author: C. B. Moore, S. J.

text:
    Estes, Ad., etc., vs. Martin, Ad., etc.
    I. Jurisdiction: When acquired, continúan, etc.

    When a court once rightfully acquires jurisdiction of a cause, it has the right to retain and dec de it.
    Jurisdiction of the court depends upon the state of things at the time of the action brought; and, after vesting, it cannot be ousted by subsequent events.
    APPEAL from Pulaski Chancery Court.
    Hon. J. R. Eakin, Chancellor.

      B. _D. Turner and U. M. Rose, for appellant.

      Newton, contra.

   C. B. Moore, S. J.

The original bill in this case was brought in the Pulaski chancery court, to the October term, 1867, by Jasper M. Gonder against James A. Martin, as administrator de bonis non of the estate of James B. Johuson, and against his widow, then married again, and his heirs, and Albert Rust andD. J. Iiartsook, as executor of Mary W. Cabell, and her heirs.

The bill alleges in substance that, in 1859, James B, Johnson agreed to sell to Gonder certain lands known as the Ben Oak plantation, in Desha county, Arkansas, for the sum of $75,000, one-third of which was to be paid in cash, and the balance in one and two years. On the first of January, 1860, Johnson conveyed the lands to Gonder, receiving $25,000 in cash, and retaining a lien for the unpaid purchase money, which was evidenced by two notes for $25,000 each, due in one and two years.

Before the notes fell due, Gonder made large payments on them; after which he discovered that the lands were incumbered by a prior mortgage, given by Johnson to Albert Rust, to secure a debt of some $50,000, and which mortgage was recorded before he bought the land.

Immediately on discovering this, he applied to Johnson to remove the incumbrance, which he promised to do.

Rust had, in the meantime, assigned his mortgage to Mrs. Cabell, as security for a debt which he owed her. She had died, and Iiartsook had qualified as her executor in Virginia, -where she lived and died. •

That in January, 1861, Johnson requested Gonder to pay the balance of the money due him, to enable him to extinguish the Rust m oi’tgnge, and after some negotiations between all the parties, it was agreed that the balance due from Gonder should be paid by him to Rust and Hartsook, upon which the mortgage should be released and canceled. That in April, 1861, he paid about $10,000 to Rust, which he agreed to credit on the mortgage debt; whereupon Rust agreed that if Gonder would pay him the balance due to Johnson — about $12,000 — by January 1, 1862, he would release the mortgage. Still further negotiations seem to have been made, and on the nineteenth of April, 1861, Rust empowered his attorney to enter satisfaction of the mortgage if Gonder would pay the $12,000 by the twelfth of May, 1862. In pursuance of this agreement Gonder, on the third of May, 1862, sent the $12,000 to Hartsook, who acknowledged its receipt, and according to directions applied it as a credit both on Johnson’s debt to Rust, which Hartsook held by transfer, and upon Rust’s debt to Mrs. Cabell’s estate.

The bill further sets forth that in April, 1861, Johnson executed a second mortgage to Rust, on certain lands in Pulaski county, Arkansas, to secure the original debt to Rust, and which last mentioned mortgage was received by Rust in substitution of the mortgage on the lands in Desha county. Further, that other payments had been made by him (Gonder) to other parties, for Johnson, and that the various payments made, fully extinguished his indebtedness to him. That Johnson died in February, 1862; that the proper credits had never been entered on his notes, which were held by Martin, Johnson’s administrator.

On the two grounds of the substitution of the Pulaski mortgage for the Desha mortgage, and payment, he prays, that the Desha mortgage be decreed to be satisfied — that his notes to Johnson be canceled and delivered up to him— and for general relief.

Hartsook, as well as Rust and Martin, answered the bill.

It will only be necessary to notice tlie answer of Hartsook, as Rust subsequently went into bankruptcy and ceased to have any interest in the suits, and his assignee was never made a party ; and Martin, the administrator of Johnson, withdrew from the defense of the suit about the same time.

And we remark here that, for the determination of the questions presented, we pass over and refrain from any mention of a great part of the pleadings of various parties drawn into the controversy from time to time in this protracted litigation, but whose interests in the suit have ceased, or are immaterial to the present inquiry.

Hartsook, in his answer, denies that he ever authorized the payment of the $10,000 to Rust by Gonder, or that he made any agreement for the release of the Desha mortgage, or that Rust had any power to make any such agreement for him ; denies that the mortgage on the Pulaski lands was accepted as a substitute for the mortgage on the Desha lands, hut consented that it might be regarded as additional security for Rust’s debt.

He makes his answer a cross-bill against Gonder and his co defendants in the original bill, and prays that both mortgages might be foreclosed.

This answer and cross bill was filed on the seventeenth of June, 1868. After the suit had been long pending, to-wit: on the ninth of May, ^876, Hartsook filed an amended and supplemental answer aud cross-bill, making the occupants and subsequent purchasers of the Pulaski lands, parties, with a view to a more specific claim on them as cumulative security.

It turned out in the hearing, that these Pulaski lands, when Johnson mortgaged-them, were subject to prior liens for purchase money, and that the claim against the occupants and purchasers was barred by limitation.

Several interlocutory decretal orders, on demurrer to the cross-bill, and in reference to the complicated state of the pleadings, were made, in the progress of the suit, by the chancellor, which are not important to be noticed now by us.

G-onder and Rust have both died in the meantime, and after long delays, their legal representatives were brought in as parties in their stead.

So the suit dragged its weary length along until the month of June, 1877, ivhen, after everybody who could be supposed to have any interest possible in the controversy had been brought into it, final decree was rendered.

The chancellor decreed that Martin, the administrator of Johnson, should bring into court, and deposit with the clerk, to be canceled, the notes of Gonder given for the purchase money of the Desha lands, and that they be adjudged to be fully paid and satisfied, and that the administrator was entitled to a credit for the same against his inventory in his settlement with the probate court, and that he or his successor as administrator, be perpetually enjoined from proceeding to collect said notes, or any part thereof.

Further, that as to all other matters, the original bill be dismissed for want of jurisdiction.

Further decreed, that so n^uch of the cross-bill of Hartsook as seeks to foreclose the mortgage on the lands in Pulaski county be dismissed for want of equity, and that as to said lands in Pulaski, the decree be final as between Hartsook and the parties to the suit claiming the lands. Then the decree proceeds as follows : “It appearing that this court has no further jurisdiction of this cause to proceed therein, and to make any decree with regard to the lands in Deslia county involved in this suit, the said cross-bill of ITartsook is dismissed without prejudice of any of the rights, interests or defenses in or to the said lands in Desha county brought, into controversy in this suit; but, with regard to said lands in Desha county, to stand as if this suit were never brought,” etc.

