author: Harrison, J. Gregg, J.,

text:
    Peterson v. Gresham.
    Exceptions. Unless the point is saved by an exception, this court can not review it.

      Evidence — objection. It is not necessaa-y that evidence, to be relevant, should bear directly upon the issue. It is admissible if it tends to proye the issue.
    In an action of trover for converting cotton, testimony showing the mine of cotton at another place, in the same State, about the time of the alleged conversion, is admissible.
    Where part of the statement of a witness, the whole of which is objected to, is admissible, and the objection does not point out the inadmissible portion, the whole statement is properly admitted.

      Proof of the value of an article in gold is not admissible where the recovery must be had in legal tender.

    Receipt. A payment of money may bo proved by oral evidence, though a written receipt was given.
    Excessive damages. To warrant this court in setting aside a verdict for excessive damages, the damages must be so flagrantly excessive that the mind at once perceives that the verdict is grossly unjust.
    New trial por newly discovered evidence. • On a motion for a new trial, on the ground of newly discovered evidence, the moving party must prove to the satisfaction of the court that he has used due diligence.
    Instructions. Where the court, in a trover case, instructs the jury that if they “believe, from the evidence, that the cotton in controversy belonged to the plaintiff, and that the defendant got possession of it without authority from the owner, and converted it to his own use, or failed to deliver the cotton to xflaintiff on demand, they must And for the X>laintiff the value of the cotton at the time of the conversion, with six per cent, interest on the same, from the date of conversion;” and, also, “that, even if they should And, from the evidence, that the cotton in dispute belonged to the plaintiff, and that the defendant got it and disposed of it before the surrender, and had nothing to do with it after that time, they will assess' the damages at the value only of the cotton proven at the time it was taken &r\d disposed of, and not its value at any other time, even if the demand was subsequently made.” The law is correctly declared as to the time the damages should have relation to, and the irntruetiom are proper.

      Appeal from Union Circuit Court.

    Hon. John T. Bearden, Circuit Judge.
    Garland & Nash, and Oarluxon, tor appellants.

      The.general issue in trover puts in issue the plaintiff’s title as well as the conversion. Stone v. Waggoner, 8 Eng., (8 Ark.,) 206; 2 Green. Ev., s. 648; 2 Sand. El. $ Ev., 872 unii-887; 1. Chitty’s EL, 436; ,(5 Am. 'edit.;) 2 Sdwn. N. E, 1068, (2 Am. edit.,) Bnlwer’s K. E, 48; Eanley v. Rector, 10 Ark., 211.
    In'rebutting-title in plaintiff, defendant may prove title in a stranger. .Dates v. Reck, 8 Tenn., 330; Schehnerhorn v. Van Valkenbu.rg, 11 J. R., 529: Kenedy r. Strong, 14//;., 128; Rotan r. E"! etcher. 15 ib., 207.

      On principle, any evidence winch would show the plaintiff was not the owner, either special or general, according as alleged, would be admissible and material.
    In trover the plaintiff' waives the right to recover damages for the manner of taking. Bacon’s Abr. Trover, A., 3 ; Sedgwick on Damages, top p., 512; (3 revised ed.)

    The value at the time of conversion, -with interest, is the rule adopted by this court in Byburn v. Pryor, 14 Ark., 505. This rule,- either with or wffthout interest, is supported by the following authorities, viz: In England — v. Jones, 3 Gamp., 476; French v. Blunt, 7 Gar. $ Payne, 478; Cook v. Hartlc,8 ib., 568; Bead v. Fairbank,2A Eng. Law and Eq., 220. In New York — Kennedy v. Strong, 14 J. B., 128; Hallett v. Norton, ib., 273 ; Dillenbaxk v. Jerome, 7 Goto., 294. In Massachusetts — Kenedy- v. Whitwell, 4 Pick., 466; Sargent v. Franklin Ins. Go., 8 ib., 90 ; Greenfield Bank v. Leavitt, 17 ib., 1; Pearce v. Benjamin, 14 'ib., 356; Barry v. Bennet, 7 Metcalf, 354; Fowler k. Gilman,-13 ib.,%7- -
    In State v. Jennings, use, etc., (10 Ark., 451,) this court sáid arguendo: “ If the verdict should be found very decidedly against the weight of evidence, so much so as to leave no doubt but that an intelligent, unbiased mind would have decided differently, the decision of the circuit court refusing a new trial would have been reversed and a new trial ordered.”
    The grounds were sufficient. The admission of Robinson and Sims’ evidence, and the remark of the court refusing to exclude it, and the admission of Ingram’s evidence, on the part of appellee, against the law, could not do 'otherwise than surprise the appellant. Such evidence was not cumulative, for appellant offered none on that point, and would, in all probability ¡ change the verdict on a new' trial. Burris v. Wise, 2 Ark., 33; Bobins v. Fowler, ib., 133; Olmstead v. Hill, ib., 346; Bourland v. Skinner,ll ¿6., 671; Kirkpatrick v. Wolfe, 17 ArZ:.,100.
    John H. Askew, for appellee.
    There is no error in refusing to grant a new trial on account of excessive damages, as tlie jury had the right to assess the damages at the value of the property at the time of demand. Sedgwick on the Measure of Damages, (Bed.,) 505, top p.; 479, side page.

