text:
    George vs. St. L., I. M. & S. R'y Co.
    1. Pleatccns : No reply to mere answer.

    A plaintiff is not entitled to reply to an answer wliieh contains no set-off, or counter-claim.
    2. Eailroad Company: Liability for injury to passengers: Negligence, when presumed.

    To the liability of a railway company as a passenger carrier, two things arc requisite — that the company ho guilty of some negligence or omission, which mediately or immediately produced or enhanced the injury; and that the passenger should not he guilty of any want of ordinary care and prudence which contributed to the injury.

      Prima facie, when a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, which the carrier must remove by proof.
    If a car is thrown from the track and crushed, and there is a broken rail the jury may infer negligence from these facts; and the onus probandi will be shifted to the carrier.

      3. Same : Bound to utmost diligence.

    Railway carriers of passengers are bound to tbe utmost diligence whirl, human skill and foresight can effect; and if injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation, or the mode of management at tbe time the injury occurs, the carrier is responsible.

      4. Insane Persons : Contracts of, not void.

    Insane persons have no complete power of contract, but their contract- are not, in general, absolute nullities.
    APPEAL from Clark Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Witherspoon, Battle, for appellant.

      J. M. Moore, contra.

   English, C. J.

On the sixteenth of March, 1877, Bailey R. George commenced this action in the circuit court of Clark county, against the St. Louis, Iron Mountain and Southern Railway company, the complaint alleging in substance :

That defendant was running and operating a line of railway in this state, transporting passengers and freight, and about the seventeenth of November, 1876, plaintiff procured and paid for a ticket on said railroad from Little Rock to Texarkana, and got aboard of one of defendant’s trains, and while on said train, and seated in one of the passenger cars, the said train, from the negligence of the employés of said company, ran off the track, and the plaintiff thereby received a serious injury upon his head, which caused him great pain for several months, and from which he might never recover; damages laid at $5,000.

At the October term, 1877, the defendant corporation filed an answer, containing three Code paragraphs :

1. Admitting that plaintiff' took passage on its said railroad, as alleged in the complaint, and that the train ran off the track, as alleged, but denying that the same occurred by reason of the negligence or unskillful ness of defendant’s servants or employés.

2. Alleging that, on the twenty-ninth of November, 1876, plaintiff, in consideration of the sum of one hundred dollars, at the time paid by defendant to him, did release defendant from all damage by him sustained by reason of the matters and things alleged in said complaint, and did at the time execute and deliver to defendant his writing releasing it from, all liability, by reason thereof, and defendant herewith files said release, aud sets up and pleads the same in bar of plaintiff’s alleged cause of action.

3. Alleging that, on the-day of-, 1876, plaintiff' and defendant, by way of compromise,, and settlement of the matters and things alleged in said complaint, agreed that defendant should pay plaintiff the sum of one hundred dollars, and the plaintiff would accept the same in full aud complete satisfaction of any liability that, might accrue to him from defendant by reason of the injuries complained of; and, thereupon, defendant did pay plaintiff the sum of one hundred dollars, as was agreed by and between them.

The instrument pleaded as a release, by the second paragraph of the answer, and filed with it, follows:

“ Arkadelphia, Ark., Nov. 29, 1876.

“ In consideration of the sum of one hundred dollars, to us in hand paid, the receipt whereof is hereby acknowledged, we, Bailey George and E. J. George, his wife, hereby release unto the St. Louis, Iron Mountain and Southern Railway company, all damages sustained by, and all rights of action accruing to us, or either of us, by reason of injuries sustained, or expense, or loss incurred by us, or either of us, by the wrecking, near Donaldson station, of the second section of passenger train No. 1, of said railway compauy, on the seventeenth day of November, 1876 ; W. A. Ob ambers being the conductor.

(Signed.) “33. R. George,

“F. J. George.

“Signed in presence of'

“ S. Morrison,

“ C. D. Hobson.”

The plaintiff filed the following reply :

‘•Plaintiff says that it is probable that he did sign the receipt filed with defendant’s answer, but charges that the same was executed when his mind was so affected, in consequence of the injury upon his head, that he did not know what he was doing, and he now has no recollection of signing the same, or receiving the money, and charges that he was non. compos at the date of said instrument.”

The reply was sworn to, and, during the trial, plaintiff was permitted to file an affidavit, about in the language of the reply.

()n the trial, plaintiff' testified, in substance, that about the seventeenth of July, 1876, he, with his family, was traveling in one of the passenger cars belonging to defendant, having paid his fare as a passenger on said railway from Little Rock to Texarkana, and was seated in said passenger car when, somewhere between Malvern and Arkadolpliia, the car that he was in was thrown from the track and smashed, and he received a very severe wound on the head, from which his mind was so affected that he had no knowledge of what was transpiring, or what he' did, for three or four weeks after the occurrence. That he suffered great pain from the wound, and was disabled from, work or labor for about three months, and his labor was worth, when well, about $1 per clay. That he had no recollection of ever giving the railway company, or its agent, any receipt for $100, or any amount, in full satisfaction for damages, by reason of his injuries by said accident on said road, and did not recollect that he evep’ received any money from them.

That when he came to himself he learned from his wife that he had signed some sort of receipt, or paper, to said defendant, and went to its agent at Arkadelphia, Mr. Morrison, and asked to see it, and he said he had sent it off. Witness asked if he could give him a copy of it; he promised he would, hut never did so, though he called upon him several times.

On cross-examination, he testified that he had never returned, or offered to return, the one hundred dollars that was paid his wife and himself by the defendant, and for which the receipt was given.

R. E. Reams, witness for plaintiff, testified that plaintiff and his family were brought to his hotel, near the railroad depot, on the seventeenth of November, 1876; that plaintiff seemed to he very badly wounded on the head, and to he suffering a great deal. That he and his family remained at the house of witness from the seventeenth of November to the first of December, when liis family went to Texas, and he remained until the sixth of January, 1877. Witness was in liis room every clay from the time he came until after the sixth of December, and some clays he seemed not to he in his right mind, talked at random, and flighty, and sometimes he seemed to be rational.

That defendant, by its agents, paid the board of plaintiff and family, which was.about $330.

Dr. Wallis, of Arkadelphia, testified that .about tire seventeenth of November, 1876, he and four pther physicians, were called, by agents of defendants, to attend upon a large lot of men, women and children, who had been wounded by an accident on the railway between Arkadolpbia and Malvern. Dr. Dale and himself attended to plaintiff’s wound, -which was a severe scalp-wound — removing the scalp and soft part of the bone of the skull back. They drew it back to its place and sewed it up. Did not notice that his mind was much affected, but only saw him a few times, he being the patient of Dr. Dale. Sawr plaintiff on the twenty-ninth of November, and his mind was clear. The railway company paid bill of witness for attending on the wounded.

Stanton testified that he -was engineer on the train which was wrecked on the seventeenth of November. The rear cars ran off the track, were turned over, and badly broken up. The engine and baggage car remained on the track. Did not know what caused the accident. "When he went back he found a broken rail. Did not know whether this was the cause, or some part of the rear cars giving way. There was no carelessness or negligence on the part of the men in charge of the train.

Here plaintiff closed.

Defendant read in evidence the release pleaded.

Solomon Morrison, fot ■ defense, testified that rhc -was agent for defendant at Arkadelphia, at the time of the running off of the train by which plaintiff was injured, lie, as such agent, settled with plaintiff’ for the injury done him by the accident; paid him for the company $100, with the understanding that the company -would also pay his board bill, doctor’s bill and drug bill, while he was disabled, which were paid through witness. He settled with other parties who were injured at the same time, and then went to settle with plaintiff. There had been a release drawn up for him to sign, in consideration of the receipt of $60. He declined to accept that amount. Witness then asked him what amount he would accept. He said he thought $100 would be about what was right. Witness told him he would telegraph Mr. Dudley his proposition immediately ; did so, and received in reply, “ Pay Mr. George one hundred dollars.” Witness then drew up a release with a consideration of $100, went^over to plaintiff’s room and paid him $100, and he and his wife signed the release. Mr. Hobson went with witness to the room, and was present during the whole transaction.

Plaintiff and wife seemed to understand what the payment of the money and the signing of the release were for. They made no objections to it, and seemed perfectly satisfied. Plaintiff was sitting up in the bed at the time he signed the paper. Witness saw no difference in his mental condition then and at any other time since. He seemed perfectly sane. The payment of the money and the signing of the release occurred about two weeks after the accident.

