text:
    Ludlow, Ad., etc., vs. Flournoy et al.
    1. Wills: Probate of, on insufficient evidence.

    The granting of probate of a will on insufficient evidence, is only error, which may bo corrected by an issue of devisavit vel non, on appeal’in the circuit court; and the proceedings and orders of the probate court, can not be collaterally attacked; nor oven directly in chancery, except for fraud, or perhaps on some other peculiar ground of chancery jurisdiction.
    2. Same : Executor, authority of, relates to grant of administration.

    The authority of an executor relates to the grant of administration to him by the probate court, and not to the mechanical issuance of the letters testamentary, as evidence of his authority.
    3. Executor : To whom liable for waste.

    For waste, or loss, a former executor or administrator is liable to heirs, legatees and creditors, but not to an administrator de bonis non.

    4. Same: His powers. — selling land. His receipt to purchaser, sufficient discharge.

    An executor derives his powers from the will. If it authorizes him to sell lands, he may do so without the order of any court. And, in the absence of fraud, his receipt to the purchaser for the purchase money, is a sufficient discharge.
    5. Fraud : Purchaser concerting with executor.

    One who purchases land at less than its value, by concerting with the executor, may be held to pay its full value, and. the land be held to a trust for the purpose.
    6. Same : Acquiescence — Limitation.
    Acquiescence for a considerable time is often an element against relief; and will prevent creditors from questioning sales by executors.
    7. Admissions : Trustee’s, not admissible against cestui que trust.

    The statements or admissions of a trustee, of a past transaction, can not be admitted against the interest of his cestui que trust.

    APPEAL from Desha Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.
    Pindall, for appellant.
    Weatherford, Garland, Clayton, contra.

   Eakin, J.

In the year 1861, Thompson B. Flournoy, a citizen of Desha county, died, leaving a large estate, consisting of lands, slaves, personal property and choses in action.

He left a will, with several codicils. It begins as follows: “I desire all my just debts to be paid; and for the payment of any I may contract during my life, I authorize my executors hereinafter named, to sell and convey, or pledge, or mortgage any part of my estate, first commencing with my wild lands.” He made other dispositions of his whole estate, in the interests of his wife and children, which it is not important to notice specially, save for this, that in order to carry out the same, he provides that: “It shall be in the discretion of my executors whether the division shall take place in kind, or the property shall be sold and the proceeds divided.”

He made his wife trustee for his daughters, as well as executrix (with others), and empowered her, as such trustee, after his daughters should become entitled to the estate, “to sell or exchange any part of said estate; and with the proceeds of said sale, or with the income of said estate, buy other property and . hold the same for said daughters.”

' In a subsequent clause he says: “I wish all my-'wild lands to be sold whenever my executors shall deem it best for the interest of my wife and children ; and I hereby invest them with the power to sell and convey the same.” And then goes on to direct the use of the proceeds. Executors were named, his wife among them,-and they were relieved from the necessity of giving security for the discharge of their duties. This will bore date the eighteenth of January, 1858, and was duly executed in the presence of two witnesses. Subsequent .additions were made at different times, signed by the testator alone, none of them touching the power of sale, until the twenty-ninth of May, 1861, when he added a formal CGdicil, executed in due form of law, with the same two Avitnesses as in the principal will.

This codicil the testator meant to be considered as a modification, and a part of his whole will, taken in connection with what he had done before, which, indeed, is implied by the use of the term “codicil.” In it he revoked the nomination of all executors except his wife, who had been named in the original will as one of three; and clothed her with all the powers which had been conferred on all. She was further, by said codicil, advised and empowered “to sell this my home tract whenever in her judgment the proper time arrives.” A residence in Kentucky, owned by testator, was also placed at the discretion of the executrix.

On the eighteenth of October, 1861, the affidavit of two Avitnesses was taken before the clerk, proving the handwriting of the testator in his signature to the will, and of one of the subscribing witnesses. The handwriting of the other subscribing witness was al4o proved by one of the affiants.

On the sixteenth of April, 1862, the paper purporting to be the last will and testament of T. B. Flournoy, was presented to the probate court of Desha county, then in session, upon the evidence theretofore taken before the clerk of the court, which was held satisfactory. Whereupon the will was admitted to probate, and established as such ; and it was ordered, “that letters testamentary issue thereon to Elizabeth J. Flournoy, executrix, named in said will, and that no bond be required from her before issuing said letter’s, the same being waived by said will.” This order is to be understood of the original paper and the superadded codicils, making altogether one will. The proof of the last being attached to the same paper, and referring to the others, would have been proof of the whole will. See Barnes v. Crow, and notes, 4 Bro. C. C., p. 2.

After the 'war of secession had closed and peace had been restored, at the December term, 1865, the probate court, on the petition of said executrix, reciting the fact that the will had been duly probated in 1862, and that petitioner had been authorized to take upon herself the burden of such trust, ordered again that letters testamentary, with the will annexed, be issued to the petitioner upon her filing the affidavit required by the statute, and that no bond be required of her.”

During the'year 1866, as appears from the exhibits, a large amount of debts were probated and allowed against the estate, amongst them, a claim in favor of the estate of James Brown, for $2,158.

At the March term, 1867, upon petition and motion of creditors, a citation was issued against said executrix, to show cause why her letters should not be revoked because of her having become a non-resident. The citation could not be served, and the court, upon proof, heard, at the September term, revoked her letters and ordered her to file her accounts for final settlement. It was further ordered that the sheriff, as public administrator, should take cut letters.

Shortly after-wards, in December, 1867, at a subsequent term, she appeared in court, made explanations, showed her continued residence, and, on her motion, her letters were renewed. At the same term, on her petition, the court granted her dower in said estate, and appointed commissioners to lav it off’; which was afterwards done.

At the March term, 1868, Mrs. Flournoy filed an inventory of the estate, with her report and settlement, which was continued and due notice ordered. No exceptions were taken, and all were confirmed at the next term, on the second of June, 1868.

The report shows that she entered upon the duties of the administration in 1861, under the belief that letters testamentary had been issued. She did not then doubt her ability to pay off all the debts, which were in the aggregate less than one fifth of the value of the whole estate. That during the war it was almost impossible to obtain orders of the court, or get officers to administer oaths. She, believing herself authorized by the will, had paid debts which she was satisfied were correct, without waiting for probate, and had educated the children, who were legatees. That she had paid levee subscriptions for the benefit of the estate, appropriating rents and proceeds of personal property to the purpose, and that she had been compelled to sell the home place, for the sum of $4,000, for the purposes of the estate.

She gives an inventory of the personal property, which consisted, for the most part,- in slaves and cotton, the former of which had been emancipated, and the cotton, much of it, destroyed during the war. In short, let it suffice to say of this settlement, that it exhibited a management on her part, regardless of the law; but such as many planters during that unhappy period did not surpass in acting for themselves. She brought the estate in debt to her nearly $20,000. In 1869, the will was again probated with additional proof, and the letters theretofore issued confirmed by the court.

Afterwards, in January, 1870, she repurchased from the vendee the land she had sold for $4,000, and took a reconveyance to herself in her character of executrix — repaying to the vendee the original purchase money and $1,000 more for taxes, improvements, etc., and on account of greatly appreciated value.

On the fifteenth of February, 1870, said executrix, acting under her powers in the will, sold and conveyed six hundred acres of the lands, mostly improved, to Clifton R. Sheppard and Charles B. Blackburn, for the expressed consideration of $5,100 paid, and the further consideration of two bills of exchange for $2,550 each.

On the twenty-sixth of March, 1870, she, in the same character, sold and conveyed another portion to Luke P. Blackburn, in trust for his wife, for the express consideration of $8,273. This tract contained 467.05 acres.

On the fourteenth of Februai’y, 1870, she also sold and conveyed to Henry B. Blackburn another portion of land for the expressed consideration of $8,000, containing about 600 acres.

On the twenty-sixth of March, 1870, she also sold and conveyed to Henry B. Blackburn another tract, containing about 508 acres, for the expressed consideration of $6,000.

Before either of these, she had, on the twenty-first day of December, 1869, sold and conveyed to Joseph Bryan, for $707, another tract containing about 707 acres.

