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    Palmore vs. The State.
    1. Constitutional La?w : The right of objecting to the. qualification of grand jurors.

    The provisions of sec. 1978, Gantt’s Dig., prohibiting exceptions, to the rulings of inferior courts, in refusing to set aside an indictment for a defect in the formation of the grand jury, is unconstitutional. The legislature may prescribe the time and manner of determining objections to the qualifications of jurors, but it cannot take away the right of objecting.
    2. Grand Jurors : Qualification of.

    It was not necessary, under the provisions of sec. 3654, Gantt’s Dig* that grand jurors should be householders or freeholders.
    3. Criminal Practice : Form of oath for petit jury.

    The oath prescribed for the petit jury by sec. 219, Crim. Code, is not in violation of the constitution; it in effect requires the jury to try the the case according to the law and the evidence.

      4. — Irregular and improper conduct of petit jury.

    During the deliberations of the petit jury, in a trial for murder, they should not be permitted to separate, or to indulge in the use of liquor, or to read a newspaper containing improper comments on the trial of the case before them, nor should the defendant or his counsel be called on to consent to such irregularities, as a refusal might incense the jury; but where the court below, with a knowledge of the facts and circumstances, and of the habits and character of the jurors, refuses to set the verdict aside on account of such irregularities, this court will not do it.
    5. Evidence : When threats; and the character of the deceased admissible.

    Threats, and the character of the deceased are admissible, when they tend to explain or palliate the conduct of the accused. They are circumstantial facts, and a part of the res gestee when so connected with the conduct of the parties as to explain their motives.
    6. Criminal Law.: Instructions: As to what constitutes the crime of murder.

    It is not the intention to use a deadly weapon, but the intention to kill, oí which the use of the weapon is evidence, that constitutes the crime of murder; and this distinction should be made clear to the jury in the instruction on this point.
    7. — Same.

    The court should define to the jury the difference in the degrees of homicide; but the failure to do so will not be ground for reversal where the court read from the statute the definition of the different degrees of murder.
    8. — Same.

    An instruction, that where a deliberate purpose to kill, or do great bodily harm, on the part of the defendant, appeared, followed by an unlawful killing, the provocation which immediately preceded must not be considered, unless the defendant showed that the purpose was abondoned before the killing; should be accompanied by an explanation of the degrees of homicide, and so guarded as to allow the jury to infer the abandonment of the purpose to kill, from the circumstances of the homicide.
    9. — Same. When obscure.

    Where an instruction is vague and obscure, but not misleading, this court will not hold it erroneous.

      10. — Malicious killing.

    A malicious killing is not necessarily murder in the first degree; it must also be willful, deliberate and premeditated, or committed in the attempt to commit some one ©f the felonies deseribed in the statute.
    11. — Reasonable doubt defined and explained.

    By a reasonable doubt it is not intended to exclude every mere possible doubt. Where the jury, after consideration and comparison of all the evidence, are satisfied to a moral certainty, of the truth of the charge, they may convict.
    13. — Self defense.

    To excuse homicide, it must appear that the danger is not only impending, but so pressing and urgent as to render the killing necessary ; and that the slayer really acted under the influence of such fears' as a reasonable person might entertain, and not in a spirit of revenge. The circumstances' of the rencontre, the situation of the parties at the time, their threats and their relative strength, should be considered by the jury.
    13. — Same. Instruction upon.

    An instruction, that if the deceased by his manner and words manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry the purpose into effect, the defendant, if in the reasonable fear of such consequences, was justified in taking life: Held, too general and unqualified.
    14 Instructions : How tested.

    In testing an instruction, every deduction that the jury might have made from the evidence is to be taken as having been proven.
    15. Evidence : Burden of proof, instruction, etc.

    Where the killing is proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, unless they are developed by the proof on the part of the state, or it is manifest that the offense only amounted to manslaughter. An. instruction to this effect, however, should be accompanied by a definition of the degrees of homicide.
    16. Instruction : When it need not be in writing.

    The reading of a section of the digest to the jury, as an instruction, is a sufficient compliance with the law requiring it to be in writing.

      17. Criminal Practice : What papers should le excluded from the jury.

    The jury should not be permitted to take with them, when they retire, papers containing statements bearing on the case, which were not read in evidence. But where the paper taken is the appellant’s mo. tion for continuance, containing a statement of the facts he expects to prove, it cannot be prejudicial to him.
    APPEAL from Phillips Criminal Court.
    Hon. Charles C. Waters, Judge.

      T. B. Hanley and Palmer & Sanders, for appellent.

      S. P. Hughes, Attorney General, contra.

   Williams, Sp. J.

The appellant was indicted in the criminal court of Phillips county, for murder of one Meyers. He filed his motion to set aside the indictment, on the ground that two members of the grand jury that found the indictment were not freeholders or householders. To this motion the state demurred, the court sustained the demurrer, and appellant excepted.

Section 1978 of Gantt’s Digest prohibits all exceptions to the ruling of inferior courts in refusing to set aside an indictment for certain causes, among others this. This section violates the provision of the constitution of 1868, section 9, article I., which requires a presentment or indictment by a grand jury, before the accused can be called to answer for such a crime as this. While the legislature may prescribe the time and manner of determining the objection for the want of qualification of jurors ( Whitehead v. Wells, ante, p. 99), it cannot take away the right to make it.

The objection is here made in apt time, and the right of appeal cannot be taken away as to any important right. Constitution of 1868, secs. 4 and 15, art. VII; Simpson v. Simpson, 25 Ark., 489. It was not necessary that the members of the grand jury should be householders or freeholders. Gantt’s Digest, sec. 3654. This section is not obnoxious to the constitutional objection interposed by appellant, for the act of 1871, from which this section was taken, does not conflict with sections 22, 23, art. V, Constitution of 1868, by embracing more than one subject, and in failing to copy the law, revised or altered, entire. The constitution required singleness of subject, to prevent omnibus bills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures which, alone, could not be passed. It was not intended to require that minute separation of subjects as is here claimed. Neither does it conflict with said section 23, art. Y of the constitution; the object of which was to prevent that system of amendments, which, instead of inserting the amendment or alteration, together with so much of the old law as was retained, provided, in terms directory, that a given law should be amended as follows, to wit: in a given section or line, strike out given words and insert others, leaving the court, by this direction, to make the amendment itself and make a new law out of the two. This constitutional provision intends to check all that kind of legislation, and requires the legislature to give us, in the old and the new put together, what the new law is intended to be. By these rules it is easy to see that this provision of the act of 1871 is perfectly constitutional ; none of the old sections was wanted, hence none is retained. It is expressly repealed, or by implication, by the inconsistency of the new section. The subject is sufficiently embraced within the title. There is nothing in this exception.

After the demurrer was sustained to appellant’s motion in abatement of the indictment, and he had thus excepted, he waived arraignment and pleaded not guilty, and the cause was continued until the fall term; at which time the case was tried, and tbe appellant convicted of murder in tbe first degree, and sentenced to be hung. During the progress of the trial appellant excepted to sundry rulings and decisions of the court, and moved for a new trial, setting up twenty-four grounds for new trial. This motion was overruled by the court, and a bill of exceptions was signed and made part of the record, which set out all the testimony given, and offered to be introduced by either party, and the instructions of the court and affidavits in support of the motion for a new trial.

The record states that the jury were duly drawn, selected and sworn as required by law, the oath administered being the one prescribed by section 219 of the criminal code of practice. This method of swearing the jury is made one of the grounds of the motion for new trial, and this provision, it is here argued, is unconstitutional in failing to swear the jury to try the case according to law and evidence. The oath is as follows: “You and each of you do solemnly swear that you will well and truly try the case of the state of Arkansas against ~W. B. Palmore, and a true verdict render unless discharged by the court, or withdrawn by the parties,” etc. The jury are the judges of both law and fact, and were so informed. It would be difficult for them to well and truly try and a true verdiqt render, without acting according to law and evidence. There is nothing of substance in this objection.

The record shows that the court ordered the jury to be kept together, and put them in charge of an officer during the progress of the trial, and pending their deliberations there were serious acts of misconduct of the jury, and irregularities were permitted on the part of the officer having the jury in charge, in permitting them to drink intoxicating liquor, and in allowing one Jackson to separate from his fellow jurors, to go into a kitchen at a restaurant to eat by himself, and in allowing one of the jury to separate from his fellows, and go away from them, and out of sight of the officer in charge, to see a man at his office on business, and in allowing the opportunity for the jury to read a newspaper containing highly improper comments upon the case before them; which article asserted that the prisoner had been proven guilty of murder, by the state’s witnesses, and from their respectability and standing this evidence would be hard to overcome.

This comment is such as no prudent press should make pending a trial of this kind, and such as the court should have, perhaps, prevented the repetition of by punishing the publisher for contempt; at least, it was not proper to have come before the jury, as the affidavits strongly tended to show it did.

There is an affidavit tending to show that four of the jury went, by permission of the court and consent of prisoner’s counsel and the state’s, to attend a theatrical exhibition, while the eight others remained in charge of another officer; but no communication was had by the four with any one. This was a serious irregularity, and was very improper. Neither defendant below nor his counsel should have been asked favors of this kind, for his refusal might have incensed the jury. But the court should not have permitted the jury to be subjected to any influences calculated to lessen the solemn obligation they were under to perform the gravest duty which man on earth can be called on to perform — decide upon the life of his fellow. This, outside of the opportunity and temptation to communicate and hear comments upon the case before the jury, was wrong. The jury having, during this separation, been, each part of it, in charge of a sworn officer, and no communication being proven, we would not disturb the verdict for this alone.

