author: Mr. Justice Clendenin

text:
    State vs. Green.
    If in an indictment for perjury the substance of the offence ie charged, by what court the oath wa6 administered, averring that the court had authority to administer the oath with proper averments to falsify the matter whereof the perjury is charged, it is sufficient. (Sec. í, art. 2, ch. 51, Gould’s Dig.)

    Where an indictment for perjury charges that in the false oath “the defendant was duly sworn” by the foreman of a grand jury, “to speak the truth concerning all such legal questions as might be asked him by the said” foreman, it is sufficient; the foreman of a grand jury having authority to administer such an oath.

      Error to Ouachita Circuit Cowrt.

    Hon. John T. Bearden circuit judge.
    JORDAN attorney general, for the state.
    The indictment contains all the requisites oí a good and sufficient indictment. Gold’s Dig.-, ch. 51, sec. 7, 361; Wh. A. Gr. Law, 2191.
    The substance of the oath need only be stated in an indictment for perjury. JRoscoe Or. Evidence, 749, 750, 766.
   Mr. Justice Clendenin

delivered the opinion of the court.

Isaac Green was indicted in the circuit court of Ouachita, at the December term, 1866, for the crime of perjury. He was arrested and plead not guilty, and on the trial the jury found him guilty and assessed his punishment; and the defendant then by his counsel moved in arrest of judgment, which motion being sustained the;defendant was discharged, and the state sued out her writ of error to this court.

The indictment charges, after a formal and proper caption, that Isaac Green, (a freedman) late of the county of Ouachita aforesaid, was then and there duly subpoenaed to appear and give evidence before the grand jury, which was duly elected, empan-neled, sworn and charged to inquire in and for the body of the county of Ouachita in the state of Arkansas, at the June terra of the circuit court, in the year of our Lord one thousand eight hundred and sixty-six, of which said grand jury Joseph M. Graham was duly appointed foreman, and the said Isaac Green (a freedman) was duly sworn" to speak the truth concerning all such legal questions as might be asked him by the said Joseph Graham, who, by his position as foreman of said grand jury, was authorized to administer oaths to witnesses who were called to give evidence before said grand jury, and he, the said Isaac Green (a freedman,) did then and there swear that he had seen Lewis Word (a freedman) play a game with cards called seven up, and bet money on the game, which evidence was material before said grand jury in finding a bill of indictment for gaming against the said Lewis Word; and afterwards, to wit: at the county of Ouachita, in the state of Arkansas aforesaid, at the December term thereof, in the year 1866, the said Isaac Green aforesaid wickedly and wilfully contriving and intending wrongfully to aggrieve the state of Arkansas by screening from legal and just sentence of the law of the aforesaid state of Arkansas, Lewis Word (a freedman) as aforesaid, on the lbth of December, 1866, at the county of Ouachita aforesaid, in a certain cause then pending and being tried in the circuit court of the county of Ouachita, in the state of Arkansas, between the state of Arkansas as plaintiff, and Lewis Word (a freedman) defendant, the said Isaac Green being duly sworn before said court as a witness on the part of the state of Arkansas, in said cause, to testify the truth, the whole truth and nothing but the truth, concerning the matters in question in said cause, the said court having then and there sufficient and competent power and authority to administer said oath, and certain questions then becoming and being material, that is to say, whether or not the said Isaac Green had seen 'the aforesaid Lewis Word play a game with cards, called seven up, and bet money on the same, within the last twelve months before the finding of the said indictment, meaning the indictment found at the June term of the circuit court for Ouachita county, in the state of Arkansas, in the year 1866, against Lewis Word (a freedman) for gaming as aforesaid, the said Isaac Green then and there, before said court, upon his' said oath, falsely, maliciously, willfully and corruptly did depose, swear and give evidence in substance and to the following eifect, to wit: that he the said Isaac Green had not seen the said Lewis Word play a game with cards called seven up and bet money on the same, and so, then and there,. upon his said oath, did falsely, wickedly, willfully and corruptly, commit willful and corrupt perjury.” This is the substance of the indictment, with a correct and proper conclusion.

The causes assigned in the court below to arrest the judgment in that court were as follows:

1st. Because said indictment fails to aver that said defendant was sworn before the grand jury in reference to knowing or having seen the said Lewis Word play cards for money.

2d. Because said indictment alleges that- said defendant was sworn by the foreman of the grand jury to speak the truth concerning all such legal questions as might be asked him by the foreman of the grand jury, without alleging that he was sworn to answer questions in reference to said Lewis Word, or any other particular case or person, and that the said foreman had no authority to administer such general oath,

3d. Because the matters which are charged in said indictment as perjury, are not shown therein to be material to the issue to be tried, in that the said indictment does not show that he had seen said Lewis Word play the said game of cards for money twelve months next before the June term, 1866, of the Ouachita circuit court, when before the said grand jury; and in that the said indictment fails to show that the defendant, on the trial of Lewis Word in the circuit court aforesaid, swore that he had not seen Lewis Word within twelve months next before, the June term, A. D. 1866, of the said circuit court last, at which time a bill of indictment was found against said Word.

4th. Because said bill of indictment fails to allege that the '.testimony of the defendant, in,the circuit court, was given upon the trial of Lewis Word upon the indictment found against said Word on the testimony of the defendant given before the grand jury at the said June term of this court.

5th. Because said indictment fails to show the nature of the offence for which the said Lewis Word was being tried in the circuit court, upon which trial said indictment alleges that this defendant committed perjury.

6th. Because the allegations in the said indictment fail to make out the crime of perjury against this defendant.

Yth. Because said indictment is uncertain and does not describe the oath taken by the defendant, wherein he is charged to have committed perjury with sufficient accuracy, should defendant have been acquitted, to prevent his being put upon his trial a second time for the same offence, and because said indictment is otherwise informal and defective.”

Most of the objections thus taken to the indictment might have deserved consideration, if indictments for perjury now required the same details and recitals- as the law required for indictments for the same offence at common law; but by our statute, and that of' most- of the states, that strictness in the details and recitals of an indictment for perjury is not required. If the substance of the offence is charged, by what court the oath is administered (averring that the court had authority tp'administer the oath) with proper averments to falsify the matter wherein the perjury is charged, it is now sufficient. See Sec. 7, art. % chap. 51, Gould's Digest.

Yet notwithstanding this statute, the law requires that all indictments preferred against the violators of law should be sufficiently clear and explicit, to enable the person charged with an. offence to know with certainty what he is called upon to answer. We have given the indictment shown to us by the transcript in this case a close scrutiny, and testing it by the precedents and authorities and by our own statute, we think it contains all the requisites of a good indictment. It sets out clearly and distinctly what the defendant swore before the grand jury. It charges distinctly and clearly the false swearing before the circuit court, and the intent with which it was done; that it was done before a competent court, or the trial of a cause before that court, and that the testimony was material to the trial and to the issue before the court. It has a good caption; it avers with certainty time, place and circumstance, and concludes properly, and according to our statute has all the substance of a good indictment. The de„ fendant could see by the indictment what, he was called upon to answer.

But the defendant, by his first and second causes in arrest of judgment, objects to the form of oath administered by the foreman of the grand jury. Our statute has not prescribed any particular form of oath to be administered to witnesses testifying before the grand jury. The 68 section of chapter 52, Gould's Digest, enacts that “the foreman of any grand jury, from the time of his appointment until his discharge, shall have full power and authority to administer any oath in the manner prescribed by law to any witness who shall appear before such grand j ury, for the purpose of giving evidence in any matter cognizable by law.” The indictment avers the form of oath administered by the foreman : “ That the defendant was duly sworn to speak the truth concerning all such legal questions as might be asked him by the said Joseph M. Graham,” the foreman of the grand jury. This form of oath we think was sufficient, and that the foreman had authority to administer it.

The 3d, 4th, 5th, 6th and fth causes assigned in arrest of judgment, we do not think are sustained by the indictment, as we have copied it from the transcript, and by the view we have already taken of the sufficiency of the indictment; and the circuit court therefore erred in sustaining the motion and arresting the judgment in this case; and for that’error this case must be reversed and remanded to the circuit court with directions to proceed with said case.


source: Caselaw Access Project

author: Mr. Chief Justice Walker

license: Public Domain

text:
    Hawley ex parte.
    An appeal wilL not lie on a dissolution of an injunction, before the hearing of the came, there being no final decree.

      Motion for an Appeal.

    GarlaND & Nash, tor the motion.
   Mr. Chief Justice Walker

delivered the opinion of the court

We have given to the voluminous record in this case as careful a. consideration as our engagements in other duties would permit, and the state of the record may require; and although much inclined to the opinion that no substantial injustice has been done in the proceedings of the court below, we would not refuse to grant the appeal, and upon argument and authority more thoroughly investigate the case, if there had been any final decree from which an appeal could be taken. But upon looking into the record, we find that the party seeks his appeal upon the order dissolving his injunction, leaving the merits of the controversy. undetermined. This is not such final decree from which an appeal would lie, as held by this court in Moss vs. Ashbrooks, 13 Ark, 176.


author: Mr. Chief Justice 'Walkee,

text:
    Johnson vs. Hodges.
    where a party in chaneery prays an appeal, and files an affidavit for appeal and it is “ ordered that he have leave to perfect his appeal by giving bond aa required by law, with sufficient security, to be approved by the judge,” in a certain sum and by a certain time; and after the expiration of that time, he presents a bond to the clerk, in the sum required, with an indorsement on it by the judge referring it to the clerk for approval, and the clerk approves the bond, and files it, the appeal must be dismissed, as there is no showing that it was ever granted.
    Although, an appeal may be taken without recognizance, yet in this ease there is no order for an appeal.
    The judge cannot delegate the power to approve the recognizance, to the clerk. Quere: Can the judge himself approve such recognizance in vacation?