C. D. Hobson testified that he was present in plaintiff’s room when the $100 was paid, and the release signed, and witnessed it. Plaintiff was sitting up in bed when he signed the receipt. His wife, and several other persons, whom he took to be members of his family, were present, and his wife also signed the paper. Witness was in the room twenty or thirty minutes, and plaintiff seemed to talk rational — seemed to be in his right mind; did not observe anything unusual in his deportment. Had not seen him before, and did not notice him particularly. Was conductor of one of defendant’s trains, and was asked by Morrison to go with him to plaintiff’s room and witness the payment of tbe money and the execution of the release.

Stanton, called for defense, testified that be was engineer on the train that was wrecked; was running at the customary rate of speed for passenger trains. There was no carelessness or want of skill or negligence on the part of the employes in charge of the train. The conductor was a competent man.

I)r. Wallis testified that he was one of fire physicians who were called upon by the attorney and agent of defendant to assess tbe probable damage by loss of time on account of injuries received, and, as he i’emembered, assessed plaintiff’s at fifty or sixty dollars — supposing that this would cover the time he would probably be prevented from his usual occupation, the expense being borne by defendant.

II. W. McMillan, attorney at-law, testified in substance, that he submits ed the proposition of defendant to pay plaintiff fifty or sixty dollars. His family were in the room, and a Mr. French, a friend of the family; and they all talked over the matter, mostly between Mr. French and the family, and it -was decided that they would not take less than $100 for injuries to plaintiff. Plaintiff also talked about it, and witness did not notice that his mind was affected; he ivas sitting up in the bed, with his head hound up. The basis of the proposed settlement was that the company was to pay all expense incurred by persons ivho were injured — hoard bill, drug and physicians’bills, aud such an amount for loss of time as would be assessed by a hoard of physicians (who were agreed .upon), in view of the time tlie physicians thought, would be required to cure them, and the value of the time. The doctors estimated the amount that ought to be paid plaintiff at $50, and he refused to take it, but wanted $100.

John M. Moore testified that, as attorney for the railway company, he went to Arkadelphia on the next day after the accident, to arrange for and compensate the wounded for their injuries, and, with the representative of the injured parties, called upon five physicians in attendance to assess the probable damages, and they did so, and it was paid in most of the cases. Plaintiff’s, as he remembered, was fixed at $50 or $60. Defendant was to pay the board of the injured parties, and for medical attention, medicine, etc.

The above being in substance all the evidence introduced at the trial, plaintiff' moved the following instructions, which the court refused :

“1. If the jury find from the evidence that plaintiff received personal injuries while traveling upon the cars or railroad of defendant as a passenger, they will find for plaintiff' such damages for the injuries as the proof in the case will justify, not exceeding the amount in the complaint.

“2. If the jury believe from the evidence that plaintiff’s mind was in a state of derangement at the time he signed the release introduced by defendant, they will disregard the same, and find for plaintiff' such damages as he has proven.^

“ 3. That if they believe from the evidence that, in consequence of the injuries received by plaintiff, he was not of sound mind at the time the release was signed and executed, they will find for plaintiff.”

Defendant moved five instructions, to all of which plaintiff objected. The court gave the firsthand fifth, and refused the others. But part of the second and none of the third and fourth are copied in the bill of exceptions, the clerk stating their loss.

The first and fifth given are as follows :

“1. If the jury find from the evidence that the servants and employés of the defendant, in charge of the train at the time of the accident which produced the plaintiffs injuries, were not at the time of the accident guilty of any negligence or un skill fulness, they will find for the defendant.

“ 5. If the jury find that plaintiff- was at the time of signing the release suffering from temporary insanity, from which he has since recovered, it was his duty upon recovery, if he desired to repudiate the contract, to restore or offer to restore the money paid him by the defendant; and if he has not done so, they will find for the defendant.”

The bill of exceptions states that during the argument of the instructions, plaintiff’s attorney proposed that he would admit that the jury should allow defendant credit for the amount which defendant had paid, provided they should find any damages in favor of plaintiff" for his injuries.

The jury returned a verdict in favor of defendant.

The plaintiff’ moved for a new trial on the grounds that the verdict was contrary to law and evidence, and that the court erred in refusing the three instructions moved by plaintiff, and giving the first and fifth moved for the defendant.

The court overruled the motion, and plaintiff took a bill of exceptions and appealed.

I. The answer setting up no set-off" or counter-claim, appellant was not entitled to reply under the Code practice. Gantt’s Dig., secs. 4577-8-9.

He should have filed the affidavit before the trial, impeaching the release pleaded by the second paragraph of the answer, and filed with it. Ib., sec. $495.

Appellee complains that the court permitted him to file the affidavit during the progress of the trial, but as the verdict and judgment were in its favor, and it is not appealing, it was not prejudiced by the error, if any. The court doubtless may exercise discretion in such matters in furtherance of justice.

II. Passing, for the present, the question of negligence, the weight of evidence seems to be that appellant was not insane at the time he executed the release. He was the only witness that swore that he was insane at that time. Reames testified that some'days he seemed not to be in his right mind, and at other times he appeared rational. He •did not state that he was present when the release was signed, or what the condition of appellant’s mind was on that day. The testimony of the attesting witness, and others, conduced to prove that he was not non compos mentis when he executed the release, and no fraud or imposition appears to have been practiced upon him by agents of appellee. The question of insanity, howTever, was for the jury, and if properly submitted to them by the court, they were the judges of the evidence.

ITT. As a proposition of law, the first instruction moved for appellant, and refused by the court, was not correct, because it ignored negligence. The complaint averred, and had to aver, negligence to be good pleading. St. Louis, Iron Mountain and Southern Railway Company v. Yocum, ante.

To the liability of the railway company, as passenger carriers, two things are requisite — that the company shall be guilty of some negligence or omision which mediately or immediately produced or enhanced the injury; and that the passenger should not have been guilty of any want of ordinary care and prudence which contributed to the injury, etc. 2 Redfield Law of Railways, p. 223.

It is a familiar rule, that what is essential to be alleged, must be in some mode, and by some kind of competent-evidence, proved, if denied.

“ The rule of responsibility differs from the rule of evidence. Prima facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. This is the rule when the injury is caused by defect in the road, cars or machinery, or by want of diligence or care in those employed, or by any other thing which the company can and ought to control as part of its duty, to carry the passengers safely; but this rule of evidence is not conclusive, The carrier may rebut the presumption, and relieve himself from responsibility, by showing the injury arose from an accident which the utmost skill, foresight and diligence, could not prevent.” Meir v. Pennsylvania Railroad, 64, Penn. State, 230, and cases cited; Cooley on Torts, p. 663; Wharton Law of Negligence, sec. 661.

Appellant proved that the car in which he was seated was thrown from the track and crushed, and that there was a broken rail. The court should have charged the jury that they might infer negligence from these facts, and that thereby the onus prohandi was shifted to appellee.

IN. The first instruction given for appellee was too narrow, because it confined the question of negligence to the servants and employés of the corporation in charge of the. train at the time of the accident, when it might have been the result of previous negligence on the part of the company, or other employés than those in charge of the train at the time of the accident and injury to appellant. What was the condition of the track; why was the rail broken, and when was it broken ? Was the car badly constructed, or out of repair ? The evidence is silent as to these matters.

Railways are not insurers of passengers,'and not responsible for unavoidable accidents, but “the eases'all agree that passenger carriers by railway are bound to the utmost diligence which human skill and foresight can effect, and that if injury occurs by reason of the slightest omission iff regard to the highest perfection of all the appliances of transportation, or the mode of management at the time the damage occurs, the carrier is responsible.” 2 Redfield Law of Railways, p. 219.

V. The second and third instructions asked for appellant, and refused by the court, were, in substance, that if the jury believed, from the evidence, that his mind was in a state of derangement -when he signed the release, or that in consequence of the injury he was not of sound mind, they should find for him. This was in effect assuming, upon the hypotheses stated, that the release was absolutely null and void, and incapable of ratification.

Persons who are,insane have no complete power of contract. Yet their acts of this sort are not, in general, absolute nullities. Bishop on Contracts, sec. 284.

“There are eases,” says Mr. Bishop, “which seem to hold, or in which the judges incautiously sta£e the doctrine to be, that, where a contract is impeachable for insanity, it is absolutely void. And perhaps there may be circumstances in which this is so by the better doctrine. If the insanity is complete and profound, the law ought, in reason and justice, to be so held. But in most of the cases the insanity is, on the facts, only partial; and the contract is generally •adjudged to be merely voidable by the insane person, or his legal representative, and, while not so avoided, binding on the other party. It may be ratified by the insane person on his restoration to reason. But, before ratification, if, for example, it is a deed of real estate, it conveys a seizin to the grantee.” Ib., sec. 296, and cases cited. Allis v. Billings, 6 Metcalf (Mass), 417.

