor of such corporation, whether by attach ments, confession of judgment, or otherwise, and every preference sought to he given by such corporation to any of its creditors, in contemplation of insolvency, shall be set aside by the chancery court if complaint thereof be made within ninety days after such preference is given or sought to be obtained. In the case of Dozier v. Arkadelphia Cotton Mill, 67 Ark. 11, the contention was made that the preference by a board of directors of an insolvent corporation was not objected to within ninety days after the same was given, as required by section 951. The court held that the objection was not well taken, because the preference was made in secret and without knowledge of the party aggrieved, and that therefore there was no point of time from which to measure the ninety days. In that case, the directors of the corporation, by a resolution, provided for the sale of its assets and paid certain creditors to the exclusion of others, but there was nothing in the proceedings or transactions by which the creditor who was not paid could have ascertained that the corporation had disposed of its assets, and on this account the court held that the preference was made in secret and that there was no point of time from which to measure the ninety days, so far as outsiders were concerned, and no showing made that the plaintiffs in the action had notice of the distribution or payments made to the other creditors. Here the facts are essentially different. The corporation, by resolutions complying with the statutes, formally surrendered its charter, and after the plaintiffs had obtained a judgment in the circuit court and the case had been appealed to the Supreme Court, no supersedeas bond having been given, they caused an execution to be issued on the 3d of July, 1911, and the sheriff, on the 9th day of August, 1911, returned said execution unsatisfied, for the reason that he was unable to find anything to levy on. The present suit was not commenced until November 23,1911. Under the authority of Papan v. Nahay, 106 Ark. 230, the plaintiffs were creditors of the corporation, but be cause they did not bring suit within ninety days after they had notice that the corporation had disposed of its assets to its other creditors, they are barred from setting aside the sale under sections 949 and 951 of Kirby’s Digest. The decree will be affirmed. | [
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McCulloch, C. J.
The plaintiff, Williams, was an employee of defendant company, and while working in its service received personal injuries on account of which he asserted a claim against the company for recovery of damages.
Negotiations between him and the company’s claim agent were opened up, looking to an adjustment of the claim, and those negotiations resulted in a contract for settlement, which was reduced to writing, and reads as follows:
“Whereas, I, William Williams, of the county of Pulaski, State of Arkansas, was injured, at or near Argenta, Ark., on or about the 4th day of April, 1910, on a line of railway owned or operated by the Chicago, Rock Island & Pacific Railway Company, while working for said company, under circumstances which I claim rendered such company liable in damages, although such liability is denied by such railway company, and the undersigned being desirous to compromise, adjust and settle the entire matter; now, therefore, in consideration of the sum of three hundred dollars ($300) to me this day paid by the Chicago, Rock Island & Pacific Railway Company, in behalf .of itself and other companies whose lines are owned or operated by it, I do hereby compromise said claim and do release and forever discharge the said Chicago, Rock Island & Pacific Railway Company, and all companies whose lines are leased or operated by it, their agents and employees, from any and all liability from all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them of all suits, actions, causes of actions and claims for injuries and damages, which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action. I further represent and covenant that at the time of receiving said payment and signing and sealing this release I am of lawful age and legally competent to execute it, and that before signing and sealing it I have fully informed myself of its contents and executed it with full knowledge thereof. ’ ’
Subsequently the plaintiff was taken back into the company’s service, first, resuming the work which he had done prior to his injury, and was then employed as a flagman, but later was discharged and refused further employment.
He then instituted this action to6 recover on a verbal contract alleged to have been entered into by the company’s agents whereby it undertook, as a part of the consideration of the aforesaid settlement, to give him employment during Ms lifetime at the same wages he was receiving at the time of Ms injury.
The defendant, in its answer, denied it had entered into any such contract with the plaintiff, and the case was tried before a jury upon that issue.
The trial resulted in a verdict in favor of the defendant, from wMch judgment the plaintiff has appealed.
The plaintiff testified that during the negotiations for settlement and at the time the written agreement was entered into the claim agent agreed that as a part of the consideration for the settlement the company would give him a “lifetime job” at the rate of wages he was receiving at the time of Ms injury.
The court gave two instructions requested by the plaintiff, telling the jury, in substance, that, if the defendant, at the time of the settlement and execution of the written release, “verbally agreed, in consideration of said release, to give the plaintiff permanent and steady employment at such work as plaintiff could perform in Ms then condition for the term of his natural life, at a stated compensation,” and that, if the plaintiff agreed to do the work for the defendant and entered upon the performance of his contract and was discharged without cause, then the verdict should be in favor of the plaintiff, for a sum equal to the “present value of the money agreed to be paid him under the contract for the period of Ms life, less the present value of such sum as you may find he has earned or might have earned by reasonable diligence since Ms discharge by the defendant, and less such sums as he may be able to earn in the future by the use of reasonable diligence.”
• Upon the request of defendant, and over plaintiff’s objection, the court gave an instruction to the jury that the testimony showing the existence of said oral contract for future employment must be “clear, convincing and conclusive.” The giving of this instruction is assigned as error.
It is not contended in this case that there was any fraud or mistake which would justify the court in setting aside the compromise agreement. In fact, this is not a suit to set aside the contract, but it is one to recover upon an alleged contemporaneous oral contract based upon the same consideration, namely, the release of the asserted claim for recovery of damages on account of personal injuries of the plaintiff.
If, in the absence of fraud or mistake, an oral contract can be proved, then the trial court erred in instructing the jury that any greater burden was upon the plaintiff than to establish the contract by a preponderance of the testimony. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426.
Ordinarily, that error would call for a reversal of the cause, but if the rules of evidence forbid proof of such oral contract where a written contract has been' entered into of the nature shown in this case, then the instructions were more favorable to the plaintiff than he was entitled to, and the error was not prejudicial, and the judgment should be affirmed notwithstanding the erroneous instruction.
This court has decided that parol proof is admissible to establish the fact that other considerations, mot recited in a deed or written contract, were agreed to be paid, when such proof does not contradict the terms of the writing. Busch v. Hart, 62 Ark. 330; Magill Lumber Co. v. Lane-White Lumber Co., supra.
The same rule is otherwise stated in opinions of other courts that, where the writing merely contains a recital or acknowledgment of the consideration, an additional consideration or other undertakings based upon the same subject-matter may be proved without varying the terms of the writing, but that, where the recital of the consideration is part of the contract itself, or, in other words, that the amount or nature of the consideration is contractual, then to admit such proof would vary the terms of the contract, and is, therefore, inadmissible.
Professor Wigmore states the rule thus:
“In general, then, it may be said that a recital of consideration received is, like other admissions, disputable so far as concerns the thing actually received; but that, so far as the terms- of a contractual act are involved, the writing must control, whether it uses the term ‘ consideration’ or not.” 4 Wigmore on Evidence, § 2433.
The Supreme Court of Minnesota, in a well-considered case, correctly stated the rule as follows:
“While the true consideration of written contracts may as a general rule be inquired into by evidence outside the writing, the rule' is not without well-defined exceptions. It applies more particularly to contracts, wherein the consideration is expressed in general terms, as the acknowledgment of the payment of a stated amount of money. In such cases the true consideration may always be shown. * * * But where the expressed consideration is more than a stated amount of money paid or to be paid, and. is of a contractual nature, parol proof is inadmissible to vary, contradict or add to its terms.” Kramer v. Gardner, 104 Minn. 370, 22 L. R. A. (N. S.), 492.
The same rule is stated in 17 Cyc. 661, as follows:
“Where the statement in a Avritten instrument as to the consideration is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part.”
The case of White v. Railroad, 110 N. C. 456, was one in which an action had been instituted on an oral agreement alleged to have been executed contemporaneously with a written release of compromise of claim for damages, and the court held that the oral agreement could not be proved. The court said:-
“In the nature of the matter, it was appropriate and orderly to specify the whole consideration. The language employed was appropriate and apt for that purpose, and in the absence of any provision or implication in the release to the contrary, it must be taken that it does. It, by its terms and effect, concludes the plaintiff, and he can not be allowed to allege that there was other and further consideration for it than therein expressed. The parties made it written evidence of their settlement and they must abide by it, unless, in some appropriate way and for sufficient cause, it shall be made to appear that it does not express truly the contract of settlement it purports to embody.”
Chaplin v. Gerald, 104 Maine, 187, was a case almost identical with the present one. In the opinion the court said:
“The instrument in the case at bar is not incomplete but comprehensive, and appears to embrace an entire contract between the parties. It is not merely a receipt for money, which may be explained by parol; on the contrary, it is a formal release witnessing in plain and explicit terms an agreement discharging the defendants from all liability to the plaintiff for the injury he had received and which was to be ‘final and conclusive.’ The testimony of the plaintiff that the defendants agreed in addition to the $1,000, expressed as the consideration for the release, to furnish him employment as long as he should be able to work, is, we think, inconsistent with and tends to vary and contradict the written instrument. ’ ’
Myron v. Union Railroad Co., 19 R. I. 125, was also a similar case based on release such as found in the present case, and the court reached the same conclusion.
The only case brought to our attention holding to the contrary is Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 51 Am. St. Rep. 289, where the court held that, a release executed similar to the one in the case at bar, additional parol agreement to employ the plaintiff at a certain consideration was collateral to the issue and that oral testimony was admissible for the purpose of proving such an agreement. The court in its opinion recognized the general rule, however, that “where the parties have undertaken to specify the consideration in the writing, and where such consideration is contractual in its nature,’’ parol testimony of additional agreement is inadmissible.
The contract before us contains more than a mere recital or acknowledgment of the amount to be paid as the consideration. The writing shows upon its face that it was a compromise of the differences between the parties concerning the subject-matter stated and that the amount to be paid was a part of the contract. That part of the contract constituted more than a mere receipt for the money paid, and it would be inconsistent with the express terms of the writing itself to prove an additional or further consideration.
In the recent case of Cherokee Construction Co. v. Prairie Creek Coal Mining Co., 102 Ark. 428, there was a different application of the rule made, that being a suit to establish liability under a cause of action found to be embraced within the release, but we said: ■
“The parties, in order to avoid the evils of litigation, made a compromise and settlement of all matters and differences between them. The lease or instrument in question was something more than a mere receipt. It was' the final embodiment in writing of the agreement between the parties. It is a comprehensive discharge, not only .of the differences between the parties, but of all matters between them. * * * To permit the plaintiff to show by parol proof that it was not so intended would be to contradict or explain away the instrument, which is contrary to the established rule of law.”
So it can be said in the present case. The parties adjusted their differences and entered into a written contract, which covered, not only the claim to be released, but .the amount to be paid in consideration of such re lease. That is, we think, conclusive upon the parties in the absence of a showing of fraud or mistake. The case was, therefore, submitted to the jury upon instructions more favorable to plaintiff than he was entitled to, and he can not complain of the error in one of the instructions. The verdict could not have been otherwise than in favor of the defendant upon the competent testimony, viewing it in its light most favorable to the plaintiff.
The judgment is, therefore, affirmed. | [
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Wood, J.,
(after stating the facts). 1. We would not have disturbed a verdict, under the evidence, for murder in the first degree. There is evidence tending to show that appellant was guilty of murder in the first degree. There is no evidence tending to prove that appellant was guilty of voluntary manslaughter. His crime was murder in the first degree, if anything. By finding the appellant guilty, the jury accepted the testimony tending to prove guilt, and .rejected the testimony of appellant tending to prove his innocence. Since there was testimonj'- tending to' show that appellant was guilty of murder in the first degree, he can not complain because the jury, believing him guilty of some offense, found for a lower degree than that of which he was guilty, if guilty at all. Appellant was not prejudiced by the verdict as to the degree of homicide of which the jury found him guilty, since they might have found him guilty under the evidence of the highest crime- charged in the indictment.
2. There was nothing in the testimony of Doctor Thomas showing that he reached the conclusion that Young Hill was afraid of appellant from conversations had with Young Hill when appellant was not present. The first interrogatory and the answer thereto indicates that Young Hill in a conversation stated that he was going to leave Banks on account of appellant. But neither the question nor the answer indicated whether or not appellant was present when the conversation was had. Indeed, the question was so indefinite it was impossible to’ say with whom the conversation was had, or who was present taking part in it. The whole of the testimony of- Doctor Thomas simply tends to prove that he had reached the conclusion that Young Hill was afraid of appellant. But he nowhere testifies that this conclusion was reached from any conversations he, the witness, had with Hill. The witness reached this conclusion, “taking the circumstances connected there,” and he details what these circumstances were. The case of Casteel v. State, 73 Ark. 152, upon which appellant relies, is not like the case at bar. There the witness was allowed to testify that some months prior to the killing deceased told her that the defendant did not like him, and had imposed upon him. Such testimony was bald hearsay. But such is not the character of the testimony of Dr. Thomas, supra.
3. The testimony of the sheriff to the effect that he found the hat of Young Hill the day after the killing ,in the corner of the room covered up in the beer bottles was not prejudicial to appellant. The sheriff identified the hat as “his” hat, meaning the hat of Young Hill. 'It was proper testimony to disclose to the jury the situation of the deceased and his articles of clothing, and all the circumstances of the place where the killing occurred. The hat was sufficiently identified as that of Young Hill by the term “his” which the witness used in designating it. If appellant disputed that it was the hat of Young Hill and desired a more specific statement of the reasons why the witness concluded that it was the hat of Hill, appellant should have called for such reasons by cross examination on the point, or by specific objection to the effect that the hat had not been sufficiently identified, nor appellant’s connection with placing it among the beer bottles sufficiently established. But this was not done.
4. We find no prejudicial error in the ruling of the court concerning the cross examination of witness Peak. The appellant did not object to the manner of cross examining this witness by the prosecuting attorney until the cross examination had been nearly concluded. He did not then, nor thereafter ask that all the testimony of the witness that had been elicited in the alleged objectionable manner.be excluded. The testimony that was elicited on cross examination after the objection was made was not prejudicial to appellant. We have examined the entire testimony of Peak, and there is nothing in his evidence (giving it full credit and conceding that it corroborated the testimony of appellant as to the reason why he temporarily secreted the body of Young Hill) that tends to excuse or justify appellant in the killing of Hill. The witness Peak did not see the killing. He did not know- why or how it was done, and the jury under the undisputed evidence could have come to no other conclusion than that the attempt to hide the body for a time after the killing was for no other purpose than to give appellant time to remove the liquors he had in his restaurant for illegal sale, before the crowds should gather to investigate the killing. The testimony of appellant and the testimony of Peak show this, and it is not probable that the jury concluded that the hiding of the body of Hill behind the counter, etc., was for any other purpose. There is no evidence anyhere in the record that appellant attempted to deny the killing of Hill. On the contrary, he admitted it from the first. He did not attempt to conceal that fact at any time. We see no error in the ruling of the court in regard to the cross examination of witness Peak.
5. There was no error of which appellant can complain in the giving of instructions 10 and 11 concerning involuntary manslaughter, for the jury did not find appellant guilty of involuntary manslaughter, but of a higher crime. He was not prejudiced, therefore, by the instructions, and the verdict shows that the jury were,not influenced by them.
6. The court correctly charged the jury as to voluntary manslaughter. The case of Tanks v. State, 71 Ark. 459; has no application here. Tanks was convicted of murder in the second degree, when there was no evidence to warrant conviction of any offense above manslaughter. There it could not be said that an erroneous and abstract application of the statute as to manslaughter did not prejudice the minds of the jury and cause them to find the accused guilty of a higher crime than the evidence warranted. As the verdict was for a higher crime and with no evidence to warrant it, and as the instruction was abstract, prejudice in giving it was apparent. But here the verdict was for a lower crime than the evidence warranted, upon any finding of guilt. Appellant, therefore, is not prejudiced, and can not complain of instructions that allowed the jury to find him guilty of a lower grade of homicide than he was really guilty of under the evidence, if guilty at all. The jury found him guilty, but were more lenient in fixing the degree of the crime and its punishment than the law and the evidence warranted, on a finding of guilt.
7. In instruction number 14, the court told the jury that a reasonable doubt is not a mere imaginary or captious doubt, but is one “for which a good and valid reason should be given” etc. This court, in Darden v. State, 73 Ark. 315-320, condemned the words “a reasonable doubt is one for which a juror could give a reason if called upon to do so,” in an instruction defining reasonable doubt. The words under consideration are similar, and add an improper and erroneous qualification to the definition of reasonable doubt contained in the other language of the instruction.
The Supreme Court of Indiana, in passing on an instruction which told the jury that “a reasonable doubt is such a doubt as the jury are able to give.a reason for,” said: “A juror may say he does not believe the defendant is guilty of the crime with which he is charged. Another juror answers, if you have ‘a reasonable doubt of the defendant’s guilt, give a reason for your doubt.’ And under the instruction given in this cause the defendant should be found guilty unless every juror is able to give an affirmative reason why he has a reasonable doubt of the defendant’s guilt. It puts upon the defendant the burden of furnishing to every juror a reason why he is satisfied of his guilt with the certainty which the law requires before there can be an acquittal. There is no such burden resting on the defendant or a juror in a criminal case.”
We approve the above, and all that is said by the Supreme Court of Indiana in Siberry v. State, 133 Ind. 677, 88, 89, 90, concerning the definition of reasonable doubt as stated supra.
But in the Darden case we said: “If this be a defect, which we think it was, it should have been reached by a specific objection. It is one the court would have doubtless readily remedied if its attention had been called to it.” S'o it may be said here. The instruction without these words contained others that have been often approved by this court; and, if appellant had wished the instruction confined to the definition as sanctioned by the court, he should have made specific request for the elimination of the. objectionable words.
Affirm. | [
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Hart, J.
This case is brought to this court by appeal on the part of the defendant, Deb Cravens, from a judgment of conviction in the Clay Circuit Court for the Eastern District of the offense of grand larceny, charged to have been committed by stealing a cow.
Will Crittenden for the State testified that the defendant, Deb Cravens, came to his house to purchase cattle and hogs, and that, while there, he asked defendant if he knew who had a stray cow. The defendant at first replied that he did not, but after studying a while said that some one had asked him about a stray cow. Crittenden gave defendant as good a description of the cow as he -could. After four or five days the defendant came back with the description of the cow just as witness had given it to him on a piece of -paper, which was signed by some one. That defendant consulted with him about taking the cow, saying that he had bought her from a man living down near Rector. Witness told defendant that the c-ow did not belong to him and that he did not know to whom she did belong. That, after some hesitation, the defendant carried the cow away with him. That the cow was what witness called red speckled, and her “other color dirty looking white.”
E. P. Longley, for the State, testified that he was guardian for the Byrd children, minors; that among their property .inventoried by him was a cow; that he would call the cow a spotted one, there being about as much red as. white on her; that'.the cow was running out; that.he, inquired ábout her, and finally heard that the defendant, Deb Cravens, had a cow in his. possession answering the description of the cow belonging to his wards; that he went to see Cravens and described the cow to him, when Cravens said: “I guess that cow is in my lot right now. .You go look at her; and if she is yours, you can take her.” Cravens was busy moving that day, and did not go back with witness. Langley found the cow in Cravens’s lot and carried her home. He came up with Cravens, and he helped drive her a part of the way. The cow had been marked and dehorned. She was marked by one of her ears being cut sloping down from the head to the point, and the other sloping up from the head to the point. Witness could not say how much of either part was left. The thick part of the ear was left.
The defendant testified in his own behalf. Pie said that he had bought the cow from one Maury Keller down in the bottoms, and had driven her along the public highway to his home in town, where he kept her. He said that she jumped into his horse lot and hooked one of his colts, and for that reason he got one of his neighbors to dehorn her; that at the same time another of his neighbors marked her, she being unmarked at the time.
Other witnesses were introduced by the defendant who testified that they were present when he bought the cow. Other witnesses corroborated his statement about the cow being unmarked when he brought her home, and also about the marking and dehorning her.
In rebuttal the State introduced Ed Neely, who testified that defendant, after he was indicted for the larceny of the cow, said that he had done wrong in dehorning and remarking the cow. His brother, who was present, said that he understood the defendant to say the same thing about dehorning and remarking the cow, but that he might have been mistaken. That he and his brother, at the time, were riding in a wagon, which made a great deal of noise, and that defendant was on horseback alongside of the wagon.
The defendant denied this, and said: “I told them I was getting into a little trouble over the cow, and I guessed what the court would hold against me the hardest was for dehorning and marking her, but I thought she was mine then.” He further stated that he did not tell them that he had remarked her. The State also adduced evidence tending to show that Maury Kellar was not in the country at the time the defendant claims to have purchased the cow from him. The defendant adduced other testimony which strongly corroborates his testimony, but it is not necessary to abstract it, for the principal contention of the defendant is that the testimony does not support the verdict. That is to say, he contends that the evidence adduced by the State, when considered in its strongest light, did not warrant the jury in finding him guilty of the larceny of the cow. While the evidence for the State is weak, we think it was sufficient to support the verdict. The defendant gave up the cow, and thereby admitted that she was the property of the prosecuting witness; but he claims to have purchased her, and this brings up the question of his good faith in that respect. The contention made by the defendant in this case is very similar to that made in the case of Douglass v. State, 91 Ark. 492, where a judgment of conviction was affirmed. In that case the court said: “When the stolen property is found in the possession of the accused, and he makes a distinct assertion of title and ownership thereto, it is evidence that he intended to convert the same to his own use, and to deprive the owner thereof. If he makes an explanation of his possession by claiming to be the owner thereof, then the question to be determined is whether such claim of ownership is made honestly and' in good faith. If it is made honestly and in good faith, then' no matter how mistaken the accused may be, he would not have that felonious intent from which larceny could be inferred. But, on the contrary, if the explanation of the possession and the claim of ownership of the property 'involve a falsely disputed identity or are based on fabricated testimony, then the inference of his guilt is strengthened/ and his complicity in the larceny is sufficiently established.”
Counsel for defendant also claim that the cow was over 12 months old when she came into defendant’s possession, and that she was not marked or branded. Therefore they urge that she was not the subject of larceny. This defense is by virtue of section 1898 of Kirby’s Digest, which provides that cattle, if over 12 months old, must be marked or branded; otherwise they are not the subject of larceny. It is sufficient answer to this contention to say that the evidence on this point is conflicting, and the jury by their verdict have found against the defendant on this question. As we have already said, even though the State’s testimony is weak, we can not invade the province of the jury; and their verdict is binding upon us, if there is Substantial evidence to support it.
Again, it is contended by counsel for the defendant that the court erred in not permitting him to introduce certain papers purported to have been' executed by Maury Kellar, which would have tended to show that he was in the country at the time defendant claims to have purchased the cow from him. This testimony the defendant claims to have been offered by him after the prosecuting attorney had -made his opening argument. We can not consider this alleged assignment of error. The bill of exceptions does not show that such testimony was offered to be introduced by the defendant. It is true that such appears to be the' case from the motion for a new trial, but motions for new trials can not be used to bring into the. record that which does not otherwise appear of record. It is the office of a bill of exceptions to bring upon the record matters which do not appear upon the judgment roll or record proper, and motions for new trials have never been used for that purpose. Foohs v. Bilby, ante p. 302; Cox v. Cooley, 88 Ark. 350. In the latter case the court said: “The motion for new trial can not be used, and has never been used, to incorporate anything into the record or any exceptions to anything done by the court. Its sole use is to assign errors already committed by the court, except for newly discovered evidence as provided in the sixth paragraph of section 6215, Kirby’s Digest.”
Counsel for the defendant also asks for á reversal because the court refused him a new trial for newly discovered evidence which tended to show that Maury Keller was in the country at the time defendant claimed to have bought the cow from him. This testimony was cumulative, and motions for a new trial for newly discovered evidence are addressed to the sound discretion of the court. We can not say that the court abused its discretion in refusing to grant defendant’s motion for a new trial on this account. Ward v. State, 85 Ark. 179.
It is also urged that the judgment should be reversed because N. A. Kellar, an uncle of Maury Kellar, was on the jury, which tried the defendant. The fact of his relationship to Maury Kellar did not disqualify him from serving as a juror to try Cravens; and if the defendant believed that Kellar was prejudiced against him, or if for any reason he did not wish him to sit on the jury that tried him, he should have exercised his right to peremptorily challenge him.
In his closing argument to the jury, the prosecuting attorney used the following language:
“I have seen defendants convicted on weaker'testimony, and never knew but one to be acquitted on as strong testimony, and that man walked out of this court room a free man, released by a jury, and the people said they did not see how they did it.” A majority of the court thinks the judgment should not be reversed on this account.
In the case of Kansas City So. Ry. Co. v. Murphy, 74 Ark. 253, this question was discussed at length, and most of our former decisions reviewed. In summing up the court said:
“However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion, the exercise of which is a matter of review.” In the interest of ending litigation a wide range must be given to the arguments of counsel; and much must be left to the good sense and sound judgment of the jury. A majority of the court think the remarks of the prosecuting attorney were merely the general expression of an opinion by him as to what would or would not meet the approval of all good citizens. Tested iby this rule, the majority believe that no prejudice resulted to the defendant from the remarks of the prosecuting attorney, and his remarks present no ground for reversal.
The writer does not agree with this view. The usual admonition to the jury by the court precludes any one from talking to them about the case, and to do so is a grave contempt of court. It seems to me that the principal reason for giving this admonition is lost if the prosecuting attorney, who is a quasi judicial officer, is permitted to tell the jury of the expressed disapproval by the citizens of the county of the verdict of the jury in another case tried in the same court under a state of facts stated by him to be no stronger than those in the case on trial. I believe that such language calls for a reversal for the same reason that a statement of facts not in evidence by an attorney calls for a reversal. That is to say, that it is a statement of a substantive fact not pertinent to the issues, rather than the general expression of opinion. This applies with especial force in a case like the present one where the testimony relied upon for a conviction is weak and barely sufficient to sustain the verdict.
The judgment is affirmed.
Mr. Justice Wood concurs in the dissent expressed in the opinion. | [
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ROBIN F. WYNNE, Judge.
|,Appellant Daniel Lewis appeals following his convictions for aggravated robbery and theft of property, arguing that the trial court erred by denying his motion in limine and his motion for mistrial. We affirm.
The State charged Lewis with two counts of aggravated robbery and two counts of theft of property following a robbery at a Twin City Bank branch in southwest Little Rock on February 5, 2009. On that date, Lewis waived his Miranda rights and gave a voluntary statement in which he confessed to using a firearm to rob the bank and steal a car. Prior to trial, Lewis moved to suppress his confession, arguing that it was coerced. That motion was denied after a hearing. Lewis later filed a motion in limine to preclude the State from using his confession or, alternatively, to sanction the State for destroying potentially exculpatory evidence. In support of that motion, Lewis argued that the State failed to provide a copy of a surveillance video of the room where he had been held and interrogated.
12Puring the hearing on the motion in limine, detectives testified that each interrogation room is monitored by a video/audio camera that records constantly but, due to technology constraints, records over itself every thirty days. Although there is no written policy with regard to the system, it is generally understood that it exists for administrative purposes in the event a suspect alleges a detective behaved inappropriately. In that case, the recording can be retrieved upon request, as long as the request is made within thirty days of the recording. The system is not used as an investigative tool. Detective Terrell Vaughn, who took Lewis’s statement, testified that he did not rely on the surveillance system to record Lewis’s confession; rather, he used a separate tape recorder. Detective Vaughn never went back and reviewed the surveillance video. To his knowledge, no allegation of mistreatment had been made by Lewis in the thirty days following his interrogation. Neither Detective Vaughn nor Sergeant Jim Lesher, who also testified at the hearing, had any reason to believe the surveillance system was not working on the day of Lewis’s interrogation.
Ruling from the bench, the trial court denied Lewis’s motion and found that the video recording in question did not exist. The court also found that, assuming the recording equipment was working properly on the day of the interrogation, Lewis should have requested a copy within thirty days if he believed something improper had taken place. Lewis then proffered testimony that he was locked in an interrogation room all day and that repeated requests for an attorney were denied. He alleged that, after several hours, the detectives paraded his girlfriend — who had been with him shortly before and after the robbery occurred — past his room and told him that if he did not give a statement, they would lock herjjiip. He claimed that a female detective told him that his girlfriend would be locked up and his children would be taken away. Lewis stated that, at that point, he agreed to give a statement in exchange for the detectives releasing his girlfriend without charges. According to Lewis’s proffered testimony, he was arraigned in district court the very next day and spoke to the public defender about the circumstances surrounding his confession. However, it was not until almost two months later that his public defender filed a general motion for discovery on his behalf.
The case proceeded to a jury trial, and during the trial, the State sought to impeach Terri Pippins, Lewis’s sister, based on bias. On cross-examination, the deputy prosecutor asked Pippins if she would ever do something to help her brother “escape,” if she would bring him something he should not have, and whether she had attempted to smuggle contraband to Lewis when she hugged him or brought clothing for him the morning of the trial. Lewis objected to the questioning, and the court cautioned the prosecutor about bringing too much attention to the fact that Lewis was incarcerated pending trial. Lewis then moved for a mistrial, which was denied. The jury found Lewis guilty of all charges, and he was sentenced to a total of fifty years’ imprisonment. This appeal followed.
Motion in Limine
Lewis’s first point on appeal is that the trial court erred by denying his motion in limine regarding the surveillance video. The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Morris v. State, 358 Ark. 455, 14458, 193 S.W.3d 243, 246 (2004). Moreover, we will not reverse absent a showing of prejudice. Id.
Lewis contends that the trial court erred by finding that the surveillance video “never existed.” It is possible that Lewis misconstrues this ruling, because at no point did the trial judge say that the video “never existed.” It is unclear from reviewing the transcript whether the judge found that the video never existed or that it no longer existed at the time Lewis requested a copy of it. In either case, the trial court properly denied Lewis’s motion. The State is only required to preserve evidence that is expected to play a significant role in the defense, and then only if the evidence possesses both an exculpatory value that was apparent before it was destroyed and a nature such that the defendant would be unable to obtain comparable evidence by other reasonably available means. Autrey v. State, 90 Ark.App. 131, 142, 204 S.W.3d 84, 89 (2005). To prove a due-process violation based on the destruction of potentially useful evidence, the defendant must also show bad faith on the part of the State. Id., 204 S.W.3d at 90. At least two of these elements are not present in this case.
Although Lewis argues that the detectives’ knowledge of the surveillance system’s purpose meant they understood the video’s exculpatory function, the record contains no evidence that any exculpatory value in this particular recording was apparent before its destruction. The testimony at the motion hearing indicated that no request for the video or allegation of misconduct had been made until well after thirty days had passed. The State could not have known at that time that the video would become important to Lewis’s case. Lewis points to the testimony of a Federal Bureau of Investigations agent, Special Agent John LBrunell, who stated that, pri- or to giving his statement, Lewis expressed concern about officers fabricating charges against his girlfriend. However, that testimony was taken at a different hearing — the hearing on Lewis’s initial motion to suppress — several months before the surveillance video ever became an issue, and Special Agent Brunell did not testify at the hearing on Lewis’s motion in limine. Furthermore, the testimony itself does not support Lewis’s argument. According to Special Agent Brunell, Lewis only expressed concern that his girlfriend would become involved; he did not indicate that he had been threatened with her involvement.
Furthermore, Lewis has not shown that the detectives acted in bad faith. We have held that a bare contention of bad faith, without supporting facts, does not demonstrate that the State acted in bad faith in destroying evidence. Autrey, 90 Ark.App. at 142, 204 S.W.3d at 90. Evidence that police followed standard operating procedures constitutes evidence that they acted in good faith. Id. Although Lewis contends that there was no official policy or procedure for the detectives to follow in this case, the testimony merely indicated that there was no written policy. Both Sergeant Lesher and Detective Vaughn testified regarding the system’s purpose, who had access to the recordings, and under what circumstances the recordings would be retained. Therefore, a policy did exist, and from all accounts, the State followed that policy. Yet even if there had been no policy, Lewis has not cited to any authority to support his argument that “bad faith can and should be inferred from the lack of any official retention policy for these recordings.” It is axiomatic that this court will not | fientertain an argument where there is no citation to authority or convincing legal argument. Mills v. State, 351 Ark. 523, 529, 95 S.W.3d 796, 799 (2003).
Also, Lewis argues that it places an unreasonable burden on defendants to require them to request a copy of the surveillance video within thirty days, and he points to the fact that his public defender did not file a motion for discovery until sixty-five days after the interrogation. We find this argument unpersuasive, as it requires the assumption that a defendant cannot request a copy of the video without the assistance of an attorney. That simply is not true. Even if it were true, Lewis himself admitted during his proffered testimony that he was arraigned the very next day after the interrogation and that he discussed the circumstances of his confession with a public defender at that time. Presumably, if Lewis believed that his confession had been coerced, he would have raised the issue at that time, well within the thirty-day limit. To the extent that he contends the assistance of an attorney was necessary to do that, it is clear he had access to that kind of assistance within twenty-four hours of giving the allegedly coerced statement.
Motion for Mistrial
For his second point on appeal, Lewis argues that improper comments by the prosecuting attorney violated his right to a fair trial and that the trial court erred by not granting his motion for mistrial. A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction to the jury. Peters v. State, 357 Ark. 297, 302, 166 S.W.3d 34, 36 (2004). The decision to grant a mistrial is within the sound discretion of the trial court 17and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Id. Among the factors we consider on appeal is whether the defendant requested a cautionary instruction or admonition to the jury, and the failure of the defense to request an admonition may negate the mistrial motion. Bragg v. State, 328 Ark. 613, 627, 946 S.W.2d 654, 662 (1997). The failure to give an admonition or cautionary instruction is not error where none is requested. Id. In addition, we consider whether the prosecutor deliberately induced a prejudicial response. Parker v. State, 355 Ark. 639, 650, 144 S.W.3d 270, 276 (2004).
In this case, although Lewis moved for a mistrial after the offending questions had been asked, he did not request a cautionary instruction or admonition to the jury. This bars him from arguing that the court erred by not attempting to cure any prejudice the questions may have caused. Further, it is not apparent that the prosecutor deliberately attempted to induce a prejudicial response. The purpose of the questions was to impeach the witness, not to inform the jury that Lewis remained incarcerated pending resolution of the trial. In any event, any resulting error was harmless and would not warrant reversal. See Tallant v. State, 42 Ark.App. 150, 154, 856 S.W.2d 24, 26 (1993). The jury was presented with ample evidence proving Lewis’s guilt, including his own confession. The prosecutor’s reference to Lewis’s pretrial incarceration was insignificant given the entire facts of the case.
Affirmed.
GLADWIN, J., agrees.
HART, J., concurs. | [
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JIM GUNTER, Justice.
| Appellant appeals the circuit court’s order affirming the suspension of his driving privileges. On appeal, appellant argues that the circuit court erred in finding that Ark.Code Ann. § 5-65-402 (Supp.2009) was constitutional. Because this is an appeal challenging the constitutionality of an act of the General Assembly, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(6). We find no error and affirm.
On December 21, 2010, appellant was pulled over by an officer with the Arkansas State Police on suspicion of driving while intoxicated (DWI). After failing three field-sobriety tests, appellant was placed under arrest for the offense of DWI (Drugs). Appellant was required to surrender his driver’s license and was issued a temporary driver’s license that was valid for thirty days. Pursuant to statutory requirements for first-time offenders, appellant’s driver’s license was suspended for six months, and his commercial driver’s license (CDL) was | ^disqualified for one year.
■ Appellant requested an administrative hearing to contest the suspension of his driving privileges, and a hearing was held on January 7, 2011. At the hearing, appellant presented a note from his physician, Dr. Marian Rhame, and results from urine and blood tests performed by Dr. Rhame on December 28, 2010, which showed that appellant’s urine drug screen was positive for opiates. In the note, Dr. Rhame explained that
Mr. Miller has chronic back pain for which he uses a Fentanyl patch and percocet to control his pain.... He was seen in my clinic on 23December2010 and had a negative serum alcohol level and a urine drug screen positive for opiates which was expected. He also was noted to have a sinus infection which has been causing him to have vertigo and has been dropping his blood sugars. These findings may account for his odd presentation when arrested by a State Trooper recently for possible DWI.
Based on the arresting officer’s sworn statement, as well as the test results provided by appellant, the hearing officer, Maureen Strobel, upheld the suspension of appellant’s CDL for one year and appellant’s non-commercial driver’s license for six months. However, according to the hearing summary, appellant was eligible for a restricted Class D non-commercial license during those six months. The suspension of appellant’s driving privileges was scheduled to take effect on January 21, 2011.
On January 14, 2011, appellant filed a petition for de novo review in the Washington County Circuit Court and requested that his driving privileges be reinstated during the pendency of the appeal. On January 31, 2011, the court entered an order declining to stay the suspension of appellant’s driving privileges at that time and setting a hearing on the matter for February 8, 2011. For reasons unclear from the record, the February 8 hearing was continued until February 24, 2011.