      Decree in Crittenden Circuit Court in Cha/ncery,
    Hon. James M. Hanks, Circuit Judge.
    B. C. BeowN and 'WaTKins- & Eose,
    for Hodges et al.,- filed a motion to dismiss this case, submitting that no sufficient recognizance had been given, that no appeal has in fact been taken from the said decree of Crittenden- circuit court, and that there is no case before this court for adjudication. Gould’s Digest, secs. 146, 147, 149; Moss vs. AsTibrooks, 15 Ark., 169.
   Mr. Chief Justice 'Walkee,

delivered the opinion of the court.

The appellees have filed their motion to dismiss this case upon the ground that, although there was a conditional order for an appeal entered, in fact the terms were not complied with, and in-fact no appeal was granted.

By referring to the record we find the following entry : ‘‘ And thereupon came the said complainant, and prayed an appeal to the supreme court of the state from so much of this decree as dissolves tbe said injunction and dismisses his said bill of complaint, and authorizes said Asa Hodges and said trustee to execute said deed of trust; and files his affidavit for such appeal in due form of law, and on his motion it is ordered that he have leave to perfect his said appeal by giving bond as required by law with sufficient security to be approved of by the judge of this court in the sum of fifteen thousand dollars by the 24th day of this month.”

On the 29th day of November, five days after the time fixed by the court for entering into .bond, the complainant presented to the clerk of the court a bond, in the usual form, and for the sum required, with securities to the same, with an indorsement upon it, made by the judge, referring the bond to the clerk for his approval, if the same and the securities thereon should be good and sufficient; whereupon the clei’k approved and Sled the bond on that day.

By statute, any person who shall deem himself aggrieved by any final order, decision or decree of a court exercising chancery jurisdiction is entitled to an appeal, which, if granted by the court, must be at the same term the decree is rendered, and the only condition precedent to the granting of the appeal is, that the party or his agent shall file an affidavit as therein prescribed. "When this is done, the appeal should be granted, no matter whether recognizance or bond, such as is provided for in the 148 section Gould’s Dig., p. 287, is entered into or not. The bond or recognizance is given to stay further proceedings on the decree until final hearing, without which such proceedings are not stayed, except in cases where the appeal is prayed by executors, administrators or guardians.

The bond in this case was not properly approved. The judge of the circuit court had no power to delegate to the clerk the power to approve the bond and security. It was a power to be exercised by the circuit judge in person, if indeed such approval could be made by him out of term time.

But in this case, although the subsequent orders' in regard to the entering into recognizance would seem to imply that the court itnended to grant an appeal, yet there is no record entry that an appeal was in fact granted. The case stands in several respects like that of Moss vs. Ashbrooks, 15 Ark., 170. In that case, as in this, day was given to enter into recognizance, and like that case there is no express order granting an appeal. Adhering to our decision in that case, the case must be dismissed.


author: Mr. Chief Justice Walkkb

text:
    Wilde & Co. vs. Hart.
    Where the plaintiff declines to reply to pleas in bar, or to proceed any further in the ease, the suit may be dismissed.
    Amotion fora continuance is addressed to the sound discretion Of the court; and this court will not attempt to control that discretion unless it has been grossly abused.
    Where the plaintiff moves for a continuance, after pleas in bar have been filed, and his motion is overruled, if he wishes to take the opinion of this court upon that point, he should take issue to the pleas, go to trial, and appeal on the final decision.
    Where he declines to take issue to such pleas, and the cause is dismissed, the judgment, if not rendered at his instance, is superinduced by his acts, and no appeal will lie.

      Appeal from Pulaski CirevÁt Cov/rt.

    Hon. John J. Clendenin, Circuit Judge.

      P. J oedan, for appellants,
    who argued this case at the December term, 1862, contended that the court was bound by the ordinances of the convention to continue this cause.
    . WatKINs & Hose for appellee.
    In the court below, the defendant Hart, filed plea» of nil (lebei,
      payment and alien enemy, and also exceptions to the affidavit on which the attachment issued — the same being fatally defective according to Hillma/n c§ Go. vs. Fowler & Oo., decided at the present term.
    If the plea of alien enemy was bad, the application of the plaintiff for continuance, based on the ordinance of the convention was equally insufficient. That ordinance was a war measure, and there was no power in the convention to pass it.
    The plaintiff refusing to reply'or take issue to any of the pleas of defendant, the court below had no alternative but to enter judgment of dismissal, and the most favorable aspect of the case for plaintiffs below, is that they elected to take a voluntary non-suit, to which error will not lié. A case cannot be brought to this court by piecemeal. See Yell Governor v-s. Outlaw et al., 14 Ark., 621, citing Woodruff vs. The State, 2 Fkg., 333. All the pleas should have been disposed of. Mandel vs. Feet Sims efe Oo., 18 Ark., 248, and cases cited.
   Mr. Chief Justice Walkkb

delivered the opinion of the court.

This was an action of debt brought by the plaintiffs in the Pulaski circuit court by attachment; goods were attached, and third parties garnisheed.

The defendant appeared and filed pleas of nil debet and payment, and, at a subsequent term, his plea of alien enemy ; whereupon the plaintiffs moved the court to continue the case, because they (the plaintiffs) were alien enemies, which motion the court overruled. The plaintiffs excepted to the opinion of the court, and the record entry then says “ that the plaintiffs declined to reply to the defendant’s pleas, or to proceed any further in the case, on consideration whereof and on motion of the defendant, it is considered, ordered and adjudged by the court here, that said suit be, and the same is hereby dismissed, and that defendant go hence and recover his costs” etc.

From this judgment the plaintiffs appealed.

Upon a careful examination of the record, we find that the only questions remaining open for consideration are, the correctness of the decision of-the court in overruling the plaintiffs’motion to continue the case, and the final judgment rendered thereafter.

A motion for a continuance is addressed to the sound discretion of the court, and unless in cases where that discretion is grossly abused, this court will not attempt to control such discretion. Hunter vs. Gaines et al., 18 Ark., 92. Whatever consideration might, at the time the plea of alien enemy was interposed, have been given to it, under the assumption that the Confederate States was an independent and foreign government to the United States, there can be no question, at this time, but that the defence was wholly worthless, and the assumed right to continue the case wholly insufficient. The circuit court, therefore, did not err in refusing to grant a continuance of the cause.

The defendant, by peremptorily refusing to take issue upon the pleas of nil débet and payment, left those pleas confessed. The circuit court might well, under the state of case presented, have rendered judgment nil dieit for the defendant, or if the plaintiffs had desired to take the opinion of this court, upon the decision of the circuit court in refusing to continue the cause upon their motion, they should have taken issue upon the pleas, and proceeded to trial, and upon the final decision of the case have appealed. That the milder judgment was rendered dismissing the suit, is a matter of which the plaintiffs cannot complain. It was, in effect, such judgment as is provided for under the 19th section, Gould’s Dig., p. 851: That if the plaintiff shall fail to file his replication within the time prescribed, judgment of non pros. shall be rendered against him.”

Under this view of the case, the court below did not err in refusing to continue the cause, and on the refusal of the plaintiffs to respond to the defendant’s pleas, in rendering judgment dismissing the suit.

The plaintiff, by refusing to respond to the defendant’s pleas, in effect abandoned the prosecution of his suit, and forced upon the court the necessity of rendering such judgment against him, and then appealed from the judgment, which, if not rendered at his instance, was superinduced by his acts. When such is the case, no appeal lies from the judgment, as held by this court in the case of Yell, Gov. vs. Outlaw, 14 Ark. R., 624.

Let the appeal be dismissed.

Mr. Justice Olendenin did not sit in this case.


author: Mr. Chief Justice WalKBR

text:
    Knight vs. Sharp.
    Where the defendant charged the plaintiff with having “sworn a lie,” these words are not actionable in themselves, and do not, per se, impute a charge of perjury.
    To make them actionable it is necessary to state in the introductory part of the declaration, the special circumstances in reference to which they were spoken, and in connection with which they impute the crime of perjury.
    In framing a Beeond or subsequent count in Blander, for the same cause of action, unnecessary repetition of the same matter should be avoided; and it is sufficient to refer conoisely to the inducement in the first count. But unless such second or subsequent count expressly refers to the first count, no defect therein will be aided by the precedent count.
    A distinct cause of action in this case, consists not alone in the words spoken; but it is also necessary to connect them with some judicial or other legal proceeding, in which a valid oath was administered to the plaintiff; which, if false, would subject him to punishment for perjury.
    Where the declaration alleges that the defendant said, “ he ” (meaning the plaintiff,) “ swore a lie in that ease,” (meaning the said trial at law, and meaning that the said plaintiff had been and was guilty of perjury in giving false evidence upon his oath in said trial at law, before said justice of the peace,) this is no averment that there was a trial had before a justice of the peace, or that the plaintiff had been sworn as a witness on such trial.
    It is not the office of an innuendo to Bupply the place of an averment: but it is simply explanatory of an averment previously made.

      The defects in the count in this case, being in the cause of action, and not in the manner of stating it, are not cured by verdict.
    But where the defendant filed a special plea of justification, in which he sets forth all the material facts omitted in the declaration, and issue was made up, the defects in the declaration were supplied, and verdict for the plaintiff will not be set aside.
    where the evidence is not brought to the knowledge of this court, the court will presume in favor of the verdict, that there was testimony to authorize it.
    In such case every presumption is to be indulged in favor of the decision of the circuit court, and of its instructions to the jury.

      Ajypeal from Gross Oirmit Oourt.

