author: Turner, J.:

text:
    Winkler vs. The State.
    1. Arrests: Authority to make, etc,

    A constable is a peace officer, and as such has authority to arrest offenders against the law; but he is not authorized to execute a warrant of arrest, •or other process, directed to the sheriff, unless deputized in the manner provided by law.
    2. Evidence: Admissibility.

    Where a killing occurred in an attempt to arrest a party in company with the deceased, and there are circumstances in the case tending to show improper motives in the arresting party, evidence of bad feeling between them and the party whose arrest is sought, is admissible; but statements that the party sought to be arrested had kept out of the way for fear of being killed by one of the arresting party, drawn principally from the statement of the former, are hearsay and inadmissible.
    3. Bill op Exceptions.
    If statements and papers exhibited by counsel to the jury in the argument of a cause are objected to, they must be brought into the record by bill of exceptions; if they are incorporated in the motion for new trial and not in the bill of exceptions, the objection will not be considered.

      4. Manslaughter: Instruction.

    An instruction to the jury upon a trial for manslaughter, as to the assessment of the punishment in case they should' find the defendant guilty of manslaughter, should explain the two grades of that crime.

      APPEAL from Washington Circuit Court.
    Pión. J. M. Pittman, Circuit Judge.

      Gregg, for appellant.

      Henderson, Attorney General, contra.

   Turner, J.:

At the October Term, 1876, of the Washington Circuit Court, William J. Gilliland, Ephraim Ramey, William Perry, Louis Dansit, Enos Mills and John Winkler were indicted for the murder of William Jones.

At the October Term, 1877, of the Circuit Court, the State appeared by her attorney, and also the defendants in person and’ by attorney, and elected to sever and try the defendant John Winkler first, who was thereupon arraigned and tried upon the plea of not guilty, and found guilty of manslaughter, and his punishment assessed by the jury at two years in the State prison.

On the 6th day of November, at the same term of the court, the defendant filed his motion for a new trial, and on the 20th day of November following his motion in arrest of judgment. Both motions were overruled and the defendant took an appeal to this court.

The bill of exceptions sets forth fully the evidence in the cause, and the instructions asked for by the defendant and those given by the court.

The motion for a new trial assigns the following causes:

First — Because the verdict is contrary to the evidence.

Second — Because the verdict is against the law and evidence.

Third — Because the court erred in admitting illegal evidence over the objections of the defendant.

Fourth — Because the court erred in excluding legal evidence offered by the defendant.

Fifth — Because the court erred in refusing to give the first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteénth, seventeenth, and eighteenth instructions asked for by the defendant, and overruling and refusing to give said several instructions.

Sixth — Because the court erred in giving the jury as law in this cause the tenth, eleventh, fourteenth, eighteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-ninth, thirty-second, and thirty-sixth instructions by the court declared and given to the j ury. ■

Seventh — Because the jury found contrary to the instructions of the court.

Eighth — Because the jury were unduly influenced by acts and declarations of the prosecuting attorney, ,E. J. Stirman, Esq., in this, that after the close of the evidence in the cause, and while he was making an argument on the part of the State, he was allowed to, and did present to the jury a newspaper, in which the Governor’s proclamation, offering a reward of $500 for the arrest of Newton Jones for murder, was published, and declared that its first publication was after the killing of William Jones and defendant could not have known of the proclamation at the time, and held up the paper and announced its date when no such fact had been given in evidence, and in his closing argument and after defendant’s counsel had closed, announced as a fact to the jury that he could prove that the Governor had offered a reward for the arrest of the defendant, and hence he was as bad as Newton Jones, and he in his .said speech took up the instructions prepared by the court and declared that every one of them was objected to by the defendant, and declared to the jury that the court had refused to give the defendant’s instructions, and read to the jury as he said from the head of the instructions “All objected to by defendant,’! and said under the instructions given the defendant could not be acquitted, and further asserted, he was advised the defendant had witnesses here to prove he was not at the killing, if he had dismissed Mills, and argued that he had proved that Newton Jones kept out of the way of the officers only because he was afraid he would be waylaid and assassinated by defendant Gilliland, with other assertions unauthorized by law and evidence, and by the asserting of such facts to the jury when no such witnesses had been summoned, when a number of the instructions were those presented by the defendant and modified by the court, when no such reward had ever been offered, (for the defendant could not answer said assertions by proof or argument) he did create an undue prejudice on the part of the jury against this defendant and his cause, and as defendant believes, unjustly procured his conviction- for manslaughter.

Ninth — Because the court erred in refusing to. allow the defendant to read a legal definition, and to read any law whatever.

The evidence as set forth in the bill of exceptions shows that an indictment was pending in the Washington Circuit Court against one Newton Jones for the murder of Bud Gilliland some time in the year 1875. That Jones kept out of the way for some time after the commission of the • alleged offense, btit returned into the neighborhood a short time before the killing of William ■Jones. That soon after it was known that Newton Jones had returned to the neighborhood, a warrant was issued to the sheriff of Washington County for his apprehension, which warrant came to the hands of Enos Mills, constable of White River Township in said county, to be executed. The constable thereupon proceeded to summon the defendant and the said other defendants, to assist him in .arresting said Jones, and for that purpose the constable and his- posse concealed themselves in the woods about thirty yards from, the road where Newton Jones was expected to pass and awaited,his coming. It is further shown by evidence that the constable and his posse had been concealed for some time in the bushes awaiting the coming up of Jones, and in the meantime had cut out to some extent the undergrowth from two places of concealment in the bushes to the road along which Jones was expected to pass, and that there- was no announcement to him upon his coming up, by the constable or any of his posse, previous to the firing, that they had a warrant for his apprehension.

It is also further shown by the evidence that Newton Jones was a resolute man, and some of the witnesses stated he was a dangerous man, and had avowed a determination not to be arrested.

David Jones, a brother of the deceased, and a'witness for the prosecution, details the circumstances of the killing as follows: “I know the deceased William Jones, Enoch Jones and Newton Jones. William Jones was killed by shot on the „ 15th October, 1876, in Washington County, in the State of Arkansas. I was-present and saw him before he was shot and after his death on that day; Matilda, William, Enoch, Newton and myself were together. Matilda • and I were riding in a wagon, and William Jones, and Enoch Jones, and Newton Jones were riding behind the wagon. We started from Lewis & Johnson’s Mill (from Lewis’ house) and we got.about a. half mile from Johnson’s mill, on the road towards Carter’s store. I was driving the wagon and Matilda was riding in the wagon. The others were riding behind. Newton and William were riding side By side. Enoch was riding behind them. The first thing I heard was the report of a gun or pistol. Immediately afterwards several guns were fired, and my mules ran off, ran about seventy-five yards. After my mules stopped, I raised up in the wagon and heard some one say halt! halt! shoot them boys, the last damned son of a bitch of them. I could see a glimpse of men running up the hill in the woods. I heard horses running on the other side of the road. I unhitched my mules and went back and found my brother dead, lying close by the side of the road, rather under his horse, which was down. Two shots in the head, and in the temple, several in side and leg. Deceased was armed, had his revolver under him, not drawn. There was a turning out of the road by horses before the first gun fired. I looked around at first fire and saw horses dashing off. I went over the ground and looked at it. There seemed two places where parties had been, one behind a log, and one near a hickory tree, seemed as if they had been there half a day. Brush tramped down. Brush trimmed out from log to road, and from tree to road. I stepped the distance and it was just thirty steps. When the firing began they were just opposite those places. Enoch was wounded in the side of the head and a shot glanced his neck. The voice I heard I thought was Jeff. Gilliland’s. Heard but one voice; halt, was given but one time, that I heard. If it had been given before, I would have heard it.”

Enos Mills, the constable, who attempted the arrest of Newton Jones, was examined as a witness, and after stating that he knew the deceased and all the other defendants who were present with him at the killing of William Jones, describes the circumstances of the killing as follows: I went to a place where I thought I would stop them. I expected I would have to fight them, and I told the boys (them with me), to make them stand when I halted them. Everybody said they would fight. They came along and I halted them, three or four times, and they threw themselves down foward on their horses, and clapped their hands to their pistols and broke to the brush. I fired and the parties with me commenced firing. When we found out the wrong party was killed, I told them we had better get away, that they might come back and kill some of us.

Deceased was shot through mistake. This witness further states as follows : At the time of the shooting I did not tell the party or Newton that I had a writ. I did not have time. The parties ran before I could do so. .1 summoned the defendant, when I showed the writ to him and he read it. I had the writ in my pocket at the time of the shooting. I did not produce it. They threw themselves down on their horses and grabbed their pistols. I first spoke to them. I had no time to make known that I had a warrant. I had the writ in my pocket at the time of the shooting and did not produce it.

It appeared in evidence, also, that the party along with Newton Jones at the time of the killing, was his wife Matilda Jones and other relations, and that Jeff Gilliland, one of the constable’s posse, was the brother of Gus. Gilliland alleged to -have been killed by Newton Jones.

A number of other witnesses were examined both for the prosecution and defense. > But we deem it unnecessary to reproduce their statements in detail, for while there is some conflict among them as to minor matters, there is but little discrepancy as to the material facts of the case.

The defendant asked for instructions, numbering from one to eighteen inclusive, and the court of its own motion gave instructions numbering from one to thirty-eight inclusive.

The firstjjuestion for our consideration is,, did the court err in refusing to give the instructions asked for by the defendant embraced in the fifth cause assigned in his motion for a new trial; and this we will consider in ■ connection with the further question, did the court err in giving the instructions embraced in the sixth cause assigned for a new trial.