^Immediately prior to the hearing on February 24, 2011, appellant filed a motion to have Ark.Code Ann. § 5-65-402 declared unconstitutional. Appellant argued that the statute violated the due process clause, both on its face and as applied, because he did not receive a full and fair administrative hearing. Appellant asserted that the hearing officer, Maureen Stro-bel, was biased against him and that he was denied a fair hearing because he could not subpoena any witnesses or present evidence favorable to him for the hearing. Finally, appellant argued that the de novo review by the circuit court was inadequate to cure this Fourteenth Amendment due-process violation.
At the hearing, the court acknowledged that a motion to have § 5-65-402 declared unconstitutional had been filed that day but found that it was not ripe for consideration, as the Attorney General’s office had not yet been notified. Maureen Strobel, who was subpoenaed by appellant, testified that appellant had wanted an extension on the administrative hearing so that he could gather more witnesses and more evidence and that he believed it was not fair that the arresting officer was not there to testify. She testified that she told appellant that as long as she had the officer’s sworn statement, she was bound to uphold the suspension; that the only thing she considered was the officer’s report; that she would always believe the officer’s sworn statement; and that this was the way that administrative hearings were conducted around the state. She testified that, at the hearing, she did not have the police narra-five from the arresting officer, the report from the drug recognition expert, |4or the crime lab results from the urine sample taken from appellant the morning of the arrest. She also testified, however, that she had reviewed the documents that appellant brought to the hearing and considered them in her decision-making process. She also noted that appellant had failed to call to her attention any specific item, testimony, or evidence that contradicted anything that was in the officer’s report.
Appellant also testified at the hearing and stated that he was told by Strobel that she did not give back driver’s licenses at administrative hearings. Appellant testified that Strobel said that sometimes the hearings were not fair and that she had nothing from the State to show that appellant was guilty. Appellant testified that she also told him that she had previously returned a person’s license and gotten in trouble for it. He testified that he complained at the hearing that the police were not compelled to be there. At the conclusion of the hearing, the court decided to stay the suspension of appellant’s driving privileges until a full hearing could be had on the matter. An order to this effect was entered on February 28, 2011, and a final hearing was scheduled on March 15, 2011.
At the final hearing, Anita Boatman, assistant administrator for the Office of Driver Services, testified that she had formerly been a hearing officer and that she had undergone training to become a hearing officer. She testified that, in a contested hearing, the hearing officer has the responsibility of making a determination, based on the preponderance of the evidence, whether the arresting officer had reasonable grounds to believe the person was driving while intoxicated. She testified that a hearing officer would consider any evidence submitted to him or her, whether submitted by the law enforcement officer or by the | .¡¡licensee, and that there was no limitation on what documents can be presented by the licensee or who the licensee can bring to the hearing to give testimony. Boatman testified that hearing officers are not trained to give greater weight to the officer’s sworn report and that if a hearing officer believed he or she could not consider evidence contrary to the officer’s report, that belief would be inconsistent with the hearing officer’s training. Boatman testified that, based on Strobel’s testimony, Strobel was not holding the administrative hearings correctly.
After Boatman’s testimony, the court heard arguments from counsel, and appellant requested a continuance so he could procure additional witnesses to counter Boatman’s testimony. The court agreed to the continuance, particularly noting that Strobel’s testimony was inconsistent with Boatman’s testimony. A final hearing was held on May 9, 2011, at which Boatman again testified and stated that she had reviewed the summaries of the hearings performed by Strobel and that the results of the hearings did not match Strobel’s testimony. Boatman testified that Stro-bel’s testimony implied that an officer’s sworn statement would always override any other evidence, and yet there were hearings at which Strobel had ruled in favor of the licensee. From this, Boatman testified, it did seem that Strobel weighed all the evidence presented to her in making a decision. In addition to Boatman’s testimony, the court also heard testimony from two other hearing officers, who both testified that they consider all the evidence presented to them, whether it is submitted by the police or by the licensee.
Following this testimony, the court heard additional arguments from counsel regarding the constitutionality of the statute. Appellant argued that the statute was unconstitutional as applied, because Strobel only considered the evidence from the officer’s sworn report, and that Rthe statute was unconstitutional on its face, because appellant had no power of subpoena to compel witnesses or other evidence. After taking a brief recess, the court made the following ruling from the bench:
The testimony of Ms. Strobel earlier in this hearing was that she, also — that she considered the letter from Marian Rhame, M.D., primary care physician in Fayetteville.
Certainly there could be a situation where Arkansas Code Annotated 5-65-402 was applied in an unconstitutional way; however, I find, in this case, that it was applied constitutionally, that Mr. Miller was given an adequate hearing at the administrative level and that all of his due process rights were upheld.
So I decline to find that 5-65^02 was unconstitutional as applied.
After hearing additional testimony from the arresting officer, the drug recognition expert, and appellant, as well as arguments from counsel, the court found that appellant was driving while impaired by intoxicants; that the State had met its burden of proof by a preponderance of the evidence; and ordered that the original suspension of appellant’s driving privileges from the administrative hearing be reinstated. A written order incorporating the court’s rulings was entered on June 1, 2011, including the court’s finding that “Respondent provided Petitioner with an administrative hearing that did not violate Petitioner’s rights of due process. Therefore, Ark.Code Ann. § 5-65-402 is not unconstitutional as applied to Petitioner.” Appellant filed a notice of appeal from this order on June 7, 2011.
In our review of the case, this court reviews the circuit court’s order and determines whether the court’s findings were clearly erroneous. Burdine v. Ark. Dep’t of Finance & Admin., 2010 Ark. 455, 879 S.W.3d 476. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court based on the entire evidence is left with a firm 17conviction that a mistake has been committed. Id. We review the circuit court’s interpretation of the constitution de novo, and though this court is not bound by the circuit court’s decision, its interpretation will be accepted as correct on appeal in the absence of a showing that the circuit court erred. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007). It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality that requires the incompatibility between it and the constitution to be clear before we will hold it unconstitutional. See, e.g., Cato v. Craighead County Cir. Ct., 2009 Ark. 334, 322 S.W.3d 484. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality, and the heavy burden of demonstrating the unconstitutionality is upon the one attacking it. Id. If possible, this court will construe a statute so that it is constitutional. See McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006).
On appeal, appellant reasserts his position that § 5-65-402 is unconstitutional, both on its face and as applied, as it violates the Due Process Clause of the Fourteenth Amendment. As a threshold matter, we note that the circuit court ruled only on the constitutionality of the statute as applied. The failure to obtain a ruling on the facial challenge precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. See Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008). Thus, the only issue for this court’s review is whether the statute is unconstitutional as applied.
The United States Supreme Court has made clear that a driver’s license is a constitutionally-protected interest and due process must be provided before one can be deprived of his or her license. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). The hearing required by |8the Due Process Clause must be “meaningful” and “appropriate to the nature of the case.” Id. at 541-42, 91 S.Ct. 1586. The appropriate process due in a given situation generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
In Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the Court reviewed an Illinois statute and administrative regulations that provided for summary suspension or revocation, based on official records, of the license of a motorist who has been repeatedly convicted of traffic offenses, with a full administrative hearing available only after the suspension or revocation had taken effect. The Court held that, under the Mathews criteria, the statute and administrative regulations did comport with due process.
In Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), the Court examined a Massachusetts statute that mandated suspension of a driver’s license if a licensee refused to take a breath-analysis test upon arrest for driving while under the influence of intoxicating liquor. The licensee, Montrym, argued that the statute was unconstitutional on its face because it authorized the suspension of his driver’s license without affording him an opportunity for a pre-suspension hearing. The Court held that the case was materially indistinguishable from Love and that the statute in question did not violate due process. The Court explained:
13[W]hen prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible government official warrants them to be.
Id. at 13, 99 S.Ct. 2612.
In the present case, appellant contends that his administrative hearing was flawed because the hearing officer, Maureen Strobel, testified that she only considered the State’s proof, which resulted in a “sham” hearing. In support of this argument, appellant cites In the Matter of Sweeney, 257 A.2d 764 (Del.Super.Ct.1969). In Sweeney, a licensee was arrested for driving under the influence, and his driver’s license was revoked for six months after he failed to consent to submit to a blood test to determine his blood-alcohol level. The arresting officer reported Sweeney’s refusal in a sworn written report, and upon receipt of the report, Sweeney’s license was suspended by the Motor Vehicle Commissioner. Sweeney requested a hearing, at which the arresting officer did not appear. On appeal, the superior court judge held that Sweeney was entitled to a fair hearing and that his due process rights were violated when the Commissioner received the officer’s report in lieu of the officer’s testimony.
Appellant suggests we look to Javed v. Department of Public Safety, Division of Motor Vehicles, 921 P.2d 620 (Alaska 1996), for what constitutes a meaningful hearing under due process. In Javed, the Alaska Supreme Court held that, in cases where there is an issue as to whether the accused was actually driving a vehicle, due process requires an inquiry into this issue before the accused’s driver’s license can be suspended. The court explained that, under the Alaska Constitution, licensees are entitled to a “meaningful hearing,” which “would |inrequire the presence of the arresting officer, the production of the report of the arresting officer and any tape recordings, videotapes, or transcripts concerning events surrounding the arrest, and the presence of witnesses having evidence to offer on contested points.”
Appellant also cites to cases from other jurisdictions where statutes governing the administrative suspension of driver’s licenses have been held in violation of the due process clause. For example, in Thomas v. Fiedler, 700 F.Supp. 1527 (E.D.Wis.1988), a federal district judge found that Wisconsin’s administrative procedure for suspending the driver’s license of anyone who tests positively for driving while impaired was unconstitutional. Under the Wisconsin administrative procedure, the driver was given the right to present evidence but was precluded from subpoenaing the arresting officer or other witnesses. Also, regardless of the evidence presented by the driver, the hearing officer would accept the unsworn report of the arresting officer as being true. While recognizing that these shortcomings could be held insufficient to render the procedures unconstitutional if a prompt post-deprivation hearing was provided for, the court found as well that the judicial review provided for was neither meaningful nor timely.
|nAnother recent case cited by appellant is Kempke v. Kansas Department of Revenue, 281 Kan. 770, 138 P.3d 104 (2006), in which the Kansas Supreme Court held that even though a driver could not call additional witnesses at the administrative hearing, his due process rights were not violated because the suspension of the driver’s license did not take place until after a de novo appeal to district court, where he could call other witnesses. Appellant contrasts this case with the Arkansas statute, which provides that an appeal to circuit court does not operate as a stay of the hearing officer’s decision but that the circuit court can stay the decision. Ark.Code Ann. § 5-65-402(c)(2). Finally, appellant argues that his license was suspended for at least fifty-two days before the final de novo hearing took place, specifically from January 7, 2011, to February 28, 2011, which “far exceeds the time frame in which a meaningful hearing should be conducted under the federal due process clause of the Fourteenth Amendment.”
Keeping in mind that our review is limited to the constitutionality of the statute as applied to appellant, we hold that appellant has failed to demonstrate that the circuit court erred in finding that the statute was constitutional. First, despite appellant’s assertion that Strobel only considered the State’s proof, the circuit court specifically found that Strobel had also testified that she considered the letter from appellant’s doctor in reaching her decision, and appellant makes no argument that the court’s finding was clearly erroneous.
Second, the cases cited by appellant in support of his argument are distinguishable or 112actually support a finding of constitutionality in the present case. Sweeney was decided before the Supreme Court decisions holding that reliance on the sworn reports of police officers is acceptable and presents an “insubstantial” risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer. See Mackey, 443 U.S. at 14, 99 S.Ct. 2612. Javed, as previously noted, was based on an interpretation of the due process clause in the Alaska Constitution, not the federal due process clause. And finally, both Thomas and Kempke acknowledge that the availability of a de novo hearing before the circuit court can cure any alleged defect at the administrative level.
Third, the Supreme Court has made clear that, in driver’s license suspension cases such as this, “something less than an evidentiary hearing is sufficient prior to adverse administrative action” as long as there is prompt post-deprivation review available for correction of administrative error. See Mackey, 443 U.S. at 13, 99 S.Ct. 2612. In the present case, the administrative order of suspension was entered on January 7, 2011, and scheduled to take effect on January 21, 2011; appellant’s request to stay the suspension of his driving privileges was granted on February 28, 2011; and a de novo hearing was held on March 15, 2011. At appellant’s request, that hearing was then continued until May 9, 2011. Even including the time between March 15 and May 9, appellant’s final de novo hearing was held seventy days after the stay was granted by the circuit court, which is well within the one-hundred-twenty-day limit imposed under § 5-65—402(c)(2)(C)(i). Thus, we hold that § 5-65-402 is not unconstitutional as applied to appellant in this case.
| ^Affirmed.
. In a letter filed March 14, 2011, the Attorney General's office declined to intervene in the case.
. This language in Javed is quoted from a footnote in Graham v. State, 633 P.2d 211 (Alaska 1981). Graham specifically acknowledged that Mackey, supra, had reached a different result but found that it was not bound by that decision in construing the due process clause of the Alaska Constitution. In contrast, the present case argues a violation of the federal due process clause.
. Based on these findings, the court granted a preliminary injunction that enjoined the application of the administrative procedures; however, the state’s appeal from this order was later rendered moot by the Wisconsin legislature’s amendment of the statutes in question to address the district court’s concerns. See Thomas v. Fiedler, 884 F.2d 990 (7th Cir.1989).
. As acknowledged by appellant at oral argument, he is incorrect in this calculation. The suspension of appellant’s license was not effective until January 21; thus, his driving privileges were suspended from January 21 till February 28, when the circuit court stayed the suspension, which is a total of thirty-eight days.
. We also note that during the time that appellant’s suspension was in effect, from January 21, 2011 to February 28, 2011, appellant was not actually deprived of all driving privileges, as he obtained a restricted license pursuant to Ark.Code Ann. § 5-65-120. | [
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Wood, J.,
(after stating the facts). As we said in Ex parte Winn, 105 Ark. 190, “No question is raised here as to the form in which a review by this court is sought. Therefore, we pretermit any discussion of that question, as the case may he treated as being here either on appeal or on writ of certiorari.”
The information under the official oath of the prosecuting attorney and the citation directed by the judge to be issued by the clerk, setting forth the information showing the grounds upon which the petitioners were cited to appear and show cause why they should not be dealt with for contempt, were sufficient to give the court jurisdiction. The information made by the prosecuting attorney under his official oath was sufficient, even though not specially verified by him, to meet the requirements of the law, as an accusation setting forth the offense with which the- petitioners were charged. The citation alone, embodying tbe information which the court ordered to be entered upon its record, was sufficient to meet the requirements of the law, as announced by the court in CarlLee v. State, 102 Ark. 122, to give the accused petitioners information of the offense with which they were charged.
The citation was duly served upon the petitioners Moseley and Freer before the return day thereof, and although the appellants Poindexter and Going were not served before the return day, they were served before the cause was heard. All the petitioners appeared and made no objection to the service. They therefore can not now complain that they were not duly served with process.
It is unnecessary to determine as to whether the information and citation stated facts sufficient to constitute a contempt of court, for the whole case was developed on evidence taken before the court, and the question now is as to whether or not the evidence was sufficient to warrant the court in finding the petitioners guilty of contempt.
Treating the testimony bearing upon the case of each petitioner separately, we are of the opinion that there was no evidence to warrant the court in adjudging Poindexter guilty of contempt. There was no testimony to warrant the inference that he was instrumental in inviting the bailiff and the juror to the room he occupied for the purpose of furnishing liquor to influence the juror in rendering his verdict. His generosity and courtesy in sharing his room, in an emergency, with associate counsel made him the innocent victim of the unfortunate circumstances, which afterwards developed and over which he had no control, that doubtless caused the trial judge to conclude that he was concerned, or at least acquiesced, in the improper conduct of the other petitioners.
Poindexter didn’t know that Going had a bottle of liquor when he consented to share the room with him. He didn’t know that Going had invited any one to go to Ms room for the purpose of drinking liquor, much less the bailiff and the juror. When the bailiff and the juror knocked at the door of Poindexter’s room and were invited to come in he didn’t know before their entrance who it was that knocked nor what their purpose was. The liquor didn’t belong to him. It was brought to the room without his knowledge. He didn’t ask them to take a drink, but simply continued making his toilet, as he was doing at the time they entered the room. Instead of inviting the bailiff and the juror to take a drink of liquor, he states that he protested, saying, “You ought not to come here; you are .going to get us all into trouble. ’ ’
Poindexter had never taken a drink of liquor in his life and didn’t approve of' the use of it by others. He had notMng to do whatever with the episode and should not be censured and held for contempt merely because he failed to exclude the bailiff and the juror from his room; nor should he be held for contempt because he failed to report the matter to the circuit judge.
The court, from the questions propounded to Poindexter, seems to have considered that it was the duty of Poindexter to have called the matter to his attention as soon as it occurred, but we do not agree with the court, and are of the opinion that Poindexter gives a perfectly reasonable and plausible explanation of why he did not do so, wMch should have been accepted by the court.
Poindexter testified that had he known, when the door was closed and the knocMng was heard at the door, that it was the bailiff and one of the jurors, he would not have said “come in,’’ and “he would not have stayed in the room if he had had time to consider the matter, but it was one of those things that comes so suddenly that a person does not have time to make up his mind as to what is best to do.” Freer was not a friend of Poindexter, and, while the latter fully appreciated the fact that it was improper for Freer and the juror to be in his room under the circumstances, yet he did not feel called upon to give publicity to the matter because he was in no way responsible for the unfortunate and embarrassing situation, and doubtless felt that if he had reported the matter to the court it might have prejudiced the juror against Mm, and in some way have jeopardized the interest of Ms client.
In our opinion the testimony thoroughly exonorates Poindexter from any contemptuous conduct, and the court erred in not so holding.
The cases of Going, Freer and Moseley are different from Poindexter’s. The testimony of the bailiff, Freer, and the juror, Moseley, shows that on the evening after the arrival of Going’, they met him at the head of the stairs in the hotel, and he invited them to his room to take a drink of whiskey. Going testified that he wouldn’t invite a juror to his room and would not give him a drink with a view of influencing him, and' that he ‘ ‘ did not know by what means Freer or Moseley knew that there was whiskey in' his room, unless one of them spoke to him and he, not knowing that the bailiff or juror was connected with the court, replied that he had some whiskey.” Going does not deny that he extended to Freer and Moseley an invitation to take a drink of whiskey in his room. He only says that he did not know that the one was the bailiff, and the other a juror. He says, at that time, they were strangers to him. So the testimony shows that he met these men, whom he did not know personally,- and of whose official character he was not then advised, and invited them to his room to take a drink of whiskey, without first taMng the precaution to inquire whether either one had any connection with the trial then in progress. Yet he knew the crowded condition of the hotel, and must have known that the jury in charge of the bailiff was being entertained there. On the second occasion, when the juror and the bailiff went to his room on their own motion to get a drink of wMskey, he did know of their relation to the trial, yet he did not admonish them.that it would be improper, on account of the connection they all had with the trial, and because of the court’s instructions, for them, with or without his invitation, to drink of his liquor in his room. In expía nation of Ms conduct on tMs occasion, lie says: “I would not knowingly permit a juror to come to my room, but when you have got a man’s life on your hands, and a juror comes to your room, the question of what you would do, or wouldn’t do, is a proposition that no man can say until they go through that very experience.”
Now, when Senator Going left the Senate to go to the dry town of Walnut Ridge to serve as lawyer in the defense of a client who was on trial for murder, he equipped himself with what he termed a “vial” of liquor, and being a vial it was presumably for Ms own use. But on the evening after Ms arrival we find him prepared from that “little bottle of medicine” “to give strong drink unto Mm that is ready to perish and wine to those that be of heavy hearts.” Both the bailiff and the juror Moseley seem to have been in that condition. For the bailiff, after he and the juror were invited, though protesting that the juror “shouldn’t go,” that it was “shaky” for him to do so, nevertheless permitted him to go, and went with him, and took a drink himself from Going’s vial. The juror who “never refused a drink” when asked to take one, and who took it when he found it whether asked or not, said that he “felt bad, he was tired and worn out, was not used to being penned up like cattle” and “had to have a drink,” and was going after it whether the bailiff went with Mm or not. It should be here remarked that Going’s vial contained enough liquor, as shown by his own testimony, to furnish a drink “to several persons” on two occasions, besides the bailiff and juror.
So here we have the spectacle of one of the leading lawyers for the defense, in his private room, giving liquor to one of the jurors and also to the bailiff having the jury in charge. The bailiff was shown to be in sympathy with the prosecution, and it was believed that the juror Moseley at that time was also unfavorable to the defendant. But there was no verdict, and after the mistrial it was found that juror Moseley was one of two who voted for a verdict of manslaughter, while eight were for mur der in the first degree, and two for mnrder in the second degree. The defendant, on a second trial, was convicted of murder in the second degree and sentenced to twenty years in the penitentiary.
It occurs to us that the maxim ignorantia legis neminem excusat applies with peculiar force to one who at the time of his alleged offense was not only a lawyer, but also one of our lawmakers. He should be held to know the law and also the proprieties of professional conduct, and the rules of court that must obtain in the orderly administration of the law. So far as the bailiff and the juror are concerned, they were under the positive orders of the court “to stay as nearly as yon can separated from the crowds around the hotel” and “to let your conduct be free from any sort of criticism.” Their conduct therefore can only be explained upon the theory that their appetite got control over their judgment, under the insidious influence of the bewitching announcement by Going that the whiskey they were invited to drink was “sixteen or twenty years old,” and when they took one drink they found it “mighty fine stuff,” and “had to have” another.
Courts were created for the purpose of protecting life and property, and preserving all the sacred rights vouchsafed by the Constitution and statutes. The happiness and well-being of society and the perpetuity of our institutions depend upon the integrity, independence, conservatism and courage of the courts in upholding the majesty of the law. To carry out the wise purposes of their creation they must always maintain their own dignity and enforce obedience to their authority. The jury through all the ages since Magna Charta has been retained as an essential part of the judicial system. It is impossible to keep the fountains of justice clean and pure unless the jury is free from contaminating influences. Strong drink therefore should be neither for judges nor jurors, “lest they drink and forget the law, and pervert righteous judgment. ’ ’
What shall the. penalty be? The parties have dis claimed any intentional wrong-doing, and we have readied the conclusion that such was the case. Nevertheless, the conduct under review was well calculated in the eyes of the public to bring- the law, and the tribunal charged with its enforcement in that jurisdiction into contempt. Hence the trial court was correct in calling petitioners Going, Freer and Moseley to account, and in rebuking'and punishing them for contempt. But as they sought in every way to purge themselves of intentional disrespect for the court and testified that nothing was said concerning the merits of the case, we are of the opinion that justice will be done, and the dignity and authority of the court vindicated, when the fine imposed is paid, -without the jail sentence, of which petitioners should be relieved. It is so ordered, and the judgment otherwise affirmed. | [
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Kirby, J.
Appellant appeals from a judgment of conviction of murder in the first degree for killing his wife.
The testimony shows that J. L. Smith and his wife took dinner on the day of the murder at appellant’s house, and that after dinner his wife, the deceased, accompanied Mrs. Smith home. No ill feeling was known by her to exist between appellant and his wife, and she was well acquainted with the family, having lived close to them and known them for a long time. Appellant, shortly afterward, came to Smith’s house, where his wife was visiting, and asked her when she was coming home, and she replied, “Pretty soon,” and he said, with an oath, “You need not come back at all,” and went home. The deceased and Mrs. Smith then went to Mrs. Casey’s, next door,- and the defendant returned shortly and asked Ms wife, “Why didn’t you come home?” and she replied, “You told me I needn’t come unless I wanted to, and I am not coming.” He thereupon grabbed her and attempted to cut her throat with a knife, which was taken from Mm by a couple of other women present; he then threw his wife off of the porch into the yard and jumped on her and stamped her in the face with his foot, and then took up a stick of stovewood and beat her over the head with it, wMle she was continually begging.him to desist, saying, “Honey, please don’t,” and the other women were trying to prevent Mm beating her. He finally caught her around the neck and dragged her away to his home, still carrying the stick of wood with M-m
The wife’s face and head were crushed by the blows, and she died at 1 o ’clock the next morning.
The constable testified that he went to Scott’s house, after being telephoned about 5 o’clock in the afternoon; that there was no one there but Scott and Ms wife, and he did not go into the house until after the doctor came. The reason he did not go in was that Casey hallooed to Mm that he had taken to the woods. He said further that the only reason that appellant gave for committing the act was jealousy. .There was also testimony tending to establish the insanity of appellant.
Appellant relied upon insamty as a defense, and the court, over Ms objections, among others, gave instruction numbered 4, as follows :
“You are instructed that the proof of the presence of a motive or the absence of a motive upon the part of the defendant wdth reference to the killing of Ms wife has absolutely notMng to do with tMs ease. It is not incumbent upon the State to prove either the presence or the absence of a motive for the Mlling; and the presence or the absence of a motive has no bearing whatever upon an issue of insanity as a defense to the crime of murder.”
This court has held that it is not proper for the court in its instructions to single out the proof of motive or the absence of motive, and tell the jury that they may consider that as a circumstance in favor of the guilt or innocence of the accused. That by doing so undue weight is given the proof, thus invading the jury’s province; that it is error to single out the question of motive for the commission of the crime, and point to it as a proper subject of consideration as an evidence of defendant’s guilt, and that it is equally erroneous and improper to point to the want of motive as an evidence of his innocence.
“In criminal prosecutions it is competent to introduce testimony of facts and circumstances tending to show a motive or absence of motive for the commission of the crime by the accused, as tending, with more or less force, to establish his guilt or innocence., It is not improper for the court to instruct the jury that they may consider such testimony for that purpose. But this should be done in connection with all the other facts and circumstances proved.” * * * Ince v. State, 77 Ark. 418.
The instruction is erroneous in stating that the proof of the presence or absence of a motive upon the part of the defendant for killing his wife had absolutely nothing to do with the case. It is true, it is not incumbent upon the State to prove, either the presence or the absence of the motive, but the jury had the right to consider such testimony in determining the guilt or innocence of the defendant, and the court, in the instruction, is in error in declaring that the presence or absence of a motive had no bearing whatever upon an issue of insanity as a defense to the crime of murder. The instruction virtually told the jury that they could not consider the proof, relative to the presence or absence of a motive for the killing ; that that had absolutely nothing to do with the case and no bearing whatever, upon an issue of insanity as a defense to the crime charged. Since the appellant was-entitled to a consideration by the jury of the testimony, relating to the presence or absence of a motive for the commission of the crime, he was, in effect, deprived of this right by the said instruction, which was also erro neons, as given, in singling out the proof relative thereto.
The evidence shows the unprovoked and brutal murder of deceased by her husband, the appellant, who gave no explanation of his act, and plead as a defense to his crime his insanity.
The erroneous instruction was prejudicial, in declaring that the proof, relating to the presence or absence of motive, had no bearing whatever upon the issue, and, in effect, a direction to disregard it, and the case must be reversed on that account, according to the opinion of a majority of the court, in which I do not concur.
The judgment is reversed and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). Appellee, by this suit, seeks specific performance of a contract for lease of land with option to purchase, which was entered into more than twenty-two years before the suit was brought, and about eighteen years after the contract had expired by its own terms. Appellee contends that at the expiration of the time for the performance of the contract, the forfeiture for a noncompliance with its terms on his part to pay the purchase money was waived, and that the contract was continued under an oral agreement with the vendor to allow appellee to remain in possession under the same terms for another five years, and at the expiration of that time that there was another waiver and a continuance of the contract for another five years, and so on until this suit was instituted, and that the time to which the contract had been extended by an oral agreement with Monroe, the owner of the land, had not expired at the time appellee instituted this suit. At the time the contract expired, appellee had not paid any of the principal of the note for the purchase money.
In Meigs v. Morris, 63 Ark. 100, we held (quoting syllabus): “In order that a court of equity may exercise its power to decree specific execution of a contract to convey land when there has been a part performance thereof, the proof of such contract must be clear and unambiguous, and must be either admitted or proved with a reasonable degree of certainty.”
The written contract between Monroe and the appellee having expired, the effort by the appellee is to extend it by parol agreement, and the rule above announced applies.
It could serve no useful purpose to discuss at length the evidence in the case. It is purely a question of fact as to whether appellee and Monroe abandoned the contract upon the failure of appellee to pay for the land, and whether, after its expiration, they agreed to enter upon a contract for leasing the lands to the appellee without an option to purchase.
We are of the opinion, after a careful consideration of the testimony, that a decided preponderance of the evidence shows that the contract giving appellee the option to purchase the land was abandoned, if not before, at least on the 12th day of December, 1901, for, on that date, it appears from the entries made in the books of Monroe by the bookkeeper, that there was a balance of $846.29 due from appellee to Monroe that was dropped from his account; that same was never paid to Monroe, or any part of it, and that after that time Pettus was never charged with any taxes on the land. It is unreasonable to conclude that Monroe would have cancelled this debt which was due him on the purchase of the land if he still intended to treat the contract for the sale of the land to appellee as in force; and the fact that after that time, no taxes were charged against him, which, under the contract, he was required to pay if the same was continued in force, shows that the contract for the sale had been abandoned. The fact, too, that there had been no improvements put upon the land by the appellee for ten years prior to the institution of the suit, tends strongly to show that appellee had abandoned his claim to ownership of the land; and the fact, established by the uneontroverted evidence, that this contract and note, yellow with age, had been relegated to the old “secretary,” where none of the live and valuable notes and papers of Monroe were kept, tends to prove that he didn’t regard the original contract as any longer in force. And a circumstance which we regard as most cogent in establishing the abandonment of the original contract, and the entering upon a contract for the lease of the land by the pasties thereafter, is the entry made by the bookkeeper of Monroe in his ledger between January 17 and August 7, 1905, as follows: “To rent above land for 1905, $250. Pettus leased above land for five years for $250 a year, and he is to keep up the place and pay taxes. ’ ’ This entry at that time shows clearly that the parties had abandoned whatever contract for sale there might have been, and had entered upon a lease for five years. Then, too, the notes that were in evidence, which were executed when the contract was entered into, under the express terms thereof, and by the endorsement thereon, showed that they were given “for rent or interest on purchase money. ’ ’ But such of the notes as were in evidence, that were executed after the expiration of the contract specified that'they .were given “for rent,” omitting the words, 1 ‘ or interest on purchase money. ’ ’
The above testimony, showing circumstances about which there is no dispute, and the testimony in the nature of documentary evidence, taken in connection with the testimony of other witnesses, shows clearly that Monroe and appellee, long before Monroe’s death, had treated the original contract for option to purchase as rescinded, and that appellee was holding the land as Monroe’s tenant, and not as purchaser. The contract having expired without appellee’s having exercised his option to purchase, as' the proof shows, and appellee having thereafter continued in possession as tenant, and not as purchaser, he can not successfully invoke the statutes of fraud against appellants, for these facts show that there was no equitable title in appellee.
The decree is therefore reversed and the cause is-remanded with directions to dismiss the complaint for want of equity. | [
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CROSS, J.
The plaintiff in error brought suit in trespass against the defendant for forcibly -seizing and taking his goods. In justification, the defendant in error alleges that Jesse Brown, an acting justice of the peace in and for Big Rock township, issued a writ of execution, directed to the constable of Saline township, aud that as such constable, in virtue of said writ he seized and took the goods. Both townships are within the county of Pulaski, and the only question we deem it material to decide grows out •of the construction to be given to the act -of 1829 in relation to the jurisdiction of justices of the peace. The act referred to is in these words: “Hereafter, all justices of the peace in this territory shall be commissioned for their respective counties; and the township in which they severally reside shall confine or be the extent of their jurisdiction. .except in criminal cases, and in cases under the statutes of this territory where it may require two justices of the peace to form a court; and in that case, where there shall be only one justice of the peace in such township. or the justices of the peace are concerned or interested in the suit, any justices of the peace, of the next adjoining township, are at liberty, and shall have power, to Issue process and try said cause, the same as though they were resident in said township, aDy law to the contrary notwithstanding.” Ark. ,©er. Dig. p. 355. Anterior to the passage or this law, under the provisions of an act passed in 1814, a judgment creditor was allowed to suggest that the defendant resided out of the township where the judgment was rendered, and that no goods or chattels could be found in the township where the justice resided to satisfy the same, whereupon it became the duty of the justice to issue execution, directed to the constable of the township where the defendant did.reside, or where his goods and chattels could be found, and the constable was authorized and required to execute the same. Ark. Ter. Dig. p. 378. The act of 1829 expressly limits the jurisdiction of a justice of the peace to the township in which he resides, except in criminal cases and cases where, by statutory provisions then in force, two justices were necessary to form a court. In this it conflicts obviously with the prior act of 1814, and, by a well-settled rule, repeals it to the extent of the conflietiou. A justice, therefore, cannot now issue process beyond the confines of his township, except in the two cases indicated by the statute. When he does, the act is wholly unauthorized and absolutely void. As well might he issue process to a constable residing in a different county, as to one residing in a different township in the same county. In either case, there .would be an entire want of jurisdiction. The law restricting the jurisdiction of justices of the peace being a general one, the defendant in error was bound to have noticed it. We think, therefore, that the demurrer to the plea of justification was improperly overruled. Judgment reversed. | [
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McCulloch, C. J.
Appellant, J. M. Littleton, was engaged in the mercantile business at Blue Mountain, Arkansas, and became indebted to appellee, CarruthersJones Shoe Company, of St. Louis, Missouri, in the sum of $394.50 for a bill of shoes purchased from the latter. While thus indebted to appellee, he exchanged his stock of goods with T. F. Finch, for a farm in Yell County, Arkansas* which he soon after moved upon and made his homestead.
Of the goods so purchased from appellee and shipped to Littleton at Blue Mountain the first consignment was on May 19, 1911, of goods amounting to $327.15, and the remainder of the bill was shipped on June 23,1911. Both consignments were made pursuant to an order sent in by appellee’s traveling salesman prior to the date of the first shipment. The exchange by Littleton of his goods with Finch for the farm occurred some time in June, the precise date not being given, but it is evident that it took place before the last bill of goods was shipped and that it was received by Finch and placed among the other goods after he had taken possession of the stock.
Appellee instituted this action in the chancery court against Littleton and Finch, and also making prior lienors of the farm property parties, alleging that the sale by Littleton to Finch was made with the fraudulent intent to cheat, hinder and delay the appellee in the collection of its debt, and seeking to have a lien declared on the farm which Littleton had received in the exchange and which he occupies as his homestead.
The decree of the chancery court, on final hearing of the case, declared a lien in favor of appellee against Littleton on the farm for the amount of the first consignment of the goods, $327.15, and interest, and the court also decreed that appellee recover from Finch the amount of the second bill of goods, $76.95, with interest.
Littleton and Finch both appealed to this court.
It is unnecessary to determine whether or not Littleton acted in good faith in exchanging the stock of goods for the farm and then taking possession of the latter as a homestead. Conceding that his purpose was to defeat his creditors in the collection of their debts, appellee is not entitled to have a lien declared on the place, for, regardless of the good or bad faith in the transaction, Littleton is entitled to claim his homestead exemptions. Ferguson v. Little Rock Trust Co., 99 Ark. 45.
In the case just cited we quoted with approval the following language taken from the decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of First National Bank v. Glass, 79 Fed. 706, as follows:
“ An insolvent debtor may use with impunity any of his property that is free from liens and vestéd equitable interests of his creditors to purchase a homestead for himself and family in his own name. If he takes property that is not. exempt from judicial sale and applies it to this purpose, he merely avails himself of a plain provision of the Constitution or statute enacted for the benefit of himself and family. He takes nothing from his creditors by this action in which they have any vested right. ’ ’
We also quoted with approval language of the Supreme Court of Minnesota in the case of Jacoby v. Parkland Distilling Co., 41 Minn. 227, 43 N. W. 52, as follows:
“Even if he disposes of his property subject to execution for the very purpose of converting the proceeds into exempt property, this will not constitute legal fraud. This he may do at any time before the creditors acquire a lien upon the property. It is a right which the law gives Mm, subject to which every one gives him credit, and fraud can never be predicated, on an act which the law permits. ’ ’
Now, the rule might be different if the proof was sufficient to show that the goods were purchased from appellee with the fraudulent intent not to pay for them, for in that case the title would never have passed on account of the fraud thus practiced, and the creditor might in equity be permitted to trace the proceeds of his misappropriated property into the property in which the proceeds were invested. But we have no such case here, for there is no proof at all to the effect that Littleton purchased the goods with intention not to pay for them, or that he was insolvent at the time he purchased the goods, or that he misrepresented his financial condition. In other words, no state of facts existed wMch prevented the title from passing from appellee to Littleton, and the-only fraud, if any there be, consisted in his disposing of the goods without leaving enough to pay his creditors. As already shown, according to the principles settled by the decisions of this court, fraud in that respect does not affect Ms right to hold as exempt the property acquired by exchange. It follows, therefore, that the chancellor erred in declaring a lien on the lands in controversy.
