author: English, C. J. Eakin, J.

text:
    Wilson vs. The State.
    1. Indictment : For selling liquor near an academy, college, etc.

    An indictment for selling liquor within three miles of an academy, in violation of the act of March 2, 1875, is not defective for failing to allege that the academy is in the county in which the indictment was found, if it avers that the order of the county court prohibiting the sale within three miles of the designated academy, was made in compliance with the act. Nor need it allege that the order of the county court was made upon the petition of a majority of the adult residents of the township, if' it allege that the order was made in compliance with the statute.
    2. Same : Exceptions in statute.

    When an exception is not in the enacting clause of a statute, it need not. be negatived in the indictment: it is matter of defense.
    3. Liquok: Order of county court prohibiting sale of irrevocable : Subsequent license void.

    When the order is made, the power vested in the county court by the act. is exhausted, and it has no power to revoke the order upon a subsequent petition; and a subsequent license to sell liquor is no protection against, a prosecution for selling within the prohibited limits.

      APPEAL from Conway Circuit Court.
    Hon. W. I). Jacoway, Circuit Judge.
    Fletcher, for appellant.
    Basham,, contra.

   English, C. J.

The indictment in this ease, which was found at the March term, 1879, of the circuit court of Conway county, charges Al. Wilson with a misdemeanor, committed as follows:

“ That said Al. Wilson, on the twenty-second day of February, 1879, in the county of Conway and state of Arkansas, unlawfully did sell one pint of spirituous liquor to one T. A. Rogers, within three miles of the Masonic Male and Female academy, while pupils were being taught in the same, when the county court of sáíid Conway county had made an order, in compliance with an act of the legislature of the state aforesaid, approved the second day of March, 1875, prohibiting the sale or giving away of spirituous liquors within three miles of said academy, and which said order was then and there of record in the office of the county clerk within and for the countj" aforesaid, against the peace,” etc.

The defendant entered, in short, upon the record, a demurrer to the indictment, which the court overruled ; he then pleaded not guilty, was tried by a jury, and convicted -, moved in arrest of judgment and for a new trial; the motion was overruled, and he took a bill of exceptions and appealed.

The demurrer-was general and the motion in arrest was upon the ground that the indictment did not. state facts sufficient to constitute a public offense within the jurisdiction of the court.

ment™01'

Uor sell-mg liquor emy etcad"

b. It is objected here that the indictment did not allege that the Masonic Male and Female academy was situated Conway county.

It is enacted by section 1 of the act of March 2, 1875, under which the indictment was prepared: That it shall be .unlawful for any person to sell or give away vinous, spirituous or intoxicating liquors within three miles of any academy, college or university in this state, .while pupils are being taught or instructed in the same.” Acts 1875, p. 206.

The indictment follows the language of this section. It alleges the sale to have been made in Conway county, and within three miles of the academy named,- while pupils were being taught in the same.

No further averment would have been requisite, had the act, of itself, been made to operate in all places where such schools were located, from the time it became a law. The act is what is known as a local option law.' Ey its fourth section, it-is not to operate for the benefit of any such school until a majority of the adult residents of any township of any county in which said academy, etc., is located, shall, by petition, procure an order of the-county court of their county, prohibiting the sale, etc., of spirituous liquors, etc., within three miles of such academy.. Hence it was necessary for the indictment to allege, as it did, that such order had been made before the sale charged to have been criminal.'

True the indictment does not allege, either in charging the sale or in averring the order of the county court, that the academy was in Conway county, but it avers that the order was made in compliance with the act, which is referred to, arid it would not be in compliance with the act if- the academy was not in Conway county.

2.---: Excep*it°“stl;tien negTtivedf

The indictment is for a misdemeanor, and its allegations are sufficiently certain to advise the accused of the crime intended to be charged against him, and to protect him against a further indictment for the .same offense ; and upon the trial the burden was upon the state to prove a valid order of the county court, and a sale within the prohibited limits.

II. It is further objected that the indictment does not negative the exception made by the second section of the act, in favor of druggists who sell liquors for medical purposes, on written certificates of physicians.

The exception is not in the enacting section of the statute, and need not be negatived, but is matter of defense. Butler v. The State, 10 Ark., 299; Wilson v. The State, 33 Ark.

III. It is also objected that the indictment does not allege that the order of the county court was made upon the petition of a majority of the adult residents in the township in which.the academy is situated. •

It was sufficient to aver that the order was made in compliance with the statute, without setting out the facts on which it was based.

IY. On the trial, the court permitted the state to read in evidence to the jury the record entry of the order of the county court of Conway county, prohibiting the sale, etc., of liquors, etc., within three miles of the Masonic Male and Eemale academy, against the objection of the defendant; and this ruling of the court is made ground of the motion for a new trial.

The objection, as set out in the bill of exceptions, is general, but it is submitted here that the order does not show upon its face that the academy is in Oonway county.

The record entry read in evidence shows that the academy is situated in the town of Lewisburg, Wilborn township, and that the order was made the fifth of January, 1876, by the county court, then holding a regular term, at the court-house in the town of Lewisburg, in Conway county, upon a petition of a majority of the adult residents of said Wilborn township. The academy is styled, in the entry, the Masonic Male and Female academy of Lewisburg.

The entry does not state in so many words that the academy is situated in Conway county, but it does show that it is situated in the town of Lewisburg, where the county court was then holding a term, in the courthouse of that county.

The order upon the face of the record read in evidence, appears to be regular, and in compliance with the statute.

The act was held constitutional in Boyd v. Bryant et al., ante, 69.

V. It was made ground for a new trial that the court admitted the testimony of Ur. ~ffl. A. C. Sayle, against the objection of defendant.

Before stating the testimony of Ur. Sayle, the testimony of two witnesses previously examined may be stated.

T. A. Rogers testified that some time during the month of February, 1879, he purchased whisky by the drink from the defendant, on several occasions, at the town of Morrilton, about one mile from the school-house in Lewis-burg, in Conway county, Arkansas.

M. W. Steele testified that he was one of the trustees of the Lewisburg Masonic Male and Female academy, situated in the town of Lewisburg, and that it had been the intention of the trustees to maintain a school for the instruction of pupils in said academy for at least ten months in each year; that not more than two teachers were ever engaged in said academy at one time ; and that during the month of February, 1879, Miss Lee taught a school in said academy, which lasted from September, 1878, until June, 1879 ; that the number of students taught by her was small.

3 L B.

Order of county g°.uurl,Pr°academy! vocable!16"

. Dr. W. A. C. Sayle testified that the school at Lewisburg, which had been previously known as the Lewisburg Male and Female academy, was, about eight or nine years ago, taken charge of -by the Masonic fraternity at Lewisburg, by the consent of the people in and about Lewisburg, and had been managed and controlled by said fraternity ever since. That when the Masons took charge of the school they changed the name to the Lewisburg Masonic Male' and Female academy, and it' had been known by that name ever since. That witness was a trustee of said school, and that the school had been kept up during the scholastic year the whole time.

Dpon what ground the defendant objected to Dr. Sayle’s testimony does not appear from the bill of exceptions, nor has his counsel here indicated any objection to its competency or relevancy.

YI. The next ground of the motion for a new trial is, that the court erred in refusing to permit defendant to read . ,, ° A in evidence the record entry of an order of the county court of Conway county, revoking the order of said court prohibiting the sale of liquors within three miles of the Lewisburg Masonic Male-and Female academy; and also in excluding the license of said court authorizing defendant to sell liquors at Morrilton.

The order appears to have been made on the fifth of October, 1876, as follows:

“In the matter of the petition to authorize the selling and giving away of spirituous liquors within three miles of the Masonic Male and Female academy of Lewisburg, Wilborn township, Conway county, etc. Now, on this day come J. T. Moore, etc., and others, and present their petition, praying this honorable court to grant and make an order, according to the statute in such cases made and provided, authorizing the selling and giving away of. spirituous liquors within three miles of the Masonic Male and Female academy of Lewisburg, in Wilborn township, in said county, etc., and the court, aft^r examining said petition, found the same to'be signed by a majority of the adult residents and voters of said township, that the signatures thereto are authenticated by affidavits, and in all respects regular, and in compliance with the act of the general assehibly approved March 2, 1875, regulating the subject-matter herein; the court, after due consideration, doth say that said petitioners, have fully complied with the law, and that the order prayed for should be granted: It is therefore ordered by the court, that the selling and giving away of spirituous liquors within three miles of the Masonic Male and Female academy situated in the town of Lpwisburg, Wilborn township, Conway county, etc., be and the same is hereby authorized from henceforth, existing laws regulating the same being complied with.”

Section 4 of the act of March 2,1875, provides :

“ That whenever the adult residents of any township of any county desire to avail themselves of the provisions of this act, a majority of them shall petition the county court of their county,-setting forth the fact that an academy, institute of learning, or university, in which pupils are taught, is located in their township or district, and praying that the sale or giving away of spirituous liquors be prohibited within three miles of the same; whereupon, should said county court be satisfied that a majority of said resi■dents so petition, shall make an order in accordance with said prayer,' and from thenceforth it shall not be lawful to vend or give away any spirituous liquors within the limits aforesaid.”

The sixth section fixes a penalty for violating the provisions of the act, at not less than $25 nor more than $100.