   Harrison, J.

This is an action of trover, in the Union circuit court, by William G. Gresham, against Frederick A. Peterson, for twelve bales of cotton. At the October term, 1867, the defendant appeared and pleaded the general issue, and at the April term, 1868, the case was tried by a jury, and a verdict returned for the plaintiff for $1,388^^ damages. The defendant moved for a new' trial upon the • following grounds: 1. That the court, at the previous term, refused to require the plaintiff to answer interrogatories exhibited against him by defendant for discovery. 2. That illegal evidence was admitted on the part of the plaintiff. 3. That legal evidence offered by the defendant. was excluded. 4. That the court misdirected the jury at the instance of the plaintiff. 5. That the damages were excessive. 6. That new evidence, material for the defendant, had been discovered since the trial. The court overruled the motion, and he excepted and appealed. No exfception was taken at the time to the refusal of the court to compel the discovery sought by the defendant, and the petition, and the action of the court upon it, constituted no part of the record before us. Omitting to except, the defendant acquiesced in the ruling of the court, and waived his right to object to it after-wards.

Upon the trial the defendant moved to exclude from the jury the evidence of P>. F. liobinson, for irrelevancy. His testimony was: “ That cotton in Camden, about the first to the tenth of June, 1865, wras worth thirty-seven and a half cents per pound, in greenbacks.” The conversion was proven to have been in Union county, in February or March, preceding.

It is an established rule, governing in the production of evidence, that “the evidence offered must correspond with the allegations, and be confined to the point in issue,” but it is not necessary that it should bear directly upon the issue.

“ It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although alone, it might not justify a verdict in accordance with it.” Green. Ev., sec. 510.

The fact here proven, is one from which an inference of the value of the cotton converted, at the time and place of conversion, may bo drawn.

“A presumption of fact is properly an inference of-that fact, from other facts that are known; it is an act of reasoning. In drawing an inference from facts proved, regard must always be had to the facility that appears to be afforded for explanation or contradiction. No person is to be required to explain or contradict until enough has been proved to -warrant a reasonable ■ conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, human reason can not do otherwise than adopt the conclusion to which the proof tends, if no explanation or contradiction is offered. A presumption then is a probable inference, which our common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability; and there are almost infinite shades, from the lightest probability to the highest moral certainty. Tf the circumstantial evidence be such as to afford a fair and reasonable presumption of the fact to bo tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue.” 1 Phillips on Evidence, 598.

The evidence offered was not to prove that the cottop was worth thirty-seven and a half cents per pound, but to ascertain and determine what its value was; and a fair and reasonable presumption of such value can be drawn from it, for, directed by common experience and knowledge of the ordinary fluctuations in the price of this staple production of our State, the conclusion is irresistible, that if it was worth so much three or four months later, it was worth, even in the remotest part of the State, at the time of conversion, five cents per pound, and the jury might draw any other that is more reasonable or likely. Enough then was proved to warrant a conclusion against the defendant, in the absence of explanation or contradiction. He also, for the same reason, moved to ex-dude the evidence of Hal. Sims. It was that cotton was worth in June, 1865, twenty-five cents in gold; and that he had sold some in that month for forty-eight cents. As the judgment could be for such money only as the plaintiff would have a right to demand in satisfaction of it, the price in gold, without any evidence, and there was none, as to the relative values of gold and legal tender notes or currency, affords no criterion for ascertaining the value of the cotton. ' If, then, we are to understand the witness as referring exclusively to the gold price, his evidence should have been excluded; but if that portion of it relating to the price for which he had sold some, should be construed to mean that he had sold at that price in currency, a question not necessary for us to decide, so mucli of it was relevant, and the defendant, not discriminating between that which was relevant and which was not, the entire statement was rightfully admitted.