We are of the opinion that the court was correct in rendering a personal decree against Finch for the amount of the last invoice of goods. The proof is not sufficient to show that Finch participated in the fraudulent design of Littleton, if it be conceded that the latter acted with fraudulent design toward Ms creditors, nor is it necessary, in order to sustain the finding of the chancellor, to show that he did participate in such fraud. The proof shows clearly that the last bill of goods shipped from St. Louis, after the stock of goods was exchanged, was delivered to Finch, and it was received at Blue Mountain after the exchange of property took place. Little-ton and Finch both testified that this bill of goods, even though it was received after the exchange was completed, was included in the invoice; but we are not altogether satisfied that that is true, for it does not appear that Littleton had any invoice of this bill of goods at all when he exchanged the stock of goods with Finch. But, be that as it may, we think that the circumstances under which Finch received the bill of goods made Mm liable to appellee for the amount. The goods were shipped by appellee to Littleton in compliance Avith the order formerly transmitted through the traveling salesman, and evidently Avithout any knowledge of the fact that Little-ton had quit business and sold out to Finch. If appellee had known at that time that Littleton had sold out and was no longer in the mercantile business, it seems probable that, according to ordinary commercial customs, they Avould not have shipped the goods. Good faith on the part of Finch required that, before taking the goods into his possession, he should notify appellee of the change in the business. By failing to do tMs, and taking the goods and converting them to Ms own use, he made Mmself liable for the amount. His acceptance of the goods Avithout notifying appellee was, to that extent, a legal fraud, which makes him liable for the value thereof.
The personal decree against Littleton for the amount of the first bill of goods is affirmed; likeAvise the decree against Finch for the amount of the last bill, Avith interest thereon, is affirmed, but that part of the decree which declares a lien against Littleton’s land is reversed and the cause is remanded with directions to dismiss the complaint so far as it concerns that feature of the case. | [
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Kirby,. J.,
(after stating,the facts). It is insisted, first, that there is no evidence to support the verdict, that incompetent testimony was introduced and that the court erred in giving said instructions numbered 1 and 2.
There is no doubt but that the telephone company did refuse to furnish facilities and service to the address of Doctor Smith, except upon the condition of a compliance with its rules, nor can it be doubted that in reply to his letter about building the extension of the line to his residence it replied that it would not build any portion of the line, but would install a telephone and make necessary connections if he built and furnished the line. This does not show, however, that Doctor Smith offered to comply with the rules and regulations of the company, relative to furnishing service to persons situated in like condition with himself. The manager of the defendant company, its assistant manager, the contracting agent and the line construction foreman all testified that they told Doctor - Smith of the rule requiring the deposit of money for the expense of construction and six months’ phone rent in advance before connection was made with a subscriber located more than two blocks beyond the pole line of the company, unless enough subscribers could be procured in the locality to justify the expense, and that the appellee had the district canvassed for other subscribers and none could be obtained. These witnesses say that appellant did not accept nor indicate any intention of accepting the proposition as required by the rule and the manager testified that he (Smith) suggested building the line himself and was told by him that the company would make the connection if he did so, and that the letters in evidence were written relative to that proposition only. The testimony was in conflict on this point, hut the preponderance of it appears in the company’s favor, and in any event the verdict of the jury against appellant settled the question of fact.
The ordinance of the city granting the franchise under which the appellee company operated, permitting the charge to he made upon which its rule was founded was also introduced in evidence, and the contracts with Bostick and Menea in Argenta, as well as other contracts and applications introduced in evidence, show that it was not only the rule hut the custom of the company to require a compliance with it in order to the supplying of telephone service to the class of subscribers desiring it and like situated with appellant more than two blocks beyond the pole lines of the company both in Argenta and in Little Rock.
The statute, section 7948, Kirby’s Digest, provides:
“Every telephone company doing business in this State and engaged in a general telephone business shall supply all applicants for telephone connection and facilities without discrimination, or partiality, provided such applicants comply, or offer to comply, with the reasonable regulations of the company. And no such company shall impose any condition or restriction upon any applicant that is not imposed impartially upon all persons or companies in like situation,”
In Danaher v. S. W. Tel. & Tel. Co., 94 Ark. 536, the court, construing the statute, said: “The telephone company in devoting its property to a use in which the public has an interest, becomes a public servant and is bound to serve the public impartially. It is like common carriers in that it is bound to serve those applying to it impartially and upon equal terms. * * * Being a public servant, it can not refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations.”
In the same case, 102 Ark. 550, 144 S. W. 926, S. W. Tel. & Tel. Co. v. Danaher, the court said: “The telephone company has the right to make and enforce reasonable rules and regulations for the guidance of its subscribers, and, in case the subscriber refuses to obey such regulations, may refuse to furnish such telephone service without being guilty of discrimination. * * * Telephone companies by the necessity of commerce and by public use have become common carriers of communications, and as such must supply all alike who,,are alike situated and can not discriminate in favor of or against any one.”
In Younts v. Telephone Co., 192 Fed. 200, the court, construing this statute, said: “It is only when these facilities are granted generally to persons similarly situated as the plaintiff that the refusal to extend to him the same privileges may become a discrimination within the meaning of the statute.”
It is true, the statute says that telephone companies engaged in the general telephone business shall supply all applicants for telephone connection and facilities without discrimination, etc., but certainly the statute was not intended to require that telephone service should be furnished all applicants therefor. It only denounces a penalty against discrimination and after an offer on the part of the person demanding service to comply with its reasonable regulations. It is prohibited from imposing any condition or restriction upon any applicant for service that is not imposed impartially upon all persons or companies in like situation; and the proof shows that the telephone company acquainted the applicant for service with its regulations requiring the payment of six months’ rent in advance and the deposit of the cost of construction of the excess of the line over two blocks, where an extension is necessary to connect and give service, and that it required all persons in a like class or similarly situated with appellant to comply with said rules and regulations, and, such being the case, there could have been no discrimination against him within the meaning of the statute, the rule being reasonable. It was not contended that the rule was unreason able, but rather its existence and application was denied, and the court in the first instruction complained of declared it to be reasonable, and it was a matter for the court to determine. Thompson on Electricity, 200.
It is also true section '17 of the ordinance introduced in evidence as the rule of the company, relates only to furnishing service within the city of Little Rock, authorizing the charge therein to be made, but this did not prevent the company applying it, which the proof shows it did do as a rule and regulation to be complied with by all persons demanding service in localities where it operated without regard to whether it was within the limits of the city of Little Rock, or the sister city of Argenta across the river, and we fail to see the force of. appellant’s objection to instruction numbered 1 on account thereof. Neither do we see that instruction numbered 2 complained of was incorrect in declaring that the burden was upon the plaintiff to show by a preponderance of the testimony that he offered to comply with the defendant’s reasonable rules and regulations, and if the jury should find that the residence where he desired the service was more than two blocks distant from the defendant’s line of poles that the burden of proof would be upon him to show that he tendered the defendant six months’ rent in advance, and, in addition thereto, offered to deposit with it a sum of money sufficient to. cover the cost of furnishing and building said line in excess of two blocks, failing to show which that the verdict should be for the defendant. Since the ruie required the payment in advance of the six months’ rental, plus the cost of the extra construction, we can see ho objection to telling the jury that the burden was upon the defendant to show he had tendered such amount, for his last letter, in which he said he was “willing to pay proper toll of same usually charged,” certainly would not be regarded as an offer to pay said sum, neither was it intended to be such an offer, as explained by Doctor Smith, who said he did not even know that there was any such rule. This letter must be taken in connection with the other two, and also with the negotiations which had been carried on between the parties and conld not be considered a compliance or an offer to comply with the rule that would subject the company failing thereafter to comply with the demand, to the penalty denounced by the statute. It may be that if plaintiff had offered to pay in advance the required amount a tender thereof would not have been necessary, if the defendant had expressed an intention not to extend the service any way, but all the testimony shows, except that of appellant, that the company was willing to extend its facilities and give the service upon the compliance with its rule; that it canvassed the district to see if enough subscribers could be procured to give the service without requiring a compliance with the rule and that no disposition upon the part of appellant was shown to make the required payment in advance, the testimony, except his own, showing that he was unable to, or did not care to do so, and his own letter, relative to the building of the line, rather corroborates the statement of the manager that he himself suggested or asked if the service could be given if he constructed the line himself. The testimony on the part of the appellee showed the requirements of its rule; that it informed appellant of such requirement and the necessity for the payment in advance of the rental with the excess cost of the line, which would not be constructed and the service given except upon a compliance therewith upon the part of appellant, and we see no objection to the court having told the jury that after he was so advised that it was necessary on his part to show a tender of the money, and a failure thereafter of the telephone company to give the service, in order for him to recover the penalty for its failure to do so. Nothing else but a tender under such circumstances would have amounted to an offer to comply with its reasonable regulations within the meaning of the statute. Danaher v. S. W. Tel & Tel. Co., 94 Ark. 533.
It was probably not necessary for appellee to introduce some of the testimony complained of, but it was done in order to meet questions raised by appellant in the introduction of its testimony and to show in detail that there had been no failure on its part to comply with its ■ rule in connecting with other residences and places of business nearest the residence of appellant; the jury might otherwise have inferred from some of the testimony, but for the introduction of this, that because such telephones were located near to' this place, the company was required to give the service demanded by appellant and subject to a penalty for having failed to do'so.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). The special act names the commissioners of Road District No. 2, prescribes all their duties for the carrying out of the contemplated project and improvement, and fixes the boundaries of the district. It is complete within itself, furnishing all the authority and procedure necessary for the completion of the contemplated improvement. The general law, creating the Department of State Lands, Highways and Improvements, provides that road improvement districts “may be formed under it” and the manner of their organization, but it also makes provisions for the construction of highways, drainage and levee improvement districts, bridges, ditches and other improvements of like kind.
Said department is authorized to collect statistics and data on the subject of roads, drainage and other improvements and to give its service free to all State and county officers having need therefor, and it is author ized by section 15 of tbe act to investigate any highway or other public improvement and make a report thereon. It can require reports and information from the various county judges, commissioners of road improvement districts and other officers at its discretion and is required to prepare a uniform system of blanks upon which all officers employed on public improvements shall make regular reports to the department.
Section 20 provides: ‘ ‘ The department shall aid and advise in the formation and management of roads and other improvement districts throughout this State, and it may detail such officers and employees for the promotion and organization of such districts, as it may see fit, as well as for the introduction of improved methods or systems of any kind in road building, and public improvements. ’ ’
It is required by section 19 to furnish uniform plans and specifications for highway improvements when requested by the proper authorities and if the improvement is of sufficient importance, required to send a qualified expert to plan or supervise the same.
Section 39 prescribes how applications shall be made for improvements “under said act” and how the district may proceed under its terms where a charter has been granted “under same.”
The State highway engineer may be detailed by the commission to assist any district when called upon for his services.
In section 59, the department is required to direct' and supervise all improvements in any highway charter in the district, “created hereunder” and in section 77, whenever any road or highway is being supervised or improved under this act,” etc.
A proviso in section 33 states: “Provided, the supervision and approval of the State Highway Commission shall be proper only in case of districts and organizations created under this act.”
Section 86 provides that all laws in conflict herewith are hereby repealed.
Repeals by implication are not favored and the general rule is that a general act does not repeal a prior special act on the same subject where the acts are not repugnant nor inconsistent. Chamberlain v. State, 50 Ark. 132; State v. Grayson, 72 Ark. 119; State v. S. W. Land & Timber Co., 93 Ark. 621.
There was by this act no express repeal of the special act providing for the creation of road improvement districts in Lonoke County, and of course the general clause repealing all laws in conflict does not operate to repeal any law not in conflict. Pratt v. Dudley, 73 Ark. 57; Struther v. People, 116 Ill. App. 481; State v. Commissioner of Public Lands, 106 Wis. 584, 82 N. W. 549.
There is no irreconcilable inconsistency or repugnancy between the two acts and the improvement can be carried on under the provisions of the special act without the necessity for applying any of the provisions of the said general law. The Legislature could easily have expressly repealed the special act if there had been any intention upon its part to do so, or the same result would have followed had the provisions of the general law been such as to manifest a clear intention that it only was applicable to all improvements of the kind included in it thereafter to be made. Chicago, R. I. & P. Ry. Co. v. McIlroy, 92 Ark. 601; King v. McDowell, 107 Ark. 381; 155 S. W. 501; Trehy v. Marye, 100 Va. 40. No such clear intention, however, appears from its provisions, but, on the contrary, from the proviso in section 33, it appears expressly that the supervision and approval of the State Highway Commission is proper only in cases of districts and organizations created under the act manifesting an intention to limit its application to districts and organizations' created under its terms. We hold, therefore, that there was no repeal of the special act by the general law.
There is no intention of passing upon the scope and effect of said general law further than to hold that it does not repeal the said special act providing for the making of improvements in Lonoke and Prairie counties.
The court committed no error in sustaining the de murrer to the complaint and dismissing it for want of equity. The decree is affirmed. | [
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Hart, J.
Virgil Brown prosecutes this appeal to reverse a judgment of the Greene Circuit Court for the crime of- gaming. The testimony shows that the defendant was guilty of gaming in a house boat tied to a bridge across the St. Francis Biver, between Greene County, Arkansas, and Duncan County, Missouri. At the time the gaming took place, the house boat was two or three hundred feet east of the middle of the main channel of the St. Francis Biver and opposite to and in front of Greene County, Arkansas. Greene County is bounded on the east by the main channel of the St. Francis Biver, and the house boat, at the time the gaming took place, was between the east and west meander line of the St. Francis Biver, being west of the east meander line and east of the center of the main channel of the river. The sole ground upon which the defendant seeks to reverse the judgment is that the offense was not committed within the territory over which the circuit court of Greene County, Arkansas, had jurisdiction.
The enabling act under which the State of Missouri was admitted contains a proviso which reads as follows:
“And provided also, That the said State (Missouri) shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said State, so far as the rivers form a common boundary to the said State; and any other State or States, now or hereafter to be formed and bounded by tbe same, sueb rivers to be common to both. * * *”
Subsequently Congress passed an act for tbe admission of tbe State of Arkansas into tbe Union, wbicb was approved June 16, 1836, and a part of section 8 of said act reads as follows:
“ * * * And nothing in this act shall be construed as an assent by Congress to all or any of tbe propositions contained in tbe ordinances of tbe said convention of tbe people of Arkansas, nor to deprive the State of Arkansas of tbe same grants, subject to tbe same restrictions, wbicb were made to tbe State of Missouri by virtue of an act entitled ‘An act to authorize tbe people of tbe Missouri Terriory to form a Constitution and State government, and for tbe admission of such State into tbe Union, on an equal footing with tbe original States, and to prohibit slavery in certain Territories, ’ approved tbe 6th day of March, one thousand eight hundred and twenty.”
On tbe 30th day of March, 1911, tbe General Assembly of tbe State of Missouri passed an act which gave Arkansas and Missouri concurrent criminal jurisdiction over tbe whole of tbe St. Francis River where it is the boundary line between tbe two States.
On tbe 8th day of March, 1911, tbe Legislature of tbe State of Arkansas extended tbe criminal jurisdiction of tbe State to tbe east meander line of tbe St. Francis River at tbe points where that river is tbe boundary line between tbe States of Missouri and Arkansas. The act also gave tbe State of Missouri concurrent jurisdiction with tbe State of Arkansas over tbe parts of said territory lying opposite them and between tbe lines extending and parallel to their northern and southern boundaries. General Acts of Arkansas, 1911, page 46.
It is true that under our Constitution tbe actual physical boundary of tbe State of Arkansas over tbe territory in question extends to the middle of the main channel of the St. Francis River, and it is a general principle of law that a State would not have any inhe rent authority beyond its jurisdiction. This physical boundary of the State of Arkansas, as provided in our Constitution, must be construed with reference to, and in connection with, the laws of Congress which admitted the State into the Union.
It will be noted that under the enabling act by which the State of Missouri was first admitted into the Union the Congress of the United States provided that any river bordering- on said State which formed a common boundary between the State of Missouri and any other State should be common to both States. Subsequently, when Arkansas was admitted into the Union, the Congress of the United States provided that nothing in the act should be so construed as to deprive the State of Arkansas of the same grants, subject to the same restrictions, which were made to the State of Missouri by virtue of the enabling act under which it was admitted to the Union. In pursuance of the authority granted by the Congress of the United States, when the States of Missouri and of Arkansas were admitted into the Union, both of these States granted or ceded to each other concurrent jurisdiction over the St. Francis River where that river is the boundary line between the two States. Thus, it will be seen that the Congress of the United States, at the time the two States were admitted into the Union, granted to them concurrent jurisdiction over the territory in question, and subsequently the State Legislatures of the two States, by appropriate acts, have granted or ceded to each other concurrent jurisdiction over the territory in question. The acts of Congress above referred to intended to declare that, subject to other laws of the United States, transactions occurring anywhere on the St. Francis River, so far as it- should form a common boundary between the States of Missouri and Arkansas, might be lawfully dealt with by the courts of either State according to its laws. The subsequent acts of the Legislatures of the State of Missouri and of Arkansas extended the limits of the sovereignty of these States to the limits which had been sanctioned by the acts of Congress and ratified by the States passing the acts above referred to. The right of the States, under these conditions, to enforce their civil and criminal laws on the waters of the stream, has been generally declared by the courts of this country. State v. Nielsen, 51 Ore. 588, 16 A. & E. Ann. Cases, 1113, and case note; Lemore v. Commonwealth, 105 S. W. (Ky.) 930; State v. Seagraves, 85 S. W. (Mo.) 925; Roberts v. Fullerton, 65 L. R. A. 963.
In discussing concurrent State jurisdiction, and its exercise over the whole river, Mr. Rorer, in his work on Interstate Law, at page 438, said:
“The existence of concurrent jurisdiction in two States over a river that is a common boundary between them, as more particularly referred to in section 1 of this chapter, vests in each of such States, and in the courts thereof, except as to things permanent, and except as to maritime and commercial matters cognizable by the National Government and courts, jurisdiction, both civil and criminal, from shore to shore, of all matters of rightful State cognizance occurring upon such river in all parts thereof where it forms such common boundary. Such concurrent jurisdiction obviates the difficulty in judicial proceedings of ascertaining on which side of the main channel of a boundary river occurrences have transpired or crimes have been committed.”
Article 2, section 10, of our Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an .impartial jury of the county in which the crime shall have been committed; and counsel for defendant claims that under this provision of our Constitution the circuit court of Greene County had no jurisdiction to try the defendant. The contention of the defendant is fully answered in the case of the State v. Mullen, 35 Iowa, 199, where the court said:
“Further it is claimed that the boundary of Lee County on the east is coextensive with that of the State, which is the middle of the main channel of the Missis sippi river, and that the local jurisdiction of the district court is of offenses committed in the county in which it is held, and that the district court has no jurisdiction to try an offense committed without the boundary of the county, towit: east of the middle of the main channel of the Mississippi River. If this be true, it amounts to this: That Congress has conferred upon the State, and the State, by positive statute, has assumed a jurisdiction which it has vested in no court, and for which it has provided no means of making effective. That the State possesses a jurisdiction which is vested in no department of the government is a proposition which involves a contradiction. But general jurisdiction for the trial of crimes is vested nowhere unless it be in the district court. Congress having granted to the State of Iowa jurisdiction concurrent with the State of Illinois over the Mississippi River, jurisdiction over so much of the river as lies opposite to any county on the eastern boundary of the State must attach to such county as an incident of its organization. For it is only through the medium of county organizations that this jurisdiction can be rendered availing, and it is a familiar doctrine that the grant of a right or power carries with it as an incident everything necessary to make the power or right effective.”
To the same effect is State v. Metcalf, 65 Mo. App. 681; Welsh v. State (Ind.), 9 L. R. A. 664.
The judgment will be affirmed. | [
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Kjrby, J.,
(after stating the facts). It is insisted that the chancery court was without jurisdiction to issue an injunction against the Secretary of State to prevent him from certifying the name of the candidate as the nominee of the party, that had been furnished him for that purpose by the executive committee of the Democratic part}' in accordance with the requirements of law; its action in so doing being in effect a trial of the election contest and an attempted review of the State Democratic Central Committee, a tribunal provided by law for the tidal of such contests and the certification of the nominee, and a substitution of the judgment of the chancellor for that of the committee.
The recognized and established distinctions between equity and common law jurisdictions are observed in this State. The Constitution vests the judicial power of the State in certain courts, giving to the circuit courts jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which' is not vested in some other court provided for by it, and it also provides that the G-eneral Assembly may establish separate courts of chancery, and until it shall deem it expedient to do so, the “circuit court shall have jurisdiction in matters of equity. ’ ’ Article 7, sections 1, 11 and 15, Constitution 1874.
It is well also to bear in mind that the right of a citizen to vote and to be voted for at 'an election, or to be a candidate for or to be elected to an office is a political right in contradistinction to a civil or property right. Gladish v. Lovewell, 95 Ark. 621; Fletcher v. Tuttle, 151 Ill. 41; 37 N. E. 683; 25 L. R. A. 143; 10 Am. St. Rep. 220; In re Sawyer, 124 U. S. 200; Giles v. Harris, 189 U. S. 475; Green v. Mills, 69 Fed. 857; 16 C. C. A. 552; 30 L. R. A. 90; Winnett v. Adams, 99 N. W. (Neb.) 681.
The Legislature has created separate courts of chancery, but it could only vest them with jurisdiction “in matters of equity,” under authority of the Constitution, and it becomes necessary to determine whether courts of equity had jurisdiction- to protect a person in the enjoyment of purely political rights at the time of the adoption of the Constitution.
In Fletcher v .Tuttle, supra, the court, passing upon a question like the one presented here, and denying the right to an injunction, said:
“The question then is, whether the assertion and protection of political rights, as judicial power is apportioned in this State between courts of law and courts of chancery, are a proper matter of chancery jurisdiction. We would not be understood as holding that political-rights are not a matter of judicial solicitude and protection, and that the appropriate judicial tribunal will not, in proper cases, give them prompt and efficient protection, but we think they do not come within the proper cognizance of courts of equity # * *.”
“Wherever the established distinction between equitable and common law jurisdictions is observed, as it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall he held. These matters involve in themselves no property right, hut pertain solely to the political administration of government. If a public officer, charged with political administration, has disobeyed or threatens to disobey the mandates of the law, whether in respect to calling or conducting an election, or otherwise, the party injured or threatened with injury in his political rights is not without remedy. But his remedy must be sought in a court of law, and not in a court of chancery. ’ ’
In re Sawyer, 124 U. S. 200, the court said:
“The offices and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the express protection of rights of property. Political rights consist in the power to participate directly and indirectly in the establishment or management of the government. These political rights are fixed by the Constitution. Every citizen has the right to vote for public officers, and of being elected. These are political rights which the humblest citizen possesses. Civil rights are those which have no relation to the establishment, support or management of the government. They consist in the power of acquiring and enjoying property, and exercising the paternal and marital powers and the like.
In Green v. Mills, supra, Mr. Justice Fuiler, delivering the opinion of the court, said:
“The jurisprudence of the United States has always recognized the distinction between common law and equity, as under the Constitution, matter of substance as well as of form and procedure. * # * It is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rightjs. The court has no jurisdiction in matters of a political nature nor to interfere with the duties of any department of government unless under special circumstances, and when necessary to the protection of the rights of prop erty, nor in matters merely criminal or merely immoral, which do not affect the rights of property.”
The editor of the A. & E. Ann. Cas., in a note to the case of U. S. Standard Voting Machine Co. v. Hobson, 10 A. & E. Ann. Cas. 977, states the rule as follows:
“It seems to be the uncontroverted rule that a court of equity will not interfere to protect or to enforce a purely political right. If a political right is infringed upon, the redress must be sought in a court of common law. Otherwise, there would be an invasion of the domain of other departments of the government, and of the courts of common law.” Citing cases in support thereof.
The Supreme Court of Nebraska, in Winnett v. Adams, supra, says:
“The doctrine that equity is conversant with matters only of property and the maintenance of civil rights, and will not interpose for the protection of rights which are merely political, is supported by an almost unbroken line of authorities.”
It then cites the authorities, and, after stating it does not care to commit the court unqualifiedly to the doctrine that a court of equity will not, under any circumstances, interfere for the' protection of political rights, continues:
‘‘But we think it is perfectly safe to adopt the doctrine to the extent of holding that a court of equity will not undertake to supervise the acts and management of a political party for the protection of a purely political right. We do not overlook the fact that primary elections have become the subject of legislative regulation, and it may be conceded that each member of a political party has a right to a voice in such primary, and to seek nominations for public office at the hands of his party. But when he is denied these rights, or unreasonably hampered in their exercise, he must look to some other source than a coui’t of equity for redress. To hold otherwise would establish what could not but prove a most mischievous precedent, and would be a long step in the di rection of making a court of equity a committee on credentials, and the final arbiter between contesting delegations in political conventions. The voters themselves are competent to deal in such matters without the guiding hand of the chancellor, and it will make for their independence, self-reliance and ability for self-government to permit them to do so. It is true they may make mistakes, but courts themselves have been known to err.” See also case note to Shoemaker v. City of Des Moines, 3 L. R. A. (N. S.) 382.
From these authorities it is conclusive that the trial of election contests and the adjudication of political rights and the protection of persons in their enjoyment were not matters of cognizance by courts of equity when our Constitution was adopted, and the Legislature had power only to vest the chancery court with jurisdiction in matters of equity, and was without power to enlarge such jurisdiction beyond such matters as courts of equity at the common law exercised jurisdiction in, and such courts having no jurisdiction of election contests and the adjudication of political rights were given none by our said Constitution. Our court has recognized this fact, and in declaring an act of the Legislature attempting to give chancellors and chancery courts the right to hear primary election contests void and unconstitutional, said:
“Election contests for nomination are not matters of equity, and have never been so considered, and the act of the Legislature to vest chancery courts with jurisdiction as to them is unconstitutional and void.” Hester v. Bourland, 80 Ark. 145.
“In the absence of any statute giving them jurisdiction, the courts have no power to interfere with the judgments of the committees and tribunals of established political parties in matters involving party government and discipline,” or the nomination of candidates. 15 Cyc. 330.
In Phelps v. Piper, 67 N. W. 755, the Supreme Court of Nebraska said:
“Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their will. The voters ultimately must determine every such question. The voters constituting a party are, in deed, the only body who can finally determine between contending factions or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect, which should be entertained for judicial tribunals, for the court to undertake, in any case, to investigate either the government, usages or doctrine of political parties, and to exclude from the official ballot the names of candidates placed in nomination by an organization which a portion, or, perhaps, a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government. We doubt even whether the Legislature has the power to confer upon the court any such authority. It is certain, however, that the Legislature has not undertaken to confer it. We shall not enlarge upon the views we have expressed. If authority were needed in their support, we think the underlying principles suggested are those which governed the court in People v. District Court, 18 Col. 26; 31 Pac. 339; Shields v. Jacob, 88 Mich. 164, 50 N. W. 105, as well as in State v. Allen, supra.” See also Stephenson v. Board of Election Commissioners, 76 N. W. (Mich.) 914; Potter v. Deuel, 112 N. W. 1071.
It is contended, however, that appellee is given the right to contest the primary election held under the provisions of Act 371 of the Acts of 1911.
It is true that act does not provide for a contest of the primary elections, but it provides tribunals for the hearing of such contests; in the first instance, the Democratic Central Committee, with the right of an appeal therefrom to the State convention, and provides that the action of such tribunals shall be final. It is true that section 6 contains this provision:
“Provided, nothing in this act shall be so construed as to prevent a person from pursuing any remedy he may have in any of the courts of this State.”
This provision does not attempt to confer any right upon such contestant that he did not already have under the laws of this State before the passage of the act, and unless he had such right before its passage, none is given by it. .
It has been expressly held that the Legislature is absolutely without power under the provisions of our Constitution to give to the chancery court authority to hear election contests, and certainly the authority to hear such contests and adjudicate the rights of the parties can not be implied from this act that expressly provides tribunals of the party for the determination thereof, and declares that their determination shall be final.
It is suggested, however, that since the Legislature has legalized primary elections for the nomination of candidates to office and provided a tribunal for contesting such nominations that a court of equity will protect them in the rights given by the statute, and that since an equitable remedy is asked that the court may grant it, if it shall not extend to trying the contest, and declaring the nominee.
As already said, no equitable title or right is involved that can give jurisdiction to a court of equity, and inasmuch as a political organization is an unincorporated, voluntary association, in which no rights of property or liberty are involved, a court of equity has no jurisdiction to interfere by injunction to control its actions or those of its officers.
“No principle of the law of injunction is better settled than that injunction does not lie to determine questions of appointment to public office and the title thereto as they are purely legal matters and cognizable only in courts of law.” Alderson v. Commissioners (W. Va.), 5 L. R A. 334.
“A court of equity will not interfere by injunction to prevent election officers or canvassing officers from doing tbeir duty as required by law, nor prevent them from canvassing votes in a certain way.” 6 A. & E. Enc. of Law, 392. '
In Rhodes v. Driver, 69 Ark. 606, this court quoted, with approval from High on Injunctions, section 1312, as follows:
“No principle of the law of injunction, and perhaps no doctrine of equity jurisprudence is more definitely fixed or more thoroughly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A couid of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will, in all such cases, leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of a quo warranto.” See also Adcock v. Houck (Tenn.), 122 S. W. 979; Williford v. State, 43 Ark. 63; Lucas v. Futrell, 84 Ark. 550.
The Democratic party, as well as the Legislature of the State, has provided a tribunal for hearing the contests of the primary elections, and it having done so, the decision of such tribunal is final and can not be reviewed by the courts.
In Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 424, the court held that the Legislature had made the power of the board dependent upon the ascertainment of the commissioners that the petition was signed by a majority in value of the property owners, and said:
“Moreover, it is a well settled principle of law that where the Legislature has erected a tribunal for the purpose of ascertaining and declaring the result of an election upon any subject, the decision of such tribunal is conclusive and can not be reviewed by tbe courts.” Citing, Govan v. Jackson, 32 Ark. 553; Rice v. Palmer, 78 Ark. 432.
But it is argued that fraud vitiates everything and constitutes a ground for equitable injunction, and that since the petition alleges that the committee arbitrarily and fraudulently refused to hear the contest, and fraudulently certified appellee’s opponent as the nominee of the party, that the chancery court was within the doctrine announced in Collier v. Board of Directors of Jefferson County Bridge District, 106 Ark. 151, there being no tribunal provided for appellee’s relief, that the court of chancery must take jurisdiction to protect his rights. The court said, there:
“If the finding must be treated as conclusive, that is the end of it, so far as the machinery of the law is concerned. For the court can not supply a provision for review where the lawmakers have said there shall be none. But it does not follow that the land owners have no remedy against fraud practiced by the board in making a false declaration of the will of a majority of the land owners of the district. Fraud vitiates any proceeding or transaction, from the judgment of the highest court of the land down to the smallest transaction between individuals, and there is a remedy to purge the fraud. The court of equity is the proper forum for such relief unless the same is otherwise provided by statute. The act creating the district makes conclusive the finding of the board of directors as to a majority petitioning for the improvement; but no intention is attributable to the lawmakers to give a conclusive effect, beyond the remedial power of the court of equity, to a false finding fraudulently announced by the board.” * # *
“Fraud, which will vitiate the proceedings of the board does not mean errors of the board, either of law or fact. In order to constitute fraud, there must have been an intent not to exercise an honest judgment and make a true finding, but to disregard the facts and make a false finding. This is not alleged in the petition. Taking the allegations as a whole, they amount only to a charge o'f error on the part of the board in refusing to hear and consider protests and evidence affecting the question at issue, and that the petition was not, in fact, signed by a majority of the property owners.”
The law does provide an appeal from the committee’s decision to the convention of the party, which, under the circumstances, the near approach of the election, and the requirements of the law that the nomination should be certified a certain time before its occurrence, prevented the calling of a convention, but, in the above case, unlike this, civil and property rights are involved, and the jurisdiction of equity will extend to their protection under such circumstances, but can not be extended to the protection. of mere political rights as alleged herein.
The Democratic Central Committee had the power, under the rules and regulations ■ of the party, and the statute, and it was its duty to hear and determine the contest, declare the result of the election, and determine the name of the candidate receiving the largest number of votes at the primary election according to the returns thereof and certify his name to the Secretary of State, to be by him certified as the candidate of the Democratic party to the various county election commissioners according to law.
This it claims to have done, and the court of equity was without jurisdiction to issue an injunction to compel it to hear the contest in the first instance, and had no power or jurisdiction to review its finding and declare the result of the election in accordance with the chancellor’s views of the right thereto, and set aside the finding and judgment of the Democratic party by enjoining the Secretary of State from certifying the name of the nominee furnished him by the said committee to be certified to the election commissioners of the counties. Having assumed to exercise such authority without right, its judgment and decree is void and of no effect, and the decree is reversed, the injunction dissolved and the complaint dismissed.
McCulloch, C. J., does not agree to the opinion .of the majority. He holds that a chancery court has jurisdiction in such cases on proper allegations of fraud. But he concurs in the judgment on other grounds, which will be stated in a separate opinion.
Smith, J., concurs in the judgment, but does not agree to all of the opinion.
McCulloch, C. J. I can not agree with the views of the majority in holding that a court of equity is without jurisdiction to grant relief upon allegations of fraud on the part of the State committee in declaring the result of a contest. My opinion is that the court does have jurisdiction in such cases, and that this does not violate any of the principles laid down by the various courts) in the cases cited in the opinion of the majority.
It must be conceded that courts of equity have no jurisdiction in election contests and that it would be beyond the power of the Legislature to confer any such jurisdiction. Hester v. Bourland, 80 Ark. 145. But it does not follow that a chancery court can not acquire jurisdiction upon other well established grounds of equitable interference, notwithstanding the fact that it may involve an election contest or a contest for a nomination in a primary election.
Regulation by law of nominations for office is comparatively of recent origin, and cases which hold that no court will interfere in the matter of nominations because those things depend purely upon party regulations,'all antedate the enactment of statutes providing for such regulation. In many, if not all, of the States that field has been entered upon as a fit'subject of regulation by law, and the courts hold that legal rights are thereunder established which the courts will protect. The cases cited on the brief establish that principle.
In the case of State v. Metcalf, 100 N. W. 923-925. the Supreme Court of South Dakota said:
“Whenever the Legislature, in its wisdom sees fit to regulate nominations and the printing of ballots by statutory enactments, the duty of interpreting such en actments devolves upon the courts, and they should not attempt to escape responsibility or avoid disagreeable consequences by assuming that no judicial questions are involved. The auditor’s duties and the candidate’s rights respecting the preparation of ballots having been defined by statute in this State, the performance of such duties and the protection of such rights no longer present merely political questions, but must be dealt with as are other legal duties and other legal rights.”
In Walling v. Lansdon, 97 Pac. 396, the Supreme Court of Idaho said this:
“Every right confei’red upon the voter at a primary election held under this law is a legal right, which may be protected, defended, and enforced by appropriate legal methods in the courts of this State. In determining factional disputes in a political organization, and the legality of party primaries and conventions, the courts will go as far as the law goes, and protect all legal rights conferred by law upon all persons participating therein. ’ ’
In the case of Neal v. Young, 75 S. W. 1082, the Kentucky Court of Appeals said:
“Since the adoption of the official ballot system by constitutional convention, since the legislative branch of the State Government provided for the regulation of primary elections by law, questions involving the legal rights of individuals will arise for the determination of the courts. The necessity for such adjudications has been placed upon the courts by the changes which have been made by the organic and statutory law of the State. However much the courts desired to do so, they could not avoid the responsibility of deciding such questions, even if, perchance, some one should fail to discriminate between political rights and those legal rights which arise under the law, and declare the court was adjudicating purely political questions.”
In Brown v. Cole, 104 N. Y. Supp. 109, it was said:
“There no longer remains any distinction, so far as enforcement is concerned, between civil and political rights of citizens; but it will be presumed that every right recognized or conferred by statute may be enforced by a proper legal method, and that every wrong, whether civil or political, has its remedy.”
Many other cases clearly announce the principle that rights of nominees and of contestants for nominations under primary election laws are such rights as the courts will take cognizance of and enforce. They are no longer treated as purely party questions which the courts refuse to take notice of.
Now, since it is seen that legal rights enforceable in the courts are involved in nominations for political offices, there is no reason why jurisdiction of courts of equity should be excluded, where there exists other independent grounds for equitable interference. The lawmakers have provided in the statute, in effect, that the acts of the committee and the State convention, on appeal, shall be final. But, if the conclusion of the committee is based upon fraud, a distinct ground for equitable interference is afforded.