The drinking of intoxicating drinks, although it is shown to be in limited quantities, was very improper, and is more aggravated by the statement of the officer, that he cautioned the barkeeper — a public barkeeper at a restaurant — to limit tbe quantity drank, although the affidavits show that the use was limited and moderate, confined principally to two feeble old men in the jury, who, it was thought, needed it. - The use of any ardent spirits in such manner as is shown here is a gross irregularity. For even if a case should occur where stimulants would become absolutely necessary to any person, the administration of them should not be left to the discretion of a barkeeper in a public saloon.

This court has not favored the setting aside of a verdict for mere separation, unless something more than opportunity for undue influence is shown. Cornelius v. The State, 12 Ark., 782; Coker v. The State, 20 id., 53 ; Collier v. The State, id., 36; Staunton v. State, 13 id., 320.

The facts attending the homicide, as detailed by the witnesses, are substantially as follows:

L. H. Mangum testified: I live in Helena; the killing took place on my plantation last summer, one Sunday in May, in the evening, about three o’clock. Ellis and son came to take dinner with me; after dinner, Meyers and I proposed riding towards home with Ellis. Meyers had gone to the horse lot to saddle our horses, and prisoner rode up. Ellis and I were on the gallery; prisoner came up and spoke; I asked him to get down; he said no, he wanted to see me; he then crossed on the opposite side of the lane and stopped ; he then said: Judge Mangum, I think a great deal of you ; that damned fellow, Meyers, I understand, has told you that I said you were a damned grumbling scoundrel; but I want to tell you that I did not say it. I told him that Meyers had never intimated anything of the kind to me. Then he said: well, anyhow, he is going to cowhide me. I asked him for what, and he said, about hiring that nigger, Gfeorge. I told him I did not think so, as he, Palmore, had acknowledged to Meyers that he had done him injury in that matter. He then said: Well, it was about that Dolly Varden, meaning a negro woman. I told him it could not be that, as Meyers knew that I would not let her stay on my place ten minutes. Well, said he, anyhow, he is going to cowhide me, and I' came up here to-day prepared to take it. Said I, Palmore, who told you that Meyers intended to cowhide you ? and he said, Jim Taylor told me so, and that he (Taylor) would give Meyers $500 to deny it. About that time, Jim Taylor and Pink Harris came riding up the lane in the direction that defendant had come. As Taylor came up, Palmore introduced him to me. I said, Mr. Taylor, did you tell Mr. Palmore that Meyers had threatened to cowhide him ? Taylor then said to Palmore: No, I did not tell you that. Palmore then said: Well, what did Meyers say? Taylor then said: You know what I told you.; and then I remarked that Meyers had said that Palmore was a damned liar, if he had said certain things about the hiring of George. I then asked him to go away; this is no time or place for a difficulty. Taylor was very much embarrassed, and looked pale and uneasy. Taylor and Harris then .rode down toward the horse lot gate. Palmore got down and tied his mule. * * * I told defendant to get off my place and not to have a difficulty. He said: Judge, it is mighty hard to be threatened to be cowhided, and I have come to take it. Meyers was coming up the lane from the lot, leading two horses. Meyers said: I am responsible for what I have said, and hitched his horses. Palmore said: I have come to take that cowhiding you promised me. Meyers • said: Palmore, I never threatened to cowhide you. Palmore said: Well, G — d d — n you, why don’t you do it ? Palmore then advanced on Meyers, with his right hand behind, on his hip, and Meyers picked up an ox bow; and I don’t know whether he struck before Palmore drew his pistol or not, but he struck Palmore, and he, Palmore, fired, and shot Meyers in the arm; he then fired again, and struck him in the bowéls. Meyers said: Judge, he has killed me; he has shot me in the bowels. He, Meyers, then pushed Palmore over, and took the pistol away from him, and carried it into the house.. Palmore said: Judge, don’t let him kill me. Meyers then went toward the house, and defendant again requested witness not to let Meyers kill him, and said he was willing to give himself up to him. I told him I thought he had killed the man, and he had better stay and see what the consequence was. Meyers was then taken into the house and defendant went off. I did not see him after that.

Meyers lived until next day at 12 o’clock, when, the proof shows, that he died of the wound.

Mangum, in cross examination, stated that he did not know whether Meyers drew the ox bow before Palmore drew the pistol, or not. This ox bow is proven by other witnesses to have been an old ox bow, untrimmed, about three-fourths straightened out, and was about five feet long; and that Meyers struck with both hands, advancing on Palmore tó do so. Deceased was Mangum’s superintendent.

Mangum further stated that the parties clenched and struggled after the pistol was fired the first time. He did not suspect a difficulty until it was too late to prevent it. The second shot was fired while they were clutched and struggling, when deceased threw defendant down, and got up holding Palmore’s pistol in his hand. This happened on the usual traveled neighborhood road, in front of Mangum’s plantation house, in Phillips county.

Other witnesses proved that defendant was passing on this occasion on proper business, having gone by in the morning after his clothes, which awere at Babson’s store, and was returning.

Anderson Ellis details the circumstances immediately áttending the killing — among other matters, as follows: Meyers came up and hitched his horses, having heard Palmore say that if he was to be cowhided, he wanted it done then. Witness thought-that Palmore acted as though he were drunk. Meyers-said to Palmore, I never threatened to cowhide you; go away from here; I do not want a difficulty with you; Meyers raising his hand and motioning away, saying, I am responsible for what I say. Palmore was then advancing on him, saying, Gr — d d — n you, why don’t you cowhide me if you are going to ? repeating it several times: Meyers stooped down and picked up a broken ox-bow and struck him (Pal-more) a lick with both hands, and according to my observation the lick only brushed Palmore and did not take effect on him. As Meyers struck Palmore, almost simultaneously-1 heard the report of the pistol, and a second afterwards another. I ran out and they were clutched, and Meyers got up with the pistol in his hand and said that he was killed.

John Ellis, a son of the last witness, among other things, states, that Taylor asked Palmore to come and go home, when Meyers was in the barnyard getting the horses. He, Palmore, said, No, if I am going to be cowhided, now is as good a time as any. Palmore then had his hand back towards the right hip. I remarked to my father that I thought he had a pistol. He asked me, why? I told him that the day before, I saw him with a pistol. Meyers came out, of the lot and was going to hitch the horses, and said to Palmore, you had better leave here. Palmore said, here I am, Gr — d d — n you, why don’t you cowhide me ? Meyers hitched the horses with his left hand, turned his face toward the house and caught hold of the end of an ox-bow, which was under the fence with his right hand, and said, I want, you to leave here; I don’t want to have any difficulty with you. . I saw Palmore advance towards Meyers a step or two, saying, G- — d d — n you, why don’t you cowhide me? several times. Meyers said, I never said I was going to cowhide you, but I am responsible for all I have said. Meyers said, I want you to leave here. He then raised the ox-bow with both hands, the left hand in front; when he brought his hands down I saw smoke, and thought he 'had knocked the dust out of Palmore’s hat; he had the ox-bow in his hands, but the crack of the pistol the next instant showed me that the smoke was from the pistol. I don’t know whether Meyers struck him or not, he made a motion to strike before the pistol fired, and I don’t know whether he struck Palmore before or after the pistol fired, or whether he struck him at all, or not. After the report of the pistol, Meyers caught hold of Palmore. While they were struggling I heard another report. I saw the pistol in Palmore’s hands just about the time Meyers took hold of him. They both got on the ground in the struggle, and when Meyers got up he had the pistol in his left hand, with the barrel of the pistol towards himself. Judge Mangum was standing close to Meyers. Palmore then ran off a few steps, and hallooed, Don’t let him shoot me, twice. The blood was running from Meyers freely then. He put his hand on his stomach, and said, Oh, I’m killed; I’m killed. Judge Mangum told him to come into the house, which he did.

Palmore shortly after, in the manner detailed by this witness, got his pistol from the elder Mr. Ellis and rode off on his mule, flourishing it over his head, saying, He cowhided me, did he ?

Pink Harris, for defendant, testified: That Palmore was talking to Judge Mangum about Meyers’ threats to cowhide him; that Meyers came and hitched his horses and picked up the ox-bow after he had hitched the horses, and said to defendant : I will substantiate anything I have said; and said further, Gr — d d — n you, get off this place, and popped defendant on the head. Defendant careened, hut did not fall; he was in the “shape” of falling. At that time the pistol fired. I mean, after he, Meyers, had struck him. He, Myers, then struck Palmore again, and he fell, and Myers got on top of him, or astraddle of him. He was half bent when he was straddle of him. When he was half bent on Pal-more, the pistol went off the second time.

This witness states that he and Jim Taylor and Palmore had gone down to Hobson’s store in the morning and back in the evening. That defendant lived at the Eobb place, and had gone down that morning to Eobson’s for his clothes and a saddle he had there. They were coming back' by Mangum’s place in the evening when the difficulty occurred.