The court refused to give all of the instructions asked for by the defendant except the sixteenth, which was given.

In referring to these instructions, we think the third, which is to the effect: “That a constable is a peace officer, or conservator of the peace, throughout the county and that it is his duty to arrest all offenders,” was unexceptionable and might well have been given to the jury, and so of the seventh instruction, which is: “That the fact of the indictment having been found, charging Newton Jones with murder, would be reasonable grounds in the mind of any one knowing or having information of the same to believe that he had committed a felony.”

The twelfth instruction, which was to the effect: “That a constable would have a right to serve a writ issued by the clerk of the Circuit Coui’t of his county on an indictment pending in said court for murder, and on file in his office, if such writ should come to his hands for such purpose, was, without the statement of qualifying facts, calculated to mislead the jury and was properly refused.

In this connection we may consider the twentieth instruction given by the court, which is, in substance : That the “warrant itself would be no protection to an officer unless the same was directed to him, or delivered to him by the officer to whom it was directed, and that if the jury find in this instance that the warrant of arrest, under which Constable Mills purported to have acted, was neither addressed to him nor delivered to him by the officer to whom it was directed, his authority to make the arrest would nof be given by the warrant, but if it was directed to him, or delivered to him by the officer to whom it was directed/ he would have the authority to make the arrest under it, although the same- may have been issued from the Circuit Court.”

This instruction was, to some extent, subject to the same objection as the defendant’s twelfth, because, as we think, founded ■on an erroneous conception of the sheriff’s power to authorize ■another to execute a warrant directed to the sheriff.

The ordinary bench warrant embraced in sec. 1808, of Gantt’s. Digest, is directed to any sheriff, coroner, jailor, constable, marshal or policeman in the State.

A warrant regularly issued, so directed, coming to the hands ■of any one of those officers can be executed by such officer. And if a warrant so directed come to hands of a duly qualified deputy of any one of these officers, who may by law b.e entitled to ■such deputy, he too will have authority to serve such warrant.

In this case the warrant was directed to the sheriff of Washington County; a duly qualified deputy could have executed the warrant, because he possesses all the powers of his principal.

.But could the sheriff either directly ór indirectly empower the constable of White River township to execute the warrant by simply delivering it to him without first appointing him a deputy in the,manner required by law? We think not.

Chitty, in his work on Criminal Law, in discussing the subject of arrests, says: “With respect to the person who may execute the warrant, it seems that if it be directed to the sheriff he .may authorize others to execute it, but that if it be given to an inferior officer he must personally put it in force, though any one may lawfully assist him, and if a warrant were generally directed ■to all constables, no one could act under it out of his own precinct,- and if he did he would have been a trespasser, but if it were directed to a particular constable by name, he might execute it any where within the jurisdiction of the justice by whom it was granted.” 1 Chitty’s Crim. Law, 48.

Bishop, who quotes Chitty in referring to the power of the sheriff to authorize another to execute a warrant, adds “not verbally, however, for the deputy must be constituted such by a written instrument.” 1 Bishop Crim. Pro., 646.

These writers follow Hale, Foster and Hawkins.

A constable then holding a. warrant directed to the sheriff would not, from the fact of his being a constable simply, have the authority to execute the warrant. Before he could legally execute it, he must be appointed and constituted a deputy sheriff in the manner prescribed by law; so then it would follow that the constable, Mills, although holding the warrant, could not as such execute it, he having no legal authority from the sheriff to do so.

"While then, the court’s instruction may leave us in doubt as to. the authority of the constable under the warrant, the instructions as a whole leave us in no doubt as to the power and duty of a constable to arrest a felon with or without a warrant, when it is done in good faith and for the purpose of bringing the offender to justice.

The remaining instructions asked for by the defendant were refused, and those prepared by the court given because, as we suppose, they were more pertinent, and appropriate, more full and comprehensive in their application of the law, to the facts disclosed in the evidence, than were those of the defendant. The ■objection to them is not well taken. They presented the law of' the case fairly, and are even liberal towards the defendant, who we think is not prejudiced by the instructions given by the court,, nor by the court’s refusal to give any of those asked for by tha defendant.' -

The third objection assigned as a cause for a new trial is the alleged admission of illegal evidence, on the trial.

The defendant asked a witness whether or not Jeff. Gilliland and Newton Jones were on good terms, to which witness answered and said that Gilliland and Jones were not on good terms,, and the witness further stated that the feeling between Newton Jones, Jeff. Gilliland and Ephraim Ramsey was bad.

Witnesses were also permitted to state that Newton Jones kept out of the way and would not come in and surrender' to be tried for killing Gus. Gilliland because he was afraid Jeff. Gilliland would kill him. To the admission of this evidence the defendant objected, but his objection was overruled'.

There being facts and circumstances connected with this case, tending to show that the party attempting to arrest Jones may have been actuated by other motives than a desire to arrest and bring him to trial for killing Gus. Gilliland, we regard evidence going to show bad feeling between Jones and the arresting party entirely competent", and think it was properly admitted.

But as to statements going to show that the reason why Newton Jones kept out of the way and did not surrender himself to be tried for killing Gus. Gilliland was not so much because he was afraid to surrender and be tried, as he was afraid that if he did, Jeff. Gilliland would kill him, and this drawn principally from the declarations of Jones himself, was hearsay, and clearly inadmissible.

The fourth cause assigned for a new trial is that the court erred in excluding legal' evidence offered by the defendant, this we think is unfounded, for we find that no legal evidence offered by the defendant was excluded from the jury.

The seventh cause assigned for a new trial is, that the jury found contrary to the instructions of the court.

This we think is insufficient. True, the instructions of the court might have been more full and complete in its definitions of different grades of homicide, and particularly the distinction between voluntary and involuntary manslaughter, should have been clearly stated to the jury. But notwithstanding this omission, the finding of the jury was in accordance with the instructions. '

The eighth cause assigned for a new trial is: Because the jury were unduly influenced by acts and declarations of the Prosecuting Attorney, E. J. Stirman, Esq., etc., going on with specifications of the actings and doings of the said prosecuting attorney in his closing argument to the jury.

This, if it were good cause for a new trial, is not properly before us for review. The facts which it discloses were not made a part of the bill of exceptions at the trial, and appear for the first time in the motion for a new trial.

The motion for a new trial is not a part of the bill of exceptions, and a party cannot put what purports'!» be evidence in the cause, on record, by incorporating it into the motion for a new trial, not even by referring to it as incorporated in the bill of exceptions. Berry v. Singer, 10 Ark., 483.

We are, therefore, not called upon to express any opinion as to the sufficiency of this cause for a new trial.

The ninth cause assigned for a new trial is: Because the court erred in refusing to allow the defendant to read a legal defininition, and to read any law whatever.

This presents for our consideration, the question: Did the court err in denying to the defendant, the right to read law which he considered applicable to his case ?

We understand the uniform practice of the English and of the American courts, both State and Federal, including those of Arkansas, is to permit attorneys under the direction of the court to read the law applicable to the case on trial, with such comments and explanations as he may deem appropriate.

This is the first time the question has ever been presented for our consideration, and the fact that we have not been able to find any adjudicated cases bearing on the question, notwithstanding the prevailing practice in our courts, would seem to indicate that occasions have not often arisen for testing the propriety of the *, practice, and it would seem also to indicate the approval of the practice by the legal profession.

If the defendant’s attorney fails to read the law to the jury, he quotes it from memory, and is not likely to be always accurate. A better practice is to read it from books of approved authority with such comments and explanations touching its application as the facts of the case may seem to warrant, and this appears the more proper when we reflect that in criminal cases, the jury, in a restricted sense, are judges of the law as well as the evidence.

The court gives the law, and the jury are bound to receive it as given, but in cases where the issue involves a mixed question of law and fact, they are necessarily the judges of the law and evidence, because they must apply the law to the evidence in order to determine the criminal intent with which the act was done. See Pleasant v. The State, 13 Ark., 360.

The defendant is entitled to the best defense his counsel can * make for him, hence the necessity of having the law read and fully explained, and applied to the facts of the case, with all the skill, learning and eloquence which his counsel ma.y possess.

But then there must be a limitation to this practice of reading law to the jury, and that limitation must be determined by the court in each case, under whose direction and supervision criminal trials take place.

It would not be safe or proper for us to prescribe fixed rules ' governing the Circuit Courts, in such cases, and we shall not attempt it.

As to the first and second causes assigned for a new trial, to the effect that the verdict of the jury was contrary to the evidence and against the law and evidence; we think these’ causes^ well assigned, and that they warrant a reversal of the judgment.

The court’s thirty-sixth instruction was calculated to mislead the jury. It was in substance, that if the jury found the defendant guilty of manslaughter, they should assess his punishment by imprisonment in the State penitentiary for any period not less than two years nor more than seven years.

The error of this instruction is, that it fails to discriminate and explain to the jury the difference between two grades of manslaughter.

Now manslaughter is voluntary or involuntary. This distinction exists at common law, and is fully recognized by our statute which has made no innovation upon the ancient law upon the subject.

The indictment in this case is for murder, and the jury might have found the defendant guilty of murder in the first degree, or of voluntary, or involuntary manslaughter, as the evidence might seem to warrant.

The verdict of the jury was as follows : We, the jury, find the defendant not guilty, as charged in the indictment. But find him guilty of manslaughter and assess his punishment at two years in the State prison.”

