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Humphreys, J.
This suit was brought to enjoin appellees from incumbering by mortgage the real estate in Pine Bluff known as the Merrill Institute, which was conveyed to them in trust-in 1889 by Joseph Merrill, and from incumbering and selling certain other income real estate devised to appellees about the same time to aid in the operation of the Merrill Institute. . In addition to the real estate conveyed and devised, Joseph Merrill gave appellees $20,000 in cash to build a three-story brick building on the lot conveyed for the use and occupancy of the institute; and it was provided in the deed that the building should be so constructed as to contain-on the ground floor two store rooms to be rented for business purposes, the rents and other income from any source to be used in. maintaining the institute building, the payment of taxes, procuring public lectures,- and payment of incidental expenses. The purposes of the trust were specified in the deed and will so as to include entertainment and educational instruction for the white people of Pine Bluff. Shortly after the execution of the instru ments, the trustees constructed a brick building three stories high, fifty feet wide, and one hundred and forty-four feet long on the lot conveyed with a lobby on the first floor instead of two rental stores as provided in the deed. The building has been used since that time by the white people of Pine Bluff for physical, moral and educational development, and the revenue derived from the rentals and operations of the institute have been sufficient until recent years to keep all the property in repair and maintain the trust. Although there is no deficit, the building is old and pretty well worn and needs remodeling and rehabilitation such as a new roof and other substantial and costly repairs, which cannot be made out of the net income. The trustees have decided to mortgage the property for $16,000 with which to make the improvements, so as to include two stores on the first floor for rental purposes, and will do so unless-enjoined. The deed and will both provide that the trustees shall have no power to sell and in any manner incumber the property.
The court found that conditions have so changed since the execution of the deed and will that the trustees may sell and mortgage the property to avoid the failure of the trust, and dismissed the complaint of appellant, from which is this appeal.
In thus finding and decreeing, the chancery court overlooked the positive prohibition- or inhibition in the deed and will that the trustees should not sell or incumber the property. It was clearly the intention of the donor to prevent any incumbrance being placed upon the property, and to decree otherwise would be thwarting his intention. The trustees took possession of the property subject to all the conditions and restrictions or prohibitions contained in the instruments and cannot be allowed to violate or ignore them. This is a charitable trust, and, concerning such a trust, this court said in the case of Morrison v. Boyd, 110 Ark. 468, 162 S. W. 69, (quoting syllabi 4 and 5) that:
“The jurisdiction of courts of equity to supervise the execution of a charitable trust created by a will does not include the power to alter the terms of the trust, nor to sanction a diversion of any portion of the trust estate.
‘ ‘Where a charitable trust is created by a will, it is dependent upon the terms of the will for its existence, and that instrument is the sole measure of the power of those who are called upon to execute the trust, whether the trustees themselves or a court of equity in the exercise of a superintending- control, and a court of equity has no authority to exercise any greater powers. ’ ’
The case of McCarroll v. Grand Lodge I. O. O. F., 154 Ark. 376, 243 S. W. 870, reiied upon by appellees in support of the decree of the chancery court, is not in point and has no application to the facts in the instant case. The instrument creating the trust in that case contained no restrictions or prohibitions against selling or incumbering- the property devised. The eg pres doctrine — the doctrine of nearness or approximation — cannot be invoked or applied in the execution of a trust which prohibits in express words the doing of the thing the trustees are attempting to do. In the instant case, the trustees are attempting to incumber a part of the property and sell and incumber the other part, which the donor expressly prohibited them from doing- in executing- the trust.
On account of the error- indicated, the decree is reversed, and the cause is remanded with directions to permanently enjoin the trustees from, selling- or incumbering any or all of said property.
Smith and McHanby, JJ., dissent. | [
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McHaney, J.
On the 28th day of March, 1934, appellant, O. P. Reed, entered into a written agreement with appellee whereby he leased to appellee during the months of April to December, inclusive, 1934, his ice plant in'the town of Rison, consisting of the west twenty-five feet of lot 4 and all of lot 5 in block 9 in said town and all the buildings, machinery and fixtures thereon, for the sum of $2,000 to be paid in monthly installments beginning May 1, and ending September 1,1934. The contract further provided for an option for the appellee to buy the property for the sum of $5,000, of which the $2,000 paid as rent was to be a credit thereon, and the balance of $3,000 to be paid in two equal installments of $1,500 each on October 1, 1935 and 1936. The option to buy should be made before the 1st day of January, 1935, and the deferred installments- of purchase price- bore interest at. 8 per cent, per annum. The contract further provides:
“Asa part of said machinery and fixtures and buildings is now on that part of lot 4, or east 15 feet of said lot, the same is rented to said party of second part, and, in case he decides to buy the balance of said property as aforesaid, then he is to have the said east 15 feet of said lot 4 in block 9 for the sum of $50 to be paid in icé at the price which it is sold to others at that time.”
The rent price was paid and accepted by appellant and appellee exercised the option to purchase within the time specified and offered to carry out the contract according to its terms, demanded of appellant that he comply with the contract by executing and delivering to him a. deed for the property leased and for the east .15 feet of said lot 4. Appellant refused to do so, and appellee brought suit for specific performance. There was a decree in appellee’s favor requiring appellant to convey by warranty deed.
Appellant defended on the ground that his wife did not join in the lease contract and could not be compelled to relinquish her dower interest. The court took this matter into consideration, determined the value of her dower interest and abated the purchase price to the ex tent thereof. Appellee had two remedies in the case; he could sue as for breach or specific performance. He elected the latter remedy. He was therefore entitled to have the contract performed to the extent the vendor could perform it and to have an abatement out of the purchase price for any deficiency in title on account of the outstanding dower interest. This court has many times so decided. Hirschman v. Forehand, 114 Ark. 436, 170 S. W. 98.
It was agreed at the trial that the Bank of Rison held a mortgage on the property in litigation in the amount of $447. In the decree of the court, appellee was given the right to pay said indebtedness and take credit on the deferred payment. This he had a right to do.
As to the east 15 feet of lot 4, it developed that appellant did not own said parcel of land. It is contended by appellant that he should not be compelled to convey property that he did not own. It is insisted by appellee that appellant was the agent of the owner, one W. S. Moody, who by his acquiescence has estopped himself to deny Reed’s authority as his agent. The facts show that a part of the buildings is located on the fifteen feet. Appellant has exercised acts of ownership over said lot, leased it to appellee and otherwise dealt with it as his own. It may be that he had no authority to sell said lot. We are unwilling to say that he did have the right to sell and convey title thereto. He has been paid $37.50 of the purchase price and the additional $12.50 has been deposited in the registry of the court. Appellant should be required either to obtain the title to the property from Moody and convey it to appellee, or, if unable to do so, the purchase price should be abated by the value of the property to which the title fails.
The case will be reversed, and the cause remanded for further proceedings in accordance with this opinion at the cost of appellant. | [
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Butler, J.
J. J. New brought suit for malicious prosecution against John Gazzola, the appellant, and J. L. Woodfin. At the conclusion of the testimony the trial court directed a verdict in favor of defendant Wood-fin and submitted the case to the jury against Gazzola. The jury found in favor of the plaintiff in the sum of $200, actual damages, and $1,800, punitive damages, upon which a judgment was entered. To reverse that judgment, this appeal is prosecuted.
Appellee has moved to dismiss the appeal on the ground that appellant has failed to comply with the provisions of § 1314, Crawford & Moses’ Digest. The applicable part of the section provides that “where the verdict or decision is rendered within three days of the expiration or adjournment of the term a motion for a new trial with alternative prayer for appeal in case said motion be overruled may be presented upon reasonable notice to the opposing party or his attorney of record to the judge or chancellor or his successor of the district in which said verdict or decision was rendered at any time within 30 days from the date of the verdict or decision, and such judge or chancellor, shall pass upon said motion and indorse his ruling thereon upon the back of the motion either granting the motion or overruling the same; and if said motion be overruled he shall also indorse upon said motion his order granting appeal to the Supreme Court and his further order specifying a reasonable time allowed in said cause for filing a bill of exceptions,” etc.
The verdict was rendered on March 19, 1934, the last day of the term. Motion for a new trial was filed in the office of the clerk of the court on April 16, 1935, without any indorsement of the judge relating to its presentation or his action thereon. On the 29th day of April, appellant’s attorney withdrew with the permission of the clerk the motion and returned it to the clerk for filing on that day. When returned it bore this indorsement :
“Lonoke, Arkansas, 4/29/35.
“This motion for a new trial in the case of New v. Gazzola was presented to the court at Clarendon, Arkansas, April 15, 1935, and taken under advisement. On this day, said motion .is overruled. The defendant ex cepts to the ruling- of the court. Defendant prays an appeal to the Supreme Court, which is granted and 60 days given to file bill of exceptions.
“W. J. Waggoner, Circuit Judge.”
“Upon return of the motion, the clerk indorsed the following filing:
“The above order of the circuit judge was filed on the 30th day of April, 1935.
“Leo H. Rogers, Clerk.”
From this indorsement it appears that the motion was presented to the judge within the 30-day period provided by .statute, and we must presume that for.a sufficient reason it was taken under advisement until the 29th day of April, when the motion was overruled and the proper indorsements of the judge’s action with.the required orders indorsed thereon. The action of the court thus appears to have been beyond the 30-day period.
The specific contentions made for dismissal of the appeal are that no notice was given to the opposite party or his attorney. The provision for notice should not be disregarded, for in some cases it might be a fatal omission; the reason for the notice is, that the opposing party may have an opportunity to hear and resist the allowance thereon. Where, as in this case, the court ruled in favor of the opposing party, by denying the motion, he is not prejudiced by the failure of appellant to give the notice.
It is next contended that the notice was not in proper form when it was filed on April 16, in that it did not have the rulings of the judge indorsed thereon. Under the rule of practice laid down by the statute, the motion must first be presented to the judge and after the latter has indorsed his action with respect to granting or overruling the same, his grant of appeal and extension of time for filing bill of exceptions, the motion is then to be filed with the clerk. Therefore the filing on April 16, without the judge’s indorsement was premature.
The further contention is made that the court could not extend the time for filing the motion by taking the same under advisement, and that, after the expiration of the 30 days, the judge had ho authority to rule upon the motion, grant the appeal or fix the time for filing-the bill of exceptions. In support of this, contention we are cited the case Spivey v. Spivey, 149 Ark. 102, 231 S. W. 559. There is an expression in that opinion which, seems to sustain the position taken by appellant, which is as follows:
“The statute requires the motion for a new trial to be presented to the court for its action and be acted upon by the court within 30 days from the date of the verdict or decision.” An examination of. that case discloses, however, that the time in which “the court acted” was not an issue in the case, and that the words “be acted upon by the court” was not necessary for the decision of the question presented. The judgment under consideration was rendered on August 25, and within three days before the adjournment of court. On the date on which the court adjourned which was the 26th day of August, a motion for a new trial was filed in the office of the clerk of the court, but was not presented to the judge until after the expiration, of the 30-day period provided. The judge overruled the motion, but did not indorse on it an order granting an appeal and naming the time in which bill of exceptions might be filed. Therefore two express requirements of the statute were not obeyed, and the motion was not sufficient to bring the bill of exceptions into the record for review. It therefore appears that the expression “and be acted on by the court” was dictum and must be regarded as “a slip of the pen,”'for the statute does not provide for any certain time in which the motion shall be filed in the office of the clerk, or when it shall be acted upon by the judge. Therefore the language of the court last above quoted is not justified by any provision of the statute. Cases may well be supposed Avhere it would not be practicable for the judge to pass' upon the motion Avithin 30 days, and as noted the statute does not so provide. Under circumstances Avhich might justify it, the motion, might be presented on the last day allowed, and the errors assigned might be such as would require the taking of testimony in order that the judge be properly advised before filing thereon. This appears a sufficient reason for the silence of the statute as to when the motion must be acted upon by the court.
The premature filing of the motion, while erroneous, was not fatal to the appeal for the reason that all that is required is that it be filed when the judge has indorsed his action thereon.
We conclude therefore that the proceedings on the motion were in substantial compliance with the statute, and the motion to dismiss is denied.
Appellant contends that the complaint shows on its face the-cause of action barred by the statute of limitations, and that its defense of set-off was exclusively cognizable in a court of equity, and the trial court erred in its refusal to transfer the cause and proceedings to trial of the issues over his objection. We think these contentions are without merit, but find it unnecessary to discuss same for reasons which hereinafter appear.
The serious contention presented is that the appellee in the court below failed to establish the fact that the prosecution was malicious and without probable cause. In an action for malicious prosecution the finding of an indictment by the grand jury is prima facie evidence of probable cause, and, while not conclusive of that fact, the burden is upon the plaintiff to prove both want of probable cause and malice. Wells v. Parker, 76 Ark. 41, 88 S. W. 602; Casey v. Dorr, 94 Ark. 433, 127 S. W. 708.
It is essential in an action for malicious prosecution that the plaintiff show not only want of probable cause but also malice on the part of the defendant. These two elements must concur in order to constitute malicious prosecution. Price v. Morris, 122 Ark. 382, 183 S. W. 180; Foster v. Pitts, 63 Ark. 387, 38 S. W. 1114; McIntosh v. Bullard, 95 Ark. 227, 129 S. W. 85.
The testimony relied on to establish these essential elements is that of J. J. New and his brother, Walter New, and Clyde Erby. The evidence given before the grand jury resulting in the procurement of the indictment was that of Mr. Woodfin who stated:
“J. J. New lived on Mr. Gazzola’s place and gave him a mortgage on a number of mules, and it turned out in tlie fall, when he -went to close out the mortgage, a brother of J. J. New claimed that two of the mules didn’t belong to him, and that they were his, and he wouldn’t give the mules up, and Mr. Gazzola wants to indict him for giving a mortgage on mules that didn’t belong to him. He did not send the sheriff to take possession of the mules, but he claimed the mules belonged to J. J. New. J. J. New’s brother’s name is Walter New, and in the fall of the year Walter claimed that he never knew his brother had given a mortgage on the mules. J. J. New had given the old man four mules and then Walter claimed these other two. J. J. New claimed they were his brother’s mules, and he didn’t tell his brother about it until that fall. The debt between them has 'been settled except these mules. ”
This was all the testimony considered by the jury. Mr. Gazzola had appeared in the jury room, but he spoke such broken English that he could not make himself understood.
Subsequent to the return of the indictment, New was tried and acquitted and afterward brought this action. At the trial he testified regarding a settlement he had had with Mr. Gazzola by which he was to move from Gazzola’s farm and be given four mules and turn over to Gazzola all of the property mentioned in two chattel mortgages, which he had given him during the year 1929. The first of these mortgages was executed on the 21st. day of March, 1929, and another on June 26, following. Witness testified that at the time this agreement was made Mr. Woodfin listed the chattels described in the two mortgages; (the two mules in controversy were two of those named in the mortgage of June 26, 1929); that he never made any such statement as that attributed to him by Woodfin in his testimony before the grand jury; that he had never told Mr. Gazzola or Woodfin that he had sold the two mules to his brother, and had never spoken to Mr. Gazzola since the day of the settlement. Witness stated that in May, 1.930, he had a conversation with Mr. Woodfin, but did not tell him that he had sold the mules to his brother. As to moving off Gazzola’s farm, witness was asked: “What did you do with the balance of the stuff — you left it on the place?” and he answered: “Yes, sir.”
Walter New testified that he was present when Gazzola and his brother, J. J. New, had their settlement, and that he heard the terms, that he had had the two mules in controversy in his possession since the spring of 1929 when he had come to Gazzola’s farm to make a crop with his brother; that during the latter part of May or the first of June of 1930 Gazzola and Mr. Woodfin made a demand upon him for the mules in his possession, including the two mules in controversy, and that he refused to give up these two mules. In explaining this he said: “I reasoned with them and felt like I was entitled to some consideration. I told them there was a consideration and a considerable amount that should come to me out of that crop. I thought that I was due some consideration before I turned the mules over to them.” Previous to this, in answer to the question, “Do you know anything about the two mules that are involved in this matter between Mr. New and Mr. Gazzola and Mr. Wood-fin?” Witness had stated: “We were farming and my brother turned two mules over to me to farm with. We made a verbal trade that in the event I paid for the mules that fall I could keep them. I had them in my possession * * * and kept them * * * until they came up there after them and I refused to release them. ” Witness stated that at the time J. J. New made the verbal trade with him that J. J. New informed him that the mules were mortgaged to Gazzola, and, in answer to the question, “You wouldn’t turn those mules over to anyone until you had a settlement with your brother?” he answered, “No — not until I got a settlement.” Witness was asked, “You explained to them that you had bought the mules from your brother and that’s why you were trying to hold them?” He answered, “It was understood that we had a conditional trade.” At no place in his testimony, however, does it appear that he frankly disclosed to Gazzola that J. J. New had told him when they had the verbal trade that the mules were under mortgage to Gazzola.
J. J. New testified that tlie two mules in controversy, at- the time of the settlement with Mr. Gazzola belonged to witness subject to Gazzola’s mortgage. Later on he said: “I Avas going to sell them provided that he (Walter) paid out subject to the mortgage Mr. Gazzola held.” Witness was present when Walter was testifying and admitted that his testimony Avas truthful as to the sale of the two mules. It does not appear from the evidence given by J. J. New that he disclosed to Gazzola or Wood-fin the trade betAveen himself and Walter NeAV and explained to them that transaction.
The Avitness, Clyde Erby, stated in effect that some time in 1928 or 1929 he went to Mr. Gazzola and told him that he Avould like to handle his (Gazzola’s) place for him, and “he kind’o bleAv off and said that he didn’t know AAdiether he wanted to let it go or not; that Jim (J. J. New) had stolen everything he had over there and I turned around and walked out.”
The following facts are undisputed: In 1926 J. J. New rented Gazzola’s farm and moved upon it. The result of his operations on the farm was that in July, 1928, he Avas indebted to Gazzola in the sum of $6,955.44 and during the year 1929 Gazzola furnished him $9,622.87 in addition. During that year NeAV was farming some land belonging to a Mr. ErAvin, and, upon certain representations made by NeAV, Gazzola advanced a considerable sum for the operation of that farm. Later he discovered that these representations were false, and, as he Avas already dissatisfied Avith NeAV as a tenant, he decided that that year Avould terminate their relation as landlord and tenant. At the close of that season’s business the account of New with Gazzola, after giving him all credit, left a balance due Gazzola of $8,588.88, exclusiA^e of interest and also of a $2,000 item NeAV OAved Gazzola for rent, making an aggregate of more than $10,000 due Gazzola by New. Gazzola inquired of New in the latter part of 1929 if he had found a place to move, and New claimed that under his contract he Avas entitled to remain on the farm through the year 1930 and indicated that he. was going to stay on. He finally made the proposition to Gazzola that if the latter Avould discharge him of indebted ness and give him four mules he would move off the place and surrender to Gazzola all the chattels included in the two mortgages made in the year 1929. After consulting his friends, Gazzola finally agreed to New’s demands and settled on New’s terms giving him the four mules, and at that time a Mr. Woodfin, who was Gazzola’s agent, made a list of the properties, and later on in endeavoring to gain possession of them, Gazzola found that Walter New had possession of two of the mules which were included in the mortgage of June 26, 1929. Gazzola demanded these mules of Walter New who refused to surrender them, claiming that he was entitled to retain them under some kind of a trade made with his brother, J. J. New, and Gazzola never did get these two mules.
Both J. J. New and Walter New claimed that Walter got possession of these mules in the spring of 1929 under the verbal agreement as testified to by Walter New. If this is true, J. J. New was not the owner of the mules at the time he mortgaged them to Gazzola on June 26, following.
A probable cause is that state of case where, after ordinary care in ascertaining the facts, one has reasonable grounds for believing that the statements made by him with relation thereto are true, or, as defined by this court in Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, “Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.” Applying this rule to the admissions made by the News and the undisputed facts which have been narrated, we conclude that the testimony fails to show want of probable cause within the meaning of the definition given. One who sues for malicious prosecution must establish not only that he was innocent of the charge but also that there was no probable cause for such-prosecution, and where the facts relied upon to constitute such cause are undisputed, the question is one of law for the court to determine and should not be submitted to the jury. St. L. I. M. & So. Ry. Co. v. Tyus, 96 Ark. 325, 131 S. W. 682; Whipple v. Gorsuch, 82 Ark. 252, 101 S. W. 735.
An application of these principles to the facts of this record forces the conclusion that all reasonable minds must agree that Gazzola had cause for entertaining an honest and strong suspicion that appellee was guilty of the crime charged. The facts of this case are no stronger for the appellee than those in the case of Keeby v. Stifft, 145 Ark. 8, 224 S. W. 396, where this court, on appeal, upheld the action of the trial court in directing a verdict for the defendant.
Judgment is • reversed, and as the facts appear to have been fully developed the case is dismissed. | [
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Johnson, C. J.
To compensate an alleged personal injury, this suit was instituted by appellee against appellant in the Phillips County Circuit Court. The pertinent allegations were:
“That he is a resident of Phillips County, Arkansas, and that the defendant is a foreign corporation, authorized to do business in the State of Arkansas, and is engaged in the business of bottling and selling in the State of Arkansas certain beverages, among which is bottled beer known as Budweiser beer.
“That on or about the second day of August, 1934, the plaintiff purchased in due course of trade, at retail, a bottle of Budweiser beer, manufactured and sold by the defendant; that in drinking a portion of the beer contained in said bottle, plaintiff swallowed a foreign substance and immediately became nauseated and extremely ill; he then examined the contents of said bottle and discovered that it contained one moth and several small flies; that, as a result of drinking a portion of the contents of said bottle, plaintiff became seriously ill; was compelled to have the attention of a physician and suffered and continues to suffer extreme pain and mental anguish; that he was seized with spells of vomiting which lasted for several hours.
“Plaintiff further alleges that said bottle of beer had been manufactured and negligently sealed by said corporation with said moth and flies in said bottle; that said bottle was delivered to the plaintiff in due course of trade, and that the defendant, when it bottled said beer, well knew that it was to be offered for sale to the general public. ’ ’
The prayer was for judgment in the sum of $2,975 and costs.
By answer appellant denied the material allegations of the complaint thus filed and affirmatively pleaded contributory negligence in bar of appellee’s right of recovery.
The testimony adduced when viewed in the light most favorable to appellee, as we are required to do under repeated decisions of this court, was to the following effect: That on the afternoon of August 2, 1934, he purchased from a certain beverage vendor in the city of Helena a bottle of “Budweiser beer” which was manufactured by appellant for human consumption. The vendor removed the cap from the bottle, and appellee immediately took two or three swallows of its contents; that after two or three minutes appellee took another swallow of the contents of the bottle and swallowed some foreign substance which made appellee violently sick; that, upon examination of the remaining contents of the bottle of beer, it was found to contain a decomposed moth and two or three small flies; that the bottle and remaining contents thereof were immediately resealed by appellee and safely kept until the trial of this case when and where the contents were exhibited to the jury. The testimony in behalf of appellee in reference to his injuries and the extent thereof will be omitted because no contention is urged in this behalf or about the amount of the award if liability exists.
The testimony adduced on behalf of appellant was to the effect that “Budweiser beer” was manufactured under the most approved and modem conditions, and that it was a physical impossibility for foreign substances to find entrance into such bottle of beverage and that the contents contained carbon dioxide gas which is a germicide and therefore a preservative and that decomposition was impossible in its presence.
The court among other instructions gave to the jury in charge appellee’s request No. 1 as follows: “The jury is instructed that it is the duty of the manufacturers of beverages to be offered for sale to the public to use such care in the manufacture, preparation and bottling- of such beverages as will render them safe for human consumption, and that, if such manufacturers negligently permit foreign substances to be bottled in such beverages, and a purchaser is injured by drinking a bottle of such beverage containing such foreign substance, and on account of such foreign substance, the man ufacturer would be liable to such purchaser for such negligence, ’ ’ — of which complaint is urged, and gave appellant’s request No. 6 as follows:
“You are instructed that the law only requires that the defendant, in the manufacturing of its beer, exercise ordinary care, and ordinary care as herein used means the exercise of such care and caution a.s would be exercised by an ordinary prudent person under similar circumstances and like conditions, and if you find from the evidence in this case that the defendant, AnheuserBusch, Inc.., did exercise ordinary care in the manufacturing of its beer and in the manufacture thereof exercised every precaution known to the science of brewing beer, then the defendant would not be guilty of negligence and your verdict should be for the defendant.”
The jury returned a verdict in favor of appellee for the sum of $250, and this appeal comes from the judgment entered thereon.
Appellant’s first contention for reversal is that the court erred in giving to the jury appellee’s requested instruction No. 1, heretofore quoted,- and the contention is that said request makes appellant an insurer of the contents of the bottle of beer. This contention is grounded upon the argument that the use of the words “use such care in the manufacture, preparation and bottling of such beverage as will render them safe for human consumption, etc.,” makes it an insurer. The words “use such care” has direct reference to the degree of care required in other instructions given, and when appellant’s request No. -6, heretofore' quoted, which was given in charge, is read in connection with appellee’s request No. 1, there is no uncertainty that appellant .was only required to use ordinary care in the manufacture of its beverag*es. In other words, when the two instructions are read together, they state the law as a harmonious whole, and no conflict appears.
Appellant next urges that the court erred in permitting the remaining contents of the bottle of beer to be exhibited to the jury'as testimony. This contention is based upon remoteness of time of exhibition plus the testimony to the effect that carbon dioxide gas is a pre servative, and that, when the bottle of beer was opened, this gas escaped therefrom, thereby permitting the contents of the bottle to change or any foreign substance contained therein to decompose. Appellee testified that the remaining contents, of the bottle of beer were in the same condition when offered in testimony that it was when first opened and a part of its contents consumed. This testimony made the contents of the bottle prima facie admissible in testimony (see 10 R. C. L., § 176, title, Evidence), and after its admission the weight to be given such testimony, was for the .jury. No error was therefore committed in the admission of this testimony. Finally, appellant contends that the verdict of the jury was based on speculation and conjecture, and therefore should not be permitted to stand. Great Atlantic & Pacific Tea Co. v. Gwilliams, 189 Ark. 1037, 76 S. W. (2d) 65, is cited in support of this contention. In that case we stated the law as follows: ‘ ‘ There must be proof tending to show the negligence alleged before thorfe is a recovery. Negligence, like fraud, is not presumed, but it must be proved, or, at least, facts must be shown from which it may be inferred, ’ ’ — but such is not the state of the testimony presented in this record. Practically, if not all, the witnesses agree that there was some foreign substance in this bottle of beer immediately after it was opened for the purpose of consumption. Therefore it was peculiarly a question of fact for the jury’s determination whether such foreign substance entered the bottle through the carelessness and negligence of appellant in its manufacture, and the evidence is amply sufficient to support the jury’s finding that it did and that appellee was injured thereby. •
No error appearing, the judgment is affirmed. | [
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Johnson, C. J.
Appellant and appellee, while temporarily residing- in Hot Springs in August, 1934, were married in conformity to the laws of this State. A few days subsequent thereto appellant instituted this annulment proceeding in the Garland Chancery Court in which he alleged that, at the time of the marriage, he was suffering from amnesia which rendered him incapable of contracting a valid marriage. Subsequently, he filed an amendment to his complaint in which he alleged that, at the time of his marriage to appellee in Arkansas, he had a living wife — not divorced, living in the State of Florida. Appellee answered the complaint thus filed, and denied the material allegations thereof and amendment thereto, and also prayed temporary alimony, suit money and attorneys’ fees.
The chancellor heard testimony upon appellee’s prayer for temporary alimony, suit money and attorney’s fees, and made and entered an order allowing her the sum of $100 per month beginning September, 1934, and continuing until the suit was finally terminated as temporary alimony, and allowed $200 attorneys’ fees and $25 suit money.
The testimony adduced on behalf of appellee, tended to show that she had no property in her own right, and no funds with which to defend the suit instituted by appellant, and that she contracted her marriage with appellant in good faith, and without knowledge of any existing disability in him to so contract marriage. Appellant’s affidavit was filed in support of his contention in which he swore that, at the time of his marriage to appellee in Arkansas, he had a living wife, not divorced, residing in the State of Florida.
This appeal asserts lack of power in the chancery court to make the order of allowances referred to. This contention is grounded upon the proposition that since the uncontradicted testimony of appellant shows that he had a living wife, not divorced, residing in the State of Florida at the time of his marriage to appellee in Arkansas, the Arkansas marriage contract is void from its inception, and no marital rights can be ■ predicated thereon.
In Gossett v. Gossett, 112 Ark. 47, 164 S. W. 759, we held that, where either party to a marriage contract had a living husband or wife, not divorced at the time of the subsequent marriage contract, the subsequent marriage contract was void and not merely voidable. It follows from this that appellant’s contention here urged must be decided upon the basis that his Arkansas marriage contract is void if it 'be established .that appellant had a living wife, not divorced at the time of the consummation thereof. Appellant cites and relies upon as decisive of his contention Fountain v. Fountain, 80 Ark. 481, 97 S. W. 656. This case has no application to the facts here presented. In the case referred to, the wife brought suit for divorce, and the husband by answer denied the validity of the marriage contract. Proof was heard by the lower court on the preliminary question of temporary alimony and attorneys’ fees, and we held, as the lower court had, that the proof was sufficient to warrant the allowance and affirm the order in this behalf.
Morgan v. Morgan, 149 Ga. 625, 97 S. E. 675, 4 A. L. R. 925, is also cited and relied upon by appellant as supporting his contention. This case arose between a husband who was under statutory disability of minority at the time of his marriage contract and his wife who sought temporary alimony and attorneys’ fees. The court held the wife not entitled to such allowances pending- the suit. Conceding this case to be rightly decided, it has no application to the facts of this case. There the minor husband had no capacity to contract marriage, whereas in the instant case the husband has no impediment save that created by his own act. Moreover, Morgan v. Morgan, supra, is not supported’by the weight of authority on this subject.
I R. C. L., § 66, title “Alimony,” states the general rule as follows: “Where an annulment of the marriage is sought by the husband, who admits that a ceremonial marriage took place, but claims it to have been illegal and void, the wife is entitled to a reasonable alloAvance to enable her to make a proper defense to the suit, provided she denies on oath the allegations on which such invalidity is based.”
Bishop on Marriage, .Divorce and Separation, vol. 2, § 925, states the general rule as foIIoavs : “If parties enter upon cohabitation under a marriage Avhich in fact is void, a fortiori under a voidable one, this reasoning shows that, upon a suit between them to set it aside and declare it void, there may be temporary alimony. * * * Not perhaps following this form of reasoning, but in some form conducing to the same result, the courts have generally held the mere de facto marriage to be adequate for temporary alimony and suit money in the nullity suit, whether on the allegation that the marriage Avas void or that it Avas voidable.”
Keezer, Marriage and Divorce, 2d ed., § 711, et seq., states the general rule as announced by Bishop, supra, and cites authorities throughout the United States in support thereof. The general rule deducible from the great weight of American authority is that, when a de facto marriage is admitted or established, and the wife is otherwise entitled to temporary alimony, suit money and attorney’s fees, such alloAvances may be made pending the suit, irrespective of the speculative outcome of such suit. See annotations, 4 A. L. R., page 926, 26 L. R. A. (N. S.) page 500, in addition to the authorities cited, supra.
Appellant not only admits a de facto marriage to appellee, but invokes the aid of a court to destroy its prima facie validity, and we know of no sound rule of laAV or reason Avhich denies to appellee the ordinary right of temporary alimony, suit money and attorneys’ fees while defending such litigation.
No error appearing, the decree is affirmed. | [
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Humphreys, J.
Appellants, heirs of Joshua Jenkins, deceased, brought suit against appellees, also heirs of deceased, in the chancery court of Conway County to partition a tract of land in Conway County consisting of 172. acres between them according to their several interests therein, alleging that Joshua Jenkins was the owner of all of said land at the time ihe died.
Appellees filed an answer admitting- that all the heirs owned the several interests alleged in 152 acres of said tract, but alleged that they owned an undivided one-half interest in the SE% of the NE14, section 31, township 8 north, range 14 west, known as the ‘ ‘ gin 40, ’ ’ deraigning title thereto by conveyance from A. C. New, widow of N. B. New, to Robert Jenkins and his father, Joshua Jenkins, in 1904, wihich deed of conveyance is of record in Book 41 at page 511 of the Records of Conway County, specifically referring to said book and page and making same a part of the answer.
Upon a hearing- of the cause, the trial court found and decreed an undivided one-half interest in the “gin 40” to appellees, from which finding and decree an appeal has been duly prosecuted to this court.
Relative to the ownership of the “gin 40,” the record reflects as follows:
On December 23, 1902, J. J. Jenkins and George Jenkins entered into a contract with N. B. New to purchase the “gin 40” from N. B. New for $200. J.. J, Jenkins concluded he did not want to buy an interest in said 40, so Joshua, his father, took his place and paid New for same and received a deed in 1904 from A. C. New, widow of N. B. New, conveying said 40 to himself and his son, Robert L. Jenkins, who was a party to the original contract of purchase. Joshua Jenkins paid the taxes, occupied and managed all the lands, including said “gin 40, ’ ’ until he died in 1912, after which time all the heirs occupied any portion of it they chose, moving from one part of it to another part thereof 'from year to year which was not occupied and, cultivated by another one of them. No one of them occupied any particular portion thereof to the exclusion of the others for any definite length of time claiming title thereto. The taxes were paid on the whole tract by various heirs after the death of Joshua Jenkins. Only two acres of the “gin 40” were in cultivation, and it had been cultivated by appellees two or three years before the suit was instituted, and by their immediate ancestor, Robert L. Jenkins, before he died. In the year 1929, appellants, or some one of them had the A. C. New deed recorded. No effort was made by any or all of them to have the deed reformed. All of the heirs joined in oil leases to said lands.
Appellants contend for a reversal of the decree in awarding appellees an undivided one-half interest in the “gin 40.” We think not. The deed from A. C. New to Joshua Jenkins and Robert Jenkins conveyed an undivided one-half interest therein to each of them. Appellants approved and confirmed the recitals of the deed by safely keeping and recording same and by allowing Robert and his descendants to occupy and cultivate it without attorning to them. Appellants argue, however, that they are not estopped to question the recitals in the deed, alleging that the deed is void because A. C. New had no title to the land and had no right to convey same to Joshua and Robert pursuant to a contract made between her husband, N. B. New, and them. The deed recites that she had title thereto and the right to sell same. It may be that she acquired title thereto by will or deed. Her husband could have deeded or willed it to her. There is nothing in the record to show how she acquired title thereto. It is also argued that their ancestor, Joshua Jenkins, acquired title to same as against Robert by adverse possession, but the evidence does not show that he claimed title as against Robert during the time he occupied it and paid the taxes on it. His possession and payment of taxes is not conclusive that he did not make a gift of it to Robert. He had a perfect right to give it to him. Appellants ’ contention that they acquired title thereto from Robert as well as appellees by adverse possession is not supported by the evidence. According to the decided weight of the testimony, no one of the heirs held any of the lands adversely to the other. This court said in the case of Singer v. Naron, 99 Ark. 446, 138 S. W. 958, that:
“In order for the possession of a tenant in common to he adverse to that of his co-tenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed.”
No error appearing, the decree is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment condemning a right-of-way or an extension of State Highway No. 25 through six and one-half acres of land belonging to appellant adjacent to the city of Paragould in Greene County, under § 5249 of Crawford & Moses’ Digest, which reads as follows: “The county court shall have poAver to' open new roads, to make such changes on old roads as they may deem necessary and proper, and to classify the roads and bridges in their. respective counties for the purpose of this act, and when the change shall be made or any neAV road opened, the same shall be located on section lines as nearly as may be, taking into consideration the convenience of the public travel, and first class roads hereafter established or opened shall not be less than fifty feet wide, and an appropriate order of the county court shall be made and entered of record therefor. If the owner of the land over which any road shall hereafter be so laid ont. by the court shall refuse to give a right-of-way therefor, or to agree upon the damages therefor, then such owner shall have the right to present his claim to the county court, duly verified, for such damages as he may claim by reason of said road béing laid out on his land; and, if he is not satisfied with the amount allowed him by the court, he shall have the right of appeal as now provided by laAV from judgments of the county court; provided, however, no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road; provided, further, that when such order is made and entered of record laying out or changing any road, the county court or the judge thereof shall have the right to enter upon the lands of such owner and proceed with the construction of such road. Provided further, all damages allowed under this act shall be paid out of any funds appropriated for roads and bridges, and, if none such, then to be paid out of the general revenue fund of the county.”
The judgment of condemnation Avas rendered by the county court of said county on the 7th day of June, 1934, in Avhich appellant was allowed one year from that date to file a claim for dainages in said court. An appeal was taken from the county court, and the validity thereof attacked on the ground that the appropriations of the-county for the fiscal year of 1934 for other purposes exceeded the revenues assessed by $7,605.73, leaving nothing with which to pay appellant any damages. . On the trial in tlie circuit court, appellant introduced proof tending to show that the revenue to he derived from all sources in the fiscal year of 1934 had been appropriated for other purposes, leaving nothing with which to pay his claim. Under this proof, the circuit court dismissed appellant’s appeal, and sustained the judgment of condemnation rendered by the county court, from which is this appeal.
It is contended by appellant that the trial court erred because the condemnation judgment offered him no assurance that he would receive just compensation for the land taken and appropriated by the county for public use. The judgment amply protected him by giving him one year after taking his land to file his claim for damages. The statute under which it was taken, provides that his damages may be paid out of the general revenue of the county or out of the road and bridge fund. Proof that these funds had been exhausted for the fiscal year of 1934 would and could not prevent him from ultimately collecting his damages out of these or other available funds. He was given until June 7, 1935, to file his claim, and it follows that he would have such further time as necessary to litigate and establish it. For aught that appears in this record, he has not filed a claim, much less established it. Until these two things are done, it is not necessary for the county, in arranging its budget, to include therein his unestablished claim. It may be that his betterments equaled or exceeded his damages. In other words, he may not recover a judgment for any substantial amount. It would have been impossible at the time the land was taken or judgment rendered for the court to determine the amount of damages, and set aside any particular sum and segregate it from either fund to pay his damages. In taking the right-of-way, the county pledged its good faith and credit to pay appellant for it, but not necessarily out of the révenués collected in the fiscal year of 1934. It will be time enough for the county to include in its budget the amount of damages when, and if, appellant recovers a judgment.
■ There is no way for the county to escape paying such judgment as appellant may recover if he files and prose cutes his claim, as article 2, § 22, of our Constitution reads as follows.: “The right of property is before-and higher than any constitutional sanction, and private property ' shall not be taken, appropriated or damaged for’ public use without just compensation therefor.”
No error appearing, the judgment is affirmed.
Smith, J., dissents; Mehaeey and Baker, J J., absent and not participating. | [
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Mehaffy, J.
The appellee began this action in the Jackson Circuit Court to recover damages alleged to have been caused by drinking Coca-Cola that had a fly and other foreign substance in it. She drank a little of it, and it made her sick.
The appellant filed its answer denying all the material allegations in the complaint, and alleged that appellee was guilty of contributory negligence.
The jury returned a verdict for $200, and this appeal is prosecuted to reverse that judgment.
The following stipulation was introduced in evidence:
“The defendant admits that the Coca-Cola sold by the retail dealer from wham the plaintiff purchased the bottle in question is Coca-Cola from the Coca-Cola Bottling Company of Arkansas at Batesville, Arkansas, and that such Coca-Cola is manufactured at the plant in Batesville. This defendant, however, specifically denies that the bottle purchased by the plaintiff contained any foreign substance at the time it left the plant or place of business of defendant at Batesville or at the time it was delivered to the retailer.
“It is further stipulated and agreed by the parties hereto that that portion of the complaint reading: ‘And she has been caused to have a permanent injury, soreness of the stomach and great nervousness ’ is eliminated from the complaint and stricken out.
“It is further stipulated that the deposition of Dr. M. S. Craig which has heretofore been taken and reduced to writing may be read in evidence by either party in this cause.”
The appellee testified that she lived at Walnut Ridge and was engaged in business with her husband; that on July 26,1934, she was at Batesville with a crowd of Walnut Ridge people in the grandstand at the baseball game; one of the parties from Walnut Ridge purchased six hot- ties of Coca-Cola; the boy who was selling them stood in the aisle, pulled the caps off of the bottles, and handed the bottles to the-parties; appellee started drinking and saw something in the-bottle. She testified that she was excited about the hall game and did not pay much attention, but drank another swallow or two; she then felt something in her mouth, put her handkerchief up to her mouth, spit out the Coca-Cola, and spit out a fly in her handkerchief. She could not tell about the ■ other substance in .the bottle, but it looked like fly legs or wings or something that had come to pieces'in the bottle. There was another fly in the bottle that she could see. ■ She sat there a few minutes and began to get1 sick, her body was cramping, and drawing; she was taken out'of the grandstand and laid on the grass, and then taken to Dr. Craig’s hospital. He gave her a hypodermic to cause her to vomit and then gave -her another after a few minutes, and a large glass of salt water. She was cramping- about her body. After the hypodermics and the glass of warm salt water, her stomach began to relax and she began to vomit. She stayed in the hospital about four hoürs and was very sick. She Avas put in the automobile and laid down on the back seat and Avas carried home, and Dr. Rainwater Avas called, and treated her stomach for about ten or tAvelve days. She testified that she had recovered, and that she did not claim any permanent injury. She suffered severe physical'pain and mental anguish. She is 24 years old. She testified that she could see things in the Coca-Cola, a mesh-like substance like fly’s legs, or something that had come to pieces. She suffered severely for about 28 hours, and was under the care- of a 'doctor. When the little boy that sold the Coca-Cola handed out the six bottles, appellee handed them down the row .as he handed them to her, and the bottle she got was the last bottle from which he pulled the cap, and she started drinking it at once. There AAras something decomposed in the Coca-Cola, and it looked like it might have been in there some time.
Several other ■ witnésses. testified and corroborated the testimony of appellee.
The testimony offered by the appellant was in conflict with the evidence introduced by appellee.
The only ground relied on by appellant is that the evidence is not legally sufficient to support the verdict. Appellant, in its brief, says: “The appellant in this case seeks a reversal and dismissal of the judgment had against it upon the sole ground that the appellee is not entitled to recover for the reason that there was no legal damages proved for which this appellant would be liable. In other words, that there ivas no actual physical injury broiight about or proximately caused by the alleged occurrence, and hence any damages suffered would be unaccompanied by any physical injury attributable to or proximately caused by the incident complained of. ’ ’
There is ample evidence to sIioav that the appellee suffered physical pain and injury.
Appellant calls attention to the case of Peay v. Western Union Telegraph Company, 64 Ark. 538, 44 S. W. 348, and argues that that case holds that a person cannot recover for mental anguish or physical pain unaccompanied by physical injury. That Avas a suit for damages for failure to deliver a telegram. In that case there was no physical injury, and the court said: ‘ ‘ While there is considerable conflict in the adjudged cases upon this question, Ave are of the opinion that the better considered cases are against the right of recovery for mental pain and anguish unaccompanied by physical injury.”
In the present case the eAddence clearly shoAVs that there was physical injury.
The appellant calls attention to several other cases, but in none of them Avas there any evidence of physical injury.
“When passing on the sufficiency of the evidence to support the verdict, Ave must giiu the evidence A\diich tends to support the verdict the highest probative value.’’ Missouri Pac. Rd. Co. v. Fowler, 183 Ark. 86, 34 S. W. (2d) 1071; Fort Smith Traction Co. v. Oliver, 185 Ark. 227, 46 S. W. (2d) 647; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. (2d) 798; Ark. Baking Co. v. Wyman, 185 Ark. 310, 47 S. W. (2d) 45. There is a long line of cases holding that the Supreme Court, on ap peal, weighs the evidence in the light most favorable to the appellee and indulges all reasonable inferences in favor of the judgment. We deem it unnecessary to cite more authorities on this question.
We have many times held that where there is any substantial evidence to support a verdict of the jury, it is binding on this court, because the jurors are the judges of the credibility of witnesses and the weight of the-testimony. Kansas City Fibre Box Co. v. F. Burkart Mfg. Co., 184 Ark. 704, 44 S. W. (2d) 325; Kearnes v. Steinkamp, 184 Ark. 1177, 45 S. W. (2d) 519.
Although we might believe that the verdict was against the preponderance of the evidence, still if there is any substantial evidence to support the verdict of the jury, such verdict will not be set aside by this court on the ground of insufficiency of evidence.
There is ample evidence in this case that the appellee suffered physical pain and injury, and the judgment will therefore he affirmed. | [
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Butler, J.
This appeal is from a judgment overruling a demurrer of the appellant filed to appellees ’ complaint, by which it was sought to restrain the appellant from collecting a sales tax on its product, and, the appellant having elected to stand on its demurrer, the appeal is also from the decree adjudging to the appellees the. relief prayed.
Appellee Arkansas Utilities Company is a manufacturer of artificial gas at Helena, Arkansas, which it distributes to over six hundred consumers. The gas is manufactured from coke, oil and steam, nothing else being used in its manufacture. Appellant contends that appellee is liable to the payment of a sales tax under the general provision of act 233 of the Acts of 1935 contained in paragraph A of § 4, providing: “The tax imposed by this section shall apply to (a) All sales at retail of tangible personal property, ’ ’ and in paragraph B of § 4, providing: “That the tax applies to ‘all retail sales at or by restaurants, cafes, cafeterias, hotels, dining cars, auctionéers, photostat and blue-print sales, funeral directors, and all other establishments of whatever nature or character selling* for a- consideration any property, thing-, commodity, and/or substance’.” Reliance is also placed upon paragraph C of § 3 defining the term “business,” and paragraph B of the same section defining the term “sale at retail.” The argument is made that as artificial gas is tangible personal property (36 •C. J. 737) it comes within the meaning of paragraph A of § 4, and paragraph B of / 3, and, as it is a commodity- or substance, it comes within the meaning of paragraph B of § 4; ■
It is the contention of appellee that paragraph D of § 4 relates to and meiitions the specific items of the nature of the article manufactured and sold by it upon which consumers are required to pay a sales tax, and that this provision controls other more general provisions. That paragraph is as follow's: “All retail sales of electric power and light, natural gas, Avater, telephone use and messages and telegrams.” It is argued that since manufactured gas is not referred to in tihe paragraph quoted, the general provisions Avould not authorize the collection of a tax upon its sale. We agree with the appellee in this contention and conclude that the -decree of the court beloAV Avas properly rendered. Natural gas possesses many of the properties of the manufactured article, but is different in origin, and manufactured gas Avould not come within the definition of the former. Osborn v. Arkansas, etc., Co., 103 Ark. 175, 146 S. W. 122. The only authority therefore for the tax sought to be imposed would be the general provisions. Paragraph D, quoted above, contains the definite expression of the legislative intention with respect to the item of the nature of appellee’s product, and controls the general: expression in the act. It is well settled that Avhere there is, in the same statute, a particular, and also a general enactment, the latter including what is embraced in tihe former, the particular enactment. is operative, and* the general enactment must be taken to effect only that which, within its general language, is not Avithin the-provisions of the particular: enactment. Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656; U. S. v. Chase, 135 U. S. 255; 25 R. C. L., 1010 and 1011.
It is- the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power. McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 491; U. S. Merriam, 263 U. S. 179; 59 C. J., 1131. This rule fortifies the appellee in its contention, and, regardless of whether manufactured gas was omitted by accident or design, the fact remains that under any construction of the act it is doubtful whether the tax was intended to be imposed, and, with this doubt resolved in favor of the taxpayer, the decree of the trial court must be affirmed. It is so ordered. | [
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Butler, J.
On April 4, 1932, the appellant obtained a judgment against the appellee in the Arkansas Circuit Court in the sum of $335.05. On November 2, 1932, an execution was issued on said judgment and returned nulla b\ona on January 2, 1933. On that day a .second execution was issued which was likewise returned nulla bona on March 2, 1933.
The appellee, who is a farmer and-rice grower, had obtained advances from the Riceland Credit Corporation to finance his farming operations, and had, in the' hands of said credit corporation, a quantity of rice mortgaged to secure said advances. This rice was sold by the credit corporation, Avhich from the proceeds paid itself the sums due it by the appellee and delivered to the latter its check for the balance in the sum of $428.90. This transaction occurred on February 20, 1933. Appellee owed the thrasher men for the thrashing of his rice, the sum of $100. In the afternoon of February 21, 1933, appellee delivered this check to the attorney of the appellant company, but which was not presented for payment on that day. It was drawn on the First State Bank of Stuttgart which closed its doors at the close of banking hours on’February 21, 1933, and did not thereafter open. On February 23, 1933, it was taken over by the' State Banking Department as an insolvent bank. The attorney retained the check in his possession until June 13, 1933, and on that day returned the same to the appellee with the advice that he had been unable to collect it.
Appellee brought this suit alleging that about one o’clock on the afternoon of February 21, 1933, he indorsed and delivered the check in question to the attorney and agent of appellant company with the express understanding that the agent would present it to the drawee bank within the banking hours of that day and from the proceeds would satisfy appellant’s judgment and pay to appellee $100; that appellant’s agent negligently failed to present the check on that afternoon; that the following day was a legal holiday and the bank did not open for business; that on February 23, 1933, the bank failed to open, and the check remains unpaid; that appellant’s agent failed to satisfy said judgment and to pay the sum of $100 to appellee as agreed; that appellant is liable in the sum of $150, statutory penalty for failing to satisfy the judgment. The prayer was that the judgment be canceled and satisfied in full, and that appellee recover the sum of $250.
The answer denied the authority of the agent of appellant company to settle with appellee and satisfy the judgment, denied the other allegations of the complaint, and alleged that the agent and attorney, as a personal favor to the appellee, handled the said check for the purpose of collecting same, paying from the proceeds the sum of $100 to W. M. Schafer and the balance to the sheriff to be applied toward the satisfaction of the execution then in his hands.
Appellee testified in effect that the debt due the appellant company, which had been reduced to judgment, was for tractor fuel; that there was an overcharge of $26 and that the attorney agreed to credit the judgment with this amount; that the attorney had been trying to collect the judgment, and an execution was then outstanding against the witness; that he went to the attorney and explained that he could not pay then, but would pay out of his rice crop; that the attorney advised witness that when he sold his rice to bring the check to him; that he received the check about ten o’clock on the morning of February 20, 1933, and immediately carried it to the attorney’s office, but the latter was not in; that the next morning he went back again and was informed by one in the office that he might see the attorney at one o ’clock at which hour he again returned to the office, found the attorney in, indorsed the check and delivered it with the understanding and agreement that it should be presented to the bank within the banking hours of that afternoon and $100 of the proceeds be delivered to witness when he returned from his farm in the evening; that when he came back from the farm the attorney was not in his office and witness did not see him until the next morning which was a legal holiday and the bank was closed; that on the following morning witness again saw the attorney, who told him that he did not think the bank would open; that the bank did not open again, and witness told the attorney that he wanted the $100 and a receipt for the judgment. The attorney advised him that he could not do that just then; that it looked as if they would have a lawsuit over it, and a few days later the attorney informed him that he was going to sue the credit corporation for the appellant on the check; that the attorney kept the check in his possession until June 13, 1933, when it was returned with the advice that he had been unable to collect the same.
Mr. Fuess, manager of the Riceland Credit Corporation, testified that, at the time the check was drawn, the corporation had on deposit in the State Bank of Stuttgart ample funds to pay the check if it had been presented at any time between its date and the day the bank was closed. He further testified that the attorney for the appellant company stated to him, after the bank had closed, that if the credit corporation did not pay the check he would bring suit against the corporation for the appellant to recover the amount for which it had been given.
Mr. Young, the attorney for the appellant company, testified in effect that he had authority to collect the judgment, but no authority to make any compromise, and that appellee had never asked for' any; that appellee came to him and asked as a favor that he handle the check which appellee expected to obtain for his rice within a few days; that, if appellee took the check to the bank, it would be applied on the payment of a debt due by appellee to said bank, and he wanted to deliver the check to witness to cash and give the thrasher men $100, the balance to be applied on the judgment; that the following week appellee advised witness that the rice had been sold, but he had not yet gotten his settlement; that later, about 2:30 on the afternoon of February 21, 1933, appellee delivered the check to him, and he then told appellee he was busy in court but would attend to the matter the next morning; that the bank closed, and he returned the check to appellee, who said that he would see Mr. Fuess and get the money on the check; that later appellee came back to witness ’ office, informed him that he could not get any money, and asked witness to collect it for him. Witness took the matter up with Mr. Fuess and after a time was informed that the credit corporation would not pay the check; that he then returned it by mail to the appellee, informing him that witness was returning the check delivered to him for collection; that he had made several attempts to collect the item and advised appellee to get some one else to represent him in the matter of collection from the credit corporation.
The evidence is to the effect that all parties resided in Stuttgart, the city in which the First State Bank of Stuttgart was located; that this bank was just a few doors from the office of the credit corporation and that of Mr. Young.
A number of instructions- were given at the request of the defendant (appellant) to the effect that appellant was not required..to present the check, to the bank on a legal holiday but that this might be done on the next succeeding business day; that if the check was delivered to the attorney of appellant company at the instance of appellee with the request that, it- be cashed and directions given as-to the application of its proceeds, the at: t'orney would be acting as the agent of the appellee,' and not as the representative of the appellant company in that particular. Instructions, were also given on the question of a reasonable time-within which the check might have been presented for payment and on reasonable, diligence required for such presentation. - The jury:-was told- that the presumption was that the check was given by way of security, and the burden was upon the appellee to show otherwise.
Other instructions were requested, by the. appellant and refused by the court, 'but as to these no complaint is made. .
Upon its own motion, the court gave the following instruction: “If you find that J. B, Burns is entitled to recover the .amount of the check, less the amount due the Standard Oil Company, figured out, by its attorney, which, according to the proof, leaves a balance of $31.43, the difference between the-amount, of the check. and. the amount Mr. Burns owes the -Standard Oil. Company. If you find that he is entitled to recover that amount,, he would be entitled to recover 6 per; cent, interest per annum on $31.43 from February 21, 1933. V When, this instruction was given, the court announced that the plaim tiff (appellee) would be given permission to amend his complaint, in accordance with.the instruction, whereupon the attorney for appellee amended the prayer of the complaint so as to ask. for a recovery of' the difference in the amount of the check and the judgment, and. for a money judgment in the sum of-$250-with costs. ;
The jury returned a verdict in favor of the appellee in the sum of $31,43 with interest from February-21, 1933. Judgment was. accordingly rendered, and this appeal followed. • •
On behalf of the appellant it is argued that there was no proof of any damage because of the negligence of the appellee to present the check on the afternoon of February 21, 1933, and that there was no allegation nor proof that the check was to be accepted in payment of the judgment.
Appellee cites us to a number of authorities holding in effect that an agent authorized to collect money may receive a check payable to himself and indorse and collect the same. We deem this question of no importance for it was not an issue in the case. Appellant cites us to authorities holding that an agent authorized to collect a judgment has no implied authority to accept less than the amount of such judgment or anything except in lawful money in payment thereof; also, that the presumption is that the acceptance by a creditor of a check is presumed to be security for the payment of a debt.
Under the allegations of the complaint, which was only amended Avith respect to the prayer, Ave are of the opinion that the only issue for submission to the jury Avas the negligence of the appellant, if any, in failing to present the check for payment on the afternoon of February 21, 1933. The instruction given by the court on its own motion, hoAvever, gave the jury no guide to determine the question of whether or not appellee Avas entitled to recover, merely telling the jury in effect that the agent of appellant had no authority to compromise and accept a, less sum than the face of the judgment, and that appellee was not entitled to recover the statutory penalty or anything more than the difference between the amount of the check and the judgment.
If it may be said that the question of the negligence of appellant, if any, was properly presented to the jury, then we agree with the appellant that no damage has been proved. The most that can be said is that the check has not yet been paid, and that the Credit Corporation had on deposit a sum sufficient to pay the check if it had been presented on the afternoon of February 21, 1933. There is no evidence, however, to the effect that the First State Bank of Stuttgart will not pay its creditors in full or that it had in fact any money in its vaults after one o’clock p. m., on February 21, 1933, to pay the check had it been presented.
We think, as previously indicated, that the instruction given by the court on its own motion is defective in that it failed to submit to the jury any theory of law or fact as a basis for its deliberation.
The judgment of the trial court is therefore reversed, and the cause remanded for' further proceedings. | [
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McHaney, J.
Appellant Hess is a truck driver in the employ of appellant Dillaha. On September 14, 1934, while driving a Dillaha beer truck north on highway 67 about a mile and a half south of Arkadelphia, in Clark County, and at a timé when he was passing another truck .going in the same direction, owned and operated by appellee, an accident occurred caused by the two trucks coming in contact which resulted in the overturning of appellee’s truck and in severe and painful injuries to appellee and considerable damage to his truck. This action was brought to recover damages therefor. It was appellee’s contention that, while driving north on said highway, on the right-hand side, a foot or more to the right- of the black stripe down the center thereof, at a moderate rate of speed, and while exercising due care for his own safety, the Dillaha truck, driven by Hess, undertook to pass him and carelessly and negligently and, as he thought, intentionally drove his truck so close to appellee’s as to collide with it and to crowd him off the highway, so that his car was overturned, causing the damages complained of. A trial resulted in a verdict and judgment in appellee’s favor against both appellants .in the sum of $5,000 for personal injuries and $150 for damages to the truck.
For a reversal of the judgment against them, appellants argue two assignments of error: First, that the court erred in refusing their requested instruction No. 4; and, second, that the verdict is excessive.
Requested instruction No. 4 reads as follows: “You are instructed that, if you find from the evidence in this case that the plaintiff failed to drive his truck upon the right-hand side of the highway, and that it was not impracticable to travel upon the right-hand side of the highway at the place where it is alleged that the plaintiff was pushed off the highway by the truck driven by the defendant, W. D. Hess, that this is prima facie evidence of negligence on his part and casts the burden upon the plaintiff to prove that he was exercising ordinary care, notwithstanding the violation of this law. If you further find from the evidence in this case that the plaintiff failed to drive upon the right-hand side of the highway, and that it was practicable to drive on the right-hand side of the highway at the place Avhere he alleged that he was pushed off the highway by the truck driven by the defendant, W. D. Hess, and has failed to prove that he was exercising ordinary care, notwithstanding the violation of this law, and that the violation of the law caused or contributed in any manner to his injury, or the damage to his truck, if any, then you must find for the defendant.”
For the purpose of this opinion, we assume, without deciding, that said requested instruction is a correct declaration of the law. It does not follow, however, that the case must be reversed because the court refused to give it. Other instructions were- given both on behalf of appellants and appellee which covered the subject-matter of requested instruction No. 4. For instance, in instruction No. 1, given at the request of appellee, one of the conditions upon which he was permitted to recover was that the jury must find from a preponderance of the evidence that he was well on his right side of the highway and that he was guilty of no negligence contributing in any way to his injury. In instruction No. 2, given at the request of appellants, the jury was clearly told that appellee could not recover if he turned his truck to the left across'the center line of the highway causing it to come in contact with the Dillaha truck, because this would be eontributoiy negligence on his part. Also in instruction No. 5, given at appellants’ request, the court told the jury that if appellee “failed to give way to the right to allow the defendant, W. D. Hess, to pass him, this is prima facie evidence of negligence and casts the burden upon the plaintiff to prove that he was exercising ordinary care, while failing to give way to the right, and that such failure, if any, caused or contributed in any manner to his injury or the damage to his truck, if any,,’ ’ they should find for appellants. It will be seen that these instructions given fully and fairly submitted the question to the jury as to whose fault it was that the accident occurred. If the appellee was driving his truck on the right-hand side and negligently turned over to the left and came in contact with the Dillaha truck, or if he were driving too far to the left and failed to give way to the right so that the Dillaha truck could pass, and that either of these things caused or contributed to the injuries, the jury were told that appellee could not recover. It appears to us that these instructions cover all the ground mentioned in requested instruction No. 4, and that no error was committed therefore in refusing to give it.- The court is not required to multiply instructions covering the same subject-matter.
As to the question of the excessiveness of the verdict for personal injuries, "the evidence is not in dispute. Appellee and his physician were the only witnesses who testified to the nature and extent of his injuries. Appellants introduced two witnesses Avho testified concerning the activities in which appellee Avas- engaged folloAving the accident. The evidence of appellee and his physician shows that he was “pretty badly bunged up,” that he Avas brought to the hospital shortly after, the accident bleeding from several cuts; about the fáce and scalp and a tAvo or three-inch cut above one eye; that he had suffered a slight concussion of the brain which had apparently cleared up, and- had received an ugly wound in his abdomen that AArent through-the skin and into the superficial parts; that his neck and shoulders were bruised, and that he could not at the time of the trial turn his head to the left. "While the physician declined to say that Mr. Arnold had suffered permanent injuries, he did say he Avould always have reminders of the accident. It is true that appellee did not spend much time at the hospital, but left shortly after his injuries Avere patched up, and that- he continued to conduct his "business, although Avith some- pain and discomfort. We have carefully examined all of the evidence relating to the injuries appellee received, and, while we are of the opinion that ample compensation has been awarded, we are unwilling to substitute our judgment for that of the jury. No question appears to be raised concerning the excessiveness of the verdict for damages to the truck, but the testimony appears to fully warrant the amount thereof. •
No error appearing, the judgment must be affirmed..- | [
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Mehaffy, J.
Mrs. Fearney Robinson, on September 4,1934, took passage on the bus of the appellant at Crow’s Station in Saline County, Arkansas, and paid her fare to Benton. The bus stopped at appellant’s station for passengers to alight. In attempting to alight appellee alleges that, without any negligence on her part, she caught her shoe on a badly torn and worn upward projecting piece of metal stripping which had been tacked to the floor of said bus at its door, where passengers alight from same, and as a result she alleges she was caused to fall through the door and against the steps and onto and against the concrete curbing and pavement, and that she was painfully and permanently injured thereby. She alleged that appellant failed to furnish safe transportation and failed to provide a safe place to alight, and that the appellant caused and allowed said metal stripping to be and remain on the floor of said bus in a dangerous, torn and worn upward projecting position; that appellant failed to warn appellee of the dangerous condition which it knew, or by the exercise of ordinary care could have known; that on the same day, a short time after her injury, she was in bed in a stupor suffering and under the influence of drugs and medicine, and without any warning or information, and through trickery and deceit, a claim agent of defendant obtained a release from her. She alleged damages in the sum of $3,000.
The appellant answered, denying that it was guilty of any negligence, and denying all the material allegations in appellee’s complaint. It also alleged that, if appellee was injured* it was due to her own negligence and carelessness. It alleged that its agent in good faith and without prejudice, paid the full amount that appellee demanded, and that said payment discharged any and all claims for injury.
There was a trial, verdict and judgment in favor of appellee for $2,500. The case is here on appeal.
It is first contended by the appellant that the. appellee was guilty of contributory negligence, which bars her recovery; that the proximate cause of her injuries was her own negligence.
The -evidence shows that appellee was a passenger, and, when she undertook to alight from the bus, she fell and received the injuries she complains of. There is a conflict in the evidence as to the condition of the metal strip. All of the witnesses, however, admit that the strip was somewhat loose. The evidence on the part of the appellant shows that the bus was inspected daily, and that the inspectors found nothing wrong with the metal strip or any part of the bus where appellee alighted. The evidence shows that there were handholds that passengers might take hold of in alighting or boarding the bus.
We do not deem it necessary to set out the testimony in detail because there is a sharp conflict, and the questions of negligence and contributory negligence were properly submitted to the jury.
It was the duty of appellee, of course,' to exercise reasonable care for her own safety, and, if she did not do this and was injured because of her own negligence, she would not be entitled to recover. Whether she was guilty of negligence, and whether appellant was guilty of negligence, were both questions of fact, and the evidence is in conflict, and it was therefore a question for the jury to determine whether she was guilty of negligence and whether the appellant ■ was guilty of negligence. The jury’s finding on these questions,if supported by substantial evidence, will not be disturbed by this court.
Appellant calls attention to the case of Little Rock & Ft. Smith Ry. Co. v. Cavenesse, 48 Ark. 106, 2 S. W. 505. That case merely holds that it is the duty of the carrier to provide a safe and convenient means for .entrance to and departure from their trains, and that passengers must exercise ordinary care in taking care of themselves.
In the instant case the court instructed the jury that, if the plaintiff failed to exercise ordinary care to use the appliances furnished by the carrier, and such failure- to use ordinary care caused or contributed to cause- the injuries of which the plaintiff complained, then she could not recover. They were also told in another instruction, given at the request of the appellant, that contributory negligence is such negligence or want of care as contributed or helped to cause the injuries complained of, - and, if they found the injuries would not have occurred if plaintiff had used ordinary care for her own safety, and they found that she did not exercise such ordinary care, they would find for the defendant. It thus appears that the question of appellant’s negligence and of appellee’s contributory negligence were submitted to the jury on proper instructions requested by the appellant.
The next case to which attention is called by the appellant is St. Louis, I. M. & S. Ry. Co. v. Forbes, 63 Ark. 427, 39 S. W. 63. In that case the party injured was not a passenger, but was injured in stepping from the carrier’s freight house onto a platform. There were no steps, he had just entered through the door, and stepped out onto the platform, and, as he did so, fell. The court said: “According to his own statement, if it be conceded .that the appellant was guilty of negligence in failing- to provide steps to the door, he was guilty of contributory negligence and is not entitled to recover.
That is because he had entered the freight house through this door immediately before the injury, and was bound to'know there were no steps there, and stepped out with a box in front of him and fell. The court held that he was guilty of contributory negligence because he knew all about the entrance and knew there were no steps there.
Appellant next calls attention to the case of St. Louis, I. M. & S. Ry. Co. v. Greene, 85 Ark. 117, 107 S. W. 168, 142 L. R. A. (N. S.) 1148. The' court said in that case: “Appellee was attended by two friends who could reasonably be expected to assist her with her child if any assistance was needed. There was a smooth cinder platform on a level with the rails and a stool upon which to mount -to the first step. The train- stopped at the usual place. Under the circumstances, there ivas no duty devolving upon appellant to assist appellee in entering the train.” In that case there was no complaint about any defect in the equipment, but the appellee complained only of the conduct of the brakeman in assisting her to get on the train.
The next case referred to by appellant is where the passenger was emerging backward and not looking where she was stepping.
It is next contended by the appellant that it did not owe the appellee the highest degree of care because the bus Avas standing still. This court said: “Oiir interpretation of the instruction is that it told the jury that it Avas appellant’s duty to exercise that degree of care Avhich may reasonably be expected of intelligent people to see that its car Avas kept in repair and in a safe condition consistent Avith the practical operation thereof.” The court held that the instruction was more favorable than the appellant Avas entitled to; that the laAV imposes the highest degree of skill and care upon common carriers consistent with the practical operation of their cars to furnish their passengers a safe place to get on and off. Ark. P. & L. Co. v. Hughes, 189 Ark. 1015, 76 S. W. 53; Prescott & N. W. Rd. Co. v. Thomas, 114 Ark. 56, 167 S. W. 486; Beach v. Eureka Traction Co., 135 Ark. 542, 203 S. W. 834.
We do not think there was any error in the instructions on the degree of care, and that the rules applicable to common carriers govern in operating busses carrying passengers. It is true there are many statutes regulating railroads that do not apply to busses and other common carriers, but the law Avith reference to the duty of common carriers to passengers is the same as to all common carriers.
It is next contended by the appellant that the court erred in permitting the hypothetical question to be asked and answered. We dó not think there was any error committed by the court in permitting the hypothetical question to be asked and answered. The question states Avith sufficient accuracy and detail the facts which the evidence tended to show about the injury and condition of appellee. Hypothetical questions must fairly reflect the evidence, but such questions do not necessarily embrace disputed facts that are essential to the issue, and it was said in the case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405: “In taking the opinion of experts, either party may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated as established by the evidence should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts. When a party seeks to take an opinion upon the whole or any selected part of the evidence, it is the duty of the court to so control the form of the hypothetical question that there may be no abuse of his right to take the opinion of the experts.”
The rule announced in the Taylor case has been folloAved since that time.
We do not set out the instructions, but we have carefully considered them, and have reached the conclusion that there ivas no error in giving or refusing to give instructions.
On the day that appellee was injured, defendant’s claim agent went to her home and gave her a check for $65, and she signed a release. The evidence shows that immediately after she was injured the bus driver called Dr. Gann and he gave her chloroform. Appellee says that she did not know what she was signing and Avould not have settled until she knew something about the extent of her injuries. The evidence shows that she Avas severely injured and suffering at the time the release was signed, and the check was for only $65.
“A nominal or grossly inadequate consideration for a release will be given serious consideration as affecting the question of fraud in its procurement. When due weight is given to other surrounding conditions, and there is evidence that the consideration is inadequate, it is a circumstance which, in connection with other circumstances, may be submitted to the jury, and, if grossly inadequate, it alone is sufficient to carry the question of fraud'or undue influence to the jury, and where there is inadequacy of consideration, but it is not gross, it may be considered in connection with other evidence on the issue of fraud, but will not, standing alone, justify setting aside a contract or other paper writing on the ground of fraud. And therefore, on the question of fraud val non in inducing an employee to accept benefits from a relief department in release of the master’s liability for negligent injuries, his situation, conduct and surroundings at the time, as well as the amount received, may be considered.” 23 R. C. L..395.
“There cannot be a release of a cause of action for personal injuries without unequivocal acts showing expressly or by necessary implication an intention to release. Generally, the construction of the release as to the actual intent of the parties present's a question of fact to be determined from the surrounding conditions and circumstances, construed with reference 'to the amount of consideration paid and the language of the release itself. The amount of consideration paid should have considerable force in determining whether the release was simply paying the releasor for loss of time or some other specific element of damage, or whether it indicated payment of a substantial sum in consideration of which the releasee secured himself against all further developments and the releasor assumed the risk thereof. ” 23 R. C. L. 397; Chicago, R. I. P. Ry. Co. v. Matthews, 185 Ark. 724, 49 S. W. (2d) 392.
The evidence is sufficient to support the verdict, and the judgment is affirmed. | [
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Johnson, C. J.
This is an original proceeding in prohibition, instituted by Mrs. R M. Kelso against respondent, Dexter Bush, circuit judge, to restrain proceedings in a certain action pending in the Clark County Circuit Court. The pending action sought to be restrained is for damages for personal injuries sustained in an autmomobile collision which occurred upon a State highway in Clark County and in which petitioner’s automobile participated.
Petitioner is a nonresident of the State, and service of process was had upon her in the action pending in the Clark County Circuit Court as prescribed by § 1 of act 39 of 1933. The question presented for consideration in this proceeding is the constitutionality of said act. Section 1 provides:
“Section 1. From and after the passage and approval of this act, the acceptance 'by a nonresident owner, chauffeur, operator, driver of any motor vehicle, except such nonresident owners as may have a designated agent, or agents, within this State upon whom valid and binding service of process may be had under the laws of this State, of the rights and privileges conferred by the laws of the State of Arkansas to drive or operate or permit or cause to be operated or driven a motor vehicle upon the public highways of said State as evidenced by his or its operating or causing or permitting a motor vehicle to be operated or driven thereon or the operation by a nonresident owner or the causing or permitting by such nonresident owner of a motor vehicle to' be operated on such highways in the State of Arkansas shall be deemed equivalent to the appointment by such nonresident owner whether such nonresident owner be an individual, firm or corporation, of the Secretary of the State of Arkansas or his successor in office to be the true and lawful attorney and agent of such nonresident owner upon whom may be served all lawful process in any action or proceeding against him or against any such person, firm or corporation growing out of any accident or collision in which said nonresident owner or any agent, servant or employee of any such nonresident owner may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of the agreement of any such person, firm or corporation which is so served shall be of the same legal force and validity as- if served on such person, firm or corporation personally. Service' of such process shall be made by serving a copy of the. process on the said Secretary of State, and such service shall be sufficient service upon the nonresident owner, provided that notice of such service and a copy of the process are forth with sent by registered mail by the plaintiff or his attorney to the defendant at his last known address, and the defendant’s return receipt or the affidavit of the plaintiff or his attorney of compliance herewith are appended to the writ or process and entered and filed in the office of the clerk of the court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant or defendants reasonable opportunity to defend the action.”
In consideration of the contention urged, it is a cardinal rule of construction that all legislative enactments are presumed to be constitutional and valid. Patterson v. Temple, 27 Ark. 202; Leach v. Smith, 25 Ark. 46. And that all doubts in reference to the constitutionality of statutes must be resolved in favor of validity. Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 7; Graham v. Nix, 102 Ark. 277, 144 S. W. 214; Ark. L. & G. Ry. Co. v. Kennedy, 84 Ark. 364, 105 S. W. 885; Duke v. State, 56 Ark. 485, 20 S. W. 600; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Leep v. Railway Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St. Rep. 109.
The first contention is that § 1 denies to petitioner due process of law under the State and Federal Constitutions.
The constitutionality of a State statute almost identical in terms to that of § 1 of act 39 of 1933 was sustained by the Supreme Judicial Court of Massachusetts in Pawloski v. Hess, 253 Mass. 478, 149 N. E. 122, and that it afforded due process of law to the nonresident defendant was sustained, by the Supreme Court of the United States in Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632.
Petitioner, recognizing the force of the opinion just cited, contends that § 1 of act 39, supra, differs from this legislative enactment in that the Massachusetts statute provides that notice to the nonresident defendant must be sent by registered mail and the Arkansas statute requires only that such notice be sent to the “last known address” of such nonresident defendant; also that the Massachusetts statute requires the nonresident defendant’s return receipt whereas the Arkansas statute is satisfied with the nonresident defendant’s return receipt or the affidavit of the plaintiff or his attorney of compliance. That this difference of phraseology is of substance we are cited the case of Wuchter v. Pizzuti, 276 U. S. 13, 48 S. Ct. 259. The last-cited case arose under a statute of New Jersey, and the court there stated the pertinent inquiry to be, ‘ ‘ The question made in the present case is whether a statute making- the Secretary of State the person to receive the process must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Section 232 of the Laws of 1924 makes no such requirement, and we have not been shown any provision in any applicable statute of the State of New Jersey requiring such communication.”
The court then disposed of the inquiry by saying: “We think that a law with the effect of this one should make a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a nonresident in using the highways of another State may be properly declared to be an agreement to accept service of summons in a suit growing out of the use of the highway by the owner, but the enforced acceptance of the service of process on a State officer by the defendant Avould not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to adAdse him, by some written communication, so as to make it reasonably probable that he will receive actual notice. OtherAvisc, where the seiwice of summons is limited to a service on the Secretary of State or some officer of the State, Avithout more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the State official obtain a default judgment against a nonresident who had never been in the State, who had nothing to do with the accident, or Avhose automobile having been in the State has never injured anybody.”
The language of the opinion quoted does not justify petitioner’s position that an enactment which does not require a receipt from the nonresident defendant does not afford due process of law. As we view the opinion, the pertinent inquiry is: does the enactment require “such written communication so as to make it reasonably probable that he (the nonresident defendant) will receive actual notice” of the pendency of the suit? In other words if actual notice to the nonresident defendant is provided for with reasonable certainty in the enactment, it will suffice to afford due process. This conclusion is made certain when we consider other language in the opinion where the court was considering the sufficiency of all legislation imposed against all nonresident automobile owners as follows: “Every statute of this kind therefore should require the plaintiff bringing the suit to show in the summons to be served the postoffice or residence of the defendant being sued, and should impose either on the plaintiff himself .or upon the official receiving service or some other, the duty of communication by mail or otherwise with the defendant.”
This language, in our opinion, demonstrates that the court did not intend to restrict all State legislation ag’ainst nonresident owners of automobiles operated on the highways of the respective States to such only as might sign a receipt showing actual knowledge of the pendency of the suit, but that such actual knowledge or notice might be shown by such receipt or by written communication transmitted by the plaintiff in the suit or by some other method equally effectual. It must be remembered that the New Jersey act condemned by the court provided no method or means by which actual notice was required to the nonresident car owners, and in this respect act 39 of 1933 is substantially and materially different. In act 39 of 1933 the evidence of actual notice to the nonresident car owner is expressly provided for either by the receipt of the car owner or by the written affidavit of the plaintiff or his attorney of record. Admittedly the notice provided for in act 39 of 1933 may be sent to the last known address of the nonresident car owner, but this does not militate against actual notice to him. It is a rule of universal application that, when a letter addressed to the last known address of a person, properly stamped, is not returned in response to a return direction, it is presumed that it was received by the addressee. See 22 C. J., p. 101, § 43, and cases cited in note 35.
The Supremo Court of New Hampshire in Poti v. New England Road Machinery Co., 83 N. H. 232, 140 A. 587, approved and held constitutional against constitutional attack a statute almost identical with § 1 of act 39 of 1933. The court in the body of the opinion states the substance of this act as follows: “that a nonresident’s operation of a motor vehicle on any highway within the State shall be deemed equivalent to the appointment of the commissioner of motor .vehicles as his agent, upon whom may be served process in any action arising out of any accident in which he may be involved while thus operating his motor vehicle, and that such operation signifies his agreement that such process so served shall amount to personal service on him within the State, provided the commissioner mails him notice of it.” It will be especially observed that the New Hampshire statutes only require that the notice of the pendency of the suit be mailed to the nonresident car owner defendant, whereas our statute requires either a return receipt from the nonresident car owner defendant or an affidavit of the plaintiff or his attorney showing that such notice ha,s been forthwith sent by registered mail to such nonresident owner, or to his last known place of address.
Under a Pennsylvania statute substantially similar to the Massachusetts statute and more nearly identical with § 1 of act .39 of 1933 in that it directed notice of the pendency of the suit to the ‘ ‘ last known address ’ ’ of the nonresident car owner defendant, the Federal district court of Pennsylvania in Carr v. Tennis, 4 F. Supp. 142, held the statute valid as against constitutional attack grounded upon denial of due process. The third headnote of the opinion reads: “A statute authorizing service on nonresident motor vehicle owners in accident cases by serving secretary of revenue and sending a copy of process to defendant’s last known address by registered mail held not denial of due process (75PS., Pa., § 1201 et seq.; Const. Amend. 14).”
A statute of Minnesota almost identical in terms with the Pennsylvania and Arkansas statutes was held valid against constitutional attack in Jones v. Paxton, 27 F. (2d) 364.
The subject under consideration and related subjects a.re exhaustively treated in the case notes appended to State v. Davison, 96 A. L. R. 589, and the curious are referred thereto.
We conclude that § 1 of act 39 of 1933 provides for probable actual notice to nonresident car owner defendants of pending suits in this State, and therefore does not deny to such defendants due process of law under State or Federal Constitutions.
Next petitioner urges that 7 2 of said act, which confers upon any of the courts of this State, where service of process is obtained in the manner provided in § 1 of said act, is repugnant to the equal protection afforded by the Fourteenth Amendment to the Constitution of the United States. Powers Manufacturing Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, is cited as decisive of this contention.
In the case last cited this court and the Supreme Court of the United States were dealing with a foreign corporation doing business in this State by express statutory authority. In conformity to and compliance with State law, the appellant designated an agent at Stuttgart in Arkansas County for service of legal process and its principal and only place of business in this State was there located. The suit was instituted at Benton in Saline County against said foreign corporation and service of process was had in Arkansas County. To justify this service of process in the litigation, § 1829 of Crawford & Moses’ Digest, as then existing was relied upon. This statute provided for the service of process upon the designated agent of the foreign corporation and after such service conferred jurisdiction upon any court of the State to try and determine the controversy. At that time State statutes did not permit domestic corporations to be sued in a county in which it did no business and had no office, officer or agent, neither did State statutes permit a natural person to be sued in a county in which he did not reside or was not found for service of process. State-Avide venue against foreign corporation as conferred by § 1829 of Crawford & Moses’ Digest Avas condemned because arbitrary and unreasonable when applied against foreign corporation doing business in this State upon the theory that natural persons and domestic corporations Avere not similarly burdened.