    Hon, James M. Hanics, Circuit Judge.
    Pike & Adams, and Albeet Pike & Son, for plaintiff in error.
    The plaintiff insists tHat there is error in the proceedings and judgment in this cause, in these:
    1st. That the third count in the declaration upon which the verdict was rendered, is not sufficient to support the verdict, as it is manifest from that count that it was intended to urge that the slanderous words charged, if spoken at all, were spoken with reference to some judicial proceeding; yet that proceeding is not set forth in the count, nor is it therein stated that the case was before any court, or judicial officer having jurisdiction of the case spoken of, or that the defendant in error was sworn as a witness in the case, or that he testified, or that his testimony was material to the issue; and as to these, it is not helped by any former count, there being therein no proper reference to such, unless it shall be holden that the words, in said third count, “ in the trial at law aforesaid” and “ before said justice of the peace,” do help it.
    2d. That the instructions given by the court, in said cause for the plaintiff, no matter what may have been the testimony, were calculated to mislead the jury; and especially the first and seventh instructions, which, as applicable to said third count, are positively in contravention of the law, the words as laid in said third count,, not being actionable per se.

      The innuendoes in a declaration in slander should be warranted by thq previous allegations. 8tucker vs. Davis, 8 BVchfd., 414.
    The words “ she swore falsely,” do not of themselves impute a charge of perjury. The words, in order to make them actionable, must be averred to have been spoken with reference to a judicial oath, and to have been meant as a charge of perjury; and the colloquium which sets forth.thé oath to which the conversation relates, must be proved before the plaintiff can show a right to recover. Burger vs. Barger, 18 Penn. State B., (6 Harris) 489. How can it be proved, if not averred? See also Boberison vs. Lea, 1 Stew., 141; Finer vs. Miller, 2 McOord, 220; Stafford vs. Oreen, 1 J. B.. 505; Ward vs, Olarlc, 2 J. B., 10; Packer vs. Spangler, 2 Bmn., 60; Sheeley vs. Biggs, 2 H.<& J., 363; Martin vs. Milton, 4 Bibb, 99; Bl\ss vs. Toby, 2 Pick., 320; Carter vs. Andrews, 16 Pick,., 1; Hopkins vs. Be\dle, 1 Gaiys B., 348 and note a; Phintye vs. Vaniglm, 12 Barbour, 216; Edgerlty vs. Swan. 32 N. H, 478; Holton vs. Muzzy, 30 Vermont, (1 Shaw) 365; Gumonius vs. Butler, 3 Blackford, 190; and see McOough vs. Bhodes, 7 Lng., 629.
    If the words themselves are set out, and are only actionable by relation to some extrinsic matter, or fact, it is necessary to state that fact by way of inducement, and then aver distinctly, that the discourse was of and concerning that fact. Fo^le vs. Bobins, ¡Mass., 487; Bl^ss vs. Tjbj^, 2 Pick., 320; Gan'ter vs. Andersen, 16 Pick., 1; Gomnnonwealth vs. Snelling, 15 Pick., 321. Nor will the want of such averment be aided by verdict. 16 Pick., 1.
    The count should have averred that the justice had jurisdiction of the case, yet neither the third nor any other count in the declaration does this, or that the testimony given, if any, was material to the issue, both these facts being necessary parts of perjury, without either, no perjury could have been committed. Perjury cannot be committed in a case of which the court had not jurisdiction. State vs. Alexander, 4 Hawks, 182; State vs. Hayward, 1" H. <& M., 546; State vs. McOaoskey, 3 McGord, 308; State vs. Hyatt, 2 Hatfw., 56; State vs. White, 8 Pick., 453. Nor can perjury be assigned upon an extra-judicial oath. Pegram vs. Stysor, 1 Bailey, 595; The State vs. Fwrlong, 13 Shepley, (26 Maine) 69; Mrner vs. The State, 8 BlaoFfd., 154; Ward vs. Qlcurk, 2 J. Pi,., 10; Jones vs. Moses, 11 Humph., 608; Sanford vs. Gaddis, '13 111., 320; Gills vs. Tucker, 2 A. K. Ma/rsh., 219; Vaughn vs. Havens, 8 J. B., 109; Watson vs. Hampton, 21 Bill, 319; Shafer vs. Kitzen, 11 Birm., 537. The statements that the trial “ was taken and had in due form of law,” and that the justice then and there had sufficient and competent power and authority to administer the oath, do not show that the justice had jurisdiction of the case.
    Where a declaration for slander contains several counts, each setting forth distinct and separate slander, each count must be perfect in itself, and the omission of a material statement in one count cannot be supplied by reference therein to another. Hol-ten vs. Muzzy, 30 Vermont, (Shaw,) 365.
    As before stated, the general tendency of the instructions given by the court was, to mislead the jury, assuming as they do, material and necessary facts, which are not averred, and could not have been proven, without permitting an error equally grave; and which, as there was no motion for new trial upon the ground of the admission of improper testimony, it is fair to presume were in fact not proven.
    It will at once be perceived that the instructions of the court, especially the first and seventh, directly tend to exclude from the consideration of the jury, qualifying expressions used by the defendant in connection with the words charged, and

      Aotiondble words, used with qualifying expressions, so as not to impute a charge of felony, will not support an action for slander. Sheout vs. MoDonnel, Const. Reps., 25.
    Instructions calculated to mislead, or that do not present the case fairly in all respects should not be given. Belf vs. Bapp, 3 Walts & Serg., 21; Baxter vs. The People, 3 Gilma/n, 368; 6 Watts <& Serg.. 132; Beed vs. Graham, 7 Mon., 558; Hickman

      vs. Griffin, 6 Miss., 37; Brown vs. Clark, 14 Perm., (2 Ha/rris,) 469; Virginia B. B. Oo., vs. Banger, 15 Gratt., 230.
    If a fact material to the plaintiff’s' right of action is neither expressly stated, nor necessarily implied from facts which are stated, a verdict will not cure the defect, and judgment will be arrested. Welch vs. Bryan, 28 Miss., († Jones) 30; see also 16 Pick., 1.
    "Watkins & Rose for defendant.
    There was no motion for a new trial in this case, only a motion in arrest of judgment. TJnder motion to arrest no questions can be raised here on the instructions to jury. Stephens on PI., 94— 97; 2 N. c1b M, 312.
    By electing to rely alone on motion in arrest, the plaintiff in error abandoned any exceptions which might have been properly made the ground for a motion for a new trial. The motion for arrest may hare contained matter which would have been good on motion for a new trial, but if it was not good in arrest the ■ court did not err in overruling the motion. If otherwise, there is no use in any case for a motion for a new trial, and a motion in arrest will cover every conceivable ground of error. 12 Vermt. 619; B. M. Charlé., 518, (1 Ga.\) 4 Leigh, 672; id. 679; 2 Scam. 511.
    If there was any defect in the declaration it should have been met by demurrer. 2 Ark., 513; 5 id., 73.
    All exceptions not incorporated in a motion for new trial are waived. 4 Ark., 87; 20 id., 36; 22 id., 19.
    By motion in arrest it is admitted that thei’e is a verdict to which no objection can be made. Philpot vs. Page, 4 Barn. & Ores., 160.
    Judgment will not be arrested in an action of slander when there is a general verdict for the plaintiff and entire damages, because some of the counts are insufficient. 1 Boot, 483.
    Under our statute of jeofails the judgment cannot be stayed or arrested because the declaration omitted “any allegation or averment,” without which the jury ought not to have given a verdict. Gould’s Digest, oh. 133, seo. Í9.
    The bill of exceptions in this case does not set out the evidence or any part of it, nor the instructions given on the part of the defendant, nor on the motion of the court. If this case were here for error in overriding a motion for a new trial, doubtless the court would presume every thing in favor of the court below and affirm. Bach vs. Cook, 21 Ark., 571; 8 Ark., 430; 12 id. 638; 17 id., 530.
    The 3d count was good, even on demurrer, under sec. 2, chap. 161, Dig. The reasoning of the chief justice in McGough vs. Rhodes, 7 Eng., 629, merely means a judicial repeal of a very plain legislative act.
    The following authorities are referred to as to the sufficiency of the declaration : 3 Wend., 205; 4 Stew., cfo P., 224; 13 Johm,s., 48; 2 Eng., 125.
    The words charged were actionable, Dig., chap. 161; 3 Harrington, 77; 5 Johns., 188; 3 Hill, 572; 1 Humph., 506.
    A declaration in slander is good which sets out the substance of the words spoken merely. 17 Pick., 369; id., 269; 21 Pick., 51; 1 Port., 377; 8 Mass., 122; 2 McCord, 305; 1 Bmn., 393.
    The objections raised to the declaration in this case come too late after verdict. 19 Wend., 296; 4 Iredell, 461; 2 Blackford, 241; 1 Doug., 67; 2 Humph., 434; 8 Missouri, 512.
    The instruction's on the part of plaintiff below were properly given. See 13 Verm., 42; 14, id., 462; 1 Mis. 197; 7 Black., 83; 15 Mass., 48; 3 Dama, 138; 4 Beam., 30; 8 Humph., 34; 1 Pick., 1; 15 Mass., 48; 2 8. de R., 469; 3 Mass., 546; 18 Conn., 464; 2 Greenl. on Bv., 426; 7 Eng., 627; 3 Barb. Sup. Ct. R., 599; 3 Wend-, 205; 4 Stew. <& Pori., 224; 13 Pick., 364; 13 Wend., 9; 1 Blaokf. 330; 4 Port., 17; 8 Port., 486; 12 Ark., 629; 7 B. Mon., 475; 7 Ark., 12.
    If the words in the case at bar are not actionable per se, according to the decision in Sanderson vs. Hubbard, 14 Verm., 462, the declaration should have contained the averments that false swearing was in. a judicial proceeding, etc. But if the defendant justify and in his plea allege (as was done in this case) that the plaintiff was examined on oath, and in his testimony did knowingly and corruptly swear falsely, and a verdict pass for the plaintiff, the want of an innuendo and an averment that the plaintiff was sworn, is thereby cured and judgment will not be arrested. Sanderson vs. Hubbcvrd, 14 Verm., 462; see also Wood vs. Scott, 13 ib., 42.
   Mr. Chief Justice WalKBR

delivered the opinion of the court.