A. J. Taylor testified, on behalf of defendant, that he was present when the difficulty occurred, and after detailing the circumstances attending the interview between Mangum and .Palmore, and about Meyers coming up, he says: Palmore turned around and asked Meyers if he had said that he intended to cow-hide him. Mr. Myers said, yes, and I'll substantiate what I said, picking up an ox-bow, at the same time, he advanced on defendant. Palmore stepped back and said, Meyers, don’t hit me with that stick. When'Meyers got up to him, he struck him a lick with both hands with the bow.' Palmore staggered back, and as Meyers was in the act of striking him the second lick, defendant shot him. After he (M.) struck-the second lick defendant fell, and the pistol fired the second time. Meyers then jumped on him. Mangum stepped up and caught Meyers by the shoulders, and Meyers raised up. Meyers said to Mangum, after he raised up, he has killed me, and turned round and walked into the house.

The witness says, Meyers struck with both hands. The oxbow was four or five feet long, of pretty heavy size; it was in the shape of an ox-bow, a little crooked.

James Taylor testified that deceased was, to all appearance, a much stouter man than defendant, and was a man of active habits.

The defendant offered to prove that on the morning of the day of the homicide, James Taylor had told defendant that he, the deceased, had threatened to whip and cowhide the defendant on sight. This testimony, the court refused to allow to go to the jury, and would not let the witness, Harris, state it. Defendant excepted, and made this one of the grounds for his motion for a new trial.

The fact that defendant was armed with a deadly weapon, was a circumstance, if unexplained, that strongly tended to establish that malice aforethought and premeditation which were necessary to constitute the aggravated offense which the jury found here. Therefore, any motive of self-defense, or of protection against great bodily harm, or degrading chastisement by deceased, which might have prompted this hostile arming, was of the utmost importance for the jury to know. If the defendant armed to provoke the difficulty, in order to kill, he is guilty of murder. If his arming was in self-defense only, his crime, which his being armed with, and the use of a deadly weapon would greatly aggravate, might be palliated by showing a less guilty motive for having the weapon. This evidence, as well as that hereinafter named, showing other threats, and tending to prove the deceased to have been a turbulent, quarrelsome man, for the same reason, ought to have gone to the jury for what it was worth, they being the sole judges of its weight.

Threats, as well as the character and conduct of deceased, are admissible when these circumstances tend to explain or palliate the conduct of the accused. These are circumstantial facts which are a part of the res gesice whenever they are sufficiently connected with the acts and conduct of the parties, so as to cast light on that darkest of all subjects, the motives of the human heart.

This position is fully sustained, we think, by our own adjudications and those of other states. Pitman v. The State, 22 Ark., 354; Coker v. The State, 20 id., 53; Atkins v. The State, 16 id., 584.

In addition to this, defendant offered to prove, by one of the Taylors, the fact that divers threats were made by the deceased against the life and limb of the defendant, to be executed whenever he met him, and that these threats were communicated to the defendant shortly before the homicide. This was excluded by the court, and its ruling was duly excepted to and made one of the grounds of the motion for new trial. ’ This was erroneous. The testimony should have been admitted. Stokes v. The People, 53 N. Y., 164; Holler v. The State, 37 Ind., 57; Rector v. The People, 19 Wend., 589; Howett v. State, 5 Geo., 54.

The defendant offered to prove, by witnesses named, that the deceased was “a violent, dangerous, quarrelsome and revengeful man.” This testimony the court refused to permit the jury to hear, and defendant excepted. The court should have admitted this, as it tended to shed light upon the motives of the slayer, and the conduct of deceased at the time of the difficulty. 2 Whart. Cr. L., sec. 1099; Phillips v. Com., 2 Duval, 328; 1 Metc., 370; 31 Miss., 504. The testimony may be of little value; the jury might give it but slight weight. No matter; the question for us is, Ought the jury, as a matter of law, to have been allowed to consider the fact? We think so. Pitman v. State, ubi supra; State v. Keene, 50 Mo., 357; Hurd v. State, 25 Mich., 405. This testimony was of more importance to defendant, in view of the slight con- ■ flict in the testimony as to which was the assailant, the deceased or the prisoner.

The rejection of evidence tending in any degree to aid the jury in determining a material fact is error. 3 J. J. Marsh., 229. It was perfectly competent for Harris to prove that Taylor had told appellant of the threat. The point of inquiry was not whether the threats were made, but what were Palmore’s motives. The communication by Taylor to him was a fact in the case proving one of its circumstances. The truth of the message was not the question. Cornelius v. The State, 12 Ark., 782; Atkinson v. The State, 16 id., 568. But, in this case, if the slayer believed the threat, the “character of the deceased was an important element in the case; for, if he was turbulent and revengeful, he would be more apt to execute his threats, and the appellant would be the more readily excused for preparing himself for defense in a more decided manner, and to act with more promptness and energy when he was assailed. If the jury should find that the deceased was the assailant, these facts, which were excluded from the jury, ought to be of the utmost importance. But the value and weight to be given to them are for the jury, not for the court.

The court gave seven instructions on the part of the state, numbered from 4 to 10 inclusive, to the giving of which appellant excepted.

The 4th is as follows: “If the jury believe from the circumstances that the accused intended to use a deadly weapon if the deceased assailed him, and provoked the deceased to strike him, and afterwards killed him, they will find the defendant guilty of murder.”

This instruction may be good abstract law, which we doubt, but, connected with the facts of this case, should have been qualified by the words “ intending to kill him, if he struck him,” or something of like import after the words, “ provoked the defendant to strike him.” For, otherwise, the jury from the circumstances of this case, might have been led by the instruction to believe that the mere use of a deadly weapon was conclusive evidence that Palmore had committed murder, if they found that he provoked the assault, intending to use the deadly weapon. It is not the intention to use a deadly weapon, but the intention to kill, of which this use is evidence, which constitutes the offense. This should, under ‘the circumstances of the case, have been made clearer to the jury than is done in this instruction, and the court here fails to define the difference in the degrees of homicide, which is' not sufficiently remedied by other instructions. This failure to define the degrees of homicide is made the 22d ground of the-motion for new trial. While this failure is, in every such case, improper, we would not for this alone reyerse, especially as in the 24th ground for new trial and from the record, it is shown that the court read the definitions of the different degrees of murder from the digest. Article I, part 4, chapter-51, Gould’s Digest. This was no error, and, being in print, complied with the law which requires instructions to be in-writing.

The 5th instruction given for the state was: “If the jury believe from the evidence that defendant entertained a deliberate purpose to kill or do great bodily harm, and there is, a consequent unlawful act of killing, the provocation, whatever-it may be, which immediately preceded the apt, is to be thrown out of the case, and goes for nothing, unless the defendant, shows that the purpose was abandoned before the killing was-. done.”

This instruction would have been unobjectionable if it had been qualified in itself, or in a separate instruction- with an explanation of the degrees of homicide, except the last clause should have been so guarded as to allow the jury to infer the abandonment of the deliberate purpose to kill, if they so found from the circumstances of the homicide; otherwise, it might. have misled the jury to believe that the defendant must prove it from other evidence.

The 6th instruction is: “If the jury should believe from the evidence that the provocation was sought by the defendant, it cannot furnish any defense against the charge for a felonious homicide.” This instruction is too vague as to what was meant by “provocation,” and what was the meaning of “felonious homicide.” The only objection to this is its obscurity, which we could not pronounce a decided error, unless it was misleading. See Payne v. Com., 1 Met., 370.

The 7th instruction is law. It is: Express malice is that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.

8. “ Malice shall be implied when no considerable provocation appears, or where all the circumstances of the killing manifest an abandoned and wicked disposition; and the jury is instructed that if they believe from the evidence that the killing was malicious, and that the difficulty was brought on by defendant, no provocation, however great, will reduce the killing from murder to manslaughter.” The only objection to this instruction is the failure, there or elsewhere, to define the distinction as given by law between the degrees of homicide. A malicious killing is not necessarily murder in the first degree. To find that, the jury must be satisfied beyond a reasonable doubt that the killing was willful, deliberate, malicious and premeditated (25 Ark., 405), or was committed in the attempt to commit some one of the felonies described in the statute. The premeditation must exist as a course deliberately fixed upon before the act of killing. Bevens v. State, 11 Ark., 455.

9. “ The jury are the judges of the credibility of witnesses from the manner of testifying, their means of observation, and their general conduct on the stand ; and if they should believe that any of the witnesses have sworn falsely to any material fact in the case, they are at liberty to discard the whole statement of the witness so testifying.” This is law.

10. 11 The jury are instructed that a reasonable doubt is not a mere possible doubt, because anything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the' entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they feel an abiding conviction to a moral certainty of the truth of the charge.” There can be no reasonable objection to this.

The appellant asked the court below to instruct the jury as set forth in ten distinct propositions. The court refused to give the 5th, 6th and 8th.

The 5th is as follows: “"Words will not, in law, justify an assault; wherefore, if the jury believe from the evidence that the defendant did use provoking language to the deceased, upon which the deceased assaulted the defendant in a manner to produce a reasonable apprehension in the mind of the defendant that he was in danger of great bodily injury, and that such danger was impending, he is justified in employing such, means for the defense of his person as he reasonably deems necessary, and if pressed, may kill the assailant.”