During the same year she filed a second settlement, in which she charges herself with the proceeds of all these tracts save the last, and asks credit for the $5,000 paid to repurchase the tract originally sold for $4,000, as above stated. '

The complainant, Marvin H. Ludlow, appeared in court as the administrator of James Brown, one of the creditors whose claims had been allowed in 1866, and excepted to this settlement. He objected: First — because of the claim as a credit of balance shown to be due her on first settlement, saying it was for debts which she had assumed, and on which she should only be allowed a pro rata, if anything; second — to the attorney’s fees; third — to a dower in lands claimed as money; and fourth — because there was no account of lands in Tennessee. The second and third grounds seem to have been allowed, for the items were struck out, whatever they were, and a balance against the executrix shown of more than three thousand dollars. No exceptions were taken to the sale of the lands or the amounts received. The report, as corrected, was confirmed by the court, save as to the sale of the lands, which the court did not attempt to confirm, apparently because the same was not made under order of the court, but did confirm her report of the purchase money and her disposition of it, and made a charge against her of a balance.

The original bill was filed in this case by Ludlow, as administrator of said James Brown, a creditor, whose claim had been allowed in 1866, against Elizabeth J. Flournoy and others, who had purchased the lands from her, as above set forth, and was for the benefit of complainants and all other creditors that might come in to seek its benefits.

Setting forth the facts substantially as above stated, the bill charges that said Elizabeth was never duly appointed .executrix, because she had failed to give bond and make affidavit, as well as because the will was not at first duly probated; but that she had, nevertheless, seized the assets of the estate, and recklessly wasted and squandered them; that she had neglected to obtain the proper orders of the court in her management of the property, and had acted without any letters testamentary actually issued. It charges that she fraudulently procured the assignment of dower to be made to herself, being already provided for by will» and fraudulently sold the real estate for $4,000, a grossly inadequate sum, afterwards repurchasing the same lands at an advanced price. There are many other charges of fraud against the executrix, touching her management of the estate and her settlements, which it is not important to recapitulate. They amount to this, in effect, that out of the large amount of property received by her, and money which came to .her hands from rents and sales of said property, only a very insignificant portion was applied to the debts of the estate; but that the assets were wasted, lost by neglect, squandered, or misappropriated in favor of her relatives and connexions, or by the payment of extravagant expenses, not chargeable on the estate; and that her accounts were fraudulently procured to be passed by the probate court.

The bill further charges, with regard to the several sales of real estate above set forth, that they were made without sufficient authority, and with a corrupt and fraudulent design, to hinder, delay and defraud creditors, and that they were made without notice to creditors; also, that the purchasers were aware that said executrix intended to misappropriate and misapply the assets, without paying the debts, and made the purchasers to gjid her therein ; that the pretended prices were inadequate, and had not been fully paid.

The prayers of the original bill are: That the probate of the will be declared void; that the deeds made by the said Elizabeth, as executrix, be annulled; that the probated claims be declared a lien upon the lands so conveyed; that an account of rents and profits be taken against the purchasers from the time of their possession; that a receiver be appointed to collect them, and take possession of the lands, and that the same be sold, if necessary. As against the executrix, the prayer is: That her settlement be corrected and purged of illegal charges and credits; and that she be held liable for the correct balance which may be found against her. There is also the common prayer for general relief.

On the sixth of .June, 1873, complainant filed an amended bill, stating that the letters of defendant, Elizabeth Elournoy, had been revoked at the June term, 1871, of the pro-. bate court, and that the sheriff had been ordered to take charge of the estate.. Erom this order, an appeal had been taken to this court, -which was afterwards dismissed; that the sheriff had never acted in the matter, and that the complainant, pending this suit, on the fourth day of June, 1873, had been duly appointed administrator de bonis non of said estate. lie exhibits his letters of that date, and files the amended bill in that character, as well as in his former character of creditor, in behalf of himself and others.

In this amended bill, he prays specially that all the acts of the probate court touching the subject-matter before the re-establishment of the relations between Arkansas and the federal government be declared void, and that the pretended settlements of Mrs. Elournoy be held for naught, with a reiteration of the former prayer against the purchasers, and the general prayer for relief.

Answers were filed by Mrs. Elournoy (who attempts to justify her acts as executrix, on account of the losses and confusion of the war, and the difficulty of procuring orders of the court), and by the defendants, who were purchasers. The purport of all their answers, the details of whifeh would incumber the record, is, that all parties acted in good faith, without any intention of fraud, relying upon the authority conferred upon the executrix by the will. The purchasers claim to be innocent, and say that they paid valuable and adequate consideration. They deny any collusion with Mrs. Flournoy in any frauduJent design.

Depositions were taken on both sides, and the cause was heard upon the pleadings, exhibits and proof.

The chancellor held, upon the whole case, that the complainant was not entitled to any relief in the premises, and dismissed the cause.

Complainant appealed.

Since the bill in this case was filed, it has been repeatedly held by this court, that all the acts of the courts of the state, during the war, done in the ordinary administration of justice, and not adverse to the constitution and laws of the United States, were valid. At the time the will of Thompson B. Flournoy was probated the probate court had full jurisdiction of the matter. If it granted the probate on insufficient evidence, it was only error. It might have been corrected by making an issue of devisavit vel non as prescribed by the statute. It is not shown that any fraud was perpetrated upon the court or parties interested in procuring the probate; and the proceedings and orders of the court must stand. They can not be in any manner collaterally attacked, nor even directly in chancery, except for fraud; or, perhaps, some other peculiar ground of chancery jurisdiction. Nothing of the sort is shown. Mrs. Flournoy was afterwards recognized by the court, and the creditors of the estate, in many ways, and upon several occasions as executrix. The latter have no standing in court, except on the allowances of their claims against the estate under her administration. The original grant to her of the letters was positive and unconditional. Her authority relates to the grant, and not to the mechanical issuance of the letters to her, as proof of her authority. She might take them out at any time. The subsequent renewals of the probate were from superabundant caution. They were meant to cure and not to limit or revoke any previous authority. The original bill itself recognizes her as executrix, in seeking to correct and purge her accounts. If she had not been such, the creditors would have had no ground for relief against her, at all, in equity. She would be merely a trespasser, liable to an action at law.

Considering her as executrix, the original complaint was not demurrable. The charges of fraud were sufficiently specific, and. the creditors had the right to ask the court to correct, restate her settlements, and to set aside sales fraudulently made, in order that the assets might be brought back, and the administration proceed properly.

The amended bill altered the aspect of the case. The complainant assumes a new character, that of administrator de bonis non. As such he might, indeed, ask the court to remove clouds from the title of lands belonging to the estate, in order that he might take and administer them, by sale and application of the proceeds to the debts; but, as such, he would have no right, without joining heirs or devisees to proceed against the former executrix for a devastavit. His duty is only to administer the estate which comes into his hands, and to collect outstanding choses in action. Eor waste or loss, the former administrator or executrix is liable to the creditors, heirs or devisees — not to the administrator de bonis non. The latter can only collect in and administer “goods not administered.”

The amended bill, however, although it could not in all things consist with the original, being in its nature multifarious, was nevertheless good against the purchasers of the lands. Eor, if they purchased in fraud of creditors, or from one not having authority to sell, then, a creditor might, in behalf of himself and other creditors, join with the administrator de bonis non, to remove clouds from the title of lands belonging to the estate — although they could not, without the heirs or devisees, join in a proceeding to hold the former executrix liable for a devastavit. The complainant, in his amended bill, seems to concede this, as he declines to pray any relief against Mrs. Flournoy, individually, but only that her settlements be held for naught. He limits his claim to setting aside the land sales. The attorneys, in argument here, concede that to have been the sole object of the suit, and it so appears from the records.

All questions concerning the liability of Mrs. Flournoy to restate her accounts, and pay balances, pass out of the case. If she has committed frauds, it is still important to establish the collusion of the other defendants therein, when they purchased the lands, but not otherwise.

The powers of an executrix are derived from the will. The probate of the will and the grant of letters testamentary are useful, if not essential, to establish the will and designate the person authorized to execute it. The inventory and the settlements are necessary, that the probate court may see that the will is executed according to its terms. But to the will itself we must look, first, to see if powers of sale are conferred. If so, they may be executed. If not, then, as the law stood when this will was probated, the probate court might, on a proper showing of the necessity, order a sale for the payment of debts. Gould’s Dig., chap. 4, secs. 165, 166, 167.

In James et al. v. Williams et al., 31 Ark., p. 175, the court said : “ Probating a will is but the perpetuating the evidence of a fact by the judgment of a court. The same evidence which is required to establish the validity of the will in court, may, before a competent tribunal, be introduced to establish its validity elsewhere referring for authority to the case of Campbell v. Garvin, 5 Ark., 491. We are asked to review this decision under section 5781 of Gantt’s Digest, which was part of the Civil Code.

It provides that “ no will shall be received in evidence until it has been allowed and admitted to record by a circuit (in the original, probate) court; and its probate before such court shall be' conclusive until the same is superseded, reversed or amended.”