On the petition of a majority of the adult residents of "Wilborn township, the county court made the prohibiting order of the fifth of January, 1876, and from thenceforth, in the language of the act, it was unlawful to vend’or give away spirituous liquors within three miles of the academy named in the order, under the penalty-prescribed by the act.

On the fifth of October, 1876, the county court, on the petition of a majority of the “adult residents and voters” of the township, undertook, in effect, to revoke the prohibiting order, and open the way for the sale of spirituous liquors within three miles of the academy.

There is no provision of the act of the second of March, 1875, or any other act, authorizing the- county court to make the second order.

The legislature might, in the exercise of the police power, for the preservation of order and good morals, and the protection of school pupils against temptation to dissijation, have absolutely prohibited the sale, t'or drink, of spjrituous liquors, within three miles of academies, etc. But it was deemed expedient to pass prohibiting acts, and leave it optional with a majority of the adult residents of any township, in which such school was, or might be, located, to apply to the county court to make an order giving force and effect to the act for the benefit of such school. When the order was so made, in this case, the act was as effectually put into operation over the .territory embraced in the order, as if the legislature had made it the absolute law of that territory from the moment of its passage.

The county court was empowered, upon the proper petition, to put the act in force in the particular limits, but no-power was delegated or confided to it to make an order, at any subsequent time, upon any petition whatever, in effect repealing the law within such limits.

Counsel .for appellant submits that the law was put into force by the will of the people of Wilborn township, and that> it was revoked by their will. This is plausible, but the people of townships must express their will in legal and constitutional modes'. The act authorized the adult residents of the township (females as well as males) to express their will as to whether it should be put in force for the benefit of the academy in their township, but did not invite them to express any will, through the county court, as to its revocation. This they may do through their representation in the legislature. The second petition, and the order of the county court upon it, was voluntary and authorized by no law. The order would have been as valid without the petition as with it; and the expression of the adult residents of the township, at a township meeting, held of their own accord, would have been as effectual to displace the statute, after legally put in force, as a petition to the county court.

In the absence of legislation, the county court has no-power to grant licenses to sell spirituous liquors, or to prohibit the sale thereof under penalties. By the act of March 2, 1875, it was authorized, upon the petition of a majority of the adult residents of any township in which an academy, college or university was located, to make an order prohibiting the sale, etc., of spirituous liquors within three miles of such school. When the order is made, the power vested in the court by the act is exhausted, and there is no provision for it to make the order on a- subsequent petition.

The act of March 8, 1879, authorizes the’ electors of townships and wards of cities, at each general election, to express their will as to the granting or withholding of licenses to keep dramshops or drinking saloons in their townships or wards; and the county courts are empowered to grant or refuse licenses according to the result of such elections. The vote of a township or ward may be in favor of license at one election and against it at another, and so the fortune of the dramshop or saloon-keeper may fluctuate with the will of the electors. But suppose the law had authorized but one election, and that should result in any township or ward against license, could the electors, of their own accord, without authority of law, hold a subsequent election, and empower the county court to grant license ? We think not.

The legislature of 1§79 passed acts prohibiting the sale, etc., of spirituous liquors, etc., within three miles of Evening Shade college, Pleasant Ridge academy, the town of El Dorado, and Lamartine,providing for no petition of local 'residents, or orders of county courts. (Ads of 1879, pp. 10, 21, 22, 66.) Similar acts were passed by the legislature of 1875, for the protection of Judsonia university, (Acts of 1876, p. 188), certain sections in Eranklin county, (ib., p. 194), El Paso, in White county, (ib., p. 243), Quitman college, (ib,,p. 245), and the Industrial university, (ib.,p. 247).

We find no provision in any act, except the act of March 2, 1875, leaving it optional with the adult residents of a township to put the law in operation for the protection of a schooland in it, as we have above seen, no provision is made for a petition to the county court to revoke an order putting the act in force. If the local residents may, at will, repeat such petitions, and the county court may make and revoke such orders at their pleasure, there might be no stability in the law, and the protection of the school might vacillate with the succéssful or non-successful efforts of persons who wish to sell ardent spirits, in procuring subscribers to petitions. No such policy is indicated in the legislation for the protection of pupils of schools against temptation to dissipation and vicious habits.

The county court having no legal power to make the revoking order, it is void, and'the court did not err in excluding it from the jury.

The revoking order being invalid for want of power in the county court to make it, it follows that the after grant of license to appellant to retail spirituous liquors was of no value to protect him against a prosecution for selling within the limits where such sales were prohibited by the act of the second of March, 1875.

VII. In the motion for a new trial, it is assigned as further ground that the court erred in giving the second and third instructions asked for by the state, and in refusing the third and fourth moved for defendant.

The court instructed the jury, first, that it devolved upon the state to prove every material allegation of the indictment, and that defendant was piesumed innocent until his guilt was proven by competent testimony beyond a reasonable doubt.

'(a) The court also instrucied the jury, second, against the objection of defendant, that if they believed from the evidence that defendant, at any time within one year next before the finding of the indictment, within three miles of the Masonic Male and - Female academy, in the county of Conway, etc., did sell to T. A. Rogers any quantity of spirituous liquor, and that at the time such sale was made, said institution of learning was. in progress and pupils being taught in the same during the scholastic year, and that prior thereto th,e county court of Conway county had made an order prohibiting the sale of spirituous liquors within three miles of said academy, they would find defendant guilty, and assess his punishment at a fine of not less than $25 nor more than $100. '

There is no valid objection to this instruction. The court, in substance and effect, charged the jury by it, that if the state had proven the material allegations of the indictment, they should find the defendant guilty, etc.

(b) The third instruction for the state, and to which defendant objected, is as follows :

“It is shown by the evidence that the academy was originally incorporated as the Lewisburg Male and Female academy, and it was afterwards commonly known as the Lewisburg Masonic Male and Female .academy, or the Masonic Male and Female academy. That is not a mate rial variance. It is sufficient if one is a continuation of the other, and a school has been taught in the same.”

The indictment describes the academy in question as the Masonic Male and Female academy. Dr. Sayle testified that it was originally known as the Lewisburg Male and Female academy, and after the Masons took charge of it, eight or nine years before the trial, it was called the Levrisburg Masonic Male and Female academy. In the order of the county court, read in evidence,'it is styled the Masonic Male and.Female academy of Lewisburg. There was no substantial variance between its description in the indictment and the evidence. It was sufficiently identifiéd. It was not material whether it was incorporated or not. The third instruction given for the state is subject to verbal criticism only.

(c) The first instruction moved for the defendant, and refused by the court, is, that—

“ The burden of proof in a misdemeanor is governed by the same rule as a felony, and every material allegation in the indictment must be proven by the state, not as in civil cases, but beyond a reasonable doubt.”

In the first instruction given for the state, the court charged the jury, in effect, that the burden of proving all of the material allegations of the indictment, beyond a reasonable doubt, was. upon the state.

And the court gave the second instruction moved by defendant, that it devolved on the state to p,rove beyond a reasonable doubt that there was au academy known as and called the Masonic Male and Female academy, situated in Conway county, etc.; that the county court of said county made an order in compliance with an act of the legislature approved March 2,1875, prohibiting the sale or giving away of spirituous liquors within three miles of said academy, and that the defendant, Al. Wilson, subsequently to the making of said order, and within one year before the finding of the indictment, sold spirituous liquors to T. A"! Rogers, within three miles of said academy, while pupils were being taught therein.

This instruction covered all of the material allegations of the indictment, and imposed the burden of proving them» beyond a reasonable doubt, upon the state.

There seenjs to have been a purpose in the first instruction moved for defendant, and refused by the court, to have the impression made upon the minds of the jury that the same weight of evidence was required in a misdemeanor as in a case of felony, to warrant conviction.

In The State v. King, 20 Ark., 166, the law of doubts in criminal cases was ruled as follows:

“ It is not necessary to a conviction in any criminal case,, that all the allegations in an indictment should be proven beyond all doubt. The rule is, that the jury are not to find the defendant guilty upon mere preponderance of evidence, but that they must be satisfied, beyond a reasonable doubt, that the proof sustains the material allegations of the indictment, otherwise they must acquit. And this rule doubtless applies to misdemeanors as well as to felonies. The state must establish the guilt of the accused in all cases before he can be condemned, and he is entitled, by a humane provision of the law, to the benefit of all reasonable doubts. It is doubtless true, however, that a jury should be more cautious in making up their judgment in' cases involving the liberty or life of the accused, than in cases punishable by fine only, but in no case should they return a verdict against the accused when they really have a reasonable and well-founded doubt of his guilt.”

The law of doubt was sufficiently applied to the case in the instructions given by the court to the jury, without the first instruction moved for defendant, which was so expressed as not to meet the approbation of the court, and might,, if given, have made a wrong impression on the minds of the jurors.

(d) The third instruction moved for defendant, and refused by the court, follows :

“ By academy is meant a seminary of learning, or school, holding a rank between a university or college and a common school. A university or college is the highest grade of institution of learning, and a common school is where the ordinary branches of education are taught.”

His honor, the circuit judge, did not deem it necessary for him to indorse all these definitions. The term academy, ■employed in the statute, in the indictment, in the prohibiting order of the county court, an'd by the witnesses, is one in common use, and doubtless the jury very well understood its meauing as ordinarily used and applied to a grade of schools.