This instruction was properly refused. It was too broad and unqualified. To excuse homicide, it must appear that the danger is not only impending, but so pressing and urgent as to render the killing necessary (Gantt’s Dig., sec. 1285; McPherson v. State, ante, 225); and the circumstances must show that there was sufficient to arouse the fears of a reasonable person, and that the party killing really acted under their influence, and not in a spirit of revenge. Gantt’s Dig., sec. 1284.

The 6th instruction asked for by defendant is : “ If the jury believe from the evidence that the killing was done in defense of an attack by the deceased, it is their duty in deciding upon the character of the defense to carefully examine and consider all the circumstances of the rencontre, the true situation of the parties at the time, their respective feelings and intentions as shown by their acts, their threats, and their relative.strength and power; becaifse in a contest between a powerful individual and a weaker, the necessity of taking life in self defense will be more apparent and easily discoverable.”

This instruction should have been given. In testing instructions, every deduction which the jury might have made from the testimony is to be taken as proved. Phillips v. Com., 2 Duval, 328.

The 8th instruction of the defendant which the court refused to give, is: “If the jury believe from the evidence that defendant was on the route home, and called at Mangum’s to correct a false report said to have been circulated by defendant about said Mangum, and to ascertain or demand of deceased if he had threatened to cowhide defendant, and that upon making such inquiry of deceased, the latter, by his manner and words, manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry such purpose into effect, the défendant, in the reasonable fear of such consequences, was justified -in taking life.”

The latter part of this instruction is too general and unqualified, and was liable to the same objection which was given to his instruction No. 9, and the court below properly refused it.

The court, of its own motion, gave the following instruction : “ The killing being proved, the burden of proving cireumstances of mitigation that justify or excuse the homicide' shall devolve on the accused, unless by the proof on the part of the prosecution, it is sufficiently.manifest that the offense committed only amounted to manslaughter, or that accused was justified or excused in committing homicide.”

This is correct, being an exact copy of sec. 1252, Gantt’s Dig., and was properly given. This instruction should have been accompanied with a full definition and explanation of the degrees of homicide.

The court read from Gould’s Digest, chapter 51, part IY, article I. This was not excepted to at the time, and the point was lost; but having-been made one of the grounds for motion for new trial, we will pass upon it. The objection to this is, that it was not in writing. The objection is not well taken. "When a given and well defined section of a statute is read frdm the Digest as an instruction to the jury, it is sufficiently fixed, permanent and known, to come within the substantive terms of the law which requires it to be in writing; for in’ preparing a bill of exceptions, it is always conveniently accessible. In this bill of exceptions, it is simply referred to, and not inserted. Yet we know exactly what was read, and it tended to remedy some of the evils of the neglect to define the degrees of homicide, for this article does define the degrees of murder.

The 24th ground of the motion for new trial was that the jury were allowed to take with them when they retired to consider of their verdict, papers which had not been received as evidence in the case, to wit: the motion and affidavit of defendant to set aside the indictment and subpoenas issued for witnesses in this cause.

The jury should not take any paper which contains statements of facts bearing on the case, which was not read in evidence to them. The only paper above named which might have been objectionable on this ground was defendant’s motion for a continuance. This is not prejudicial to appellant, being his own statement, and-states the facts he expected to prove satisfactory to himself. All other papers named were harmless.

We find that grave errors were committed by the court, and that the jury acted with irregularity, although these irregularities alone would not be a sufficient cause for setting aside the judgment of the court below in overruling the motion for new trial, after the court below with all the facts and circumstances before it, and a personal knowledge of the habits and character of the jury, had refused to do so.

We might feel content to affirm were we satisfied that these errors did not contribute to the conclusion arrived at by the jury. Here we find a strong, outside public sentiment, hostile to the appellant, as indicated by the newspaper article. We find the jury so acting as to tend to unfit them for their grave duties, and in this condition subjected to this external hostile influence to the extent of opportunity, if nothing more. We find this jury have not been allowed to hear important testimony, necessary to the correct determination of the case, and that it was liable to be misled by instructions which were erroneous, and by omissions of the court.

It would be going too far to allow this, simply that crime might not go unpunished.

Eor these errors the judgment of the criminal court of Phillips county is reversed, and this cause is remanded to the circuit court of said county, to whose jurisdiction it now belongs, with instructions to grant a new trial, and proceed therein according to law, and not inconsistent with this opinion.

Hon. E. H. English, C. J., did not sit in this case.


source: Caselaw Access Project

author: English, 0. J.

license: Public Domain

text:
    Kennedy & Co. vs. Clayton.
    1. Evidence : Burden of proof in replevin.

    An answer in replevin denying the plaintiff’s ownership of the property in controversy casts the burden of proof upon him.
    2. — Of sale, und&r execution, of personalty.

    The judgment and execution must be produced, before evidence of a purchase at execution sale of personal property is admissible; but after the proper foundation is laid, the -sale may be established by oral evidence; a bill of sale is not’necessary to pass title in such cases.
    S. Execution Sale.
    A sale under execution by a constable, in the absence of the goods, is void.
    4. — Who may take advantage of illegality in.

    Any one who is in possession of property sold under execution may contest the validity of the sale, in an action by the purchaser for the possession.
    5. Eixtubes : Portable engine, etc., when treated as personalty.

    Where the evidence shows a sale of a portable engine, and a lot of old irons belonging to a saw mill that had been burned, without showing upon whose land it was situated at the time of the sale, the court was warranted in finding that it was personalty.
    6. Replevin: When the form of the judgment will cure an omission to prove or find the value of the property.

    Where in an action of replevin there is no alternative judgment for the value of the property, and none for damages, the defendant is not prejudiced by the failure of the plaintiff to prove, or of the court to ■ find the value, and the omission is not ground for new trial.
    APPEAL from Desha Circuit Court.
    Hon. John E. Bennett, Circuit Judge.
    Pindalls, for appellant.

      Garland & Nash, contra.

   English, 0. J.

James P. Clayton brought an action in the Desha circuit court, March 80, 1870, against Vm. A. Redmond and Thomas E. Leverett, for a steam engine.

The complaint alleged, in substance, that the plaintiff was the owner and entitled to the possession of a steam engine on the Montgomery or Stockholm plantation, of the value of $250, of which the defendants had possession without right, and unlawfully detained the same, etc.

Prayer of judgment for the engine, and $100 damages for its detention.

An affidavit, in the form prescribed by the statute, was attached to the complaint, but no writ appears to .have issued.

At the return term, Redmond and Leverett filed a disclaimer, in which they stated that they held possession of the land on which the engine was situated, only as tenants of T. H. Kennedy & Co., and had no other interest in the subject matter of the suit, and asked that their landlords be made defendants, and they be discharged. Whereupon, the record shows that-T. H. Kennedy & Co., appeared by attorney, and were made defendants and filed their answer.

In the answer, they denied that they unlawfully detained the engine. They also denied that the plaintiff was the owner or entitled to the possession of the engine.

The cause was submitted to the court, sitting as a jury, and the court found that the engine was the property of the plaintiff, and that he was entitled to the possession of it, and rendered judgment against Kennedy & Co. for engine and costs, and ordered a writ of possession and execution for costs.

The defendants moved for a new. trial, which yvas refused and they took a bill of exceptions and appealed.

On the trial the appellee, after proving its execution, offered in- evidence the following bill of sale:

“ Received of James P. Clayton, the sum of thirty dollars in full, for the purchase of a certain saw mill, sold by me as constable of Wilkinson township, on this day, under execution to me directed, against Russell Montgomery, and in favor of J. J. Brooks and David Thilman; saw mill being on the Montgomery or Stockholm place, in Desha county, Arkansas. I, as such constable, hereby sell, assign, transfer and convey, and set over to the said James P. Clayton, all the interest of the said Montgomery in or to said saw mill. Given under my hand as such constable this 18th day of May 1869.

“John P. Singleton, [Seal]

Constable of Wilkinson Township, Desha County, Ark.”

To the. introduction of this bill of sale as evidence, the appellants objected, and the court overruled the objection.

The appellee was permitted to testify, against the objection of the appellants, “that at a sale made by Singleton, constable, under an execution in favor of J. J. Brooks and David Thilman against Russell Montgomery, on the 18th of May, 1869, he bought the engine and saw mill in question for $30. He did not know whether the property was present at the sale or not, as he bought by agent; terms of sale, cash. The saw mill was on the place known as the Montgomery place. It was a portable engine on wheels, and could be moved from place to place.”

James Murphy, a witness for appellee, was permitted to testify as follows, against the objection of appellants:

“ He attended the sale. The engine was not exhibited at the time of sale, but it was on the Montgomery place, some five miles from the court house. He believed it belonged to Russell and A. B. Montgomery, or at least it was on the plantation formerly claimed or owned by them. The engine was a portable one, on wheels. Singleton sold the engine and mill irons, as constable, at the court house door, and the plaintiff (Clayton) became the purchaser. He (witness) believed that defendants (appellants) claim ownership of the land; at least it is understood that they hold possession of the land on which the engine is and was.”

Singleton, the constable, was permitted, against the objection of appellants, to testify as follows:

“ That he, as constable, made the bill of sale above copied. That the saw mill, in the bill of sale, was meant, or intended to be, an engine and some old saw mill irons which had been burned. The engine was on wheels. He sold at the court house door. The property was on the plantation. He never moved it. It was levied on as the property of Eussell Montgomery. He believed he sent a deputy to make the levy, but he advertised and sold the engine to the plaintiff (appellee) as the highest bidder.”