If appellant was in fact not in his right mind when he executed the release, as he stated, it was not a case of such insanity as would render the contract absolutely null and void, so that he could not ratify it on becoming rational.

YI. The fifth instruction given for appellee, in effect, submitted to the jury the question whether or not appellant was suffering from temporary insanity when he signed the release, but declared, as a matter of law, that he could not recover unless he had restored or offered to restore to appellee the money paid him as a consideration for executing the release. .

A similar proposition was disapproved in Henry, ad., v. Fine, 23 Ark., 417, where Brandon had made a bill of sale for a slave when insane, and his administrator brought replevin for the property.

In Allis v. Billings, sup., the court sqid: “Adopting, as we do, the principle that the deed of an insane person is only voidable, this, while it gives the insane grantor full power and authority to avoid the deed, and thus furnishes full protection tq him against all acts injurious to his interests, done while he was non compos, also entitles the other party to set up the deed, if he can show a ratification or adoption of it, by the grantor, after he is restored to a sound mind. If the grantor, when thus capable of acting, and with full knowledge of his previous acts, and of the nature and extent of them, will deliberately adopt and ratify them; if he will knowingly, and in the exercise of his proper faculties, take the benefit of a contract made while he was insane; it is competent for hita to do so. But the consequence will be to give force, effect, and validity to the contract, which was before voidable.” See, also, Arnold v. Richmond Iron Works, 1 Gray (Mass.), 413.

Appellant testified that he had no recollection of receiving any money from the agent of appellee.

If insane when he received it, the money having been paid him in the midst of his family, whether he remained ignorant of the fact, after the restoration of his mind, and down to the time of the commencement of the suit, was a' question of fact, which should have been submitted to the j ury, as well as the question of his insanity at the time of the execution of the release.

Eor the errors of law above indicated, we think it safer to reverse the judgment, and remand the case, that the issues of fact may be again submitted to a jury, with proper instructions from the court.


source: Caselaw Access Project

author: Harrison', J.

license: Public Domain

text:
    McMinn et al. vs. Shultz.
    1. Bin oe Exceptions: Must be signed by judge.

    A bill of exceptions not signed by the judge, and apparently otherwise incomplete, can not be considered as part of the, record, in this court.
    APPEAL from Jackson Circuit Court.
    Hon. A. C. Pickett, Circuit Judge.

      Goody, for appellant.
   Harrison', J.

This was replevin for two bales of cotton, commenced before a justice of the peace by appellee against appellants. The plaintiff recovered judgment before the justice, and the defendants took an appeal to the circuit court. In the circuit court the plaintiff, as before the justice, recovered judgment for the cotton, or, if delivery could not be had, for the value thereof, found — and for his damages assessed.

The record presents no question for our decision. There appears in the transcript what purports to be a bill of exceptions, but which is not signed by the judge, and is, apparently, otherwise incomplete, which can not be considered as a part of the record.

The judgment is affirmed.


author: Harrison, J.

text:
    Anthony vs. Lawson.
    1. Usury: How to avoid, in equity.

    He who comes into a court of equity for relief against a judgment, conveyance, or other security, upon the ground of usury, must have paid or offered to pay what is really and bona, fide due from him, in accordance with the maxim that he who seeks equity must do equity.
    APPEAL from Lonoke Circuit Court in Chancery.
    Hon. J. W. Martin, Circuit Judge.
    Hallum, for appellants.

      Trimble and Chapline, contra.

   Harrison, J.

This was a suit in equity, by Philip Lee Anthony and L. M. Anthony, his wife, against Henry C. Lawson and O. L. Kline, to enjoin the sale of certain lauds under a mortgage with power of sale.

The plaintiffs alleged, in their complaint, that the lands, which were the separate property of the said L. M. Anthony, and of which there were about 1,770 acres, and worth $5,000 — having been sold at a judicial sale for a grossly inadequate price, and the plaintiffs being allowed by the purchaser to redeem them by refunding to him the sum paid, they, on the fourteenth day of November, 1877, for that purpose, borrowed from the defendants $410 for thirty days, at six per cent, interest per month — for which they gave them their note, including therein the interest as part of the principal — and, as security for the note, a deed of trust upon the lands; that when the note fell due they paid $100 upon it; and, on the seventeenth day of December, 1877, gave to the defendant Lawson a new note, payable in thirty days, for $345.05 — the balance, and interest on it at three per cent, per month, and executed to him a mortgage, with power of sale, on the lands to secure it— and took up the former note and deed; that Lawson assigned this latter note, before maturity, to the defendant Kline, who was conversant with the transaction, and knew that the usurious intei’est was included,in the note; and that the note having become due, Lawson was about to sell the lands under the power in the mortgage for its payment.

They made in their complaint no offer to pay the sum borrowed, ivith legal interest, orto pay anything.

The defendants demurred to the complaint, as not stating facts sufficient to constitute a cause of action. The court sustained the demurrer, and dismissed the complaint. The plaintiffs appealed.

Since the appeal was taken, Philip Lee Anthony has died, and the suit has been abated as to him.

It is a well settled and established rule, that he who comes into a court of equity for relief against a judgment, conveyance, or other security, upon the ground of usury, must have paid, or offered to pay, what is really and bona fide due by him, in accordance with the maxim, that he who seeks equity must do equity. Ruddell et al. v. Amble, 18 Ark., 369; Pickett et al. v. Merchants’ National Bank of Memphis et al., 32 Ark., 346; Rogers v. Rathbun, 1 Johns. Ch., 367; Fanning v. Durham, 5 Johns. Ch., 122; Tiffany v. Boatman’s Institution, 18 Wall., 375; 1 Story Eq. Ju., 64, e; Bisp. Eq., 222.

But it is, however, insisted by the appellant, that as all. contracts for a greater rate of interest than ten per cent, per annum are, by section 13, Article XIX, of the Constitution of the State, declared to be void, as to principal and interest, a court of equity now has no authority to require, as a condition of relief, that the plaintiff shall pay what he justly owes the defendant.

"When the case of Ruddell et al. v. Amble, supra, was decided — the statute, section 7, chap. 92, Gould’s Dig. (which has been re-enacted — Act of February 9, 1875), made all such contracts void, and except as an inhibition to the legislature to authorize a greater rate of interest, we are unable to see any more force in the constitutional provision than in the statute. The statute made them as wholly and entirely void as does the constitution.

The doctrine, as to the interposition of courts of equity to relieve against such contracts, is most clearly stated by Judge Story. He says: “In cases of usury, this distinction has been adopted by courts of equity. All such contracts being declared void by the statute against usury, courts of equity will follow the law in the construction of the statute. If, therefore, the usurer or lender come into a court of equity, seeking to enforce the contract, the court will refuse any assistance, and repudiate the contract. But, on the other hand, if the borrower comes into a court of equity, seeking relief against the usurious contract, the only terms upon which the court will interfere, are, that the plaintiff will pay the defendant what is really and bona fide, due to him, deducting the usurious interest, and if the plaintiff do not make such offer in his bill, the defendant may demur to it. and the bill will be dismissed. The ground of this distinction is, that a court of equity is not positively bound to interfere in such cases by an active exertion of its powers; but it has discretion on the subject, and may prescribe the terms of its interference; and he who seeks equity at its hands, may well be required to do equity. And it is against conscience that the party should have full' relief, and, at the same time, pocket the money loaned, which may have been granted at his own mere solicitation.. For then, a statute, made to prevent fraud and oppression, would be made the instrument of fraud. But, in the other ease, if equity should relieve the lender, who is plaintiff, it would be aiding a wrong-doer, who is seeking to make the court the means of carrying into effect a transaction manifestly wrong and illegal of itself.” 1 Story Eq. Jur., 301.

There was no error in dismissing the complaint; but should the appellant yet tender the sum borrowed, with legal interest, she would, upon its refusal, be entitled to ask the aid of the court, and have the sale of the lands enjoined.

Affirmed.


author: Eakin, J.

text:
    Oliver vs. The State.
    1. New Trial : When circuit court should grant.

    The circuit judge has the discretion to grant new trials in all cases, whore ho is satisfied that the ends of justice will be best subserved thereby; and should not hesitate to exercise it where he is dissatisfied with a verdict, as being the result of. excitement, passion or prejudice, or any other influence save a calm consideration of the facts in evidence.
    2. Same : For want of evidence to support verdict.