This is a new rule of evidence, having no application to the matter before us,- as this will was probated in 1862, and the order admitting it has never been superseded, reversed or amended. So far as the case of James v. Williams, which it may be remarked arose under the old law, may go to sustain the doctrine that, the will being proven, the powers of the executor are derived from it — it is but the reiteration of a well-recognized principle. The power to sell lands, not only for the payment of debts, but for other purposes, is broadly given by the will, and might be exercised without the order of any court.

And in a case like this, the receipt of the executrix, in the absence of fraud, is a good discharge to the purchaser. He is not bound to look to the application of the purchase money. The distinction in the English equity system is, that where lands are committed to an executor or trustee, for sale, to pay specific debts, the purchaser must see to the application of the money and obtain the discharge also, of the beneficiary ; otherwise he may be held liable to a second payment if the trustee should waste the funds. But if the land be charged with the payment of debts generally, or devised for some specific purpose after payment of debts, it will not be presumed that the testator intends to impose on the purchaser the burden of finding-out the creditors to get their receipts, or of taking an account of the debts and payments to see if the necessity has arisen for the sale, but it will rather be presumed that it was intended that the executor or trustee’s sole receipt should be a good discharge. The question does not often arise under our system of administration. Sales are generally made under orders of court, and the money paid to its officer or commissioner, or some one authorized to receive it; which discharges the purchaser, of course, on confirmation. Or where lands are devised or conveyed on special trusts, it is usual with careful conveyances to insert a clause making the trustee’s receipt a full discharge. The cases are very few indeed, in American practice, where a power of sale is given in such a manner as to require the purchaser to look to the application of the purchase money. The risks attending such sales would greatly discourage purchasers, and the rule requiring purchasers to see to the application of the money has been rather relaxed than favored by the American authorities. It never did extend to personalty, and at no time would it have applied to realty under a will like the one in question. See the leading case of Elliott v. Merryman, 1 White & Tudor’s Lead. Ca. in Equity, p. 59.

The exceptions to the rule are laid down by Lord Thurlow, as follows: “If one concerts with an executor by obtaining the testator’s effects at a nominal price, or at a fraudulent undervalue, or by applying- the real value to the purchase of other objects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, such concert will involve the seeming purchaser, or his pawnee, and make him liable for the full value ” Scott v. Taylor, 2 Dick.; quoted also in notes to Elliott v. Merryman, supra.

If, as charged in the bill, the defendant purchasers, or any of them, have been guilty of such concert with Mrs. Elournoy, as is above indicated, then under the prayer for general relief, the court might require them to pay full value for their purchases into the hands of the administrator de bonis non, or make such other decree as would insure the application of the full value to the legitimate purposes of the estate, so far as any part of it may not already have been so applied, and might hold the lands bound to a trust for the purpose. This was the real question at issue, which became one of fact for the chancellor.

Certainly the administration of Mrs. Flournoy led to results which in ordinary times, under ordinary circumstances, would seem shocking. A vast estate of near half a million of dollars seems to have melted away like the snows, leaving unpaid the greater portion of a list of debts, which did not amount altogether, perhaps, to more than one-fifth in value, of the estate. Many things were done by her loosely, irregularly, illegally. Extravagant charges seem to have been made by way of credits, and there were many other things which, on their face, bear the impress of such management as this court has in former cases held to be constructive fraud, justifying the interference of a court of chancery. Had the bill been prosecuted against Mrs. Elournoy as begun, there is little doubt that the chancellor would have corrected her settlements and held her to a -stricter liability. But this court can not ignore the public history of the times,, the pendeucy of a destructive w ar, which was flagrant from the time of her appointment, in 1862, until the spring of 1865 ; the privations and distresses of the masses of population; the prostration of values and the disorganized condition of the courts. These are matters of history and general knowledge, which a chancellor may well consider in judging of the conduct and weighing the motives of parties charged with fraud. There may be constructive-fraud compatible with the most honest and honorable intentions. This is important when others are charged with concert.

The evidence shows the loss of $125,000 at one fell swoop-by the emancipation proclamation ; and the probate court accepted the report of the loss of large amounts of cotton by burning. Stricter proof should have been required. But the report was probable, and not on its face fraudulent-. Large amounts were expended, and perhaps wasted, on levee works; and large amounts expended in expenses of the family. The evidence tends to show that Mrs. Plournoy managed throughout with honest intentions to pay the debts, and there is no reason to believe that any one doubted her sincerity. It is the creditors alone who complain. The devisees are satisfied to submit to their losses. There-is no proof of any actual design to defeat creditors by the sale of land brought to the notice of the purchaser’s; nor-does it seem to be sufficient even to arouse their suspicions. The sale of the land for $4,000, and the repurchase for-$5,000, is explained in such a manner as to rebut fraudulent intent. And as to the matter of dower, it produced no harm to complainants,.as far as the court can ascertain from the papers. The same lands assigned to her fin dower were embraced in the deeds to purchasers. It amounted to a. relinquishment of her rights to the purposes of the will; and the purchasers might look to the will alone for her authority to sell.

The evidence does not show that the lands were sold at inadequate values. It conduces to prove, taken as a whole, that the purchasers paid the actual values, if not precisely the sums mentioned in their deeds. At least, it can not be said they were so inadequate as to raise the presumption of fraud.

There remains another consideration which may have properly had weight with the chancellor. The complainant in this case, the sole original mover of the litigation, excepted in 1870 to the second settlement of the executrix, and did not then object to these sales, although they were reported in the settlement. It was an acquiescence for more than a year before the commencement of his suit, during which the purchasers may have gone on making improvements. It is not at all a conclusive circumstance against his equity; nor is there any question of limitation. But acquiescence for any considerable time is often an element against relief. It was so considered in the leading case of Elliott v. Merryman, although in that case the time of delay was much longer than in this. The principle is recognized in the English cases, that length of time and acqieseenee will prevent creditors from questioning sales by executors; even when the sales were attended with suspicious circumstances of fraud. See Bonney v. Redyard, cited on p. 138 of Bro. C. C., Vol. 4, and ib., note 5, on p. 130.

The time alone in this case is not sufficient for the imputation of laches; but taken in connection with the strong inference, from the evidence, that the principal complainant knew of the sales when made, and the fact that he did appear and object to the confirmation of the second report of the executrix, without objecting to the sales therein reported, the subsequent delay of more than a year to file this bill is certainly persuasive of acquiescence at the time. The complainant is shown to have been in a situation favorable to the discovery of fraud if any had been intended.

At the hearing, the chancellor rejected, as evidence, a deposition of L. T. Blackburne, made in another case, between other parties, to the effect that he had paid for the land conveyed to him at the rates of $25 per acre. This would make the consideration some $8,500 more than that expressed in the deed. The inference meant to be derived from this was, doubtless, that the excess had been paid as a bonus to the executrix, and not accounted for in her report; thus raising a presumption of fraud. The rejection of this evidence .is complained of as error. The parties being different, this evidence was only admissible, if at all, as an admission. L. T. Blackburne was only a nominal defendant in this case. He held the dry legal title for the sale and separate use of his wife, who was the real defendant. The admission was historical, and not offered as a part of the res gestae attending the conveyance. He could not thus prejudice the rights of his cestui que trust, the real owner ; nor could his admission be used against her. Besides, the same facts appear in the testimony of another witness, and if entitled to consideration, were before the chancellor.

"We do not tliink fraud was shown on the part of any of the purchasers, and upon the whole case, are of opinion that the chancellor did right in dismissing the bill after it had ceased to be pressed against Mrs. Flournoy.

Affirm the decree.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Harris vs. The State.
    1. Criminal Evidence: Threats.

    Where a threat is not communicated to the defendant before the killing, and there is no evidence by which it may appear that the defendant, in taking the life of the deceased, acted under a reasonable apprehension of danger to his own life, or fear of great bodily injury, and such threat, if it had been communicated to him, could afford him no justification or excuse for the killing of the deceased, it can not be admitted in evidence.
    2. Criminal Intent: When presumed from the act.

    Where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proved and found; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and on failure thereof, the law implies a criminal intent.
    3. Drunkenness : When evidence of, admissible.

    Where the question is whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered.
    4. Instructions : Abstract, refused.

    The court may well refuse instructions of abstract law, which are not applicable to the facts of the case.
    ERROR to White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      House, for plaintiff.

      Henderson, Attorney General, contra.

   English, C. J.