The above was all the evidence introduced by the appellee, and the appellants introduced none.

The court found the facts to be as follows:

“ That the engine and saw mill irons mentioned in the complaint are personal property, and that he (plaintiff) bought them of John P. Singleton, as constable of Desha county, Arkansas, on the 18th day of May, 1869, for a valuable consideration, namely, $30, as evidenced by the bill of sale of that date.

“And the court further finds that the defendants, S. H. Kennedy & Co., never had any right, title, or interest in the said engine and saw mill.”

The court also declared the law governing the case to be:

“1. That to entitle the defendants to the benefit of any irregularities or defects in the sale of the constable, Singleton, they must introduce evidence tending to show title in themselves.

“2. That a bill of sale executed'by an officer incompliance with sec. 65, ch. 68, Grould’s Digest, is prima fade evidence of the title to personal property, and he who would wish to contradict it must produce the proof, or, in other words the onus probandi is upon them.”

I. Under the issues made by the pleadings and submitted to the court below, sitting as a jury, the appellee was bound to prove that he had title to the engine, general or special; such title as would entitle him to recover possession of it in the action. He proved by the bill of sale and by verbal evidence, that he bought the property at the constable’s sale, but did not introduce the judgment and execution under which the constable made tbe sale; hence, appellants objected to the competency of all the evidence introduced by the appellee, to prove his title the property.

In the absence of any statute prescribing a different rule of evidence, where a purchaser, through a sale under judgment and execution, sues as such to recover the property purchased, he must in general, produce the judgment and execution, for they are parts of his title. This is so whether the property be real or personal. 2 Cow. & Hill’s Notes; Phil. Ev., 364; Yates v. St. John., 12 Wend., 75; Wilson et al. v. Conine, 2 Johns., 280 ; Hamilton v. Adams, 2 Murphy Law, 161; Dunn v. Meriwether et al., 1 A. K. Marsh., 116 ; Smith v. Moreman, 1 Monr., 155; Wallace v. Collins, 5 Ark., 41.

An officer who sells real estate is required by statute to make the purchaser a deed, reciting the names of the parties to the execution, the date when executed, the date of the judgment, order or deci'ee and other particulars reoited in the execution, and a description of the time, place and manner of sale; which recitals, the statutes declare, shall be received in evidence of the facts therein stated. Gould’s Digest, ch. 68, sec. 65 ; Gantt’s Digest, sec. 2703.

In Newton v. The State Bank, 14 Ark., 10, Mr. Justice Walker, commenting on this statute, said: “The act, etc., which requires] the sheriff to recite the names of the parties, the date of the writ and of the judgment, together with a description of tbe time, place and manner of tbe sale; and which makes sucb recitals evidence of tbe facts so recited, was intended by tbe legislature to supersede tbe necessity for producing the record from wbicb sucb recitals were made, as a matter of convenience, and to furnish evidence of tbe authority under wbicb tbe officer acted, as well as tbe manner in wbicb be bad executed bis authority in tbe deed itself. Not that tbe recital should be conclusive evidence of the facts recited, for that would exclude all inquiry into tbe authority under wbicb tbe sheriff acted, but that it should be legal, competent evidence until falsified by evidence of a higher and more authentic character.” See also, Hanly v. Heard et al., 15 Ark., 184. Before the passage of tbe act, it was necessary to introduce tbe judgment, etc., on wbicb the sheriff’s deed was founded, before tbe deed could be read in evidence. Jordan v. Bradshaw et al., 15 Ark., 109.

Where tbe deed fails to recite tbe judgment, it may be aided by producing tbe judgment. Bettison v. Budd, 15 Ark., 546.

Tbe above statute, and tbe decisions upon it cited, settle tbe rule of evidence where a party claims title to real estate under a judicial sale.

Tbe statute relating to sales of personal property referred to in the 2d declaration of tbe law of this case, made by tbe court below, is as follows:

“ When tbe purchaser of any goods and chattels, etc., shall pay tbe purchase money, tbe officer selling tbe same shall deliver him sucb property, and, if desired, shall execute an instrument in writing, at the expense of tbe purchaser, testifying tbe sale and payment of tbe purchase money, and conveying to sucb purchaser all tbe right, title and interest wbicb tbe debtor bad in and to tbe property sold on tbe day tbe execution was delivered.” Gould’s Dig., ch. 68, sec. 63. See also Gantt’s Dig., sec. 2701.

It will be observed that this statute does not make the instrument or bill of sale given by the officer selling personal property to the purchaser, prima fade evidence of title, nor change the rule of evidence requiring the production of the judgment and execution under which the sale was made.

Had the appellee introduced the judgment and execution under which the constable sold the engine, his bill of sale would then have been admissible as evidence that he purchased the property at the sale, or he might have proven his purchase, as he did, by oral testimony, for a bill of sale is not necessary to pass to a purchaser of personal property at an execution sale, title to the property.

But failing to produce the judgment and execution, he did not make out his title to the property which was put in issue by the pleadings, and the court below was not warranted by the evidence introduced at the trial to find this issue in his favor.

But in the evidence introduced by the appellee, a very grave objection to the validity of his title to the engine is disclosed. The property was not present when sold by the constable. The sale was at the court house and the engine was on a plantation five miles off. It was not delivered to the appellee when he made the purchase, and he had to resort to this action to obtain possession of it.

The statute provides that a constable, after taking goods and chattels into his custody by virtue of an execution, shall give public notice of the time and place of sale, etc., prescribing the manner of giving the notice; then provides that: “ At the time and place so appointed, if the goods and chattels be present for the inspection of bidders, the officer shall expose the same to sale at public vendue.” Gould’s Dig., ch. 99, secs. 156-7; Gantt’s Dig., secs. 3802-3.

The language of the statute would seem to imply a want of power in the officer to make the sale unless the property be present.

The theory of an execution sale of goods is, that the officer takes the goods into his possession or under his control when he makes the levy, and is thereby invested with the title of the defendant in the execution. When he sells them he transfers the possession and the title to the purchaser. It has been held that a levy without a caption or seizure of the goods — a paper levy as it is called — is invalid; and that a sale without the presence of the goods is void. Field v. Lawson, 5 Ark., 376. Rorer on Sales, sec. —; Allen on Sheriffs, 171; Carson v. Stout, 17 Johns., 122; Linnendoll v. Dok, 14 id., 223; Ray v. Harcourt, 19 Wend., 497; Cary v. Bright, 58 Pa. St., 84; Lowry v. Coulter, 9 Barr, 349; Newman v. Hook, 37 Mo., 210.

The court below held, in effect, that the defendants, showing no title to the engine in themselves, were not in an attitude to insist upon objections to the title of the appellee, and there are cases in which this rule has been applied. Wynn v. Morris et al., 16 Ark., 414.

But in actions of ejectment and in actions for the recovery of personal property, the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, when the title is put in issue. Patterson v. Fowler, 22 Ark., 396; Dixon v. Thatcher, 14 id., 141; Anderson v. Dunn, 19 id., 650; Robinson v. Calloway, 4 id., 94.

The appellants were sued for the possession of the engine. If they were in fact in possession of it, and detained it from the appellee as alleged, he had no right to deprive them of its possession without showing a valid title in himself.

To hold that no one but the defendants in the execution could object that the property was not present when sold would be unsafe on the grounds of public policy, as it might induce fraudulent sales.

The constable should have sold the engine on the spot where it was, or removed it to the court-house, where he made the sale, that it might have been shown to bidders and delivered to the purchaser.

II. There was a further issue under the pleadings. The complaint alleged and the answer denied that appellants unlawfully detained the engine from the appellee.

There was some evidence that the appellants were in possession of the plantation on which the engine was situated, but there was no evidence that they exercised any acts of ownership over the engine, or in any way prevented the appellee from taking possession of it.

Erom anything appearing to the contrary, he might have taken possession of the engine at any time after he claims to have purchased it, before suit, and .removed it from the plantation without hindrance from the appellants; and yet they were subjected to a judgment for costs without evidence to put them in the wrong.

Nor did the court below find an unlawful detention by the appellants. It found, only, that the appellee had title to the property, and that appellants had no title. Nor did appellee prove a detention by the tenants of the appellants, who were made the original defendants in the complaint. Savage et al. v. Perkins, 11 How. Pr., 22.

III. It is also submitted, for the appellants, that the court erred in finding the engine to be personal property. The evidence, it is asserted, showed it to be a fixture — part of the realty — and not the subject of a personal action.

In the bill of sale it is termed a saw mill, but this was explained by the witnesses. The appellee purchased at the constable’s sale a portable engine on wheels, capable of being moved from place to place, and some old irons of a saw mill that had been burned. Who had title to the land on which it was situated, at the time of the sale, does not satisfactorily appear. Upon such evidence as was introduced, the court was warranted in finding the engine to be personal property. Hensley v. Brodie, 16 Ark., 511; Greenwood & Son v. Maddox & Toms, 27 id., 660.

IY. The appellants also insist that the judgment should be reversed, because there was no proof of the value of the property, and no finding of its value by the court below, sitting as a jury.

The statute provides that, “ In actions for the recovery of special property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property." Gantt's Dig., sec. 4682.