The jury, we have no doubt, intended to find the defendant guilty of voluntary manslaughter, without so declaring in words, for the penalty clearly indicates this purpose, and we should have no hesitation in treating the verdict as if for voluntary manslaughter, were we clearly of the opinion that the evidence authorized such a finding; but, as wc arc not satisfied on that point, and as the finding might have been different, had the court declared and explained to the jury the distinction and difference of penalty, in two grades of manslaughter, the judgment must be reversed, and the cause remanded with instructions to the court below to grant the defendant a new trial, und that he be tried for manslaughter.


source: Caselaw Access Project

author: Harrison, J.: ■

license: Public Domain

text:
    Govan vs. Jackson.
    1. Contested Election: Jurisdiction.

    Under the provisions of see. 52, art. vii, of the Constitution, the power of the the legislature to establish a special tribunal or board for the determination of contested elections is unquestionable.
    2. Trial by Jury: Contested election, summary proceedings, etc.

    It is only in cases at common law and other analogous cases, that the right of trial by jury is guaranteed by the Constitution. It is competent'for the legislature to dispense with a jury trial in the case of a contested election; and a provision for the trial of such cases in a summary way has that effect.
    3. Election: Return of ballots and poll-books to County Clerk; contest.

    The law requires the judges of election to return one of the poll-books, under seal, to the County Clerk; also all the ballots cast at the election securely enveloped and under seal, and provides that the ballots shall not be opened except in case of a contested election; in this case both the poll books and the ballots, the latter not numbered and loose, were locked up in the ballot box and sent to the County Clerk: Held, First — The clerk had no right to return the ballot-box to the judges of election to enable them to correct their return. Second — Upon a contest in regard to the election, the votes so returned should be counted. The Constitution requires all legal votes cast at an election, no matter whether returned or not, or whether any irregularities attended the election, to be counted upon a contest.
    4. Contested Election: trial of, issues.

    The real inquiry upon a contest is whether the contestant or the respondent received the highest number of legal votes, and it is not confined to the ground specified in the notice of contest. The respondent may without any cross contest, which is not contemplated by the statute, call in question the validity of the votes cast for the contestant, either in the township specified in the notice, or any other township in the county.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge. •

      Tappan & Hornor, and Hughes, for appellant.

      Howes, contra.

   Harrison, J.: ■

F. H. Govan and J. M. Jackson were opposing candidates at the general election on the first Monday in September, 1876, for the office of Circuit Clerk of Lee County.

Govan received the certificate of election and, in accordance therewith, the commission from the Governor.

Jackson gave Govan notice that he would contest the election before the County Court at the next or October Term, 1876, upon the ground that the votes cast in Hardy township, in which he received sixty-four and Govan eighteen votes, were not counted upon the examination and canvass of the returns, which, if counted, would have given him in the county 1127, the highest number of votes cast for the office, Govan 1089, and that he was elected by a majority of thirty-eight votes.

To the contestation Govan filed a response, and to the response Jackson filed a demurrer. The court overruled the demurrer, and Jackson electing to rest thereon, his contest Avas dismissed, and he appealed to the Circuit Court.

In the Circuit Court he again demurred to the response, and his demurrer was there sustained.

Govan, upon leave granted, filed an amended response consisting of four paragraphs.

The first denied that any return Avas made to the County Clerk from Hardy toAvnship.

The second averred that the ballots in said township AArere not numbered, and, therefore, void.

The third denied that the contestant received 1127 legal votes, or a majority of the legal votes, but averred that the respondent received 1089 legal votes, which Avas the highest number of legal votes cast, and especially charged that certain persons named, not qualified electors, Avho had not resided in the toAvnship thirty days, in the county six months, nor in the State one year, voted for the contestant in the following townships :

In Hardy...........I.............'............................. 42
In St. Francis.................... 38
In Dennis..................................................... 6
In Texas.........................................'............. 3
In Union........................... 2

and that the contestant, who did not reside therein, voted for himself in Independence townshij).

And .the fourth averred that in St. Francis township the ballot box, after the poles wore closed, was opened and the ballots taken out and the votes counted in the absence of the judges and one of the clerks; and that the said judges made their certificate and return, the day after the election, without any examination and verification of the ballots, and solely upon the information of the persons who had so illegally opened the ballot-box and counted the votes; and that the polls were not signed by the judges and attested by the clerks, nor the names counted and the numbers-set down at the foot .of the poll books, and also that one of the judges was not a resident of the township.

The contestant demurred to the last three paragraphs as containing no answer to his ground of contest, but as. setting up a cross-contest, without notice to him, and the court sustained the demurrer and ordered said paragraphs stricken out.

The respondent asked for a jury, which the court refused to allow to be called, and proceeded to hear and determine the case without one; and it found that the contestant was elected, and not the respondent, and entitled to the office.

The respondent moved for a new trial, which was refused ; and an order annuling his election, and declaring the election of the contestant, was thereupon entered.

The defendant appealed to this court.

The motion for a new trial was upon these- grounds : First— That the court should have allowed the trial to be by jury as requested by the respondent. Second — That the court erred in its declaration of law; and, Third — That the finding was against the law and evidence.

The Constitution, sec. 24, art. xix, makes it the duty of the General Assembly to provide by law the mode of contesting elections in cases not therein specially provided for, and, in compliance with that requirement, such provision is made in the general election law of 1875.

It is the evident intention of the act that such contests shall, as the public interests demand, be speedily and summarily determined.

Sec. 71 of the act is as follows : “ When the election of any clerk of the Circuit Court, sheriff!, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not .otherwise provided for, shall -be contested, it shall be before the County Court, and the person contesting any such election shall give to the opposite party notice in writing ten days before the term of the court at which such election shall be contested, specifying the grounds on which ho intends to rely, and if objections be made to the qualifications of voters, the names of such voters, with the objection, shall be stated in the notice, and the parties shall be allowed process for witnesses.”

Sec. 72 says : Either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial, and the court shall, at the first term (if fifteen days have elapsed after such election, and if less than fifteen, then at the second term), in a summary way determiné the same according to evidence.”

There is nothing.in the Constitution, that we can see, which requires that the contest should be made before the County Court or that restrains the legislature from erecting some other tribunul or board for its determination; on the contrary, the power of the legislature to establish such, if not distinctly expressed, is plainly implied in sec. 52 of art. vii., which is as follows : Sec. 52. That in all cases of contest for any county, township or municpal office, an appeal shall lie at the instance of the party aggrieved, from any inferior board, council or tribunal to the Circuit Court, on the same terms and conditions on which appeals may be granted to the Circuit Court in other cases, and on such appeals the case shall be tried de novo.”

The law has made no provision for juries in the County Court, and we can see no greater expediency for a trial by jury in the Circuit Court when the case is carried there by appeal, than in the first instance in the County Court, or why it should not be determined in as summary manner in the former as in the latter..

The requirement that it shall be determined in a summary way, is that it shall be tried without a jury. Mr. Bouvier defines a summary uroceeding to be a form of trial in which the ancient established course of a legal proceeding is disregarded, especially in the matter of trial by -jury, and in the case of the heavier crimes, presentment by a grand jury.” Bouv. L. Diet.

But it is contended by the appellant that trial by jury is a right guaranteed .by the Constitution, and that it was not within the power of the legislature to deprive him of it.

It seems well settled by the authorities that it is only in cases at common law, and perhaps such as are of similar or analogous nature that the guarantee relied upon by the appellant applies, and that statutory proceedings and rights which did not exist at common law, are not within it. Boring v. Williams, 17 Ala., 510 : Tims v. The State, 26 Ala., 165; Creighton v. Johnson, 6 Litt., 241; Watts v. Griffin, Ib., 244; Harrison v. Chiles, 3 Litt., 200; Harris v. Wood, 6 Monroe, 642; Murphy v. The People, 2 Cow., 819; Wynehamer v. The People, 3 Kernan, 378; Mountfort v. Hall, 1 Mass., 443; Wells v. Caldwell, 1 A. K. Marsh 328 ; Inhabitants of Shirley v. Lunenburgh, 11 Mass., 379; In re Powers, 25 Vermont, 261; Emerick v. Harris, 1 Binn., 416; Van Swartow v. The Commonwealth, 24 Penn. St., 131; Ewing v. Filley et al., 43 Penn. St. 384; Kneass’s case, Lead. Cases on Elections, 360.

Mr. Sedgwick says : It is also to be understood that when the Constitution guarantees the right of trial by jury it does not mean to secure the right in all possible instances, but only in those' cases in which it existed when our Constitutions were framed. Sedgw. Stat. and Con. Law, 496. ■

In the case of Ewing v. Filley et al., cited above, which was a case of contested election, the Supreme Court of Pennsylvania says: It is not in the act of organization of the State, nor in the perpetuation of its organic succession, but in the administration of rights under the organization, that the Constitution •secures'the right of trial by jury. The jury is the popular element in the determinatio'n of rights which need enforcement by means of the State organization; but there is a much larger popular element in our elections; the votes of all the people and all our political practice shows that we have not considered a jury an essential means of deciding contested elections of public officers.”

The returns before the court, including that from Hardy Township, showed that the contestant’s entire vote in the county was 1127, and the respondent’s 1089.

It was proven that both poll-books of the election in Hardy Township, upon one of which the judges had made their returns, were, together with the ballots, the latter not numbered and also loose, placed by the judges in the ballot box, which was then locked and á piece of paper pasted over the orifice through which the ballots, were deposited, across which the names of the judges were written, and another piece pasted over the key-hole, across which also the name of a deputy sheriff was written, and the box was placed in the hands of one deputy sheriff and the key in those of another, to bo carried and delivered to the County Clerk who was the respondent, which was done on the day after the election, and he deposited the same in his office. At the time the box was delivered to the clerk, he was told that the ballots were loose and unenvelpped in it.