To the opinion and rulings of the court in this decree, Hartsook excepted, and appealed. No exceptions are insisted on, however, by Hartsook or his counsel, to any part of the decree save the portion above quoted, by which Hartsook’s cross-bill is dismissed for want of jurisdiction.

Since the transcript was filed in this court, Hartsook has died, and M. K. Estes, “ as sheriff and administrator de bonis non ” of Mrs. Cabell’s estate, has, by proper proceedings, been substituted as the appellant herein.

The learned chancellor having decided (and we think correctly) that the prayer of the cross-bill concerning the Pulaski, lands, or any relief whatever concerning them, should be denied upon the merits for want of equity, reached the conclusion, and so decreed, that the jurisdiction over the Desha lands must fail.

It must be borne in mind that this suit was instituted, and all the proceedings had, in the chancery court of Pulaski county. It was brought in 1867, before the. adoption of the Code of Practice.

Our present inquiry is limited to the one question of jurisdiction.

The statute in force at the time of the institution of the suit, and under which the Pulaski chancery court was created, provided that the Pulaski chancery court should “possess the same jurisdiction and powers, and be governed by the same rules, as the circuit courts in this state in chancery cases.” Gould’s Digest, ch. 28 (Art. 11), sec. 6.

The general statute then in force, in regard to the venue of suits concerning real estate, provided that “ suits in chancery concerning real estate may be instituted in any county in which any part of such real estate may be situated, or in which the defendant, or any of them, may reside.”

See Gould’s Digest, ch. 28 (art. I), sec. 3. Section 4, same chapter, provides .that, “In other cases, suits in chancery shall be brought in the county in which the defendant may reside, or in the county in which the plaintiff, or one or all of several plaintiffs, resides; and the defendant, or one or all of several defendants, are found and served with process,” etc.

These two sections, construed with the provisions of the section above cited, as to the powers and jurisdiction of the Pulaski chancery court, applied to that court equally with any circuit court in the state.

It is proper to remark, in passing, that these provisions as to the venue in real estate cases in chancery, are modified and materially changed by the Code — and this ease was decided long after the Code went into use, and we suppose, was decided by the chancellor with reference to the rules of the Code.

Now, in the case at bar, the suit begun in the Pulaski chancery court by Gonder, related primarily and chiefly, to the lauds in Desha county; but the mortgage on the Pulaski lands is referred to distinctly in the original bill of Gonder, and the fact stated and insisted on, that Rust had agreed to accept it in substitution of the mortgage on the Desha lands.

Plartsook, in his answer and cross-bill, lays hold more distinctly7 and emphatically, of the Pulaski county mort- * gage, and contends that it was given as cumulative seenrity, ancl asks lor its foreclosure as well as of the Desha mortgage.

Both Gonder and Hartsook refer to, and ask relief in good failh, as to the Pulaski mortgage, and there is no ground for the belief that there was any fiction, or pretense} intended by either or any ol the parties in regard to it, so as to impose on the jurisdiction of the court.

The suit then clearly “concerned” real estate, situated in Pulaski couuty, and the jurisdiction attached by the bringing of the suit and the filing of Hartsook’s cross-bill, both as to the lands in Pulaski andin Desha counties. There is no question but that if the facts had warranted a foreclosure of the mortgage, and the relief asked as to the Pulaski lands, the court below could and would have gone on and decided the merits of the case as to the Desha lands.

That this could be done in such a case, and was contemplated by the framers of the statute, is clear from the twenty-second section of the twenty-eighth chapter, Gould’s Digest, in which it is provided as follows :

“ "When, under the provisions of this act, any decree or judgment shall be made or rendered in the courts in Pulaski county against persons or property not within its territorial jurisdiction, an authenticated transcript of the entry made in the judgment docket as required by law, shall be immediately transmitted to the clerk in the proper county where the defendant may reside or have real estate, or where the real estate sought to be affected by the decree or judgment is situated; and the clerk receiving such transcript shall at once file lor record, and shall record the same upon his judgment docket: and such judgment or decree sliall be a lieu upon real estate in the county where the transcript is filed, as if the same had been made or rendered in that county,” etc.

Moreover, part of the defendants to the original bill resided in Pulaski county — Rust and Martin, Johnson’s administrator, and the administration of Johnson’s estate, were in that county. This fact alone, had there been no real estate in Pulaski county to be affected in the suit, would, under the law as it then was, have given jurisdiction to the Pulaski chancery court.

Hartsook did not originally seek that forum, but was brought there in this suit by due and regular process, and saw fit, as he had the right, to make his answer a cross-bill, that all his rights or supposed rights touching the controversy might be settled in and by that suit.

Gfonder would have had no right to dismiss his bill .after the filing of the cross-bill of Hartsook, if he had so desired.

See Sale and Wife v. McLean et al., 29 Ark., p. 612, and cases cited.

“In that case this court approved and reiterated the doctrine as laid down in the case of Cockrell v. Warner and Wife, 14 Ark.; that when a defendant filed a cross-bill founded on a matter clearly cognizable in equity, the cross-bill supplies any defect in jurisdiction, if any existed, and placed the court in possession of the whole cause, and imposed the duty of granting relief to the party •entitled to it — the original and the cross-bill being but one cause.”

We conclude then that the jurisdiction clearly and rightly attached both on the ground of the suit “ concerning ” real estate in the county of the forum, and the residence of some of the defendants being in that county.

The jurisdiction having once attached, was it competent or possible that it could be ousted or lost in the progress of the suit? We think not, and can not concur with the learned chancellor, that when the cross-bill of Ilartsook failed as to the relief sought against the Pulaski land, the jurisdiction failed as to the Desha land.

It is the universal rule, so far as we know, in the courts of the various states, and in the Dnited States courts, that where a court once ■ rightfully acquires jurisdiction of a cause, it has the right to retain and decide. See Price v. State Bank, 14 Ark., 50; Heilman v. Martin, 2 Ark., 168; Robertson v. Thompson, 3 Ind., 190; Morgan v. Morgan, 2 Wheat., 290.

In the ease last cited, Chief Justice Marshall uses this language: It is quite clear that the jurisdiction of the court depends upon the state of things at the time of the action brought, and, after vesting, it can not be ousted by subsequent events.”

As to the merits of the case made as to the Desha lands, in Hartsook’s cross-bill, we decide nothing, as no decree was rendered in the court below touching that part of the controversy.

Let the decree as to all other matters be affirmed, and for the error in dismissing Hartsook’s cross-bill, let the case be reversed and remanded to the Pulaski chancery court, with directions to hear and determine the matters arising under the same, not already decided.

Pión. J. R. E-AKiN, J., did not sit in this case.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Sigment vs. The State.
    1. Practice in Supreme Court: Bill of exceptions.

    When the bill of exceptions contains no reference to the motion for new trial, and no exception to the decision of the court overruling it, there is no question of law before the supreme court to decide, on the appeal.
    APPEAL from Garland Circuit Court.
    I-Ion. J. M. Smith, Circuit Judge.

