text:
    Whitehead vs. Wells.
    1. Ratification: Evidence sufficient to establish.

    Where the evidence shows that the defendant, an attorney, having for collection a claim of the plaintiff, without his knowledge collected the same in Confederate money and loaned it to a third party, who afterward became bankrupt, taking a note therefor payable to the plaintiff, who afterward received from the defendant the receipt of other attorneys to whom the note had been delivered for collection, and after having kept it a few days and made inquiry about the drawer, returned it and demanded the money of the defendant; and tended to show that an agent who had been sent by the plaintiff to look after his claims, upon being informed of the transaction, had expressed himself as satisfied with it: Held, that the jury might well have inferred a ratification of the defendant’s acts, if not from the conduct of the plaintiff in recovering the receipt, at least, from that of the agent in assenting to the transaction.
    2. Agency : Notice to the agent, eta.

    The principal is affected with notice of all his agent knows in the line of his duty or the scope of his powers.

      3. Statute of Limitation: Between attorney and client.

    While it is true that an action cannot be maintained against an agent or attorney for money collected by them, until after demand and refusal to pay, or neglect of the attorney to notify the client of the collection; yet, if the client has notice, he must make demand in a reasonable time, and if he neglects to do so when he could, with ordinary diligence, have known of the collection, he puts the statute of limitation in motion. [See Jett, Ex’r, v. Hempstead, Ex’r, 25 Ark., 462. — Rep.]
    4. Statutes : Time of talcing effect under constitution of 1868.
    Under the provisions of sec. 22, art. VIII of the Const, of 1868, an act of the legislature that did not fix the time it should take effect, was not in force until ninety days after its passage.
    5. Jurors : Mode of determining the qualification of.

    The provisions of the constitution of 1868, prescribing the qualification of jurors, did not take from the legislature the power to direct in what manner the question of qualification should be determined by the courts; and sec. 25, ch. 98, Gould’s Dig., regulating this matter, is not in conflict with the constitutional provision, nor was it abrogated by the code of practice prior to the amendments of 1871.
    6. Code oe Practice : Sow fan' it repealed prior statutes.

    The code was only intended to change the forms of action, and abolish the old forms and modes of procedure, and in all other cases where" in it was silent the provisions of Gould’s Digest continued to ope. rate until repealed.
    7. Jurors: Time of objecting to.

    An objection to the qualification of a juror must be made before he is sworn and impaneled. It comes too late on motion for new trial, even though the cause of the disqualification may not have been discovered earlier.
    APPEAL from Drew Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.
    Before the Hon. David Walker, J., and. Hon. S. W. Williams and J. L. Witherspoon, Sp. JJ. — the Hon. E. H. English, C. J., and W. M. Harrison, J., being disqualified.

      English & Ford, for appellant.

      A. H. Garland, contra.

   Williams, Sp. J.

The plaintiff brought suit against defendant in the Drew circuit court, on the 8th of March, 1871. In the complaint he states that about the 6th day of June, 1861, plaintiff, with one James H. May, employed defendant and his law partner, who is not sued, as attorneys and 11 agents ” to collect and receive moneys for him from various persons, to be paid over to plaintiff. That May, on or about the 11th day of May, 1862, assigned and transferred his right in said claims in the schedule exhibited to plaintiff; that the defendant, as such attorney, received money from divers persons, whose names, and the date of the receipt and the amount received are set out in a schedule attached to the complaint, which sums amounted to nine hundred and forty-five dollars and eighty cents. That after deducting all credits, there was due the plaintiff the sum of six hundred and forty-seven dollars and fifty cents; that the plaintiff, from 1861 to the year 1871, was a resident of the state of Missouri, and up to the 29th day of September, 1868, he did not know that the defendant had collected the money claimed, and avers demand of the money on the last named day, and a refusal by defendant to pay.

The defendant answered. In the first paragraph, he states that the money mentioned in the schedule attached to the complaint, as collected on the 28th day of September, A. D, 1863, of N. E. Davis, was Confederate money, and was collected in Drew county, Arkansas, about the 28th of September, 1863; set up at length the existence of the late war, and that the money was received under military coercion ; that Drew county was under the military authority of the Confederate States at that time; that the money was received by defendant’s partner under military orders requiring Confederate money to be received for all debts, and that a refusal would have subjected the recusant to arrest; and May "& Whitehead, being at the time nonresidents of the state, and not present to be counseled by him, or to assume the responsibility of refusing to obey the said order, defendant’s partner accepted from Davis the amount of the note in Confederate money. This, as shown by all the pleadings and evidence, is the real and only matter in dispute.

The same paragraph of the answer contains the further allegation that defendant's partner well knew that he could not enforce payment against Davis, who was about leaving the state; that to secure the matter and prevent the loss of the money, he accepted the amount of Davis’ note in Confederate money, and loaned the same to one Eletcher, who was at the time reported to be, and regarded as a man of wealth and solvency, and .took a note payable to May & Whitehead, drawing ten per cent, interest from date; that Eletcher had since become bankrupt, and the debt, without fault of defendant, has .been lost. This paragraph concludes with an averment that all other sums collected had been duly paid over.

To this paragraph in the answer, plaintiff demurred, and the court sustained the demurrer, as to which no question is before us. The complaint and this part of the answer, however, present, as clearly developed in the proof, the real difference between the parties. The case réally presents a contest as to who shall bear the loss of Fletcher’s insolvency, which seems to have occurred after the loan of the Confederate money to him.

The second defense contained in the answer is the statute of limitations of three years, which presented one of the issues upon which the case was tried.

The third defense of the answer is, that the amount sued for was received in Confederate money; that in the fall of I860, May, who, before that time and afterwards, with the full knowledge of plaintiff, was writing to said defendant and acting as one of the owners of said claims, and equally interested with plaintiff in the same, fully ratified and agreed to what had been done in collecting and loaning the Confederate money. This paragraph formed the second issue that was tried.

There was a fourth paragraph, stating in a shorter and different form the allegations of the second, and concluding with a general denial of having received money. To this fourth paragraph a demurrer was sustained, and, on leave, defendant filed an amendment containing a general denial of having received money for plaintaiff. This formed the third and last issue.

The case was tried by jury, which rendered a general verdiet for defendant. The plaintiff filed his motion for a new trial, stating therein as grounds for the same:

1. The verdict is not sustained by sufficient evidence.

2. The verdict is contrary to the evidence on the trial.

8. The verdict is contrary to the law and instructions of the ■court.

4. Irregularity in the jury; that one of the jurors named Ralph had not been in the state six months, and was not a qualified elector, and this fact was unknown to plaintiff at the time and during the trial. That Ralph had erroneously responded in the affirmative, when asked as to his qualifications ■on being impaneled, not knowing that it required six months residence to become a qualified elector. . The motion is sworn to by the attorney of plaintiff and by plaintiff, at least both signatures are attached to the motion, and the clerk places below the usual jurat, “ sworn to and subscribed,” etc. It is not presumed, however, that the counsel intended to swear to all the grounds of his motion. Although very informal, we will treat it as an affidavit to the facts set up in the fourth clause of the motion. Plaintiff excepted and filed his bill of exceptions, which contains all the evidence.

The first cause for new trial is that the verdict is not sustained by sufficient evidence. Let us first see what the verdict is responsive to. Plaintiff avers that defendant collected money; that, defendant denies. Whether proof that confederate money was collected by defendant will sustain an allegation of money in the complaint, becomes a question, which in the view we take of this case, it will be unnecessary to decide.

The two remaining issues, to which the verdict responds favorably to defendant, either of which concludes the case, are, first, Did plaintiff ratify the collection and loan of the confederate money to Eletcher; second, Had three years elapsed since the cause of action accrued ?

In order to correctly determine this, lot us examine the testimony.

Plaintiff, as a witness, stated that he delivered the claims to-defendant and his law partner for collection; that May transferred his interest to plaintiff by indorsement on the schedule-of the claims. May knew as much or more about the business than plaintiff did and he got him to come to Drew county as plaintiff’s agent. He came back without any money; plaintiff did not remember his saying anything about Harrison, and Wells, the defendant, loaning any money. Schedule-A, in the complaint, is the receipt Harrison and Wells gave plaintiff; came to Monticello the fall before the trial (which was the fall of 1870) and saw defendant; he gave him receipt, on Yan Gilder, Jones, and Bell & Carlton; plaintiff demanded a statement -of accounts between them; defendant, gave it. He then exhibits the statement, in which, among-other matters, plaintiff is credited with cash from W. R. Davis, six hundred, thirty-seven dollars and fifty cents, and is charged with commissions on same, $63.75, and amount of Fletcher’s note, $563.75, which with the undisputed cash payment balanced the account. Plaintiff, says further, I objected to the note of Fletcher in the statement. He gave me a receipt for the Fletcher note to Bell & Carlton. I gave the receipt back to him. I told him I would look to him for-the money. I told him I was not satisfied and would sue him. I never knew he had collected the W. R. Davis note till I came down here in the fall of 1870. He may. have written to me, but I have forgotten it. I lived in Missouri. May was only my agent. He sold out to me when he went-to the 'war. He had only authority to receive money. I wrote letters in the name of May & Whitehead in order to-"particularize” the business. When Mr. May returned he reported no bad faith on the part of Mr. Wells, but that he,. Wells, said that he thought that he could, after a while, make money on the claims. I demanded the money of Wells for the Davis note. In 1865, I lived in St. Charles, Missouri, and May lived there. In 1865, I got May to come to Monticello-as my agent, to collect any money that he could. May and I have been in business together, and he may have written letters in the name of May & Whitehead. May had no authority to pay money for me, and I know nothing of his having paid any. In the fall of 1870, when I came to Monticello, Wells gave me a receipt of Bell & Carlton for the Eletcher note. I went to their office in Pine Bluff, and inquired about Eletcher, but did not present the receipt. I heard at Monticello that Eletcher was a bankrupt. I said nothing to Wells about taking the Eletcher note until I came back from Pine Bluff. I then went to Mr. Wells and gave him the receipt for the Eletcher note. I never received any statement of accounts from Harrison and Wells. May and I lived in the same town after the war. I told Mr. Wells last winter I was not satisfied. I knew nothing of these matters until I came down last fall. The following letters are in the handwriting-of May. This letter is signed May & Whitehead, is dated February 8, 1867. It referred to the compromise of a claim, and says the debtor misunderstood May’s proposition, and he, May, could not make any positive arrangement with a heavy discount until he saw Mr. Whitehead, but offering to discount 25 per cent. This letter being signed May & Whitehead, and being in reference to the claims of that firm, and May having refused to finally act until Whitehead wag consulted in a grave matter, but proposed to act alone on a matter of less moment, and had a tendency to prove facts involved in the issue as did three other letters written by plaintiff to defendant.