The difference betAveen petitioner’s status and that of appellant in Powers Manufacturing Company v. Saunders, supra, is that petitioner has no place of business or domicile in this State at Avhich to fix local venue or by which to compare her status with that of a domestic corporation or a natural person, and Ave belieAm that this difference is substantial and controlling. Petitioner by entry into this State driving an automobile upon its highways impliedly consented that she might be sued in any of the courts of this State as prescribed by act 39, supra, and, since she occupied no status localizing venue, as applied to domestic corporations or natural persons domiciled here, she is not denied equal protection of the laAV as prescribed by the Fourteenth Amendment to the Constitution of the United States.
The Fourteenth Amendment to the United States Constitution, as construed by the Supreme Court'of the United States, does not prevent or restrict a State from adjusting its legislation to differences in situations, neither does it forbid classification to that end, but only requires that such classification be not arbitrary. Traux v. Corrigan, 274 U. S. 337, 42 S. Ct. 124; Gulf, Colo. & Sante Fe Ry. Co. v. Ellis, 274 U. S. 155, 17 S. Ct. 255; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337. The necessary requirement is that the classification be pertinent to the subject of classification. As we have heretofore pointed out, petitioner does not occupy the status of a foreign corporation doing business in this State with a local domicile or place of business, and she does not occupy the status of a domestic corporation or natural person domiciled in this State, therefore she is subject to a separate classification as to venue in the courts of this State, and such classification does not offend against the Fourteenth Amendment or deny her equal protection of the law, as it is not arbitrary or without substance. Moreover, venue statutes of the Commonwealth of Massachusetts in force at the time of the rendition of the opinion in Hess v. Pawloski, supra, required that all transitory actions against residents of that State should be brought and maintained in the county where one of the parties lives or has his usual place of business or where one of the defendants lives or has his usual place of business or by actual service of process upon a- nonresident, defendant. See chapter 223, volume 2, Massachusetts General Laws of 1932. The constitutional question whether the Massachusetts statute approved by the Supreme Court of the United States in the case referred to, supra, offended against the Fourteenth Amendment by denying equal protection of the law to the nonresident car owner defendants raised itself in said litigation and the court, by approving the statute as otherwise constitutional and valid, impliedly determined that it did not offend the Fourteenth Amendment. At least, this is a cogent circumstance tending to sIioav that the court did not conceive the question of vital importance.
The reasoning heretofore set out is applicable to and disposes of petitioner’s contention that act 39 of 1933 is violative of § 18 of art. 2 of the Constitution of Arkansas. See also State v. Johnson, 172 Ark. 866, 291 S. W. 89.
We conclude, therefore, that act 39 of 1933 is constitutional and valid, and that the service of process upon petitioner in conformity therewith gave to the circuit court of Clark County jurisdiction over the person of the petitioner, and for these reasons the writ of prohibition will be denied. | [
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Humphreys, J.
This is an- appeal from a decree of the chancery court of Washington County rendered on the 11th day of March, 1935, enforcing by mandatory injunction a contract entered into between appellant and appellee on the 13th day of July, 1927, as amended by the parties on the 19th day of October, 1931.
The substance of the contract was that appellee should convey a tract of land near the city of Spring-dale to appellants, upon which there was a spring of four hundred gallons per minute capacity and to give an easement over an additional tract he owned to lay water mains or pipes, in consideration that appellant would pay him $150 cash and furnish him free water for domestic, yard sprinkling, and stock purposes at his home and at two other places on said lands. Pursuant to the contract, the deed ivas executed, money paid, and about one and one-half miles of water pipe laid on said lands and put in use, and appellee ivas furnished free water until the summer of 1933, at which time appellant denied appellee’s right to free water and disconnected the water supply from his properties for the alleged reason that he was abusing Ms free water privileges by using the water for commercial and irrigation purposes and also wasting the water by allowing his hydrants to remain open continuously. The original contract was in writing, signed by the mayor and other officials of the city as well as appellee. The amendment to the contract was adopted by resolution of the city council without an “aye” and “nay” vote.
Appellant contends for. a reversal of the decree because the contract was not made in accordance with the provisions of § 7528 of Crawford & Moses’ Digest, which is as follows:
“On the passage of every by-law or ordinance, resolution or order, to enter into a contract by any council of any municipal corporation, the yeas and nays shall be called and recorded, and to pass any by-law or ordinance, resolution, or order, a concurrence of majority of the whole number of members elected to the council, shall be required.”
The argument is made that the contract is void because of the failure to execute it in accordance with said 'section of the statute, and that appellee cannot enforce its provisions. It is also argued that it is ultra vires and non-enforceable. The right of a city to acquire a water source and an easement over lands to lay its water mains and pipes is not ultra vires. In the instant case it is immaterial whether the water supply and easement was acquired in conformity with the statute quoted above. The city cannot retain the spring and easement and .refuse to pay- the continuing consideration therefor, which is the use of free water by appellee., It may be that the contract can be abrogated in a proper proceeding because not executed in accordance with law, but certainly the city cannot retain the benefits under the contract and deny appellee the benefits flowing to him thereunder.
We have carefully read the decree of the chancery court, and have concluded it correctly and definitely sets forth the rights of each party under the contract as long as it remains in force and effect.
The decree is affirmed. | [
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Butler, J.
On the first Monday in January, 1935, the quorum court of Pulaski County made the following' appropriations for the office of prosecuting attorney:
‘ ‘ Salaries ..........................................$17,'500.00
“Contingent expenses............... 2,500.00
“Library .........!......................!............... 2,500.00.”
The prosecuting attorney’s office is situated in the Pulaski County courthouse. The purpose of the appropriation for the library of $2,500 was to enable the purchase of a law library to be located in the office of the prosecuting attorney, and this suit is to enjoin its purchase. The court below denied the prayer of the complaint, and the case is here on appeal.
There are several questions raised by the appellant, but there is no occasion to notice any except the first, namely, has the quorum court the authority to appropriate county funds to purchase a law library for the use of the prosecuting attorney’s office? The appellee contends that this authority is found in § 28, art. 7 of the Constitution, and § 2279 of Crawford & Moses’ Digest. We are cited to the cases of State use of Prairie County v. Leathem & Co., 170 Ark. 1004, 282 S. W. 367, and Craig v. Grady, 166 Ark. 344, 266 S. W. 267, as authority for the position assumed.
Section 28, art. 7 of the Constitution, authorizes the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concern of’respective counties.
That part of § 2279 of Crawford & Moses’ Digest quoted by appellee as sustaining his contention is as follows: “The county court of each county shall have the following powers and jurisdictions: * * * to have the control and management of all the property, real and pórsonal, for the use of the county; to have full power and authority to purchase or receive by donation any property, real or personal, for the use of the county, ánd to cause, to be erected all buildings and all repairs necessary for the use of the county ; to sell and cause to be conveyed any real estate or personal property belonging to the county, and appropriate the proceeds of such sale for the use of the county; to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of tlie respective counties. ”
We are referred to no particular clause in.the constitutional provision, or the section of the Digest, quoted supra, which is thought to uphold the contention here made. We discover no express provision giving to the court the power to expend money for the purpose of purchasing a law library, nor can we find any from which that power might be implied. ■ The “county purposes” for which the county’s) money may be disbursed are those purposes which promote the welfare of the county as a whole and of its citizens — such as, the erection of county buildings, bridges over county roads, and such other purposes as would promote the-general health and Avelfare of its-citizens — and could hardly be-extended to include the purchase of a laAV library for the use of a State or district officer as is the prosecuting attorney. This is true, although the title to the books purchased might be in the county. ¡
Section 2279 authorizes the county court to purchase real or personal property for the use of the county. The intention of the act is not to authorize the purchase of any and all kinds of personal property, hut only such as is necessary for the conduct of the affairs of county government, as court records, furnishing for county buildings, food and clothing for county prisoners and the like.
The effect of the decisions cited supra is, that where an express power is given the implied power arises to do those things necessary to carry the express power' into effect. The point in those cases was that, as the county court was the general fiscal agent of the county with supervisory power over the collection and preservation of county funds, it has the implied power to employ an expert accountant to examine the accounts of its officers clothed with the authority to collect and disburse revenues. We perceive no principle announced in those cases applicable to the instant case. Our conclusion therefore is that the provisions of the Constitution and statute relied upon confer no authority, either express or implied, for an expenditure óf the funds of the county such as is sought tó he prevented in this case.
Appellee cites, as ample authority for the contemplated purchase, § 4 of act 74 of the Acts of 1933, which is as follows: “The prosecuting attorney of each of said districts shall be allowed the sum of eight thousand five hundred ($8,500) dollars per annum for the contingent expenses of his office, including telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expenses, special services, operation of cars, and such other expenses which, within the discretion of the prosecuting attorney, are a proper expense of the office; and, also include necessary expenses in connection with the proper investigation of trials before the grand .jury or any court of the county.” If we give effect to the act cited, it affords no authority for the contention of the appellee. That act provides for $8,500 to be allowed the prosecuting attorney as “contingent expenses of his office.” As “contingent expenses,” it names expenses for certain specific items and concludes with: “such other expenses, which, within the discretion of the prosecuting attorney, are a proper expense of the office.” If we treat the phrase, “such other expenses” as relating to the expenses for the specific items named, then the expenses allowable would he only for items of the same generic class as the items specifically named. A law library cannot, by any legitimate construction, be- deemed- to come within the class of any of the specified items: This phrase “such other expenses” must therefore relate to the ordinary “contingent” expense of the office — that is, such expenses as might ordinarily 'be expected to arise in the conduct of the office, but which might not occur. It must be conceded that the discretion given the prosecuting attorney in the expenditure of the $8,500 is unusually broad, but wo do not think it can be legitimately stretched so as to give authority for the purchase contemplated.
Prom the views expressed it follows that the decree of the trial court must be reversed, and the cause is remanded with directions to grant the prayer of appellant’s complaint. | [
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Humphreys, J.
This is an appeal from judgments for $1,250 against appellant in favor of Easter Waters and her daughter and for $125 in favor of Sol Meyers, which judgments were rendered in *the circuit court of Cross County, growing out of a collision between appellant’s train and a team and wagon which was driven by Emmett Waters, which occurred at a point where a public road crossed the railroad track, known as “Killough Crossing,” east of the city limits of Wynne. The railroad track ivas located on a fill or high embankment running east and west for a considerable distance. The highAvay ran across the embankment at right angles and over rather steep approaches running north and south from the road level up to and oyer, the railroad embankment. A short freight train owned by appellant, while traveling west on the railroad track on December 29, 1933, ran over Emmett Waters, the husband of Easter Waters and father of Betty Waters, and the team he was driving, killing Emmett Waters and one of the mules, which belonged to Sol Meyers. The wagon was heavily loaded with baled hay, upon which Emmett was seated and driving the team slowly across the track when the collision occurred. He had come up the south approach onto the track, and was struck by the train before the mules could entirely cross the track.
Emmett Waters Avas a negro sharecrop farmer, about forty-seven years of age when killed, and usually cultivated ten acres of land, raising each year four or five bales of cotton and Avas a sober, industrious man. He and his wife had been married for seven years and until the last two years of his life had lived continuously together. They had two children. The first child died. The second child, one of the appellees, was nearly three years old when Waters was killed. During the last tAvo years of his life, Waters and his wife were separated, but he frequently visited his wife and child and made small contributions of money to them. He also furnished them with groceries. .About a month or so before he was killed, he and his wife had made arrangements to live together again.
Upon the conclusion of the testimony, the court submitted the cause to the jury as to whether appellant Avas liable in damages upon issues joined as follows: First, for its alleged failure to give the statutory signals; and, second, for its alleged failure to exercise ordinary care and due diligence after having discovered the perilous position of the deceased to prevent the collision.
It is first contended by appellant that the undisputed evidence showed that.the deceased was guilty of contributory negligence, and that for this reason the judgment in favor of Sol Meyers for the loss of his mule must be' reversed and his cause dismissed.
According to the testimony of the witnesses introduced by appellees, the deceased was driving a team and wagon loaded heavily with hay from the south up the approach to the railroad track, devoting his entire time and attention to his team. They did not see him look to the east to ascertain whether a train was coming from that direction nor stop and listen for its approach.- They said that, while approaching the track, one of his mules stumbled and fell to his knees, and that he was holding a tight line as if to assist the mule in getting up and to hold them to the right side of the road, which' was narrow, so as not to run into any oiie he might meet coming from the north over the dump -or embankment. This conduct, on the part of deceased tends to show that he was guilty of contributory negligence, and, as the rule of comparative negligence applies to persons only who are injured or killed by the operation of railroads, the judgment for killing his mule must be reversed, and his cause dismissed. Missouri Pacific Railroad Company v. Johnson, 167 Ark. 464, 268 S. W. 31.
The judgment cannot be affirmed under the doctrine ■ of discovered peril, as appellee’s own testimony shows that when Waters and his team were first seen by the servants of appellant, he was twenty or more feet from the track approaching it very slowly up hill in a heavily loaded wagon, and at the time there was nothing to indicate that he would not stop his team before he reached the track. He did drive upon the track in front of the train, but, at the time he did so, the train was too close to him to stop and prevent the injury.
- Appellant also contends that the judgment for $1,250 in favor of Easter and Betty Waters must be reversed because the evidence is insufficient to show that it failed to give the statutory signals required to be given as it approached said public crossing. It is argued that the required signals were given. The statute requiring signals to be given is as follows:
“A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street and be kept ringing or whistling un-' til it shall have crossed said road or street * * *; and the corporation also shall be liable for all damages which shall be sustained by any person by reason of such neglect. ’ ’
There was a sharp conflict in the testimony as to whether the signals were given in accordance with the statute as appellant’s train reached the crossing, and the finding of the jury that they were not given cannot be disturbed on appeal by this court.
The determination of whether the failure to give the signals was the proximate cause of the injury was also a question of fact to be determined by the jury. The jury may have concluded, and reasonably so, that, had the signals been given, the deceased would have heard and heeded the warning and stopped instead of driving his team upon the track in front of the moving train. The fact that the deceased ivas himself guilty of contributory negligence did not prevent the jury from finding that the failure to give the signals was the proximate cause of the injury.
The doctrine of comparative negligence was applicable, and the jury were correctly instructed relative thereto in the following language:
“If you find from the evidence that the said Emmett Waters was in fact guilty of contributory negligence, still such contributory negligence on his part will not prevent a recovery herein, unless you find that his contributory negligence was equal to or greater than the negligence of the defendants. But if you should find that the defendant was guilty of negligence, and that the intestate was also guilty of contributory negligence, and that the contributory negligence on the part of the intestate was less than the degree of negligence of the defendant, then your verdict should be for the plaintiff; but you should diminish the amount of the damages in proportion to the amount of such contributory negligence of the deceased. ’ ’
From what has already been said, it is unnecessary to discuss the question of discovered peril argued pro and con in the briefs of learned attorneys.
Appellant also contends that there is no substantial evidence in the record on which to base a finding for any particular amount of damages, and that therefore a finding of $1,250 was necessarily the result of speculation, conjecture, prejudice, and sympathy. We cannot agree in this contention. The modest amount of the judgment itself indicates that prejudice and sympathy were not the moving causes of the verdict. Had they been the basis for the verdict, the jury would have fixed a much larger amount than $1,250 for the death of a man. Neither can we agree that the verdict was the result of speculation and conjecture. Waters ivas in good health, able-bodied, industrious, sober, and, until the temporary separation from his wife, had expended practically all his earnings on his family and very little on himself. During the temporary separation, he had made small money contributions to them and had furnished them groceries. Before his death, he and his wife had made arrangements to live together in the future. He cultivated ten acres of land as a usual thing, and made four or five bales of cotton a year, and worked for others when he could find work to do. He had quite a long.expectancy, and his girl child was hardly three years of age when he was killed. The duty rested upon him to maintain this child. Certainly the present value of such support and services as he might render them during his expectancy would amount to at least $1,250. The temporary separation of these negroes should not materially diminish the amount his wife, Easter, ought to recover, and their separation could not possibly affect the child’s rights. In the case of Sipple v. Gas Light Company, 125 Mo. App. 81, 102 S. W. 608, a judgment in favor of a child for $2,000, whose parents were divorced and the custody of the child awarded to its mother, was sustained on the ground that the child’s rights were not impaired by a divorce decree between its parents.
The judgment is affirmed as to Easter and Betty Waters, and reversed and dismissed as to Sol Meyers. | [
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Smith, J.
Appellee was granted a divorce from appellant,- who insists on this appeal therefrom that it should be reversed: (a) because appellee had not resided in the State two months before filing suit, and (b) because the allegation of desertion as ground for a divorce is not sustained by the testimony.
The depositions taken in the case show that appellee became a resident of the State on December 21, 19.33, and filed suit for,divorce on February 19, 1934. He had not therefore been a resident of this-State for two months before filing suit, as required by act 71 of the 1931 session of the General Assembly. Acts 1931, page 201.
The complaint alleges numerous indignities and various acts of misconduct which no self-respecting man would endure.
On March 7, 1934, appellant filed a motion for an allowance of suit money and maintenance. On April 10, 1934, she filed an answer denying all the allegations of the complaint, and renewed her motion for an allowance for support and maintenance.
On June 7, 1934, appellee filed an amendment to his complaint, in which he charged desertion alleged to have been committed as follows:
“That for a long period of time prior to the first day of September, 1926, when he left the defendant, the defendant cursed, abused and threatened him, and for days at a time remained in a state of intoxication; that she remained away from home at nights, and made trips into the State of Florida and elsewhere for the purpose of being with other men; that, by reason of the conduct of the defendant aforesaid, he was driven from his home; that under the circumstances it was unsafe, unwise and highly improper and impossible to remain with the defendant; and that the defendant, by reason of her conduct, is guilty of willful desertion without reasonable cause for the space of more than one-year.”
On the following day appellant filed an answer to the amended complaint, in which she denied alb the- allegations of that pleading!
It appears, as has been said, that the suit was prematurely brought. But the amendment to the complaint was filed at a time when the plaintiff had resided in this State for a sufficient length of time to sue for a divorce. This amendment alleged a new cause of action, and, as was said in the case of Wood v. Wood, 59 Ark. 441, 27 S. W. 641, the- filing of an amendment setting up an entirely separate and distinct cause of divorce, and the answer of the defendant thereto, were equivalent to, and not distinguishable from,- the bringing of a new suit, and the défendant, by answering, - entered her ' appearance, and waived summons, and the same-result was reached as would have been accomplished had a new and original complaint been filed with service of process thereon.
As it appears, from the face of the pleadings and from the‘depositions as well, that more than five years had elapsed since the separation of the parties,- no ’divorce can be granted because of the indignities and misconduct as such which induced the-separation, unless this misconduct is-tantamount to desertion. - ■
■The statute requires proof that the cause of divorce occurred or existed within five years next before the commencement of the suit. Section .3505, Crawford & MoSes ’ Digest. But desertion is a continuing cause of divorce, and ‘ ‘ exists, ’ ’- within- the meaning of the statute, as long as the desertion continues. Mullenband v. Mullenband, 137 Ark. 505, 208 S. W. 801.
Desertion is ordinarily committed by the spouse who-leaves the home where the marital relation has -existed. But this is not always true, nor is it necessarily so. At § 64, vol. 1, Nelson on Divorce and Separation, p. 104, it is said: “The general rule is that where one party is guilty of a cause for divorce the injured party is justi fied in leaving the home, and after such separation has continued for the statutory period the injured party may obtain a divorce for desertion. If the conduct of the guilty party did not constitute a cause for divorce, neither party is entitled to a decree. The injured party was absent without justifiable cause, Avhile the guilty party is precluded from obtaining a divorce for a separation caused by his own misconduct.”
In 19 C. J., chapter Divorce, §§ 116-117, p. 61, it is said: “The spouse who by his or her act intentionally brings the cohabitation to an end is guilty of desertion. Hence where a spouse intentionally brings the cohabitation to an end by misconduct Avhich renders the continuance of the marital relations so unbearable that the other leaves the family home, the former, and not the latter, is the deserter.”
Among the numerous cases cited in the note to the text just quoted is our OAvn case of Rigsby v. Rigsby, 82 Ark. 278, 101 S. W. 727. In that case the husband’s mistreatment of his minor stepdaughter caused his Avife, the child’s mother, to leaA^e his home. Mr. Justice Riddick, speaking for the court, there said: “As her departure was caused by his unreasonable conduct, and as he has never expressed any regret or invited or tried in any Avay to induce his Avife to return, the courts, after the expiration of a reasonable time, are justified in treating his conduct as in law an abandonment of her.”
See also 1 Bishop, Marriage and Divorce, § 1710.
So here Avhile the five-year statute, above referred to, bars the action based upon the indignities as such, because the suit was not brought for more than five years after their commission, yet they Avere such acts as constituted a cause for divorce and rendered the continuance of the marital relation so unbearable that the husband Avas compelled to leave the family home, in which case the wife, and not himself, Avas the deserter. The court was therefore justified in finding that the wife was the deserter, and, as this is a continuing cause of divorce, it was not barred by the five-year statute.
The decree of the court awarding a divorce is therefore affirmed. | [
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McHaney, J.
Appellant was tried and convicted of the crime of rape, committed on a ten-year-old girl, and sentenced to death by electrocution. Inasmuch as the sufficiency of the evidence to support the verdict and judgment against him is not brought into question, and the details thereof are so revolting, we deem it unnecessary to set out the facts as given in evidence, for it would serve no useful purpose so to do. Suffice it to say that the evidence overwhelmingly supports the verdict of the jury, and the judgment of the court based thereon,
Several assignments of error are urged for a reversal of the judgment and sentence against appellant, but Ave do not think it necessary to discuss them all. One of the alleged errors so urged for our consideration relates to the action of the trial court in excluding the public from the courtroom for about ten minutes during the examination of the little girl who was the victim of appellant’s fiendish passions. This assignment is based upon article 6 of the amendments to the Constitution of the United States, and a like provision contained in article 2, § 10, of the Constitution of this State, both of AAdiich provide: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.”
The trial began on April 15th, and on that date the prosecuting witness had been put upon the stand to testify on behalf of the State against appellant. She made a very unsatisfactory witness. After the State had closed its case and appellant had testified in his own behalf on said date, court adjourned to the following morning, at which time the prosecuting attorney requested the court for permission to recall the little girl for further examination, and for an order to clear the court room while she testified. "Whereupon the court made the following statement: “The court will grant the request of the prosecuting attorney because it was apparent to the court that the prosecuting witness was frightened and embarrassed at the time she was called upon to testify yesterday; that there was a very large crowd in the courtroom at the time; and at this time the courtroom will be cleared of eAmry person in here except the jury for ten minutes.” Appellant objected to the exclusion of the public from the 'Courtroom on the ground that he was entitled to a public trial under the above constitutional provisions, and that the order of the court clearing the courtroom Avas an invasion of his constitutional right to a public trial. This objection was overruled, and an exception Ava-s taken. The prosecuting witness was then recalled and further examined, and gave very damaging testimony against appellant. We cannot agree that he was deprived of a public trial within the meaning of said constitutional provisions. It was ap parent to the court and to every one else in the courtroom, and is apparent to us from a reading of her testimony given on the previous day, that she was terribly frightened and embarrassed to have to go upon the witness stand in the presence of a courtroom crowded with people and give testimony that must have been embarrassing and humiliating to her in a high degree. Under this situation she failed to give testimony which the court felt she could give if the embarrassment of the large audience in the courtroom were removed.
In 16 O. J., page 807, § 2052, it is said that it is within the discretion of the court to clear the courtroom where the court feels that it is necessary to do so “to secure the administration of justice, and to facilitate the proper conduct of the trial, as where the courtroom is crowded to such an extent as to interfere with the orderly administration of justice. It has also been held under some constitutional or statutory provisions, that in cases where the evidence is of a peculiarly indecent and vulgar character, the court may, in the interest of public morality and decency, exclude from the courtroom all persons except the jurors, witnesses, and others connected with the case, although there are decisions to the contrary. ’ ’
In State v. Damm, (South Dakota), 252 N. W. 7, the defendant was charged with second degree rape committed upon his foster daughter, thirteen years old. She was a witness against him and, after being examined by the State for some time, she commenced to cry, and it was apparent that she was greatly embarrassed and emotionally disturbed. Upon motion of the State’s attorney, the court cleared the courtroom during the remainder of her testimony, and this was assigned as error on appeal. The court in overruling the assignment said: “How far, for how long, and to what extent the public may be excluded from a trial of a criminal case without infringing upon the constitutional right of the defendant is a matter of some conflict in the authorities. Cf. Cooley’s Constitutional Limitations, (8th Ed.) p. 647; State v. Callahan, (1907) 100 Minn. 63, 110 N. W. 342; Reagan v. U. S., (1913) 202 F. 488, 120 C. C. A. 627, 44 L. R. A. (N. S.) 583; Moore v. State, (1921) 151 Ga. 648, 108 S. E. 47; State v. Saale, (1925) 308 Mo. 573, 274 S. W. 393; State v. Bonza, (1928) 72 Utah 177, 269 Pac., p. 480. In the instant case, it is to be observed that appellant made no request to have any specific person or persons or his friends exempted from the effect of the exclusion order. The order was effective only during the testimony of the prosecutrix. In view of the nature of the case and the age of the prosecutrix, her embarrassment and disturbance are readily understandable. Under all of the circumstances here appearing, we do not think the court abused its discretion or committed prejudicial error by its ruling, or deprived appellant of a public trial within the meaning of the constitutional provisions. ’ ’
There are a number of cases on the subject, and the authorities are divided on the question now presented. We think it would be a work of supererogation to undertake a review of them. So far as the diligence of counsel discloses or as we have been able to find, this court has never decided the question. We are of the opinion, however, that the South Dakota court in State v. Damn, supra, correctly held that the court room might be cleared for a short period of time in the interest of justice, and that such matter rests in the sound discretion of the trial court. We therefore hold in this case that the trial court did not abuse its discretion.
Another assignment of error urged for a reversal of the judgment is that the prosecuting witness was not a competent witness. On this question but little need be said in view of the disposition we make of this case on another assignment of error. Without reviewing the questions asked and answers given by her touching on her competency as a witness, we hold, after a careful consideration thereof, that she was a competent witness and that the court did not err in permitting her to testify on being recalled, over appellant’s objections.
Another assignment of error relied upon relates to a statement of the prosecuting attorney in retorting to a statement made by counsel for appellant when the latter was making his closing argument to the jury. The record reflects that there are two bills of exceptions relating to this matter, one being that approved by the court and the other a bystanders’ bill. During the closing argument of one of counsel for appellant, he stated to the jury that the prosecuting attorney wanted to burn the defendant for political effect, so that he could tell the people that he had burned a man. The prosecuting attorney objected to this argument, and the objection was sustained by the court. Later the same counsel stated in effect that -the prosecuting attorney wanted to have his Roman holiday; that he wanted to inflict the death penalty on appellant, so that he could tell the people that he had burned a man. Thereupon, the prosecuting attorney arose to his'feet and objected to the remark, and, in the presence of the jury, exclaimed: “You know that is not true; you know that in yonder you offered to plead guilty, and the court would not accept your plea. ’ ’ That is the statement made as reflected by the court’s bill. According to the bystanders ’ bill, the statement of the prosecuting attorney was as follows: “Mr. Gritensohn, (counsel for appellant) you know that is not so, and you know that in yonder (pointing to the judge’s chamber) you tried to plead the defendant guilty and take life, and the court would not accept your plea.” Counsel for appellant objected to the statement of the prosecuting4 attorney, which objection was sustained by the court with this statement: 4 £ The statement of the prosecuting attorney will be withdrawn from the consideration of the jury, and you will not consider it in passing upon the guilt or innocence of the defendant, and you will try this case only according to the law and evidence as- presented here.” The statement of the prosecuting attorney referred to this: At the conclusion of the testimony, both sides having rested, counsel for appellant asked for a conference with the court and the prosecuting attorney in the judge’s chambers. This request was granted by the court, and, upon retiring to the judge’s chambers, counsel for appellant stated that appellant desired to plead guilty if the court would give him a. sentence of life imprisoninent. The court and the prosecuting attorney agreed to accept appellant’s plea of guilty and assess Ms punishment at life imprisonment. Whereupon, the following transpired:
“Hogan: I would like to say another thing. The Court: You may say anything you want .to. Hogan: My mother testified this morning that I was not right, and I am not right; my mind was tested in Little Hock. The Court: I cannot accept your plea. Hogan: No, that is all right. The Court: I cannot accept your plea of guilty at this time, and we will proceed with the trial. ’ ’
It is insisted by appellant that the statement of the prosecuting attorney is erroneous and highly prejudicial. The State defends on the ground that, even though the statement was erroneous, it was an error invited by the statements of counsel for appellant, and, if not invited, that any prejudicial effect was removed by the remarks of the court in sustaining appellant’s objection thereto. We cannot agree with the State in either defense of the remarks made. The statement of the prosecuting attorney, whether the one shown by the court’s bill or the one in the bystanders ’ bill, was a statement of a material fact not in evidence and not competent to be proved, and was bound to be prejudicial. It was in the nature of an offer to compromise, and it is well settled that offers to compromise even in civil cases cannot be shown on a trial of the case. The statement of counsel for. appellant was merely an expression of an opinion on his part as to the reason why the prosecuting attorney was seeking vigorously the infliction of the death penalty upon appellant. It was improper argument, and the trial court so held and sustained an objection thereto. Even so, it did not justify the prosecuting attorney in retorting that the appellant had offered to plead guilty in yonder, pointing to the judge’s chambers, and that the court refused to accept his plea. Neither can we agree that the statement of the court in withdrawing' the remark from the consideration of the jury removed the prejudicial effect thereof. As said by Judge Mulkey in Quinn v. People, 123 Ill. 333 [15 N. W. 52], quoted by Judge Wood in German-American Insurance Company v. Harper, 70 Ark. 305, 67 S. W. 755: “As well might one attempt to brush off with the hand a stain of ink from a piece of white linen” as to remove from the minds of the jury the impression that must have been created by the remarks of the prosecuting attorney. In Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946, we said: “This court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party, unless the trial court by its ruling has removed the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70; Hayes v. State, 169 Ark. 1173, 278 S. W. 15; Sanders v. State, 175 Ark. 61, 296 S. W. 70. But this court does not reverse for a mere expression of opinion of counsel in their argument before juries, unless so flagrant as to arouse passion and prejudice, made for the purpose and necessarily having that effect.”
It does not necessarily follow, however, that, because this error was committed, the case must be reversed and remanded for a new trial. We think the error may be cured by accepting his plea of guilty and reducing his punishment to life imprisonment, which the trial court would have done but for his insistence that he was “not right in his mind,” although he assured the court that it would be all right to do so. The question of his sanity was submitted to the jury, and by its verdict he has been found to be sane.
Other errbrs are assigned and argued in the briefs which we have examined and find without merit. We deem it unnecessary to discuss them.
The sentence will be reduced from death to life imprisonment, and the judgment as thus modified will be affirmed. It is so ordered. | [
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Johnson, C. J.
In the early morning of December 25, 1934, appellant, Checker Cab & Baggage Company, was engaged by appellee, Perry Harrison, to convey himself, his mother and his little nephew to his home situated on the south side of Twelfth Street pike in west Little Rock. Appellant’s cab, after being engaged as aforesaid at the Missouri Pacific station in Little Rock, conveyed the party to appellee’s home situated in the 6200 block. The taxicab driver, instead of approaching the address or curb so as to permit the passengers to disembark from the right side of the cab upon the curb, approached same and parked the cab so that it was necessary for appellee and his co-passengers to disembark from the cab upon the main traveled portion of the highway. The cab was parked at an angle to the curb. The appellee while engaged in disembarking from the cab and while endeavoring to make the necessary change to compensate appellant for the service rendered was run against or struck bv a moving automobile being driven by Johnny Lord which last-mentioned car was being driven in the opposite direction to that last pursued by appellant’s cab. Appellee was very severely and permanently injured as a consequence of the collision and instituted this action against the cab company and Johnny Lord in the Pulaski Circuit Court to compensate his injuries.
Appellee’s complaint alleged that he was injured by the joint and concurring negligence of appellant and Johnny Lord in this: that the Checker Cab & Baggage Company was negligent in parking its cab on the south side of the street facing west, leaving its lights burning thereby interfering with east-bound traffic upon said street, and was also negligent in discharging appellee and his co-passengers from said cab upon the main traveled portion of the highway or in the path of the eastbound traffic; that Johnny Lord was negligent in driving his car at an excessive rate of speed without due regard for other traffic upon the 'way. Separate answers were filed by appellant and Johnny Lord, in which all material allegations of the complaint were specifically denied.
The testimony adduced by appellee upon trial to a jury, when viewed in a light most favorable to him, as we are required to do, was to this effect: Appellee resided at 6223 West Twelfth Street in the city of Little Bock; about 2:30 a. m., December 25, 1934, appellee, his mother and his nephew arrived at the Missouri Pacific station in Little Bock and engaged a cab from appellant Checker Cab & Baggage Company to convey the party to appellee ’s home; that the cab driver, upon reaching appellee’s address, parked the cab on the south side of the street or way headed west and left the lights burning;.that the cab driver got out of the cab on the right side, and came back and opened the rear cab door on the right side and invited the appellee and the other passengers out upon the main traveled portion of the highway; that the left-hand door of the cab or the door adjacent to the Qurb was securely fastened and could not be opened by the passengers, although they endeavored to do so; that, when appellee disembarked from the cab, the driver gave him a check for the fare, and while endeavoring to make change and pay the fare he was struck by a fast-moving automobile being driven by Johnny Lord; that the cab was parked at an angle to the curb and the right front door was left open by the driver while the passengers were being discharged. The road or street .at the point where the accident occurred is of asphalt and is 17 feet, 9 inches in width. The cab parked as aforesaid occupied approximately 10 feet of the open highway from the south line or approximately one-half of the open highway. The highway or street at this point from the south line to the north line is approximately 25 or 26 feet in width hut approximately four feet of the open highway on the north side is not used by the traveling public.
The testimony on behalf of the appellant in reference to the physical conditions surrounding the accident and the manner in which it occurred was in sharp conflict with that offered by appellee, but it is not deemed necessary to here set-it out because the jury’s findings are adverse thereto. The testimony further established that the appellee was very seriously and permanently injured, but, since no complaint is urged in reference to the jury’s award being excessive, we shall omit a detailed statement thereof. The trial court, at the request of appellee and over the objection of appellant, gave to the jury in charge requested instruction number 2 as follows: “You are instructed that, if you find from a preponderance of the evidence that the plaintiff was a passenger on one of the passenger cabs of the defendant Checker Cab & Baggage 'Company on the night of the 24th of December, 1934, and if you further find jfrom a preponderance of the evidence that, upon reaching his destination, the driver of said cab discharged him. in the street in a place where, under all the circumstances shown in evidence, the driver in the exercise of ordinary care should have reasonably foreseen that injury might result to plaintiff by his being struck by a passing automobile, and if you further find from a preponderance of the evidence that in so discharging plaintiff, the driver of said cab acted as a reasonable prudent man would not have acted under the circumstances, and on that account as a proximate cause thereof plaintiff was injured while in the exercise of ordinary care for his own safety, then your verdict will be for the plaintiff against the Checker Cab & Baggage Company,” and refused to instruct the jury at appellant’s request as follows:
No. 1.
“You are instructed to return a verdict for the defendant, Checker Cab & Baggage Company, Inc. ’ ’
No. 11.
' “You are instructed that the defendant, Checker Cab & Baggage Company, Inc., was a common carrier of passengers for hire, and if you find from the evidence in this case that .the defendant, Checker Cab & Baggage Company, Inc., transported the plaintiff with safety to the gate in front of his home and discharged him upon the highway in safety, its duty to him was performed, and thenceforth the plaintiff, Harrison, was a mere traveler upon the highway subject to all the duties and obligations imposed upon him as such traveler, and if you find from the evidence that after the defendant, Checker Cab & Baggage Company, Inc., had discharged safely the plaintiff, Harrison, he was struck by an automobile driven by the defendant, Johnny Lord, or the negligence of the plaintiff, Harrison, concurring with the neglig’ence of the defendant, Johnny Lord, or solely on account of the negligence of the plaintiff, Harrison, himself, then you will return a verdict for the defendant, Checker Cab & Baggage Company, Inc.”
The jury returned a verdict in favor of appellee and against appellant, Checker Cab & Baggage Company and Johnny Lord for the sum of $7,500, and from a judgment entered thereon, this appeal comes.
Appellant Johnny Lord has filed no abstract and brief in this court, therefore under rule 9 the judgment against him must be affirmed. Ozark Hardware Company v. Covington, 187 Ark. 1054, 63 S. W. (2d) 844.
Appellant Checker Cab & Baggage Company contends that trial court erred in refusing to direct a verdict in its favor as requested by it. This contention is grounded upon the argument that there is no testimony tending to show that its negligence, if any, in parking the cab on the wrong side of the street and in discharging appellee upon the main traveled portion of the public highway were the proximate and efficient causes of the collision of the cab and the automobile and appellee’s consequent injury.
Under the facts and circumstances heretofore detailed we think this was a question of fact for the jury’s consideration and judgment. In the recent case of Healey & Roth v. Balmat, 189 Ark. 442, 74 S. W. (2d) 242, the question of proximate cause was painstakingly considered and discussed, and, under facts and circumstances in many particulars similar to those presented here, we stated the applicable rule as follows: “Appellants then contend, that the stopping of the ambulance was not the proximate cause of the accident complained of. It was certainly not the sole cause. The undisputed proof shows that Blake was driving on the wet, slippery road at about thirty miles an hour, and he was unquestionably guilty of negligence, as the jury found; but the accident could not have happened if the ■ ambulance had not been parked so as to obstruct the traffic. * * * As we have already said, whether this conduct on the part of. the driver of the ambulance was negligence was a question for. the jury. ’ ’
It is the rule of general application, and finds support in our own cases, that to render a person liable for a negligent act, it need not be the sole, cause thereof. ■ It is sufficient if it concurs with one or more efficient causes. Where several efficient causes combine to produce injuries, a person is not relieved from liability because he was responsible for only one of them. Coca-Cola Bottling Co. v. McAnulty, 185 Ark. 970, 50 S. W. (2d) 577; 45 C. J. 920.
A number of cases from, other jurisdictions are urged upon us as decisive of the issues here argued, notably the case of Cole v. German Savings & Loan Society, 124 Fed. 113, but we find it unnecessary to review these cases at length. Our own opinions, heretofore cited, decide the issue, in effect, and we feel impelled to adhere to their doctrine.
It is also urged that the parking of the cab on the south side of the street in the manner in which it was parked was not negligence because there was a space of more than 15 feet of the main traveled portion of the highway left unobstructed. See § 24 of act 223 of. 1927. The testimony is in sharp cojiffict on this question of fact. That on behalf of appellee tended to show that the parked cab obstructed one-half of the open highway which according to the testimony was in no event more than 25 or 26 feet in width. If the cab occupied one-half of this open space, then § 24 of act 223 of 1927 was violated. On the other hand, if the main traveled portion of the highway is restricted to that portion which has asphalt surface, then the uncontradicted testimony shows that appellant’s cab was parked in violation of said section. At any rate this was an issue of fact and was properly submitted to the jury for its consideration. The court therefore did not err in refusing to direct a verdict as requested by appellant.
Appellant’s next contention is that the trial court erred in giving to the jury'in charge appellee’s requested instruction number 2 and in refusing to give appellant’s request number 11, both of which are heretofore quoted. It will be noted that appellant’s request number 11 absolved it from all liability when the passengers were discharged from the cab, irrespective of the place of discharge or the conditions surrounding it. We do not understand this to be the law. In Arkansas Power & Light Co. v. Hughes, 189 Ark. 1015, 76 S. W. (2d) 53, we stated the applicable rule as follows: “The law imposes the highest degree of skill and care on common carriers, consistent with the practical operation of their cars, to furnish their passengers a safe place to get on and get off.” See also Western Casualty & Surety Co. v. Independent Ice Co., 190 Ark. 684, 80 S. W. (2d) 626.
Appellant’s requested instruction number 11 ignores this principle of law and was erroneous, and appellee’s requested instruction number 2, conforming thereto, was a correct declaration and properly given, therefore no error is made to appear from this assignment.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellee recovered judgment for $2,000 against appellant to compensate a personal injury. For tbe reversal of this judgment, it is insisted that the court erred in giving an instruction numbered 3 at the request of appellee and in refusing to give an instruction numbered 4 requested by appellant. It is also insisted that the verdict is excessive.
The nature of the case and the respective theories upon which it was tried will sufficiently appear from these instructions. Instruction numbered 3, given over the objection and exceptions of appellant, reads as follows: “In this case one of the defenses alleged by the defendant is that the plaintiff’s injuries, if any, were caused by the negligence of the driver of the truck on which the plaintiff was riding. The jury is instructed that, if the plaintiff’s injuries, if any, were caused solely by the negligence of the driver of the truck on which the plaintiff was riding, then the plaintiff cannot recover; but if, while in the exercise of ordinary care for his own safety, and without negligence on his part, the plaintiff was injured by the combined negligence of the defendant and the- driver of the truck on which the plaintiff was riding, then in such event your verdict should be for the plaintiff as against the defendant, for in such case the defendant, together with the driver of the truck on which plaintiff was riding, would be what is known as joint tort-feasors, and the defendant, as well as the driver of the truck on which plaintiff was riding, would be liable, and the plaintiff would be entitled to recover. ’ ’ Instruction numbered 4, which the court refused to give at appellant’s request, reads as follows: “The jury is instructed that, if you find from the evidence that the car in which the plaintiff was riding, and also the car in which the defendants were riding were both on the highway and proceeding in the same direction, and that the driver of the car in which plaintiff Avas riding gave a signal Avhich in common acceptation indicated to the defendant that it was the purpose of the plaintiff to turn to the left side of the highway, the defendant had the right to assume that the car in which plaintiff was riding ivas turning to the left, and that the right-of-way for the defendants would be left clear, and if yon further find that the plaintiff or the car in which he was riding started to turn to the left, or did turn to the left, and thereafter immediately turned off to the right, and in the path or course in which the defendants Avere expected to drive, and that the sudden turning of the car in which plaintiff was riding to the right Avas the proximate cause of the plaintiff’s injury, the defendants would not be liable, and your verdict should be for the defendant.”
Appellee was riding in but was not driving the truck, and, as usually happens in these collision cases, the testimony is in irreconcilable conflict; the driver of each car excused himself from blame and attempted to place the responsibility upon the other.
It is argued that instruction numbered 3 is erroneous because appellee alleged that appellant was solely to blame for the collision, and did not sue the driver of the truck; and for the additional reason that it permits a recovery against appellant, even though his action was not the proximate cause of the injury.
We think there was no error in this instruction. It tells the jury very plainly that, if appellee’s injuries were caused solely by the negligence of the driver of the truck in which appellee was riding, appellee could not recover. In other words, if appellant was not guilty of negligence contributing to the injury, he was not liable; but, if there was such negligence, this would be a proximate cause. The instruction further declares the law to be that, if appellee was injured, while in the exercise of ordinary care and without negligence on his part, by the combined negligence of appellant and the driver of the trunk in which appellee was riding, a verdict should be returned against appellant. This is true because, in the event stated, both drivers would be responsible and liable for the injury which resulted from, their .combined negligence. It is true the 'truck driver was not a party to the suit, but it was not essential that he should be, as appellee had the right to sue either or both of the joint tort-feasors, as “the author of either negligent act is liable to the injured patty for the damage sustained.” Missouri Pacific Rd. Co. v. Riley, 185 Ark. 706, 49 S. W. (2d) 358.
Appellant testified that, as he approached the truck, he was' driving about forty-five to fifty miles per hour. Witnesses for appellee placed the speed at a greater rate. Appellant testified that he could not say exactly how fast he was driving when he hit the truck, but it is his theory-that, his speed, whatever' it may have been, was- not the proximate cause of the injury, and instruction numbered 4, if given, would have so declared the law.
It is argued that the truck driver’s action in indicating that he would turn off the highway on the left side, and then, without further indication of his intention, turning to the right, was the sole and proximate cause of the collision, and that the jury should have been so instructed.
The truck driver testified that he gave a signal, by extending his left arm, that he intended to leave the highway. The instruction assumes that he did this, but it, in effect, declares the law to be that, if the signal was. one which, in common acceptation, indicated to appellant that it was the'purpose of the truck driver to turn to the left side of the highway, the appellant had the right to proceed without reducing his speed or bringing his ear under control. This is not the law. Act 223 of the Acts of 1927, page 721, is an act entitled* “A Uniform Act regulating the operation of vehicles on highways,” and § 17 thereof regulates the duties of drivers of motor vehicles in starting, stopping or turning. It reads as follows:
“Section 17. (Signals on Starting, Stopping or Turning).
“(a) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and, if any pedestrian may be affected by such movement, shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal, as required in this section plainly visible to the driver of such other vehicle, of the intention to make such movement.
“(b) The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by an approved mechanical or electrical signal device, except that, when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible both to the front and the rear, the signal shall be given by a device of a type which has been approved by the department. Whenever the signal is given by means of the hand and arm, the driver shall indicate his intention to start, stop, or turn by extending the hand and arm horizontally from and beyond the left side of the vehicle. ’ ’
The extension of the hand and arm horizontally from and beyond the left side of the vehicle is the statutory signal that the person giving it is about to start, stop or turn, and no other signal is required by law, and there was no testimony that Ave have in this State any other signal which, in common acceptation, indicates the driver’s intention. Our statute requires this signal to be given, and does not require any other. That signal was given, and was observed by appellant. Due care required therefore that he should have operated his car accordingly.
It was said, in the case of Madison Smith Cadillac Co. v. Lloyd, 184 Ark. 544, 43 S. W. (2d) 729, that: “The law of the road is that.the automobile in front has the superior right to the use of the highway for the purpose of leaving it on either side to enter intersecting roads and passageways, and the traveler behind must, in handling his car, do so in recognition of the superior right of the traveler in front.”
The case of Schlosberg v. Doup, 187 Ark. 931, 63 S. W. (2d) 337, is decisive of the question that instruction numbered 4 is not a correct declaration of the law. That case is very similar to the instant case on the facts. There the driver of an automobile and the members of her family were following and overtaking an ice truck, which was traveling in the same direction but at a slower speed. The truck driver, before reaching an intersection street, held out his left hand to indicate that he would turn to the right or north. In doing so he swerved his truck somewhat to the left to miss the corner of the curb and turned to the right into the intersecting street. The driver of the car, being a resident of California, misunderstood the left-hand signal given by the truck driver, thinking it indicated a left-hand turn only, as it did under the law of her State, and turned her car slightly to the right and proceeded into the intersection, where the collision occurred. An instruction was requested in that case, which is set out in the opinion, very similar to the. instruction numbered 4 requested in the instant case. It was held that the refusal to give the instruction was not error, and in so holding the duty of the driver of the approaching automobile was defined as follows: “All the witnesses agree that the truck was traveling very slowly, and that a signal warning was given that might have meant any one of four things: (a) That he would turn to the left, (2) turn to the right, (3) slow down, and (4) stop. Under such circumstances, the driver of the car behind must take notice of the signal and bring his car under control accordingly. ’ ’
Instruction numbered 4 did not recognize this duty on the part of appellant, and it was therefore properly refused.
We are unable to say that the verdict is excessive. Appellee received injuries which were more painful than dangerous. He required the services of a physician, who attended him at intervals during a period of over two months. He sustained an injury in the sacro-iliac region, had quite a number of lacerations and. bruises, and a traumatic injury to the hip and knee. His back was bruised, and there was a sprain over the hip bone. The injuries were described by the doctor, who stated that while they were painful they were not of a permanent character. Appellee was temporarily rendered unable to pursue his usual avocation or to do other manual labor, and the doctor thought this condition would continue for as long as ninety days after the time of the trial on account of the injuries to appellee’s leg and back.
There appears to be no error, and the judgment will be affirmed. It is so ordered. | [
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Mehaffy, J.
The appellant brought this suit in the Pulaski Circuit Court to recover $1,969, 12 per cent, penalty, and a- reasonable attorney’s fee, against the appellee. Appellant was the beneficiary in a policy of insurance issued by the appellee, insuring the life of appellant’s husband, in the sum of $2,000. The insured died on March 11, 1933, and due notice was furnished the insurance company. There was an indebtedness due the company from the insured in the sum of $85.90, and a dividend due of $55.72, leaving a net indebtedness due the company of $30.18.
The appellee answered denying the material allegations in the complaint. It is agreed that the yearly premiums for the years 1925, 1926 and 1927 were paid in cash, and that the premium due for the year 1928 was paid by a loan on the policy. It is agreed that the premium for 1929 was not paid.
The evidence introduced by appellee tended to show that, when the policy lapsed, there was not sufficient reserve to pay for extended insurance to the insured’s death. Evidence was introduced showing that a surrender charge was necessary if the policy was surrendered or lapsed from the third to the ninth years.
The policy contains the following provisions:
“After three full years’ premiums have been paid, the insured may, within three months after any default in payment of premium or within thirty days after any anniversary if the policy has become fully paid, surrender the policy, and
“1. Receive its cash surrender value; or
“2. Receive the amount of participating paid-up insurance which the cash, surrender value at date of default, less any indebtedness hereon will purchase, payable at the same time and on the same conditions as this policy, but without disability or double indemnity benefits. The insured may at any time obtain a loan on such paid-up insurance, or surrender it. for its cash surrender value; or
“3. If the policy be not surrendered for cash or for paid-up insurance within three months after default in payment of premium, its cash surrender value at date of default, less the .amount of any indebtedness, shall automatically purchase continued insurance from the date of default for the face of the policy plus any dividend additions and less any indebtedness to the company. The continued insurance shall be without future participation and without the right to loans, cash surrender values, disability or double indemnity benefits.
“The cash surrender value shall be the reserve on the face of the policy at the end of the insurance year or, in event of default, at the date of default (omitting fractions of a dollar per thousand of insurance) and the reserve on any outstanding paid-up additions, plus any dividends standing to the credit of the policy, and less a surrender charge for the third to the ninth years, inclusive, of not more than one and one-half per cent, of the face of the policy. Such reserve will be computed on the basis of the American Table of Mortality and interest at three per cent., and the amount of paid-up insurance under (2) and the term of the continued insurance under (3) will be computed on the same basis at the attained age of the insured on the date of default.
“The values in the table opposite are computed in accordance with the above provisions, assuming that premiums have been duly paid for the number of years stated, that there is no indebtedness to the company, no outstanding- paid-up additions, and no dividends standing to the credit of the policy; the surrender charge, if any, has been deducted.”
It is unnecessary to set out the evidence because there is no dispute about the facts. The only question presented for our consideration is: Was the appellee justified in making a surrender charge in this case?
The policy provides that the cash surrender value shall be the reserve on the face of the policy at the end of the insurance year, or, in the event of default, at the date of default, and the reserve on any. outstanding paid-up additions, plus any dividends, standing to the credit of the policy, and less a surrender charge for the third to the ninth years, inclusive, of not more than one and one-half per cent, of the face of .the policy. It will be seen that the contract itself provides for a surrender charge. It is agreed that if this surrender charge is a proper charge, and not. prohibited by public policy, the insurance was not extended to the time of the insured’s death; but that if the surrender charge was prohibited by public policy, the insurance was extended beyond the death of the insured, and appellant would be entitled to recover. ■
The appellant states that the main question is whether appellee was justified in making a surrender charge in this case. Appellant calls attention to the case of Security Life Ins. Co. v. Watkins, 180 Ky. 20, 224 S. W. 462. This case was- decided by the Supreme Court of Kentucky in 1920. The contention of the insurance company in that ease was that the Kentucky statute applied to domestic companies only, and not to foreign corporations. ' The statute impliedly prevented an insurance company from making a surrender charge. We have no such statute in this State.
Appellant next calls attention to Boozer v. Anderson, 42 Ark. 167. In that case the note provided that, if it became necessary to collect the note, the maker would pay attorney’s fee of 10 per cent, on the amount that should be recovered. The court held that that was a penalty, and the provisions for attorney’s fee was void. The note itself bore 10 per cent, interest, the maximum amount allowed under the Constitution, and it coiild have been nothing else but a penalty. The court in that case, however, said that, about the validity of such stipulations, there has been and is great diversity of judicial opinion.
The surrender charge in the policy in this case is not a penalty, but it is expressly agreed in the policy that the surrender value shall' be the reserve, plus any dividends standing to the credit of the policy, and less a surrender charge for the third to the ninth year, inclusive, of not more than one and one-half per cent, of the face of the policy.
The next case to which appellant calls attention is United States Life Ins. Co. v. Spinks, 126 Ky. 405, 96 S. W. 889. The opinion in that case also construed a statute, and, after discussing the statute at some length and the facts in the case, the court said: ‘ ‘ Having determined to prevent forfeitures, the next step of the Legislature was to provide a plan by which the value of the defaulted policy might be justly and correctly ascertained.”
We have no such statute in Arkansas, and the evidence in this ease shows that the surrender charge in the contract was a fair and equitable charge. The evidence is given in general terms, statements made as to the cost of procuring the insurance, but there is no evidence tending to show what any of the particular items of cost consist of. But, as we have said, we have no statute here, and the question is whether public policy prohibits the surrender charge.
In 50 C. J. 858, the rule with reference to public policy is stated as follows: “Nevertheless, with respect to the administration of the law, the courts have frequently quoted and often approved of the statement that public policy is that principle of law which holds that ‘no one’ can lawfully do that which has a tendency to be injurious to the public or against the public good; that rule of law which declares that no one can lawfully do that which tends to injure the public or is detrimental' to the public good; the principles under which freedom of contract or private dealing is restricted by law. for the good of the community. ‘Public policy’ has been said to be synonymous with ‘policy of the law,’ and also has been defined as ‘the public good’.”
As to whether a contract is against the public policy is a question of law for the court to determine from all the circumstances of each case. Persons should not be unnecessarily restricted in their freedom to make contracts, and a court will not hold that a contract is void, as being contrary to public policy, unless the contract binds one to do something which is injurious to the public interest. 13 C. J. 427; 6 R. C. L. 707.
The question involved in this case was decided by the court of appeals of the eighth circuit. The court said in that case that the table introduced showed: “The loan and surrender values under this policy shall be upon the Actuaries Table of Mortality with 4 per cent, interest per annum, and the net value thereof is the entire reserve, less not more than 2y¿ per cent, of the amount insured by the policy.” Inter-Southern Life Ins. Co. v. Zerrell, 58 Fed. (2d) 135.
The court also said in that case: “The policy was an Arkansas contract, and it is conceded that there was no statutory requirement that the insured have the benefit of the entire reserve in case of default in the payment of premiums. Therefore the amount available for the purpose of extended insurance depends upon the terms of the policy.”
The court further said in that case: ‘ ‘ Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in.the absence of ambiguity, in their plain, ordinary, and popular sense.”
The surrender charge provided for in insurance policies has been discussed and upheld where there was no statute prohibiting such charges, in Gilley v. Mo. State Life, 116 Tex. 43, 273 S. W. 825; Erickson v. Equitable Life Assurance Society, 193 Minn. 269, 258 N. W. 736.
We have no statute in this State which prohibits the making of the contract here involved, and it is not prohibited by public policy. The judgment of the circuit court is therefore affirmed. | [
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Johnson, C. J.
On April 30, 1924, in a cause then and there pending the chancery court of Pope County made and entered the following decree: “It is therefore considered, ordered, adjudged and decreed by the court that the said C. C. Wait, commissioner of this court, who now has in his hands $128.37, is ordered, authorized and directed to pay to R. B. Holland the sum of $42.79; to T. Holland or his rightfully appointed and duly qualified guardian the sum of $42.79, and to Tollie Holland or his duly qualified and lawfully appointed guardian the sum of $42.79, and that said commissioner be credited with said amounts when same has been paid. ’ ’
On June 3, 1932, R. B. Holland, Tee Holland and Tollie Holland, appellants here, filed their motion for summary judgment against C. C. Wait, the commissioner referred to in the order aforesaid, alleging that they are the distributees designated in said order of April 30,1924, and that no part of said distributees ’ share or shares has been paid them or either of them, and prayed judgment for the sums due. On October 25,1932, C. O. Wait, commissioner, filed his answer or response to appellants’ motion wherein he denied any liability and ¿specially pleaded that Will Kesler, plaintiff, and Robert Bailey, his attorney in the original action, had never paid to him as commissioner or into the registry of ■ the court the amount of the bid for the lands partitioned in the original action, and that they should be made parties defendant, to the end that it may be ascertained- whether the distributive shares mentioned in the order of April 30,1924, had been paid by them to the designated distributees. By proper order Kesler and Bailey were made parties as prayed. Subsequently, appellants amended their motion for summary judgment by praying for interest and certain penalties, and conceding that R. B. Holland had been paid his distributive share.
On September 4, 1934, Robert Bailey appeared in said cause and responded to the motions therein filed, whereupon the following order was entered: “Now on this September 4, 1934, comes Robert Bailey and states: That for the purpose of keeping down litigation but not admitting any liability but especially denying liability, he has paid the sum of $25 to R. B. Holland, Tee Holland and Tollie Holland and Oscar H. Winn in full settlement of any and all claims of any of said heirs or their attor-. neys. It is therefore considered, ordered, adjudged and decreed by the court that the-motion for summary proceedings be dismissed with prejudice,” from which this appeal comes.
On February 25, 1935, appellants filed their joint motion to vacate the last-mentioned order of dismissal, and as grounds therefor alleged fraud in its procurement. On submission of the motion to vacate, the affidavit of R. B. Holland, one of the distributees in the order of April 30,1924, and one of the parties designated in the order of September 4, was submitted in evidence and in support thereof, in which the affiant swore that Robert Bailey did not pay to him $25 in settlement of the claims of his co-appellants or any part thereof. Without further proof being submitted by either of .the parties, the chancellor entered the following order, “Now on this day comes on for hearing ‘motion to set aside order of the court made on September 4, 1934,’ come the interveners, Tollie Holland, Tee Holland, by their solicitor O. H. Winn, and come defendants to said" motion, C. C. Wait and Robert Bailey, in person; the court, being well and sufficiently advised,- doth overrule said motion, to which ruling of the court the interveners except and pray for an appeal to the Supreme Court of Arkansas, which is by the court granted,” and from this order an appeal was duly prayed and granted.
On March 1, 1935, and within six months from the rendition of the order of September 4, 1934, an appeal was duly granted by the clerk of this court.
Subdivision 4 of § 6290 of Crawford & Moses’ Digest provides that judgments -may be vacated or modified by the courts in which they are rendered for “fraud practiced by the successful party in the obtaining of the judgment or order.” We have held, however, that .the alleged fraud must consist in the procurement of the judgment. (Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566), and the fraud must be' perpetrated upon the -court in the rendition of the judgment (H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262 S. W. 308), and it must also appear that there is a valid defense to the judgment, Chambliss v. Reppy, 54 Ark. 539, 16 S. W. 571; Holman v. Lowrance, 102 Ark. 252, 144 S. W. 190.
■ The response of Robert Bailey as shown by the order of September 4, 1934,- was nothing more nor less than an appearance to the cross-complaint filed against him by C. C. Wait, commissioner, and, a special plea of full payment and satisfaction of the demands set forth in appellants ’ motion. This special plea did not warrant the court in disposing of appellants’ motion summarily and without proof in support of it. Appellees did not respond to appellants ’ motion to vacate and submitted no proof to refute that offered by appellants; therefore we inust’ consider the affidavit of R. B. Holland as prima, facie true. -If it-'bo true, as stated by R. B. Holland in his affidavit, -that Robert ¡Bailey did not pay to the Hollands •and their attorney of record the sum of $25 as repre sented by Bailey to the chancery court, this would be such fraud in the procurement of the judgment as to warrant the court in vacating it, provided there is a valid defense to the action. There can be no question but that the distributees in the order of April 30, 1924, were entitled to the sums of money therein designated unless these sums had been paid or otherwise satisfied. There is no valid defense offered to appellants ’ motion for summary judgment other than that Robert Bailey' paid to appellants $25 in settlement thereof. If this be. true, appellants’ demands were extinguished; if not, appellants are entitled to judgment for the sums due.
For the reason stated, the cause is reversed and remanded, with directions to proceed not inconsistent with this opinion. | [
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Butler, J.
Appellant filed a pleading in the Stone Circuit Court, styled ‘ ‘ complaint, ’ ’ by which it sought to procure a writ of mandamus to require the appellee, the clerk of the county court, to issue certain warrants. During the course of the proceedings, appellee, as a taxpayer, filed an intervention praying judgment against the appellant for $750 theretofore paid it out of the county treasurer. She also, as clerk of the county court, interposed a demurrer to the complaint filed against her as such. The demurrer was sustained, appellant’s complaint dismissed, and a judgment by default rendered in favor of the county against the appellant on the taxpayer’s intervention. From these orders and judgments appellant has prosecuted an appeal to this court.
We set out the substance of the complaint to the effect that appellant entered into a contract with the county judge of Stone County to refund the bonds of that county in the amount of $53,500, and, as a fee for his services, he was to receive a sum equal to five per cent, of the face of the bonds. Appellant is a corporation organized and doing business under the laws of Arkansas, and has fully complied with its part of the contract by having printed and delivered the said refunding bonds to the holders of the old bonds. The contract with the county judge was made exhibit A to the complaint. There was the further allegation that on the 19th day of December, 1934, the county court made an order allowing the claim of the appellant for the sum of $1,275, balance due it under the aforesaid contract, and directing the appellee, as county clerk, to draw certain warrants in favor of the appellant payable out of the “bond fund” and deliver the same to it. A copy of said order is attached to the complaint as exhibit C. There was also an allega tion that on December 27,1934, the county court made and entered an order of record directing the county “treasurer” to issue “her check or draft” in the sum of $650 to the appellant to be paid out of the “bond fund” when collected by the collector of revenues. This order was made an exhibit to the complaint, but does not appear to be involved in the proceeding against the county clerk. It was alleged that demand had been made upon the county clerk to issue the said warrant and that she had refused to do so. The prayer was for a writ of mandamus to issue directing the county clerk to comply with the orders of the court.
In testing the sufficiency of a complaint on general demurrer, the court indulges every reasonable intendment in its favor, and if the facts stated, together with every reasonable inference arising therefrom, constitute a cause of action, the demurrer should be overruled. Ellis v. First National Bank, 163 Ark. 471, 260 S. W. 714; Sharp v. Drainage District, 164 Ark. 164, 251 S. W. 923; Driesbach v. Beckham, 187 Ark. 816, 12 S. W. (2d) 408. And incomplete, ambiguous, and defective averments should be reached by motion to make more definite and certain. Fitch v. Walls, 169 Ark. 745, 276 S. W. 578. When tested by these rules, we think the complaint, with the exhibits, sufficiently pleaded a judgment of allowance of appellant’s claim by the county court and the order based thereon to the county clerk to issue the warrants and the clerk’s refusal to obey said judgment and orders.
County courts, within the sphere of the jurisdiction conferred on them by the Constitution, are superior courts of record and have exclusive original jurisdiction in all matters relating to the fiscal affairs of their respective counties, including claims against the said counties. Section 28, art. 7, Constitution; Pierce v. Edington, 38 Ark. 150; Williams v. State, 64 Ark. 159, 46 S. W. 186; Saline County v. Kinkead, 84 Ark. 329, 105 S. W. 581; Leathem v. Jackson County, 122 Ark. 114, 182 S. W. 570; Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106. The county court had jurisdiction to pass on the claim of the appellant, and to make the necessary orders for its payment when allowed. The question presented by the demurrer raises a collateral attack on the judgment and orders of the county court. These judgments and orders, when collaterally attacked, must be presumed to be regular and correct. Clay v. Bilby, 72 Ark. 101, 78 S. W. 749; Kulbreath v. Drew County Timber Co., 125 Ark. 291, 188 S. W. 810.
As we must presume the court properly allowed the claim, the only question we can consider in this proceeding is the order directing the clerk to issue the warrants payable out of the ‘ ‘ bond fund. ’ ’ The record made in the trial court and presented to us is unsatisfactory and sheds but little light upon the question to be considered. We are not advised whether refunding the bonds effected a saving to the county, whether the benefit to be derived was merely an extension of maturities of the debts first funded, or whether both purposes were served. The authority of a county to refund its bonds within certain limitations was upheld in the case of Talkington v. Turnbow, 190 Ark. 1138, 83 S. W. (2d) 71. This authority necessarily implies the power of the county court to provide and pay for the necessary expense incurred in refunding bonds. As the order allowing appellant its fee has not been appealed, for the purposes of this case the propriety of the fee as a part of the necessary expense is res ■judicata. The question then is, how shall that fee be paid, whether from the bonding fund or from the general revenues of the county?
The appellant construes a sentence contained in § 1 of act No. 102, Acts of 1935, as authority for direction to the clerk to draw the warrants on the bond fund. The sentence is: ‘ ‘ Such refunding bonds shall not be issued in a greater amount than the face value of the bonds and matured interest outstanding of such county then being refunded, with interest to the date of such new bonds, plus expenses, payable out of the bond fund account, incurred in connection with the issuance of the new bonds, and any such new bond shall not be delivered except upon the surrender and cancellation of a like amount of the indebtedness being refunded, and in no event shall any such refunding bond bear a greater rate of interest than that borne by the bond for which it is exchanged.” As will bo observed, the sentence is long and involved, the phrases disconnected, and the punctuation serves rather to obscure than to clarify the legislative intent. It can hardly be construed to mean that the refunding bonds may be issued in an amount equal to the matured face value of the funded debt with interest to which shall be added the expense of refunding; for, giving it this construction, it might serve to increase the,county’s bonded indebtedness. Neither could the language, “plus expenses, payable out of the bond fund account,” be construed to mean that the expenses of refunding should be paid from the fund created by taxation for the purpose of paying the bonded indebtedness where to do so would increase the sum total of the indebtedness to be discharged by that taxation. The reason is that this would divert the revenues to a purpose not within the meaning of the constitutional provision authorizing the levying of the tax and, to the extent the indebtedness was increased, would impair the obligations of the contract existing between the bondholders and the county. .
It may be gathered from the language of the entire act, considering the purposes sought to be effected, that the Legislature indulged the presumption that a refund of the county’s bonded indebtedness might effect a saving to the county by obtaining a lower interest rate on the new bonds than on the old, and that, out of such saving, the expense of reissue might be paid out of the bond fund -without the impairment of. existing contracts or departing from the spirit of Amendment No. 10, which dedicates the fund arising from the taxation authorized to the payment of the indebtedness represented by the bonds. Where a saving is effected in any manner, whether by securing a lower interest r,ate or otherwise, the payment of the expense of securing the refund would be an effectual application of such as a payment pro tanto of the indebtedness, and, as thus construed, will not offend against any of the provisions of Amendment No. 10.. When tested by demurrer, we must assume there was the basis indicated for the order that the warrants be drawn payable out' of the bond fund.
Omitting the formal parts, the intervention is as follows: “Mrs. Frances Hartón, by leave of court, intervenes herein and says: That she is a taxpayer in Stone County; that the plaintiff has been paid seven hundred and fifty dollars; that said amount was paid without any warrant for the same being issued; also, that it was paid out of the bond fund of the county, which fund was pledged for the payment of the bonds described in the complaint; that said amount was paid contrary to law, and the plaintiff should be required to refund said seven hundred and fifty dollars to Stone County. ’ ’
Appellant complains that the judgment by default was rendered without summons having been issued on the intervention or served on it, and it had no notice that the intervention had been filed. This would be of no avail to the appellant. An intervention is not an independent proceeding where it is against the plaintiff in the original action, but is ancillary and supplemental to the main case. In a suit where there is an intervention, the .original parties are already in the court and must take notice of all subsequent proceedings relating to the subject-matter, including intervening petitions. Board of Directors, etc., v. Raney, 190 Ark. 75, 76 S. W. (2d) 311. The intervention here, however, alleges no facts upon which the judgment could be grounded. There is no allegation that appellant was not justly due the said $750 paid'it or any facts alleged tending to show that such payment was fraudulently made. The allegation, “said amount was paid contrary to law,” is merely the pleader’s conclusion without the statement of any fact properly leading to that conclusion apart from the pleader’s deduction. The pleading of a mere conclusion fails to state a cause of action, and a judgment by default based upon such a complaint is void. Brodie v. Skelton, 11 Ark. 120; Thompson v. Hickman, 164 Ark. 469, 262 S. W. 20; Wilson v. Overturf, 157 Ark. 385, 248 S. W. 898.
It follows from the views expressed that the judgment sustaining the demurrer and the default judgment is reversed, and the cause remanded, with directions to overrule the demurrer and to set aside the default judgment to the suit, and for such further proceedings as the parties may be advised. | [
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Mehaffy, J.
On December 18, 1854, the General Assembly of the State of Arkansas passed an act incorporating the Crawford Institute and appointing trustees for such institute. Section 1 of the act provided that the trustees and their successors are created a body corporate and politic under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South, and shall be known -and called by the name of the Crawford Institute. Section 3 of the act provided that the institution .should be located in or near the city of Yan Burén in Crawford County, in this State. Section 4 of the act provided that the corporation, by and with the advice and consent of the said Annual Conference, shall have the power to appoint all necessary teachers to carry on said Crawford Institute. Section 5 of the act provided that it should be the duty of said corporation to transmit to the Annual Conference of the Methodist Episcopal Church, South, a report of the progress of said Crawford Institute, including statements of the finances thereof, number of pupils, course of studies, and the said Annual Conference may, as often as they think proper, appoint a committee to visit said school and inspect its condition. Section 6 of the act provided that said corporation shall, together with the consent of said Annual Conference, have power to establish departments for the study of any or all óf the learned professions, and to institute and grant diplomas in the same, to constitute and confer the degree of doctor in the learned arts and sciences and belle lettres, and to confer such other academical degrees as are usually conferred by most learned universities. Section 7 of the act provided that said corporation, together with said Annual Conference, shall have power to institute a board of competent persons, always including the faculty, who shall examine all applicants, etc.
On April 25, 1856, Alfred Wallace made a will in which he bequeathed $10,000 to Crawford Institute to aid in completing the building being erected and to establish the institution upon a permanent basis. The 26th paragraph of the will read as follows: “I hereby give and bequeath $30;000 to endow the Crawford Institute.”
Alfred Wallace died, and on January 10, 1857, the Legislature passed an act changing the name of the institution from Crawford Institute to Wallace Institute. Wallace died in 1856. The Wallace Institute functioned as an educational unit in Crawford County until the war between the iStates in 1861. It was never thereafter revived as an educational unit, but the trustees made loans from time to time of the money belonging to the institute. Vacancies on the board of trustees were filled from time to time, but in 1883 so many vacancies existed that the Legislature passed an act naming a board of trus tees, and § 1 provided that the trustees shall constitute a body corporate and politic under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South, to be known by the name of the Wallace Institute.
The State of Arkansas, on relation of the Attorney General, brought this suit to obtain the assets held by the trustees of the Wallace Institute. The defendants named in the suit were the trustees of Wallace Institute, Hendrix College, the Arkansas Annual Conference of Methodist Episcopal Church, South. Hendrix College and the Arkansas Annual Conference of Methodist Episcopal Church, South, filed an answer admitting most of the allegations in the complaint, and alleging that Hendrix College, located in Conway, Arkansas, was serving the educational needs of practically the same territory served by the Crawford Institute and its successor, Wallace Institute; that the general course of study and curriculum of Hendrix College are now of a 'standard which the Wallace Institute and its predecessor should have maintained under their charter; that Hendrix College is a thriving institution with a creditable endowment fund with substantial buildings and thorough and modern equipment, and the faculty consisting of the highest class of educators; that special emphasis is placed upon Christian life and Christian education; that it is a proper institution to administer the endowment fund given to Crawford Institute by Alfred Wallace; that it is in all respects similar to the Crawford Institute and its successor. They allege that, because of the failure of the Wallace Institute to function and its inability to ever function, the purposes of the Alfred Wallace endowment will fail completely unless the money is given to Hendrix College; that, if the fund is given to it, the intention of the donor in making the bequest will.be carried out as nearly as possible and will be used for the maintenance of an institution of higher learning located in Arkansas, under the care and patronage of Arkansas Annual Conference of Methodist Episcopal Church, South. They deny that the claim of Hendrix College is inferior to the claim of the State, and deny that the fund has escheated to the State of Arkansas; allege that the court had the power to administer the fund under the cy pres\ rule, and allege that the court should order the fund paid over to the trustees of Hendrix College to endoAv said college.
The Wallace Institute and its board of trustees filed answer admitting practically all of the allegations in the complaint; deny that they have surrendered the charter; admit that the gift from Alfred Wallace was absolute with no right of reversion, and admit that Hendrix College is an institution of learning incorporated under the laws of Arkansas, but deny that it is similar in all respects to CraAvford Institute and Wallace Institute, and allege that Conway is 127 miles from Van Burén.
Van Burén School District No. 42 and its board of directors filed an intervention, and adopted the ansAver of the Wallace Institute and its board of trustees, and in addition thereto alleged that it was clearly the purpose of Alfred Wallace in the will involved in the suit, to promote the interest of education and good morals in Crawford County, Arkansas, at or near Van Burén, and that the public school system maintained by the interveners in Van Burén, Arkansas, constitutes an institution more nearly similar to CraAvford Institute than Hendrix College or any other educational institution. They allege that the course of study maintained in the Van Burén school system is similar in all respects to that which was actually maintained by Wallace Institute at the time said bequest was made. They further allege that the definite charity specified in the testator’s Avill has failed, and that under the doctrine of cy pres the court has jurisdiction to effectuate and substitute another mode for the purpose of carrying out the general charitable intention of the testator and can most nearly do so by substituting the public school system of Van Burén, School District No. 42, as beneficiary of the endowment.
A response and cross-complaint were filed by plaintiff to the intervention of the school district and its directors, denying the allegations in said intervention.
A reply and cross-complaint were filed by Gilliam C. Yoes as an individual, and as trustee of Wallace Institute, denying the allegations of the answer of Hendrix College and its trustees.
The interveners filed reply to plaintiff’s cross-complaint. Plaintiff also filed reply to the cross-complaint of Yoes;
The chancellor entered a decree holding that, under the cy pres rule, Hendrix College was entitled to the assets of the Wallace Institute, it being* an educational institution of the same standard and type as the Wallace Institute was authorized to maintain. The chancery court also held, however, that the loans to Van Burén School District were made in good faith without the taint of fraud, and that, when the Wallace Institute board made the loan, it was encouraging education and promoting good morals, and held that the notes and mortgages of the school district should be canceled.
The case is here on appeal.
There was introduced in evidence copies of the acts of the Legislature above-mentioned and also copy of Alfred Wallace’s will. All parties concede that the donation by Wallace was a charitable trust. The evidence shows that Hendrix College is located at Conway, Arkansas, about 125 miles from Van Burén; that it is a Methodist College of higher learning authorized to issue degrees and diplomas, and authorized to maintain a preparatory department. The evidence also shows that Hendrix College was incorporated and is now under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South. The evidence shows that the school district had borrowed money from the Wallace Institute Board and that it is now indebted to said board in the sum of several thousand dollars. The school directors knew at the time they received the money that it was a trust fund; and knew the facts with reference to the donation by Wallace.
The school district No. 42 is a public school district organized under the laws of the State of Arkansas. Neither the school board nor Hendrix College made any claim to the fund for more than seventy years.
It is first contended by appellee that the State of Arkansas was not a proper party to bring the suit.
In suits for the enforcement of a public trust or charity, the Attorney General is a proper party and may file such suit. 11 C. J. 366 et seq. Moreover, no objection was made by any of the parties to the State’s bringing the suit, and it was not suggested in the court below that it was not a proper party to bring the suit.
Section 1189 of Crawford & Moses’ Digest provides that the defendant may demur when the plaintiff has not legal capacity to sue or where there is a defect of parties plaintiff or defendant. Section 1192 of Crawford & Moses’ Digest is as follows: “When any of the matters enumerated in § 1189 do not appear upon the face of the complaint, the objection may be taken by answer. If no such objection is taken either by demurrer or answer, the defendant shall be deemed to have waived the same except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
The controversy, however, now is between Hendrix College and the school district, each of them claiming under the cy pres rule.
The appellee says “This case ought to be considered by the court strictly as a case between the appellants, Hendrix College and the Methodist Conference, on the one side, and the appellees on the other, just as though it had not been instituted by the State. ’ ’
The cy pres doctrine, as applied in the United States, is the doctrine of approximation. In its last analysis it is found to be a simple rule of judicial construction designed to aid the court to ascertain and carry out as nearly as may be, the intention of the donor.
“A further application of the doctrine sometimes takes place where the object itself fails. In such case another object of the same general, charitable nature will be substituted by a court of equity to receive the benefit of the charity. And where the donee to whom the gift was made is not in existence at the time the gift takes effect, or has not the capacity to take, the charity will nevertheless be enforced according to the main charitable intention of the donor. And likewise where the donee is in existence at the time the gift takes effect, and thereafter ceases to exist, the courts will go very far in an.endeavor to discover a predominating charitable intention so that the trust may be enforced.” 5 R. C. L. 368.
There is no difficulty in the present case in determining the intention of the donor. The first act of the Legislature introduced in evidence shows clearly that it was the intention of the lawmakers that the institution should be under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South. The corporation was given power by said act to employ teachers, and the faculty was given power to enforce all bylaws and regulations, but they must perform these duties, under the act, by and with the advice and consent of the Annual Conference. The act required the corporation to transmit to the Annual Conference a report of the progress, etc., and provided that the Annual Conference may, as often as they think proper, appoint a committee to visit said school and inspect its condition. The corporation was given- power to establish departments and grant diplomas with the consent of the Annual Conference. Under this act all the duties were to be performed under the care- and with the advice and consent of the Annual Conference. It is plain from the provisions of the act that the institution was to be managed under the direction of the Methodist Conference.
This act was amended by an act passed and approved January 10, 1857, changing the name from Crawford Institute to lYallace Institute, because Wallace had made a liberal donation to the institution. Wallace died in 1856, and in his will bequeathed $10,000 to endow the Crawford Institute, and the act last mentioned was then passed, changing the name to Wallace Institute. In his will he also bequeathed to the son of his brother, Leonard Wallace, $7,000, $2,000 of which was to be spent in the payment for his education at Crawford Institute, but the clause in the will giving this $7,000 expressly provided that the remaining $5,000 should be used to defray the expenses incurred in completing his nephew’s education at some Methodist College or University of high repute.
On March 8,1883, the Legislature passed an act naming a board of trustees, and also stated that they should constitute a body corporate and politic under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South.
It therefore appears throughout the acts and the will that it was the intention of Wallace that this charity 'should be devoted to a school controlled :by the Methodist Conference. This seems perfectly clear, and we do not think there can be any doubt about the intention of the donor.
It is contended however, that the school district in Van Burén is entitled to the fund under the cy pres rule. At the time of the passage of the acts above mentioned and at the time that Wallace made his will we had no system of free schools as we now have. Under the present system persons between the ages of six and twenty-one can receive free education. The statute also provides that the supervision of public schools, and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.
Under our system a public school could not be operated under the care and management of any church or any conference. Therefore, the Van Burén School District could not comply with the terms of the acts or provisions of the will. The Methodist Conference would have no right to require the public schools to report to it, and no right to managu or control in any way any public school in this State.
We therefore think that it would be impossible for the Van Burén School District to comply with the provisions of the will or of the statutes.
It is contended, however, that the school must be located in Crawford County, or it will not be entitled to the fund. It is true that the donor gave the money to an institute in Crawford County.