But, though the whole were irrelevant, and should have been excluded, it could have had no influence upon the vei'dict to the defendant’s prejudice, a» eleax’ly appears by the amount of damages assessed; and, as there xvas sufficient competent evidence to establish the value, the coixrt very correctly refused to disturb it oxx aecouxxt of its admission. Weaver v. Caldwell, exr., 9 Ark., 339. Owen, as admr., v. Jones, 14 ib., 503. Sharp v. Johnson, 22 ib., 79. Creary v. Sprague, 12 Wend., 41. The defendant having proved by J. H. Ingram that the plaintiff1, during the war, sold thirty-six bales of cotton to the Confederate States, and attempted to establish, by him and other witnesses, that the cotton, which the controversy was about, was part of that, the plaintiff called the same witness, and proved by him that, after the surrender of the Confederate armies, he delivered to one Peter M. Brown thirty-six bales, which were carried to Trenton, La., and delivered to one Anderson, as the agent of one Lewis, a United States cotton, agent. Plaintiff' asked the witness if he saw, when the cotton was delivered to Brown, any person give him a receipt-for government cotton, and for what number of bales? The court permitted .the witness to answer the question, against the objection of the defendant, and he said Brown gave the plaintiff such a receipt for thirty-six bales.

The design of eliciting this evidence was, not to prove the contents.of the receipt, but that the same cotton the plaintiff sold the Confederate States, and which the witness had stated., had been left in his possession at the time of his purchase, was, after the war, turned over to the United States. “A payment of money, or an admission to that effect, may be proved by oral evidence, though a written receipt was given.” 1 Phil. on Ev., 586; Humphries v. McGraw, 5 Ark., 61; Vaugine, et al., v. Taylor, 18 Ark., 65.

The defendant, upon cross-examination of the witness, asked him if Anderson, after the cotton was delivered, did not load witness’ wagon, which conveyed the cotton, with groceries for Thomas J. .Bradley, of Eldorado, Ark., which question the court, upon objection of the plaintiff, would not permit him to answer.. The fact then attempted to be proven, had no connection whatever with the case, and was entirely irrelevant to the issue.

The instruction given for the.plaintiff, objected to, is as follows: “If the jury believe, from the-evidence, that the cotton in controversy belonged to the plaintiff, and that the defendant got possession of it without authority from the owner, and - converted it to his own use, or failed to deliver the cotton to plaintiff on demand, they must find for the plaintiff the value of the cotton at the time of the conversion, with six per cent.. interest on the same, from the date of conversion.” This in-. struct ion is unobjectionable, except that part in relation to demand. As there was no evidence tending to prove a demand, that portion is irrelevant; but, if not so absolutely abstract as might not mislead the jury, it was corrected, and its-influence on their minds removed, by an instruction given at the instance of the defendant, which we find in his bill of exceptions, as follows: “3. That, even if they should find from, rhe evidence that the cotton in dispute belonged to the plaintiff; and that the defendant got it and disposed of it before the surrender, and had nothing to do with it after that time, they will assess the damages at the value only of the cotton proven at rhe time it was taken and disposed of, and not its value at any other time, even if the demand was subsequently made.” The two instructions taken together, as they should be, correctly declare the law in respect to the time the damages should have relation to. Abraham v. Wilkins, 17 Ark., 292; Ingram v. Marshall, 23 Ark., 115; Wood v Wylds, 11 Ark., 754; Burton v. Merrick, 21 Ark., 357; McNeill v. Arnold, 22 Ark., 477.

"We have thus noticed all the objections, raised at the trial, to the evidence and instructions'-of the court, and find no error. That the damages were excessive, is the next objection. To warrant this court in reversing a judgment, on the ground of excessive damages, they must be so flagrantly excessive that the mind at once perceives that the verdict upon which it is founded is grossly unjust. According to the evidence of one of the witnesses, the weight of the bales wras five hundred pounds each, and, by an easy calculation, it is seen that the damages assessed do not exceed one-half what the same quantity of cotton was worth in Camden, three or four months before, with. interest from the time of conversion. There is therefore not the least ground for the objection that the damages are excessive.