Sharp, the defendant in error, brought his action of slander in the Cross circuit court. The defendant in the court below, the plaintiff in error, appeared and filed a plea of not guilty, and a special plea of justification; upon which issues were taken and the cause submitted tó a jury, who having heard the evidence and instructions of the court rendered a verdict in favor of the plaintiff below, upon the 3d count in the declaration, and for the defendant upon the other counts, upon which final judgment was rendered in favor of the plaintiff for the sum of $1,500, the damages assessed, by the jury.

The defendant filed his motion in arrest of judgment, which was by the court .overruled, and has brought the case into this court by writ of error.

Two distinct grounds of error are presented:

First- — That the circuit court erred in the instructions given to the jury.

Second — That the third count, upon which the j udgment was rendered, is fatally defective.

The most important question to be determined is as to the sufficiency of the 3d count in the declaration. The plaintiff was charged with having “sworn a lie.” These words are not actionable per se, and do not in themselves import a charge of perjury; and when such is the case, it is necessary to state in the introductory part of the declaration the special circumstances in reference to which the slanderous words were spoken, and in connection with which they impute the crime of perjury. 1 Starkie on Slander, page 391. This the pleader attempted to do. in the first count of the declaration in this case, but whether sufficiently or not, from the view which we take of the 3d count, it is not necessary for us to determine.

In the 3d count no attempt was made to set out the circumstances in reference to which the slanderous words were spoken ; nor indeed is it usual to do so. Mr. Chitty says : “In framing a second or subsequent count for the same cause of action, unnecessary repetition of the same matter should be avoided, and that it is sufficient to refer concisely to the inducement in the first count. But unless the second count expressly refers to the first count, no defect therein will be aided by the precedent count. 1 Ohit. PI., 413. .

It is a rule that each count must be perfect in itself, and set forth a distinct cause oí action. A distinct cause of action for such slanderous words as are in this count averred, consists not alone in the words spoken, but it is also necessary to connect them with some judicial or other legal proceeding, in which a valid oath was administered to the plaintiff — an oath which, if false, would subject him to punishment for perjury. By referring in the second count to the inducement set forth in the first, it is considered as fully as part of that count as if incorporated in it. But unless so referred to, it becomes no part of the second count, and in an action, such as this, the count is fatally defective. The brief sentence found in the form books, and used for this purpose, is wanting in the 3d count. It is not averred that the words spoken were “of and concerning said trial,” alluding to the trial set forth fully in the first count. The only reference, any where in the 3d count to a trial or a judicial proceeding, is an innuendo found in the following terms and connection: “He (meaning the plaintiff) swore a lie in that case (meaning the said trial at law, and meaning that the said plaintiff had been and was guilty of perjury in giving false evidence upon his oath in said trial at law, before said justice of the peace.”) This is no averment that there was a trial had before a justice of the peace, or that the plaintiff had been sworn as a witness in such trial. It is not the office of an innuendo to supply the place of an aver-ment, to state the existence of a fact, but simply explanatory of an averment previously made. Mr. Ohitty says: “It serves to point out where there is precedent matter, but never for a new charge.” 1 Ohitty PI., page 407. The 3d count is, therefore, fatally defective in this respect. It .simply charges the defendant with having spoken words which are not in themselves actionable.

Fully recognizing the rule that, after a trial and verdict for 'the plaintiff, every intendment will be made in favor,of the declaration upon the state of facts pleaded, we feel confident that the defect in this instance is not embraced within such rule, but is of that class of defects which affect the cause of action itself, not the manner of stating the cause of action. - Lord MaNSeield says: “That a verdict cures a title defectively stated, but not a defective-title.” Chancellor KeNT, in 17 John. P., 448," says: “If any thing essential to the plaintiff’s action be not set forth, though the verdict be for him, he cannot have judgment, because if the essential parts of the declaration be not put in issue, the verdict can have no relation to it.”

The presumptions in favor of the declaration must arise upon that which is stated in it, as, for instance, in the case before us, it was necessary to aver that in some legal proceeding the plaintiff had been sworn and given evidence. This was a necessary averment to fix liability upon the defendant. No presumptions could be indulged in support of the judgment, that there was proof before the jury that such legal proceedings were had. But if they had been stated, but the manner of swearing the plaintiff, who was called as a witness in the case, had been omitted, after verdict, the presumption that sufficient proof upon that point had been given, might well be indulged.

The question as to what defects in pleading are cured, and what are not cured by verdict, was considered at great length in the case of Sevier vs. Holliday, 2 Ark. Rep., and fully sustains. the conclusion at which we have arrived in this case, which is, that the defect in the 3d count is not such as is cured by verdict;

It is insisted by counsel that, admitting the 3d count to be defective, such defect is cured by the defendant’s special plea of justification, in which he has set forth fully all the material facts omitted in the 3d count, and that the defects being thus supplied, the verdict and j udgment should not be set aside. '

As this question has not, heretofore, been presented tor our consideration, we have given it a careful consideration. The American decisions, which hold that the defects in the declaration are aided after verdict by the averment in the special plea, seem to have been made upon the authority of an early English decision, reported: Drake vs. Corderoy, Croke Cas. 288. In that case, the slanderous words charged were: “He (innuendo, plaintiff,) is foresworn,” without referring to any judicial proceeding, or oath administered. The defendant justified, showing the oath which he made in the open sessions, and that it was false, upon which justification issue was taken, which was found and judgment for plaintiff.

“It was assigned for error that the words were not actionable, “ because he doth not say in the declaration that he was foresworn “ by his oath taken in any court. And to say, generally, that “ the plaintiff is foresworn, an action does not lie, but to say he is perjured an action lies.

But all the court held that if there was any doubt, it was “ upon the declaration, which was uncertain because he doth not show that the words included a false oath in a court of record. “ Tet when the defendant by his plea confesseth that he spoke “ those words by reason of his oath taken at the sessions,- that- “ clears the question whereof he intended to speak. "Wherefore the judgment was affirmed.”

In the case of Vaughan vs. Havens, 8 Johns., R. 109, Spenceb J., who delivered the opinion of the court, referred to Drake vs. Corderoy, and approved the decision in that case. In Wood vs. Scott, 13 Verm. R., 42, Redeield J., upon the authority of the above cases, said: “But when a case, where on exceptions the entire case is before the court, and it is our duty to look into the record, we there find that the defendant pleaded in bar the truth of the words spoken, and therein defined the sense in which he used them. He says, that the plaintiff, in his testimony, on the occasion set forth in the declaration, had knowingly and willfully sworn false, thereby committing willful and corruptjperjury, and therefore he spoke the words, as well he might,” and held the defect in the declaration cured by the plea.

It may be well to remark that in the case of Wood vs. Scott, the omission in the declaration held to be cured by the plea, was not for want of an averment of the circumstances under which the alleged false swearing took place, but for the want of a proper innuendo. But we apprehend that it is not the less an authority in point, upon principle ; and particularly as Drake vs. Corderoy and Vaughan vs. Havens are cited as authority.

In the case of Smith vs. The Eastern Rail Road, 35 N. Hamp. Rep., 356, it was held that “ if the facts stated in the plea be such as necessarily to imply, and the issue joined be such as necessarily to require on the trial, proof of the facts imperfectly stated, or omitted in the declaration, and without which it is not to be presumed that the jury would have found the verdict rendered, the judgment will not be arrested on account of such omission.”

In the case now under consideration, the special plea of the defendant in the court below, contains all of the facts in reference to which the words were spoken, and which should have been averred in the declaration, and in reference to which the colloquium was had. They were all put in issue by the replication to the plea, and it became necessary and proper to introduce evidence under such issue. We have not the evidence before us, and therefore cannot say what the proof was ; but in the absence of it, we must presume, in favor of the verdict, that such evidence was before the jury, and when taken in connection with the other evidence in the case, sustained the verdict rendered.

We must therefore hold that, notwithstanding the declaration was so defective as to present no issue under which competent evidence might have been introduced, yet inasmuch as the defendant, by his special plea of justification, supplied such omission, in so far that under it competent evidence could legally have been introduced, the verdict of the jury may have been, and as we must presume in favor of the verdict, was found upon sufficient evidence to warrant the verdict and the judgment thereon.

The remaining ground of objection to the verdict and judgment is, that the circuit court erred in giving instructions to the j ury by which they were misled in making their verdict.

The counsel for the plaintiff in error insists that the instructions were calculated to mislead the jury under any conceivable state of evidence, and that when such is the case, even when the evidence is not before us, such erroneous instructions should be looked info and corrected.

We have carefully looked into the instructions, and when taken all together, they are not so palpably defective, that in the absence of the evidence given to the jury, we could undertake to say that they were erroneous. In a case like the present every presumption is to be indulged in favor of the decision of the circuit court, who heard all of the evidence, and whose duty it was to instruct the jury.

In view of the whole case as presented to us, we are of opinion that the circuit did not err in overruling the defendant’s motion in arrest of judgment.