In the case of Schell v. Leander Clark College, 10 Fed. Rep. (2d), the court said: ‘‘It is elementary that charitable trusts will not be permitted to fail if the intention of the creator of such trusts can be carried out and effect be given thereto. It seems to us that the provision by Leander Clark that the college should bear his name was a mere incident to a broader and more generous purpose^ — that of assisting to found and perpetuate a fund to be so invested and managed as to yield an annual income to be used for the better education of young men and wom.cn who desire to take advantage of the opportunity offered by the maintenance of such an institution as the college in question.”
The court also said: “Where it becomes impracticable or impossible to administer a charitable trust according to its terms, a court of equity will assume jurisdiction thereof, and, in the exercise of its broad general powers, direct the trustees to administer the same or apply the cy pyres' doctrine thereto.”
In the same case it was also said: “It seems to us clear that the dominant purpose of the gift of Leander Clark was to establish a perpetual charitable trust for the aid and support of Christian education. The fact that he may have believed that Leander Clark College would exist forever is without controlling importance. He made no provisions for a forfeiture or reversion, but ■instead used language from which we infer a contrary intention. ’ ’
In the instant case it seems clear to us that the dominant purpose of the gift of Alfred Wallace was to establish a perpetual trust for the aid and support of an institution under the care and patronage of the Arkansas Annual Conference of the Methodist Episcopal Church, South. Wallace may have believed that Crawford Institute would be established and maintained forever in Crawford County, but he made no provision for forfeiture and unquestionably intended to establish a perpetual charitable trust. It was not provided that the institution should be in Van Burén, but near Van Burén. As a matter of common knowledge, Conway is more accessible to people in Van Bure'n and Crawford County, than the institute established in 1854, or at the time of the donation in 185G, than most of Crawford County would have been at that time. In other words, Conway is more accessible to the people of Crawford County than the institute Avould have been at that time if established in Van Burén.
Moreover, the place of the institution Avas not the dominant intention of the donor. This is gathered, not only from the manner of making the donation and the acts, but from the additional fact that he expressed an intention that his nepheAv should be educated in a Methodist College.
It is contended, hoAveA^er, that this action by Hendrix College is barred by the statute of limitations. It is true that, if there is a clear breach of trust by the trustees, yet if the beneficiary has for a long time acquiesced in the misconduct of the trustee Avith full knoA\dedge of it, a court of equity will not relieve him, but leave him to bear the fruits of his oavii negligence or infirmity of purpose. But in this case there is no evidence that there aauis a breach of trust of Avhich the beneficiary had knoAvledge. As a matter of fact, the eAddence all shows that the school board was claiming the money that it had as a loan and did not claim title to it, and did not claim a right to it under the cy pres doctrine until this suit Avas begun.
“As betAveen trustee and cestui que trust in the case of an express trust, the statute of limitations has no application, and no length of time is a bar.” Perry on Trusts and Trustees, § 863.
“Trusts are not only enforced against those persons A\dio ate rightfully possessed of the trust property as trustees, but against all persons Avho come into possession of the property bound by the trust Avith notice of such trust. Even a purchaser, still more a volunteer, taking possession of trust property Avith a notice of the trust Avill be made a trustee by the court.” 26 R. C. L. 1237.
It is agreed by all parties that this is a charitable trust, and this court is committed to the cy pres rule, and both parties are claiming under that rule. It is therefore unnecessary to consider any questions except to determine what the dominant intention of the donor was in making the bequest, and AAdiether the beneficiary claiming the property is barred by the statute of limitations.
It folloAvs from what we have said that the decree of the chancery court must he reversed, and the case remanded with directions to enter a decree in favor of Hendrix College, and to enter a judgment against the school district for the amount of the trust property in its possession.
It is so ordered. | [
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McHaney, J.
Appellant was convicted of the crime of robbery and sentenced to three years in the penitentiary.
For a reversal of the judgment against him, appellant first says there is no evidence of force or intimidation. In this he is in error, for John Rutkowski, the night watchman at the American Legion Club in North Little Rock, from whom the property was taken, testified that appellant grabbed and held him while a companion, referred to by appellant as Red, robbed him of six slot machines containing from $30 to $90, and a pistol worth $20. Robbery is defined by statute, § 2410, Crawford & Moses’ Digest, as “the felonious and violent taking of any goods, money or other valuable thing from the'person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.” This testimony was sufficient to establish a felonious and violent taking by force. While Rutkowski testified that he was not put in fear and therefore not intimidated, it was not essential that both force and intimidation be employed by the robbers. This court has held that it is sufficient in an indictment for robbery to allege that the taking was done by violence, without alleging intimidation. Clary v. State, 33 Ark. 561. It was there further held that: ‘ ‘ The words of the definition of robbery are in the alternative ‘violence or putting in fear,’ and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery. ’ ’ The definition referred to in the above quotation is the common-law definition of robbery, but the statute makes no material change, simply substituting the word “intimidation” for the words “putting in fear.”
Appellant’s defense was that the property was taken with Rutkowski’s consent, and therefore no robbery was committed. He so testified and said that his companion purchased the slot machines by previous arrangement. This was a disputed question of fact which the jury has settled against him.
It is also argued that, since the indictment alleged the felonious and violent taking against the will of Rutkowski by putting him in fear, and since the proof showed he was not put in fear, this constituted a fatal variance. What we have heretofore said disposes of this argument. The proof is sufficient to support a finding that the taking was felonious and violent.-which implies force..
No error appearing, the judgment must be affirmed. It is so ordered. | [
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Butler, J.
This appeal comes from a judgment based on a verdict in an action brought by the appellees against Otto Lockhart and Mrs. Nellie Jobe, residents of the State of Texas, and Lillian Brunner and Louise True-man, residents of the State of Arkansas, for the injury of a child in the residential section of the city of Arkadelphia, Arkansas-, caused by the child being struck by an automobile driven by Otto Lockhart in which the other defendants were also riding. Liability was sought against the defendants other than Otto Lockhart on the theory that they were engaged in a common enterprise with him and that his negligence would be imputable to them. The trial resulted in a verdict in favor of Lillian Brunner and Louise Trueman and in favor of the plaintiff against Otto Lockhart and Nellie Jobe in a very substantial amount, which award by the jury is not questioned by the appellants, as being excessive.
1. The first ground urged for reversal is the refusal of the trial court to remove the case to the district court of the United States. The time within which the defendants were required to answer expired at noon on October 29, 1934, that being the first day of the court.. Previous to this time apt notice and proper bond for removal were made and filed and before noon on October 29, 1934, the appellants filed their petition for removal of the cause to the Federal District Court; on the afternoon of the same day, filing what is called “An Amendment” to their petition. The last pleading filed was more in the nature of an amended petition than an amendment to the original petition, but this is immaterial. The petition, as first filed, after alleging the nature of the action and the diversity of citizenship of the defendants, contained the following allegations: ‘ ‘ That plaintiffs have improperly and fraudulently joined as defend ants in tliis 'cause the said Lillian Brunner and Louise Trueman for the sole and only purpose of attempting to defeat or prevent the removal of this cause to the United States District Court; that neither the said Lillian Brunner or Louise Trueman was, or now is,-a necessary and proper defendant in this cause, and in their pleadings herein plaintiffs wholly fail to show any cause of action or right of recovery as against either of ■ them,,-.or both of them combined; that there was-no common enterprise between them or either of them, and -the said defendants, Lillian Brunner and Louise-. Trueman, in the use of said automobile causing said accident and the alleged negligence of the said Lillian Brunner and Louise Trueman, are not- actionable at law nor do ;said allegations, even if taken as true, entitle said.plaintiffs to recovery against said Lillian Brunner and Louise Trueman.”
The amended petition (much abbreviated but stating its essentials),"averred that the plaintiffs had improperly and fraudulently joined Lillian Brunner and Louise True-man as codefendants for the purpose of. vesting jurisdiction in the State courts and of divesting the district court of its jurisdiction. Plaintiffs denied -with particularity the alleged negligent acts' of Otto Lockhart in the operation of the automobile and denied that they knew of any facts from which they would be informed that Otto Lockhart would not be a proper driver, and denied knowledge of any of the alleged defects in the car he was operating. It was alleged that the allegations as to the negligence of the resident defendants were made for the purpose of divesting the district court of jurisdiction, and the true facts were stated to be tliat Lillian Brunner and Louise Trueman were riding in the automobile as passengers, having no interest in the same and not being, engaged in a common enterprise with the. petitioners ; that the resident codefendants had no knowledge of the perilous position of the child before, or when, injured; that the accident was wholly unavoidable. Further and final allegations were made that ‘‘all of the above facts were known to the .plaintiffs at the -time of the filing of this cause, or could have been known by proper investigation; and that all the allegations in plaintiffs’ complaint with reference to codefendants, Lillian Brunner and Louise Trueman, were made for the purpose of joining these parties as defendants, so that this court might be vested with jurisdiction, and that the district court of the United States might be divested of its jurisdiction; that plaintiffs have no cause of action against the codefendants, but if they do it is separable from any cause, if any, which plaintiffs have against petitioners. ’ ’
It must be conceded that the petition as first filed Avas insufficient to authorize the removal of the cause. The allegation as to the fraudulent joinder merely stated a conclusion of law. No facts were alleged from which that conclusion might be deduced. This is necessary, and the failure to state the facts is fatal to the petitioner’s right to remove for that cause. The allegations of the petition for removal considered by the court in the case of Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, are set out in Missouri Pac. Ry. Co. v. Miller, 184 Ark. 61, 41 S. W. (2d) 971, with relation to the fraudulent joinder for the purpose of conferring jurisdiction in the Federal court are much fuller and more explicit than in the petition involved in the instant case, but the court there held that the allegations presented no basis for the relief prayed. It said that to merely apply the epithet “fraudulent” Avill not suffice. In Wilson v. Republic Iron Company, 257 U. S. 92, 42 S. Ct. 35, the court held that in a petition for removal the showing relating to the fraudulent joinder “must consist of a statement of facts rightly leading to that conclusion apart from the pleader’s deductions.” This court recognized the force of this rule in Mo. Pac. Ry. Co. v. Miller, supra, and in Phillips Petroleum Company v. Jenkins, 190 Ark. 964, 82 S. W. (2d) 264.
Under the rule announced, it therefore appears that the allegation as to fraudulent misjoinder Avas not imperfectly stated in the petition ‘but, on the contrary, there was a total lack of allegation upon which the prayer of the petition might rest. The amended petition did not amplify pertinent allegations of the first petition nor does it set out in proper form what had theretofore been improperly stated, but injects a necessary allegation not contained in the first petition.
It has been held that, after time for pleading in the State court has passed, court may permit a petition previously filed to be amended where the amendment is a mere matter of form and not of material nature. Roberts v. Pacific & A. Railway & Nav. Co., 104 Fed. 577. And it is generally held that in the Federal courts the petition for removal may be amended where the amendment goes no further than to cure technical defects and to clarify allegations imperfectly stated or to amplify them. Carson v. Dunham, 121 U. S. 421, 7 S. Ct. 1030; Frazier v. Hines, 260 Fed. 874; Amerson v. W. U. Tel. Co., 265 Fed. 909; Hall v. Payne, 274 Fed. 237.
It is doubted whether in any case except in mere matters of form an amendment can be entertained in the State court to a petition filed within apt time where the amendment is filed after the period allowed for the filing of the petition for removal. Such an amendment was allowed by the Supreme Court of North Carolina in the case of Newton v. Liggett Meyers Tobacco Company, 194 N. C. 816, 140 S. E. 742, but in that case the motion for leave to amend was made prior to the expiration of the time to answer. The court held that, for the purpose of a motion for removal, the amendment to the petition was deemed to have been filed as of the date of the motion to amend, and in that case it was further observed -. ‘ ‘ The amended petition is but a restatement of the grounds for removal. ’ ’
In the case of Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396, the Supreme Court of Connecticut, after stating, the grounds for removal because of diverse citizenship, said: “There are decisions of circuit courts in support of the view that petitions which show no case for a removal may be amended or replaced by another at any subsequent time by leave of the State court, and that such action will relate back to the time when the original petition was filed. Such a doctrine seems to us to contravene the theory on which the fact of removal depends. In a case where a right of removal exists, the filing in due season of a proper petition and bond, when brought to the attention of the State- court, ipso facto withdraws the suit from its jurisdiction; and, if the petition is thereafter amendable at all, it is only in the circuit court, and not there to the extent of' introducing any new ground of removal. If, on the other hand, in such a case the petition claims the right of removal on wrong grounds, while it can be amended or replaced by another at any time within the period allowed for filing an original petition, yet, should this not be done, to allow the State court afterwards, by permitting an amendment, to make the suit removable, by virtue of a legal fiction as to the relation of amendments to the date of the pleading amended, is to allow the authority of a State to supplant the authority of the United States in regulating" the jurisdiction of the courts of the United States.”
The case of Brigham v. Thompson Lumber Co., 55 Fed. Rep. 881, was a case arising in a State court where in apt time a motion to remove to the Federal court was filed. Thereafter, and after the time for removal had expired, a second, or amended'-petition for removal was filed. The case was removed to the Federal District Court on the theory that while the petition as first filed was not sufficient the amended petition was and related back to -the time when the original petition was filed. The district court,- in remanding the case, said: “The petition, not alleging the necessary jurisdictional facts, is a nullity, and the doctrine of relation has no application. There is, of course, no objection on principle to the amendment of a petition. There is no objection to the filing of a second petition, provided it is done within the time prescribed by Congress. But when the time goes by the right is lost. To allow an amendment to the petition after that is the same- as allowing a new petition, and either is a clear violation of the law. One purpose of the law was a severe restriction in respect to the time. The object was to require the party to change the forum at once, before waiting-to experiment in the State court, either to contest the tribunal; or for mere purposes of delay.”
In Frisbie v. Chesapeake & O. Ry. Co., 59 Fed. 369, Judge Taut, in approving the decision-, supra, said: “The time witliin which the necessary petition should be filed is fixed by the statute. It cannot be extended in the discretion of either the Federal or the State court. For the State court to allow an amendment to the petition for removal which shall relate back to the time when the original petition was filed is merely an indirect mode of extending the time within which a removal can be effected. ’ ’
If we assume that the petition as amended states a removable cause, the amendment, under the authority of the cases cited, came too late, and the trial court did not err in denying the petition.
2. The next question presented is on the contention that the court erred in submitting to the jury the liability of Nellie Jobe, and in giving instruction No. 11 relating to her liability and the others who were travelling as guests in Lockhart’s car. Our conclusion is that this contention must be sustained. The liability of Nellie Jobe is predicated on the theory that she and Lockhart were engaged in a common enterprise. The only evidence upon which this theory is based is testimony to the effect that Nellie Jobe is the mother of Otto Lock-hart; that she had been for a period of time in Hot Springs, and that Lockhart drove from Kilgore, Texas, their home, to Hot Springs for the purpose of bringing his mother back to Texas. Lockhart is a man forty-five years of age and owned the automobile. There is a total want of evidence to show that Nellie Jobe had any control over the use of the automobile at the beginning of the journey, or as it progressed, or that she had equal authority with the driver to prescribe the conditions of its use. There is no conflict in the evidence in this regard, and no question of fact to submit to the jury. In one of the eases collected in the notes to 80 A. L. R. 312, relied on by the appellee, this rule is stated: “The basis of liability of one associate in a joint enterprise for the tort of another is equal privilege to control the method and means of accomplishing the common design. If the means employed be an instrumentality the negligent use of which inflicts injury, the associate whom the law regards as participating in the conduct of the actor must have had equal control over its use. This control, how ever, need not have extended to actual manipulation at the time injury was inflicted. It is sufficient that, at the beginning of the enterprise, or as it progressed, or at any time before the tortious event, he possessed equal authority to prescribe the conditions of use.” Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131.
In Roland v. Anderson, (Mo. App.), 282 S. W. 752, cited by appellee, Anderson was held liable for the negligent driving of O’Toole on the basis, not of joint enterprise, but on that of master and servant or agency. Anderson was the owner of the automobile in question and O’Toole drove it at Anderson’s request on the occasion when a third person was injured by its operation. The court said: ‘‘While it is not shown that Anderson specifically issued orders to 0 ’Toole as to what streets he should take, and in what manner the automobile was to be driven or operated, yet he, as the owner of the car had such right to control and direct it. ’ ’ It will be noted that this case was decided by one of the Courts of Appeal in the State of Missouri, and not by its Supreme Court. Other cases are cited by appellee, but such as might appear to hold contrary to the doctrine stated in Howard v. Zimmerman, supra, have no foundation in reason or authority.
Our court, in the case of Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, held that the wife’s negligence in driving the car warranted a verdict against the husband because of the common-law liability on the husband for torts of the wife. Also, that, where one is riding with his wdfe or minor child in a vehicle driven by the one or the other, he is presumed to exercise some control over them under those circumstances, at least to the extent of preventing an act of negligence which is calculated to result in injury to another, and it is his positive duty to do so. In that case the evidence was conclusive that the husband was sitting by his wife, and whatever danger there was in driving was as obvious to him as it was to her, and he needed no knowledge or experience in the operation of the machine to be apprized of the danger. The general rule announced in that case as to the liability of one who rides with another merely upon invita tion, and exercises no control over him, and is not guilty of any positive act of negligence, is that the negligence of the driver cannot be imputed to him so as to render him liable for damages.
In Anthony v. Keifner, 96 Kansas 194, 151 Pac. 524, it was held that a mother who rides in her son’s automobile merely as his guest, and who has no control over, and takes no part in the handling of, the ear, is not responsible for injuries inflicted on another on account of the negligent driving of the automobile by her son.
In Cyc. of Automobile Law and Practice, Blashfield, vol. 4, chapter 65, page 171, § 2372, it is said: “A person accepting an invitation to ride in the automobile of another does not, merely, by reason of such fact, thereby engage in such common enterprise or joint adventure with the driver as to absolve either from liability to the other for an act of negligence. An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle, and the course and conduct of the trip. There must, as said in axiother connection, ixx order that two persons riding ixx an automobile, oxxe of them, driving, may be deexxxed exigaged in a joint entex'prise for the purpose of imputixxg the negligence of the driver to the other, exist concurrently two fundamental and primary requisites, to-wit, a commixnity of interest ixx the object and purpose of the undertaking in which the automobile is being driven, axxd aix equal right to direct aixd. govern the movemexxts and conduct of each other in respect thereto. “If either or both of these elemexxts is absent, the absence thereof is fatal to the claim of joint enterprise.” '* * * (page 176.) “The doctrixxe of joixxt adventure, in coxxnectioxx with the operatioxx of motor vehicles, should be restricted to those cases where the common right to control its operation, and the correlative common responsibility for negligence in its operation either are clearly apparent from the agreement of the parties or result as a logical axxd necessary coxxclusion from the facts as fouxxd.”
It would be extending the doctrine too far to say that, because of the relation of a mother to a son, the latter’s negligence would- be imputable to the mother merely because of that relationship. Bryant v. Pacific Electric Co., 174 Cal. 737, 164 Pac. 385; Lange v. New York, etc., 89 N. J. L. 604, 99 Atl. 346; Jacobe v. Goins, (Tex. Civ. App.), 3 S. W. (2d) 535.
3. It is next insisted that the court erred in giving instruction No. 3 at the request of the plaintiff, which, after prescribing the duties of one driving an automobile with respect to keeping a constant lookout, and regarding the. duty to drive at a careful rate of speed not greater than is reasonable, having due regard to the traffic and safety of others, concludes with the following language: “And it is the duty of such a driver to keep his automobile under such control as to be able to check the speed or stop it if necessary to avoid injury to others when danger is apparent. If you find from the evidence in this case that the defendant, Otto Lockhart, at the time of the alleged injury, failed to observe any of the duties required of a driver of an automobile, and the plaintiff Ada Jean Eoss was injured thereby, this would constitute negligence.” It is argued that the language above quoted offends against the rule announced in Coca-Cola Bottling Co. v. Doud, 189 Ark. 986, 76 S. W. (2d) 87: “That the driver must have his car under such reasonable control as would enable -him to avoid accidents which might be foreseen by the exercise of ordinary care.” The contention is that the instruction given imposes a higher degree of care on the operator of the car than that required by the rule quoted. We do not think so, because, in the exercise of ordinary care, when the driver sees danger ahead, or it is reasonably apparent if he is keeping proper lookout, then the duty is imposed upon, him, and the reasonable control' of the car requires, that it be operated so it can be stopped in the threatened emergency. The instant case is quite different in fact from the ease relied on, as will be seen from the statement of facts contained therein.
4. It is lastly insisted that the trial court should have directed a verdict in favor of the defendant Otto Lockhart. The evidence with relation to- the -situation of the child and the circumstances immediately attendant upon the happening of the injury is in conflict. That upon the part of the appellants tends to show that the injury to the child was the result of an unavoidable accident, and. that adduced by the appellees was sufficient to submit to the jury tlie question of whether the appellant, Otto Lockhart, was in the exercise of due care, when the injury occurred; Appellants were entering the city of Arkadelphia on the journey to Texas via Texarkana, and had proceeded along a street thirty feet wide from curb to curb to. a .point beyond the .city limits in the residential section.. The injury occurred.near a point where an automobile was parked on the opposite side of the street from that on which appellant was driving. As he approached this point, he turned to the left'‘to pass a wagon loaded with .cotton which was driving on the same side of the street. There was evidence to the effect that in making this movement Lockhart could have passed the wagon without driving his car to the left of the middle line of the street, but that instead of doing this he drove his car so that the right wheels were about on the middle line, and the balance of the car to the left of the middle line. The child was crossing on her way to school, and had reached a point on the street about a third or fourth of the distance between the left- curb and the middle line when she was struck by -the bumper of the car near its left-hand light. There is.some evidence that the child was crossing from forty to fifty feet below where, the, car was parked and seventy-five feet beyond the wagon. This evidence was a substantial basis for the conclusion reached by .the jury that Lockhart was negligent in the operation of his car, either in not seeing the child or in not swerving back-to the right ahead of the wagon. There was evidence that this latter movement could have been, made, as there .was no vehicle or person ahead of the wagon to. prevent it. , ■
The judgment of. the lower court .will therefore be affirmed as to the appellant, Otto Lockhart, and reversed, and the case dismissed as to the appellant, Nellie Jobe. | [
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Humphreys, J.
This is an appeal from a judgment for 12 per cent, penalty and attorney’s fee rendered under § 6155 of Crawford & Moses’ Digest against appellant in favor of appellee in the circuit court of Logan County, Southern District. The suit was based upon a fire insurance policy covering appellee’s cotton in the sumí of $2,500, less the amount of the premium due there on. When appellee made proof of the loss, appellant denied any liability under the policy by letter, the concluding paragraph being as follows: “'The companies interested therefore feel that no contract was legally entered into and cannot accept any liability under their policies of insurance. The letter ivas written December 11, 1934, and suit was instituted on the 11th day of January, 1935.
The case was set for hearing on April 8, 1935, at which time appellant tendered the face value of the policy, plus interest and costs, less the premium which appellee OAved it, in full settlement of the claim under the policy. Appellee refused to accept the tender in full settlement, claiming that he had been compelled to employ an attorney and bring the suit to collect Avhat appellant owed him, and that, in addition to the amount tendered him, he was entitled to recover a 12 per cent, penalty and a reasonable attorney’s fee under § 6155 of Crawford & Moses’ Digest; whereupon counsel for the parties agreed in open court that the acceptance of the tender should not affect or prejudice the rights of either party in respect to the claim for the penalty and attorney’s fee. The tender was accepted on this condition, and the issue left open was tried Avith the above result.
The only question therefore for determination on this appeal is Avhether an insurer can escape liability to the insured for the statutory penalty and attorney’s fee by making a tender of the face of the policy, plus interest and costs, less the unpaid premium, after first denying liability and compelling the insured to 'bring a suit to collect the amount due upon the policy.
Section 6155 of Crawford & Moses’ Digest is as follows: “In all cases AAhere loss occurs, and the fire, life, health, or accident insurance company liable therefor, shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, 12 per cent, damages upon the amount of such loss, together Avitli all reasonable attorney’s fees for the prosecution and collection of said loss; said attorney’s fee to be taxed by the court where the same is heard on original action by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are or may be by law collected.”
This court, in the case of Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 384, in speaking of the purpose of the act, said: “The penalty and attorney’s fee is for the benefit of the one who is only seeking to recover after demand what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it.”
This court also said, in the case of Bronx Fire Insurance Company v. Cooper, 187 Ark. 93, 58 S. W. (2d) 678, that: “The failure of the insurance company to pay the amount of the loss within the time specified in the policy after demand subjected it to the payment of attorney’s fees upon the recovery under the policy, and it can make no difference in its liability to the payment of such penalty and costs that it failed to comply with and pay the loss when demanded, because the policyholder was indebted to the insurance company in a matter which could be set off against the insured’s claim of loss under the policy, that furnishing no justification for failure to pay the loss within the time specified in the policy, and not relieving against the penalty of the statute. ’ ’
The act is unambiguous and means that 12 per cent, is given as damages for failure to comply with the contract by payment and the attorney’s fee as compensation for the cost of collection.
The facts in the instant case bring it well within the meaning of the statute. It is undisputed that appellant denied any liability on the policy and refused to pay the debt until the date of trial. The employment of .an attorney and the institution of the suit was necessary to collect the debt.
It is next contended that the allowance of $200 as an attorney’s fee was excessive. We do not think so, considering the amount involved, the investigation of the law, the filing of the suit, and the preparation for trial.
No error appearing, the judgment is affirmed. | [
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Baker, J.
Sidney Hinson sued the Western Union Telegraph Company and Lee Roberts for an injury that he suffered on November 20, 1934, in the city of Little Rock. At the time of the injury the plaintiff was attempting to cross Scott Street and was struck by an automobile driven by Lee Roberts, messenger for the Western Union Telegraph Company. Lee Roberts was a young man about twenty-three years of -age, had been working for some time for the Western Union Telegraph Company as a messenger, and on this particular occasion was directed by his superior officer or manager of the Western Union Telegraph Company, to go to the Missouri Pacific depot and procure a ticket to be delivered to some one at the Marion Hotel.
Up until some time in October, prior to the date of this injury, Western Union had permitted messenger boys or employees to use automobiles in the delivery work, but on account of the decrease in business the messenger boys or employees were ordered to refrain from the use of automobiles, but to use bicycles instead. Lee Boberts lived in North Little Bock, drove his own automobile from his home to the Western Union office, where he went on duty about 4:00 p. m., and remained on duty until 12:00 p. m. He was a student in one of the schools in North Little Bock and studied in the Western Union office, when not engaged in some duty or service for the company.
When ordered or directed by the manager to run the errand and procure the ticket, Boberts, in violation of the direct and positive orders of his employer, started upon the errand, driving his own automobile, which had been parked near the Western Union office, and, before he had driven a block, struck Hinson, the appellee, and seriously injured him.
The facts, stated most favorably for the appellee show that Boberts at the time of the injury had driven his car upon the wrong side of the street, or turned his car too shortly in negotiating the corner. Boberts denies this fact, but this disputed fact has been decided against him by the jury, and it is the only material fact about which there is any dispute. The evidence is undisputed that the manager of the Western Union office or the employer, having control of the messenger boys, had given positive and direct instructions and commands forbidding the use of automobiles in the company’s business. Boberts’ statement is to the effect that this was the first and only time that he had violated that order, but, on account of the fact.that it was raining and that he desired to make the trip to the depot as quickly as he could and return to resume his studies, he took the automobile instead of his bicycle, which he had brought to the office in the automobile.
A recovery by judgment was had against both Boberts and the Western Union. There is no question raised on this appeal, except the one of liability of the appellants. Appellants do not suggest that, if liability be de termined on this appeal, the amount of the recovery is excessive, hut urge only that the trial court should have directed a verdict for the defendants.
From the foregoing facts, which must he treated as undisputed upon this appeal, we are impelled to say that there is no error in the trial of the case as against appellant Roberts. He was not driving at a very fast rate of speed at the time of the injury; but he did cut a corner and drive upon the wrong side of the street, striking the appellee with his car in so doing. He testified he was within five feet of Hinson before he saw him. He was properly held responsible for his negligence. As to him, the judgment herein must be affirmed.
As to appellant, Western Union Telegraph Company, a more serious problem presents itself. In the matter of running the errand; Lee Roberts was acting in the obedience to the 'directions or positive orders of his superior, and, if this were the entire statement, the doctrine of respondeat superior would apply. It is undisputed, however, that, in the performance of this duty in accordance with the command,. Lee Roberts, in violation of express orders and instructions, chose a different agency, and much more dangerous one .froiñ that which he had been directed to úse. He had authority to use a bicycle. He had no authority to use an automobile in making the trip. Therefore, in his choice of the agency with which he performed the service he was directed to do, he was beyond and outside the scope of his authority.
It must be conceded by all that, the master has the right to choose the instrumentalities or agencies for the performance of the work or duties required of employees, and it. is upon this principle that the master may become liable for his failure to exercise ordinary care in choosing and furnishing a tool or appliance reasonably safe.
This question on appeal is not a new proposition. The same principle has been frequently before the courts for consideration. In the case of St. Louis, Iron Mountain & Southern Railway Company v. Robinson, 117 Ark. 37, 173 S. W. 822, the facts are so nearly like the ones under consideration that the announcement of the law there becomes the rule of decision here. In the cited case, a boy made use of a bicycle when sent to call employees to go upon duty. His superior officers, agents of the railroad, knew he was making use of the bicycle, but there was in fact no necessity for the use thereof. He was not authorized to use the same, because the distances over which he had to travel in making these calls were not such as to necessitate the use of that instrumentality in order that he might call employees in due time. He was presumed to go upon foot and make his calls. In the unauthorized use of the bicycle he injured one who, on account of the injury, sued the railroad company. In deciding this case, the court, through the late Mr. Justice Kirby, said:
“If the service required of the call boy could not have been performed in the time given therefor without the aid of the instrumentality used, the bicycle, it would have occasioned a necessity, and the knowledge by the agent of such use in the performance of the service would have amounted to an implied authorization thereof, making the railroad liable for a negligent injury thereby. But such is not this case, and there was no testimony to warrant the jury in finding that the bicycle was necessarily used in the service of the railway company by its call boy, with the knowledge of its servants of the use and necessity therefor, and consequently no negligence shown in the injury to appellee for which it is required to answer or respond in damages.”
The last-mentioned case was cited with approval of the rule announced therein in the case of Southwestern Bell Telephone Company v. Roberts, 182 Ark. 211, 215, 31 S. W. (2d) 302. Moreover, by distinguishing the Roberts case from the Robinson case above, it emphasized the fact that without the knowledge or direction of the master the servant would not be permitted to select or employ his own agency or means of performance of the duty owing to the master, uiiless there was the actual necessity for such selection and choice by the servant in order to perform his duties. In such cases, where the actual necessity existed, a presumption of knowledge and permission would be imputed to the master.- Consent, express or implied, will be presumed.
No such condition prevailed in this case. It is violative of principles announced in the Robinson case as snore clearly set forth and defined in the Roberts case, in that (fbe servant had a means or instrumentality for use in the performance of his duties, which was authorized by the master, and (2) the instrumentality used was not only expressly forbidden, but (3) was unnecessary.
The following authorities from other jurisdictions may be read with interest: Hughes v. Western Union Telegraph Corporation, 211 Iowa 1091, 236 N. W. 8; Kennedy v. Union Charcoal & Chemical Company, 156 Tenn. 666, 4 S. W. (2d) 54, 57 A. L. R. 733.
Appellants have favored us with numerous other appropriate citations which we deem unnecessary to incorporate herein. This line of cases is distinguishable from those founded upon a well-defined principle of law, that the wrongful act of a servant, when acting within the scope of his employment, will render the master liable for consequent damages, although such wrongful act may have -been in violation of the express.orders of the master. Aside from the right of the master to control the employee and direct him in his activities in the rendition of his service, the master has a right to choose or select the tools, appliances, or agencies which will be used by the servant. If that were not true, the servant, in the exercise of his individual discretion, making his own selection and use of agencies, might, perhaps, not only injure himself in the attempted performance or rendition of his services, but he might also.render an inferior service to the master, to.his damage and detriment, or probably bring destruction1 to the master’s property, and by such conduct some third party might be injured, for which the master might become liable to the extent of financial ruin.
It must appear from the foregoing that the proposition of liability in cases of this type must be determined from the facts in relation thereto. This is clearly seen from the citations in the Robinson case and Roberts case above set out.
We think therefore the court erred in not directing a verdict for appellant Western Union Telegraph Company. The case has been fully developed, and no liability has been established against said company. .
The judgment is therefore reversed as to appellant, Western Union Telegraph Company, and that part of the cause is dismissed. | [
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Humphreys, J.
This suit was brought in the circuit court of Woodruff County by appellant against appellees to recover $871.15 for electrical energy appellees agreed to purchase from it to operate the cotton gin they owned and ran in the town of McCrory during the cotton ginning seasons of 1932-33 and 1933-34: under and by virtue of a written contract entered into between appellant and appellees on the 28th day of July, 1932. Appellant alleged in the complaint that it had complied with all the conditions of the written contract and had been ready and willing at all times to furnish appellees with electrical energy as provided in the contract, but that appellees had failed and refused to use electrical energy in operating their cotton gin for the years 1932-33 and 1933-34: during the ginning seasons.
Appellees filed an answer denying that appellant had complied with the condition of the contract requiring it to connect its power lines with the gin so that electrical energy might be available to them for the operation thereof.
The cause was submitted, and at the conclusion of the evidence the court instructed the jury to return a verdict for appellees, over the objection and exception of appellant, and rendered a judgment upon the verdict dismissing appellant’s complaint, from which is this appeal.
The contract sued upon contained the following paragraph:
£ ‘ The company reserves the right to disconnect electric services from the premises of the consumer upon the conclusion'of the ginning season, that is, not later than March 1 of each and every year of the within contract, and agrees to reconnect same on or before September 1 of each and every year of the within contract.”
Ben H. Marshall, who was assistant division manager for appellant in 1932, and who was division manager when called as a witness by appellant, identified the contract as the contract entered into between appellant and appellees, and stated that appellant connected up appellees’ gin, and that it was connected up for the .seasons 1932-33 and 1933-34, but that the fuses were not put in. The witness then answered the following questions propounded by the court: .
“The Court: What do you mean by -connect’? A. In the, contract it'says that we agree to connect to the gin building and set our transformers; and these fuses are a protective devise that we remove to protect -our transformers and the gin.equipment. The Court: Whose duty is it to furnish the fuses ?. A. We furnish the fuses. The Court: Whose duty is it to take them out and put them back? A. It is the duty of the Arkansas Power & Light Company. The Court: In this case, did you take these fuses and put them in so that the defendant could run his gin under this new contract? A. Not under this contract. The Court: Could he run without.the fuses? A. No, sir. .The Court: Did you ever furnish the fuses and put them in there so that he could operate his gin? A. No, sir, we did not; we were not requested.”
In the course of the trial and before the court instructed a verdict for appellees, the appellant offered to prove that a similar contract to the one sued upon had been entered into between it and appellees on the 3d. day of June, 1928, for a five-year period,, and that during its life appellees had always requested that fuses be put in before they were put in; and also offered to introduce the contract.. These requests were refused over appellant’s objection and exception. ' .
Appellant also offered to prove that, under similar contracts with other ginners in the town of McCrory, the custom was for ginners to request that fuses be put in before it put them in. The court refused to allow it to make proof of the custom over the objection and exception of appellant.
Appellant contends that the trial court committed reversible error in excluding the testimony offered.
The. old contract had expired, and what the parties did under it. would not waive any right they might have under the new contract, even though the provisions in the two independent contracts were similar. This court said in the case of Southern Coal Company v. Searcy, 152 Ark. 471, 238 S. W. 624: “For the same reason, prior course of conduct between the parties under similar contracts cannot be invoked as a waiver of an express and unambiguous stipulation in the new contract. Citizens’ Nat. Life Ins. Co. v. Morris, 104 Ark. 288, 148 S. W. 1019; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199, 230 S. W. 257. Regardless of the prior course of conduct between the parties, they have the right to make their own terms under a new contract, and neither general custom of trade nor the prior course of conduct of the parties themselves can serve to defeat the plain letter of the new contract. ’ ’
Under the rule announced in that case, the court was correct in refusing to permit appellant to introduce the old contract, or the course of conduct between the parties under it.
The provision in the new contract set out above is unambiguous and imposed the absolute duty upon appellant to connect its electrical energy with the gin on or before September 1 of each and every year, and this could only be done, under the undisputed evidence, by putting in fuses. It reserved the right to make the connection itself and to make it not later than September 1 each year during the life of the contract. There being no ambiguity in the provision of the coiitract, usage and custom cannot be used to change the plain meaning thereof. This court said in the case above cited:
“It is the settled rule of law in this court that usages and customs of trade cannot be invoked to defeat the express terms of a contraqt, and that such usages and customs are only applicable where the contract is silent or where its terms are ambiguous.”
Under the rule .just quoted, the trial court correctly excluded the testimony offered relative to usage and custom.
Appellant, having breached the contract by failing to put in the fuses to effect the connection between the electrical energy and the gin, is not entitled to recover any sum for electrical energy which was not available for use to appellees in the operation of the gin; therefore the court did not err in dismissing its complaint.
The judgment is affirmed. | [
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Humphreys, J.
Appellant, Silas Jones, was indicted in the circuit court of Madison County for murder in the first degree for shooting and killing Earl Petree near the town of St. Paul in said county. He was tried in said court upon the charge on the 19th day of April, 1935, which resulted in a conviction for manslaughter, and, as a punishment for the crime, was adjudged to serve a term of five years in the State penitentiary, from which is this appeal.
The first assignment of error argued for a reversal of the judgment is that the court instructed the jury upon, the law of murder in the first and second degrees without any substantial evidence upon which to base the instructions, and this instruction, being abstract, resulted in prejudice to appellant’s rights. There is no merit in this contention. Appellant admitted the killing on the trial of the -cause, and- claimed that he had to in necessary self-defense. Appellant shot deceased through the body and head with a seven-shot .22 cal. pistol on the highway leading to St. Paul while deceased was hauling a. load of ties into town. Bad feeling existed between appellant and deceased. They had had several quarrels and altercations covering a period of several months prior to the killing. Some time in the morning before the killing éarly in the afternoon, appellant armed himself with the loaded pistol and went to St. Paul as he stated for the purpose of getting some- groceries for his uncle. He remained in town until noon or a little after and during* the time refused to go swimming with some friends who requested him to do so, stating to them he had some unfinished business to attend to. Near noon, he got his groceries and put them in John ¡Burnett’s wagon to take to Ms uncle. Burnett stopped to water his team, and, while doing-.so, appellant passed him saying he would walk on up the road.. Af teT Burnett had driven a considerable distance, appellant came back and met him and told him he was compelled to kill a man up the road. He did not. say whom lie had ldlled or make any further explanation to Burnett. Appellant turned and walked along by the wagon as far as. the hill or mountain but, before reaching the place where deceased was lying, he left the wagon and road and hastily went up the hill into the woods. Burnett drove on and did not stop to view the body. After Burnett passed the body and had driven two or three hundred yards, appellant came off the mountain to the road and got in the wagon, and, after Burnett had driven about two miles, they were overtaken by officers and searched. The officers required them to hold up their hands during the search, and, when he started to search appellant, he, appellant, admitted having a .22 cal. pistol, saying he had shot the deceased with it, and did not intend to fight the law or anything.
William Langley testified that he was one-fourth of a mile south of where the killing occurred when the shots were fired, three in number, and, looking in that direction, saw a man run toward a team headed west and stop it. After- doing so, the man proceeded west until he met a wagon going* east but turned and followed the wagon, and before reaching the scene of the tragedy turned up the mountain and came down the mountain some two-or three hundred yards east and got in the wagon.
Alvin Holiday testified that he was in a field about one-eighth of a mile from where the killing* occurred, and that his attention was attracted by. the firing of three shots; that he observed appellant stop a team- that was headed west, and then go on himself toward St. Paul until he met a wagon going east; that he turned and followed the wagon for a few minutes, and then took up the hill through the woods.
Certain witnesses -were permitted, over the objection of appellant, to testify that they made a search of the place where the deceased was shot a week after the occurrence and found a bullet which was produced buried a small distance in the ground where deceased’s head rested after being shot.
The ball that passed through appellant’s head entered his forehead and came out through the back of his head.
The record reflects that deceased was unarmed at the time he was shot.
The testimony detailed above was sufficient from which a reasonable inference might be drawn that appellant killed deceased with malice aforethought, premeditation and deliberation, so the court was warranted in instructing the jury as to the law of murder in both the first and second degrees as well as manslaughter.
The next assignment of error argued for a reversal of the judgment is that the court refused to give appellant’s requested instruction relative to the character of circumstantial evidence necessary to warrant a conviction. The requested instruction is as follows:
“The court instructs the jury that circumstantial evidence is legal evidence, and that one may be convicted upon circumstantial evidence as well as direct proof. "Where the State relies upon circumstantial evidence alone for a conviction, as in this case, it is not enough that the circumstances point to, and are consistent with, the defendant’s guilt; but they must point to his guilt in such a way that they cannot reasonably be true in the ordinary nature of things, and the defendant be innocent. ’ ’
The instruction was incorrect and properly refused because the State did not rely upon circumstantial evidence alone for a conviction. The requested instruction was abstract in this particular, and the court did not err in refusing to give it.
. The next assignment of error argued for a reversal of the judgment is that the court erred in refusing to give his requested instruction No. 1 to the effect that, before a confession of one charged with crime is admissible in evidence against him, it must appear that it was voluntarily made without anybody holding out any hope of reward or leniency or fear of punishment for not doing so. Appellant not only made a confession when arrested that he killed the deceased, but in the trial admitted the killing and testified to all the facts relative thereto that were contained in his confession. The record reflects without dispute that the confession was voluntarily made. The court required the officer to whom the confession ivas made to state the same in its entirety before the testimony was closed, so there is no merit in appellant’s argument that, at first the court did not require the officer to testify to the confession in its entirety.
The next and last assignment of error argued for a reversal of the judgment is that the court erred in the admission of testimony to the effect that one week after the killing a bullet was found in the ground where deceased’s head rested when discovered after he was killed. Appellant’s pistol with which he killed the deceased had been introduced in evidence in the condition it was when the officer took it from him. The cartridges were removed from the pistol and also introduced in evidence. It is argued that, because it was not positively shown that it was the bullet that had been fired from appellant’s pistol, it was improper to admit it in evidence. The place it was found, the kind and character of the bullet, and the pistol itself being present, made it possible for the jury by comparison to determine whether the bullet had been fired from appellant’s pistol, and was competent testimony for that purpose. The mere fact that the bullet had been found a week after the killing did not render its introduction inadmissible. This fact was a circumstance for the jury to consider in weighing the evidence. The parties who found it testified to having done so, and the manner and kind of search they made for it. It became a question for the jury to say under these circumstances whether it had been fired by appellant through the head of deceased or whether it had been deposited in the ground after the killing by some interested party.
No error appearing, the judgment is affirmed. | [
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Johnson, C. J.
Appellant was indicted by the grand jury of Phillips County for the crime of murder in the first degree committed by the shooting and killing of one Dr. Miller, and from a manslaughter conviction upon which a five-year sentence was imposed he appeals to this court.
The State relied for a conviction upon the dying declaration of deceased, corroborated by confessions and voluntary statements of appellant to the sheriff of Phillips County. The dying declaration of the deceased was to the following effect: “I, Dr. W. P. Miller, after having been told by Dr. J. B. Ellis that I am going to die and realizing that I am going to die, I make and publish this statement as my dying statement.
“Last night a woman that was in a family way walked by and Mr. B. B. Link made an insulting remark about the lady, and that started an argument. Mr. Link and I live at the .same hotel. The shooting took place this morning in the hall of the Kendall Hotel at Marvell. I walked by the door of Link’s room and Link walked out and shot me. I had no weapon. I was unprepared for any fight. Mr. Link said nothing before he shot me with a pistol. I know of no reason why he would shoot me. I never threatened Mr. Link. He shot me with an automatic pistol. He fired only one shot. I make this statement as my dying statement in the presence of C. W. Straub, F. F. Kitchens, Dr. J. B. Ellis, Mrs. O. M. Broods on this, the 30th day of March, 1935.
“Dr. W. F. Miller. ’ ’
Mr. Kitchens, the sheriff of Phillips County, testified that he discussed the killing with appellant the day the crime was committed, and appellant told him that he shot Dr. Miller because he had been worrying him for some time, etc.
Appellant’s first contention for reversal is that the testimony on behalf of the State was insufficient as a matter of law to support a verdict of manslaughter. The testimony above set out is amply sufficient, if believed by the jury, to support the verdict of manslaughter, and this suffices to dispose of appellant’s first contention. The mere fact that the dying declaration ■ of deceased was contradicted by other testimony affords no'reason for us to interfere with the jury’s verdict,- as this presents only a conflict in the testimony which has been settled adversely to appellant’s contention. Blevins v. State, 182 Ark. 109, 30 S. W. (2d) 851; Arnett v. State, 188 Ark. 1106, 70 S. W. (2d) 38.
Appellant next urges that the jury’s verdict, to-wit: “We, the jury, find the defendant guilty of manslaughter, the penalty to be fixed by the court. ' [Signed] G-. H. Vineyard, Foreman, ’ ’ is insufficient in law to support the consequent judgment entered thereon for voluntary manslaughter.
This. exact contention was urged before this court in Fagg v. State, 50 Ark. 506, 8 S. W. 829, and we there disposed of the contention by saying: “The verdict did not designate .the degree of manslaughter, or assess the punishment. The duty of fixing the.penalty, devolved therefore upon the court. Mansf. Dig., § 2308. On conviction -of murder the statute requires the degree of the offense to be found by the jury. Mansf. Dig., § 2284; Thompson v. State, 26 Ark. 323; Ford v. State, 34 Id. 602. It is not so as to manslaughter. It is only necessary that the court should have a.certain guide to the intention of the jury. Verdicts receive a reasonable construction in order to reach the jury’s meaning, and, when that is found, they are enforced as though the intention was express. Strawn v. State, 14 Ark. 549. Viewing the verdict in this case in the light of the evidence and the court’s charge, the conclusion is. reasonable, if not irresistible, that the jury intended a conviction of voluntary manslaughter. The court had charged them specifically upon that offense, and had made no mention of involuntary manslaughter. If' they knew there was such a grade of homicide, it is not probable that , they understood that the defendant could be convicted of .it in this prosecution. A verdict of involuntary manslaughter would have been inappropriate to the evidence, and the jury would have been unmindful of their duty to have returned such a verdict. In the absence of an expression to the contrary, a presumption of an intention to violate a duty is not indulged against a juror more than any other officer. The evidence certainly warranted a verdict of murder in the first degree; that the jury did not intend to acquit is shown by the verdict.- If it be conceded that the verdict ought not properly to have been for voluntary manslaughter, that affords no reason for indulging the presumption that the jury intended a greater wrong than they have expressed.”
Viewing the verdict in the- light of the testimony heretofore set out; the conclusion is irresistible that the jury intended a conviction of voluntary manslaughter.
■It is unfortunate that-a man óf appellant’s age, namely 85 years, is required to serve a term in the State penitentiary as retribution for a crime against the laws of the State, but such is the status of this record, and we have no alternative in the matter.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This suit was brought by appellees, who owned lots 8, 9 and 12 in block 7, in North Benton, in the city of Benton, Arkansas, against appellants to prevent them from interfering with the construction of an ice plant and other business buildings on said property under the provisions of ordinance No. 1, zoning this and other property as strictly residential property, which was passed by the city council on February 26, 1935, alleging that the ordinance ivas void for several reasons, among them the failure to comply with act 1Ó8 of 1929 of the Acts of Arkansas authorizing cities of the second class to pass zoning ordinances.
Appellants filed an answer to the complaint, denying the invalidity of the ordinance.
An intervention was filed by A. S. Henley and a number of the other property owners in the vicinity of said property, alleging that the construction of an ice plant on said property and the operation thereof would be a nuisance and result in irreparable damage to the inter veners in the enjoyment' of .their homes as well as the value thereof. A demurrer to the intervention was filed and overruled.
In the course of the trial, the appellants offered evidence to sustain the allegations contained in the intervention, which the court excluded. The record does not disclose whether an answer was filed to the intervention, so it is perhaps pending- as an independent proceeding for further action by the court.
The court then proceeded to hear the case upon- the sole issue of whether the ordinance was invalid, and found that it was, and rendered a decree restraining appellants from interfering- with appellees in the erection and construction of said ice manufacturing plant and the peaceful enjoyment of their property, from which decree is this appeal.
The undisputed evidence shows that, in passing the zoning ordinance, the city of Benton failed to file the plan together with all maps, plats, charts and descriptive matter in the office of the city clerk and a certified copy thereof by the city clerk in the office of the recorder of Saline County.
The only authority cities of the second class have to pass zoning ordinances is that conferred upon them by act 108 of the Acts of 1929. Of course, in exercising this special authority, they must comply with the act in order to render their ordinances valid relative to zoning the city. Section 4 of said act reads as follows:
“The plan, and any amendment, change, addition to or alteration thereof, together with all maps, plats, charts and descriptive matter, shall be filed in the office of the city clerk, and a copy thereof, certified by the city clerk, shall be filed in the office of the recorder of the county in which the city is located.”
The purpose of this provision was to give every one notice of the plan so that they might make suggestions and objections thereto as well as to acquaint every one purchasing lots with the use to which they might be put. In placing restrictions of this kind upon the use of real estate, notice was necessary and should have been given in the manner prescribed in the act conferring the power to do so upon cities. It is necessarily a mandatory provision in the law, and must be followed in the passage of the zoning ordinance.
Having failed to comply with the act in the passage of the zoning ordinance, same is Amid, and the decree is correct, and must be and is affirmed. | [
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Butler, J.
G. M. and J. C. Lollis filed a complaint in the Johnson Chancery Court against J. H. Lollis, as defendant. They alleged that they had conveyed certain lands by deed to the defendant for the purpose of enabling him to secure a loan on said lands for their benefit, with the understanding that, if the loan was not secured, he was to reconvey the lands to them; that said loan, had not been secured, and that defendant had failed and refused to reconvey the lands as agreed upon. The defendant answered denying the allegations of the complaint, and cross-complained, alleging that, at the time the deed was executed, the grantors were indebted to him in a large sum, offering to make reconveyance upon the payment thereof, and praying that, in the event they should fail to pay the debt, the title to the lands be quieted in him. Defendant further alleged that the recorder of deeds had inadvertently omitted from the record the north fractional half of northwest quarter of section 36, township 9 north, range 23 west, containing 74.44 acres, and that the plaintiffs, subsequent to the execution of their deed to him, had executed and delivered to L. A. Williams and W. J. Morrow, Jr., a mortgage by which the lands above mentioned were conveyed; that this mortgage was received by the said Williams and Morrow with full knowledge of the rights of- defendant, and that same should be canceled as a cloud upon his title. Plaintiffs replied to the cross-complaint, alleging that the deed as originally executed was for the express consideration of one dollar and other valuable considerations, and that the lands embraced in said deed as originally drawn were two tracts, to-wit, the south fractional half of northwest quarter of section 36, and the southwest fractional quarter of section 36, all in township '9 north, range 23 west,-containing 142 acres; that said deed had been fraudulently altered by changing the consideration to “nine thousand dollars,” and by adding the north fractional half northwest quarter of section 36, township 9 north, range 23 west, containing 78 acres; that said alterations were made by the defendant, or with his connivance and knowledge, in order to exact from plaintiffs a, greater sum than was due, and for the purpose of defeating the mortgage given Williams and Morrow. Further replying to the cross-complaint, plaintiff alleged that the sole purpose of the execution of the deed to the defendants was to secure a loan in order to pay their indebtedness to him, and that since the execution of the deed they had paid the entire indebtedness and a sum of $450 in excess thereof for which they prayed judgment.
Williams and Morrow intervened, alleging the execution of the mortgage to them, denying that-they had any knowledge that the lands mortgaged'to them had been previously conveyed to J. H. Lollis, and praying that their mortgage be declared paramount and superior to the title .conveyed to the said J. H. Lollis: Prior to the filing of the reply to the cross-complaint; J. H. Lollis died, and the cause was revived in the name of his widow, heirs at law. and personal representatives.
On the issues .joined evidence by depositions was taken by the parties, and the cause was submitted to the court on the pleadings and evidence adduced. The court found that the deed executed to J. H. Lollis was, in fact, a mortgage given to secure an indebtedness existing and. due him on the date of the deed, January 28,1928, in the sum of $1,000, and that the lien thereof was superior and paramount to the interest of the said Williams and Morrow. Judgment was entered for the said $1,000 with interest thereon at the rate of 6 per cent, per annum from January 28,1928, and the court ordered that, if the judgment be not paid within a time certain, the lands mentioned in the deed, to-wit, south fractional half of northwest .quarter and southwest fractional quarter of section 36, 74.92 acres in first tract, 67.25 acres in second tract, and accretions thereunto belonging, and the north fractional half northwest fractional quarter, section 36, containing 78.44 acres, all in township 9 north, range 23 west, be sold to satisfy said judgment and decree. Plaintiffs and interveners have appealed, and defendants have prosecuted their cross-appeal.
Incidental to the main contention, the parties to the action present certain questions regarding the effect of the pleadings and the competency of some of the witnesses. These questions are unimportant, since it is our conclusion, after a careful examination of the competent and relevant testimony, the decree must be affirmed.
It was, and is, the contention -of the appellants (plaintiffs) that the debt secured by the deed of January 28, 1928, has been settled and paid off, while the appellees contend that the chancellor erred in his finding that only $1,000 was the debt due, their contention being that the evidence shows that it was not less than $3,600. The books of J. H. Lollis, deceased, were introduced in evidence which, it is contended, established the indebtedness due on January 28, 1928, at a sum in excess of $8,000. Gr. M. Lollis and J. C. Lollis admitted that $1,000 ivas due on that date, but testified that the same had been paid in various ivays and in varying amounts.
From an examinátion of all the evidence as the same has been preserved in the record and presented to us, we are uncertain as to the tr*ue state of the account between Gr. M. and J. C. Lollis on the one hand, and J. H. Lollis on the other, but we are of the opinion that the' conclusion reached by the trial court is not against the preponderance of the testimony, and it must therefore stand.
One of the principal contentions made by appellants (plaintiffs) is that there was a material alteration in the deed, and that this avoids the same. An examination of the original deed shows that the consideration was first written, “one dollar and other valuable considerations”; that this was partially erased and over it was written “nine thousand dollars.” There is testimony to the effect that, when the deed was executed and delivered to J. H. Lollis, the consideration first written had not been erased, and the erasure and substitution was after the delivery and without the knowledge or consent of the grantors. The deed was prepared in the office of a local bank where there were two typewriters of different sized type. The person who wrote the deed used a printed form and filled in the blanks for the consideration and description of the property conveyed by using a typewriter. The type used to write the words “nine thousand dollars to us in hand,” was different from that first used. The scrivener, who was the cashier of the bank, testified that he did not remember what consideration was put in the deed, but thought it was an even number of dollars, and that he did not remember about the change. There is no testimony tending to show by whom or when the change was actually made. This, however, is immaterial, for, if there was an alteration of the express consideration in the deed after its execution and delivery, the same would not be a material alteration. The reason is that the consideration expressed in a deed is not conclusive, but may be contradicted or explained. At best it is but prima facie evidence of a fact which, if omitted from a deed, might be supplied by parol testimony, and does not affect the rights or liabilities of the parties. Therefore, it is competent to show by parol evidence that the amount of a consideration is different from that recited in the deed, and that the recital that, it had been paid, may be contradicted. If this were not true, then the deed, absolute on its face, could not be treated as a mortgage. Devlin on Real Estate, vol. 2, 3d ed., p. 1495 et seq.; Lay v. Gaines, 130 Ark. 167, 196 S. W. 919; Lasker-Morris Bank & Trust Co. v. Jones, 131 Ark. 576, 199 S. W. 900; Sutton v. Sutton, 141 Ark. 93, 216 S. W. 1052; Wade v. Texarkana, etc., Ass’n, 150 Ark. 99, 233 S. W. 937. Since, despite the alteration, the rights and liabilities of parties were not changed, there was no material alteration. Woods v. Spann, 190 Ark. 1085, 82 S. W. (2d) 850.
The evidence on behalf of the appellants (plaintiffs) was to the effect that only two tracts of land were described in the deed when executed and delivered to J. H. Lollis, and that the tract mortgaged to Williams and Morrow was not in the deed, but was inserted after its execution and delivery without the knowledge or consent of the grantees. All the witnesses who testified to this, had a direct interest in the result of the lawsuit, and their testimony was contradicted by the person who drafted the instrument who testified that the deed had not been altered with respect to the description of the property conveyed. We have not overlooked the contention made by appellants (plaintiffs) that there is a difference in the use of certain letters in writing the description of the first two tracts, and in writing the description of the third tract. We have examined the original deed having regard to the criticism made and conclude that it is not of sufficient merit to overturn the testimony given in support of its authenticity. In fact, we find from an inspection of the deed nothing of such an unusual nature as would overturn the finding of the trial judge.
The conclusion, that the lien of the deed to J. H. Lollis was superior to that of the mortgage to Williams and Morrow implies the finding that the interveners had knowledge of the rights of J. H. Lollis in the lands mortgaged, or of circumstances which would put them on inquiry. Contemporaneously with the execution of the deed, an agreement was signed by J. EL Lollis which recited that on the date named G, M. and J. O. Lollis had conveyed by deed “their farm in the Arkansas River bottom near Knoxville, Arkansas, consisting of about 225 acres,”-which was to be reconveyed to them “when they have cleared the indebtedness against them held by the said J. El. Lollis.” The lands conveyed were not described further than, that part of the agreemént first quoted. Williams and Morrow testified that this agreement was in their possession, and they, of course, knew from it that G. M. and J. C. Lollis had deeded about'225 acres of land to J. H. Lollis. The three tracts lay parallel with each other, and constituted a single tract of land containing in the aggregate approximately the number of acres named in the contemporaneous agreement, whereas the first two tracts contained approximately 144 acres. Williams and Morrow testified that when they were about to take the mortgage they examined the record, and found only two tracts named in it, but that the 78-acre tract would be required to make the 225 acres. This was sufficient to put them on inquiry which, if pursued with ordinary diligence and understanding, would have given them knowledge of the true facts' and constitutes notice. Waller v. Dansby, 145 Ark. 306, 224 S. W. 615; Shoptaw v. Sewell, 185 Ark. 812, 49 S. W. (2d) 601.
The decree of the trial court, both on appeal and cross-appeal, is affirmed. | [
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Johnson, C. J.
W. H. Robinson’ died in 1884 and left surviving, his widow and four children, namely: James, Olivia, Minerva and Yee. . At the time of his death he owned and was in possession of 80 acres of land situated in Monroe County. Sometime prior to 1895 the widow of W. H. Robinson, deceased, married a Doctor Boals, and there was to this marriage, one child, Elmer Boals, born. Mrs. Boals died in 1895 and left surviving her husband, Dr. Boals, and Elmer Boals, issue of this marriage, and the children of her former marriage. Mrs. Boals at the time of her death owned, in her own right, 180 acres of land situated in Monroe County and also in addition, some city property located in Clarendon. James Robinson died without issue and unmarried in 1902. After the death of James Robinson in 1902, Minerva E. Yelvington, nee Robinson, took possession of 100 acres of the land belonging to the estates of her father and mother and has continuously since that time occupied same up to the filing of this suit. About the same date last mentioned Olivia Hawkins, nee Robinson, took possession of an 80-acre tract belonging to said estates, and Vee Littleton, nee Robinson, took possession of another 80-acre tract belonging to said estates, and they respectively have continued to occupy same. Dr. Boals died in 1915, and the estate property located in Clarendon was taken possession of by Elmer Boals, and he has continuously collected rents and profits therefrom. Olivia Hawkins, nee Robinson, died some time prior to 1921 and left surviving, Virginia Tichenor, nee Hawkins, and her husband, R. E. Hawkins. In 1921 Minerva E. Yelvington and Vee Littleton acquired by purchase in equal parts the curtesy estate of R. E. Hawkins in and to the 80-acre tract previously occupied by Olivia, or her undivided interest as heir-at-law, in the estates of her father and mother. In 1925 Vee Littleton acquired by purchase the reversionary interest of Virginia Tichenor, nee Hawkins, in and to said estates; Vee Littleton subsequently acquired by purchase from Minerva E. Yelvington the undivided curtesy estate of R. E. Hawkins. In 'September, 1927, Vee Littleton conveyed her interests in the estates of her father and mother to her two daughters, Nancy and Roselle-Littleton .for a recited consideration of $1. This suit was filed by Nancy Mitchell, nee Littleton and Roselle Littleton in the Mon roe Chancery Court seeking partition of said estates and all interested parties therein were made parties thereto.
Minerva E. Yelvington, appellant here, filed her answer to said complaint in which she affirmatively pleaded a-family partition and settlement of-the estate belonging to her father and mother and actual occupancy and possession by the respective distributees for a long period of years. • She also filed a cross-complaint against the plaintiffs and their mother, Vee Littleton, in which she alleged that she furnished and paid the purchase money to R. E. Hawkins and Virginia Tichenor at the special instance and request of Vee Littleton for their respective interests in and to said estates and for these advances and others to Vee Littleton; that she had in 1921 filed suit in the circuit court of Faulkner County against the said Vee Littleton to recover -judgment for the sums advanced, and that on the 21st day of July, 1933, she recovered judgment for the sum of $2,376.97; that the conveyances from Vee Littleton to plaintiffs were colorable and fraudulent, same having been executed with the intention to cheat, hinder and delay cross-complainant and other creditors in the collection of their debts.
The issues thus stated present the decisive issues on this appeal. On the trial the chancellor determined that there was a family settlement of the estates among the interested parties many years prior to the filing of this suit, and each heir was decreed, in kind, the respective interests in the estates heretofore stated. No serious contention is made in reference to this finding of fact. The chancellor determined also that -the-conveyance from Vee Littleton to plaintiff was not fraudulent and dismissed the cross-complaint in this respect,- and this is the principal contention urged on this appeal. On this issue the testimony in behalf of appellant reflects that over a period of years prior to 1927 appellant, Minerva E. Yelvington, loaned or advanced to Vee Littleton various sums of money, some of which was used to purchase the curtesy interest of R. E. Hawkins, deceased;, some of which was used to purchase the reversionary interests of Virginia Tichenor, nee Hawkins, in said estates, and some of which was used for general family purposes, and aggregating more than $2,000; that in the early part of 1921, appellant was urging payment by Mrs. Littleton of her demands or that she be secured to this end; under these circumstances the deed Avas executed by Vee Little-ton to plaintiffs for a nominal consideration, and that this conveyance denuded Vee Littleton of all her visible property save a house and lot situated in Clarendon, of little A’alue. The testimony on behalf of appellees tended to show that the deed from Vee Littleton to her daughters was made at the direction and with the knowledge and consent of appellant; also that the city property retained by Vee Littleton at the time of this conveyance Avas amply sufficient to pay all her outstanding debts. Without further detailing the testimony adduced on these issues, which would serve no useful purpose as a precedent, it may be said that the chancellor’s findings do not appear to be against the clear preponderance of the testimony. Townes v. Krumpen, 184 Ark. 910, 42 S. W. (2d) 1083; Moore v. Brasel, 188 Ark. 550, 66 S. W. (2d) 1068.
True it is that Mrs. Yelvington’s acts in advising her sister to convey this property to her daughters seem to be inconsistent with all her other acts in the circumstances of this case, yet this seemingly inconsistent attitude is established by credible Avitnesses, and we are unwilling to disbelieve where the chancellor has given full credence.
It is an established rule of law, adhered to by all courts, so far as Ave are advised, that a party cannot maintain an action for a wrong where he or she has consented to its commission. This rule finds support in our own cases Avhere Ave have many times held that money voluntarily paid cannot be recovered merely because such claim Avas grounded on an invalid or unenforceable demand. Gates v. Bank of Commerce & Trust Company, 185 Ark. 502, 47 S. W. (2d) 806; Dickinson v. Housley, 130 Ark. 259, 197 S. W. 25; White River Lumber Company v. Elliott, 146 Ark. 551, 226 S. W. 164; Board of Directors v. Dunbar, 107 Ark. 285, 155 S. W. 96. For a general statement of the doctrine, see 1 Amer. & Eng. Enc."of Law and Practice, § 1022. See also Beckerle v. Danbury, 80 Conn. 124, 67 Atl. 371.
Moreover, the testimony is in irreconcilable conflict in reference to the value of the property retained by Vee Littleton at the time she executed this alleged fraudulent conveyance to her daughters and we are unwilling to say that a clear preponderance of the testimony shows that this conveyance denuded Vee Littleton, of property to the extent that she retained insufficient to pay her creditors at that time. Jackson v. Banks, 182 Ark. 1185, 33 S. W. (2d) 40; McDonald v. Dorfman, 182 Ark. 1185, 32 S. W. (2d) 443.
It is also urged that appellant advanced various sums of money to Vee Littleton for the purpose of effecting improvements which the chancellor either overlooked or ignored in stating the accounts between the parties. The testimony on this phase of the case is unusually voluminous. As may be expected in litigation between close kindred, the testimony on this question is in irreconcilable conflict. The parties to maintain their respective positions have related most trivial matters at great length and many charges and counter-charges were advanced and studiously maintained with great zeal; all of which in the last analysis is without value save to extol the contempt and hatred entertained by the one against the other. It suffices to say that the findings of the chancellor on this issue do not appear to be against the clear preponderance of the testimony.
No error appearing, the judgment is affirmed. | [
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Butler, J.
Prior to February 13, 1933, Troy Stock-burger was a member of the police force of the city of Fayetteville, holding the position of assistant chief of police. There was also a chief of police and three or four patrolmen. On the date mentioned the city council of Fayetteville, by proper resolution, provided for four policemen, a chief of police, a motorcycle man, and two night men, one at a salary of $60 and the other at $40 a month. The effect of this resolution was to eliminate the position of assistant chief of police. The mayor of the city suffered Stockburger to remain on the police force until May 22,1933, when the chief of police, acting under the order of the mayor, served Stockburger with written notice that he was no longer in the employ of the city. After some inquiry made to the city council, Stockburger presented a petition to the circuit court for a writ of certiorari. He alleged that the action of the mayor and council was in violation of act No. 28 of the Acts of 1933, approved February 13, 1933, which act provides for the creation of a board of civil service commissioners for cities of the first class. This act, among other things, provided that no member of any police department affected by the act should be discharged without being notified in writing, and that such discharge would only be for cause.
The trial court heard the testimony of witnesses, and denied the prayer of plaintiff’s petition, from Avhich action of the court this appeal has been prosecuted.
The testimony introduced by the appellant established the fact that his services had always been satisfactory, and that he had been an able and faithful officer; also, that he was not advised prior to his dismissal that such was contemplated, and no reasons were ever given him for this action by the governing body of the city. The evidence on behalf of the city was to the effect that the sole reason for the abolition of the position of assistant chief of police was to effect a saving in the expense of the police department, and that the fact that the position was abolished was the cause of the appellant’s dismissal.
On appeal it is urged that the trial court should have complied with § 1309 of Crawford & Moses’ Digest, by making a separate finding of fact and conclusions of law as requested by the appellant, and that the undisputed evidence in the ease disclosed a plain violation of the provisions of act No. 28, supra. Other questions are argued by counsel for the respective parties, none of which need be discussed, as we agree with the appellee in the contention that the act relied upon by the appellant was not in operation at the time the city council abolished the position of assistant chief of police, or when Stockburger was formally notified on May 22d, following, that his services had been dispensed. If we give any effect to § 18 of said act, this conclusion necessarily follows. That section provides: “If within ninety (90) days from the passage of this act, the requisite number of qualified electors of any city affected by said act shall file a petition with the city clerk of said city requesting said act to be submitted to a vote of the people, then said act shall be suspended until same is voted on and approved. Upon the necessary petition being filed with the city clerk, it shall be his duty to certify said act at the next city general election to be voted for or against, and the result shall be determined as now provided by law in such cases.”
The record discloses that within ninety days the requisite number of electors of the city filed a petition requesting the submission of the act to a vote of the people, and the same was voted on at the following city general election on the...........................day of April, 1934. At that election the act was adopted, and subsequently the board of civil service commissioners was appointed, and thereafter and not before, was the act effective as to the city of Fayetteville.
In Fiveash v. Holderness, 190 Ark. 264, 78 S. W. (2d) 820, it was suggested in argument by counsel that § 18 of act No. 28, supra, offended against a part of the I. & R. Amendment (No. 7) to the Constitution of 1874. This question was pretermitted by the learned trial court and not noticed by this court in its opinion upholding tire trial court’s decision on other grounds. That part of Amendment No. 7 (I. & R.) is as follows: “This section shall not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General Assembly, except a proposed constitu tional amendment or amendments as provided for in this Constitution.”
The Legislature did not attempt, by the section of the act quoted, to submit the act to the people, but simply recognized the constitutional right of municipalities to regulate their local affairs by a majority vote of the qualified electors of the municipality. The act was general in its scope, but, by § 18, could be localized so as to meet the needs of the individual municipalities of the State. This section was in recognition of Amendment No. 14 to the Constitution prohibiting the General Assembly from passing any local or special act, and had in mind also that section of Amendment No. 7, which reserves to municipalities and counties the right to enact local and special legislation. This being the purpose and effect of § 18, there was therefore no violation of the inhibition on the Legislature contained in the section of the I. & R. Amendment above quoted.
The result of our views necessarily compels an affirmance of the judgment of the trial court,, and it is so ordered. | [
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PHILLIP T. WHITEAKER, Judge
| Appellants Katie and Raymond Morgan appeal the order of the: Cleburne County Circuit Court denying their motion to set aside a default judgment that was entered against them in 2012. We find no error and affirm.
I. Background
Appellee Big Creek Farms of Hickory Flat, Inc. (“Big Creek”), and the Morgans entered into a contract for the construction of a log home in-Cleburne County. Construction commenced in 2008 and was completed in December 2009, at which time the Morgans still owed '■ Big • Creek $25,147.76 Although Big Creek attempted several times' to collect the amount from the Morgans, the Morgans never paid the outstanding balance on the house. As a result, Big Creek, filed a. lawsuit against them on September 26,2011.
^Despite repeated attempts; Big Creek was unable to obtain service on the Morgans either in person or by mail: After the circuit court granted a motion for extension of time- to obtain service, Big Creek ultimately obtained service-by warning Order pursuant to Arkansas Rule of Civil Procedure 4(f). The Morgans never answered, and the circuit court granted Big Creek’s subsequent motion for default judgment in April 2012.
The Morgans discovered the existence of the default judgment in 2013 and filed a motion to set it aside in November 2014. Big Creek, responded, denying that the default judgment should be set-aside. -The court denied the Morgans’ motion to set aside the default judgment. The Morgans timely filed a notice of appeal and now raise -four arguments as set out below.
II.- Standard of Review
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. Rule 55(c) sets forth’the circumstances pursuant to which a court may set aside a default judgment: ■
The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)- the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adversé party; or (4) any other reason-justifying relief from the operation ■ of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action;- however, if the judgment is void, no other defense to the action need .be shown.
Ark. R. Civ. P. 55(c) (2015).
The Morgans raise four arguments on appeal: (1) the default judgment was void for insufficiency of service of process under Rule 55(c)(2); (2) the extension of time for service ^obtained by Big Creek was improperly obtained under Rule 55(c)(3); (3) they were deprived of their due-process rights to notice of the lawsuit against them under Rule 55(c)(4); -and (4) if the court concludes that the default judgment should be set aside for a reason other than being void, the Morgans had a meritorious defense to the lawsuit under Arkansas Rule of Civil Procedure 55(c).
In cases where the appellant claims that the judgment is void under Rule 55(c)(2), the appellate courts will review a trial court’s denial of a motion to set aside default judgment using a de novo standard. Nucor Corp. v, Kilman, 358 Ark. 107, 118, 186 S.W.3d 720, 727 (2004). In cases where an issue arises under sections (c)(1), (3), or (4) of Rule 55, the trial court’s denial of a motion to set aside default judgment is reviewed for abuse of discretion. Id.
III. Insufficiency of Service of Process
In their first argument on appeal, the Morgans argue that the default judgment should have been set aside because it was void for insufficient service of process. Arkansas law is long settled that valid service of process is necessary to give a court jurisdiction over a defendant. Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (2005); Smith v. Sidney Mon-crief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). It is equally well settled that statutory service requirements must be strictly construed and compliance with them must be exact because they are in derogation of common-law rights. Shotzman, supra-, Cairruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d :944 (1996). The supreme court has held that the same reasoning applies to service requirements imposed by court rules. Nucor, supra; Carruth, supra. As a result, default | ¿judgments are void ab initio due to defective process regardless of whether the defendant had actual knowledge of the pending lawsuit. Nucor, supra; Smith, supra.
The Morgans challenge the sufficiency of service of process, raising three separate subheadings under this point: (1) there was no effective personal service pursuant to Arkansas Rule of Civil Procedure 4(d)(1); (2) there was no effective service by mail pursuant to Rule 4(d)(8); and (3) service by warning order pursuant to Rule 4(f) was deficient. Big Creek does not dispute that it was unable to effectuate service by either Rule 4(d)(1) or Rule 4(d)(8), and the circuit court found that service by warning order pursuant to Rule 4(f) was effective. The only issue before this court, therefore, is whether there .was effective service by warning order.
The Morgans argue that service on them by warning order was deficient because Big Creek failed to conduct a “diligent inquiry” into their whereabouts. They maintain that Big Creek’s actions in attempting to find or contact them were insufficient because the company’s president knew Katie Morgan’s phone number but failed to attempt to contact the Morgans to determine their current address prior to serving them by warning order. The Morgans thus contend that Big Creek did not conduct a diligent inquiry; therefore, the service by warning order was invalid, and the default judgment was void.
Service by warning order is gov? erned by Arkansas Ryle of Civil Procedure 4(f). This rule permits constructive service by warning order only if the whereabouts of the defendant are unknown “after diligent inquiry.” A mere recitation in an affidavit that a diligent inquiry was made is not sufficient. Scott v. Wolfe, 2011 Ark. App. 438, at 7, 384 S.W.3d 609, 613 | ¿The burden is on the moving party to demonstrate to the court that he actually attempted to locate the defendant. Id.) Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983).
Given this framework, we examine the steps taken by Big Creek in an attempt to obtain service on the Morgans. First, Big Creek attempted to obtain personal service upon the Morgans at their address of 160 Heigle Road, Tumbling Shoals, Arkansas (“the Heigle address”). The Cleburne County Sheriff s Department unsuccessfully attempted service at this' address on four separate occasions. Although service was unsuccessful, the sheriff s department was able to discover information that the utility bills were being mailed to a’'Chester Morgan, whose address was 491 Woodruff 252, McCrory, Arkansas (“the McCrory address”).
Second, Big Creek hired a private investigator, Jon Hopkins, to research Raymond Morgan’s whereabouts. The investigation confirmed the McCrory address as a possible location to serve the Morgans. Third, Big Creek attempted personal service at the McCrory address, where the Woodruff County Sheriffs Department unsuccessfully attempted servióe on three separate occasions. Next, Big Cieek attempted to serve the complaint via certified mail, restricted delivery to addressee only, at the Heigle address. The mail was returned, marked “Return- to Sender, No Such Number.” Big Creek then mailed the complaint and summons to the Morgans. at the Heigle address via first class mail; this mailing was likewise returned, marked “No Such Number.”
| fiAfter pursuing these unsuccessful attempts'to serve the Morgans, Big Creek obtained an extension of time in which to effectuáte service.' Eventually, Big Creek filed an affidavit for warning order, describing the attempts that had been made at service. The Cleburne County Circuit Clerk issued the warning order, and the order was published for two consecutive weeks in the Sun-Times, -a Cleburne County newspaper. Big Creek mailed the affidavit, the warning order, and the complaint and'summons to the Morgans at the Heigle address, return receipt requested with delivery restricted to addressee only, but this mail was- returned marked “Return to Sender, No Mail Receptacle, Unable to Forward.”
We hold that Big Creek conducted a diligent inquiry ‘into the whereabouts of the Morgans sufficient to "satisfy the constructive-service provision of Rule 4(f). The affidavits of the process servers and investigators establish that a diligent inquiry was conducted, and the affidavit for warning order reflected those efforts. ■ We therefore conclude that service was properly effectuated by warning order.
The Morgans also argue, however, that the circuit court erred in finding that the Heigle address was their “last known address” for purposes of Rule 4(f). Rule 4(f)(2) provides that “[t]he party seeking judgment shall cause the warning order ... to be mailed,, with a copy of the complaint, to the- defendant ... at his or her last known address by any form of mail with delivery restricted to the addressee or the agent of the addressee.” The Morgans complain that when the mail addressed to 160 Heigle Road was returned with a notation of “no such number,”- Big Creek should have then sent the warning order to the Morgans’. “last |7known address” — i.e., the McCx;ory address — rand.its failure to inform the court of this address constituted fraud.
On this issue, the circuit court found that the Heigle address was the Morgans’ last known address. The court concluded that, while evidence did establish that utility bills were, being sent -to the McCrory address, there was no proof that., the McCrory address was a. forwarding address. The circuit court’s conclusions are supported by the evidence. The process servers’- affidavits indicated only that utility bills were being mailed -to the McCrory address, not that, mail was being forwarded by the post office from the Heigle address to the McCrory address. Moreover, in them petition to set aside the default judgment, the Morgans admitted that they resided, at 160 Heigle Road. Ip sum, the evidence introduced below supported the circuit court’s decision that the Heigle address, not the McCrory address, was the Morgans’ “last known address” for purposes of Rule 4(f). Accordingly, we conclude that the service by warning order was effectuated in compliance with Rule 4(f), and the subsequently entered default judgment was not void', for want of service.
. IV. Motion for Extension of Time ■ to Serve the Summons and :
, Complaint ■
In their second argument on appeal, the Morgans assert that the circuit court erred in granting Big Creek’s motion for extension of time to óbtain service for two reasons: (1) Big Creek failed to show good cause to obtain áh extension, and (2) the order does- not" bear the signature of the circuitcourt judge.
^Regarding good .cause, the Morgans complain that Big Creek never told the circuit court that it “knew all along how to contact the, Morgans in order to perfect service prior to the trial court issuing the order for extension of time.” The circuit court never ruled on this argument, however, and it is therefore not preserved for appeal. See Tillman v. Raytheon Co., 2013 Ark. 474, at 18, 430 S.W.3d 698, 709 (noting that if is an appellant’s burden to obtain k ruling to preserve an issue for appeal, and the failure to do so precludes appellate review); Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328/422 S.W.3d 116,
With respect to the order extending the time to serve the summons and complaint, the Morgans qúestion the authenticity of the judge’s -signature thereon. The order was signed only with initials, and the Morgans argue that the handwriting of the initials does not match the actual signature of the judge, as reflected on other documents filed in the case. At the hearing on the petition to set aside the default, judgment, the circuit court agreed that it did not appear to be: the judge’s signature on the order, but the court concluded that it had no proof that it was not the judge’s signature or that the judge did not ask his trial-court assistant to sign it. The court therefore declined to find that the order was improper.
When a circuit court denies a petition to set aside a default'judgment on the basis of fraud pursuant to Rule' 55(c)(3), our standard of review is whether the circuit court abused its discretion. Wise v. Harper, 2015 Ark. App. 702, 477 S.W.3d 565. Here, the circuit court was presented with no evidence that the signature oh the 'order was a forgery or that it had been fraudulently obtained. We are unable to sáy that the circuit court abused its discretion in concluding that the signature presented no basis for setting aside the default judgment.