On the next day, the third day after the election, the judges learning that they had not made their return according to law, applied to the respondent for the ballot box, that they might get out the poll-books and make a proper return. The respondent declined to let thém have the box, or to allow it to be opened, and on the fourth day after the election he despatched a messenger to bring up the poll-book and returns as required by the statute, which for the reason shown, could not be done; and the votes of said township were not entered in the abstracts made by the clerk and the two justices upon the examination and canvass of the returns.

The court declares as a proposition of law, that the votes in each township returned to the clerk, should have been stated in the abstracts of the returns made by him and the two justices, and that the votes in Hardy Township should have been stated therein.

The court seems to have assumed, that the judges of election in- Hardy Township did make a return, but in this we think i^ was mistaken. The poll book and return, were, in fact, delivered tq the clerk, but in such a manner as defeated the end intended, by the statute. Sec. 41 of the act says: “After canvassing the votes as aforesaid, the judges before they disperse, shall put under cover one of the poll books, seal the same and direct it to the clerk of the County Court of their respective couhtiesand sec. 45 reads as follows: “ It shall be the duty of the judges of the elections in the respective townships throughout the State, after such election shall have been closed, as provided for in the foregoing section, securely to envelope all ballots which may have been received in accordance with the provisions of this act, under seal, and return the same to the clerk of the proper county, which shall in no event be opened, except in case of contested election. Now in this case, the poll book with the- return upon it, was locked up in the ballot box, with the ballots unenveloped and loose therein. To have opened the box was to have broken the seals, or what was intended by the judges for such, and to open the ballots, in direct violation of the law. The application of the judges to the clerk for the box, was no doubt made in good faith; but it had then passed from their charge to his, and it was his duty to preserve it as containing the ballots, and in the same state in which he received it, and he had no such discretion as to permit it to be opened by any person, or for any puspose, except in case of contest.

But the declaration was inapplicable to the case before the court. The question it was considering was: Should the votes then be counted ? Not, ought they to have been counted upon the examination and canvass of the returns? Sec. 11 of art. iv., of the Constitution, is as follows :

Sec. 11. “ If the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified election, such vote or ballot shall, nevertheless, be counted upon the trial of any contest arising out of said election.” And it is apparent that the duty to count them, did not depend - upon the obligation to count them upon the canvass of the returns.

This provision of the Constitution requires all legal votes which have been cast or offered, no matter whether returned or not, or what irregularities have attended the election, upon a contest to be counted. The illegal proceedings and irregularities in the townships of Hardy and St. Francis, did not, therefore, haye the effect to make void the votes of the qualified electors of those townships, and the court very properly declined to go into any inquiry concerning them, and sustained the demurrer to the second and fourth paragraphs in which they were charged.

The finding of the court in favor of the contestant was in accordance with the evidence before it: but we think the respondent should have been permitted to prove, if he could have done so, that illegal votes were given for the contestant in the townships named and as charged in the third paragraph of his answer.

The real inquiry was as to which, the contestant or respondent, received the highest number of legal votes, and was not confined, as the court in effect held in sustaining the demurrer to the third paragraph, to the ground specified in the contestant’s notice of contest, or whether the votes cast in Hardy Township should be counted. Nor was there any cross-contest by the respondent as assumed in the demurrer. The statute does not contemplate any thing of the kind, and in the nature of such a controversy it seems to - be inadmissible. The contest puts in question the validity of the election of the person holding the certificate of election and having a prima facie title to the office; and though the contestant may be able to prove the grounds specified in his notice, the person declared elected ought certainly to be admitted to show, if he can, in support of his title to the office from which the contestant seeks to oust him, that the contestant was, notwithstanding, not elected.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to grant the appellant á new trial, and to allow him to produce evidence to prove the illegal votes charged or facts set up in the third paragraph of his response.


author: Harrison, J.:

text:
    Moss vs. Adams et. al.
    1. Marshalling or Securities:
    Where a bill filed for the mashalling of securities, and an account of the value of property of the plaintiff, which was converted by the defendant under the claim of a mortgage by third parties, alleges that the defendant had no lien on the property converted, the plaintiff’s remedy at law is complete, and there is no cause for equitable interposition.
    2. Pleading: Mistake as to lewd of action.

    A mistake as to the kind of action is no ground for sustaining a demurrer to the complaint, and dismissing it. The pleadings should be amended and the cause transferred to the proper docket, and if the correction is not made by either party, the objection will be deemed waived.
    APPEAL from Hempstead Circuit Court in Chancery.
    Hon. J. K. Young, Circuit Judge.

      Baltin and Williams & Battle, for appellant.

      Gallagher & Newton, contra.

   Harrison, J.:

The complaint alleged, that the plaintiff bought, on the 27th day of January, 1871, from Selina McFaddin and her son Hampton McFaddin, three bales of cotton, which were at the time delivered to him, and for which he paid them; and that he marked the same as his property.

This was a suit' in equity by William Moss against Rufus J. Adams and R. S. Pope, and Alfred O. Stewart, James A. Williamson and Robert A. Carrington, who compose the firm of A. O. Stewart & Co.

That the cotton was delivered on the plantation of the defendant Hope, where it was raised by the said Selina McFaddin and and Hampton McFaddin, in the year 1870; but before he could remove it, the defendant Adams, Hope’s manager on the plantation, wrongfully took and hauled it away.

That he immediately brought suit against Adams, for the cotton, before a justice of the peace and replevied it before him, but the possession was upon his giving bond restored to him. that said Hope made himself a defendant with Adams in the suit, and said A. O. Stewart & Co. interpleaded therein; after which the plaintiff dismissed his suit. That Adams and Hope claimed a lien on the cotton for supplies furnished said Hampton McFaddin, and Toney McFaddin, another son of Selina McFaddin^ who had worked in the crop, and by whose labor in part the cotton was raised, the amount for which the lien was claimed,was, however, not stated; and A.O. Stewart & Co. pretended to have a mortgage on it from said Tony McFaddin, for a debt of $71.75, and also a lien of some kind from Hampton McFaddin, for a debt of $75.18.

That the value of the cotton was $180.

That Adams, after it was restored to him in the replevin suit, turned it over to A. O. Stewart & Co., who converted it to their own use.

That Tony McFaddin was a minor, whose services belonged to ..his mother, and his work and labor in making the crop, was for her; and he had no interest in the cotton raised by her and Hampton McFaddin, and that neither Adams and Hope, nor A. O. Stewart & Co. had a lien of any kind on the cotton the plaintiff purchased, and their pretence of liens was made.with the object that A. O. Stewart & Co. might get the cotton upon Hampton and Tony MeFaddin’s debts.

And'that said-A. O. Stewart & Co., had previously to the purchase of the cotton by the plaintiff, under a claim of mortgage or other lien, but for whose debt was not stated, forcibly and against their will, taken from said Selina and Tony McFaddin three other-bales of cotton, of the like value of $180, and converted them to their own use.

The prayer of the complaint was, that an account be taken of the value or proceeds of the whole of said cotton, as well of the three bales taken by A. O. Stewart & Co. from said Selina and Hampton McFaddin as of those purchased from them by the plaintiff, and if it should be found that there was any lien upon the latter cotton, that the proceeds of the former should be applied in disharge thereof, and that the defendants be deoreed to> pay the plaintiff the proceeds, or the value of the cotton in controversy.

The defendants demurred to the complaint upon the ground^ that it showed an adequate remedy at law, and was therefore without equity.

The court sustained the demmurrer and dismsssed the complaint, and the plaintiff appealed.

Had it been averred in the complaint, that A. O. Stewart & Co. did in fact have any mortgages or liens on the cotton in controversy, and on the other three bales also, as they claimed, and that the last mentioned cotton was sirfficient for the satisfaction of their debts, the complaint would have shown a right in plaintiff to require them to resort, first to the cotton the plaintiff had no claim on; but the complaint contained no such averment, and it was alleged that they had no mortgage or lien.

Yet, although the plaintiff’s remedy was complete at law, and no cause for the interposition of equity was shown, the demurrer should not have been sustained and the complaint dismissed, for an error of the plaintiff as to the kind of action, and that he has brought it in equity, when it should have been at law, or at law when it should have been in equity, is no ground for its dismissal, but it may upon an amendment of the pleadings be transferred to the proper docket, and such correction may be made by the defendant at or before the filing of his answer, and if not made by either party it is waived. Gantt’s Digest, secs. 4461-4464; Talbot et al. v. Wilkins et al., 31 Ark., 411; New. Plead. and Prac., 236.

The decree of the court below is reversed and the cause remanded.


author: English, Ci-i. J.:

text:
    Walls vs. The State.
    X. Bigamy: Verme.

    An indictment for bigamy must be found in the county in which the biga. mous marriage occurred.
    2. Same: Constitutional provisions.

    The Constitution deprives the legislature of the power to provide for the indictment and trial of a person chai-ged. with bigamy in a different county from that in which the offense occurred.
    8.--: First marriage within the age of legal consent.

    Under an indictment for bigamy, evidence that the first marriage was within the age of legal consent is no defense, unless it also be shown that it was annulled by a court of competent jurisdiction.
    APPEAL from Jackson Circuit Court.
    Hon. William Byees, Circuit Judge.

      Coody, for appellant.

      Henderson, Attorney General, contra.