      Kimball, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

Joseph Sigment and Mary Sigment were indicted in the circuit court of Hot Springs county for selling ardent spirits, etc., on Sunday.

They were tried on the plea of not guilty, the jury found Joseph guilty, assessed a fine against him of ten dollars, and acquitted Mary.

It seems that he moved for a new trial, which was refused, and he took a bill of exceptions,-setting out the evidence and instructions of the court, but in the bill of exceptions there is no reference to the motion for a new trial, and no exception to the decision of the court overruling it. There is, therefore, no question of law reserved for this court to decide on this appeal.

Affirmed.


text:
    Ray vs. Light.

      1. Instructions : Error in, when waived.

    When error in giving or refusing instructions is not made ground for new trial, it is waived.
    2. Execution Sale • Purchaser of safe is not, of contents.

    The purchaser of a safe at an execution sale, acquires no title to its contents. It is his duty to preserv.e them and restore them to the owner when called for.
    3. Trover : Conversion, what it is. -
    A conversion, in the sense of the law, of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s rights, or in withholding the possession from the plaintiff’, under a claim of title inconsistent with his.
    4. Same : Conversion — demand and refusal.

    Pi'oof of demand and refusal, or non-compliance, is prima facie evidence of conversion.
    6. Same : Demand too large.

    When the demand is for several articles, only some of which the plaintiff is entitled to, a general refusal, without offering to deliver those he is entitled to. will he evidence of conversion of them.
    6. Trover : Measure of damages for chose in action, etc.

    The measure of damages in trover for a chose in action, as a bond, hill, note, or other security for payment of money, is prima facie, the amount due on the security; the defendant being at liberty to reduce that valuation by proof of payment, or the insolvency of the maker, or of any fact tending to invalidate the security.

      1. Same : Conversion, joint and several.

    In trover, as in other actions of tort, one or more of the defendants may be found'guilty and the others acquitted. But the plaintiff' cannot recover against all, unless he prove a joint conversion by all.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      M. L. Jones, for appellant.
   English, C. J.

This was a Code action, in the circuit court of Jefferson county, in the nature of the common law action of trover for the conversion of goods. The suit was commenced, twenty-sixth of April, 1876, by George S. Light against Abraham Ray, David Young and Elizabeth Kite. A schedule of the goods, consisting of numerous articles, "was attached to and made part of the complaint.

No question is presented on this appeal as to the form or substance of the complaint or answers.

Henry W. Scull, upon his own motion, was made defendant, and claimed the property described in the first seven items of the schedule attached to the complaint, consisting of drawers, cases, counters, tables, shelving, etc.; and called drug-store fixtures.

In the schedule, among others, were also the following items:

1 gold breastpin and finger-ring (in safe)............$ 15 00

1 lot of county scrip “ 399 10

5 years’ interest on same “ 119 11

1 lot county bonds “ 266 00

1 year’s interest on same 15 96

The jury returned a verdict in favor of defendants, Young and Kite, and they were discharged.

The following verdict was rendered against defendant Ray:

“We, the jury, find for plaintiff, etc., against A. Ray, for value of county scrip and county bonds and interest, as set forth in the complaint, being, in amount, $800.27, at the rate of sixty-five cents on the dollar, being of the value of $520.17, and interest on same from date of complaint, one year and eight months, at six per cent., $52.01; also, for one gold ring and breastpin, $15 ; interest on same for one year and eight months, at six per cent., $1.35 : Total, $588.53.”

The jury also returned a verdict against defendant Scull for the value of the property claimed by him, part of which the plaintiff remitted, and he filed no motion for a new trial, and took no bill of exceptions.

Ray filed a motion for a new trial on the grounds following:

1. Verdict as to him, contrary to the evidence.

2. Contrary to law, as given by the court.

3. Contrary to the law and the evidence.

4. Verdict not supported by any evidence as to the value of the county scrip and county bonds, mentioned in plaintiff’s complaint.

The court overruled the motion for a new- trial; the plaintiff' remitted so much of the verdict against Ray as was in excess of $330.75, for which final judgment was entered, and Ray took a bill of exceptions, and appealed.

I. On the trial, appellee moved a number of instructions, some of which were given by the court, and others refused. For appellant, twelve instructions wrere asked, and all given, except the seventh and ninth.

Counsel for appellant submits that the court erred in refusing these two instructions, and also in giving the fourth and seventh moved for appellee.

Error in giving or refusing instructions was not made ground of the motion for a nevr trial, and, therefore, by a familiar rule of practice, was waived, if any occurred.

II. Counsel for appellant also insists that there was no evidence that he converted the county scrip, bonds and jewelry; and (III) that the value of the scrip and bonds was not proved ; that the jury fixed their value arbitrarily.

The substance of so much of the evidence introduced upon the trial, and set out in the bill of exceptions, as relates to the conversion of this property, by appellant, and its value, may be here stated :

George S. Light, appellee, testified that he left Pine Bluff' in June, 1875, where, at that time, he was carrying on a drug and fancy store business. He left a safe in his store, and in the safe the county scrip, county bonds, and gold bi'eastpin and finger-ring mentioned in the schedule attached to the complaint. The amount of the scrip was as stated in the schedule. The breastpin and finger-ring were worth $15. Plere his counsel held up the schedule, and asked him what was the value of the property scheduled ? He replied that it was worth the amount stated in the schedule; that the total value was-between $1,600 and $1,800.

(It may be here remarked that the value of each article, or class of articles, put down in the schedule is stated in the margin, and the whole footed up at $1,754.67.)

'Witness then proved specifically the value of the first seven articles in the schedule, and of all other articles except the coffin and the county scrip and county bonds.

Witness returned to Pine Bluff in February, 1876, and found Young and Kite in possession of the store-house and of the goods in the schedule, except a few articles; they did not have the county scrip and county bonds, nor the breastpin and fiuger-ring. He made a demand of them for the articles in the schedule by reading the whole list over, and demanding the same. At another time and place, and before suit, he demanded the same articles of Abraham Ray (appellant), by reading the whole of the schedule over to him, and demanding the same; no specific article was demanded.

It was admitted on the trial that Ray, on the first of January, 1876, had purchased under execution issued against George S. Light (appellee), on a judgment in favor of Joseph Merrill, the stock of drugs and the safe, and certain other articles of merchandise, all of which, except the safe, Ray afterwards sold to "Young and Kite, who took possession of the store-house, and the goods and chattels so purchased from Ray.

It was also admitted that the suit was not intended to embrace any of the property purchased by Ray under the execution.

A list of the property purchased by Ray under the execution was attached to the return of the sheriff upon the writ, and was read in evidence.

In the list is. a safe appraised at $35, but no county scrip, county bonds, gold breastpin or finger-ring.