    The following rules seem to result from all the previous decisions of this court in relation to setting aside verdicts for insufficiency of evidence:
    1. Where there has been a conflict of evidence, a now trial will not be granted by the supreme court, merely because the preponderance of evidence in the mind of the court, may seem to be against the verdict.
    2. But in all cases, oven in those of conflict, the supreme court will direct a new trial, when, upon inspection of the evidence, the verdict is so clearly and palpably against the weight of it as to shock a sense of justice.
    3. A new trial will be granted where there is no evidence at all to support the verdict, or whore it fails in some material link. The jury -will not be allowed to supply the missing link by inferences and presumptions from other facts, unless they be legitimate and fair presumptions, such as naturally follow.
    APPEAL from Phillips Circuit Court.
    lion. J. N. CyPERT, Circuit Judge.

      Tappan Horner, Pose, for appellant.

      Henderson, Attorney General, contra.

   Eakin, J.

The appellant was charged with the murder of Robert N. Yerby, convicted of manslaughter, and sentenced to five years’ imprisonment in the penitentiary.

There is no complaint of any error in the admission or rejection of testimony. Up to the rendition of the verdict the trial is conceded to have been fair. The instructions were all that the appellant asked, and as favorable as he could have desired. A new trial was asked, simply on the ground that the verdict was contrary to the law and the evidence. The court refused, and the propriety of this refusal is all that we have to determine. The evidence presents, substantially, the following history:'

Upon the fourth of July, 1875, a bitter quarrel occurred between the deceased and his friends on one side, and the appellant on the other. Very insulting language had been used on both sides; the deceased having, first, accused the father of appellant, to his son, of having broken open a letter improperly. In the course of the quarrel, the deceased had been taunted with his improper relations with a negro woman, and had responded by saying she was as good as any white woman in the diggins,” and explained that he meant it for Oliver’s wife. The result of the quarrel on the fourth was that Oliver fled from the crowd, which was composed mostly, if not wholly, of Yerby’s friends, and Avas pursued by some of them a short distance, but ■reached his home in safety. The proof shows generally that there Avas bitter .feeling between Yerby on one side, and the Olivers on the other, and passionate threats had been made by both Yerby and R. H. Oliver.

The parties, it seems, lived on the same side of the Mississippi river, at no great distance from each other, but using different landings. Yerby lived at the landing beIoav, and the elder Oliver, the father, at the upper landing, (oul above, the distance around by the river being eight or ten miles, the distance across being short, and all below Helena. The appellant lived in the bend, but used the upper landing.

Upon the evening of the quarrel, Yerby returned home much excited and stung by the taunt regarding the negro woman. He wrote, and sent by a friend, to R. H. Oliver a note, denouncing Mm as “ a scoundrel and a damned puppy,” offering to give him satisfaction, and referring to the bearer of the note as Ms friend. It was evidently intended as a challenge. Oliver replied, verbally, to the bearer, that he would not fight Yerby in a duel; but that he was going-up to Helena next day to institute proceedings at law against Yerby.

That night Yerby got upon the steamer A. J. 'White, passing up. He was much excited, drinking and crying; spoke of his quarrel, with the Olivers, and declared that it would have to be settled that night. It is in proof that although quiet when sober, he had the reputation of being a desperate and dangerous man when drinking; and that he was more often drinking than cool and sober.

On approaching the landing of the-Olivers, the boat was hailed by R. H. Oliver discharging a gun for the purpose. The boat neared the landing, when Yerby discovered the Olivers, father and son, coming aboard. He exclaimed: “Here they come, now!” ran down the steps from the boiler-deck, and took a position behind a stancheon at the foot of the first flight of steps, with a pistol in his hand. "When the Olivers came aboard, the torch-light was extinguished, which had been held out on the land side, and the Olivers started up the steps. The father, being before, passed Yerby without seeing him. The son came after, with the empty gun in his hands. The lock of one barrel was out of order, and the other barrel had been discharged to hail the boat. Yerby seized hold of the gun with his left hand, held the pistol in a threatening attitude with his right, and accusing Oliver of having brought the gun aboard for him. R. H. Oliver explained that the gun was not loaded, and Yerby said it was a damned lie. The father, hearing the noise, turned, and some quick words passed between him and Yerby. There is some proof that Yerby turned the pistol on the father; others say he had it by his side, but still holding the gun with his other hand, when R. EL Oliver drew a pistol from his pocket with his left hand, shot Yerby, and killed him. The father shot about the same time, but the shot did not take effect.

After the death of Yerby, the Olivers had the boat stopped and were put ashore. They explained it by showing they had no loaded arms, and feared they might be injured by Yerby’s friends. The gun-barrel was empty, and the pistol of the father had only one chamber loaded, which had been discharged in the fracas.

This is all the material evidence. The verdict, being for manslaughter, is an acquittal of murder, and positive against malice. This excludes from consideration all that happened on the fourth of July, except so far as it may have coutributed to make the impression on R. El. Oliver, at the time of the contest, that his or his father’s life was endangered by Yerby’s assault. This excludes also from consideration all the threats made by Oliver, as' the killing could not have been in pursuance of the threats without murder. It also excludes any supposition that the Olivers went, aboard the boat witlp. intent to attack Yerby. Indeed the proof is positive that they went aboard for peaceful and proper purposes, and that their arms were not prepared for a fight, in any suitable manner. There is no proof that either of them knew that Yerby was on board the boat.

The only question left for the jury to determine was this: Did Oliver kill Yerby under a reasonable apprehension that if he did not, Yerby would either kill him or his father, or inflict upon one or the other of them great bodily harm, and were the circumstances such that be could not safely withdraw from the contest? If he had such reasonable apprehension, and could not safely withdraw by the exercise of ordinary prudence and presence of mind, he was justified in killing.

This was a question for the jury in the fix’st place, and they found, in effect, that Oliver did not kill Terby in malice, but under circumstances which did not justify the act in self-defense. In other woi’ds, to sustain the verdict, they must have found either that Oliver had no reasonable ground to apprehend the death or bodily harm of himself or his father, or that he might by ordinary prudence have avoided it without the necessity of killing- Terby.

The attack of Tei-by upon appellant was sudden, unexpected and menacing-. He seized Oliver’s gun with one hand, using violent and angry language; and when diver explained to him that it was not loaded, he answei-ecl that it was “ a damned lie.” He had a pistol in his right hand, which in a second could be pointed and fired in any direction. The struggle for the gun continued on the narrow steps of a steamboat staircase, boarded up on each side, leaving no reasonable chance to escape with safety. Terby was known to be a deadly- enemy, a man much exasperated, desperate and dangerous where drinking, and likely to cut and shoot. He had been drinking then. There can be little doubt that he meant it should result fatally to himself or one of the Olivers. It is'most probable that, if Tei’by had not been killed, he would in his excited condition have discharged his pistol at appellant or his father before the contest was over.

It devolved, in the first instance, upon the honorable cii'cuit judge to detennine, upon the motion for a new trial, whether or not the verdict was contrary to the law and the evidence. This is a duty of great delicacy, but imperatively required, especially in criminal cases where the law itself compels the jurors to give to the prisoner the benefit of all reasonable doubts. The jurors are, nevertheless, the judges of the facts, and .of the law in its application to them. It is the duty of the circuit judge so far to respect their province as not to interfere with, their verdicts rendered without misconduct upon proper instructions ; and weighing the evidence. At the same time, the strict rules established here for the regulation of this court do not apply to the circuit judges. They preside in the courts and take personal cognizance of all that occurs in the progress of causes. It is their duty to see that juries do not transcend the proper limits of their authority, and that all trials are fair and in accordance with law. The circuit judge has the discretion to grant new trials in all cases where he is satisfied that the ends of justice will be best subserved thereby, and should not hesitate to exercise it where he is dissatisfied with a verdict, as having reason to believe it the result of excitement, passion, prejudice, or any other influence save a calm consideration of the facts in evidence.

Upon the refusal of the circuit judge to grant a new trial, a stricter rule has been applied here, which must govern our action in the case in judgment. This rule, as originally laid down in the case of Howell v. Webb, 2 Ark., 360, was that uto authorize a new trial, the verdict must have been against the weight of evidence — so much so that on the first blush of it, it would shock our sense of right and justice.” This principle has been recognized and the language repeated in many subsequent cases. [See Vandever v. Wilson, 5 Ark., 407; Hazen v. Henry, 6 Ark., 89; Lewis v. Read, 6 Ark., 428; State Bank v. Woody et al., 10 Ark., 638; Calvert v. Stone 10 Ark., 492; and many subsequent eases]. In the case of Drumer v. Brown, 10 Ark., 140, Justice Walker referred with approbation to Howell v. Webb (supra), but announced the doctrine in another form, to-wit: That a new trial would never be granted here on the mere weight of evidence, unless it were clearly insufficient. It is obvious that the effect of the declarations is, in each case the same. In the case of Hubbard v. State, 10 Ark., 378, it was not essential that the evidence should show guilt beyond question, but only necessary that it should not appear actually insufficient. So in the case of Mayers v. State, 7 Ark., 174, it had been held that a new trial could not be granted here on the mere ivcight of evidence; and in Robinson v. State, a new trial was refused because there was no “ palpable injustice” in the verdict 7 Ark., 122. So also, in Spratt et al. v. Vaughn, 10 Ark., 474, this court refused a new trial where the verdict turned on the weight of conflicting evidence; and in Bivens v. State, it was held that a slight dissatisfaction with the verdict was not sufficient for reversal. [See 11 Ark., 455]. In Sparks v. Beavers, 11 Ark., 630, Mr. Justice Walker, delivering the opinion of the court said: “This court has repeatedly decided that it will not reverse the decision of the circuit court for refusing a new trial when the only ground presented was the mere weight of evidence, unless there is a total lack of evidence upon some point indispensably necessary to a recovery, or unless the verdict is clearly and palpably contrary to the iveight of evidence.”