   English, Ci-i. J.:

On the 15th of September, 1877, B. F. Walls was indicted in-the Circuit Court of Jackson County, for bigamy, the indictment alleging:

That the said B. F. Walls, on the 10th day of June, 1873, in the county of Jackson, did marry one Maria McDonell, and her, the said Maria, then and there had for a wife ; and the said B. F. Walls afterwards, and whilst he was so married to the said Maria, as aforesaid, to-wit on the. 10th day of May, A. D. 1877, in the County of Woodruff, in the State of Arkansas, feloniously and unlawfully did marry and take to wife one A. E. Blackford, and to her the said A. E. Blackford, was then and there married, the said Maria, his former wife, being then alive; against the peace and dignity of the State of Arkansas.”

The defendant demurred to the indictment, the court overruled the demurrer, whereupon the defendant was arraigned, and standing mute, the plea of not guilty was entered for him.

He was tried at the March Term, 1878.

Oh the trial the State proved by P. S. Woodward that he was a justice of the peace of Jackson County, on the 10th day of June, 1873, and that on that day he married the defendant to Maria McDonell of said county.

The State also proved by Mr. Worley, that on the 10th day of May, 1877, he was a regular minister of the Gospel, and authorized by law to solemnize marriages, and that on said day he married the defendant to one A. E. Blackford, of Woodruff County.

The State also proved by two witnesses that they were acquainted with defendant and said Maria McDonell, and that she was living at and after the date of the defendant’s second marriage on the 10th day of May, 1877.

The defendant introduced his mother, Mrs. Walls, as a witness, who testified that she knew his age perfectly well, and that on the 10th day of June, 1873, he was fifteen years of age, being in his twenty-first year at the time of the trial.

The above being all of the evidence introduced, the court charged the jury:

“ That if they found from the evidence that the defendant married one McDonell on or about the 10th day of August, 1873, ini the County of Jackson, and afterwards, while the said wife was still living, to-wit: on the 10th day of May, 1877, married one Blackford in the County of Woodruff, they would find defendant guilty, and assess his penalty at not less than three nor more than seven years imprisonment in the penitentiary of the State, unless they further found from the evidence, that the said first marriage contract had been pronounced void by the decree or sentence of some court of competent jurisdiction, on the ground of the nullity of said marriage contract.”

On behalf of the defendant the following instruction was moved, which the court overruled:

“If the jury find from the evidence that the defendant was under the age of seventeen years at the time of his first marriage, the said marriage is void, and the subsequent marriage of the defendant is not bigamy, and you will acquit the defendant.” The jury found the defendant guilty of bigamy, and fixed his punishment at three years in the penitentiary.

The defendant moved for a new trial on the grounds:

First — That the court erred in giving the instruction asked for the State.

Second — In refusing the instruction moved for defendant.

Third — That the verdict was contrary to law and the evidence.

The court overruled the motion, and the defendant took a bill of exceptions, etc.

He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

I. The criminal or bigamous marriage, with which appellant was charged, having occurred in Woodruff County, he could not be legally indicted in Jackson County. Scoggins v. The State, ante.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have, been committed; provided, that the same may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, etc.” Sec. 10, Declaration of Rights, Constitution of 1874. Dougan v. State, 30 Ark., 41.

In overruling the demurrer to the indictment, and in charging the jury, the court below was, perhaps, mislead by a section of the bigamy statute.

The first section provides that: “ Every person having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.” Gantt’s Dig., sec. 1312.

The next section enumerates the exceptions. Id., sec. 1313.

Then follows this section:

“An indictment may be found against a person for a second, third, or other marriage herein provided, in any county in which such person may be apprehended, and the like proceedings, trial, judgment and sentence may be had in such county as if the offense had been committed therein, the venue in such indictment being immaterial.” Id., sec. 1314.

There was a similar statute in England (9 Geo. 4, C. 31, S. 22), but the power of Parliament to regulate the matter of venue in criminal cases, was not limited by a paramount written Constitution as the legislative power is in this State. Regina v. Whilley, 1 Carnington & Kirwin, 150; 1 Arch. Crim. Prac. & Plead. (6 ed. Waterman), p. 74.

The legislature has no more power to provide that a man be indicted for bigamy in any county where he may be aj>prehended, regardless of the county in which the offense may have been committed, than it has to make a like provision as to murder, or any other crime. The constitutional provision is the paramount law, and cannot be disregarded. The second marriage being void, the parties might be indicted for adultery in any county where they might be found cohabiting as husband and wife, if the law so provided, but not for bigamy.

II. . On a trial for bigamy, the State must prove the first marriage, no matter where, and the second, or criminal marriage within the county where the indictment was found, and that the first wife was living at the time the bigamous marriage occurred, and then the burden is on the defendant to prove that he is within some of the exceptions of the statute. Of course the rule is the same if a Avoman be indicted for bigamy. 2 Bishop Crim. Pro. 882-3-4; S ate v. Abbey, 29 Vermont, 60; 3 Greenleaf’s Evidence, secs. 204, 207-8.

The exceptions made by the statute are:

1. When the first Avife or husband has been absent for five successive years, without being lcnoivn to the accused Avithin that time to be living.

2. Where the first Aidfe or husband has been absent from the United States for the space of five years.

3. Where the former marriage has been dissolved by a court of competent authority.

4. When she former marriage has been pronounced void by the decree or sentence of a court of competent authority, on the ground of the nullity of the marriage contract.

5. Where the former marriage contract is Avithin the age of legal consent, and has been annulled by a decree of a court of competent authority. Gantt’s Dig., sec. 1313.

Sec. 4172 of Gantt’s Digest proAddes that: “Every male Avho shall have arrived at the full age of seA^enteen years, and every female who shall have arrived at the full age of fourteen years, shall be capable in laAV of contracting marriage ; if under those ages, their marriage is void.”

But sec. 4174 provides that: “ When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.”

So much of this section as relates to want of age, harmonizes with the fifth exception in the bigamy statute, which relates to marriages within the age of legal consent.

The appellant proved, by his mother, that when he was first married, he was only fifteen years of age — an overgrown boy no doubt — but he failed to prove that the marriage had been annulled by a decree of a court of competent authority, as required by the bigamy act.

By the common law, if he did not disaffirm the marriage on reaching the age of legal consent, but cohabited with the wife after arriving at such age, it would be an affirmance of the marriage contract. Bishop on Marriage and Divorce, sec. 199, 195-6-7; Tyler on Infancy and Coverture, p. 130, etc.; 2 Kent Com., Marg. p. 78, etc.

The court below did not err in refusing the instruction moved in behalf of appellant.

But the court below should have sustained the demurrer to the indictment, because upon its face it appeared that the offense was not committed in Jackson County.

The judgment must be reversed, and the cause remanded with instructions to the court below to hold appellant to answer an indictment in the Woodruff Circuit Court, should the grand jury of that county prefer an indictment against him for that offense, and if not, to be discharged by that court. Gantt’s Digest, ' sec. 1838.


author: English, Ch. J.:

text:
    Pettigrew vs. Summers.
    Interest:
    A note which contains a stipulation tor interest at the rate of 10 per cent, etc., from date, bears 6 per cent, interest (the legal rate) after maturity, and a judgment thereon shonld hear 6 per cent, interest.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      J. D. Walker, for appellant.
    -B. JR. Davidson, contra,

   English, Ch. J.:

On the 17th of March, 1877, Clifford L. Summers, assignee, sued James R. Pettigrew, George H. Pettigrew and Zebulon M. Pettigrew, obligors, and George W. Barnett, assignor, in the Circuit Court of Washington County, on,the following writing obligatory.

"Thirty days after date we or either of us promise to pay George W. Barnett, four hundred and fifty three dollars and sixty cents for value received, negotiable and payable without defalcation or discount in United States Currency, with interest at ten per cent, per annum from date. This 12th day of October, 1876. J. R. Pettigrew. [seal.]

Geo. H. Pettigrew, [seal.]

Z. M. Pettigrew. [seal.]”

Endorsed: "For value received, I assign the within note to C. L.. Summers. George M. Barnett.”

The defendants pleaded in abatement a variance between the writ and complaint as to the Christian names, or initials, of some of the parties; the court permitted the plaintiff to amend the complaint so as to correspond with the writ, and then overruled the plea.

Motions were also filed to quash the writ because it was directed to and served by the Coroner, which were heard and overruled by the court.

The defendants making no further defense, the court, on the 11th day of May, 1877, rendered the following judgment :

“It is therefore considered by the com’t that said plaintiff have and recover of said defendants the of sum four hundred and fifty three dollars and sixty-one cents for his debt, and the sum of twenty six dollars and forty-six cents, for his damages by way of interest, and that this judgment draw interest at the rate of ten per cent, per annum from this date, and that said plaintiff recover from said defendants all his costs herein.”

Defendants appealed.

The legal effect of the contract sued on is, that the obligors agreed to pay interest on the debt at the rate of 10 per cent, per annum from the date ©f the obligation for thirty days, the time of its maturity, and the contract being silent as to the rate of interest to be paid on the debt after due, the words “until paid” being omitted in the interest clause, the debt bore the legal rate of interest only after maturity, as held in Newton v. Kennerly, 31 Ark., 626; and Rogan v. Bell et al., ante.

This judgment should have been for the debt $453.61, and for damages $17.38, made up of 10 per cent, interest upon the debt for thirty days from the date of the note (to the 11th November,) and of 6 per cent, upon the debt from that day until the day of the entering of the judgment.

Inasmuch as the note bore but 6 per cent, interest at the time the judgment was rendered, the debt and damages should have been made to bear that rate of interest, instead of 10 per cent, from the date of the judgment until paid.

Error appearing upon the face of the judgment, it must be reversed to the extent of the excess of interest allowed, as above indicated, with a mandate to the court below to modify its judgment accordingly. Badgett v. Jordan, ante.


text:
    Miller vs. Kempner.
    ■ 1. Interest:
    Where a note contains a stipulation for interest at the rate of 10 per cent, per annum until maturity, and 2 per cent, per month after maturity, the increased interest after maturity cannot be treated as a penalty.
    2.--: On judgment.