Samuel Harris was indicted in the circuit court of White county for murder; the indictment charging him with murdering S. R. Cox with a large stick. He was tried on the plea of not guilty, at the January term, 1879, found guilty of voluntary manslaughter, and his punishment fixed at imprisonment in the penitentiary for five years. He filed a motion for a new trial, which the court overruled, sentenced him in accordance with the verdict, and he brought the case into this court by writ of error.

I. The first question presented by the motion for a new trial is, whether the evidence warranted the verdict.

It is not necessary to set out in detail the evidence as disclosed by the bill of exceptions. It is sufficient to state the leading facts and circumstances of the crime.

There was a balloon ascension and some small shows in the town of Searcy on the eighth of November, 1878; many people had collected there, and there was a good deal of drinking among them. Harris, the plaintiff in error, was requested by the town marshal, and with approbation of the mayor, to act as a special deputy, or policeman, and to aid in preserving good order.

■ About night, of that day, S. R. Cox was in a saloon, intoxicated, dancing, capering, and cursing some boys. Harris went into the saloon, and told him to be quiet and stop making a noise. They came out upon a platform in front of the saloon, where some altercations occurred between them, both using profane and offensive language. Finally, Harris shifting the ends of a stick, which he had in his right hand, and taking it by the smaller end, struck Cox a violent blow with the stick, on the left side of his head, above the ear, felling him limber and senseless to the ground, breaking his skull, and causing blood to flow from his'mouth and nose. Harris, calling persons to assist him, removed Cox to a store near by. lie was afterwards taken to a house, attended by physicians, and continued in a comatose condition until he died on the night succeeding the next day.

The stick with which Harris struck Cox the fatal blow, was produced at the trial, and shown to the jury, but its size is not stated in the bill of exceptions. One'witness described it as a knotty stick, and another stated that the lick might have been heard a hundred yards. It seems that Cox was not armed, and, at the time he was struck with the stick, was making no hostile demonstrations toward Harris.

Upon a careful reading of the testimony, we have the impression that the blow was reckless and brutal, and the killing of Cox, under the circumstances, at least, voluntary manslaughter, as found by the jury. We find in the evidence no facts upon which the jury might reasonably have found the killing to be excusable homicide in self-defense.

II. The bill of exceptions states that the defendant offered to prove by a witness (George Brooks), “that he had a conversation with Cox, about a half hour before the difficulty, about fifteen or twenty steps from Humphrey’s saloon; that the defendant passed along by them while they were standing there, and Cox remarked that defendant had insulted him, and that he intended to make him take it back before he left town — that he had the damned son-of-a-bitch’s measure, and he intended to have satisfaction, and, showing the witness a pistol which he, Cox, had partially concealed under his coat-sleeve; that Cox cursed and abused defendant in a very threatening and angry manner, but that this was not communicated to the defendant. To which the attorney for the state objected, upon the ground that the threats were not communicated to defendant before the difficulty; which objection was sustained by the court, and the witness was not permitted to testify, as above stated ; to which ruling of the court in not permitting such testimony, the defendant, at the time, excepted.”

This ruling of the court is made one of the grounds of the motion for a new trial.

Before Brooks was called as a witness, all of the witnesses for the state, and all of the other witnesses for the defendant, had been examined. Brooks was the last witness called, and the defense proved no fact by him, and offered to prove nothing by him except uncommunicated threats of Cox, as above shown.

At the time defendant offered to prove the uncommunicated threats, all of the facts and circumstances immediately attending the killing, were before the court and jury. No witness proved that Cox was armed with any weapon at the time he was killed. None was found on his person, or at the place where he fell — he was making no hostile demonstrations toward Harris at the time the fatal blow was given. It is manifest, from all the evidence, that Harris did not strike him in self-defense, or through any reasonable apprehension of danger, but that the blow was given recklessly and brutally, on mere provocation by words.

The excluded testimony does not fall within the rule laid down in Pitman v. The State, 22 Ark., 356, where noneommunicated threats were held admissible as part of the res gestee, or within the ruling in Patmore v. State, 29 Ark., 263, which followed Pitman v. State; but the remarks of Mr. Justice Harrison, in McPherson v. The State, 29 Ark., 229, are applicable to the facts of this ease:

“ It was not alleged that the threat had been communicated to the defendant before he killed the deceased; nor is there any evidence by which it might appear that the defendant, in taking the life of the deceased, acted under a reasonable apprehension of danger to his own life, or fear of receiving great bodily injury; and such threat, if the same had been communicated to him, could have afforded no justification or excuse for the killing of the deceased.”

It is difficult to lay down an absolute rule as to the admissibility of proof of uncommunicated threats.

On the facts in the Atkins case, evidence of such threats was held inadmissible; so in Coker’s ease (30 Ark., 56) and in Pitman’s ease it was held that the threats might be proven as part of the res gestee, and as tending to throw light upon the conduct of the deceased at the time he was killed, etc.

If Brooks would have proven, and had been permitted to prove, the uncommunicated threats of Oox, as proposed by the counsel for plaintiff' in error, we do not see, upon the facts attending the killing, that he might have been benefited thereby, or that he was prejudiced by the exclusion of the offered testimony.

III. The counsel for plaintiff in error, moved the court to give the jury ten instructions; the first and second of which the court gave, aud refused the others.

In the two given, an attempt was made to define murder in the first and second degrees, and they were favorable to the accused.

(a) Instead of giving the eight others, the court read to the jury the sections of the statute defining the two degrees of murder, express and implied malice, the two gradeg of manslaughter, justifiable and excusable homicide, etc. The sections read are indicated in the bill of ex-tions.

¥e deem it unnecessary to copy the third, fourth, fifth and sixth instructions asked for plaintiff in error. They are similar to two instructions 'asked for the prisoner in McPherson v. The State, and copied on page 233, of 29 Ark. Rep., and which the court held to have been properly refused by the court below, for reasons given in the opinion of this court, delivered by Mr. Justice Harrison.

(ib) The seventh instruction follows:

“The jury are instructed that, in order to justify a verdict of guilty in this case, it must appear from the testimony, beyond a reasonable doubt, that the defendant intended the result of his act; that is, at the time he struck Cox with the stick he must have intended it to be a fatal blow; the act and intent must concur. The criminal intent is an essential ingredient in every crime. That while it is true every man is presumed to intend the result of his act, yet this presumption may be rebutted by positive evidence, or by the circumstances attending the case; and, in determining the question as to the criminal intent of the defendant’s mind at the time of the killing, it is the sworn and.imperative duty of the jury to weigh and consider all the testimony and the circumstances attending the case, the action, the conduct of the defendant at and immediately after the killing was done, judging of them in the light of reason and common experience, and when they have done this, if they have any reasonable doubt as to the criminal intent, they must acquit.”

'Where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proved and found; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and, in failure thereof, the law implies a criminal intent.

Every person is presumed to contemplate the ordinary and natural consequences of his own acts ; therefore, when one man is found to have killed another, if the circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is to be presumed that the death of the deceased was designed by the slayer, and the burden proof is on him to'show that it was otherwise. Secs. 13, 14, 3 Greenleaf on Evidence; Howard v. State, ante.

'Upon the evidence disclosed, the plaintiff in error did an unlawful act in striking Cox with the stick. The stick must have been of a size, judging from the effects of the blow, calculated to produce death. The blow was given with sufficient force and violence upon the head of Cox to produce death, and his death followed as an effect of the blow. From these facts, it is a presumption of law that the death of the deceased was designed by the slayer.

The proposed instruction contained some expressions of abstract law, but taken as a whole it was not applicable to the facts in evidence in this ease, and was therefore properly refused by the court below. See, also, on the subject of criminal intent, Lacefield v. State, ante.

(c) The eighth instruction follows :

“ The jury are instructed that the law excuses no one on account of drunkenness, and if they believe from the testimony that Cox was intoxicated or under the influence of whisky at the time of the difficulty between him and the defendant, it was no protection to him; and in the determination of this case, they will consider his actions and conduct towards defendant in the same light as though he had been duly sober, and not. under the influence of whisky.”

It is true as a general proposition that drunkenness is no excuse for crime; (See Woods v. State, MS.); and, no doubt, a man assailed by a person intoxicated, would have the same right to defend himself as he would if the assailant were sober; but provoking words uttered by a mam drunk would ordinarily be regarded as less excuse for a violent assault than if spoken by a sober man.

Where the question is, whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. 3 Greenleaf Evidence, sec. 6.

We think it was proper for the jury to take into consideration the fact that Cox was intoxicated at the time plaintiff in error struck him with a stick, and this they would have been denied the right to do, for any purpose, had the eighth instruction been given in the terms proposed.