■ There is another class of cases, in which there has been evidence of some facts, from which the jury has inferred other facts necessary to sustain the verdict, in which this court has granted a new trial on the grounds that the facts shown did not warrant the inference, and that therefore the evidence was insufficient. Of this nature are the eases of Wait v. White, 5 Ark, 640; and especially Pogue, use of Calvert, v. Joyner, 7 Ark., 462. These are not cases of conflict, but want of evidence. I have cited only the earlier cases, because in these the principles governing this court in such eases, have been announced, and an effort has been made to formulate them into rules. The eases have been followed in the subsequent decisions, to be found in almost every volume of the reports. Of course, no positive rules can be announced of strict and unvarying application, but the general policy of the court may be fairly understood from what has been said.

It will be seen, and in view of a very common misapprehension it is worth noting, that this court has never adopted the rule of refusing a new trial in all or any cases, where there has been any evidence whatever, however weak, to support the verdict — what is called a scintilla of evidence. The following more rational rules seem to result from all the decisions:

1. Where there has been a conflict of evidence a new trial will not be granted here, merely because the preponderance of evidence, in the mind of the court, may'- seem to be against the verdict,. That deference will be accorded to the jury whose peculiar province it is to compare, sift, and weigh the evidence; and to the circuit judge, whose duty it is to supervise the trial, and grant a new one, if, in his opinion, the verdict has resulted from improper influence misconduct ot jurors, excitement, prejudice, hasty judgment, misapprehension of the law, or any other of the recognized causes for a new trial.

2. Butin all cases, even those of conflict, this court will direct a new trial, when, upon inspection of the evidence, the verdict is so clearly and palpably against the weight of it as to shock a sense of justice. The line lies between a mere preponderance within the bounds of a fair difference of opinion, and that gross preponderance which indicates an unreasoning passion or prejudice on the part of the jury, or misapprehension of the law, or disregard of the legitimate sphere of their action.

3. A new trial will be granted when there is no evidence at all to support the verdict, or where it fails in some material link. The jury will not be allowed to supply the missing link by inferences and presumptions from other facts — unless they be legitimate and fair presumptions, such as naturally follow.

We come now to the delicate and responsible duty of applying these rules to the case before us. There is little conflict of evidence concerning the occurrences at the time of the killing, and nothing to affect materially the credit of any witness. Indeed they agree in an exceptional manner.

The indictment was for murder, and the burden was on the state to prove the killing. This she did, and in so doing showed, substantially, the circumstances relied upon for justification. Her proof was supplemented on this point by witnesses for defendant, so that the jury had all the facts before them, without any room for presumptions. They were properly instructed, and declared, upon those facts, that the act was not one of necessary self-defense. The verdict upon the matter they had to consider, after the killing was divested of malice, amounted simply to a negation. They did not consider that Oliver killed Yerby under a reasonable apprehension of death, or great bodily harm to himself or his father, unless he did so.

We, as jurors do, must judge of men and their actions from our knowledge of human passions, human motives, and the ordinary conduct of men in given positions. We have to judge of those of a man who had unfortunately put himself out of the pale of society by subjecting himself to the general opinion, in the neighborhood, of living in adultery with a colored woman; one who had abandoned himself to drinking; a man, plainly of violent resentments and reckless of consequences — a baffled duelist, chafing under Oliver’s refusal to give him a meeting, and also under Oliver’s allusion to his woman. He is known to be bitterly hostile to the Olivers and attacks them in the manner described. Almost any man would have apprehended death to himself under such circumstances, and would have little hope of finally withdrawing from the conflict unharmed. Considering the character and motives of Yerby, it is so plain to us that the Olivers were in danger, and so probable that death would have resulted to one of them had Yerby not been killed, that it shocks our sense of justice, under the evidence presented, to deny him the benefit of self-defense. We think the verdict plainly and palpably contrary to the weight of evidence, and that this case falls legitimately within the exception to the rule against disturbing verdicts.

We have intentionally refrained from any more comment on the evidence than this opinion required. It must come again before another jury, to be all considered de novo, with such other evidence as may be adduced.

Reverse and remand,with directions to grant a new trial, on the charge of manslaughter alone.


text:
    Denton et al. vs. Roddy.
    1. Evidence : Decree.
    The certified copy of a decree alone, is sufiicicnt evidence that such a decree has been made.
    2. Decree : By consent of unauthorized attorney, not void.

    Though an attorney appears for a party to a suit without his authority, and consents to a decree, it is only voidable for fraud, and can not be collaterally attacked.
    APPEAL from Woodruff Circuit Court in Chancery,
    lion. J. N. Oypert, Circuit Judge.

      Goody, for appellants.

      Turner, contra.

   Eakin, J.

On the thirteenth of May, 1844, a tract of land in Jackson (now in Woodruff) county, owned and occupied by Elias B. Roddy, a married man, was sold under execution against him from the circuit court, in favor of Bennett, Morrill & Co., and purchased, at said sale, by William E. Denton, at a price much below its actual value, or the amount of the execution. The sheriff’s deed was duly executed.

The plaintiffs in that case, charging that said Denton was their attorney, and had taken the lands to secure the full payment of their judgment, and had died, filed a bill in the Jackson circuit court, on the tenth of July, 1849, against said Roddy, and the widow, executors and heirs of Denton, to subject the lands to the payment of their debt, in accordance with, the trust. Roddy filed a cross-bill in that case and died. The suit ivas revived against his administrator, widow and heirs, who came in and adopted the cross-bill of Roddy. His widow (the appellee in this cause, and a party in that) also filed her separate cross-bill against all the other parties, claiming dower.

At the May term, 1860, of said court, a decree was made sustaining the lien of complainants to the full amount of their judgment at law, and dismissing the cross-bill of the representatives and heirs of Roddy for want of equity. The dower of the widow was allowed upon her separate cross-bill, and commissioners were appointed to assign it. They reported at the December term, 1860, but their report met with exceptions from the Denton heirs, which were sustained. The cause was afterwards continued, from term to term, without further action upon the matter of dower, until the April term? 1869.

Meanwhile, Roddy, and his wife after his death, remained in the possession of the lands, enjoying the full use thereof, until about the first of January, 1867, after which, until the occurrences hereinafter set forth, she occupied by tenants. In March, 1868, the lands were sold for the taxes of 1867, and bought by R. W. Martin, who obtained a certificate of purchase, and on the twenty-third day of March, 1869, assigned it, for valuable consideration, to the heirs of William E. Denton.

This had been procured by Franklin D. Denton, the executor, and one of the heirs of William F., who had come from-Batesville to Augusta upon affairs of the estate of his father. He found said doweress, Martha Roddy, preparing to go, with a married- daughter, to live in Texas, and selling off her personal property to obtain money for the purpose. He demanded of her rents, for two-thirds of the place since her husband’s death, claiming that to be due, and estimating the amount, together with some taxes he had paid, at $1,500. She expressed herself utterly unable to pay that amount. He insisted that she should do so, or release any further interest in the lands, which he would take in satisfaction of the debt. She declined, and he became angry, and threatened if she did not comply by a certain hour of the day, at which he meant to start on his-return to Batesville, he would sue her, and attach her personal property, and her interest in the dower, as well. She became alarmed and distressed. She was satisfied that he would execute the threat. Her heart was set upon going” to live in Texas with her daughter, and the course threatened would render it impossible. She yielded, and executed the release.

At the succeeding term of the Jackson circuit court, this release was brought in; and, it being shown further that the heirs of Denton had paid the whole judgment of Bennett, Morrill & Co., and the parties to the original and cross-bills appearing by their solicitors, a final decree was made, reciting that said Martha had, in due form of law, since the last continuance, conveyed all her interest to the heirs of William F. Denton, and qrúeting their title and possession. And so the matter rested.