The statute also provides that, in an action to recover personal property, judgment for the plaintiff may be for the delivery of the property or for the value thereof, in case a delivery cannot be had, and damages for the detention, etc. Gantt’s Dig., sec. 4718.

In this case the appellee obtained judgment for the recovery of the property only. No alternative judgment for its value was taken, nor was there any judgment for damages. Hence the appellants were not prejudiced by the failure of the appellee to prove, or the court to find, the value of the engine.

In the motion for a new trial, other grounds than those noticed above were assigned, but we have disposed of such as appear to be material or substantial. The judgment must be reversed, and the cause remanded with instructions to the court below to grant the appellants a new trial.


author: Walker, J.

text:
    Johnston et al. vs. Turner, Adm’r.
    1. Homestead: Descends to widow and children.

    The widow and children of one who held a homestead during his life are entitled to occupy and enjoy it with the like exemptions during the time specified in the statute; and the question of homestead, may be determined by the acts, declarations, circumstances and general conduct of the party which tend to show what his bona fide intention was.

      2 — As affected by the absence of the wife mid children.

    The domicile of the wife and minor children follows that of the hus- . band, and their actual personal residence at the homestead place is not necessary to perfect the right in him, or to entitle them to the benefit of it after his death.' Where the head of a family has, in good faith, selected a place of residence, owns the. land, and has entered and resides upon it, the absence of the wife and children might require stronger proof of intention, but nothing more.
    3. — Interest of the wife and children independent.

    The homestead estate is created equally for the benefit of the wife and children, and none of them can do an act that will impair or prejudice the rights of the others.
    4. — Assertion of, infancy, etc.

    The children are not required to assert their right of homestead during the continuance of the wife’s right, by reason of her priority; and delay after the expiration of her right will not bar or prejudice the rights of minors, who are not required to assert their rights or take possession of the homestead, on account of their incapacity.
    APPEAL from Phillips Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Pose and Palmer & Sanders, for appellants.

      Garland & Nash, contra.

   Walker, J.

The appellants, on the Mth day of January, 1870, filed their petition in the probate court of Phillips county to have a homestead assigned them in the lands of their father, Thomas P. Johnston, deceased. The probate court granted the prayer of the petitioners, and the administrators appealed to the circuit court, where the prayer of the petitioners was denied and the appeal dismissed.

By the provisions of the statute, Gould’s Dig., ch. 68, it is provided: Sec. 29. “ Every free white citizen of the state, male or female, being a householder or the head of a family, shall be entitled to a homestead not exceeding one hundred and sixty acres of land, or one town or city lot, being the residence of such householder or head of a family, with the appurtenances.” * * Sec. 30. “ This section is to be construed to exempt such homestead, in the manner aforesaid, during the time it shall be occupied by the widow, or child, or children of any deceased person, who was, when living, entitled to the benefits of this act.”

These are the material parts of the statute under which the claim to a homestead in this case is asserted.

The main question to be determined is one of fact: Was Thomas P. Johnston, deceased, at the time of his death, a “free, white citizen of the state of Arkansas,” was he a householder or the head of a family, and was he the owner of a homestead in the state ? If these facts are shown to have existed at the time of his death, the rights of the widow and the children exist as derived through and under him. In other words, if Johnston, in his life time, held a homestead which he could have maintained as exempt from sale by his creditors, then the widow and the children could occupy, hold and enjoy it for the time specified in the statute, with like exemptions. This question of citizenship, residence and ownership, is to be determined from the evidence in the case, which may consist of acts, declarations, circumstances and general conduct of the party, which tend to show what his bona fide intention was.

That his wife and children did not accompany him, or reside with him on the farm he purchased in Phillips county, may be received, not as evidence of no right to a homestead in the widow and children, but to show whether Arkansas was his home, and as it is natural, if not necessary and proper, that the wife and husband should reside at the same place, this fact (if established) is entitled to greater or less weight, according to the circumstances which may be shown to have induced it.

These general remarks may suffice to direct us in the application of the evidence, which is in substance, as follows : Thomas P. Johnston, who resided in Georgetown, Kentucky, married Laura Miller, the daughter of a widow lady (Mrs. Miller) of that place. Mrs. Miller and her two daughters, one of whom married Johnston, were the owners of a plantation in the state of Mississippi, and Johnston with his family resided there for several years, during which time Mrs. Johnston always went to Kentucky to spend the summer with her mother, who was a lady in easy circumstances, and Johnston himself spent part of the summer months in Kentucky. In 1855 or 1856, Johnston went with his family to California, but so far as appears in evidence, acquired no personal residence, and returned with his family, and resumed his residence, in 1857 or 1858, in Mississippi. The evidence more immediately bearing upon the question of citizenship in Arkansas, is that of the uncle of Johnston, who deposed, that Johnston sold his place in Mississippi and bought a farm on Old Town Ridge in Phillips county, Arkansas, that a difficulty arose after the first payment was made, about a mortgage incumbrance on the place, that witness was applied to for advice and assistance, and after having examined the title papers, he advised Johnston, that it might be best to abandon his purchase, to which he replied, that he did not wish to get rid of it, that he was so situated that he could not well do without the place, that he had sold his place in Mississippi, and had no other place to cultivate, that the place he had bought was a permanent home. Witness' was satisfied, from repeated conversations with Johnston, that he considered his place on Old Town Ridge, his permanent home, up to the time of his death.

Another witness deposed, that Johnston came to Phillips county, Arkansas, in the fall of 1859, and purchased the Old Town Ridge place, that in the winter of 1860, he brought his negroes, stock and household effects, and settled on the place, cultivated it that year, remained on it until in .the summer, and went to Kentucky (as was the custom of Kentuckians during the summer months) with the avowed intention of bringing his wife and children home with him, but soon returned without them, and stated that his mother-in-law could not come to Arkansas, and that his wife had remained to be with her. Johnston lived upon, and cultivated the place again in 1861, and again went to Kentucky, and made his arrangements to take his wife and children with him to his home in Arkansas, but was prevented from doing so by sickness, of which he died in the spring of 1862. He had no home of his own in Kentucky, and his wife and children lived with his wife’s mother all the while after she left Mississippi; after his death his wife expressed a wish and determination to go to Arkansas, and take possession of the Old Town Ridge place, of which her husband had been possessed, and cultivated up to the time of his death, and on which his negroes and personal property all the while remained, but was prevented from doing so because that part of the state was occupied by the military forces of the United States, and intercourse between Kentucky and her husband’s place of residence was prohibited, or an attempt to do so attended with danger. She at all times spoke of the Old Town Ridge place as her home, and did, at the close of the war, in 1865, put her sister, Mrs. Warren, in possession of the place, by whom it was occupied and jointly cultivated, or in the language of the witness, “Mrs. Warren and Mrs. Johnston cultivated the place in partnership ” until 1868, at which time the appellee, Turner, as administrator, took possession of it.

These facts are fully corroborated by several other witnesses ; in addition to which it was proven, that Johnston not only claimed it as his home and his intention to make it permanently such, but that he listed his property on the citizens’ list of taxation, and paid a poll tax, and was recognized by his neighbors as a citizen, and solicited to become a candidate for office.

The appellants, Thomas E. Johnston and Treanor Johnston, are proven to be the children and the only children of Thomas P. Johnston. There is no proof that the widow or the children ever, at any time, resided upon the homestead place, but the proof is that they went to live with Mrs. Miller at Georgetown, Kentucky, and remained there with Mrs. Miller until after the death of Thomas P. Johnston in 1862. After that time Mrs. Johnston paid several visits to Arkansas, to look after her business affairs, and upon each visit spent a short time on the homestead place, and returned to Kentucky to the home of her mother. She married in 1868, and in the fall of that year died. The lands in the petition described were Johnston’s.

Such is, substantially, 'the evidence material to the issue. The case was submitted to the court sitting as a jury, who, after having heard the evidence, found the following conclusions of fact from the evidence:

1. That in the latter part of the year, 1849, Thomas P. Johnston purchased the land described in the petition, and situate in Phillips county, Arkansas. That he cultivated, and made a crop on the same in 1860. That he had the property assessed to him on the resident tax list, and that he also paid a poll tax in said county. That in 1861, Thomas P. Johnston made some improvement on the dwelling house; in August, 1861, he went to Kentucky, where his family and wife were residing, and had been since 1859, and by reason of ill health remained there until April, 1862, when he died.

2. The wife and children of Thomas P. Johnston lived with the mother of Mrs. Johnston, in Georgetown, Kentucky, from 1859 to 1868, when and where Mrs. Johnston married Doctor P. Rankin, at which time she went and lived with him until her death.

3. That the wife nor children of Thomas P. Johnston, have ever resided or made their home in Arkansas, or on the premises as described.

4. That Bart Y. Turner, as administrator, has had possession of said premises since 1868, and that no claim has ever been made by any person until the filing of this petition for an exmption for homestead purposes.

The appellants at the close of the evidence asked the court to declare the law applicable to the case to be:

1. That a residence in good faith established by a citizen of the state being a householder or head of a family, upon a tract of land owned by him, carries with it a homestead right.

2. That the temporary absence of the family, satisfactorily accounted for, does not impair this right.

3. That upon the death of the husband, the homestead is of right cast upon the widow.

4. That upon the death of the widow, or her forfeiture; or abandonment of the homestead, it enures to the benefit of the children, and casts upon them the homestead right.