{e) The fourth instruction moved for defendant, and refused by the court, follows :

“ The proof that defendant sold liquors -wfithin three miles of the Lewisburg Masonic Male arid Female academy, is not sufficient; but before the jury can convict in this case, they must.fi.ud that defendant sold liquors within three miles of an academy in Conway county, known as .and called the Masonic Male and Female academy.”

This was an unsubstantial quibble about the name or style of the academy, as to which we have said enough .above.

VIII. The last ground of the moti< n for a new trial is tl at the vcidict was conttaiy to law and evidence.

The case was well enough made out by the state, and appellant offered no competent evidence to justify him in selling spirituous liquors within thiee miles of the acad•tmy.

The record disclosing no substantial error ( f law, to the prejudice of appellant, the judgment must be affirmed.

Eakin, J.

I reach tl esame cot elusion with tlv: majority of the court, upon sc mewl at difiera t grounds. I look upon the first section of the-act of March 2, 1875, as having been entirely neutralized by the fourth, wTtich is really the whole law' upon the subject, qualified by the second, third and fifth sections, and enforced by the sixth. The first section might be omitted without impairing the act. •

I think the intention of the legislature was' to frame a law, going into effect, potentially, at the end of ninety days,, but with dormant powers to be evoked for particular townships, by the county court, upon certain contingencies;. that is to say, first, there must be such an institution as the law contemplates, located in the township; and, second,, the adult residents must petition the county dourt for the purpose, and the court must be satisfied that there is a majority of them concurring in the petition. XJpon that it is the order of the court, a recognized political body,, which sets the act in operation henceforth, and not the petition of the adult residents. The latter is the special and indispensable condition upon which, alone, the power of the court can be exercised, and the sole object of the power is to enable the county court, and make it obligatory, to protect the adult residents and those whose interests they guard, against the demoralizing influences which-' they suppose would spring from the sale of liquors near an institution important to their locality, and in which the-women are as deeply interested as the men.

I aril not prepared to say, therefore, that when the reason of the prohibition ceases, the statute intends that it shall nevertheless continue, although a majority of the adult residents may petition the court for its revocation,. and the court may so order. I think the .words, “from thenceforth,” clearly indicate the beginning and not the duration of the operation of the act, and it is not necessary in this case to decide that the county court has not the-power at some subsequent time, and under changed circumstances, to pass an order revoking the prohibition,, upon the petition of a majority of the adult residents of the township. The order has more the character of a municipal ordinance than of a judgment which can not be-■changed after the term. It is simply a police regulation, mandatory indeed upon the court, under certain circumstances, and valid whilst in force, but there is nothing apparent in the reason of the act, or in its nature, to induce the conclusion that the legislature meant the action of the ■court to fix a condition, of things in perpetuity.

I am satisfied, however, that the power to change the order, if it exists, as the power to make it, is a special one, not appertaining to the general jurisdiction of the court, or cqming within the ordinary range of its subject-matters. As it could not make the order of prohibition in accordance with the prayer, without first finding that a majority of the “adult residents ” had joined therein, and its action would be in such case beyond its power and void, so it can not change the order, or annul it prospectively,without a formal withdrawal of the request of the same body,

Adult residents and voters means the body of persons residing in the township who have the elective franchise. They could not impose upon the county court the duty of making the prohibitory order in the first place, nor authorize the court to annul it afterwards. The record order was void and offered no ground of defense to the indictment. With this explanation I concur in the result.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Williams vs. The State.
    1. Criminal Evidence : Variance: Whisky: Bitters.

    Upon a charge of selling whisky without license, proof of the sale of Home Bitters is irrelevant, unless it is proven to be made of whisky.
    2. Same : Selling whisky without license : Proof as to license.

    Upon the trial of one for selling liquor without license, the state is not required to prove that he had no license. If the defendant has license he can show it.

      APPEAL from Lincoln Circuit Court.
    Hon. X J. Find all, Circuit Judge.

      Henderson, Attorney General, for the State.
   English, C. J.

At the October term, 1879, of Jhe circuit court of Lincoln county, Columbus "Williams was indicted for selling whisky without license, the indictment charging that “ Said Columbus Williams, in the county of Lincoln, etc., on the first d^y of October, 1879, did then and there willfully and unlawfully sell and deliver ardent spirits, to-wit, whisky in less quantities than one quart, to-wit, the quantity of one gill, without having first procured a license to sell the same in accordance with law, contrary to the statute, etc., and against the peace,” etc.

Fie was tried on the plea of not guilty, found guilty by the jury, and fined $200; a new trial was refused hyn, and he took a bill of exceptions and appealed.

The new trial was moved on the ground that the verdict was contrary to law and evidence. That the indictment charged that defendant sold whisky without a license, and that the state failed to prove, and did not attempt to prove he had no license. And that the court erred in refusing the second instruction asked for defendant.

Peter Manuel testified that he was at a little festival given on Dr. Simmons’ place, in Lincoln county, by defendant, on the first of October, 1879. Defendant had a little counter or table in one corner of the room, behind which he sold apples, oranges, candy, etc., and, among other things, witness saw him sell whisky by the drink — ten cents a drink. Witness was treated to some by his friends. It was drunk in small glasses, ten cents a drink — that is to say, it was bought in less quantity than a quart, and he saw the money paid for it, and he knew it was whisky.

“ Defendant would sell us,” witness said, “ a stick of candy, and then he would give us a drink of whisky. You know we would not give ten cents for a small stick of candy.” The whisky was kept in a jug.

Eli Graham testified that he was constable of Spring township, Lincoln county, and defendant was a magistrate of said township ; witness was at a dance, or festival, given by defendant on the Dr. Simmons place, in Spring township, on the first of October, 1879 ; got to the party about 10 or 11 o’clock at night, and found the dance going on; in one corner of the room he saw a little counter, or table, behind which defendant sold oranges, apples, etc.; among other things, witness saw him sell some bitters out of a square black bottle; he sold it by the drink, at ten cents a drink, in less quantity than a quart, and witness saw the money paid for it; the bitters were Stomach Bitters, aud witness knew they would intoxicate, because he had tried them; defendant would sell a stick of candy, and then the bitters were drunk, and ten cents paid over the table, or counter; he got after defendant about selling the bitters, and told him he knew it was against the law, witness being constable and defendant a magistrate; defendant told him it was none of his business — he knew the law as well as witness did.

On cross-examination, witness stated it was Stomach Bitters or Home Bitters.

The above was all the evidence — defendant introduced none.

The court charged the jury in the language of sec. 5 of the act of March 8,1879, which makes it a penal offense to sell, without license, “ any ardent, vinous, malt or fermented liquors, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors.” {Acts of 1879, p. 85.) No exception was taken to this charge.

EEN0E EvI'

^Variance: Bitters,

The defendant asked two instructions :

“ 1. It devolves upon the state to prove the material allegations in the indictment beyond a reasonable doubt, and the offense must be proven substantially as charged in the indictment; and unless the jury are satisfied by the testimony beyond such reasonable doubt that the defendant sold whisky, as charged in the indictment, they will find him not guilty.”

This instruction the court gave, but refused the second, which follows:

“ If the jury believe, from the evidence, that the defendant sold what is known as ‘Home Bitters,’ or some preparation of that nature or kind, that will not authorize them to convict the defendant under this indictment.”

I. The charge was for selling whisky in less quantities than a quart. The charge was sufficiently proven by Peter Manuel, who saw the defendant sell whisky by the drink from a jug.

The testimony of Eli Graham, though not objected to, was irrelevant to the charge, unless he had proven that the bitters sold from the square black bottle were made of. whisky.

He stated that they were intoxicating, but the charge was not general for selling ardent spirits or intoxicating liquors.

The pretense of selling a stick of candy, and giving a drink of whisky, was a mere attempt to evade the statute, and bad conduct in a magistrate, whose duty it was to obey and enforce the law.

2. -: Selims whisky without license: Proof as to liceo se.

II. It was charged that the whisky was sold without license. The general rule is, that where negative matter is averred in -an indictment, the state must introduce some evidence to prove it. The exception to the rule is, where the matter is particularly within the knowledge of the defendant. A charge of selling liquor without license, it has been held, falls within the exception to the rule, for if defendant has license he can immediately, and without inconvenience, show it, and it might be inconvenient for the state to prove that he had none. Hopper v. The State, 19 Ark., 146, and authorities cited. ,.

III. In the first instruction given for defendant, the court charged the jury, in effect, that defendant could not be convicted unless it was proven that-he had sold whisky, as charged in the indictment.

It was not, therefore, necessary to give the second instruction moved for defendant.

Affirmed.


text:
    Williams vs. Pindall.
    Bond fob Cost : In contested elections.

    The aot of the twenty-fourth of Bebruary, 1879, requiring plaintiffs in election suits to give bond, for cost, is constitutional.
    APPEAL from Desha Circuit Court.
    Hon. C. G. Newman, Special Judge.

      Martin § Taylor, for appellant.

      Met. L. Jones, contra.

   English, C. J.

On the sixth' of February, 1879, John A. Williams commenced, this action in the circuit court of Desha county, against Xenophon J. Pindall, for the office of judge of the circuit court of the .eleventh judicial district, plaintiff alleging in his complaint that he had received a majority of votes for the office at the general election on the second of September, 1878, and was elected thereto, but that the governor had commissioned the defendant, who was also voted for, and who claimed and held the office by virtue of such commission.