In the recent case of Collier v. Board of Directors of Jefferson County Bridge District, 106 Ark. 151, after determining that a statute creating a bridge district and giving the commissioners power to decide whether or not a majority in value had signed a petition for the improvement, we said:
“But it does not follow that the land owners have no remedy against fraud practiced by the board in making a false declaration of the will of the majority of the land owners of the district. Fraud vitiates any proceeding or transaction, from the judgment of the highest court of the land down to the smallest transaction between individuals, and there is a remedy to purge the fraud. The court of equity is the proper forum for such relief unless the same is otherwise provided by statute. The act’ creating the district makes conclusive the finding of the board of directors as to a majority petitioning for the improvement; but no intention is attributable to the lawmakers to give a conclusive effect, beyond the reme dial power of the court of equity, to a false finding fraudulently announced by the board.”
Why does it now follow from this decision that a court of equity has power to cancel and. set aside the finding of a committee where fraud is alleged and proved in reaching the result! The same principle is involved, for here we have a case where the contestants have rights which are distinctly recognized under the statutes of the State, and even though power is given to the party machinery to determine the result, yet, upon independent grounds of equity jurisdiction a court of equity has power to set aside the fraudulent action of the committee. It is but the statement of an elemental rule to say that fraud is, and has always been, an independent ground of equity jurisdiction.
“Jurisdiction in matters of fraud,” says Judge Story, “is probably coeval with the existence of the court of chancery, and it is equally probable that in the early history of that court, it was principally exercised in matters of fraud not remediable at law.” 1 Story’s Equity, § 185. See also, 1 Pomeroy Equity Jurisprudence (3 ed.), § 119.
Another distinct ground of equity jurisdiction is the inadequacy of all legal remedies. This is nowhere more clearly and forcibly stated than by Judge Walker in, the ease of Driver v. Jenkins, 30 Ark. 120, where he said:
“Here there is a right without an adequate remedy at law. It is a maxim in equity that equity will not suffer a right to be without a remedy. This maxim is the foundation of equitable jurisdiction; because that jurisdiction had its rise under the inability of common law courts to meet the requirements of justice.”
In Conway, Ex parte, 4 Ark. 302, Mr. Justice Lacy, speaking for the court, said:
“It is no objection to the jurisdiction of a court of equity that a party has a remely at law, unless it' be shown that the legal remedy is plain, direct and complete. The remedy at law, to be adequate and complete, and attain the full end and justice of the case, must reach the whole mischief and secure the whole right of the party, in a perfect manner in praesenti and in futuro.”
We have, therefore, two grounds of equity jurisdiction independent of the origin or nature of the original controversy; that is, the allegation of fraud in the rendition of the judgment of the committee, and the inadequacy of any relief at law for the wrong done. It is a mistake to say that a court of equity is denied the power to exercise this original independent jurisdiction merely because the controversy originated in a contest for a nomination for office, which is a right clearly established and recognized under the laws of this State. The judgment of the committee rises no higher than the judgment of any other court of competent jurisdiction, and it is well established that a court of equity has jurisdiction to set aside the judgment of any court for fraud where there is no legal remedy. It is putting the cart before the horse, to use a homely phrase, to deny the jurisdiction of a chancery court upon those distinct and independent grounds, namely, the allegation of fraud in the procurement of the jugment, and the inadequacy of the remedy at law, merely because an election contest or a contest over a nomination for office does not of itself afford ground for equitable interference. In other words, it is not the fact that it is an election feontest, but it is the fact that a legal right is involved and fraud is alleged and there is no remedy at law which gives a court of equity jurisdiction.
I think the decision of this court in the case of Rhodes v. Driver, 69 Ark. 606, clearly recognizes that principle. The court stated with emphasis the doctrine that, “Courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature,” but held that, where one was enjoying the possession of office, a court of equity would, by injunction, prevent interference with his possession of the office. In that case, it was not the contest over the office which gave the court of equity jurisdiction, but the fact that Ms quiet possession of the office was being invaded, wMch was found to be an independent ground for the exercise of jurisdiction, and its full play was not restricted because the contest was one for the possession of office. Judge Battle, in delivering the opiMon, quoted the following from Mr. High’s •work on Injunctions:
“Upon the other hand, the actual incumbents of an office may be protected, pending a contest as to their title, from interference with their possession, and with the exercise of their functions. * * * And the granting of an injunction in such case in no manner determines the question of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet etablished.”
So, in the present case, a court of equity has no jurisdiction to enter, upon an original investigation over the title to the nomination for Governor, but after the remedy at law has been exhausted and the alleged fraudulent decision has been rendered by the State committee, then the allegation of fraud and the inadequacy of any remedy at law gives the chancery court, in my opinion, complete jurisdiction to grant relief.
These views,* I think, find substantial support in the authorities cited on the brief.
In Miller v. Clark, 62 Pac. 664, the Supreme Court of Kansas held that the finding of a political body on the question of nominations for State offices was conclusive, and would not be disturbed by the courts in the absence of bad faith or arbitrary conduct showing wrongful acts amounting to fraud on the part of said officers, and said:
“We do not hold, however, that if the action of the officers specially designated to pass on the merits of such a controversy was induced by bad faith, or was the result of arbitrary acts showing wrongful conduct amounting to fraud, or their findings result in personal benefit to themselves, that equity would not interpose to prevent a candidate from being thus wronged.”
In the case of Allen v. Burrows, 77 Pac. 555, the same court said:
“It has often been said of special tribunals established by statute to pass upon matters expressly committed to them, that their jurisdiction is exclusive and their determination is final and that courts will not review their conclusions nor inquire by what method they were reached; but always with an express or implied reservation that the statements hold good only where the action of such tribunal is characterized by good faith, and is free from fraud, corruption and oppression.”
This is directly in line with what we held in the case of Collier v. Board of Directors of Jefferson County Bridge District, supra, which, I think, is the controlling principle in this case.
In 19 American & English Encyclopedia of Law, p. 739, the following rule is laid down:
“Courts of equity have jurisdiction to prevent, by injunction, the consummation of a wilful fraud attempted to be perpetrated under the guise of exercise of discretionary powers confided by law to public officers.”
I can not conceive any valid reason why the jurisdiction of a court of equity should not be invoked on one of the well established grounds for such interference, such as fraud, accident, or mistake, or the inadequacy of legal remedies, merely because the right to an office is involved or the nomination as a candidate for an office. Let us suppose that, after a primary election is over, and before the result is officially announced, the commissioners of election attempt to destroy the ballots and poll books before the result in the county can be ascertained, can it be doubted that a court of equity would have power to restrain the commissioners from doing the unlawful act, and thus prevent the obliteration of the evidences of the result of the election. Or, suppose, pending a contest in the courts over an election to office, the officers in charge of the ballots should attempt to destroy them, would a court of equity be powerless to prevent the commission of such an unlawful act which would thus materially and irreparably affect the legal rights of the contestants í I think not.
It seems to me that the majority, in reaching their conclusion, have taken away from a contestant for a nomination the remedy for enforcement of legal rights which are conferred by the statutes of the State, for the legal remedy may be, and often is, inadequate, and if a court of equity has no power to give relief, the possessor of a legal right would, in many cases, be remediless.
If the court of equity has the power, as I think it does, to review the action of the committee on allegation of fraudulent conduct in the hearing, the court could go further and give complete relief by hearing the whole controversy, and declaring such result as the committee should have declared upon a fair hearing. This upon the principle that a court of equity, having rightfully assumed jurisdiction of the subject-matter and of the parties for certain purposes, will, incidentally, grant complete relief without remitting the parties to any other forum. Dugan v. Cureton, 1 Ark. 31; Price v. State Bank, 14 Ark. 50; Vaughan v. Bowie, 30 Ark. 278; Estes v. Martin, 34 Ark. 410; Little Rock & Fort Smith Ry. Co. v. Perry, 37 Ark. 164; Bonner v. Little, 38 Ark. 397; McGaughey v. Brown, 46 Ark. 25; Norman v. Pugh, 75 Ark. 52; Dickinson v. Arkansas City Improvement Co., 77 Ark. 570.
But the allegations of the complaint in this case, while containing appropriate statements of fraud on the part of the committee, fail in other respects to show grounds for interposition of a court of equity. In other words, Mr. Brundidge- fails to state facts which show that he now has a legal right which should be protected, and for this reason, I concur in the result reached by a majority, though not for the reasons which- they have given. When this action was commenced, it was obviously too late for Mr. Brundidge to secure a hearing and have his nomination certified during the time provided by the statute. His opportunity to become the nominee for Governor had passed away, and he does not claim in Ms pleadings the right to be certified as the nominee of the party. He seeks merely to prevent the certification of Ms opponent. In my opinion, when this point was reached, his right to question the validity of the nomination had ceased, and that he is not now in possession of any rights which a court of equity should protect.
It is suggested that he could be a candidate without having his name certified as a nominee, that the nomination by the Democratic party is a substantial thing, and that he should have the right to prevent Ms opponent from having that advantage in the election wMch is to follow. It is true that the statute provides that blank spaces shall be left on the ticket so that the voters may write the name of any person on the ticket. TMs does not, however, give any legal right to a candidate for office. It is a mere provision of the law for the benefit of voters, and the only legal rights conferred by the statutes of tMs State upon a candidate is one who is a nominee either by a political party or by petition of electors. Now that Mr. Brundidge has lost the nomination on account of the acts of the committee and the lapse of time for hearing Ms contest, his rights are only those which are held in common by other voters of the State, and it can not be contended that those common rights are such as a court of equity should protect. For these reasons, I concur in the judgment of the court reversing the case. | [
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Smith, J.,
(after stating the facts). It is proper and essential that we consider what duties are imposed upon the officer here charged with the enforcement of the gaming laws. The statute, as applied to the facts of this case, provides that when it comes to the knowledge of a sheriff that any person is guilty of the offense of operating a gambling device, such sheriff shall give notice thereof to some judge or justice of the peace of the county. When this notice has been given, it becomes the duty of the officer to whom it was given to immediately bring before him, by appropriate process of his court, the person so accused of violating the law, to be dealt with according to the law. This section does not require the sheriff to set the law’s machinery in motion whenever he shall merely have heard of a violation of the law. He is not required to run down every idle rumor, or to act upon information which he may not regard as reliable. He is required to act only when it comes to his knowledge that the law is being violated, and he is guilty of a violation of this statute only when he wilfully refuses to act upon this information. It is of course a question of fact in each case for a jury to determine whether or not a sheriff has this knowledge, and in determining that fact the jury should regard the evidence alleged to constitute the proof of this knowledge from the sheriff’s viewpoint, and, in doing so,' should decide whether this officer, exercising an honest and intelligent judgment, would have knowledge, which in effect here means probable cause, to give notice under this statute of its violation.
But it is said this section is void because the officer was not required- to give this notice under oath and because the Constitution provided that warrants for search and seizure can be issued only upon oath or affirmation. But such is not the case. Only officers can give this notice, and only such officers as have been required to take an official oath. They act officially, and are under the sanctity of an official oath. Their action is taken in compliance with their oath. The burden, or privilege, of giving this notice is not imposed by this statute upon any private citizen, whatever his knowledge of the facts may be. If the private citizen who has knowledge of the facts desires the law put in motion he must apprise the officer whose actions are had under an official oath. Had the statute intended to dispense with the necessity of an oath, the privilege of giving this notice could have been conferred on private citizens. But the private citizen can give notice to the justice of the peace only by making an affidavit for a warrant of arrest. The Legislature in its wisdom determined that there was a necessity to make certain peace officers prosecuting officers in the enforcement of the laws against gambling. (Gambling, in a sense, is an impersonal offense, and there is not usually a prosecutor at hand, as there is in prosecutions of offenses for violation of the laws protecting one’s peace, person or property. And so certain peace officers are made prosecuting officers in regard to gaming, and the judicial officers to whom they report are required to proceed when they have this notice of the violation of the laws against gaming. The statute does not say how this notice must be given, but a proper practice, which would make for an orderly enforcement of the law, would require this notice to be in writing. This notice is in the nature of the information which the prosecuting attorney and his deputy are required to file against persons believed to be guilty of carrying concealed weapons, the unlawful sale of liquor, gambling and certain similar offenses. “The deputy prosecuting attorney provided for in section 6387 shall have authority to file, with any justice of the peace in his county, information charging any person with carrying weapons unlawfully, the unlawful sale of or being interested in the sale of intoxicating liquors; violation of the blind tiger act or gambling, whereupon it shall be the duty of the justice of the peace to issue a warrant for the arrest of the offender, and in such cases no bond shall be required for the costs of prosecution.” Section 6388, Kirby’s Digest.
This section might also be said to offend against article 2, section 15, of the Constitution, except that in filing this information the prosecuting attorney is acting under his official oath.
The right of prosecuting officials to file information is well recognized and has long been a common method of instituting prosecutions for misdemeanors.
“A criminal information is an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath.
“This proceeding by criminal information comes from the common law, without the aid of statutes; and is allowable by the common law in a great variety of cases, the rule appearing to be that it is a concurrent remedy with the indictment for all misdemeanors, but not permissible in any felony.
“The right to make the information is, by the English law, as it stood when our forefathers imported it to this country, in the Attorney General, who acts upon his own official discretion without the interference of the court; or, if the office of Attorney General is vacant, it is in like manner in the Solicitor General.
“In the American States the criminal information should be deemed to be such, and such only, as, in England, is presented by the attorney or solicitor general. This part of the English common law has plainly become common law with us. And as, with us, the powers which in England are exercised by the Attorney General and the Solicitor General are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to he entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court. And such is the doctrine extensively if not universally acted upon in our States, though in some of them it is more or less aided by statutes.” State v. Whitlock, 41 Ark. 406. State v. Kyle, 65 S. W. 763.
Section 1742 of Kirby’s Digest makes certain peace officers prosecuting officers for the specified purposes, and imposes upon them the burden of giving notice, or fifing information, under the conditions stated. Likedise, section 1748 of Kirby’s Digest imposes similar duties in cetrain cases upon prosecuting attorneys.
“It shall be the duty of each prosecuting attorney in this State who knows or is informed of any person or persons exhibiting or setting up, or aiding or assisting in setting up, any [gambling] device described in the preceding section, in his circuit to take immediate steps to have such person or persons immediately arrested for trial, and such prosecuting attorney shall have such person or persons arrested as above provided for each separate offense done or committed on every separate day. ’ ’
The making of the peace officers named in this section 1742 prosecuting officers, and giving them authority to file information under the conditions there required, does not in our opinion offend against this section 15 of article 2, of the Constitution, and the judgment of the court below, in each of the cases, is accordingly reversed and remanded for a new trial. | [
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Hart, J.,
(after stating the facts). It is first contended by counsel for defendant that the court erred in giving instruction No. 9 at the request of the State. It is as follows:
“If you find from the evidence in this case beyond a reasonable doubt that the defendant, Sam Arnott, while in a dispute with the deceased, by violent and insulting language provoked the deceased to slap him in the face, and you further believe beyond a reasonable doubt that at the time lie so used said language toward the deceased that he intended to provoke an assault to be made upon him by the deceased for the purpose of having an opportunity of shooting and killing deceased, and if you further find that when said language was used, the deceased slapped the defendant in the face and that he then drew his pistol and shot the deceased, then yon are told that the defendant is not entitled to any benefit under his plea of self-defense. ’ ’
Counsel for defendant claim that the instruction should not have been given because it eliminates and leaves out all of the difficulty between the parties immediately before the shooting occurred; but we can not agree with them in this contention. It is not practicable that a judge should attempt to so frame each paragraph of his charge to the jury as to make it cover all the elements of the evidence, and it is not necessary that he should do so. The instructions are to be read and construed as a whole and are entitled to a reasonable interpretation. It was the theory of the defendant that the deceased began the difficulty and was the aggressor; that the defendant tried to avoid the difficulty but was followed by the deceased, who struck defendant and knocked him down and began to choke and beat him, and that the defendant, in order to save his own life, shot the deceased. This theory of the case was fully presented to the jury in instructions given at the request of counsel for defendant. In the case of Ferguson v. State, 95 Ark. 428, the court held:
“One who has provoked an attack upon himself can not be excused for killing his assailant in order to save his own life or to prevent great bodily injury until he has in good faith withdrawn from the combat as far as he can and done all in his power to avoid the danger and avert the necessity of the killing.”
It can not be said that the instruction complained of is in violation of the principle of law just quoted because, just following it, the court read to the jury instruction No. 10, which is as follows:
“If you find from the evidence beyond a reasonable doubt that at the time the defendant first assaulted and shot the deceased with a pistol the deceased was making no hostile demonstrations toward the defendant which placed him in danger of losing his life or receiving great bodily harm at the hands of deceased, then you are told that the defendant is not justified in killing deceased, and it will he your duty to convict him. ’ ’
It will he noted that in these two instructions the court in effect told the jury that if defendant provoked an assault upon himself by the deceased for the purpose of having an opportunity of shooting and killing him, and the defendant, after deceased had slapped him, immediately drew his pistol and killed the deceased while the latter was making no hostile demonstration toward him, the defendant would not be justified in the killing. In other words, the two instructions in effect told the jury that the defendant could not provoke the deceased to strike him and then, without making any effort to abandon the difficulty, shoot the deceased while his own life was in no danger.
At the request of the State the court also gave instructions Nos. 13 and 14, which are as follows:
“No. 13. The court tells the jury that nowhere in these instructions does the court mean that you are to arbitrarily disregard the testimony given by any witness in this case. That is a matter solely with the jury, and it is not in the province of the court to tell the jury what weight should be given by you to the testimony of any witness. ’ ’
“No. 14. You are instructed that you are the sole judges of the weight of the evidence and the credibility of the witness, and, in passing upon the weight to be given to the'testimony of any witness, you may take into consideration his manner of testifying while on the witness stand, any bias or prejudice that may be shown, the reasonableness or unreasonableness of the statements of any witness, the interest of any witness in the result of the verdict, any conflicts or contradictions in the statements of any witness while testifying on the stand, as well as any conflicts or contradictions in the testimony of one witness with the testimony of other witnesses, and in applying these tests you will take into consideration your knowledge of men and affairs. ’ ’
It is .contended by counsel for defendant that in struction No. 14 is a charge upon the weight of the evidence ; hut we do not think so. Of course, it is well settled that the court may not instruct the jury as to the credit they should give to the witnesses; but the court may tell them that it will be their duty to reconcile any conflict which they may find in the testimony so as to give credit to the whole of it, but, if they can not, they may credit the whole or any part of a witness’ testimony accordingly as the testimony of such witness shall impress their minds as being true, and in determining the truth or falsity of a witness’ testimony they may consider it with reference to all the other testimony given in the case, and that, too, whether the other testimony is contradictory or not.
It is again contended by counsel for defendant that the court erred in refusing to give the instruction No. 5 asked by the defendant. We do not deem it necessary to set out this instruction. It is sufficient to say that the matters embraced in it were fully covered by other instructions given at the request of the defendant. We have examined the instructions carefully and think that the respective theories of the State and of the defendant were fully covered by the instructions given by the court, and, finding no prejudicial error in the record, the judgment will be affirmed. | [
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OPINION OF
THE COURT.
In this case it appears that in the circuit court of Arkansas county, a motion was made by the appellant against the appellee to recover seven dollars and four cents, costs due him as clerk of that court, in the case of John Taylor, assignee of Richard Montgomery, v. James Young, and which costs the sheriff of Arkansas county failed to make on execution placed in his hands. The motion was overruled on the ground that it appeared that Taylor had transferred the judgment to Samuel C. Roane, and that the latter directed the appellee to stay the collection, of the debt. In our opinion it was error to deny the motion, for when a sheriff receives an execution on which costs are due a clerk, and fails to make them when practicable, the sheriff becomes responsible, nor will the order of the plaintiff in execution vary the case as to the costs, whatever may be the effect on the debt Reversed. | [
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Frauenthal, J.
This was an action instituted by a servant to recover damages which he alleged he sustained by reason of the negligence of his employer. The defendant .below owned and operated a railroad in, connection with its sawmill and lumber plant, and the plaintiff received the injuries complained of while in its employment as a section hand. The injury occurred by reason of the derailment of a handcar upon which the plaintiff at the time was riding at the close of the day’s work, and while the car was being taken to the tool house. At the time the section crew was preparing to quit the day’s work the foreman who had authority over the crew directed the plaintiff to gather up the tools along the track. While the plaintiff was absent gathering up the tools, the attention of the foreman .was called to -the fact that the handcar was upon the track with its rear end in front, which was a dangerous way in which to operate the car. The foreman stated that, although it was dangerous to thus run the car, he thought it could be done safely for the distance they intended to go; and he, in effect, directed the crew to operate the car in that manner. The testimony on the part of the plaintiff tended to prove that he did not know that the car was being operated in this dangerous manner; and when he returned he got on the car and with other members of the crew proceeded to propel it. When the car got to the switch, it was derailed, and the plaintiff was severely injured thereby. The testimony tended also to prove that the car was derailed by reason of the improper manner in which it was operated with its rear end in the front.
Upon the trial of the case a verdict was .returned in favor of the plaintiff, and the defendant has appealed to this court.
It is urged that the court erred in refusing to grant a continuance of the case upon defendant’s motion. The summons im the case was served on September 10, and the case was tried on September 24 following. The defendant asked that the cause be continued in order to allow time to secure the attendance of two witnesses: one of the section crew and the foreman. The testimony which it was claimed that the foreman would give was set out in the motion, and-upon the trial this testimony was permitted to be read as evidence in the case.
It was claimed that the defendant had not been able to see the section hand because of the short time since the institution of the suit; and on this account his testimony could not be set out. But it appears that there were at least ten members of this crew, and that a number of them were introduced as witnesses by the defendant; and it does not appear that this section hand .knew any facts other than those known by the other members of the crew. The statute prescribes that the case will stand for trial at the term following ten days’ service of the summons upon the defendant (Kirby’s Digest, § 6190), and it will therefore be presumed that this is sufficient time in which to prepare for trial. The injury occurred in June prior to the meeting of the court; and we do not think that any peculiar circumstances were shown, or any special reasons assigned, so that we can say that the lower court abused its discretion in refusing to continue the case. We have repeatedly held that questions as to continuance of causes rest so much in the sound discretion of the court that, to justify a reversal on the ground of a refusal to continue, it must appear that there has' been a clear abuse of that discretion.
At the request of the plaintiff the court gave the following instruction to the jury:
“No. 2. You are instructed that a person engaged in the service of a railroad company, as a section hand, assumes all the risks ordinarily incident to the business for which' he is employed, but he does not assume the risks of the negligence of the master himself, or any one [to] whom the master may see fit to intrust his superintending. authority, unless it be further shown that the servant was not only aware of the negligence, but he also realized the danger to which he was thereby exposed;”
It is urged that the court erred in giving the above instruction because the injury which plaintiff received was due to one of the ordinai'y hazards of his employment, and was therefore assumed by him.
It is true that when a servant enters into the service of another he assumes all the ordinary risks and hazards incident to the employment; but it is also well settled that he does not assume the risk of any negligence on the part of the master. It is the duty of the master to use reasonable care and dili ge nee in providing for the safety, of the servant and in furnishing for his use a suitable and safe place for the purpose of doing the work. He is not an insurer of the servant’s safety; and yet he must not expose him to risks or dangers which arise from the master’s own negligence. The servant does not, when he enters the service of another or while he continues in that service, assume the risk of dangers that arise from the negligence of the master, unless he is aware of that negligence and appreciates the danger therefrom. And, in the absence of knowledge on his part, the servant has a right to rely upon the assumption that the master has performed the duties devolving upon him so as not to expose him to extraordinary hazards. St. Louis, I. M. & S. Ry. Co. v. Tuohey, 67 Ark. 209; Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367; Ozan Lumber Co. v. Bryan, 90 Ark. 226; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 427; St. Louis, I. M. & S. Ry. Co. v. Holman, 90 Ark. 556; St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102; Labatt on Master & Servant, § 279.
Furthermore, the testimony tended to prove that the foreman in effect ordered the plaintiff and the other members of the crew to drive the handcar with the rear end in front, and knew the peril of a compliance with that order, and that the plaintiff had no knowledge that the car was being run in this improper manner. One of the duties of a servant is to obey the reasonable commands of the master or his representative. When he is directed by the master or one under whose control he is placed to do a certain piece of work or to perform a service in a certain place, he will be justified ordinarily in obeying the order without being chargeable with having assumed the risks incident to' such work or service. He does not assume the risk incident to the act so ordered unless he knows the danger incurred thereby. In Labatt on Master & Servant, § 440, it is said: “The master and servant are not on the same footing. His primary duty is obedience, and if when in the discharge of that duty he is damaged through the neglect of the master, it is but meet that he should be recompensed.” The servant has the right to assume that the master will not expose him to unnecessary danger, and will not cause him to take extraordinary risks by obeying orders of those in whose charge he is .placed, and he can not be said as a matter of law to be guilty of negligence in obeying such orders when he does not know the danger. Whether or not the danger is so obvious or patent that he should take notice of and know it is ordinarily a question for the determination of the jury. “The order having the tendency to throw him off his guard, the servant may properly be excused from the exercise of the same degree of care as would have been incumbent on him if the case did not involve this factor.” 1 Labatt on Master & Servant, § 440b; Southwestern Tel. Co. v. Woughter, 56 Ark. 206; Bloyd v. Railway Co., 58 Ark. 66; St. Louis, I. M. & S. Ry. Co. v. Rickman, 65 Ark. 138.
We are of opinion that the court did not err in giving the above instruction number 2 at the request of plaintiff; and we are further of the opinion that it can not be said as a matter of law that the plaintiff assumed the risk of the danger of riding on the car in the manner in which it was propelled, or that he was guilty of contributory negligence under the circumstances of this case. These, we think, were questions which were properly for the determination of the jury, and we think there was evidence to warrant the finding made by them.
The defendant requested the court to instruct the jury, substantially, that if the plaintiff and those working with him caused the injury by pumping or pulling so hard as to throw the front end of the car off the track, then he should not recover. The court refused to give such an instruction, and we do not think that any prejudicial error was committed by this ruling. In other instructions given by the court the jury were told, in effect, that if the injury did not occur by reason of the fact that the handcar was operated with its rear end in the front, then the plaintiff could not recover. In effect, the court instructed the jury that the sole issue as to the cause of the .derailment was whether or not it occurred by reason of the car being pro.pélled with its rear end in front'; and if the derailment occurred from any other cause, the plaintiff was not entitled to recover. The instruction requested was, therefore, substantially covered by other instructions which were given. St. Louis, I. M. & S. Ry. Co. v. Freeman, 89 Ark. 326.
But, in addition to this, the instruction did not contain a proper qualification, in view of the testimony adduced by the plaintiff. The testimony on behalf of the plaintiff tended to prove that he did not know that the car was being operated with the rear end in front, and therefore did not appreciate the danger of pumping or pulling the car with great - force. He could not therefore under such circumstances have been declared guilty of negligence as a matter of law by reason of pumping the car in such manner. Without a qualification presenting this view of the plaintiff’s contention, the instruction was not a proper one under the circumstances of the case, and it was therefore not error to refuse it. Horton v. Jackson, 87 Ark. 528.
It is contended that certain instructions given at the request of plaintiff were erroneous because they singled out certain facts. We have carefully examined these instructions; and, while we believe that they are subject to some criticism, we do not think they are erroneous. The instructions were hypothetical in their statements, and did not interfere with the province of the jury in passing upon the testimony and determining its effect. The defendant does not claim that the amount of the verdict was excessive. Upon an examination of the whole case, we do not find that any prejudicial error was committed in the trial by the lower court.
The judgment is affirmed. | [
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Frauenthal, J.
The defendant, Van Davis, was indicted by the grand jury of Sebastian County for the crime of seduction. In the body of the indictment it was alleged that the defendant “then and there being a man, unlawfully and feloniously did obtain carnal knowledge of one Anna Ragan, a single and unmarried female, by virtue of a false express promise of marriage to her previously made by said defendant, against the peace and dignity of the State of Arkansas.” The defendant interposed a demurrer to the indictment, which was overruled. He was then tried upon the indictment and convicted of the crime therein charged against him; and from the judgment of conviction he has appealed to this court.
It is contended that the indictment is fatally defective because it fails to allege that the defendant was an unmarried man. It is urged that if the defendant was a married man at the time the alleged promise of marriage was made he could not legally carry out such promise, and therefore could not be guilty of seduction; and that on this account it was necessary to allege in the indictment that he was a single and unmarried man. The crime of seduction is created by statute. In this State the statute provides that “any person who shall be convicted of obtaining carnal knowledge of a female by virtue of any feigned or pretended marriage, or of any false or feigned express promise of marriage” shall be guilty of this crime. Kirby’s Digest, § 2043. The object and purpose of the statute is to protect the virtue and chastity of the female; and it applies to “any person” who is a male and violates its provisions. It is not limited by reason of the state or condition of the man — 'whether he be single or married. There is nothing in the statute that requires that the promise of marriage shall toe legally valid and binding. The purpose of the statute was to prevent the obtaining of the consent of the female to sexual intercourse by means of the promise of marriage and to protect her from the arts of the man who had gained her confidence and to whose solicitation she might yield because she believed that his promise 'of marriage was made in good faith and would be observed. The promise of marriage would be as false and feigned if the seducer knew that it was not in his power to perform it as il would be if he was capable of observing it. The statute is leveled at the seducer, whether he be a married man or a single man; and a married man may be guilty of the offense of seduction, if the woman was ignorant of the fact, of his marriage. It was not necessary, therefore, that the indictment "should allege that the defendant was a single and unmarried man. Bishop on Statutory Crimes, § 638; Norton v. State, 16 So. 264; State v. Primm, 98 Mo. 368; State v. Bryan, 34 Kan. 63; Davis v. Com., 98 Ky. 708; People v. Kehoe, 123 Cal. 224; People v. Alger, 1 Parker, C. C. 333; Kenyon v. People, 26 N. Y. 203.
It is urged by counsel for defendant that the evidence on the part of the State shows that the defendant was willing to carry out his promise of marriage, and has not refused to do so; and that therefore there is not sufficient evidence adduced in the case to support the verdict. But we do not think that this contention is correct. In September, 1909, the defendant came to the home of the mother of the prosecuting witness and claimed to have known the family in Georgia, in which State he said that he had lived. He introduced himself as Chester Davis, and claimed to be a second cousin of the prosecutrix through relation with her father. He soon made love to her, and asked the consent of her mother to marry her, which was given. Shortly thereafter he obtained carnal knowledge of her by promising marriage on the following day. On the following day he started to the county seat with the prosecutrix in order to secure the marriage license; but, after proceeding only a portion of the way, he told her that he would not marry her; and then for the first time claimed that he could not marry her because they were cousins. He then insisted that she tell her mother and acquaintances that they had married and promised that he would later go with her to Memphis and there marry her. Overcome by his entreaties, his threats and promises, she consented. But the defendant never did take further steps to carry out h-is promise of marriage; and later it developed that his name was not Chester Davis, which he had assumed; but that he was Van Davis and a married man. We think that the evidence was sufficient to warrant the finding of the jury that the promise of marriage made by the defendant was feigned, and that he did not intend to perform it; and upon the whole case we think there was sufficient evidence to sustain the verdict of the jury. Carrens v. State, 77 Ark. 16; Lasater v. State, 77 Ark. 468; Rucker v. State, 77 Ark. 23.
It is urged that the court erred in overruling the defendant’s motion for a continuance. It appears that the defendant announced ready for trial, and entered his plea of not guilty, and thereupon a jury was impanelled to try the case. After a portion of the testimony had been taken the defendant filed a motion for continuance in order to obtain two witnesses. ITe stated in the motion that the two witnesses had resided in the district, but, in effect, stated that they were at that time without the jurisdiction of the court, and that he did not know their then residence. He stated further that these witnesses would testify that the prosecuting witness “had had sexual intercourse with men before she became acquainted with the defendant in this case.” The application for continuance should have shown where these witnesses resided, and that it was probable that their testimony could be obtained in event the case was continued. It was also defective in not showing that the desired facts could not be proved by other witnesses. Jackson v. State, 54 Ark. 243. The motion did not state that these two witnesses would testify that either of them had been criminally intimate with the prosecuting witness, and did not name any man who had been thus intimate with her. An application for continuance should specifically set forth the facts expected to be proved by the desired witness, and not in general terms or by indefinite allegations the effect of such testimony. The allegations in the motion as to what the defendant expected to prove by these two witnesses were vague, general and uncertain, and were in the nature of conclusions rather than of specific facts. On this account therefore we do not think that the lower court abused its discretion in refusing to continue the case. Puckett v. State, 71 Ark. 62; Taylor v. State, 72 Ark. 613; Rucker v. State, 77 Ark. 23; Russell v. State (Tex.), 26 S. W. 990; 9 Cyc. 201.
Counsel for defendant also claim that the lower court committed error in allowing the introduction of certain testimony relative to the marriage of the defendant. But we do not think this contention is well founded. At the time the testimony was introduced the defendant did not interpose objection thereto, nor did he make any exception to any ruling of the court upon the introduction of this testimony. And we do not think that the testimony was incompetent. The witness stated that she lived at the time of the defendant’s marriage in the same community with the defendant, and she named the person whom he married, and that in the community he introduced the lady as his wife to his friends and acquaintances and conducted himself, towards her as her husband. This was in effect original evidence of facts from which the marriage could 'be inferred. We think this testimony was competent and admissible. 3 Wig-more on Ev., § 2083; 1 Greenleaf on Ev., § 140c.
It is also urged that the court erred in its refusal to give certain instructions requested by defendant. We have examined these instructions and all the instructions given in the case. The instructions requested by the defendant were fully covered by the instructions given by the court. We think the court fully and correctly instructed the jury upon every phase of the case.
Upon an examination of the whole case we do not find any error committed in the trial of the case which was prejudicial to the rights of the defendant.
The judgment is affirmed. | [
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Hart, J.,
(after stating the facts.) Counsel for appellant insist that the court erred in giving instruction No. 1 at the request of appellee. They contend in the first place that it assumes that there was an “unreasonable delay in the delivery.” We do not think the instruction open to that objection, when read in connection with the other instructions given by the court. It is the settled rule of this court that instructions must be read and considered as a whole. In the instructions given at the request of the appellant, the court specifically told the jury that it was their province to determine whether the delay was unreasonable. We refer to instruction No. 4 which, when read in connection with instruction No. 1, shows that the question of the reasonableness or unreasonableness of the delay was submitted to the jury. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325; Ames Shovel & Tool Co. v. Anderson, 90 Ark. 231.
The giving of instruction No. 4 asked by counsel for the defendant on this point was direct notice to them that the court did not mean to assume in any of its instructions that the delay was unreasonable, and if they thought the instruction in question was ambiguous or misleading in that respect they should have called the court’s attention to it by a specific objection, and, not having done so, they have waived it. Aluminum Co. of North America v. Ramsey, 89 Ark. 522.
Again, they urge that the instruction is erroneous because it allowed the plaintiff to recover the net earning capacity of the teams and grading implements during the period of the alleged delay. There was no error in this. The defendant was put upon notice by the plaintiff that he would suffer this special damage if delay was made in the shipment of the grading implements, and the case is within the rule announced in Chicago, R. I. & P. Ry. Co. v. Planters’ Gin & Oil Co., 88 Ark. 77. In that case the court held:
1. “Where there was a delay in the transportation of machinery intended for a special use known to the carrier, it was responsible for such damages as were fairly attributable to the delay, having been informed that special damages would result therefrom, though it was bound to accept the shipment when tendered, and, under the Hepburn amendment to the interstate commerce act, could not make a special contract to compensate it for the additional risk.”
2. “Notice to a carrier of special circumstances which would result in special damages to a shipper from delay in transportation of machinery imposes on the carrier the duty to use diligence commensurate with the requirements of the case, which duty the carrier performs when he uses reasonable diligence to forward the goods promptly.”
Moreover, if there was any error in this instruction in this respect, it was repeated by the defendant in instruction No. 3 given by the court at its request, and it is not, therefore, ground for reversal. Little Rock & M. Ry. Co. v. Russell, 88 Ark. 172; St. Louis & S. F. Rd. Co. v. Vaughan, 88 Ark. 138.
It is next urged by counsel for appellant that the court erred in allowing testimony to go to the jury as to the amount of a feed bill paid by plaintiff on his car of mules while en route at Argenta, Ark., and as to the amounts paid his employees other than the drivers. These errors were eliminated by the verdict of the jury. The evidence of the plaintiff himself shows that the net earning capacity of the mules and grading implements during the period of delay contended for by him'was $206.25. This was all the testimony there was on this point, and no effort was made to contradict it by cross examination of the plaintiff or otherwise. Hence it may be said that the verdict of the jury, being for that, precise amount, was based entirely on his testimony, and that the other testimony introduced had no influence on the jury in forming their verdict. Its admission, therefore,' could not have prejudiced the rights of appellant, and it is the settled rule of the court that there will be no reversal except for prejudicial errors.