A. T. Seymour, witness for appellee, testified that after Ray purchased the stock of goods, etc., at the execution sale, he requested witness to take charge of them for him and take care of them, 'which he did; that, after he took charge of them, Ray sold the safe to some one, and before the safe was delivered, witness opened it and found in it a lot of county bonds and county scrip.

Here witness gave a list of the county bonds and scrip, which is copied in the bill of exceptions. The amount of each piece of scrip and bond is put down in figures, and the whole footed up at $434.50.

"Witness further stated that he also found in the safe a finger-ring and breastpin; that he delivered the county scrip and bonds to Ray. He did not deliver him the breast-pin and ring, but kept them in his possession, and still had them. Ray never claimed to own them, and never claimed possession of them. Afterwards, about the last of January, 1876, Ray sold out the drugs and other articles to Young and Kite, and witness gave up his charge to them. He took possession of all the goods in the safe, as the agent of Ray.

Abraham Ray (appellant) testified that on the first of January, 1876, he bought the stock of drugs at the execution sale, and thought at the time he was buying everything in the house. Among other property, he bought the safe in which was the bonds and scrip. After purchasing and taking possession of the goods, he put A. T. Seymour in charge of them as his agent. About the twenty-eighth of January, 1876, he sold out all the stock he had purchased to Young and Kite except the safe, which he had previously sold to another person. Before he sold and delivered the safe, Seymour opened it, and found the scrip and bonds, and delivered them to him, telling him he had gotten them out of the safe. He did not know what was in the safe. When the scrip and bonds were delivered to him by Seymour he took them and deposited them in the bank of Smart, Hudson & Co., in his own name, to remain until the question could be decided who they belonged to, and they were there yet. Several days before the suit was brought, appellee and his attorney, in the presence of two other persons, came and read over to him the schedule of goods attached to the complaint, and demanded possession of all the goods in the list in bulk. No demand was made of him for any specific article in said list. When the demand was made, he replied that he knew nothing about the matter, and referred them to his attorney. At the time of the demand, he had nothing in his possession but the scrip and bonds. He never claimed ownership of the ring and breast-pin, or right to the possession of them. When he purchased the goods under execution, he thought he was buying the contents of the safe with the safe.

II. That appellee had title to the scrip,bonds and jewelry in controversy on this appeal, does not, upon the evidence adduced at the trial, admit of doubt. Counsel for appellant concedes that by his purchase of the safe at the execution sale, he acquired no title to the contents of the safe. There is no evidence that the sheriff opened the safe levied upon, and sold its contents, if he might have done so. Allen on Sheriffs, p. 110.

After appellant purchased the safe, he put Seymour, as his agent, in charge of it, who opened it, and found in it the scrip, bonds and jewelry. It seems that appellee was absent when appellant purchased the safe, and when it was opened by his agent. It was the duty of appellant to take care of this property, and restore it to appellee, its owner, when called for.

A conversion in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s rights, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own. It may, therefore, be either direct or constructive, and, of course, is proved either directly or by inference. 2 Greenlf. Ex., sec. 642.

Proof of demand and refusal, or non-compliance, is prima facie evidence of conversion, Ib., sec. 644; Zachary v. Pace, 9 Ark., 212.

What response appellant made to appellee, when he read over to him the list of articles contained in the schedule attached to the complaint, appellee did not state in his testimony. But appellant stated in his testimony, that when the demand was made, he replied that he knew nothing about the matter, and referred them (appellee and his attorney) to his attorney.

It appears that before the demand was made, he had deposited the scrip and bonds in bank, in his own name, and they were there subject to his control when the demand was made, and the breastpin aud ring were in possession of his agent, who had opened the safe, and taken them out of it, by authority from him, and they were likewise, of course, subject to his control, in the hands of his agent.

Saying, under such circumstances, that he knew nothing about the matter, and referring appellee to his attorney, whom appellee was under no obligation to consult, was equivalent to a refusal to deliver the goods, and some evidence of conversion.

The fact that appellant thought that when he bought the safe at the execution sale, he purchased also its contents, was no valid excuse for his refusal, in effect, to deliver its contents to appellee, when demanded. His claim to the contents of the safe was neither reasonable nor well founded. Zachary v. Pace, 9 Ark., 216. One, purchasing a house under execution, might as well claim its contents, no matter how valuable; and make such groundless claim, an excuse for refusing to surrender possession of goods, found in the house, on demand of the owner.

Counsel for appellant submits that his refusal to deliver the goods in controversy on this appeal, upon a demand of all the articles in the schedule, was no evidence of conversion ; citing 2 Saunders’ Rep., p. 47, K, notes (t). So much of the note as bears upon the point made, is as follow's:

The demand, in order to make the refusal evidence of a conversion, must be specific. * * * So, where the plaintiff', being entitled to the five best beasts as heriots, marked seven beasts, claiming all as heriots, and left them in the possession of the defendant, who was the owner up to the marking; and the plaintiff afterwards applied to the defendant, who still had possession of the seven, for the beasts generally, but the defendant refused to give them up, without qualifying his refusal; it was held, no conversion of the beasts, the demand having reference to a seizure of seven, and it not being ascertained that any five were legally cliosen. * * * “ If the demand he too large, as where the plaintiff', being entitled to five beasts, claims seven, and the defendant refuses the seven, but offers to give up five, and the plaintiff' persists in demanding the seven, and declines the five, the demand is wrong, and the refusal justifiable. ' But if the defendant refuse on the ground that the plaintiff has no right to any one of the beasts, it should seem that such refusal is evidence of a conversion, as to the five, to which he is really entitled.” 1 Q. B., 781. “ So, where the plaintiff, being entitled to certain wooden sash frames, in which were fixed some iron pulleys, belonging to the defendant, demanded the sash frames, and the defendant gave an unqualified refusal, to deliver them up, it was held, that such demand and refusal was a sufficient evidence of' a conversion of the sash frames; though it might have been otherwise if the refusal had been a qualified one, on the grounds that the pulleys were attached to the frames.”

On the facts of this case, the note from Sanders does not sustain the point made by counsel for appellant.

Appellee made a schedule of the goods which he claimed as not having been sold under the execution, in which were put down the scrip, bonds, breastpin and ring, which were in his sale when it was purchased by appellant.

He read over the whole list of articles to appellant, and demanded them of him. The fact that appellant was not in possession of some of the goods in the list, was no valid excuse for his refusal to deliver such as were in his possession, or under his control. He did not put his refusal on the ground that the demand was too large, but replied that lie knew nothing about the matter, and referred appellee to his attorney; and the reply, in point of fact, was not true ; for he knew, at the time, that he had deposited the scrip and bonds in bank, in his own name, and that the breastpin and ring were in possession of his agent.