More than six years afterwards, on the seventh of July, 1875, Martha Roddy filed this bill in Woodruff county (to which the territory including the lands had been transferred) against the Denton heirs, renewing the claim of dower, and basing her equity upon her ignorance of her rights at the time she executed the release, and the conduct of the executor, F. D. Denton, in obtaining it. The charge-amounts, in effect, to this, that his manner was harsh, overbearing and unkind ; that her happiness and comfort depended on going with her daughter; that she executed the instrument under a sort of moral duress ; and that she had only recently discovered her rights in the matter, with regard to lier liability for rents. She makes no allusion to the former suit or decree, aud prays that her release be canceled, that her dower be assigned, and that she have mesne profits.

Defendants deny fraud or oppression in obtaining the release: set up the decree in the former ease as res judicata; and rely, also, upon the tax title and the statute of limitations.

Upon the hearing, complainant sought to avoid the effect of the decree of the Jackson circuit court, on the ground of fraud in obtaining it, and want of jurisdiction.

The chancellor gave the relief asked as to dower, and ordered an account of rents and profits since the possession of the Denton heirs — giving complainant a decree for one-third, after deducting taxes and improvements. Defendants appealed.

The first question presented by the record, regards the jurisdiction of the Jackson circuit court to render the decree of April, 1869, quieting the title of the*Denton heirs, against the creditors and widow of Elias B. Roddy.

Enough appears from the pleadings, evidence and exhibits, to show that the parties to this bill were all parties to that suit.

The certified copy of the decree alone was sufficient evidence that such a decree had been made; and by its recitals and direct effect, it .showed conclusively that all her right of dower, the object of this suit, had been vested in the Denton heirs, in a manner to bind her, whilst it remained in force. There were, also, certified copies of all the original papers in the case, showiug the pleadings and subject-matter in controversy.

Although, in her testimony, the complainant, Mrs. Roddy, says her attorney had no authority to appear for her, and consent to the decree, yet, if that were true, it would only make it voidable for fraud, and it could not be attacked collaterally. Her bill did not allude to it at all, nor, when pleaded by defendants, did she seek to amend her bill by proper averments to attack it for fraud. If the court had no jurisdiction, the decree is absolutely nothing, and no-proceedings are necessary to avoid it. It binds nobody. Was it void, or valid, until reversed or annulled?

The county of Woodruff, composed of portions of Jackson and St. Erancis counties, was established by a valid act of the legislature of Arkansas, approved November 28, 1862. The lands in controversy, upon which Mrs. Roddy and her children, the heirs of said Elias, then resided, were-in the portion of Jackson transferred to Woodruff.

The act, which is not in print, provided, in section two, “ That it shall be the duty of plaintiffs in all civil cases, and of the clerk of the circuit court of the county hereby established, in all criminal cases, to procure from the clerks of the circuit courts of the counties of St. Erancis and Jackson a transcript from the records of their respective counties of all suits, both civil and criminal, pending against any person or persons residing within the county hereby established; also, the depositions and other papers on file, relating to any of said cases, so pending in any of said counties, on or before the first day of the circuit court, at the first term thereof, of the county of Woodruff, which transcript, depositions, and papers, so filed, shall be taken and considered as records of the circuit court of the county of Woodruff", and be proceeded in as though said suit or suits had originated in said county of Woodruff.”

By section five of the act it was provided, “ That it shall be the duty of the clerk of the county of Woodruff, immediately after his election, to give notice, in writing, under the seal of his office, if there be any seal, if not, under his private seal, to the clerks and sheriffs of the counties of Jackson and St. Erancis, of his election; also, of the election of sheriff* of said county of Woodruff; whereupon it shall be the duty of the clerks of the different counties oí Jackson and St. Erancis, upon the application of the plaintiff or plaintiffs, in any case or cases, which may be pending in any of said courts, who reside in the county of Woodruff', to make out a true and perfect transcript from the record of all such matters and things as pertain to any of the said cases, and to certify the same to be true and perfect, and to attach the seal of his office thereto.'-’ * * * * 4: And to envelop the transcript in each case, together with the papers thereto belonging; to seal them up, and direct it to the clerk of the county of Woodruff.”

These are all the sections of the act bearing upon the question before ns. It will be observed that neither of them have any reference to the location of the real estate in controversy. ‘ The transfer of jurisdiction was made to depend upon residence. The policy of the act wTas to compel plaintiff's, having suits pending against citizens residing in the territory composing the new county, to transfer their cases there, so that the defendants might have the advantage of litigating nearer home, and at their own county seat. A like advantage, at their option, was given to plaintiff's residing within the new county-, having suits pending against defendants residing elsewhere. The policy of the last provision is not so obvious, unless it were directed to encouraging business in the new county to give it a favorable start.

There is nothing imposing upon the courts of Jackson and St. Erancis counties the duty of ascertaining, upon their own motion, the residence of litigants. These things were matters in pais, of which a court could not take judicial cognizance, as it might of the boundaries of counties, and locations of land described by government surveys. During the progress of suits, residences frequently change. Unless something should be done to bring the fact of residence before the courts, it was not anticipated that the jurisdiction of the court should be lost over all cases against defendants resident in the new county of Woodruff. That would lead to such confusion and uncertainty of rights as to preclude any such construction of the act. It is sufficient that defendants residing in the new county were given the right, upon proper showing and motion, to insist upon the transfer, and that plaintiffs residing therein might have the option.

When the decree, in the case of Bennett, Morrill & Co. v. The Heirs of Denton—the heirs of Roddy and his widow — was pronounced, she was, as to them, defendant. The court had been advised that, in 1855, she was an occupant of the lands, but could not judicially know her to be a resident upon them, or anywhere else in Woodruff county. As complainant in the cross-bill against the Dentons, she made no motion to transfer the cause. It is clear that the Jackson circuit court retained jurisdiction, and that the decree of 1869 remains binding until reversed or annulled by direct proceedings in chancery.

This disposes of the case. It is unnecessary and improper in anticipation to dispose of the other questions affecting the merits. If the complainant can successfully attack the decree upon any ground recognized in equity, she would have the right to do so in the Woodruff court, as incidental to, and connected with, the principal end of her bill, to-wit: to bo endowed of lands in Woodruff county The jurisdiction of the court for that purpose will draw to it the jurisdiction to remove the impediment of a fraudulent decree of another tribunal. Eraud is not imputable to the courts, but to actors in them, and there is neither lack of comity nor contravention of policy in one court removing from its road to equitable relief, an impediment created by the fraud of the parties in another tribunal.

But the fraud should be directly charged and put in issue,' and proved under the issue, and the relief should be in answer to a specific and direct prayer for the purpose. The general prayer will not cover relief as to matters which can not be collaterally considered, however plainly made out in evidence.

Reverse the decree, and remand the cause, with directions to allow the complainant, if so advised, to amend the bill, and if she should decline, to dismiss the same at her cost. She will pay the costs of this appeal. The whole costs of the court below will be adjusted by the chancellor, if the suit progresses.


author: English, C. J.

text:
    Ford vs. The State.
    1. Transcript in Criminal Case: Must show impanneling of grand:jury, etc.

    The entries showing the impanneling of the grand jury and their return of the indictment into court, are parts of the record in every criminal case brought to this court; and the omission of the circuit clerics to include them in the transcripts after the publication of this opinion, will be treated as contempt.
    2. Criminal Practice : Insufficient verdict.

    Upon the return into court of a verdict of “ guilty as charged in the indictment,” which charges murder in the first degree, the court should order the jury to retire and return a verdict in proper form; but if instead, anew trial is granted, such verdict is no bar to a trial and conviction of the defendant for murder in the first degree.

      3. Instructions:
    There is no error in refusing an instruction which is sufficiently embraced in other instructions given by the court.
    4. Criminal Evidence : Confessions.

    The confessions of a defendant should be cautiously received, but when deliberately and voluntarily made, they are among the most effectual proofs in the law.
    5. Same: Testimony of other crimes than the one alleged.

    When a man is charged with one crime it is not competent to prove that ho has committed others; but a witness of a conspiracy may state the whole plan or purpose of the conspirators to rob several parties, though it does not appear that they executed their plan excepl as to the one for the murder of whom the defendant is indicted.
    6. Argument ov Counsel : When subject to review in supreme court.

    The subjects and range, as well as the length, of the arguments of counsel, must necessarily be left to the sound discretion of the presiding judge; and, unless grossly abused to the prejudice of a party, it is not the subject of review in the supreme court.

      1. Witness : Defendant in criminal ease, incompetent.

    A defendant in a criminal case can not testify or make a statement to the ■jury contradictory of the evidence.
    APPEAL from Crittenden Circuit Court.
    Hon. L. L. Mack, Circuit Judge.
    Henderson, Attorney General, for the State.
   English, C. J.