The judgment will therefore be affirmed. | [
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Frauenthal, J.
This was an action instituted by William: Heyser, the plaintiff below, against the St. Louis & San Francisco Railroad Company to recover the damages which resulted during transportation to a shipment of peaches. It was alleged in the complaint that on August 8, 1907, the plaintiff' delivered to the defendant at Rogers in the State of Arkansas two cars of peaches for carriage to Baltimore in the State of Maryland, and that the defendant accepted the property for transportation, and by its written contract agreed to carry same to said latter point and there deliver same to plaintiff. It was alleged that by reason of the negligence in failing to carry the-peaches with reasonable dispatch and in failing to properly ice-a-nd keep properly iced the refrigerator cars in which they were carried the peaches rotted and decayed; and the plaintiff’ sought to recover the damages which lie thereby sustained.
To this complaint the defendant interposed a demurrer;., and thereafter in its answer also set up the grounds of the demurrer as a defense to a recovery. In its answer it pleaded that from the complaint it did not appear that any negligence-occurred upon the defendant’s line of railroad, and that the-plaintiff sought to recover damages to the peaches which resulted by reason of negligence which occurred upon the line-of railroad of another and connecting carrier by virtue of the-provisions of the act of Congress commonly known as the “Hepburn Act,” which was approved June 29, 1906, and which is amendatory of the Interstate Commerce Act approved February 4, 1887; that said act, in so far as it attempts to make the. initial carrier liable for the negligence of a connecting carrier, is unconstitutional and invalid; and, if valid, that the' State-courts have no jurisdiction to enforce the rights thereby created. The defendant also denied the allegations of negligence. It also pleaded that according to the written contract of shipment it was provided that as a condition to a recovery notice of the-loss or damage must be given within thirty hours after the arrival of the property at its destination and -delivery, and it alleged that such notice was not given.
It appears from the testimony that the defendant owned a-, line of railroad running through the States of Arkansas and; Missouri, and that it was engaged as a common carrier in interstate commerce. On August 8, 1907, there were delivered to the defendant at Rogers, Arkansas, two cars of peaches to be transported from that point to Baltimore, Maryland. The •defendant executed its written receipt or bill of lading for the peaches by which it contracted to transport the property, and therein named the plaintiff as the consignee and the place of •destination to be Baltimore, Maryland. In said written receipt or 'bill of lading it was provided: “No carrier shall be responsible for loss or damage of any freight unless it is proved to have occurred during the time of its transit over the particular •carrier’s line, and of this notice must be given within thirty hours after the arrival of the same at destination. No carrier ■shall be responsible for loss or damage to property unless notice •of such loss or damage is given to the delivering carrier within thirty hours after delivery. * * * It is further agreed that for .all loss or damage occurring in the transit of freight the legal remedy shall be against only the particular carrier in whose •custody the said freight may actually be at the time of the happening thereof.’'
The evidence tended to prove that when the peaches were loaded in the cars and delivered to defendant at Rogers they were perfectly fresh and sound, and that when they arrived at 'Baltimore they were injured by dry rot and decay, and were ■damaged thereby to an amount equal to if not in excess of the •sum herein recovered. If the cars had been properly iced and 'kept properly iced, and the peaches properly transported with•out unreasonable delay, the testimony tended to prove that they would have reached the- plaintiff at Baltimore in a perfectly ■sound condition.
Immediately upon the arrival of the peaches at Baltimore the plaintiff examined same, and, finding that they were greatly •damaged, he at once, and within thirty hours after the arrival, .gave notice of his claim of damages to the depot manager or .assistant foreman of the delivering carrier, whose duty it was -to notify the consignee of the arrival of goods and note any •complaints for damage thereto.
Upon the trial of the case a verdict was returned in favor •of the plaintiff, and the defendant has appealed from the judgement entered thereon.
By section 20 of the act of Congress approved February 4, 1887, commonly known as the Interstate Commerce Act (U. 5. Comp. St. 1901, p. 3169), as amended by the act of Congress-approved June 29, 1906,'and commonly known as the “Hepburn Act” (U. S. Comp. St. Supp. 1907, p. 909), it is, among other things, provided:
“That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to-which such prUoerty may be delivered or ■ over whose line or lines such propi, :ty. may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed. Provided,, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which-he has under existing laws.”
“That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to-recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have-been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property as may be evidenced by any receipt, judgment or transcript thereof.”'
It is urged that the rights thus created spring from an act of Congress relating to an interstate shipment, and not from' any law of this State, and on that account such rights can not be recognized or enforced in the courts of this State. It is-true that the State can not legislate relative to matters that are the subject of interstate commerce, but this does not prevent the courts of the State from taking cognizance of cases that arise out of such commerce. The citizen of the State is also-a citizen of the United States, and is entitled to the rights and the protection which are given him by the Constitution and laws of the United States; and the courts of the State have the power to enforce those rights and grant that protection. In the case of Robb v. Connolly, 111 U. S. 637, Mr. Justice Harlan said:
“Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are 'involved in any suit or proceeding before them; for the judges of the State courts are required to take an oath to sup.port that Constitution, and they are bound by it and the laws of the United States made in pursuance thereof. * * * If they fail therein, and withhold or deny rights or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination.”
And in the case of Claflin v. Houseman, 93 U. S. 130, Mr. Justice Bradley said: “The general question whether State courts can exercise concurrent jririsdiction with the Federal courts in cases arising under the Constitution, laws and-treaties of the United States has been elaborately discussed, both on the bench and in published treatises; * * * but the result of these discussions has, in our judgment, been, as seen in the above cases, to affirm the jurisdiction where it is not excluded by express provision or by incompatibility in its exercise arising from the nature of the particular case. * * * The laws of the United States are laws of the several States, and just as much binding on the citizens and courts thereof as State laws are. * * * Legal or equitable rights acquired under either system may be enforced in any court of either Sovereignty competent to hear such kind of rights and not restrained by its Constitution in the exercise of such jurisdiction.” Teal v. Felton, 12 How. (U. S.) 292; Dennick v. Railroad Company, 103 U. S. 11; Defiance Water Co. v. Defiance, 191 U. S. 194.
There are many instances in which rights growing out of or created by acts of Congress have been recognized and enforced in the courts of this State and the courts of other States. York v. St. Louis, I. M. & S. Ry. Co., 86 Ark. 244; St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281; Smeltzer v. St. Louis & S. F. Rd. Co., 158 Fed. 649; Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. 942; Schlemmer v. Buffalo, R. & P. Ry. Co., 205 U. S. 1; Holland v. Chicago, R. I. & P. Ry. Co., 123 S. W. 987; Southern Pac. Co. v. Crenshaw, 63 S. E. 865.
It is further urged that the above provision of the “Hepburn Act” making the initial carrier liable for any damage or injury to the property transported growing out of the negligence of the connecting carrier is a new right which this statute has created, and that the act of Congress has prescribed the remedy for its enforcement, and that such remedy is exclusive. It is contended that by sections 8 and 9 of the Interstate Commerce Act, approved February 4, 1887, exclusive jurisdiction is conferred upon the Interstate Commerce Commission and upon the Federal courts for the enforcement of the rights thus created. As is said by Judge Rogers in the case of Smeltzer v. St. Louis & S. F. Rd. Co., 168 Fed. 420: “The very language used makes it clear that those sections have no application to such an action as this.” The provisions of those sections declare a liability for damages which result where the common carrier “shall do, cause to be done or permit to be done, a'ny act, matter or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing in this act required.” The action herein instituted is based upon the negligence which occurred during the transportation of the property, and not upon anything that is required to be done or prohibited from being done by the act. By its written contract of shipment the defendant in this case had agreed to carry the peaches from Rogers, Ark., to Baltimore, Md. Under the common law, and independent of any statutory liability, it rendered itself liable for any injury to the goods which arose through its own negligence or by reason of the negligence of any connecting carrier upon any portion of the route over which the property was transported, unless it. expressly exempted itself from liability by contract. St. Louis S. W. Ry. Co. v. Wallace, 90 Ark. 138.
It attempted to do this in the written receipt or bill of lading which it executed. The Hepburn Act simply struck down that exemption, and left the liability of the defendant as a carrier as it existed at common law. It created no new right and imposed no new duty, but declared invalid any contract which would exempt it from the liability which under the common law it assumed. But, if we are mistaken in this view of the act, then we are of opinion that Congress did not give by this enactment the exclusive jurisdiction to the Interstate Commerce Commission or to the Federal courts to enforce the; rights which arise from that law. Smeltzer v. St. Louis & S. F. Rd. Co., 168 Fed. 420; Southern Pac. Co. v. Crenshaw, 63 S. E. 865; Holland v. Chicago, R. I. & P. Ry. Co., 123 S. W. 987. See. also Midland Valley Rd. Co. v. Hoffman Coal Co., 91 Ark. 180.
It is urged that this act of Congress is unconstitutional' because it deprives the initial carrier of the right of the liberty, of contract, and because it deprives it of it's property without, due process of law. But the right of liberty of contract is not. absolute and universal, and is subject to legislative restrictions which are enacted in the exercise of the power to protect the safety, health and welfare of the people.
In the case of Frisbie v. United States, 157 U. S. 165, it is said: “While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations except for necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy.”
The power to regulate commerce is conferred upon Congress by the Constitution of the United States, and such power is plenary, and may be exercised to the utmost extent, and has no limitation except that prescribed by the Constitution.
The character of the regulations that shall be adopted in the matters of commerce must necessarily be left largely to the discretion of Congress, to which branch of the government the power to make such regulations is confided. In testing the validity of its enactments it is the duty of the courts'to resolve all doubts in favor of the legislative action. Legal Tender Cases, 12 Wall. 531; Trade Mark Cases, 100 U. S. 96; Fletcher v. Peck, 6 Cranch 87; Bacon v. Walker, 204 U. S. 311.
Cases involving rights growing out of the above clause of the “Hepburn Act” have been several times before this court, and in each case its validity has beén sustained. St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154; Kansas City So. Ry. Co. v. Carl, 91 Ark. 97.
Its constitutionality has been upheld in an. able and well considered opinion delivered by Judge Rogers in the case of Smeltzer v. St. Louis & S. F. Rd. Co., 158 Fed. 649. Its validity has also been upheld in the case of Southern Pac. Co. v. Crenshaw, 63 S. E. 865. And we are of opinion that the enactment, of the above provision of the “Hepburn Act” was within the due exercise of the legislative power conferred upon Congress by the Constitution.
It is contended that notice of the claim of damages was not given in compliance with the above condition of the bill of lading requiring such notice. This provision of the bill of lading does not designate to what officer or agent such notice shall be given; it only provides that the notice shall be given to the delivering carrier within a prescribed time. The delivering carrier was a corporation, which could only receive notice through one of its agents. Within the prescribed time the plaintiff gave notice of the claim of damage to an agent of the delivering carrier who was its depot manager at the place of ' destination, and to whom such complaints were customarily made. This agent appeared as a witness on behalf of the defendant, and testified that he was authorized by’the delivering carrier to notify consignees of the arrival of the property and to receive and note all complaints made relative thereto at the time of arrival. Under these circumstances we think that notice to this agent was notice to the delivering carrier, and that the plaintiff • complied with this condition of the contract. We are also of the opinion that the evidence adduced at the trial was sufficient to sustain the liability of the defendant for the damages to the peaches and for the amount of the recovery therefor. •
The judgment is accordingly affirmed.
Battue, J., not participating. | [
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McCulloch, C. J.
Appellants, as assignees of a decree rendered 'by the chancery court of Mississippi County against one Bowen and the sureties on his retaining bond in replevin, filed in that court against John A. Eovewell, sheriff of the county, a motion for summary judgment against the latter and his bondsmen for the penalty prescribed by statute for failing to pay over money and for failing to execute and return process placed in his hands. A penalty is first - sought to be recovered under section 4487, subdivision 7, Kirby’s Digest, for failure to pay on demand moneys received by him; second, the penalty prescribed by subdivision 1 of the same section for failing to return an execution; and, third, the penalty prescribed by subdivision 3 of the same section for failing to make the money on -said execution.
As to the first penalty sought to -be recovered, this can be disposed of on the ground that the evidence is not sufficient to overturn the finding of the chancellor that there was no refusal to pay over the money. The money came into the ■hands of the sheriff by virtue of a sale of property made by him pursuant to an order of the chancery -court, and he held it subject to the orders of the court. He tendered the amount with his answer to appellant’s motion, subject to the order -of the court, and the court directed him to pay it over to appellant. This is the full measure of relief they are entitled to against the officer.
The proceedings were brought under chapter 94 of Kirby’s Digest, which authorizes summary judgment on motion by sureties against their principals and against co-sureties; by clients against attorneys; by plaintiffs in execution against sheriffs, constables and other officers; and in all other cases specially authorized by statute. Section 4487 of Kirby’s Digest provides the • penalties which may be recovered by summary judgment against officers and their sureties.
The statute is penal, and must be strictly construed. Milor v. Farrelly, 25 Ark. 353. Courts of equity will not lend their aid in the enforcement of penalties. 2 Story, Eq., 1319. 1494; Mississippi Railroad Commission v. Gulf & Ship Island Rd. Co.; 78 Miss. 750; Broadnax v. Baker, 94 N. C. 675; Gordon v. Lowell, 21 Me. 251.
The decree is therefore correct, and the same is affirmed. | [
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Battle, J.
This is an action by M. D. Moody, as administrator of W. B'. Moody, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the injury and death of the latter, caused by the engine of the defendant pushing four cars against him. After the jury impaneled in the case had heard the evidence adduced by the parties, the court instructed them to return a verdict in favor of the defendant, which they did, and plaintiff appealed. '
On the 7th of March, 1908, W. B. Moody arrived at Bald Knob, in this State, on board of a train of the defendant on a visit to his son, who resided at that place about a quartet of a mile from the depot. He undertook to walk to his son’s residence. On his way lay the main railway and five switches of the defendant. Between what is called the main and passing lines was a pathway' on which he, in part, undertook to go to his son’s. The train on which he had arrived, and an engine with four cars in front of it, were moving on one or more of these tracks ’preparing to depart. After the passenger train had passed him, without looking or listening, he stepped on the main line, and soon the engine, pushing four cars in front of it and moving at the rate of three miles an hour, struck him, inflicting severe injuries. The engine and four cars were in plain view, and there was nothing between him and them to obstruct his view. The switches there were sufficient to put him on his guard against more than one engine. There was no necessity for him to walk upon the railway track; the path between the tracks furnished a safe and sufficient footway for that time and occasion. He was guilty of contributory negligence. There was no evidence that the trainmen actually discovered his peril in time to avoid injuring him. He is not entitled to recover damages. Tucka v. St. Louis, I. M. & S. Ry. Co., ante p. 190, and cases cited.
Judgment affirmed. | [
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Battle, J.
An act entitled “An act to provide a depository for the county funds of Carroll, Benton and White counties,” which became a law on 28th of March, 1905, among other things, provides: That it shall be the duty of the county judges of Carroll, Benton and White counties, at the April, 1905, term of the county courts of such counties, and every two years thereafter, to receive propositions .from any bank, banker, or trust company, in said counties, that may desire to be the depository of the public funds of such counties, and that notice of the intention to receive such propositions or bids shall be published by the clerks of such counties in. the manner prescribed by the act. That any such bank, banker, or trust company desiring to become such depository shall, on or before the first day of said term of court, file with the clerk a sealed bid, stating the rate of interest offered to be paid by such bidder, for the two years next ensuing, upon the countv funds that may be deposited in pursuance to such bids. That at noon on the first day of April, 1905, and every two years thereafter, the court shall publicly open each of said bids so pre sented, and shall select from such bids, as the depository of the public funds of the county, including school funds, the bidder offering the highest rate of interest per annum on said funds. That it shall be the duty of the successful bidder, within twenty days after his selection, to execute and file with the clerk a bond for an amount not less than the total revenue of the county for the years fgr which the bond shall be given, with security as required by the act, conditioned for the due and proper performance of all the duties and obligations devolving by law upon the depository,-and for the prompt pajunent upon presentation of all checks drawn upon him by the county treasurer of such county, so long as such funds shall be in the depository to the credit of said counties. That upon the approval of the bond the county court shall make an order designating the successful bidder as the depository of all the funds of the county for a period ending thirty days after the time fixed for another selection of a county depository, and that it shall be the duty of the county treasurer immediately to transfer to the depository all funds belonging to the county; and thereafter immediately upon receipt of county funds to deposit same therewith to the credit of the county. That it shall be the duty of • the depository to provide for the prompt payment at the county sites of Carroll, Benton and White of all checks drawn b3r the county treasurer upon such funds of the county in said depository, and to file with the county treasurer a statement designating the places at such county sites where such payments shall be made. That interest shall be computed upon the daily balances to the credit of said county with said depository, and the same shall be payable to the county treasurer monthly, and shall be immediately placed by said treasurer to the credit of the common school funds of his said county.
On the 15th day of May, 1909, the State of Arkansas, for the use of Carroll County, brought an action against the Carroll ■County Bank, in the Carroll Circuit Court, in the Eastern District, to recover $169.80 due the county. Plaintiff alleged in its complaint that Carroll County, in pursuance of the terms of the act of March 28, 1905, let the contract for using and keeping its funds to the defendant on the .. day of ...., 190.., ’for a period of two years, the defendant agreeing to pay to the county interest on the money of the county, monthly, át the rate of four and a half per cent, per annum; said interest to foe paid on the balances remaining in the hands or possession of the defendant each day during the period of the contract. That, in pursuance of the terms of the contract, the county, by its county treasurer, did, on the 23d day of September, 1905, deposit the funds of the county with the defendant, and did thereafter, from day to day, deposit with the defendant all public moneys of the county coming into the hands of the county treasurer during the period of contract up to and including the .. day of....., 1907; that interest accrued on the funds during the two years of the contract to the amount of $903.51, of which the defendant paid $840.25, leaving due $63.26. That the defendant failed to pay the interest promptly according to the contract, and the sum of six dollars and fpurteen cents had accrued on such interest, and was due the county. For these two amounts plaintiff asked for judgment for $69.40 in the first paragraph of its complaint.
In a second paragraph of its complaint plaintiff alleged that the county of Carroll, in pursuance of the terms of the act created the defendant, on the . . day of ...., 1909, the depository of its funds for the period of two years ending on the .. day of ...., 1909; the bank agreeing to pay interest upon such funds, monthly, at the rate of four and a half per cent, per annum, the same to be paid on the daily balance in the depository during the continuance of the contract. That, in pursuance of the term's of the contract, the treasurer of Carroll County, on the .. day of....., 1907, and on divers and sundry days during the term of the contract and up to and including the 2ist day of March, 1909, deposited divers amounts of money with the defendant; that interest accrued on the fund's deposited under the latter contract during the time it continued, to the amount of $1,917.11, of which the defendant paid $1,836, leaving a balance due of $81.11; that the interest on the latter contract was not paid monthly as stipulated, but from three to five months apart, by reason of which the county was deprived of interest on such interest in the sum of $18.14. For the last two amounts, $81.11 and $18.14, the plaintiff asked for judgment in the last paragraph of his complaint.
The defendant demurred to each paragraph of the complaint (1) because they do not state facts sufficient to constitute a cause of action, and (2) because the county court of Carroll County had exclusive jurisdiction.
The court overruled the demurrer, and, the defendant refusing to plead further, rendered judgment in favor of the plaintiff; and the defendant appealed.
The Constitution of the State provides: “The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county paupers, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” Art. 7, § 28, Const. 1874. The subject-matter of this action is not embraced in the jurisdiction of county courts as thus defined by the Constitution. The sum sued for is not taxes; nor is the action brought to enforce a settlement by a revenue officer of the taxes in his hands, as in Christian v. Ashley County, 24 Ark. 142, and Pettigrew v. Washington County, 43 Ark. 33. If the sum sued for had ever been county taxes, it ceased to be such when it was paid into the county treasury, as a debt would cease to be a debt when it is paid. It is a sum due for money loaned, accrued interest, is a demand in favor of the county, and is not due for taxes. Price v. Madison County, 90 Ark. 195.
This action is based upon two separate bonds, for $69.40 on one and for $99.25 on the other. The first was for the use and care of the county funds of Carroll County for the ; ear 1906, and parts of the years 1905 and 1907, and the latter for the use and care of such funds for a term commencing when the first ended and extending two years. Both were given under the act of March 28, 1905, by the defendant to discharge the duties of a depository. The amounts due on each were for separate and distinct considerations, and were under the sum of one hundred dollars, and come within the exclusive jurisdiction of a justice of the peace, and cannot be united to give the circuit court jurisdiction. Winer v. Bank of Blytheville, 89 Ark. 435, 440, and cases cited. See also Walker v. Byrd, 15 Ark, 33; Hunton v. Luce, 60 Ark. 146; Constitution, art. 7, § 40.
The circuit court did not have jurisdiction.
Judgment reversed and action dismissed: | [
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Wood, J.,
(after stating the facts). 1. W'e held on the former appeal that the artiole. whose publication was the foundation of the present action was libelous per se. Murray v. Galbraith, 86 Ark. 50. That being true, really the only issue on the second trial was the amount of the damages. • This issue was submitted on instructions that were full, accurate, and fair to appellant. One who publishes a false article calling in question the character of another for probity is liable to the person whose character is assailed in an action for damages. If the publication of the article is without express malice, i. e., without any ill will or animosity on the part of the publisher toward the person whom he assails, and if the publication is made under circumstances that do not indicate any wicked and abandoned disposition or any evil motive on the part of the publisher in making the publication, then the damages to the party whose character is impeached can only be compensatory. But, on the other hand, if the publication is through express malice, or under circumstances that indicate a wicked and abandoned motive in making it, then the person libeled may recover not only compensatory but punitive damages.
There can not be' in law any justification or excuse for libel. “The purest treasure mortal times afford is spotless reputation.” “A good name is rather to be chosen than great riches.” Brov. 22-1; Reel. 7-1. The law,' recognizing this, makes libel a crime (section 1850, Kirby’s Dig.), and also requires one who libels another to respond in damages to the party aggrieved, no matter what may be the circumstances under which the libel was evoked or provoked. The absence of personal animosity or ill will, or of evil motive, in committing the libel may be proved for the purpose of showing that the party libeled is not entitled to vindictive or punitive damages.
But the publication of a false article calling in question the integrity of another, ipso facto, implies malice, and the law will not permit one who makes such publication to show the circumstances under which it was done for the purpose of depriving the party libeled of compensatory damages. Nor will the law permit the circumstances to be shown for the purpose of mitigating or reducing the amount of such damages. Our own court and the authorities generally sustain the doctrine here announced. Stallings v. Whittaker, 55 Ark. 501; Gaines v. Belding, 56 Ark. 103; Times Pub. Co. v. Carlisle, 36 C. C. A. 475; Palmer v Mahin, 57 C. C. A. at p. 45, 48; Kansas City Star Co. v. Carlisle, 47 C. C. A. 384, 397; Park Pub. Co. v. Butler, 71 C. C. A. 309; Hamilton v. Eno, 81 N. Y. 126; Nicholson v. Rust, 52 S. W. (Ky.) 934.
The case of Patton v. Cruce, 72 Ark. 426, is not in conflict with this. There the court through Judge Riddick said: “It is proper to take into consideration the circumstances under which the libel was committed.” But the court had under consideration and was discussing undisputed facts showing express malice, which would entitle the party libeled to punitive damages
It follows that the court did not err in refusing appellant’s prayers numbered 4 and 4)^. So far as these were applicable to the issue of punitive damages, they had been fully covered by the court in other instructions. Besides, the verdict of the jury finding in favor of appellee for only compensatory damages cured any error that might have been in the rulings of the court on the issue of exemplary damages. But there were no errors.
2. The court did not err in refusing appellant’s prayer number 7. The instructions given by the court confined the jury to the “compensatory damages caused by the publication” and to “such compensatory damages as the evidence showed he was entitled' to recover on account of such publication.” The court correctly defined compensatory damages. Under the instructions of the court, the jury could not have found appellant liable for current rumors and reports derogatory to the character of appellee which were put in circulation by others. Appellant under the instructions could only be found liable in damages for the injury produced by his own publication.
3. We find no prejudicial error in the rulings of the court pertaining to the admission of the testimony of appellee and other witnesses. The testimony of appellee was germane to the issue as to whether the publication had the effect to “impeach the honesty, integrity, veracity and reputation” of appellee, as was alleged in the complaint, and, if so, to what extent. But if the testimony tending to prove injury to appellant’s" business and tending to impeach his reputation as a business man was incompetent, then the error of the court in admitting it was cured, and any prejudicial effect it might otherwise have had was taken away by the instruction of the court which expressly told the jury “that, no special damages being proved or .claimed in the complaint, plaintiff is not entitled to recover anything for such special damages.” And by the further instruction that “actual or special damages represent a pecuniary loss shown to have been sustained by the plaintiff as the direct result of the publication of the false and defamatory matter complained of.”
There is no contention that the amount of the verdict fox' compensatory damages is excessive. The evidence in the record on behalf of appellant, and from his viewpoint, entirely exoneiates him from the charge of express malice, and shows that in making the publication he was actuated only by the desire to serve the public in exposing what he honestly believed, from the information then at hand, to be a piece of outrageous “graft” on the part of public officials. It turned out, however, that appellant was mistaken in the facts, and, not waiting for accurate knowledge, published an article which proved to be untrue, and which was a defamation of the character of appellee. The publisher in such case, although inspired by the laudable purpose ot denouncing dishonesty in public officials, is nevertheless guilty of libel if his publication impeaches the integrity of particular individuals; and if the facts he states are false, he acts at his peril.» Although there may be no express malice, the law, as we have seen, implies the malice essential to constitute libel from the publication of a defamatory article, and gives the party injured redress in compensatory damages. 25 Cyc. pp. 49ie, 492I1.
The judgment must be affirmed. | [
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Frauenthal, J.
This is an appeal from a decree of the chancery court refusing leave to file a bill of review to reverse a former decree of that court on account of new facts alleged to have been discovered since said decree was entered.
In December, 1906, F. T. Rucker instituted an action in the circuit court against John R. Smith upon a note for $1,500, which it was alleged had been executed by Smith & Ward, a partnership composed of John R. Smith and A. C. Ward, to the Bank of Beebe on March 4, 1904, and by said bank transferred to said Rucker.
To the complaint Smith filed an answer and cross complaint, and also a motion to make the Bank of Beebe a party to the suit and a motion to transfer the cause to the chancery court. The cause was transferred to the chancery court, and the Bank of Beebe was made a party to the action. In his answer and cross complaint Smith denied that there was anything due upon the note sued on, but alleged that it had been paid. Pie alleged that - the firm of Smith & Ward had been engaged in the mercantile business, beginning in the year 1900, and that the note sued on was one' of the debts of that firm; that the firm of Smith & Ward became financially embarrassed, and in 1905 filed a petition in voluntary bankruptcy; that shortly after the filing of said petition F. T. Rucker, who was the cashier of- -the Bank of Beebe, suggested to the members of said partnership that they should attempt to make a settlement with their creditors, and that said bank would assist them by lending them the money to make the settlement, upon the agreement that the indebtedness -due to the bank would be paid in full; that in pursuance of said suggestion a settlement was made with the creditors of the partnership, and that the Bank of Beebe advanced to the firm the money to pay off all other creditors; that, to secure the Bank of Beebe for the money thus advanced, they transferred and turned over to it certain notes and mortgages and the book of accounts of the partnership. He alleged that said Rucker, as cashier of the Bank of Beebe, had entire management and control of the collection of said notes and accounts, and that from these collections and also from amounts paid by Smith all the money advanced by the bank and all the indebtedness due to the bank, including the note sued on, were paid.
The Bank of Beebe and said Rucker made answer to the cross complaint, denying that sufficient collections had been made on said notes and accounts to pay off the indebtedness of Smith & Ward to the bank or to pay the note sued on. They also alleged that, for the money advanced by the -bank to pay to the creditors of Smith & Ward, two additional notes had been executed to the bank, secured by mortgage on real estate, and they sought a recovery upon these notes and a foreclosure of the mortgage executed to secure their payment. The testimony which was adduced upon the trial of that cause is quite voluminous. It was introduced 'for the purpose of showing the collections which had been made upon said notes and accounts and the payments that had been made by Smith upon the indebtedness due by said'firm to the Bank of Beebe and upon said note sued on.' Upon the trial of the cause the chancellor found that the total indebtedness of the firm of Smith & Ward to the Bank of Beebe and said Rucker amounted to the sum of $6,486.59, and that the total collections made by the bank and Rucker thereon, including all payments made by Smith and others for him, amounted in the aggregate to $4,072.83, and' he entered a decree for the balance in favor of the Bank of Beebe and said Rucker. From that decree said J. R. Smith appealed to this court, and said decree was by'this court affirmed on December 21, 1908.
On August 27, 1909, this application or petition was filed in said chancery court for leave to file a bill of review of said decree, upon account of new facts discovered since the entering of said decree. The new matter thus set up consisted of certain collections and payments which it was alleged were made, to the Bank of Beebe and said Rucker, and which had never been credited on the indebtedness due to the bank by said partnership, and which had never been presented upon the trial of the case. It was alleged that said Smith had in 1905 delivered to said Rucker thirty-one bales of cotton to be applied upon said indebtedness, which had not been done; that Rucker had assured Smith that credit therefor had been given, and that on account of his confidence in Rucker he had accepted his word that it had been done, but since the rendition of the decree he had learned that this had not been done. On this account it was alleged that no testimony had been introduced relative to the payment of said cotton 011 said indebtedness upon the trial of the cause. It was also alleged that Smith had in 1905 made two deposits in the Bank of Beebe of $200 each, which were to be applied in payment upon said indebtedness, but which had not been done. That at the time of making the deposits he had received written acknowledgments thereof, or deposit slips, which he had turned over to his attorney, and that the)>- had been lost by the attorney, and on the trial of the case had been forgotten. The other items set out are smaller in amounts, and like allegations are made relative to the payment thereof and the reason why testimony was not adduced relative thereto in the trial of the case.
A bill of review is a bill or complaint seeking, after the lapse of the term, to reverse or modify a decree that has been made and entered in the case. In order to file a bill of review, leave must be obtained from the chancellor in whose court the decree has been rendered. Such bill may -be based upon error in law which is apparent on the face of the decree, or on account of new facts discovered since the decree was entered. If it is based upon newly discovered evidence, it rests within the sound discretion of the chancellor to grant or refuse leave to file the bill of review; but this discretion is subject to re view upon appeal, if it has been abused. Jacks v. Adair, 33 Ark. 161; Webster v. Diamond, 36 Ark. 532; 3 Ency. Pleading & Prac., 588.
It is the policy of the law that a decree, once solemnly entered, should not be set aside or modified except for cogent reasons. The issues that are presented in a suit should be fully developed by the testimony, and it is presumed, when a cause is finally submitted for determination and decree, that tne parties have adduced all evidence of which they had knowledge or which they could have known by the exercise of due diligence. Therefore it has been uniformly held that the new matter for which a bill of review will lie must be such as was not known to the petitioner or his attorney in time to be used in the suit, or could not have been known by the exercise of reasonable diligence. White v. Holman, 32 Ark. 757; Woodall v. Moore, 55 Ark. 22; Dumont v. Des Moines Valley Rd. Co., 131 U. S. Appendix clx.
In the case of Bartlett v. Gregory, 60 Ark. 453, the rule is thus stated: “Where a bill of review is for newly discovered matter, the rule now is that the matter must be such as could not have been discovered by the use of reasonable diligence, for, if there be any laches or negligence in this respect, that destroys the title to the relief.”
A bill of review will not lie for evidence which was known ■in time to have been offered before the submission of the cause for determination or decree. It is the duty of the parties to present all such evidence; and if, through design or inadvertence, they do not introduce such evidence, .they will not be permitted to wait the determination of the issue and then seek to again try the issue upon evidence which they have designedly or negligently omitted to introduce. Greer v. Turner, 47 Ark. 17; State v. Hicks, 48 Ark. 515; Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203; 16 Cyc. 530.
The issues that were made by the pleadings in the case upon which the decree was rendered involved the indebtedness that was due by the firm- of Smith & Ward to the Bank of Beebe and Rucker, and also all payments that had been made thereon by Smith or by any one for him or said firm, and all collections that had been made upon the notes and accounts of the firm. These matters were extensively developed by the testimony adduced upon the trial of the case. J. R. Smith gave his testimony and deposed at length and in detail as to payments and collections for which he claimed credit. He was assisted in the preparation and trial of the case by able counsel. He was cognizant at the time he testified in the case of every item for which in this petition for a bill of review he now seeks credit. Before he gave his testimony in the case and before the cause was submitted to the chancellor for determination, he knew the very facts and matters which he now sets up in this petition. These matters can not therefore be said to be newly discovered since the rendition of the decree. Upon an examination of the record in the case upon which the decree was entered, we find that testimony was introduced upon the trial of the cause relative to a -great number of the matters and items which are set out in the petition as newly discovered, and we find that some of the items of payment now set out in the petition were not only considered by the chancellor, but that credit was given therefor in said decree. The chancellor in said decree made a finding that Smith & Ward were entitled to credits amounting in the aggregate to $4,072.83. This sum consisted of a great number of different items.
In the testimony .it appears that in some instances the different amounts of the credits are given, but the items thereof are not specifically named. It may be that these credits represent the 'items or a great many of the items of payment which are now set out in the petition for the bill of review. However this may be, it clearly appears that the matters which are now set out as newly discovered were known to petitioner, or by the exercise of reasonable diligence could have been discovered by him, before the rendition of the decree; that these matters were within the issues of the case, and could have been brought out by the use of any degree of diligence.
Under these circumstances we can not say that the chancellor abused his discretion in refusing leave to file a bill of review of said decree.
The decree is affirmed. | [
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McCulloch:, C. J.
This litigation draws in question the validity of two local improvement districts in the city of Wynne, Cross County, Arkansas.
One of them is a district formed for the purpose of reconstructing and extending the system of waterworks and electric lights previously constructed and maintained by another improvement district in the same city; and the other is a district formed for the purpose of constructing a sewer system in the specified territory.
Three suits were instituted, and afterwards consolidated and tried together.
During the year 1899, an improvement district, designated as “Water and Light Improvement District No. 1,” was organized in the incorporated town of Wynne, embracing a portion of the territory of said town. The cost of that improvement amounted, according to the showing made in this case, to “twenty per centum of the value of the real property in said district, as shown by the last county assessment,” which is the maximum cost permitted under the statute. Kirby’s Dig., § 5683. A portion of the cost of that improvement remains unpaid, and of the bonds issued to raise money for the payment of the cost of construction, the sum of $7,000 remains unpaid at this time. The water and light system so constructed has been maintained in the district up to the present time, but has become out of repair.
The territory of the town of Wynne was subsequently extended, and after the population of the town had greatly increased, it was converted into a city of the second class.
The first controversy arose concerning a proposal to extend the water and light service outside of the limits of the original district, and the first of these three suits was instituted by some of the owners of real property in the district to restrain the board of commissioners from so extending the service beyond the limits of the district.
A district was then organized, designated as “Water and Light Improvement District No. 2,” embracing the territory of district No. 1 and much other territory of the city of Wynne, the purpose of said organization being stated in the petitions and ordinances as follows:
“For the purpose of reconstructing the present waterworks constructed by Waterworks Improvement District No. 1, and digging a new well, building a new reservoir and extending the line of pipes so that the water supply in the district will be increased and extended and adequate fire protection afforded,” and “also to reconstruct and improve the present electric light plant installed by Water and Light Improvement District No. 1, so that the present plant shall be reconstructed, the current changed from direct to alternating current, and the line of wires extended, so that the property in the district will be supplied with adequate electric lighting facilities.”
After the organization of District No. 2 was completed and assessments had been levied, property owners in the old district instituted a second action to declare the organization invalid as being unauthorized by statute.
Another district was organized, designated as “Sewer District No. 1,” which embraced the same territory as that covered by Water and Light District No. 2, and was for the purpose of constructing a sewer system in the district.
After the organization of that district was complete and the assessments levied, a third suit was brought by owners of real property therein for the purpose of declaring the same invalid.
In the meantime, the city council had passed an ordinance undertaking to repeal the ordinance creating the sewer district.
In the new water and light district, and also in the sewer district, sales of bonds were negotiated, and in each of the suits an injunction was sought against the consummation of the sale of bonds. In each of those two suits the board of improvement of each district filed an answer and also a cross complaint, seeking to enforce the assessments levied for the two improvements. It should be added, also, that according to the allegations of the complaint, each of the improvements provided for in the organization of the two districts was estimated to cost 20 per centum of the value of the real property in the district, as shown by the last county assessment.
These are the suits that were consolidated and tried together below, and, for convenience, will be designated as suits No. 1, No. 2 and No. 3, respectively, numbering them in the order in which they are stated above.