Judgment affirmed.


author: Mr. Chief Justice 'WalKee

text:
    McDonald vs. Smith Adm’r.
    "Where the plaintiff brings an ordinary action of debt by petition, and has a writ of summons issued against the three defendants, and the writ is returned without service on two of the defendants, he cannot afterwards file an affidavit and bond in the same suit, and sue out an attachment against the two defendants who have not been served.
    And where, in such case, the two defendants against whom the attachment was issued, pleaded in abatement of the writ and declaration the above irregularities, and were discharged, the effect of this judgment was to quash, not only the writ of attachment, but the entire proceedings. (Edmondson vs. Carnall, 1'J Arh., 284,) and all the defendants should have been discharged.

      Appeal from Jackson Gireuit Court.

    Hon. L. L. Mack Circuit Judge.
    WatKINS & Kobe, for appellant.
    The judgment on the plea in abatement of Logan and Bell should have quashed the entire suit, and discharged McDonald as well as the other defendants. Edmondson vs. Carnal, 11 Ark., 284; 9 Ark., 159.
    If not, the summons clause in the attachment was good, (Hatheway vs. Jones, 20 Ark., 111.) And a discontinuance as to Bell and Logan was a discontinuance also as to McDonald. Frazier vs. State Bank, 4 Ark., 509, 546 ; 5 Ark., 140 ; 6 Ark., 92 ; 8 Ark., 456; 18 Ark., 361.
    Stillwell & Wassell, for appellee.
    The suit was pending against all three of the makers of the notes, but service had upon one, and surely the unauthorized act of issuing a writ of attachment against the other two, could not affect the proceeding, valid and regular in all respects, already pending. The writ was utterly void, and its service apon Bell and Logan did not bring them before the court, and it was so adjudged.
    Before the judgment, the suit was discontinued as to Bell and Logan, and it is sought to bring their case within the rule, that where there are several defendants served, the plaintiff cannot discontinue as to one without discontinuing as to all. But it is submitted that this cannot be done. The defendants, Bell and Logan, not having been served with the summons, and the writ of attachment being void, they must be considered as never having been before the court, and no matter how erroneous the ruling of the court' may have been' as respects the pleas of Bell and •Logan, McDonald was not prejudiced and could not be heard to complain in this court. He stood just as if no writ of attachment had been issued.
   Mr. Chief Justice 'WalKee

delivered the opinion of the court.

On the 21st day of September, 1865, James S. Smith as the administrator of the estate of Pleasant G. Davenport, filed his petition in debt, in the circuit court clerk’s office, of Jackson county, against William M. Bell, Alexander LI. Logan and Alvin McDonald, upon which a summons was issued returnable to the October term, 1865, of said court, which as appears, was duly served upon the defendant McDonald, and returned not served upon the other defendants. Afterwards, on the 16th day of November, 1865, without filing an additional declaration, the plaintiff filed his affidavit stating therein that all of the defendants were indebted to him as such administrator in the sum of $5,139.-66, and that defendants, Bell and Logan, were non-residents of the state of Arkansas. Afterwards, on the 27th day of November, 1865, an attachment bond in the usual form was filed in said clerk’s office, in favor of Bell and Logan, two of the defendants,' reciting in the condition that plaintiff had brought his suit by petition in debt against Bell, Logan and McDonald, and that Bell and Logan had not been served with process, and are non-residents of the state, and that plaintiff was about to sue out a writ of attachment returnable to the April term, 1866, against Bell and Logan.

It further appears from the record that on the 27th day of November, the day on which the bond was so filed, a writ of attachment was issued from said clerk’s office, returnable to the April term of said court, which writ was executed by attaching the property of the defendants, and also by personal service upon Bell and Logan.

At the return term Logan appeared and filed four pleas in abatement, in substance : 1st. That no declaration was filed before the filing of the affidavit for an attachment. 2d. That at the time the declaration was filed, there was no bond filed as required by the statute. 3d. That at the time of suing out the writ of attachment, there was then depending and undetermined, a suit against the defendant upon the same cause of action. 4th. That the writ of attachment was sued out without plaintiffs having filed a declaration. Each of these pleas concluded with a prayer of j udgment of the writ and declaration and that they be quashed. Replications were filed to each of these pleas, to which demurrers were sustained, and the plaintiff declining to answer further, judgment was rendered by the court upon the defendant’s plea, and that the writ be quashed and the defendant go hence, etc. Bell also filed similar pleas, upon which a like judgment was rendered.

The defendant, McDonald, who had been jointly sued with Bell and Logan, and who had interposed several pleas in bar, moved the court to render final judgment upon the writ and declaration, and that he also might go hence with the other defendants, but the court' overruled the motion; and the proceedings m rem having been disposed of, proceeded to discontinue the action as to Bell and Logan, and upon trial rendered final judgment against McDonald, from which he appealed to this court.

It becomes unnecessary to consider, at length, the manifest error in suing out a writ of attachment against part of the defendants in an action commenced by summons, after the return of the original writ, and after service upon one of the defendants, because the several pleas in abatement were held sufficient and judgment was rendered in favor of the defendants, who interposed such pleas. Each of the pleas concluded with a prayer of judgment upon the writ and declaration, and that the same be quashed. And the question is, whether the judgment of the court should not have conformed to the prayer of the pleas, and have quashed both the'writ and the declaration, instead of the writ only. That such should have been the judgment of the court has been settled by this court, first, in Childers vs. Fowler, 9 Ark., followed by Edmonson vs. Carnall, 17 Ark., and still more recently in Hillman et al. vs. Fowler, decided at the last December term of the court.

The defendants, Bell and Logan, do not complain of the decision of the court; they were discharged, and the remaining question is as to whether McDonald, who had filed pleas in bar of the action, and was not a party to the writ, nor to the pleas in abatement, but who was a party to the declaration, can avail himself of the defence set up by his co-defendants.

If the prayer of the pleas had only been that the writ be quashed, there would be much reason to hold that McDonald could not avail himself of the benefit of such judgment; because he was in court upon a valid writ, and ha!d pleaded in bar to the action. "We may despair of finding any case decided under proceedings like the present, for it is but barely possible that any case like it ever occurred before.

As a general rule, any defence in bar of the action, successfully made by one of several defendants, enures to the benefit of all of them. And in case one of several defendants should demur to the declaration, if it be adjudged insufficient, all of the defendants are discharged from answering it; and by analogy, it would seem that a plea which questions the sufficiency of the writ and declaration, if sustained, would so effectually defeat the action as to release all of the defendants from answering it. In other words, it defeats the whole action; a declaration quashed, is no declaration, is not demurrable, and all the parties are discharged from answering it.

The counsel for the appellee contend that the writ of attachment was a mere nullity, absolutely void, and that no decision upon it could 'affect the liability of McDonald. Although the writ was irregularly issued, and certainly voidable, yet we cannot say that it was absolutely void, The writ was upon its face regular and formal, and was issued upon a proper affidavit. But in order to make the proceeding by attachment valid, the declaration and the bond are both prerequisites to the issuance of the writ, and a lack of either is fatal to the proceeding; yet the proceeding, for lack of any one of these, we have held to be voidable, not absolutely void, as in the case of Edmonson vs. Carnall, 17 Ark., 284.

So far as regards the attachment clause of the writ, we must hold it irregular, and perhaps without precedent, but the summons clause in the writ was formal and regular. A writ had been issued, and one only of three defendants had been served with process, the return day had passed, and the plaintiff had a right to an alias summons against the defendants, Bell and Logan. The summons was served upon them and they were required to appear, and thus all three of the defendants were brought before the court. They were required to defend, or judgment by default might have been rendered against them. Because the attachment clause in the writ was irregular, it would not necessarily affect the validity of the summons clause under which the defendants were required to appear. Defendants, Bell and Logan, did appear and defend. Their plea put in issue the legality of the whole proceeding, and asked the judgment of the court upon it, and that the writ and declaration be quashed.

By the judgment rendered the writ was quashed, and the defendants, Bell and Logan, were discharged.

Now if this proceeding m rem was a mere “ excrescence,” as aaid by the counsel for the appellees, and absolutely void, it was irregular to render any judgment upon it, and tbe defendants, Bell and Logan, would not be discharged thereby, but having been served with process and having appeared in court and plead, were parties in court; and when such is the case, a discontinuance as to them, as was subsequently ordered, was a discontinuance of tbe whole action. But if, on the other hand, the issues upon the pleas in abatement were properly before the court, and proper subjects tor its consideration (as we think they were,) then the judgment should have been in accordance with the prayer of the pleas, have been that both the writ and declaration be quashed.

The only question remaining to be considered is, as to whether, when the writ and declaration were so quashed at the instance of p'art of the defendants, there was anything remaining for the other' defendant to answer. "W e think not. The pleas did not go simply to the personal discharge of two of the defendants, but to the writ and declaration — the foundation. When these were disposed of, as we have seen they should have been by the judgment of the court, there was no foundation left upon which to base the action. McDonald had nothing to answer, and should have been discharged.