. . [flV. Due Process
In their third argument on appeal, the Morgans contend that Big Creek failed to provide notice to them in such a manner that they received adequate notice according to the guarantees of due process provided by the United States artd Arkansas Constitutions. A plaintiffs service of process on a defendant, or the defendant’s waiver of service of process, is necessary in order to satisfy the due-process requirements of the United States Constitution. Se. Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). Here, as discussed above, Big Creek properly served the Morgans by warning order pursuant to' Rule 4(f) of the Arkansas Rules of Civil Procedure. Accordingly, that service of process satisfied due process. ' ,
VI. Meritorious Defense
Finally, the Morgans assert that, in the event this court finds that the default judgment should have been set aside for a reason other than the judgment being void, they had a meritorious defense to the action. However, because we have concluded that there is no basis at all for setting aside the default judgment, it is immaterial whether the Morgans presented a meritorious defense. See, e.g., West v. West, 103 Ark. App. 269, 272, 288 S.W.3d 680, 683 (2008) (“While it is true that defendants wishing'to set aside default judgments must demonstrate a meritorious defense to the action, the defense . in and of itself is not sufficient without first establishing one .of the grounds laid out in Ark. R. Civ. P. 55(c).”) (citing McGraw v. Jones, 367 Ark. 138,1238 S.W.3d 15 (2006); So. Transit Co. v. Col-imas, 333 Ark. 170,,966 S.W.2d 906 (1998); Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996)). Accordingly, we do not consider this issue further.
Affirmed. .
Kinard and Hixson, JJ., agree.
. The circuit court found that if the McCrory address had truly been a forwarding address, the complaint and summons that had been mailed to the Heigle address would have been ■ forwarded to the McCrory address, rather - -than returned'to sender. • | [
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PER CURIAM
hRolandis Larenzo Chatmon appeals the denial of his pro se petition for postconviction relief filed pursuant to Rule 37.1' of the Arkansas Rules of Criminal Procedure. Also pending are Chatmon’s motion and amended motion to remand to the trial court, as well as his motion for appointment of counsel. Because it is clear from the record that Chatmon cannot prevail on appeal, we affirm and his motions are moot.
On August 9, 2013, Chatmon was’found guilty by a jury of three counts of aggravated robbery and one count of theft of property. He was sentenced, as a habitual offender with a firearm enhancement, to a term of three life sentences plus 360 months’ imprisonment. ■ His convictions resulted from the residential robbery of three individuals at | ggunpoint. His convictions and sentences were affirmed by this court on direct appeal. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731.
■ Chatmon filed a timely petition for post-conviction relief. The trial court conducted a hearing and provided Chatmon with the opportunity to make additional arguments and allegations in support of his petition for postconviction relief. Following the hearing, the trial court denied relief and concluded that Chatmon’s claims were without merit as either not cognizable in a Rule 37 proceeding or insufficient to meet the two-prong standard announced in Strickland v, Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
This court will not reverse the trial court’s -decision granting or denying postconviction relief unless it is clearly erroneous. Adkins v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is' left with the definite and firm conviction that á mistake has'been committed. Id.' We will affirm if á trial court makes the correct decision even if it does so for a different reason. Jones v. State, 347 Ark. 409, 422, 64 S.W.3d 728, 737 (2002).
For his first point on appeal, Chat-mon alleges that .his arrest was-based on unreliable and thus-insufficient evidence, an obstruction of justice, along with the “wholesale suppression” of exculpatory evidence; and that he is innocent of the crimes for which he was convicted. Generally, a challenge to the validity of an arrest warrant and a challenge to sufficiency of the'evidence are not'cognizable under Rule 371. Moten v. State, 2013 Ark. 503, at 4, 2013 WL 6327549 (per-curiam); Scott v. State, 2012 Ark. 199, at 6-7, 406 S.W.3d 1, 4 (per curiam).
| a Chatmon’s assertion that the police and prosecutor suppressed exculpatory evidence was not raised below and will not be addressed on appeal. > Thornton v. State, 2014 Ark. 113, at 2, 2014 WL 1096263 (per curiam) (An appellant cannot raise new arguments on appeal or add factual substantiation to the allegations made below.).
For his second point on appeal, Chatmon alleges improper admission of prejudicial evidence. Claims of trial error that could have been addressed at trial and on the record on direct appeal are not grounds for relief under Rule 37.1. Stewart v. State, 2014 Ark. 419, at 10, 443 S.W.3d 538, 545 (per curiam). Arkansas Rule of Criminal Procedure 37.1 is not a means to challenge the admissibility of evidence. Id. (citing Watson v. State, 2012 Ark. 27, at 3,. 2012 WL 234634 (per curiam)).
In his third assignment of error, Chatmon insists that his right to a speedy trial was. violated and that counsel waived his speedy-trial rights without his knowledge or consent.;. We have consistently held that claims based bn a violation of the right to a speedy trial are a direct attack on the judgment, and such claims are not grounds for a collateral attack on the judgment under Rule 37.1. Fletcher v. State, 2015 Ark. 106, at 3, 458 S.W.3d 234, 238 (per- curiam)., Chatmon’s claim that counsel was ineffective in waiving his right to a speedy trial-without.his knowledge, or consent is cognizable under Rule 37,1, .but the allegation lacks merit because the record shows that there was no violation of Chat-mon’s right to a speedy trial. !
Chatmon was arrested on May 15, 2012, and was brought to trial on August 8,2013. Here, a suppression motion was filed on January 4, 2013, and- the motion was decided in Chatmon’s favor on April 8, 2013, which represented an excludable period of time that 14equaled 94 days. Ark. R.Crim. P. 28.3(a) (2013). Further, the State’s continuance due to the unavailability of material evidence, which accounted for an additional 30 days, is also excluded from a speedy-trial calculation. See Ark. R.Crim. P. 29.3(d)(1) (2013). When 124 days of excludable time is subtracted from the 450-day time frame between Chatmon’s arrest and his trial, 326 days remain, which is well within the 365-day time frame mandated by the speedy-trial rules. Breeden v. State, 2014 Ark. 159, at 8-9, 432 S.W.3d 618, at 625-26.
In Chatmon’s fourth point on appeal, he claims that he was denied effective assistance of counsel and raises numerous allegations of error in support of this claim. The trial court denied the ineffec-tiye-assistance-of-counsel claim without specifically addressing the allegations raised by Chatmon. If the trial court fails to make specific findings, it is reversible error, except in cases where it can be determined from the record that the petition is wholly without merit "or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Henington v. State, 2012 Ark. 181, at 9, 403 SW.3d 55, 62. Here, a review of the record conclusively demonstrates that Chatmon failed to state facts warranting postconviction relief based on his ineffective-assistance-of-counsel claim and the supporting allegations of error.
Under the two-prong standard outlined in Strickland, 466 U.S. 668,104 S.Ct. 2052, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense.'- Adkins v. State, 2015 Ark. 336, at 5-6, 469 S.W.3d 790, 795 (per curiam). Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Airsman v. State, '2015 Ark. 409, at 3, 473 S.W.3d 549, 553 (per curiam). Chatmon’s conclusory allegations of error fail to overcome the strong presumption that counsel provided effective assistance and fail to demonstrate prejudice.
At the outset, Chatmon contends that his- counsel’s poor performance was .the result of a conflict of interest. According to Chatmon, the conflict arose when he filed a pretrial motion requesting the appointment of new counsel. An actual conflict of interest generally requires proof that counsel “actively represented conflicting interest,” of third parties. Townsend v. State, 350 Ark. 129, 134, 85 S.W.3d 526, 528 (2002). There is no evi dence in the record of an actual conflict. In the absence of an actual conflict, a petitioner alleging that counsel’s performance was deficient due to another form of conflict must demonstrate a .reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. (citing Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)). Chatmon’s bare assertion that his relationship with counsel was tainted by hostility and that he desired other representation does not, standing alone, establish that he- was deprived of effective representation;
The specific ineffective assistance arguments that Chatmon makes on appeal that were presented below and preserved for appellate review are as follows: (1) trial counsel failed to adequately cross-examine the State’s witnesses by identifying inconsistencies in the testimony; (2) trial counsel failed to' object to the admission- of the gun seized from Chrystal Brown’s vehicle; (3) trial counsel failed to object to the admission of evidence' of other crimes during the sentencing phase of Chatmon’s trial; (4) trial counsel failed' to present exculpatory evidence during the sentencing phase'; (5) trial counsel failed’ to object "to 'the |f,State’s dosing argument; (6) trial counsel failed to conduct’an adequate investigation and failed to preparé for the guilt and sentencing phases of his trial.
Chatmon’s assertions that counsel failed to conduct effective cross-examinátion or to conduct k proper investigation lack factual substantiation sufficient to demonstrate that counsel’s performance fell below an objective standard of reasonableness, or that he was prejudiced by counsel’s alleged errors; Airsman, 2015 Ark: 409, at 3, 473 S.W.3d at 553. Chat-mon' does not identify the witnesses whose testimony was subject to impeachment nor does he describe the inconsistencies he is referencing. Where a petitioner alleges ineffective assistance for failure to perform an adequate investigation, he must identify what materials,. witnesses, or evidence could have been uncovered by further investigation, and -he must establish actual prejudice arising from this failure by demonstrating by a reasonable probability that the specific materials uncovered with further investigation could have changed the trial outcome. Howard v. State, 367 Ark. 18, 34, 238 S.W.3d 24, 28 (2006). Chatmon does not identify what material could have been discovered by additional investigation, and, in the absence of such specific allegations, prejudice cannot be determined. Abernathy v. State, 2012 .Ark. 59, at 8, 386 S.W.3d 477, 483 (per curiam).
Chatmon’s arguments, on appeal that counsel was ineffective by failing to object to the-admission of evidence during the guilt phase of his trial is unavailing. Chatmon contends that the gun seized from Chrystal Brown’s vehicle should have been suppressed. Chatmon does not provide a basis upon which the gun could have been suppressed or excluded from evidence. The gun was seized.in a legal search of the vehicle and was relevant to a determination of Chatmon’s guilt. Ark. R. Evid. 401(b) (2015). A person seeking |7postconviction relief based on the failure of counsel to'make an objection must show that the counsel could have made a successful objection in order to demonstrate prejudice. Breeden, 2014 Ark. 159, at 8, 432 S.W.3d at 625. There is no such showing here.
Chatmon’s contention that counsel was ineffective for failing to object to the admission of evidence introduced during the sentencing phase is likewise without merit. Chatmon does not explain how the testimony of Tiffany Fisk, which he contends was improper, could have been successfully excluded, and, therefore, fails to show prejudice. Breeden, 2014 Ark. 159, at 8, 432 S.W.3d at 625.
Chatmon also contends that counsel failed to introduce exculpatory evidence to refute the testimony of Tiffany Fisk, 'but fails to describe the nature of this alleged exculpatory evidence and does not explain how it could have discredited the testimony. Chatmon’s allegation that counsel was ineffective for failing to object to the prosecutor’s closing argument does not identify the basis for a successful objection. Con-clusory allegations unsupported by facts and that provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam). The burden is entirely on a petitioner to affirmatively support an ineffective-assistance-of-counsel claim with factual substantiation sufficient to overcome the presumption that counsel was effective and to demonstrate that he was prejudiced by counsel’s poor representation.
For his fifth assignment of error, Chatmon asserts that the court erred when it refused to appoint conflict-free counsel. However, the court did not rule on this request by Chatmon. Where the trial court provides written findings on at least one, but less than all 18of the petitioner’s claims, we have held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be considered on appeal. Cowan v. State, 2011 Ark. 537, at 3, 2011 WL 6275694 (per curiam). Chatmon’s failure to obtain a ruling on this claim precludes review by this court.
In his sixth claim for relief, Chatmon alleges on appeal that the prosecutor failed to disclose evidence introduced at the trial and faded to provide a full witness list disclosing Monett Soloman and Tiffany Fisk as witnesses. With respect to Chatmon’s contention that the prosecutor failed to disclose evidence introduced at trial, including audio recordings of Chat-mon’s telephone conversations that took place while he was incarcerated, this is an allegation that should have been raised at trial and on direct appeal and cannot be raised for the first time in a Rule 37 petition. Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006). The claim regarding the failure to disclose the names of these witnesses was not argued below and is waived on appeal. Thornton, 2014 Ark. 113, at 2, 2014 WL 1096263.
i The trial court did not clearly err when it rejected Chatmon’s claims for postcon-viction relief based on allegations of trial-court error, prosecutorial misconduct, and ineffective assistance of counsel and there fore, we affirm. .Chatmon’s motions to remand for specific rulings from the trial court are moot. Chatmon’§ motion for appointment of counsel is moot.
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Riddick, J.
(after stating the facts.) This is an action by plaintiffs against a cotton seed oil company to recover damages which plaintiffs allege was caused by the fact that the defendant, in violation of its contract, furnished meal made in part from rotten cotton seed, which, being fed to the cattle of plaintiffs, caused them to become sick, to the damage of plaintiffs in a large amount.
The facts are not set out in the bill of exceptions, but only those facts are stated necessary to show the bearing and pertinency of the instructions given by the court or asked by the parties.
The facts, as thus set out, show that evidence was introduced by the plaintiffs tending to show that the defendant company did for a stipulated price agree to furnish plaintiffs a sufficient quantity of cotton seed hulls and prime cotton seed meal to feed the cattle of plaintiffs, and that, in violation of this contract, the company furnished to the plaintiffs cotton seed meal mixed to the extent of eight or ten per cent, with meal which had been made from old cotton seed that had been overheated and damaged by rain and were partly rotten. The bill of exceptions further states that the evidence tended to show that “some of this meal thus mixed had been delivered and fed to plaintiffs’ cattle before plaintiffs noticed that anything was wrong with the meal; and plaintiffs, having observed that their cattle were not doing well, and being expert cattle feeders and capable of telling good meal, examined the meal which was being fed to their cattle, and saw that the meal was dark in color, tasted and smelled badly, and they pronounced it bad meal. They then reported this fact to the superintendent of the defendant, and objected to the use of such meal. He thereupon showed to plaintiffs the cotton seed cake from which he claimed that the meal that was being furnished to plaintiffs was made, and .plaintiffs, seeing this was good cake, and being thus assured by the superintendent, continued to feed the meal a while longer; but, still finding that their cattle to which the meal was fed were not doing well, they went into the room where the meal was manufactured, and saw that the meal was being mixed with dark meal made from overheated seed brought over from the crop of 1898. Plaintiffs then reported this fact to the superintendent, and declined to use the mixed meal further, and thereafter they were furnished good meal.
In view of this evidence, we think the instruction given b)r the court on this point which is set out in the bill of exceptions is somewhat too narrow, as it fails to call the attention of the jury to the phase of the case presented by the evidence which tended to show that the superintendent, after the plaintiffs had suspected that the meal furnished was inferior and not suitable, reassured them by asserting that it was made from cake that was sound and wholesome. We agree with the contention of plaintiffs on this point that, even if the plaintiffs discovered facts sufficient to raise in their minds the belief that the meal was inferior and not suitable to be fed to cattle, yet if they at once informed the superintendent of the defendant company of the facts and objected to the further use of the meal, and if thereupon the superintendent represented to and assured them that the meal was not bad, but prime meal of the kind called for by the contract, and the plaintiffs, acting with due care and in good faith, relied upon such representations, and were misled thereby under circumstances that were calculated to mislead a person of ordinary prudence placed in like situation, they would have the right to recover for any damages arising from injury to the cattle by the use of such meal up to the time when they ascertained that the representations were in fact false and the meal was unfit to be used to feed cattle.
The plaintiffs asked an instruction somewhat on these lines, but they did not make the refusal of it a basis for their motion for new trial, so we have not considered whether it was correct or not; but we l'efer to what seems a defect in the instructions on this point, for the reason that we have concluded that a new trial must be allowed on account of error committed in another instruction given by the court on the measure of damages, which we will now notice.
So far as the cattle which died from the failure of the defendant to perform its contract, the court instructed the jury that the measure of damages was their market value just before they were taken sick, and there is no doubt that this was correct, with the exception that possibly interest should be added from the date of the injury; but no complaint is made to that part of the instruction, i Sutherland, Damages, § 105.
As to the cattle which recovered, there are two rules for the admeasurement of damages, which, though different in form, amount in results, so far as this case is concerned, to about the same thing. The first of these, which, theoretically at least, seems to be the most exact, and which has been adopted by this court, is to allow the difference between the value of the animals immediately before they became sick and their value immediately after they became sick. New York R. Co. v. Estill, 147 U. S. 591; St. L. etc. Ry. Co. v. Biggs, 50 Ark. 169, 6 S. W. 724. If the wrongful act of the defendant caused the cattle of plaintiff to become sick, then this rule gives.him full compensation for the depreciation in value caused by the sickness, which is all that he is entitled to claim. But, in order to correctly' determine the value of the cattle after they became sick, it is proper for the jury to take into consideration the subsequent history of the sickness. They should consider the amount of care and expense reasonably required on account of the sickness, and whether the cattle were permanently-injured by the sickness or entirely recovered from the effects thereof. Lemon v. State, 19 Ark. 172. It would not be possible for the jur}r to correctly determine the value of the cattle after they became sick, without knowing and considering these matters. Por if, under this rule, the damages are not assessed in the light of this subsequent histor}1-, and if the value of the sick cattle is estimated only as it appeared to be at the time they became sick,the result will be that the plaintiff will be allowed only his apparent damages as they appeared to be at the time the cattle were taken sick. These apparent damages may have been greater or less than the actual damages. It may be that to those who observed the sick cattle when they were first affected they appeared to be but slightly unwell, whereas they may have been so seriously affected that much care and attention were required to restore them to health. On the other hand, they may at that time have appeared to be in a much worse condition than they really were. It may have seemed to those who saw them that they were of no value, when in fact only a small amount of care may have been required to bring them to health again. The law seeks to give one, not his apparent, but his actual damages; and, in order that the jury may determine what those damages are, they are permitted to have before them all facts in relation to the sickness and recovery of the cattle, in order that they may allow the plaintiff full compensation for the injury sustained, and nothing beyond.
But it may not be always easy to get a jury to understand that in assessing the value of the sick cattle they are to take, not the value as it may have appeared at the time of the sickness, but the actual value as shown by the light of subsequent events. For this reason another rule is followed by some courts, and the damages assessed by allowing the difference between the value of the cattle before they became sick and their value after they recovered, if they were of less value after the sickness than before, and, in addition thereto, a' sum sufficient to compensate the plaintiff for the loss of time, care, attention and other necessary expenses or losses caused by the sickness, including, where the animals are work animals, the value of their use lost by the sickness. 2 Sedgwick, Damages (8th Ed.), § 435. The object of each of these rules is to compensate the plaintiff for the. loss sustained on account of the sickness and injury of the cattle, and the result of a correct application of one would in this case be about the same as the other. In the first rule, where the difference in the value of the animal before and after it became sick is taken as the measure of damages, nothing is expressly allowed the plaintiff for care and attention to the sick animal; but it is allowed in effect, for under this rule the value of the animal when sick is fixed by considering, among other things, the value of the care and attention required to cure him. For instance, suppose that the ox of plaintiff worth one hundred dollars is made sick by the wrongful act of the defendant; suppose that after he recovers he is of the same value, but that the care, attention and other costs of his sickness amount to fifty dollars. Under the first rule the jury should'say that' this ox was worth $100 before he became sick, and he is worth the same now as if he had never been sick, but it took fifty dollars to cure him, therefore his value immediately after he became sick was only fifty dollars, and the difference between that and his value before sickness is fifty dollars, which is the extent of the damages to be allowed. Under the second rule they would take the difference in value of the animal before and after sickness, which in the case supposed would be nothing, and to that they would add a sum sufficient to cover the cost of the sickness, including loss of time and expenses, which would be fifty dollars, as-the amount to be allowed for damages, being the same as that under the other rule. It would probably be necessary in some cases to allow interest, but no question of that kind is raised here.
Of course, it is not pretended that these rules would in all cases work out exactly the same result, but only that in this case the results would be substantially the same, and that under the facts here substantial justice would result from the correct application of either of them. Other cases with a different state of facts might present other elements of damages, and call for a corresponding modification of the rule for their admeasurement.
Now, the presiding judge seems to have had both these rules in mind. He begins by saying that the measure of damages as to the cattle that recovered is “the difference between their market value when they were taken sick and their market value immediately after said sickness.” He meant by this, we suppose, the difference between their market value just before they became sick and their market value just after they bcame sick, which would be correct, but the language that he used might be given another meaning. A careless juror might understand the phrase “when they became sick” to mean after they became sick, and the phrase “after said sickness” to mean after the sickness was over, or, in other words, after they recovered. This would lead to very erroneous results. But, though the language would bear that construction, we do not think that meaning was intended, and, as no special objection was made to it, we take it that the uncertainty was simply a mistake of form committed in the hurry of trial, which misled no one. But, passing that matter, the instruction proceeds to tell the jury that if, by subsequent care and attention to the cattle on the part of the plaintiff, there was a reduction in the amount of damages as declared by this rule, the defendant would be entitled to the reduction. Now, the idea of the court may have been correct, but the law is not correctly stated. In estimating the value -of the cattle after they became sick, it is proper, as we have said, to take into consideration the subsequent history of the sickness of the cattle. If the health of the cattle has by care and attention been restored, that should be considered also, in order to correctly ascertain the value of the cattle after they became sick. When that value is ascertained, the plaintiff is entitled to the difference between that and their value immediately before they became sick, without reduction of any kind, for less than that would not give him' full compensation for the injury sustained.
Again, after the court had laid down one measure of damages for the guidance of the jury, he proceeds, in the same instruction, without calling the attention of the jury to the difference between the two, to lay down for their guidance another and different measure of damages. He tells the jury in that part of the instruction that, as to the cattle that recovered, they should take as a measure of damages “the final loss in the aggregate weight of the cattle by reason of such" sickness and injury as the defendant was responsible for, and also the loss in value per hundred pounds of cattle by reason of the depreciation in the quality of the cattle for beef, so far as they may find such element of damages established by a preponderance of the evidence in ¡the case.” The court then proceeds to say that “this estimate of damages would include the reasonable and necessary expenses, as you may find from the evidence, incurred by the plaintiff in so caring for the cattle after their sickness and up to the time when they were ready for the market.” But this statement of the rule seems to us somewhat confusing. If the court meant h)' this that the measure of damages would be the final loss in value of the cattle on account of the sickness, we see no reason why the jury should he required to separate the loss in weight and the loss in 'beef quality, or why the court should' sa)^ that the rule as stated includes the reasonable expenses of the sickness, instead of telling the jury that to the difference between the value of the cattle before the sickness and their value after the sickness there should be added the reasonable and necessary expenses caused by the sickness.
Another objection to this instruction is that it confuses the two rules for the admeasurement of damages above referred to. The application of either of these rules would have given substantial justice, but when the court directs the jury in effect to apply both rules, without carefully distinguishing one from the other, the result is necessarily confusing.
The presiding j udge may have had a correct view of the law in his mind, but in the hurry of the trial it was not clearly stated in the instruction given, some parts of which in our opinion are incorrect and misleading.
Judgment reversed, and cause remanded for a new trial. | [
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Wood, J.
(after stating the facts). Appellant contends that the indictment is bad because neither the statute under which it is drawn, nor any other statute, defines what is an unlawful carnal knowledge, and because it was not an offense at the common law to have carnal knowledge of a female between the ages of 12 and 16 with her consent. The statute under which appellant was indicted is as follows: “Every person convicted of carnally knowing or abusing unlawfully any female person under the age of 16 years shall be imprisoned in the penitentiary for a period of not less than five nor more than twenty-one years.” Sand. & H. Dig. § 1865. The legislature intended by this enactment to make it a felony for any person to carnally know or’ abuse any female under the age of 16 years, except in cases of marriage, either with or without her consent. Our statute makes it lawful for females to marry at the age of 14 years. Sand. & H. Dig. § 4907. And the word “unlawfully” was used in the criminal statute under consideration with reference to the above provision of the civil statute, and to except those who came within it. If this was not the purpose of the use of the word “unlawfully,” then it had no purpose, and the legislature was engaged in putting a foolish conglomeration of words into a meaningless sentence. To protect young girls from the wanton wiles of the seducer, the legislature fixed the age at which she could consent to sexual intercourse, except in case of marriage, at 16 years. The law against rape afforded them ample protection against forcible intercourse before the passage of this act. We must give to every word in a statute some meaning if it is possible to do so and carry out the purpose of the legislature. But it is obvious that, unless the word “unlawfully” was used in the sense indicated above, it is meaningless, and its use was surplusage; for the statute would be complete without it, and defines the crime of and prescribes the'punishment for carnal knowledge or abuse of a female under the age of 16 years.
The prosecutrix testified that about the last of March, or first of April, 1901, appellant had sexual intercourse with her twice; that she consented to such intercourse; that she was 15 years old, and that no one else ever had sexual intercourse with her. While she was testifying, she had her baby in her lap. Appellant asked to exclude the baby from the presence of the jury, which the court refused. The baby of prosecutrix was proof conclusive that she had sexual intercourse with some one, but, in the absence of anything in the record showing that it resembled appellant, we do not see that the mere fact of there being a baby in the case tended in any way to show that appellant was its father. The point of inquiry in the case was whether appellant had had sexual intercourse with the prosecutrix while she was under 16. The mere fact that prosecutrix had given birth to a child, which child she had present when she was testifying, did not tend to show that appellant was guilty, and therefore he was not prejudiced by the ruling of the court.
The proffered testimony of various witnesses on behalf of appellant tending to prove that prosecutrix had sexual intercourse with some one other than appellant was immaterial. The character of the prosecutrix for chastity is not involved in a charge of this kind, as in cases of seduction. The only question in a charge of this kind is whether appellant had sexual intercourse with the prosecutrix. The “et tu” defense does not obtain.
The prosecutrix on cross-examination testified broadly that she had never had sexual intercourse with any one except appellant, and appellant contends that he should have been permitted to show that she had sexual intercourse with another, to contradict and impeach her. But here again such impeachment would have been on an immaterial point, which is not allowed when brought out for the first time on cross-examination. The rule in such cases is that when a party on cross-examination asks the witness a question on an immaterial issue he cannot afterwards contradict the answer made by the witness. Butler v. State, 34 Ark. 480. What we have said applies to the proffered testimony of witnesses Hooper, Freeman, Briggs, Hixson and Mrs. Brown tending to show sexual intercourse of prosecutrix with some other than appellant, and also the testimony of Mrs. Brown as to what prosecutrix said to her on the night when prosecutrix was at her house. All this alleged conversation was about matters immaterial to the charge against appellant, and was therefore inadmissible. Billings v. State, 52 Ark. 303; Jones v. Malvern Lumber Company, 58 Ark. 125.
The offered testimony of Mrs. Rowland and Mrs. Brown, by which appellant was seeking to prove a certain conversation which took place between him and one of his witnesses, to-wit, Tom Walker, was clearly! inadmissible both on the ground of irrelevancy and self-serving, declarations.
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Battle, J.
Will Fleming was indicted for an assault with intent to kill. He was tried before a jury, and convicted, and appealed to this court.
There was evidence to sustain the verdict of the jury. It is unsatisfactory, as it appears to us. But the judge of the trial court and the jury, who heard it, had better opportunities than we have to know the weight to which it was entitled, and they evidently considered it sufficient. We will not, therefore, disturb the verdict on account of it.
Appellant says that he was surprised by the testimony of a witness who testified in behalf of the state. But ha made no “application for a postponement of the trial, in order that he might repair the damage done him by the unexpected testimony.” He took his “chance of a verdict in his favor in spite of the surprise, without an effort to repair the injury while yet he may,” and “must abide his election to stand the hazard of the verdict.” Nickens v. State, 55 Ark. 567, 18 S. W. 1045; Overton v. State, 57 Ark. 60, 20 S. W. 590.
Affirmed. | [
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Wood, J.
Appellant was indicted in the circuit court of Sevier county for killing one DaveEoshee, the indictment charging him with the crime of murder in the first degree. The venue was changed to Howard county, where appellant was tried and convicted of murder in the second degree, and his punishment fixed at seven years in the penitentiary.
1. When an order for change of venue shall be made, the statute requires that the clerk of the court in which the cause is pending “shall make out a full transcript of the records and proceedings in the cause, including the order of removal, the petition therefor, if any, * * * and shall immediately transmit the same, duly certified, under the seal of the court, to the clerk of the court to which the removal of the cause is ordered.” Sandels & Hill’s Digest, sec. 2173.
The appellant contends that the Howard circuit court did not acquire jurisdiction, as the certificate of the clerk of Sevier county only shows “a true, perfect and compared transcript of all papers and record entries in the case.” The certificate of the clerk of Sevier county was a substantial compliance with the statute. “A true, perfect and compared transcript of all papers and record entries in the case” certainly embraces all that “a full transcript of the records and proceedings in the cause” contemplates, and fulfills every requirement of the statute as' to the clerk’s certificate.
2. But it is further contended that the certificate of the clerk is untrue because in the original indictment the name of the deceased appears as Dave Foshee, whereas in the copy in the transcript sent to Howard county it appears as Dave Forshee. The appellee moved to have the transcript corrected in this particular, and the court permitted the circuit clerk of Sevier county to appear in the Howard circuit court, and there amend the transcript by striking from the word “Forshee” the letter “r,” making it read Foshee as in the original indictment. The appellant objected, and excepted to the ruling of the court permitting the clerk of Sevier county to amend the transcript in this way, and presents this as one of the grounds for reversal. We need not pass upon the question as to the place and manner in which the correction was made, for we regard the correction itself as wholly immaterial, “Forshee” and Foshee, in the opinion of a majority of us, come clearly within the doctrine of idem sonans, which renders a difference in the spelling of names immaterial so long as the pronunciation or sound remains substantially the same. 21 Am. & Eng. Enc. Daw (2d Ed.), title “Names,” p. 313; Ruddell v. Mozer, 1 Ark. 503; Beneux v. State, 20 Ark. 97; Bennett v. State, 62 Ark. 516.
3. The court did not abuse its discretion in refusing to continue the case. The appellant alleged that he had been unable to prepare his case for trial, and that he had, on account of his confinement, been unable to obtain counsel in Howard county until the day the case was set for trial there; that his counsel had not been able to make the investigation necessary to prepare his case for trial; and consequently he prayed that the case might be continued.
It appears that appellant was indicted on the 20th of January, 1904, and was not put upon trial until the 8th day of February, 1904. The record and brief filed here show that appellant had a distinguished array of counsel. No less than seven lawyers seem to have appeared for him. While he alleges that he was unable to employ counsel in Howard county until the day of trial, he does not allege that it was at all necessary to employ counsel in the county of Howard, in order to secure for him a fair trial, and, in the absence of an allegation and proof to that effect, we must conclude that the trial court found otherwise. For aught we find in the record to the contrary, the circuit court may have found that the appellant was represented by several able counsel from Sevier county, where the crime was committed, and adjoining the county where appellant was tried; and that the experience and practice of these attorneys in Howard county rendered the employment of local counsel unnecessary to secure for appellant all his legal rights. We do not know what reasons moved the court. But, in the absence of any showing to the contrary, we must assume that they were sufficient. The court must have concluded that from the 20th of January to the 8th of February, nearly three weeks, was time enough to enable appellant to prepare for his trial, notwithstanding his confinement, and there is nothing to the contrary in the record. The mere allegation in the motion for continuance that appellant’s counsel “had not been able to make'the investigation necessary to prepare his case for trial” is but the statement of a conclusion, and is not proof of a fact.
4. In the course of selecting the jury, J. W. Clary, on being examined as to his qualifications as a juror, testified:
“I have heard what the defendant is charged with, and have, from what I have seen in the newspapers only, formed an opinion in regard to his guilt or innocence. If I were selected as a juror, I would be governed by the evidence in the case. I was not acquainted with either the defendant or the deceased. I saw the newspaper article in the “Nashville News.” It purported to detail the facts in the case, and from it I formed an opinion. Unless there was evidence introduced to contradict that statement, I would be governed by it. I don’t see how it could fail to make an impression on my mind as to the guilt or innocence of defendant, until I heard evidence to remove it. It would take evidence to remove it. I could go into the jury box, and give the defendant the same fair and impartial trial that I could if I had never seen the statement in the newspaper.”
The court held the juror qualified, the State accepted him, but appellant challenged him, and excepted to the court’s ruling.
T. J. Tolison, on examination as to his qualifications to serve as a juror, testified:
“I have formed an opinion as to the guilt or innocence of the defendant on what I read in the “Nashville News.” It would not require evidence to remove that opinion. I could go into the jury box, and give the defendant the same fair and impartial trial that I could if I had never seen the statement in the News, or heard anything about the case. That statement would have no influence upon me. I still have the opinion that I formed. If no testimony were introduced, I would still have the opinion. It would require testimony to remove it; but I am sure it would not influence me in the least in arriving at a verdict.'”
Appellant submitted that the juror was disqualified, but the court ruled that he was qualified, and the State accepted him. Appellant then excused the juror, and excepted to the court’s ruling.
During the selection of the jury appellant exhausted all his peremptorjr challenges.
The selection of these jurors in the manner indicated is urged as a reason for reversal. But, according to the doctrine announced by this court in Hardin v. State, 66 Ark. 53, where our own and other cases are reviewed, and the question is thoroughly discussed, there was no error in the ruling of the trial court holding the jurors qualified.
We have thus far disposed of all the objections presented by counsel which affect the integrity of the trial itself, and which, if tenable, could not be cured by the verdict of the jury,
Numerous other errors are alleged and insisted upon, relating to the introduction of evidence, the remarks of counsel, the instructions of the court, and the failure of the court to properly charge officer having jury in charge, and also the jury, with reference to their conduct after the case had been finally submitted. But, if error were found in the ruling of the court in regard to these matters, it could not possibly prejudice the rights of appellant. For the competent and relevant testimony in the case, undisputed, shows appellant guilty of murder in the first degree.
Briefly stated, on behalf of the State, the proof tended to show that appellant and two of his brothers and a cousin met the deceased and his brother back of a store in the town of Lockesburg, Sevier county, and, without provocation from the deceased or warning to him, began firing upon him and his brother John with their pistols. John Foshee was killed on the spot, Dave Foshee ran, crying out “Murder!” and calling for help. They followed him for a distance of 250 or 300 yards, all the while shooting at him, until he had fallen, and, even after he had fallen, several shots were fired at him, the appellant firing one of the shots after deceased was down. Deceased was unarmed, and, according to some of the witnesses, stooped over, throwing his hand to his stomach, and then up in the air, indicating distress. At one time he turned around or almost around, and begged his pursuers not to shoot him any more. But they continued, one of them kicking him after he had fallen. One witness testified that they fired at deceased five or six times after he had fallen, and that appellant fired one of the shots.
The appellant himself testified that he did not open fire on the deceased until he saw him throw his hand to his “bosom, his vest or his pants or something,” like he was going to draw a pistol: and there was some evidence to corroborate the statement of appellant that deceased made a motion as if to draw a weapon before or about the time appellant opened fire on him. But the testimony that deceased ran, and continued to run and cried for help, and that he begged them not to shoot any more, and that they continued to shoot until deceased had fallen, and even after he had fallen, was undisputed. Also there was no proof whatever that deceased was armed.
Under these circumstances appellant cannot complain because the jury found him guilty of murder in the second degree, and assessed his punishment at seven years in the penitentiary. The Attorney General accounts for the leniency of the verdict by saying that “it cropped out dimly in the evidence that deceased was under indictment for the homicide of appellant’s father, for which his trial was to occur on the following day. This, doubtless the cause of the cruel tragedy, must have weighed heavily with a too sympathetic jury.” Be this as it may, it is clear from the record that appellant was exceedingly fortunate in not receiving a much severer punishment, and he was in no wise prejudiced by any of the rulings of the learned trial judge.
The judgment is therefore affirmed. | [
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Riddick, J.
(after stating the facts). The purpose of this action is to determine the ownership of a fund held by J. A. Hoffman as trustee. The fund was subscribed for the purpose of inducing and aiding the Arkansas Central Railroad Company to construct and put in operation a railroad from Fort Smith to Paris, Arkansas. But the subscriptions were made on certain conditions expressed in the subscription notes, which stipulated that, unless the conditions were performed, the notes were to be void. It is conceded that these conditions were not performed, but it is contended that Hoffman was a trustee for the company only, and that a payment to him was in effect a payment to the company. It has long- been settled that money voluntarily paid in satisfaction of an unjust or illegal demand, with full knowledge of the facts and without fraud, duress, or extortion, cannot afterwards be recovered by the payor. New Orleans & Northeastern R. Co. v. Louisiana C. & I. Co., 109 La. 13, 33 So. 51, 94 Am. St. Rep. 395. So, if a payment to Hoffman was a payment to the company, there could be no doubt that the contention of appellants would be correct.
It is unnecessary to set out or discuss the evidence bearing on that point. It is enough to say that a careful reading of it has convinced us that it is sufficient to support the finding of the court that Hoffman was not the agent or trustee of the company only. The very object of his appointment was to put it beyond the power of the company to take charge of or collect these subscription notes until it had performed the conditions on which they were executed. He was to hold these notes in trust for both parties until the road was completed and running to Charleston, Arkansas, when he was to collect one-half of the amount due on, the note, and pay it to the company, and when the road was completed to Paris, Arkansas, he was to collect and pay over the remaining half. It is thus plain that the company had no right to any portion of this fund until it had completed its road to Charleston. The fact that the trustee collected some of this money before the road was completed to Charleston gave the company no right to it. His duty was to hold for both parties, and not to pay over until the conditions named in the notes were performed. It being conceded that these conditions have not been performed and will not be performed, we are of the opinion that the court properly decided that the funds should be returned to the subscribers. Finding no error, the decree is affirmed. | [
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Bunn, C. J.
This is a suit for malicious prosecution, instituted by the appellee against appellants on a claim for damages in the sum of $10,000, tried and determined before a jury in the Cleburne circuit court, on the 9th day of April, 1901, upon pleadings and evidence, resulting in a verdict for plaintiff for the sum of $500, and defendants filed their motion for new trial, which being overruled they excepted, and appealed to this court.
In their motion for new trial, they made seventeen several assignments of error, of which only six are insisted on here.
1. They say that it was error to admit the testimony of Flowers, to the effect that his damages for injured reputation were $10,000, as stated in his complaint. It appears, however, that the verdict of the jury was for only $500. The said testimony of plaintiff therefore shows that it was not the basis of the verdict of the jury, and that it was not material.
2. The defendants contend that the letter received by Barnum should not have been admitted in evidence, since it was uncertain whether the same was written by Stewart or Copeland, the former testifying that he did not write it. The person who carried this letter from Stewart or Copeland could not positively testify which of the two gave it to him to be delivered to Barnum. Stewart and Copeland and the other defendants were shown by ample proof to have formed and been in conspiracy to cause the arrest and prosecution for illicit distilling, by the United States commissioner, O’Hair, in Little Rock. This charge was also shown to have been made without probable cause, and was dismissed by said commissioner. It therefore made no difference which one of the two wrote the letter. The genuineness of the letter was not called in question, only its authorship.
3. It is contended that the certified transcript of the proceedings before-said United States commissioner cannot be made evidence in the case. The office of a commissioner for United States courts was created by act of Congress of May 28, 1896 (29 Stat. 184, Supp. Rev. Stat. ch. 252, § 19), and in the hearing of causes similar to that against the plaintiff, a commissioner is a quasi judicial tribunal; therefore his certified copy of the record he is bound to keep is evidence of the truth of the matter and things therein recited, and need nor be otherwise proved. Chin Bak Kan v. United States, 186 U. S. 200; 1 Greenleaf, Ev. (15th Ed.) § § 485 and 507.
4. The fourth objection urged by the defendants is that the court erred in permitting plaintiff’s witnesses to testify that defendants had been engaged in illicit distilling, making stills and the unlawful sale of whiskey. It was competent to show the motives of defendants in prosecuting Flowers, and in conspiring together to that end, by showing their occupations, and that Flowers had interfered with their unlawful business, and also that they had threatened him on that account. In this connection the qualification as witnesses of Barnum and several other witnesses who had been convicted of illicit distilling in a United States court and sentenced to the penitentiary, were called in question, but the question was not pressed, nor any authority cited on the subject.
5. The fifth contention of defendants was that the court erred in permitting plaintiff’s witness, Barnum, to testify as to what he had heard defendant Stewart say about Flowers as an objectionable man in the community. This statement of Stewart, if made, clearly went to show his animus toward Flowers, especially when it was shown elsewhere that this animus grew out of his enmity to Flowers because he was openly opposed to the conspirators’ unlawful traffic and manufacture of liquors. The facts that some of the statements were made before the formation of the conspiracy against Flowers, and by some of the defendants, does not render the testimony of the witness testifying to the same inadmissible for all purposes. The subject of these alleged statements of defendants, or some of them, was the protection of guilty persons from the United States marshals, and clearly directed the mind to contemplated crime or malicious prosecutions of the innocent.
6. The sixth objection to the action of the court in refusing to strike out certain parts of plaintiff’s complaint because the same was a recital of the evidence in the case is without reason to sustain it. It was not misleading in the least, was not redundant, and was merely a concise statement of what the plaintiff expected and would offer to establish by proof. This in substance is the purpose of all good pleading. If error at all to refuse this request, it was an error perfectly harmless, and could not call for a reversal. The fact that the complaint sets out not only a portion of the evidence in a general way, but also the consequence to the plaintiff of his connection with the conspirators, was but, showing his damage, had they succeeded. That was the very object of plaintiff’s suit. The rules of pleadings and of the admission of testimony were never intended as limitations upon a plaintiff’s right to present his whole case, as he could lawfully establish it by proof.
Seeing no prejudicial error in the rulings of the court, and there being ample evidence to sustain the complaint, the judgment of the lower court is affirmed. | [
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Battue, J.
Albert Deutsch commenced an action of replevin against Dunham & Nelson to recover the possession of certain oak and gum lumber described in his complaint. The defendants denied that he was the owner or entitled to the possession of the lumber. The issues were tried by a jury, and a verdict was rendered for the defendants, and the plaintiff appealed.
The oak lumber was claimed by appellant under a written contract between him and appellees, dated March 27, 1899, which is as follows:
“This is to witness a contract this day entered into by and between Albert Deutsch, party of the first part, and J. P. Dunham and D. D. Nelson, parties of the second part, in consideration of six hundred dollars in cash paid to them by said A. Deutsch, the receipt of which is evidenced by a note for like amount,, secured by a mortgage on the mill bought by said Dunham & Nelson and known as the Nash Mill, and other considerations hereinafter named, do sell to said A. Deutsch all the output and cut of red oak, white oak and ash lumber sawed by their said mill on the Choctaw & Memphis Railroad in St. Francis county, Arkansas, and in case of change of ownership of the mill this contract shall remain binding on the purchaser. The said lumber to be? sawed by said Dunham & Nelson according to the orders of said A. Deutsch, to be piled at the siding of the Choctaw & Memphis Railroad in a good and workmanlike manner and properly crossed, using proper foundations and dry piling strips, giving plenty of ventilation and loaded on cars according to the wishes of said A. Deutsch whenever desired by him. Following are the prices agreed on between the parties of the first and second parts, towit: [Here follows list of prices for different kind and grades of lumber.] The plain white oak and ash to be sawed as much as possible inches and over thick as possible without disadvantage, and it shall be optional with party of the second part whether the culls shall be included or not,, the lumber to be inspected green and paid for once a month less the usual two per cent, for cash.”
The prices agreed upon in the written contract were to be paid for sixteen different kinds and grades of lumber. The $600 were loaned by appellant to appellees to purchase the mill mentioned in.the contract, and have been returned to him.
Evidence tending to prove substantially the following facts was adduced: Two men were sent by appellant, at different times,' to appellees’ mill to examine lumber sawed by them. George Lorraine was first sent to examine gum lumber. The lumber was not piled. Lie estimated the amount, and refused to include in his estimate certain “culls.” Appellees objected, and refused to accept his inspection, and declined to deliver the lumber to appellant. Albert Lorraine was the other man. The lumber examined by him was not in piles, but in stocks. Lie estimated the quality of lumber sawed. He says that there was no way to-determine from his estimate the value of the lumber. Appellees objected to his examination of the lumber, and refused to accept it. and to deliver the lumber to appellant, but sold it to other persons. The parties failed to agree upon inspection, and no satisfactory inspection was made. Appellant offered to send other inspectors, but all his offers were declined. He agreed that appellees might sell the gum lumber to other persons, and they did so.
His contention is stated in his brief as follows: “That as soon as the lumber was sawed and delivered at the place of delivery stipulated in the contract, and appellant had offered to inspect* and pay for same, the sale was complete, and the contract was no longer executory, but executed/ and that the title had passed to appellant, so that he could -sue-for possession.” Is this contention correct in this case?
The contract upon which appellant bases his claim to the lumber in controversy was executory. At the time it was entered into, the lumber was not in existence. It was thereafter to be sawed by appellees, according to the orders of appellant, and to be well piled at the siding of the Choctaw & Memphis Railroad in a good and workmanlike manner. The prices to be paid were agreed upon and fixedi according to grade of lumber. It was “to be inspected green and paid for once a month, less the usual two per cent, for cash.”
The contract being executory, it is clear that appellant could not be compelled to accept the lumber until he had an opportunity to inspect it in order to ascertain whether it was such as appellees stipulated to saw. 2 Mechem, Sales, § § 1210, 1211, 1375, anc^ cases cited. It is equally clear that the inspection was necessary in this case to ascertain the grades of the lumber, in order to determine the amount to be paid according to the stipulated prices. Both parties were interested in, and protected by, the stipulation that an inspection should be made. Hence it was required, and, on account of the purposes for which it was evidently to be made, became a condition to be performed before the title to the lumber vested in appellant, and a complete sale to him was made. For it is not reasonable to suppose that the appellant intended to bind himself to receive and pay for all the. lumber that appellees might manufacture. It was stipulated in the contract that the lumber he agreed to purchase should be sawed according to his orders. And it is not reasonable to presume that appellees intended to deliver the lumber before it was graded according to the prices agreed upon and the amount to be paid therefor should be ascertained and fixed, and thereby subject themselves to the risk of loss, disagreements, and litigation that might follow.
There was no delivery of the lumber to appellant, actual or constructive. The transfer of the title to the property depended upon the intention of the parties. There was evidence adduced tending to prove that the title to the lumber should vest in appellant, and that it was not appropriated to the contract. Appellees refused to abide or accept the inspection of appellant’s employees. Under all these circumstances, appellant was not entitled to maintain his action of replevin. His remedy, if any, was an action on the breach of contract for damages.
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Hughes, J.
(after stating- the facts). The judgment in this case must be reversed for error in the instructions given in this case and the refusal of those asked by the appellant.
It is often difficult to make the distinction between larceny and obtaining money under false pretenses. Bishop, in his work on Criminal Law (Vol. 2, § 758, 8th Edition), says: “Larceny is the taking and removing by trespass of personal property, which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein.” 3 Greenleaf, Ev. § 150, gives this definition of larceny: “The wrongful or fraudulent taking and carrying away of the mere personal goods of another, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner.” “The owner’s consent to the taking prevents larceny.” 2 Bishop, Cr. Law, 811, 8th Edition. “There can be no trespass where there is a consent to the taking.” lb.
At subdivision 3, section 811, Bishop says: “Assuming the consent to be equally broad with the taking, and to comprehend the ownership in the thing together with its possession, we have just seen that by the theory of this branch of the law, contrary to just principle, it will protect the thief, though he obtained from the owner by fraud; in other words, by reason of the consent, even when procured by fraud, there is still no trespass, therefore no larceny.”
Mr. Greenleaf, volume 3, section 160, says: “A felonious intent may also be proved b}' evidence that the goods were obtained from the owner by strategem, artifice or fraud. But here an important distinction is to be observed, between the crime of larceny and that of obtaining goods by false pretenses. For supposing that the fraudulent means used by the prisoner to obtain possession of the goods were the same in two separate cases, but in the one case the owner intended to part with his property absolutely, and to convey it to the prisoner, but in the other he intended to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself; the latter case alone would amount to larceny, the former constituting only the offense of obtaining goods by false pretenses.” So says Russell on Crimes (6th Ed.), 200.
There are a great many decisions to the same purport. See Welsh v. People, 17 Ill. 399; McDonald v. People, 23 N. Y. 61; Smith v. People, 53 N. Y. 11; Commonwealth v. Eichelberger, 13 Atl. 422; 4 Am. St. Rep. 642; Connor v. People (Colo.), 25 L. R. A. 346; People v. Shaughnessy, 42 Pac. 2; People v. Campbell, 59 Pac. 593.
Where persons conspire to cheat a man under color of a bet, and he simply deposits his money as a stake with one of them, not meaning thereby to part with the ownership therein, they, by taking the money, commit larceny, and not the less so' though afterwards they arei by fraud made to appear to win. 2 Bishop, Cr. Law, § 813, subdivision 3.
The third, sixth and seventh instructions given at the request of the state are clearly not the law. They declare the law to be that, if money or property is obtained by means of a fraudulent game contrived for the purpose of defrauding another out of his property by fraudulent representations and acts, the person obtaining property under such circumstances is guilty of larceny. They leave out of view entirely the purpose and intention of the owner in parting with his property. Under these instructions the prosecuting witness may have surrendered his property with the purpose and understanding that he was passing the absolute title as well as the possession, and the defendant would have been guilty of larceny if the property was obtained by means of a fraudulent game.
It is evident that the court should have given some of the instructions asked by the appellant and refused by the court. The testimony in this case shows that Haffner consented to the taking by the appellant of the diamonds and 'money lost by him on the foot race, and his consent, though fraudulently obtained, prevented larceny, though it may have been fraudulent and false pretenses.
Reversed, and remanded for a new trial. | [
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Riddick, J.
(after stating the facts). There is only one question in this case. Can a member of a partnership, who has a minor son in the employ of the firm of which he is a member, bring an action at law and recover the value of the services performed by his son against his co-partners ? The amount due the partner by the firm for the services of his minor son is a partnership debt, and while the business of the firm is still unsettled, it cannot be told what portion of this debt .is due from any one partner. Until the partnership accounts have been settled, it is not a debt of either of the partners, but of the firm. The only action that can be maintained between partners upon a partnership transaction before a settlement of the partnership affairs is a suit for an accounting. 15 Enc. Plead. & Prac. 1012 to 1017.
We see no distinction between this debt of the firm to the plaintiff for the services of his son and the debt of the firm to him for his own services, so far as the right to sue the firm is concerned. They are both debts which the firm owes him, and for which he can get credit in an action for an accounting between the partners.
We are of the opinion, for the reasons stated, that the court erred in instructing the jury, and that defendants are entitled to a new trial. As there was conflict in the evidence on the question whether the plaintiff and defendants were partners, the judgment will be reversed and the cause will be remanded for new trial on the whole case. | [
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Battle, J.
About the nth day of December, 1897, Calvin Tucker, now deceased, and D. D. McCright instituted a suit in the Monroe chancery court, against W. M. Hawkins, and T. H. 'Jackson and W. E. Williams, sheriffs, respectively, of Monroe and St. Francis counties. On the 24th of October, 1899, the defendants recovered a decree against the plaintiffs. The decree recites that plaintiffs, to sustain their complaint, introduced a judgment in a certain action of replevin, and the execution that was issued thereon, and the depositions of S. B. Kelly, M H. Vaughan, T. E. Vaughan, and W. T. Tucker; and the defendant Hawkins, to sustain his answer, introduced the depositions and statements of W. M. Hawkins, M. J. Manning, J. P. Eee, W. T. Bonner, E. A. M. Webb and J. E. Eentz, and exhibits, and the oral testimony of J. S. Thomas and T. H. Jackson. The oral testimony was not in any manner made a part of the record. On the 13th day of February, 1902, the plaintiffs, by motion for a nunc pro tunc order, attempted to have the oral testimony made a part of the record; and the motion was denied.
When the record does not contain all the evidence adduced at the hearing of a cause, “we indulge the presumption that there was proof of every fact which is necessary to sustain the court’s ruling, wherever evidence adduced at the proper time would justify its action. Every ruling is presumed to be right, unless the record contains matter which shows affirmatively that it is wrong.” McKinney v. Demby, 44 Ark. 74; Railway Company v. Amos, 54 Ark. 159, 15 S. W. 362.
The record of the decree in this case speaks the truth. It is not amendable by making certain testimony a part of it which was not a part thereof, when no effort had been made to that end at the term at which the decree was rendered, and nothing for that purpose was done. A nunc pro tunc order does not create, but states what has been done. Cox v. Gress, 51 Ark. 224, 11 S. W. 416; Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344.
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Batter, J.
C. M. Philpot sued the St. Louis, Iron Mountain & Southern Railway Company for the damages he suffered by reason of the killing of his dog. Pie alleged in his complaint that the defendant, on the 20th of April, 1900, in the county of Jefferson, in this state, carelessly and negligently ran one of its trains over and killed his bloodhound bitch, of the value of $250, and asked for judgment for that amount. The defendant answered, and denied negligence. Plaintiff recovered judgment for the amount sued for.
Evidence was adduced at the trial tending to prove, substantially, the following facts:
Plaintiff was the- owner of a valuable bloodhound bitch. He paid for her, when she was about six months old, $75. In the month of April, 1900, she was killed by a passenger train of the. defendant. When she was killed, she was about three and a half or four years old, and was well trained. She was ver}'- useful, and had performed feats in tracing and finding escaped prisoners. At one time she caught a man who had escaped from jail, after tracing him for about seven or eight miles and swimming a quarter of a mile; found him in the hollow of a cypress tree in a lake. - '
On the day she was killed she was attempting to trail a man who had been sent out for that purpose, with directions to take any course he might choose. In the effort to follow him she ran upon the railway track of the defendant, about one hundred yards in advance of one of its passenger trains, and ran about sixty feet upon the track in the same direction it was moving, when she was struck and killed by it. She was running in a zigzag direction between the rails, as if following a track. She was intent, and seemed unconscious of the approach of the train, which was running at the rate of twenty-five or thirty miles an hour. No bell was rung, no whistle was sounded, and no effort was made to check the train, although the engineer or fireman could have seen her when she came upon the track.
Dogs are exceedingly alert and active, and trains rarely run over them. Trainmen rely more upon their getting off a track than they do men. ■
Plaintiff testified that he knew of no market for the sale of bloodhounds in Jefferson county, where the dog was killed, and he resided; that the only persons that he could call to mind who raised bloodhounds for the market resided at Lexington, m the state of Kentucky. They sold their pups when they were ten weeks old, asking for the males $35, and females $40. Never knew of their offering more than one dog that was trained, and he was only two years old, and they wanted $400 for him.
R. P. Miller testified, over the objections of the defendant, as follows: He is a resident of Indianola, in the state of Mississippi. He has been sheriff of the county of Sunflower, in that state, and while he was sheriff he bred and trained bloodhounds “on a small scale, and more for his own use than for sale, and did sell trained bloodhounds in various states during that period.” About the 12th day of July, 1897, he sold a “black-and-tan bloodhound bitch pup, named Fanny,” about six months old, to plaintiff for $75. Bloodhounds become more valuable as they grow older, until old age “renders them unable to make hard runs.” There is no market for bloodhounds in Indianola. He thinks that a bloodhound of the same stock as the dog he sold to plaintiff, “in perfect physical condition, good breeder, nearly four years old, well trained for the trailing of persons, very cold nose, known to have followed by scent such a trail twenty hours old, was worth in April, 1900, from $200 to $300.”
The evidence tended to prove this dog of plaintiff, killed by ■the railway train, was of that description.
The court instructed the jury, but refused to instruct them, at the request of the defendant, as follows:
“6. The court instructs the jury that if plaintiff knew tha^ when his dog was in pursuit of a person by scent, it would become so intent it would not take heed or notice or warning of danger, then it was his duty to have chosen a training trail for his dog away from the dangers of passing trains. So, if you believe from the evidence that the dog was killed because of this neglect of duty, then the plaintff cannot recover, and you will find for the defendant.
“7. The court instructs the jury that a railroad track on which trains are liable to pass at any time is a place of danger, and when plaintiff chose a training trail for the purpose of training said dog along or over a railroad track over which a train was liable to pass at any time, he took upon himself the ordinary risks incident to such perils. The only duty then resting upon the railroad company was to have kept a constant lookout upon its track, and to have used all the ordinary care at its command to prevent striking the dog after it went upon the track. So, then, if you believe from the evidence that the engineer in charge of the train was keeping a constant lookout, and that he did not by jthe exercise of ordinary care see the dog on or near the track in time to have avoided striking it, then the company is not liable in this action, and you will find for the defendant.”
Dogs are personal property, for the negligent killing of which by its train a railway company is liable. St. Louis Southwestern Ry. Co. v. Stanfield, 63 Ark. 643, 40 S. W. 126, 37 L. R. A. 659.
The instructions refused by the court were inapplicable. There was no evidence that plaintiff selected “a training trail for the purpose of training said dog along or over” the defendant’s railway track, or that the man the plaintiff attempted to make his dog trail was on or crossed the railway. The instructions refused imply that he did. Contributory negligence was not pleaded, and that was not an issue in the case. 5 Enc. Plead. & Prac. 10, and cases cited.
The testimony of Miller was admissible for the purpose of enabling the jury to ascertain the value of the dog killed. Such dogs had no market value in Jefferson county, where she was killed, and her owner resided. Miller, at one time, bred and trained such dogs for market. They had no market value in the town of Indianola, where he resided; that is to say, persons living there did not purchase. But Miller did sell them there to persons residing in other states. He sold a few in Arkansas.
This testimony was competent to show a market value in Indianola, by reason of the demand for such dogs in other states, and that such dogs woulcT have the same market value, by reason of such demand, in any place where they are kept for sale. This is shown by the testimony of plaintiff as to the sale of such dogs in Lexington, Kentucky. The testimony of Miller furnished the jury with information which was reasonably calculated to afford them assistance in arriving at a fair valuation of the dog. In the .absence of better evidence, it was admissible for that purpose. Jones v. Railway, 53 Ark. 27, 13 S. W. 416; Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co. (Fla.), 9 South. 661, 17 L. R. A. 33, 60, 61.
The evidence is sufficient to sustain the verdict of the jury in this court.
Judgment affirmed. | [
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Hughes, J.
(after stating the facts). It is contended by appellant that the plaintiff’s remedy was purely legal, and that the court should have dismissed the suit for the want of equity, citing Sandels & Hill’s Digest, § 6121. But it is uncertain whether either had actual possession. The defendant made no motion to transfer the cause to the law docket, but submitted to trial in equity, and, having failed there, he now for the first time in this court objects that there was no jurisdiction in equity. He waived his right to, a jury trial by not moving to transfer the case to the law docket. Love v. Bryson, 57 Ark. 589; Burke v. St. Louis, I. M. & S. Ry. Co., ante, p. 256.
It is contended that the court erred in offsetting the rents received by defendant after the institution of this suit against the taxes, etc., paid by the appellant. He did not object below that no tender of taxes, etc., had been made before the beginning of the suit, but he set up and claimed title to the land, and denied plaintiff’s right to recover at all. He waived the tender of taxes, etc., before suit was brought. The defendant did not ask for taxes, but for the possession of the land, and claimed title to it. The court made an equitable settlement of the taxes in the rents and profits of the land received by him after this suit was brought, and he ought not to be heard to complain.
We find no reversible error in the decree, and the same is affirmed. | [
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Smith, J.
This appeal involves the right of a municipal improvement district .embracing the city of Paris, in Logan County, to- impose an assessment of betterments against town lots on which a county courthouse and jail were- situated for waterworks purposes. The only defense to the suit is that authority for such assessments does not exist in the law. The court below so found, and dismissed this suit, which was brought to enforce the payment of delinquent assessments.
The power to assess public property used exclusively for public purposes, school buildings and other property exempted by the Constitution of 1874 (section 5, article 16) from taxation for general revenue purposes, for local improvement purposes, was thoroughly considered • by this court in the case of Board of Improvement v. School District, 56 Ark. 335, and the majority opinion by Justice Hemingway and the dissenting opinion by Chief Justice Cockrill leave nothing to be added to the discussion.
The view'was expressed in both opinions that such property was not exempt under the Constitution from assessments for local improvements, but it was the opinion of the majority that the statutes which authorized the creation of municipal improvement districts and the assessment of the real property lying therein did not provide that property exempted by the Constitution from taxation for general revenue purposes should be taxed for improvement district purposes, and, in the absence of legislative authorization, could not be taxed for such purposes.
By act of March 3, 1913 (section 5654, C. & M. Digest) it was enacted that the property of public school districts shall be subject to assessment for local improvements -beneficial thereto; but there has been no legislation authorizing municipal improvement districts to tax other public property used exclusively for public purposes; and the action of the council of the city of Paris in including the courthouse and jail in the improvement district and in assessing benefits against that property was without authorization, and is therefore void, and the decree of the court below is affirmed. | [
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McCulloch, C. J.
This is ah action to recover damages sustained on account Pf the death of a young girl, which was caused by an explosion or ignition of natural gas in the oil fields near El Dorado. The plaintiff sued as administrator for the benefit of the estate of the decedent, and for the benefit of the next of kin, and he also sued in his individual right as parent of the decedent, who was about fourteen years of age. The plaintiff recovered damages in the trial below, and the defendant appealed.
The defendant, Constantin Refining Company, was operating in the El Dorado oil field, and was engaged in drilling for oil on a tract of land on which it held a lease. A few weeks before the occurrence which caused the death of the girl, Mary Martin (which was on the afternoon of Sunday, June 13, 1920), the defendant brought in a producing well, which, after a few days, it succeeded in capping so as to prevent the escape of oil or gas from the mouth of the well.
There is no evidence in the case of any escape of gas in noticeable quantities from the mouth of the well. However, a few days after the well was capped it was found that there was an escape of gas through fissures in the earth to the surface, and at a point 950 feet distant from the well there was a crater formed in the bed of a small stream of water. There was no evidence adduced directly showing that the escape of gas to the surface through fissures was caused by capping defendant’s well, but for the purpose of the present discussion we .will assume that the proved circumstances warranted that inference and that the crater was caused in that way. The crater was on another tract of land than that on which the well was located — a tract in which the defendant had no interest and over which it had no right to exercise control. It was on a tract of fenced and cultivated land known as the Parnell field, which was owned by certain persons at El Dorado named Parnell, and on which another oil company held a lease for the development of oil and gas.
A railroad track was between defendant’s tract of land and the Parnell tract, and the track wtas on a dump', or embankment, twelve feet 'high. The crater was distant from any public road and on the line of the railroad right-of-way and the Parnell tract, and when it opened it blew up the fence which marked the line of the right-of-way. It was about twenty feet in diameter, and was full of muddy water, which was forced upward by eruption of the escaping gas, and mud and water were thrown up to a height of about fifteen feet. This caused a loud roar, which could be heard at considerable distance, and there was a noticeably strong smell of gas around it.
This was such an unusual situation that it attracted a great deal of attention, the scene being only a few miles distant from the city of El Dorado. There was a large number of visitors to the scene for the purpose of witnessing it, and on the day on which the explosion occurred, which was on Sunday, the scene was visited by large crowds. Visitors usually parked their cars and other vehicles in the road or lane a short distance from the crater and walked across defendant’s land until the railroad was reached, and then they walked.down the railroad to a trestle opposite the crater.
Defendant erected on its own premises warning signs indicating danger and directing that there be no smoking. It does not appear that these signs were erected after the crater was blown in, or that they had reference to the danger of visiting the crater, but they were probably erected prior to the bringing in of the well, as warnings of danger to those visiting the fields.
On the Sunday afternoon in question, Mary Martin, in company with her parents and several other relatives, came to the scene of this crater to witness the remarkable phenomenon, and' the party approached in the usual way indicated above. Some of the Martin family remained standing on the railroad track, but Mary, .in company with her uncle and aunt, walked out toward the crater and was standing between it and the railroad trestle when the explosion occurred. The gas in the air was ignited and Mary Martin was severely burned, and died a short time thereafter. There were five persons, in all, who died as a result of the explosion.
The evidence shows — at least the only account given of the cause of the explosion — that the ignition of the gas was caused by a young man named Hayes striking a match with which he was lighting a cigar. The witnesses say that when he applied the match to the cigar in his mouth a flash of fire was seen from his mouth to the crater.
Liability is sought to be imposed on the defendant on the ground that it caused a dangerous agency to escape, and failed to exercise care to prevent injury to others.
The court submitted the case to the jury on instructions which stated the law of the case to be that if the defendant “negligently caused or permitted a large-pool of,, oil or gas * * * * to accumulate and spread on adjacent property, and negligently failed to guard and protect persons who they knew were constantly congregating in the vicinity of said pool of oil or gas,” it would be liable for injury to other persons while in the exercise of ordinary care for their own safety.
We deem it unnecessary, in view of the conclusion which we have reached, to discuss the instructions of the court, but, assuming the existence of the facts herein-before recited, and drawing from them the conclusion most favorable to plaintiff’s right of action, we proceed to determine whether or not, in any view, there áre facts from which liability can be imposed upon the defendant for the injury which resulted from the explosion.
In the first place, we are unable to discover any act otf negligence on the part of the defendant. There was none in bringing in the well, for in doing so the defendant was in the pursuit of a lawful business, and it conducted its operations in accordance with the usual methods.
There was no negligence in capping the well, for defendant had the right to do so in order to preserve the product of the well, and the law compelled it to do so, when necessary, in order to prevent the escape of natural gas. Crawford & Moses’ Digest, § 7306.
There was no negligence in the formation of the crater, for that resulted by reason of the natural pressure of oil and gas through fissures in the earth.
There was no negligence on the part of the defendant in failing to erect barriers around the crater to prevent the approach of visitors, for the crater was not on premises in which the defendant was interested or over which it had any control. It was not chargeable with neglect in failing to guard the premises of other persons, nor was it responsible for injury resulting from the omission of others to guard the crater, unless it was guilty of negligence in permitting the escape of the gas.
As we have already seen, there was neither negligence in causing the crater nor in permitting gas to escape from the earth’s surface at the mouth of the well.
It must also he said with respect to the charge of negligence in failing to give warning of the danger, that such warning 'was unnecessary and had no relation to the injury of plaintiff’s intestate, for the reason that the danger was well known, and all who visited-the place came with full knowledge of the situation and for the sole purpose of witnessing the extraordinary scene.
The principle upon which liability may be imposed on account of the maintenance of an attractive nuisance —known as the doctrine of the "turn-table cases” — may be disposed of with but little discussion, for it is obviously inapplicable to the facts of this case. This is true because, as we have already seen, the alleged nuisance, if such it may be considered, was not maintained on the defendant’s own premises, or at aplace over which it had the right to exercise any control. It is inapplicable for still another reason, that the failure to give warning of danger did not cause plaintiff’s intestate and her associates to expose themselves to the danger.
Neither can liability be predicated upon the doctrine of concurring negligence, for the reason that, since there was no negligence on the part of the defendant, the act of Hayes in striking the match "which ignited the gas was an intervening rather than a concurring cause of the injury.
Liability of the defendant is asserted on account of the use by it — a legitimate use without negligence — of a dangerous substance, which, by being ignited, caused the injury. In support of this contention, learned counsel for the plaintiff invoke the rule announced by the English court in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235. The facts of the case just cited were entirely different from the present case, in that the injury resulted from the act of the defendant in constructing on its own land a reservoir for impound ing water by artificial means, and the court held that the defendant was responsible for damages to an adjoining mine on account of the escape of the water. The doctrine of that case has not been generally accepted in this country, and we think that in its full scope it is directly in conflict with the decisions of this court, for we have held that liability is not incurred by the legitimate use of a dangerous substance unless there is negligence, either in its use or in failing to guard against injury. S. W. Tel. & Telephone Co. v. Beatty, 63 Ark. 65; S. W. Tel. & Telephone Co. v. Bruce, 89 Ark. 581; Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. L. & S. F. R. Co. v. Williams, 98 Ark. 72.
Decisions of this court (Holt v. Leslie, 116 Ark. 433, and Field v. Viraldo, 141 Ark. 32) declaring liability on account of permitting vicious animals to run at large, do not, as contended by counsel for plaintiff, constitute a recognition or adoption of the rule announced in Fletcher v. Rylands, supra. We think, though, the cases have no application to the principle upon which liability or non-liability under the present state of facts may exist.
The facts in this case are unusual, and therefore we find no case similar to it in the books, but in the consideration of settled principles of law which are applicable in determining the question of liability upon these facts, we find no principle which would justify the imposition of liability on the defendant.
That being true, the court erred in submitting the case to the jury and in failing to set aside the verdict of the jury.
The case being fully developed, no useful nurpose would be served in sending it back for a new trial, so the judgment is reversed, and judgment will be rendered here dismissing the action. | [
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Smith, J.
This is an original action in this court for a writ or order commanding the Honorable J. P. Henderson, chancellor of the chancery court of Hot Spring County, to take cognizance of and to render a final decree in the case of Cooper v. Road Improvement District No. 1 of Hot Spring County.
The petition for the writ or order contains the following allegations. Petitioners are the commissioners of Road Improvement District No. 1 of Hot Spring County, which was created by act 16 and'act 143 of the Acts of 1921 (Special Acts 1921, pages 16 and 228).
After the passage of said acts, .the commissioners, in discharge of the duties there imposed on them, organized, and thereafter formulated plans for the proposed improvement, and thereafter assessed the real estate adjacent to the roads, which, according to their plans, are to be improved, with, the benefits to be derived from the proposed improvement. That, after the said district had been so organized and the betterments so assessed, W. H. Cooper and other owners of real estate within said district filed a suit in the Hot 'Spring Chancery Court, numbered 1504, seeking to permanently enjoin the district from collecting any benefits assessed against the lands lying in said district and from carrying out any of their plans of improvement, and it was there prayed that all assessments of benefits be declared void, and that the acts of the General Assembly aforesaid, pursuant to which the said assessments were levied, be declared unconstitutional and void.
That petitioners here (defendants there) were notified of an application for a restraining order to be heard on June 21,1921, and on the hearing'of the said application respondent herein did, on the 29th day of June, 1921, issue a temporary restraining order enjoining defendants from returning any real estate delinquent for the nonpayment o'f the benefits assessed against said lands. Peti turners allege that, under the acts of the General Assembly aforesaid creating said, improvement district, the issuance of bonds or other evidences of indebtedness is prohibited, and the temporary restraining order operates therefore to enjoin any progress towards the com-' pletion of said improvement. That the answer was filed in the injunction suit on June 27, 1921, and both plaintiff and defendant filed numerous depositions of witnesses upon the issues raised by the pleadings, and the taking of testimony was fully completed on July 13, 1921, and the depositions were filed on July 14, 1921. That on July 14, 1921, certain corporations owning lands in said district filed interventions in said cause, adopting the complaint of the plaintiffs, and on the same date defendants filed their answers to these interventions.
That on July 14, 1921, defendants filed in said chancery court a motion to advance the hearing thereof by the chancellor because of the public interest involved, and because the said acts provide for the advancement and speedy hearing of any litigation involving said district; and on the same date defendants also filed a motion praying the dissolution of said temporary restraining order, but both of said motions were denied. That said cause was fully argued and submitted on July 14, 1921, but no final judgment has ever been rendered therein. That thereafter, on October 19, 1921, defendants in said original suit attempted to appeal said cause to the Supreme Court of the State, and on said date lodged a transcript of said cause in the Supreme Court, and that cause was numbered by the clerk of the Supreme Court as No. 7085; but on November 21, 1921, this attempted appeal was dismissed by the Supreme Court on . the ground that the temporary restraining order granted by the Hot Spring Chancery Court was only an interlocutory decree and was not final or appealable. The record contained in said cause numbered 7085 is made a part of the petition herein. That thereafter, to-wit, on June 5, 1922, petitioners renewed the motion to hsCve the said temporary restraining order dissolved by the Hot Spring Chancery Court, but said motion was denied. That a further transcript of the entire proceedings had subsequent to the record contained in case No. 7085 is filed as a part of the petition.
That the roads designated to be improved are the principal roads of Hot Spring County, and the said acts directing their improvement' provide for the advancement and speedy hearing in all courts of any litigation involving said district; but, notwithstanding the facts alleged, the respondent has refused and failed to decide the issues joined one way or the other, and has been holding the case subject to the temporary restraining order issued by himself as chancellor, and has failed and refused to decide the same or to render a final judgment or decree therein.
Wherefore petitioners pray that an order of mandamus issue from this court directing the respondent to show cause why a final decree should not be entered forthwith in said original cause No. 1504 pending in the chancery court of Hot Spring County.
To this petition respondent filed an answer containing the following recitals: Denies that he has failed or refused to act upon any petition or complaint, but says the temporary restraining order issued by him was made subject to the further order and decree of the chancery court of Hot Spring County, and to await the final hearing and decree of a cause pending in the United States District 'Court. That the Missouri Pacific Railway filed a suit in the United States District Court at Little Rock attacking the validity of the district and the assessment of betterments made by the commissioners, and that the said district court issued an injunction holding that the assessments were void.
That thereafter another assessment was made, and the railway filed a suit in the Federal District 'Court attacking the validity of that assessment; but the said district court held that the railway company was not en titled to an injunction or restraining order, but granted an appeal to the Circuit Court of Appeals, and pending that appeal issued a restraining order against the commissioners of the improvement district, restraining them from attempting to collect any road taxes until the final determination of the appeal. That cause is now pending in the Court of Appeals at St. Louis, and the hearing thereof is set for January 9, 1923. That the complaint of the railway company in the suit pending in the Federal court alleges, among other things, that the acts creating the improvement district were unconstitutional and void, and that the assessments against the property of the railway were arbitrary and unreasonable.
For further answer respondent says that the temporary restraining order of the Hot 'Spring Chancery Court was not intended to be enforced any longer than was necessary to secure a determination of the questions raised in the litigation pending in the Federal court, and that there is no intention on the part of respondent, as judge of the Hot Spring Chancery Court, to delay the case for any time except until the case pending in the Federal court can be heard and disposed of.
In the brief filed on behalf of respondent it is pointed out that the purpose of the court is merely to hold the matter in abeyance until the validity of the assessments against the railway is determined, after which respondent will finally dispose of the case pending before him. It is also pointed out in the respondent’s brief that no one is enjoined from paying taxes, and any one may do so who wishes, and that the temporary restraining order issued by the chancery court only enjoins the improvement district from imposing a penalty for failure to pay and the institution of proceedings to enforce payment of assessments of benefits.
We think the chancery court has erroneously refused to exercise its jurisdiction, and that the chancellor should either make the restraining order permanent or should dissolve it, as to him seems proper. As appears from the recitals of the petition set out above, we have already held, in this case, that the order of the court granting an injunction in the case until a similar case pending in another court shall be determined is interlocutory and not final, and that an appeal will not, therefore, lie from such order. Road Imp. Dist. No. 1 v. Cooper, 150 Ark. 505. So the parties here are without remedy except by mandamus, if the court below has refused and does in .fact refuse to exercise its jurisdiction.
There is no question about the chancery court’s jurisdiction. The question is, whether the court below is refusing to exercise its jurisdiction.
We think the question stated must be answered in the affirmative. It is a mere play upon words to say that the court has decided all the questions presented, and that it has made no order which prevents the collection of taxes. The necessary effect of the temporary restraining order is to stay the proceedings. It is true, this order does not enjoin any one from paying taxes; but under its terms it would be a voluntary act if any one paid. If lands cannot be returned delinquent, and if penalties for delinquency cannot be'imposed, and if suits to enforce payment cannot be instituted (and such is the effect of the temporary restraining order), then taxes will not be paid, so long as payment is voluntary. In other words, the authority and effect of the law is suspended so long as its penalties may not be imposed.
We think the chancellor is in error in his conclusion to await the decision of the Court of Appeals before deciding the question before him. The question presented is not one of discretion. The chancellor has a case before him, and his jurisdiction in that case is complete and undisputed. The presumption should be indulged that the Court of Appeals will itself administer the law in the case now pending before it; and the pendency of that suit is not a sufficient reason for the chancellor to refuse to exercise his jurisdiction, and the refusal to decide the case pending before him until the Federal court has acted is a refusal to exercise jurisdiction.
In Merrill on Mandamus, § 204, it is said: “When a court for any cause improperly refuses to proceed in a cause, mandamus lies to compel action. So, if for any reason a court refuses to act or entertain the question for its decision, and such duty is enjoined on it by law, a mandamus can be obtained to compel the court to consider the question. In such cases the court is required to proceed, but it is not instructed to adopt any particular conclusion or judgment. The writ has been issued to compel a court to proceed in a cause * * * * when it hadrefused to try the cause * * * * till a cause pending in another court was determined.”
One of the cases cited in the notes to the test quoted is our own case of Brem v. Arkansas County Court, 9 Ark. 240. Another case cited is that of Budd v. New Jersey R. R. & Transportation Co., 14 N. J. L. 467, in which case Hornblower, C. J., for the Supreme Court of New Jersey, said: “And one court has no right to deny to a party the redress to which he is entitled in that court until another court chooses to proceed in a cause which may happen, incidentally, to affect the subject-matter in controversy. It is believed that no case can. be mentioned in which this court has ever ordered the proceedings in an action of debt on a bond to be stayed until a- suit pending in chancery on a mortgage collateral to the bond has been determined in that court. ’ ’
Another case cited is that of Avery v. Superior Court of Contra Costa County, 57 Cal. 247, the syllabus of which is as follows: “In an action for mesne profits, after a judgment in ejectment, an order was made staying proceedings pending an action in the United States Circuit Court, by the United States against the plaintiff, to annul the patent upon which his title rested. Held, that the judgment in ejectment established plaintiff’s title to the land as against defendant, and the right to recover the rents followed, as a legal consequence; and that, the order staying proceedings not being an injunction, no appeal lies from it, and therefore mandamus is the proper remedy.”
In the same volume of the California Reports, at page 427, a syllabus in the case of Dunphy v. Belden, Judge, etc., reads as follows: “A superior court has no power or discretion to refuse to try an action until judgment in another and separate action in another court of this State.”
In the case of Gilbert v. Shaver, 91 Ark. 231, Justice Battle, for this court, said: “It has often been held that ‘where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law’, and not as a decision of fact, that it has no jurisdiction, and declines to proceed in the exercise of its jurisdiction, the general rule is that a mandamus to proceed will lie from any higher court having supervisory jurisdiction, unless there is a specific and-adequate remedy by appeal or writ of error. In re Grossmayer, 177 U. S. 48; In re Connaway, 178 U. S. 421; Cahill v. Superior Court, 145 Cal. 42; De La Beckwith v. Superior Court, 146 Cal. 496; 26 Cyc. of Law and Procedure, 190, and a long list of cases cited.”
We think the chancellor below made the mistake of-law of deciding that he had the discretion to refrain from disposing of a case before him until another court had disposed of a case pending before it; and the result of this erroneous conclusion is a declination to proceed in the exercise of his jurisdiction. Mandamus will therefore lie to compel the exercise of the court’s jurisdiction.
See, also, Ex parte Trapnall, 6 Ark. 9; Dixon v. Field, 10 Ark. 243; McClellan v. Carland, 217 U. S. 268; Spelling on Injunctions and other' Extraordinary Remedies (2nd Ed.), § 1394.
It is therefore ordered that the clerk of this court issue a writ of mandamus, in accordance with the prayer of the petition. | [
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Wood, J.
P. M. McCord (hereafter called appellant), who was the county judge and road commissioner of Little River County, purchased a Buick automobile to be used by him as road commissioner in the supervision and construction of roads and bridges in Little River County. He was to pay the sum of $1,075 for the automobile, and he presented four separate claims in the aggregate for that sum to the county court, which claims were allowed, the appellant sitting as judge. The court directed the payment -be made out of the highway improvement fund. Warrants were issued, and the amounts thereof paid to the appellant out of such fund.
The appellees, who were taxpayers of Little River County, protested against the allowance and appealed to the circuit court from the judgment of the county court making such allowance.