    When judgment is recovered on a note, the contract is merged in the judgment, and it bears the statutory rate of interest.
    APPEAL from Garland Circuit Court in Chancery.
    Hon. J. W. Martin, Judge, on exchange of Circuits.

      Thrower, Henderson & Grauth, for appellant.

      McCallum, contra.

   English, Ch. J.:

On the 20th of February, 1874, Phillip R. Miller executed to the firm of J. Kempner & Bro., the following note.

$594.11. On or before the 25th day of December, 1874, I promise to pay to J. Kempner & Bro., five hundred and ninety-four dollars and eleven cents, with ten per cent, interest per annum until due, and after maturity to bear two per cent, interest per month until paid, value received.

“ This the 20th day of February, 1877,

“ P. R. Miller, [seal].”

On the same day, Miller executed to J. Kempner & Bro., a mortgage upon real and personal property to secure the payment of the note, which was acknowledged and recorded in Garland County, where the note was executed.

Jacob Kempner, as successor of J. Kempner & Bro., filed a bill in the Garland Circuit Court to the May Term, 1877, to foreclose the mortgage, and Miller was served with process on the 5th day of the preceding March.

On the 11th of May, 1877, the cause was called, and Miller having been duly served with process, and failing to appear, plead, answer or demur, a decree was rendered against him for the debt, etc., foreclosing the mortgage, and directing a sale of the property, etc.

On the 5th of June, Miller filed a motion to set aside the decree; on the 7th of June, the plaintiff filed a response, controverting the material matters stated in the motion. On the 14th of June, the court heard, and overruled the motion; Miller excepted, and was granted time until the following Monday, to prepare and tender a bill of exceptions, but no bill of exceptions appears to have been taken.

On the 4th of August following, the clerk of this court granted him an appeal from the decree.

The decree against appellant was for $594.11, debt,, being the principal of the note secured by the mortgage, and $186 damages, as interest for the detention of the debt, with 10 per cent, interest on the debt and damages from the date of the decree-until paid.

A.t the time the note in question was executed, the parties were at liberty to contract for any rate of interest they might agree upon. Sec. 21, art. v., Constitution 1868.

The plain and unmistakable meaning of the contract in this case, is that the maker of the note agreed to pay 10 per cent, per annum upon the debt from the date of the note until its maturity, and after that two per cent, per month until he paid the debt. There is no ground on. which to quibble about the language employed in the note, and to say that the greater interest after maturity was meant for a penalty, which might be discharged by paying 6 per cent., the legal x-ate of interest, as damages.

It seems that the court below allowed 10 per cent, xxpon the debt from the date of the note to the time of rendering the decree.

This was an error in favor of appellant and against appellee, who does not complain, and appellant has no cause to complain that the court decreed against him a less amount of interest than he contracted to pay.

At the date of the decree, the note was. bearing interest at 2 per cent, per month, but the contract being merged in the decree, and there being no statute having force to allow more than 10 per cent, upon a judgment, or decree, though the note bore a larger rate of interest, the court properly made the decree to bear 10 per cent, interest Badgett v. Jordan, ante.

The motion to set aside the decree, entered on default of appellant, was addressed to the sound discretion of the court, and appellant having failed to bring upon the record anything, to show that the court abused its discretion, the decree must be affirmed.


author: Turnee, J.:

text:
    Hancock vs. Chicot County.
    1. County: Power of to subscribe to stock of railway companies.

    A county or other municipal corporation has no power, indenendently of an express grant of authority, to subscribe for stock in a railway company and issue bonds therefor.
    See. 52, of art. iii., ch. 101, of Gould’s Dig., provided that counties having or controlling internal improvement funds, granted to them by the State, might subscribe to the capital stock of any valid and duly organized railroad company; {his statute conferred no general authority on the counties to subscribe for stock on railway companies: the power given was to subscribe the internal improvement fund. The act contemplated that the bonds should be issued on the credit of that fund, to which alone the holders of the bonds could look for payment; and bonds issued by a county independently of the limitations contained in the act are void.
    Municipal bonds issued without authority, although negotiable in form, ■ are void in the hands of an innocent holder.

      APPEAL from Chicot County.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      Reynolds, for appellant.
   Turnee, J.:

The record in this cause shows that at the May Term, 1873, of the Board of Supervisors of Chicot County, the appellant presented his petition to the board, stating in substance that he was the holder of a certain bund of Chicot County issued to .the Mississippi, Ouachita and Red River Railroad Company, under an order of the County Court passed at the April Term, I860, bearing date May the 1st, 1860, for the sum of $1000, bearing 8 per cent, interest, payable annually, and which was by said railroad company, by its secretary and treasurer endorsed in blank, and praying for an order directing said bond to be paid.

It further appears, that at the same term of the court, the petition was overruled, and the said claim disallowed, whereupon the appellant appealed to the Circuit Court.

That at the September Term, 1873, of the Circuit Court, the appellee filed its answer to the petition, stating, in substance,, that the appellee does not owe to the said appellant the said sum of $1000, with the interest thereon, and that the alleged paper purporting to be a bond of Chicot County, is not the bond of ■appellee, that there is no consideration therefore, and that the appellee did not promise to pay the same.

That at the January Term, 1874, of said Circuit Court, the appellee filed an amended answer to the said petition, alleging that the appellee is not bound to pay said bond, or any part of it.

First — Because the County Court of Chicot County was not authorized by law, at the time said bond was issued, to use the credit of the county in payment of the subscription to the capital stock of a railroad company, or to issue the bonds of said county in payment thereof.

Seeond — That said bond is not obligatory upon Chicot County, in its political character, but, if paid at all, must be paid out of. the internal improvement fund of said county. That the internal improvement fund is a fund set apart by the laws of the State for specific purposes, that the County Court of Chicot County was authorized by law to use and subscribe to the capital stock of a railroad company, out of the internal improvement fund of said county, but said county was not authorized and had no authority of law to subscribe to the" capital stock of a railroad company, or to make said county responsible in her political character for bonds issued for the payment of subscription to the capital stock of any railroad company. That'said bond was issued for the payment of the subscription to the capital stock of the Mississippi, Ouachita and Red River. Railroad Company, and that if said bond is payable at all, it is payable out the internal improvement fund, and out of no other fund.

The answer was demurred to, and at the June Term, 1875, this cause came on to be tried by the court sitting as a jury, whereupon the' court found for the appellee, and affirmed the judgment of the court below. Appellant excepted, and filed his motion for a new trial, assigning the following causes:

First — That the finding and the decision of the court is contrary to the evidence.

Seeond — That the finding and judgment of the court is contrary to law.

Which motion was overruled by the ooui't, appellant excepted and appealed to this court.

The bill of exceptions shows, that on the trial of this cause, the appellant introduced as evidence the bond of appellee sued upon, which is in words and figures as follows:

“ No.-. State of Arkansas.

“ Bond of the County of Chicot. Issued by the order of the County Court at the April adjourned term, 1860.

“ 1000 dollars. The County of Chicot acknowledges to be indebted to the Mississippi, Ouachita and Red River Railroad Company in the sum of one thousand dollars, which sum the said County of Chicot promises to pay to the order of said railroad company, five years after date, with interest thereon at the rate of eight per cent, per annum, payable annually.

“ In testimony whereof, I hereunto set my hand as Judge of the County Court of said County of Chicot, and cause the seal of said county to be hereunto affixed, at Lake .Village, the first-day of May, 1860.

“A. H. Davis, as Judge. [seal]

“Attest: B. F. Stevenson, Clerk.

“ Endorsed: Ed. C. Wilson, Secretary and Treasurer,

“M., O. & R. R. R. R. Co A

It further appears from the record, that divers citizens of Chi-cot County presented their petition to the County Court-, praying for an order that the County Court subscribe the internal improvement fund of said county in the capital stock of the Mississippi, Ouachita and Red River Railroad Company, the object being the early completion of the road through the whole extent of said county, and to a point west of the Mississippi overflow, on the highland of Drew County. Whereupon the County Court on granting the prayers of the petitioners, ordered, adjudged, and decreed, that the said county do subscribe to the capital stock of said railroad company, the sum of $10,000, for the payment of which the internal improvement fund of said county, not already appropriated, was thereby appropriated.

And it was further ordered, adjudged, and decreed, that said County of Chicot shall issue under the hand and seal of the pre■siding judge, attested by the clerk of the court under his official seal, ten bonds of $1000, payable in five or ten years from date, •as the County Attorney shall deem most proper*, bearing 8 per cent, interest, payable annually.

And it' was further ordered, adjudged, and decreed by the ■court, that all of the internal improvement fund of said county, now in the hands of the internal improvement commissioner, •and not already appropriated by the court, or that may hereafter ■come to the hands of said commissioner, with all interest that may accrue on the same, is hereby set apart and appropriated as :a fund to meet and liquidate the principal and interest of said bonds, as the same may become due.

And it is further ordered, adjudged, and decreed, that this •subscription is ordered upon the condition that said railroad ■company will receive said bonds at par, in payment for stock in said railroad company.

Other orders were made, but not material to the decision in this cause.

The record shows settlements made by the County Court with the internal improvement commissioner, on the 5th of November, 1861, and on the 1st of November, 1865, when balances were found in his hands of the internal improvement fund of Chicot County, amounting to $1,185,151.30.