In the first, dated July 18, 1865, plaintiff makes inquiry direct as to the claims of May & Whitehead, and asks if any thing has been collected, and says he wants to come down and settle.

The second letter is dated September 18,1866, one year and two months after the other. In it plaintiff makes no allusion to the former letter; no complaint is made that no answer was received to it. It leaves on the mind a strong impression that knowledge had been received from defendant in the meantime. It is in this style: I drop you a few lines. I would like to know what success you are having collecting May & Whitehead’s notes and accounts. Have you collected anything, or have any prospect of collecting anything, or how much do you think our claims are worth. I would like to know what the. prospect is. Please let me hear from you as to what you can collect, and how soon it can be come at. The letter of 1865 is to know whether anything is collected; evidently from a man in the dark. The letter of 1866 is from a man who knows that a work is in progress, who asks, “what success are you having.”

The third letter is dated January 4, 1867, a few months after the last. This letter acknowledges a receipt for a check for money received from defendant on collections, refers to the claim of which May had written, and says, Mr. May says he never agreed to settle their claim at 33‡ cents on the dollar, referring to the claim of Owen, Shorter & Co., about which matter May had written. He concludes the letter: “Mr. Wells, I think it would be a good idea to take new notes in the place of the old ones in case they can’t pay them, and make them more secure, if possible, where they are doubtful.” All three of these letters, except the one of 1866, were signed May & Whitehead; that of 1866 was signed A. J. Whitehead.

Plaintiff further testified, that Mr. Wells refused to pay. When May returned in 1865, his agency ceased. All I ever authorized him to do was to collect the money. Wells asked me to take the Eletcher note for the amount of the Davis note. I was not willing to do it, and refused.

Defendant testified : In 1861, May & Whitehead were tobacco peddlers, and left claims in the hands of Harrison & Wells. In 1865, May came to Monticello, and I think had our receipt with him. I never knew of any transfer of our receipt until this suit was begun. When May was here, I showed him our books. I told that I had collected the Davis note in confederate money. He expressed himself well satisfied. He went with me to my house and stayed with me. I knew of no dissatisfaction until Whitehead came down here last fall. I cannot say that I answered the letter of May & Whitehead, written in 1865, but I am satisfied, from my usual course of business, that I wrote to them about that time, stating my transaction in this matter. May was here in 1865 and examined my books in which my transactions were entered, and expressed his approval. I never knew anything of the transfer of our receipt until this suit was commenced. I have letters from both parties since, written in the firm name. I told May, in 1865, what I had done with the Davis note, and he expressed himself well satisfied. I am not positive that May had Harrison & Wells’ receipt in 1865, but from a memorandum in his hand writing on the receipt about the Stroud note, I think he did. The other memoranda on the receipt are in my hand writing, were made last fall, when Whitehead was here. I took the Eletcher note in 1863, before I heard from May & Whitehead.

Erom this evidence the jury could well infer the ratification of the collection of the Davis note in confederate money, if not from Whitehead’s act of receiving the claim, and returning it after he had visited Pine Bluff, and inquired for Eletcher, the evidence, at least, tends to prove that May was Whitehead’s agent and ratified the act; and the verdict upon this issue does not, at least, shock our sense of justice; and the finding on this issue would be sufficient to settle the case.

Upon the statute of limitations, the testimony warranted the conclusion that May came, in 1865, with full power to demand and collect the money of defendant; that he had full knowledge of the collection of the Davis note. Whether Whitehead had actual notice or not, which from the evidence the jury might well infer, yet he is affected with notice of all his agent knew in the line of his duty or the scope of his powers.

While it is true, as directed by this court in the case of Jett v. Hempstead, 25 Ark., 462, that an action cannot be maintained against an attorney or agent for money collected by them as such, until demand and refusal to pay over, or neglect of attorney to notify his client of the collection ; yet, as decided in that case, if the client has notice of the collection, he must make his demand in a reasonable time. If he neglects to do so, he puts in motion the statute of limitations, and if the client could, with ordinary diligence, have known of the collection, the statute will begin to run after the lapse of a reasonable time for demand. In this case, passing by the question whether the proof of the collection of confederate money sustains the allegation of the complaint, that money was collected, we think the jury was warranted in finding, that from 1865 to a period anterior to three years before the bringing of this suit, was an unreasonable delay, and the statute of limitations had run its bar, and that, whether May was agent or not, a fact as to which, to the extent of demanding pay for collections, there is no question. ' For, from the testimony and letters, and residence of the parties, etc., the jury might have inferred direct, personal knowledge in Whitehead; or, at least, if he failed to possess such knowledge, might infer that lack of diligent inquiry which would excuse delay.

We therefore hold, that the first ground of the motion for a new trial is not well taken.

The second ground of the motion is disposed of in the first; for if our conclusions are true, the verdict was not contrary to the evidence.

The third, that the verdict is contrary to law,7is also disposed of. That part of it which claims that the verdict is against the instructions of the court, it will be unnecessary for us to pass upon, further than to say, that the court below gave all the instructions which plaintiff asked, and refused all defendant asked; and if that court did not feel sufficiently aggrieved to set aside the verdict, we find nothing in the case to warrant us in so doing, unless we find it in the fourth ground for a new trial.

At the time of this trial, April, 1871, no person was allowed or qualified to sit on any jury who was not a qualified elector. Const. 1868, art. XV, sec. 20. On the 27th of March, 1871, the general assembly passed a law amending the code of civil and criminal practice. By section 407 of amended criminal code, it is provided as follows: “ No verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter ; "nor shall exceptions be taken to any juryman for that cause, after he is taken upon the jury and sworn as a juryman.” This chapter of amendments in 406, contains the same provisions as to the qualifications of jurors as that contained in the constitution. See Act of 1871, pp. 268, 269. This section, although an amendment to the criminal code, is general and touches the qualifications of jurors and verdicts in all cases as to this matter, and might conclude this question, if we find that it does not involve a constitutional right of litigants, and if the legislature, notwithstanding the constitution, has the power to prescribe the time and mode of concluding the question, of qualification of jurors.

Although section 407 was passed on the 27th day of March, 1871, it contains no provision regulating the time it must take effect; therefore, under the provisions of sec. 22, art. V, Const, of 1868, this law did not go into effect until ninety days after its passage. We are therefore compelled to decide this case upon the general principies of the common law, or by-previous-legislation anterior to 1868, as we find nothing on this subject, since.

Sec. 25, ch. 98, Gould’s Digest, provides that no exception.against any juror on account of his citizenship, nonresidence,, age, or other legal disability, shall be allowed after the jury are sworn. Under this section this court has heretofore held that such objections were too late after verdict. If this law was in force at the time of the trial of this case below, it is conclusive of the question.

Art. XV, sec. 11, Const. of 1868, provides that all laws not inconsistent with the constitution are continued. Was the provision of sec. 25, ch. 98, in conflict with the constitution ? We think not. The constitution prescribed a general qualification for jurors, as Gould’s Digest had prescribed in see. 22, ch. 98. Each required citizenship. The constitution calls him an elector. Gould’s Digest describes him. as a free white-male citizen of this state, above the age of twenty-one years, a resident of the county, which fully describes the elector of that period, before the constitution of 1868. We must therefore presume that the makers of the constitution of 1868 were familiar with the law, and intended to provide simply for the qualification of those who should sit on juries, leaving the law to stand, and left it as regulated by the legislature as to the time and mode of taking advantage of the disqualification. If the provisions in sec. 25, ch. 98, Gould’s Digest, are inconsistent with the constitution, then the act of 1871, above cited, is unconstitutional and void, for it would likewise be inconsistent, and the legislature, under the constitution of 1868, neyer could have regulated the practice upon this subject. It is proper that those who sit on juries to enforce the laws should be those who vote in making them. As a general proposition this is correct. But, because the constitution of 1868 regulated this, that it thereby intended to take away from the legislature forever the power of so regulating the time and manner of settling the question of qualification, is not to be presumed. There must be a mode of concluding all questions, or governments could not exist. Therefore, to say that, by providing for the qualifications of jurors, it was intended to prohibit the legislature from setting the question of the qualification of each juror at rest, when he is examined as to his qualification, and ippaneled and sworn, is, to say the least of it, an extensive stretch of the provision, and a construction which we cannot admit.