The objection was well taken upon the motion in arrest of judgment, which the court below erred in overruling; and for this error the judgment must be reversed, and the cause remanded that final judgment upon the pleas in abatement may be entered, quashing the writ and declaration and discharging all of the defendants.


author: Mr. Justice Compton

text:
    Brown vs. State.
    The party against whom a witness is called has the right to have him put on his voire dire in order to show his incompetency.
    But the correct practice is for the party to state the object and ground of the application, so that the court may determine as to the propriety of entering upon the investigation.
    Where such grounds are not stated, the presumption in this court must be that the application was not warranted by law.
    The fact that the witness is an accomplice of the defendant, does not affect his competency.
    The credit of a witness may be impeached by proof that he has made statements out of court, on the same subject, contrary to what he swears on the trial, provided the alleged statements are material to the issue; and provided also that the-witness has undergone a previous cross-examination as to such statements, in which, if the statements were verbal, his attention was not only called to the particulars of the conversation, but also to the time, place and person involved in the supposed contradiction.
    But where the record fails to show what the statements were which are alleged to be contradictory, the presumption is that they were properly rejected.
    One co-defendant in an indictment still pending against him, cannot be a witness for his co-defendant. (Moss 'vs. State, 17 ArTc., 327.)
    In a prosecution fer felony, the recerd must affirmatively show that the defendant was personally present at each and every time when any step is taken by the court in his cause.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Whytock, for the appellant.
    I. The record does not show that the prisoner was present in court, personally, at the time the writ of venire facias for the trial of this case was issued. Pig. sec. 166, p. 416; Sweedm vs. The State, 19 Ark., 205; 4 Bl. Com., 318; 1 Oh, Or. L., 337; Wwrem vs. The State, 19 Ark,, 214.

      II. The court erred in refusing to permit Greer, the accomplice and co-defendant in the indictment, who was discharged therefrom by the entry of nol. pros., to be sworn upon his voir dire. The right to swear a witness upon his voir dire clearly belongs to the party objecting to his testimony. Foley vs. Mason, 6 Md., 37. That an accomplice may be competent as a witness, is not denied; but he should be properly apprised of the condition in which he stands; that the effect of a nol. pros, is not to discharge him from liability, but if he spoke fully and truly, to give him an equitable title to a pardon. 1 Sta/rk. Ev., 143;-2 id., Title, accomplice-, Dabney's case, 1 Robinson, 696; People vs. Whipple, 9 Oowen, 707. It is true, as an abstract proposition, that a promise of pardon will not render an accomplice incompetent. But we submit, a witness sought to be introduced by the prosecution to show the guilt of the defendant, by disclosing acts and circumstances and crimes which he avows himself to have committed in concert and connection with the defendant, may have been so worked upon, so influenced, so instructed as to elevate the test from credibility to competency. If he was induced to believe, and did believe that, by giving testimony against his co-defendants, by making of admitting himself to be, an accomplice in the commission of the crime charged, he would be relieved from any liability to answer; if he had been induced to testify upon the assurance of a discharge in case of the conviction of co-defendants. Then we think he was incompetent to testify until apprised of the consequences and condition in which he would be placed.
    III. The court erred in refusing to permit the defendant to exam- ■ ine the state’s witness, Greer, as to statements made by him voluntarily, after he was arrested, and to examine -him as to the manner of his arrest, the manner of his treatment after arrest, and the inducements held out to him to testify, for the purpose of attacking his credibility, by laying a foundation for contradicting him, if he spoke falsely, by showing that he had made different statements. as to the circumstances testified to. The party against whom a witness is produced has a right to show every thing which may in the slightest degree affect his credit. Oameron vs. Montgomery, 13 Serg. & R., 132; 1 Stark. Ev. 211; 2 Q-reenl. Bo., sec. 419; The Queen’s case, 2 B. <& B., 301. The defendant sought in this cross examination to lay the founda: tion for impeaching the witness which the law required. The abstract objection that the confessions were made while the prisoner was in-jail, or otherwise confined in a legal way, though for the very crime confessed, has never been recognized as an objection, but expressly denied. Rex vs. Barrington, 2 Gar. & P., 418; 1 Wheeler Or. Gas., 392; 4 Barr, 264; 11 Qa., 225. 22 Maine, 171; 20 Ala., 15; 23 ib. 38; 1 Stroth. (S. G.) 378; 9 Rich. {8. G.) 428; 5 Holst., 163,184; 14 Ark., 556; A fortiori, these statements might be given, where the witness was not on his trial, but was introduced to involve others in the crime.
    IY. The court erred in refusing to permit the defendant to introduce Roland for the purpose of contradicting and attacking the credibility of the witness Greer, by showing that he had made different statements as to these transactions and that he was endeavoring to engage persons in a conspiracy to implicate others in the commission of the crime with which he was charged.
    Y. The court erred in refusing to permit the defendant to introduce the testimony of Adolph Managin, included in the indictment, to show that the defendant was not present and had nothing to do with the murder charged. It is with some delicacy that this proposition1 is submitted to the court; because it involves the necessity of reviewing, to some extent, the decision of the court in Moss vs. The State, Í7 Ark., 327. But we think that when the trial of several defendants, jointly indicted, has been severed under the statute, {Dig. Cr. Pro. seo. 179,) one has no such interest in the result of the trial of the other as would disqualify him from being a witness — the acquittal or conviction of the one cannot affect the trial of the other, except perhaps consequentially. 2 Hale-P. G., 280; 1 Stark. Ev. 13 and nr, ü. S. vs. Henry, 4 W. O. O. R., 228; Maffit vs. The State, 2 Humph., 90; Ma/rshall

      vs. The State, 8 Inch., 488; Hunt vs. The State, 10 Ini., 69; Garrett vs. The State, 6 Mo., 1. If a person is made incompetent as a witness for another by being jointly indicted with him, then may the latter, by design, be deprived of his most necessary and important witness.
    Mr. Attorney General Joed AN, for the state.
    The court below did not err in refusing to permit the defendant to cross-examine Greer, as to his voluntary statements, the manner of his arrest and the inducements held out to him to testify, that the'defendant might by such examination attack the credibility of the witness. It was proper for the court to refuse to let the witness be questioned on cross-examination with regard to matters not referred to either in whole or in part in the direct examination. Grem’l. Iv., Vol. 1, see. 445; Poscoe’s Or. Evidence, 130, note 1; United States Digest, vol. 23, 602.
    That the witness cannot be cross-examined as to any matter, which (if admitted) would be collateral and wholly irrelevant to the matters at issue lor the purpose of contradicting him, see Greenl. Evidence, vol. 1, see. 449; Chitty’s Practice, vol. 3, 900; Archbold’s Practice dk Pleading, vol. 1, 578.
    Before witness Biland could be introduced to testify as to the statements of witness Greer, made off the stand, relative to his voluntary statements, manner of arrest, etc., the witness Greer must first have been examined as to such statements. Wharton’s A. Or. Law, vol., 1, 819.
    The declarations of a-witness made on the stand are inadmissible to contradict him unless his attention has been first called to such declarations. See United States Digest, vol. 23, 603 and cases there cited.

    ■ That the court did not err in refusing to permit Adolph Flana-gin, an accomplice and co-defendant to be introduced as a witness for defendant, see Wharton’s A. Or. Law, vol A, 790; Green’ls Evidence, lsi vol. 379; Moss vs. The State, 17 Ark, 327.
   Mr. Justice Compton

delivered the opinion of the court.

Simpson Brown — a colored person — was convicted, in the ' Pulaski circuit court, of murder in the first degree, and sentenced to be hanged. He moved for a new trial, which was overruled, aud the case now comes before the court for consideration.

It is insisted by the counsel for .the accused, that the court below erred in refusing to permit the witness, Washington Greer, who was an accomplice, to be sworn upon his voir dire. That the party against whom a witness is called, is entitled ,to have him put on his voir dire, in order to show his incompetency, is not denied. The correct practice, however, is to state the object and ground of the application, so that the court may determine as to the propriety of entering upon the investigation. The bill of exceptions merely states that it was asked that the witness be put on his vow dAre” without showing for what purpose, or why it was proposed so to examine him; and upon this state of case, the presumption must be, that the application was not warranted by law, and that the ruling of the court was correct. The fact that the witness was an accomplice, did not affect his competency; and if, as intimated in the argument, this was one of the grounds upon which an examination on the voir dare was sought, it was not a good one, and but serves to illustrate the rule above indicated. It is admitted that if the object was, also, to show in competency, arising from defects of understanding, or of religious principle, and the court, after having been asked to do so, upon that ground, had refused to examine the witness, in the mode prescribed by law, touching the matter affecting his competency, such ruling would have been erroneous. But the bill of exceptions presents no such case; on the contrary, it contains no facts upon which we can decide whether or not there was error.

The next point relied on relates to the admissibility of evidence offered by the accused. The bill of exceptions, after showing that the witness, Greer, was interrogated as to what he had said on different occasions in regard to matters connected with the offence charged in the indictment, states as follows: “ Defendant then asked witness, on his cross-examination, as to further statements and admissions he had made after he was arrested, and to whom he had made them for the purpose of laying a foundation for contradicting him by other witnesses — which was objected to, and the objection sustained by the court.” It is, undoubtedly, true that the credit of a witness may be impeached by proof that he has made statements out of court on the same subject, contrary to what he swears at the trial, provided the alleged statements are material to the issue; and provided, also, that the witness has undergone a previous cross-examition as to such statements, in which, if the statements are verbal, his attention was not only called to the particulars of the conversation, but, in which, he was also asked as .to the time, place and person involved in the supposed contradiction. But whether, in the case before us, “the statements and admissions” bf the witness were admissible as laying a foundation to contradict him, or for any other purpose, we have no means of ascertaining, since the bill of exceptions does not show, as it should, what those “statements and admissions’ were; and the presumption, therefore, is, that they were properly rejected. In Whitesides vs. Twitty, 8 Ired., 431, where the bill of exceptions stated that “ the declarations” of a party were offered in evidence, to show the consideration” of a note, it was held that no question was presented for the consideration of the court, as it did not appear what the declarations of the party were. BuffiN, O. J., in delivering the opinion of the court, lays down the law so clearly and concisely that we quote his remarks as applicable to this case. Ho says: “ From the nature of a bill of exceptions, as has been frequently declared by this court, it is incumbent on the party excepting, when the error alleged consists in rejecting evidence, to show distinctly in it, what the evidence was, in order that its relevancy may appear, and that it may be seen, that a prejudice has arisen to him from the rejection. In like manner, when the alleged error consists in admitting evidence, the exception must set forth the evidence actually given, as it is the only means whereby the court can ascertain whether or not the admission did, or might have done, the party a harm. For verdicts and judgments are presumed to be right, and according to law and j ustice, until the contrary be shown; as the bill of exceptions is required to state all the facts necessary to show the error clearly, since the party excepting is presumed to state the case as strongly against the other party and for himself, as he can, consistently with the truth.” In Styles vs. Gray, 10 Texas 503, the bill of exceptions showed “ that the defendant offered evidence to attack the correctness of the surveyor’s record, and to show traud in the dates of the location and survey of Ann Gray, which was ruled out by the court,” and it was held that the bill of exceptions was too vague and uncertain, as to the character of the evidence by which the defendant sought to establish the fraud, to enable the court to say whether or not there was error in ruling it out. To the same effect are the cases of Carnal vs. The People, 1 Parker's Crim. Rep., 272; Fowler vs. Lee, 4 Munf., 373; and Gatewood vs. Burrus, 3 Call's Rep., 194.