It appears from the record in this cause, that on the 1st of May, 1860, the County of Chicot, in pursuance of the order of the County Court, issued ten $1000 bonds to the Mississippi, Ouachita and Red River Railroad Company, payable five years after ■date, with interest payable annually, at the rate of 8 per cent, per annum.

The bond sued upon, is one of this issue.

The question which the record presents for our decision, is : Was the County Court of Chicot County authorized by law to issue the bonds of the county in payment of stock in the Mississippi, Ouachita and Red River Railroad Company ?

It is contended by the appellant, that sec. 52, of ch. 101, of Gould’s Digest, taken in connection with the orders of the County Court, conferred upon the County of Chicot the authority in question. That section of the act of January, 22d 1855, reads as follows : “ It shall be lawful for the County Court of any county, to subscribe to the capital stock of any valid and duly organized railroad company, incorporated under any act of this State, having or controlling internal improvement funds, or credits granted to it by the State, by any existing law, or any law that may hereafter be enacted, and to appoint an agent to represent its interest, give its note, and receive its dividends, and may take proper steps to guard and protect the interests of such county.”

By a long and uniform train of decisions, it is fairly settled, that a county or other municipal corporation, has no implied power to subscribe for stock in a railroad company, nor to incur debts or borrow money to enable such corporation to become a subscriber to the stock of a railway company. Such a power must be conferred by express legislative grant. These special grants of authority to municipal corporatoins have multiplied and been frequent during the last quarter of a century, and it is believed great abuses have resulted from improvident grants of special powers to the corporations; and while the courts have been compelled to recognize the validity of these special grants,' they have not been slow to condemn 'the policy of such legislation, and have uniformly held corporations to a strict observance of the limitations of the authority specially granted. Cooley’s Con. Dim., 215 ; Dillon on Mun., Cor. 147, and authorities there referred to.

It will be observed, that the power conferred on the County Courts by sec. 52, of ch. 101, of Gould’s Digest, although special, is of limited scope.

The County Court of any county, having or controlling internal improvement funds, or credits, granted to it by the State, may subscribe to the capitabstock of any valid and duly organized railroad company.

All the counties in the State were entitled to proportionate .shares of the internal improvement fund. But, possibly, in some instances, the fund may have been otherwise appropriated and unavailable, and if so, would a county so circumstanced be entitled to subscribe at all, for stock in a railroad company.

If it was the purpose of the General Assembly to confer upon the counties of the State, by special legislation, the power to subscribe for stock in railroad companies generally, without restriction, and to issue bonds in payment thereof, it- would hardly have prescribed conditions of subscription dependent on the county’s having internal improvement funds or other credits granted to it by the State.

The petition of certain citizens of Chicot County was an appeal to the County Court in so many words, to subscribe the internal .improvement fund of the county to the capital stock of the Mississippi, Ouachita and Red River Railroad Company. The purpose of the petition cannot be mistaken.

The County Court, in granting the prayer of the petition, ordered that the county subscribe to the capital stock of said railroad company, $10,000, for the payment of which the internal improvement fund of the county not already appropriated, was thereby pledged and appropriated. The bonds issued in pursuance of the further order of the court, in payment for stock in said railroad company, are general in their terms and make no express provision for their payment out of the internal improvement fund.

This may have been an oversight on the part of the county officials, or the pledge and appropriation of the internal improvement fund may have been regarded as a sufficient guaranty of their payment out of that fund.

The internal improvement fund of Chicot ■ County was set apart and specially appropriated to the payment of these bonds,, and should have been sacredly applied to that purpose. "Whether the holders of these bonds have a remedy against the defaulting officials of Chicot County, is a question we are not called upon, to decide.

In deciding upon the liability of Chicot County in her corporate capacity for the payment of the bonds, we are brought back to the question, was their issuance authorized by law? We have seen from the whole history of the subscription of Chicot County to the capital stock of the Mississippi, Ouachita and Red River Railroad Company, that the intention of the citizens of Chicot County, who petitioned the County Court; and of the court which made the order for the subscription, was to subscribe the internal improvement fund of that county, and nothing more.

In the light of this history, as shown by the record, we can only regard these'bonds as issued on the credit of the internal improvement fund of Chicot County, which was specially pledged and set apart for their payment. But then in view of the failure-of the authorities of Chicot County to pay these bonds out of her internal improvement fund, is the county in her corporate-capacity in any event bound for the payment of these bonds?

The appellant insists that the power of a county to subscribe for stock in a railroad company was independent of and not restricted by the limitation contained in sec. 52, ch. 101, of Gould’s Digest, and we are referred to many authorities. These authorities would be entitled to great weight, were it first shown that Chicot County was authorized to' subscribe for stock in the ■Mississippi, Ouachita and Red River Railroad Company, and issue bonds therefor .payable out of the general funds of the county.

But this power depends upon an express grant of authority, for we have shown that a county or other municipal corporation has no implied power to subscribe for stock in a railroad company, and of course no authority to issue bonds in payment for such stock. But if the authority to subscribe for such stock is expressly given, the right to issue bonds would necessarily follow, for the grant of the authority carries Avith it by implication the necessary and appropriate means to make it effective.

In the case of Seybert v. City of Pittsburg, 1 Wall., 272, Avhere the legislature of Pennsylvania had incorporated a railAvay company, one section of Avhich enacted “ that any incorporated city should have authority to subscribe to the stock as fully as any individual.” But the act gave no express power to issue bonds in payment of their subscriptions.

It Avas decided that the power to subscribe authorized the city to issue negotiable bonds in payment of the stock. See also R. R. Co. v. County of Ottoe, 16 Wal., 667; and The Evansville, etc. R. R. Co. v. The City of Evansville, 15 Ind. R., 395, to the same effect.

So these and all other authorities referred to by the appellant shoAv most clearly that a county or other municipal corporation has no poAver, independently of an express grant of authority, to subscribe for stock in a railway company, upon the. existence of Avhich alone -depend the further authority to issue bonds.

Hoav these authorities benefit the appellant’s cause we cannot perceive; for there- is no express general authority given by the act of the General Assembly to the counties to subscribe for stock in railroad companies, but the poAver given is to subscribe the internal improvement fund, and the bonds Avhen issued, are issued on the credit of that fund, to which the holders of the bonds could alone look for payment.

The power of the counties to subscribe for stock being thus limited and restricted, the County Court had no authority to subscribe for stock and issue bonds payable out of the general funds of the county.

And if said subscription for stock was made upon the unwarranted assumption that the county was authorized to make such subscription and issue stock therefor, independently of the limitations contained in the act of the General Assembly, then these bonds are simply void, having been issued without authority of law and the action of the county officers in issuing them is ultra vires and imposes no liability on the county, not even in the hands of a holder for a valuable consideration.

It is true bonds issued by a county or other municipal corporation under express authority are negotiable with all the qualities and incidents of negotiability.

But if issued without authority, although in the form of negotiable bonds, the.holder acquires no right to enforce payment of ■ such bonds, because invalid even in the hands of innocent holders. Having been issued without authority of law and void in their inception, the original vice of their creation adheres to them wherever they may go, and this want of power to issue them can always be set up as a defense against a recovery on them. Dil. Mun. Bonds, 15.

The holders of these bonds have no cause to complain, for they were bound to take notice of the action and proceedings of the County Court, and the conditions under which they were issued.

This caso is like that of English & Wilshire v. Chicot County, 26 Ark., 454, and wo have reached conclusions similar to those of the court in that case; we are therefore of opinion:

First — That the bond sued upon was issued solely on the credit of the internal improvement fund' of Chicot County, to which fund the holder of the bond can alone look for payment.

Second — But if treated as a bond payable out of the general funds of the couuty, then it is absolutely void, and imposes no obligation on the county to pay it.

Let the judgment of the Circuit Court be affirmed.


text:
    Levells vs. The State.
    1. Evidence: Admissibility, etc. ■

    It is in the discretion of the court, upon the trial of a criminal cause, to permit the State to introduce additional evidence in chief, after the defendant has closed; and without some showing to the contrary, this court will presume that the discretion was properly exercised.
    2. Criminal Law: Self-defense.

    In order to justify homicide on the ground of self-defense, the party must have employed all means within his power and consistent with his safety to avoid the danger, and avert the necessity for the killing.
    3. Cbiminal practice: Discharge of the jury.

    On a trial for murder the jury brought in a verdict of guilty and the court announced to the jurors that they were discharged but immediately after, and before the jurors had dispersed or mingled with the by-standers, called them back and, against the objection of the defendant, directed them to retire and amend their verdict. Held, that there was no such absolute discharge of the jury as prevented the court from recalling it ior the purpose of correcting the verdict. '
    4. Verdict: General, where there is more than one count.

    Upon an indictment for murder in which there are two counts substantially the same, a general verdict of murder in the first degree is a findingupon both counts, and is sufficient.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Bailey, for appellant.

      Henderson, Attorney General, contra.

   Harrison, J.:

Jacob Levells was tried in the Pulaski Circuit Court for the murder of Robert Swan. He was found guilty of murder in the first degree. He filed a motion for a new trial; his motion was ''overruled, and he was sentenced to be hanged. He prayed and obtained an appeal to this court.

The indictment contained two counts, which charged the offense to have been committed by shooting, with a shot gun, and were substantially the same.

The evidence on the part of the State was, in substance, as follows:

Robert Carden testified : That the defendant lived with him on the Baldwin place in Pulaski County, and Robert Swan, the deceased, on the same place, but on the part occupied by Mr. Whitlow. That he was told on Sunday, the third day of June, 3877, about sundown, that the defendant had been cut by the deceased, and he went to his house to see him. He found him lying on a pallet in the yard, with a gash in his cheek extending from theitemple to the throat, ánd was bleeding. The next day, Monday, he came to witness’ house about 30 o’clock in the forenoon, and told him about the cutting, and the witness told him to get out a warrant for Swan. He said he did not want to go to law, and said something about fixing it up himself, and said in the conversation if he had shot Swan and had not killed him, he would have beaten him to death. He also said that he had been told that Swan threatened to kill him.