"We think the constitution having prescribed the qualification, the legislature has the constitutional power to determine how the question of qualification shall be determined. It follows that if section 25 be law, the question of qualification is concluded when the jury are impaneled and sworn. The code of practice did not abrogate this section. The code was intended only to repeal and change the actions and suits, and abolished the old forms and modes of procedure in them. But in all cases other than this, wherein it is silent, the provisions of Gould’s Digest are law until repealed, or changed by amendment, or inconsistent legislation, or expressly; and this view is fully sustained by the action of the very competent gentlemen who have had charge of the matter of digesting our laws. If we doubted our conclusion on this subject, section 341, Civil Code, would put it to rest. For with this section the provisions regulating the impaneling of the jury open by providing that the mode of summoning juries is not changed, etc. Section 348 also empowered the court to decide all challenges for cause' before the list is drawn, and the few sections following section 341, leave many steps in the practice of getting juries and their management, etc., unprovided, and without a reference to laws outside of the Code, we could never have gotten a jury. All of which shows that the Code was not intended to repeal laws upon this subject, which were consistent with it.

Plaintiff cannot be allowed to raise a question on motion for new trial for the first time. We hold that if the question is not sooner raised, it is waived.

Finding no error in the record, judgment of the court below is in all things affirmed with costs.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Majors vs. The State.
    Evidence: How a witness may be impeached.

    Under tlie provisions of sec. 3524, Gantt’s Dig., a witness may be impeached by evidence tliat his general reputation for truth and immorality renders him unworthy of belief.
    APPEAL from Poinsett Circuit Court.
    Hon. John W. Fox, Circuit Judge.

      Hazeldine and Wilshire & Allen, for appellant.

      J. R. Montgomery, Attorney General, contra.

   English, C. J.

The appellant, John T. H. Majors, who was clerk of the circuit court of Poinsett county, was indicted for disclosing to W. A. Porter, before his arrest, the fact that •an indictment had been found against him. He was tried on a plea of not guilty, the jury returned a verdict of guilty, and the court rendered judgment, fining him one hundred dollars, and removing him from the office of clerk. A motion lor a new trial was overruled, and bill of exceptions taken.

On the trial, the state introduced Porter as a witness, and proved by him the material allegations of the indictment. The appellant undertook to impeach the witness. The testimony of the first witness of the appellant extended only to the •general reputation of the state’s witness for truth and veracity. The second witness stated that he knew his character for truth, veracity and “immorality” in the community in which he lived, and that from that general character for truth and ■“immorality,” he would not believe him on oath. The third witness testified, alsoj that his general character for truth and “ immorality ” was bad, and that from his general character he would not believe him on oath. The fourth witness (Beecher) testified that he had known Porter for a number of years; that he knew his general character for immorality in the community in which he lived; that his general character as such was very bad, and that from his general character he would not believe him on oath. The testimony of this witness, and so much of the testimony of the other impeaching witnesses as went to the immorality of Porter, was excluded by the court from the jury.

It seems from the bill of exceptions that the court below was of the opinion that the witness could only be impeached by proving that his reputation for truth and veracity was such as to render him unworthy of belief, and that the inquiry could not extend to his general reputation for immorality, etc.

In Teese et al. v. Huntingdon et al., 23 How., 11, Mr. Justice Clifford said: “ Courts of justice differ very widely, whether the general reputation of the witness for truth and veracity is the true and sole criterion of his credit, or whether the inquiry may not properly be extended to his entire moral character and estimation in society,” etc.

In Pleasant v. The State, 15 Ark., 652, this court said: “In cases of rape, or assault with intent to commit rape, the inquiry as to the reputation of the prosecutrix is not confined to truth and veracity, but extends, as we have seen, to her chastity. Whether this is the only exception to the rule, we-do not mean to decide in this case, as the question does not-arise. There are some authorities against confining the inquiry in any case, to the reputation of the witness for truth and veracity, and in favor of extending it to the entire moral character and standing in society. 1 Greenl. Ev., note 3 to sec. 461, p. 582.”

Since these opinions were written, our code of practice was adopted, and it contained a provision on the subject (sec. 654) copied from the Kentucky code, which has been carried into Gantt’s Digest (sec. 2524), and which the court below probably overlooked. It provides that “a witness may be impeached by the party against whom he is produced, by evidence that his general reputation for truth or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment, that he has been convicted of felony.”

Under this statute the court below erred in excluding the-testimony of the impeaching witness Beecher, etc.

The judgment must be reversed and the cause remanded, with instructions to the court below to grant the appellant a new trial.


text:
    The State vs. Cox.
    Appeal : Row taken in behalf of the state.

    Where an appeal in behalf of the state is desired, it is by the provisions of Gantt’s Dig., secs. 3127 and 2128, required, that the prosecuting attorney pray an appeal during the term at which the decision is rendered, and that a transcript of the record be transmitted, by the clerk, or prosecuting attorney, to the attorney general, who may, if he deem it of sufficient importance, perfect the appeal by lodging the transcript in the office of the clerk of the supreme court within sixty days after the decision was rendered; and where it does not appear that these provisions have been complied with, the case will be stricken from the docket of the supreme court.
    APPEAL from Washington Circuit Court.
    Hon. E. D. Ham, Circuit Judge.

      8. P. Hughes, Attorney General, for appellant.
   English, C. J.

The transcript in this case is indorsed, filed December 15, 1869. It seems to have slept until December term 1873, when it was submitted without briefs. On looking into the transcript, we find that in March, 1869, Christopher Cox and Joseph Runnels were jointly indicted, in the 'Washington circuit court, for murdering Samuel Drake. They were charged with murder in the first degree. It does not appear that Runnels was ever arrested. At the term of the circuit court at which the indictment was found, Cox seems to have been admitted to bail, by the circuit judge (Hon. E. D. Ham) in the sum of $5,000. At the September term, 1869, he was tried on the plea of not guilty, and acquitted by the jury.

It appears from a bill of exceptions taken by the presecuting attorney, that the court excluded all the evidence that seems to have been offered on behaif, of the state on the trial and, of course, the defendant was found not guilty. How the case got into this court does not appear. There is no record entry in tbe transcript before us. showing that an appeal was prayed by the state, in the circuit court, nor does the file mark of the clerk of this court show who filed the transcript in his office. It appears simply to have been filed, and the cause docketed and submitted.

The statute provides that “ Where an appeal in behalf of the state is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record, and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted to him.

“ If the attorney, on inspecting the record, is satisfied that error has been committed to the prejudice of the state, and upon which it is important, to the court and uniform administration of the criminal law, that the supreme court should decide, he may, by lodging the transcript in the clerk’s office of the supreme court within sixty days after the decision, take the appeal.” Gantt’s Dig., sec. 2127, 2128.

In this case, it does not appear that these provisions of the statute have been complied with, and the case must be stricken from the docket, there being no appeal.


author: Harrison, J.

text:
    Dawson vs. The State.

      1. Criminal Practice : As to serving copy of indictment.

      A defendant, who is at large on bail, is not entitled to service of a copy of the indictment under the provisions of Gantt’s Dig., sec. 1825.
    2. — As to serving copy of venire.

      A failure to furnish the defendant or his counsel with a copy of the venire before trial is no ground for a new trial, where the objection was not raised at the time.
    3. Criminal Law : Rape.

    It is not the persistence with which the party accused intended to prosecute his illegal design, but the force actually used, that is an element in the crime of rape. And the court did not err in refusing to instruct the jury that they must find that the accused intended to eliect his purpose forcibly and at all events.
    4. — Bape may be committed on a female under the age of puberty, or one so young as not to be capable of giving her consent.
    5. Instructions :
    It is in the discretion of the court to give, or withhold cautionary instructions in regard to the evidence.
    APPEAL from St. Francis Circuit Court.
    Hon. Wm. Story, Circuit Judge.

      JBrowji & Lyles, for appellant.

      S. P. Hughes, Attorney General, contra.

   Harrison, J.

The appellant, Jesse B. Dawson, was convicted in the St. Francis circuit court of the crime of rape. He moved for a new trial, which was refused, and upon that refusal, the questions in the case arise.

The grounds alleged for a new trial were:

1. That no copy of the indictment had been delivered to him before he was arraigned, or before he was put upon his trial.

2. That no copy of the list of jurors had been delivered to him before the trial.

3. The refusal to instruct the jury as asked by him; and

4. The verdict was contrary to law and evidence.

There is no foundation in the record for either of the first two causes assigned.

It is by section 1825, Gantt’s Digest, that a copy of the indictment is in any case required to be delivered to the defendant, which is as follows:

“ It shall be the duty of the clerk of the court in which.an indictment against any person for a capital offense máy be pending, whenever the defendant shall be in custody, to make out a copy of such indictment and cause the same to be delivered to the defendant or his counsel, at least forty-eight hours before he shall be arraigned on such indictment; but the defendant may at his request be arraigned and tried at any time after the service of such copy.”

The record discloses the fact that the defendant was on bail and not in custody, and he was not, therefore, entitled to require service of a copy of the indictment. If he desired a copy, he was at liberty to apply to the clerk for it, whose duty it was to make out and deliver the same to him, on being paid the fees allowed by law therefor. Section 1826, Id. But, if in custody, unless the record affirmatively shows that the copy was not delivered, which it does not, it will be presumed, in the absence of anything appearing to the contrary, that it was done, or that the defendant waived it.

The defendant’s bill of exceptions states that a copy of the venire was not served on him or his counsel, before going into trial — the length of time mentioned or fixed in the statute; but it does not appear that he made any objection against proceeding to trial without it.