On the third of March, 1879, being the first day of the return term, Met. L. Jones, Esq., asked leave to file the answer of defendant, and a motion to require plaintiff to give bond for costs; whereupon the presiding judge, who was defendant, announced that he was incompetent to preside in the cause, and the clerk of the court proceeded to hold an election for special judge, and Hon. Charles Gr. Newman was elected by the practicing attorneys of the court, took the oath of office, and went upon the.bench, etc. The answer of defendant, and the motion to require plaintiff', to give bond for costs, were then filed.

On the eleventh of March the motion was taken up, the record stating that argument upon the motion had been postponed until that time at the request of the plaintiff; and the court having heard the argument, ordered that plaintiff give bond, with good and sufficient security as required by law, for the payment of all such sums of money as might be adjudged against him in the action as and for costs, including the costs that had accrued in the cause since the twenty-fourth day of February, 1879; thé bond to be conditioned and approved as required by law; and the plaintiff was allowed until Thursday morning, 10 o’clock, March 13, to give the bond — defendant excepting to the making of the order.

Bond for •Cost:

to tf,ie®eo" tions.

On the thirteenth of March, the plaintiff moved the court for further time to file the bond for costs, but on what ground does not. appear, and the court overruled the motion; and the plaintiff failing to file or tender a bond for costs, as required by law and the former order of court, and making no good showing, in the judgment of the court, for not doing so (the record states), the cause was dismissed} and defendant excepted, and appealed, taking no bill of exceptions bringing any matter upon the record.

The special judge ap]3ears from the" record to have been regularly elected according to law, and no question appears to have been made in the court below as to his election or qualifications.

What showing appellant made on his motion for grant of further time to file the bond for costs does not appear, he having taken no bill of exceptions to bring upon the record any facts he may have pi-esented to the court on the hearing of the motion. In the absence of any showing to the. contrary, it must be presumed that the decision was right. It was a matter addressed to the sound legal discretion of the court, and not the subject of review, unless such discretion is shown to have been abused, as this court has repeatedly decided.

It is submitted that the third section of the act of FebruaiN 24,1879, requiring the plaintiff, in a suit to contest an election to an office, to give bond for costs, is unconstitutional and void.

Section third of the act provides:

“ That in all suits now pending in any of the circuit courts or in any of the countjj- courts of this state, for the purpose of contesting the election of any state, district, circuit, county, or township office, the contestant shall not proceed further with his case until he shall have filed and obtained the approval of, by the clerk of the court in which the suit is pending, a bond with good and sufficient security, conditioned that the contestant and his securities in the bond will pay to the contestee, or the defendant in the action, and the officers of the court, all such sums of money as shall be adjudged in their favor against him for costs accruing after the passage of this act in the court in which such suit shall be pending, or in any' other court to which it may be carried by appeal, or otherwise.” Acts of 1879, p. 12.

The order of the court requiring appellant to give bond for costs was made in accordance with this section. The suit was commenced on the sixth of February, 1879, and the act was passed, and in force, on the twenty-fourth of the same month, and the order did not require appellant to give bond for any costs that had accrued before the passage of the act, but for such costs only as had accrued after its passage, and might accrue after the making of the order.

It was the duty of appellant to give the bond, on the passage of the act, before proceeding further with his suit, and having failed to do so, the court ruled him to give the bond, and on his failure to comply with the order of the court dismissed his suit.

The act applies to and regulates the remedy. It did not deprive the appellant of any right or claim hó had to the office, or cut off his remedy to recover it. It merely required him to give bond for costs before proceeding, with his suit, and he was allowed time to do this.

The act is 'in conflict with no provision of the constitution.

Affirmed.


author: Harrison, J.

text:
    Town of Fort Smith vs. Gantis.
    Practice in Supreme Court : Where no motion for new trial.,
    Where there is no motion for new trial, nor bill of exceptions, the record presents nothing for the determination of this court.
    APPEAL from Sebastian Circuit Court.
    Hon,. J. H. Rogers, Circuit Judge.

      Brizzolari, for appellant.

      Sandels, contra.

   Harrison, J.

James A. Yantis was tried before the mayor of the town of Port Smith for the violation of an ordinance of the town in failing to work upon the streets, and was convicted and fined $20.

He appealed to the circuit court, and, upon a trial in the circuit court, was found not guilty, and the town appealed to this court.

There was no motion for a new trial, nor any bill of exceptions, and the record presents no question for our determination.

Affirmed.


text:
    Leeman vs. The State.
    1. Extortion: Corrupt intent essential.

    If an officer take a fee not authorized by law, under the belief that he is by law entitled to it, and without any corrupt intent in the matter, he is not guilty of extortion.
    2. Same : Indictment for.

    It is a sufficient averment of a corrupt intent, in an indictment for extortion, to allege that the defendant “ extorsively ” took the unlawful fee.

      APPEAL from Lincoln Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.
    Granger, for appllant.

      Henderson, Attorney General, contra.

   Harrison, J.

The appellant, James H. Leeman, was indicted for malfeasance in office. The indictment charged that he, being judge of the probate court of Logan county, did, on the twenty-second day of April, 1879, and at the April term, 1879, of said court, unlawfully, and willfully and extorsively, charge, demand and receive from one C. E. Wood, the sum of two dollars as a fee for, as such judge, examining and passing upon his account-current as administrator of the estate of H. C. Williams, deceased; “ a greater fee,” it alleged, “ than is allowed by law.”

He was tried and convicted, and after a motion for a new trial had been overruled, judgment of amotion from office was rendered against him.

The evidence was, that the defendant was judge of the probate court of Logan county, Snd on the twenty-second day of April, 1879, at the April term of the court that year, C. E. Wood, the administrator of the estate of H. C. Williams, deceased, filed in open court an account-current of his administration, when the defendant, after looking over the account, said to him: “Mr. Wood, I consider that you owe me two dollars.” Wood, said to him that he understands the law which allowed the probate judge a fee of two dollars for examining and passing upon an administrator’s account had been repealed, to which the defendant replied that he thought the repealing act unconstitutional, and he had been charging the fee, and was going to test the constitutionality of the act, and said if it should be decided to be constitutional he would pay the fee back to-those who paid it, and Wood then paid him the two dollars.

The court instructed the jury against the objection of the defendant, as follows: I

“ Thé defendant is indicted for malfeasance in office. The act charged against him as constituting.the malfeasance is this: ' That on the twenty-second day of April, 1879, he,, being the judge of the probate court of Logan county, and while acting as such judge, at the April term, 1879, did unlawfully, willfully and extorsively charge, demand and receive from one C. P.Wood, as administrator of the estate of H. C. Williams, deceased, two dollars as a fee due him as such judge of said court, for services performed by him in examining and passing upon the account-current of said C. P. Wood as administrator of said estate.

“You are instructed that after the fifth day of Marchy 1879, no fee of any amount was allowed by law to a probate judge for the services stated; and for a probate judge to charge, demand, or receive a fee for such services after that date, was an unlawful acfi The «word unlawfully, as used in this indictment,'simply means that there was no authority of law for the defendant to commit the act with which he is charged. Willfully means intentionally; an act done by design; an act which proceeds from the will. Extorsively charging, demanding and receiving, means that the charging, demanding and receiving was done under color of his office, and for services for which nothing is allowed,, or when none is due. Malfeasance is defined to be the performance of some injurious act which the party had contracted not to do, or had no right to do. The intent,whether corrupt or otherwise, with which the fee was taken, if taken as alleged, is a matter of no importance. It is the wrongful charging, demanding and willful taking, under color of office, a fee for an act for which the law provides no fee, that constitutes the offense. Ignorance of the law is no excuse or defense. Every one is presumed to know the law.”

Extoe.

Corrupt es"

The defendant asked the following instructions, which the court refused to give:

“ 1. If the jury believe, from the evidence, that the defendant took the fee alleged in the indictment, but at the time believed he was entitled to it, and that he did not act corruptly in the matter, but intended to pay the money back to "Wood if he should become convinced he was not entitled to it, they must acquit the defendant.

“2. Unless they find, from the evidence, that the defendant has been guilty of corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office, they must acquit him.

“ 3. And unless they believe, from the evidence, that defendant has been guilty of extortion, they must acquit him.”

It is enacted by section 1470 Gantt’s Digest, that, any officer shall charge, demand or receive any more or a J greater fees for his services than are allowed by law, or shall demand, charge, or receive any such fees without having performed the services for which the same are charged, such officer, for every such offense, shall forfeit to the party injured, or against whom the same may be charged, the amount of fees illegally charged, and five dollars for each item illegally demanded, charged or received, with costs, to be recovered by action, and shall also be subject to an indictment for extortion.”

And it is provided by the act of March 9, 1877, that upon the conviction of any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in offiee, a part of the sentence shall be his removal from office.

“Extortion is,” says-'Blaekstone, “an abuse of public justice, which consists in any officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due him, or more than is due, or before it is due.” (4 Black. Com., 141.) As defined by Bishop, it is “ the corrupt demanding or receiving, by a person in office, of afee for services which should be performed gratuitously ; or, where compensation is permissible,of a larger fee than the law justifies, or afee not due.” (2 Bish. Crim. Law, sec. 390.) The latter author says: “No act, carefully performed, from motives which the law recognizes as honest and upright,ispunishable as a crime. Audit has always been held that extortion proceeds from a corrupt mind.” (Ib., 396.) And Wharton says that, “ both by statute and at common law, it is necessary that the taking should be willful and corrupt.” 3 Wharton Crim. Law, 2509.