5. That the domicile of the husband is the domicile of the wife, and the domicile of the parents is the domicile of the children, and that a domicile once acquired continues until another is obtained.

6. This suit, being to enforce rights to a tract of land, is governed by the general statute of limitation, which does not run against minors.

The defendant asked the court to declare the law applicable to the case to be:

1. That the homestead act constitutes a part and parcel of the contract at the time a debt is contracted, and, in this case if any homestead right accrued at all, it was under the statute in force at the date of the contract, and consequently at the time of the death of Thomas P. Johnston, their father.

2. That the question of citizenship is a question of act and intention, and the domicile of a person is that place where he has true, fixed and permanent home.

3. To impress the character of a homestead upon a tract of land, or town, or city lot, it must possess the characteristics of a home, and must have been used as a family residence.

4. That constructive presence of the wife in this state is not sufficient to constitute a family residence, but she must have actually lived upon the place claimed to have been exempt as a homestead.

5. The declaration by the head of the family, of his intention to remove his family to this state, and make it his permanent home, is not a sufficient act and declaration of intention to impress upon any portion of his land the character of a homestead, but he must actually reside thereon, with his family, for a time, with the intention of making it a home.

6. To give the wife and children of a deceased husband of a family the benefit of a homestead, under chap. 68, secs. 29 and 30 of Gould’s Dig., there must have been a continuous, actual occupation of his homestead (if he had one) as a family residence after the death of such person.

The court in terms gave no opinion as to the sufficiency of the instruction of either of the parties, only so far as may be found in the following declaration of the law applicable to the case, and declared by the court:

1. That a residence once in good faith established by a citizen of this state, being a householder, or the head of a family, upon a tract of land owned by him, carries with it the homestead right.

2. That the temporary change of the family, satisfactorily accounted for, does not impair the right.

3. That upon the death of the husband, the homestead right is cast upon the widow.

4. That the question of citizenship is a question of fact and intention, and the domicile of a person is that place where he has his true, fixed, and permanent home.

5. To impress the character of homestead upon a tract of land, or town or city lot, it must possess the characteristic's of a home, and must be resided upon as a family residence.

6. The constructive presence of the wife in the state is not sufficient to constitute a family residence, but she must have actually lived at some time upon the place claimed to be exempt as a homestead.

7. The declaration of the head of a family, of his intention to remove his family to this state, and make it his permanent home, is not a sufficient act or intention to impress upon any portion of the land the character of homestead after his death, unless the widow, child or children of the deceased do reside thereon for a time with the intention of making it a home.

8. To give the wife or children of a deceased head of a family a homestead under chap. 68, secs. 29 and 30, Gould’s Dig., there must have been an actual occupation by them of his homestead (if he had any) as their residence after his death.

The appellants excepted to the finding and conclusion of the facts in the case, and also to the declaration of the law as applicable to the case, and filed their motion for a new trial, in which was set forth such finding and ruling of the law as a ground for a new trial; which motion was overruled; exceptions taken and the case brought to this court by appeal.

The 5th, 6th and 7th declarations of law, as applicable to the case, were erroneous: Because they declare the law to be that the actual residence of the wife and children with the husband, upon the land claimed as a homestead, is necessary to confer upon the husband a homestead right; and the 8th ruling of the court is also erroneous, because it assumes that an actual residence of the wife and children upon the homestead place, after the death of the husband, is necessary to entitle them to the benefits of the homestead acquired by the husband, and held by him at the time of his death.

The residence of the wife and children only becomes an inquiry of importance, in connection with other circumstances, to determine the fact of actual residence.

The all important inquiry is, Has the head of the family, in good faith, selected a tract of land, or a town, or city lot, as his place of residence; does he own the land; has he entered upon it; does he reside upon it ? The absence of the wife and children, unaccounted for, might require stronger proof of intention, but nothing more. The homestead right must be perfect in him in his life time, irrespective of any act of wife, or children ; at his death the law extends the benefits of the homestead to them as fully as it existed in him.

Story, in his work on Conflict of Laws, sec. 44, says: Two things concur to constitute a domicile, first, residence ; and secondly, the intention to make it the home of the party.” At page 58, he says, “ Prima facie, the place where a person lives is taken to be his domicile, until other facts establish the contrary ; if he moves to another place with an intention to make it his permanent residence, animo manendi, it becomes instantaneously his place of domicile, * * if a person has actually removed to another place, with an intention of remaining there for an indefinite time, and has a place of fixed, present domicile, it is to be deemed his place of domicile.”

Every usual incident of actual, permanent residence exists in the case under consideration, except that the wife and children did not come to'reside with the husband on his newly acquired home; he met all the usual requirements of actual citizenship, paid a poll tax, assessed his land on the citizen’s list, was recognized by his neighbors as a citizen, in so much that he was invited to become a candidate for office, and when consulting with his uncle with regard to an incumbrance on the land, and upon suggestion that it might be best to give up his purchase, replied that he did not desire to do so; he wished to retain the place as a home. And to another witness, that he was tired of roving about, and had bought the place for the purpose of settling down and making it his home. He continued to cultivate the land, improved the buildings, so as to make them a more comfortable residence, and in the month of August left the river country and went into Kentucky, to where his wife and children were staying with his wife’s mother, for the purpose, as avowed, of bringing them with him that fall to his home in Arkansas, was taken sick with consumption, lingered, and died the April following.

The wife and the children had no other home than that of the husband, indeed could legally have no other.

The domicile of the wife follows that; of the husband. Burnham v. Rangeley, 1 Wood. & Minot, 7; Meador v. Place, 43 N. H., 307; Cambridge v. Charleston, 13 Mass., 501.

Story in his Conflict of Laws says: “A married woman follows the domicile of her husband ; this results from the general principal that a person who is under the power and authority of another, possesses no power to choose a domicile.”

As a consequence, therefore, the possession and residence of the husband must, in effect and for all legal purposes, be considered the residence and possession of the wife. So firmly fixed is this rule that a separation of the husband and wife, with no intention of ever living together again, and even when the parties reside in different states, the domicile of the wife is held to be that of her husband. Hairston v. Hairston, 27 Miss., 704; Meador v. Place, 43 N. H., 307; Lees v. De Diables, 12 Cal., 327. There are many other decisions of the courts of the states which are 'to the same effect. In Hairston v. Hairston, the husband and wife had for many years been separated; the wife 'resided in Virginia, the husband in Mississippi. The supreme court of Mississippi, when deciding the question of domicile, said: “ Although the wife did not follow her husband to Mississippi, but remained in Virginia, her legal domicile was that of- her husband at the time of his death. In Meador v. Place, the husband and wife had separated, and lived apart for many years; during their separation the husband acquired a homestead and died. The wife had never been on the place during the life of her husband. Under this state of case the' court said: “The right is acquired by virtue of the marital relation, and generally the wife’s claim becomes complete, and can be consummated after the husband’s death. The wife’s home is the husband’s, and the last homestead occupied by the husband at the time of his death has been construed to be her last hdtaestead, whether living together at the time or separately.” It was the wife’s domicile because she possessed no legal ability to make for herself another. She might in violation of her marriage covenant separate from her husband, and make for herself a home in fact, but not in law. No legal rights can grow out of a violation of law.

In this case, Mrs. Johnston went with her children to her mother’s with the assent of her husband, to remain temporarily, whilst he took his negroes and other personal property to the plantation bought by him in Arkansas, and, as would appear from the evidence, to put the farm in cultivation and make the houses more comfortable for his family residence; that she did not return with him to his home, as was his avowed intention, was the result of circumstances explained by the evidence; the wish and intention to bring his wife and children with him was prevented by ill health, and finally by his death. Johnston as husband had a right to direct the movements of his wife, and she forfeited no rights by acting in obedience to his will.

In view of the authorities, and upon principle, we must hold that the actual personal residence of the wife and children upon the homestead was not necessary to perfect the right of homestead in him at the time of his death, nor to entitle the widow and children to the benefit of it after the husband’s death. It was in law their home as well as it was his.

The 80th section, under which the appellants claim a right of homestead simply extended or continued the right of homestead — the protection of the home from sale by his creditors — to the widow and children, after the death of the husband.

The terms expressed in the 80th section, in regard to occupancy, are precisely the same as those required of the husband,— “occupancy as a home,” — when changed, his domicile, his right of homestead on that place was lost, and such we apprehend would be the. effect of abandonment* by the widow, for the statute only gives the right of homestead to' the widow and children “ during the time it shall be occupied by them,” and as the terms upon which the widow and the children are to hold it are the same as those of the husband, the question, as a matter of fact as to what acts amount to abandonment, is to be considered as applicable to both, unless on account of infancy a different rule may be applied as to them, of which, however, we are not now to consider.

We have seen that neither the wife nor the children have a legal right to make for themselves a domicile or home, different from that of the husband or father, and must hold, that the mere fact of absence at the time of the husband’s death does not deprive them of the benefit of the homestead right held by the husband, at the time of his death, and which by force of the statute passed to them at his death.