In Freel v. The State, 21 Ark., 226, the court say: “ Where the prisoner goes to trial without objecting that a list of jurors has not been furnished, and where there is no affirmative showing that the list has not been served, the mere silence of the record on the subject, or the mere failure of the record to show that the list was furnished, is no valid cause for arresting or reversing the judgment.” And we are of the opinion that though the record did show that a list had not been furnished, where no objection to proceeding to trial without it was taken, there can be no ground for supposing that any prejudice resulted to the defendant for the want of it, and that a fair and impartial trial had not been had, and that a new trial for that cause should not be awarded him. Gantt’s Digest, sec. 1970.

There is, in the code of criminal practice, no provision requiring a copy of the venire to be served on the accused ; but whether the code repealed sec. 56 of ch. 52 of Gould’s Digest, which, before its enactment, required’ such service, we need not, in this case, undertake to decide.

The third ground of the motion was that the court refused to give the jury certain instructions asked by the defendant, which were as follows:

1. “ Unless the jury find that the defendant intended to have carnal knowledge of said Sarah Louisa Beers forcibly .and at all events, they will find the defendant not guilty.

2. “ If the jury find that Sarah Louisa Beers, at the time of the commission of the supposed offense, had not attained the age of puberty, and that she offered no resistance requiring force to overcome it, but merely withheld her consent, they will find the defendant not guilty.

8. “ If the jury believe from the testimony that at the time ■of the commission of the supposed offense, said Sarah Louisa Beers had not attained the age of puberty, they are bound to .acquit the prisoner.

4. “If the jury find that at the time of the commission of the supposed offense, the said Sarah Louisa Beers had not attained the age of puberty, her consent or nonconsent was immaterial; the crime of rape, as defined by the first section of the statute upon which this indictment is founded, could not be committed upon her, and the jury must find the defendant not guilty.

5. “ The jury should remember that the charge of rape was one easy to be made and hard to disprove, and they should •carefully endeavor to keep the heinousness of the crime and their sympathy for the girl from hurrying them to a convieion.”

The first of these proposed instructions, if the evidence in anywise tended to show that no greater offense than an assault-with intent to ravish was committed, was not a correct declaration of law, for it is not the extent of the persistence to which the party charged intended to go towards effecting his purpose, but the force actually used, which is an element in the crime; but the evidence before the jury was direct and positive to the perpetration of the grave offense that was charged; and there was not a scintilla of evidence to lead the-mind to the conclusion that the attempt stopped short of it.

The second, third and fourth were, also, properly refused. A rape may be committed on a female under the age of puberty, as well as on one above it; and even upon one so-young as not to be capable of giving consent or of exercising any judgment upon the matter. Gould’s Digest, ch. 51, art. IV., sec. 1; 2 Bish. C. L., sec. 1076; 1 Hale P. C., 631; 1 East. P. C., 435; 1 Hawk. P. C., 122; 4 Black. Com., 214; Hays v. The People, 1 Hill, 351; Stephen v. The State, 11 Ga., 225.

The fifth seems not to have been offered as a proposition of law applicable to the evidence, but -by way of cautionary direction from the court to the jury in their consideration of the evidence before them, the giving or refusing of which was in the sound discretion of the court; and certainly there was nothing in this case which called for or warranted such an admonition, and the court very properly rejected it.

The last ground of the motion was, that the verdict was contrary to law and evidence.

Sarah Louisa Beers, the party upon whom the crime was charged to have been committed, was a girl, a child about eleven years old, living in the defendant’s family. The defendant’s wife was from home, and there was no other person about the house but the defendant and the child and Pike-Little, who was lying ill in another room. The child was in the defendant’s room about sunrise, sweeping, when he ordered her to get in his bed; upon her not complying, he threatened to stamp her into the ground. He then seized hold of her and jerked her into it, and against her will, she crying and screaming the while, violated her person. Profuse bleeding followed the outrage, and a physician calling to see the sick man, whom he was attending, learning from him the deed, within two or three hours after its perpetration examined the child, then in great pain, and found her bruised and lacerated in a horrible manner from the penetration of her person. Upon a careful examination by physicians, no sign or appearance of puberty or womanhood could be discovered.

The crime was committed in St. Erancis county, and before the finding of the indictment.

Such are the facts developed by the evidence, which was direct, positive and full to every material allegation of the indictment; But were it less conclusive, it was the province of the jury to consider and pass upon the evidence, as this court has repeatedly held ; and it has no authority upon the mere weight of evidence to disturb their verdict.

We find no error in the proceedings of the court below, and its judgment is accordingly affirmed.


text:
    Yoes, Adm’r, vs. Moore & Kidd, Adm’rs.
    Appeal : From the probate to the supreme court.

    Sec.,15 of ch. 49, Gould’s Dig., continued in force after the adoption of the code of practice, and precluded an appeal from a probate court to the supreme court, in the matter of the allowance of claims against estates. The provisions of the constitution of 1868, and of secs. 15,16 and 19 of the civil code on this subject construed.

      APPEAL from the Probate Court of Washington County.

      Waihins & Bose, for appellants.
   English, C. J.

At the October term, 1867* of the probate court of Washington county, Jacob Yoes, administrator de bonis non of Jacob Mullins, deceased, presented for allowance and classification, a claim against the estate of Tandy K. Kidd, deceased. Moore & Kidd, the administrators of said estate, to whom notice had been given, appeared and filed a number of pleas contesting the claim. Issues were finally made up, and at the July term, 1869, submitted to a jury, and there was a verdict for the defendants. The plaintiff filed a motion for a new trial, which was overruled* and he prayed an appeal to the supreme court, which was granted. Then follows a judgment that defendants go hence, and recover costs ’of plaintiff.

The transcript was filed in this court in 1870, the day and month not appearing in the indorsement of the clerk.

At the December term, 1870, the counsel for appellees made a motion to dismiss the cause for want of jurisdiction, etc., which motion seems never to have been disposed of.

It may, perhaps, be unfortunate for appellant that the cause has been permitted to sleep here for four years without a decision on the motion to dismiss. But we must dispose of the case as we find it.

Passing over the objection in the motion to dismiss, that the transcript was filed out of time, we will proceed to consider whether an appeal would lie directly from the probate court to this court, passing over the circuit court.

Before the adoption of the constitution of 1868, there was no provision for a writ of error from this court to any of the courts inferior in grade to the circuit court, nor was there any provision for an appeal from such inferior courts directly to this court. See the remarks of Mr. Justice Dickinson in Frail ex parte, 3 Ark., 561, on our judicial system, grades of courts, etc.

Appeals were allowed from any final order, judgment or decree of the probate court to the circuit court. Gould’s Dig., ch. 4, sec. 197, etc. So, the circuit court had appellate jurisdiction over orders and judgments of the county court. Id., ch. 49, sec. 15, etc.- Appeals allowed from the circuit to the supreme court, and writs of error went from the latter to the former.

The appellate jurisdiction of this court was coextensive with the state, under such restrictions and regulations as were prescribed by law. But judgments of justices of the peace, corporation, probate and county courts were reviewed by the circuit courts, on appeals, before they came before the supreme court for final review.

The follovnng were the provisions of the constitution of 1868, bearing on the question before us.

The supreme court shall have general supervision and control over all inferior courts of law and equity. * * Final judgments in the inferior courts may be brought by writ of error, or by appeal, into the supreme court in such manner as may be prescribed by law.” Art. VIL, sec. 4.

“ The inferior courts of the state, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as they now possess: provided, that the general assembly may provide for the establishment of such inferior courts, changes of jurisdiction, or abolition of existing inferior courts, as may be deemed requisite.” Id., sec. 5.

“ All appeals from inferior courts shall be taken in such manner and to such courts as may be provided by law. Appeals may be taken from justices of the peace to such courts and in such manner as may be prescribed by law.” Id., sec. 15.

All this is plain enough, and under these provisions of the constitution of 1868, no lawyer familiar with our system of courts would have thought of taking an appeal directly from the probate to the supreme court in the absence of legislation especially warranting it.

But after the adoption of the constitution of 1868, a code of pleading and practice was prepared by a commission of lawyers not very familiar with our judicial system, and adopted by a legislature less familiar with it. The code of Kentucky, with modifications intended to adapt it to our judicial system, was adopted. Under this code, as originally adopted, there was confusion and uncertainty as to the appellate jurisdiction of the circuit and supreme courts.

Section 15 of the civil code provides that: “ The supreme court shall have appellate jurisdiction over the final orders, and judgments of all other courts of the state, subject to the exception in the next section.”

This is section 15 of the Kentucky Code, with the substitution of the words “ supreme court ” for “ court of appeals,” and “state ” for commonwealth.

The next section of our Code is as follows: “ Sec. 16. Where the action or proceeding is for the recovery of money or personal property, and the matter in controversy does not exceed fifty dollars in value, or, in behalf of the defendant, where the judgment of the inferior court is against him for money or personal property, not exceeding in value fifty dollars, unless reduced below that amount by a setoff or counterclaim, or where the judgment grants a divorce, or where the judgment or order is by the county court, police court, or city, or mayor’s court, or justice’s court, and an appeal is given to the circuit court, the supreme court shall have no appellate jurisdiction.”

This is section 16 of the Kentucky Code, with the substitution of “fifty dollars” for “one hundred dollars,” in the two lines where they occur, and the omission of quarterly courts.

The makers of our Code, in framing this section, seem to have understood that we had no quarterly courts, as Kentucky had, and hence omitted them, but they failed to bear in mind that the county courts of Kentucky had probate jurisdiction, and that we had separate probate courts.