In Breese v. Bange, 2d E. D. Smith, C. P. New York R., 475, where, as the foundation of an action in the nature of trover, demand was made of numerous articles scheduled, which, at the time, were in remote places ; and the defendant, after stating that he was unwilling to do any thing in the matter until he could consider of the matter, requested a copy of an inventory of the articles, which was thereupon promised, but was never furnished before suit, it was held that the demand and refusal were insufficient as evidence of a conversion.

In this case, appellant requested no copy of the list of the articles demanded, and none was promised.

III. It is true that there was no evidence of the actual or market value of the scrip and bonds.

Where the property sued for in trover is a chose in action — as a bill, note, bond, or other security for the payment of money — it seems that the measure of damages is prima facie the amount due on the security, the defendant being'at liberty to recluce that valuation by evidence showing payment, the insolvency of the maker, or any fact tending to invalidate the security. Sedgwick on the Measure of Damages, 6th ed., p. 609, and notes.

The amount of the scrip and bonds, with the interest due upon them at the time of the demand, was stated in the schedule. If the jury believed the testimony of appellee, they might have rendered their verdict for that amount, in the absence of any evidence that the scrip and bonds were depreciated. -

Without evidence, and perhaps from personal knowledge, the jury found that they were worth sixty-five cents on the dollar — which was an error in favor of appellant.

The witness Seymour stated, in effect, that the scrip and bonds, taken from the safe by him, amounted to $434.50. He said nothing as to interest due.upon them. If he had been the only witness, the jury could not have found the value of the scrip and bonds to have been greater than the sum stated by him.

It was within the power of appellant to produce the bonds, and show their face value, the interest due upon them, and to prove their market value. This he failed to do.

Appellee remitted so much of the verdict as was in excess of $330.75.

IV. It is further submitted for appellant that the complaint having charged a joint conversion of the goods by him, Young and Kite, appellee was obliged to prove a joint conversion as alleged, or fail in the action as to all of the defendants. The point is not well taken.

In trover, as in other actions of tort, one or more defendants may be found guilty and the rest acquitted. But the plaintiff can not recover against all, unless he prove a joint conversion by all. Starkie on Evidence, vol. 2, part 2, p. 1164; 2 Sanders R., p. 475, note(i).

V. It is furthermore submitted for appellant that the scrip and bonds were in the custody of the law at the time the demand was made, and that therefore appellee could not maintain the action.

There was an attempt to prove, on the part of the defense, that the scrip and bonds were attached in the hands of the bankers, with whom they were deposited by appellant, at the suit of Scull; but the return of the sheriff' upon the writ of attachment, introduced in evidence, fails to show that fact. Some money of appellee’s, in the hands of the bankers, it seems,'was attached, but released by order of the court on account of defective execution of the writ.

Upon the whole ease, we think there was some evidence to support the verdict, and the judgment must he affirmed.


author: Harrison, J.

text:
    Crowell vs. State.
    1. Chiminal Pbaotioh: Bill of exceptions not allowed in time, no part of record.

    "When it does not appear that a bill of exceptions, in a criminal case, was allowed b,, the judge within the time given, or even before the end of the, succeeding term, beyond which it could not have been extended by the court, it will not he considered as any part of the record.
    APPEAL from Scott Circuit Court.
    Hon. Thomas H. Barnes, Special Judge.

      Duval Sf Cravens for appellant.

      Henderson, Attorney General, contra.

   Harrison, J.

Edward Crowell was, at the June term, 1878, of the Scott circuit court, convicted of the crime of rape, and sentenced to be hanged. He prayed an appeal to this court, and ninety days from the date of the order, which was the fourteenth day of June, 1878, was given him, in which to prepare and present to the judge a bill of exceptions.

An appeal was granted by a judge of this court.

The bill of exceptions, which was not in the transcript when filed, but has since been brought here in a return to a certiorari, is without date, and was filed with the clerk on the twenty-sixth day of December, 1878, and after the term succeeding the trial. It does not appear that it was allowed by the judge within the time given, or even before the end of the succeeding term, beyond which it could not have been extended by the court.

"We can not, therefore, consider it as any part of the record.

Our attention has not been called to, nor do we find, anything in the record for which the judgment should have been arrested.

The judgment is affirmed.


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    Howard vs. The State.
    1. Criminal Law: Indictment: Good and bad counts: Verdict.

    Where there are several counts in an indictment for the same offense, some good and some had, and there is a verdict of guilty on the indictment, it will he referred to the good counts, and the had will ho no ground for arresting the judgment.
    2. Criminal Pleading : Indictment; varying counts.

    It is no objection to an indictment that the different modes in, and means by which an offense is alleged to have been committed, are stated in several and distinct counts.

      3. Evidence : Direct and circumstantial, distinguished.

    When the existence of any fact is attested by witnesses, as having come under the cognizance of their own senses, the evidence of the fact is said to be direct or positive; but when the existence of the principal fact is only inferred from one or more circumstances which have been established directly, the evidence is said to be circumstantial.
    4. Criminal Law : Intent, when implied.

    Every one is presumed to intend the natural consequences of his act; and though a specific intent may not exist in the mind, the law will imply an intent to produce the effect, when it is the natural and probable consequence oí the act.
    5. Admissions: Jury not bound to believe all a party said.

    The jury are not bound to give equal weight to all the statements of a defendant admitted in evidence.
    APPEAL from Franklin Circuit Court.
    Hon. W. D. Jacoway, Circuit Judge.

      Fielder, for appellant.

      Henderson, Attorney'General, contra.

   Harrison, J.

The appellant, James Howard, was indicted in the Franklin circuit court, for the murder of Mollie Howard, his wife; and he was convicted of murder in the first degree. He moved for a new trial, which was refused, and then in arrest of judgment, and the latter motion was likewise overruled.

The ground of the motion in arrest of judgment was: that the indictment did not charge the offense with sufficient certainty.

The indictment contained seven counts, or, in other words, alleged the offense to have been committed in so many different ways. In the first, the killing was alleged to have been by choking; in the second, by striking,beating, wounding and bruising with the fists; in the third, by pulling down and kicking; in the fourth, by kicking; in the fifth, by striking and beating with a club ; in the sixth, ■ by choking, striking, beating, wounding and bruising with the fists — by- kicking, and by striking and beating with a club ; and in the seventh, in some way and manner, and by some means, instruments and weapons, to the jurors unknown.

The form in which the offense was charged, was the same in each count. The sixth count was as follows:

“ And the grand jury aforesaid, in the name and by the authority aforesaid, on their oaths, do further accuse the said James Howard of the crime of murder, committed as follows, viz.: The said James Howard, on the eighteenth day of January, 1879, in the county of Eranklin, in the state of Arkansas, willfully, deliberately, feloniously, of his malice aforethought, and with premeditation, did kill and murder one Mollie Howard, then and there being, by choking her, the said Mollie Howard; and then and there striking, beating, wounding and bruising her, the said Mollie Howard, with his fists; and by then and there kicking her, the said Mollie Howard, with his feet; and by then and there striking and beating her, the said Mollie Howard, with a certain club, which he, the said James Howard, in his hands, then and there held, with the felonious intent her, the said Mollie Howard, then and there, willfully, deliberately, felohiously, of his malice aforethought, and with premeditation, to kill and murder, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Arkansas.”