The language( of the statute of New Jersey upon the subject of extortion is: “If any justice or other officer shall receive, or take by color of his offiee, any fee Or reward whatever,.not allowed by the laws of this state for •doing his office, and be thereof convicted, he shall be punished,’’ etc. The supreme court of that state, remarking upon the statute, in the case of Cutter, ad., v. The State, 7 Vroom, 125, say: “On the part of the state, it is argued that this statute is explicit in its terms, and makes the mere taking of an . illegal fee a criminal act, without regard to the intent of the recipient. Such undoubtedly is the literal force of the language, but then, on the same principle, the officer would be guilty if he took, by mistake or inadvertence, more than the sum coming to him. Nor would the statutory terms, if taken in their exact signification, exclude from their compass an officer who might he laboring under an insane delusion. Manifestly, therefore, the terms of this section are subject to certain practical limitations. This is the case with most statutes couched in comprehensive terms, and especially with those which modify or otherwise regulate common law offenses. In such instances the old and new law are to be construed together; and the former will not be considered to be abolished except so far as the design to produce such effect appears to be clear. In morals, it is an evil mind which makes the offense, and this, as a general rule has been at the root of the criminal law. The consequence is that it is not to be intended that this principle is discarded merely on account of the generality of statutory language. It is highly reasonable to presume that the lawmakers did not intend to disgrace or to punish a person who should do an act under the belief that it was lawful to do it.”

The reasoning of the court is, to our mind, conclusive. There can be no question, we think, that the general words of our statute do not preclude an inquiry as to the motive or intent, the same as at the common law.

By the act of December 13, 1875, in relation to the fees of officers,'a fee of two dollars was allowed the judge of the probate court for examining and passing upon the account-current of an administrator, executor or guardian ; but this provision.of the act was expressly repealed by an act passed March 5, 1879.

The defendant may have honestly, but mistakenly, thought that the fee given by the act of 1875 was an emolument of his office of which he could not be deprived during his term; and though his ignorance of the repealing act, or if its effect would not alone excuse him, there would be wanting, if he so supposed, that bad motive or evil intent necessary to make the act of demanding or taking it criminal.

2.--: Indictment for.

The instruction given by the court, as it excluded all inquiry by the jury as to the defendant’s motive or intention, was therefore erroneous. The first of those asked by the defendant was the converse of that, and should have been given. The others were too vague and indefinite to serve- the purpose of an instruction, and were properly refused.

It is objected by the appellant that it was not charged in the indictment that the money was corruptly taken.

The corrupt intent was substantially and sufficiently averred by the use of the word extorsively. The technical words in an indictment for extortion at common law are “extort” and “by color of office.” 2 Bish. Crim. Proced., sec. 320; Jacobs and others v. The Commonwealth, 2 Leigh (Va)., 709; 2 Chitty’s Crim. Law, 298, 299.

And it is objected, also, that it was alleged that the fee was greater than allowed by law, but how much greater was not alleged.

No fees at all are allowed to judges of the probate court, and the defendant could not fail to understand from the indictment the sum he was charged with having extorsively taken.

The indictment was sufficient, but for the errors above mentioned, a new trial should have been-granted.

The judgment is reversed and the cause remanded, with instruction to the court below to grant the defendant a new trial, and for further proceedings.


author: Eakin, J.

text:
    Hall vs. Doyle.
    1. Appeals prom Justice op the Peace: Tried de novo: Amendments, etc.,

    Appeals from justices’ courts are tried in the circuit court de novo, on the merits. Amendments and new issues may he there made; and an answer may he there filed after default in the justice’s court.
    2. Execution Sales : In criminal cases, cash.

    Sales under executions for fine and cost in criminal cases, are for cash. The credit of three months is given only where the right of stay is given and not exercised. This right is given only in civil cases.
    3. Eine and Cost: Not discharged by imprisonment, in petit larceny.

    Imprisonment for the fine and costs in petit larceny does not discharge them. They may still he collected hy execution out of the defendant’s property.
    4. Cost in Criminal Cases : Fees of prosecuting attorney and witnesses.

    The fees of the prosecuting attorney and of defendant’s' witnesses in a criminal case, are payable out of his property, and should he included in the judgment against him in favor of the state.
    5. Execution: Not void for omission of credits on.

    That an execution is not properly indorsed, and proper credits are not made, will not render it void in a collateral proceeding.
    6. "Witness: Petit larceny disqualifies.

    A conviction for petit larceny disqualifies the defendant as a witness.
    APPEAL from Sebastian.Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.
    Newton, for appellant.
   Eakin, J.

This is an action of replevin, begun before a justice of the peace, to recover a mare and colt, valued at $40.

The plaintiff had previously been indicted by the grand jury of the district, for the offense of larceny, in stealing property which, as shown by the indictment, was over the value of two dollars. The verdict on trial was as follows:

“We, the jury, find the'defendant guilty, and assess his punishment at imprisonment in the county jail for the period of five days, and at a fine of five dollars.”

Judgment, for the imprisonment, was accordingly entered ; and also, in favor of the state, for said fine and costs. It was further ordered, on default of payment of the same, after the term of imprisonment had expired, that the defendant should be put to labor on some public improvements in the county, or be hired out, at the minimum rate of seventy-five cents per day, until the fine and costs be paid; or, in default of such labor or hiring, he be imprisoned at the rate of two Jollars per day,-for a time sufficient to discharge them. He was actually imprisoned eleven days.''

An execution was also issued for the full amount of the ■fine, state tax, and costs, some of which had been paid, others remitted, and others claimed to have been excessive. The defendant filed a schedule of personal property, as exempt, including the mare and colt. This was disregarded, the execution levied, due notice of sale given, and the property sold for cash. Defendant Doyle was the purchaser.

This action was brought to recover it. There was an order of delivery, but no bond, and the order was merely served on defendant, leaving him in possession. He made default before the justice, who, nevertheless, proceeded to hear evidence and give judgment against the plaintiff for costs. He appealed, and the defendant appeared in the • circuit court and pleaded in general that he1 did not unlawfully detain; and, second, that he had purchased the property under an execution issued upon a judgment against the plaintiff.

The court refused to strike out this answer, and the parties went to trial, upon which the foregoing facts were shown.

Tlfe court, in the course of the trial, refused to admit the-testimony of the plaintiff, on the ground of said conviction; and also to admit proof of the filing of the schedule.

Plaintiff moved the court to instruct the jury to find for-him, if they should believe—

1. That the sheriff, under the execution, sold the property for cash.

2. That, after the term of imprisonment fixed for his punishment had been served out, he had been farther committed to jail in default of payment of fine and costs, that amounting to satisfaction.

3. That the prosecuting attorney’s fee of ten dollars,, and the costs made by himself as defendant, had been included in the execution as costs of the state.

4. That said execution was not indorsed as provided by law.

5. That all due and proper credits had not been given on the execution.

6. That said execution was not substantially in accdrdance with the judgment, in this, “ as to the costs of the-state of Arkansas, that said state would have to pay, had defendant failed to pay the same.”

The seventh regarded the mode of valuing the property and estimating damages.

■ All these the court refused, and, of its own motion, instructed the jury to find for the defendant if they found he-had bought the property at a sale under an execution which had not expired, issued upon a judgment against. the plaintiff', unreversed and unsatisfied when the sale was made; otherwise, to find for the plaintiff, with the value of the property and damages at 6 per cent.

1. Appeals from J. P.:

Tried deno~ ■vo: Amendments, etc.

2. Execution Sales:

In criminal cases, 'Cash.

3. Fine and Cost:

Not discharged by impri so nment in petit lar■ceny.

4. Cost in Cri m i n a l Cases:

Witness and prosecuting attorney's lees.

There was a verdict for defendant, and judgment accordingly. Plaintiff moved for a new trial because, first, the court had refused to strike out defendant’s answer; second, the court had refused the instructions of plaintiff; and, third, had given erroneous instructions of its own motion, and had refused to allow the plaintiff to give evidence.

Upon appeals from justices of the peace, cases are tried de novo upon the merits. The court does not take jurisdiction simply to correct errors and affirm or reverse. It may permit amendments or allow new issues to be made touching the subject-matter in controversy below. It was not error to allow an answer to be filed after default below, and a fortiori it did not avoid the judgment rendered in the case.

The sale for cash was proper. The credit of three months,is only to be given where the right of stay exists and is not exercised. This right is given only in civil cases, and has no application to criminal-proceedings. (Gantt’s Digest, secs. 2654 and 2685.) These sections were taken from that portion of the Code regulating proceedings "in civil actions.

The imprisonment did not discharge the fine, which might still be collected by execution. (Gantt's Digest, sec. 2009) The costs were put in like attitude by act of March 24, 1875 (p. 270 Pamph. Acts), and, by fair construction- of the act, the same rule applies to them.