When the transcript in this case was presented to one of the judges of this court for the allowance of-an appeal, though there was attached to it the certificate of the clerk of the court below, that it was a full, true and complete transcript of the record, etc.; yet it contained no entry shoyring the impanneling of the grand jury, nor any entry by which it was made to appear that the indictment was returned in1o court by the grand jury.

In. favor of human life, an appeal was allowed, and in furtherance of public justice, in accordance with the practice of the court, a certiorari was awarded, upon which the clerk has returned a transcript of the entries which were wanting in the original transcript.

It seems difficult of late to get the clerks to understand that the entry showing the impanneling of the grand jury is a part of the record in every criminal ease brought to this court on appeal or writ of error, and should be included in the transcript; and also the record entry showing that the indictment was returned into court by the grand jury.

To cure these omissions, the Attorney General or the court has had to order writs of certiorari in a number of cases, at the present and former tei’ms; and the failure of clerks to discharge a duty, which they ought to understand and must learn, has retarded in this court the administration of public justice.

' Supposing that the omissions were not willful on the part of delinquent clerks, we have not heretofore thought proper to order rules for contempt against them, but will feel compelled to do so, if such omissions occur after the publication of this opinion.

It now appears that on the sixteenth of December, 1879, Cal. Hughey, John Potter, L. L. Eord and Hiram Jeffrey, were indicted in the circuit court of Crittenden county, for murdering John Broadway, by shooting him with a pistol, on the twenty-sixth of November of that year;'the indictment charging the offense in the usual form, as murder in the first degree.

Potter and Foi’d were arraigned, tried on the plea of not guilty, and the following verdict was returned : “We, the

jury, find the defendants, John Potter and L. L.Eord, guilty, as charged in the indictment.” Signed by the foreman.

They moved for a new trial on a number of grounds, and among them that the verdict was contrary to law.

The court sustained the motion, and granted a new trial on the ground that the verdict did not fix the degree of murder of which the defendants were found guilty.

A nol. pros, was entered as to Potter, and he was discharged. Ford was again put on trial, and the jury found him guilty of murder in the first degree, as charged in the indictment. He moved for a new trial, which the court refused, and he took a bill of exceptions; was sentenced to be executed on the twenty-seventh of February, 1880, and prayed an appeal, which, as above shown, was allowed by one of the judges of this court.

I. The first verdict was no bar to a trial and conviction of appellant for murder in the first degree. Allen v. State, 26 Ark., 333.

"When the first verdict was announced, however, being insufficient, the court, before discharging the jury, should have ordered them to retire, and return a verdict in proper form. Gantt’s Dig., sec. 1957; Thompson v. State, 27 Ark., 328; Levells v. State, 32 Ark., 585.

But that was not done, and, hence, the verdict was set aside and a new trial ordered.

II. It appears from the evidence set out in the bill of exceptions, that John Broadway lived near the Mississippi river, in Crittenden county. About dark of the evening of the twenty-sixth of October, 1879, four men armed with pistols and guns, and masked, went to his house for the purpose, it seems, of robbing him of money. His wife and step son. William Daniels, were in the house with him. The leader, or “captain,” of the masked men, as the others called him, jumped on to the porch, and exclaimed, with an oath, “Throw" up your hands! We wrant money!” or' some such words. Broadway sprang up and took hold of a chair, and the leader shot and killed him. Turn or three of the men then went through the house, but what money they obtained does not appear. The four men then took "William Daniels to the woods, robbed'him of some money he had, tied him to a sapling with a fishing line, and left him there.

John Potter, who was made a witness for the state, identified the four masked men to be Hiram Jeffrey, the leader, Oal. Hughey (or Hewey, as. it is spelled in the bill of exceptions), appellant, Eord, and himself.

Some expressions of Eord, and circumstances, were in evidence conducing to prove that he was one of the four men.

There was no want of evidence to convict appellant, and our sense of justice is by no means shocked by the verdict.

Hi. It was proven that on the next morning after Broadway was murdered, seven men crossed the river in search of appellant, and found him in a cotton pen in Tennessee. Several of them testified that he said “it was a damned cold morning to call a fellow up out of his bed.” One of them replied: “ Yes, and a damned cold murder was committed on the other side of the river last night.” To which appellant responded: “Did that damned fellow puke on me?” The word “puke” was perhaps intended for peach.

One of the arresting party testified that when appellant rernarked “it was a damned cold morning,” etc., he asked: “ How many have you ail got ?” And witness replied: “ Three, with Mr. Potter.”

The-same witness testified that when Potter was being examined before the committing magistrate, appellant said to him: “Do you know that I could present the bullets you wanted to kill John Broadway with?” Potter replied that he did not think he could do it.

Appellant’s counsel moved to exclude the above expressions made by him, as incompetent and irrelevant, and the •court overruled the motion.

The witnesses proved that the expressions objected to, were voluntarily made by appellant. The court treated them as in the nature of confessions, and they were competent to go to the jury for what they were worth. Meyer v. State, 19 Ark., 156; 14 ib., 556.

IY. A witness also testified that, at the magistrate’s trial, Hewey said to appellant and Jeffrey: “Boys, I am out of this, and, if Potter don’t turn state’s evidence, we are all right.” To which, it does not appear that appellant made any reply.

Counsel for appellant moved to exclude this statement oi the witness as incompetent and irrelevant, ütnd the court overruled the motion.

The silence of appellant when Hewey, who was implicated with him in the crime, made the above remarks to him and Jeffrey, who was also implicated, was worth but little as a tacit admission, and such admissions should be received with great caution. We can not say, howrever, that the court erred in admitting it as competent for what it was worth. If appellant had felt that he was innocent of any participation in the crime, it would, perhaps, have been natural for him to have made some response to the remarks of Hewey indicating it. See, as to character and weight of such admissions, 1 Greenleaf Evidence, sec. 199; Burrill on Circumstantial Evidence, 48.

V. Among others, appellant moved the followfing instruction :

“3. The jury will place little reliance on the testimony of John Potter, the accomplice, and should not convict Ihe defendant on his evidence, unless the same be strongly corroborated by other evidence material in this case.”

This instruction the court refused, but, before it was asked, the court had given nine instructions, which were not objected to by appellant, and which very fairly submitted the case to the jury upon all of the evidence, and among-them the following, relating to the credit to be given to the testimony of an accomplice:

“ á. An accomplice is a competent witness against his co-defendants after he has been nol. grossed and discharged. But the jury should weigh his,evidence with great caution, tand should not find the defendant guilty upon his evidence unless he be corroborated, as to all material matters, by other unimpeached witnesses, or facts and circumstances proven in the cause. ■

“ 5. But if, upon comparing his evidence with the whole evidence in the cause, they find his testimony corroborated by other witnesses, and facts in proof as to all matters material to the charge, so the jury can say, upon their oath as men, we verily believe the statements to be true, and every matter material to the issue, and their consciences approve such conclusions, they should believe and act upon his statements, relying on them as true.

“ 6. Unless the jury find, from the evidence, that John Potter is corroborated in every material point, and that every material allegation in the indictment has been proved by him, with such corroboration, or some other witnesses, they should find the defendant not guilty.”

These instructions, unobjected to, sufficiently covered the matter embraced in the fourth instruction moved for appellant, and refused by the court. It is needless to multiply and repeat instructions announcing, substantially, the same proposition of law.

VI. The court refused the following instruction, moved by appellant:

“ 3. The confessions of defendant should be received with great caution, and carefully weighed, and if the evidence against the defendant consists of his confessions, unsupported by other evidence, the jury will find the defendant not guilty.”

True, the confessions of defendant should be cautiously received, but when deliberately and voluntarily made, they are among the most effectual proofs in the law. 1 Greenleaf Ev., secs. 214, 215.

In this case, the confessions of the defendant were but a small part of the evidence, and were not unsupported by other evidence.

When Broadway was murdered, his wife and step-son, William Daniels, were present, and proved, on the trial as witnesses, all of the material allegations of the indictment, except that they were unable to identify appellant as one of the masked men who perpetrated the horrid crime. He was identified by the direct testimony of Potter, which appears consistent, and was corroborated by circumstances and other evidence.

As framed-, and upon the evidence and after the court had fully and fairly charged the jury upon the whole case, the third instruction asked for appellant, was properly refused — at least, we do not see that he could have been prejudiced by its refusal.

VII. The court also refused the following instruction, which, it seems, was moved for appellant during the argument, and’ in consequence of remarks made to the jury by the prosecuting attorney:

“ 5. The jury will disregard and exclude from their consideration any statement made by John Potter, a co-conspirator in the alleged crime, which tends to criminate the defendant, L. L. Eord, in other crimes contemplated by the conspirators; such statements are not evidence in this ease.”