Taking sections fifteen and sixteen of our Code, as above framed, together, and treating them as the only law pn the subject, appeals would lie from all final orders and judgments of the probate court directly to the supreme court.

But section 19 of the Code is as follows: “Circuit courts shall have appellate jurisdiction of the judgments and final orders of probate and county courts on the probate of wills ; the granting or revoking of letters testamentary and of administration ; the appointment and removal of guardians; the settlement of accounts of fiduciaries; the division or partition of land ; the allotment of dower, and the establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways, and of judgments of justices of the peace,” etc.

This is the same as section 20 of the Kentucky Code, with the omission of so much as relates to quarterly courts, and the insertion of probate courts. And our Code makers, by inserting the words “probate and” before the words “county courts,” have confused the jurisdictions of the probate courts and the county courts.

The county courts of Kentucky having probate jurisdiction, the words probate courts do not occur in section 16 or 20 of the Kentucky Code, and the sections are in harmony, but the omission of probate courts in section 16 of our Code, and their insertion in section 19 left the two sections in confusion and conflict.

But dissecting section 19, and separating the subjects of the jurisdiction of the probate courts from the subjects of the jurisdiction of the county courts, and the circuit courts had appel - late jurisdiction of the judgments and final orders of the probate courts in the following matters:

1. The granting or revoking of letters testamentary and of administration.

2. The appointment and removal of guardians.

3. The settlement of accounts of fiduciaries.

4. The division or partition of lands.

5. The allotment of dower.

And the circuit courts had appellate jurisdiction of the judgments and final orders of county courts in the following matters:

The establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways.

Taking sections 15, 16 and 19 of the Code to be the only law in force regulating appeals from judgments and orders of the probate and county courts, the singular result would follow, that in the matters above specified, the appeals would have to be taken to the circuit courts, and in other matters, not specified, the appeals would have to be taken directly to-the supreme court, producing a want of harmony in our judicial system, which it may be supposed the framers of the Code did not intend. x

Section 19 gives the circuit courts no appellate jurisdiction over judgments and orders of the probate courts in the allowance or rejection of claims against estates of deceased persons ; nor does it give the circuit courts appellate jurisdiction over judgments and orders of the county courts in the allowance or rejection of claims against counties, and in some other matters of which the county courts have jurisdiction.

After the adoption of the Code, Mrs. Tilghman obtained the allowance of a contested claim against the county of Chicot, in the county court of that county, and there was an appeal, on behalf of the county, directly to this court. This court decided that section 15 of chapter 49, Gould’s Digest, allowing appeals from the county courts to the circuit courts, in such cases, was still in force, and struck the cause from the docket of this court for want of jurisdiction. Chicot County v. Tilghman’s Executrix., 26 Ark., 461.

In the case now before us, there was a judgment of the probate court against the allowance of a claim against an estate, and the claimant appealed directly to this court. This case is analogous, on principle, to the case above cited. The Code did not provide for an appeal from the probate court to the circuit court in such cases, but the Code did not contain all the law in force on the subject of appeals at the time of its adoption. The omissions of the Code were supplied by provisions of Gould’s Digest, which we have above referred to.

The case must be dismissed for want of jurisdiction.


author: Williams, Sp. J.'

text:
    The State vs. Jones.
    1. Bail : Liability of attorney on bail bond.

    Semble, that sec. 4823, Gantt’s Dig., providing that attorneys shall not be taken as bail without leave of the court, is merely directory, and cannot be set up as a defense to an action on the bond.
    2. Scire Facias on Bail Bond : Pleading in.

    In scire facias on bail bond, the whole record is before the court, and if the defense is defectively pleaded, judgment should not be given when the record shows it would be illegal and unjust. A demurrer to the defendant’s pleading should, in such case, relate back to the plaintiff’s case, as in pleading at common law.
    3. Bail : Discharge of.

    Where a change of venue is granted on the application of the defendant, who is at large on bail, and he is ordered into the custody of the sheriff to be transmitted to the custody of the sheriff of the county to which the venue is changed, the right of the bail to the custody of the defendant is impaired, and his liability is at an end.

      APPEAL from Drew Circuit Court.
    Hon. John A. Williams, Special Judge of the Circuit Court.

      Met. L. Jones, for appellant.

      J. R. Montgomery, Attorney General, contra.

   Williams, Sp. J.'

Appellee became bail for the appearance of Joseph Porter before the criminal court of Jefferson, county, at. its February term, 1873, to answer an indictment for robbery. The condition of the bond was to appear at that term and “ at all times render himself amenable to the orders and process of the court in the prosecution of said charge, and render himself in execution if convicted; and if he should fail to perform either of these conditions, to pay one thousand dollars, the amount of the bond.

At the time prescribed in the bond, Porter appeared before the Jefferson criminal court, was arraigned and pleaded to the indictment.

The case, on his application, was moved, by change of venue, to Drew county, as prescribed in Gould’s Dig., ch. 52, secs. 132, 183, et seq., which was the law governing the case at the time.

At the first term, thereafter, of the Drew circuit court, Porter failing to appear, a forfeiture was taken on the bail bond against him and appellee. To the scire facias on this forfeiture, the appellant set up two defenses.

1. That he was an attorney-at-law, enrolled and practicing in the criminal court of Jefferson county at the time he became security in the bond, and that said court had not given him leave to become bail in the case.

2. That the bond was for the appearance of Porter before said criminal court, and not for his appearance before the Drew circuit court; and that the change of venue was ordered and made after the bond was taken, and after Porter had appeared in Jefferson court in obedience to its conditions, and there was no order of court given for Porter to stand on his bail, or directing the bail to be held for the appearance of defendant before the circuit court of Drew county, and that the change of venue was made without the consent of the appellee.

To these defenses, forming two separate paragraphs of an answer, the state demurred; the court below sustained the demurrer as to the second defense, and overruled it as to the first.

Section 4823, Gantt’s Digest, provides, that attorneys-at-law shall not be taken as bail without leave of the court.

We are inclined to the opinion, in which we are sustained by authority, that this is a mere directory law, and that it does not lie in the mouth of the bail to set up this defense. Commonwealth v. Ramsey, 2 Duval (Ky.), 385; Jack v. People, 19 Ill., 57. Yet, in the view we take of this case, we do not deem it necessary to decide this question. Eor if it appear that, upon the whole record, the judgment of the court below was right, it must be affirmed. Let us, therefore, see if the second defense is good, and if not, whether the demurrer to it did not reach the defects in the state’s own case.

If the appellee had proved what he averred in the second paragraph, that Porter appeared and was in custody as the law required, and that the Jefferson criminal court gave no order directing the bail to be held for the appearance of Porter in the Drew circuit court, it would have been sufficient. We believe the condition of the bond is broad enough to have required Porter to have obeyed the order of the court to go to Drew, and to surrender himself in final execution, if convicted, if the court of Jefferson county had so ordered. In cases like this, the whole record is before the court, and even if a defense wqs defectively pleaded, judgment should not be given where that record shows it would be illegal and unjust. The demurrer should, in such case, reach back to the-defect in plaintiff’s case as in pleading.

In this case, the record shows that the order Changing the venue from Jefferson criminal court to the Drew circuit, expressly ordered Porter into the custody of the sheriff, and directed the sheriff of Jefferson to “ transmit his body ” to the-sheriff of Drew.

Giving the fullest scope to the last clause in the bail bond,, and holding that it would bind the bail until the principal, on conviction, was surrendered in execution without any order of court remitting the prisoner to his bail, which we-do not here intend to decide, still, in this case, the express order of the Jefferson criminal court materially affected the-rights of the bail. The law considers a prisoner on bail as in the custody of his surety, who has the right to look after him, and arrest him any where, and surrender him to proper-authority. With such an order before him, it would have-been a difficult undertaking for appellee to have attempted to control Porter’s movements as agáinst the sheriff.

Competent authority having impaired the right of the bail,, we cannot hold him legally responsible. If Porter escaped,, it was from the sheriff of Jefferson or Drew county, whichever, under this order, had the body. If Jefferson had transmitted, as ordered, the escape was not from him. Otherwise, on this record, he appears to be the responsible party. The escape is-certainly not from the bail, who, in law, was his custodian, while his bond was unperformed, and he -at large on it.

Finding, on the whole record, that the judgment of the circuit court of Drew county is right, the same is affirmed.

Mr. Justice Harrison did not sit in this case.


author: Williams, Sp. J.

text:
    Snow et al. vs. Grace.
    1. Practice: Substituted declaration.

    It is not error to permit a new declaration to be substituted for one that has become almost illegible from use.
    2. Contract: Consideration.

    The compromise oí litigation is sufficient consideration for an express promise.
    3. Confiscation : Proceedings and evidence necessary to sustain.

    The acts of congress of August 6,1861, and July 19, 1862, required confiscation to be decreed by a district court of the United States and title through that source must be proved by the record. Persons claiming confiscation under the 1st section of the act of May 11,1866, must establish a military seizure of the property, and evidence tending to prove the seizure is properly left to the jury.
    4. Agency: notification.

    An instruction that the acceptance by the principal, of a valuable consideration for property sold by a general agent ratified the sale, and the principal could not repudiate it without returning, or offering to return, the consideration, held to be substantially good in view of the evidence, though it would have been more correct to have qualified the effect of the acceptance by the principal’s knowledge of the transaction.
    5. Evidence : Opinion of impeaching witness.

    The rule heretofore adopted by this court, allowing an impeaching witness to testify as to his belief, adhered to, though questioned.
    6. — Of previous reputation for truth and veracity.