The appellant testified substantially as follows: That he was the county judge and road commissioner of Little River County, and as such it was very necessary that he get out among the road overseers and supervise the work on the roads and bridges. There are fifteen districts in the county. Some of them are large districts and he had. four or five men working at a time. Seventy-five to ninety per cent, of his time was spent in looking after the road work. If he hadn’t purchased the car, it would have been necessary for him to hire one, which would have been more expensive to the county. It would cost from twelve to fifteen dollars per day to hire a car to get to remote portions of the county. The work on the roads was not being done by contract, but under appellant’s personal supervision.
At the conclusion of the testimony, the court rendered a judgment disallowing the appellant’s claims, from which is this appeal.
The appointment of commissioner of public roads is provided for and his duties prescribed under sections 5276-6278, Crawford & Moses’ Digest. Section 4269 makes it the duty of the commissioner of public roads “to diligently prosecute the work of construction and repairs on roads, bridges, and other public works of the county, under direction of the county judge, and to organize, equip, take charge of, manage and control the property and labor of such force of men, teams and tools as the county court, or judge, may from time to time direct. ’ ’
Other sections make it his duty “to examine all the first and second-class roads and bridges of the county, giving estimates of the work to be done, repairs, or changes to be made, and the cost of same,” and to make written sworn reports at the October term of the county court of the work done. Sec. 5276. It is also made his duty “to superintend the work of construction of all bridges of the county, and the work on the roads and highways of any road district of the county, whenever the county court, or the county judge in vacation, shall so order,” and to report to the county clerk all road overseers who failed to perform any of their duties as prescribed by law. Secs. 5276-77.
Sec. 5278 provides as follows: “The road commissioner shall, under the direction of the county court, buy such tools, plows, scrapers, wagons, graders and other implements as may be necessary for the use on roads and bridges on the different road districts in the county, and distribute 'the same among the overseers of each county, and the cost of same shall be paid for out of the county treasury on warrants properly drawn and allowed by the county court, out of any money in the treasury to the credit of the road district in which said tools and implements are purchased and used; provided, that, if the county court so order, the road commissioner may purchase wagons and road graders to be used in any road district in the county, and the cost of the same shall be paid pro rata, according to the amount of taxes levied and collected in said district, out of any moneys in the county treasury to the credit of said districts; provided, that no money shall be used for working or repairing roads or bridges in any other district than that in which said money was raised or voted. ’ ’
Section 11 of act 494 of the General Acts of Arkansas 1921, page 500, provides in part as follows: “The fund so paid into the county highway improvement fund shall be by the county court expended upon the public highways of said county, and it shall be the duty of the county court to fairly and equitably apportion the funds so collected among the various road districts and the road improvement districts in said county for the purpose of constructing and maintaining the roads, whether hard surfaced or dirt roads.”
Appellant contends that the authority for the allowance of his claims can be found in section 11, act 494, supra, authorizing the county court to expend the money paid into the county highway improvement fund upon the highways of the county for the purpose of constructing and maintaining the roads. But not so. An automobile cannot be used “for the purpose of constructing and maintaining roads.” The money expended for the purchase.of an automobile is not “expended upon the public highways.” The road commissioner, under the statute, and by direction of the county court, shall buy “tools, plows, scrapers, graders and other implements as may be necessary for use on the different roads and bridges in the county.” But the words, “other implements,” under the rule of ejusdem generis, must be implements of the same nature of those previously mentioned, referring to tools, etc., that may be used in the actual construction of roads and bridges. Jones v. State, Í04 Ark. 261, and cases there cited. An automobile is not in that category.
After a most careful scrutiny of the various statutes describing the functions, the duties and powers of the road commissioner, the county judge and county court, we fail to discover any statutory authority for the purchase of an automobile by the road commissioner, or the county judge, subject to the approval of the county court. No such authority exists, and the act of the road commissioner in making such purchase at the expense of the county was ultra vires and void. It was beyond the power of the county court to allow the claims for the purchase of this automobile and by so doing ratify the contract of the commissioner in making the purchase. Since such contract was illegal and void, the court could not authorize it in the first place, nor ratify it in the second place, after it had been entered into by the commissioner. Leatham v. Jackson County, 122 Ark. 114; see also Monroe County v. Brown, 118 Ark. 531.
It may be said, in passing, that the testimony shows that the automobile purchased was used in good faith and for a good purpose by the appellant in the performance of his duties as road commissioner, but considerations of economy and expediency in the allowance of claims of this kind must be addressed to the Legislature and not to the courts. Authority for. the allowance of all such claims must be found in ita lex scripta est (“so the law is written”). ... ' .
The judgment of the court is therefore correct, and it is affirmed. | [
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Wood, J.
This action was instituted by appellant against the appellee to condemn a strip or parcel of land in the incorporated town of Hoxie, Arkansas, for a street. This court, in Hoxie v. Gibson, 150 Ark. 432, decided that the land in controversy was owned by Anna B. Gibson, the appellee herein. The present action was instituted under act No. 397 of the Special Acts of 1921, p. 826. Section 1 authorizes the town of Hoxie to sue for the land in controversy. The act further provides: “Sec. 2. If said circuit court finds that other parties have acquired rights in said street, it shall appoint three citizens of Lawrence County to act as appraisers, and said appraisers shall meet and view said street so sought to be opened, and shall appraise the damages which the parties having rights in said street will suffer by reason of its opening. Said appraisers shall notify the mayor or recorder of the incorporated town of Hoxie of the day when they will make their appraisal, and they will also notify the parties claiming the rights in said street, and they shall make their appraisal only after they have heard both sides and such witnesses as the respective parties bring before them. Their appraisal shall be conclusive as to the value of the property taken, and without appeal.
“Sec. 3. When the appraisal has been made, the town council of the incorporated town of Hoxie shall determine whether they are willing to pay the 'amount thereof and to open said street, and in the event they determine to open said street, the incorporated town of Hoxie shall execute and deliver to the parties who are adjudged by the circuit court to be the owners of said ' street, the warrants of said incorporated town, drawn on its treasurer, for the amount of the appraised value of said street, and thereupon the said incorporated town of Hoxie shall open said street for use as a public highway.”
The appellant set up the act and prayed that the land described in its complaint be condemned according to its provisions. The appellee entered a special demurrer to the complaint on, among other, the following grounds:
“1. That the act under which this suit is brought is unconstitutional, because it seeks to deprive defendant of her property without due process of law, is unequal and discriminative, and is in contravention of the provisions of the Constitution of the State of'Arkansas and of the Fourteenth Amendment of the Constitution of the United States.” ■
“3. Because said act seeks to bind defendant by a verdict and judgment in this court without the right of appeal therefrom to the Supreme Court of Arkansas, and is in contravention of article VII, section 4, of the Constitution of Arkansas, which gives the right of appeal in all cases.”
The trial court sustained the demurrer. Appellant stood on its demurrer, and the court rendered a judgment 'dismissing the complaint, and for costs, from which is this appeal.
In Hoxie v. Gibson, supra, speaking of the act under review, we said: “But appellant’s authority under this statute to proceed to condemnation of the property is still unimpaired, notwithstanding the decree adjudicating and quieting appellee’s title to the property, for, us before stated, the only purpose of this act is to prescribe the method of condemnation.” The appellant says that this court “in this decision practically held that this act was legal and binding, and that it was a method of condemnation which could be followed and pursued by 'appellant. ’ ’ But not so. The issue before the chancery court in Hoxie v. Gibson, supra, was only as to the title to the property, and we affirmed the decree of the chancery court quieting the title in Mrs. Gibson. No. issue as to the right of condemnation of the land in controversy under special act 397, supra, was raised in that case. Therefore, the language from the decision quoted supra was not intended, and can not fairly be construed, to hold that special act 397 was ,a valid act. If the language were susceptible of that interpretation, it would be pure obiter, and not binding on the court in this lawsuit. The issue, and the only issue in the instant case, is whether or not special act 397, supra, is a valid act.
In Cribbs v. Benedict, 64 Ark. 562, we said: “Eminent domain and police power aré attributes of political sovereignty, for the exercise of which the Legislature is under no necessity to address itself to the courts. It determines the mode and the occasion of the exercise of these supreme powers, untrammeled by constitutional restraints. It may or may not, in its discretion, clothe the proceedings with the forms or substance of judicial process, and when provision has been made for just compensation to the landowners for his land taken, the expression of the legislative will authorizing such taking is of itself due process.” And in Board of Directors St. Francis Levee District v. Reddit, 79 Ark. 159, we said: “Condemnation proceedings are not common-law actions, and when they meet the constitutional requirements and provide for due notice to the parties affected, they are valid, although they may not provide for a trial in course of the common law.”
Learned counsel for appellant quote and rely upon the doctrine of the above cases to support their contention that it was within the power of the Legislature in condemnation proceedings to constitute a board of appraisers and to delegate to such board the absolute authority to determine the value of the land condemned, after notifying the parties and giving them the right to adduce testimony and be heard by the board on the- issue of compensation to be awarded the landowners for their property. Under our Constitution “the right of property is before and higher than any constitutional sanction, and private property shall not be ■ taken, appropriated, or damaged for public use without just compensation.” Now, the right of the State and its subordinate governmental agencies, under the power of eminent domain, to condemn and take private property for public use is beyond question. In addition to above, see Sloan v. Lawrence County, 134 Ark. 121-128 et seq., and cases there cited; Dickerson v. Tri-County Drainage Dist., 138 Ark. 471.
The Legislature undoubtedly has the power to determine whether the necessity exists for such condemnation, but it has no power to create a tribunal and vest it with absolute authority to condemn private property without just compensation, or upon such compensation as such tribunal may determine, and make the findings of that tribunal or board conclusive upon the issue of compensation. The jurisdiction to determine the necessity for condemnation is one thing. That is purely a legislative function, which the Legislature may exercise untrammeled. The jurisdiction to determine the value of the land condemned and the compensation to be rendered the owner therefor, is another thing. The latter power is purely a judicial function which none but the courts can exercise. If the Legislature designates a tribunal other than a common-law jury to ascertain the value of the land and the amount of compensation to be paid the owner therefor, then the finding of such tribunal on the issues of fact must be subject to review by the courts. The right of appeal from such finding through to the court of last resort can not be taken away. Art. VII, see. 4, Const. Ark. If this procedure is not followed, then the landowner is deprived of his property without judicial inquiry, i. e., without the due process guaranteed by our Constitution and the Constitution of the United States. Article II, secs. 21 and 22, Constitution of Ar kansas; articles 5 and 14, Const, of U. S.; Matter of City of Buffalo, 139 N. Y. 422, 430-31.
Sec. 1, article 7, of our Constitution provides that the judicial power of the State shall be vested in certain courts designated therein. In Monongahela Navigation Co. v. United States, 148 U. S. 312, Mr. Justice Brewer, speaking for the court, says: “The Legislature may determine what private property is needed for public purposes — 'that is a question of political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the Legislature, its representatives, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. 'See, also, 3 Dillon, Mun. Corp. sec. 1055; 3 Fletcher, Ency., sec. 1506; Ex parte Martin, 13 Ark. 198.
In addition to the above cases of our own court, learned counsel for appellant cite many other decisions of this court holding that it is within the power of the Legislature in matters that are purely administrative or ministerial to constitute a board or tribunal for determining such issues and making the finding of such tribunal conclusive; and also cases in which we have held that, in certain summary proceedings in the courts, it is within the province of the Legislature to confer upon the courts the right to determine certain issues without the intervention of a jury. But this court has never held that the issues as to the value of land and compensation to be paid to the owner for the condemnation and taking thereof is a legislative question and that such power can be lodged in any tribunal other than the courts. In Missouri Pacific Ry. Co. v. Conway Bridge District, 134 Ark. 292, we said: ‘ ‘ The circuit court acts in a judicial, and not an administrative, capacity, and under the Constitution an appeal to this court (the Supreme Court) will lie from all final judgments and orders of the circuit court. The right of appeals extends to special proceedings.”
The act under review makes the finding of the appraisers conclusive as to the value of the property taken, and expressly denies the landowner the right of appeal. This is clearly contrary to the provisions of our Constitution and the decisions construing the same. Our conclusion therefore is that the act is unconstitutional and void.
• The judgment of the trial court was correct, and it is therefore affirmed.
McCulloch, C.J., and Smith, J., dissenting. | [
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McCulloch, C. J.
Appellant is the owner of a large number of improved and unimproved lots of real estate in the town of Hoxie, and she appealed to the county court from the valuations for taxation purposes made for the year 1921 by the county tax assessor and the township board of assessors. She also prosecuted an appeal to the circuit court from the judgment of the county court fixing the assessments, and has, in turn, appealed from the judgment of the circuit court.
The only contention here is that the judgment of the circuit court fixing the assessments is against the weight of the evidence adduced at the hearing.
Appellant presents a tabulated statement showing the assessments on these lands as they appear on the tax-books for the year 1920, and also the assessments made by the board of assessors, the amounts fixed by the county court, and the amounts fixed by the judgment of the circuit court. '
■ The inquiry involves seventy-four separate valuations, in most instances each valuation covering several contiguous lots. The figures tabulated by appellant, showing the aggregate valuations, are as follows:
Total valuation for the year 1920..................$35,245
Total valuation fixed by the board of assessors .............................................................................. 56,430
Total valuation fixed by the county court 44,865 Total valuation fixed by judgment of the circuit court ............................................................ 43,595
Counsel for appellant have discussed in the brief, in detail, each of the separate assessments, but it is unnecessary for us to do so in this opinion, as the appeal can be disposed of in a general discussion of all the valuations.
It appears from the testimony that the board of assessors sought to adopt, as the proper assessment, fifty per centum of the actual valuation of the land, and appellee introduced the county assessor and one of the members of the township board, whose testimony tended to show that these lands were assessed on that basis, and that they were in uniformity with other assessments in the county. Several witnesses were introduced by appellant, and their testimony tended to show that many of the assessments were excessive, and in some instances were not in conformity with the assessments on similar property.
It appears from the tabulated figures furnished by appellant that the assessments made by the township board were approximately $20,000 in excess of tbe valuation for the previous year, but tbat tbe valuation fixed by the circuit court in its judgment was approximately $13,000 less than tbe valuation fixed by tbe assessing board, and about $1,500 less than the valuation fixed by the county court. Tbe sole question which concerns us is, whether or not there is legally sufficient testimony to support tbe finding of tbe circuit court, for tbe settled rule is tbat tbe court will not disturb tbe finding of tbe trial court or jury upon disputed issues of fact unless found to be unsupported by substantial testimony. That rule prevails in all cases at law, and a case like this, involving tbe correctness of valuations for taxation purposes, is no exception to tbe general rule. St. L. & S. F. R. R. Co. v. Fort Smith & Van Buren Bridge Dist., 113 Ark. 492.
Upon consideration of tbe testimpny, we are of tbe opinion tbat it is legally sufficient to support the finding of tbe trial court.
This disposes of tbe only contention made by appellant’s counsel, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
Two separate road improvement districts in Scott County were created by statutes enacted by the General Assembly of 1919 (Special Acts 1919, vol. 1, p. 491, vol. 2, p. 2586), one of the said districts being designated as the Albert Pike Eoad Improvement District and the other designated as the Poteau Valley Eoad Improvement District of Scott County. The two statutes were identical in form and substance, except as to the references^ to the respective roads to be improved and the naming of the commissioners.
Powers were conferred upon the commissioners of the respective districts to construct the improvements, to borrow money and to levy and collect assessments upon benefits.
Each of the statutes contained a section which reads as follows: “The board may appoint all necessary agents for carrying on the work and may fix their pay, and shall pay a reasonable fee for the preparation of this act.”
A contract was entered into with the engineer, who is one of the appellants in the present case, to do the engineering work, both preliminary and constructive, and other liabilities were incurred, which will be mentioned later in the discussion of the case.
It was determined that the cost of the improvement would exceed the benefits, and separate actions were instituted in the chancery court of Scott County by owners of property in the districts to restrain the. commissioners from further proceedings, and during the pendency of these actions the General Assembly of 1921 massed statutes repealing each of the former statutes creating the districts. Special Acts 1921, pp. 902, 1228.
Each of the repealing statutes provided that claims against the district should be filed and adjudicated in the chancery court of Scott County in the cause involving the district, and that assessments should be levied to raise funds to pay the amounts adjudged against the districts.
There has been a joint appeal by several of the claimants whose claims were disallowed by the court, abrl the question of the correctness of the chancery ■court’s decision in disposing of each of the claims will be now discussed.
The first claim to be discussed in regular order is that of the attorneys who performed services for the. districts. These attorneys presented claims against each of the districts containing an item of $250 as a fee for preparing the bill to be introduced in the Legislature for the enactment of the statute, and the further sum of $250 for services subsequently performed in examining the records with a view of approving a bond issue by the district.
We have heretofore decided that the commissioners of improvement districts have no authority to pay for legal services in the preparation or enactment of the statute creating’ the district. Thibault v. McHaney, 127 Ark. 1. That decision, however, relates to an instance where the Legislature had not expressly conferred authority to pay for such services, and in the present case we have to deal not with the question of the authority of the commissioners in the absence of a statute attempting to confer the authority, but the question of the power of the Legislature to impose such an expense as a burden upon the taxpayers of the district. There is, however, no question of public policy involved in the point now under discussion, for the services of merely preparing a bill for a legislative enactment is legitimate and' is in no sense violative of any rule of public policy; moreover, public policy is what the lawmakers themselves declare it to be. Arlington Hotel Co. v. Rector, 124 Ark. 90; United States v. Trans-Missouri Freight Assn., 166 U. S. 290; Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20.
It has frequently been said by this court that the only justification for the imposition of special taxation is the fact that special benefits are to be enjoyed. First v. Street Imp. Dist., 86 Ark. 1. It is generally a. question for the Legislature to determine whether or not benefits will accrue, and its determination of the question should be respected by the courts unless it is, on its face, unreasonable and arbitrary.
The fact that the service was performed prior to the creation of thé district is not necessarily a test of. the power of the Legislature to impose upon the taxpayers the payment of compensation, for there might be instances where a direct benefit would result from the performance of services or the furnishing of material before the creation of the district. If benefits may result to the district, then the burden of rendering compensation may be imposed upon the district when it comes into existence. Nor can it be said that services performed in the creation of the district itself will not directly result in benefit to the district after it comes into being, so as to preclude the lawmakers from authorizing compensation to be paid. What we are now called on to decide is whether or not the perf ormance of services in the preparation for the enactment of the statute creating- a district can in any sense be regarded -as carrying -a benefit to the district which is created by the enactment. We hold that in the very nature of thing’s there can be no direct and material benefit accruing’ from the enactment of the law, for that is purely a legislative function. Benefits may arise under the operation of the law, but there can be none resulting from the enactment of the law itself.
Now, the preparation of a bill is a part of the legislative function. It is true that services may be performed by individuals in no way connected with the legislative branch of government, -and the terms of such law may warrant and support a contract between individuals for the performance of such services, but, after all, it is a part of the passage of the statute, and it does not result in any benefits which flow from the operation under authority of the statute. It is unimportant to pursue an inquiry as to who procured the performance of the services, for the effect is the same in any case. Until the law is passed, and. the district begins to function under its operation, there is no one in authority to enter into a contract for the performance of such service. One who performs the service is necessarily a volunteer so far as concerns those who subsequently act pursuant to the statute.
The fact that individuals interested in the enactment of such a law are the property owners who were subsequently to enjoy the benefits arising from the improvement, affords no basis for imposing the burden on the property owners of the district as a whole.
In Thibault v. McHaney, supra, we said that the work of preparing the bill and presenting it to the Legislature and urging it before the committees of that body, as well as services performed in opposition to the effort of taxpayers to secure the dissolution of the district, were services performed for the individuals who were interested in the creation or continuation of the district, and not the district itself. The decision in that case therefore bears out the conclusion which we now reach, that there is no benefit accruing to the property owners of the district from the enactment of the statute, or from any services performed in connection therewith, therefore the Legislature had no power to impose that expense as a burden upon the district.
Now, as to the other item in the claim of the attorneys: It is clear that this service was not performed as preliminary expenses of the district, but as part of the issuance of bonds for the construction of the improvement, which is not service preliminary' in its nature. ■We held in Thibault v. McHaney, 119 Ark. 188, and in many later cases, that where an improvement district is abandoned or dissolved before it is ascertained that the cost of the improvement will not exceed the benefits, only preliminary expenses can be imposed on the property owners of the district, and that, until there is a determination that the cost will not exceed the benefits, no contract for permanent work can be entered into by the commissioners. ’
Mr. Bose, one of the attorneys who is a member of the firm of claimants, testified that his examination of the record was for the purpose of passing upon the validity of a bond issue. In response to a cross-interrogatory lie said that, “the purpose of our'passing upon the record was to prepare the papers for a bond issue.” This statement is corroborated by the fact that regular at-, torneys who resided at the county seat of Scott County were employed' by the commissioners of the district as the regular attorneys of the district, and the claimants in this instance were only called in to approve the bond issue. This service was premature, as it was' never determined that the cost of the improvement would not exceed the benefits; therefore, under repeated decisions of our' court, there was no liability on the part of the district for such service. The court was therefore correct. in refusing to allow the claims.
The next claim in order is that of appellant James Gould, who, according to the undisputed evidence, loaned money to each of the districts with which to pay preliminary expenses. The Albert Pike Boad Improvement District borrowed $2,000 from Gould and executed a note for that sum, bearing interest at the rate of six per centum per annum, and the Poteau Yalley Boad Improvement District borrowed from Gould the sum of $1,000 and executed a similar note. These sums, according to the testimony, were borrowed for use in paying the preliminary expenses and were used for that purpose. There is no reason that we can discover why the districts should escape liability, for the payment of these debts.
•Preliminary expenses are an essential burden upon the property of the districts, even though the effort to construct the improvement turns out to be abortive. The commissioners had the power to provide for the payment of these expenses, and, even in the absence- of express ■statutory authority to borrow money for that purpose, where the money is obtained and used for that purpose the district is liable therefor. The chancery court erred in refusing to allow these claims against the respective districts.
Finally, we come to consider the remaining claim involved in this appeal, that of A. F. Annen, who was employed by each of the districts as engineer. He entered into a contract for the whole of the services, both preliminary and constructive, but there was no separate contract for making the preliminay surveys and plans. In that respect the case is the same as Bowman Engineering Co. v. Arkansas-Missouri Highway Dist., 151 Ark. 47, and the compensation of appellant Annen must he determined upon the quantum meruit rule.
Oral testimony was heard upon this claim, and it is contended by appellant that he was entitled, as compensation for the preliminary work, to two per centum of the estimated cost of the construction of each of the roads. He had previously been paid the sum of $1,000 by the commissioners of one of the districts, and the sum of' $300 by the commissioners of the other district. The court found that he was not entitled to any compensation in addition to the amount, theretofore allowed and paid by the commissioners.
Appellant testified in detail concerning the work performed by him and what he paid in expenses in doing the work, and his testimony, standing alone, would warrant a decree in his favor for the full amount named in each instance. He introduced three other engineers, who testified as experts in the matter of road engineering, and they corroborated appellant in his statement that two per centum of the estimated cost of the improvement would be a reasonable compensation for preliminary work up to the point of letting the contract for the construction of the improvement. Neither of these witnesses, however, testified as to any knowledge of the particular work done by appellant, or even any knowledge of this particular locality in which the work was done. Neither of the witnesses says anything about having examined the plans made by appellant.
The commissioners introduced a witness, Mr. Winters, who is an engineer engaged in road work and residing at Fort Smith, and, according to his testimony, the work done by appellant is absolutely valueless. Winters testified, in substance, that he had carefully examined the plans and profiles prepared by appellant, and that they contained nothing except a center line and right-of-way and profile with the grade lines, and, in a few instances, other features along the right-of-way; that there was no notation of the height of culverts, and there was no showing on the'plans as to fences, telephone poles, location of old roads, streams or other features; that the curves were not shown, as required, in order to conform to plans for Federal aid, and that the rate of grades shown on the profiles was in many instances too steep and considerably in excess of the limits, set by the Federal engineers. He also stated that he found that the length of steel bridges was estimated without reference to the area drained by the streams, and that they differed from the government geographical survey maps. Many other reasons are given by Winters as to why the plans furnished by appellant are worthless.
So far as this feature- of the case is concerned, there is no testimony except that of Winters and the appellant; and while it is directly in conflict, we cannot say that'the -chancellor erred in accepting the testimony of Winters rather than that of appellant himself. If the testimony of Winters is correct, then appellant was not entitled to any compensation for making the survey and plans that were so defective and inapplicable that they were of no value. ■1
We should not disturb the decree unless it is found to be against the preponderance of the evidence, and we cannot say, in the present state of the record, that there is a preponderance against the finding of the chancellor on the issue as to the value of appellant’s services.
The decree is therefore reversed as to appellant James Gould, and the cause remanded, with directions to enter a decree in Ms favor in accordance with this opinion. In all other respects the decree is affirmed. | [
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WhioD, J.
This action was begun in the northern district of the Prairie Circuit Court by the appellant against the appellee in unlawful detainer, under secs. 4842-4847, Crawford & Moses ’ Digest. The appellee Collier executed a bond under the latter section to retain possession of the premises. The cause was transferred to the chancery court, where it proceeded to a decree in favor of the appellant against the appellee Collier on April 20, 1920, for the possession of the land and the sum of $400, two years’ rent found by the chancellor to be due at that time. The court retained control of the cause for such further orders “as may be proper to enforce the rights of -the parties hereto as herein adjudged.” By oversight of the attorneys of appellant, decree was not asked or rendered at that term of the court against the appellee, Irwin, who was surety on appellee Collier’s bond. The cause was appealed by the appellee Collier to the Supreme Court, where the decree of the lower court was affirmed.
The appellee Collier was insolvent. On the 17th day of February, 1921, the appellant gave notice to the appellees that she would move for judgment against the appellee Irwin as surety on the bond for the rents which had accrued at the time the decree was • rendered, and also for the sum of $200 rents which had accrued during the pendency of the cause in the Supreme Court, making a total sum of $600, for which the appellant asked judgment.
At the April term of the chancery court, in pursuance of the notice, the appellant moved the court for judgment against the appellee Collier, the principal, and appellee Irwin, the surety on his bond, in the sum of $600, rent then claimed to be due. The appellee Irwin demurred to the motion on the ground that the court had ho jurisdiction to grant the relief asked for. The court' sustained the demurrer and dismissed the appellant’s motion. The appellant stood on her motion, and prosecutes this appeal.
Under the provisions of the bond the appellee Irwin bound himself to pay such judgment as might be rendered in favor of the appellant against the appellee Collier, his principal in the bond. Sec. 4847, C. & M. Digest. Sec. 4854, C. & M. Digest, provides in part as follows: “In all cases where judgment is rendered either against the plaintiff or defendant for any amount of recovery, damages or costs, judgment shall also be rendered against his sureties in the bond given under the provi sions of this act.” The effect of the filing of the bond under the statute was to make the appellee Irwin a party to the action. Fletcher v. Menken, 37 Ark. 206; White v. Prigmore, 29 Ark. 208; Callahan v. Saleski, 29 Ark. 216. The liability of the appellee Irwin was not that of a joint contractual obligation or liability on a joint obligation of any kind. His liability was simply that of a surety bound 'by the debt of his principal, under the statute, and the fact that judgment was rendered against the principal at a previous term of the court- and not against the surety does not bar the present action by summary motion against the appellee Irwin, the surety. His is a statutory obligation to satisfy the judgment rendered against his principal.
The doctrine that a judgment taken against one only of several joint contractors merges the entire cause of action in the judgment and bars any subsequent suit on the same obligation against any of the other joint debtors or obligors has no application to the facts of this record. Hence the authorities upon which the learned counsel for appellee relies in his brief are not in point. Moreover, see secs. 6229-31, C. & M. Digest; Kissire v. Plunkett-Jarrell Grocery Co., 103 Ark. 473-84. The liability of the appellee Irwin on his bond under the statute was not merged in the decree rendered against the appellee Collier, the principal, at a former term of the chancery court. Irwin’s liability commenced when that decree was rendered, and the action against him is not barred because of the failure of the court, through its own oversight or the oversight of the attorneys, to render a judgment against him at the same term of the court when judgment was rendered against his principal. The statute, as we have seen, expressly provides that, where judgment is rendered against the defendant who gives a retainer ’s bond in an action of unlawful detainer, judgment shall also be rendered against all sureties on his bond. To be sure, the proper time to render judgment against the surety is v?hqn the judgment is ^end^red. against fbe„ principal, but if, by oversight of court or counsel, it is not done, the court does not ipso facto lose jurisdiction of the cause of action on the bond against the surety. Where judgment has been rendered against the principal on a retainer’s bond and the term has expired -without also taking judgment against the surety, the court has not lost its jurisdiction to render judgment. against the surety on the bond for the satisfaction of the judgment previously rendered against the principal. The court, under the statute, could during the term render judgment on its own motion and without notice. But, after the lapse of the term, the judgment being a summary one and especially authorized by the statute, the statutory requirements for such proceedings should be strictly pursued. This was done in this case. See sections 6250-6254, C. & M. Digest; Cooley v. Lovell, 95 Ark. 567; Milor v. Farrelly, 25 Ark. 353.
The demurrer admits the facts set forth in the motion for a summary judgment, which show that the statutory prerequisites for obtaining such judgment were fully met. Since the appellee Irwin is only liable on his bond to satisfy the judgment rendered against his principal, decree can only be rendered for the amount of that judgment, which was the sum of $400. The decree is therefore reversed, and the cause remanded, with directions to enter a decree in favor of the appellant against the appellee Irwin in the sum of $400, with interest at the rate of 6 per cent, from April 20, 1920. | [
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McCulloch, C. J.
The appellee, Mrs. Ollie Mason, was arraigned under an indictment returned against her in the following form:
“The grand jury of the Western District of Clay County, in the name and by the authority of the State of Arkansas, accuse Mrs. Ollie Mason of-the crime of slander committed as follows, viz: In. the district and county aforesaid, on the 7th day of April, 1921, the said Mrs. Ollie Mason did unlawfully, knowingly, falsely, and feloniously use, utter, and publish concerning about one Mrs. Dolly Yates language and words of the following import: ‘Mrs. Dolly Yates’ baby doesn’t.belong to her husband; Claud Yates; it is Bunk Yates’ and it looks just like him. Bunk Yates hurried to get away before the baby was born, ’ which language and words were false; against the peace and dignity of the State of Arkansas. ’ ’
. There was a general demurrer to the indictment on the ground that it failed to state facts sufficient to constitute a public offense. The court sustained the demurrer, and the State has appealed.
Counsel for appellee defends the ruling of the court on the ground, in the first place, that the indictment does not contain an allegation to the effect that it had been returned “at the instance, or by consent, of the person slandered, or his legal representative” in compliance with the statute. Sec. 2397, C. & M. Digest. The statute ^referred to provides that no indictment for slander shall be found except, as before recited, “a.t the instance, or by consent, of the person slandered, or his legal representative.” But we are of the opinion that it is unnecessary for an indictment to contain an affirmative allegation to the effect that the indictment had been returned by the consent of the person slandered, or his legal representative. Such, we think, is the necessary result of the opinion of this court in Conrand v. State, 65 Ark. 559, where it was said that an allegation to the above effect “was no part of the statements which were made to show the commission of the offense, and it was not necessary to prove it to convict the defendant. 'Continuing, the court said: “In pleading not 'guilty the defendant did not put it in issue. If it was untrue, the defendant could have taken advantage of it by a motion to set aside the indictment, as it affected the authority of the g’rand jury to find the indictment, and nothing more. Having failed to do so, he waived any advantage he.could have taken of it, and it was not necessary for the State to prove that it was true.” Now, if it was unnecessary for the State to prove the allegation, it was likewise unnecessary to allege it, 'but it is a preliminary question to be taken advantage of, if at all, by a motion to set aside the indictment.
The ruling of the court is next defended on the' ground that the indictment does not purport to set forth the alleged slanderous words. We have held that it is essential that the words must be set forth and proved substantially as used by the accused — that it is not sufficient to charge merely the import or substance of the words used. Morris v. State, 109 Ark. 530. According to the language of the indictment, only the import of the words used are set forth. It is true, that these words are included in quotation marks, but this is not sufficient to identify the words as the language used by the accused so as to contravene the positive allegation of the indictment that those words constitute only the import of the words used by the accused. Taking the allegation as a whole, including the punctuation, it means only that the quoted words are those which constitute the import of the words used, and they are not either identically or substantially the words used. This distinction is made clear, we think, by comparison of the ease with the decisions of this court in Teague v. State, 86 Ark. 126, and Burnett v. State, 96 Ark. 101, and the opinions in those cases support the conclusion we now reach with regard to the effect of the language of the indictment. Our conclusion is therefore that the demurrer was properly sustained on this ground.
Another ground on which counsel seeks to sustain the ruling is that there is no allegation designating the persons in whose presence the alleged slanderous words were uttered. We are of the opinion that such an allegation is unnecessary where it is charged, as in this instance, that the words were published, which necessarily implies that they were uttered in the presence and hearing of some other person. There is some contrariety of opinion expressed in the authorities on this subject, and some of the older cases hold that it is essential that the name of the person in whose presence and hearing the slanderous words have been uttered be alleged and proved. But there are authorities to the contrary which are in harmony with the liberal practice established by our criminal code, which provides, among other things, that an indictment is sufficient if “the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case,” and that an indictment is not insufficient “nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Secs. 3013 and 3014, C. & M. Digest.
Among the cases which hold to the view that a mere allegation that the slanderous words were “published” is sufficient, are the following: Hanning v. Brassett, 12 Bush (Ky.) 361; Ware v. Cartledge, 24 Ala. 622; Perry v. Dozier, 161 Ala. 292; Downs v. Hawley, 112 Mass. 237; Hurd v. Moore, 2 Ore. 85. These were all civil cases, but no greater certainty is required in this respect in a criminal prosecution. The Massachusetts court, in the case cited, above, said: ‘ ‘ The first count alleges the publication generally in the usual form, and sets out the words spoken. It would have been sufficient if it had stopped there. An averment is added that, by the words so publicly uttered fin the presence and hearing of divers good citizens of this commonwealth, ’ the defendant intended to accuse the plaintiff of the crime charged. The wrong committed was sufficiently charged without this last clause, in the form provided bjr the Practice Act of 1852, and used since then.” The Kentucky court, in the case cited above, quotes with approval from a statement from Chitty to the effect that there must be an allegation as to the publication of the slander, but that “any words that denote a publication are sufficient.”
Finally, it is alleged that the -words of the indictment, even if held to constitute the identical words used, are not slanderous per se and do not constitute a charge of adultery without pleading the innuendo to the effect that such was the meaning of tlm words. We think that, giving the words their usual meaning, if the words had been charged as the identical ones used, they constitute a charge of adultery and are' slanderous per se.
The court was correct, however, in sustaining the demurrer on the ground set forth above, that it failed to charge the slanderous words used, so the judgment is affirmed.
Hart and Smith, JJ., dissent on ground that the identical words are properly charged. | [
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Hart, J.
(after stating the facts). The decision of the chancellor was correct. We need not decide whether or not Hunter & Sawyer had the authority to sell the bonds. Assuming that they had such authority, the facts in the record bring the case squarely within the rule announced in Rural Special School Dist. No. 30 v. Pine Bluff, 142 Ark. 279, where it was held that bonds issued by the directors of a rural special school district without authority of a majority of the electors, are void, even in the hands of a bona fide holder for-value. The statute provides that all school districts created under the act shall have the power to borrow money when a majority of the legal electors authorize it by vote at any annual school meeting. Crawford & Moses’ Digest, sec. 8837.
The record shows that the rural special school district in question was organized on the 3rd -day of June, 1916.. This was after the annual school meeting which, under the statute, is held on the third Saturday in May. Crawford & Moses’ Digest, sec. 8950.
The bonds were sold on the 15th day of October, 1916. This was before another • annual school meeting could have been held. Therefore, the record affirmatively shows that the school district was organized and the bonds sold during the year 1916, after the time provided by statute for holding the annual school meeting and before another annual election could have been held. This shows conclusively that no vote of the electors of the district was had to authorize the issuance of the bonds, and it follows that the bonds and deed of trust are void because they were issued by the board of directors of said school district without authority. 'But it is insisted that there is nothing in the record to show that the defendant is a rural special school district and that the burden is upon it to establish that fact. We need not decide where the burden of proof lies, for we are of the opinion that there is an affirmative showing that the defendant is a rural special school district, and that there is no evidence to the contrary in the record.
As stated above, the district was organized in 1916. At that time rural special school districts were established under procedings had before the county judge. Rural Special School Dist. No. 6 v. Blaylock, 122 Ark. 418.
It may not be out of place to state in this connection that the General Assembly of 1919 amended the statute so that the proceedings are now had before the county boards of education. Mitchell v. Directors of School Dist. No. 15, 153 Ark. 50.
In cases of cities and towns, the petition for the establishment of the district would have to be filed before and presented to the mayor of such city or town. Crawford & Moses’ Digest, sec. 8827.
Here the petition was presented to the county judge, as required by the statute regulating- the creation of rural special school districts, and the district was designated as Rural Special School District No. 9, as required by the statute. Crawford & Moses’ Digest, secs. 8831-8834. These facts make an affirmative showing from the record that the defendant is a rural special school district.
It follows that the decree of the chancellor must he affirmed. | [
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Wood, J.
This is an action in replevin instituted by the appellant against the appellees to recover the possession of five bales of lint cotton. In his original complaint the appellant alleged that the appellees “had in their possession, without right, five bales of lint cotton which were raised on plaintiff’s farm, that plaintiff had a landlord’s furnisher’s lien thereon amounting to the sum of $700 for money, goods, wares and merchandise furnished by him to Wilson Davis in order to enable the said Wilson Davis to make and produce the said five bales of cotton.” Appellant prayed “for the possession of the said five bales of cotton, to the end that he may sell the same to pay said furnisher’s lien.”
The appellees demurred to the complaint, and the court sustained the demurrer and rendered judgment in favor of the appellees. At a later day of the same term of court the appellant amended his complaint by adding the following: “That, prior to the time said defendants came into possession of the said cotton and prior to any attempt on their part to foreclose any mortgage on said five bales of cotton, the said Wilson Davis had turned over and delivered to plaintiff the said five bales of cotton in payment of the sum of $500 of his said indebtedness to the plaintiff, and that the said five bales of cotton were at the time, by virtue thereof, the property of this plaintiff, and the same were in his possession on his farm, when same were converted by the said defendant. ’ ’
The appellees renewed their demurrer to the amended complaint. The court sustained the demurrer and entered a judgment dismissing the complaint in favor of the appellees and for the return of the cotton by the appellant to the appellees, or, in default thereof, the sum of $500, its value, and for their costs. From that judgment is this appeal.
This case is ruled by the case of Climer v. Aylor, 123 Ark. 510, where the complaint filed in the justice court and as amended in' the trial court was in substantial particulars the same as the complaint under review, only that the complaint in. that case did not allege special ownership. In that case, among other things, we said: “The plaintiff could not have been entitled to the possession of the property, and defendant could not have any possession thereof and'have detained the property from plaintiff without right, unkss the plaintiff had general or special ownership in the property. # * * The complaint was at least sufficient on general demurrer, and the court erred therefore in dismissing the same. The defects therein could and should have been reached by a motion to make more specific. Under our liberal rules of pleading, the appellant should have been allowed to amend his cause of action defectively stated.” The court should have treated appellee’s general demurrer as a motion to make more specific, and the amendment to the complaint as having been filed in response to such motion, Strode v. Holland, 150 Ark. 122; Moore v. Ford, 146 Ark. 227.
Here the original complaint, was defective in not stating the grounds upon which the special ownership of the appellees was based, but that defect was remedied by the amendment. The cause of action set forth in the original complaint was one for the possession of the property. The allegations of the amendment do not change the nature of the cause of action from one for possession to one for conversion and damages therefor, as in the cases upon which the- appellees rely to sustain their contention. The allegations of the amendment to the original complaint were only an addition, and supplementary thereto'. The action all the way through was for the possession of the property.
The court therefore erred in sustaining the demurrer and in dismissing appellant’s complaint. For the error indicated, the judgment is reversed, and the cause remanded with directions to overrule the demurrer. | [
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Humphreys, J.
Appellant was indicted in the Lincoln Circuit Court for murder in the first degree for killing Isaac Hartley. Upon trial of the charge he was convicted of murder in the second degree and adjudged to serve a term of twenty-one years in the State Penitentiary as punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court. The killing occurred on the night of the 12th day of November, 1921, at Grady, in front of a drugstore conducted by Jim Taliaferro. Some hour or more before the killing, appellant, the constable of the township, who was drinking to some extent, appeared at the show tent of a carnival company in another part of the town and caused those present to scatter and run in every direction by displaying his gun and a handful of cartridges. He made the statement that he was the law and wanted to see whether he had enough cartridges to go around. The deceased was not present during this occurrence. He seems, however, to have been there either earlier or later, and to have been somewhat under the influence of liquor, claiming a bill of sale on a part of the show property. Subsequently both went to the drugstore near the scene of the killing. The deceased and several other parties were in the drugstore when appellant entered. When appellant entered, Taliaferro, observing that he was drinking, requested that every one go, and directed the boy at the soda fountain to put out the lights. When the boy got on the counter in an attempt to comply with Taliaferro’s order, the appellant, with pistol in hand, ordered the boy not to turn out the lights. Appellant then took a position at the front door, asserted that he was the law or boss, and that no one could go out until he said so. The deceased attempted to go out but was prevented' by appellant. During the incident appellant was generous with oaths. Taliaferro finally prevailed upon appellant to put up his gun and allow all of them to go out. He then closed the store, but was engaged about twenty minutes in doing so on account of the lock being out of repair. At this juncture the testimony sharply conflicts. That offered by the State tends to show that while Taliaferro was locking the door appellant attempted, without cause, to shoot Leon Stanfield, one of the party, but was prevented from doing so by Taliaferro, who knocked the pistol down as it fired; that in the struggle which ensued between appellant and Stanfield, appellant again fired the pistol at Stanfield but missed him and hit the deceased, the ball entering the back of his neck and killing him instantly. The testimony offered by appellant tended to show that, after the drugstore had been closed and appellant was being taken home by Taliaferro, deceased -attacked him with an automobile pump, and appellant fired upon and killed deceased in self-defense.
In the course of the trial appellant was permitted to prove an uncommunicated threat against him, made by deceased to Taliaferro about 11 o’clock a. m. on the day of the killing. On admitting the testimony, the court made the remark that he regarded it as immaterial. The record also reflects that the statements made and acts committed by appellant on the show ground, out of the presence and hearing of deceased, tending to show a general malevolent spirit and wicked disposition as well as deliberation, were introduced by the State over the objection and exception of appellant.
Appellant’s first contention for reversal is, that the .court destroyed the effect of the uncommunicated threat by remarking that it was immaterial. No objection was made or exception saved at the time to the remark of the court. The objection cannot, therefore, be considered on appeal. Yazoo & M. V. Ry. Co. v. Solomon, 123 Ark. 66; Lisko v. Uhren, 130 Ark. 111.
' Appellant’s next contention for a. reversal of the judgment is, that the court erred in giving instruction No. 25, which is as follows: .
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” The instruction follows the language of the statute and, in the form given, has been approved by this court. Wilson v. State, 126 Ark. 354, and cases therein cited to the same point.
Appellant’s next contention for a reversal of the judgment is that the court erred in failing to define and submit the question to the jury of whether appellant was guilty of voluntary or involuntary manslaughter. Appellant did not request an instruction submitting the issue of manslaughter, and cannot now complain at the omission of the court to do so, Allison v. State, 74 Ark. 44; Price v. Greer, 89 Ark. 300; Bates v. Ford, 110 Ark. 567; Hayes v. State, 129 Ark. 324.
Appellant’s next contention for reversal is that the court erred in giving instruction No. 13, which is as follows:
“The court instructs you that the plea of self-defense is founded solely on the principle of necessity. Before this plea is available in this case, it must have appeared to the defendant not only that danger to him at the nands of the deceased was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm at his hands, the killing of the deceased was necessary, and not in a spirit of revenge.” Appellant’s assault on the instruction is to the word “plea” in the first part of the instruction. He argues that the word “plea” in the connection used would lead the jury to believe that the plea was interposed by appellant because it was necessary for him to do so'. It is apparent that the word “plea” was used in the sense of “right.” We do not think the jury should have been misled by this slight error in phraseology. If appellant thought so, he should have made a specific objection, calling the attention of the trial court to the defect. Rock Island Plow Co. v. Rankin Bros. & Winn, 89 Ark. 24; Williams Cooperage Co. v. Clark, 105 Ark. 157.
Appellant’s last contention for reversal is that the court erred in admitting his acts and statements on the show-ground. These acts and statements being done and made out of the presence and hearing of the deceased, not being directed toward or about him, were dissassoeiated from the crime. The court should have excluded the testimony relating to them. If they stood alone in the case, the admission of them in evidence would have constituted reversible error. Deal v. State, 82 Ark. 58; Washington v. State, 83 Ark. 268. Competent testimony of the same character, however, was introduced in the case. Appellant’s conduct and statements in the drugstore, immediately preceding the killing, were, in tenor and effect, the same as his statements and conduct on the showground. Appellant’s statements and conduct in the drugstore were a part of the res gestae,- and for that reason were admissible in evidence. Additional evidence of the same nature as that properly introduced could not' have resulted in prejudice to appellant. It is true this-additional evidence might have tended to show deliberation, and would have been prejudicial to the rights of appellant had he been convicted of murder in the first degree. Deliberation not being an essential element in murder in the second degree, of which appellant was convicted, no prejudice could have resulted to him on this account.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellant instituted an actión in the circuit court of Yell County (Dardanelle district) against his tenant, A. S. Haney, to recover the sum of $1,100, alleged to lie due as rent of land, and caused to be issued and delivered to appellee, as sheriff; of the county, a writ of attachment commanding him to attach and safely keep all of the crops of cotton, corn and other products grown on the farm by defendant Haney.
Appellee, through his deputy, Elmer Warren, proceeded to levy the attachment, and took into his possession one hundred bushels of corn and made a return on the writ showing that he had levied upon the crop as therein commanded. Neither the writ of attachment nor the return thereon specified the number of bushels of corn to be taken, or which the sheriff took, under the writ.
No objection was made to the officer’s return until after judgment in the action was rendered in appellant’s favor against defendant Haney, and then appellant filed a petition for mandamus, alleging that the sheriff had only taken one hundred bushels of corn, when, in truth and fact, there were two hundred and fifteen bushels of the corn, and praying that the sheriff be compelled to take the balance of the corn into his possession and sell it.
There was a trial before the court of the issues presented by the petition, and oral testimony was adduced, and the court found the issues in favor of appellee, the sheriff, as against appellant’s petition. Appellant introduced testimony ' tending to show that at the time the attachment was issued and levied by the sheriff the quantity of corn raised by the tenant and in his possession was two hundred and fifteen bushels, but that the sheriff had only' levied on one hundred bushels, and refused to levy bn any more. The testimony introduced by appellant also, tended to show that he did not consent In any way for the sheriff to levy on any less quantity .than the full amount in the tenant’s possession.
On the other hand, Warren, who levied the writ of attachment, testified that when he received the writ he went out to see the appellant and requested him to go along and point out the property to be taken, but that appellant declined to go and stated that Haney would point out the “stuff” to be levied on. The witness testified that when he reached the farm where Haney lived the latter staied that he had only sixty-five or seventy bushels of corn on which appellant had a claim, but that he was willing to turn over one hundred bushels, and did turn over that quantity; that witness reported this to appellant, and that appellant made no objection to the levy. Witness stated that his understanding from appellant was that the levy was satisfactory, and that no objection was made until after the judgment was rendered in the suit against Haney. The witness was asked, on cross-examination, if appellant and his attorney did not insist from the very start that the witness had not levied on all the corn and that he should go back and make another levy, but the witness positively denied that there was any such insistence on the part of appellant or his attorney.
Haney also testified as a witness and stated that at the time of the levy he had left only about sixty-five or seventy bushels of the corn against which appellant had a rent lien, and that he turned over one hundred bushels in order to obviate a controversy.
- ' Pretermitting a discussion of the question whether or not appellant has adopted the proper remedy, it is sufficient to say that the issue of fact tendered by appellant was heard by the court upon oral testimony and that it was conflicting, and it was sufficient to sustain the finding of the court. If appellant consented to the levy made by the sheriff and Reported in his return, and made on objections thereto until after final judgment in the cause, he would not be heard to complain that the sheriff had made an insufficient levy.
According to appellant’s own testimony, he knew before the trial of the main cause that, notwithstanding the return of the sheriff had not specified any particular quantity, only one hundred bushels of corn had been taken, and if he considered that this was an insufficient levy he could have made a seasonable attack upon it. And if, as stated by the witness Warren, he consented to the compromise involved in the levy of the writ,' he could not thereafter repudiate it and insist on another levy of the same writ for an additional quantity of corn.
According to Warren’s testimony, there was an execution issued on the judgment after it was rendered, and appellant placed the writ in his hands, but later directed him not to serve it, for the reason that defend: ant Haney would schedule his property as exempt.
As before stated, the issue of fact has been decided against appellant, and we think the decision is based upon sufficient evidence.
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Humphreys, J.
This is an appeal from a judgment of the Chicot Chancery Court dismissing appellant’s bill, attacking the constitutionality of the act and the amendment thereto creating the Dermott-Collins Road Improvement District and the validity of the assessment of benefits as a whole against the property. The district was created by act 240 of the Extraordinary Session of the General Assembly of 1920, and amended by act 186 of the Special Acts of the General Assembly of 1921. The bill was filed pursuant to section 11 of said act, according property owners in the district the right to contest the validity of the assessments of benefits, within thirty days after written protests against them should be overruled 'by the •commissioners.
The constitutionality of the act, as amended, is assailed upon two alleged grounds: first, that the act confers legislative powers upon the commissioners; second, that the act is discriminatory.
(1) In section 9 of the act authority was conferred upon the commissioners, by and with the consent of the county court, to extend the boundaries so as to include additional lands which they might decide would be benefited by the improvement. Appellants contend that the right to extend the boundaries was a delegation of legislative authority to the commissioners. We do not think so. The power conferred was ministerial, and to be exercised only upon ascertainment that adjoining lands to the district, as created, would be benefited. The legislative function of creating the district was performed by the Legislature itself.
(2) . It is asserted that the act is discriminatory and void because lands lying within five miles north and south of the improved road in" Collins are embraced within the district, whereas lands of the same character lying west of the corporate limits of Collins and adjacent to the road are not included. The western boundary of Collins is the terminus of the road. Improved roads must have termini. The failure to include the lands west of Collins may have been due to the fact that they would likely be included in another district on toward Monticello. A legislative finding of what lands will be benefited by a contemplated improvement is binding upon courts, except for arbitrary or obvious and demonstrable mistakes, appearing in the face of the act creating the district, or on account of something of which courts will take judicial knowledge. Cumnock v. Alexander, 139 Ark. 153; Hill v. Echols, 140 Ark. 474.
The validity of the assessment of benefits is assailed upon many grounds. The zone system was adopted as a basis to govern in assessing benefits against rural lands throughout the district. This is made the first ground oí attack on the assessment. The zone system has been approved by this court as a proper method for determining benefits to lands embraced within an improvement district, provided that the commissioners of the district, after considering all the elements affecting the benefits, conclude that the benefits to the respective tracts of land may be arrived at in that manner. Bd. of Imp. v. S. W. Gas & Elec. Co., 121 Ark. 105; Mo. Pac. R. Co. v. Conway County Bridge Dist., 134 Ark. 292; Wilkinson v. Imp. Dist., 141 Ark. 164; Oates v. Cypress Creek Drainage Dist., 135 Ark. 155; Rogers v. Highway Dist., 139 Ark. 322; Desha Road Imp. Dist. No. 2 v. Stroud, 153 Ark. 587; Reisinger v. Improvement Dist., 143 Ark. 341. Appellants contend that the commissioners in the instant case arbitrarily or blindly adopted the system without taking into consideration the character and value of the respective tracts of land, their comparative fertility, the improvements located thereon, their proximity to towns or railroads, etc. We do not so interpret the testimony. After a careful reading thereof, our conclusion is that the commissioners, after a consideration of all the elements affecting the benefits, by a majority of four to one concluded that the zone system would work out a fair, just and correct assessment of benefits against the separate tracts of land. It is true the commissioners testified that in making the assessment they did not take into consideration the value and character of the lands, or whether located in close proximity to towns or railroads, the only thing considered being the distance of respective tracts of land from the road to be improved; that they assessed eleven dollars an acre against all lands within one mile of the road; eight dollars per acre against those from one to two miles; six dollars per acre against those from two to three miles; four dollars per acre against those from three to four miles; and two dollars per acre against those from four to five miles away from the road. This testimony had relation to making the assessment of benefits against each tract of land and not to the basis adopted for making the assessment, as indicated by the following question propounded to C. R. Bates, one of the commissioners: “Was any variation made in the assessment of benefits on account of existing fences, barns, or houses located on lands within the same zone in the district, or other improvements'?” and also indicated by his statement, that they tried to take everything into consideration tending to affect the assessment, and that the zone system was a fair and equitable manner by which to assess the benefits, and as further indicated by the explanation of Dr. J. A. Thompson and Walter Porter, two of the commissioners, that they made no difference between unimproved and improved land, because unimproved land had timber on it which became more accessible on account of the road, and because one acre of new-ground was worth two of old land.
Appellants next contend that the benefits to improvements upon certain of the lands was not assessed. We do not so interpret the evidence. Everything that would be benefited on account of the improvements was considered by the commissioners in adopting the zone system. The adoption of the zone system eliminated the necessity of further consideration of improvements, values or other elements affecting the benefits, except the distance of the respective tracts of land from the road.
Appellants next contend the classification of the property adopted by the board for the assessment of benefits was discriminatory against the various property owners. They adopted an acreage basis for rural property, a valuation basis- for city property, and a mileage basis for railroads, telegraph, and telephone. A classification of the various kinds of property as a basis upon which to assess benefits has been approved by this court as feasible and practical. Oates v. Cypress Creek Drainage Dist., 135 Ark. 155.
Appellants’ next contention is, that the assessment of benefits is illegal because confiscatory of the land. The testimony is in sharp conflict upon this point. ■ That introduced by appellants is in the nature of opinions based upon the low price of farm products and that an additional tax will decrease rather than enhance the value of the property. That introduced by appellees is also in the nature of opinions based upon increased accessibility to the lands, convenience of travel, added marketing facilities, and enhancement in value of lands on account of the construction of a good road. The record reflects that the old road is almost impassable a great part of the year. After a careful review of the testimony we cannot say that the finding of the chancellor, adverse to the contention of appellants, is contrary to the weight of the evidence. The assessed benefits against the rural property, according .to the zone within which it lies, ranges from twenty to fifty cents an acre per year, which, within itself, is not large enough to say the assessment is a confiscatory burden laid upon the land.
Appellants next contend that the assessment of benefits is void because, it is said, a preponderance of the evidence shows that the estimated cost of the improvements exceed the total benefits to the land.. The estimated cost of the improvement is about $200,000. The benefits assessed against the lands are about $400,000. A majority of the commissioners and certain landowners in the district are of the opinion that the land will be benefited to the full extent of the assessments on account of the improvement. In the opinion of a number of landowners the value of the lands will be decreased instead of increased by the construction of the road. Each witness has assigned reasons for the opinion held by him. For example, some say that a good road will not enhance the value of land near it because it does not increase its productive qualities, whereas others say that it does, because it renders the land more accessible and increases the opportunities for marketing the products on cultivated lands, and the opportunity to sell the timber on wild lands. After a full consideration of the opinions of the several witnesses, and the reason assigned by each in support thereof, we have concluded the finding' of the chancellor, adverse to appellants’ contention, is not contrary to a preponderance of the evidence.
Appellants’ next contention is, that the assessment of benefits is void because levied by an illegal board. This contention is based upon the fact that C. R. Bates, a commissioner who resided in Drew 'County when the district was created, removed to a point within the district in Chicot County, before the assessment of benefits was made. It is undisputed that he acted with the other commissioners in making the assessment. No proceeding was brought to oust him. He acted either in .the capacity of a de jure or de facto officer, and in either event his acts would be binding.
Appellants next contend that the assessment of benefits is based upon an invalid route and void, assigning three reasons in support of the contention. The first reason given is that the board, with the approval of the county court, changed the route in the incorporated town of Collins so as to pass over private property not designated as streets by the town council. It is contended that the county court had no jurisdiction to open a highway through private property within incorporated towns and cities. That the exclusive power to open streets and alleys is vested by § 7568, C. & M. Digest, in towns and cities. It is true such power was granted to incorporated towns and cities-by the section in question, but by doing so the Legislature did not. lose its authority to withdraw such power and vest it in another agency. The act creating the district made the western corporate line of Collins a terminus of the road, and conferred power upon the county court to change the route. The Legislature could have selected any route it pleased through the town of Collins for the highway, notwithstanding its prior delegation of exclusive power to towns and cities to open streets and alleys within the corporate limits, and by virtue of such reserved authority could have selected another agency to do so.
The second reason given is, that the route was changed so as to take private property for the roadbed without giving notice to the owners of the property, in the manner provided by § 8 of the act. It is shown that this was done without notice. The notice provided by this section is not a jurisdictional requirement or prerequisite to changing the route. It is simply a method provided for ascertaining and establishing the damages accruing to a property owner, whose private property is taken for public use. The effect of the failure to give the notice is to postpone the ascertainment of the damages until the property is actually taken, and could in no wise affect the validity of the assessment of benefits.
The third reason given is, that the route has been materially changed. Without deciding, but conceding this to be so, it does not invalidate the assessment of benefits. Section 1 of the act creating the district in express terms authorizes the county court to change the route. The rule contended for, that only immaterial changes can be made in the route, is applicable to districts organized under the Alexander law, or special acts in which authority was not conferred on any agency to make a change in the route. The rule is applicable under the Alexander law because the property owners in a contemplated district have a right to know the route in advance, so they may intelligently decide whether they want to organize the district. The Legislature has authority to ■create an improvement district based upon the benefits to the lands included therein, and to designate the route, or select an agency to do so, without the consent of the property owners. Having such authority, it naturally follows that it may authorize an agency to make a material change in the designated route.
Appellants next contend that it was necessary, under § 36 of the act creating the district, to hold another election after the route was changed, which automatically changed the boundaries of the district, to put the act into' effect. The record reflects that an election was held pur suant to the provisions of § 36, in which the act was adopted by a vote of 501 for and 22 against. At the time of the adoption of the aot it contained >a provision authorizing the county court to change the route. The act contained no provision for another election in case the route was changed. The act went into effect when voted upon, subject to any change the county court might thereafter make in the route. This was clearly the intention of the act, else provision would have been made for another election.
The last contention for appellants is, that the assessment for benefits is void because made to embrace bridges across Cut-Off Creek and Bayou Bartholomew. These are not navigable streams, and the plans provide for wooden bridges to be constructed over them at an estimated cost of between $10,000 and $12,000. The estimated cost of the bridges is small in comparison with the estimated cost of the entire improvement. The commissioners are authorized under § 3 of the act to construct necessary bridges. This means, of course, bridges incident to the main improvement, and not bridges of such magnitude that themselves would constitute independent improvements. We do not think the character of bridges to be constructed over these non-navigable streams, or their estimated cost, stamp them as independent improvements. They are incidental and necessary to the construction of the road. In other words, they are component parts of one improvement.
The decree is affirmed. | [
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McCulloch, E. J.
There were two indictments against appellant, one in which he was charged with the offense of keeping in his possession an unregistered still, and the other in which he was charged with the offense of selling intoxicating liquors. The two cases were tried together with his consent, and a verdict' establishing his guilt was rendered on each charge. He filed a motion to quash each of the indictments on the ground that there was collusion between the prosecuting attorney, the clerk of the court and the sheriff, to surreptitiously drop the names of two of the alternates on the grand jury list and to cause to be summoned in their stead two other persons whose names were suggested by the prosecuting attorney, and who were summoned by the sheriff and placed on the grand jury.
The court overruled the motion to quash, and this feature of the case is the only ground on which a reversal of the two judgments is sought.
The issue of fact presented in the motion was heard by the court upon conflicting oral testimony, and the finding of the court is therefore conclusive on this appeal.
Appellant introduced testimony tending to show that the clerk did not -call two of the names on the alternate list of grand jurors, that one of the persons named was in the court room at the time, and that when it appeared to the court that there were two of the alternates absent the sheriff was directed to summon two more for jury ■ service, that he summoned two men whose names were handed him by the clerk, and that they were the names that had been previously suggested by the prosecuting attorney.
There was evidence tending to prove, however, that the clerk called the names of the two omitted veniremen, and that when they failed to respond two others were regularly summoned in their stead. In other words, there was evidence tending to show that the charges made in the motion to quash the indictments were unfounded.
The court record of the formation of the grand jury recites that the two names omitted were called, that the men failed to answer, and that the sheriff, under the direction of the court, summoned two bystanders, who were accepted by the court, and that the jury was thus regularly impaneled. The record does not recite that the two absent jurors were excused by the court, or that process was ordered for them, but that was not essential to a substitution of bystanders summoned by the sheriff under direction of the court. The court was not bound to exhaust its process against the absent jurors before completing the list of the grand jury.
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McCulloch,, C. J.
Appellants, Pay Clift and Brino Cannon, were separately indicted, tried and convicted of the crime of carnal abuse, and their appeals, of course, were separately prosecuted, but the cases against them are so similar in detail that useless repetition will be avoided by disposing of both cases in one opinion.
The two girls with whom the alleged intercourse was had by the two appellants, respectively, were “chums” and resided in the city of Mena, where each of the appellants also resided. Dessie Hall, the girl with whom Clift is charged to have had unlawful intercourse, was fifteen years old at the time the offense was committed, ami Bernice Goodwin, the other girl, with whom Cannon-is alleged to have had intercourse, was thirteen years old at the time.
According to the testimony adduced by the State, the two offenses occurred on a certain night in December, 1921. Both of the girls testified in each case, and by their testimony it was shown that the two appellants induced them to go riding in an automobile on the night in question and drove out a few miles from Mena; that after halting the oar near the road each couple went a short distance into the woods, and that intercourse between each of the two couples occurred at that time and under those circumstances.
There is a striking similarity between the testimony of the two girls with .respect to the circumstances under which the intercourse took place. The car was driven by Clift, and Dessie Hall sat with him on the front seat, while Cannon and Bernice Goodwin sat on the rear seat. Each couple, according to the testimony of the two girls, got out of the car and went into the edge of the woods, in different directions, and after staying out there a short time they returned to the car without having had sexual intercourse; a few moments, after returning to the car and getting into it, each of 'the men took hold of one of the girl’s hands'and drew her out of the car,, and they again went to the woods together and had sexual intercourse, each of the young men placing his coat on the ground for the girls to lie on.
' The details of the act of intercourse were so strikingly similar that in the trial of the case below counsel for the appellants emphasized this fact as affecting the credibility of the two girls as witnesses.
Each of the appellants testified in both cases, and they not only denied that they had had sexual intercourse with the girls at any time, but denied that they had ever ridden with them in an automobile. ' There was a sharp conflict-in the testimony, and there was other testimony of more or less force introduced in the case.
The State introduced a witness in the Cannon case who testified that Cannon admitted that he had had intercourse with Bernice Goodwin.
In*the Clift case there (were numerous assignments of error with respect to the rulings of the court in limiting the cross-examination of the prosecuting witness. Appellant proposed to ask the witness what she had in mind, or expected would occur, when Clift spread his coat out on the ground, and the court stopped the cross-ex amination. without permitting her to answer the question. Another instance is where counsel on cross-examination of the prosecuting witness proposed to ask the witness concerning the circumstances under which she told her mother about Clift having sexual intercourse with her.
It appears from the record that the court allowed great latitude to counsel on both sides in the cross-examination of the witnesses; that each of the girls told all about the circumstances under which the acts of intercourse occurred, and it was unnecessary to propound to Dessie Hall the question as to what she expected would occur when the accused spread his coat on the ground. It appears from the record that Clift’s counsel was permitted to ask the girl all about the circumstances under which she told her mother of the incident, and why she told her. •
Another instance which is the basis of' an assignment is that in the cross-examination of Bernice Goodwin in the Clift case there was an offer to ask her the number of trips made in automobiles with the appellants when Olift and Dessie Hall were participants.
We fail to discover a single instance in the record of the court having abused its discretion in placing the cross-examination under due limits.
Another assignment of error in the Clift case is based upon the ruling of the court in permitting the prosecuting witness to state that the first intimation that her mother received concerning the alleged sexual intercourse between her and Clift was received from Clift’s wife. It is contended that tins was hearsay testimony and was incompetent. Dessie Hall testified at the instance of the State, and told about the act of intercourse with Olift and the circumstances under which it was accomplished. On cross-examination Clift’s counsel asked the girl whom she first told about having had intercourse with Clift, and she replied that she had first told her mother. 'Counsel then asked her whether she told he^ mother voluntarily or her mother asked her about it, ar»^ she replied that she gave her mother the information concerning the intercourse at her mother’s request. 'Counsel then asked the witness if she had ever told anybody about it before her mother asked about it, and she replied that she had not, and did not intend to tell anybody about it until her mother interrogated her about it.
The purpose of counsel evidently was to discredit the witness by showing on cross-examination that she had never divulged to any one the fact of Clift having had intercourse with her, and that her mother had asked her about it without her first having told it.
Dessie Hall was recalled by the State for further redirect examination, and was asked to state how her mother received information as to the act of intercourse between the witness and Clift,‘and she replied that her mother had first received information concerning it from Clift’s wife. There was no effort made to prove what Clift’s wife said to the mother of the prosecuting witness, and of course it would have been incompetent as mere hearsay to prove any such statement, but since appellant’s counsel, in an effort to discredit the girl, had called in question the consistency of her statements in regard to her conversation with her mother in which she imparted the information, the. State had a right to have the witness clear herself of the apparent inconsistent statement by showing where her mother had first got the information which induced her to ask the girl concerning the intercourse between her and Clift. Appellant would have been entitled to a direction from the court to the jury telling them not to consider any statement made by Clift’s wife as substantive proof in the case in regard to whether or not the offense had been committed; but it was not improper to allow the witness to explain the reason why her mother had' asked her about it and the source from which the first information had come to her mother concerning the incident.
Objections were made to certain questions propounded to Brino Cannon as a witness in the Clift case, and the rulings of the court are assigned here as error.
Cannon was introduced as a witness by. Clift, and he denied that he had ridden in a ear with Clift and the girls. This testimony was, of course, in direct contradiction of the testimony of each of the girls. The State then, on cross-examination, asked Cannon questions about his relationship with Bernice Goodwin, and also asked him if he had not made certain admissions to one Lace-field to the effect that he had had intercourse with Bernice Goodwin. To each of the inquiries Cannon entered a denial, and said that he had never had intercourse with Bernice Goodwin, and that he had never ridden with her .in a car. Even if the questions were improper, there was no prejudice, because the witness answered in the negative. We are of the opinion, however, that under the circumstances it was competent for the State to cross-examine the witness with reference to his relations with Bernice Goodwin and his admissions concerning the same. He had testified as a witness for Clift directly contradicting the girls, and it was competent to ask him about his relations with Bernice Goodwin as throwing light on the truth of the statement of the girls that they had ridden in a car together on the occasion named and had indulged in sexual intercourse. It was also competent as affecting Cannon’s credibility, and we think there was no error committed in this regard.
The State, in cross-examining Cannon, also asked him the question whether or not he had said, on a certain occasion when he was on the train en route to Heavener, Oklahoma, that “Bernice Goodwin was at Heavener, that she was a fine girl, and that he expected to have a good time.” He denied that he had made any such statement, and the State called Lacefield as a witness, who testified that Cannon made that statement to him.
Conceding that it was improper to contradict Cannon concerning his statement as to a collateral matter, we do not think there could have been any prejudice resulting from the testimony of the witness. The alleged statement concerning the girl was too indefinite to show that there was any improper relation between the parties.
The only other assignment of error in the Clift case relates to the action of the court in striking out certain parts of appellant’s requested instructions on the subject of reasonable doubt. Conceding that the portions stricken out were correct statements of the law, the instructions were complete without those statements, and there was no error in the modifications.
In the Cannon case there were assignments of error similar to those in the Clift case with respect to limitation placed upon the cross-examination of Dessie Hall by counsel for the accused, but what we have said in respect to the other case is sufficient to dispose of those assignments.
The indictment charges in the Cannon case that the intercourse was with a girl named Bernice Goodwin, and she was referred to by that name throughout the trial. On cross-examination of the witness'1 she stated that she was the daughter of Mrs. Goodwin by a former marriage to a man named Quinn, that her real name was Quinn, but that since her mother’s marriage with Goodwin she had generally passed under that name, and was registered at school under the name of Bernice Goodwin. It is contended now by counsel for appellants that there is a variance in the proof and the allegation.in that the indictment charges the name of the girl to be Bernice Goodwin, whereas her real name is Bernice Quinn. The proof to the effect that the girl is commonly known by the name of Bernice Goodwin does not constitute a variance from the charge in the indictment, for if she was commonly 'known by that name, it was sufficient to describe the offense by designating her under that name in the indictment. ■
Error is assigned in the ruling of the court in permitting the State to interrogate Cannon on cross-examination with reference to his having sexual intercourse with another girl under the age of consent a few years before the incident now under investigation occurred. The form of the question was as follows: “I will ask you if it isn’t true that you got into a similar scrape four years ago with a young lady by the name of Eloise Pullen?” Appellant answered as follows: “No sir; 0, yes sir; it didn’t go into court.” In the closing argument the prosecuting attorney made a statement to the effect that a man who admits having had experience with another girl was not entitled to credit as a witness, and objection was made to this argument.
It was competent for the State to propound the question for the purpose of testing the credibility of the witness, and the evasive answer given by the witness justified the prosecuting attorney in commenting upon it in the argument.
The State was permitted, over appellant’s objection, to prove by a witness, Ode Bates by name, that on a certain occasion, not far removed in point of time from the date of the charge in the present case, the witness went automobile riding in a car with Dessie Hall, and that Cannon and Bernice Goodwin were also in the car. The witness testified that they drove out on one of the .public roads out of Mena one night, but that nothing unusual occurred on the trip. Cannon denied that he ever rode in a car with Bernice Goodwin, and the testimony of Bates was competent, not only for the purpose of contradicting Cannon, but as substantive proof of the relations between Cannon and Bernice Goodwin as an independent fact tending to show whether or not they had had sexual intercourse.
There are other assignments of error concerning the cross-examination of Cannon,' and also testimony introduced to impeach him by proving contradictory statements. It is sufficient to say generally, in answer to the contention of counsel, that it was competent to inquire of the accused about every matter affecting his credibility, or concerning the relationship between him and the prosecuting witness, Bernice Goodwin, and it was also competent to prove by other witnesses any -fact or circumstance which threw light on the latter question.
After 'Careful consideration of the record in each of the cases, we have reached the conclusión that there was no prejudicial error, and the judgment in each case is therefore affirmed. | [
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Wood, J.
This is an appeal from a judgment of conviction under an indictment which charged that appellant “did unlawfully and feloniously sell and was unlawfully and feloniously interested in the selling of alcoholic, vinous, malt, spirituous, and fermented liquors.”
George Hoff er, a witness on behalf of the State, testified that in the winter of 1921 he bought a quart of liquor of the appellant in Coining, Clay County, Arkansas, for-which he paid the sum of $3. On cross examination the witness stated that the grand jury asked him if he had' bought any whiskey from the appellant, and he answered that he had not. He further stated that the grand jury told witness that witness’ mother had told them all about it, and that if witness did not tell they’ would put her in jail for perjury. Witness wanted to save her, and had to tell on somebody in order to avoid trouble. Witness was asked if, while he was working at a certain. hotel, he did not steal Mr. Buzbee’s clothes, and answered that the took them.
The appellant, in his own behalf, testified that he had not sold any whiskey to any one and positively denied the testimony of the witness for the State. Several witnesses testified that the general reputation of the witness for the State for truth and morality in the community where he lived was bad.
One of the witnesses for the appellant, on cross-examination, was asked whether or not he knew the general reputation of Bob Gibbs for truth and morality in the community where he lived, and he answered, “Well, there is parts of it that is bad. ’ ’ Appellant duly objected to the question and answer thereto. His objection was overruled by the court, to which ruling appellant duly saved his exceptions.
Among other instructions, the court gave the following:
“8. Certain evidence has been introduced of witnesses examined as to the general reputation of the witness Iioffer and of the defendant himself. This evidence, of course, is not conclusive on the question of whether or not the witnesses swore the truth, but affects their credibility as witnesses, and it is a question for you to determine as to what extent the credibility of such witnesses is affected by such evidence.”
1. Appellant contends that there was no testimony to sustain the verdict, for the reason that Hoffer, the only witness for the State, confessed on his cross-examination that he was a liar and a thief. The jury were the sole judges of the evidence and of the credibility of the witnesses. Noth withstanding his impeachment for truth and morality, it was nevertheless for the jury to say whether or not they would believe and accept his testimony. There was testimony to sustain the verdict that the appellant sold whiskey as charged, and the same is conclusive here.
2. The appellant next contends that the testimony tending to impeach his general reputation for truth.and morality was incompetent. When the appellant testified in his own behalf, he became subject to impeachment in the same manner that any other witness could be impeached.
The court, in its instruction No. 8, expressly told the jury that the testimony as to the general reputation of appellant affected his credibility as a witness. Thus the instruction of the court was tantamount to telling the jury that they could only consider such testimony for that purpose. The testimony as thus limited was competent. Younger v. State, 100 Ark. 321; Paxton v. State, 108 Ark. 316; See, also, Cook v. State, 109 Ark. 384; Turner v. State, 128 Ark. 565; Smedley v. State, 130 Ark. 150; Connor v. State, 132 Ark. 534; Kelly v. State, 133 Ark. 262; Pearrow v. State, 146 Ark. 201.
3. Instruction No. 8 does not, as learned counsel for appellant contends, invade the province of the jury. It simply told the jury that the evidence as to the general reputation of Holier and the appellant affected their credibility as witnesses and left the jury to determine to what extent their credibility as witnesses was affected by such testimony. The effect of the instruction was to tell the jury that they were the sole judges of the credibility of these witnesses and the weight to be given their testimony. The instruction was correct.
The record presents no error in the rulings of the trial court. The judgment is therefore affirmed. | [
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Wood, J.
On the petition of the appellant, the chancery court of Cleburne County issued a writ of habeas corpus directed against the appellees, to determine whether or not they were entitled to the custody of Cessal Johnson, the infant son of appellant. At the hearing of-the writ the appellant, in his own behalf, testified that he was father of the infant, who was about fourteen months old. He stated that he had 120. acres of land and a good team of mules, a wagon, a buggy, two -cows, chickens and hogs, and that he was abundantly able to maintain his child. When his wife died on October 6,1921, the child was sick, and his mother-in-law, Mrs. Vena Borders, wanted to take the child to her home, and the appellant allowed her to do so on the 11th day of October, and the child had been sick ever since.' On the 27th of October the appellant went by to see the baby and bring it home if it were well. They told him it was well, but refused to let him take it home, and they had continued to refuse, and he sought to obtain possession of the child through this writ of habeas corpus. He testified that he had affection for his child and wanted to keep it, and that the child knew him and seemed greatly attached to him. His testimony tended to prove that he let Mrs. Borders, his mother-in-law, who was at his home at the time his wife died, take charge of the child; that she told him that the doctor who had been in attendance-on the 'child’s mother said that the child would have to have a trained nurse or she would have to take it, and appellant told her that she could keep it and care for it herself. Appellant believed that she would take good care of the baby, and she asked appellant to come to see it at any time, and told him to go home with her and stay with the baby, and appellant told her that he- could not do so. His testimony further showed that when he went to get the child, B. B. Borders, the child’s grandfather, met appellant at the gate and abused him, called him “hard names,” and assaulted him and did not permit him to go in and see the baby, and he had to leave without getting the child. He further' stated that if the court awarded him the custody of his child he would give it medical treatment, should it become ill. He stated that he was a member of the Church of God; that he believed in divine healing. He also believed in doctors, and stated that doctors were all right, but he believed that the Lord could heal, too, if any one has faith enough to trust Him. He stated that all his people believed the same way. At that time he was living at the home of his father. His mother and sister would assist him in taking care of the baby.
Appellant’s sister corroborated the testimony of appellant to the effect that B. B. Borders called appellant bad names and assaulted him when he went to get the baby, and would not allow him to see or take the baby. Her testimony, and the testimony of appellant’s mother, corroborated his testimony to the effect that lie was well able financially to take care of the child, and that if the custody of the child were awarded to the appellant they would look after it, care for it, and assist in giving it medicine if it needed it.
The testimony of all these witnesses was to the effect that appellant did not refuse to have a doctor for his wife in her last illness, and that he did not refuse to give her medicine, but that on the contrary he had the doctor and endeavored to get his wife to take the medicine left by the doctor for her, which she finally refused to take. Their testimony tended to prove that they were members of the Church of God; that they believed in divine healing in a way. Mrs. Johnson, appellant’s mother, testified that she gave her own children medicine, and that she was filling to give Prank’s baby a mother’s attention if she were awarded its custody.
There was testimony on behalf of the appellant tending to prove that he bore a good reputation for honesty and morality. There was also testimony to the effect that the Borders regularly attended the meetings of the Church of God, and that B. B. Borders would speak in these meetings and ask the prayers of the people. There was some testimony to the effect that Borders acknowledged, in one of these meetings, that he had family troubles; that it was the wrong way to live, and asked the members of the congregation to pray for him. It was in evidence on behalf of the appellant that there was no tenet-of the religion of the Church of God that prohibited its members from getting a do'ctor or using medicine.
On the other hand, the testimony on behalf of the appellees tended. to prove that the appellees did not let the appellant take the child in controversy for the reason that he had refused to give his wife the proper medical attention during her last illness, and they were apprehensive that he would, on account of his religious fanaticism, fail to give the baby the proper -medical attention should it become ill. The testimony on behalf of the appellees tended to show that the appellant stated, in the presence of the doctor, during the last illness of his wife, that she did not need any medicine, and that the appellant’s mother, who was in attendance at the bedside, also stated that the patient didn’t need any medicine, and other people also who were there stated that the appellant had complied with the law, and they didn’t want the doctor’s medicine.
But it could serve no useful purpose to further set out in detail the testimony adduced at the hearing to support the respective contentions of the parties. It suffices to say that the testimony on behalf of the appellant tended to prove that he had not failed to give his wife the necessary medical attention during her last illness, while the testimony on behalf of the appellees tended to show that he had failed to give her such attention. It is clear from all the testimony adduced on behalf of the appellees, that they would -have been willing to allow the appellant to take and keep his child except for the reason that they were fearful that he, on account of his belief in divine healing, would not give the child the proper medical attention should it become ill.
After hearing all the testimony, the court found “that the interest of said infant child, Cessal Johnson, will be best served by remaining in the custody of respondents.” The court entered a decree allowing the appellees to retain the custody and care of the child until further orders of the court, with permission to the appellant to visit the child at the home of the respondents at all reasonable times, and retained “control of the child for such future action as may be for its best interests.” From that decree is this appeal.