The remaining cause assigned for a new trial was the discovery of new evidence. It is unnecessary to notice this newly discovered evidence, as the defendant simply alleges in his motion that he has used due'diligence in‘the preparation of his case, and in procuring evidence before the trial, but states no tacts or circumstances to show any diligence whatever.

Due diligence, or what constitutes it, is to be determined by the court, not by the party alleging it, and the facts and circumstances must be shown, that the court may decide whether it has been used or not. Burriss v. Wise and Hind, 2 Ark., 33; John Robins v. Absalom, Fowler, ib., 133.

Finding no error, the judgment of the court below is affirmed.

Gregg, J.,

dissenting, says;

W'e do not differ with the majority of the court on several of the assignments of error in this case. Our objections are based upon what wo conceive to be a just application of established rules of 1'aw. ■ .

The testimony tends to show bad faith, and, upon the whole cáse, the finding and judgment may not be unjust.

It may be considered settled, that he who sues in trover can not have exemplary damages or smart money, as in forcible trespass. The measure of damages is the value of the property at the time and place of conversion, and interest on such value, from that date until the judgment. See French v. Blunt, 7 Carr and Payne, 478; Kennedy v. Strong, 14 Johnson. 128; Hallet v. Novion, ib., 273; Dillenback v. Jerome, 7 Cow., 294; Kennedy v. Whitewell, 4 Pick., 466; Greenfield Bank v. Leorett, 17 Pick., 1, and 14 Pick., 356; Barry v. Burnett, 7 Met., 354, and 13 ib., 267; Hayden v. Bartlett, 35 Me., 203; White v. Webb, 15 Conn., 302; Carter v. Freeland, 17 Mo., 382; Helderbrand v. Brewer, 6 Texas, 45.

:In cases where defendants have wrongfully bold possession of property, and there was an increase in value after taking, and before the demand, suit or' actual conversion, it has been correctly ruled that the plaintiff was entitled to the highest market value during such time; but when the property was actually converted and passed beyond the possible reach of the plaintiff', then, in trover, its value and the interest is the fixed ■measure of damages.

The majority of the court ulo not differ with us as to the rule of law', hut in its application in this case.

This plaintiff proved by witness Staples, that, in January, 1862, he, the plaintiff, hauled twelve bales of cotton, weighing about 500 pounds'each, to Eldorado landing, in Union county, marked with plaintiff’s initials, and they remained there until the spring of 1863, when the plaintiff had them hauled back three miles to a house, where they remained until 1865, at which time the defendant claimed the cotton and had it re-hauled to the landing, and soon thereafter, in February or Niareh, 1865, and before the surrender, it was taken off by a boat.

After the sui’render, plaintiff called upon witness about the cotton, and witness called upon the defendant, who said he and Newton had bought the cotton, but there was a mistake and he would make it all right with the plaintiff’. Witness did not know* the value of cotton at the 'time it was taken and shipped; but he had heard of some selling at seven cents per pound, some at $20 and some at $37 per bale, in gold.

Newton testified that, after the surrender, the plaintiff called upon him, and they went to the defendant, who told plaintiff' he had got his twelve bales of cotton and he would pay him for it — w'ould make it all right. *

Plaintiff* then introduced B. F. Robinson, who was allowed to testify, over the defendant’s objections, that between the first and tenth of June, 1865, cotton, at Camden, w'as worth 37J cents per pound, in greenbacks; that he did not know what cotton was worth in February or March of that year.

Hal. Sims was then introduced and allowed to testify, also against the objections of the defendant, that in June, 1865, cotton wras worth twenty-five cents in gold ; that- he sold, some in that month for 48 cents. The plaintiff then closed his evidence, and the defendant moved the court to exclude the evidence of Robinson and Sims from the jury. The court overruled the motion and the defendant excented.