The costs of the prosecuting attorney and of the defendant’s own witnesses in the criminal-proceedings, were payable properly out of the defendant’s property. To aid officers and witnesses in their collection, and to save the county, which is apart of the state organization, from ultimate liability for such of them as it might be compelled to pay, it has been the common practice of the courts to include them all in the costs adjudged for the state. This practice we approve, although • it would be more formal that the judgment should clearly express it. Prosecuting attorneys and witnesses are compelled to render their services, with a viewT to the good of the community and the peace of the state, in criminal prosecutions, and it is fit and proper for the state to afford them this immediate and most effectual remedy against loss.

5, execu-

sT0 n°moSf °re ’s °n‘

6. witness:

oe^®tit<iuahfles-

The execution was, substantially, in pursuance of the judgment. No irregularity or omission as to the indorsement wmuld avoid it. That proper credits had not been made, was, at most, an irregularity for which an easy mode-of correction was provided by statute, in the court, or before the judge. It would not render the execution void in a collateral proceeding.

The instructions given by the court are complained of only as to the rule for measuring damages. This required some qualification, we think, to be entirely correct, as it would not apply to the detention of such property as had a value in the use; but that point loses all importance, as the jury finding for the defendant had no occasion to act upon the instruction.

The plaintiff was not a competent witness. He was disqualified by conviction for larceny. (Gantt’s Digest, sec. 2482). Although we must infer from the verdict arid judgment that he was convicted of petit larceny, it is still larceny, and the statute makes no distinction in this respect.

The court did not err in overruling the motion for a new trial; and this is all we are called upon to consider.


text:
    Thomas et al. vs. Hinkle.
    1. Bill of Exceptions : When sufficient.

    When a bill of exceptions does not show on its face that it contains all the evidence, but contains expressions from which it may be inferred that it was intended to do so, this is sufficient where no objection to it on that account is made in the supreme court.
    2. Damages : Good faith of defendant no defense against actual.

    Eor the purpose of actual and not vindictive damage, the good faith and honest intentions of a county clerk in sending a false abstract of the votes of an election to the secretary of state, is no protection to him or the sureties on his official bond for such breach of his official duty.
    3. Evidence: Judgment.

    A judgment is evidence of nothing, in a subsequent action between different parties, except that it had been rendered.
    4. Election Returns : Abstracting to secretary of state.

    Where only part of the returns of an election sent to the county clerk from the different precincts are certified by the judges of election, the omission of the uncertified returns in the clerk’s abstract of the vote of the county, to the secretary of state, does not make him guilty of sending a false abstract.
    APPEAL from Conway Circuit Court.
    Hon. T. W. Pound, Circuit Judge.

      Fletcher, Clark Williams, for appellee.
   Eakin, J.

This case was brought here with a supersedeas, and having been reached upon the call of the docket, the appellant failed to prosecute his appeal. It has been submitted on appellee’s motion, and we have looked through the transcript to see if there be any error of which the court should take notice.

It appears from the record, that in 1872 appellant, D. II. Thomas, was county clerk of Conway county, and the other appellants were sureties on his official hond for the faithful ■discharge of his duties. At the general election, which took place in November of that year, the poll-books from all the township precincts, thirteen in number, were brought into the clerk’s office. They all contained what seemed to be abstracts of the votes cast, at the particular precinct, for the different candidates for office; but only one of them was certified by the judges of election to be correct, or had attached to them any certificate whatever of the judges or clerks, save the oaths of office. The clerk, acting through his deputies, made a canvass of the returns, rejecting all except the one which was certified, and sent an abstract to the secretary'of state, by which it appeared that one William Kearney had been elected county clerk. He received his commission thereon and held the office until some time in November, 1874. Eour days after the first abstract was forwarded, the clerk, by deputy, and to satisfy “ outside parties,” made another, including all the poll-books and supposed returns from all the precincts. Whether this actually reached the secretary of state or not,- does not appear ; nor is it important to inquire. The first had done its office. The last was unauthorized and nugatory.

The last showed, however, and it seems on all parts conceded, that the appellee, Hinkle, had been really elected county clerk by a large' majority of the electors of the county. He brought suit for the office against Kearney, and obtained judgment for that and the mesne fees and emoluments. Execution isued and was returned nulla Iona. He then brought this suit, against Thomas and his sureties, to obtain damages for breach of the official bond by the false return to the secretary of state, alleging the loss of fees and emoluments, and, as special damage, his expenses in recovering the office. As his recovery in this case, however:, did not include any such special loss, this branch of the subject need not be fux’ther noticed.

3. Bill 03? ÍXOÍP-TIONS:

When sufficient.

Upon the trial, the plaintiff was pexunitted, agairxst the objection of defendants, to introduce the complaint, summons and judgment against Kearney in the former suit. There was other evidence, as above stated, together with sufficient evidence of the value of the fees and emoluments during the time that Hinkle was deprived of their enjoyment. The bill of exceptions does not show, upon its face, that it embodies the whole of the evidence upon either side, but there are expressions from which it may be inferred that it was intended to do so. This is sufficient where no objection to the bill of exceptions on that account is made'here.

The coux’t instructed the jury for the plaintiff, in effect:

1. That if it appeared, from the returns made by the judges to the clerk’s office, that the plaintiff received a plurality of the votes of the electors of the county, and the clerk made a different return, whereby the plaintiff lost the office, defendaxxts were liable.

2. That, for the purpose of recovering actual damage, the intent with which such return was made was immaterial.

3-4. That defendants are bound by the acts of a deputy or oxxe who had access to the office and was allowed.to act as a deputy.

5. That the x'ecord of the suit and judgment agaixxst Kearney was conclusive evidence against defendants, that plaintiff was elected to the office, and also prima facie evidence that the said return to the secretary of state was false.

2Damages:

faith 0?de-defence tuai,

2.Evidence ■f'1'1®01611*-

For the defendant the court refused to instruct conversely to any of the above propositions. It did instruct the jury that, by the law then-in force, the judges of election were required to certify, under thejr hands, the number of votes given to each person,-and the office for which such votes were given, which should be attested by the clerks; but added, of its own qnotipn, and against defendant’s objection, “that after the county clerk received and acted upon the returns that were not so certified, said returns, after being so acted upon, are to be treated as legal returns.”

Other instructions relate to good faith, and to damages, and need not be noticed in the decision of this case. It may be said of them, in passing, th'at they correctly state the law to be, that for the purpose of actual, and not vindictive damage, the good faith" of Tronest intentions of the clerk, afi'orcl no protection to him or his sureties for breaches of official duty. ■

There was a verdict for plaintiff'for nearly $1,000, being amount of actual fees and emoluments lost, after deducting the liire of a deputy and with 6 per cent, interest added. A motion for a new trial was overruled, which reserves the points we shall noticeTwith others which may be passed over as involved in what has been said. The defendants appealed.

It is difficult to perceive any .sound principle upon which the complaint and judgment" in^the former suit against Kearney could be admitted as evidence in a suit against these defendants for any other purpose than to show the fact that such a judgment had been obtained, and that the plaintiff was, by virtue of such judgment, or had been, in fact, the clerk. That suit was between different parties, and involved different issues from this. These defendants had no day in court in that suit. The issue there was, who- was in fact elected? and, in determining that, the court could, and perhaps did, go behind the returns made to the clerk’s office.. The issue here is, did the clerk return to the secretary of state a false abstract of the returns made to his office? The judgment, based upon the actual votes cast throughout the county, which the court had the means of ascertaining, may well consist with the truth of the abstract, made by the clerk, of the returns made to him by the judges of the townships. Suppose, for instance, there-had been false returns from the judges, or none, to the clerk’s office, the plaintiff might, nevertheless, on proper proof, have recovered the office; but such recovery would not be even prima facie proof that the clerk had not truly abstracted and forwarded to the secretary of state the returns sent to him. The court certainly erred in instructing the jury that it would be evidence to that effect.

It becomes necessary to look deeper and see if there was any other proof that the clerk made a false return to the secretary of state; for if there be such clear proof of that as to have justified the verdict, the error in the instruction would be harmless, and the judgment would be permitted to stand.

The law then in force, after providing for the due appointment of judges and clerks at the different precincts, and for the proper conduct of the election, required the judges, at the closing of the polls, to sign the poll-books, and the clerks to attest their signatures. (Gantt’s Digest, sec. 2338.) This poll-book was required to contain the names of all the voters, with the number of them estimated and set down at the foot. No such poll-books appear in evidence in this case.

Upon counting the ballots the clerks were required to enter, on a list or poll-book, in separate columns, under the respective names of the persons voted for, the number of votes given for each person, and also, to write out, in a legible hand, on said list or poll-book, the number of votes given to each person, and the office for which such votes were given, and to attest the same. Sec. 2332.

After the examination of the ballots, the votes for each person were to be enumerated, under the inspection of the judges, and set down at the foot bf the column on the list or poll-book, and to be publicly proclaimed to the people present. Sec. 2336.

. And then the judges were required to certify, under their hands, the number of votes given for each person, with the office for which they were given, and the clerks were required to attest the certificate. Sec. 2337.

After which, before dispersing, the judges were required to put one of the poll books under cover, seal the same, and direct it to the county clerk {Sec. 2338), which was to be carried and delivered to. said clerk by one of the judges, within three days afterwards. Sec. 2339.