Conceding that the preponderance of the evidence warrants the conclusion that appellant, during the time of his wife’s last illness, did not give her the proper medical attention, and also did not give his infant child the proper medical care immediately after the death of its mother, nevertheless we are convinced, from all the testimony of this record, that such treatment of his wife and baby at that time did not justify the chancery court in awarding the custody of the infant to the appellees, its maternal grandparents. For the undisputed evidence shows that the appellant is a inan of good character, and that he is abundantly able financially to care for his child. The appellant lived with his father. His mother and sister both testified that they would assist him in looking after the child. They would give it “a mother’s care. ’ ’
Now, while the undisputed testimony showed that appellant and his mother and sister believed in divine healing, yet the testimony also showed that no tenet of their religion required that they should not have a doctor or take medicine in cases of illness. On the contrary, they all testified that the children of Mrs. Johnson took medicine when they needed it, and they further testified that, if the child were brought to their home and should become ill, they' would at once give it medicine. Mrs. .Johnson had seven living children and had lost one, and she stated that she gave her 'children medicine when they got sick and needed it. It therefore appears that, notwithstanding their 'belief in divine healing, the appellant and his mother and sister, who were to stand in the place of a mother to this infant, asserted that there was nothing in their religion to deter them from giving the child medical attention, should it become ill, and that they would give it such treatment.' Under this testimony, if the father should be denied the custody of his child, it would be purely, because of his religious belief and the apprehension that because of such belief the child would not have the proper care and attention during any illness that might befall it. But the learned trial court was not justified in indulging such' apprehension, in view of the testimony of appellant and his mother and sister that their religious belief would not stand in the way of medical aid for the child should it become necessary.
In Lipsey v. Battle, 80 Ark. 287, we said: “The courts may remove the child from the custody of its parents, but this should only be done when it is plainly necessary to secure the present'and future well-being of the infant.” And in Verser v. Ford, 37 Ark. 30, we said: “As between the father, too, and the mother, or any other near relation of the infant where sympathies on either side of the tenderest nature may be relied on with confidence, the father is generally to be preferred. ’ ’ See, also, Wofford v. Clark, 82 Ark. 461; Baker v. Durham, 95 Ark. 355.
For the error indicated, the decree is reversed and the cause will be remanded, with directions to the chancellor to enter a decree giving to the appellant the custody of his child, and also with directions to enter an order giving to the appellee the privilege at all reasonable and convenient, times to visit the child. The chancery court was correct in retaining the jurisdiction of the cause, and will still retain same, to make such orders as it may deem necessary at any time to protect and preserve the rights of the infant and the parties hereto, as above indicated. | [
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McCulloch, C. J.
The General Assembly of 1917 enacted a statute (Acts 1917, p. 1468) declaring all islands formed in the navigable rivers or other streams of the State (except such as have been formed by accretion) to be the property of the State, and providing for their sale and disposition in the manner therein specified.
The statute provides that a purchaser shall file his application and deposit the estimated amount of the cost of the survey and the price of the land at the rate of $1.25 per acre, and that, after the survey is made showing the amount of acreage and the cost of survey, the Commissioner of State Lands shall execute a deed to the applicant.
Appellees applied, in conformity with the statute, for the purchase of a small island in Arkansas River, and deposited the estimated cost of the survey, and this action involves a controversy between appellees and, the. State. Land. Commissioner with, respect, to the amount q£ price to be paid, tbe contention of tbe Commissioner being that the price of the land has been increased by a later amendment to the statute. Crawford & Moses’ Digest, § 6796 et seq.
This statute has been referred to in former decisions of this court (Underdown v. Desha, 142 Ark. 258; Ferguson v. Hudson, 143 Ark. 187), but nothing in those decisions reaches to the point involved in the present case.
The Attorney General, in support of his contention, relies upon the act of March 22, 1919 (Acts of 1919, vol. 1, p. 256, Crawford & Moses’ Digest, sec. 9009), as amended by act No. 350 of the sessions of 1921. The last mentioned statute provides, in substance, that funds derived from the sale of State lands, ‘ ‘ including lands forfeited to the State for taxes and all swamp, internal improvement, seminary and saline lands,” shall be paid into the treasury of the State and used, first, in refunding sums paid by purchasers for swamp, saline, seminary or internal improvement lands of the State where title has failed, and to hold the remaining funds in trust as a permanent school fund of the State, “which shall forever remain inviolate, and may be increased but never diminished.” The statute contains the following provision with respect to the price of lands to be sold thereunder:
“No swamp, internal improvement, seminary or saline lands shall hereafter be sold for less than $2.50 per acre, and no State school land shall be sold for less than two dollars and fifty cents ($2.50) per acre, nor for less than the market value, which value shall be ascertained by appraisement; provided, however, that when any lands or interest therein may be recovered by the State by litigation, the same shall be ordered sold by the court as in sales of land upon decree in equity; and, after paying expenses, .the balance of purchase money shall be deposited in the State treasury, as hereinbefore provided. Provided, however, that nothing in this section shall be so construed as to prevent the donation of the State lands as is now or may hereafter be provided by law, and. nothing in this act shall prevent the Commissioners of State Lands from accepting outstanding refunding certificates issued, or that may be issued, by the State for lands previously sold, in payment for State lands; pro • vided, further, that nothing in this, bill shall affect the sale of any State lands where written application was filed with the Commissioner of State Lands prior to February 1, 1919. Nothing in this act shall affect the present law in regard to the sale by the State of forfeited tax lands, except as to disposition of funds derived from same. Act March 22, 1919, p. 265, sec. 1.”
The contention of the Attorney General is that the later statute, in effect, declares all lands of the State to be school lands, and fixes the price at two dollars and fifty cents per acre, and that this includes island lands authorized to be sold under the act of 1917, supra.
We are of the opinion that this contention is not tenable. The statute authorizing, the sale of island lands relates to a particular class of lands, and to no others, and definitely fixes the price and method of sale.
It is unnecessary to determine in this case whether or not the later statutes authorize the inclusion of the proceeds of sale of these lands in the school fund, but we have no hesitancy in declaring that the lands themselves are not, under the later statute, classed as school lands so as to place them under the operation of that part of the statute which fixes the minimum price' at two dollars and fifty cents per acre. There is nothing in the language of the statute to indicate that its framers had in mind lands of the class now under consideration. It may be that the framers of the statute concluded that island lands, on account of their peculiar location, were of different values than other State lands, and had no intention of fixing the price at two dollars and fifty cents per acre; or, it may be that the lawmakers overlooked that class of lands altogether, and inadvertently omitted them from the new statute. At any rate, we find nothing in the language of the later statute which would justify us in holding that there was an intention to amend the former statute by increasing the price of lands fixed by the former statute, and not referred to in the later statute. It is a familiar canon of construction that repeals or amendments by implication are not favored, hence we reach the conclusion that we would not be justified in finding that such was the intention in the present instance.
The judgment of the circuit court is therefore affirmed. | [
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McCulloch, C. J.
R. H. Davidson came to Ms death as the result of a rifle shot on May 2, 1922, while' he was on the farm where he resided, near the Milage of Buffalo, in Baxter County. Appellant was charged with murder in the killing of Davidson, and on the trial of the cause he was convicted of murder in the first degree and sentenced to death by electrocution.
The shot which killed Davidson was fired from ambush, and the killing was without justification or mitigation.
On the trial of the cause appellant’s attorney offered nothing in justification of the crime, but relied upon proof of an alibi and also proof tending to show the mental incapacity of the accused. The principal defense relied on was that of insanity.
Davidson was a farmer and had, only a few months before he was killed, moved from the State of Oklahoma to the farm at Buffalo on which he was living at the time he was killed.
On the day of the killing Davidson and his wife were out in the field planting onions, and appellant, accompanied by Jack Beavers and Albert Beavers, came to the field where the Davidsons were at work, and introduced himself in friendly terms, saying, “My name is Sease: I own a farm next to you,” and shook hands with both Davidson and his wife. This was in the afternoon, between two and three o’clock. The party adjourned to Davidson’s house, where “moonshine” whiskey was produced by Sease and all present took a drink. Appellant and his two companions had been drinking before they reached the house, and continued to drink. Jack Beavers became grossly intoxicated and went to sleep out on the porch. Appellant and Albert Beavers left the house, appellant saying at the time he was going to Mountain Home that night and would ride Jack’s horse. When they left the house, Jack Beavers was still asleep on the porch, and later in the afternoon the wife and son of Jack Beavers came to the Davidson house and aroused Jack from his slumber and carried him home. Davidson and his wife then went back to the field to work, and while engaged in work in the field the shot which caused his death was fired from ambush. Mrs. Davidson testified to the circumstances, and said that while she was working beside her husband she heard the sound of a shot and remarked that, “They are shooting more squirrels,” that her husband failed to answer, and she looked up and saw him fall, that she screamed, and her husband directed her to keep quiet. Davidson died in about three minutes after the shot was fired. Mrs. Davidson testified that the killing occurred shortly before six o ’clock in the evening.
Appellant resided at Cotter, Arkansas, in' Baxter County, and owned a small farm near the Davidson farm. Jack Beavers was his tenant, and on the day of the killing he was visiting at the house occupied by Jack Beavers. Albert Beavers, who lived in the neighborhood, came over to the house of Jack Beavers, and after dinner appellant proposed to the other men that they go over to Davidson’s, and they all three started up there. Appellant produced a half-gallon jar of whiskey, and the men began drinking, and, as before stated, continued drinking whiskey after they got to Davidson’s home.
Albert Beavers had his shotgun with him, and he testified that after he and appellant left Davidson’s house and separated at the lower end of the field, appellant walked back a few steps and asked to borrow witness’ gun, saying to the witness, “Let me have it; I’m going to kill Davidson,” and that appellant also stated, with an oath, that he knew where he could get a gun, and went on towards the home of Jack Beavers.
It appears from the testimony that appellant had a Winchester rifle, which he had kept at the Beavers’ home for several weeks, and, according to the testimony of the wife and son of Jack Beavers, appellant came back to Beavers’ home between four and five o’clock; qnd asked for his shells and gun, stating to Mrs. 'Beavers that Davidson was a “spotter”, and that he was mad at Davidson and was going to kill him. Appellant had been arrested for making or selling liquor. Mrs. Beavers testified that she pleaded with appellant to desist from committing the act of violence, but that appellant left with his gun, and that after she had gone up to the Davidsons’ home and gotten her drunken husband away from there, appellant returned from the direction of the place where the shot was fired, and said that he had “got Mm,” and that he had fired the shot at a distance of about 175 yards.
Jack Beavers testified that he lost consciousness when he became grossly intoxicated at the home of David-sons and did not remember anything distinctly until during the night — about two or three o’clock in the morning — when appellant returned to the home of witness and awakened him and stated that he had killed Davidson — ■ that he had shot him with a Winchester. This witness related the full statement of appellant, in which he detailed the circumstances under which he fired the shot, and stated that he did not have any cause for killing Davidson.
There was other testimony tending to prove the statements of appellant, which amounted to confessions that he had killed Davidson. The bullet extracted from Davidson’s body was the same kind and size as that used in appellant’s gun.
Appellant introduced the testimony of several witnesses tending to show that at the time Mrs. Davidson said that the shot was fired he was at another place, considerably distant from the scene of the killing.
Other witnesses were introduced tending to show that appellant had, for a number of years, been weak-minded. The lady with whom appellant roomed in Cotter testified that she had known him for about nine years, and that during recent years his mind had become affected to the extent that he could not converse intelligently or in a connected way, could not hold to the subject which he was discussing, and that he looked wild out of his eyes, and seemed to be restless.
Other witnesses who knew appellant in Cotter testified to about the same effect1 as Mrs. King. Other witnesses testified that he could not converse intelligently and that his conversation at times was silly. Others testified that he often spoke about the house being on fire, and sometimes would plead with those in the house to close the door, saying that somebody was coming in. Another witness testified that on a certain occasion he walked down the road with appellant, and that appellant was drinking to some extent, and said he saw a black cat. Witnesses testified that when in the house he would beat the walls and cry out that the house was burning.
Appellant’s father testified that, about eight years before the killing, appellant had been thrown from a wagon while driving under the platform of a gin and sustained an injury to his back or spine, and that since that time his mental faculties had been considerably impaired. He stated that appellant could not carry on a connected conversation; that he was nervous and frequently spoke of the house being on fire,- and sometimes would ask that the door be shut, saying that, “They are coming in after me.”
The testimony showed that appellant drank whiskey to a considerable extent, and that it was generally during his spells of drinking that he showed weakness of mind to a marked extent. There was testimony, however, that this condition of mind extended beyond his periods of intoxication.
It is first contended that the judgment should be reversed for the reason that the special term of the circuit court at which appellant was indicted and convicted was not called in the manner and form prescribed by the statute, in that the order did not contain an affirmative recital that the holding of the special term would not interfere with any other court to be -held by the judge of that circuit.
The jurisdictional requirements in calling a special term are, that the person to he tried is confined in jail upon a criminal charge; that the holding of the special term shall not interfere with any otlier court to be held by the same judge; that the special term shall not be held within twenty days of a regular term of the court, and that the order calling the term of court shall be made out and signed by the judge and entered on the records of the court. Crawford & Moses’ Digest, § 2218 et seq.-
The decisions of this court on this subject are conclusive of the question of the legality of the order for the special term of the court in this instance against the contention of counsel for appellant. These decisions are reviewed in the recent case of Pool v. State, 121 Ark. 17, where we held, in substance, that the words of the statute concerning interference with any other court to be held by the same judge (Crawford & Moses’ Digest, § 2222) had reference to a regular term, and that, since the court will take judicial knowledge of the time for holding the regular terms of court, it was unnecessary that the order calling a special term should contain a recital on that subject.
We are of the opinion that the order of the court sufficiently complied with the statute in form and substanee, and that there are no grounds for declaring the special term of court invalid.
The special term was called for May 22, and the trial was begun on May 25, 1922.
Appellant was arrested immediately after the killing, and was carried to the penitentiary for safekeeping, and was kept there until he was indicted.
Counsel filed a motion for continuance, stating that appellant had for a long time been addicted to the use of intoxicants to the extent that he was suffering from alcoholism and delirium tremens, and that his mental faculties were affected, on that account, to the extent that he was incapable of knowing the difference between right and wrong, and was unable to control his actions; tha/t he desired the attendance, as witnesses, of two physicians, Doctors Murphy and Kirk, residing in Little Rock; that on account of the short lapse of time between appellant’s arrest and the date of the trial, the two physicians mentioned had not had sufficient opportunity to examine him in order to testify concerning his mental condition, and further time was asked to give the physicians an opportunity to examine appellant with reference to his mental condition. Continuance was also asked to enable appellant to procure the attendance of certain witnesses who would testify concerning his weakened condition. The court overruled this motion, and this ruling of the court is pressed upon us as grounds for reversal.
We have often said that the matter of granting or refusing a continuance is one within the discretion of the court, which will not be disturbed unless abuse is shown.
So far as concerns the procurement of the testimony of the physicians, who were wanted to testify in regard to appellant’s mental condition, it is sufficient'to say that there was no abuse of discretion by the court, for it is not shown that appellant had made any effort to have an examination by the physicians, nor is ■ any reason given why the two physicians could not have examined appellant during the time he was confined in the penitentiary at Little Rock.
All that appellant proposed to prove by the other absent witnesses was appellant’s mental condition, the same character of testimony that was adduced at the trial by other witnesses. In other words, appellant sought to procure the same character of testimony which was produced in abundance at the trial, and there was no reason why it was necessary to await the attendance of the absent witnesses when there were plenty of other witnesses who were well acquainted with appellant’s mental condition, and who could, and did, testify to the same effect as the absent witnesses would have testified if present.
Our conclusion is that there was no error in overruling the motion for continuance.
The next assignment of error is in regard to the ruling of the court in refusing to sustain appellant’s challenge to juror Minor, who stated, in substance, on his examination as to qualification, that he had an opinion, based upon newspaper reports and what a certain person had told him what some of the witnesses wlould testify, and that it would require testimony to remove this opinion, but that he would decide the case according to the law and the testimony and would not be influenced in his verdict by anything that he had heard. In other words, the statement of the juror was that he had an opinion based upon newspaper reports and hearsay, which could be removed by testimony, and that he would be controlled by the testimony in the case and not by previous reports which he had heard and read. Gibson v. State, 135 Ark. 520; West v. State, 150 Ark. 555.
The court gave, among others, the following instructions, to which exceptions were saved:
“No. 7. You are instructed that, if you find beyond a reasonable, doubt that defendant committed the crime charged, and as charged in' the indictment, the defense of insanity cannot avail the defendant, unless you believe from a preponderance of the evidence that at the time of the killing he was under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong, or if he knew the nature and quality of his act and knew that it was wrong, that he was under such duress of mental wrong, and unable, because of the disease, to resist doing the wrong act which was the result of his mental disease.
“No. 8. And you are instructed that, although you may believe beyond a reasonable doubt that defendant committed the crime charged in the indictment, yet if you believe from a preponderance of the evidence that at the time of the killing he was under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong, or if he knew the nature and quality of his act and did know that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong and unable, because of the disease, to resist doing the wrong act, which was the result solely of his mental disease, then it will be your duty to acquit him.”
The objection urged against these instructions is that they failed to incorporate the principle of law on the subject of insanity as a defense to crime that it is not essential that the accused be incapable of choosing between right and wrong generally and on all subjects other than the act which is the charge on which he is being tried. Counsel cite, in support of their contention, several recent decisions of this court. Bell v. State, 120 Ark. 530; Hankins v. State, 133 Ark. 38; Woodall v. State, 119 Ark. 33.
We do not think that either of the instructions ignored the principle stated by counsel, but that, on the contrary, the language of each of the instructions complained of sufficiently stated the principles of law, including the one referred to by counsel. Each of the instructions states the law to 'be, in substance, that if the killing occurred while the accused was under such defect of reason from disease of the mind that he did not knovi the nature and quality of the act that was being done; or, if he did know it, that he did not know that what he was doing was wrong; or, if he knew the nature and quality of the act and did know that it was wrong, that he was under such stress of mental disease as to be incapable of choosing between right and wrong and unable to resist doing the act of which he was accused, he would not be responsible.
In addition, we are of the opinion that the proof in this case did not really call for an instruction pointing out the distinction between the capacity of knowing the ■difference between right and wrong generally and with, •respect to the particular act under investigation. The •reason is that there was no proof in the present case tending to show that appellant labored under any delusion which caused him to commit the act in question. The pioof adduced tended merely to show general insanity as manifested by different acts and conduct of appellant from time to time. If there was no delusion which caused appellant to commit the act or that was in any way connected with the commission of the act, then there was no place in the case for an instruction which directed the attention of the jury particularly to the question of the capacity of.knowing the difference between right and wrong with reference to a particular act. It was sufficient to state the general principle that if the accused was incapable of choosing between right and wrong, it constituted a defense.
We are of the opinion, therefore, that the court did not err in giving the instructions, nor did it err in refusing to give the one requested by appellant on that subject, which was sufficiently covered by those that the court gave.
The giving of instruction No. 9 is assigned as error, and that instruction reads as follows:
“You are instructed that, if you find from a preponderance of the testimony that the defendant was suffering from organic brain trouble and mental diseases as defined in the foregoing instruction, then, no matter if you should conclude that such condition was produced by alcoholism, for such condition of mind is as much a defense when produced by drink as when produced by any other cause, and if you find that he was suffering from such condition to the extent set forth in said instruction, whether such condition was produced by drink or otherwise, it is your duty to acquit him. The defendant must be suffering from organic brain trouble, or a disease of the mind, and not actuated by hate, anger, or jealousy, or other passion. If, from evil associations and indulgence in vice, his conscience ceases to control or influence his actions, and he is otherwise capable of committing crime, he is responsible.”
The first paragraph of the instruction was given at the request of appellant, but the court modified the instruction by adding the last paragraph, and the objection is to that paragraph. The contention is that, according to this instruction, no matter if appellant was suffering from organic brain trouble and it had progressed to the extent that appellant could not realize the nature and quality of his act and did not know that it was wrong, this would not be a defense if there was an element of hate, anger, jealousy or other passion entering into the killing. Such is not, we think, the effect of the instruction, for, if he was actuated in committing the homicide by hate, anger, jealousy or other passion, it could not be a result of a' diseased condition of the mind. These different states of mind do not exist together, for, if a given act is committed under stress of a diseased mind, it is not actuated by the emotions of hate, anger, or jealousy. This instruction correctly told the jury, in effect, that if the act was committed as the result of suffering from organic brain trouble or disease of the mind, this would constitute a defense, but that it would not be a defense if the act was 'prompted by hate, anger, jealousy, or other passion.
Again, it is contended that the’ latter part of the instruction in effect told the jury that if, from evil associations and indulgence in vice, the accused had ceased to control or influence his actions, he would be responsible if otherwise capable of committing the crime, and that this ignores the element of incapacity of knowing the nature and quality of the act committed. The language does not ignore this element, for this instruction follows others which call attention to these elements of defense and refers to these elements by adding, “if otherwise capable of committing crime.”
Finally, it is contended that the court erred in giving instruction No. 19, which reads as follows:
“You are instructed that small discrepancies in the testimony as to time and distances may be attributed to inattention or inaccuracies of memory rather than to a wilful or false swearing.”
There was only a general objection to this instruction, which was not sufficient to call attention to the particular language thought to be misleading. What the court evidently meant by the instruction was that the jury might reconcile small discrepancies by attributing the same to inattention or inaccuracy of memory,' rather than to false swearing. The court did not say that the jury should do so, but tjiat it might do so. If it was thought that the jury might understand the language of this instruction to mean that it was the duty of the jury to so attribute small inaccuracies, the attention of the court should have been called to this particular language, rather than a general objection to the whole instruction.
Upon the whole, we are convinced, after a careful examination of the record, that there was no error committed. The offense committed by appellant was one of peculiar atrocity, and the testimony is abundant to sustain the verdict.
Judgment affirmed. | [
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McCulloch, C. J.
Appellant was -convicted under an indictment charging him with the crime of arson, committed by burning his own house, which was situated in the town of Ashdown.
Under the former statutes of this State it was decided by this court in State v. Hanna, 131 Ark. 129, that the burning of one’s own house did not constitute the crime of arson, but subsequently the Legislature enacted a new statute on the subject (Acts of 1919, p. 66, Crawford & Moses’ Digest, § 2417), which reads as follows:
“Every person who shall wilfully and maliciously burn or cause to be burned any dwelling-house or other house, although not herein specifically named, the prop erty of himself or of another person, shall he deemed guilty of a' felony, and upon conviction shall be imprisoned in the -State Penitentiary for a period of not less than two nor more than ten years.”
It did not constitute arson at common law for a person to burn his own house (2nd iWharton on Crim. Law, § 1051), but our statute, quoted above, undoubtedly enlarges the definition so as to make it arson for a person to burn his own house. There can be no doubt about the meaning of the language used in the statute, and we perceive no reason why a statute to that effect should be held to be invalid. Of course, the burning must be maliciously done — that is to say, malicious in the sense of an intention, with bad motive, of violating the law. Shotwell v. State, 43 Ark. 345. Similar statutes -have been upheld as valid in other States. State v. Rohfrischt, 12 La. Ann. 382; Shepherd v. People, 19 N. Y. 537; State v. Hurd, 51 N. H. 176; State v. Cohn, 9 Nev. 179.
It was within the power of the Legislature to define the crime of arson and declare what elements should constitute that offense, and it does not conflict with any natural right of man to “do what he will with his own” by making it an offense to wilfully and maliciously burn his own property. We entertain no' doubt therefore as to the validity of the statute.
It is next contended that the evidence is not sufficient to sustain the verdict.
Appellant owned two adjoining buildings in the town of Ashdown, one of which he occupied himself, the first floor as a grocery store and the second floor as a rooming-house. The other building was occupied by appellant’s tenant, a colored woman by the name- of Susie Hart. Appellant is a neg-ro himself.
The fire broke out in the early hours of the morning, before daybreak, and the alarm was given by appellant, who, according to the testimony of some of the witnesses, was fully dressed in the same clothes that he had worn the day before and during the early hours of the night. The fire was first discovered to be in the part of the building which was occupied by appellant. The origin of the fire was not proved, and appellant did not undertake to show how it started.
The proof adduced by the State tended to show that appellant had a very small stock of goods in his store, and that he carried an excessive amount of insurance on the buildings. There was proof to the effect that the buildings were not worth more than six or seven hundred dollars and that he carried about $2,700 insurance.
Susie Hart and her daughter both testified that shortly before the fire appellant repeatedly approached Susie on the subject of taking out insurance on her household goods in the building, and they testified that he said the houses were “compelled to burn.” He made an offer to Susie Hart, according to the testimony, to take out insurance in the sum of $2,000, and that if she would agree to give him half of it in case of loss by fire he would pay the premium. Two of the witnesses testified that appellant stated that he knew he was going to the penitentiary and that he was “not going to leave anything here for nobody to enjoy.”
A man named Marsh owned a livery stable, or barn, which was located immediately back of appellant’s buildings. Marsh was a farmer, living in the country, and he testified that, shortly before the fire, appellant approached him on the subject of taking out insurance, and came to see him two or three times on the subject, informing him (witness) that he was in touch with some insurance companies that would give him insurance on his building.
Another circumstance shown by the iState as tending to show bad intention on the part of appellant was that the day before the fire he sent out all the bedelothing in his rooming-house to be washed, and it was not in the building on the night of the fire. Appellant undertook to explain this by saying that a committee had visited his place and told him that he must “clean up” the premises, that he understood this admonition literally and acted upon it. The State undertook to draw out from him the statement that the admonition by the citizens was not meant literally, but that he must put a stop to immoral and unlawful practices in his house.
We are of the opinion that the evidence was sufficient to warrant the jury in finding that the fire which destroyed appellant’s house was of incendiary origin, and that appellant was the one who set it on fire.
The State introduced a witness, Roberta Brown by name, who testified about the alarm of fire being given, and also testified concerning the statements alleged to have been made by appellant to Susie Hart with reference to insurance on the building. This witness testified that, after the fire occurred, appellant came to see her and asked her “not to tell any more than she had to.” This testimony was- elicited by questions repeatedly propounded by the prosecuting attorney, and after calling her attention to her testimony before the grand jury. The witness first appeared not to be able to remember very well, but after attention was called to her testimony before the grand jury, for the purpose of refreshing her memory, she stated that she had had such a conversation with appellant as that mentioned above. There was no objection interposed by appellant’s counsel to the course of examination by the prosecuting attorney, but on cross-examination counsel interrogated the witness as to why she had not, before her memory was refreshed by the questions of the prosecuting attorney, remembered this conversation with appellant. The reply of the witness was that she had forgotten about it. Counsel then asked the witness the question whether or- not she had made that statement before the grand jury, and the prosecuting attorney objected. Appellant’s counsel insisted that he had a right to go into the question of the witnesses’ testimony before the grand jury, for the reason that the prosecuting attorney had refreshed the memory of the witness on that subject. The statement of the court in ruling on the objection was that the witness had admitted that she made the statement before the grand jury, and that that should be the end of the examination on that subject. Counsel then made this statement, apparently to the court, “I will ask her that,” and then asked the witness, “Did you or not?” The question appeared not to be clear to the witness, and the court interposed by propounding the question: “The written statement read there, did you make that statement before the grand jury?” Answer: “Yes sir.” She was further questioned by counsel for appellant as follows: “How long did it take you to tell the grand jury about that conversation you and Jess had ? ’ ’ Answer: “ I don’t know. ’ ’
This ended the cross-examination, and there were no exceptions saved to any ruling- of the court.
It is insisted here, for the first time, that the court erred in not permitting counsel to interrogate the witness concerning the testimony before the grand jury, but, as before stated, it does not appear from the record that the court denied appellant the privilege of asking any question on the subject that his counsel saw fit to propound. •
Again, it is urged that the court erred in permitting the State to interrogate appellant, on cross-examination, concerning the finding of stolen property in Ms house. That inquiry was limited, of course, to the question of appellant’s credibility as a witness, and the State undertook to go no further than Ms own answers on that subject. There was no error in this ruling, for the finding of property in appellant’s house known to have been stolen might or might not affect his credibility, and the State had the right to place the circumstance before the jury by interrogating appellant Mmself concerning it.
It is also insisted that the court erred in permitting the State to prove that appellant’s house 'had bee® searched by a deputy sheriff for whiskey. The record does not sustain appellant in this contention, and a further discussion is therefore unnecessary.
Another contention is that the court erred in permitting the prosecuting attorney to interrogate appellant on cross-examination concerning a visit to appellant of certain white citizens of the town, and the admonition given to him by them to the effect that he must “clean up” his premises and quit selling whiskey. The record does not show that any direct; specific questions was propounded about selling whiskey, but, even if the questions propounded did embrace that* inquiry, it was invited by appellant’s statement that he had sent out his bedclothing to be washed, pursuant to this admonition, and the prosecuting attorney, as we have already shown, had the right to show that the admonition by the citizens did not have reference literally to washing the premises and its contents, but to clean it up by stopping unlawful and immoral practices, including the unlawful sale of whiskey. There was no error committed by the court in permitting the prosecuting attorney to draw out from appellant just what he had been directed to do by the committee of white' people, inasmuch as appellant had already testified on that subject, and thus invited the inquiry concerning it.
Finally, it "is insisted that the court erred in delivering its instructions to the jury commissioners in the presence of the trial jury in this case.
It is shown by the record that, after the completion of the testimony in this case and the attorneys were to begin the arguments, the court suspended proceedings in this case until it could appoint'and charge the jury corqmissioners who were to select the jury for the next term of court. This was done over objection of appellant, and the record shows that he requested that the jury retire during the court’s instructions to the commissioners. This request was denied, and the court proceeded to instruct the jury commissioners concerning their duties, among other things admonishing them as to their duty to select good men who would enforce the law. The record recites that the court, in its instructions to the commissioners, in the presence of the trial jury in this case, directed their attention to the increase in various crimes and “instructed them that so long as people do not enforce the law the courts could not expect to check the crime wave that is now sweeping the country.”
If does not appear that the court, in its charge to the jury commissioners, made any reference, either directly or indirectly, concerning the trial of this case or the merits of the case. There was nothing said or done by the court which could reasonably be construed by the members of the trial jury as having reference to this case. It was a matter of discretion with the trial court as to when he should suspend other proceedings to appoint and instruct the jury commissioners, and, unless it be shown that the court said or did something that was calculated to prejudice-appellant’s right before the trial jury, there is nothing which calls for a reversal of the judgment.
We are of the opinion that the evidence is sufficient in this case to sustain the verdict, and that there is no prejudicial error in the record. The judgment is therefore affirmed. | [
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Smith, J.
This suit was brought to enforce the collection Of certain delinquent drainage taxes. The delinquent landowners answered and attacked the validity both of the district itself and the assessments levied by it. There was a decree in favor of the district, and the landowners have appealed. The district was created by act 103 of the Acts of 1917 (page 485), and many of the objections to the act itself have been so frequently considered by this court, and decided adversely to the contentions of appellants, that we will not again review them.
So far as the assessments themselves are concerned, there are three grounds of attack: First, that the lands were not subject to taxation for drainage purposes; second, that the assessments were not authorized by the act itself; and third, that the assessments were fraudulently made.
The district was organized to drain a large area in Mississippi and Poinsett counties, and included within the boundaries of the district were about 17,000 acres of unsurveyed land the title to which was in dispute at the time of the passage of the act creating the drainage district. Subsequently the title to this land was adjudged to be in the United States.
The Congress, on January 17, 1920, passed an act entitled “An act authorizing local drainage districts to drain certain public lands in the State of Arkansas, counties of Mississippi and Poinsett, and subjecting said lands to taxation.” 41 U. S. Statutes at Large, part 1, chap. 47, p. 392. This act provided that all of the unentered, unreserved public lands, and all of the public lands for which no final certificates had been issued, within the area described by the act, should be subject to the laws of Arkansas relating to the organization of drainage districts. The appellants are owners of the lands therein referred to, and insist that the lands are not taxable for the reason that the title to the lands was in the United States Government when the drainage district was organized.
A complete answer to this objection appears to be that the Federal Government, through the Congress, has expressly consented that the lands be taxed for drainage purposes; and we see no reason why the Federal Government might not, at its own election, assume the ordinary duties of proprietorship. It stands admitted that no lands in the district had greater need of drainage- than these government lands. The fact that they were unsurveyed and were located principally within the meander lines of what the original government surveys showed to be lakes would indicate an even greater necessity for drainage. It is also one of the undisputed facts in the case that the necessity for a drainage district was emphasized and made urgent by the fact that drainage dkp. tricts in the State of Missouri had been organized which would have used a large part of the area of the Arkansas district for outlet purposes.
It is very earnestly insisted that appellants’ lands were not included in the original assessments of benefits for the reason that at the time those assessments were made the Congress had not consented to the assessment of the government lands lying within the district, and that the drainage act conferred no authority for the assessment of these lands, which was made after the act of Congress was passed.
It appears, however, that after the passage of the act of 'Congress, the General Assembly of this State, on February 23, 1920, passed an act, No. 305, providing for a modification of the plans of the district and for a reassessment of benefits. The provisions of this last act, which will not be set out, as they are similar to numerous other acts which have been upheld by this court, appear to be sufficiently comprehensive to answer the objection that no authority existed for the assessment of appellants’ lands.
Pursuant to act 305 an assessment of appellants’ lands was made, the plans of the district having been altered to afford those lands, better drainage than the original plans promised. A voluminous record was made in the court below on that assessment, which was attacked on the grounds, among others, that proper notice was not given of the change of plans and the assessment conforming thereto; that the assessments of appellants’ lands were arbitrary, discriminatory and confiscatory; and that the confirmation thereof was procured by fraud.
Upon this issue the court, in its opinion, made a finding of fact which we think is not clearly against the preponderance of the evidence, as follows:
“The defendants contend, and several of them testify, that a hearing on the assessments was advertised for a certain day, that they appeared in the county court at that time, and that Mr. Origger, one of the commissioners, was present and said that, owing to the absence of the other 'commissioners, the matter could not be taken np then, but that the assessments would either be made right or another day of court would be had; that they relied upon this assurance and did not file exceptions; but, notwithstanding the promise, the assessments were made binding, and were approved that day. The hearing was before the county judge, Hon. Gr. E. Keck, and the fact that he, at the request of reputable counsel for the district, entered the order complained of immediately after the alleged statement of Mr. Crigger, is weight in itself against the probability of the statements having been made.
‘ ‘ Some 65 or 70 landowners plead this fraud, but only a few of them testify with reference to the alleged statements of Mr. Crigger as a representative of the district. The others do not show that they were present or were in any way deterred from making a defense by reason thereof. Some eight or ten in all were represented by an attorney at the time, and he testified that he was employed merely with reference to the adjustment of damages and not to fight the assessment; that he did not hear or learn of the statement complained of. Mr. Crigger and his attorney, Mr. Costen, both positively deny any such agreement. It is not customary for contesting litigants to enter the court-room at the hour of trial without either counsel or pleadings, and the fact that the few who did have counsel did not employ him to fight the assessment is significant. The actions of defendants speak louder than their words, and the question of fact must be decided against them, making unnecessary a consideration of whether they would have had a legal defense to the assessments had they made a contest.”
We concur also in the view expressed by the court that his finding of fact made it unnecessary to consider whether appellants would have had a legal defense to the assessments, had they made a contest.
This suit, which, as we have said, was brought to enforce the payment of delinquent assessments, was filed August 29, 1921; and an answer was filed on December 10, 1921, which was nearly a year and a half after the confirmation of the assessments complained of. This answer is the first pleading of appellants questioning their assessments; and this lapse of a year and a half is, itself, a circumstance tending to sustain the chancellor’s finding of fact.
The assessments became final under the terms of the act under which they were levied because no objections were made thereto in the time and manner provided by the act. In the recent case of Road Imp. Dists. 1, 2 and 3 v. Crary, 151 Ark. 484, we said: “We have often decided that the method provided in the statute for attacking the validity of the assessment of benefits is exclusive, and that it must be pursued within the time prescribed by the statute. In other words, it has been settled by repeated decisions of this court that a collateral attack cannot be made upon the assessment of 'benefits unless void on the face of the proceedings. Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168; Summers v. Conway & Damascus Rd. Imp. Dist., 139 Ark. 277; Nettles v. Hazlewood Road Imp. Dist., 144 Ark. 632; Sikes v. Douglas, 147 Ark. 469.”
It follows, from what we have said, that the decree of the court below must be affirmed, and it is so ordered. | [
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Hart, J.
(after stating the facts). The first assignment of error is that the court erred in instructing the jury as to murder in the second degree.
In instruction No. 4, given by the court on its own motion, the difference between murder in the first degree and murder in the second degree was explained. Among other things, the court said:
“Murder in the second degree is the absence of premeditation and deliberation, 'but this case has all the other elements of murder in the first degree.”
The court had no right to point out what inferences s-hpuld be drawn from the evidence. This, was within the peculiar province of the jury. Sec. 23, art. 7, of the Constitution of 1874 expressly declares that judges shall not charge juries with regard to matters of fact. Blankenship v. State, 55 Ark. 244, and Spivey v. State, 133 Ark. 314.
It is suggested that the words, “this case,” were put in the instruction by the stenographer in copying his shorthand notes and that it is simply a. typographical error. The record shows to the contrary. Counsel made a specific objection to the instruction on the ground that the court invaded the province of the jury by saying to it that’“this case has all the other elements of murder in the first degree.” This constitutes an affirmative showing that the court gave the instruction, and for the reasons above stated reversible error was committed in giving it.
It is next contended that the court erred in telling the jury that there were but three verdicts responsive to the issue in this case, and that they were murder in the first degree, leaving the punishment of the defendant to the law, or murder in the first degree with the finding that the punishment of the defendant should be imprisonment for life in the State Penitentiary, and murder in the second degree with the punishment at not less than five nor more than twenty-one years in the State Penitentiary.
The court erred in giving this instruction to the jury. It amounted to taking away from the jury the right to render a verdict of not guilty.
In felony cases, although the evidence for the State is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State’s evidence. It is within the province of the jury to disbelieve the witnesses for the State and return a verdict for the defendant. The court is without power to ditect a verdict for the State. Parker v. State, 130 Ark. 234.
The next assignment of error is that the court erred in refusing to instruct the jury upon the law of self-defense.
According to the testimony of the defendant’s brother-in-law, who went with him to the houseboat where the defendant’s wife was staying with Edgar Glenn, they arrived there about daylight. The defendant stopped on the bank about twenty-five yards away and told his brother-in-law to go on the boat and tell his wife that they had come for her. His brother-in-law did so. He went into the room where Glenn and the defendant’s wife were. He told them that the defendant had come for his wife and was on the river bank near by waiting for her. Glenn had already dressed himself. He grabbed a thirty-two caliber automatic pistol and ran out towards the front of the- houseboat, and almost immediately three shots were fired. In a few minutes Glenn climbed up on the boat at its rear end, and expired. The defendant’s brother-in-law did not see the shooting, but denied that he and the defendant had waited under a tree near the houseboat for Glenn to come out and that the defendant shot Glenn without warning as he Walked out to the front end of the houseboat.
According to the testimony of the defendant, he went to the houseboat for his wife at the request of his mother-in-law, and did not intend to kill or inflict bodily harm upon Glenn. He only carried his gun with him for his own protection in the case he was attacked by Glenn. He remained on the bank about twenty-five yards away from the houseboat while his young brother-in-law went into the houseboat for the defendant’s wife. Glenn came ont to the front end of the houseboat towards the defendant with a thirty-two caliber pistol in his hand and endeavored to shoot the defendant with it. The defendant fired at Glenn three times in rapid succession with his pump-gun in order to prevent Glenn from shooting him with the pistol. ' ,'
This testimony warranted the court in instructing the jury on the law of self-defense. Magness v. State, 67 Ark. 594, and Gibson v. State, 135 Ark. 520.
It is also insisted by counsel for the defendant that the court erred in refusing to instruct the jury on voluntary manslaughter, and in this"contention we think counsel ¡are correct.
According to the testimony just recited, the jury might have concluded that the defendant shot deceased under the belief that he was about to be assaulted, but 'that he acted too hastilv and without due care, and was therefore not justified in taking life under the circumstances.
In Allison v. State, 74 Ark. 444, the court, after sayini? that the jury may accent that part of the evidence it believes to be true and reject other portions as untrue, in discussing this very .question said that it was not always necessary to show that the killing was done in the heat of passion to reduce the crime to manslaughter.
The court further said that where the killing is done because the slayer believes he is in great danger, but the facts do not warrant such belief, it shall be murder or manslaughter, according to the circumstances, even though there be no passion. Again, when the slayer, though acting in self-defense, is not himself free from blame, the crime may be manslaughter. See also Bruder v. State, 110 Ark. 402.
The Attorney General has confessed error in regard to each of the assignments discussed above, and for the reasons set forth, his confessions of error are well taken.
It follows that the judgment must be reversed and the cause remanded for a new trial. | [
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Mr. Justiee Compton
delivered the opinion of the Court.
This was a bill for injunction exhibited by William Cornish, against Hezelriah Dews & Roland B. Smith, as administrators of the estate of Hiram Smith, deceased, and others.
It is necessary to a clear understanding of the questions involved, that we should refer briefly to the pleadings in the cause, and the attitude of the parties upon the record.
The bill charges that John H. Cornish, in November, 1851, executed to the appellee (who was the complainant below) a deed of trust on certain lands and negro slaves, and the crop of cotton to be grown on the premises for the year 1852, to secure two several writings obligatory of the grantor to one Cyrus F. Sargent, and to save harmless the appellee, who had become personal security for the payment thereof; that the debts to Sargent were due and payable, the one on the 1st February, 1852, and the other on the 1st March, 1853: that the deed of trust contained a power of sale, by which, in the event the grantor should fail to pay the debts to Sargent at their maturity, the appellee was authorized and empowered to sell at public sale, all the property conveyed, or so much thereof as might be necessary to pay the indebtedness, or save the appellee harmless; that the said John H. Cornish had previously, to-wit:. on the 30th of September, 1850, executed to John L. Cornish, as trustee, a certain other deed of trust on all the property embraced in the deed of trust to the appellee, except the cotton crop of 1852, Emily, a negro infant, and an undivided interest (one-third) in Nancy, a negro woman, and Pichón, a negro boy, (Pichón being dead at the time of filing the bill,) to secure the debts of the grantor to sundry creditors therein mentioned, which was a subsisting incumbrance on the property at the time the deed of trust was executed to the appellee.
The bill also charges that subsequent to the registration of the deeds of trust, executions came to the hands of the sheriff, issued on judgments recovered at law, by the appellants against the said John PI. Cornish, and one John H. Hines, which were levied on part of said negro slaves embraced in the deed of trust, to-wit: Peter, John, Nancy, Frances, Emily and Daniel, and that the sheriff, if not restrained, would proceed to sell them under the executions in violation of the rights of the appellee.
A decree pro confesso was regularly entered against some of the defendants, and the others answered, making their answer a cross-bill against the appellee, in which they charge that the deeds of assignment were made to hinder and delay creditors, and were fraudulent and void; that subsequent to the filing of the original bill, and while the executions were temporarily enjoined, all the property mentioned in the deed of trust to John L. Cornish, was sold pursuant to the provisions thereof, and was knocked off at a great sacrifice, in consequence of a fraudulent agreement between the grantor and the appellee, the latter becoming the purchaser for the use of the former; that there was property mentioned in the deed of.trust to the appellee, and not embraced in that to John L. Cornish, and upon which the executions had not been levied, sufficient to satisfy the debts to Sargent, and that there was, therefore, no necessity for enjoining their executions.
The prayer of the cross-bill is, that the injunction be dissolved, and that the appellants have their debts with damage. The cause was heard at December term, 1854, and the Court being of opinion that the deeds were not made to hinder and delay creditors, and were not void, and denying relief to appellants upon their cross-bill, perpetually enjoined their executions.
Upon the state of pleadings here presented, the appellants, as we shall presently show, were entitled to no relief growing out of their cross-bill, leaving them, as a ground of defence, the single question whether the deed of trust to the appellee was made to defraud creditors.
We suppose the deed of trust to John L. Cornish was brought into the record by the appellee to show a prior subsisting incumbrance upon a large portion of the property, in order that the value of the property conveyed to the appellee might not appear to exceed the amount of the debts secured, to such an extent as to raise a presumption against the integrity of the deed; and it may be here remarked, that under the issue made by the pleadings, the deed to John L,. Cornish, and the sale made pursuant to its provisions, cannot be considered, for any other purpose, than as evidence tending to establish the character of the deed to the appellee.
We have carefully considered the testimony, and the material facts established may be stated thus: the grantor and the appellee were brothers — the entire estate of the grantor, both real and personal, was under incumbrance,' and, according to the terms of the deed of assignment, he was in possession. At the beginning of the year, 1852, he was without the necessary supplies to support the negro slaves, and the means to defray other necessary expenses of the plantation while the crop was being made, to secure which the proceeds of the entire crop of cotton for that year was applied with the knowledge and consent of the appellee — the crop being a-short one. The appellee was present at the sale of the grantor’s property, made under the deed of trust to John L. Cornish, on the 31st May, 1853, and purchased all the property. The negroes were sold is families at the request of the grantor, the appellee having nothing to do with the mode of selling. They were knocked off to appellee at something less than their real value, according to the judgment of the witnesses.
These are the facts tending to impeach the deed to the appellee; and opposed to these are the following: The appellants admit that the debts recited in the deed to the appellee were genuine, and that the appellee was bound as security for their payment. The appellee denies, in his answer to the cross-bill, that there was any agreement, understanding or combination, between himself and the grantor, touching the sale of the negroes, or other property, made on the 31st May, 1853, and avers that he bid for the property openly, publicly, and in good faith, and purchased the same for his own use; in all which he is corroborated by the testimony of the grantor, whose deposition was taken by the appellants. The appellee and the grantor also state, the one in his answer, and the other in his deposition, that the deed of trust to the appellee was executed and accepted in good faith for the purpose of securing the debts recited in it, and not for the purpose of hindering or delaying the appellants, or any other creditors.
From this evidence, we must conclude that the deed was not a fraudulent contrivance.
But it is urged in argument that, for the payment of the debts to Sargent, the appellee should be required, in equity, to first exhaust the property embraced in the deed of trust to him for that purpose, and not embraced in the deed to John L. Cornish. It may be said in response, that if the cross-bill had brought before the Court the proper parties, and had been so framed as to have the trusts executed and closed up for the benefit of the creditors thereby secured with the view of having any surplus that might be ascertained decreed to the appellants as judgment creditors, this proposition might be entertained. Such, however, seems not to have been the case. The parties interested in the administration of the trust, under the deed to John L. Cornish, were not before the Court, nor were those interested in the execution of the trust to the appellee, except the appellee himself. If the design of the cross-bill was, in any event, to close the trusts, as above indicated, then the grantor, trustees, and beneficiaries were necessax-y and proper parties. Story Eq. PL, sec. 207, and authorities there cited.
Nor did the cross-bill contain a specific prayer for the relief now insisted on in the argument, nor a general prayer, under which it could be granted. The prayer is an essential pai’t of a bill in equity, and without it, no decree can be rendered in favor of the complainant. Where the bill contains, as usual, a prayer for specific relief, and also a prayer for gexxeral relief, the complainant may have specific relief other than that prayed for, provided it be consistent -with the case made by the bill. But if the bill ask for specific relief only, the Court is confined in its action to the special prayer, and if the complainant be not entitled to the x'elief asked, none other can be granted.
The decree of the Court below must be affirmed with costs.
Absent, Mr. Justice Rector. | [
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ROBERT H. Dudley, Justice.
This is another in the series of interlocutory appeals from a circuit court’s refusal to transfer a criminal case to juvenile court. Appellant, a seventeen year old, is charged with capital murder. He has a history of prior adjudications of delinquency in juvenile court as a result of burglaries and criminal mischief, and was on probation from juvenile court at the time he allegedly committed capital murder. We affirm the order of the circuit court refusing to transfer the case to juvenile court.
The law regarding motions to transfer to juvenile court is well established:
A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “ ‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).
The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann. § 9-27-318(e)(l). See Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992), a case in which the underlying crime was rape and we wrote, “Cobbins cannot be read to require that an added element of •violence must be shown under § 9-27-318(e)(l), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).
Cole v. State, 323 Ark. 136, 141, 913 S.W.2d 779, 781-82 (1996) (quoting Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995)). An information can constitute sufficient evidence to establish that the defendant is charged with a serious and violent crime. Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402-A, 805 S.W.2d 80 (1991). This court applies the clearly erroneous standard in reviewing the trial court’s denial of a motion to transfer. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).
The State alleges that appellant and two codefendants entered a grocery store for the purpose of committing a robbery, and in the course of the robbery, a codefendant shot and killed a store clerk. Appellant allegedly searched for the victim’s car keys so the three of them could take her car, but they were unable to find the keys. Appellant, who is now seventeen years old, but was fifteen at the time of the alleged offense, has prior juvenile adjudications of delinquency for burglaries and criminal mischief and was on proba tion for those delinquency adjudications at the time this case arose.
Appellant’s first point of appeal is the trial court erred in denying his motion to transfer because he was only an accomplice and there was no evidence that he personally employed violence. A review of the abstract reveals that this argument was not made before the trial court. Since appellant did not make this argument to the trial court, he cannot raise it on appeal. See Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995).
Even if this point were properly before this court, we would have no hesitancy in affirming. In Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994), we addressed the same argument in another accomplice-murder case, and wrote:
Bell’s main contention is that the circuit court erred because the State failed to show any violent act by him. While it is true that there was no proof that he pulled the trigger, this does not alter the fact that he is charged as an accomplice for his involvement in these murders. An accomplice, even of minor age, is responsible for the activities of his cohort. See Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).
Id. at 292, 877 S.W.2d at 581.
Appellant’s second and third points of appeal are addressed together. His second point is that the State did not present evidence of failed efforts to rehabilitate him; therefore, the State did not prove that he was beyond rehabilitation under existing rehabilitation programs. See Ark. Code Ann. § 9-27-318(e)(2). His third point is that the State did not present evidence to rebut proof that he is immature. See Ark. Code Ann. § 9-27-318 (e)(3). It was neither necessary for the State to introduce evidence of each factor under Ark. Code Ann. § 9-27-318(e) nor for the trial court to give equal weight to each factor. See Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996), and Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). The serious and violent nature of the crime charged was sufficient, in and of itself, for the trial court to deny the motion to transfer. Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994).
The trial judge did not make specific findings of fact, but only recited that he considered the pleadings, testimony, and statements of counsel, and applied Ark. Code Ann. § 9-27-318 and the deci sions of the appellate courts of this State. In similar circumstances, we have written:
We note that even though the trial judge was not required to make specific findings of fact when reaching his decision, to have done so would have been most helpful to this court in determining whether or not his decision was clearly erroneous.
Bell v. State, 317 Ark. 289, 293, 877 S.W.2d 579, 581 (1994).
Affirmed. | [
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DAVID Newbern, Justice.
James Cooper, Ulonzo Gordon, and Jeremy Moten were tried together and convicted of killing Otis Webster. Each was sentenced to life imprisonment without parole for capital murder. Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1993). Each of them has appealed. We affirm their convictions. Mr. Cooper and Mr. Gordon have several points of appeal each, and Mr. Moten has one. After stating facts the jury could have concluded from evidence produced by the State at the trial, we will address each appellant’s points of appeal. Other facts will be stated as necessary in our discussion of each appellant’s arguments.
On December 3, 1994, Otis Webster, the victim in this case, shot James Cooper 11 times. On January 28, 1995, Jeremy Moten shot and killed Otis Webster. On the latter date Rickey Lewis, Tyrone King, and Corey Sublett were seated in a car parked in a parking lot in a place referred to by witnesses as the “project area” in West Memphis. Tony Johnson drove up in a car in which Otis Webster was a passenger. Tony Johnson and Otis Webster then stood talking with Lewis, King, and Sublett when a third car arrived carrying Cooper, Gordon, and Moten. Moten and Gordon got out and drew pistols. They told Johnson to get out of the way. Shots were fired, and Moten then chased Webster, shot him once, swore at him, and then shot him three more times as he lay on the ground. Cooper drove away with Gordon as his passenger and then picked up Moten.
I. James Cooper
a. Sufficiency of the evidence
Mr. Cooper’s defense was that he did not know a shooting would occur when he drove Gordon and Moten to the parking lot. He argues there was no evidence that he entertained any premeditation which is an element of capital murder as charged, so his motion for a directed verdict should have been granted. As the State points out in response, Cooper’s liability for the crime is as an accomplice, Ark. Code Ann. § 5-2-403 (Repl. 1993), and the evidence need only be sufficient to show he encouraged or aided in the commission of the crime. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).
A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, and in determining whether substantial evidence exists, we review the evidence in the light most favorable to the appellee. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).
Mr. Cooper drove to the scene of the crime with two men who exited his car and drew weapons. One or both of them fired at the victim who, according to an eyewitness, was eventually killed by one of them. Cooper then fled the scene with one of the shootists and allowed the second to enter his car shordy thereafter. When the evidence tending to prove those facts is combined with the evidence that Mr. Cooper had a strong motive to injure or kill Mr. Webster we can hardly conclude the evidence is insufficient to support his conviction as an accomplice.
b. Severance
Mr. Cooper sought to have his trial severed from those of Mr. Gordon and Mr. Webster. The factors to be considered in deciding whether to grant a severance of the trial of one defendant from that of another are: (1) antagonistic defenses; (2) difficulty in segregating evidence; (3) lack of substantial evidence implicating one defendant except for the accusation of another; (4) deprivation by one defendant of another’s peremptory challenges; (5) compulsion of testimony by one defendant if another chooses to testify; (6) disparity in criminal records; and (7) stronger circumstantial evidence against one defendant than against another. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Whether to grant the motion lies within the discretion of the Trial Court and a ruling will not be disturbed on appeal absent an abuse of that discretion. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); McDaniel v. State, supra.
Mr. Cooper argues his trial should have been severed because his defense was antagonistic to that of his codefendants, the evidence against them was stronger than against him, and the evidence could not successfully be segregated. We find no merit in those claims. As a matter of logic, there is no antagonism between Cooper’s defense that he did not know what Gordon and Moten planned to do and their self-defense claim. Antagonistic defenses arise when each defendant asserts his innocence and accuses the other of committing the crime. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); McDaniel v. State, supra. That is not the case here. There is no reason the jury could not have believed both Cooper’s claim of lack of knowledge and the self-defense claim of Gordon and Moten had it found their witnesses credible.
As mentioned above, the evidence of Mr. Cooper’s participation as an accomplice was substantial. He has not demonstrated that, had he been tried separately, the evidence about the actions of Gordon and Moton would not have been admitted to prove Cooper’s status as an accomplice. He thus has demonstrated no prejudice in having one jury hear it all. There was no abuse of discretion.
c. Jury selection
Mr. Cooper contends the State improperly exercised a peremptory challenge of African-American venire person Sharon Dunigan. Mr. Cooper objected on the ground that the reason was racial in nature and thus a violation of his rights as explained in Batson v. Kentucky, 476 U.S. 79 (1986). When the peremptory challenge to Ms. Dunigan occurred, two African-American jurors had been seated. The State had struck three Caucasian venire members. In response to the objection, the prosecutor said Ms. Dunigan was struck because she would not look him in the eye when answering voir dire and, although she was a long-time resident of the neighborhood in which the killing occurred, she said she knew none of the persons involved.
Mr. Cooper’s argument focuses on the State’s explanation, but we need not evaluate it because the Trial Court’s ruling, with which we agree, was that no prima facie case of discrimination had been presented. When a Batson objection is raised the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing the challenge was not based on race. Only if the defendant makes a prima facie case and the State fails to give a facially neutral reason for the challenge is a court required to conduct a sensitive inquiry. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).
A prima fade case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire suggesting racial motive. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a Batson ruling is whether a court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.
The prosecution’s use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case, Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); however, one peremptory strike of a minority prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient. Heard v. State, supra; See Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995); see also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant, Heard v. State, supra; Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), and we find nothing in the context of the challenge to Ms. Dunigan which would have required the State to explain or the Trial Court to have delved into the matter.
d. Suppression of Testimony
Officer Bill Durham investigated the incident in which Mr. Cooper was shot by Otis Webster. Officer Durham testified he spoke with Cooper while Cooper was in the hospital recovering from his wounds and advised him to come to the police station later to file a complaint but that Cooper had not done so.
Mr. Cooper claims that any testimony regarding the fact that he failed to sign an affidavit for an arrest warrant after the victim shot him was inadmissible. At trial he claimed that the evidence was hearsay because Detective Durham had not seen the shooting, and that the evidence was not relevant. On appeal he argues that the jury was allowed to hear speculative testimony that he did not sign the affidavit because he planned to kill the victim. He contends that was prejudicial and resulted in denial of a fair trial.
Mr. Cooper ignores the fact that the Trial Court admonished the jury that any evidence of the prior altercation would go only to the motive behind the murder and specifically admonished the jury not to consider the fact that Cooper failed to seek a warrant for Webster’s arrest. Evidence of motive behind a criminal offense is admissible. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). Where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. See Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926). Assuming, but not deciding, that evidence of failure to seek a warrant was inadmissible, we have been given no basis for holding Mr. Cooper was prejudiced by it in view of the admonishment to the jury.
e. Juror bias
To preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his or her peremptory challenges and must show he or she was forced to accept a juror who should have been excused for cause. Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). Mr. Cooper contends the Trial Court erred by seating four biased jurors. The record does not show the final composition of the jury. Although we have some doubt about whether Mr. Cooper has demonstrated that he had exhausted all his peremptory challenges before challenging the jurors in question, See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988), we will discuss the merits of the challenges for cause to the jurors.
i. Juror Hughes
Mr. Cooper contends juror Hughes should have been dismissed because he admitted he had been the victim of an armed robbery perpetrated by an African-American male. Without citation to authority, Mr. Cooper submits that the incident created bias because he is African-American. The record shows that when questioned, Mr. Hughes assured counsel for Mr. Cooper that he did not hold any grudges and would listen fairly to the defendants case. The Trial Court denied his motion to dismiss Mr. Hughes for cause.
ii. Juror Gitchell
Ms. Gitchell stated she was the Police Services Coordinator and that she coordinated crime prevention programs in West Memphis. When questioned about her ability to be an impartial juror, she stated that she thought she could be fair. Mr. Cooper’s motion to strike for cause was denied.
iii. Juror Whited
Mr. Cooper contends that Ms. Whited should have been dismissed because her husband was a police officer with the West Memphis police Department. The record discloses that Ms. Whited was struck from the panel.
iv. Juror Williams
Mr. Cooper submits that Mr. Williams was biased because he was involved in an automobile accident and the other driver was an African American. Mr. Williams stated he was not prejudiced due to the incident and could be fair and impartial. Mr. Cooper did not make an objection to the Trial Court regarding the alleged bias of Mr. Williams.
Persons comprising the venire are presumed to be unbiased and qualified to serve. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Franklin v. State, supra. The burden is on the party challenging a juror to prove actual bias, and when a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. Scherrer v. State, supra. There was no error with respect to challenges for cause of any of the jurors mentioned in Mr. Cooper’s argument.
II. Ulonzo Gordon
a. Sufficiency of the evidence
The evidence supporting the State’s claim that Ulonzo Gordon was an accomplice of Jeremy Moten in the killing of Otis Webster is strong. We need not repeat the references to authorities cited in segment I. of this opinion. We need only reiterate the evidence relating to Mr. Gordon.
Although he later recanted his statement that Gordon got out of Cooper’s car and drew a pistol as the firing began, Tyrone King initially testified it happened. Tony Johnson gave similar testimony which was not recanted. There was also testimony that Gordon fled the scene with Cooper. The evidence was clearly sufficient to support a finding of guilt.
b. Severance
Ulonzo Gordon joined severance motions made by Cooper and Moten at the trial. Much of his argument on appeal that his trial should have been severed was not presented to the Trial Court, so we will not consider it. We will, however, discuss his main point which is that severance should have been granted because of “antagonistic defenses” and his related argument concerning the inability at the trial to assure segregation of the evidence.
Mr. Gordon points out that Mr. Cooper wanted to keep the testimony of Officer Durham out of evidence and Mr. Moten wanted it in to support his self-defense claim. He then argues that Officer Durham’s testimony exemplified his claim that he had a defense antagonistic to Cooper or Moten. Although he states under another point in his argument that he was not claiming self defense, he does not at any point say what his defense was. We perceive the burden of Mr. Gordon’s argument here to be that the testimony of Officer Durham leading to an inference of a revenge motive for the killing was relevant to Cooper but not to him and that it would not have been admitted had Gordon been tried separately. He makes that statement without convincing argument or reference to authority, and we cannot say it is so. >
c. Lesser offenses
Mr. Gordon argues error on the part of the Trial Court in failure to instruct the jury on the lesser included offenses of manslaughter and negligent homicide. He offers no authority on the point and argues only that the definitions of those crimes more closely fit the evidence related to his conduct than the murder instruction.
According to Ark. Code Ann. § 5-10-104 (Repl. 1993):
(a) A person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
* * *
(3) He recklessly causes the death of another person;
4= * *
Ark. Code Ann. § 5-13-204 (Repl. 1993) provides:
(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.
(b) Aggravated assault is a Class D felony.
With respect to the “negligence” aspect of the proposed manslaughter instruction and with respect to the aggravated assault instruction we need only point out that Mr. Gordon could not have been prejudiced by any error in the Trial Court’s refusal to give those instructions. He was convicted of capital murder. The Trial Court instructed on murder in the first degree and murder in the second degree. The jury convicted Mr. Gordon of capital murder. “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987). This is commonly referred to as ‘the skip rule.’ ” Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).
Mr. Gordon makes no argument that the “extreme emotional disturbance” part of his proffered manslaughter instruction applied to his acts.
III. Jeremy Moten
Mr. Moten has only one point of appeal. It concerns failure of the Trial Court to instruct on manslaughter. More particular is his complaint that he was entitled to have the jury consider whether he was under excusable “extreme emotional disturbance.”
The request for that part of the manslaughter instruction concerning “extreme emotional disturbance for which there is a reasonable excuse” presents a problem excepting it from the skip rule in these circumstances because it does not deal with a lesser culpable mental state. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). It was not error, however, for the Trial Court to have refused that aspect of the manslaughter instruction in this case because it was combined in the instruction proffered with language which would have allowed the jury to find Mr. Moten acted “recklessly.”
The jury apparently believed that Mr. Moten was a principal or accomplice in a premeditated, deliberate murder. The evidence supported that conclusion. The evidence to which Mr. Moten refers in support of his manslaughter instruction might have led the jury to conclude he acted in self defense. Nothing in the evidence suggested he might have acted “recklessly.” It would not have been proper to have given the instruction presented to the Trial Court; thus, there was no error.
IV Rule 4-3(h)
In accordance with Rule 4-3 (h) the record of trial has been examined, and no erroneous and prejudicial rulings adverse to the appellants have been found.
Affirmed.
Brown, J., concurs. | [
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Tom Glaze, Justice.
Appellant Damon Wilkins appeals from his conviction of capital felony murder and the underlying felony, attempted aggravated robbery, for which he was sentenced to life without parole. The state alleged that, on January 16, 1994, Wilkins, along with his co-defendants, Milton Terrance Anderson and Timothy Laplez Davis, committed or attempted to commit aggravated robbery, and in the course of and furtherance of this felony, caused the death of Detra Bolden, under circumstances manifesting extreme indifference to the value of human life. Wilkins raises four points for reversal, but we first review the pertinent facts.
On the evening of January 16, 1994, Wilkins, Anderson, Davis and friends were spending the night at the residence of Mary Howard. At trial, several of those spending the night at the Howard residence testified to hearing Wilkins, Anderson and Davis talking about robbing someone. The three left the residence together, but Wilkins returned to the house about an hour later, followed shortly thereafter by Anderson and Davis. Several witnesses testified that upon Wilkins’s return to the Howard residence, he stated that he had shot the victim, Detra Bolden. Furthermore, state testimony showed that after Anderson and Davis returned, they, too, stated that Wilkins had shot Detra.
Anderson testified on behalf of the state with the understanding that in exchange for his truthful testimony the state would recommend that he would be sentenced to twenty-five years in the Arkansas Department of Correction. His testimony was consistent with that of the other state witnesses. Anderson admitted that, while at the Howard residence he, Wilkins and Davis had discussed wanting to rob someone. At the suggestion of Wilkins, the three agreed and formed a plan to rob Joyce “Big Mama” Manee, who, it was believed, sold marijuana. When they arrived at Big Mama’s, Anderson entered the home alone where he asked Big Mama for some marijuana. She asked that he come back later. Anderson returned outside and told Wilkins that there was a lot of “weed” on the table, and Wilkins wanted to go get it, but Davis refused. At that time, Big Mama’s daughter, Detra Bolden, who had been inside, leaned out the door. Anderson testified that Wilkins pulled his gun and shot at her, though Anderson admitted that he did not actually see Detra shot. Anderson and Davis ran. The three met at Anderson’s house, “smoked a joint,” then made their way back to the Howard residence. Wilkins arrived first, having gotten a ride from a friend while Anderson and Davis were on foot.
Wilkins testified that he did not shoot Detra, nor did he go with Anderson and Davis to Big Mama’s house after they left the Howard residence. He admitted planning to rob someone, but asserted he refused to rob Big Mama. He denied admitting to anyone that he had shot Detra. He said that after leaving the Howard residence that evening, he went to Anderson’s house, and later caught a ride with Ardell Washington, who took Wilkins back to the Howard residence. Wilkins testified that he told the people there that he did not know where Anderson and Davis were, but that he had received a ride from Washington. Wilkins testified that he went to sleep sometime before Anderson and Davis had returned to the house.
After the state filed its charges against Wilkins, Wilkins raised the affirmative defense set forth at Ark. Code Ann. § 5-10-101 (b) that he was not the only participant and did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. He further raised the affirmative defense found in Ark. Code Ann. § 5-2-404(b), arguing that he terminated his complicity of effectiveness in the commission of the offense.
The day before the trial, Wilkins filed a motion for continuance, requesting he be given more time to locate Ardell Washington, whom Wilkins characterized as an alibi witness. Wilkins offered evidence that he had searched for weeks to determine Washington’s whereabouts, but to no avail. The court denied his motion, and that denial is the subject of his first point on appeal.
On review, it is well settled that a motion for continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995). We cannot say that the trial court’s denial of the continuance was an abuse of discretion.
Motions for continuance are governed in part by Arkansas Rule of Criminal Procedure 27.3, which provides:
The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
This court has denoted the following factors to be considered by a trial court in deciding a continuance motion:
(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.
Hill, 321 Ark. 354, 902 S.W.2d 229; Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); French v. State, 217 Ark. 445, 609 S.W.2d 42 (1980).
Wilkins contended that Washington’s testimony became more important and the continuance necessary when he discovered a few days before trial that Anderson had agreed to be a state witness, and would testify he saw Wilkins pull the trigger. He claims this revelation should somehow justify more time to locate Washington. We see little merit in this argument as Washington’s alibi testimony was always relevant and needed in rebutting the several other witnesses’ testimony that Wilkins had admitted to killing Detra. Moreover, Wilkins admitted that Washington had given fictitious addresses, and he offered no evidence or likelihood Washington could be procured even if a continuance was given. In such circumstances, the trial court had the discretion to deny Wilkins’s request for postponement. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991); Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).
Next, Wilkins argues that the trial court erred in denying his motion for a mistrial. The state’s witness, Detective Janice Jensen, testified on direct examination that, after Wilkins was arrested, Wilkins was transported to the North Little Rock Police Department, where Jensen advised him of his Miranda rights. At this point, Wilkins objected, stating that Jensen’s testimony, without more, suggested to the jury that Wilkins offered no response after his rights were given. Wilkins argued this suggestion was violative of Wilkins’s due process rights under Doyle v. Ohio, 426 U.S. 610 (1976), because it was an improper reference to Wilkins’s silence. The state, on the other hand, claimed it should have been permitted to proceed further to elicit Wilkins’s statement that when arrested, he admitted to guilt, by stating at the time of his arrest that the state could not prove a case against him. The trial court sustained Wilkins’s objection, holding his statement was not an admission. It then denied Wilkins’s mistrial motion, but ruled the state could go no further with its questions.
From Doyle, we learn that it is fundamentally unfair and a deprivation of due process to implicitly assure a suspect that his silence will not be used against him and then allow that silence to be used to impeach an explanation subsequently offered at trial. Id. Here, Jensen’s testimony showed Wilkins had been provided the implicit assurance of Miranda warnings, but the trial court disallowed any specific inquiry, argument or emphasis concerning Wilkins’s silence. This absence of the use of Wilkins’s silence for impeachment purposes precluded any Doyle violation. See Greer v. Miller, 483 U.S. 756 (1986); Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986). In sum, the court did not permit the type of inquiry forbidden by Doyle. Instead, it sustained Wilkins’s objection thereby preventing the state from asking further questions that might have eventually touched upon Wilkins’s silence.
Before leaving this issue, we also point out that a mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). An admonition is the proper remedy where the assertion of prejudice is highly speculative. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Again, the absence of prejudice becomes apparent here in light of the fact that there was neither direct testimony in reference to Wilkins’s silence, nor did Wilkins’s attorney attempt to cure any alleged prejudice with a request for an admonition. This court has held that the failure to request a cautionary instruction or admonition may not inure to the appellant’s benefit on appeal. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).
Wilkins’s third point on appeal stems from a portion of the prosecutor’s remarks during closing argument when explaining the juror’s consideration of lesser included offenses. The prosecutor stated, “That’s what the lesser included instructions are about. It’s not until all twelve of you decide that he’s not guilty of capital murder and aggravated robbery that you can go any lower than what the state’s charged the defendant.” Wilkins’s attorney objected to the prosecutor’s remarks as being an improper characterization of the law. He argued that, if the jurors are unable to agree on a verdict as to the greater offense, then they can proceed to the lesser offense. Wilkins’s objection was overruled.
The instruction given by the trial court was AMCI 2d 302, Lesser Included Offenses: Transitional Instruction. Specifically, the instruction was Wilkins’s requested instruction No. 3, and the court’s instruction No. 14:
If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will then consider the charge of murder in the first degree.
Here, the jury unanimously found that Wilkins was guilty of the greater charge of capital murder. Therefore, it is a fair inference that no jury member had a reasonable doubt as to Wilkins’s guilt. Because no jury member had a reasonable doubt, even under Wilkins’s characterization of the instruction, the jury could not have proceeded to the next lower offense. Therefore, the argument cannot be made that Wilkins was prejudiced by the prosecutor’s characterization of the instruction, and this court does not reverse without a showing of unfair prejudice. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).
The last point on appeal is that the trial court erred in denying Wilkins’s pretrial motion to transfer his case to juvenile court. Wilkins was fifteen years of age at the time of Detra’s murder and sixteen years old at the time of the hearing. Under Ark. Code Ann. § 9-27-318(b)(l) (Repl. 1993), the state had the discretion to file capital murder charges against Wilkins in circuit court. When the state files such charges against a defendant who was fifteen years old at the time he or she committed the alleged capital murder at issue, the circuit court is to hold a hearing in order to determine whether to retain jurisdiction over the case or transfer it to juvenile court. Ark. Code Ann. § 9-27-318(b)(2) (Repl. 1993).
The circuit court, in deciding whether to transfer a case to juvenile court, must consider the following requirements:
(1) the seriousness of the .offense and whether the juvenile employed violence in the commission of the crime; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e) (Repl. 1993). Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996). As the party seeking the transfer, Wilkins had the burden of proof to show a transfer was warranted. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). Proof need not be introduced against the juvenile on each factor. Macon, 323 Ark. 498, 915 S.W.2d 273. In making its decision, the trial court is not required to give equal weight to each of the statutory factors. Id. The serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Id. If a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Repl. 1993). Ring, 320 Ark. 128, 894 S.W.2d 944. This court will not reverse a circuit court’s denial of a juvenile transfer unless the denial was clearly erroneous. Id.
Both the state’s charges and testimony reflect Wilkins was involved in the serious offense of capital felony murder, and he employed a gun in committing the offense. The record clearly supports the trial court’s decision, denying Wilkins’s motion to transfer his case to juvenile court.
As required by Ark. Sup. Ct. R. 4-3 (h), the record has been reviewed for other reversible error, and none is found. For this and the reasons stated above, we affirm. | [
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Robert L. Brown, Justice.
Appellant David Ricky Puckett appeals a judgment against him for rape and a sentence of 40 years. He raises multiple issues, including insufficiency of the evidence, prosecutorial misconduct, and various rulings of the trial court which he contends prejudiced his case. We hold that no reversible error transpired, and we affirm the judgment.
Nina Graves, age seventy, was a widow who lived in Fort Smith. Around October 1, 1994, she was at the home of Mary Frances Dixon, who was a friend, and she saw Puckett. Graves had met Puckett through Dixon several months earlier. She again saw Puckett some days later as she was walking into a liquor store on Sixth and Division Streets in Fort Smith. After she finished her business there, Puckett walked her home, which was two blocks away. When they arrived at her house, they sat on the steps and talked. Puckett did not enter her house and eventually left. A few days later, he returned to the home and asked if Graves had any work for him to do. She told him “no,” and he left.
On Friday, October 7, 1994, Puckett came by Graves’s house and visited with Graves and a person named Teresa from the Area Agency on Aging. At about four o’clock, Teresa left, but Puckett remained. He helped Graves retrieve a package from the Post Office and drove her car because she was having trouble with her balance due to an inner ear problem. Graves testified that Puckett then drove to the liquor store against her wishes because she felt ill. When she was cross-examined at trial, Graves testified that she went to the liquor store with Puckett because he had threatened her with her gun which he had found. Puckett bought a six-pack of beer. She admitted that she did not try to get help while at the liquor store. When they returned to her house, Puckett helped Graves inside because she was feeling “wobbly.” Graves testified that she wanted to go to bed, but Puckett would not leave.
According to her testimony, Puckett then became upset because he thought that Graves had been flirting with him. He forced Graves into the back bedroom. He hit her twice in the head with his fist and kicked her in the ribs, breaking three. He threatened to kill her with her pistol, if she made a wrong move. Graves testified that after she was struck and intimidated with the gun, Puckett made her take her clothes off. When she was down to her brassiere, he cut it off with a kitchen knife because she was not removing her clothes quickly enough. He then forced Graves to perform “oral and normal sex” with him. Graves testified that she was forced to have sexual intercourse with him three times and oral sex once before he left at around 11:00 a.m. on Saturday morning. She testified that she and Puckett slept in the same bed, but that she did not try to escape.
After Puckett left, Graves called Mary Dixon to learn her assailant’s last name. She also eventually called her niece, Faye Holmes, on Sunday morning, and after Holmes came over, Graves told her what had happened. Holmes urged Graves to report the incident, and Graves ultimately acquiesced and went to the Fort Smith Police Department. She did not go to Sparks Hospital in Fort Smith until the next day, Monday, at which time she learned that her ribs were fractured. Graves later identified Puckett as the culprit in a photo line-up.
Mary Dixon and Faye Holmes confirmed Graves’s rendition of events. Mary Dixon added that when Graves called on Sunday night to tell her what had happened, Puckett was at her house. Dixon stated that after she finished talking to Graves, Puckett acted nervous. When confronted with Graves’s story, he told Dixon, “That’s a damn lie.” Dixon testified that she called the police on November 5, 1994, because she found a bag containing a gun next to a pecan tree near her home. She testified that at Graves’s behest, she took Graves to see the police detectives who in turn asked Dixon to take Graves to the hospital.
Randy Cook, a former Fort Smith Police Officer, testified that in investigating the rape of Graves, he collected a kitchen knife, a brassiere with a cut strap, and bed sheets. He also testified that Graves picked Puckett out of a photographic lineup. Graves, according to his assessment, was in obvious pain. Jane Parsons, a forensic serologist with the State Crime Laboratory, testified that she tested the sheets for semen, and the test proved positive. She also testified that Graves’s rape-kit swabs tested negative for semen.
The defense case included testimony by Fort Smith Police Officer Tom Judkins, who stated that he did not observe bruises on Graves’s head when she came to the police station and that Graves did not show any outward appearance of having been beaten. He further testified that Graves told him she had been threatened with a knife. By way of video deposition, Lina Shaffer, an emergency room nurse at Sparks Hospital, testified that Graves denied any oral or anal penetration by her assailant. Shaffer observed bruises on her and found that Graves had fractured ribs. Phillip Spears of Ace Liquor Store testified that Puckett tried to sell him a gun or borrow some money from him using the gun as collateral. Spears declined. According to Spears, an older lady was with him.
The jury found Puckett guilty of rape. His sentence was fixed at 40 years.
I. Sufficiency of the Evidence
We first consider Puckett’s contentions that (1) the trial court erred in denying his motion for a directed verdict, and (2) the evidence was insufficient to sustain his conviction. A motion for directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only the evidence supporting the conviction need be considered. Id.
In his motion for directed verdict, Puckett challenged the sufficiency of the evidence as it related to the element of forcible compulsion. Forcible compulsion is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). Here, there is ample evidence of forcible compulsion. Graves testified that Puckett held a gun on her, told her to undress, and then forced her to engage in “oral and normal” sexual intercourse. She further testified that he hit her twice in the head and kicked her in the ribs. Other testimony substantiated the fact that Graves was in pain and that her ribs were fractured. Additionally, Graves testified that Puckett cut her brassiere off with a kitchen knife when she did not remove it fast enough. The knife and the cut brassiere were introduced into evidence. A liquor store clerk saw him with the gun, which was also introduced into evidence. Clearly, there was sufficient evidence to compel a conclusion that Puckett used physical force as well as the threat of physical force to rape Graves.
Puckett further argues that there was insufficient evidence to sustain the conviction. The thrust of this argument is that there was no corroboration of Graves’s testimony about the rape. We have held many times that the testimony of the rape victim alone suffices and need not be corroborated. See, e.g., Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Graves’s testimony constitutes substantial evidence. To the extent there were inconsistencies in her testimony, this was a matter of credibility for the jury to resolve. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).
II. Prosecutorial Misconduct
Puckett next argues that the prosecuting attorney made improper comments during closing argument. The relevant argument and resulting colloquy follow:
Those of you who have heard all your live[s] about women who do not report rapes — I think can understand why. After seeing and hearing what you have today, you know, you can’t imagine why anyone would make a report and come in and get to tell all this dirty little stuff that’s happened to you, and you come in here and hear yourself air your life in front of two children. Why would anyone want to go through that?
DEFENSE COUNSEL: Your Honor, I object. I don’t think there’s any comparison made to anything else like this.
THE COURT: Well, I think it’s counsel’s statement, and not evidence. You will base your decision on the evidence.
After his objection, Puckett’s counsel sought no further relief.
This court has held that the failure to seek relief in the form of an admonition or motion to declare a mistrial precludes this court’s consideration of the issue. See Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Littlepage v. State, supra. Here, Puckett sought no relief. Instead, the trial court, acting sua sponte, instructed the jury to base its decision on the evidence.
The trial court has broad discretion in controlling closing arguments and is in a better position to decide the issue of prejudice because of its first-hand observation. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). We have held that, in the absence of manifest or gross abuse, we will not reverse the action of the trial court in matters pertaining to its control and supervision of counsel’s arguments. Id. Indeed, a reversal of a judgment due to remarks made by counsel during closing arguments is rare and requires that counsel make an appeal to the jurors’ passions and emotions. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In the event an improper statement has been made, an admonition to the jury usually cures any prejudice unless the argument is so patently inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).
Puckett contends that in this case the “golden rule” argument made by the prosecutor was reversible error. See, e.g., King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958). In King, we discussed what comprises a golden-rule argument:
The “golden rule” argument suggests to jurors that they place themselves in the position of a party or victim. The golden rule argument is impermissible because it tends to subvert the objectivity of the jury. It is seen as an attempt to dissuade the jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party. The rule is applied to criminal cases as well as civil cases.
King, 317 Ark. at 293, 877 S.W.2d at 586 (citations omitted).
We affirm on this point for two reasons. The closing argument of counsel at issue here falls short of suggesting to the jurors that they place themselves in the posture of the victim. But, more importantly, the trial court immediately instructed the jury to disregard the argument, and defense counsel requested no additional relief. The trial court did more than it was requested to do. There was no error.