The bill of exceptions also states that the counsel for the accused offered to examine the same witness “ as to the manner of his arrest, and the places in which, and the persons by whom he was held in custody after his arrest” — which the court refused to permit. "What the facts connected with the arrest and imprisonment of the witness were, we are not informed; and consequently, the objections we have just discussed, applies to the bill of exceptions in this particular.

• There was no error in excluding the testimony of the witness, Byland. lie was introduced to prove that the witness, Greer, had made statements at the jail, contrary to what he had sworn on the trial, without any foundation for the introduction of such testimony having been first laid, by an appropriate cross-examination of the witness sought to be impeached. Nor was there error in refusing to permit Adolph Flanagin to testify in behalf of the accused. He was a co-defendant in the indictment which was still pending against him, and for that reason was incompetent, according to the decision of this court in Moss vs. The State, 17 Ark., 327.

Without entering into a critical discussion of the charge given the jury by the court below, it is sufficient to remark, that, in view of the evidence adduced at the trial, and especially when taken in connection with the instructions given at the instance of the accused, it had no tendency, we think, in misleading the jury-

The remaining ground relied on for a reversal, is well taken. Upon examination, we find that the record does not show that the accused was personally present in court, at the time the venire facias for the trial of this case was ordered; and it 'has been repeatedly decided by this court that, in prosecutions for felony, the defendant must be personally present at each and every time when any step is taken by the court in his cause, and that the record must affirmatively show the fact. (Sweeden vs. The State, 19 Ark., 209; Sneed vs. The State, 5 Ark., 431; Cole vs. The State, 5 Eng., 518.) For this error the judgment must be reversed, and the cause remanded with instructions to the court below to grant the accused a new trial.


author: Mr. Justice ClendeniN

text:
    Hicks vs. Wilson.
    Where there is no exception to the decision of the court overruling a motion for new trial, the party making the motion will be regarded as acquiescing in the decision.

      Writ of Error to Marion Circuit Court.

    Hon. Elias HaRRell, Circuit Judge.
    GarlaND & Nash, for plaintiff.
   Mr. Justice ClendeniN

delivered the opinion of tbe court.

This is a writ of error to the circuit court of Marion county. The defendant in error, Wilson, brought his suit against the plaintiff in error before a justice of the peace. At the appearance of the parties, on motion of the defendant before the justice, the suit was dismissed, and Wilson appealed to the circuit court. In the circuit court, the case was submitted to the court sitting as a jury and judgment was given for the plaintiff, (Wilson.) The defendant moved for a new trial, which was overruled; and the defendant did not except to the ruling of the court.

The uniform doctrine of this court has been that where there has been no exception taken to a refusal of the court to granta new trial, the supreme court cannot revise the' decision on the motion, and the party making the motion will be regarded as •acquiescing. See Moss adm'r. vs. Smith, 19 Ark., 683.

The judgment of the circuit court is affirmed.


author: : Mr. J ustice CleNdeotN

text:
    Osborn vs. State.
    The 184th see., chap. 52, Gould[s Dig., providing that the judge ot the circuit court may remove a criminal cause to another county, is in violation of sec, 11, art. 2, of the constitution, which declares that in prosecutions by indictment or presentment, the accused has a right to a speedy public trial by an impartial jury of the county or district in which the crime may have been committed, and is therefore vgid.
    The counsel of a defendant indicted for a capital offence cannot, in the absence of the defendant, waive further time as to notice of copy of the indictment, or waive the presence of the accused when the venire is ordered. The counsel of the defendant cannot, in his absence, waive any of his legal and constitutional rights.

      Appeal from Pulaski Circuit Court.

    Hon. Libeety Bartlett, Circuit Judge.
    Shith and Gallagher & NewtoN, for appellant.
    The first point we submit to the court is whether or not, in view of section 11, of the bill of rights, a change of venue in a felony case can be .ordered on the motion of the court, without the application or consent of the accused; and we submit the point for the consideration of the court. The right provided for in the section of the bill of' rights above referred to has been considered of sufficientimportance to be guaranteed to the citizen by both the constitution of the United States and that ot the state. Is the showing made by the record in this case sufficient to deprive the prisoner of this right even though purporting to be for his benefit ?
    The record shows that the accused was arraigned without being served with a copy of the indictment for the time prescribed by law. The waiver by defendant’s counsel, without the personal presence of the accused, was certianly not sufficient, nor was the error cured by the counsel’s waiver of the prisoner’s presence. That the appellant ought to have been personally present during these proceedings cannot be doubted. Sweeden vs. The State, 19 Ark., 209, abundantly settles that point; and if his counsel could waive his presence then, he could also waive it at final trial..
    [Argued at length on the instructions.]
    Mr. Attorney General JokdaN for the state.
    That the court below had the right to change the venue in this case. See see. 134, chap. 52, Gould’s Dig., 412. As to the sufficiency of the order, Pleasant vs. The State, 16 Ark, 624.
   : Mr. J ustice CleNdeotN

delivered the opinion of the court.

George Osborn, the appellant, was indicted at the March term, 1856, of the circuit court of Saline county for the crime of murder. At the September term of the same court, he was arraigned, and standing mute a plea of not guilty was directed to be entered for ’him. He was tried at that term, and found guilty of murder in the second degree, and his punishment assessed by the jury at five years in the penitentiary. His counsel moved for a new trial, which was granted, and thereupon the court, of its own motion changed the venue of said trial from the county of Saline to the county of Pulaski. At the adjourned September term of Pulaski circuit court, the defendant was again put upon his trial, and the jury again found him guilty of murder in the second degree, and assessed his punishment at five years in the penitentiary, and thereupon his counsel moved for a new trial, and in arrest of judgment, which motion being overruled, the defendant excepted and having filed his bill of exceptions, prayed an appeal to this court, which was granted, and the record of this case from its inception in Saline county is thus before us.

. The first three assignments of error are general. The fourth is that “ the circuit court erred in changing the venue from Saline county when the appellant was not personally presentand the fifth is that “ the said record and proceedings are in other respects erroneous and defective.”

These assignments bring the case before us, and we propose disposing of the points as they are presented to us by the record, and by the argument of counsel.

The first point then made is, as to the action of the circuit court in changing the venue of this trial from the county of Saline to the county of Pulaski. It is insisted by the counsel of the appellant that the circuit court was not authorized by law to change the venue unless upon the application of the defendant.

To explain and decide the point thus made, it will be necessary for us to give the action of the circuit court, as shown by the record, the section of the statutes'of this state under which th'e court acted, and the provision of the constitution in which the rights of the defendant in this respect are asserted.

Immediately following the order made in Saline county granting a new trial, (and in which orderthe defendant is not shown to be present,) and as part of that order, we find the following-entry : “ Whereupon the court being satisfied from facts within the knowledge of his honor, the judge here presiding, that another trial of this cause could not be had within the county of Saline, with justice to the said defendant, it is ordered by the court that this trial cause be removed to the circuit court of Pulaski county'in this circuit, for trial, and that the clerk of this . court do, accordingly, -transmit to the clerk of said circuit court •of Pulaski .county a full transcript duly certified of the record and proceedings of this court in this cause, and it is further ordered by the court that the sheriff of Saline county do remove the body of the said George Osborn to the jail of the county of-Pulaski, to which said county this cause is removed on change of venue as aforesaid, and there deliver him to the keeper of said jail, together with the warrant or process, or other authority, by virtue of which the said defendant is imprisoned and held.”

The provisions of the statute of this state, under which change of venue is granted in criminal cases, are as follows: (Digest, chapter 152.)

“Sec. 132. Any criminal cause pending in any circuit court, may be removed by the order of such court, or by the judge .thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants, of the county in which the cause is pending, are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.

“Sec. 133. Such order of removal shall be made on the application of the defendant, hy petition setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the attorney for the state, and the truth of the allegations in such petition be supported by the affidavit of some credible person.

“ Sec. 134. Whenever it shall be within the knowlegde of the court or judge, that facts exist which would entitle' the defendant to the removal of any criminal cause on his application, such court or judge may make an order for such removal, without any application by the party for that purpose.”

In the 11th section of the 2d article of the constitution of this state, under the title “ declaration of rights,” it is declared: “ That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel; to demand tire nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indict- • ment or presentment, a speedy public trial by an impartial jury of the county or district in which the crime may have been committed ; and shall not be compelled to give evidence against himself.”

We have.thus before us the order of the court, the law of ;the state, by virtue of which the order was made, and the section of the constitution as to the rights of the defendant; and the question is presented whether the 134th section gave to the circuit court authority to change the place of trial in this case.