TJpon failure to do that, the clerk was required on the fourth day to dispatch a messenger to bring up the same, and to defer the comparison of the poll-books until the seventh day. (Sec. 2340.) But, without such failure, it was his duty on the fifth day after the election, or sooner if all the returns be in, “ to open and compare the several election returns ivjiich have been made to his office, and- make abstracts of the votes given for the several candidates for each office, and deposit the same in his office, there to remain.” (Sec. 2342.) In doing this, it'was expressly provided that “ informalities in the certificates of the judges and clerks, at any election * * * shall not be good cause for rejecting the poll-book of said election district.” (Sec. 2344•)' Provision is then made for forwarding copies of the abstract to the secretary of state. If the clerk should fail to do so for two days, he was made liable to heavy penalties. Sec. 8349.

The object of all election laws is the ascertainment of the real will of real electors by such general rules as will, in the end, and by their general operation, be most apt to accomplish that result. This is all that legislation can effect. It can not provide for the innumerable special circumstances which may from time to time occur, nor entrust discretionary powers to the vast array of inferior officers to whom the conduct of elections must be committed. The ultimate ascertainment of the real will of the electors, in disputed cases, must be left to the more guarded and more intelligent discretion of the courts, which may go behind formalities and ascertain the real facts. Hardships may sometimes arise from delays and the expenses of litigation, but these are inseparable from human institutions.

General laws are, as above indicated, directed to preserve the purity of elections in their general application, and, from their very nature, can not safely leave much to the discretion of' ministerial or executive officers. It is easily conceivable how, under political excitement, the elector may find his only shield and safeguard in being able to say to all officers, “ ita lex scripta est.” If extraordinary, or discretionary proceedings are required, it is better that an appeal be made to the courts.

It is equally obvious that those who conduct elections should be protected by obedience to the law, although in the particular case it may cause an injustice which the courts should rectify.

Whether or not the clerk, upon opening the sealed packages purporting to be returns from the judges, and finding them uncertified, should have regarded them as nullities and sent a messenger for proper returns, is not a question raised by the pleadings. The special breach upon which he and his sureties are charged is, that he falsely abstracted the returns in his office. The true questions are, were these papers returns, such as he was bound to notice ? and, if not, had he, by receiving and opening them, estopped himself from denying that they were?

The court below instructed the jury to the effect that whether valid or not, the clerk was bound to abstract them, because he had received and acted upon them. No other action than opening them is shown by the evidence. They were sealed and the clerk could not know, until the packages were opened, whether they contained correct returns or waste paper.' The instructions of the court in this regard were erroneous. There is no room for the doctrine of estoppel. The papers must stand or fall of themselves.

The certificates of the judges and the attestation of the clerks were certainly important. They are plainly essential to that general system of checks and safeguards by which the purity of elections is to be preserved. Can the imagination portray all the confusion and corruption which might flow in from a neglect of these certificates ? They are positively required by the statute in some substantial shape.

Why should the legislature say that informalities should not be good cause for rejecting the poll-books, if the total want of any certificate whatever should nevertheless be matter of no consequence, if the clerk had once gotten into his office sealed packages from the judges ? “ Expressio uni us est exclusio alterius.” It is as much as to say that the want of certificates will, of course, be good cause of rejection.

We find no sufficient proof of fraud or falsity in the action of the clerk, to cure the error in instructions. A new trial should have been granted, and for error in refusing the same, reverse the judgment, and remand the cause for a new trial.


text:
    Harrison et al. vs. The State.
    Contempt : Charging judge with prejudice.

    Prejudice of a judge is no ground for a motion for new trial; and for attorneys to insert in a motion for new trial that the judge before whom it was tried was “ so prejudiced against the defendant that he did not give him a fair and impartial trial,” and to file also their affidavit reaffirming the same charge, is a contempt of the court.
    WRIT OE CERTIORARI to Yell Circuit Court.
    Hon. W. D. Jacoway, Circuit Judge.

      Harrison, May, for plaintiffs.

      Henderson, Attorney General, contra.

   Eakin, J.

Plaintiffs sued out from this court a writ of certiorari to the circuit court of Yell county, Dardanelle district, to bring up the record of proceedings, and quash a judgment rendered against them for contempt.

It appears from the return that there was pending in said court, and in progress, a certain criminal case of the state against S. L. Tucker, indicted for rape, in which there had been a trial and verdict.

On the twelfth of February, 1880, said defendant appeared in person and by his attorneys, and file<j a motion for a new trial.

The record shows also, that next day came said defendant in person and by attorneys, and filed the joint affidavits of these petitioners, to-wit: Joseph G-. Harrison, William N. May, J. P. Byers and H. W. Walker, in support of the twenty-third ground of the motion.

Then follows on the same day the following entry:

“ State of Arkansas, against Joseph G. Harrison, William N. May, J. P. Byers, H. W. Walker.

n + .

“Now, on this day the court doth assess a fine of fifty dollars each against Joseph G. Harrison, William N. May, J. P. Byers and H. W. Walker, for a contempt, committed as follows, viz.: The said Joseph G. Harrison, William N. May, J. P. Byers and H. W. Walker, being attorneys at law, employed on the side of the defense in a cause pending in this court, wherein the state of Arkansas is plaintiff and S. L. Tucker, indicted by the name of Clint. Tucker, is defendant, and the said attorneys, on filing a motiom for a new trial in said cause, stated as one of the grounds of said motion as follows, to-wit: ‘No. 23. Because the judge of this court, in which the prosecution was had herein, was so prejudiced against this defendant that he did not give him a fair and impartial trialand afterwards subscribed to an'affidavit reaffirming said statement, which the court doth consider- a contempt, and doth assess the fines above stated.

“It is, therefore, considered and adjudged by the court, that the state of Arkansas have and recover of and-from the said Joseph G. Harrison, William N. May, J. P. Byers and H. W. Walker, the sum of fifty dollars each, as for fine, and all her costs in this behalf laid out and expended, and have execution therefor.”

It is sufficiently apparent from this record that the acts -of the attorneys, so consideied as contemptuous, were -done by them in the progress of the business of the court; and as the judgment immediately followed without any intervening recess, after the filing of the affidavits, their presence is sufficiently shown. Their duty as attorneys required them to be present, and it should have been affirmatively shown that they, or some of them had left the court, or were actually not present when the papers were filed, if it had been meant to- rely upon any such objection. Whether or not a contemptuous paper, signed by an attorney in the cause, and filed by some other person for him in his absence, would be constructively considered as done by the attorney in the presence of the court, is a question which the record does not present. There are weighty reasons for holding that he could not avoid summary proceedings in that manner. It would certainly require a very clear affirmative showing to the effect that the act -syas unauthorized by the attorney, to shield him from summary process. Otherwise, where the record shows that the attorneys appeared and filed papers, it will be understood that they were corporally present.

i. ConTEMPT:

Charging prefudico?1

For such contempts, no notice is necessary, nor rule to show cause, in order to punish. The very existence of the courts requires that it should be able to act promptly and decisively.

Was it contemptuous in attorneys to allege, publicly, such a ground for new trial, and to support it by affidavits?

We would not inquire nicely into this, even if there were any room for doubt. The presiding judge can, better than we, estimate the manner, spirit and intention of acts done in the presence of the court. Things in the light of surrounding circumstances, not apparent upon the record, might be grossly insulting and tend to destroy respect for judicial action, which, to this court, might seem indifferent. In all systems of government, whatever their checks or balances, there must be reposed somewhere a discretion which may be abused. It can not be more safely reposed than in judges learned in the law and elected by the free-voters of large districts.

2. new

groSnlfort

If the discretion be plainly and palpably abused, this court has the power, and would not hesitate, to correct the misconduct of an inferior*court, but where there is not plain and apparent abuse of authority in matters of contempt, this court ought not to interfere. This court recognizes for itself a duty to the circuit courts, which it requires of all attorneys and officers — that of upholding their authority and enforcing for them that respect and submission from all the community, so essential to the peace of society, the protection of property, and the progress of civilization. They, the circuit courts, are the efficient means of dispensing justice — the only courts original jurisdiction upon which the people depend; and if they fall into general contempt, society and government will be at an end. Hence this court can not trammel them by any close criticism of their judgments for contempt. It would strike a fatal blow at their power of self-protection, humiliate the judges, and deter the best men from accepting such positions. For unworthy judges the best and only antidote is, impeachment or the vote of the people.

But this is not a doubtful case. Prejudice of the judge is no ground for a new trial, and it was not the duty of the attorneys to assert it as such. If the judge had erred in his rulings, or been guilty of any impropriety of conduct injurious to their client, the attorneys should have alleged that respectfully, but firmly and fearlessly. Within the scope of their privileges and in discharge of their duties, this court has ever, and will continue, to protect attorneys against wanton or insulting conduct of the judges. But the duties between bench and bar are reciprocal, and attorneys ought to remember that any unnecessary insult to the judge tends to degrade, in public estimation, the tribunal from which they, themselves, derive the dignity and respect due to their own profession.

These attorneys could not have reasonably expected any good to their client from such a motion, aggravated by their own sworn affidavits, and addressed to the same judge whose judicial character and temperament they were impugning. It tended to make the public believe that justice was not impartially administered, and to produce dissatisfaction, leading to anarchy and confusion. It will be a sad day for our state when the people have the authority of the attorneys for saying that they can not resort to the .courts for justice. Nothing will be left them but to compromise with wrong, or take the enforcement of their rights in their own hands.