(d) The ninth instruction follows :

‘•The jury are instructed that if they find from the testimony that, on the day the deceased was killed by defendant, the defendant was acting as a special police or deputy marshal under the appointment of the marshal of the town of Searcy, and, at the time of the killing, was acting as such special policeman or deputy marshal under said appointment; and they find that at the time deceased was killed he was acting in a disorderly way, or otherwise violating the laws and ordinances of said town, then they are instructed that defendant had a right, as such special policeman or deputy marshal, to use sufficient means to quell or suppress such unlawful conduct, and defendant had a right to use a club, or stick, or billet, if necessary, for the suppression of such unlawful conduct.

“And you are further instructed that if you find from the evidence that the deceased, at the time of the killing, was violating any of the laws and ordinances of said town, and the defendant, when he struck the fatal blow, had no intention to kill said deceased, but only intended to carry out his duty as such policeman or special deputy marshal, and in the discharge of such duty used no more force than a reasonable and prudent man would have used under the circumstances, they will acquit the defendant.”

This instruction, on the facts in evidence, was not warranted by statute or common law.

“Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony.” Gantt’s Dig., sec. 1279.

“An attempt to commit murder, rape, robbery, burglary, or any other aggravated felony, although not herein specially named, upon either the person or property of any person, shall be justification of homicide.” Ib., sec. 1281.

. “Every man’s house or place of residence shall be deemed and adjudged in law his-castle.” Ib., sec. 1282.

“A manifest attempt and endeavor, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling therein, shall be a justification of homicide.” Ib., sec. 1283.

“If an officer, in the execution of his office in a criminal case having legal process, be resisted and assaulted, he shall be justifiable in killing the assailant.” Ib., sec. 1286. See also Ib., sec. 1287-8.

There is no evidence in this case that at the time plaintiff in error struck Cox the fatal blow he was attempting to commit a felony, or attempting in a violent, riotous, or tumultuous manner to enter any habitation, etc.; or that plaintiff in error was executing his office in a criminal ease, having legal process, and that he was resisted and assaulted by Cox.

If Cox was violating the laws and ordinances of the town of Searcy by being intoxicated in a saloon, making a noise, cursing some boys, etc., the plaintiff in error, acting as a police officer, might have arrested him and taken him before a police judge, to be tried and punished according to the laws and ordinances of the town; but he had no right to strike him -with a “club, stick or billet,” much less to give him a blow calculated to produce death, and which did in fact kill him.

It is considered better to allow one guilty only of a misdemeanor, to escape altogether than to take his life. Reneau v. State (recent decision of the supreme court of Tennessee, No. 7, Vol. 2, Memphis Law Journal). See, also, 2 Bishop Cr. L., sec. 662.

(e) It is sufficient to say of the tenth instruction, that it correctly expressed a proposition of abstract law, but was not applicable to the case made by the evidence. The court is not obliged to give in charge to the jury any and all principles of law that counsel may think proper to move, but may well refuse any that may not be applicable to the facts in evidence.

IV. After the close of the argument, the court instructed the jury, of its own motion, that: “If the jury believe that the defendant used a stick, or bludgeon, which was necessarily deadly in its character, the law presumes an intent to do the necessary result of his act, and in that case, it would not be involuntary manslaughter.”

The bill of exceptions states that this instruction was not objected to by the defendant or his counsel, but it is made ground of the motion for a new trial, that the court gave any instruction after the close of the argument.

The constitution provides that: “ Judges shall not charge juries with regard to matters of fact, but shall declare the law,” etc. Sec. 23, Art. VII.

Judges may not now, as under the former practice, in charging juries, sum up the evidence, and tell them what facts are proven and what are not, and leave them to find such facts only as the court may deem disputed or doubtful, but it is the province of the court to declare the law applicable to the case, and the court is not obliged to be silent after the close of the argument.

It might be important in some cases, either to the state or the defendant, for the court to instruct the jury on some matters of law after the argument.

Y. Counsel for plaintiff in error submits that, upon the evidence, he could not have been guilty of a higher grade of homicide than involuntary manslaughter.

If the killing be in the commission of an unlawful act, without malice, and without the meaus calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it is involuntary manslaughter. Gantt’s Dig., sec. 1266.

In this case Cox was purposely and violently struck by plaintiff in error with a stick calculated to produce death, and killed by the blow. There was no misadventure in the case.

Doubtless the jury found him guilty of voluntary manslaughter, and not murder, because they believed, from the evidence, that the killing was without malice aforethought, and upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible.

Upon the whole record, we find no substantial error to "the prejudice of plaintiff in error, and affirm the judgment.


text:
    Butler vs. The State.
    1. Indictment : For “ Felony."

    To accuse one of the crime of felony is a bad Code beginning to an indictment. Felony is the name of no particular crime, but designates a class of crimes.
    The words “no considerable provocation appearing,” are proper in an indictment for an aggravated assault, but are unnecessary and inappropriate in an indictment for an assault with intent to kill, and may be treated as surplussage.
    2. "Witness: Sis prejudice may be shown, but not the reasons for it.

    A witness for the state may be shown to be prejudiced, or to have ill-feeling against the accused, but the facts and circumstances causing such prejudice or ill-feeling, can not be stated in detail by the witness.
    3. Same : Contradiction of. Collateral matter. Test of.

    "When a witness is cross-examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question.
    The test of whether a fact inquired of in cross-examination is collateral, is this: "Would the cross-examiner be entitled to prove it as part of his case, tending to establish his plea. This limitation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief.
    4. Admissions : State may prove, but not, defendant.

    T) e state may prove any voluntary admissions made by the defendant, but the defendant has no right to prove admissions made by himself to another person at a different time.
    APPEAL from Conway Circuit Court.
    Plon.--, Circuit Judge.

      Fletcher, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

At the September term of the circuit court of Conway county, 1879, Ephraim Butler was indicted as follows:

“The grand jury, etc., etc., accuse Ephraim Butler of the crime of felony, committed as follows, viz.: The said Ephraim Butler, on - the first day of August, 1879, in the county, etc., aforesaid, in and upon one Green Hill, then and there’ being, with a certain knife, unlawfully, feloniously, willfully and of his malice aforethought, did make an assault, with intent him, the said Green Hill, then and there unlawfully, feloniously, willfully, and of his malice aforethought, to kill and murder, then and there no considerable provocation occurring, against the peace,” etc.

'He was tried on the plea of not guilty, convicted, and his punishment fixed by the jury at imprisonment for three years in the penitentiary; he filed motions for a new trial and in arrest of judgment, which were overruled. He took a bill of exceptions, and, on final judgment, prayed an appeal, which was allowed by one of the judges of this court.

I. The indictment has a bad Code beginning. Felony is the name of no particular crime, but designates a class of crimes punishable in England by forfeiture of lands and goods to the crown, and, by our statute, with death, or imprisonment in the penitentiary. Gantt’s Digest, section 1225.

In the body of tbe indictment, however, appellant is distinctly and specifically charged with the crime of an assault with intent to commit mui’der. The words, “no considerable provocation appearing,” are proper in an indictment for an aggravated assault, under sec. 1298, of Gantt’s Digest, but are unnecessary and inappropriate in an indictment for an assault with intent to commit murder, and may be treated as surplussage.

The indictment was good, in substance. See Lacefield v. State, ante.

II. There is the usual ground in the motion for a new trial, that the verdict was not warranted by the evidence.

Green Hill, the person assaulted, was the principal witness for the state. It appears from his testimony that he was staying at Dan Tucker’s house, in Conway county, and making a crop on Levin Hill’s farm, on which the house was situated. About the first of August, 1879, he started from the house, on horse, to his field to get a watermelon for Mrs. Levin Hill, and met appellant on the turn-row, walking, and said to him, “You have been talking about me;” and he replied, “Yes, G — dd—mn you* I have, and now I am ready to settle it; G — d d — mn you, I will whip you, or you will whip me.” Appellant then took hold of the bridle of the horse df witness, and thereupon he demounted; appellant struck at witness, and witness knocked him down; he arose and struck at witness again, and again witness knocked him down, and held him down until he agreed to quit; whereupon, witness let appellant up, and went to his horse, which, in the meantime, had walked off some twenty yards — appellant and witness walking together, and talking in a friendly manner. Witness went up on the left, and appellant on the right side of the horse. While witness was standing there, with his right side to the horse, his right arm resting on the saddle, 'and his face turned from the horse, appellant ran around the heels of the horse, came up in front of witness and stabbed him in the right breast with his left hand. That when he was struck he ran three steps and fell; appellant then jumped on him, and went to cutting him — cut him, in all, three times in the breast, twice in the head, and once in each hand. Witness then arose, threw off appellant, and. ran 150 yards to Ban Tucker’s house, appellant running after him. When he reached the house, he ran up on the porch, and said to appellant, “Mr. Butler, if you intend to kill me, I can not run any further.” Witness then picked up a drawing-knife; Christiana Tucker then commenced talking to appellant, and he walked away, and witness sat or fell down in a chair.