Upon final hearing, the chancellor dismissed each of the complaints for want of equity, and the plaintiffs appealed.
Suit No. 1 appears to have become unimportant, and is not pressed for the reason that the relief sought therein is embraced within suit No. 2, involving the validity of Water and Light Improvement District No. 2. That case, therefore, passes out of consideration.
It is contended that the organization of District No. 2 is invalid for the reason that it is, in effect, an attempt to reconstruct and repair the old water and light plants of District No. 1, to extend the service thereof, and to extend the boundaries of the district; and that those sub jects are covered by statutes which have not been complied with.
Reliance is placed, in support of this contention, upon the act of May 28, 1907, authorizing the increase of the capacity of waterworks and lighting systems; Act No. 245, approved May 13, 1909, authorizing additional assessments in a district for the purpose of making repairs; and Act No. 246, approved May 13, 1909, authorizing the extension of territory of improvement districts. It is argued that those statutes are exclusive in their operation, and that there can be no increase or repair of a system or extension of territory of a district except in compliance with the terms thereof.
It is contended, also, in the same connection, that the reconstruction of the improvement is part of the same project as the old improvement, and that the statute would be violated if the additional improvement should be undertaken to cost more than 20 per centum of the value of the real property in the district. In other words, the contention is, as we understand it, that the original construction and the proposed reconstruction and extension of the old plant must be treated as a single improvement and that the whole cost must not exceed 20 per centum of the value of the real property in the district.
We are of the opinion, however, that the formation of a new district is a new and independent project which constitutes of itself a single improvement, and that it does not fall within the statutes mentioned above, and is not restricted by the 20 per centum limitation upon the cost of the original improvement. If the district was legally formed, and has the right to proceed with the reconstruction of the old plant, it may be treated as a new and independent project, constituting a single improvement undertaken by the new district, and the only limitation imposed by the statute, so far as the cost thereof is concerned, is that the additional improvement, or, rather, the proposed reconstruction and extension, shall not cost more than 20 per centum of the value of the real estate embraced in the whole of the new district.
The fact that part of the territory embraced in the new district is already covered, and the property therein assessed for the construction of the old water and light plants, affords no reason why it can not be embraced in a new district covering a broader territory if additional benefits accrue to the property in the old district. That was decided in the case of Boles v. Kelley, 90 Ark. 29, and in the recent case of Lee Wilson & Co. v. Wm. R. Compton Bond & Mortgage Co., 103 Ark. 452, 585, 146 S. W. 110.
The inclusion in the new district of property embraced in the old one, if the new improvement is of such a character that additional benefits may accrue to the property in the old district, relates only to the assessment of the benefits, and that is a question which arises in making the assessments. To illustrate: The benefits accruing to the property .in the old district from the improvement constructed therein should be considered in determining the benefits to accrue from the new improvement. But, as before stated, that is a question which does not affect the validity of the organization of the new district, but is considered only in the assessment of benefits, and each of the property owners is afforded, under the statute, an opportunity to challenge the correctness of assessments levied oil his property. The remedies were pointed out by this court in the case of Kirst v. Improvement District, 86 Ark. 14.
The most serious question presented in this case is, whether a new district can be formed for the purpose of reconstructing or extending an improvement, such as the water or light plant, constructed, owned and operated by another district.
■ This necessarily involves the taking over of the old' improvement;by the new district, or, at least, a merger of the old district into the new, so far as the ownership of the improvement is concerned. If any authority can be found in the statute for the cession of the property by the old district to the new, or the taking over of the ■old property by tbe new district, then we see no reason why, if it constitutes a benefit to the old district to reconstruct, repair and extend it, it can not be done as a new and single improvement to be paid for by assessments on all tbe property in tbe new district. But we are unable to find any authority in tbe statute for sucb a proceeding as the cession of tbe property of tbe old district to tbe new. Tbe city council bas no authority to cede the property or to transfer tbe title from tbe old district to tbe new. Neither have tbe property owners of tbe old district that power, either individually or collectively. There is an entire absence of legislation on that subject. We have a statute (Kirby’s Digest, § 5689) which provides that, if, in tbe construction of any improvement, an owner of property in tbe district “shall be found to have improved bis own property in sucb manner that bis improvement may be profitably made a part of tbe general improvement of tbe bind in tbe district, tbe value of such improvement made by tbe owner shall be appraised, and be shall be allowed its value as a set-off against the assessment against bis property.” Tbe principle declared in that statute, if it could be applied to property owned by an improvement district, would cover the difficulty we find in tbe present case; but, unfortunate^, that statute relates only to private ownership of property, or, rather, improvement by tbe individual owner of bis own prop-, erty, and can not be made to extend the right so as to give tbe owners of property credit for an impiwement made by tbe district, when it is merged into a new district. That very principle is the one which controls in tbe manner of assessing property in a new district where tbe property of an old district bas received benefits from another improvement, but it is not applicable so as to allow tbe old improvement to be taken over by tbe new district and credited upon the assessments of individual owners in tbe old district. Further legislation is required to do that, and to authorize tbe cession of tbe old improvement to tbe new district. It is within tbe province of tbe Legislature to provide for sucb merger or cession as is herein indicated upon such just and equitable terms as may be deemed appropriate; but the courts can not read any such authority into the statutes. Improvement districts are, in a sense, governmental agencies, and, at the same time, agents of the .property owners, with limited authority, and the only powers they have are those conferred either in express terms or by necessary implication.
Now, it will he observed that the new district was organized solely for the purpose of taking over and reconstructing and extending the water and light systems owned by the old district, and, since we find no authority for taking over the old property, the project must fail because the organization is to do a thing which the statute does not authorize. If the new organization should proceed with the reconstruction and extension of the old water and light systems, there would necessarily arise a conflict in the question of ownership and control between the two districts, the old district not being extinguished nor its rights to the property lost bv the organization of the new district.
Appellants are property owners and taxpayers in the old district, and have the right to object to any unauthorized change in the property or buildings of the district. They are, in this proceeding, asserting their right to prevent any such unauthorized changes.
We are, therefore, of the opinion that the object of the new organization fails for want of authority to acquire the water and light plants constructed by the old district, and that the whole proceeding must be declared invalid.
Now, as to suit No. 3, relating to the sewer improvement district, we discover no reason why that district should be invalidated and further proceedings thereunder enjoined.
The only ground urged is that it covers territory not now covered by the old water system, and that sewers without water would be no benefit.
The theory is correct, but it does not follow that the owners may not provide for sewers in anticipation of getting a supply of water, and the fact that the present scheme for supplying water in the additional territory failed, affords no reason why the property owners, if they desire to improve their property by constructing sewers, should not be allowed to proceed in that direction. Other means may be provided, either by the city or by the formation of an independent and separate improvement district, to furnish water in that locality, and in anticipation of that property owners have the right to organize a district to construct sewers. The city council had no authority to abolish this sewer district. Morrilton Waterworks v. Earl, 71 Ark. 4.
It follows that the decree of the chancellor is correct in suit No. 3, relating to the seAver district, and that decree is affirmed; but the decree in suit No. 2, relating to the organization of Water and Light Improvement District No. 2, and the enforcement of assessments thereunder, is reversed, and the cause remanded with directions to enter a decree in accordance Avith the prayer of the complaint.
It is so ordered. | [
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Kirby, J.
The appellant brings this appeal from a judgment of conviction, under an indictment, charging him with burglary and grand larceny, by entering the store of A. Hirsch & Co. and stealing a suit of clothes of the value of twenty dollars, it being alleged that said company was the owner of both the storehouse and the suit of clothes, and was a partnership, composed of Ludwig Hirsch and Mrs. Gertie Groneau. The testimony does not disclose whether A. Hirsch & Co. was a partnership, nor whether it was composed of the persons as alleged.
It appears from the evidence that the storehouse occupied by A. Hirsch & Co. was broken into in the night time and a suit of clothes of the kind described in the indictment taken therefrom.
Wash Bell testified that he was a partner in the restaurant business with appellant and that in August, 1911, he (appellant) brought this suit of clothes 'to the place of business and let Will Mayberry have it; and after-wards told him that he got it from Hirsch & Go. in the night. Appellant denied having made any such statements and also that he ever had in his possession this suit of clothes or sold the same to Will Mayberry, and claimed it was sold by Wash Bell. Mayberry, who had the suit of clothes in his possession, told the officer he got it from Bell.
There is much other testimony tending also to show that Bell did dispose of the suit of clothes to Mayberry.
It is contended for reversal that the evidence is not sufficient to support the verdict, and that there is a fatal variance between the allegations of the indictment and the proof in the case.
It is true that there is no evidence, showing that the firm of A. Hirsch & Co. was composed of the individuals as named in the indictment, and the proof is slight that said company was a partnership.
One witness stated that the suit of clothes belonged to A. Hirsch & Co., and that that firm was the only one in town handling goods of that kind, and that he was in charge of the clothing department and would have known if the sale of it had been made. . That although he was not always consulted before a sale was made, he generally was, unless it was made by the members of the firm, and that they very seldom sold anything. From this testimony the jury could have inferred that A. Hirsch & Co. was a partnership, and the proof is sufficient on that point.
While at the common law, it was necessary in cases of larceny to allege the ownership in the partnership name, and the names of the individuals composing it, our court has held under the provisions of section 2233 Kirby’s Digest that an indictment is sufficient in stating the partnership name in charging the ownership of the property stolen in larceny and that it is a sufficient indentification of the property stolen by stating the partnership name and that an erroneous allegation as to the names of the partners is immaterial and that proof of the correct names of the partners was no variance from the erroneous allegations of the indictment. Andrews v. State, 100 Ark. 184.
The court, having already held that it is not a variance from the allegations of the indictment to prove the names of the partners, other than as alleged, is of the opinion that the failure to prove the names of the individuals at all as alleged is not a fatal variance.
My individual opinion is that the name of the injured person was described with sufficient certainty by the allegation of the partnership name, within the meaning of the said section of the digest and our decisions thereunder, without any statement that it was either a partnership or a corporation, and that any former contrary holding of the court should be disregarded.
The confession of the appellant, as testified to by Wash Bell, is about all the testimony tending to connect him with the crime, but, when believed, it warranted the conviction, the other. testimony in the case being sufficient to show the commission of the crime by some one. Greenwood v. State, 107 Ark. 568; Turner v. State, 109 Ark. 332; Burrow v. State, 109 Ark. 365.
The testimony in the case, tending to show the guilt of appellant, is meager and not very satisfactory, but is direct and positive on the part of one witness, whom the testimony tended strongly to discredit, but the jury believed him and we can not say the evidence is not sufficient to support the verdict.
The judgment is affirmed. | [
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Wood, J.
Appellant was convicted in the Miller Circuit Court on an indictment charging her with the crime of an assault with intent to kill one Ethel Butler. The indictment alleged that the assault was made by striking and cutting with a hatchet. The testimony for the State tended to show that Ethel Butler was on her way home, had passed appellant’s house, and was walking along talking to one of the neighbors; that appellant came upon the prosecuting witness when the latter was not looking, and cut her with a hatchet three times in the head and once on the shoulder; that she continued to cut Ethel Butler after' she was down and unconscious; that the prosecuting witness had said nothing' to appellant, nor appellant to her; that she had no previous quarrel with appellant, and had not threatened her. In other words, the testimony on behalf of the State tended to sustain an assault with intent to kill as laid in the indictment.
On the other hand, the testimony for the appellant tended to show that Ethel Butler, on the day before the rencounter, had shoved appellant off of the sidewalk and had made some insulting remarks to her; that on the day of the rencounter Ethel Butler was seen going in the direction of appellant’s house, and was heard to say that she was going to appellant’s, and that appellant had to take back something or she (Ethel) would whip her; that Ethel Butler did go to where appellant lived, and stopped just off the sidewalk at appellant’s gate; that the prosecuting witness called appellant, telling her to come out; that appellant was at her well in the yard, drawing water; that she went in her house, put up the water, came out and started out of her gate, when the prosecuting witness went toward her with a drawn knife, whereupon appellant drew the hatchet and struck the prosecuting witness three times with it.
Appellant testified that the prosecuting witness had been threatening all along to whip her; had shoved her off the sidewalk; that she would say things about appellant every time the latter went to market. When the prosecuting witness threatened to whip appellant, she was accompanied by Larcenia Hall. Appellant testified that she had nailed some planks on the porch, and that was the reason she had the hatchet out there; that she was going to have the prosecuting witness arrested, and so told the prosecuting witness; that she picked up the hatchet as she started out to the gate to protect herself in case the prosecuting witness attacked her; that when she got out of the gate and made a turn to go to the officer’s house, the prosecuting witness met appellant; the prosecuting witness had a long, big knife; she ran up and drew back to- cut appellant, when appellant struck her with the hatchet. Appellant testified that the reason she didn’t wait until the prosecuting witness left to go for an officer was, that she had waited so many times and had not gone, and she had taken insults until she was tired of it. She was afraid of the prosecuting witness. States that she was fighting to protect herself from the knife. They were facing each other. The prosecuting witness had been meddling with appellant so much ‘ ‘ she got tired of it, and was going to have her arrested.” The testimony of several witnesses tended to corroborate appellant.
Among other prayers for instructions, the appellant requested the following: 5. “If you find that defendant struck Ethel Butler, in the sudden heat of passion caused by a provocation apparently sufficient to make her passion irresistible, you can not find defendant guilty of assault with intent to kill or murder, because a killing under such circumstances would, amount to manslaughter only, and not murder.”
The court, in its charge, declared the law defining the necessary elements to constitute the crime of an assault with intent to kill, and also defining the law of self-defense. The court, in its charge, narrowed the inquiry of the jury to the question as to whether appellant was guilty of an assault with intent to Mil, or whether the alleged assault was in self-defense. There was no specific objection to the court’s charge given to the jury of its own motion, and, indeed, the charge as thus given, covering the phase of the evidence concerning an assault with intent to Mil and self-defense, was correct. Likewise, the instruction on the credibility of witnesses.
But the question of appellant’s guilt or innocence of the lower grades of assault included in the indictment was not submitted to the jury. The only issue under the instructions given by the court was whether or not appellant was guilty of an assault with intent to Mil, or whether the assault was in necessary self-defense.
We are of the opinion that the court should have given appellant’s prayer No. 5, which would have al lowed the jury to consider the lower grades of offense included in the indictment, and would have allowed the jury to convict her of a lower grade of offense if they found that appellant made the assault with a deadly weapon, but under circumstances which would have made her offense manslaughter only had death resulted.
The testimony on behalf of the appellee was sufficient to call for such an instruction. This testimony was sufficient to warrant them in returning a' verdict convicting appellant of a lower grade of offense than that of assault with intent to kill. Had the court given the instruction and the jury been allowed to consider the question of the lower grades of offense included in the indictment, their verdict might have been for a lower offense, instead of the higher crime.
Where there is evidence tending to show that the defendant was guilty of a lower grade of crime, the appellant, upon request therefor, is entitled to have that issue submitted to the jury. See Collins v. State, 102 Ark. 180.
The verdict of guilty shows that the jury did not accept appellant’s evidence tending to show that the assault was in self-defense. It is therefore unnecessary to remand the cause to have that issue again submitted.
The error of the court in refusing appellant’s prayer allowing the jury to consider the lower grades of the' offense included in the indictment will be cured if a judgment is entered against appellant convicting her of the lowest grade of offense which the jury could have found under the evidence.
For the error refusing to give appellant’s prayer No. 5, the judgment will be reversed and the cause remanded for a new trial unless the Attorney General elects, within fifteen days, to have judgment entered convicting appellant of an assault and battery, the lowest offense for which she could have been convicted under the indictment. | [
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McCulloch, C. J.
Appellants were tried before a justice of the peace of Union County, and convicted on a charge of violating the peddling statute of 1909, which provides that “before any person, either as owner, manufacturer or agent, shall travel over and through any county and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage or other vehicle, or either of said articles, he shall procure a license,” etc. Acts 1909, p. 292. On appeal to the circuit court they were again convicted, and appealed to this court. The case was heard on the following agreed statement of facts:
“The Wrought Iron Range Company is a corporation organized under the laws of Missouri, with its general offices located at St. Louis, Mo., in which city and State it also has a factory, at which are manufactured the ranges sold by its traveling salesmen throughout Union and other counties of Arkansas and other States of the United States. '
“The manner and form in which said company is conducting its business in Union and other counties of Arkansas is as follows: R. L. Sutton, an employee of the Wrought Iron Range Company, and known as a division superintendent, has general supervision of said company’s business in Union and other counties of Arkansas. Under the immediate supervision and direction of said Sutton are other employees of said company known in the business as sample men or salesmen, and two other employees of said company known in its business as deliverymen. All of said employees are paid for their services stipulated compensations by .said company, and none of said employees has any financial or monetary interest in the property of said company located, in Union County, or in the sales or proceeds of sales made by them in said county or elsewhere in the State of Arkansas, other than compensation hereinbefore referred to. Each of said employees of said company, known as salesmen, is furnished by said company with a sample range, sample wagon and team, and is sent into such territory in Union or other counties as may be designated by said Sutton, to solicit orders for ranges similar to the sample range exhibited to prospective purchasers. Where orders for ranges are taken by said salesmen, the purchaser signs a note or order, one-half payable in October, 1910, and the other half payable in October, 1911. Said note or order contains an express stipulation that same shall be void as against the purchaser in the event said company fails to deliver the range so ordered within sixty days from date.
“All orders so taken by said salesmen are forwarded by them to the said Sutton, who investigates the credit of said purchasers, and, if same is found satisfactory, he proceeds to have said orders filled within sixty days’ limit. Such deliveries of the ranges so sold or ordered are made through or by the employees of said company hereinbefore referred to as deliverymen, each one of whom is furnished with a delivery wagon and team by said company for such purpose.
“All the sample ranges, all ranges delivered to said purchasers, all the sample wagons and teams, and all the delivery wagons and teams hereinbefore referred to, are the sole and exclusive property of said company. Under no circumstances do the employees hereinbefore referred to as salesmen, sell, or offer to sell or deliver, the sample ranges entrusted to them by said company. Under no circumstances does any one of'said salesmen deliver to purchasers the ranges, orders for which have-been • taken either by himself or any other of said salesmen. Under no circumstances do any of said deliverymen sell, or offer to sell, or take orders for ranges, or to deliver any ranges other than those for which orders have previously been taken by the employees hereinbefore referred to as salesmen. All ranges so-owned and manufactured are shipped in carload lots to Union. County, each car containing sixty separate and distinct ranges, each car being consigned by said company to itself, in care.of R. L. Sutton, its employee.
“A carload of ranges was shipped from St. Louis, Mo.,, to El Dorado, Ark., for the purpose of filling orders previously secured by said soliciting agents or traveling salesmen. Upon the arrival of said car at El Dorado the ranges were taken from said car, loaded on said delivery wagons and delivered by said deliverymen to said purchasers in the precise shape,, condition, form and packages in which they were delivered by said company to the common carrier at St. Louis, Mo. * * *
“It is further agreed by and between the State of Arkansas,, through its prosecuting attorney, and the defendants herein, that E. L. Ganaway and W. W. Dennis are salesmen of the Wrought Iron Range Company, and -have in Union County, Arkansas,, within the last twelve months, exhibited sample ranges, and solicited and taken orders for them, and have taken notes for the same, doing all of said business in the manner hereinbefore stated. That A. C. Crenshaw and P. L. Hadler are acting as-deliverymen in the employ of said Wrought Iron Range Company, and have in the manner hereinbefore set- forth delivered ranges to -parties in Union County, Arkansas, who had previously given orders to the said above-named salesmen within, twelve months before that time.
“That all of said persons above-named are hired employees-of the said Wrought Iron Range Company, and have been arrested, and that neither of said parties nor the Wrought Iron Range Company have paid any license in Union County, Arkansas.”
We decided in Ex parte Byles, 93 Ark. 612, that the statute in question is valid, but it is now insisted that, as applied to. the transactions set forth in the statement, it is a burden on interstate commerce, and to that extent void. Appellant Ganaway solicited orders for ranges, and appellant Crenshaw made deliveries thereof after they were ordered and shipped to El Dorado, Ark., for delivery to the respective purchasers. They were working under the same employer, and pursuant to •a plan whereby one was to solicit orders and the other to deliver the articles sold. So, if the two acts constituted an offense when performed by one person, its unlawful character would not be changed when performed by two persons, acting m concert, but both would be guilty.
The statute is directed against peddling, and undertakes to define what constitutes peddling within the meaning of the statute. This definition varies from the common-law definition of peddling, in that it is not essential that the vendor deliver ■his wares at the time he makes sales thereof in order to come within its terms. In the statutory definition the words “peddle” and “sell” are used synonymously, but in order to come within the terms of the statute it is essential that a sale must be by one traveling over and through the county. The statute does not reach to mere sales. In other words, one who simply brings his wares into a county and sells them does not fall within the statute. There must be. added the element of traveling from place to place, over and through the county, for the purpose of selling, in order for the statute to reach to it. It should also be especially noted that the statute does not discriminate against nonresidents of the State or of' any county, nor against the wares manufactured without the State. It applies to all alike which fall within the description.
Does the method in which appellants conducted business for their employer exempt them from the operation of the statute? We think not.
The opinion of the Supreme Court of the United States, delivered by Mr. Justice Gray in Emert v. Missouri, 156 U. S. 296, announces the law applicable to the case and sustains the views we express. In that case the agent of a nonresident manufacturer of sewing machines was engaged in peddling machines in Missouri without obtaining a license, as required by the statutes of that State. He asserted his right to sell free of license, on the ground that the transaction constituted inter state commerce. All of the prior decisions of that court are reviewed/ and the following conclusions announced:
“The statute in question is not part of a revenue law. It makes no discrimination between residents or products of Missouri and those of other States, and manifests no intention to interfere in any way with interstate commerce. Its object, in requiring peddlers to take out and pay for licenses, and to exhibit their licenses, on demand, to any peace officer, or to any citizen householder of the county, appears to have been to protect the citizens of the State against the cheats and frauds, and even thefts, which, as the experience of ages has shown, are likely to attend itinerant and irresponsible peddling from place to place and from door to door. * * * The necessary conclusion, upon authority, as well as upon principle, is that the statute of Missouri, now in question, is nowise repugnant to the power of Congress to regulate commerce among- the several States, but is a valid exercise of the power of the State over persons and business within its borders.”
It is true, in that case the vendor carried the machines with him from place to place, and made deliveries as he sold them. But we can not see that that alters the principle, for the Legislature has the power to define the act of peddling, and that definition should be upheld by the courts unless it is manifestly evasive.
The other decisions of the Supreme Court of the United States which are relied on by counsel do not conflict with the case above cited. Robbins v. Shelby County Taxing District, 120 U. S. 489, and the line of similar cases in that court, concerned statutes and ordinances imposing license fees on drummers who solicited orders for nonresident merchants, and such legislation was declared to be a burden on interstate commerce. Here, no such burden is imposed, for the license is not demanded merely for soliciting orders, but for peddling.
Leisy v. Hardin, 135 U. S. 100, arose under a statute of Iowa prohibiting the sale of intoxicating liquors without license. That was before the passage of the act of Congress known as the Wilson Act, and the court held that the imposition of a license fee on the sale of liquor was a burden on interstate commerce insofar as it applied to imported goods sold in original packages. The present statute, as we have already stated, does not require a license merely to sell, but the license is required to peddle or sell by traveling from place to place over and through the county.
Caldwell v. North Carolina, 187 U. S. 622, is along the same line, for the ordinance found to be repugnant to the Federal Constitution prohibited the sale and deliver)'- of certain wares (pictures and picture frames) in any manner without procuring license.
In Rearick v. Pennsylvania, 203 U. S. 507, the vendors - agent solicited orders for wares to be shipped into the State from Ohio, and the same were by the vendor in that State appropriated to the fulfillment of the contract of sale, and properly tagged and shipped into the State for delivery to the purchaser. In the present case the ranges were not separately appropriated to the filling of any particular order. The ranges were not separated and tagged with the name of any purchaser, but the appropriation was made by the agent of the vendor after the goods came into the State. Moreover, the court in that case seems to have treated the condemned ordinance as merely requiring a license for the sale of goods, and not as one requiring license for peddling, though the ordinance could be construed as applying only to peddlers or street vendors.
We discover no conflict between that decision and the decision in Emert v. Missouri, supra, which we think announces the law of the present case.
Both appellants were properly convicted, and the judgments against them are affirmed. | [
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McCulloch, C. J.
Appellee instituted this action in the chancery court of Woodruff County in September, 1907, against appellant to quiet his title to a tract of land containing forty acres in that county, and to cancel, as a cloud on his title, a deed to appellant by the Commissioner of State Lands as swamp and overflowed land. The facts are undisputed. The land in controversy was swamp and overflowed land, within the meaning of the act of Congress of September 28, 1850, granting such lands to the State of Arkansas, and was duly selected as such prior to March 3, 1857, the date of the act of Congress confirming to the State the swamp and overflowed lands which had then been selected but not approved.
In 1870 the land was selected by the Memphis & Little Rock Railroad Company as land inuring to it under the act of Congress of 1853 granting lands to the State for railroad purposes; but the selection was rejected by a decision of the 'Commissioner of the General Land Office of the United States, dated July 16, 1891. On January 16, 1902,.said tract was certified to the Land Commissioner of the' State by the Commissioner of the General Land Office as swamp and overflowed lands, and was subsequently patented to the State as such. The State Land Commissioner, by deed duly executed September 28, 1904, conveyed this tract to appellant.
The land was declared forfeited to the State under an overdue tax decree in 1882, and in 1894 appellee’s grantor, one Runnells, obtained a donation certificate therefor as State lands which had been forfeited to the State for non-payment of taxes. On —-•, 1897, having produced proof of improvements and occupancy, the State Land Commissioner executed to him the State’s donation deed,, conveying the State’s interest in the land as forfeited land. Runnells occupied the land continuously up to the date of his conveyance to appellee, June 4, 1904, and the ■latter occupied it by tenant up to the commencement of the present action. The land was not subject to taxation before the title passed from the United States to the State of Arkansas and from the State as swamp land; and therefore the tax sale was void. Only lands forfeited to the State for non-payment of taxes are subject to donation under proof of improvements and occupancy (Kirby’s Digest, § § 4809 et seq.), and the State Land Commissioner had no authority to convey in this manner swamp lands which were still owned by the State. The donation deed to appellee’s grantor only purported to convey the State’s interest in the land as land which had been forfeited for taxes. This deed was void, and conveyed no title. St. Louis Ref. & Wooden Gutter Co. v. Langley, 66 Ark. 48.
The learned chancellor decided, on what he conceived to be the authority of Chism v. Price, 54 Ark. 251, that the land was unconfirmed swamp land, held by appellee’s grantor as an actual settler, who had, under the statute, a preference right to purchase from the State'; that appellant’s title was obtained in fraud of such preference right, and that the latter should be ■held as a trustee. A decree was therefore rendered in appellee’s favor, quieting his title on repayment to appellant of the purchase money with interest which 'the latter had paid to the State for his patent.
The act of March 18, 1879, provides that “pre-emptors and settlers on the unconfirmed swamp lands of the State * * * shall have a preference right to purchase such lands by making satisfactory proof to the Commissioner of State Lands of their rights as such pre-emptors and settlers,” and that' “any person not a pre-emptor or settler who shall apply to purchase any of such lands shall make and file with the Commissisoner of State Lands an affidavit stating that the land applied for has no improvement on it and that no person is residing upon it or claims it by virtue of any pre-emption certificate issued by authority of law.” In Chism v. Price, supra, this court held that the statute above referred to applies only to unconfirmed swamp lands, and that the term “unconfirmed swamp lands,” as used in the statute,, meant those lands the selected lists of which had been transmitted to the General Land Office and returned to the Governor as approved, and did not mean those lands the selection of which was confirmed by the act of Congress of 1857 but not returned to the Governor as approved. In that case the lands were still unconfirmed when the patent to the purchaser was issued by the State Land Commissioner. In the present case the land was unconfirmed when settled on and improved by appellee’s grantor, but it had been confirmed and patented to the State when purchased by appellant. It was then no longer unconfirmed swamp land, and did not come within the provisions of the act of March 18, 1879, giving a preference right of purchase to the actual settler and requiring any other person applying for purchase to file an affidavit with the Commissioner stating that the land had no improvement thereon, and that no person was residing thereon. The actual settler had then lost his preference right to purchase, and the land was open to purchase hy any person who applied. The act of March 18, 1879, was the first act to authorize the sale of swamp land before confirmation, though the prior statute of December 14, 1875, confirmed sales theretofore made of unconfirmed swamp lands. The Swamp Land Act of January 12, 1833, required the land agents of the several districts (now the State Land Commissioner) to give notice by publication of the sale of confirmed swamp lands. Subsequent statutes, enacted in 1854, 1857 and 1873, required such land agents to give notive by publication of additional confirmations, notifying pre-emptors of their rights and requiring all persons claiming the right of pre-emption on any of such lands to come forward and prove their pre-emption before the day of sale; also stating that all lands so confirmed by the State which should not be purchased under pre-emption or preference right within sixty days from the date of notice would be sold at public sale to the highest bidder.
The act of January 12, 1853, ■ granted the right of preemption to any settler of swamp land, and provided that to obtain it the settler should, within thirty days after settlement, make a declaration in writing setting forth the fact that he claimed said land as a pre-emption right, etc. The act further provided that, if a settler failed to make such entry before the day set apart for making the sale, then the right should be lost, and the land sold to the highest bidder.
By the act of January 16,' 1855, the right of pre-emption was given to any citizen who had an improvement on any swamp land, and who should, within sixty days after the land had been advertised by the land agent, file his declaration in writing setting forth the fact that he claimed said tract of land as a pre-emption right.
It is seen from these statutes that the preference right of settlers on confirmed lands ceased unless asserted within the time and manner prescribed by the statute after the publication of notice by the several land agents, or the Commissioner of State Lands after the -creation of’that office. After the preference right of a settler ceased, any applicant could purchase the land. As already stated, the act of March 18, 1879, applied only to unconfirmed lands, and it was not the design oi that statute to extend the preference right of a settler be yond the period after confirmation provided by the prior ’statute. In other words, a settler on unconfirmed swamp land had a preference right to purchase, of which he could avail himself at any time before confirmation and within sixty days after publication of notice by the land agent or State Land Commissioner. After that time the land was open to purchase by any person applying therefor, and the settler lost his improvement by his failure to.assert his right within the period prescribed by statute. The purchaser thereafter from the State was* not required to file the affidavit required by the act of March 18, 1879, and could not be treated as a trustee for the settler.
We are therefore of the opinion that the chancellor erred in holding that appellee was entitled to the land on repayment to appellant of the purchase price.
It is also contended on behalf of appellee that he acquired title to the land by adverse possession under his donation deed for a period of two years after appellant’s purchase from the State. It is conceded that the statute of limitation did not commence running before the purchase. Such a contention could not be sustained, for statutes of limitation do not run against the State so as to divest it of its title. The seven-year statute of limitation (Kirby’s Digest, § 5056) was set in motion by the conveyance to appellant from the State; but not SO' with the two-year statute (Kirby’s Digest, § 5061), for the ‘title had not passed from the- State, and it was not subject to taxation. The purchaser was not chargeable with notice of the void deed which antedated his purchase from the State, and for this reason the two-year statute did not run. We have held that adverse possession for two years under a tax deed or donation deed based on a void tax sale bars a recovery by the owner (Ross v. Royal, 77 Ark. 324); but that rule does not apply to a void deed executed before the title passed out of the State. The deed was not color of title while title was in the State, and did not become such when title passed to the State’s vendee, who, by his purchase, took title free -of all cloud. For the same reason appellee is not entitled to compensation under the betterment statute for improvements made prior to appellant’s purchase from the State. Floyd v. Ricks, 14 Ark. 286.
Reversed and remanded with directions to enter a decree in accordance with this opinion. | [
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McCulloch, C. J.
Appellant instituted this action against appellee railway company to recover statutory penalties for alleged discrimination in switching charges on carloads of rock transported from a rock quarry near the cities of Little Rock and Argenta. He bases his suit on sections of the act of March 24, 1887 (Kirby’s Digest, § § 6722, 6725), which declare that all individuals, associations and corporations shall enjoy equal rights to have property transported over railroads, and that unjust or undue discrimination in charges or in furnishing facilities for transportation shall be unlawful. The statute also provides that a penalty of not less than $50 nor more than $1,000 shall be adjudged against any railroad violating its terms, the same to be recovered in a civil action by the party aggrieved. Section 6733.
It is insisted on behalf of appellee that the statute above referred to was repealed by the act of March 11, 1899, creating the railroad commission and defining its powers and duties, which also prohibited discrimination by carriers in charges or in furnishing shipping facilities, and which prescribed a penalty of not less than $500 nor more than $3,000 for each violation, the same to be recovered in an action brought by the State. Kirby’s Dig., § § 6804, 6813. It also authorizes a recovery of double damages by the party injured. Section 30 of the act reads as follows: “That the remedies hereby given shall be regarded as cumulative, and this act shall not be construed as repealing any statute giving such remedies.” Kirbv’s Dig., § 6826.
In a recent case we held that the act of March 11, 1899, did not repeal the act of 1887, which fixed the maximum rate-of charges for the transportation of passengers by railroads (Chicago, R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600); and of section 30 of the act of 1899 we said: “If the substantive rights prescribed by the act of 1887 are not repealed by the later statute, the remedy is not abolished, for -the later statute expressly preserves all such remedies, and.declares those in the new act to be cumulative.” Both of the statutes in question, with respect to unjust discrimination in charges of furnishing transportation facilities, are but declaratory of the common law on the subject. 4 Elliott on Railroads, § 1467; 2 Hutchinson on Carriers, 512. They confer no new right, but each provides a new remedy for the wrong done, and, as we said in the McElroy case, supra, the later statute expressfy preserves all the remedies conferred by the former statute. In. the McElroy case it became necessary to determine whether or not the maximum rate of passenger fare prescribed by the act of 1887 was repealed by the later statute giving the railroad commission power to fix passenger rates, for, if it was repealed, then the remedy necessarily fell with the right, notwithstanding the provision of the latter act preserving other remedies. The substantive right conferred by the former statute was .that of having transportation furnished at not exceeding the maximum rate prescribed by that statute; and, if that right had been taken away by a repeal of the statute, the remedy would have fallen too, for there could not be a remedy without a right to enforce or a wrong to be redressed. That is axiomatic. But discrimination by a public carrier against a shipper is a wrong, independent of statute, and the act of 1887 declared the wrong and prescribed a remedy. The statute falls within that class which is remedial in its nature, though operating as a penalty on the wrongdoer. Nebraska Nat. Bank v. Walsh, 68 Ark. 433; Huntington v. Attrill, 146 U. S. 657; Lewis’s Sutherland, Stat. Con. 532; Casey v. St. Louis Transit Co. (Mo.), 91 S. W. 419.
The fact that the recovery allowed is not entirely compensatory does not take the statute out of- the remedial class. It was obviously the intention of the framers of the act of 1899 to preserve the remedy prescribed by the former statute, though it resulted in allowing a double recovery from a wrong-doer— one in favor of the aggrieved party and one in favor of the State. The two provisions are not repugnant to each other; and since the latter statute expressly preserves the remedies prescribed by the former, the question of implied repeal does not arise.
The third paragraph of the complaint for overcharge on freight is defective in failing to specify the dates, etc., of the overcharges, and also in failing to state what the separate charges were; -but it nevertheless stated a cause of action — defectively, it is true — but the defect should have been met by a motion to make the complaint more definite and certain. Murrell v. Henry, 70 Ark. 151; Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1.
Reversed and remanded with directions'to overrule the demurrer to the cpmplaint. | [
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Hart, J.,
(after stating the facts). -The constutionality of the above quoted statute is attacked by appellee. He contends that his license to practice medicine is a property right, the revocation of which is an exercise of judicial power, which can not be vested in any adminstrative board, 'but only in the courts; and that to assume to invest this power in the board is to deprive him of his property without due process of law in violation of sec. 8 of art. 2 of our Constitution.
• In discussing this question, the Supreme Court of the State of Minnesota, in a clear and well considered opinion delivered by Mr. Justice Mitchell, said: “The radical fallacy in this chain of argument is the assumption that the revocation of such a license is the exercise of judicial power. ‘Due process of law,’ or the law of the land” (which means the same thing) is not necessarily judicial proceedings. Private rights and the enjoyment of property may be interfered with by the legislative or executive as well as the judicial department of government. When it is declared that a person shall not be deprived of his property without ‘due process of law,’ it means such an exercise of the powers of government as the settled maxims of law permit and sanction, under such safeguards as these maxims prescribe for the class of cases to which the one in question belongs. * * *
“It has never been held that the granting or refusing to grant ■such a license as this was the exercise of judicial power; * * * and there is no possible distinction in this respect between refusing to grant a license and revoking one already granted. Both acts are an exercise of the police power. The power exercised and the object of its exercise are in each case identical, viz., to exclude an incompetent or unworthy person from this employment. Therefore the same body which may be vested with the power to grant, or refuse to grant, a license may also be vested with the power to revoke. The statutes of all the States are full of enactments giving the power to revoke licenses of dealers, innkeepers, hackmen, draymen, pawn brokers, auctioneers, pilots, engineers, and the like, to the same bodies, boards, or officers who are aitthorized to issue them, such as city councils, county commissioners, selectmen, boards of health, boards of excise, etc. The constitutionality of such laws, as a valid exercise of the police power, has often -been sustained, and indeed rarely questioned.