From the -inception to the close of the testimony in this case, there is not one particle of direct evidence as to the value of the cotton, either at the time or place of conversion, except Staples’ testimony that he heard of some being sold for gold, which the majority of this court say “ affords no criterion for ascertaining the value of the cotton, without proof of the relative value of gold and legal tender notes, and no such prool was made.” It may be said Eldorado landing, where the cotton was taken, and Camden, in which the value was proved, arc both in Arkansas, and not one hundred miles apart; yet they are not one — not the same place — and the proof of value at one point raises no presumption of an equal value at other-points ; nor is it the province of a jury, without evidence, to infer such value.

, It devolves. on him who first asserts the fact in court, tc bring evidence of the value of goods where taken. If he can not show their value on the exact ground where seized and converted, he can. show their value at some point more or less remote, and then show the relative situation of the two places, the cost of transportation, insurance, etc., and thus bring facts home to the jury, from which they can find the value at the place of conversion.

This conversion was in February or March; the value was proved iji June following. The conversion was before the close of the war — the value proved afterwards. To urge that the jury, without any proof as. to the fluctuations in trade, the means of presenting the cotton, the cost of storage, etc., could, from their own knowledge, infer or1 find the true value, is assuming what is not supported by authority.

"Whenever a plaintiff goes beyond the pale of the law, and selects his market, and chooses his own time’in which to prove value, and then fails to show by testimony facts demonstrating’ that such value did exist at the conversion, he fails in his case, and we can see no sufficient grounds to hold that this case does not come within the rule. If the plaintiff could pass over vital changes in commercial relations over three months’ time, and from one county to another, the same legal indulgence would allow him to go from one State to another, or from one month oryear to another; hence we are of opinion the court below did commit error in refusing to exclude the evidence of Robinson and Sims, when the plaintiff had closed his evidence, and introduced no proof as to the relative value of cotton in March and June, or at Eldorado landing and Camden.

We think the jury legally could not have found their verdict upon the evidence before them, and that that fact is apparent from their verdict. Had they found according to Robinson and Sims’ testimony, their verdict would have been largely over §2,000 ; and, as stated by the majority- of this court, they could not have found upon ¡Staples’ testimony, because he only spoke of hearsay relative worth of cotton and gold. This was all the evidence of value, and the.jury found $1,3,83^0-. Their verdict then must have rested upon their’ own personal opinions, arguments or concessions of counsel, or other -facts and circumstances not in evidence. So their verdict shows they did not find according to the evidence.

The jury are not to determine issues in court by their own opinions or knowledge of commerce and the value of merchandise. If such were the rule of law, all that could be required would be to prove the taking and give a description of the property, and from that the jury would make up a verdict. But the courts universally hold that, in such case, nothing more than nominal damages' could be given. A plaintiff must prove value, and the jury must find according to the evidence. With no proof to show its relevancy, we think it was'not competent for the court to submit to the jury the value proved at Camden so long subsequent to the conversion.

These conclusions have caused us to dissent from the majority of the court upon the application o'f this evidence.


source: Caselaw Access Project

author: Gregg, J. McClure, J.,

license: Public Domain

text:
    Kelley v. State.
    Civil rights bill — colored witnesses. Tlie Civil Rights Bill is constitutional.

    On the 25th of October, 1866, a colored man was a, competent witness against a white man in a criminal case.
    Criminal evidence — where Christian name is unknown. The allegation in an indictment that the Christian name of the defendant is to the grand jurors unknown is not a material one ; and it is sufficient to identify the defendant as the person whom the grand jurors intended to present.
    Right of secession. No State has the right to secede from the Union.
    ’ The judicial must follow the decision of the political department as to the political status of a State.
    The General Government is hound to secure to every State of the Union a republican form of government.
    The effect of the rebellion was to destroy the existing State Government. -

      .Error to .Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    E'arr & Vaughan, for plaintiff.
    The court below erred in permitting negroes to testify against the defendant, a white man. Digest of Arkansas, p. 1084. ■ '
    The Civil Rights Bill did not confer upon the negro the right to testify against the white man, generally, in the State courts. Civil Rights..Bill, see. 1.
    • If it was the intentiou of Congress to make the negro' a competent witness in the State courts, against the white man, the clause is unconstitutional. Kent’s Com., Vol. 1, p. 222, 236, 364 ; Caller v. Bull, 3 Dallas, 386; Hturges v. Crowenshield, 4 Wheal., 193 ; Campbell v. Morris, 3 Harris McHenry’s Hep., p. 554. . ' •

      If Congress had the power to make the negro a citizen of the United States, it does not follow that, ipso facto, he is a citizen of any State to which he may go. Abbott v. Baity, 6 Pick., p. 2. See, also, opinion of Judge Curtis, in the Dred Scott case, 19 Howard.