Appellant, at the time he was stabbing- witness, first held the knife in his left hand, witness caught his left hand, and then he changed the knife to his right hand.

Christiana Tucker testified that she knew nothing of the fight between appellant and Green Hill until the latter ran up on the porch. Appellant had a knife in his hand. Hill’s shirt was bloody. Appellant’s shirt and his knife were bloody. Hill picked up a drawing-knife on the porch, and said he could not run any farther, and told appellant not to come any further. Appellant picked up a piece of a rail, and she told them riot to fight any more. Hill staggered or lell into a chair, etc.

Much more testimony was introduced, but nothing to contradict the leading facts, above stated.

There was an attempt, on the part of the defense, to prove that Hill went into the field armed, to hunt and attack appellant.

Hill testified that when he went to the field he had a pistol in his pocket. That in the first or fist scuffle, while he was holding appellant down, the pistol dropped from his breast-pocket, and when appellant saw it, he said to witness, “You brought that pistol here to shoot me with.” Witness replied, “I did not; it is an old and no count pistol, and will not shoot, and is not loaded,” and then offered the pistol lor appellant’s inspection, and he refused to examine it.

There was no want of evidence to sustain the verdict. The conduct of appellant, at the time he stabbed Hill, by the horse, indicates deliberation and malice.

If the wounds inflicted upon Hill with the knife, had caused his death, and appellant had been indicted for murder, we can not undertake to say, that a jury might not,, upon the evidence disclosed in the bill of exceptions in this case, have found him guilty of murder in the second degree.

Ur. Gordon, who attended Hill, testified that he was suffering from divers cuts and stabs, the most serious of which was one in the right breast, which was about three inches-deep — the knife having penetrated the lung.

II. .On cross-examination of Christiana Tucker, witness for the state, appellant asked her if Green Hill had not, a few days before the difficulty, detailed to her scandalous matter as coming from appellant, impugning her character and virtue.

The court sustained an objection to the question, deciding that the witness could not detail the facts and circumstances of such scandalous matter, but that she might be asked if she had any bias or ill-feeling towards appellant.

The bill of exception states that the object of the question was to show bias and ill-feeling on the part of the witness, and also ill-feeling and malice on the part of Hill against appellant.

It may be shown by proper questions that a witness for the state is prejudiced, or fias ill-feeling against the accused; but the facts and circumstances causing such prejudice or ill-feeling can not be stated in detail by the witness. Cornelius v. The State, 12 Ark., 800.

If Hill communicated to the witness scandalous matter about her as coming from appellant, there was no offer to prove that the fact was communicated to appellant before the difficulty; it was no part of the res gestae, and could throw no favorable light upon the conduct of appellant at the time he stabbed Hill.

III. Christiana Tucker testified that appellant was'in the employment of, and lived with her husband before and to the time of the difficulty. That she afterwards found the bloody shirt, worn by him, rolled up and stuck under the corner of the house. That she took it out and asked her husband, Han Tucker, if she should wash it; and he instructed her to wash it, and she did wash the shirt and sent it to appellant. This statement about washing the shirt she made on cross-examination by appellant.

•Appellant offered to prove by his witness, Han Tucker, “that he did not request her to wash the blood stains from off the back and front of the shirt worn by appellant -on the day of the conflict.” "

The bill of exceptions states that this testimony was offered by appellant “ to show the animus of the state’s witness (Mrs. Tucker) towards him; and also by way of impeachment, showing the statement made by her as to the request or order for washing said blood stains w7as wholly false.”

The court ruled that the evidence so offered was inadmissible.

We can not see how it was at all material whether the witness washed the shirt of her own accord or by direction of her husband.

“ In order to avoid an interminable multiplication of issues, it is a settled rule of practice that -when a witness is cross-examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party puttiug the question. The test of whether a fact inquired of in cross-examination is collateral is this— would the cross-examining party be entitled to prove it as part of his case, tending to establish his plea. This limitation, however, only applies to answers on cross'-examination. It does not affect answers to the examination in chief.” 1 Wharton Evidence, sec. 559.

IV. Levin Hill, witness for the state, having testified as to admissions made to him by appellant, after he had arrested him on the evening of the difficulty, appellant offered to prove that at 10 o’clock the next day, the same statement in every particular was voluntarily made by him to A. D. Ellis, the constable, who had him in custody; and the court, on the objection of the state, ruled the statement to Ellis inadmissible.

The state had the right to prove any voluntary admissions made by appellant to Levin Hill, but appellant had no right to prove admissions made by himself to another person at a different time.

V. The court, on behalf of the state, gave to the jury eleven instructions; appellant specifically objecting to the sixth and seventh.

The court charged the jury, in the series of instructions given for the state, that to -warrant a conviction for an assault with intent to murder, the evidence must be such that if death had ensued it would have been murder in the first or second degree ; defined murder, express and implied malice, justifiable homicide, etc., and said to the jury that if they entertained a reasonable doubt of the defendant’s guilt of the higher offense charged in the indictment, they might find him guilty of an aggravated or a simple assault, and defined these lesser offenses.

The sixth instruction may be subject to verbal criticism, but is in substance unobjectionable.

The seventh, that the use of a deadly weapon may be considered by the jury as evidence tending to establish the intent to kill,” was not erroneous when considered in connection with the facts and circumstances under which appellant used his knife in stabbing Hill, as disclosed by the evidence.

The appellant asked fourteen instructions, some of which the court gave, and refused others.

Without incumbering this opinion by copying the instructions refused, it is deemed sufficient to say that some of them were inapplicable to the case made by the evidence, and others contained objectionable expressions.

Upon the whole, the law of the case was submitted fairly to the jury by the court, and the evidence warranted the verdict.

Affirmed.


author: Harrison, J.

text:
    Volmer vs. The State.
    1. Criminal Law : Repeal of penal act; effect of, on offenses before repeal. .
    When a criminal or penal statute is repealed, offenses against it committed before the repeal, are, by our statute, still punishable as if it were still in force, unless otherwise specially provided in the repealing statute.
    2. Indictments : May be joint against several.

    Several may be jointly indicted for offenses arising wholly out of the same joint act or omission.

      APPEAL from Lonoke Circuit Court.
    Hon. J. ~W. Martin, Circuit Judge.

      Hallum, for appellant.

      Henderson, Attorney General, contra.

   Harrison, J.

L. Volmer was indicted, with Abe Volmer, in the Lonoke circuit court, at the March term, 1879, for following the occupation of a vender of ardent spirits without having paid the special taxes required of them.

The indictment contained two counts. In the first, they were charged with selling by quantities of and greater than a quart, or by wholesale; and in the second, with selling in less quantities than a quart, or by retail.

The offense was alleged, in both counts, to have been committed on the first day of Cctober, 1878.

The defendants demurred to the indictment; their demurrer was overruled, and L. Volmer, being separately tried, was found guilty upon the first count, and his fine assessed by the.jury at $200.

He moved for a new trial, which was refused, and he excepted to the judgment rendered upon the verdict, and appealed to this court.

The grounds of the demurrer were: That since the finding of the indictment, the provisions of the statute under which it was found had been repealed; that two offenses were charged therein ; and that the offenses charged were such as could not have been committed jointly.

The appellant insists that the legislature having, by the act of March 8, 1879, entitled, “An act to regulate the sale of vinous, ardent, malt and fermented liquors,” and which went into force twenty days after its passage, repealed the provisions of the revenue act of March 28, 1873, under which he was indicted, the indictment had become void, and there could be no prosecution for the offense charged in it.

The answer to this objection is found in sec. 6623, Gantt’s Digest, which is as follows : “ When any criminal or penal statute shall be repealed, all offenses committed or forfeitures accrued under it while it was in force, shall be punished or enforced, as if it were in force, notwithstanding such repeal, unless otherwise expressly provided in the repealing statute.” McCuen v. The State, 19 Ark., 634.