    The admission of testimony as to the reputation of a witness for truth and veracity, at some other time, and at a different place from that of his residence at the time of testifying, is in the discretion of the court; and it is only in cases of gross abuse, that the discretion will be controlled, especially where no suprise is shown.
    APPEAL from Jefferson Circuit Court.-
    Hon. Henry B. Morse, Circuit Judge.

      Yonley, for appellant.
   Williams, Sp. J.

This case was before this court on a former occasion, and the judgment rendered therein by the circuit court of Jefferson county was reversed, and the cause was remanded. On the filing of the mandate of the supreme court the cause was regularly tried by a jury, which rendered a verdict in favor of appellee, upon which judgment was rendered. Erom this judgment defendants below have appealed to this court. Pending the trial defendants below excepted to sundry rulings and decisions of the court; and at the conclusion of the trial, pursuant to leave given by the court for time to prepare their bill of exceptions, presented the same, which contained all the evidence, instructions of the court, etc.

They also moved for a new trial on the grounds, as stated:

1. That the verdict is contrary to evidence.

2. That the verdict is contrary to law.

3. That it was contrary to the instructions of the court.

4. Because the court refused to give appellant’s instruction.

5. The court erred in giving appellee’s instruction.

6 and' 7. The court erred in admitting testimony tending to impeach appellants.

8. The court erred in admitting testimony of appellee, and in refusing testimony of appellants.

The court below overruled this motion, and appellants excepted.

The appellants here urge that the court below erred in allowing plaintiff to file a new declaration. The order states that defendants (appellants) waived their exception to the new •declaration and bond, and argued the motion to strike out the affidavit (in attachment), which was by the court sustained ; and that the court allowed the new declaration to be substituted, because the old one, from use, had become so defaced as to be almost illegible. There is nothing in this objection, even if appellant had not waived it.

It is next argued that the grounds of the motion for new trial are well taken, and that the verdict is against law and evidence; that Grace had no property in the bagging and ties, for the price of which this suit was brought, on the ground, first, that the express promise, on the part of the appellants to pay, which there is testimony tending to prove, is without consideration, if Grace had no property. To this it is sufficient to say, that the compromise of litigation, which the testimony proved existed in this case, is a sufficient consideration for an express promise; second, that there is for the same reason no implied promise to pay; that Key, who sold them to Grace, had no authority from Sheppard, the owner, to sell, and if he had authority from Sheppard, still it was abandoned property within the meaning of the act of congress, and had been confiscated, and that we must presume this confiscation from the facts proved.

The appellee introduced evidence on the ‘ trial tending to prove that a short time before the occupation of Pine Bluff, Arkansas, by the Federal army, in 1863, he had bought of one Key, who, the evidence tended to show, was the general agent and manager of James Sheppard, 250 bales of cotton, on the place of Sheppard, in Jefferson county, Arkansas, known as the Island place, together with all the bagging and ties and rope on said place, being bagging and rope enough to bale one thousand bales of cotton; that the bagging was worth one dollar per yard, and the rope and ties fifty cents per pound at the time appellants used them. The evidence tended to prove subsequent ratification by Sheppard of Key’s action, by receiving the price paid to him by Grace for the cotton and bagging, rope and ties, and that appellants had expressly promised to pay plaintiff for the bagging, etc. To this testimony appellants objected at the time of its introduction, and the court overruled the objection and permitted the testimony to go to the jury. This action of the court was made one of the grounds for the motion for new trial, the points having been properly saved during the progress of the trial.

We see no error in thus admitting appellee’s testimony. If uncontroverted, it would have strongly tended to establish appellee’s case; and in view of appellant’s testimony, subsequently introduced, the whole case was one for the jury, and the court did not err in refusing to exclude this testimony from them.

The defendants below testified in the case, and their testimony tended to prove that James Sheppard, the owner of the plantation, was_absent at his home in Virginia at the time of the Federal occupation of Pine Bluff, and that Key, his manager, had left the plantation, and taken the negroes and live stock, etc., off the place, and had gone south; in this, acting under Sheppard’s instructions, leaving the bagging and ties in controversy, and cotton and corn, on the place; that appellants had made a contract with Powell Clayton, commander of the post at Pine Bluff, for the gathering of the cotton and corn on the place. Appellants contradict plaintiff’s testimony by denying any express promise to pay for the bagging and ties ; they also, against the testimony of plaintiff, testify that they delivered to Grace, in full compromise of all claims, a large amount of cotton. Grace admitted the receipt of the cotton, but stated that it was received only in settlement and compromise of his claim on the cotton; and that appellants expressly promised to pay for the bagging and ties. • Appellants further testified that Powell Clayton, the commander of the post, had ordered them to use the bagging and ties, which, they claim, protects them.

The acts of congress of the 6th of August, 1861 (12 Statutes at Large, 319), and of the 17th of July, 1862 (id., p. 591), both required confiscation to be decreed by a district court of the United States; and if appellants claim title by confiscation, -they must show title by the record, or at least make the record the foundation of it. Under the act of congress regulating ■captured and abandoned property, approved March 12, 1863 ■(12 Statutes at Large, 820, secs, 1 and 2), it would be necessary to show that their title was derived from a treasury agent in pursuance of the provisions of that law; and as a treasury agent was but a ministerial and not a judicial officer, whose ■decrees possess the power of concluding all questions, it would, perhaps, be necessary also to show all necessary facts which, ■under the law, gave him power to sell, or appraise, or appropriate to public use, as no title is here traced to a treasury ■agent. This question is not before us. If the appellants ■claimed exemption from suit under the provisions of the first ■section of the act of congress of May 11,1866, even if that act applied here, it would have devolved on them to have established a military seizure of thq bagging and ties, and the evi■dence tending to prove this was properly left by the court to -,the jury to determine. And giving the appellants the fullest possible protection from any or all these acts of congress, still, in view of the evidence of a compromise and an express promise, we could not disturb the finding without violating those rules which have governed this court from its foundation; ■especially that rule which prescribes that where there is any ■evidence to support the verdict, we will not disturb it except ior errors of the court.

The appellants assign as error the ruling of the court in igiving the fourth instruction asked for by plaintiff below, which is: If Key was the general agent of Sheppard, and the jury believe that as general agent he sold the property to plaintiff for a. valuable consideration, and Sheppard accepted that consideration, he thereby ratified the sale, and he could not in law repudiate the same without returning, or offering to return, the consideration; although it would have been better if the court had added after the words “accepted that consideration,” the further words, “with full knowledge of the transaction,” the instruction would have been more correct; but taking it entire, especially the first and last clauses being considered, in view of the evidence, we think the instruction is substantially correct.

The appellants also excepted to the ruling of the court in refusing to give the third instruction which they asked, to wit: If the jury believe from the evidence that said bagging and ties were not actually delivered by Key to Grace at the time of said supposed sale, and that Grace paid therefor in whole or in part in confederate money, then the contract was void in law, and could not have been enforced against Sheppard, and the jury will find for defendants. We find no error in refusing to give this instruction as asked. In view of the evidence, $500 of the price having been paid in gold, if this instruction had been given, the jury might have been misled by it.

The only remaining question in the case which is of any moment is, whether the court erred in allowing the impeaching testimony of six or eight citizens'of Pine Bluff, tending to impeach the veracity of appellants. The question asked of the witnesses, severally, was : Did you know the reputation of Josiah Snow and William D. Snow in Pine Bluff, in 1862, 1863 and 1864 ? The witness answered in the affirmative, and then, in answer to a question, gave the opinion on that knowledge, that they would not believe them on oath.

There is good authority which holds that the witness should be confined to a statement of the fact of bad character for truth, and give no opinion as to his own belief. In England, and most of these states, however, the witness is allowed to go further and state his opinion. 1 Greenl. Ev., sec. 461. It is difficult to see the reason for allowing the witness to give his' opinion, for it is certainly not the question of an expert. Yet the rule which has long obtained in England has been too long followed in this state to be disturbed.

Mr. Greenleaf says: “that this testimony must come from his neighbors, and not from one who is sent into the neighborhood of the witness to search out his character.” In this case, seven years had intervened between the time when the impeaching witnesses lived in the neighborhood of the impeached, and the time they testified. One of the modes of. impeaching a witness is to show bad reputation. This inquiry, says Mr. Greenleaf (1 Greenl. Ev., 461), is confined to-general facts. Now, all of this is, that a man’s reputation for • truth may be considered. But where is this reputation to be gathered? Erom his neighbors, says Mr. Greenleaf. Neighbors, when; at the time of testifying, or at another time before ? The same author says: “ The inquiry must be made as to his general reputation, where he is best known. He, the-impeaching witness, must be able to state what is generally, said of the person by those among whom be dwells, or with whom he is chiefly conversant.” Where ? And the decisions-, cited by him do not say any more, or answer the question;' and not one of them which we have been able to examine, presents this question at all or passes on it. See Boynton v. Kellogg, 3 Mass., 192 ; Wike v. Lightner, 11 S. & R., 198, 199, 200; Kimmel v. Kimmel, 3 id., 337, 338; Phillips v. Kingfield, 1 App., 375.

In the case of The United States v. Van Sickle, 2 McLean, 219, Judge McLean says: The proper inquiry is, AVhat is the general character of the witness for truth, in the place where he resides? But the question before him, in that case, was: Shall the inquiry be confined to the question of veracity, or shall we inquire as to general moral character? Therefore, in this sentence, “ truth ” is the emphasis, and not “ the place where he resides.”