We find by reference to the 6th article of the amendments to the constitution of the United States, substantially, the same declaration that we find in the section of our constitution, which we have copied. By the history of the constitution ot the United States we are informed that the bill of rights'was not made a part of that great instrument, by the wise and good men who perfected it, because, as they asserted, the constitution itself was a declaration of the rights of freemen ; but many objections being made, the declaration of rights was made part of the constitution by the amendment; and it is now substantially a part of the constitutions of most if not all the states of the union. In some of the states (New York and California — which we have examined,) the clause under consideration — the right to be “ tried in the county or district” — is not enumerated. It was that jealous spirit in behalf of the liberty and the rights of the people, that induced the early framers of our government to make that plain and explicit in the organic law, which otherwise might be doubtful, or left to different or adverse construction, and therefore they declared that a person changed with crime shall have, among other rights, the right to “ a speedy public trial by an impartial jury of the county or district in which the crime may have been committed.” This was a constitutional light of this defendant. Has it been granted to him? We think not. He is charged with the commission of a crime in the county of Saline, and without waiving his right by applying to the court for a change of venue, without being even in court when the order is made, we find by the record the case transferred for trial to the county of Pulaski, and the defendant there tried and convicted. This proceeding is, we believe, without precedent, and in our opinion without authority of law, and that the circuit court had no legal authority-to change the place of trial of the defendant from the county of Saline to the county of Pulaski, and that therefore all the proceedings in this case in the county of Pulaski are void.

In this connection, and as showing the views heretofore held by this court, in regard to the efficacy of the bill of rights, we refer to the case of Eason vs. The State, 11 Ark., 482, and to the able opinion of Mr. Justice Soott, in which he gives the following definition of the bill of rights. After reviewing the bill of rights, its office and its history, he says: Hence the correct definition of a bill of rights would seem to be, an instrument, which fixes limitations, as well upon the powers of the civil magistrate as upon the legislative department of the government, while at the same time it secures the civil and political rights and liberty of the citizen.”

It is further objected by the counsel of the appellant, that previous to his trial in Saline county, he was arraigned without having been served with a copy of the indictment for the time prescribed by law. The record entry in respect to this point is as follows: “ And on this day comes R. H. Headman, who prosecutes for the stale, and on his motion, it is ordered that a venire issue for thirty-eight good and lawful men of the county of Saline, returnable at 9 o’clock, A. M., Thursday next; and said defendant’s counsel waiving further time as to notice or copy of indictment, and also waived the presence of the defendant in court when said venire is ordered; and on the further motion of the prosecuting attorney, the defendant is brought into court and arraigned by having the indictment read to him, and said defendant stands mute, and by order of the court a plea of not guilty is entered herein.” By seetion 122, ehap. 62, Digest, it is prescribed that, “ It shall be the duty of the clerk of the court, in which an indictment against any person, for a capital offence, may be pending, whenever the defendant shall be in custody, to make out a copy of such indictment and cause the same to be delivered to the defendant or his counsel, at least forty-eight hours before he shall be arraigned on such indictment, but the defendant may, at his request, be arraigned and tried at any time after the service of such copy.” It appears affirmatively, by the record, that the defendant was not in court when his counsel waived “ further time as to notice and copy of the indictment, and also , waived the presence of defendant in court when the venire was ordered.” The counsel of the defendant cannot, in his absence, waive any of his legal and constitutional rights.

Our statute provides as follows: “ No indictment for a felony shall be tried, unless the defendant be personally present during the trial; nor shall any person indicted for an offence less than felony, be tried, unless he be present at the trial either personally or by his counsel.” Digest, see. 164, chap. 52. And this court, in construing this statute, on a point similar to the one we are now considering, say: “ We have said that it was absolutely necessary that the defendant should have been present “ during the trial” in the court below. The phrase, “during the trial,” used in the section of the law we have quoted, means that it is necessary that the defendant^ should be present in court, at each and every time, and on all occasions, at which, and when any substantive step is taken by the court in his cause, after the indictment is presented by the grand jury to the court, up to, and until final judgment (including that also,) is pronounced in his cause by the court, and even afterwards, if any subsequent step should be taken by his counsel.” Sweeden vs. The State, 19 Ark., 209: and see also Sneed vs. The State, 5 Ark., 431, and Cole vs. The State, 10 Ark., (5 English,) 318.

Keferring to the transcript, we find that the defendant was not present when the time for the service of a copy of the indictment was waived, nor was he present when the order for a venire was granted on the motion of the attorney for the state; and therefore he was not legally put upon his arraignment,-and that it was error in the court to proceed with the trial, until he was so legally arraigned.

This error we find, by inspection of the record, continues not only in the trial of this cause in Saline county, but also in the trial in Pulaski county, and even > if the case had been legally transferred to Pulaski, it would be a fatal defect and error there.

These two objections thus taken (and which occurred while the case was in Saline circuit court) being sustained, we deem it improper to review the case upon its merits, and decide upon the other points assigned for error, as we cannot do so without reviewing the testimony and instructions; and as this case will have to be tried again, we might possibly in some way influence that trial, and we therefore refrain from doing so.

For the reasons given in this opinion, and in the record there referred to, this case must be reversed with directions to the circuit court to remand the appellant, George Osborn, to Saline county, and there to cause him to be legally arraigned, and then to proceed with the case in accordance with law and this opinion.


author: Mr. Justice ComptoN

text:
    McKenzie vs. State.
    One of several defendants in an indictment still pending against him for the same offence, is not a competent witness for his co-defendant. {Moss vs. State, 11 Ark., Brown ns. State, ante.) But if a nolle prosequi has been entered as to him, his competency is restored; and the fact that he has been afterwards separately indicted for the same offence, will not render him incompetent.
    An accomplice who is not indicted is not a competent witness for the defendant {Brown vs. State, ante.)

    Where there is no- evidence in the transcript, either by entry of record or by endorsement upon the indictment, that the grand jury returned the indictment into court, the judgment against the defendant will be reversed. The endorsement, “filed in open court,” does not show that it was returned into the court by the grand jury, and is not sufficient.

      Appeal from Bcmdolph CvrouAt Oowrt.

    Hon. L. L. Mack, Circuit Judge.

      Wateots & Bose for appellant.
    A pariioeps erimmis is not an incompetent witness so long as be remains not convicted and sentenced for an infamous crime, if be has not been put on bis trial at the same time with bis companions in crime. 1 Greenl. on Ms., § 379.
    The entry of the nol.pros. as to Bremage discharged him from the record, and after that he.was a competent witness. Id., § 363.
    Winters was not indicted, and though it might be true that he was one of the party that rode up to Poston’s house and fired on him, yet the court erred in refusing to allow him to testify. Id., 379.
    There is no evidence in the transcript that the indictment was returned .into'court, as the statute requires. Gould's Dig., p. 405, see. 87; Wha/rt. Grim. Law, 181, and cases cited in notes g. r. Green vs. State, 19 Ark., 178; 7 ~Ehg., 62; 7 Humph. 155; S-Humph.,,3 Gilman, 71.
    Mr. Attorney General JORDAN for the state.
   Mr. Justice ComptoN

delivered the opinion of the court.

The appellant was convicted in the circuit court of Bandolph county of murder in the first degree, and was sentenced to be hanged. The motion of the appellant for a new trial was overruled, and he appealed to this court.

The record presents several questions, for our consideration, which we will proceed to determine in the order in which they have been argued in this court.

1. The bill of exceptions shows that the accused offered to introduce Jahu Bremage as a witness in his behalf, which the court refused to permit upon the ground that he was the identical person who, by the name of John Bremage, was jointly indicted with the accused, and as to whom a nolle proseguí was entered and against whom a separate indictment, for the same offence, was subsequently preferred, which then remained undetermined. This was error. It is true that it was decided by this court, in Moss vs. The State, 17 Ark., 327, and again, at the present term, in Brown vs. The State, that one of several defendants in an indictment, still pending against him for the same offence, is not a competent witness for his co-defendants, but such is not the question here presented. Bremage, as we have seen, had been discharged from the joint indictment, was-no longer a party to the record in that case, and the fact that he stood indicted separately for the same offence, did not disqualify him as a witness for the accused. Whar. Crim. Law, p. 303; United States vs. Henry, 4 Wash. Cir. Ct. Rep. 428; 1 Hale, p. 305, (in Marg.;) 1 Chit. Crim. Law, p. 603, (in Marg.)

2. The bill of exceptions also shows that the accused offered to introduce James 0. Winters as a witness, which the court refused to permit, because it was made to appear that he was an accomplice. In this the court also erred. This witness was not indicted at all, and his being an accomplice did not make him incompetent. Brown vs. The State decided at the present term See also authorities above cited.

3. There is no evidence in the transcript, either by an entry of record or by endorsement upon the indictment, thatthe grand jury returned the, indictment into court. This was held to be a good ground for reversal in Green vs. The State, 19 Ark., 178, and in Milam, vs. The State at the last term. In the case now before us, the endorsement upon the indictment by the clerk, “filed in open court, November 30, 1866,” does not show that the indictment was returned into court by the grand jury, or how it got there — it is evidence of the filing only — and in such case we are not allowed, as held in Green vs. The State, supra, to indulge -the presumption that it was returned by the grand jury.

For the errors indicated, the judgment must be reversed, and the cause remanded with instructions to the court below to grant the accused a new trial, if the record can be perfected — which may be done by making a rnmepro time entry, showing that the grand jury did in point of fact return the indictment into court as required by law, if such was the fact. But if the court below shall determine that the indictment was not returned into court by the grand jury, the accused will then be subject to indictment de novo, and may be held in custody for that purpose.