“The only authorities cited by relator to support his contention are cases in which it has been held that the removal of an attorney by a court from his office as an attorney of the court, like the order of his admission, is the exercise of judicial power, and is a judgment of the court. But these cases are not at all analogous to the one at bar. They rest expressly upon the ground that attorneys are officers of the court, whose duties relate almost exclusively to proceedings of a judicial nature, and at common law it vested exclusively with a court to determine who is qualified to become one of its officers, and for what cause he ought to be removed, and hence that attorneys could only be removed from office for misconduct ascertained and declared by judgment of the court. Ex parte Garland, 4 Wall. 333.” State v. State Board of Medical Examiners, 34 Minn. 387. This is a leading case on the subject, and has been cited with approval by nearly all the courts where the question has been under consideration. In the case of Meffert v. State Board of Medical Registration and Examination, 66 Kan. 710, which was affirmed by the United States Supreme Court without, discussion (195 U. S. 625), all the authorities bearing on the question were reviewed, and the quotation we have made from the Chapman case was discussed and approved in its entirety. The Meffert case is also reported in 1 L. R. A. (N. S.) 811, and contains an excellent case note. To the same effect see Dent v. West Va., 129 U. S. 114; Hawker v. New York, 170 U. S. 189; State v. Schmidt, 119 N. W. (Wis.) 647; State v. Webster, 41 L. R. A. (Ind.) 212, and cases cited.
Our own court, in a carefully prepared opinion by Mr. Justice Riddick, has held: (quoting from syllabus) “Acts 1903, p. 342, forbidding physicians and surgeons engaged in the practice of medicine to solicit patients 'by paid agents, is a valid exercise of the State’s police power in regulating the practice of medicine and surgery.” Thompson v. Van Lear, 77 Ark. 506.
As stated in the case of Commonwealth v. Porn (196 Mass. 326), 13 A. & E. Ann. Cases, 569, “the maintenance of a high standard of professional qualifications for physicians is of vital concern to the public health, and reasonable regulations to this end do not contravene any provision of the State or Federal Constitution.
It is also contended that subdivision (d) of the section of the statute in question is too vague and indefinite to be upheld and enforced; and to our minds this is the most difficult question in the case to determine. It has given us the gravest concern, and, after due consideration, we have decided to uphold it.
Our attention has not been called to any case where a statute of similar import has become the subject of judicial determination.
Counsel for appellee rely upon cases where statutes authorizing the Board of Medical Examiners to revoke the certificate of a physician for making “grossly improbable statements” or for “unprofessional or dishonorable conduct” have been held void as being unreasonable, too uncertain and indefinite. Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 7 Am. & Eng. Ann. Cases, 750; Matthews v. Murphy, 63 S. W. 785, 23 Ky. L. Rep. 750; Czarra v. Board of Medical Supervisors, 25 Dist. of Columbia App. Cas. 443.
On the other hand, there are cases upholding statutes impowering boards to revoke the licenses of physicians who are guilty of unprofessional .and dishonorable conduct, and the licenses have been revoked or not, according to the proof made. State v. Board of Medical Examiners, 34 Minn. 391; Macomber v. State Board of Health, 28 R. I. 3. And the case note to Hewitt v. State Board of Medical Examiners, 7 A. & E. Ann. Cases, 750, indicates 'that the weight of authority is to this effect. But we need not decide that question; for we hold that the language of subdivision (d) in question is not too uncertain and indefinite to be upheld and enforced.
In the case of Thompson v. Van Lear, supra, this court held that an act forbidding physicians and surgeons to solicit patients by paid agents was a valid exercise of the police power. For like reason, a statute forbidding a physician to advertise for patients in newspapers would be upheld; and, by analogy, a statute forbidding them to advertise their ability to treat and cure certain named diseases would be a valid exercise of the police power.
While the particular disease against which the prohibition of the statute is directed is not named, as was the case of Kennedy v. State Board of Registration in Medicine, 145 Mich. 241, 9 A. & E. Ann. Cas. 125, yet the words “chronic and incurable,” when used with reference to diseases of the body, are ■not variable, but have a settled and generally accepted meaning. The word “chronic” is the antithesis of acute, and a “chronic and incurable” disease is generally understood to be one of long standing, deep-rooted, obstinate, persistent and unyielding to treatment. On this account those afflicted with such diseases become discouraged, and to an extent desperate, and more easily become the prey of conscienceless and unscrupulous practitioners in the medical profession. Such diseases are specifically named and discussed in standard medical works, and are known to all physicians, who may possess a sufficient knowledge of their profession to practice the art of healing, as chronic and incurable diseases. For the board to consult these standard medical works would not be to use them as evidence, as contended by appellee, but such act would be rather done as an aid to the memory and understanding of the members of the board. See State v. Wilhite, 132 Iowa 226, 11 A. & E. Ann. Cas. 180 and case note.
The decree will be reversed, and the complaint dismissed for want of equity. | [
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Wood, J.,
(after stating the facts). Appellant contends that the court erred in instructing the jury that appellant’s cross complaint was denied by appellee. Section 3151 of Kirby’s Digest is as follows: “In suits upon accounts, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct shall be sufficient to establish the •same unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence.”
Under this statute appellant by his cross complaint with the account attached, duly verified, made out a prima facie case, Hershy v. MacGreevy, 46 Ark. 501. If appellant had introduced this account and rested there, he would have been entitled to judgment for the difference between his account and that of appellee, which was conceded to be correct. But appellant testified as a witness, and his testimony disclqsed the fact that he had no account whatever against appellee, that the account on which he sued appellee was for work and labor performed for one Reynolds, and not for appellee. ''Appellant’s own testimony shows that there was no privity of contract between himself and appellee as to the account upon which he sues appellee.
Upon appellant’s own testimony there could be no recovery on the cross complaint against appellee. The judgment is therefore correct, and it is affirmed | [
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Hart, J.
This appeal is prosecuted from a decree of the Mississippi Chancery Court for the Osceola District, sustaining a 'demurrer to, and dismissing, the complaint of the plaintiff, S. D. Gladish, a taxpayer of said county, in a suit filed by him on the nth day of September, 1909, against John A. Lovewell as collector of said county and the sureties on his bond.
The complaint alleges, in substance, the following: That, at the general election held in 1902, John A. Lovewell was elected sheriff of Mississippi County, Arkansas; that he 'duly qualified and served as such sheriff for the term for which he was elected; that in 1904 said John A. Lovewell was again elected and served as such sheriff for the term for which he was elected; that, during the entire period of time he served as such sheriff by virtue of his office, he qualified and acted as collector of taxes for said county; that said John A. Lovewell, while acting and serving as such collector, collected certain taxes, for which he corruptly failed to account in his settlements with/ the county court of said Mississippi County.
The prayer of the complaint is that a master be appointed to take proof and report the amount of his shortage; that plaintiff be granted a decree therefor, and for general relief.
Counsel for the plaintiff states that the action was brought under section 7x99 of Kirby’s Digest. It reads as follows:
“If any taxpayer in any county in this State shall have knowledge of such corruption in office, whereby the State of Arkansas, or any county therein, has been deprived of its just revenues, he shall have the right, in his own name, as a taxpayer, to institute legal proceedings against such officer by a petition to the circuit judge sitting in chancery, setting forth the facts and nature of such corrupt acts, together with exhibits and proofs, and the same shall be verified by affidavit of the petitioner, and, upon ten days’ notice to the defendant, the cause shall proceed as other causes, but shall be heard, tried and determined at the first court after the same shall have been filed; provided the required notice shall have been given.”
The two succeeding sections .bearing on the question are as follows:
“Sec. 7200. The proceedings authorized by this act shall be summary; but, if it shall appear to the count that the ends of justice require it, a continuance may be granted to either party to the next term of -the court, but not thereafter; and the party to whom the continuance is granted shall be required to enter into additional bond, the amount to be fixed and the security to foe approved by the court.”
“Sec. 7201. Upon such trial, if it shall appear that the official acts of such officer are corrupt and fraudulent, and by such acts and doings he shall have defrauded the State of Arkansas, or any county therein, of its just revenues, a decree shall be entered against him, ousting him of his said office, and declaring the same to be vacant, and for all moneys which he may have unlawfully detained; but if, upon the hearing of the said cause, it shall appear that the defendant is not guilty, and has not committed the fraudulent acts complained of, and that the State and county have not been deprived of their revenues as complained of by the petitioner, a decree shall be entered according to the facts, and also a decree shall be entered against the petitioner and his securities for any sums of money which the defendant may have actually lost by reason of said proceeding.” (Act of March 18, 1897.)
We are of the opinion that the chancery court had no jurisdiction. The statute provides that the suit shall be brought at the instance of a taxpayer, and that the proceedings shall foe summary. The primary object of the suit under the statute is to oust the collector from office, if it shall appear that the official acts complained of are fraudulent; and the decree for the moneys which he may have unlawfully detained is a mere incident to the main suit.
“Until the General Assembly shall deem it expedient to establish courts of chancery, the circuit courts shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law.” Constitution of 1874, art. 7, § 15.
In construing a similar provision of the Constitution of 1836, this court held that it meant such jurisdiction as a court of chancery could properly exercise at the time of the adoption of the Constitution. Hempstead v. Watkins, 6 Ark. 317.
Hence it follows, as held in the case of Hester v. Bourland, 80 Ark. 145, that, while the Legislature is vested with power to create courts of chancery, and to vest such chancery courts with jurisdiction “in matters of equity,” it has no power to enlarge their jurisdiction when created.
Equity has no inherent power to oust an incumbent whose title to the office has been forfeited by misconduct or other cause. Quo warranto is the proper remedy in such cases unless the Legislature by express enactment or by necessary implication has placed the jurisdiction elsewhere. Mechem on Public Officers and Offices, § 478, and cases cited.
In this State the Legislature could not confer such jurisdiction upon the chancery courts for the reason that equity had no such jurisdiction when our present Constitution was adopted. Hester v. Bourland, supra; 5 Pomeroy’s Equity Jurisprudence, § § 333, 337-
The reason for the rule is that such cases involve political rights, with which equity has nothing to do.
The statute in question conferred the jurisdiction upon the circuit judge, sitting in chancery. That is to say, it conferred the jurisdiction in such cases upon the circuit court when it exercised chancery jurisdiction.
Having determined that there was no jurisdiction in equity at the time of the adoption of our present Constitution to oust an incumbent from office and that being the source of jurisdiction in the present case, the action of the court in sustaining the demurrer was right.
It is conceded that this suit was brought under section 7199 of Kirby’s Digest; and the general jurisdiction of courts of equity can not be invoked because there is no allegation in the bill of the refusal of the officers, whose duty it is to bring suits like this, to act in the matter. Griffin v. Rhoton, 85 Ark. 89.
The decree will therefore be affirmed. | [
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Battle, J.
During the night of July 12, 1908, the dead body of Frank Tucka was discovered on the railway track of the St. Louis, Iron Mountain & Southern Railway Company. Further than stated, the cause of his death is unknown. Mary Tucka, as his administratrix, brought this action against the railway company, and recovered judgment and the defendant appealed.
He was upon the track at the time he was killed. The distance he was at this time on the track in advance of the train killing him before it struck him, or when or how he came upon the track, is not shown. He was a strong, healthy man, in full possession of his hearing and sight, at the time he was killed. He was evidently guilty .of contributory negligence in being so situated at that time.
It has often been held by this court “that no railway company nor any other person can be held liable in an action at law for an injury caused by negligence when the plaintiff in such .action by his own negligence has contributed to the injury, unless it was a wilful injury, or one resulting from the want of ordinarv care on the part of such company or person to avert it after the negligence of the plaintiff had been discovered.” St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 46; Little Rock & Fort Smith Ry. Co. v. Pankhurst, 36 Ark. 371; St. Louis, I. M. & S. Ry. Co. v. Ledbetter, 45 Ark. 250; Little Rock, M. R. & T. Ry. Co. v. Haynes, 47 Ark. 497; St. Louis, I. M. & S. Ry. Co. v. Monday, 49 Ark. 257; Barry v. Kansas City, F. S. & M. Rd. Co., 77 Ark. 401, 404; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522, 525.
The act of April 8, 1891, “makes it the duty of all persons operating trains to keep a constant lookout for persons and property upon the track, and makes the company liable for all damages resulting from the neglect to keep such lookout;” yet it does not relieve any one of the duty to exercise care to avoid danger, and the failure by one injured by a train to exercise it will defeat the recovery of consequent damages. St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10.
In St. Louis & San Francisco Railway Co. v. Townsend, 69 Ark. 380, 382, it is said: “The burden of proving the facts necessary to show that the deceased was killed on account of the negligence of the appellant and the damages suffered by them rested upon the appellees. When it was shown that he was killed by a train of appellant upon its track, the presumption was that his death was the result of the negligence of the railroad company. Little Rock & Port Smith Railway Co. v. Blewett, 65 Ark. 253. While this fact was proved, the effect of it was avoided by showing that the deceased was lying upon the track of the railroad at the time of his death. St. Louis, Iron Mountain & Southern Railway Company v. Leathers, 62 Ark. 235. He was thereby shown to have been instrumental in causing his own death, and he would not have been killed if he had not been guilty of negligence. It was not incumbent upon the appellant to show that it did not discover his presence upon its track in time to avoid injuring him. By proving that the deceased was guilty of contributory negligence, it established a sufficient defense to bar recovery by the appellees, unless other facts were shown. [Chicago, R. I. & P. Ry. Co. v. Smith, 94 Ark. 524.] It was not necessary for it to prove additional facts to exonerate itself from liability until the effect of the contributory negligence was overcome. This being true, it is clear that the burden was upon the appellees to show that the appellant discovered the deceased upon the track in time to avoid injuring him, ;and wilfully and recklessly killed him, unless it was already shown by the evidence adduced by the appellant.”
“To hold a railroad company liable for the killing of a person by the running of its trains, who was guilty of contributory negligence, it must appear, not merely that the trainmen might, by the use of ordinary care, have discovered his peril, but that they actually observed his peril in time to avoid the injury.” Barry v. Kansas City, Ft. S. & M. Rd. Co., 77 Ark. 401; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522, 525.
Appellee says it was proved that the deceased and many others had for many years used the part of the railway track upon which he was killed as a pathway, and had thereby acquired the rights of licensees thereon. But this did not exonerate him from the perils of his situation while upon the track. The railroad company owed him no affirmative duty of care. Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 285. His privileges upon the railway track were not as great as those of the public upon the crossing by a railway of a public highway. In that case the railway company has the right to operate 'its trains over its tracks, and the public has the right to the use of the crossing as a highway, and neither has the right to interfere with the proper use of it by the other. Any one upon it at the time a train has the right to pass over it is a wrongdoer; and if he fails to use the proper precaution to protect himself and is injured, he is guilty of contributory negligence. Sherman v. Chicago, R. I. & P. Ry. Co., 93 Ark. 24. So in this case the deceased had no right to interfere with the trains of the appellant upon its own track. He was there without invitation and at his own peril, and was guilty of contributory negligence. There was no evidence that the appellant discovered him in time to protect him against injury, and his administratrix has no right to recover dámages.
Reversed and remanded for a new trial. | [
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Tom Glaze, Justice.
Appellant appeals from her conviction for first degree murder sentencing her to life imprisonment. In her appeal, the appellant argues four points of error concerning evidentiary rulings by the trial court. We find no reversible error and therefore affirm.
The appellant and the victim, William Craig Barker, had an off-and-on relationship for approximately eight years. All of the witnesses agreed that they often fought. Throughout her trial, the appellant admitted shooting Barker, but she contended that she did so in self-defense. According to the appellant’s account, she and Barker had been fighting on the day of the shooting. Around 3:00 p.m., the appellant, after having visited with her mother, returned to Barker’s sister’s house where he was alone cooking beans.
Appellant recounts that Barker yelled at her and called her names for being late and accused her of being with her ex-husband. He then allegedly grabbed her and shoved her into the stove. Appellant testified that Barker told her, “You, bitch, you’re finally going (to) get what you deserve.” At this time, Barker went to the drawer and started pulling something out. Appellant stated that her first thought was that it was a gun and all that she could see was the handle as he was pulling it out. The only weapon the police found at the scene was a butcher knife. Appellant claimed that she shot at Barker, and continued shooting as he came towards her and until he went out the door. Barker died later at the hospital from four gunshot wounds. The medical examiner testified that the majority of these bullets were in the victim’s back.
The appellant’s first two points concern the admissibility of two statements made by Barker after he was shot. The trial court admitted into evidence, as a dying declaration hearsay exception, Barker’s statement, “Vana Thompson shot me,” but refused to admit into evidence under the same exception, Barker’s statement “Don’t do anything to harm Vina.” In order to qualify as a dying declaration under A.R.E. Rule 804, the statement must be made by a declarant while believing that his death was imminent, and it must concern the cause or circumstances of what he believed to be his impending death. See Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). We have held that the trial judge determines whether evidence is admissible, and on review, we reverse the decision only if there is an abuse of discretion. See, e.g., Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).
We first address the appellant’s argument that the trial court erred in not admitting into evidence Barker’s statement that he did not want anything to harm appellant. As noted above, the appellant based her argument for admissibility on the dying declaration hearsay exception. Clearly, this statement does not fall within this hearsay exception because it in no way concerned or described the cause or circumstances of the declarant’s impending death. Accordingly, the trial court was correct in excluding this statement.
We next consider the appellant’s alternative argument that the trial court committed reversible error in admitting into evidence Baker’s other statement as a dying declaration, viz., that the appellant shot him. Appellant discusses in some detail that this statement was inadmissible as a dying declaration because no showing was made that Barker believed his death was imminent when he made it. While we could refer to evidence that runs counter to appellant’s position on this point, we find it unnecessary to do so because even if we could agree with the appellant’s argument, the trial court’s admission of Barker’s statement into evidence would be harmless error.
From the outset of appellant’s trial, she never denied that she shot Barker. As we have previously stated, appellant conceded she shot Barker, but she did so in self-defense. During voir dire of the jury, appellant’s counsel told the jurors that appellant would take the stand and further advised them that she had fired the gun that killed Barker. In addition, state’s witness Detective Steven Coppingner testified without objection that “it was made known to us through other emergency service personnel that Mr. Barker had named his assailant, and it was from that information that we started looking for Vina Mae Thompson.” And finally, the appellant, in her own case-in-chief, testified that she shot Barker in self-defense, thus confirming what her counsel had told the jury members earlier in voir dire. This court has held that a trial court’s error in admitting evidence is harmless where the same evidence has been introduced by other witnesses and was properly before the jury for its consideration. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). In light of the foregoing, we conclude no reversible error ensued from the trial court’s admitting Barker’s second statement even if that statement failed to meet the requirements of a dying declaration.
Next, we address the appellant’s argument that the trial judge erred in refusing to allow the appellant to introduce foundation testimony for the battered woman’s syndrome defense without first committing to calling expert witnesses on the subject. After the appellant testified that she had been sexually abused when she was eleven years old by her little brother’s father, the state objected to the relevancy of this evidence. The trial judge ruled that unless the appellant’s attorney intended to offer expert opinion evidence on the battered woman’s syndrome defense, the evidence would not be relevant. Appellant’s counsel responded that he did not know if he would call an expert because it depended upon how appellant’s testimony went. Counsel made no proffer on appellant’s foundation testimony pertaining to the battered woman’s syndrome defense, nor did he proffer what the expert testimony might be. Thus, we summarily dismiss the appellant’s argument on this point because appellant failed to proffer such testimonies. This court has held numerous times that where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial. See, e.g., Orr, 288 Ark. 118, 703 S.W.2d 438.
Finally, the appellant argues that the trial court erred in limiting testimony showing the victim’s violent character to one year before the shooting. Under A.R.E. Rule 405(b), in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may be made of specific instances of his conduct. Again, the appellant asserted a self-defense theory at her trial, and we have held that evidence of a victim’s violent character is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981). Thus, as an essential element of her defense, appellant clearly had the right to introduce specific instances of Barker’s violent character that were directed at her or within her knowledge. See Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982).
Appellant’s mother testified concerning the brutality Barker inflicted upon the appellant. The mother related her observations of the bruises, black eyes and split lips her daughter exhibited from fights with Barker. Appellant made no proffer of testimony concerning specific acts of violence that had occurred more than one year prior to Barker’s death. As a consequence, we have no way of knowing if the alleged acts of Barker in those other years were different from or merely cumulative to those acts already described by appellant’s mother. Appellant did relate Barker’s violent acts against her which included physical and sexual abuse as well as threats with a gun that Barker kept on his person at all times. Besides this testimony, Jackie Post, an emergency room nurse, testified that when she asked the appellant why she did it, appellant replied Barker had hurt her a lot of times.
In sum, appellant proffered no testimony of specific acts that extended over the entire period of appellant’s relationship with Barker. While there is no arbitrary point in time as to when a recital of such acts may prove needlessly repetitive, we conclude that, based upon the cumulative nature of the evidence presented here, we cannot say the trial court abused its discretion in limiting such evidence as it did. See Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979); A.R.E. Rule 403.
For the reasons stated above, we affirm. Pursuant to Ark. Sup. Ct. R. 11 (f), we have reviewed the record for rulings made adversely to the appellant, and find no reversible error.
Paramedic William Layman who heard Barker’s statement testified that he thought Barker said Vana and not Vina shot him, but admitted that he had to get low to the ground to hear because of all the commotion going on. | [
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David Newbern, Justice.
This is a workers’ compensation case in which we review a decision of the Arkansas Court of Appeals. The parties and amici curiae have, at our request, submitted briefs on the question of the appropriate standard of review of fact determinations in such cases. Our decision leaves unchanged the “substantial evidence” standard but saves for another day the question whether a constitutional violation may result when the Workers’ Compensation Commission and a reviewing court are permitted to ignore the findings of an Administrative Law Judge, the only adjudicator to see and hear the witnesses.
Vickie Scarbrough was injured while working as a housekeeper for Cherokee Enterprises. She filed a workers’ compensation claim, and an Administrative Law Judge (ALJ) awarded temporary total disability benefits, but not permanent total disability benefits. Scarbrough later filed another claim contending she was entitled to permanent total disability benefits. The ALJ again found no permanent disability, and the Commission affirmed.
The Court of Appeals affirmed the Commission, holding there was substantial evidence to support the finding. Scarbrough v. Cherokee Enterprises, 33 Ark. App. 139, 803 S.W.2d 561 (1991). In its opinion, the Court of Appeals alluded to the problem of the lack of direct contact between the Commission and the witnesses, citing an earlier minority opinion which had raised the issue. Webb v. Workers’ Compensation Comm., 292 Ark. 349 at 352, 730 S.W.2d 222 at 726 (1987) (Newbern, J., concurring). See also Hamby v. Everett, 4 Ark. App. 52 at 55, 627 S.W.2d 266 at 267 (1982) (Glaze, J., dissenting). A petition for review was granted to address the question concerning the standard of review in workers’ compensation cases. Scarbrough urges this Court to reverse by adopting a new standard of review by which we would require a finding that the Commission’s decision is supported not just by “substantial evidence” but by “substantial evidence on the record as a whole.” The point of the suggestion is that the Court would be allowed to consider the record compiled by the ALJ and not ignore that Judge’s decision by reviewing only the findings of the Commission. We affirm the Court of Appeals decision.
1. The current standard
The General Assembly has provided that the Court of Appeals may reverse the Commission only on four bases. The one obviously pertaining to factual determinations is, “That the order or award was not supported by substantial evidence of record.” Ark. Code Ann. § 11-9-711 (b)(1)(B)(4) (1987). While the statute has not always been worded just that way, see Act 319 of 1939, § 25(b), the standard today is not different from that of 50 years ago. See, e.g., Williams v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943).
Prior to 1979, workers’ compensation cases were appealed from the Commission to Circuit Courts and then to the Supreme Court. In applying the substantial evidence standard to a decision of the Commission, this Court wrote that, upon review, “we give the law judge’s findings no weight whatever.” Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The General Assembly, in Acts 252, 253, and 597 of 1979, changed the appellate chain in such cases, eliminating the Circuit Courts from the review process and providing for appeal directly from the Commission to the Court of Appeals, which properly followed the lead we had established in reviewing only the Commission decision and ignoring the findings of the ALJs. See, e.g., Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). While we have gone so far as to allow the Commission to rely on an ALJ’s stated perceptions of the “demeanor, conduct, appearance, or reaction at the hearing,” Wade v. Mr. C. Cavanaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989), it has not been held that a court may use an ALJ’s remarks to reverse a credibility determination made by the Commission.
2. The suggested new standard
In support of her suggestion that we adopt the “substantial evidence on the record as a whole” standard, Scarbrough cites two cases involving social security benefits, Thomas v. Sullivan, 876 F.2d 666 (8th Cir. 1989), and Gavin v. Heckler, 811 F.2d 1195 (8th Cir. 1987). These federal court cases relied on the standard of review applied by the United States Supreme Court in Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474 (1951). The United States Supreme Court held that in reviewing administrative findings, “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”
The Gavin, Thomas, and Universal Camera cases were based upon 5 U.S.C. § 706 (1989) which requires federal courts to examine the whole record when reviewing administrative decisions. The Court in the Universal Camera case held Congress left no room for doubt as to the kind of scrutiny to be given Labor Board decisions. Because these cases are based upon a statutory requirement not applicable here, we do not find them persuasive.
In two other jurisdictions, the appellate courts have apparently also been troubled by the problem of ignoring the “credibility” findings of the initial hearing officer. The Supreme Court of Florida addressed the problem in U.S. Casualty Co. v. Maryland Casualty Co., 55 So. 2d 741 (1951), holding the Commission should not reverse findings of fact made by a Deputy Commissioner unless the findings were not supported by substantial evidence. In Powell v. Industrial Commission, 4 Ariz. App. 172, 418 P.2d 602 (1966), the Arizona Court of Appeals held that, when the Commission reversed a factual determination made by a referee, the Court would set aside the Commission’s decision when the weight of the evidence supported the referee’s finding. These cases were based upon the hearing officer’s superior vantage point in making factual findings and judging the credibility of witnesses.
Despite persuasive arguments in favor of the Florida and Arizona approaches, we feel the constraint of stare decisis, especially when dealing with legislative intent in the interpretation of a statute. Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984). Section 11-9-711 (b)(4) requires the Court to affirm the Commission’s decision if it is supported by substantial evidence. This Court and the Court of Appeals have interpreted substantial evidence consistently over the past fifty years. The General Assembly is presumed to have known of our decisions, J.L. McEntire & Sons v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974). It has even codified the language we have used. See Act 25 3 of 1979 and Act 631 of 1981. If we were to reinterpret the term “substantial evidence” at this point to include “on the record as a whole,” we would be overruling precedent without a compelling reason appearing in this case.
3. The due process issue
A reason which might indeed be compelling for holding that the initial fact finder’s determinations of facts where credibility is at issue cannot be ignored would be that it deprives a party of due process of law. One of the amicus curiae has suggested that issue and has contended it is exacerbated by the partisan nature of the selection process for the members of the Commission. One member of the Commission represents employees, another represents employers, and the third is an attorney with no specified further affiliation. Ark. Code Ann. § 11-9-201 (a) (1987). Our amicus cites statistics which, it contends, show how the system of partisan commissioners skews the decision making process, making it something other than an impartial determination of workers’ compensation claims.
The due process question as it relates to credibility issues is, however, not one we can decide in this case. There is no disagreement among the ALJ, the Commission, and the Court of Appeals with respect to the factor in this case.
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Robert H. Dudley, Justice.
A group of insurance companies, the appellees, provided surplus lines of liability insurance to appellant Arkansas Oklahoma Gas Corporation. A gas explosion resulted in judgments of $8,000,000 against AOG and it, in turn, looked to the insurers for coverage. By that time, five (5) of the surplus lines insurers had become insolvent. The solvent ones paid their proportionate, or several, shares of the loss, but refused to pay the insolvent insurers’ shares. Eventually, AOG filed suit and alleged that each insurer was jointly liable for the whole loss. In a summary judgment proceeding, the trial court held that the appellee insurance carriers were severally liable only. AOG appeals. We affirm.
For many years AOG had purchased its liability insurance thorough Rebsamen Insurance, Inc. of Little Rock. Charles Campbell, the Executive Vice President of Rebsamen Insurance and a licensed surplus lines insurance broker in Arkansas, handled the AOG account. In 1976, both Campbell and AOG knew that AOG’s liability insurance would expire in 1977. Before the policies expired,.Campbell sought to obtain new ones. He obtained $500,000 in primary liability insurance coverage from the USF&G companies. He obtained $1,000,000 in excess liability coverage from Gas, Ltd., later known as AEGIS. Finally, he sought to obtain $9,000,000 in excess liability coverage. At that time, it would have been extremely difficult, if not impossible, to obtain that much excess liability coverage from companies authorized to do business in Arkansas, and it was no easy task to obtain that much excess liability coverage, even looking to alien and foreign unauthorized companies.
Campbell contacted Ebasco Risk Management Consultants in New York. He knew that Ebasco had provided risk management insurance services for utilities for over forty (40) years. A sketch of its program is as follows: Various utilities would contact Ebasco about excess liability insurance. Ebasco would contact Lukis Stewart Price Forbes & Co., a Toronto, Canada broker. Lukis Stewart would then contact its parent company in London, England, “The Sedgwick Group.” The Sedgwick Group would put together an excess liability insurance program by procuring insurance from various syndicates and underwriters at Lloyd’s and from other insurance companies located in London and from still others around the world. The policy would be in the form of a master policy for the Ebasco group excess liability program and would be known as the “Ebasco slip.” Lloyd’s syndicate insurers and other insurers would provide in the master policies that each insurer’s liability was several. The master policies would be delivered to Lukis Stewart and then to Ebasco. The master policy would authorize Lukis Stewart to issue a memorandum of excess liability insurance to Ebasco, and Ebasco would then send the memorandum to the local agent for each utility. Each utility was separately rated for the purpose of computing premiums. In summary, Ebasco held the master policy for each of the separately rated utilities in the group of insured utilities.
At the time relevant to this case, Lloyd’s syndicates were on the “Ebasco slip” for a total of 25.75 percent of the excess liability insurance and other combined companies were on the slip for a total of 74.25 percent. The two master policies provided that the insurers are severally liable only. The master policy by the underwriters at Lloyd’s provides:
Now know Ye that We the Underwriters, Members of the Syndicates whose definitive numbers in this after-mentioned List of Underwriting Members of Lloyd’s are set out in the attached Table, hereby bind ourselves each for his own part and not one for another, our Heirs, Executors and Administrators and in respect of his due proportion only, to pay or make good to the Assured or to the Assured’s Executors or Administrators or to indemnify him or them against all such loss, damage or liability as herein provided, after such loss, damage or liability is proved and the due proportion for which each of Us, the Underwriters, is liable shall be ascertained by reference to his share, as shown in the said List, of the Amount, Percentage or Proportion of the total sum insured hereunder which is in the Table set opposite the definitive number of the Syndicate of which such Underwriter is a Member AND FURTHER THAT the List of Underwriting members of Lloyd’s referred to above shows their respective Syndicates and Shares therein, is deemed to be incorporated in and to form part of this Policy, bears the number specified in the attached Table and is available for inspection at Lloyd’s Policy Signing Office by the Assured or his or their representatives and a true copy of the material parts of the said List certified by the General Manager of Lloyd’s Policy Signing Office will be furnished to the Assured on application.
The combined companies’ master policy provides:
Now know ye that we the Assurers do hereby bind ourselves, each COMPANY for itself only and not one for another and in respect only of the due proportion of each Company, to pay to the Assured or the Assured’s Executors or Administrators, all such loss, damage or liability as herein provided that the Assured may sustain during the stated period, not exceeding in all the sum insured, as properly apportioned to the sums, or to the percentages or proportions of the sum insured, subscribed against our names respectively.
The policies further provide “that Lukis Stewart Price Forbes & Co. Ltd. may issue evidence of coverage to each Assured.” Lukis Stewart issued two “memoranda of excess liability insurance,” one representing the group of Lloyd’s syndicates participating in 25.75 percent of the risk and the other representing the combined companies’ 74.25 percent of the risk. Neither memorandum provided whether liability was joint or several. The memoranda were sent to Ebasco in New York and then forwarded to Charles Campbell of Rebsamen Insurance in Little Rock and finally to AOG.
On June 21,1978, while the policies were in force, a natural gas explosion caused personal injuries that resulted in judgments against AOG totaling $8,000,000.
The primary carrier, USF&G, paid the $500,000 limit of its policy. AEGIS paid the $1,000,000 limit of its excess liability coverage. All of the Lloyd’s underwriters paid their several amounts in full. This amounted to 25.75 percent of the loss. Most of the “other companies” paid their percent of the loss, but five of the “other companies,” representing $543,514.49 of the loss, were insolvent and did not pay.
AOG demanded indemnity from the solvent insurers. They refused to pay more than their several shares. AOG then filed suit against Rebsamen Insurance, Ebasco, Lukis Stewart, and the excess liability insurers. In its complaint, it pleaded that Rebsamen, Ebasco, and Lukis Stewart were its agents and, as such, were negligent in their selection of the insurance companies. That part of AOG’s suit has not been decided and is not before us in this appeal. AOG additionally pleaded that the Lloyd’s syndicates and the other companies are jointly liable under three theories: (1) operation of law, (2) breach of contract, and (3) negligence. AOG and the insurance companies both filed motions for summary judgment. Four volumes of record, consisting of interrogatories, requests for admissions, answers to interrogatories and admissions, affidavits, exhibits, and depositions were filed along with the motions. After reviewing them, the trial court ruled in favor of the insurance companies and issued an ARCP Rule 54(b) certification that allows us to accept the appeal of the partial summary judgment.
As a preliminary matter, all parties agree that Arkansas law is applicable to this case, and it is appropriate to cite today’s Arkansas Code Annotated, rather than 1977’s Arkansas Statutes Annotated, since none of the statutes involved have been amended.
AOG first argues that the insurance companies are jointly and severally liable as a matter of law. Its argument is based on Ark. Code Ann. § 23-79-117(b) (1987) which provides:
(b) Two (2) or more insurers may, with the approval of the commissioner, issue a combination policy which shall contain provisions substantially as follows:
(1) That the insurers executing the policy shall be severally liable for the full amount of any loss or damage according to the terms of the policy, or for specified percentages or amounts thereof aggregating the full amount of insurance under the policy; and
(2) That service of process or of any notice or proof of loss required by the policy upon any of the insurers executing the policy shall constitute service upon all the insurers.
AOG argues that the statute plainly means that in order to limit liability under a policy to several liability, the insurers must have obtained the approval of the Arkansas Insurance Commissioner. The appellee insurance companies did not have the approval of the Commissioner to issue these policies, and, for that reason, AOG contends they are jointly liable as a matter of law. AOG’s argument would have merit if the cited statue were the controlling statute.
The cited statute, Ark. Code Ann. § 23-79-117(b), is part of the general insurance code. Another section of the insurance code deals with “surplus lines insurance,” the particular kind of insurance at issue in this case.
Ark. Code Ann. § 23-60-105 (1987) provides:
Provisions of this code relative to a particular kind of insurance or a particular type of insurer or to a particular matter shall prevail over provisions relating to insurance in general or insurers in general or to such matters in general.
Consequently, the specific provisions of the Arkansas Surplus Lines Insurance Law control over the general statute cited by AOG.
Our statutory scheme for surplus lines insurance is based upon the premise that Arkansas insurance brokers at times will be required to look to foreign or alien unauthorized insurers for surplus lines insurance. Accordingly, it regulates Arkansas insurance brokers, not the unauthorized companies with whom they are conditionally authorized to do business. See Ark. Code Ann. §§ 23-65-302 and 303 (1987) concerning placing of surplus lines insurance with unauthorized or non-admitted insurers.
In addition, Ark. Code Ann. § 23-65-305 (1987) provides:
If certain insurance coverages cannot be procured from authorized insurers, coverages, hereinafter designated “surplus lines” may be procured from unauthorized insurers subject to the following conditions:
(1) The insurance • must be procured through a licensed surplus lines broker;
(2) The full amount of insurance required must not be procurable, after diligent effort has been made to do so, from among authorized insurers who are actually marketing that kind or class of insurance in this state, and the amount of insurance placed in an unauthorized insurer is only the balance over the amount procurable from authorized insurers.