III. Motions for Mistrial
For his last point, Puckett urges that the trial court erred in failing to declare a mistrial in two instances. The first motion to declare a mistrial occurred before testimony was taken and after the first prospective juror was called. Puckett walked into the courtroom with his attorney and this exchange ensued:
DEFENSE COUNSEL: Your Honor, at this time the defense would make a motion for a mistrial. The reason would be because we were late coming into the courtroom and I walked in with David [Puckett], and the name Sarah Edminston was being called at that time. So for that reason, because-
THE COURT: Do you want to have another trial because you were late? The court was set for nine, why were you not here?
DEFENSE COUNSEL: Your Honor, he didn’t have his pants.
THE COURT: Did you make any arrangements to confirm the status of the defendant to see if he was ready for court?
DEFENSE COUNSEL: No, your honor, I did not.
THE COURT: That motion will be denied.
The court asked if appellant wanted anything else that had not been done, and defense counsel responded, “no.”
A mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision to deny a motion for a mistrial will not be disturbed. Stewart v. State, supra; King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Furthermore, a mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995); Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993).
Puckett contends in his brief on appeal that the mistrial was appropriate because he walked in late in “obvious custody” of the Sheriff’s Department which signaled to the jury that he was in jail. Thus, according to the argument, he was prejudiced. We do not agree. First, Puckett did not make this specific argument to the trial court, and the record does not reflect that the jury was made aware that Puckett was in custody. But, in addition, any prejudice resulting from Puckett’s tardiness could have been cured by an admonition to the jury. See Trull v. State, supra. None was requested. There was no reversible error.
Puckett’s second motion to declare a mistrial occurred during voir dire. Voir dire examination was conducted in panels of three. During the voir dire of Twila Burnett, Harry Scarlet, and Rex Legrand, the trial court excused Burnett for cause. The prosecuting attorney then asked Scarlet if he could be fair, and he responded:
I’m the manager of a grocery store here in town, and the lady that’s with you has done shopping in my store for several years, and I would have tendency to agree with her more than I would anyone else.
Counsel for Puckett approached the bench, and moved that the trial court declare a mistrial. The trial court ruled:
Well, the court has to hear a reason to excuse a juror. . . . He’s just being honest with the court, as a human being, saying that people are familiar with that. I’m going to overrule. I don’t think the other jurors will take anything other than he’s acquainted with this person, and might have some difficulty and he is going to the ultimate in trying to bend over backwards to say, “I might be unfair. I don’t know, I might lean,” so I’m going to deny your motion.
Defense counsel then responded: “I’m sure the court will instruct the jury they will make their decision solely on the evidence and they are the sole judges of credibility of the witnesses.” Scarlet was dismissed for cause, and Legrand was accepted as a juror. No further relief from the trial court was requested. At the conclusion of the evidence, the trial court did instruct the jury that they were the sole judges of the credibility of the witnesses.
In Stewart v. State, supra, the defendant moved for a mistrial during voir dire after a potential juror stated that the defendant was probably guilty since there were five counts against him. The potential juror stated that he did not think he could follow the presumption of innocence. This court affirmed the trial court’s denial of the motion. As part of our reasoning, we relied on the fact that no curative instruction had been requested by defense counsel and no proof was offered to show that the statement was heard by other jurors or venire persons. After noting that the jurors are presumed to be unbiased, we held:
We find that no reversible.error was committed by the trial court in denying appellant’s motion for a mistrial where no prejudice has been shown and [the venireman making the remark] did not serve on the jury that was ultimately selected.
Stewart, 320 Ark. at 80, 894 S.W.2d at 933.
Similar to Stewart, the trial court concluded that any prospective jurors who might have heard Scarlet’s statement most likely took it to mean that Scarlet knew the witness and could not be objective. In addition, Arkansas Model Criminal Instruction 2d 104 on the credibility of the witnesses was given at the proper time, and that instruction, in light of the negligible influence of Scarlet’s statement, cured any possible prejudice. The trial court did not err in denying the motion to declare a mistrial.
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Robert L. Brown, Justice.
Appellant James Earl Nelson was convicted of battery and the unlawfifi discharge of a firearm from a vehicle, which arose out of a drive-by shooting. Ark. Code Ann. §§ 5-13-201 and 5-74-107 (Repl. 1993). He received a total sentence of twenty-five years. He premises his appeal on three errors: (1) a double jeopardy violation caused by conviction and sentencing for two offenses which contain essentially the same elements; (2) error in instructing the jury as to parole eligibility, scienter, and a lesser-included offense; and (3) failure to grant a mistrial due to cumulative error. We conclude that none of these alleged errors is preserved for our review, and for that reason we affirm.
Testimony at trial was that Nelson and two codefendants, Don Walker and James Atchison, were in Fordyce on December 31, 1994. That evening they had attended a New Year’s Eve party where the victim, Howard Belin, was present. They were asked to leave because the party was for younger people. They left, but then returned, and Nelson, according to his codefendants, fired five shots into the crowd ofpartygoers and struck Belin in the back. When he shot, again according to the testimony of witnesses, he uttered words to the effect that he was not getting any respect. As a result of one shot, Belin was rendered a paraplegic. The irony of the situation was that Nelson himself was confined to a wheelchair at the time of the shooting because of a previous bullet wound to his back.
Following his trial on charges of both first-degree battery and first-degree firing from a vehicle, he was sentenced to fifteen years with ten suspended on the battery charge and twenty years on the second charge. The sentences were run consecutively for a total sentence of twenty-five years.
Nelson’s first point on appeal is that it was error for the trial court to enter a judgment of conviction with sentences for both battery and unlawful firing from a vehicle. Nelson contends that successive punishments for the two offenses violates the Double Jeopardy Clause under the United States Constitution as well as state law. The State, however, counters that Nelson did not make this argument to the trial court, and for that reason it is not preserved for appeal. We agree that Nelson did not preserve this issue for our review. We have made it clear that we will not consider arguments, even constitutional arguments, which are raised for the first time on appeal. See Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Moreover, our rules state that failure to raise the constitutional issue at the trial court level leaves collateral attack against the judgment under Rule 37 as Nelson’s sole recourse. See Ark. R. Crim. P. 37.1(a); see also Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995) (per curiam).
Nelson’s second contention is that the trial court erred in failing to instruct the jury on parole eligibility, definitions of “knowingly” and “recklessly” under the first- and second-degree offenses of firing from a vehicle, and on the lesser-included offense of second-degree battery. Despite this assertion on appeal, trial counsel raised no objections to the instructions as given; nor did he proffer instructions on those points to the trial court so that they could be included in the record of this case for our review. This argument, as a result, has no merit. See Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986).
For his last point, Nelson urges that the trial court erred in failing to grant his motion for a continuance so that defense witnesses would have time to appear and, further, in not sanctioning the prosecuting attorney for failure to divulge information prejudicial to the State. He makes this argument in terms of cumulative error on the trial court’s part which, he contends, mandates reversal and a new trial. However, no such motion or objection was made to the trial court below. Hence, we will not address it. See Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
Furthermore, on an individual basis, the allegations of error are meritless. With respect to Nelson’s motion for a continuance, Rule 27.3 of the Arkansas Rules of Criminal Procedure allows a trial court to grant a continuance “only upon a showing of good cause.” In addition, the denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). An appellant bears the burden of showing abuse of discretion and of demonstrating prejudice. Id. Here, trial counsel told the trial court that he would be ready for trial, and then reversed himself and asked for a continuance after the jury had been seated and opening statements had been made because some of his witnesses had failed to appear. Trial counsel was not certain that these witnesses had been served with subpoenas. Lack of diligence in having his witnesses present is a legitimate ground for denying a motion for continuance. There was no error committed by the trial court in denying the motion. See Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).
Concerning the State’s failure to divulge information about the criminal record of prosecution witness and codefendant James Atchison, Rule 17.1 of the Arkansas Rules of Criminal Procedure provides that, upon timely request, the prosecutor must disclose any prior criminal convictions of the State’s witnesses. Ark. R. Crim. P. 17.1(a)(iv). Rule 17.3 further provides that the prosecutor shall use diligent, good-faith efforts to obtain material in the possession of other government personnel. Ark. R. Crim. P. 17.3(a). Noncompliance with these rules can be the basis for reversal. However, the key to determining if a reversible violation exists is whether the defendant was prejudiced by the prosecutor’s failure to disclose. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
In the instant case, Nelson was allowed time to review the information about Atchison’s criminal record. Moreover, Atchison admitted on the witness stand that he had a prior record of six felony convictions, and his credibility was impeached accordingly. Furthermore, Nelson has not shown what additional use he would have made of this information, if he had been given a continuance or had known about it in advance. In sum, a showing of prejudice was lacking. See Scroggins v. State, supra; Baumgarner v. State, supra. The point has no merit.
Affirmed.
DUDLEY, J., not participating.
Counsel for Nelson on appeal did not represent him at trial. | [
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BRADLEY D. JESSON, Chief Justice.
The appellant was sentenced as a habitual offender to a total of seventy years imprisonment for the crimes of residential burglary, Ark. Code Ann. § 5-39-201(a) (Repl. 1993) and theft of property, Ark. Code Ann. § 5-36-103 (Repl. 1993). The issue on appeal is whether, under the particular circumstances of this case, the appellant was deprived of his constitutional right to counsel. We hold that he was not, and affirm his convictions.
The appellant was charged by information on May 24, 1994. Initially, counsel was appointed to represent him. However, in January of 1995, the appellant, with his own funds, hired attorney John L. Kearney. Kearney was officially substituted as counsel of record on January 24, 1995.
Unbeknownst to the appellant, Kearney had recendy been the subject of disciplinary proceedings before the Supreme Court Committee on Professional Conduct. By letter opinion issued May 26, 1994, the Committee suspended Kearney’s license for six months. Kearney appealed the suspension, and the appeal was pending in January of 1995, when he was hired by the appellant. At no time between the day Kearney was hired and the day of the appellant’s trial on June 1, 1995, did Kearney inform the appellant that he was in the process of appealing a suspension of his license to practice law.
On May 22, 1995, ten days before the appellant’s trial, we issued our opinion affirming the Committee’s suspension of Kear-ney’s license. Kearney v. Committee on Professional Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995). However, in accordance with Ark. Sup. Ct. R. 5-3, our mandate was not issued until June 9, 1995, eight days after the appellant’s trial.
The appellant first learned of the disciplinary action against Kearney more than three weeks after trial, in a letter from Kearney dated June 23, 1995. The appellant hired a new lawyer and, on July 5, 1995, filed a motion for a new trial. The basis for his motion was that Kearney’s failure to disclose his licensure status deprived him of his constitutional right to counsel, and that, had he known of the disciplinary proceedings against Kearney, he would have sought a continuance and retained another attorney.
At a hearing on the motion, Kearney admitted that he did not tell the appellant of the disciplinary proceedings against him until his letter ofjune 23. However, he stated that he did not learn of this court’s decision affirming the Committee’s action until June 14 or 15.
On July 24, 1995, the court denied the appellant’s motion for a new trial. Specifically, the court found:
On the date of Defendant’s jury trial, Mr. Kearney did not know his suspension had been affirmed by the Supreme Court and his license to practice law had not yet been suspended. His representation of the Defendant was, in the judgment of this court, effective.
It is from this order that the appellant brings his appeal.
The appellant concedes that, technically speaking, Kearney’s license was still active until June 9, 1995, the date our mandate was issued. The record in this case does not reflect the proceedings surrounding Mr. Kearney’s suspension, so we do not know if he effectively stayed the Committee’s May 26, 1994, suspension of his license. See Procedures of the Court Regulating Professional Conduct of Attorneys at Law, § 5(H). However, since the appellant does not argue this point, we will assume, for purposes of this appeal, that Mr. Kearney was duly licensed on the date of the appellant’s trial, June 1, 1995.
The appellant first challenges the trial court’s finding that, on the date of the trial, Kearney was unaware that this court had affirmed the suspension of his license. A trial court’s findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ARCP 52(a). See also Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). The trial court obviously believed Kearney’s testimony that he was unaware his appeal had been resolved until sometime after the appellant’s trial. However, the appellant argues that Kearney’s professed ignorance is not believable, and he points to our official report of Kearney’s appeal which indicates Kearney was proceeding pro se. Kearney denied at the hearing that he had handled his own appeal, insisting that the appeal was handled by his brother, Je/f Kearney. Indeed, the Southwestern Reporter lists Jeffrey Kearney as attorney. We also note Kearney’s testimony that, during the course of the appeal, our clerk’s office mistakenly communicated with an attorney who no longer represented Kearney. In light of the foregoing, there was a legitimate dispute concerning when Kearney became aware that his suspension had been affirmed. We defer to the trial court’s ascertainment of the credibility of the witness and therefore cannot say that the courts finding was clearly erroneous.
In light of the appellant’s concession that Kearney was still a licensed attorney at the time of trial, and in light of the trial court’s findings regarding the timing of Kearney’s knowledge, the question on appeal, pared to its essence, is this: is an appellant deprived of his constitutional right to counsel if his licensed attorney fails to inform him that he is in the process of appealing a license suspension?
The appellant urges us to hold that Kearney, in failing to so inform him, violated the spirit, if not the letter, of certain rules governing attorney conduct. In particular, he points to Rule 1.4(b) of the Model Rules of Professional Conduct and § 7(D) of the Procedures of the Court Regulating Professional Conduct of Attorneys at Law. Rule 1.4(b) reads:
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Section 7(D) provides:
In every case in which an attorney is disbarred, suspended or surrenders his license, the attorney shall, within twenty (20) days of the disbarment, suspension or surrender:
1) Notify all his clients in writing. . . .
There has been no specific finding, either by the Committee on Professional Conduct or by the trial court, that Kearney violated these rules. It is not the function of this court to make such findings in the first instance. Our task is to conduct an appellate review of rulings obtained at the appropriate judicial or administrative level. We do not address an issue in the absence of such a ruling. Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995). Therefore, we decline to speculate on the effect of possible attorney conduct violations on an appellant’s right to counsel, or whether such violations occurred at all.
Next, the appellant cites a number of federal cases, particularly from the Second Circuit, which address the issue of how a lawyer’s misconduct or licensure status may affect a client’s right to counsel. That circuit has recognized that, in cases where counsel has never passed the bar exam, or has obtained his law license by fraudulent means, or is himself implicated in the same crime the accused is charged with, there is a per se violation of the appellant’s right to counsel. See Solina v. United States, 709 F.2d 160 (2d Cir. 1983); Novak v. United States, 903 F.2d 883 (2d Cir. 1990); and United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984), respectively. However, the Second Circuit has expressly refused to extend its per se rule beyond those extreme situations. See Bellamy v. Cogdell, 974 F.2d 302 (2d Cir. 1992), cert. denied, _ U.S. _, 113 S. Ct. 1383 (1993), a case with facts similar to this one in which the court found no violation of the accused’s right to counsel.
The state cites the case of United States v. Williams, 934 F.2d 847 (7th Cir. 1991). There, a disciplinary committee decided to suspend counsel’s license during the time counsel was representing the appellant at trial. However, the suspension did not become effective until after trial. The Seventh Circuit declined to hold that such circumstances constituted a per se violation of appellant’s right to counsel.
Our research has turned up a number of cases involving disciplinary orders which were not effective until after trial or of which the parties were unaware until after trial. United States v. Stevens, 978 F.2d 565 (10th Cir. 1992); United States v. Mouzin, 785 F.2d 682 (9th Cir.), cert. denied, 479 U.S. 985 (1986); McDougall v. Rice, 685 F. Supp. 532 (W.D.N.C. 1988); Commonwealth v. Beverly, 389 Mass. 866, 452 N.E.2d 1112 (1983); People v. Watkins, 220 Ill. App. 3d 201, 581 N.E.2d 145 (1991). In these cases, the courts held that there was no violation of the accused’s right to counsel.
The appellant in this case was represented at trial by an attorney who he admits was duly licensed. He can point to no errors or omissions on the part of his attorney, nor to any tangible effect that his attorney’s pending suspension had on his trial. Under the circumstances of this case, we find no violation of appellant’s right to counsel.
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BRADLEY D. JESSON, Chief Justice.
This appeal concerns a one-cent sales-and-use tax adopted by the majority of Sebastian County voters in a June 21, 1994, special election. Over one year after the election, on June 28, 1995, appellant Jim Sanders filed this illegal-exaction suit against appellees Sebastian County and Sebastian County Judge Bud Harper, claiming that the one-cent tax was in excess of the one-half of one percent permitted by Article 16, § 9, of the Arkansas Constitution. Citing our decision in Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g, 321 Ark. 116-A, 901 S.W.2d 809 (1995), in which we held that Article 16, § 9, applies to ad valorem property taxes, the appellees moved to dismiss appellant’s complaint. Thereafter, appellant amended his complaint to include allegations that the emergency clause in the ordinance calling the election was invalid and that county officials had failed to properly publish the ordinance and had engaged in various acts of election misconduct. The appel-lees moved for summary judgment, and appellant filed a cross-motion for summary judgment. The chancery court granted summary judgment in favor of the appellees. We affirm.
Article 16, § 9
For his first allegation of error, appellant asserts that the chancery court erred in finding that Article 16, § 9, of the Arkansas Constitution has no application to Sebastian County’s one-percent sales-and-use tax. Article 16, § 9, of the Arkansas Constitution reads as follows:
No county shall levy a tax to exceed one-half of one percent for all purposes, but may levy an additional one-half of one percent to pay indebtedness existing at the time of the ratification of this Constitution.
Appellant asks us to overrule Foster v. Jefferson County Quorum Court, supra, in which we were faced with essentially the same questions presented here. In Foster, we explained at length why Article 16, § 9, limits county tax levies to the ad valorem property tax, and does not fix a limit on sales-and-use taxes.
There is a strong presumption of the validity of prior decisions. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. Independence Fed. Bank v. Payne Webber, 302 Ark. 324, 789 S.W.2d 725 (1990); Thompson v. Sanford, supra. The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. Hilton v. S. C. Pub. Rys. Comm’n, 502 U.S. 197 (1991), citing Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986). In this case, the appellant has not given us any convincing authority or reasons why Foster should not be followed. As we decline to overrule Foster, it is unnecessary to reach appellant’s alternative arguments that the chancery court erred in ruling that the tax was levied by the State and not the county, and that the tax was not enacted for all purposes.
Emergency clause
Appellant next claims that the emergency clause of the ordinance calling the special election failed to adequately define an emergency in accordance with Ark. Code Ann. § 14-14-908(c) (1987). In enacting Ordinance No. 94-10, the Sebastian County Quorum Court determined that “there is a great need for immediate improvement of general municipal and county services and for. a source of revenue to finance improvement in such services.” The chancery court ruled that this declaration expressed an emergency, and, alternatively, even if it had not adequately stated an emergency, the invalidity of the emergency clause would have no legal effect upon the vote of the people in the special election. While we affirm the chancery court’s ruling, we do so for a reason somewhat different than the one expressed. Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). In this case, we need not decide whether the emergency clause states a fact that constitutes an emergency because we conclude that no emergency clause was necessary.
The significance of an emergency clause is its effect on the people’s reserved right of referendum. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995). As a result, the subject of emergency clauses is expressly controlled by Amendment 7 to the Arkansas Constitution. Id. Here, the Sebastian County Quorum Court called a special election to submit the one-cent sales-and-use-tax issue to its voters. It was not enacting law; thus, no emergency clause was required. We explained this point in Chastain v. City of Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945), where we held that an ordinance passed by the Little Rock City Council ordering the annexation of certain territory to be submitted to the voters was not a measure subject to the referendum provisions of Amendment 7. A referendum would have involved holding an election to determine whether an election should be held, and we said that one election on the principal issue presented by the ordinance was enough. See also Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950). To hold otherwise
would be to the effect that the electors of the city would have the right to vote at an election upon the question as to whether an election should be held, to which they would vote upon another question, or the same question, at a succeeding election . . . The law does not require a vain thing to be done.
Chastain at 147, quoting Campbell v. City of Eugene, 240 P. 418 (Ore. 1925). See also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). In short, because the Sebastian County Quorum Court’s action in calling the special election was not a legislative enactment, an emergency clause was not required.
Appellant also asserts that Ordinance No. 94-10 violated § 14-14-908(b), which states that “[a]n emergency ordinance or amendment shall not levy taxes. . .” We disagree that the ordinance itself levied the tax within the meaning of this statute. Rather, the ordinance was merely the first step in a process authorized by Act 26 of 1981, codified at Ark. Code Ann. § 26-74-201 et seq. (1987 & Supp. 1995), for the collection of the tax. In this case, Ordinance No. 94-10 merely called for an election on the issue. See § 26-74-207. In sum, appellant’s argument is without merit.
Election misconduct
Finally, appellant argues that the chancery court erred in finding that the numerous claims of alleged misconduct by appellees were barred by the statute of limitations. In his complaint, appellant alleged that (1) county officials failed to comply with statutory requirements in publishing notice of the special election; (2) they falsely claimed prior to the election that the tax would last for only ten years, when a “sunset clause” was omitted from the ordinance; and (3) they intentionally delayed mailing 6,000 tax statements until after the election.
We agree that appellant’s claims are barred by the statute of limitations. Arkansas Code Annotated § 26-74-209(c) requires that any person desiring to challenge election results file such a challenge within 30 days after the date of publication of the proclamation. The proclamation of the results of the June 21, 1994, special election was published on June 28, 1994. As appellant did not assert these election-based claims until he filed his amended complaint on July 31, 1995, they are barred.
In his reply brief, appellant complains that the additional record designated by appellees, consisting of appellant’s original complaint and the appellees’s motion to dismiss, was unnecessary. He asks that, regardless of the disposition of this case, the appellees be required to pay the costs of the supplemental transcript. As we are affirming this appeal, we deny appellant’s request in accordance with Ark. Sup. Ct. R. 6-7(a).
Affirmed.
Dudley, J., not participating. | [
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Donald L. CORBIN, Justice.
Appellant, Troy Lee Mayo, appeals the order of the Monroe County Circuit Court sentencing him to forty years’ imprisonment, following a jury’s verdict of guilty on the charges of rape, robbery, and first-degree battery. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2).
Appellant raises two points for reversal of the judgment and sentence: First, that a criminal defendant is not required under the Equal Protection Clause of the United States Constitution to follow the ruling of Batson v. Kentucky, 476 U.S. 79 (1986), in exercising peremptory challenges of jurors; and second, that the trial court erred in finding that appellant did not articulate non-discriminatory reasons for exercising its peremptory challenges in response to the state’s objection.
As to appellant’s first point, we do not reach the merits as the issue was not properly preserved below nor was it argued to the trial court. We have repeatedly held that this court will not address arguments, even constitutional arguments, raised for the first time on appeal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). However, even if this point had been properly preserved for appeal, we are persuaded that the argument is without merit, in light of the United States Supreme Court’s ruling in Georgia v. McCollum, 505 U.S. 42 (1992), which held that, “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” Id. at 59 (emphasis added). As to appellant’s second point, again, we do not reach the merits as the abstract of the record is flagrantly deficient, due to the fact that critical portions of the record necessary for review of this issue are omitted. Accordingly, we affirm the judgment of conviction.
From the abstract provided, we can ascertain that appellant had used five peremptory challenges to strike white jurors and that the state had objected to these strikes as being racially-based in contravention of the ruling in Batson. After hearing the state’s objection, the trial court found that as to four of the five jurors it was not “immediately obvious” that the appellant may have had a “nonracial,” or racially neutral, reason for striking them. The trial court then required appellant’s counsel to explain why he had struck the remaining four jurors.
As to two of the four jurors, Mr. Davis and Ms. Hickman, appellant’s counsel stated that he had peremptorily challenged them because they were nonresponsive, both verbally and physically, to some of the questions posed by him. Appellant’s counsel then explained to the trial court that he had chosen to strike the third juror, Ms. Nash, because she was a beautician, and he felt that her exposure in the community would make her more likely to know something about the case, or to have heard about the case. Finally, with regard to the fourth juror, Ms. Porter, appellant’s counsel stated that he was concerned with the fact that she was a pharmacist by profession and that because her work was some distance away in Little Rock, she may not have the ability to pay attention at trial.
After hearing the explanations provided by appellant’s counsel, the trial court announced that it was not convinced there were “non-racial” reasons for striking Mr. Davis and Ms. Hickman, and thus, the court seated them on the jury, over the appellant’s objection. With regard to Ms. Nash, the beautician, the trial court accepted appellant’s counsel’s explanation for striking her and denied the state’s motion. Lastly, concerning Ms. Porter, the trial court noted that although she was a pharmacist, she was no more medically knowledgeable than a nurse (who presumably had been selected as a juror, although the abstract does not reveal this), and that there had been nothing to indicate that she was so concerned about her job in Little Rock that she could not maintain attention at trial. The trial court ultimately found that appellant’s counsel had not provided a “non-racial” explanation for striking Ms. Porter, and she, too, was seated on the jury.
As to the Batson argument made by appellant, we have been provided very little information with which to reach the merits of the issue. Pursuant to Ark. Sup. Ct. R. 4-2 (a) (6), an appellant’s abstract should consist of an impartial condensation of “only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” (Emphasis added.) In the event this court finds an abstract to be “flagrantly deficient,” Ark. Sup. Ct. R. 4-2(b)(2) provides that the judgment below may be affirmed for noncompliance with the Rule. We find the abstract submitted in this case to be flagrantly deficient, as it fails to provide the documents or materials necessary to an understanding of the issue presented.
Specifically, this abstract sinks to the level of being flagrantly deficient in that it does not contain those documents which are the bare essentials of an abstract, such as the information, the judgment and commitment order, and the notice of appeal. Particularly, as to the Batson issue, the abstract does not provide the final composition of the jury which heard the case, the number of white persons who sat on the jury, the total number of white persons in the jury venire, or the total number of peremptory strikes exercised by the appellant. Furthermore, the abstract does not provide the relevant colloquy between appellant’s counsel and each of the aforementioned jurors during the voir dire proceeding, nor does it even state for certain that the appellant is not white — we are only to assume that fact. Moreover, it is only from the supplemental abstract provided in appellee’s brief that we are informed the trial court reimbursed appellant with three additional peremptory strikes to make up for the three jurors the court had seated over his objection. Due to appellant’s failure to include this necessary information in his abstract, we are unable to determine whether the trial court erred in seating the three white jurors over the appellant’s objection.
We do not presume error simply because an appeal is made. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). We have repeatedly held that as there are seven justices on this court, it is virtually impossible for all seven to read the one record filed with the appeal. See, e.g., Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). Due to appellant’s failure to adequately abstract the record as to the Batson issue raised in his brief, we find that the record is insufficient to demonstrate error. See, e.g., Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995). We hold that appellant’s abstract is flagrandy deficient in violation of Ark. Sup. Ct. R. 4-2(a)(6), and we affirm the judgment of conviction.
Affirmed.
Dudley, J., not participating. | [
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DONALD L. Corbin, Justice.
Petitioner, the law firm of Boswell, Tucker & Brewster, filed this original action for a writ of prohibition against respondent, the Honorable Phillip Shirron of the Saline County Circuit Court. Respondent did not respond, and we requested briefs from both parties. Boswell, Tucker & Brewster v. Shirron, 322 Ark. 111, 906 S.W.2d 315 (1995) (per curiam). Petitioner seeks a writ prohibiting respondent from exercising “any further jurisdictional authority over any Boswell law firm case” and from “presiding as the judge over any Boswell law firm litigation.” Jurisdiction of a petition for writ of prohibition is properly in this court pursuant to Ark. Sup. Ct. R. 1-2 (a) (6).
On May 25, 1995, respondent entered the following order, which is quoted in its entirety:
IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Comes The Honorable Phillip Shirron, to transfer all cases in which the law firm of Boswell, Tucker and Brewster represents any party, to the other divisions of the Seventh Circuit Courts.
IT IS SO ORDERED.
/s/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date 5/25/95
On June 2, 1995, respondent entered the following order, which we also quote in its entirety:
IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Now, upon reconsideration of the Uniform Order entered by this Court on May 25, 1995, transferring all cases in which the law firm of Boswell, Tucker and Brewster represent any party to the other divisions of the 7th Circuit Courts, the Court finds that said Order should be and is hereby set aside and held for nought.
IT IS SO ORDERED.
/%/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date: 6/2/95
Petitioner asserts that, after entering the order on May 25, 1995, respondent lacked any further jurisdiction to act in any of petitioner’s cases. Respondent argues that petitioner’s attack is on the two orders themselves, not on the underlying subject-matter jurisdiction of the circuit court to enter such orders. Therefore, argues respondent, prohibition is not appropriate in this case. Respondent argues fhrther that prohibition is inappropriate because there is no record relative to the circumstances surrounding the issuance of either order. We agree with respondent’s latter argument.
A writ of prohibition is an extraordinary writ and is never issued to prevent a trial court from erroneously exercising its jurisdiction, but only where it proposes to act in excess of its jurisdiction. Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990). Issuance of prohibition is discretionary in cases of pressing necessity and should never be granted unless the petitioner is clearly entitled to relief. Id. The record before us does not show that respondent is proposing to act in excess of its jurisdiction or that petitioner is clearly entitled to the relief it requests. Absent such proof, there is no basis upon which to grant the extraordinary relief requested in this case.
Petitioner contends that the reason for the entry of the May 25 order was a recusal required by respondent’s bias or prejudice against petitioner as counsel. Petitioner relies on Matthews v. State, 313 Ark. 327, 331, 854 S.W.2d 339, 341 (1993), wherein we acknowledged authority for the proposition that, “absent a statutory provision to the contrary, a determination of disqualification will not prevent a judge from reassuming full jurisdiction if the disqualification has been removed.” Despite petitioner’s strong suggestions to the contrary, the record does not reveal that the reason for the May 25 transfer order was respondent’s disqualification; nor does the record reveal that any reason for the alleged disqualification exists. In this respect, we note that the affidavit attached to petitioner’s brief is not part of the record or the supplemental record filed in this case. We do not consider the affidavit because we do not consider matters outside the record. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996).
In summary, there is no record to demonstrate any reason for the transfer order, any alleged disqualification, or any continuing reason for any alleged disqualification. There is no identification of which cases, if any, were transferred to other divisions as a result of the May 25 order. Likewise, there is no indication that respondent has taken action in any specific case involving petitioner. Thus, the only issue before us is whether respondent exceeded his jurisdiction in entering the June 2 order. In the absence of a record showing a reason for the transfer order or that any of petitioner’s cases were transferred, we conclude that respondent did not act in excess of his jurisdiction in entering the June 2 order.
The record filed with this petition and the supplemental record do not demonstrate that respondent has acted or has proposed to act in excess of his jurisdiction. Likewise, the record does not show that there is a pressing necessity in this case or that the extraordinary remedy of a writ of prohibition is otherwise clearly warranted. Accordingly, the petition for writ of prohibition is denied.
Brown and Roaf, JJ., dissent. | [
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Walker, Ch. J.: .
Tewksbury brought an action of debt in Conway Circuit ' Court, upon the transcript of a judgment rendered in the State of Ohio, against Egan.
The declaration is drawn in the common law form of debt upon a record, and sets forth fully the proceedings and judgment of the court with profert, as follows:
“ As by the records and proceedings in said court now remaining, more fully appear, a copy of which record duly authenticated, the plaintiff now here in court produces.”
The defendant appeared and filed what he claims to be a plea in bar, which is as follows:
“ Comes the defendant, W. P. Egan, by his attorney, and for plea to said plaintiff’s bill of complaint says, that there is no such record on file, or exhibited to the court as mentioned in said plaintiffs complaint; of this he prays judgment for costs.”
The record entry is, that the cause came on to be heard by the court'on the plea of nul tiel record, wherefore it is considered and adjudged by the court, that the plea is insufficient in law to bar the plaintiff’s action. The defendant interposed no other defense, and judgment was rendered for plaintiff.
Counsel for appellant objects, that as there was no demurrer to the plea, it was irregular for the court to pass upon its sufficiency ; that an issue of nul tiel record having been tendered, the court should have passed upon the issue of record, or no record. ' If, in fact, there had been a plea of nul tiel record filed, and the sufficiency thereof not raised by demurrer, no question as to the sufficiency of the plea being before the court, no judgment could be passed upon it. But we apprehend that the paper filed as a plea of nul tiel record can scarcely be considered such. It neither traverses, nor attempts to traverse, any allegation in the declaration, nor does it deny that there was such record of judgment and recovery as declared upon, but only denies that such record is on file or exhibited.
According to the common law rule of practice, in pleading, the plaintiff was not bound to file the instrument, and could only be made to produce it for the inspection of the defendant, and to furnish him a copy of it, upon his prayer of oyer for that purpose. When, says Gould in his work on pleading, ch. 2, sec. 21, “an action is founded upon a deed or other instrument pleaded with profert, before the defendant can be required to plead to the action, he is entitled to oyer of the instrument; according to the common law form of pleading, the offer to bring the instrument declared upon into court, is in effect holding it ready to be produced, when, upon oyer, required to do so.
By our Civil Code of Practice, sec. 148, the party relying upon a deed or other writing, should (if in his power) file the same Avith his complaint, and if he failed to do this, it might be re qnired of him by the court upon motion for that purpose. The proceeding by motion is by our Code of Practice substituted for a common law prayer of oyer, the object of both being to bring the instrument declared upon before the court, and before which time the defendant is not required to answer the complaint.
The objection filed by the defendant, that the record sued upon had not been filed, when, in fact, he had neither made prayer of oyer under the common law practice, nor moved the court to have the record filed under the Code Practice, was certainly no defense to the action, nor intended to put any allegation of the declaration in issue, and upon motion it should have been stricken out as a nullity, and judgment .rendered for want of plea. Crary v. Beebe, 4 Ark., 206; Badgett v. Martin, 7 Eng., 743.
In this instance the legal effect of the judgment of the court, that the plea was insufficient, was that it was no defense. The defendant declined to plead further, and judgment was properly rendered nil dicit in favor of the plaintiff for the sum demanded in his declaration. Finding no error in the judgment of the Circuit Court, the same is in all things affirmed. | [
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English, Ch. J.:
On the 18th August, 1877, Peter R. Johnson brought an action of trespass, in the Circuit Court of Miller County against the St. Louis, Iron Mountain & Southern Railway Company, alleging in substance that in the year 1873, the Cairo and Fulton Railroad. Company, since consolidated with the defendant company, constructed its road over the lands of plaintiff, without paying for the right of way, etc.
A demurrer was sustained to the complaint and plaintiff appealed.
The questions involved in the case were settled Cairo and Fulton R. R. Co. v. Turner, 31 Ark., 494; and the judgment-must be affirmed. | [
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English, Ch. J.:
On the 10th of December, 1872, Robert L. Steele, of Rockingham, North Carolina, acting by an agent, loaned to John W.. Moore, of Little Rock, $2200, for one year, at 20 per cent, interest. The interest for the year, amounting to $440, was added to the principal, and Moore and his wife, Sarah A., made a joint note for $2640, payable at twelve months, bearing" interest at 20 per cent, after maturity. To secure the payment of the note, the wife attempted to join the husband in executing a mortgage to, Robert A. Little, as trustee of Robert L. Steele, upon lot seven,, in block two, E. Q. P. Little Rock, which she inherited from her father, John Robins. The execution of the mortgage was, acknowledged before a notary public, who was, no doubt, ignorant of the law and forms of conveyancing, and who made a very defective certificate of the wife’s acknowledgment, and perhaps failed to authenticate it with his official seal. Afterwards Mrs. Moore died, leaving an infant son, John Slocum, by a former husband, who inherited from her the mortgaged lot. The bill in this case was brought in the Pulaski Chancery Court, against her surviving husband, alleged to be a tenant by the courtesy, and John Slocum, to foreclose the mortgage.
Creditors of John W. Moore were also made defendants, but they set up no claim upon the premises.
An answer was filed for John Slocum, by Moore, as his guardian, putting in issue tlie allegations of the bill.
During the pendency of the suit in the court below, Moore died, the relief prayed as to him was abandoned, and George E. Dodge, who succeeded him in the guardianship of John Slocum, was made defendant.
On the hearing, the Chancellor hold that the mortgage was not executed by Mrs. Moore in accordance with the statute, and hence was as to her and her heir invalid, and dismissed the bill for want of equity.
Plaintiff appealed.
It appears that a former suit had been brought to foreclose the mortgage, and that the papers in the case, including the original mortgage were misplaced or destroyed during the Brooks-Baxter war, some of the soldiers of Brooks having occupied the office of the Chancery Clerk.
A recorder’s copy of the mortgage was made an exhibit to the bill in this suit. The mortgage is in good form. The notarial certificate of acknowledgment is as follows:
“ State of Arkansas, County of Pulaski:
“On this, the 10th day of December, 1872, personally appeared before me, a duly commissioned and acting notary public The said J. W. Moore and his wife, S. A. Moore, grantors in the foregoing deed of conveyance, to me well- known as the parties to said deed, and acknowledged that they had signed and sealed the same as their act and deed, and the said S. A. Moore, and being duly by me privily examined separate and apart from her husband, she says she signed said deed freely, and of her own consent, and not by pursuasion or compulsion of her said husband.
“ Given under my hand and the seal office this 10 day of December, 1872. A. A. Stoddard,
Notary Public.”
There is nothing in the recorder’s copy to represent a notarial seal, the usual L. s. and scroll [l. s.] being omitted.
John Stoddard was called as a witness by appellant, and permitted by the court, against the objections of appellee, to testify as follows':
“ I was a duly commissioned and acting notary public on the 10th of December, 1872. I. had a seal of office at that time. It was my custom to affix said seal to all instruments of this kind.” (Examining the recorder’s copy of the mortgage made an exhibit to the bill.) “ To the best of my knowledge and belief, I affixed my seal to this instrument.”
On cross-examination he further deposed: “ I have no guide to refresh my memory except the certificate I sec to this copy. I know it was my custom to affix the seal to all instruments of this character. I have no personal recollection of the matter, but merely suppose I affixed the seal thereto, because I had a seal at that time, and it wras my custom to do so.”
On re-examination by appellant; “ I occupied the position of book-keeper at Stoddard’s Bank, at that time. I had more business of this kind than any notary in the city. I kept my seal at the bank. I do not think there is any probability of my having omitted the seal to this instrument.”
The depositions of the attorneys of appellant, who brought the first suit, and who had been in possession of the original mortgage, were taken and read, as to its loss, etc., but they did not state whether the certificate of acknowledgment was authenticated by the notarial seal, or not. Stoddard was the only witness who was examined as to this matter, and the Chancellor seems to have regarded his statement as insufficient to prove that the certificate of acknowledgment to the original mortgage was authenticated by the seal of the notary.
By the common law, a married woman could convey her real estate by a fine or common recovery. She could not convey by deed.
In England, and in most of the States of this Union, provision has been made, by statute, for the wife to convey her estate, by deed, with the consent of her husband, and the private examination of a magistrate.
By our Statute:
“ A married woman may convey her real estate, or any part thereof, by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed.” Gantt’s Dig., sec. 838.
She “ may relinquish her dower in any of the real estate of her husband, by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed.” Ib., sec. 839.
“ The conveyance, of any real estate, by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated and the title passed, by suc.h married woman voluntarily appearing before the proper court or officer, and, in the absence of her husband, declaring that she had,.of her own free will, executed the deed or instrument in question, or that she had signed the relinquishment of dower, for the purposes therein contained and set forth, without compulsion or undue influence of her husband.” Ib., sec. 849.
The acknowledgment of deeds, etc., within the State, may be taken before the Supreme Court, the Circuit Court, or either of the Judges thereof, or the clerk of any court of record, or before any justice of the. peace, or a notary public. Ib., secs. 841, 849. . .
“ Every court or officer that shall take the proof or acknowledgment of any deed or conveyance of real estate, or the relin quishment of dower of any married woman in any conveyance of real estate of her husband, shall grant a certificate thereof, and cause such certificate to be endorsed on said deed, instrument, conveyance, or relinquishment of dower, which certificate shall be signed by the clerk of the court when probate is taken in court, or by the officer before whom the same is taken and sealed, if he had a seal of office.” Ib., 844.
Inasmuch as a married woman could not, by the common law, convey her estate by deed, and can only do so by virtue of the statute, any substantial deviation from the form thereby prescribed, will render the deed invalid. McDaniel v. Grace et al., 15 Ark., 479; Stillwell and wife v. Adams et al., ex’rs., 29 Ark., 346; Wood and wife v. Terry et al., 30 Ib., 391.
A substantial compliance with what the statute requires to be done, ought affirmatively to appear from the certificate. A literal compliance with the statute is not required — the words of the statute need not be used — words of similar import may be employed, but the courts cannot dispense with a substantial compliance with the statute. They cannot supply, by intendment, important "words omitted in the certificate. Jacoway v. Gault, adm’r, 20 Ark., 194.
The certificate of the notary was not good as to the husband’s acknowledgment in this case. The statute requires the grantor, (other than a married woman,) to state “ that he had executed the same (the deed) for the considerations and purposes therein mentioned and set forth.” Gantt’s Dig., sec. 846.
The notary puts the husband and the wife together in the commencement of the certificate, and says that they “ acknowledged that they had signed and sealed the same (the deed) as their act and deed,” and then he drops the husband and takes up the wife. As to the husband, the words, “ for the consideration and purposes therein mentioned and set forth,” are "wholly wanting, and such an omission was held to be fatal, for the purposes of registration, in Jacoway v. Gault, adm’r.
In this case the certificate of the notary, as to the wife’s acknowledgment, omits the words of the statute, “ for the purposes therein contained and set forth,” and no words of similar import are used.
The wife is not required to declare that she had executed the instrument for any consideration, for that may go to the husband, but she must declare that she executed it for the “ purposes therein contained and set forth,” in the language of the statute, or in words of similar import, for she thereby indicates that she is acquainted with, or understands the nature of the conveyance; whether it be an absolute deed, a mortgage, or a lease, etc. It is' important that she should know the purposes and contents of the instrument which she is asked to execute, and the certificate of the officer taking the acknowledgment, should by words substantially equivalent to the language of the statute, show that fact.* It is safer and better to follow the language of the statute, and to use approved forms. The guards which the law-makers have placed around the wife, to protect her against imposition in the disposition of her estate, are not to be disregarded or displaced by the courts, but to be maintained, and the spirit and intention of the statute enforced.
When the wife conveys her real estate, she must declare that she had “ executed ” the deed, etc.
When she relinquishes dower in her husband’s lands, she must declare that she “ had signed ” the relinquishment of dower, etc.
In the original statute she was required to declare that she had “signed and sealed” the relinquishment of dower, etc. Gould’s Digest, sec. 21, ch. 37. But in the present Digest, Mr. Gantt left out the words “and sealed,” because by a clause in the Constitution of 1868, private seals were abolished.
In this case the wife attempted to convey her real estate, and, ip the certificate of her separate acknowledgment, the notary omits the wórds “executed the deed” and substitutes therefor the words “signed said deed,” etc.
In Jacoway v. Gault, adm’r, it was Held that the words “signed, sealed and delivered,” employed in the certificate were equivalent to the word “executed,” used in the statute.
In Tubbs et al. v. Gatewood et al., 26 Ark., 130, the validity of a wife’s deed for her land was questioned. In the certificate of her acknowledgment the words “signed and sealed” were used in the place of the word “executed.” Mr. Justice Harrison, who delivered the opinion of the court, said: “Though signing and
sealing, without delivery, is not a complete execution of an instrument, the phrase ‘signed and sealed’ in the certificate, was obviously used agreeably to the common understanding and acceptation of its meaning as an equivalent expression for ‘signed, sealed and delivered-,’ or ‘executed.’ ”
The statute requires the wife to declare that “she had, of! her ■own free will’executed the deed, etc., without compulsion or undue influence of her husband.”
The notarial certificate uses this language: “She says she signed said deed freely and of her own consent, and not by persuasion or compulsion of her said husband.”
The words “undue influence” are omitted, and others substituted of less force and appropriateness, but, while we arc not disposed to encourage, but to disapprobate, departures from the words of the statute, we cannot affirm that the words used by the notary are not a substantial compliance with the statute, they indicate a voluntary execution of the deed by the wife.
Mr. Gould appended to his Digest, as directed by the revision Act of 14th January, 1857, forms to be used by justices of the peace under the statutes. His work was examined and approved by George C. Watkins. Both of them were good lawyers, and experienced conveyancers.
The form of acknowledgment by husband and wife of a joint deed, for the wife’s land, furnished by Mr. Gould for the use of justices of the peace is as follows:
“State of Arkansas, County of-:
‘••'On this-day of-, in the year of our Lord one thousand eight hundred and-, before me--, an acting and duly commissioned justice of the peace within and for the county of ----, in the State of Arkansas, appeared in person------, to me well known as the person whose name appears upon the within and foregoing deed of conveyance, as one of the parties grantor, -and stated that he had executed the same for the consideration and purposes therein mentioned and sot forth, and I do hereby so certify.
“And I further certify, That, on this day, voluntarily appeared before me------, wife of said------, to me well known to be the person whose name appears upon the within and foregoing deed, and, in the absence of her said husband, declared that she had of her own free will executed the same for the purposes therein contained and set forth, without compulsion or undue influence of her said husband.
“In testimony whereof, I have hereunto set my hand as such justice of the peace, at the county of--on the- dav of --, 18--. J. R ”
This form complies with the requirements of the statute, ana is unquestionably good, and, with but little modification, maybe used by a notary public or other officer authorized to take acknowledgments.
Where the acknowledgment is taken by a notary public or other officer having a seal, it should be authenticated by his official seal. Blagg v. Hunter, 15 Ark., 246; Gantt’s Digest, sec. 4302, 877.
The Chancellor was not convinced from the evidence before him that the notary attached his official seal to his certificate of acknoAvledgment upon the original mortgage.
Had either of the attorneys in Avhose hands the original mortgage Avas placed for foreclosure, and who filed it as an exhibit in the first suit, and must have examined it when they drafted the bill, deposed that the notarial seal was attached to the certificate, this might have been satisfactory to the Chancellor, but neither of them so deposed. The notary founded his belief upon his habit of using his seal, and not upon any recollection of Avhat he did in this particular case.
We would not disturb the finding of the Chancellor upon a matter of fact, unless theye is a decided preponderance of evidence against his judgment, as avo have repeatedly held. But if the seal Avas in fact affixed, the certificate was otherwise fatally defective as above shoAvn.
It may be hard that appellant should lose the benefit of the mortgage by the negligence or incompetency of the notary, but Ave cannot change, or disregard the Ihav to prevent such hardship.
Decree affirmed. | [
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Harrison, J.:
Tbe appellant, John A. Cole, presented to the County Court of White County, for allowance, nine several claims for services and expenditures by him as clerk of said county, as follows :
CLAIM ONE.
For furnishing county assessor abstract of real estate in the assessment of 1872...............$100 00
For keeping abstracts of county warrants issued, 100 00
For services rendered in keeping county audit four years and six months........................ 250 00
For filing 835 county warrants..................... 83 50
$533 50
CLAIM TWO.
For 1911 indexings to records of deeds, J., len cents each............................................$191 10-
CLAIM- THREE.
For filing 302 county warrants at ten cents each...................................................$ 30 20-
CLAIM FOUR.
For entering 1537 orders of County Board of Equalization, twenty-five cents..................$384 00 '
For indexing same, ten cents each............... 153 70-
For 4200 filings of schedules of personal assessments 1872, ten cents each....................... 420 00
For sixteen summons for grand jurors........... 16 00-
For sixteen copies of same.......................... 4 00
For six summons alternate grand jurors......... 6 00
For six copies of same, twenty-five cents each, 1 50-
For twenty-four summons petit jurors........... 24 00-
For six summons for alternates.................... 6 00
For copies of summons for petit jurors........... 7 50<
$1022 70-
CLAIM FIVE.
To summoning nineteen justices of the peace to organize County Court — January, 1871...$ 9 00-
CLAIM SIX.
For copy of Delinquent List of Real Estate to
Auditor for 1870-71, at ten cents per tract...$ 65 60
For a copy of Delinquent List of Real Estate, , 1870-71, entered, on record at ten cents per tract................................................... 65 60
For fifteen days services making settlement with collector of taxes, 1871..................... 100 00
. $231 20
CLAIM SEVEN.
For amount paid for cutting wood for office...! 1 65
For amount paid for postage stamps.............. 3 30
For amount paid for same.......................... 4 95
For filing and canceling 668 county warrants.. 66 80
For qualifying fourteen school trustees........... 3 50
For twenty-two filings, reports and oaths of office of county school trustees.................. 2 20
For two loads wood for office....................... 4 40
For five loads of same............................... 11 00
For postage stamps for office....................... 4 90
For fifty-two orders — Circuit Court Criminal Record, April Term, 1869, twenty-five cents each................................................... 13 00
For thirty-five opening and closing and other orders on Circuit Court Equity Record, April, 1869, fifty cents each.............................. 17 50
For thirty orders on Common Law Record Circuit Court, November Term, 1869, twenty-five cents each........................... 7 50
For twenty three Circuit Court Equity Record from April 8th, 1868, to January 20th, 1869, fifty cents each...................................... 11 50
For 106 opening and closing orders on Probate Court Record, from January 10th, 1868, to January 31st, 1869j fifteen cents each......... 15 90
$168 10
CLAIM EIGHT.
Eor 1648 indexings to Marriage Record, ten cents each............................................$160 80
Eor 1648 reversed indexings to same............ 160 80
Making general index of official bonds......... 20 00
$341 60
CLAIM NINE.
This claim consists of more than a hundred items, amounting in the aggregate to $2,164.72, but is credited, thus: “ By allowances on general account - made at former terms, $1350.” Balance claimed, $814.72. Erom the view we take of it, hereinafter stated, it is unnecessary to set it out more particularly.
The court allowed the whole of claims, one, two, eight , and nine; the third item, and thirteen dollars of each of the other charges in claim six; the first to the third, and the fifth to the thirteenth items inclusive, and rejected all the others of claim seven; allowed $180 for the first and second items, and the third entirely of claim eight; and refused to allow, either in whole or in part, claims three, four and five. Although the court allowed the whole of nine, it ordered that no warrant should be issued until Cole should pay into the county treasury $1878.79, that he had drawn for the county from the State Treasury, and retained in his hands.
Cole appealed to the Circuit Court in the cases of claims three, four, five, six, seven and also nine; and it appears the county, by her attorney, in the cases of claims one, two and eight.
In the Circuit Court the cases were severally tried by the court sitting as a jury — and in claim one, Cole recovered 10 cents, only, — for filing the county warrants; on claim two, $48; on claim three, 10 cents; on claim four, $6, for summonses for alternate grand jury; on claim six, $26.10 — $26 for the first two items, and 10 cents for the third; on seven, $66.65, for wood furnished the office, cutting the same, and for the orders on the several courts’ records, except the Probate, as charged; and on eight, $200 — $180 for the indexes to the Marriage Record, and $20, as charged, for the index to the record of official bonds. In the cases of claims five and nine, the judgments were for the county.
Cole appealed in all cases to this court.
The cases were determined in the County Court, and the appeal taken to the Circuit Court before the adoption of the present Constitution; until which time the law made no provision for an appeal, by or in behalf of the county, from an order or judgment of the County Court, allowing a claim against the county. Chicot County v. Tilghman, 26 Ark., 461; Austin v. Crawford County, 30 Ark., 578. The Circuit Court, -therefore, acquired no jurisdiction in the cases of claims one, two and eight, by the appeals attempted in behalf of the county by her attorney, and those cases are not properly before us for review.
All the cases having been submitted as one, we will consider the others together.
It is an established rule of law, that where the compensation of an officer is regulated by fees, he can only demand such fees as are fixed and authorized for the performance of his official duties, and he cannot charge for a particular service for which no special fee is given, unless its payment is allowed by some general provision, likeithat of sec. 2894, Gantt’s Digest, that in all cases where any officer or other person is required to perform any duty for which no fees are allowed by any law, he shall be entitled to receive such pay as would be allowed for similar services. Crittenden County v. Crump, 25 Ark., 235; Debott v. Trustees, etc., 7 Ohio St., 237; Baker v. Utica, 19 N. Y., 326; Bicknell v. Amador County, 30 Cal., 237; Town of Carlyle v. Sharp, 51 Ill., 71; Rawley v. Commissioners of Vego County, 2 Blackf., 355.
Such general provision, however, does not embrace services required to be performed for the State or county; for it is also another well settled rule, that in the construction of statutes declaring or affecting rights and interests, general words do not include the State or affect its rights, unless it be especially named, or it be clear by necessary implication, that the State was intended to be included. Sedg. on Con. and Stat. Law, 337; 1 Black. Com., 261; 1 Kent Com., 460 ; Josselyh v. Stone, 28 Miss. 753; United States v. Hoar, 2 Mason, 311; People v. Rossiter, 4 Con., 143.
Counties are civil divisions of the State for political and and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government. 1 Black Com., 113; 2 Kent. Com., 274 ; Boone County v. Keck, 31 Ark., 387; United States v. Railroad Company, 17 Wall., 322; Ward v. County of Hartford, 12 Cown., 404; Commissioners of Hamilton County v Mighels, 7 Ohio St., 109 ; Granger and Wife v. Pulaski County, 26 Ark., 37; English v. Oliver, 28 Ark., 317; Knowlton v. Supervisors of Rock County, 9 Wis., 410; Burnham v. City of Fond du Lac., 15 Wis., 193; Hawthorne v. City of St. Louis, 11 Mo., 59; Mayor of Mobile v. Rowland & Co., 26 Ala., 498 ; Erie v. Knapp, 29 Penn. St., 173; Baltimore v. Root, 8 Md., 94.
The Supreme Court'of the United States in the case of United States v. Railroad Company, says: “ A municipal corporation like the City of Baltimore is a representative, not only of the State, but is a portion of its governmental, power. It is one of its creatures made for a specific purpose to exercise within a limited sphere, the powers of the State.”
In the case of Commissioners of Hamilton County v. Mighels, the Supreme Court of Ohio, say : “ A county organization, is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. "With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact, but a branch of the general administration of that policy.” And this court in Granger and Wife v. Pulaski County, say : “ Counties are political divisions of the State government, organized as a part and parcel of its machinery, * * * Their functions are wholly of a public nature, and this creates a matter of public convenience and governmental necessity.”
It follows then, that counties which are component and essential parts of the State, and the necessary agencies of its government, embodiments of the public, are no more embraced in the general words of the statute, than the State itself.
No question like the one before the court can hereafter arise, as'sec. 604, Gantt’s Digest expressly prohibits the County Court from “ auditing and allowing to any officer any fee or allowance, not specially allowed such officer by law; ” but the services for which compensation is here claimed, were all performed before that prohibition was enacted.
In the table of fees of the clerk, especially as clerk of the County Court, he is allowed 10 cents for filing every paper not therein specified. Sec. 2839, Gantt’s Digest. The papers there meant, are such as relate to the personal matters of individuals, who must pay for filing them. And this remark disposes of the charges in claims three, four and seven, for filing canceled warrants, schedules and personal assessments — and reports and oaths of county school trustees.
The orders on the several .county records, charged for in claim seven, were, it seems, such as were incidental to the business of courts, and requisite to a complete history and record of their proceedings, and not separable to any particular action or proceeding. The remuneration for such services as are incidentally rendered the county in the discharge of the officer’s general duties, for which no fee is allowed, is had in the compensation he receives for such public services as are specially paid for, and in the fees paid by individuals in their personal matters, which the legislature has intended to be sufficiently liberal to be an equivalent for all the duties required of him. Irwin v. Commissioners, etc., 1 Serg. & Rawle, 505; Tarpen v. Board of Commissioners, 7 Ind., 172.
The charges in claim four, for entering and indexing the orders of the County Board of Equalization, have not even such semblance of right as for services for which compensation has not been specially provided. The clerk was a member of the board and its clerk, and received $5 per day for the time he served as such. Revenue act of March 25, 1871, sec. 187.
No such service as issuing summons for grand and petit jurors and their alternates was required of the clerk. He was required only to furnish the sheriff with copies of the lists of the jurors and their alternates, that had been selected, and he summoned them without other process. Gantt’s Digest, sees. 3677, 3678.
A similar unauthorized and idle act, was the issuing of summonses for the justices of the peace to attend and hold the County Court, charged for in claim five. The law fixes the times at which the County Court is to be held, of which the justices take notice and attend, without being summoned or called together by the clerk. Nor did the law require him to furnish the Aixditor a copy of the Delinquent List of Real Estate, or to record the same. The revenue act of March 25th, 1871, sec. 104, required him to record the sales of lands for taxes, and to forward to the auditor by the collector, at the time he made his annual settlement, a certified copy of the list of lands sold to the State, and upon which no taxes had been collected. See sec. 5192, Gantt’s Digest.
According to sec. 184, of the Revenue Act of 1871, the clerk was entitled to $5 for each day he was employed in making settlement with the collector. Cole swears he was engaged fifteen days, which was all the evidence as to the time he was employed. The court below allowed him only 10 cents, for his settlement with the collector, and $26.10 on claim six, where he should have been allowed $75, for making settlement with the collector; but nothing for furnishing the auditor with the Delinquent List of Real Estate, and recording the same.
The clei'k is doubtless entitled to a fee for adminstering the oath of office to a school trustee, but the trustee, and not the county should pay it.
It is the duty of the sheriff to furnish .fuel for the courts, and of the clerk, all blank-books and stationery — the accounts for which must be audited and adjusted by the court for which the same is furnished, secs. 1172, 1173, Gantt’s Digest. Cole was not, therefore, entitled to charge the county for wood, and cutting the same for his office. Though it may have been used, when no court was in session, yet it was the duty of the sheriff to furnish it for the office, and have the account for it audited and allowed by the County Court. Postage stamps are often necessary in the discharge of the duties of the clerk’s office, and may properly be considered as stationery, and Cole swears he used the amount charged in the business of his office, and the County Court allowed therefor. We think it a valid charge against the county; yet, as we have seen, the appellant was allowed charges not legally such against the county in the same claim, exceeding in amount what he was entitled to for the postage stamps. The error in the judgment, in the case of claim seven, is not one of which he may complain.
Although the County Court allowed the whole of claim nine, and the sole ground of Cole’s appeal to the Circuit Court, evidently, was the order, withholding the warrant until he paid into the county treasury, the moneys of the county in his hands, the case stood in that court for trial de novo.
The form in which the claim was before the County Court, and went into the Circuit Court, would seem to show, that the balance stated $814.72, was the matter in controversy, ráther than the particular charges; and the finding of the court being general, without any reference to particular items, leads to the conclusion, that on the trial, it considered the $1350, previously allowed by the County Court, covered the full amount due on the account. There was nothing in the case to show which particular items, the allowance of the $1350 was intended to apply, nor in the finding of the court, what items it considered were improperly charged, to make up the balance of $814.72. The only evidence in the case was the deposition of Cole,— that he rendered the services charged for; and that the claim was correct and justly due.
In looking into the claim, we find, that most of the charges are for such services as those we have shown, the law allows no fees for, and costs in State cases, which did not appear to have been adjusted and certified by the Circuit Court, as required by sec. 2017, Gantt’s Digest; and there was the erroneous charge of $1000, for making out the tax books of real and personal property, in 1872. The Circuit Court did not err in its finding and judgment in this case.
The judgment of the court below, in each of the cases of claims three, four, five, seven and nine, is affirmed, its judgment in the case of claim six, for the error we have indicated is reversed and the cause remanded for a new trial; and its judgment in each of the cases of claims one, two and eight, is reversed, and the causes are remanded, with instructions to dismiss the appeals. | [
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Harrison, J.:
In this action Ponder sued Rhea for trespass, in taking and converting to his own use 4000 pounds of seed cotton and 200 bushels of corn.
The facts were'these : The defendant let Johnson, in 1874, have twenty acres of ground, in his plantation, to cultivate that year, in corn and cotton, upon the following agreement:
The defendant was to provide part of the team, and feed for the team, and to furnish Johnson with twenty bushels of corn, and 200 or 300 pounds of bacon, and Johnson was to till the land. The crop was to be the property of the defendant; but after he had reserved ten bushels of corn for each acre planted in corn, and one-fourth of the seed cotton, which was to be delivered at his gin, for the rent of the land, had been paid out of it, for the supplies and $ 100 that Johnson owed him, Johnson was to have what remained. The defendant furnished, in accordance with the agreement, part of the team, the feed, and the supplies, and Johnson- cultivated the land, and raised a crop of cotton and corn, of which that in controversy Avas a part.
On the 21st of May, 1874, Johnson, to secure a debt to the plaintiff, and to secure supplies from him, executed to him a mortgage upon the crop, except so much as was due for rent. which was filed for record June 9th, 1874, and on the faith of it the plaintiff furnished him supplies.
About the month of August following, Johnson, to pay his indebtedness to the plaintiff, sold him the- crop, and the plaintiff hired him to assist in picking the cotton when the cotton season arrived, and in October he relinquished his claim upon the cotton to the defendant, in satisfaction of his indebtedness to him.
The defendant, with notice of the sale to the plaintiff, gathered the crop, and refused to let him have any portion of it.
The crop, after the reservation for the rent for the use of the land, was not sufficient to pay the defendant.
The verdict and judgment were for the defendant. The plaintiff appealed.
Where one lets land for the purpose of having a single crop raised on it, of which the lessor is to have a part for the use of the land, and the cultivator a part for his labor, and there is no evidence that it was the intention that the relation of landlord and .tenant should exist between them, the parties are to be considered as tenants in common in the crop. Cro. Eliz., 143; 1 Wash. Real Prop., 496-497; Alwood v. Ruckman, 21 Ill., 200; Foote v. Colvin, 3 John., 216; Bradish v. Schenck, 8 Ib., 151; DeMott v. Hagerman, 8 Conn., 220; Adams v. McKesson, 53 Penn. Stat., 81; Leland v. Sprague, 28 Vt., 746.
And although the share reserved to the owner of the land be called rent, “ it is, after all,” says Washburne, “ but another mode of saying that the occupiers shall work the farm for so long, and divide the profits with the owner.” 1 Wash. Real Prop., 26, Putnam v. Wise, 1 Hill, 234; Chandler v. Thurston, 10 Pick., 205.
The case of Alexander v. Pardue, 30 Ark., 359, is not in conflict with this doctrine. There the plaintiff — the land-owner— did not claim an interest, as tenant in common with the defendant, in the crop, and a joint possession with him, but treated him as a tenant of the land, and set up under a parol agreement,-a lien upon his share as in his exclusive possession, and for anything which appears to the contrary there may have been an express agreement against such tenancy in (jommon.
But no such question arises in this case. The crop, by the express agreement of the parties, belonging to the defendant, and Johnson, who was only a cropper, had no interest in it he could either sell or mortgage. Leland v. Sprague, supra.
The judgment is affirmed. | [
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JOSEPHINE LINKER HART, Judge.
|!Erin M. Fischer appeals from the denial of her petition to relocate to the United States Virgin Islands with her minor child. On appeal, she argues that the trial court erred in denying her permission to relocate because it erred in its application of the law as promulgated in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), and in making the factual findings that supported its decision. We reverse and remand.
Although we review traditional equity cases de novo, we will affirm the trial court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Hartsell v. Weatherford, 2012 Ark. App. 164, 2012 WL 559951 (unanimous en banc decision). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing the trial court’s findings, we give due deference to the trial court’s superior position to determine the credibility of the ^witnesses and the weight to be accorded to each witness’s testimony. Id. However, we give a trial court’s conclusions of law no deference on appeal. Id.
This case involves the parties’ minor child, M.S., who was born on June 10, 2008. Subsequently, the parties married on May 16, 2009, and divorced on July 21, 2010. In the divorce decree, appellee Damon Smith’s paternity was acknowledged, and he was awarded visitation with the minor child. On June 20, 2011, Fischer filed a petition for permission to remove the minor child to the Virgin Islands. A hearing was held on Fischer’s petition on August 8, 2011.
Fischer testified that she desired to relocate to the U.S. Virgin Islands because she “ultimately” wanted to advance her career there teaching American Sign Language. Although she admitted that she did not have an employment contract at the time of the hearing, she had made inquiries into employment opportunities in the Virgin Islands. In Fort Smith, she had completed her contracts in two private-tutoring arrangements and did not intend to renew them. She further stated that she would have the support of her father and stepmother, who both live there, as well as her six siblings who regularly visit the beachfront resort that her father owns in St. Croix. Fischer noted that she had no extended family in Arkansas and that although she currently resided in a nice home in Fort Smith, she regarded the $1260 per-month mortgage as “too expensive.” According to Fischer, she had already made living arrangements at her father’s resort while she waited for an apartment. She had enrolled M.S. in a private school, The St. Croix Day School, which offered swimming lessons. She also introduced a printout from the website of the Pointe Dance Academy, a ballet school in |3which she had enrolled M.S. Fischer also made part of the record numerous photographs that showed her desired residence to be a tropical paradise.
Fischer stated that she decided to relocate when Smith went into drug rehab. She claimed that Smith was not exercising his court-ordered visitation. Fischer acknowledged that immediately after Smith left drug rehab, she allowed Smith to stay at her residence “a few nights” because Smith’s mother did not allow him to stay at her house alone. Fischer admitted that she allowed Smith to “hang out” with her and her daughter because she wanted them to work together as parents and she “missed the old Damon.” Nonetheless, Fischer denied resuming an intimate relationship with Smith. Although she readily granted Smith access to M.S., she claimed that it was her practice to hire a babysitter if she could not be in the house when Smith visited.
According to Fischer, Smith was entitled to every-other-weekend visitation, but since Christmas he would call just before the visit was scheduled to start and postpone it until the following weekend. Likewise, he missed many of his court-awarded Wednesday-night visits. Smith ascribed this behavior to his drug problem, but Fischer asserted that it did not change after Smith had gone to rehab. Fischer asserted that Smith had neither a home of his own, nor a vehicle.
Fischer denied that her purpose for moving to the Virgin Islands was an act of retaliation. She admitted that she often failed to respond to Smith’s text messages during the month that she was in St. Croix. However, she described the communication as “harassing.” When confronted with a text that she had sent, “You will now lay in the bed you made,” she |4explained that she meant she would not remain in Fort Smith because Smith was not exercising his visitation. She noted that drugs had ended their marriage, that Smith had an outstanding warrant for hot checks, and that she did not want herself or her daughter to be saddled with Smith’s behavior.
Fischer’s father, Charles Fischer, testified that he owned homes in Oklahoma and Canada as well as in the Virgin Islands. He stated that he spent approximately nine and a half months each year in St. Croix and split the remainder of the time between his other two residences. Charles confirmed that Fischer’s six siblings and their children visited the island twice a year. He also confirmed that Fischer had contacted the Virgin Islands Department of Education and that she had made living arrangements for her and M.S. Charles further testified that he was a licensed pilot and had aircraft available for his use. He expressed his willingness to provide transportation for M.S. to visit her father in Fort Smith.
Smith’s mother, Sheen Klinger, testified that Smith was currently living in her home along with his twenty-seven-year-old brother, Dustin, who “probably” has a drug problem. She stated that she was married, but her husband was “taking a break” in a hotel. According to Klinger, her mother lives in Kansas and visits Fort Smith “three or four times per year.” Smith also has a sister who fives in the area.
Klinger noted that Smith had several jobs prior to entering rehab. She stated that he had a personal automobile, but it was “broken down.” Klinger claimed that she allowed Smith to stay at her house even when she was out of town.
She claimed that Smith’s relationship with M.S. was “great.” According to Klinger, | .¡Smith visited M.S. on Wednesday and every other weekend “as far as I know.” She did not remember him missing a single visit prior to his checking into drug rehab. She also noted that Fischer would transport Smith to her residence so that he could visit M.S. Klinger testified that she personally drug-tested Smith while he was living with her, and “he never failed a drug test.” She admitted that she supposedly drug-tested Smith just prior to his entering drug rehab. When questioned by the court, Klinger also admitted that she had not tested Smith “in a long time because I see him and he’s good.” Klinger stated that, if Fischer was allowed to relocate, she feared that M.S.’s relationship with the Smith side of the family would be compromised.
Smith testified that he opposed the relocation. He admitted to drug use before he checked himself into rehab. His drug of choice was Oxycodone. He claimed that Fischer was also a drug user and tried to induce him to use marijuana with her, but he had refused. He claimed that, after he got out of rehab, he spent every day at Fischer’s house until she left for the Virgin Islands, spending the night four or five days a week. He claimed that their relationship had again become intimate and that was when Fischer had tried to get him to smoke K2 with her. Smith noted that Fischer was living in a nice four-bedroom house located in a nice neighborhood. M.S. was involved with gymnastics and swimming lessons in Fort Smith, and he saw no “benefit” in the move. He admitted that he had several employers since the divorce and also admitted falling $1,035 behind on his child support, but had borrowed money to pay the arrearage shortly before the court hearing. He eon-firmed | fithat he was living at his mother’s house, but, despite his mother’s testimony to the contrary, claimed he did own an operable vehicle that he simply was not using at the present time. He admitted that his driver’s license was suspended for driving while intoxicated but asserted that it had been reinstated. He denied current drug use and expressed confidence in passing a drug test.
According to Smith, he had difficulty reaching Fischer while she was in the Virgin Islands. Nonetheless, he claimed that he spoke with M.S. “every day or every couple of days.” However, when questioned by the court, he stated that he spoke with M.S. “six or seven times” during the month that she was in the Virgin Islands. He denied Fischer’s claim that there was a babysitter present when Fischer was not in the home.
Both Fischer and Smith were drug tested on the day of the hearing. Fischer was negative for all drugs. Smith tested positive for opiates; however, this fact was not mentioned in the trial court’s order. A subsequent, privately-administered test showing no drugs in Smith’s system was also made part of the record.
The trial court took the matter under advisement but ultimately ruled in favor of Smith. In denying Fischer’s relocation petition, the trial court correctly noted that Hollandsworth provides that there is a “presumption in favor of relocation for custodial parents with primary custody,” and that “the non-custodial parent has the burden to rebut the relocation presumption.” It also noted that, in Hollandsworth, there are five factors to be considered in evaluating a relocation petition:
1) The reason for relocation; 2) Education, health and leisure opportunities in the location in which the custodial parent and child will relocate; 3) Visitation and ^communication for the noncustodial parent; 4) Effect of move on the extended family relationships in the location in which the custodial parent and children will relocate as well as in Arkansas; and 5) Preference of the child . .. .:
The trial court found, however, that proof with regard to these factors rebutted the presumption. The court opined that the reason for relocation was “simply to leave Fort Smith.” It noted that there was testimony that Smith only missed visitation “during the nine days he was in rehab.” Further, it found that Fischer “has not secured employment in the United States Virgin Islands.” The trial court further found that “Plaintiff admitted that the educational, health and leisure activities were no better in the United States Virgin Islands than those activities in which the minor child participated, here in Arkansas,” and noted that the child lived in a “four bedroom home in Arkansas and would be living in an apartment in the United States Virgin Islands.” The trial court further opined that visitation would likely not occur more than two times per year and that telephone communication would “not likely be much better based upon the age of the minor child.” It found that Fischer’s only family member residing in St. Croix was her father, and he was only present “nine months of the year.” Conversely, Smith has extended family in Fort Smith and the court was “convinced” that Smith and his mother “enjoy a strong bond with the minor child.” The court did not consider the preference of the minor child due to her age.
On appeal, Fischer argues that the trial court was clearly erroneous in its application of Hollandsworth to the instant case. She asserts that Hollandsworth is clear that she was not obligated to prove an advantage when requesting to relocate. Accordingly, she argues that, without proof that there are distinct disadvantages to the relocation to rebut the presumption, |Rthe presumption is that relocation is in the best interest of the child and the trial court must allow relocation. Fischer asserts that the trial court improperly shifted the burden to her to prove that her proposed move offered some advantage. We agree.
The instant case is remarkably similar to our recent decision in Hartsell v. Weatherford, supra. In Hartsell, we noted that “[i]t is up to the parent opposing the move to prove that the relocation would not be in the best interest of the child.” Further, we noted that the enumerated factors in Hollandsworth were merely five “matters” that a trial court should consider and that the supreme court emphasized that the custodial parent was not required to prove a real advantage to herself or himself and to the children in any of these factors. Id.
In our view, the trial court improperly required Fischer to prove that her proposed relocation to the Virgin Islands offered some material advantage. The trial court’s misapplication of the law is particularly evident when it recited that Fischer’s “motive for relocation was simply to leave Fort Smith,” and that she had not proved that the educational, health, and leisure activities were better in the Virgin Islands. As noted above, a custodial parent’s desire to leave his or her place of residence, without more, is not a legal barrier to relocation.
Likewise, the trial court erred when it found that the difficulty with visitation and communication engendered by the move would be a barrier to relocation. Hollandsworth presupposes that visitation and communication between the child and the noncustodial parent will be impaired. However, if there continues to be meaningful visitation, the presumption in favor of relocation is not rebutted. Benedix v. Romeo, 94 Ark.App. 412, 232 S.W.3d 493 (2006); see Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823; Mathews v. Schumacher, 2010 Ark. App. 155, 375 S.W.3d 31. Here, Fischer proposed visitation at Christmas, during the summer, and at least two other periods of at least one week each year. Moreover, Charles Fischer, a licensed pilot, testified that he would be able to assist with transportation. Notwithstanding the trial court’s conclusion that telephone communication would be difficult, Smith himself testified that he had regular cell-phone communication with his daughter while she was in the Virgin Islands.
The trial court also misinterpreted the significance of the fourth Hollands-worth factor—“the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas.” As in Hartsell, there is bound to be some strain on the relationships with extended family in Arkansas. However, the prospect of improved relationships with Fischer’s extended family will be greatly enhanced. We hold that the trial court erred in concluding that this situation rebutted the presumption in favor of relocation. Where extended family is concerned, an existing relationship with one side does not trump the prospect of enhancing a relationship with the other side. Hartsell, supra.
In conclusion, we hold that the trial court erred by shifting the burden of proof to the custodial parent. Accordingly, we reverse and remand to the trial court for further proceedings. Having held that the trial court erred by improperly shifting the burden to Fischer to prove some advantage in her relocation with her minor child, we need not consider the balance of Fischer’s argument concerning the validity of the trial court’s factual findings.
| inReversed and remanded.
GRUBER and GLOVER, JJ., agree.
. His support obligation was $62 per week. | [
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English, Ch. J.:
The appellee, Doctor Jourdan, was indicted in the Circuit Court of Sharp County, for larceny. There were two counts in the indictment; the first count charging, in substance :
That the defendant, on the 10th of November, 1876, a.t, etc.,, one steer of the value of $15, and one other steer of the value of $15, of the property of one M. G. Wainright, then and there being found, feloniously did steal, take and carry away, etc.
The second count charged :
That the said defendant, on the 10th of November, 1876, at etc., one ox of the value of $15, and one other ox of the value of $15, the property of one J. B. Atkinson, then and there being found, feloniously did steal, take and carry away, etc.
The defendant demurred to the indictment, on the ground that it charged him with’ more than one offense ; the court sustained the demurrer, with leave to the State to elect on which count of the indictment she would prosecute; the prosecuting attorney declined to make such election, whereupon the court gave judgment dismissing the cause and discharging the' defendant; and the State appealed.
Under the statute separate and distinct larcenies cannot be joined in the same indictment. Gantt’s Dig., sec. 1783.
Where the indictment improperly charges more than one offense, on demurrer, the prosecuting attorney may be required to elect upon which count, or for which of the offenses charged, the State will prosecute. Ib., secs. 1837, 1840 ; Baker v. State, 4 Ark., 56.
It is submitted by the Attorney Genera.1 that but one offense is charged in this indictment; that steers in the first count, and oxen in the second, are synonymous; and that the ownership of the animals was alleged to be in different persons, in the two counts, as well it might be, to meet any doubt that might arise on the evidence as to the ownership.
In the first count appellee is charged with stealing- two steers, the property of M. G. Wainwright; in the second, with stealing two oxen, the property of J. B. Atkinson.
It is true that steer and ox have about the same meaning. See Webster. But we do not know, there being nothing in the record to show it, that two counts were inserted in the indictment for the purpose of meeting uncertainty in the evidence as to the ownership of the animals. Two larcenies are apparently charged in the same indictment — larceny of the steers of Wain-right-, and larceny of the oxen of Atkinson. If the prosecuting attorney, in- drafting the indictment intended in fact, to charge but one offense, and inserted the second count to obviate uncertainty in the evidence as to the ownership of the animals, he should have stated that fact to the court, oh the interposing of the demurrer, and made it appear of record.
It seems, however, that under a provision of the Criminal Code, an error in the indictment as to the name of the party injured, is not fatal on the trial. Gantt’s Big., sec. 1786. Hence, it seems to be unnecessary now to add a second count, to obviate uncertainty in the evidence as to the name of the party injured.
Affirmed. | [
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Harrison, J.: .
The appellant was convicted in the Lonoke Circuit Court, upon an indictment, which charged him and.one Laura Durham with cohabiting together as husband and wife without being, married, and fined $100.
• The evidence for the State was as follows :
W. H. Frazier, testified: That he frequently staid all night with the defendant, at his father’s house in the Richwoods, in Lonoke County, and on one occasion,within six months before the finding of the indictment, he slept in a large room with three beds in it, one of which was occupied by himself and another by the defendant. The defendant went to bed before he did, and when he came in, about eleven o’clock, he asked the defendant, for a light. He told him there was none, and that he could find the bed. "When he awoke, next morning, the defendant had left the room, and he saw Laura Durham sitting on the side of his bed, in a loose robe or gown, putting* n her shoes and stockings. He did not know when she came into the room, and did not see her in the bed, but inferred find believed from the circumstances, that she slept with the defendant. Laura Durham, was the cook and house servant of defendant’s father, who was, at the time, an invalid and confined to his room. She waited on the table; did not eat at it with the family. She did not act as-if she was the defendant’s wife, nor was she so regarded by his-acquaintances.
The defendant is a white man, and she a colored woman ; and they were never married.
James Hicks, testified: That in 1876 (the indictment was found at the September Term of that year), he was in the employment of the defendant’s father, as a laborer on his farm, in the Richwoods, and he slept in a large room, in which were three beds, and in which room the defendant also slept. That' one night Laura Durham came there from Lonoke, and she and the defendant slept together in the same bed, and in the room in -which witness slept. Laura Durham was for awhile employed by the defendant’s father to cook, and she occupied a room some hfty or sixty yards from his house. While she staid in that room, the defendant slept but seldom in the room with the witness. Their demeanor towards each other, was not like that between the defendant and the other servants on the place. They acted like husband and wife. He had seen him help her on her horse, and had seen them take horse-back rides together.
Carroll Hallum, testified: That- he rented land from the defendant’s father in 1876, and lived on it within 300 yards of his house. He had often seen the defendant and Laura Durham, whilst he lived there and before the finding of the indictment, walking together, through the farm. Had seen him holding his umbrella over her, and had often seen them walking arm in arm. Had seen him help her on her horse, and put her foot in the stirrup. On several occasions, they had ridden together until within a short distance of Lonoke, when he would spur up his horse on ahead and ride into town by himself, to avoid the suspicion of having been riding with her; and on one occasion, though each had a horse when they went there, they returned from Lonoke on the same horse, and had seen her riding behind him on his horse about the farm.
The defendant’s father drove her off the place, on account of her conduct with the defendant, and the defendant for awhile boarded her at Todd Dillaha’s, who lived on his farm, and after-wards at Lonoke. Whilst she was at Todd Dillaha’s, he often saw them together then; and on two occasions, early in the morning, he saw them in bed together. After the death of his father, he brought her back to his house, and kept her there.
J. E. Burk, testified: That he once saw the defendant and Laura Durham in a caboose car, attached to a freight train, going to Little Bock. They took the car at Lonoke. They did not sit on the- same seat, or pay any attention to each other. The car was crowded. They returned in a day or so. He frequently visited the defendant at his father’s house, in the Bichwoods, whilst Laura Durham was a servant there, but never saw anything wrong or improper between them.