It is sufficient, the statute says, if the act or omission charged as the offense, is stated in the indictment with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case; and the statement of the acts constituting the offense be in ordinary and concise language, and in such a manner that a person of common understanding may know what is intended. Gantts Digest, secs. 1781, 1782, 1796.

The count we have set out, though informally drawn, contains the averment of every ingredient of the crime of murder, and the acts constituting the offense charged were alleged with the requisite precision and certainty.

If it be conceded that the seventh count, because not setting forth the manner of the killing, and the means by which it was effected, Avas fatally defective, yet, where there are several counts in an indictment for the same offense, some of which are good, and some are bad, and there has been, as in this ease, a general verdict of guilty on the indictment, the verdict will be referred to the good counts, and the bad are no ground for arresting the judgment. 3 Whar. Crim. Law, sec. 3047; Brown v. The State, 10 Ark., 607.

It is not an objection that the different modes in, and means by, which the offense was alleged to have been committed, Avere stated in several and distinct counts. The counts Avere but a form of alleging the modes and means in the alternative, which, according to sec. 1783, Gantts Digest, may be done. But one offense was charged. Thompson v. The Commonwealth, 1 Met. [Ky.), 13.

The grounds of the motion for a new trial were: that the court misinstructed the jury; that it refused to give them proper instructions, asked bj? the defendant; and that the verdict Avas against the evidence.

The proof was, that the defendant and his wife, the deceased, were, on the night of the sixteenth of January, 1819, at a party at the house of Joseph Page. The deceased had danced with a little boy, and Avas again on the floor with, a man named Robinson, when the defendant came in and took her by the hair and pulled her out of the room. They passed through, a back room, making considerable noise, and after getting out of the house, a noise was heard at the wood-pile, a few feet from the door, as if they were falling over the wood, and the deceased Avas heard to say: “Oh, don’t, Jim! I’ll go.” They continued on home, their house being about one hundred yards from Page’s; and when they got there, the door was violently shut, and considerable racket was heard in the house; the deceased crying and screaming; and she was heard to say: “ You are choking me to death !” or, “ I am choking to death !” and afterwards heard groaning. She Avas up next morning, and prepared breakfast, but after that took her bed; and she died about four o’clock the following morning. Upon a post mortem examination by physicians, a bruise was found upon her upper lip ; others, resembling fingerprints, upon her neck; a large one on the back, over the region of the kidneys; and another, about the size of the palm of tbe hand, over and about tbe back portion of the left lung and behind the heart; and the blood of the bruised parts was coagulated. /The kidneys were found coagulated with blood and urine, and the back part of tbe right lung was bruised and congested, tbe left being badly congested, and it was red and hepatized.

The deceased presented the appearance of having been a healthy woman; and it was tbe opinion of tbe physicians that these injuries were produced by violence, and were the cause of her death.

The defendant was, in the afternoon of the day after the party, at Page’s house, and he said to him and his wife: “ When we have cats at our house,” meaning, as the witness understood, broils, “we have cats right.” He also said that, had he known she answered him as she did at the party, she would not have done so again.

A club or stick, three, or three and a half feet long, and as large as a man’s wrist, was found on the path from Page’s house to the defendant’s; and he told a witness that he picked up a stick at the wood-pile to frighten, her home, but said he did not strike her with it; and another witness, that he took up the stick to scare her home; and in the conversation with this latter witness, said he hurt her only on the lip, hair and back, but did not hit her on the back.

The venue was proved as laid in the indictment.

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

This case is one depending on circumstantial evidence, and the opinion of medical experts ; and in such cases the jury must, in weighing the evidence, be governed by certain rules of law : First — the hypothesis of guilt of the offense charged in the indictment should flow naturally from the facts proven, and be consistent with them all. Second— the evidence must be such as to exclude any reasonable hypothesis but that of the defendant’s guilt of the identical offense imputed to him ; or, in other words, the facts proved must all be consistent with and point to his guilt only, and must be inconsistent with his innocence. If the evidence can be reconciled either with the theory of innocence or guilt, the law requires the jury to give the accused the benefit of the doubt, and to adopt the theory of innocence, and to acquit.

2. Circumstantial evidence is never sufficient ft) convict when it raises no more than a definite probability in favor of the theory of guilt, and is' always insufficient when, assuming all to be proved which the evidence tends to prove, some other hypothesis may be true; and the jury in this case must acquit the defendant, unless the evidence discloses to them a state of facts, fully established, which to a moral certainty actually excludes every reasonable hypothesis but that of guilt.

3. If the jury believe from the evidence that the defendant did chastise the deceased, used force and even violence; unless they are also satisfied that he inflicted the same with felonious intent to kill and murder, they can not convict.

4. If the jury believe from the evidence that the defendant, at a party, shortly before the death of the deceased, caught her around the shoulder, or neck and legs, and j erked her out of the house, carrying her several paces in that position; and he accidentally stumbled and fell, and thereby letting her fall on her back; and if they further believe from the evidence that such a fall may have produced the injuries which resisted in her death, they can not convict the defendant of the offense charged. If the proof raises such an hypothesis, it is their duty under the law to reconcile the case upon it, and to acquit.

5. If the jury consider any portion of the confessions or ■statements of the defendant, they must consider and weigh the whole of such confessions or statements; in ■other words, his confession or statement, if considered at all, must be considered as an entirety — the jury can hot take a portion unfavorable to him, and exclude that which is favorable. They must either reject the whole or accept the whole evidence in the case.

This was not a ease depending upon circumstantial evidence, as assumed in'the first two of these instructions. There was direct evidence of the assault of the defendant upon the deceased — the principal fact in question.

When the existence of any fact is attested by witnesses, as having come under the cognizance of their senses, the evidence of the fact is said to be direct or positive; but when the existence of the principal fact is only inferred from one or more circumstances which have been established directly, the evidence is said to be circumstantial. Best, on Presumptions, 216; 1 Green. Ev., 13.

“ Circumstantial evidence,” says Mr. Burrill, “ is composed of circumstances or relative facts bearing indirectly on the fact at issue, or which is sought to be proved, and requiring in its application to such facts a process of special inference leading to the conclusion denied.” Burr. Circum. Ev., 77.

These instructions were, therefore, not applicable to the evidence before the jury, and were misleading.

Every one is presumed to intend the natural and probable consequence of his act, and though a specific intent may not exist in the mind, <lhe law will imply an intent to produce the effect when it is the natural and probable consequence of the act; and in cases of homicide, malice is implied, when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition.