Ark. Code Ann. § 23-65-310 (1987) provides that a broker may place surplus lines insurance with unauthorized foreign and alien insurers that are approved by the Commissioner. The first few lines of the statute, which are representative of its full content, provide:
(a) A surplus lines broker shall place surplus lines insurance only with insurers which have been approved by the commissioner. The commissioner may maintain a list of approved foreign and alien surplus lines insurers in addition to those alien insurers maintaining status on the current National Association of Insurance Commissioners’ nonadmitted insurers’ quarterly listing. The approved list shall not contain:
(1) Any insurer which is not licensed in at least one (1) state of the United States for the kind of insurance involved;
(2) Any stock insurer having capital and surplus amounting to less than three million dollars ($3,000,000);
Ark. Code Ann. § 23-65-311 (1987), places the duty upon the broker to issue and deliver evidence of the insurance to the insured. Of equal importance, it expressly provides that insurers may assume only a proportion of the policy, or several liability. It provides:
(a) Upon placing a surplus lines coverage, the broker shall promptly issue and deliver to the insured evidence of the insurance, consisting either of the policy as issued by the insurer or, if the policy is not then available, the surplus lines broker’s certificate. The certificate shall be executed by the broker and show the subject, coverage, conditions, and terms of the insurance, the premium charged and taxes collected from the insured, and the name and address of the insurer. If the direct risk is assumed by more than one (1) insurer, the certificate shall state the name and address and proportion of the entire direct risk assumed by each such insurer.
(b) If, after the issuance and delivery of the certificate, there is any change as to the identity of the insurers, or the proportion of the direct risk assumed by the insurers as stated in the broker’s original certificate, or in any other material respect as to the insurance coverage evidenced by the certificate, the broker shall promptly issue and deliver to the insured a substitute certificate accurately showing the current status of the coverages and the insurers responsible thereunder.
(c) If a policy issued by the insurer is not available upon placement of the insurance and the broker has issued and delivered his certificate as provided in subsection (a) of this section, upon request therefor by the insured, the broker shall, as soon as reasonably possible, procure from the insurer its policy evidencing such insurance and deliver such policy to the insured in replacement of the broker’s certificate theretofore issued.
(d) Any surplus lines broker who knowingly or negligently issues a false certificate of insurance, or who fails promptly to notify the insured of any material change with respect to the insurance by delivery to the insured of a substitute certificate as provided in subsection (b) of this section, upon conviction, shall be subject to the penalties provided by § 23-60-108 of this code or to any greater applicable penalty otherwise provided by law. [Emphasis added.]
From the foregoing, it is manifest that the statutory scheme for surplus lines insurance is designed to regulate the registered broker and to authorize the broker, by his certificate, to advise the insured of the names, addresses, and proportion of the risk assumed by each insurer. It provides for several liability of the insurers and does not specify that the surplus lines insurer must comply with the general insurance code provisions.
The Seventh Circuit Court of Appeals addressed a comparable case in Corday’s Dept. Store, Inc. v. New York F.&M. Under., Inc., 442. F.2d 100 (7th Cir. 1971). The issue in that case was whether a surplus lines insurer could provide exclusions in its policy which deviated from the statutory required standard form of fire insurance. In Illinois, as in Arkansas, surplus lines insurance is exempt from the statutory requirement of a certificate of authority. The Court of Appeals, in reviewing the object and purposes of surplus lines insurance, stated:
The District Court, recognizing that the object and purpose of surplus line insurance provisions, as elucidated by the Illinois courts, is to make it possible to secure protection against a risk when authorized companies will not provide that protection, concluded that the regulatory scheme embodied in the Illinois Insurance Code is used to achieve that objective which embraces, as well, the implicit common sense judgment that it is better that a citizen of Illinois be able to insure a risk at less than standard coverage, than that he not be able to secure any protection at all.
Id. at 104. The court held that the Illinois statutes setting out the forms of policies were applicable only to authorized companies transacting business in the state but were not applicable to a policy issued by a surplus lines insurer. Likewise, we hold that the statute cited by AOG is a part of the general insurance code and does not govern surplus lines insurance.
Secondly, AOG argues that the trial court erred in granting summary judgment against it on its breach of contract claim. The basis for the alleged breach of contract is the language in the memoranda issued by Lukis Stewart that provides the insurers will indemnify AOG for “any and all sums which they shall be legally obligated to pay ... to any person or persons as damages for personal injuries sustained. . ..” AOG argues that the insurers have failed to pay all such sums, and therefore, have breached their contract. Lukis Stewart issued the memoranda of insurance to its insured, AOG, as brokers are authorized to do. See Ark. Code Ann. § 23-65-311. AOG expressly pleaded in its complaint that Lukis Stewart was its agent and, in its brief to the trial court, admitted that the appellee insurance companies were not liable for the acts of its brokers. (AOG still has its claims pending against Lukis Stewart for its alleged wrongful acts as AOG’s agent.) In short, under the pleadings and argument of AOG, the memoranda were not contracts with the appellee insurance companies, but instead, are memoranda issued by its own broker. Since it is undisputed that the appellee insurance companies have each severally paid their proportionate amount due under the master policies there was no genuine issue as to any material fact involved in the breach of contract count, and the trial court correctly granted summary judgment on this claim.
In the oral argument of this case, AOG argued that Lukis Stewart was the agent of AOG in some of the matters and was the agent of the insurance companies in others, depending on which party requested it to do the particular act, and this set of facts raised a jury question. See 3 G.J. Couch, Couch Cyclopedia of Insurance Law § 25:94 (R.A. Anderson, ed., 2d rev. ed. 1983). However, we do not consider this dual agency as it was not raised below.
In its final point, AOG argues that the trial court erred in dismissing its negligence claim. In this claim, AOG asserted that its brokers and the appellee insurers negligently led AOG to believe that all of its coverage was placed with underwriters at Lloyd’s. However, there is no affidavit or other response which indicates that the appellee insurers made any such representation, and the ruling of the trial court correctly dismissed them from this part of the suit.
One of the appellee insurance companies, Instituto Nacional de Seguros, attempts to cross-appeal. This insurance company first asks us to affirm the trial court’s ruling that it is not jointly liable and that it has paid all that it severally owed, and that it was correctly dismissed from the lawsuit. It then asks, on cross-appeal, for this court to hold that “the trial court erred in not granting this appellee’s motion for summary judgment on the grounds that this appellee was not a participant in the subject insurance policy.” Institute’s designation of its procedure as a cross-appeal is in error. A cross-appeal is required only when the appellee seeks some affirmative relief which he failed to obtain in the trial court. A cross-appeal is not necessary when the appellee won the case below and merely asks that the judgment be affirmed on a different basis. Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560 (1982). However, when we affirm on direct appeal, as we have done in this case, we need not decide if there are additional reasons to affirm the case. Id. at 535-6, 637 S.W.2d at 565. Accordingly, we decline to decide if there are additional grounds on which to affirm the judgment in favor of Instituto.
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Donald L. Corbin, Justice.
A Jefferson County jury tried and convicted appellant, Nathaniel Mitchell, of two counts of first-degree murder and one count of attempted capital felony murder. The jury sentenced appellant to forty years imprisonment for each of the murder convictions, and thirty years imprisonment for the attempted capital felony murder count. Appellant asserts four grounds for reversal of his conviction. We affirm on each of the four grounds.
I.
CUSTODIAL STATEMENT
Appellant’s primary allegation of error is that the trial court erred in denying his pre-trial motion to suppress his custodial confession. He presents two theories in support of his suppression argument; First, he argues that the failure of the Jefferson County Sheriffs Department to inform appellant that he had legal representation or to follow counsel’s instructions regarding appellant’s interrogation invalidated appellant’s confession. Second, appellant argues that the trial court erred in disregarding his testimony at the suppression hearing that the police denied his request to use a telephone to arrange for legal representation. We disagree with both of appellant’s arguments.
On August 25, 1989, police discovered the bodies of two gunshot victims, Charles Goodloe and Henry Harris, at the Altheimer Recreation Club in Jefferson County. Later that morning, police received information that appellant had killed Goodloe and Harris, and wounded another victim, E.L. Surratt, during a shooting incident the previous evening. Based on this information, the police arrested appellant at his residence in Stuttgart shortly after 4:00 a.m.
The police informed appellant of his Miranda rights at the time of his arrest. At approximately 7:00 a.m., the police again informed appellant of his Miranda rights. Following the second recitation of the Miranda rights, the police conducted a four hour interrogation session with appellant. At the’conclusion of the interrogation, appellant gave police a signed confession admitting his involvement in the shootings.
While appellant was in custody, his family had retained counsel for appellant. During appellant’s interrogation, counsel repeatedly telephoned the sheriffs department attempting to gain information about appellant’s case. The police never told appellant of counsel’s efforts. When counsel failed to contact appellant, counsel instructed the police to cease questioning of appellant. The police ignored counsel’s instructions, and appellant did not speak to counsel until after appellant confessed to the crime. Appellant argues that the conduct of the police during the interrogation process violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by denying him access to an attorney. We disagree.
A suspect’s waiver of his Fifth Amendment rights is valid only if it is made “voluntarily, knowingly and intelligently.” Miranda, supra, 384 U.S. at 444. The inquiry into the validity of a waiver has two distinct dimensions. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989) citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126. Second, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126.
Appellant does not explicitly challenge either prong of the waiver inquiry. Instead, he argues that the trial court should have suppressed his confession because the conduct of the police denied counsel access to appellant. We disagree based on the Supreme Court’s decision in Moran, supra.
In Moran, the Supreme Court held that the failure of the police to follow counsel’s instructions or to inform the suspect of counsel’s efforts to reach him does not affect the validity of an otherwise proper waiver. Events occurring without a suspect’s knowledge do not implicate the validity of a waiver because such events “can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id. at 422.
We have followed Morans interpretation of the waiver requirements. See Burin, supra, In the instant case, appellant did not know of counsel’s efforts on his behalf. Consequently, we find that the police treatment of counsel is irrelevant to the validity of appellant’s waiver.
Appellant attempts to distinguish the instant case from Moran by alleging that the Jefferson County police conspired to deny him access to counsel. We also find this distinction irrelevant to the validity of appellant’s waiver. We agree with the Supreme Court’s assessment of police culpability in Moran:
[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.
Moran, supra, 475 U.S. at 423.
At the suppression hearing, the trial court found that appellant understood his rights and voluntarily waived them. Only if the “ ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Burin, 298 Ark. at 613-14, 770 S.W.2d at 126 quoting Moran, 475 U.S. at 421. We independently examine the totality of the circumstances to determine whether the trial court’s ruling was clearly erroneous. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Burin, supra.
Appellant argues that the trial court should have suppressed his confession on the basis of his testimony at the suppression hearing. At the suppression hearing, appellant testified that the police denied his request to use a telephone to arrange for legal representation. He further testified that the police ignored his request to cease questioning. However, the testimonies of several police officers contradicted appellant’s assertions. They testified that appellant never asked them to cease the interrogation or indicated that he wished to consult an attorney. The police also testified that appellant indicated he understood his rights and waived them.
The credibility of witnesses who testify at a suppression hearing concerning the circumstances surrounding the defendant’s in-custodial statement is for the trial judge to determine. Branscomb, supra, 299 Ark. at 489,774 S.W.2d at 429. Based on our independent review of the totality of the circumstances we cannot say that the determination is clearly erroneous.
Accordingly, we affirm the trial court’s decision allowing the state to introduce appellant’s confession into evidence.
II.
AMENDED INFORMATION
For his second allegation of error, appellant argues that the trial court erred in allowing the state to amend its information three days prior to trial. On August 28, 1989, the state charged appellant with one count of premeditated and deliberated capital murder and one count of attempted capital murder. On August 17, 1990, three days prior to trial, the state amended the information to assert an additional count of capital murder. Appellant argues that the additional count violates the statutory prohibition of amendments changing the nature or degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987). We disagree.
The legislature’s 1989 revision of the homicide statutes authorized the state’s assertion of the additional murder count. The premeditated and deliberated capital murder statute, Ark. Code Ann. § 5-10-101 (a) (4) (Supp. 1989), now provides:
(a) A person commits capital murder if:
With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person[.]
Prior to 1989, each premeditated and deliberated capital murder count required two victims. Ark. Code Ann. § 5-10-101 (1987).
Appellant does not dispute the fact that the new statute was in effect on the date of the alleged murders. We have held that the state may amend an information to conform to the proof so long as the amendment does not change the nature or degree of the offense charged. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). As the state points out, the only effect of the amendment was to split the original single count of capital murder into two counts of capital murder under the new statutory definition of that offense. We consider this amendment to be a matter of form that does not change the nature of the offense charged.
Furthermore, appellant failed to request a continuance when he was put on notice that the state planned to amend the information. We have previously held that we will not presume prejudice when an appellant fails to move for a continuance after he is put on notice that the state plans to amend an information. Harrisons v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Wilson, supra; Jones, supra. In this case, appellant knew of the state’s plan to amend three days prior to trial. Since he did not move for a continuance, we find no prejudice in the trial court’s allowance of the amendment.
III.
CHARACTER WITNESSES
Appellant’s third allegation of error asserts that the trial court erred in excluding the testimony of six character witnesses for the defense. The trial court granted the state’s motion to exclude the testimony because the defense failed to comply with the state’s discovery request for the names and addresses of the defense witnesses that would testify at trial. We affirm.
Ark. R. Crim. P. 18.3 provides the applicable discovery rule in criminal cases:
Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.
The state filed its discovery request on August 30, 1989. On October 10, 1989, the trial court entered an order directing appellant to respond to the state’s request within ten days prior to trial. Appellant failed to comply. He argues that the trial court erred in sanctioning him for his noncompliance because the substance of the witnesses’ testimony would be limited to statements concerning appellant’s truthfulness and veracity.
Rule 18.3 could not be clearer. We have held that the rule applies with equal force to testimony offered in support of a general denial defense and testimony offered to support an affirmative defense. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Discovery in criminal cases, within constitutional limitations, must be a two way street. Id. at 558, 720 S.W.2d at 906. This interpretation promotes fairness by allowing both sides the opportunity to full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Id. In the instant case, the trial court found that appellant’s failure to comply with the discovery order prejudiced the state. Without the names and addresses of appellant’s witnesses, the state could not exercise its right to obtain information questioning the witnesses’ credibility. We find that the trial court’s exclusion of appellant’s character witnesses was a proper sanction for appellant’s blatant disregard of the discovery rule.
We reject appellant’s attempt to characterize his witnesses as rebuttal witnesses. He attempts this characterization in an effort to bring his witnesses within the narrow exception to Rule 18.3 that we recognized in Weaver, supra. We noted that genuine rebuttal witnesses need not be disclosed before trial because neither the defense nor the state necessarily knows in advance of the need for such rebuttal testimony. Id. In this case, appellant planned to use the witnesses in his case-in-chief. Since he knew in advance of the need for the witnesses’ testimony, the trial court did not err in refusing to give appellant the benefit of the rebuttal witness exception to the discovery rule.
IV.
JURY INSTRUCTIONS
For his final allegation of error, appellant argues that the trial court erred in instructing the jury on the capital murder charge. The trial judge gave the jury the following instruction on the capital murder charge:
In count one, that with a premeditated and deliberate purpose of causing the death of Charles Goodloe; . . . Nathaniel Mitchell caused the death of Henry Harris.
The judge gave an identical instruction on the elements of capital murder with respect to the killing of Henry Harris.
Appellant argues that in order to satisfy the elements of capital murder, the state must show that the defendant acted with “an intent to cause the death of A and in so acting, caused the death of B.” We disagree based on the common sense construction of the applicable statute, section 5-10-101 (a)(4). The statutory phrase “another person” means a person other than the defendant himself. We find no error in the trial court’s instruction on capital murder.
Appellant also asserts that the trial court erred in instructing the jury on the definition of attempted premeditated and deliberated capital murder. Specifically, appellant argues that there was no evidence to support an attempt conviction. Appellant’s argument is without merit. The victim of the attempted murder testified that appellant deliberately shot him through a car window. This testimony provided a basis in the evidence for the trial court’s instruction on attempted capital murder. Accordingly, we affirm.
Glaze and Brown, JJ., concur. | [
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Tom Glaze, Justice.
This appeal involves the appellees’ (Coxes’) request to transfer the location of a retail liquor and beer permit to a site on Highway 67 near the Miller CountyHempstead County line. At approximately the same time, a competitor, Margaret Gleason, made a similar request for a permit for a store to be located within a few hundred feet from where the Coxes would have their outlet. The Director of the Arkansas Alcoholic Beverage Control Division (ABC) denied both requests. However, the Coxes and Gleason appealed the Director’s decision to the ABC Board, which granted Gleason’s application, but then denied the Coxes’ request.
The Coxes, who were intervening parties in Gleason’s ABC Board proceeding, appealed the Board’s decision granting a liquor permit to Gleason and that appeal was filed in the Sixth Division, Pulaski County Circuit Court. The Coxes also appealed the Board’s denial of their permit request, but their appeal was lodged in the Second Division, Pulaski County Circuit Court. While these cases appeared to be companion cases, they were not consolidated. However, depositions of two of the ABC Board members, James N. Walters and Reid Holiman, were taken in the Sixth Division proceeding and, over ABC’s objection, admitted into evidence at the trial in the Second Division Circuit Court.
After the trial judge reviewed the records of the Coxes and Gleason proceedings before the ABC Board, the Board’s orders rendered in those hearings, and the Walters and Holiman depositions, he reversed the Board’s denial of the Coxes’ liquor permit request. The ABC Board appeals the trial court’s decision, arguing the lower court erred (1) in admitting into evidence and considering the Gleason record before the Board and the deposi tions of the two Board members, (2) in ruling the two Board members had improperly engaged in ex parte communications concerning the Coxes’ and Gleason’s applications and (3) in deciding no substantial evidence existed to support the Board’s denial of the Coxes’ liquor permit request.
The ABC Board’s first two arguments focus on separate communications made by Senator Jon Fitch and Betsy Wright of the Governor’s Office to Board members Holiman and Walters regarding the pending requests of Gleason and the Coxes. Walters said that Ms. Wright called and told him the Governor’s Office had “received considerable phone calls about the Cox case, that Walters should be aware there had been calls made, and that ‘they’ knew he [Walters] would do what was right.” Holiman testified that Senator Fitch contacted him about the Gleason’s and Coxes’ requests and wanted to know how Holiman intended to vote. Holiman said that he told Fitch that “he [Fitch] couldn’t expect me to try and help him politically in less than a day, if I could do it.” Holiman said, “[Fitch]” wouldn’t tell me where he was coming from although I believe I know.” Both Walters and Holiman testified that these contacts did not affect their votes on either the Coxes’ or Gleason’s applications.
However, in reversing the Board’s denial of the Coxes’ application, the trial judge, in his order, stated, in addition to finding the evidence was insufficient to support the Board’s denial, that the foregoing contacts with the two Board members had violated the Administrative Procedure Act and that those discussions (contacts) “so tainted the entire proceeding that there is an appearance of impropriety.” The specific statutory provision to which the judge referred is Ark. Code Ann. § 25-15-209(a)(1987). That law in relevant part provides that ABC Board members or employees assigned to render a decision in any case shall not communicate, directly or indirectly, in connection with any issue of fact with any person or party nor in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate.
In its argument, the Board does not actually question the court’s finding that the two contacts described above violated § 25- 15-209(a). Instead, it contends the Board members’ depositions relating or describing the two contacts should not have been admitted and considered by the trial judge because Ark. Code Ann. § 25-15-212(g) limited his review of the Coxes’appeal to the record made by the parties in the ABC Board proceeding. In other words, because the Coxes had not presented evidence regarding the ex parte communications in their appeal to the Board, the trial court could not later consider those matters in its review. We disagree.
Section 25-15-212(g) not only provides that the court’s administrative review shall be conducted by the court without a jury and confined to the record before the agency, it also states that, in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. In addition, Ark. Code Ann. § 25-15-212(d)(4) (1987) provides that a court may require or permit subsequent corrections or additions to the record. Here, the third-party contacts made to Board members Holiman and Walters violated § 25-15-209(a) and, as procedural irregularities, were properly allowed by the trial court as added testimony describing those contacts and communications.
The Board alternatively claims that even if the contacts were properly considered by the trial court, the third party conversations, as related, amounted to “a big nothing,” were de minimus and no prejudicial error was shown. The trial court found these violations alone would require the Board’s order to be set aside, but, later in the same order, the court said that it did not intend to suggest either member of the Board had been compromised. Regardless of whether the ex parte communications alone warrant reversal of the Board’s decision denying the Coxes a permit, we believe the trial court must be affirmed based upon its further holding that insufficient evidence existed to support the Board’s decision.
In examining the record before the ABC proceeding, the trial court did so in view of the Board’s findings that the Coxes’ proposed outlet was remote and presented a law enforcement problem, their store would be located in an area of limited population and sufficient outlets (including the one the Board just granted Gleason) existed to serve the area, and the economic survival of the permit granted to Gleason would be brought into question if the board granted the Coxes’ application. These findings, the trial court stated, were negated by contrary findings made by the Board when granting Gleason’s permit.
At this point, we note the Board’s argument that part of the Gleason’s proceeding and the Board’s decision in that proceeding were erroneously made a part of the record by the trial court. The Gleason decision, however, was introduced without objection and, while the Board’s challenge of the Gleason transcript is for other reasons dubious as well, the trial court’s decision does not in any way appear to have been affected by the inclusion of the transcript. Instead, the trial court relied on the findings and conclusions set out in the Board’s Gleason order and the testimony taken in the Coxes’ proceeding before the Board.
In its review, the trial court found that the Coxes’ outlet was to be located in the same area of Gleason’s, and if Coxes’ store posed a law enforcement problem, Gleason’s outlet would as well. Nonetheless, in granting Gleason’s permit, the Board never mentioned any law enforcement problem. The trial court also set out testimony that, since 1984, appellee Kenneth M. Cox had operated a deli and beer outlet on Highway 67 without criminal incident or disturbance and that the sheriff and state police stopped and checked the store occasionally. Next, bearing on the Board’s finding existing permit holders, including Gleason, could not economically survive if the Coxes’ application was approved, the trial court pointed out the evidence showing just the opposite. The court in its order set out evidence presented showing that 1,600 people had signed petitions supporting Coxes’ application, that Highway 67 had a traffic count of over 2,000 cars per day and that the area would support two liquor outlets. The court also noted the significant absence of any evidence to support the Board’s finding that sufficient outlets existed to serve the area or its conclusion that competitors, like Gleason, could not economically survive.
In conclusion, we believe the trial court, in its review, took a critical, detailed and fair look at the Board’s findings and conclusions made in the Coxes’ and Gleason’s applications. As a result, it held correctly that the two Board decisions were inconsistent and the determinations reached in the Coxes’ case were not supported by the evidence and therefore arbitrary. Therefore, we uphold the trial court’s analysis and affirm its decision reversing the Board and remanding this case to the Board with directions to grant the Coxes’ application. | [
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Tom Glaze, Justice.
This case involves the appellee’s arrearages in child support for his two children. Under the divorce decree filed on May 8,1980, appellee was ordered to pay $40.00 per week in child support for his two minor children, a son, Stacy Porter, and a daughter, Joyce Porter. Because of the appellee’s failure to pay the child support, the Arkansas Department of Human Services, appellant, filed a motion for citation and petition for relief on March 14, 1989. In his response, the appellee argued that since his son turned eighteen on February 23,1988, the child support on that child should have abated on his birthday, thus reducing the amount of child support arrearage to $20.00 a week from that date.
Before the hearing, the parties stipulated that the appellee’s arrearage would be $3,747.00 if no abatement or allowance was made for when the son turned eighteen, or the arrearage would be $1,787.00 if the court abated the son’s child support effective on his eighteenth birthday. The chancellor chose the latter and awarded $1,787.00 to the appellant. The appellant appeals from this ruling arguing that the chancellor erred in retroactively reducing the appellee’s child support arrearages. We agree and therefore on de novo appeal, we reverse and direct the chancellor to award $3,747.00 to the appellant.
Before addressing the merits of this appeal, we note that the appellant failed to abstract the parties’ final divorce decree. However, the appellee provided the pertinent paragraph in his brief, and we will consider that as a supplemental appendix offered by the appellee. See Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991). For the purposes of this appeal, the essential paragraph in the divorce decree provides the following:
The Court further finds that two children were born to this marriage, to wit: Stacy Tyrone Porter, born 2/23/70 and Joyce Porter, born 2/4/73, who are presently in the care and custody of the plaintiff who is a fit and proper person for their care and custody. That the defendant is an able-bodied man capable of earning a livelihood and should pay to plaintiff the sum of $40.00 per week as child support for said minor children. . . .
The appellant argues that the chancellor could not reduce the appellee’s child support arrearages- since he never filed a motion to modify the child support when his son turned eighteen. Clearly, the appellant is correct. In Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962), this court held that the father could not, on his own volition, reduce his $200 child support payment when one of his children turned eighteen. In support of its holding, the court gave the following three reasons: 1) the court (and the court alone) had the right to change the amount of the award for the support of the children; 2) the court could have continued the original award for the child who had become eighteen; and 3) the award of $200 was for the maintenance for three children, and the appellant had no right to conclude that $66.67 or an equal '/i was for the child who had become eighteen. See also Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425 (1973).
The Jerry decision and underlying rationale apply to the present case. Clearly there was no showing that the $40.00 per week child support in the parties’ decree was to be split equally between the two children. In this same vein, the chancellor, only, had the right to change the amount of support, and in fact, did so during this proceeding below by setting child support for the remaining minor child, Joyce, in the amount of $32.50 per week. Although appellee complains that it is inequitable to require him to file a petition to terminate child support payments when a child attains majority, this court has pointed out that such a procedure or resulting litigation can be avoided by setting forth in the decree under what circumstances child support payments will terminate without the necessity of a court’s intervention. Id., 254 Ark. at 884, 496 S.W.2d at 427.
Further, statutory law supports this holding. In particular, Ark. Code Ann. § 9-12-314 (Repl. 1991), provides the following:
(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. . . .
In sum, since the appellee did not file a motion to modify child support when his son turned eighteen, the chancellor could not retroactively reduce the appellee’s child support arrearages which had become final judgments. We reverse the chancellor’s holding and award the appellant $3,747.00, the parties’ agreed sum for the appellee’s child support arrearages. | [
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Tom Glaze, Justice.
Appellant was convicted of burglary, battery, and attempted rape and sentenced to twenty years, thirty years, and forty years imprisonment respectively. The judge ordered that the burglary and battery sentences run consecutively to each other and an outstanding sentence, leaving the appellant with a total of fifty years imprisonment. On appeal, the appellant challenges only his attempted rape conviction. In his appeal, the appellant raises the following two points of error: 1) the trial court erred in allowing the prosecutor’s redirect examination of the victim; and 2) there is insufficient evidence to support the appellant’s conviction for attempted rape. We find no merit in these arguments, and therefore affirm.
We address sufficiency of the evidence issues first on appeal. To preserve the issue of sufficiency of the evidence for appeal at a trial, the defendant must move for a directed verdict at the conclusion of the prosecution’s evidence and again at the close of the case. A.R.Cr.P. Rule 36.21(b). This court has strictly followed the requirements of Rule 36.21(b) and has refused to address sufficiency of the evidence questions unless both directed verdict motions were made. See Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).
In this case, the appellant made a motion for a directed verdict on the attempted rape charge at the close of the state’s evidence, but failed to do so at the close of the case. But, two days after his conviction, the appellant filed a motion for a directed verdict or a judgment non-obstante verdicto on the attempted rape conviction. Since the appellant’s motion was made two days after the jury verdict, it was in fact a motion for a new trial. In Weaver, 305 Ark. 180, 806 S.W.2d 615, we refused to recognize the appellant’s motion for a new trial as meeting the requirement under Rule 36.21(b) for a second directed verdict motion at the end of the case. Thus, we must decline to address the appellant’s sufficiency of the evidence issue.
Appellant’s second issue concerns the state’s redirect examination of the eighty-eight-year-old victim. During the direct examination at the trial, the victim was very reluctant to describe the details of the attempted rape in court. However, the victim did recount that, after the appellant pushed his way into her house and threatened her with a pair of scissors, he threw her on the floor in the living room and tried to rape her. The victim stated that she kept her legs so tightly crossed that the appellant could not get them apart. Further, she testified that the appellant had his pants unbuttoned in the front and that he unbuttoned her blouse and fondled her breasts. Additional testimony showed that the appellant then forced the victim into the bedroom where he beat her with a plastic box lid and vacuum attachment. The victim passed out and when she came to she was naked and underneath the bed. The prosecutor asked the victim if the appellant did anything else to her clothing before she was forced into the bedroom, and the victim replied that she could not remember.
On cross-examination, appellant’s attorney did not ask any questions about the victim’s clothing or details of the attack. Instead, he had the victim admit that the appellant was in control of the situation, and if he wanted to do something, he probably could have done it. On redirect, the prosecutor again started asking the victim about what happened to her clothing before she was taken into the bedroom, and the appellant’s attorney objected, saying that the state was just rehashing testimony on direct and that the questions were completely outside the scope of his cross-examination. The prosecutor replied that there was a point that needed clarifying. The trial judge, expressly taking into account the age of the victim, allowed the prosecutor to quickly see if he could clarify the point. On redirect, the victim added that the appellant pulled down her pants in the living room.
This court has recognized that the scope and extent of redirect examination lie within the sound judicial discretion of the trial judge. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); see also A.R.E. Rule 611. In this matter, this court has recognized that the court’s discretion is very liberal. Allen v. State, 260 Ark. 466, 541 S.W.2d 675 (1976). The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters in his or her testimony which have been weakened, confused or obscured by cross-examination and to rebut the discrediting effect of any damaging statements or admissions or to correct any wrong impression that may have been created. See Id., Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). In addition, a judge under his discretionary power may permit the party to bring out on redirect examination some matter which is relevant to his case or defense and which through oversight he has failed to elicit on direct. E. Cleary, McCormick on Evidence § 32, (3d ed. 1984).
It is clear from the record that the eighty-eight-year-old victim was understandably reluctant to discuss the details of the attempted rape on direct examination, and the prosecutor struggled to get the evidence of the attempted rape before the jury. After the cross-examination of the victim by appellant’s attorney, the impression was left with the jury that if the appellant had been intending to rape the elderly victim as charged, he could have easily done so. Such an impression necessitated that the victim give more details of the impermissible and unlawful actions appellant imposed upon her. In addition, there was some confusion created by the victim’s statements as to how the appellant could have attempted to rape the victim when her pants were still on. In sum, the trial judge did not abuse his discretion in allowing the prosecutor’s redirect.
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Per Curiam.
The Committee on Professional Conduct unanimously recommends the disbarment of William Theodore Lewis, Jr., Arkansas Bar ID No. 64024, 1238 West Governor, Springfield, Illinois 62704, pursuant to a judgment of the Supreme Court of Illinois, dated October 10, 1990, Docket No. 69542. A copy of the Petition has been forwarded to Mr. Lewis by the Clerk of the Court under cover letter of May 29, 1991. No response has been filed.
Having before us a certified copy of the judgment of the Supreme Court of Illinois ordering the disbarment of William Theodore Lewis, Jr., and cognizant of the recommendation of the Committee and of Rule 7F, DISBARMENT RECIPROCAL, of the Rules Regulating Professional Conduct of Attorneys at Law, providing that upon presentation of a certified order of a corresponding disciplinary authority of another jurisdiction evidencing disbarment, the Committee “by summary proceeding shall cause a like sanction,” and having given notice of the filing of this petition, we find that William Theodore Lewis, Jr. should be, and he is hereby, disbarred from the practice of law in the State of Arkansas.
IT IS SO ORDERED. | [
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Robert H. Dudley, Justice.
The State seeks to have this interlocutory appeal decided pursuant to A.R.Cr.P. Rule 36.10. We dismiss the appeal for lack of jurisdiction.
On October 29, 1988, Latonya Harris, a deaf and mute sixteen-year-old school girl, was kidnapped from a school playground in Malvern and taken to some nearby woods where she was raped. In the course of the investigation the police took the blouse which the victim had been wearing and submitted it to the State Crime Laboratory for analysis. On it, the laboratory found a blood stain and a semen stain. On April 16, 1990, after a year and a half of detailed police work, appellee was arrested and charged with the crimes. He employed Dan Harmon as his attorney. At the time Harmon was a candidate for Prosecuting Attorney of the judicial district in which the crimes took place. In April 1990, with appellee’s consent, the police took a blood sample from him and, also by consent, submitted it to the Federal Bureau of Investigation for deoxyribonucleic acid (DNA) analysis and comparison with the stains found on the blouse. A part of the procedure for DNA analysis involves autoradiography, which is the recording of the radioactive material within the object being examined on a photographic plate, or radiograph.
In May 1990, appellee’s attorney became the nominee of the Democratic party for Prosecuting Attorney of the district. The nomination was tantamount to election, and thus, appellee’s attorney would be expected to assume the prosecutor’s office on January 1,1991. As a result, both the incumbent prosecutor and appellee’s attorney sought to have appellee’s trial concluded before January 1.
On August 2, 1990, the prosecutor anticipated that the DNA analysis would be completed in about two months and asked the trial court to set a trial date. Accordingly, appellee’s attorney employed an expert witness to compare the FBI laboratory’s DNA analysis with accepted scientific standards. On August 8, the trial court set November 2 as the discovery limitation date and set December 3 as the trial date. The trial court subsequently extended the discovery date to November 22. On November 13, the prosecutor received the result of the DNA analysis which provided “the probability of selecting an unrelated individual at random from the Caucasian population having a profile matching K-2 [appellee’s blood sample] is approximately one in six million.”
Appellee’s attorney asked the prosecutor for the autoradiographs in order for the appellee’s expert to examine them. Apparently, the FBI would not release the materials to the appellee’s expert until the prosecutor authorized it to do so. In the meantime, the trial court had rescheduled the trial for December 27. On December 14, the FBI sent by telefacsimile thirty (30) pages of the supporting information to the defense expert, but it was not fully legible and could not be interpreted. The expert stated that without legible material, and some additional related materials from the State Crime Laboratory, he could not be prepared to testify on December 27. As a result, on December 17, the appellee’s attorney filed a motion to suppress any evidence about the DNA analysis. On that same day the autoradiographs were supplied to the expert but that did not leave him with sufficient time to complete a critique of the FBI’s analysis. On December 18, the trial court held a hearing on the motion to suppress the results of the DNA analysis. The State asked for a continuance in preference to a suppression of the DNA analysis.
A continuance was not acceptable to appellee because his counsel, Harmon, was to assume the office of Prosecuting Attorney January 1,1991, and, consequently, would no longer be able to represent him. The trial court granted the motion to suppress and ordered the case to trial on December 27. The State gave notice of this interlocutory appeal pursuant to A.R.Cr.P. Rule 36.10. We do not reach the merits of the State’s appeal because the order from which it is brought is not appealable, a jurisdictional prerequisite which we raise. State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981).
The procedure for appeals by the State in criminal cases is governed by Rule 36.10. Prior to the adoption of the Arkansas Rules of Criminal Procedure, the State had no right to bring an interlocutory appeal. State v. Russell, supra. A.R.Cr.P. Rule 36.10 provides in pertinent part:
(a) An interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Rule 16.2 to suppress seized evidence or (2) suppresses a defendant’s confession.
(Emphasis added.) The Rule clearly limits the instances in which the State may bring an interlocutory appeal to the two (2) specified situations, neither of which is present here. An order suppressing a confession is clearly not involved; neither is an order granting a motion under Rule 16.2 to suppress seized evidence.
A.R.Cr.P. Rule 16.2 provides in pertinent part:
(a) Objection to the use of any evidence, on the grounds that it was illegally obtained, shall be made by a motion to suppress evidence. The phrase “objection to the use of any evidence, on the grounds that it was illegally obtained,” shall include but is not limited to evidence which:
[There follows a list of five (5) examples of illegally obtained evidence.]
(Emphasis added.) Here, the evidence at issue, a DNA test analysis, was not excluded because it was illegally obtained. Rather, the trial court excluded it because it determined that there was not enough time remaining before the scheduled trial for the expert defense witness to adequately evaluate the State’s evidence. In balancing the interests of the appellee against those of the State, the trial court determined that the appellee’s interest in having his case tried quickly and by the attorney of his choice outweighed the State’s interest in presenting the highly probative evidence. Thus, the exclusion of evidence was more closely akin to an exclusion under A.R.Cr.P. Rule 19.7, which provides that a trial court may prohibit the introduction of evidence if it was not properly provided in discovery.
Accordingly, the attempted interlocutory appeal is not brought pursuant to A.R.Cr.P. Rule 36.10, and we are without jurisdiction to hear this appeal.
Appeal dismissed. | [
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