Though, until the act of March 8, 1879, persons selling-liquor by retail were required to pay like taxes as those selling by wholesale, the act of May 30, 1874, regulating the licensing of drinking saloons and dram-shops, made it a misdemeanor, and to which a different punishment was affixed, to- keep a drinking saloon or dram-shop, or, in other words, to follow the occupation of a retail liquor dealer, Without first procuring a license from the county court; and by necessary implication repealed so much of the act of 1873 as made it an offense for following the occupation of a retail liquor dealer to fail to pay the taxes. Although the act of May 30, 1874, required the taxes to be paid before the license was issued, yet if the license had been issued without the payment of the taxes, the holder of the license could not have been indicted for having failed to pay them, as the offense consisted in the keeping of the saloon or dram-shop without license, and not in failing- to pay the taxes. The offense created by statute would have been committed though the taxes had been paid, if a license had not been procured. The second count, therefore, charged no offense, and but one was charged in the indictment.

The rule is well settled that several may be jointly indicted for offenses arising- wholly out of the same joint act, oi’ omission ; and it is the common practice to indict jointly for the selling of intoxicating liquor without license, the unlicensed keeping of a ferry, and offenses of like character. 1 Bish. Crim. Proceed., 469 ; 1 Bish. Crim,. Law, 957.

The grounds of the motion for a new trial were: That the verdict was contrary to the evidence; and that the defendant had discovered new evidence since the trial.

The evidence tended to prove that L. Volmer and his brother, Abe Volmer, were doing business together as merchants, on the Steele place, in Lonoke county, in the fall of the year 1878, and that they were selling whisky in quantities greater than a quart, without having paid the special taxes required of them ; and if true, and it was the province of the jury to determine the weight to be given to it, it was sufficient to warrant the verdict.

The defendant, in his affidavit in support of his motion for a new trial, swoi’e that he had since the trial, learned that he could prove by Willis Rayford that Abe Volmer did not purchase the store of Rogers McRae, on the Steele place, until the last of October, 1878. The selling was proven to have been about the first of that month.

The court very properly refused to grant a new trial to admit such evidence.

It was not shown or alleged that the fact he wished to establish by this witness, which he must have known, could not have been proven by other witnesses upon the trial; nor was it even alleged to be true; but, on the contrary, it was proven by his own witnesses that it was about the first of October the store was purchased.

The judgment is affirmed.


text:
    Neal vs. Burrows.
    1. Statutes: Mandatory and directory distinguished.

    Those directions in a statute which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act be performed, but not at the time, or in the precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purposes of the statute; unless negative words are employed in the statute which expressly, or by necessary implication, forbid the doing of the act at any other time, or in any other manner, than as directed.
    Sec. 42 of the act entitled, 11 An act to maintain a system of free common schools in the state of Arkansas,” approved December 7, 1875, is as to the time designated for the appointment of a county examiner, directory, and not mandatory.
    APPEAL from Grawford Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.

      Neal, fro se.

   Harrison, J.

This was an action by Berkley Neal against John J. Burrows, for the office of county examiner, of which he claimed he had been deprived by the usurpation of the defendant.

The facts were these: The plaintiff was appointed county examiner by the county court, at the October term, 1866, the next term after the general election in that year, and he was commissioned, took the oath, and eutered upon the duties of the office.

At the October term, 1868, the next term after the last preceding general election, the county court appointed S. R. Cox, but he dying before he received his commission and qualified, the county court, at the January term, 1869, appointed the defendant, and he had been commissioned; and had qualified by taking the oath, and was then in possession of the office.

The plaintiff had continued in the office until the defendant took it.

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action; the demurrer wras sustained and judgment was rendered for him. The plaintiff appealed.

Sec. 42 of the act entitled, <cAn act to maintain a system of free common schools for the state of Arkansas,” approved December 7, 1875, is as follows :

“Sec. 42. That after the passage of this act, the county court of each county of this state shall, as soon as practicable, appoint in each county in this state a county examiner of high moral character and scholastic attainments, who shall hold his office until his successor is commissioned and qualified, as hereinafter provided; said county shall thereafter, at the first session of the court after each general election, appoint said examiner; and it shall be the duty of the county clerk to issue a commission to the person so appointed, aud to certify his name and post office to the state superintendent of public instruction.”

The appellant contends that the county court has no authority to make an appointment, at any other than at the first session, or term, alter the general election ; and that he was therefore entitled, inasmuch as Cox had not qualified, to hold over until an appointment should be made at such a session or term.

The decision of this case depends upon whether the provision in the statute, as to the time when the county court is to make the appointment of county examiner, is mandatory or directory.

Judge Cooley gives tbe following as a rule for determining whether statutes are mandatory or directory: “ Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and b}7 a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial, purpose of the statute. But this rule presupposes that no negative words are employed in the statute which expressly or by necessary implication, forbid the doing of the act at any other time or in any other manner than as directed.” Cooley’s Const, Lim., 93. The rule, as thus laid down, was approved in Edwards et al. v. Hall et al., 30 Ark., 31, as founded in reason and upon authority; and we again express our approval of it.

It follows, therefore, as a clear conclusion, that the provision of the statute referred to, so far as it relates to the terms of the court at which the appointment was directed to be made, is directory only; and that the appointment of the appellant was valid.

The judgment is affirmed.


author: Eakin, J.

text:
    St. L., I. M. & S. Ry. Co. vs. Yocum.
    1. Suji.mosts: Judgment by default, on good service and bad return of.

    Where a summons has been, in fact, duly served, the defendant must take notice of it, unless all defense be waived. He can not shelter himself under a defective return, from the consequences of his default, if the true facts be at any time brought properly upon the record; which may be done by amendment, even after an appeal.

      2. Paupers: Suits by, without attorney’s certificate of cause of action.

    It is too late, after judgment, to object that a complaint informa pawperis was not accompanied with the certificate of an attorney, that, in his opinion, the plaintiff had cause of action. It affects the cost alone; not the merits of the action, nor jurisdiction of the court.
    3. Bailroads : Negligence causing death of child. Who may sue for.

    Por damages for the death of a minor, killed by the running of a railroad train, the father, if living, must sue. If the mother sues she must show affirmatively and positively that the father is dead. The allegation that she is a widow, is not sufficient.
    APPEAL from Clay Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Winfield, for appellant.

      Crawford (of St. Louis), contra.

   Eakin, J.

On the sixth of February, 1878, Catherine Yocum sued the appellant railroad company in Clay county, under the act of February 3, 1875, to recover damages for the death of her son. She states: That she is a citizen of the state of Missouri, that she is a widow, and that she was the mother of Morris Collins, who was her sou by a former marriage,” and who, on the fourteenth of February, 1877, was under the age of twenty years, and unmarried; that, on said last named date, he “ was in the employ of the defendant as fireman of its passenger trains,” and whilst discharging his duties as such, he was, without any carelessness or negligence on his part contributing thereto, but solely through the defective and misplaced track of said defendant, thrown under and instantly killed by the overturning of the car or cab of defendant, while said train was running south at a point” in the county of Pulaski.

Upon this complaint a summons was issued, which was returned by the sheriff', indorsed as follows:

There was judgment by default for the sum of $5,000 as found by a jury impanneled to assess damages. The defendant prayed an appeal which was allowed by the clerk of this court.

Afterwards, on the twentieth of February, 1879, the circuit court of Clay county allowed the sheriff to make an amended return, showing that the copy of the summons had been delivered to Harry Clemmons, at the depot house of defendant, in the town of Corning, county of Clay, and that said Clemmons was there, the depot and managing agent of said company, and that “ the president or other chief officer of said company are absent from Clay county.”

This amendment is brought up by certiorari.

It has been the practice of this court to allow amendments of returns, to be made by leave of the circuit courts in accordance with the facts, even after an appeal. The act of February 3, 1875, which gives this action, prescribes that service shall be by copy of summons “ on any agent of the railroad company sued, at any depot house in the county where the suit is brought.” The first return fails to show with sufficient certainty that the copy of the summons was delivered at the depot house. This is cured by the amended return. Where a summons has been in fact duly served, it is the duty of the defendant to take notice of it, unless all defense be waived. lie can not shelter himself under a defective return from the consequences of his default, if the true facts be at any time brought properly upon the record. He could not, in the action, question the truth of the return in either case, and his remedy for a false return would be as effective in the case of the amended as the original return.

The complainant sued as a non-resident in forma pauperis, and failed to append to her petition for that purpose, the certificate of an attorney of the court, of his opinion that she had cause of action. This, if urged in the court below, might have been good ground in abatement or for a motion to dismiss the suit, on failure to file a bond for costs, but can not affect the judgment rendered upon the complaint by default. The question affects costs alone, and not the merits of the action nor the jurisdiction of the court.

But more serious objections are urged against the complaint. It is contended that complainant shows no cause of action in herself.