The third, not distinguishing between a sjaecific and an implied intent, but leaving the jury to understand from it, that a specific intent to kill must have existed in the defendant’s mind when he committed the assault, was likewise bad. The court had already instructed, and correctly, with regard to the intent.

The fourth was inapplicable to the evidence, and abstract. Instead of the last, the court gave, against the objection of the defendant, the following:

The jury are instructed that, in considering the admissions of the defendant, they are to take into consideration all he said in the same conversation, as well what he said in his own favor, as against him, and should compare the consistency of such admissions with the other testimony in the case, and by this means form their opinion of the weight to be given to such admissions.

If it was the meaning of that asked by the defendant, that the jury should give equal weight to ail the statements of the defendant — and we can only so understand it — it was manifestly wrong. That given in lieu of it was correct.

The instructions asked by the defendant were properly refused.

The evidence fully sustained and warranted the verdict.

Finding no error, the judgment is affirmed.


author: Eakin, J.

text:
    Flynn vs. State.
    1. Criminal Evidence : Pocre — Stud Pocre.

    Proof of the playing of “stud” pocre will sustain an indictment for playing pocre. The statute can not be evaded by slight variations in the name, or mode of playing the game, nor by paying money to a banker or stakeholder, and taking chips to bet with, nor by obtaining chips from others to bet with, which would draw money.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.
    Henderson, Attorney General, for appellee.
   Eakin, J.

Appellant was tried before a justice of the peace, upon a warrant ordering his arrest for a misdemeanor, committed by “ betting money on a game played at cards, commonly called pocre.” He was convicted, fined ten dollars, and appealed to the circuit court. He was there again tried, convicted, and fined in the same amount. Pie moved for a new trial, and, failing in that motion, appealed here. He complains of error in the instructions given and refused; and that the proof did not sustain the verdict. The proof, as set forth in the bill of exceptions, showed that he did bet chips, or cheeks, at a game' played with cards, called “stud,” or “stud-horse,” poker — and that the same was a variation of the game of poker ; being somewhat different from certain other games called “straight poker” and “draw poker,” but decided, as to results, by show of the cards, and, by high cards, pairs, and threes, as in common poker. The proof further tended to show that the defendant bought the chips, or checks, with money, and that they represented money.

The instructions refused by the court were framed with a view to instruct the jury that, if they believed “stud” or “stud-horse” poker to be a different game from “poker,” although of the same class of games ; or did not believe, from the evidence, that the defendant bet money, or something of value, at the game, they should acquit.

The court did fully and clearly instruct the jury, that, in order to convict, they must believe the defendant bet money, or something of value, on the game; but that any thing representing money would be sufficient; and, further, that they must believe the game of “stud” or “stud-horse” poker to come within the class of games designated by the term poker.

The law was correctly given. The statute can not be evaded by slight variations in the name, or mode of playing the game; nor by paying money into the hands of a stakeholder or banker, and taking chips to bet with, nor by obtaining chips from others to bet with, which would draw money.

In all such cases, the money which the chips represent is the thing actually bet.

Other objections to the verdict and judgment, are not important to be noticed.

Let the judgment be affirmed.


text:
    Boykin vs. The State.
    1. Larceny: Evidence — Possession of stolen property.

    Possession of property recently stolen, unexplained, is evidence of guilt to go to a jury for their consideration. In this sense, it is prima facie evidence; but not in the sense that it is such evidence as must compel the jury to convict unless it be rebutted.
    The presumption that the person in whose possession stolen property is found, is the thief, is not one of law, and a weak one of fact — is not at all conclusive, and, of itself, is not sufficient for a conviction.
    APPEAL from Lincoln Circuit Court.
    Hon. S. J. Pindall, Circuit Judge.

      Cunningham, for appellant.

      Henderson, Attorney General, contra.

   Eakin, J.

Appellant was iudicted, tried, and convicted of stealing a “ black and white spotted hog, marked with a split and overbit and underbit in each ear, of the value of five dollars, of the property of one "William Culliford.” The indictment was found on the twenty-first of April, 1879. Culliford testified that, some time during that year, appellant had desired witness to let him have charge of his (witness’) hogs, running in the range near Ike Johnson’s. Witness told appellant that Johnson had the care of them, and that he (the witness) was satisfied with J olxnson’s management.

About two weeks after this, witness found one of his hogs in a pen, about forty feet from appellant’s cabin, in which he was living with another party. The mark had been changed. Witness took his hog. Appellant was not there. He knew witness’ hogs well, from seeing them often around his house. Witness did not know whether or not the mark, as changed, was the appellant’s. The old mark was that of the witness, who knew the hog as his own, by that, and other, means. After appellant was indicted and arrested, he said he bought the hog from Ike Johnson, and claimed it for his own. The hog was worth $2.50.

Lord Nelson, who was along with Culliford when he found and took his hog, says that the mark had been freshly changed, and part of the old mark was visible. This, with the venue, was all the evidence.

Amongst other instructions given for appellant and the state which are unobjectionable, the coui’t, against appellant’s objection, charged the jury that, “possession of stolen property recently stolen is j^Tima.facie evidence of the guilt of the party in whose possession the property is so found, unless the possession is satisfactorily accounted for by the evidence. But before the presumption of guilt can arise it must appear that the property was recently stolen.”

Appellant moved for a new trial on account of insufficiency of the evidence, and the instruction given as above stated. Also, on account of newly-discovered evidence. He made an affidavit, stating the names of three witnesses by whom he could prove that he bought the hog from Ike Johnson, stating that he “did not know of said testimony before, or at the trial, and a knowledge of the same could not have been acquired by reasonable diligence.” Two of the witnesses named, made affidavit of the truth of the facts stated in such motion.

The motion was overruled, and the points saved by bill of exceptions.

The instruction given by the court is literally correct. Possession of property recently stolen, without reasonable explanation of that possession, is evidence of guilt to go to a jury for their consideration. In this sense, it is prima facie evidence, but not in the sense that it is such evidence as must compel the jury to a conviction, unless it be rebutted. It would have been better to have modified the instruction complained of, so as to impress upon the jury the idea that the evidence went to them for their consideration, under all the circumstances, to be weighed as tending to show guilt, but not imperatively imposing upon the jury the duty of conviction, unless rebutted. The defendant, however, asked no such explanation, and the instruction is not erroneous.

The motion for a new trial falls short of showing strict diligence in endeavoring to find out and procure the testimony of the witnesses. It does not explain why it was that the witnesses could know of the sale, and the defendant be ignorant of their knowledge. If they were present, he must have known they could prove his innocence, and he should have had them. If they knew of the sale by other means, the defendant should have shown it, to explain his own ignorance during the trial. If the court had been satisfied with the verdict in other respects, the motion for a new trial upon this ground might have been properly refused.