    The circuit court erród in refusing to give instructions asked for by defendant. The allegation in the indictment that the first or Christian name of the defendant was unknown was a material averment, traversed by the plea of not guilty, and should have been proven. Wharton’s Crim. Lav), vd. 1, 248 ; Cameron v. State, 13 Ark., 718.
    Jordan, Attorney General, for appellee.
    The act of Congress of April 9, 1866, (called the Civil Rights Bill,) declares who are citizens of the United‘States and their rights and liabilities.
    The statutes of this State restricting the colored person to giving evidence against persons of his own color, or in a case where the State is plaintiff and such person defendant, is repealed by such act. The law of Congress is the supreme law of the land. Art. 6, see. 2, Con. IT. S.

    The court did not err in refusing to give the instruction asked for by defendant on the ground that it was irrelevant; if relevant, it could only be applied to the allegation in the indictment that the first or Christian name of the party injured was to the grand jury unknown, and not to the defendant.
   Gregg, J.

At the October term, 1866, of the Pulaski, circuit court, the appellant, and one Phillips, were jointly indicted for robbery. The indictment charges that one “ Kelley, and one Phillips, whose Christian or first names are unknown to the grand jurors,” &e. On the 27th day of the same month, both the defendants, in person, and by attorney, appeared in the circuit court, and, upon the application of Phillips, his case was continued ; and the defendant, Kelley, had hearing of the indictment, and interposed his plea of “ not guilty ;” to which the State joined issue. A jury was impaneled, and after being sworn, &c., returned a verdict of “ guilty,” and assessed the appellant’s punishment at five years imprisonment; upon ■which verdict the court sentenced him to undergo imprisonment the time stated.

During the triql, the State offered to introduce as a witness Edward Armstead, a colored man, and the party alleged to be injured. The appellants objected to his being sworn, or giving evidence, upon the ground that he was a black man, of the African or negro race, and the appellant was a white man. The court overruled the objection, and allowed the colored man to be sworn and to testify against the appellant; to which he excepted. Other colored witnesses were allowed to testify against the appellant, over his objections, to which he likewise excepted.

The record states that “ all the material allegations of the indictment were proved, except the allegation that the Christian or first name of said Kelley was unknown to the grand jurors ; and as to that allegation the State introduced no evidence.” The appellant asked the court to instruct the jury that said allegation was a material one, and that it devolved upon the State to prove the same. The court refused to so charge the jury, and charged them “ that if the defendant, Kelley, was identified as the same person against whom the grand jurors found the indictment, it was sufficient;” to which ruling of the court the appellant excepted.

The appellant’s counsel here insist that the allegation, charging that Kelley’s Christian or first name was unknown, requires the same proof as an allegation charging that the Christian name of a person injured was unknown.

We hold the allegations quite different. The plea of not guilty .effectually denies an injury to a person unknown to the jury, and before the State can px’operly ask a conviction she must introduce proof of all the allegations denied by the plea, and that one charging the assault to have been made upon a person unknown is as descriptive and material as if it charged the assault to have been made upon A. B.; and, in either case, the State must show the assault to have been made upon the person described in her indictment; and when she alleges that he is a stranger, that he is unknown, she must prove that the injury was committed on such individual, or one unknown. Gabe v. State, 6 Ark., 540. When a defendant is brought into court by an untrue name, or without any name, and is -in person advised of the charges the public have brought against him, he is then selected out, designated from other men, as a guilty agent, and if ho does not prefer to answer such charges by the description given him, he can tender his true name, and by proper pleading, compel the State to carrry on her prosecution in his real name; hut if he elects to pass over these formal objections, and at once plead to the merits of- the action, he must defend upon the ground assumed, and can not go back and take advantage of any mistake in his name or misdescription of his person. 1 Arch. Cr. Pr. and Pl., 262, and note; 1 Chit. Cr. Law, 202; 1 Ray, (S. C.,) 378; 16 Mass., 146. There was no error in'the instructions given by the. court.