The portion of Potter’s testimony, probably, referred to in this instruction, is as follows :

“ The plan was formed at ITewey’s boat, just before dinner. Ford was not present on the boat. Jeffrey, Hewey and another man said they were going over to plunder Broadway, Clarke, and James’ store, and wanted Ford and myself to go with them. They offered Ford a lot of clothing and twenty five dollars in money. The offer was made that evening on the island to Ford. We went across that evening in a skiff, and went on down to a bluff bank about one hundred yards from the house. They then put some concerns on their faces. I had one made out of cloth over my face. Nothing was said. Ford had on a mask at Broadway’s house, and had, also, a gun.”

In a previous portion of his testimony he had stated what was -done at the house, and how Broadway.was killed.

When a man is charged with one crime, it is not competent to prove that he has committed others. Ford and his co-conspirators were charged with murdering Broadway. It was proved that he was killed in an attempt by the conspirators, to commit robbery, which made the killing murder in the first degree. And all present, aiding and abetting, were principals. Gantt’s Dig., secs. 1253, 1238. It was competent for the witness, Potter, to state the whole plan, or purpose, of the conspirators — to plunder Broadway, Clarke and James’ store — though it does not appear that they e^euted their plan or purpose, except as to Broadway.

VIII. The bill of exception states that “ the attorney for the state, in his opening argument to the jury, dwelt with great stress and vehemence on the evidence elicited from witness Potter, that on the night of the killing of John Broadway the conspirators contemplated robbing Clarke and James’ store ; that Clarke and James were the moneyed men of the county; and, if such crimes were unpunished, any of us would be liable, at any time, to be robbed and murdered by that gang.”

“ To which line of argument, in dwelling on crimes contemplated by the conspirators, other than the one under investigation, defendant’s counsel objected, and moved the court to restrain the attorney for the state;” but the court permitted him to proceed, etc.

Counsel, on both sides, in their zeal for their clients, or causes, sometimes overstep the bounds of prudence and fairness in their arguments to juries.

The remarks objected to were made in the opening address of the attorney for the state, and the able counsel for the prisoner (Adams, Erierson and Whitsitt) had the opportunity to reply. It may be that, if we had before us the full argument on both sides, instead of a fragment of the opening speech of the prosecuting attorney, it might be seen that counsel for the defense waudered in as wide lines as the attorney for the state.

Be this as it may, the subjects and range, as well as the length, of the argument of counsel, mast necessarily be left to the sound discretion of the presiding judge. And, unless grossly abused to the prejudice of a party, is not the subject of review here. Dobbins et al. vs. Oswalt, ex., 20 Ark., 619.

IX. It appears from the bill of exceptions that after the evidence was closed, and before the argument commenced, “ the counsel for defendant asked the court to allow the defendant to make a statement to the jury.” The court stated that it would allow defendant to make an argument before the jury, on the evidence, but would not allow him to make any statements contradicting the evidence that had been introduced. To which ruling, defendant excepted.

In criminal trials, the accused has a right “to be heard by himself and counsel.” Sec. 10, Declaration of Rights.

By the common law, the accused can not be a witness for himself on the trial, and we have no statute changing the rule.

The court offered appellant the privilege of making an argument before the jury on the evidence. This was his constitutional right. But the court announced that it would not permit him to make any statement contradicting the evidence. There was no error in this. The court may well deny counsel the right to make statements contradicting the evidence, though they may discuss the probable truth, consistency, or falsity of evidence.

Upon a careful examination of the whole record, we find no error of law to the prejudice of appellant, for which the judgment should be reversed, and it must be affirmed.


text:
    Shepherd vs. The State.
    1. New Trial: Surprise. Discretion of court.

    A motion for new trial on the ground of surprise is addressed to the sound discretion of the circuit court, whose judgment upon it will not he overruled by this court unless clearly wrong.
    ERROR to White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      House, for plaintiff in error.

      Henderson, Attorney General, contra.

   Harrison, J.

The plaintiff in error was indicted for an assault and battery upon one Brain Edwards, and was convicted and fined ten dollars.

He moved for a new trial upon the grounds that (1) the court excluded from the jury competent and relative evidence offered by him; (2) he was surprised by the evidence of the state’s witness, Bruin Edwards; and (3) the verdict was against the evidence — which motion was overruled.

B'ruin Edwards testified for the state that he was, on the evening of December 24, 1878, at the academy in the town of Judsonia, and that whilst there he was arrested and put in the custody of two men, one of whom was Horace Turner — the other he did not know — who took hold of him immediately in front of the academy, and led him, one walking on each side of him, to the guard-house, about a quarter of a mile from the academy. That after his arrest, and just before or after he passed through the academy inclosure, which was some thirty or forty feet from the academy, he was struck a severe blow on the back part of the head, which caused the blood to flow, and that when he reached the guard-house, he asked who it was that struck him after he was arrested, and the defendant answered: “I am the man that did it.”

Upon cross-examination, he said he was arrested outside of the academy, but had just before been in it; and whilst standing in the aisle, he was seized by the defendant around the arms and waist, and a crowd rushing up to them, eight or ten persons — himself among them — fell out of the door.

He was then asked what he was doing in the academy, and what was going on in it when the defendant seized him, and to state all that occurred in connection with the defendant’s conduct in throwing his arms around him. But upon objection by the state’s attorney, the court refused to allow him to answer the question, and so to state.

The state then proved by two other witnesses that they heard the defendant tell Edwards at the guard-house, when he asked who struck him, that he did.

The defendant then called 0. 0. Shepherd, who testified that Edwards, as soon as he got up after falling out of the door, commenced cutting at those around him, and he cut the defendant slightly on the wrist, and the town marshal severely about the hip. That he was immediately arrested and taken to the guard-house. The witness followed, starting after them at about fifteen or twenty steps outside the inclosure, and keeping three or four steps behind, and that no assault- was made upon him whilst he was behind them. That.the two men who took him to the guard-house were Horace Turner and Mitchell Riley.

J. C. "White, another witness for the defendant, testified that when Edwards was taken to the guard-house, he walked on just behind up to town, and that he was struck by no one whilst he was along.

Dr. J. S. Eastland also testified for the defendant — that he saw the defendant when he caught hold of Edwards in the academy; and that after falling down the steps in the scuffle which ensued, Edwards sprang up and commenced cutting right and left with his knife, and cut the defendant on the wrist, and stabbed the marshal severely in the groin. That he went along when Edwards was taken to the guard-house until he got in town, walking about thirty feet to the left of him, and he did not think any one could have struck him wfithout his seeing it, and was satisfied he was not struck by auy one after his arrest.

The defendant offered to prove by these and other witnesses — but which the court upon objection by the attorney for the state would not permit him to do — that Edwards came drunk into the academy where there were a great many persons assembled, many of them women and children, it being a Christmas-tree occasion, and was cursing and swearing, and so loud as to be heard all over the house, to the annoyance of the persons in it; that the town marshal went up to him and politely requested him to be quiet, but when he turned away from him he began talking and cursing very loud again, and the marshal again went .to him, and in a gentle manner put his hand upon his shoulder and -walked down the aide with him to near the door, and pointing out a seat to him asked him to take it and,be quiet; and as the marshal then turned a little from him, Edwards took his knife from his pocket, and opened it in a threatening manner and as if he was going to cut the marshal, when the defendant sprang forward and caught him around the arms and waist.

The evidence rejected by the court was irrelevant to the issue, and was properly excluded from the jury. If admitted, it would not have tended to disprove the charge or mitigate the punishment.

The defendant, in support of his motion for a new trial, swore that he was surprised by the testimony of Edwards. That he always supposed‘he was indicted for catching hold of Edwards in the academy, and did not know until he heard his testimony, that he accused him of striking him after his arrest; and that he would prove Toy Horace Turner and Mitchell Riley, who took him to the guardhouse, that he did not strike him; but that not supposing Edwards would testify as he did, he did not have them summoned. And he filed the affidavit of Turner and Riley, that Edwards was not struck by him or any one after his arrest.

A motion for a new trial on the ground of surprise is addressed to the sound discretion of the court, whose judgment upon it this court will not overrule unless it be clearly wrong. Nelson v. Waters, 18 Ark., 574; Cocker v. The State, 20 Ark., 62; Hill on New Trials, 379.

The discretion of the court in this case was soundly exercised, for it-was not shown that the testimony of Turner and Riley might not have been had at the trial, though not summoned — and for anything appearing to the contrary, they may have been present or conveniently near.

There can be no question as to the sufficiency of the evidence.

The judgment is affirmed.