The evidence is very unsatisfactory, and could not have brought to the minds of the jurors that moral assurance of guilt necessary to conviction, unless they had misunderstood the law, or acted from passion or prejudice, or without deliberation. It fails to show that the hog was ever taken from Oulliford, or his agent, without the consent of one or the'other ; or when the hog was missed — whether on the first of January, 1879, or before, or after. There is no proof of recent stealing, and but very vague proof of any theft at all. The marking only was shown to be recent. When first notified of the accusation, after the indictment, the appellant said he bought the hog from Ike Johnson. Oulliford had notified appellant that Johnson had the control and management of his hogs, and that he was satisfied with Johnson’s management. The explanation was natural and reasonable. The state did not attempt, through Ike Johnson, or otherwise, to contradict it. How the jury arrived at an undoubting assurance of guilt, is difficult to conceive on any other supposition than those above suggested.

The rule established in this court with regard to interference with the verdicts of juries is a wholesome one. It is, that where a matter has been fairly presented to the jury, on proper competent evidence, and clear instructions, and the presiding judge has refused a new trial, it will not be granted here, unless there be something in the case to show that the verdict was influenced by passion or prejudice, or was rendered under a misconception of the law.

The jury obviously mistook the law as to the effect of possession. The presumption that the person in whose possession stolen property is found, is the thief, is not one of law, and a weak one of fact; it is not at all conclusive, and of itself is not sufficient for a conviction. Wharton’s Am. Crim. Law, Vol. 1, sec. 729.

It would have been better to have granted a new trial on the motion. We can not say that the verdict was in accordance with the law and the evidence.

Reverse the judgment, and remand the case for a new trial.


text:
    Blahut vs. The State.
    1. Sabbath-Breaking : Keeping open saloon on Sunday.

    Appellant was a nominal partner in a saloon, and he and another bar-tender attended by turns on Sundays to furnish liquor to customers entering at the back door; the front door being kept closed. Held guilty of the offense of Sabbath-breaking by keeping open a dram-shop on Sunday.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.
    Henderson, Attorney General, for appellee.
   Eakin, J.

Appellant, William Blahut, was indicted, together with J. Blahut, for Sabbath-breaking by keeping open a dram-shop on Sunday. They severed. William Blahut was tried by a jury, convicted, fined, denied a new trial, and then appealed, on the ground that the evidence did not support the verdict.

It tended to show that appellant was a nominal partner in a saloon, and one of the bar-tenders. For a year before the indictment it had been the habit to close the front door of the saloon on Sunday, and leave unfastened a back door, through which persons might, and did, come to buy drinks. Appellant and another bar-tender attended by turns on Sunday to furnish the liquor.

This, if true, constituted the offense of keeping open a dram-shop. The jury were proper judges of the weight of the evidence.

Affirm.


text:
    Carr vs. The State.
    1. Wearing Concealed Weapons: “ Upon a journey.” Temporarily stopping.

    Whether a traveler was “ upon a journey” in the spirit of the law against wearing concealed weapons, while stopping at a town on his way, is a question for the jury, upon all the circumstances before them. His intent governs, and the question of fact is, was he really prosecuting his journey, only stopping for a temporary purpose; or had he stopped to stay awhile, mingling generally with the citizens, either for business or pleasure.
    2. Same : What necessary to constitute the offense.

    To constitute the offense of wearing concealed weapons, under see. 1517^ Gantt:s Dig., the implement must be carried about the person, to be always accessible for use in fight, and so hidden from general view as to put others off their guard. If a pistol, not loaded, or unfit for use, this rebuts the presumption that it was carried as a weapon.
    If a pistol be worn concealed, the jury may presume that it was loaded and worn as a weapon. But this is a presumption of fact, and not of law, and may be rebutted by proof.
    APPEAL from Lee Circuit Coart.
    Hon. J. N. Cypert, Circuit Judge.

      Henderson, Attorney General, for the State.
   Eakin, J.

Appellant, in May, 1875, was indicted in the Lee circuit court, charging: That he “ unlawfully did wear a pistol, concealed as a weapon, when not upon a journey.” At the spring term, 1879, the case was submitted to thé court as a jury — the defendant fined, and an appeal taken, with bill of exceptions setting forth the evidence.

It appears that appellant had been on a visit to Memphis ; and, on his way back to his father’s, stopped a few hours in Marianna, in Lee county. Whilst there, he was observed to be wearing a pistol, a portion of it being seen. He was arrested, but discharged. Two pistols were found upon him, neither of which was loaded; and one was without a tube. After his arrest, he deposited the pistols with his baggage.

The court decided the case on the ground that defendant, whilst stopping over* at Marianna, could not be said to be on a journey, and should, to avoid a breach of the law, have deposited his pistols with his baggage, and not carried them on his person. This is correct, if the appellant was really wearing them, or either of them, as a weapon. The exception in the statute is to enable travelers to protect themselves on the highways, or in transit through populous places — not to allow them the privilege of mixing with the people iu ordinary intercourse, about the streets, armed in a ..manner which, upon a sudden fit of passion, might endanger the lives of others. Travelers do not need weapons, whilst stopping in towns, any more than citizens do. They should lay them aside, unless the delay be slight, and the'journey soon resumed. The jury, or court sitting as such, can best judge of all the circumstances, and determine whether the spirit of the law has been violated. No rule with regard to this can be formulated. The intent governs, and the question of fact is, was the defendant really prosecuting his journey, only stopping for a temporary purpose ; or had he stopped to stay awhile, mingling generally with the citizens, either for business or pleasure.

The offense is alleged to have occurred in December, 1874, when the Revised Statutes contained the only act upon this subject, in force. See Gantt’s Digest, sec. 1517. It is made a misdemeanor to wear any pistol, etc., * * concealed as a weapon,” unless upon a journey. It will be perceived there are three essential elements in the offense. The implement must be worn — that is, placed about the person, and carried around in some way, to be at all times accessible. If it is merely, and in good faith,, being transported, to be repaired, or given to another, or for purposes of trade, or any other object, save to be used in fight, it can not be said to be worn. It must be concealed — that is, so hidden from general view as to put others off their guard; and, lastly, it must be carried as a weapon — that is, for. the purpose of having it convenient for use in fight.

In this case, the implements found on defendant were pistols, and worn concealed. But they were not, either of them, loaded ; and one was wholly unfit for use, if it had been. These things, affirmatively shown, rebut the presumption that the pistols were worn to be used as weapons. They could not be so used. If the state, in a given case,, should show that pistols were worn concealed, the jury might well presume that they were loaded', and worn as weapons. But the defendant might remove the presumption by proof. It would be one of fact, and not of law.

The attention of his honor, the circuit judge, seems to have been directed to the point of defense, based upon the journey, which he correctly decided. Eor want of sufficient proof that the pistol was worn as a weapon, a new trial should have been granted.

Reverse, and remand for the purpose.