. "What provocation these attorneys may have had, or how well founded their reasons may have been for such a motion, we.can not determine. That concerns them as men and citizens. It is enough to say that they were plainly in contempt of the court, and the action of the judge must be sustained.

Affirm the judgment.


text:
    King vs. Haynes et al.
    1. Surety: -Discharge of: Extension of time to principal.

    In order that an agreement between a creditor and principal debtor extending the time of payment, shall have the effect of discharging the surety, the extension must be for a definite period. It makes no difference how short the time, it must be fixed.
    2. Same : Notice to creditor to sue.

    Where a surety claims a discharge from a failure of the creditor to sue the principal debtor after notice to him to sue, and the subsequent insolvency of the debtor, the surety must show clearly the nature and terms of the notice.
    APPEAL from Drew Circuit Court iu Chancery.
    Hon. T. E. Sorrells, Circuit Judge.
    Jackson, Rose, for appellants.

      McCain, contra.

   Eakin, J.

On the fifth of August, 1872, complainant, Haynes, became surety for William P. Montague in a note to defendant King, for $741.88, due February 15, 1873, and to bear interest at the rate of 15 per cent, per annum after maturity. As a further security, complainant executed to King a mortgage of certain lands, with power of sale for the payment of the debt on default. It was well known to King that complainant executed the note and mortgage merely as surety for Montague, to enable him to borrow money.

Afterwards, Montague, without the knowledge or consent of his said surety, executed, and King took from him, the following instrument:

“Monticello, Ark., August 9, 1873.

“I hereby agree to bind myself, my heirs'and assigns, firmly to Matthew J. King, to pay him twenty per cent. (20 per cent.) interest per annum on a certain joint note executed by myself and Eli K. Haynes, said note being a mortgage note concerning certain lands described in said mortgage, recorded in the clerk’s office in the county of Drew, said rate of interest to date from the-day of -, A. D. 1873.

“ W. P. Monta&ue.”

At this time Montague was entirely solvent. How long he remained so is not shown, but early in 1876 he had become insolvent. Several payments in money had been made by him, and an account for merchandise was to be credited, concerning all which there is no controversy. About that time King sold the property under the power in the mortgage, and through an agent purchased it in for himself for the balance of the debt. J

On the thirteenth of June, 1877, Haynes, the surety, together with several others to whom he had meanwhile sold the land, in separate parcels, with covenants of warranty, filed this complaint in equity against King, Montague and the agent and attorney of King, who had purchased the land at the sale.

It states the facts as above recited, and charges that King, without the knowledge or consent of the surety, had made a contract with the principal for extension of time of payment for one year, upon the consideration of an agreement on the part of the latter to pay an additional interest of & per cent, per annum; and, also, that the surety had repeatedly requested King to sue the principal upon the debt whilst he was solvent, and that he had neglected to do so, until the insolvency occurred, whereby a loss would accrue to the surety, if the mortgage were enforced. They pray that the sale may be set aside, and King and his agent be enjoined, from asserting title thereunder; that the mortgage and note he canceled, and their title quieted.

King, in his answer, positively denies that he made any contract for forbearance; or that Haynes requested him to sue. He claims nothing under the sale, admitting that the purchase was made for him; and makes his answer a cross-bill, seeking foreclosure of the mortgage, for the balance due, under the orders of the court. The agent disclaims all interest. Reply was made.

Besides the instrument above set forth, the evidence upon the contested points is substantially as follows :

Montague, the principal, says that “ after maturity of this note, I made a contract with M. J. King, in writing, to give me further time for the payment of said note, in consideration that I would pay 20 per cent, per annum on said note instead of 15 per cent., as stipulated in said original note,” a copy of which agreement' is referred to in the amended bill. He says further that his surety, Haynes, had no knowledge of this agreement, which is the same as that above recited. He proves that he was solvent at that time, and insolvent at the time of the sale, in 1877, and so remains.

Haynes, the surety, says that he had no knowledge of any contract between Montague and King for an extension of time, until after the sale in 1877, when he was informed of it by Montague. He says : “I afterwards spoke to Mr. King about the matter, and he admitted to me that he had made a different contract from the original contract with Montague, whereby Montague agreed to pay him a greater amount of interest than that specified in the original contract, in consideration of an extension of time for the payment of the same.”

Hpon the other point he says: “At divers times between the maturity of said note of Montague and the day of .the sale of the lands mentioned, * * * I saw Mr. King and urged him to make the money out of Montague on said note, and told him that I had sold the lands, or a part of them, included in the mortgage, and wanted the debt collected so as to remove all incumbrance. I urged upon King the fact that Montague was merchandising and that it was a risky business, and King told me that he was trading with Montague and thought he would get out of him all the money due on this note.” The lands at the sale brought $490. Montague remained solvent until a short while before the sale. He meant, when he was urging King to close up the matter, that he desired him to collect the money or bring suit on the note. Does not recollect when he first gave this notice, nor who, nor whether any one was present. The notice was verbal. Witness was not able to pay the money and bring suit himself. Did not know of Montague’s insolvency until about the time of the sale, or first of April, 1877. In speaking, of the contract between Montague and King, which he says both told him of, he refers to that exhibited. He says that he did not understand from either of the parties that it was taken in lieu of the original contract, or in satisfaction of it, but that it was made for an extension of time.

King, the creditor, says that Haynes “ at one time spoke to me and said that he had sold a part of these lands, and wanted me to get other security from Montague and release them; and this is the only time he ever spoke'to me about the matter, to my recollection, and this I am positive about. In January, 1877, Judge Haynes asked me how I was getting along in collecting the mortgage note, and said he was afraid he would suffer by the matter, and asked me to push it up as fast as possible, or something to that amount.”

sUKett:

to°nprin“i!

"With regard to the agreement for extension, he says that he never bad any other or different one from that in the writing exhibited. Concerning it, he says: u I was after Mr. Montague for some money on this note at one time, and he paid me part and agreed to pay me five per ■cent, interest more on the note; and he made out the agreement referred to in exhibit “33” and gave it to me. Montague said, at the time, that he was in business, and it would cripple him to pay at that time, and he would rather do this than pay at that time. This agreement was not intended to affect the original note.”

There was no other evidence throwing any material light on the transactions.

Upon hearing, the Chancellor found that there had been a contract for an extension of time, without the consent of the surety. Whereupon, “ and upon consideration of the other facts appearing from the testimony,” it was decreed that the note and mortgage, so far as they affected the complainants, be canceled, and that the sale under the mortgage be annulled, and that defendant pay the costs. Erom this decree King appeals.

In the case of Thompson et al. v. Robinson, Sheriff., 34 Ark., 44, this court adopted the rule that “in order that an agreement between a creditor and principal debtor, extending the time of payment, shall have the effect discharging the surety, the extension must be for a definite period. It makes no difference for how short a period the time is extended, but that period must be fixed, other’wise the hands of the creditor are not tied, and he may proceed at any time.”

The rule approved by a great many authorities is, that, “ if the creditor enters into any binding contract, the effect of which will be to give further time to the debtor, without consulting the surety, the surety will be thereupon discharged,” The reason for this rule, as stated by Lord Eldon, in Samuel v. Howarth, 3 Mer., 272, is, “ because the creditor, by so giving time to the principal, has put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal or not, and because he, in fact, can not have the same remedy against the principal as he would have had under the original contract. (See the question discussed and numerous authorities cited in the notes to case of Rees v. Berrington, White & Tudor’s Leading Cases in Equity, Vol. II, Part II, p. 1867.) Lord Eldon, in the case above cited, says the extension of time must be by positive contract.

Upon consideration of the written instrument, we find nothing in it, whether by condition, recital, or implication, which has any allusion to an extension of time.

The instrument itself is incomplete and uncertain as it appears in the transcript — so much so that without extraneous proof, it would not be enforced against Montague, himself, either in law or equity. The point of time from which the additional interest is to run is not given. All the evidence concerning 'the supposed extension of time given by King, relates to this instrument, and there is no proof whatever of any other contract for that purpose. Doubtless King was willing to take the additional per centage and rest upon his security, but that would not release the surety, in the absence of any binding contract which could interfere with any rights the surety might deem it proper to assert. We think his Honor, the Chancellor, was mistaken in supposing that this case came-within the reason of the rule for the release of the surety.

2.--= “®ditor t0

Although the Chancellor made his decree upon this ground, it is urged here, by counsel for appellee, that upon general equitable principles, independent of the statute requiring notice, in writing, the surety was released by the failure of King to sue upon verbal notice, and the subsequent insolvency of the principal. And he relies upon the case of Hempstead & Conway v. Watkins, 6 Ark., 353.

The burden of proof of such notice lies upon the surety, and he must show clearly the nature and terms of the notice, in order to invoke the authority of that case, to deprive the creditor of his legal rights. This is not done. The testimony is balanced; and even if that of the complainant be taken, alone, falls short of that certainty as to time and terms, which a court of equity would require, in order to visit the creditor with the penalty of a forfeiture for laches.

We think the court erred in giving the relief to complainants, and in denying the relief sought by the cross-bill. All parties interested were before the court, and it should have taken an account of the balance due upon the note and decreed a foreclosure of the deed of trust in favor of the complainant in the cross-bill. To that end, let the decree be reversed, and the cause remanded, with instructions to the court below to enter a decree for foreclosure, as herein indicated, and to execute the same in accordance with the practice in equity, and this opinion.