Jesse Miller, testified : That some time in 1876, and before the finding of the indictment, the defendant told him he would be responsible for the rent of a house in the town of Lonoke, that Laura Durham was living in, to the amount of $20, saying at the time, that he owed her so much.
And H. G. Legate testified : That he, on one time, saw the defendant at Laura Durham’s house, in Lonoke. He had no coat or vest on, and seemed to have been just washing his face. It' was in the day time and in the summer. He did not see her. The defendant was at that time living in the Bichwoods, some ten miles from Lonoke.
Perhaps it should be stated, that Todd Dillaha testified on behalf of the defendant, that he never boarded Laura Durham at his house, and that they never slept together there.
Cohabiting is an essential element in the offense charged in the indictment-. The language of the statute, upon which it is found, is: “ If any man and woman shall cohabit together as husband and wife, without being married, each of them shall be deemed guilty of a misdemeanor, and shall upon the first conviction be fined,” etc. Sec. 1320, Gantt’s Digest.
Bouvier, in his Law Dictionary, gives this definition of the word cohabit; “To live together in the same house, claiming to be married,” and the definitipn given in Burrill’s Law Dictionary, is : “To live together as husband and wife; to live together at bed and board; to live together as in the same house.” And, "Webster, defines it thus: “First — To dwell with; to inhabit or reside in company, or in the same place or country. Second — To dwell or live together as husband and wife.”
The sense in which the word is used in the statute, is evidently that of living or dwelling together in the same house. In Crouse v. The State, 16 Ark., 566, the indictment charged that the defendant “unlawfully and wickedly did bed to, and live with one Johnson Kenedy;” it was held bad because it did not allege that the parties lived together as husband and wife. In Indiana, where they have a statute which declares that “ every person who shall live in open and notorious adultery or fornication, shall be fined,” etc.,1' it was held 'that the offense consisted in open and notorious cohabitation; and in order to make out the offense, there must be a living together. The State v. Gartrell, 14 Ind., 280; Wright v. The State, 5 Blackf., 358; and in Illinois in a case where the parties were indicted for living together in an open state of fornication, as in the cases in Indiana, the court said : “ In order to constitute this crime, the parties must dwell together openly and notoriously, upon terms as if conjugal relations existed between them. In other words, they must cohabit together.”
Since the case of Crouse v. The State, the legislature has so far changed the language, if not the meaning of the statute,-as to substitute the word cohabit for live. Act April 12th, 1869.
We do not think it necessary, that the parties should claim to be husband and wife; if they live together in the same house, in like manner as respects bed and board as marks the intercourse between hnsband and wife, they, in the sense and meaning of the statute, cohabit as husband and wife. The law seeks not alone to prevent the false assumption of the marriage relation, and to prohibit the public scandal and disgrace of such immoral connections; but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend. We do not, however, intend to express any opinion as to'the objection raised by the defendant’s counsel, that the parties, one being of the white and the other of the colored race, could not lawfully marry with each other.
The evidence fails to show, that the parties lived or cohabited together.
No such inference from the facts, testified to by the witness Hallum, that the. defendant after the death of his father, took the woman back to his house and kept her there, can be drawn, as that they lived, after her return, together in the same house, and deported themselves towards each other as husband and wife, against the presumption which the law raises, in favor of the defendant’s innocence. 1 Green Ev., secs. 34, 35.
The verdict of the jury is not sustained by the evidence; the judgment must therefore be reversed, and the cause- remanded to the court below, that the defendant may have a new trial. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill to foreclose a mortgage, filed in the Monroe Circuit Court, 23d June, 1848. The original complainants were Henry L. Biscoe, Sandford C. Faulkner, and others, residuary Trustees of the Real Estate Bank, under the deed of assignment. In the progress of the cause it was shown that, by an order of the Chancery Court for Pulaski county, the Trustees had been removed, and the assets of the Bank placed under the management of Gordon N. Peay, as Receiver, and he was substituted as complainant in the bill.
The defendants were William B. Duncan, Francis Surget, John Ker, Alfred Mullins, William McBride and John Smith'.
The.bill alleges that on the 2d July, 1837, Duncan having subscribed for 300 shares of the capital stock of the Real Estate Bank, in order to secure the stock, and the repayment of the moneys to be borrowed by him, under the charter, on account of his stock, executed to the Bank a mortgage upon a number of tracts of land, which are described, amounting to 3,218 acres, etc., situated in Monroe county, of which he was then the owner in fee. The mortgage was conditioned for the payment of all moneys which Duncan might receive from the Bank on account of his subscription for stock, etc., and for the payment of such sum of the bonds of the State, issued in favor of the Bank, as would be equal to the amount of stock allowed him, etc.; and, also for the payment of the bond given by him for stock, etc., etc. Duncan to remain in possession of the lands until legally sold to discharge his obligations and liabilities aforesaid. Mortgage duly acknowledged and recorded 3d October, 1837, in Monroe county.
That on the 4th December, 1839, after the award of stock to Duncan, in order further to secure the payment of said stock, moneys, etc., and to correct mistakes made in the first mortgage, in the description of the lands, he made a second mortgage to the Bank, upon the same lands (with corrections, exceptions, etc., stated), conditioned in all respects as the first mortgage: ■which was duly acknowledged and recorded on the day of its execution.
On the 16th of September, 1837, the board of managers awarded to Duncan 234 shares of stock, etc.: and, under the 17th section of the charter, he became entitled, as stockholder, to borrow from the Bank $11,700: and accordingly borrowed the same at the following times, and in the following amounts:
October 18th, 1839...................... $10,534
November 29th, 1839.................... 1,166
For which several sums he executed his notes, reciting his rights as stockholder, and binding himself to repay the money so borrowed, by annual'payments, so that the whole should be paid by 25th October, 1856, and to pay annually, in advance, interest at the rate of eight per cent, on the part of the sums remaining unpaid at the end of each year. The notes are exhibited.
The bill further alleges the assignment of the Bank of the '2d April, 1842, to Trustees, including Duncan’s mortgages and notes: that complainants were residuary Trustees, etc., and that the charter of the Bank had been forfeited, etc.
That there were no known liens upon the lands of older date than the mortgages.
That on the 29th November, 1843, Duncan conveyed the lands to Surget and Ker, who were originally joint equitable owners thereof with him. He borrowed said moneys from the Bank, and executed the mortgages upon the lands with their knowledge and consent. When he conveyed the lands to them, it was with the express understanding that they were bound for the moneys so borrowed by him. Immediately after Duncan sold the lands to them, he left the State, and has never returned, and they are also non-residents. They agreed to pay Duncan’s debts to the Bank, and were allowed the amount thereof out of the price of the lands in purchasing them of him.
Since the date of the mortgages, the defendants, Mullins, McBride and Smith, had entered upon the lands as tenants of Surget and Ker, leasing from them with notice of the mortgages, etc.
Duncan’s notes to the Bank remain unpaid, except some small credits, which are stated.
Prayer for foreclosure of the mortgages, sale of the lands, etc., and for general relief.
A demurrer was interposed to the bill in behalf of all the defendants. Afterwards Duncan and Surget withdrew the demurrer as to them, and filed a joint and several plea in bar, accompanied by the answer of Surget as to the matters of discovery prayed by the bill.
The substance of the plea is, that the Trustees of the Bank had previously filed a bill, in the same Court, against Duncan, Surget and Ker, to foreclose the same mortgages, for the same debt; that a demurrer was interposed thereto, overruled by the Court, and decree thereupon against the defendants: that they appealed to this Court, the decree was reversed, and the cause remanded, and the demurrer sustained, and the bill dismissed for want of equity, in obedience to the mandate of this Court.
The death of Ker was suggested, and his executor, widow and heirs made parties. His executor, Duncan, answered the bill, setting up the former decree relied upon by the plea, etc.
The complainants entered replications to the plea and answers.
The cause was heard April, 1856, upon bill, plea, answers, replications and exhibits, and the bill dismissed for want of equity; and Peay, Receiver, etc., appealed.
The objections made by the counsel for the appellant, in the argument here, to the sufficiency of the plea in bar of the bill, come too late.
If a complainant conceives a plea to be defective in form or substance he may take the judgment of the Court upon its sufficiency by setting it down for argument; which, in practice, operates as a demurrer. But if the complainant replies to a plea, he puts in issue the truth of its allegations: and if, upon the hearing, the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred, even though the plea is not good in point of form or of substance. Story Eq. Plead., sec. 697; 2 Daniell Chan. Prac. and Plead. 793, 795; Lube’s Eq. Pl. 51.
In this case the complainant replied to the plea.
In support of the truth of the allegations of the plea, the defendants exhibited and read upon the hearing, transcripts of the proceedings, etc., of the Monroe Circuit Court, and of this Court, on appeal, in the first bill to foreclose the mortgages ip, question referred to in the plea. The parties to that bill, it is. manifest, were the same, in legal effect, as the parties to the bill now before us, except that three of the defendants to the present bill, Mullins, McBrids and Smith were not parties to the first. But it is shown that they were in possession of .the mortgaged premises as tenants of Surget and Ker, and held in no other right.
It clearly appears, also, that the first bill was to foreclose the same motgages, upon the same property, and for the same debt, as the second: and that the final decree against the complain, ants, (the Trustees of the Bank,) though upon demurrer, was upon the merits, and not upon mere formal defects in the bill. (See Duncan et al. vs. Biscoe et al., 2 Eng. R. 175.)
The general principles of law in respect to the conclusive, ness of judgments and decrees of the domestic tribunals are. well settled, and perfectly intelligible. A judgment or decree of a Court of competent jurisdiction, directly upon the point, is conclusive between the same parties, or their privies, upon the same matter, when brought into question in the same Court, or in another court of concurrent jurisdiction. The rule is founded upon considerations as well of abstract justice as of public policy, which forbids the litigation of any matter which has been once fairly determined by proper and competent authority between the same, parties, or those standing in the relation of privies to them. Blount & wife vs. Darrach, 4 Wash. C. C. R. 659; Duchess of Kingston's Case, 20 State Trials; 1 Greenleaf's Ev. Sec. 528; Shall as ad. vs. Biscoe et al., 18 Ark. 163; Hannah ad. vs. Carrington et al., ib. 102; Trammell et al. vs. Thurmond, 17 ib. 212; Moss vs. Ashbrooks, 7 Eng. R. 373.
In Duncan et al. vs. Biscoe et al., which is relied upon as a bar to the present bill, this Court decided that the Trustees of the Bank had no interest, general or special, in the stock mortgages; that they were held for the benefit of the bondholders, and the indemnity of the State; that the Trustees could not foreclose the mortgages to obtain payment of the stock loans; and that these loans were made on the faith of the stock owned by the borrowers, and not upon the mortgages.
This decision is the law of the case, notwithstanding it was overruled in Wilson vs. Biscoe et al. 6 Eng. R. 44.
Every consideration of public policy requires that a matter once fairly and solemnly adjudicated between parties, should forever be at rest. If a party suffers loss from an erroneous decision, it is but an unavoidable incident to the administration of justice by imperfect beings.
The decreé is affirmed. | [
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PER CURIAM.
The appellant, Leroy King McCoy, has filed a motion for rule on the clerk. His attorney, R. Brent Crews, filed a timely notice of appeal. While appellant apparently retained another attorney, Mr. Crews failed to ask to be relieved as counsel. He admits that he was required to do so, see Young v. State, 318 Ark. 235, 884 S.W.2d 591 (1994), and that the failure to timely file the record was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Dudley, J., not participating. | [
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Per Curiam.
Appellant Alvin Williams has appealed a criminal conviction to this Court. He filed his brief with the Clerk’s Office on December 27, 1995. The State’s brief was thus due on January 26, 1996.
The Attorney General has not filed a brief and has not sought or obtained an extension of time for filing the State’s brief. The only record of any activity on the Attorney General’s part is our Clerk’s record showing that the Attorney General checked out the record on February 12, 1996.
If the Attorney General does not submit a brief before the close of business on May 24, 1996, the case will be submitted for decision solely upon the appellant’s brief.
DUDLEY, J., not participating. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Keenan Winters, brought an illegal-exaction suit against appellees Dr. Joycelyn Elders and the University of Arkansas for Medical Sciences (“UAMS”). Winters claimed that, for the years 1988 through 1993, while serving as Director of the Arkansas State Department of Health (“Health Department”), Dr. Elders illegally received dual compensation from UAMS and the Health Department. The chan cellor granted Dr. Elders’s and UAMS’s motion for summary judgment and dismissed Winters’s complaint. He raises three issues on appeal. We affirm.
We must affirm this appeal without reaching the merits due to two procedural flaws. First, because Winters has failed to abstract the trial court’s judgment, his abstract is flagrandy deficient under Ark. Sup. Ct. R. 4-2 (a) (6). We have long held that the judgment appealed from is a bare essential of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995); Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); Zini v. Percival, 289 Ark. 343, 711 S.W.2d 477 (1986); Farrco Construction et al. v. Coleman, 267 Ark. 159, 589 S.W.2d 573 (1979); Wells v. Paragon Printing Company, 249 Ark. 950, 462 S.W.2d 471 (1971). See also, Smith, Arkansas Practice Abstracting the Record, 31 Ark. L. Rev. 359 (1977). As we have stated many times, the reason for our abstracting rule is basic — there is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993).
A second deficiency in Winter’s appeal is that a copy of the chancellor’s letter opinion does not appear in the record. Winters notes in his abstract that this letter opinion was “inadvertently omitted” from the record, and abstracts what he purports to be the entirety of the letter opinion. The absence of the letter opinion from the record is particularly problematic in this case, as Winters attacks specific findings in the chancellor’s opinion in each of his three allegations of error: (1) the chancellor erred in finding that Dr. Elders’s compensation from both UAMS and the Health Department did not violate Arkansas law; (2) the chancellor erred in finding that he was not entitled to summary judgment as to whether the contracts at issue were utilized to avoid the purpose or spirit of the Regular Salary Procedures and Restrictions Act; and (3) the chancellor erred in finding that Dr. Elders had a valid defense to the repayment of sums in excess of the line-item maximum for her position as Director of the Health Department. The letter opinion is omitted from the record, and, accordingly, Winters cannot demonstrate error. The burden was on the appellant to bring up a record sufficient to show that the chancellor was wrong. See King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); A.R.A.P. 6(b).
In Hedge v. State, 317 Ark. 104, 877 S.W.2d 90 (1994), the appellant asked us to issue a writ of certiorari to the court reporter to produce “part of the trial proceedings” that were not in the record. His request came more than three months after the record was lodged and less than two weeks before his briefs were due. While we granted the petition and a motion to stay the briefing schedule, we noted that:
hereafter counsel will be expected to examine the record before, or immediately after, it is lodged in this court to determine that nothing essential (and designated) is omitted, if so, to specifically identify the omitted material, and to exercise due diligence in moving to supplement the record.
(Emphasis added.) Our opinion in Hedge was intended to put the members of the bar on notice that we would require parties to exercise due diligence in presenting motions to supplement the record with omitted materials. While Winters filed a petition for writ of certiorari to complete the record after the case was orally argued, any attempt to supplement the record after the case has been submitted does not satisfy our due-diligence standard.
Affirmed.
BROWN, J., not participating.
Special Justice JOHN R. Eldridge, III, joins in this opinion. | [
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ANDREE LAYTON Roaf, Justice.
Appellant Marco Kodell Prowell appeals his conviction of capital murder and aggravated robbery and sentence of life imprisonment without parole. Prowell challenges the sufficiency of the evidence and the trial court’s failure to suppress identification testimony and to grant his objection to the state’s peremptory strikes based on Batson v. Kentucky, 476 U.S. 79 (1986). We affirm.
At approximately 8:00 p.m. on March 25, 1994, two men entered Andre’s Cuisine in the Hillcrest area of Little Rock. One of the men approached Andre Simon, the owner of the restaurant, and pulled a gun. Simon and the assailant struggled; Simon was knocked to the floor and shot in the back. After shooting Simon, the assailant turned toward Richard Wilson, the manager of the restaurant, and demanded that he open the safe. Wilson opened the safe and handed him a bag containing about $400.00; the two men then fled the restaurant. Simon died as a result of the gunshot wound.
At trial, Richard Wilson identified appellant Marco Prowell as the person who shot Simon. Bill Byrd, a patron of the restaurant, identified Prowell as one of the men who entered the restaurant. Jeff Gilger, also a patron of the restaurant, testified that he saw Prowell enter the restaurant shortly before Simon was shot, but he did not see a gun.
Í. Sufficiency of the evidence
Prowell first contends that because of overly suggestive pretrial identification procedures and the unreliable nature of the identification by Richard Wilson, his motions to suppress Wilson’s in-court identification and for a directed verdict should have been granted. Prowell submits that the motion for directed verdict should have been granted because, without the erroneously admitted iden tification testimony, the evidence was insufficient to sustain his conviction. Although Prowell combines his challenge to the sufficiency of the evidence with his challenge to the pretrial identification procedures, the preservation of an appellant’s right to freedom from double jeopardy requires that we review the sufficiency of the evidence prior to examining trial error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Consequently, we address Prowell’s challenge to the sufficiency of the evidence prior to considering his other assignments of triad error. In determining the sufficiency question, we disregard any alleged trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994).
On appeal, we determine whether the evidence in support of the verdict is substantial. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Young v. State, supra. In a criminal case, we review the evidence in the light most favorable to the state, and consider only that evidence which supports the guilty verdict. Id. In the instant case, Robert Wilson identified Prowell as the assailant who shot Andre Simon. His credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Further, the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Galvin v. State, 323 Ark. 125, 912 S.W.2d 232 (1996); Gray v. State, 318 Ark. 601, 888 S.W.2d 302 (1994). Thus, the evidence is sufficient to sustain Prowell’s conviction.
2. Suppression of identification testimony
Prowell also asserts that the trial court erred in failing to suppress the in-court identification by Richard Wilson. Prior to trial, Prowell moved to suppress all identification testimony. He contended that both pretrial and in-court identifications should be suppressed because the pretrial photographic lineup procedures were suggestive and would taint and render unreliable any subsequent in-court identification.
We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995); Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). In determining whether an in-court identification is admissible, we look first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant’s burden to show that the pretrial identification procedure was suspect. Mills, supra; Hayes, supra.
A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Even when the process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. King, supra; Chenowith, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. King, supra; Mills, supra.
In Prowell’s case, the trial court conducted a suppression hearing to determine the admissibility of Richard Wilson’s identification testimony. The following evidence was presented at this hearing. On the evening of the incident, March 25, 1994, Wilson provided a statement to the police in which he described the person who shot Simon as a black man, about 185 or 190 pounds, clad in a jacket and oversized clothes which made him appear overweight. He stated that the second assailant was heavier than the gunman.
On March 27, 1994, Wilson viewed a photographic lineup of six individuals. Prowell’s photograph was not included. He picked one of the individuals as a “look-alike” of the person who shot Simon. At approximately 1:50 a.m. on March 31, Wilson again went to the police station to view a photographic lineup which included a picture of Prowell. Wilson testified that he was disoriented that night because he had not slept in four or five days. Wilson did not select anyone from this lineup.
At approximately 3:22 p.m. on March 31, Wilson viewed another photographic lineup which included the picture of Prowell. He picked one of the men as a look-alike of the second assailant — not the person who shot Simon.
Wilson viewed a final photographic lineup on April 8, 1994. However, he testified that prior to the April 8 lineup, he saw a newspaper photograph of Prowell and two other men all clad in orange suits; they were identified as involved in the Simon shooting. Wilson testified that he recognized Prowell in this photograph as the person who shot Simon. He did not notify the police that he had seen the gunman’s picture in the newspaper until he arrived at the police station on April 8.
On April 8, Wilson viewed the same photographs shown to him on March 31. Wilson selected the photograph of Prowell, but he stated that he “thought the picture didn’t look like Mr. Prowell” and that the newspaper picture of Prowell was significantly different. Wilson testified that the newspaper picture was a full body shot, while the police photograph showed an individual looking directly into the camera with a dazed expression, and that the light in the police photograph “washed the face out.”
We cannot say that it was all but inevitable that Wilson would identify Prowell because of the newspaper photograph. See King v. State, supra. A suspect was identified under similar circumstances in Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). There, the witness was present at the police station and saw Van Pelt as he arrived in custody. We noted that there was no evidence suggesting that the police brought Van Pelt to the station to facilitate an identification. The witness made his initial identification spontaneously and before Van Pelt was taken inside the building; the witness could not have known for certain that Van Pelt was even the suspect in the crime. In the instant case, there is also no suggestion that the police were involved in any way with Wilson’s viewing of the newspaper photographs. Further, although three men were depicted in the newspaper photograph as suspects in the Simon shooting, Wilson specifically identified Prowell as the one who shot Simon.
Even assuming the pretrial identification procedure was imper-missibly suggestive, Wilson’s identification was sufficiendy reliable. See Chenowith, supra. Wilson testified that he viewed the person who shot Simon for approximately forty-five seconds during the incident and that he was within a few feet of the assailant at the time of the shooting. The shooter was within approximately two feet when he held the gun on Wilson. Although there was some confusion about which of the two assailants was heavier, Wilson informed the police that the gunman weighed 185 or 190 pounds; according to the arrest records, Prowell weighs 160 pounds.
Wilson never identified any other person as the individual who shot Simon. He advised the police that if he saw the person who shot Simon, he could identify him; he did in fact identify Prowell as the gunman. Further, Wilson testified that his identification was based upon his independent recollection of the events that happened on the evening of the murder. Although Wilson did not identify Prowell during the March 31 photographic lineups, he explained that the newspaper photograph was significantly different than the line-up photograph and that the police photograph was not a good likeness of Prowell.
We cannot say, under the totality of the circumstances, that the trial court was clearly erroneous in permitting the in-court identification to proceed.
Prowell also contends that the photograph which Richard Wilson and Jeff Gilger viewed during the photographic lineups was obtained in violation of his constitutional rights and that their identification testimony was therefore inadmissible as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963); see also, Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988).
Prowell asserts that the photograph was obtained as a result of his unlawful arrest on March 31, 1994. At a separate pretrial suppression hearing, Detective Ronnie Smith testified that when Pro-well was located at a friend’s apartment on the evening of March 30, 1994, he was a suspect, but the police did not have probable cause to arrest him at that time. Smith stated that he told Prowell that his name had come up in connection with the Simon homicide and that he just wanted to ask him a few questions about the matter. Smith further testified that he told Prowell that his cooperation was voluntary, but Smith acknowledged that he did not specifically advise Prowell that he was under no legal obligation to accompany the officers to the police station, as required by A.R.Cr.P. Rule 2.3.
Prowell’s testimony concerning his arrest was at odds with that of the officer. Prowell testified that while he was standing in the parking lot of the apartments where he lived, six or more plain clothes police officers jumped out of two vehicles with guns drawn, ordered him to get down, handcuffed him, placed him in one of the cars, and took him to the police station. The photograph of Prowell used in the lineups was taken after he arrived at the station. Prowell further testified that no one told him that he did not have a legal obligation to accompany the officers to the police station.
In Burnett v. State, supra, this Court quoted the test for whether one has been seized from United States v. Mendenhall, 446 U.S. 544 (1980):
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
In determining that Burnett was seized at his home in violation of the Fourth Amendment, we noted that officers did not comply with the rule of criminal procedure which requires that a person be informed he is free not to accompany the officer if the officer does not have a warrant. See A.R.Cr.P. Rule 2.3. Burnett was not told he could stay at home; he was simply told to get his clothes on and come to the station.
Arkansas Rule of Criminal Procedure 2.3, Warning to Persons Asked to Appear at a Police Station, provides:
If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
(Emphasis added.) Here, Smith testified that he never specifically informed Prowell that he was under no legal obligation to accom pany the officers and that he was not even aware of Rule 2.3 at the time of Prowell’s arrest. Smith merely stated that he advised Prowell that his cooperation was voluntary and that he was only a suspect. This does not comply with the requirements of Rule 2.3. See Addison v. State, 298 Ark 1, 763 S.W.2d 566 (1989).
However, Prowell has suffered no prejudice from the photograph taken at the police station. Wilson was unable to identify Prowell from this photograph in the photographic line-ups conducted on March 31. Wilson instead identified Prowell as the shooter from the newspaper photograph, and he further testified that his in-court identification of Prowell was based upon his independent recollection of the events that happened on the evening of the robbery and murder.
3. Peremptory challenges
For his final argument, Prowell asserts that the state’s use of peremptory challenges to excuse three blacks from the jury violated the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky 476 U.S. 79 (1986). The procedures to be followed when a Batson objection is raised are well established:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). Further, this Court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire. Id. The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Id.
During voir dire, the state exercised one of its peremptory challenges to strike David King, a black man. At the time King was excused, two persons had been selected to sit on the jury panel. Prowell asked that the state be required to enunciate its reasons for the strike. The prosecutor responded that six prospective jurors had been questioned and one black person was sitting on the panel. The prosecutor stated that King, in answering the questions concerning the death penalty, had “some pause in considering that issue,” and that King had discussed his Christian conviction, including grace and mercy, and stated that he could not consider the death penalty for an accomplice. The prosecutor asserted that he believed King’s religious conviction was such that he could not consider the death penalty.
The state also used a peremptory challenge to strike Alberta Maxwell, a black woman. Once again, Prowell asked that the state provide a reason. In response, the state indicated for the record that five jurors had been selected — three black women and two white men. As to Ms. Maxwell, the state explained that when asked about the burden of proof on capital murder cases, she paused a very long time and gave several answers that indicated she would hold the state to a higher standard.
Finally, the state exercised a peremptory challenge to strike Verline Hardaway, a black woman. Prowell then made a Batson objection and asked that the state provide a reason. The state submitted that although Hardaway eventually said she could probably consider the death penalty, she initially stated that she had “deeply held personal beliefs that would keep her from considering the death penalty.” Further, the prosecutor submitted that Ms. Hard-away said several times that in a death-penalty case she would want to be convinced beyond all doubt. The trial court accepted the state’s explanations and upheld all three strikes.
Although the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge, here, the prosecutor volunteered explanations for the challenges; the trial court made no rulings on whether a prima facie case was made. In Hernandez v. New York, 500 U.S. 352 (1991), the Court stated that once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Id.; see also Sims v. State, 320 Ark. 528, 900 S.W.2d 508, (1995).
The standard by which we review the trial court’s evaluation of the sufficiency of the prosecutor’s explanation is whether those findings are clearly against a preponderance of the evidence. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). The prosecutor’s explanation need not rise to the level justifying the exercise of a challenge for cause. Id.
Here, the prosecutor’s explanations were clearly based on something other than race and without anything more, the reasons he offered in striking the jurors must be deemed race neutral. See Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995). We have accepted as racially neutral an explanation that the prosecutor felt he “had gotten some mixed signals about what [a prospective juror] would require in terms of the State’s proof.” Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). Under the circumstances, we cannot say that the trial court’s Batson rulings were clearly against the preponderance of the evidence.
4. Ark. Sup. Ct. R. 4-3(h)
The record has been examined in accordance with Arkansas Supreme Court Rule 4-3 (h), and there were no rulings adverse to Prowell which constituted prejudicial error.
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English, Ch. J.:
On the 1st of December, 1875, Aaron Clark was indicted for larceny in the Circuit Court of Clark County.
The indictment charged him with stealing, on the 15th May, 1875:
One package of Smoking Tobacco, of the value of............................................ •$ 1 1 00
One Plug of Tobacco, of the value, of. 1 00
1 00 One pair of Kid Gloves, of the value of.
One Treasury Note of the United States, commonly called Greenback, of the denomination of five dollars, and of the value of.............. 5 00
One Ten-Do'llar Bill, commonly called Greenback, of the value of.................................. 10 00
of the goods and chattels of one James Strong.
On the 7th of December, 1875, he was tried on the plea of not guilty, and the jury returned the following verdict.
“We, the jury, find the defendant guilty of feloniously stealing one five-dollar greenback bill, $5; one pair of kid gloves, $1.50'; one package smoking tobacco, 75 cents — $7.25.”
The defendant filed a motion for a new trial, which, on the 22d day of December, 1875, the court granted.
At the April Term, 18763 the grand jury returned a new bill of indictment against him for the same larceny.
The second indictment charged him with stealing a package of smoking tobacco, of the value of $1; and pair of kid gloves, of the value of $2; one treasury note of the United States, commonly called greenback of the denomination of five dollars, and of the value of $5; and two national bank bills, each of the'denomination of five dollars, commonly called national currency, and each of said bills, of the value of $5.
The only difference between the first and second indictment is, that the value of kid gloves is alleged' in the first fit $1, and in ten-dollar bill, commonly called greenback,” etc; and in the second, instead thereof, he is charged with stealing “two national bank bills, each of the denomination of five dollars, commonly called national currency,” etc.
At the October Term, 1876, it appearing to the court, that another indictment had been found by the grand jury against defendant for the same offense, it was ordered by the court, that the first indictment be quashed.
To the second indictment the defendant pleaded, that he had once been in jeopardy for the same offense: the court sustained the plea, discharged defendant, and the State appealed.
By the verdict on the first indictment, the defendant was convicted of stealing the five-dollar United States treasury, or greenback bill; the pair of kid gloves, and the package of smoking tobacco, described in the indictment; and he was, in legal effect, acquitted of stealing the plug of tobacco, and the ten-dollar bill, commonly called greenback. Johnson v. The State, 29 Ark., 31. The indictment being good on which this acquittal was had, he never could be put in jeopardy again on that indictment, or on any subsequent indictment, for stealing the same articles. The acquittal is a perpetual bar, though the court after granting him a new trial as to the articles which he was convicted for stealing, and after the second indictment was. found, quashed the first indictment on which he was tried. The court could not deprive him of the bar by quashing the indictment, for the reason that a second indictment had been found for the same offense, and not because the first indictment was bad.
In legal effect, he asked for a new trial, on so much of the indictment as charged him with stealing the articles which the jury found him guilty of stealing, and the court granted it. He then stood just as though he had never heen tried on the indictment as to these articles. ' ' ' .
In this attitude of the caso, a new indictment was found against him for the same offense, and the court thought proper to quash the first indictment, on which he had been tried, under sec. 1803, Gantt’s Digest; and now the question is, can he be tried on this second indictment for stealing the articles which he was convicted of stealing under the first indictment, and as to which he was granted a new trial?
We have been able to find but one case in point, and that is, The State v. Harresby, 8 Robinson (La.), 583.
Ilarresby was indicted and tried for murder, in the District Criminal Court, and found guilty, by the jury, of manslaughter; he moved for a new trial which was refused, and he was sentenced on the verdict. lie appealed to the Supreme Court; and the judgment was by it reversed, and the cause remanded with direction to the inferior court to grant him a new trial. After the cause was remanded, a new indictment was preferred against him for the same manslaughter, and a nolle prosequi entered on the first indictment. He was arraigned on the second indictment, and pleaded the foregoing facts as a former acquittal or jeopardy. The State demurred to the plea, and the demurrer was sustained, and on appeal to the Supreme Court, the judgment on the demurrer was approved.
The Judge delivering the opinion of the court, after holding that a new trial could . be granted the defendant on conviction of a felony, though such was not the practice in England, sai.d : “It is not disputed, that the new trial was awarded at the prayer of the defendant, * * * yet it has been argued, that in seeking and obtaining the new trial, the defendant did not, by legal intendment, consent to be tried on any other than the first indictment, the quashing of which, under the circumstances, was, it is said, equivalent to an acquittal. Upon mature reflection,, we think that no such pretension can be legitimately .set up by the defendant. He took the new trial with all its legal consequences and contingincies; and if the attorney general, anterior to the. first trial, or to the empannelling of a jury for the purpose of a trial, could have entered, as we doubt not he could, a nolle prosequi on the indictment which was then pending for murder, and institute another instantly for manslaughter, without thereby acquitting the accused by judgment of law, he certainly had an equal right to adopt that course after the new trial was awarded, at the time he did exercise it with the leave of the court. All former proceedings were set aside, and the party stood as if he had not been tried at all. It is true, the verdict of manslaughter was a virtual acquittal of the charge of murder, for which grade-of homicide the accused could not have been again constitutionally put on his trial, under the first indictment or a second; yet it would be a legal solecism to say that he was acquitted of manslaughter, when he was convicted of that offense by the finding of the juryj which was an insuperable barrier to a verdict for •murder only, on a second trial. The now trial having been granted, in reference to the fact, whether the homicide was manslaughter or not. In other words, the new trial was granted as. to the crime of which the accused was found guilty, the indictment affording only the form of bringing the crime before the-court. The homicide was always the same fact. It was pronounced manslaughter by the jury.
“The accused succeeded in setting that verdict aside, to be tried again for the same fact. It 'was the fact and not the form of bringing it before the court, which the accused succeeded in having ordered to be tried again, and the fact is now brought before the court in a form most favorable to the accused. It is a rule of law, that if a man indicted for murder is found guilty of manslaughter, he’ can . not again be indicted for murder, if the first indictment, were a good one; and if,-in such.a case, a new trial is awarded, it may be on the indictment for murder, because an indictment for murder includes an accusation for manslaughter. We can see, however, no legal reason, why, in a case like the present, the attorney general might not enter a nolle prosequi on the indictment for murder, on the trial of which manslaughter was the verdict, and a new trial granted, and prefer one 'simultaneously for the manslaughter. It neither compromises, delays, nor takes away from the accused any right or privilege, whilst it simplifies the prosecution.”
On principle, there is no material difference between the case from which we have quoted and the one now before us. In that, a nolle prosequi was entered on the first indictment, on the finding •of the second: in this, after the finding of the second indictment, the court quashed the first, because the second indictment was for the same larceny, and not because the first indictment was bad.
We hold therefore that the appellee may be legally tried on the-second indictment for stealing the same articles whieh he was ■convicted for stealing, by the verdict of the jury on the first indictment, and as to which a new trial was granted him : but he cannot be tried again for stealing the other articles described in the first indictment, because as to them he was, as we have shown, in legal effect, acquitted by the verdict;
And we think the better American rnle is, though the English •rule seems to be to the contrary, that appellee cannot be tried for stealing the “two national bank bills, each of the denomination of five dollars, commonly called national currency.” which he is charged with stealing in the second indictment, but which were not embraced in the first indictment.
It seems to be law -in England, that if a man steal two pigs at the,same, time, h.e may be indicted for .stealing one of them, and if acquitted, indicted, for stealing .the other. 2 Russell. Cr. L., 127. But the Americans have not favored this splitting of an offense,, and the harrassing of the accused by several indictments for part of the same offense.
It appears from the record in this case that appellee was accused of but one.larceny; the larceny of a number of articles at the same time. He was indicted for stealing some of the articles, tried and convicted as to part of them, and acquitted as to others embraced in the indictment. This acquittal was ■ a bar to any indictment for articles not embraced in the indictment on which he was tried. Fisher v. Commonwealth, 1 Bush., 211; Roberts et al. v. State, 14 Geo., 8.
In Kelly v. Burnell, 14 Indiana, 328, the court said: “The State cannot split up one crime.and prosecute it in parts. A prosecution for any part of a single crime, bars any further prosecution based upon the whole or part of the same crime.”
State v. Johnson, 12 Ala., 840; 1 Bish. Cr. L., sec. 1061-4.
If the law be otherwise, if a man steal a dozen articles at the same time, which is but one offense, he may be indicted, tried, convicted, and punished for stealing each article. Or he may be harrassed with a dozen trials, if acquitted on the indictment, seriatim.-
The plea of former jeopardy in this case was not in good form, it failed to set out the facts appearing of record, but it seems the parties agreed to try it as a formal plea, and we have treated the case as if the plea had set out all the facts, and been demurred to in the court below, though no formal demurrer was interposed.
The judgment must be reversed, and the cause remanded to the court .below with instructions to set aside the order discharging appellee, and to hold him to plead over.to the second indictment upon the charge of stealing the same articles which he was convicted for stealing on the first indictment, and as to which a new trial was granted him. | [
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Harrison, J.:
This was an action by Adams & Bro., against Denton D. Stark and William Mcllroy, for the malicious prosecution, without probable cause, of an action against them.
The averments of the complaint were: That the plaintiffs, on the 8th of September, 1873, executed to J. C. Pendleton, a note for $1032, payable ninety days thereafter, and that Pendleton, indorsed the note in blank, and the same was before maturity delivered to the defendants, who were partners and bankers under the firm name of D. D. Stark & Co., in Fayetteville, for ■collection. Pendleton not parting with his interest, and remaining the owner thereof.
That the defendants after the note fell due, falsely and fraudulently represented, that they were the owners of the note, and had purchased the same for a valuable consideration before maturity, and brought suit thereon in their own names against the plaintiffs in the Washington Circuit Court, and recovered judgment by default; that the plaintiffs had a good and valid defense against the note, which the defendants knew when they brought their suit, but the plaintiffs were deceived by the representations of the defendants, and supposed that they were the owners of the note and had acquired it by purchase before its maturity, and did not know any better until after the judgment had been obtained: That the defendants sued out execution on the judgment, and the same was by their direction levied on the plaintiffs’ stock of drugs and medicines, they being druggists, which were seized and taken and their store closed; and that their stock of drugs and medicines were detained from them five months, and they were dispossessed of their store thirty days:
That after the levy of the execution the plaintiffs filed their complaint in equity in said court against the defendants, for an injunction against the judgment, and upon the hearing of the cause, it was by the decree of the court perpetually enjoined.
And that whilst the said goods were in the custody of the sheriff they were damaged and reduced in value $1000, and by the seizure of- their stock, and the closing of their store, their credit was ruined and their business destroyed, and they thereby ■sustained damage to the amount of $4000.
Stark was not served with process and did not appear.
Mcllroy answered the complaint; and denied that he had made any representations concerning the note, and having had any connection whatever with or participation either in the action, or in the proceedings after the judgment was obtained, and any knowledge thereof during the pendency of the same, and denied that Stark had any anthority from him to bring the action in their joint names.
A trial was had as to Mcllroy, and a verdict was returned for the plaintiff for $650. He moved for a new trial, which was refused; he then moved in arrest of judgment, and that motion was likewise overruled.
He appealed.
The cause assigned in arrest of judgment is that the complaint did not state facts sufficient to constitute a cause of action.
. Some of the averments in the' complaint were, it would seem, wanting in requisite clearness and certainty; but the appellant might by motion have required them to be made more certain .and definite.
Sec. 4619, Gantt’s Dig., says: “The court must in every stage •of an action disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; .and no judgment shall be reversed or affected by reason of such •error, or defect.”
It was averred thát the defendants held the note only for collection ; that Pendleton, was still the owner of it, that the plaintiffs had a good and valid defense against it, that the defendants knew of their defense when they commenced their action; and that to avoid the defense, they falsely and fraudulently claimed to have purchased the note before maturity; that they had sued •on it in their own names and recovered judgment, the plaintiffs believing from their representations that they were the owners ■of the note and had purchased it before maturity, and not knowing better until after the judgment'was recovered; the suing out -of the execution, its levy, and the damages sustained thereby, •and that the judgment had been perpetually enjoined.
By these averments were set forth not only a grievance and injury to the plaintiffs, but a willful and wrongful commission of -them. 2 Green. Ev., sec. 449.
The appellant excepted at the trial to the ruling of the court in permitting the plaintiff to read to the jury the record in their suit for injunction. We are unable to see any objection to the admission of this record in evidence. It was a suit between the same parties as were then before the court, and it was averred in the complaint that the judgment had been enjoined by the •decree in it. The answer in that case was put in jointly by Stark and Mcllroy; and it admitted the institution of the suit, the recovery of the judgment, and the • suing out and levy of the -execution as alleged in the complaint in this case, and also that they had no other interest in the note except as holders for collection and as collateral security for claims of other persons in their hands' against Pendleton; and it appears from it that the decree was rendered by the consent of the defendants. The objection urged against its admission, that the allegations of the complaint were made evidence against the defendants is untenable, because to read the answer and the decree, it was necessary for a proper understanding of them, also to read the complaint. 1 Green. Ev„ secs. 511, 512.
An exception was also taken to the admission of the deposition of W. H. Etter. but upon what ground does not appear.
A general objection to a deposition reaches.the relevancy, competency, or legal effect of the testimony only; and will not be considered as extending to any matter of form or question of regularity, or authority in respect to the taking of such deposition. Blackburn v. Morton, 18 Ark., 384.
He deposed; that he was, in 1873, a banker in Fayetteville, and that the note was deposited with him by Pendleton as collateral security for acceptances and other obligations of his belonging to St. Louis merchants and others, in his hands for collection, and that he, on the 20th of October, 1873, turned the note and the acceptances and matters it was intended to secure, over to D. D. Stark & Co.
This evidence clearly supported the complaint, and the only possible or seeming objection that might have been made to it, that we can conceive of’ is that it was unnecessary, as the answer of the appellant did not deny and put in issue the averment, that the defendants held the note only for collection.
The appellant read to the jury the articles of partnership between himself and Stark, by which it was agreed, that they should form a partnership by the firm name of Denton D. Stark & Co., “in the buying and selling of exchange, gold, silver, bonds and whatsoever to the said business belongs,” to which Stark was to give his entire attention; and he testified that the partnership was strictly confined to the business of-banking, and it had no authority from him to engage in anything which did not appertain to that; that he had nothing whatever to do with the management or control of the business, and the same was attended to and conducted solely by Stark. That the purchase of notes Avas no part of the business of the firm, and if Stark claimed the note as the property of the firm, it Avas' Avithout authority from him ; that he had no knowledge of the note, nor of the suit and the proceedings to collect the note during their pendency, and they Avere' unauthorized by him.
He asked, Avith others, the folloAving instructions which the court refused to give, viz.:
Fourth — The obtaining of money, or the attempt to obtain money by fraud for the use of a firm, does not render the partners liable as such, without their participation in or consent to the fraud.
Twelfth — Unless Mcllroy individually participated in falsely and fraudulently procuring the judgment against the plaintiffs, and causing the alleged Avrongs to be committed, the verdict should be for him.
Fifteenth — The plaintiff cannot recover against Mcllroy, unless it be proven that the defendants fraudulently prosecuted the action to judgment, knowing that they had no right to recover, and that Mcllroy personally had such knowledge.
The instructions Averc properly refused. “ Partners are liable in solido for the tort of one, if that tort Avei-e committed by him as a partner, and in the course of the partnership.” Par. Part-., 150. And Judge Story says : “ It has been Avell remarked by a learned Avriter that ‘ although the general rule of laAV is that no one is liable upon any contract, except such as are privy to it yet this is not contravened, by the liability of partners, as they may be imagined virtually present at, and sanctioning the proceedings they singly enter into in the course of trade; or as each vested with a power enabling them to act at once as principals and as the authorized agent of their copartners.’ ” “ The principle,” he says, “ extends further, so as to bind the firm for the frauds committed by one partner in the course of the transaction and business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in the fraud; for, as has been justly observed, by forming the connection of partnership the partners declare themselves to the world satisfied with the good faith and integrity of each other, and implicitly undertake to be responsible for what they shall respectively do within the scope of the partnership concerns.” Sto. Part., sec. 104, 108.
It was objected also, that the evidence did not sustain the verdict ; that there was no proof of Mcllroy’s assent to the acts of Stark; but we have already seen that none was necessary. The evidence as to the damages directly occasioned by the levy was ample and every other material fact was admitted or proven.
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 6th of April, 1853, Edwin T. Burr commenced an action of debt against Septimus Williams, in the Independence Circuit Court, on the following instrument:
“ New Orleans, 3d April, 1847.
$1,270 55.
One day from date, we promise to pay Walton & Sheale, or order, twelve hundred and seventy 55-100 dollars, for value received, with interest at the rate of eight per cent, per annum from date.
STONE & WILLIAMS,
In liquidation. Batesville, Ark.”
“ We assign the within to Edwin T. Burr, 3d April, 1847.
WALTON & SHEAFE,
In liquid'n."
The defendant pleaded nil debet, and the statute of limitations of five years. To the plea of limitations the plaintiff filed three replications:'
1st. That the note sued on was made by defendant, as a partner of the firm of Stone & Williams, for and on behalf of the said firm, which firm consisted of the defendant and one William H. Stone, whereby the defendant and said Stone, as partners composing the said firm of Stone & Williams, became liable to pay the said note according to its tenor and effect; and the said Stone being so liable, afterwards, to-wit: on the 1st of November, 1850, paid to the plaintiff, upon said note, and in part payment thereof, a sum of money, to-wit: the sum of four hundred dollars, which was after the assignment of the note to the plaintiff, at, etc., and this the said plaintiff is ready to verify, etc.
2d. And the said plaintiff, for an additional replication to the defendant’s plea of the statute of limitations, by leave of the Court saj^s precludi non, because, he says, that prior to the time that the note sued on was assigned to this plaintiff, the defendant had been a resident of the county of Independence, and had made such county his home, notwithstanding, in his occupation of steamboatman, his terms of absence therefrom had been frequent and protracted, and when this plaintiff took the said note from Walton & Sheafe, to whom it was given, in payment of so much of a debt as they owed to this plaintiff, he did so upon the eve of coming home to said county; that when he so took the said note in New Orleans, the defendant was not there; that the plaintiff knew of no place where the defendant would be so likely to be found as in this county, the residence of the plaintiff, and of the defendant also, as the plaintiff thought; and that he therefore brought the note with him, intending to present the sarr e to the defendant when he should see him, but that said defendant, instead of coming to this 'county often, as he had theretofore done, remained absent until the spring of 1849, at which time, and in the month of March, the defendant came into this county, and remained but a short time, to-wit: not exceeding a space of one month, and that during that time the said defendant, on being pressed for the note sued on, represented to the plaintiff that he was entirely destitute of money or means with which to pay the note; that he had nothing more than was necessary to take him to California by the overland mail route; that he was not the one that ought to pay the note; that William H. Stone, the other partner of Stone & Williams, was the person that ought to pay the note; and he requested the plaintiff not to sue him on the note, that if he would wait on him, and allow him to proceed on his contemplated journey to California, he would soon there become able to pay said note, and would pay the same if said Stone should not do so; and this plaintiff, relying upon the honor and honesty of said defendant, then refrained from suing the said defendant, upon the said note, which representations and conduct of defendant prevented the plaintiff from bringing suit on the note, as otherwise he should have done; that said defendant immediately left this State by the overland mail route to Califoriiia, and never returned thereto till a short time before the beginning of this suit; and during the only time of his being again in this county, this suit was brought against him on his refusal to pay the note.
“ And the plaintiff avers that the defendant, at the time of his being in the county in 1849, as before set forth in this plea, did not truly represent the facts to the plaintiff, in this, that instead of being destitute of money, and not having only enough to pay his expenses to California, he then had with him a large sum, to-wit, two thousand dollars in gold, over what was necessary to meet his expenses on his trip to California, and in this that said William II. Stone was not the person that ought to have paid the said note, the defendant, and no other, being such person; by which improper conduct of the defendant in so representing, and in so acting, he prevented the com mencement of the suit until he again returned to this county and State, in 1853, when this suit was begun, and as soon as it could be ascertained from him that he would not pay the same Avithout. All of which this plaintiff is ready to verify and maintain; wherefore, notwithstanding the lapse of more than fiim years between the accrual of the cause of action and the commencement of this suit, this plaintiff prays judgment if he ought to be precluded from his debt, damages and costs.
3d. That the defendant, by leaving the county of Independence, and absenting himself therefrom, prevented the commencement of,this shit till the 25th of March, 1859, when such prevention ceased, and this action was then brought within the time limited after the ceasing of such prevention, to-wit: on the 6th day of April, 1853, and the plaintiff is ready to verify, etc.
To the first replication the defendant entered a general rejoinder, in short upon the record. To the second and third he demurred, and the Court sustained the demurrer.
The cause was submitted to a jury at the September term, 1856, upon the general issue, and the issue to the plaintiff’s first replication to the defendant’s plea of limitation.
The plaintiff read in evidence the note and endorsement aboAre copied. He also introduced William H. Stone as a witness, who testified that the note sued on was given by the defendant as one of the firm of Stone & Williams, composed of witness and defendant, to close up an account Avhich the firm had with Walton & Sheafe, their commission merchants in New Orleans. That in the fall of the }rear, 1850, witness paid to the plaintiff $450, or some sum between $400 and $500, on a note that the plaintiff held against Stone & Williams; and except the note sued on, witness never heard of any note that was given to Walton & Sheafe by Stone & Williams.
On cross examination, he stated that the consideration for his paying the plaintiff the amount he did pay on the note, Avas that he was not to be further troubled on it, and that the plain tiff should look to the defendant for anything further on the note.
Such, the witness said, was the verbal agreement made between him and the plaintiff’s attorney, in a settlement that embraced this note and other transactions between himself and the attorney.
Witness said that he considered that in so making the payment, he was buying his peace, not intending thereby to acknowledge the justness of the note, or his obligation thereon, and that he thought, notwithstanding the note, that upon a just settlement, Stone & Williams were not indebted to Walton & Sheafe; but that owing to Walton & Sheafe having kept produce, of Stone & Williams on hand too long, it had fallen on their hands, and the note thus represented the state of the accounts between the firms at the time of the settlement — the date of the note.
That the partnership of Stone & Williams was dissolved in ■ 1846, and that after its dissolution the defendant was steam-boating on the Mississippi river, and made the settlement with, and gave the note sued on to Walton and Sheafe. Witness had no personal knowledge of the note being given, or for what it 'was given, but the signature of Stone & Williams was in the handwriting of Williams. He could not say in whose handwriting the words, “ In liquidation, Batesville, Ark.,” were. He supposed the note was given to close an unsettled account between the two firms, which he knew existed, and he did not know for what else the note had been given.
Upon re-examination, witness further stated that no notice was ever given in a newspaper of the dissolution of the firm of Stone & Williams, and if a notice was necessary to dissolve the partnership, he did not know that it was dissolved to this day.
That after Stone & Williams ceased to keep open a store for the sale of merchandize, which they did not do after 1846,-Williams was away on the Mississippi river, and; wound up "some of the foreign outstanding business of the firth. Witness settled up some business of the firm, and Robert Williams, as agent of the firm, settled up more than both of the partners, but neither of the partners was restricted from acting in the settlement of its business.
The above being all the evidence introduced by the parties, the plaintiff moved the Court to instruct the jury as follows:
“ 1st. That if they find from the testimony, that the note sued on was given by Septimus Williams, the defendant, in the name of Stone & Williams, and that it was given to Walton & Sheafe, in the settlement of dealings which had, before the date of the note, been had between Stone & Williams and Walton & Sheafe, by which Stone & Williams fell in debt to Walton & Sheafe; and that the note was assigned by them to the plaintiff, as it purports to have been by the written assignment on the back of the note; and that the firm of Stone & Williams had not settled up its business until a time after the date of the note, and that Stone & Williams were not restricted from settling up such business — that in such case the note sued on was the note of Stone & Williams — (refused.)
“ And that if Stone paid some sum on the note before it bebame barred by the statute of limitations, that if five years had not passed between the time of such payment till the beginning of this suit, that the suit is not subject to be defeated by the statute of limitations, and they must find for the plaintiff the amount of the note, deducting therefrom any amount that they find to have been paid on said note by the testimony— (given.)
“2d. That if they find from the testimony that Williams, without objection of Stone, continued to act as partner in the settlement of the business of Stone & Williams down to and after the time of the date of the note, and that Williams gave the note sued on in the name of Stone & Williams, and to settle up business of Stone & Williams that was unsettled— that in such case the note sued on is the note of Stone & Williams, and that if Stone made any payment thereon before the note was barred by limitations, the note is not subject to the plea of the statute of limitations, and they must find for the plaintiff. (Refused.)
“ 3d. That if they find from the testimony that the note sued on was the note of Stone & Williams, and that the note was given on the 3d of April, 1847, at one day; that Stone paid an amount on it in the year 1850, or before five years had passed from the time the note was due, the statute of limitations would not run on such note unless suit had been delayed on it five years from the time of such payment — and they must find for the plaintiff. (Given.)
“ 4th. That if they find that the note was given by Stone & Williams on 3d April, 1847, at one day, and that Stone paid $450, or any sum on it in 1850, and that this suit was begun in 1853, they must find for the plaintiff. (Given.)
“ 5th. That if they find that Stone & Williams were engaged in winding up the business of said firm, at the date of the note, and had not given notice of the dissolution of their partnership, said partnership existed at the date of the note, for the purpose of settling up their business, and they must find for the plaintiff, if they also find that the payment had been made by Stone before the note had been due five years, and that this suit was brought in less than five years after such payment. (Refused.)
“ Gth. That if they find from the testimony, that at the date of this note, there had been no notice given to Walton & Sheafe of the dissolution of the firm of Stone & Williams, the latter, as a partner, had a right to use the name of the firm in settling up its business, and such partnership was not dissolved as to Walton & Sheafe; and if they find that the note was given by Williams, to settle the dealings of Stone & Williams with Walton & Sheafe, the note is good and they must find for the plaintiff, if they find in the issue set up under the statute of limitations, that Stone made payment on the note in 185"', or before the statute of limitations barred the note. (Refused.)
The Court refused to give the first paragraph of the first instruction, and gave the remainder of it; also gave the third and fourth instructions, and refused to give the second, fifth and sixth, and the plaintiff excepted, etc.
The defendant moved the Court for the following instructions;
“ 1st. In law, part payment of a note does not take a case out of the statute of limitations, unless accompanied by an acknowledgment, express or implied, of a further indebtedness on the note, and promise to pay it.
“ 2d. If the jury believe from the evidence, that the payment made by the witness, Stone, was simply to buy his peace on account of the note in controversy, and not as an absolute payment amounting to an acknowledgement and promise to pay the residue of the note, they should find for the defendant on the plea of the statute of limitations.
“ 3d. After the dissolution of a partnership, one of the late partners has no power to bind his late copartner by a partial payment on a note, in order to take the case out of the statute of limitations, whether the note be barred by five years limitation or not at the time of such payment.
“ 4th. In law, after a dissolution of partnership, one partner has no authority to bind his late copartner by executing a promissory note in thenameof the firm, without special authority given to him by the other partner to make such note.
“ 5th. In law, after the dissolution of a partnership, one of the partners has no authority to bind his late copartner, by making a note in the name of the firm without a special authority for such purpose, even though the note be given in the settlement of an account existing against the firm.
“ 6th. That the fact of the note sued on being signed ‘ Stone & Williams, in liquidation,’ isa circumstance in evidence before the jury, from which they may infer that, at the time of taking the note, Walton & Sheafe had notice of the dissolution of the partnership of Stone & Williams.
“ 7th. If the jury believe from the evidence that the partnership of Stone & Williams was dissolved in 1846, or before the making of the note in controversy, unless it appears by the evidence that Stone had specially authorized Williams to make such note, the note is not binding on Stone, if they believe from the evidence that Walton & Sheafe, at the time of making such note, had notice of such dissolution.
8th. That although the jury may believe from the evidence, that said William H. Stone actually paid the plaintiff $400 or $500 on account of the note in suit, yet if the evidence discloses to them the fact that such payment was made with the understanding, or accompanied by such expressions of Stone, at the time, as to repel the legal presumption and inference that he thereby promised to pay the balance of the note, the jury should find for the defendant on the plea of the statute of limitations.”
The plaintiff objected to the giving of any of the above instructions except the seventh, but the Court gave them all, and the plaintiff excepted.
The jury returned a verdict in favor of the defendant, the Court rendered judgment in accordance therewith, and the plaintiff brought error.
The plaintiff’s second replication to the defendant’s plea of limitation was drawn, it seems, under the 29th section of the, 99th chapter of the Digest, which is as follows:
“ If any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times respectively limited, after the commencement of such action shall have ceased to be so prevented.”
Does the replication allege any “ improper act” of the defendant, by which the plaintiff was prevented from commencing, suit, within the meaning of this statute?
The word prevent, as now understood, and as manifestly used in the statute, means “to hinder,” “to obstruct,” “to intercept,” etc. See Webster.
By the representations, promises, and appeals to the sympathies of the plaintiff, set forth in the replication, he may have been induced to delay suit, but he was, clearly, not prevented from suing, for it was perfectly within his power to disregard all such representations, promises and appeals, and commence his action ac the time they \yeve made.
It not unfrequently happens that the debtor obtains indulgence from the forbearing creditor, by representations which turn out not to be true, and by promises which are never fulfilled. But in all such cases, the creditor grants the indulgence at the peril of losing his debt, by the interposition of the statute of limitations in the end, as a reward for his forbearance.
The demurrer to the second replication was properly sustained.
2. The substance of the third replication to the plea of limitions is, that the defendant, by leaving the county of Independence, and absenting himself therefrom, etc., prevented the plaintiff from commencing suit, etc.
The statute declares, that “ if any person, by leaving the county, etc., prevent the commencement of any action,” etc.
What county is meant by “ the county?” We suppose that the Legislature intended to refer to the county where the debtor resides when the cause of action accrues. It is so expressed in the Territorial statute: See Steel & McC. Dig., p. 382, sec. 5. See, also, Smith ad. vs. Bogliolo, 5 Mo. R. 344.
The third replication does not allege that the defendant resided in Independence county at any time.
3. After the dissolution of a partnership, one partner has not the right to execute a note in the name of the firm, so as to bind the other partner, even for a pre-existing debt of the firm.
A partner, after dissolution, may have general authority to settle the business of the firm, but he cannot, without special authority, give a note in the name of the firm for a firm debt. 3 Kent Com. 63; Long vs. Story, 10 Mo. 636; Humphries vs. Chastain, 5 Geo. Rep. 166; Parker vs. Cousins, 2 Grattan 372; Bank of South Carolina vs. Humphries et al., 1 McCord 389; Martin vs. Walton Co., Ib. 18. Sanford vs. Mickles et al., 4 John. R. 224; 3 Pick. 177.
But in the case of a dissolution of a partnership by the acts of the parties, until due notice is given of the dissolution, each partner will remain liable for the acts and contracts of the others in relation to the partnership, so far as they respect persons who have previously dealt with the firm, or have given credit thereto. Story on Partnerships, sec.. 162.
As to persons who have been previously in the habit of dealing with the firm, it is requisite that actual notice of the dissolution should be brought home to the creditor; or at least that the credit should be given under circumstances from which actual notice may be inferred. Ib. 161.
In this case, Stone & Williams having dealt with Walton &. Sheafe, if Williams executed to them the note sued on, in the, firm name, in settlement of a pre-existing debt of the firm, before they had notice of the dissolution of the partnership, the note was binding upon Stone as well as Williams. (See authorities above)
The Court below did not err in refusing to give to the jury the first paragraph of the first instruction moved by the plaintiff : nor in refusing to give the second instruction moved by the plaintiff.
The plaintiff’s fifth instruction was properly refused, in the language in which it was proposed. The jury might have inferred from it that the note was binding upon Stone unless a public or general notice of the dissolution of the partnership had been given; when, if Walton & Sheafe had notice of the dissolution of the partnership, at the time Williams made the note in the firm name to them, it would not have heen binding upon Stone, though no public or general notice of the dissolution had been given. Notice to the particular creditor is sufficient.
The plaintiff’s sixth instruction was, substantially, in accordance with the law, and the Court erred in refusing to give it.
The fourth and fifth instructions moved by the defendant, are in accordance with law. To the seventh, the plaintiff made no objection.
The sixth instruction moved by the defendant, improperly assumes the fact that the words “ in liquidation ” were written under the signature of Stone & Williams when the note was executed — that they were part of the signature. Who wrote the words, and when they were written, appear not to have been shown to the jury otherwise than by indications upon the face of the note.- Stone, the only witness who testified in the cause, stated that he did not know whose hand-writing they were in. When and by whom the words were put upon the note, as well as the inference to be drawn from them touching the question of notice to Walton & Sheafe of the dissolution of the partnership between Stone & Williams, were matters to be determined by the jury.
If the words “ in liquidation ” were written in the face of the note when it was made, and if, according to mercantile usage, they import a firm dissolved, it was a circumstance from which the jury might have inferred that Walton & Sheafe, when they took the note, had notice of the dissolution of the partnership of Stone & Williams.
The instruction should not have been given in the language in which it was drafted.
4. The next question presented by the instructions is, whether a part payment by one partner, after the dissolution of the firm, and before the debt is barred, forms a new point from which the statute begins to run as to the other partner.
It appears to be well settled that part payment by one partner, after the dissolution, and after the period of limitation has run out, does not revive the debt as to another partner. Bill vs. Morrison et al., 1 Pet. S. C. R. 370; Belote vs. Wynne, 2 Yerger 534; Bispham vs. Patterson et al., 2 McLean 90; Sanders et al. vs. Lefavour et al., 2 Blackf. 371; 3 Kent Com. 55; 2 Comstock 532.
This Court has held that part payment of a debt by one joint contractor before the bar attaches, forms a new point from which the statute will begin to run as to another. Trustees R. E. Bank vs. Hartfield, 5 Ark. 551; Ricks et al. vs. Lusk et al., 19 Ark.
Where a note is executed by a firm, the members of the firm, after the partnership is dissolved, and before the debt is barred by the statute of limitations, most assuredly, as to such note, stand in the relation to each other of joint debtors, if not of partners.
If one partner, before the debt is barred, make a payment upon the debt, he is but discharging, pro tanto, a legal and subsisting obligation against all the members of the firm, though the partnership be dissolved; and has not only the right, but it is his duty to make payment.
We think, therefore, it is .strictly in accordance with the previous decisions of this Court, to hold that a part payment of a debt, by one partner, after the dissolution of the firm, and before the debt is barred by the statute of limitations, forms a new point from which the statute begins to run as to another partner.
It follows that the Court erred in giving the third, instruction moved for the defendant.
5. What constitutes such part payment as will revive a debt barred by limitation, or form anew point from which the statute w'ill begin to run, has been well settled by the decisions of this Court. Trustees R. E. Bank vs. Hartfield et al., 5 Ark. 555, Alston vs. State Bank, 4 Eng. 459; Wood vs. Wylds, 6 Ib. 756; State Bank vs. Woody et al., 5 Ib. 640; Brown vs. Hutchings, 14 Ark. 85; Armistead vs. Brooke, 18 Ib. 522.
A part payment is treated as an admission of the continued existence of the debt, and an implied promise to pay the balance. But such promise is not to be implied where the part payment is accompanied by circumstances or declarations of the debtor showing that it is not his intention to admit, by the payment, the continued existence of the debt, and his obligation to pay any balance.
A part payment by one joint debtor, made under circumstances which w'ould not revive the debt as to him, is not to be treated as an admission of liability on the part of another joint debtor. 2 Greenleaf Ev., sec. 444.
The Court erred in giving the first instruction moved for the defendant.' The part payment, as we have seen, is of itself an admission of the existence of the debt, and an implied promise to pay the balance, unless accompanying circumstances or declarations negative the admission.
The second and eighth instructions are substantially correct.
For the errors in the Court below in refusing the sixth instruction moved by the plaintiff, and in giving the first, third and sixth instructions asked for the defendant, the judgment is reversed, etc. | [
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Robert H. Dudley, Justice.
This malicious-prosecution case was before this court in a previous appeal. See Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). In that opinion, we reversed a summary judgment in favor of the defendants, Harold McLaughlin and Reliable Truck Brokers, Inc., d/b/a Champion Transportation Services, Inc. Upon remand, the case went to trial, and the jury found that plaintiff, Toby James Cox, was entitled to $18,000 in compensatory damages and $100,000 in punitive damages. The trial court entered judgment accordingly. As this is the second appeal of this case, this court has appellate jurisdiction. Ark. Sup. Ct. R. l-2(a)(ll). We affirm the judgment.
In March 1990, plaintiff Toby Cox operated a truck that was owned by his father, Floyd Cox, and was leased to Westport Truck ing Company. Defendant Harold McLaughlin was employed by defendant Reliable Truck Broker, Inc., which did business as Champion Transportation Services, Inc. Defendant Champion was a brokerage company that contacted motor carriers and arranged for the transportation of cargo for various shippers. Defendant Champion contracted with Westport Trucking to haul a load of Alpo Pet Food from a factory in Crete, Nebraska, to a Sam’s Wholesale Club in Houston, Texas. The load was to be picked up on March 13 and delivered to Sam’s on March 15 or 16. Plaintiff Toby Cox picked up the load in Nebraska on the date scheduled, March 13, and hauled it to Trenton, Texas, where, on March 15, he learned that a check from Westport Trucking to his father had been returned for insufficient funds. He phoned Westport Trucking and was told that the company was without funds, could not pay for hauling the load currently on the trailer, and .could not pay other past amounts owed to plaintiff’s father. Plaintiff refused to haul the load the rest of the way to Houston unless he was paid. He testified that on that same day, the 15th, he phoned Terry Lafarlette, a broker for defendant Champion, and told him of his predicament. He stated that Mr. Lafarlette told him he would have to get his money from Westport Trucking. On Friday, March 16, defendant Champion was informed, apparently by Sam’s, that the load might not have been delivered as scheduled. On Monday, March 19, defendant Champion confirmed the fact that the load had not been delivered to Sam’s. Champion called Westport Trucking and got a description of the tractor and trailer, the license number, and plaintiff’s driver’s license number. Defendant McLaughlin testified that defendant Champion did not want to lose its valuable brokerage account with Alpo Pet Foods. Champion realized it owed money to Westport Trucking for other loads and that it might offset some of the money that it owed to Westport Trucking by paying Mr. Cox. In the meantime, plaintiff determined that Westport owed his father about $4,300 for hauling, including the payment for hauling the load currently aboard. On March 20, defendant McLaughlin, on behalf of defendant Champion, reached an agreement with plaintiff by which Champion would pay $4,200 to plaintiff if he would go ahead and deliver the load to Sam’s. Champion paid $2,100 to Mr. Cox at that time. The parties disagree about when the other $2,100 was to be paid. Plaintiff testified that it was due when he got to Houston, and Champion says it was due when the load was unloaded at Sam’s. Plaintiff arrived at Sam’s on March 22, five days after the originally scheduled date, and learned that, contrary to the information he had received from Champion, he would have to deliver half of the load to another location.
After receiving the information, plaintiff refused to unload the dog food. Champion then arranged for plaintiff to unload the dog food at another warehouse. Plaintiff called Champion from that warehouse and asked for the remaining $2,100. Defendant Champion refused to pay, and plaintiff refused to unload. Immediately afterward, an employee of the warehouse told McLaughlin that plaintiff had left the warehouse with the load. Defendant McLaughlin phoned the car-theft division of the Houston Police Department and told a policeman that plaintiff had just left the warehouse with his customer’s load. The same day, defendant McLaughlin, a resident of Washington County, contacted the office of the Prosecuting Attorney in Washington County and executed an affidavit. As a result, plaintiff was charged with “fraud in the acquisition of authorization to provide vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (Repl. 1993). Meanwhile, plaintiff hauled the load back to his home in Trenton, Texas. There is no evidence indicating that plaintiff ever attempted to remove any of the load from the trailer. He was arrested in Texas on the Washington County felony charge. Ultimately, after discussing the case with plaintiff’s attorney, the prosecuting attorney nolle prossed the charge.
Plaintiff filed suit for breach of contract and malicious prosecution. The trial court granted the motion for summary judgment on the contract count on the ground that plaintiff had a pre-existing duty to deliver the load to Houston; thus, there was a failure of consideration for the subsequent agreement with Champion. The trial court alternatively held that the contract was made under duress. The trial court granted summary judgment on the malicious prosecution count on the grounds that probable cause existed for the felony charge as a matter of law and alternatively on the ground that McLaughlin and Champion relied on the advice of the prosecuting attorney. Plaintiff appealed from the summary judgment. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). We reversed and remanded because genuine issues of material fact remained in regard to both the breach of contract and malicious prosecution claims.
The case was tried in Washington County Circuit Court in 1994, and a jury found for plaintiff on the malicious prosecution claim and awarded him $18,000 in compensatory damages and $100,000 in punitive damages. Defendants McLaughlin and Champion filed a motion for a judgment notwithstanding the verdict and alternative motions for a new trial and remittitur. The trial court denied these motions, and defendants appeal.
Upon trial, during the testimony of plaintiff’s father on direct examination, plaintiff’s counsel asked him what remedy was available if Westport did not pay. Defendant’s counsel objected on the ground that the answer called for a legal conclusion. The court overruled the objection and stated that the witness could testify to “matters he has come to know in the trucking business.” The witness testified that he had asserted a lien.
In overruling the objection, the trial court commented:
He’s probably got a right to say that he exercised what he claims is a lien on the load. Now whether he can do that or not, you all give me the statutes, and I will instruct them on it. You can ask him if that is what he did, but whether it’s legally right or not, that’s another matter. (Emphasis added.)
We allow the trial court broad discretion in evidentiary rulings. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Unless the trial court abuses that broad discretion, this court will not reverse. Id. Regardless of whether plaintiff’s family had a right to a possessory lien, their belief that they could assert one was relevant to their states of mind concerning delivery of the load.
Defendants argue that our case Car Transportation v. Garden Spot Dist., Inc., 305 Ark. 82, 805 S.W.2d 632 (1991) requires us to reverse, but that case is distinguishable. It was a conversion case in which the defendants attempted to defend by saying they had not converted the goods because they had a right to assert a lien. Their argument was that they could withhold the goods for payment of the freight charges. Id. at 87, 805 S.W.2d at 634. Here, the issue is not whether plaintiff wrongfully converted the freight, but whether he had the intent to commit “fraud in acquisition of authorization to provide motor vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (Repl. 1993).
The defendants next contend that the jury’s verdict was not supported by substantial evidence, and the trial court erred in denying their motion for a directed verdict and in denying their post-trial motion for a judgment notwithstanding the verdict. A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict of the jury and the moving party is entitled to judgment as a matter of law. Dr. Pepper Bottling Co. v. Franz, 311 Ark. 136, 842 S.W.2d 37 (1992). A trial-'court may not substitute its view for that of the jury, and the jury’s verdict must be clearly against the preponderance of the evidence in order to be set aside. Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). The standard regarding a motion for a new trial is the same. See Ark. R. Civ. P. 50(b). On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the party for whom the original judgment was entered. See McCuiston v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980).
In Arkansas, the essential elements of malicious prosecution are: “(1) [a] proceeding instituted or continued by the defendant against the plaintiff[;] (2) [t]ermination of the proceeding in favor of the plaintiff[;] (3) absence of probable cause for the proceedings^] (4) [mjalice on the part of the defendant[;] (5) [d]amages.” Farm Service Coop. v. Goshen Farms, 267 Ark. 324, 331-32, 590 S.W.2d 861, 865 (1979).
Absence of probable cause is an essential element in a claim for malicious prosecution. However, “where the defendant makes a full, fair, and truthful disclosure of all the facts known to him before competent counsel and then acts bona fide upon [such] advice [this will be a good defense to a claim of malicious prosecution].” Culpepper v. Smith, 302 Ark. 558, 564, 792 S.W.2d 293, 298 (1990) (quoting Larry C. Wallace, Note, Malicious Prosecution - The Law in Arkansas, 22 Ark. L. Rev. 340, 350 (1968)); see also Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931) (holding that it is a complete defense to a malicious prosecution claim if defendant presented to counsel all facts available to defendant). In the context of malicious prosecution, probable cause means such a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989).
Appellant was charged with “fraud in acquisition of authorization to provide motor vehicle transportation of property.” Ark. Code Ann. § 5-37-524 (Repl. 1993) provides in material part as follows:
(b) A person commits fraud in the acquisition of authorization to provide motor vehicle transportation of property if that person obtains authority by telephone, wire, or other electronic means from any person in this state to transport goods within or without this state and thereafter:
(1) Fails to deliver the products in the time and manner prescribed by the contract, with intent to defraud the owner or shipper of the goods; or
(2) Appropriates to his own use the goods contracted to be transported; or
(3) Appropriates to his own use the proceeds from the sale, barter, or other transfer of ownership of the goods contracted to be transported.
Id. § 5-37-524(b).
It was essentially undisputed that plaintiff told defendant McLaughlin that Westport owed his family about $4,300, that plaintiff would not move the load unless someone paid him, and then they agreed McLaughlin would pay plaintiff and his family $4,200. Plaintiff testified that McLaughlin paid $2,100 and agreed to pay the other $2,100 when he arrived at Sam’s. Defendant McLaughlin testified he agreed to pay plaintiff and his family $4,200, and they agreed that plaintiff would be paid $2,100 before he took the load to Houston and would be paid the other $2,100 after the load was delivered to Sam’s. The jury obviously found in favor of plaintiff on this issue. The testimony of plaintiff and his family that he was to be paid when he arrived at Sam’s and that he would not unload the cargo until he was paid constituted substantial evidence of the agreement. This evidentiary finding was supported by plaintiff’s testimony that he never wanted to keep the dog food, but rather wanted to hold it only until someone paid him to deliver it. This constituted substantial evidence from which the jury could conclude that no reasonable person would think defendants were being defrauded.
Even if the absence of probable cause is found, it is a complete defense to a malicious prosecution action if it is found that the defendant made a full and fair disclosure to competent counsel of all facts known to the defendant, and defendant acted in good faith on this advice. Culpepper v. Smith, 302 Ark. at 564, 792 S.W.2d at 294. However, the burden is upon the person bringing the charges to show that they were brought on the advice of counsel. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987).
The jury could have found that McLaughlin left out important facts when he discussed the case with the deputy prosecutor. There was evidence that he did not tell the prosecutor that he initiated the agreement to pay plaintiff; rather, he told the prosecutor that plaintiff refused to deliver the goods unless he gave him $4,300. A jury could have reasonably found that this omission resulted in a mis-characterization of fact. The investigator’s notes reflect further inconsistencies that support the jury’s findings. The notes reflect that McLaughlin said the load was two weeks overdue, but other evidence indicated that it was only six days late. The notes reflect that the load was not located until March 20, but plaintiff’s mother testified that she informed Champion where the load was on March 15. The prosecutor’s record shows that McLaughlin told her that plaintiff demanded “2,800.00 additional dollars” to off-load at Jo-Mar, a second warehouse in Houston. This statement could make the investigator think that plaintiff demanded another $2,800 in addition to the agreed-upon $2,100. This did not happen, and McLaughlin knew it.
McLaughlin’s testimony indicated that he sought to have plaintiff charged for the sole purpose of recovering the dog food. He testified that he “went down [to the prosecutor’s office] to see if there had been a criminal offense perpetrated by the load that was missing.” He stated that his intent was “to try to recover the load for Champion.” While this does not by itself imply malice, McLaughlin’s state of mind is illustrated by a later part of his testimony.
I have heard of the arrest that he endured. I have heard that he was arrested twice. As far as whether I made any efforts to see that he was arrested again, I had Shirley Fox call once he had been arrested and request the prosecutor’s office to tell us where the load of freight was. I found out that they arrested him but they didn’t recover the load. As far as whether I pursued efforts to make sure he was arrested again, I called the prosecutor’s office and said, “What has transpired has not accomplished my outset for coming down.” What I set out to do was to get my load. I couldn’t make the call whether it was criminal or civil.
This testimony supports an inference that defendant McLaughlin, regardless of whether the charges were justified, used the criminal process to pursue a remedy that was available through a civil action.
Defendants next contend that the trial court erred in refusing to direct a verdict on the issue of punitive damages, in submitting the issue of punitive damages to the jury, and in failing to enter a judgment notwithstanding the verdict on the issue of punitive damages. A motion for directed verdict should only be granted when there is insufficient evidence to support the verdict. Ark. R. Civ. P. 50. The standard for determining sufficiency on review is well setded: (1) the evidence is viewed in light most favorable to appellee; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind past speculation and conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991). As noted earlier, judgment notwithstanding the verdict may only be granted if there is no substantial evidence to support the verdict of the jury, and the moving party is entided to judgment as a matter of law. Dr. Pepper Bottling Co. v. Franz, supra. An instruction for punitive damages may be given when there is evidence that a party likely “ ‘knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.’ ” Allred v. Demuth, 319 Ark. 62, 66, 890 S.W.2d 578, 580 (1994) (quoting Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 116, 732 S.W.2d 465, 467 (1987)).
It is clear that to support an award of punitive damages, there must be a showing of “wilfulness, wantonness, or conscious indifference.” Louisiana and Northwest R.R. Co. v. Willis, 289 Ark. 410, 415, 711 S.W.2d 805, 808 (1986). “Negligence alone, however severe, is not sufficient to sustain such an award.” Id. In Simpson v. Weeks, 530 F. Supp. 197 (E.D. Ark. 1977), a civil-rights suit under 42 U.S.C. § 1983, the federal district court articulated a helpful standard for wantonness. It said:
An act is wantonly done if done in reckless disregard or indifference to the rights of another. An act is oppressively done if done in a way or manner which violates the right of another person with unnecessary harshness or severity as by misuse or use of authority or power.
Id. at 207. In that case, punitive damages were awarded when the evidence showed that the defendants intended to intimidate the plaintiff from exercising a right. Id. Here, the jury could have concluded that McLaughlin and Champion mischaracterized the facts to the deputy prosecutor in order to intimidate plaintiff and force him to deliver the load without regard to their bargain.
Defendants next contend that the trial court erred in not reducing the amount of compensatory damages and punitive damages and this court should reduce both the compensatory and punitive damages. The jury awarded plaintiff $18,000 in compensatory damages. The jury had before it evidence that plaintiff Cox spent $7,500 for a bond, lost $4,200 in wages, and paid attorney’s fees of $1,800 to defend the charge, or a total of $13,500 out-off pocket expenses. In addition, there was evidence of mental suffering. The amount of damages growing out of mental anguish is ordinarily left to the determination of the jury. Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). In short, there was substantial evidence to support the award of compensatory damages.
When reviewing an award for punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994). Appropriate compensation is not the test, but rather such damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another. The penalty should be sufficient to deter others from such conduct. Interstate Freeway Servs. v. Houser, 310 Ark. 302, 310, 835 S.W.2d 872, 876 (1992).
Damages may be reduced if they are so large as to shock the conscience of the court, or if it is clear that the jury was influenced by passion or prejudice. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). The amount of the punitive damages awarded does not shock the conscience of this court, and there is no clear evidence that the jury was influenced by passion or prejudice. Defendants admit that the only evidence of “passion or prejudice” would be the possibility that the jury was influenced by plaintiff’s father becoming emotional at one time when he was on the witness stand. This occurred when defendant’s counsel was cross-examining him. Counsel asked if he had discussed terminating the lease with Westport in the past because Westport had been slow to pay. Plaintiff’s father stated that they had considered changing, but had decided not to do so when his other son was killed in a car wreck and they had a lot of funeral expenses. This one remark, which was elicited by defendants, cannot be said to be proof that the jury was swayed by passion or prejudice. Further, we will not substitute our judgment for that of the jury when there is basis in the evidence for the award. Clayton v. Wagnon, 276 Ark. 123, 633 S.W.2d 19 (1982).
Affirmed. | [
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PER Curiam.
Joseph Gelzine seeks access to records of trial in two cases decided by this Court, Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1993) (Case No. 93-1079), and Skokos v. Skokos, 322 Ark. 563, 909 S.W.2d 653 (1994) (Case No. 94-952). Mr. Gelzine states he is a litigant in a separate case brought against him by Pamela F. Skokos involving evidence contained in the records requested. Ms. Skokos has responded to Mr. Gelzine’s motion for release of the transcripts to the effect that she has no objection.
In our per curiam order in Case No. 94-952 we granted a motion to chronologize and consolidate the records in the two cases. We remanded the consolidated case to the Trial Court and appointed Chancellor Jim R. Hannah to replace Chancellor Alice S. Gray who had recused.
The consolidated record sought in this motion is in the possession of Chancellor Hannah who is using it to conduct further proceedings in the case. Mr. Gelzine may make whatever arrangements Chancellor Hannah may permit for temporary access to and copying of the record.
BROWN, J., not participating. | [
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