The estate thus created is a peculiar one, made equally for the benefit of the wife and children; it may be likened to a joint tenancy, with right of survivorship. Taylor v. Hargus, 4 Cal., 268; Pool v. Girard, 6 id., 71. No partition can be had of it. Nichols v. Persell, 21 Iowa, 265. Nor can any of the parties lessen or impair the rights of the others; the abandonment by the mother does not impair the rights of the children. Watts v. People, 21 Ill., 178.

This suit was brought to secure the benefit of the home.stead rights to the children (minors), by their guardian, which after the death of the mother, or more properly from the time of her marriage and removal to the residence of her husband, had become perfect and unincumbered. They were minors and had no power to impair them, and as we have seen no act of the mother could do so; although in fact at school in Kentucky, they were in law domiciled with their father in Arkansas.

Their plaoe of domicile commences with that of their father at the time of their birth, and thereafter follows his wherever he makes one. Story says minors are generally deemed incapable of changing their domicile during minority, and therefore they retain the domicile of their parents; and if the father dies, his last domicile is that of the infant children. Although in fact absent in Kentucky, in law and for legal purposes, they were domiciled with their father in Arkansas at the time of his death. They were not required to assert their rights, or to take possession of the homestead then because of their incapacity as minors, and because under the law the mother had a prior right, which continued until abandonment by making a new home with her husband as well as by death ; delay since the death of the mother to assert their right does not affect it; the rights of infants are not barred by time. In truth, the defense against their rights of homestead, aside from the question of homestead in the father, is, that they are out of possession and (if entertained) would lead to this non sequiter, that, because they were not in possession, they had no right to possession.

The 5th, 6th, 7th and 8th ruling of the law by the court assert the necessity of actual occupancy by the wife and children upon the homestead, 1st, in order to impress the character of a homestead on the land, and, 2d, in order to get possession of it after the death of the head of the family, and to maintain and enjoy it afterwards, and are clearly erroneous. And because of such erroneous ruling of the law, and in rendering judgment against the appellants, the judgment must be reversed and set aside and the cause remanded for further proceedings according to law.


author: English, C. J.

text:
    Wilder vs. The State.
    1. Yeitoe: What sufficient proof nf.

    When there was no direct evidence that the offense charged was committed in the county in which the indictment was found, but there was such a reference in the testimony to objects of a public character that the jury mightjiave found that fact, a new trial will not be granted.

      2. New Trial : When the separation of the jury not ground of.

    When the jury was permitted to separate into two bodies for the purpose of dining, but were under the eye of the bailiff, and were not exposed to improper influences, it was not a ground for new trial.
    3. — Testimony ofjv/rors, on motion for.

    The court properly refused to permit the appellant to prove by jurors, as a ground for new trial, that the verdict was influenced by representations of the bailiff in charge of the jury. Under our statute, a juror can be examined to establish no other ground of new trial than, that the verdict was made by lot.
    APPEAL from Little River Circuit Court.
    Hon. T. G-. T. Steel, Circuit Judge.

      Garland & Nash, for appellant.

      Attorney General, contra.

   English, C. J.

The appellant, Charles Wilder, was indicted in the circuit court of Little River county, for stealing seventy dollars, United States currency, etc., etc., of Robert Lemons, found guilty by a jury, motion for a new trial overruled, sentenced to the penitentiary for one year, and obtained an appeal.

The counsel for the appellant, having submitted the cause without a brief, we have carefully examined the points reserved by bill of exceptions in the court below, to see if any substantial injustice was done him.

The evidence introduced upon the trial was, in substance, as follows: Robert Lemons, from whom it was alleged the money was stolen, was drunk at Richmond, on the 6th of January, 1869. In the afternoon, about three o’clock, he was in a grocery kept by John Henderson. He had some money in a little dirty, greasy, cloth sack, which he handed to Henderson, who counted it, and found between sixty and seventy dollars in notes of five, ten and twenty dollars, greenbacks, and a dollar and a half in specie. After counting the money, Henderson put it back into tbe sack, tied it around with a string, and placed it carefully in the inside breast pocket of Lemons’ coat. On that day a witness had paid Lemons a .balance due him for cotton, and fifty dollars to purchase other cotton. After Henderson had put his sack of money in his pocket, as above, he started home. On the road leading from Richmond to Rocky Comfort, and after he had traveled about a quarter of a mile, he lay down on the road side, by a mud hole, in a lane, not far from the house of one Carolan. Abe Cook, who was at Cardan’s, seeing Lemons lie down by the mud hole, went, with one of Head’s little boys, to build a fire by him. Lemons slept there all night.

The appellant came into Henderson’s grocery on the same evening, after Lemons had left, and wanted to buy some whisky and cigars, saying he had no money. Henderson refusing him credit, he said if Henderson would let him have the articles, he would have some money that evening or in the morning, and would pay for them.

After Abe Cook had been to where Lemons was lying, and returned to the house, appellant came riding along by, and inquired of him if he had seen Lemons. Witness told him he was lying up the road by a mud hole, and appellant rode in that direction.

On the next morning, when Lemons awoke, he found his money was gone. He remembered giving it to Henderson, but could not recollect that he returned it to him, and went back to town to inquire of Henderson about it. On the same morning, appellant and Pink Hawkins came into Henderson’s grocery, and appellant called upon Henderson to witness that he paid Hawkins fifteen dollars for a pistol, and said to Henderson if he had let him have the things he had wanted the evening before, he could now pay for them. He spent on that morning a dollar and a half in the grocery. From another witness he purchased a saddle and bridle, for which he paid twenty-five dollars. There were no marks on the bills by which the witness could identify them.

J udge Wilder, the father of appellant, told Henderson that appellant had some money, which he said he had found near the academy, and that he would refund the amount Lemons had lost.

Henderson did not see the wallet appellant had found, as stated by his father, but as described by appellant’s father, it answered the description of the one Lemons had. This part of Henderson’s testimony was excluded by the court, as hearsay, on motion of the attorney of the state, against the objection of appellant.

Two witnesses for the defense swore that they saw appellant, when coming from the direction of Oarolan’s, pick up a small, black, leather pocket book, between the branch and the academy, that looked as if it had been made during the war, and seemed to have a good deal of money in it.

The principal issue before the jury seems to have been whether appellant stole the money from the person of Lemons, while lying drunk on the road, or found it. The court instructed the jury, in substance, that if they believed, from all the facts and circumstances in evidence, that he took the money from Lemons, they should find him guilty, but if on the contrary they believed that Lemons had lost it, and appellant found it, and afterwards converted it, they should acquit him.

Possibly the appellant was not guilty of the theft. Possibly Lemons lost his sack of money, and appellant found it on the next morning. The evidence was slight and conflicting, but the witnesses were before the j ury, who saw what kind of people they were, and their manner of testifying. They found Mm guilty, and the judge who presided at the trial, and who seems to have charged the jury impartially, refused to set aside the verdict. It was the province of the jury, and not ours, as has been often decided, to pass upon the weight of the evidence, and we cannot direct a new trial where there is any evidence to support the verdict.

There was no direct testimony that the offense was committed in Little River county, as alleged in the indictment.

If the money was stolen from Lemons, as concluded by the jury, it must have been while he was lying drunk not far from Richmond, on the road leading from Richmond to Rocky Comfort, the court house town of the county where the trial occurred.

In the report of the facts in Ewwll v. The State, 6 Yerg., 364, the report states: “There is no proof in the bill of exceptions that the offense was committed in Bedford county; nor are there any objects, such as creeks, roads, mountains or rivers spoken of, which are situated in Bedford county. In fact, there is not one word of Bedford county in the bill of exceptions, which purports to set out all the evidence.”

Catron, C. J., said; “It is not stated in the bill of exceptions that the crime was committed in the county of Bedford, nor can the fact be inferred from the facts set forth in the record. The court below not having had jurisdiction from anything appearing, the defendant ought to have been discharged. We have anxiously looked for proof of natural objects, of which we can judicially take notice, to supply this defect in the facts set forth by the record, but none exists, from which the fact may be inferred. We feel therefore bound on this ground to order a new trial.”

In the record before us, three objects are mentioned of a public character: the town of Richmond, the town of Rocky Comfort, where the jury were sitting, and the road leading from the former to the latter, on which, and in sight of Richmond, the offense was committed, if at all.

It will perhaps be safe to presume, that the jury knew that the Richmond mentioned by the witnesses was in Little River county, though formerly in Sevier.

It was assigned as cause for a new trial, that the bailiff in charge of the jury permitted them to separate, &c. ■

It appears that the jury was made up of seven black men, and five white men. The bailiff in charge of them, took them to a hotel for dinner. The landlady objecting to having them all furnished at the same table, the black men were sent to the kitcken, and the white men were served in the hotel dining-room.

There was a door opening from the dining-room to the kitchen, and the bailiff seems to have been on the look-out for intruders. No one entered the kitchen except the landlord, and all he said to the jurors was, “boys, eat bearty.” It was affirmatively shown by the state, that the jurors, while thus ■separated, were subjected to no improper influence. ■

The appellant offered to prove by two of .the jurors, that the jury were influenced to make up their verdict by representations made to them by the bailiff in charge of them. But the court refused to permit the jurors to be sworn for that purpose.

There was no error in this; the statute provides: “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” Gantt’s Dig., sec. 1971.

The bailiff stated that he was not, at any time, in the jury room while the jury were consulting as to their verdict.

The judgment must be affirmed.