The defendant did not work Monday or Tuesday. On Tuesday afternoon, abóut sundown, he came through the witness’ yard with a gun on his shoulder, and going in the direction of Swan’s house. In about four or five minutes he heard a gun fire, two shots in succession, and a screaming by women, and he ran to the place. He found Swan down, and the defendant was in the lane, about fifteen yards from him. He came towards Swan, excited, and said with an oath something about stamping his body. The witness told him to go away, that he had already done his work, and he said “the God damned son of a bitch was going to take my life, and now I have got him. Swan was taken to his house; he never spoke; he had one gun-shot wound in the breast ranging around from the side to the front, and another in the abdomen, from which he died a few minutes after he was taken to the house. The witness, after Swan died, saw the defendant standing in the lane and told him Swan was dead. The-defendant said, “that’s what I aimed to do.”

Richard Smith testified that he went hunting in the afternoon of the day the deceased was killed, and upon his return he found the defendant at his house. The defendant said he would like to kill a bird or a rabbit, and asked to borrow the witness’ gun, and he loaned it to him; one barrel was loaded and witness let him have powder and shot, and he loaded the other and started off. That was about an hour by sun. Swan was setting out tobacco plants just back of his house, and about fifteen or eighteen feet from the-lane, and his house was about thirty steps from witness’ house,, across the lane. About dark the witness heard a gun fire and looked up and saw the defendant running through Swan’s gate- . into his yard, with the gun, and saw Swan running up the fence towards the corn field. The defendant threw down the gun and picked up a hoe that Swan had thrown down and pursued him. The witness ran after them. When Swan had run about fifty yards he stopped and held up his hands and said to the defendant: “Please, Jake.” The defendant struck him with the hoe, and the handle broke, and he snatched up a piece of the handle and struck him with that. Swan was shot in the left side. The gun was picked up by the witness, both barrels were empty.

Nancy Kinsloe testified : That she saw the defendant coming down the lane, about twenty-five feet from the gate, with the gun. 'Swan was about twelve feet from him setting out tobacco plants. The defendant put the gun through, the fence and shot at him.

Louis Lindsay testified substantially the same as Richard Smith.

Henry Levells testified for the defendant, that he went to see the defendant, who is his son, the evening after he was cut, and ■stayed there that night. That Swan came there next morning and came into the house with both hands in his pockets, and sat down with his hands in his pockets by the side of the bed on which the defendant was lying, and he said to the defendant, “I said I would kill you before the rising and setting of another sun, and I meant it when I said itthat as he went out he said,, “Í believe Fll go; Fll fix you yet, Jake; Pll kill you yet, damned if I don’t,” and that no one else was there when Swan 'was there.

The State then introduced Alexander Whitlow, who testified that he had a conversation with the defendant on Monday evening in which he told him Swan was willing to compromise the matter, and asked him what he was going to do about it, and the defendant said he was not going to law about it; that Swan and himself coul.d not live on the same place. The witness advised him to take out a warrant, but he said he did not want the law, and would-attend to-the matter himself.

It also introduced Amos Henderson, who testified that he went to the defendant’s house Monday morning whilst Swan and Henry Levells were there, but heard no conversation. He also testified that he had a conversation with the defendant after the shooting, and in answer to a remark that he made, that Swan had told him they had compromised the difficulty, the defendant said: “We did not. Swan came to my house Monday to compromise it, and I told him to go away, I would not.”

The defendant excepted to Whitlow’s testimony and a part of' .Henderson’s because not offered until after the defendant had produced his evidence and was not in contradiction or rebuttal of it.

The testimony of Henderson does not seem liable to the objection, for it was in contradiction of that of Henry Levells.

The testimony of Whitlow would have, been more properly offered before the evidence of the defendant was adduced, but its-admission at the time when offered was within the sound discretion of the'court, which, without some showing to ihe .contrary, we must presume was properly and judiciously exercised.

He also excepted to the following instruction given to the jury, at the instance of the State:

“No previous assault upon the defendant by the deceased would, in itself, justify the killing of the deceased; and unless at the time of the killing, the defendant had reasonable ground to believe and did believe that such killing was necessary to protect himself from immediate danger of death or great bodily harm at the hands of the deceased; or if, notwithstanding the previous difficulty, the defendant, at the time of the killing, was actuated by motives of revenge, and not self-defense, the killing was not justifiable.”

And he excepted to the refusal of the court to give certain instructions asked by him, which we do not deem necessary to set out. They were predicated upon the assumption that the evidence disclosed such facts and circumstances as indicated a necessity on the part of the defendant to kill the deceased, in order to preserve his own life, or to escape great bodily injury, or were sufficient to cause-him to believe that such necessity existed.

Section 1825, of Gantt’s Digest, states fully and distinctly the circumstances under which one person may take the life of another in self-cTefense. It is as follows: “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his -own life, or to prevent his receiving great bodily injury the killing of the other was necessary, and it must appear also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”

It is thus seen, as we remarked in McPherson v. The State, 29 Ark., 225, that “a necessity for taking the life of the other is the ■controlling circumstance, which justifies or excuses the act, and, before resorting to such extremity, the party must employ all means within his power consistent with his safety to avoid the danger and avert such necessity.” Palmore v. The State, 29 Ark., 248.

The deceased when shot by the defendant was making no hostile demonstrations, but was peacefully working in his tobacco ! patch, and the defendant, so far from being in the least danger, 'lor having any reason to believe himself in any, appears to have ijsought the opportunity to kill him.

There was no error therefore in giving the instruction on behalf of the State, and in refusing to give those asked for the defendant.

The jury returned their verdict as follows:

“We, the jury, find the defendant guilty of murder in the first degree. S. Wiggins, Foreman.” Which was read by the clerk, and the jury, upon request of the defendant, was polled, and each juror answered that that was his verdict. The judge then said to the jury: “Gentlemen, you are discharged; those of you who are of the regular panel, until this .afternoon; those specially summoned in this case, are discharged finally,” when the jurors arose from their seats in the jury box, and began to pass out from the box, three or four at the further end of the box had moved eight or ten feet from their seats, the,others still standing about where they arose, and all in full view of the judge and under his control, when he called to them, saying: “One moment, gentlemen, take your seats in the jury box again,” and they, without having mingled with the by-standers, immediately returned to their seats, and the judge addressing them, said: “This verdict may be defective; there are two counts in the indictment, you will retire to the jury room and so amend your verdict as to show upon which of the counts you find.”

The jury again retired and afterwards returned the verdict as follows : “ Wc, the jury, find the defendant guilty of murder in the first degree as charged in the first count in the indictment. S. Wiggins, foreman,” and they were again polled at the request of the defendant, and each answered that that was his verdict.

The defendant objected to the jury being sent back, and to any change in the verdict originally returned.

The authorities say, that after the verdict has been received and the jury discharged, their control over the verdict is at an end, and they cannot be recalled to alter or amend it. Sargent v. The State of Ohio, 11 Ohio, 472; Mills v. Commonwealth, 7 Leigh, 751; Settle v. Alison, 8 Ga., 208.

But- what is a discharge ? Clearly it would seem to us that, if they have not separated, and as a body, are still in the presence of the court, the order discharging is in fieri, and yet in the breast of the court, and may be recalled. To correct a mistake when no prejudice can result from it, is not only proper, but the duty of the court. Brister v. The State, 26 Ala., 132.

In the case of Rex v. Parker, 2 Brit. C. Cases, 45, the prisoner was tried for stealing a bank note. The prosecutor and the prisoner were on the 4th of. November, 1 823, drinking together some hours. The prisoner’s defense was that he found the note, three weeks after the 4th of November, but there was no evi- , dence to support that defense.

The jury retired and returned, saying they found the prisoner guilty of having the note in his possession, but how he got it they could not say. The judge asked them if they thought he might have found it, three weeks after they were together on the 4th of November, and one of them said “ Yes.” The judge said that was an acquittal, and a verdict of not guilty was recorded.

The judge immediately gave the prisoner an admonition and ordered the note to be given to the prosecutor, when some of the jury said, that the juryman, who had answered the judge, had no authority from the others to give him the answer he did, and that several differed from him upon that answer. The jury were directed to retire again. They convicted the prisoner, but as there was an interval of three or four minutes after the verdict was recorded before the jury expressed their dissent, the point was reserved for the consideration of the judges.

And upon consideration by the judges, they were of the opinion that the mistake in the verdict might be corrected, and that the conviction was proper.

In the case before us we think there was no such absolute discharge of the jury, that the order discharging them might not be revoked, and they recalled for the purpose of correcting their verdict, but in fact no correction was necessary.

Both counts in the indictment were substantially the same and the court could judicially notice that they were for the same offense, and the verdict as originally returned was a finding on both counts, and there was no occasion for an amendment. Brown v. The State, 10 Ark., 607; The United States v. Keen, etc., 1 McLean, 429 ; Donnelly v. State, 2 Dutch., 463, 601; The People v. Curling, 1 John., 320 ; Regina v. Downing, 5 Brit. C. Cases, 53.

If the verdict had been not guilty,” there can be no question that that would have been acquittal on both counts, and it is equally clear that finding him guilty on the first count, as'the verdict was finally returned, was finding him guilty of the offense charged in the second count.

Finding no error, the judgment is affirmed.