Where the present character of a witness was slightly impeached, evidence of past bad character may be admitted to strengthen it. So held in the case of The People v. Abbott, 19 Wend., 192. In the case of Rathbun v. Ross, 46 Barb. (N. Y.), 127, evidence of bad character of a witness in a town where he had resided eight years was objected to on the ground that the witness, who was sought to be impeached, had a fixed residence in another place for the last three or four years, and that the evidence must be directed to his present character and his present residence, about which the impeaching witness did not know anything. Held, by the supreme court of New York, that it was error in the court below in excluding such evidence. In delivering the opinion of the court in that case, Johnson, J., says: “In the present case the witness had known the person sought to be impeached, up to within five years of the trial. The law does not presume that a person of mature age, whose general character has been notoriously bad up to within a period of five years, has reformed so as to have acquired an unimpeachable reputation since that time. Reformation may be shown in answer to the attack, but the law will not presume it in advance.” .

The case of Sleeper v. Van Middlesworth, 4 Denio, 431, presents the same question. In that case the impeaching witness did not. know the reputation of the witness which was sought to be impeached, where he lived at the time of testifying; but knew what it had been four years before at another place. The supreme court of New York held, that the rule of law which presumed that the existence of a person, a personal relation or a state of things, once established by proof, continues the same until the contrary is shown, is applicable within reasonable limits to the character of a witness, proved to have once sustained a bad reputation for truth and veracity.

In the case of Woodman v. Churchill, 51 Me., 112, impeaching evidence of this kind from the neighborhood of the impeached witness had been received. The party who introduced the impeached witness was allowed to sustain his character by proving the character the witness bore in a town other than the one he resided in at the time of testifying, but where the impeached witness had lived many years.

In Quinsigamond Bank v. Hobb, 11 Gray (Mass.), 250, a witness had been impeached, and the party who introduced him was allowed to prove that his character for truth was good formerly, before he failed in business, although it had been bad since.

In the case of Aurora v. Cobb, 21 Ind., 492, it was held, that evidence designed to impeach the general character of a witness should relate to the time when he testifies, and his character at the place where he then resided amongst those who knew it there. To the same effect, substantially, is the decision in the case of Rogers v. Lewis, 19 Ind., 405.

The supreme court of the United States, in the case of Teese v. Huntingdon, 23 How., 2, held that it was in the discretion of the court, before which the trial was had, to reject evidence of former bad character, and determine whether the evidence offered was too remote. In that case the witness, being asked the question, answered : he had not known the witness sought to be impeached for five years. The court below having refused to let the impeaching witness testify further on the point, the supreme court of the United States refused to disturb the verdict on the ground that the admission or rejection of it was a matter within the discretion of the court below.

An instruction which confines the jury, in considering such impeaching evidence, to such statements as have been made by those among whom the impeached witness dwells, and to whom he is known, was held to be a misleading instruction, by the supreme court of Kentucky. 2 Metc., 342.

In Yermont, it has been decided that evidence of former reputation is not admissible. Willard v. Goodenough, 30 Vt. (1 Shaw), 393.

To the same effect is Rucker v. Beatty, 3 Ind., 70. A witness testified that he knew a previous witness in the old country, and that said witness had resided in this country above five years. The question was then asked, whether he knew his character for truth in the old country. It was held improper. Webb v. Hawke, 4 Mich., 198.

The supreme court o£ Illinois held such evidence of former character in another place than that of residence at the time of testifying, admissible. Holmes v. Stoteler, 17 Ill., 453.

In Alabama, it was held that a witness was competent as an impeaching witness, who moved into a neighborhood the impeaching witness formerly lived in about the time he left, and could testify as to the reputation he. left behind him there. Martin v. Martin, 25 Ala., 201. In Georgia, an impeaching witness testified that he had known the impeached witness eight or ten years in the county of Russell, Alabama, and that he had a reputation there. Held, that it was proper to ask .the witness as to the reputation of the impeached witness in Alabama. Boswell v. Blackman, 12 Ga., 591.

It was held in Bates v. Barber, 4 Cush., 107, that the impeaching testimony of this kind was a question of fact to be •tried by the jury, and the court could not, before admitting it, institute hn inquiry as to the impeaching witness’ means of knowing the reputation about which he testifies.

In the case of Morss v. Palmer, Morss v. Ayres, 15 Penn. St. (3 Harris), 51, it was held that, in support of an impeached witness’ character he is not confined to the same neighborhood, or time spoken of by the impeaching witness; but he may prove his character years previously, and in a different county in which he had resided.

It will be thus seen that the authorities are in conflict on this question. It seems to us, however, that the reputation a witness has for truth is a mere circumstance, which the rules of law allow to be considered - by the jury to aid them in determining the degree of credit to be given the witness, and is purely a question of fact. If so, does not reputation at some other time than that of testifying, and some other place than that of the then residence, equally tend to shed light upon the question of credit? The light may be dim and flickering, on account of remoteness, but is it not still light? The remoteness of time and place are also circumstances and facts to which, ordinarily, under proper instructions, the jury will give due weight. If this sort of testimony is to be admitted at all, it would be-difficult to draw the line, and say where it — the evidence of reputation — ceases to be fact and becomes a question of law.

Doubtless there are cases in which the testimony would be too remote as to time, and the court, in its discretion, might exclude it, as in the case cited from 28 How. Its exclusion, in that case, rested in the sound discretion of the court — so held. So likewise is its admission within the same discretion of the court, when remoteness is the only objection to it, and unless the circumstances of the case show a gross abuse of this discretion, we should not set aside the verdict, especially where no evidence of surprise is shown, and surprise being-no part of the ground for new trial.

It seems reasonable that whenever witnesses of mature age, like those in this case, are proven to be men in 1863, engaged in the active business of life; who had lived at Pine Bluff for three or four years, in business there actively, had mingled with the people of the community; when, therefore, six or eight of the citizens of that city swear to their bad character for truth during that period, and not one of the two or three thousand inhabitants of that city is heard to contradict, it would, under such circumstances, be going too far to say that this circumstance should not have been considered by the jury, because the witnesses impeached had been absent from Pine Bluff seven years, without any proof that they had another place of residence within that period long enough established and fixed, to enable them to have established a better reputation.

Affirmed.

Hon. W. M. Harrison, J., did not sit in this case.


author: English, O. J.

text:
    Bass vs. The State.
    1. Criminal Pleading.
    Matters of defense, not appearing on the face of the indictment, are no-ground of demurrer, but must be taken advantage of at the trial.
    2. Coroner : Power to arrest.

    A coroner is authorized to have parties who are, by the inquest, impli. cated in the crime of murder, arrested and held for trial in the circuit court. And an officer in whose custody they are placed has no right to release them on the order of a justice of the peace who had, prior to the death, had them arrested for attempting to take the life of the deceased. The latter officer has no power to bail in such cases.
    3. Evidence: Coroner's minutes of an inquest.

    The minutes kept by a coroner of an inquest held by him are not competent evidence. The facts contained in them should be proved by the testimony of the coroner.
    APPEAL from Garland Circuit Court.
    Hon. L. D. Beldin, Circuit Judge.

      S. H. Cockrell, for appellant.

      Hughes, Attorney General, contra.

   English, O. J.

The indictment in this case, founded on sec. 1487, Gantt’s Dig., p. 362, is as follows:

“The grand jury of Garland county, etc., etc., accuse Thomas Bass of the crime of permitting and conniving at the escape of prisoners, committed as follows, viz: The said Thomas Bass, on the 14th day of March, A. D. 1873, in the county of Garland, state aforesaid, as constable of Hot Spring township, having in lawful custody William Brown and George Burrough, prisoners, by virtue of a warrant or process-issued by a legal and proper officer, did then and there, willfully and unlawfully and voluntarily, suffer, permit and connive at the escape of the said William Brown and George Burrough, prisoners, from his custody, and permit them to go at large, against the peace and dignity of the state of Arkansas.”

The appellant demurred to the indictment, not for any defect appearing on its face, but on the grounds, as stated in the demurrer, that he was an inferior officer of Justice Allard’s court, who issued a warrant for the arrest of the prisoners, and after their arrest by defendant, ordered their release.

This, of course, was no ground of demurrer to the indictment, but if available at all, was matter of defense, to be introduced on the trial.

The court overruled the demurrer, the appellant pleaded not guilty, was tried and convicted. A motion for a new trial was overruled, and he took a bill of exceptions and appealed.

On the trial, the state introduced as a witness N. H. Cloys, who testified that he was coroner of Hot Spring county on the 14th day of March, 1873, by virtue of a commission from the governor. That on said day, Thomas Bass, constable of Hot Springs township, Hot Spring county [afterwards made part of Garland county], had in his custody four men, Hall and son and Brown and Burrough, for whom said Cloys, as Coroner, had.issued a writ or warrant of arrest, and which writ or warrant of arrest had been returned as served by said Bass. That afterwards said Bass permitted Brown and Burrough to go at-large without" authority or permission of said Cloys.

On cross examination, he stated that his bond as coroner had been approved, and that he issued the warrant of arrest.

L. S. Allard, introduced by the state, testified that he permitted Cloys to use his office, and acted as his clerk, Cloys having an afflicted arm.

Here the state rested, and these were the only witnesses introduced by the state.

The evidence on the part of the state was as vague and uncertain as some of the material allegations of the indictment.

Mr. Russell says, every indictment for an escape, whether negligent or voluntary, must expressly show that the party .was actually in the defendant's custody for some crime, or upon some commitment upon suspicion. 1 Rus. on Cr., 422-8, quoted by Bishop, who gives Archbold’s pz-ecedent for an indictment, etc. Bishop Cr. Pro., secs. 889, 891, 894.