Section 3, of the act, provides: “Where the person killed or wounded be a minor, the father, if living — if not, then the mother; if neither be living, then the guardian— may sue for and recover such damages as the court or jury trying the case may assess.” This is a change of the common law which, as was announced by this court in the case of L. R. and Fort Smith R. R. Co. v. Barker and Wife, gave no right of action for the death of a human being. The right of action is not given by the first section of the act, which makes the railroad liable for “ all damages to persons and property;” which was only a declaration of the common law, and would not of itself include damages for death. The remedy is novel and sui generis, dictated by humanity and adapted to modern social necessities. The benefits of the section can only be claimed by those who bring themselves within its provisions. In the case of a minor killed by the running of a train, the father, if living must sue. If the mother sues, she must ■show affirmatively and positively that the father is dead. Nothing short of that will answer. The complainant in this case shows that she is the mother of the minor who was killed; that his father was her former husband; that ■she was, at the time of bringing the action, a widow. It may be inferred that she married a man named Yocum, after having been the wife of the father of deceased, and that Yocum had died, leaving her a widow; but under our laws concerning divorce, it can not be logically inferred from a second marriage that the first husband is dead, or has lost his rights over the childi’en of the maxTiage. Nor, if it could, would it follow that an allegation of widowhood, at the time of bringing the action, would be equivalent to an allegation of the death of the youth’s father almost a year before, at the time of the accident. It xxxiglxt xvell be, from all that appears, that the father was then living, and had afterwards died, and the mother had married Yocum, Avho had died also before suit, In such case, no light of action would vest in,the mother.

The remedy is purely statutory, and the right to it must be clearly shown. The complaint in this respect is fatally -defective, and the judgment upon it exToneous.

It is further urged that no negligence is charged on the part of the company. Negligence is an essential elenxent of liability for damages ixx all cases xvhex’e corpoi’ations or individuals, are pursuing a lawful business. Even where negligence may be presumed from acts or circumstances, and when the onus of exoneration may be on the defendant, it must, nevertheless, be considered in issue; and, as has been held in Alabama, must be charged in the complaint. The laws for the protection of stock or persons can not impose an absolute liability upon railroads, regardless of all care and caution. It would be to destroy their business and infringe their charter rights. In the case of injuries by death of persons, it has ever been held, under the laws-giving the new remedies, that it is essential to aver negligence.

The case of the Little Rock and Fort Smith Railway Company v. Barker and wife (supra) proceeded, and wa¿ argued by counsei on both sides, upon the just ,aud true grounds, that negligence was an essential element of liability, without which there could be no cause of action. To say that the death was caused solely by accident “through the defective and misplaced track of defendant,” is certainly a very vague and argumentative assertion of'an important, fact; that is to say, of negligence; inasmuch as that might consist with the utmost human caution on the part of the officers and agents of the-company. Such an allegation might, and would doubtless, be cured by verdict, but whether or not by default, it is not necessary now to determine.

Eor the errors above pointed out, let the judgment be reversed, and the cause be remanded, for further proceedings in the circuit court, where pleadings may be amended and time given to answer, under the sound discretion of' the court.


text:
    Babcock vs. The City of Helena.
    1. Municipal Corporations : JAffeci of act of the ninth of April, 1869,
    Bee. 9 of the act of April 9, 1869, for the incorporation, etc., of cities and towns (sec. 3202, Gantt’s Dig.), clearly indicates an intention of the legislative body to produce a strict conformity in the organization and government of all the cities and towns in the slate, each after its class; but did not mean to take away any special powers theretofore granted them by special acts, and not affecting- their organization or government.
    • 2. Statutes : Repeal of, by implication.

    Bepeal of statutes by implication must be necessary, or, at least, arise from a clear and unmistakable intention.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Kimball, for appellant.

      Brown, contra.

   Eakin, J.

This suit was begun by appellant, before a justice of the peace, upon a coupon for $20 of a $500 bond, issued by the city of Helena, in favor of the Arkansas Central Railway company, on the first of October, 1872.

Upon trial, upon appeal to the circuit court, it was agreed that, in the year 1870, the city, by ordinance, submitted the question to a vote of the people, and the vote was in favor of a subscription to the stock of said railway company. The bond in question was one of those issued in conformity with said vote; and the coupon sued upon came into the hands of complainant, before maturity, for value, and in due course of trade; upon which the judge, against the objections of complainant, declared the law to be : that, at said date, the city had no authority to subscribe stock to said road, or to issue said bouds; and that they and the coupons were void.

There was judgment for the defendant, from which the plaintiff appealed. The evidence and instructions are shown by bill of exceptions.

The city of Helena was chartered by act of December 5, 1856. Amongst other powers granted to the city council, was that of levying such taxes as might “be authorized by a majority of the voters of said city, qualified, etc., voting at special elections, held for that purpose, for the payment, of stock subscribed on behalf of said city, by said council, or a majority thereof, in any railroad,” etc.

On the sixth of February, 1867, the legislature, in an act “ to aid in the construction of the Iron Mountain and Helena railroad, and for other purposes,” provided. “ that if the city of Helena has, or may hereafter vote to take, stock in the Iron Mountain and Helena railroad, or any other road beginning or terminating at said, city, the mayor, by the consent of the council, may issue the coupon bonds of the city.”

The constitution of 1868, Art. V, see. 49, made it obligatory upon the general assembly to “ provide for the organization of cities and incorporated villages by general laws,” and “to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.” The same constitution continued in force all laws consistent with its provisions. It is obvious that all existing corporations, with all their powers, were carried over and continued until the general assembly might choose to restrict their powers. This clause was directory. It was not self-executing, and no restrictions were imposed by it whatever. The general assembly was directed hereafter to impose such as, in its judgment, might be proper. ¥e must look to subsequent legislation for such restrictions, and their extent.

The first general assembly which sat under this constitution, on the twenty-third day of July, 1868, passed a prospective act for the incorporation of cities and towns, which did not attempt to interfere with any powers of existing corporations — merely extending to them the privilege of surrendering their charters, and accepting corporate character, and authority, under said general act. The city of Helena did not do that, and still retained its powers unimpaired.

Another general act for the incorporation, classification, and government of cities and towns, was passed on the ninth of April, 1869. This act took into its scope and purview all corporations which were in existence when said constitution was adopted, classing them, and continuing their corporate existence under the new act, with their old territorial limits (Gantt’s Digest, sec. 3301), and providing further {sec. 3203) that all acts now in force for the organization or government of any such municipal government or coi’poration, shall be and they are hereby repealed. Provided that such repeal shall not destroy or bar any right of property, action or prosecution which may be vested or exist at the time this act takes effect.” It is to be observed that, then, no right of property, action, or prosecution, had vested, either in the said railway, or said city. The ordinance for submitting to the vote of the people, the question of subscribing for stock in said railway was not passed until the next year.

The original charter of Helena was doubtless repealed by said act of 1869, and she became classed and continued her organization under said last named act, which afforded the measure' of her general powers, and the restrictions upon them. Our attention lias not been called to, nor have we observed, any clause in the last named general act which expressly limits, or denies to pre-existing corporations, special powers theretofore conferred by special acts. If such be the effect of the act of 18G9, it must result from its general intent. Its language does not repeal the act of February 6, 1867; for in no proper sense can the latter be considered an act for either the organization or the government of the city of Helena. It had been already organized, and its organization was in no wise changed. Nor is it easily conceivable how the power to subscribe stock affected the government of the corporation. This clause clearly indicates an intention oí" the legislative body to produce a strict uniformity in the organization and government of all the cities and towns in the state, each after its class, but there is no warrant for going further, and presuming that the legislature meant to take away any special powers, theretofore granted them by special acts, and not affecting their organization or government.

The city of Helena is a very important port, or landing, upon the great river which connects our state with the commerce of the world. The citizens of. a very large area of the state are interested in having ready access to that point, for themselves, and their products. Previous legislation had seemed to recognize the advantage to the state of a concentration of railroads there; and had indicated the policy of allowing the city to encourage them by subscriptions of stock. We can not suppose that these things were unknown to, or overlooked by, the general assembly of 1869. Its cautious language in the general act would rather indicate an intention to save the cities and towns all special powers, not interfering with that uniformity of organization and government, which was the true aim of the act. The acts consist. Repeals, by implication, must be necessary; or, at least, arise from a clear and unmistakable intention. Had the legislature of 1869 intended to bring the organization and government of Helena in harmony with that of other cities and towns, and, at the same time, save to her all special powers, granted by special acts, for the public good, it could not well have used apter language, without indeed expressly declaring that the act of 1867 should remain in force. Although such declarations are usual, to .remove all doubt, they are not necessary.

The court erred in declaring the coupon invalid. Reverse the judgment, and remand, for a new trial.