In this case, the indictment alleges that Brown and Bur-rough were in the custody of appellant on a warrant of arrest, but does not aver for what crime, offense, cause or charge.

Cloys testified that he issued the warrant of arrest as coroner ; but did not state for what cause. He testified to no facts that would authorize him to issue a warrant of arrest.

The statute makes the coroner a, conservator of the peace, and makes it his duty to cause all offenders against the law, in his view, to enter into recognizance, etc., and to quell and suppress all riots, affrays and assaults and batteries, and apprehend and commit to jail all. felons and traitors. Also, to hold inquest over dead bodies, and issue warrants for the arrest, of suspected persons, etc. Gantt’s Dig., ch. 30.

Here the state did not introduce the warrant of arrest issued by Cloys, nor prove, by him or any other witness, for what ■cause or on what charge it was issued.- He stated merely that he issued the warrant of arrest, and that the prisoners were in custody of the appellant, and that he permitted them to go at large, leaving the jury to presume that the warrant was legally issued and valid — presumptions that juries are mot at liberty to indulge in in criminal cases.

The substance of the testimony introduced on the part of the appellant is, that on the 11th of March, 1873, Allard, a justice of the peace, issued a warrant to arrest Brown, Bur-rough, and Greorge and Abner Hall, on a charge of malicious .attempt to take the life of John and Martha Bradshaw. They were arrested by appellant, as a constable, to whom the warrant was delivered, and held in custody until the 14th of March, 1873, when Allard permitted Brown and Burrough to .give bail for their appearance at the circuit court, and issued an order to appellant to release them from custody, and he released them. The witnesses for the defense could not remember whether Martha Bradshaw was dead or not when Allard took the bail and ordered the release of Brown and Bur-rough.

The state, by way of rebutting evidence, offered to read to the jury, from a book kept by Cloys as coroner, minutes of an inquest held by him over the dead body of Martha Bradshaw; to the introduction of which, as evidence, the appellant objected, and the court overruled the objection, and the minutes were read to the jury.

The minutes show that the inquest was held on the 13th and 14th of March, 1873. The entry of th§ 13th shows that information having come to the knowledge of the coroner that Martha Hall (as she was called in the entries) had come to an unnatural death, he proceeded to have the body examined by surgeons, and to summon and impanel a jury of twelve men to hold an inquest, etc., whose names are given, and that in the afternoon they adjourned to meet at the office of Justice Allard, in Hot Springs.

The entry of the 14th shows that the coroner’s court convened, jury present, witnesses were examined, and the “jury returned a verdict that the deceased, Martha Hall, came to her death from a gun-shot wound, inflicted willfully and maliciously, by Abner Hall, and that George Hall, George Burrough and Wm. Brown were accessories before the fact; whereupon, after said Abner Hall, George Hall, George Burrough and Wm. Brown had been, arraigned and interrogated as to the death of Martha Hall, and their whereabouts at the time the murder took place, and they positively having refused to say anything as to their guilt or innocence in the matter, commitments were issued, and Abner Hall and George Hall delivered over to the sheriff, to await their trial at the next term of the circuit-court, etc., Geoi’ge Burrough and Wm. Brown having been allowed by the constable, Thomas Bass, to leave, contra^ to my orders, after having been placed in his keeping.”

These minutes were signed by Cloys as coroner.

Had the state proven the material facts stated in these minutes, by Cloys, when on the stand as a witness confronting the appellant, -in addition to the facts sworn to by him, a case would have been made out against the appellant; for the court had- authority to cause Brown and Burrough, implicated by the inquest in the murder of Mrs. Hall or Bradshaw, to be arrested and held by the appellant, as constable, and he had no right to release them bn the order of Allard, the justice who had caused them to be arrested before the death of Mrs-. Hall for the lesser offense of attempting to kill, etc. Gantt’s Dig., secs. 891, 892, ,898. Justices of the peace have no powder to bail in capital cases, murder 'or -manslaughter. Id., sec. 1711.

But the coroner’s minutes were not competent evidence for, the state, and the court erred in permitting them to be read to the jury.

The judgment must be reversed and the cause remanded with instructions to the court below to set aside the verdict,, and for such other proceedings as may be in accordance with law, and not inconsistent with this opinion.


text:
    Mott vs. The State.
    1. Criminal Pleading. Indictment for m'son, etc.

    No allegation of ownership is necessary in an indietmentfor arson of a public building; but there must be an allegation of a felonious intent.
    2. — The provisions of the constitution of 1868, that no person could
    be held to answer a criminal offense, unless upon presentment or indictment, except the offenses named therein, must be construed-with reference to the common law meaning of the term indictment; and, while the legislature may dispense with mere matters of form, the substance of a good common law indictment must be preserved.'
    APPEAL from Cross Circuit Court.
    Hon. John W. Eon, Circuit Judge.

      U. M. Rose, for appellant.

      John R. Montgomery, Attorney General, contra.

   English, C. J.

The appellant was- indicted in the circuit court of Poinsett county, for arson; the venue was changed, on his application, to the circuit court of Cross county, where he was tried on the plea of not guilty, and the jury found him guilty; he moved in arrest of judgment, which was overruled, and he was sentenced to the penitentiary. After sentence, he. offered to file a motion for a new trial, which the court refused him permission to do, and lie excepted, and obtained an appeal.

The cause assigned for the arrest of judgment is, that the facts charged 'in the indictment do not constitute a public offense, within the jurisdiction of the court.

The indictment,-after the usual caption, is as follows,:

“The grand jurors of Poinsett county, duly impaneled, sworn and charged, in the name and by the authority of the state of Arkansas, accuse George W. Mott of the crime of arson, committed as follows: That the said George W. Mott, on or about the 6th day of September, 1873, in the said county of Poinsett, did willfully and maliciously set fire to and burn the court-house of Poinsett county, in the town of Harrisburg, contrary to the form of the'statute in such case made and provided, and against the peace and dignity of the state of Arkansas.”

This is a code form of indictment upon sec. 1340, Gantt’s Dig., p. 338, which' provides that: “ If any person shall willfully and maliciously burn, or cause.'to be burned, ány state house, court house, prison, church, bridge, or any other public building, although not herein specially named, such person, on conviction, shall be adjudged.guilty of arson.”

Where private property is the subject of arson, the ownership of the structure burned must be alleged in the indictment, but this is not necessary in an indictment, like the one before us, for burning a public building. 2 Bish. Crim. Pr., sec. 53, 54; State v. Roe, 12 Vt., 93 ; Stevens v. Commonwealth, 4 Leigh, 683.

The word, “feloniously,” must, of course, occur in the indictment, where the offense is a felony, as it is at common law. Bish. Crim. Pr., sec. 57; 2 Wharton Crim. Law, sec. 1637.

By our statute, every person convicted' of arson, shall be imprisoned in the penitentiary for a period not less than two nor more than ten years. Gantt’s Dig., p. 339, see. 1343.

By statute, also, a felony is an offense of which the punishment is death or confinement in the penitentiary. Gantt’s Dig., p. 325, sec. 1225.

The appellant was indicted for a felony. The indictment charges that he willfully and maliciously set fire to and burned the court house, but the word, “ feloniously,” is omitted. In. the precedents, the words, feloniously, willfully and maliciously are used. Bish. Crim. Pr., sec. 50.

In Milan v. The State, 24 Ark., 348, this court held that in indictments for felonies, the criminal act must be charged to have been done feloniously.

And in Edwards v. The State, 25 Ark., 446, Mr. Justice Harrison said, that the authorities, with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to charge that the act was feloniously done, citing numerous authorities. See also, State v. Josse, 2 Dev. & Bat., 297.

By the constitution of 1868 (art. I, sec. 9), under which the appellant was indicted, no person could be held to answer a criminal offense, unless on the presentment or indictment of a grand jury, except the offenses named, and arson is not one of the exceptions. Indictment is a common law term, and the courts have necessarily to look to the common law to ascertain its meaning. And whilst we do not doubt the power of the legislature to dispense with mere matters of form; the substance of a good common law indictment should be preserved. If one matter of substance may be dispensed with, another may be, and where is the limit to innovations ?

In Jane v. The Commonwealth, 3 Met., 18, it was held that in indictments for felonies, under the provisions of the criminal code of Kentucky, it was not necessary to use the word feloniously in charging the intent with which the offense was Committed. There the court seem to indicate that the legislature of Kentucky was under no constitutional limitation in prescribing what was material in indictments.

In the later case of Rhodus v. Commonwealth, 2 Duval, 159, the court said: “ On the subject of indictments our criminal 'code recognized and established the common law, rightly understood and rationally applied. It dispenses with form and requires substance only. And what is now substance at common law is substance under the code.”

Such, too, have been the tenor and effect of our decisions. And this court has repeatedly held, as above shown, that in indictments for felonies, the word “feloniously” is substantive in charging the offense — a word that has a fixed and “well defined legal meaning, understood by bench and bar* And we are not disposed to overrule these decisions, disregard long used precedents, and follow Kentucky into undefined and uncertain regions in the interpretation of her criminal code.

It may seem strange to one not a lawyer to hold an indictment bad, for want of a word, or for the use of a wrong word, but words are often important, and the transactions and destinies of man and even of nations have not unfrequently turned upon the use of particular words, and particularly legal expressions.

The indictment being bad, for the reason stated, it is not necessary to decide any other question in this case.

The judgment must be reversed, and the cause remanded to ‘the circuit court of Cross county, from' which the appeal was taken, with instructions that the appellant be held subject to a new indictment in the circuit court of Poinsett county.