The remaining question is, “ whether, on the 25th day of October, 1866, a colored man, of the African race, was a competent witness against a white man charged with a crime against the public law’s of this State?”

The appellant’s counsel rely upon the statutes ' of the State, passed before the breaking out of the late war or the abolition of slavery, by which persons of the African or negro race; whether slave or free, were debarred from testifying before a court in any cause wherein a white person was interosted in the result of the suit. Gould’s Dig., chap. 181, see. 25. They insist that the law passed by the United States Congress, known as the Civil Nights Bill, is unconstitutional, and. not binding upon any State court, and that the rights of the colored man- as a witness, in court, are no greater than formerly, and in no way changed by his emancipation, or other recent acts affecting his relationship to the white people.

Counsel insist that one of the exclusive reserved rights of the State is to regulate all proceedings in her courts; to declare who shall be competent witnesses, &c.; that no act of the Convention or Legislature had conferred upon a colored man the right to testify against a white person; that Congress had no.constitutional power to do so, and therefore no law was in force under which the court could allow such privilege.

To some extent this inquiry involves the then existing relationship of our State to the General Government, and the authority and powers of the- Government under that relationship has been considered.

In reference to the powers and. obligation conferred upon the General Government, by the Constitution of the United States, we will refer to paragraph-2,'section 1, article 6, of that Constitution, which declares that, “that Constitution, and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” Section 4, article 4: “The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on the application of the Legislature, (or the Governor when the Legislature can not be convened,) against domestic violence.”

Sec. 8, art. 1: “Congress shall have power to levy and collect taxes, duties, c%c., and provide for the common defense'and general welfare of the United States; provide for calling forth the militia to execute 'the laws of the Union; suppress insurrections and repel invasions; to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”

Art. 10 of amendments of the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In paragraph 8, article 6, it is provided, “that all executive and judicial officers of the several States shall be bound by oath to support the Constitution of the United States.”

Thus the fundamental laws of the land require the judiciary of the several States to first obey that Constitution, and the laws of Congress, made in pursuance thereof; and hence our anxiety to ascertain whether the act in question is within the legislative powers of Congress; if so, its force is unquestionable.

We can not concede the right or power .of the people of any State to secede, or destroy all relationship between the State and General Government; they have not the power to withdraw the territory of a State from the Government, or the right or power to absolve their allegiance and obligations to that Government, or to prevent that Government from enforcing her laws within the limits of such State. Yet the people have the revolutionary force, the unauthorized power to set aside all State laws; to abolish all State courts; and to trample down the State Constitution and State Government; to place themselves in opposition to the authority and laws of the Federal Government, and. by a combined, general, and organized resistance, they may destroy the State Government, and commit treason and war against the United States. Thus, they can not destroy the rights of the Federal Government, .but may destroy their organized forms and political relations with the General Government; may destroy the State Government; may destroy all republican forms of government under their Constitution, and place themselves beyond the claim of Federal protection, and thereby necessarily invoke upon them the powers of the Federal Government, put in motion under the provisions in her Constitution, requiring her to suppress insurrections, guarantee to each State a republican form of government. Ac.

That Constitution gives to the United States authority to make all laws necessary and proper for carrying into execution all the general and specific powers granted to that government. Cinder these clauses of the Constitution it could not have been the design of its framers to confer such authority and rights upon the Federal Government'without intending the power to carry that authority into effect.

It certainly was not intended that the United States should have the right and authority to call out the militia,.'without also having the authority and power to enact all needful laws, to clothe, feed and equip them; to determine the requisite number for the emergency, and to direct their movements and operations when in the field. Tke power being granted, the means requisite to' enforce that power necessarily go "with it; as well as the right to determine when such power must be exerted, and the means necessary to carry it into effect; otherwise such provisions Avould be worse than nugatory. ■ The same view is taken of that clause obligating the General Government to guarantee to each State a republican fox-m of government. As the acquisition' of territory, the formation or recognition of new States, the raising 'of armies, levying and carrying on war, forming alliances, and making treaties of peace, and other kindred sxxbjects, are confided solely to the political and executive departments of the Government, Ave hold that the judiciary, ixx detex'mining an issue at law, havn nothing to do with the question as to the political status of any State or country, further than to ascertain and folloAV the decisioxxs of the political departments of the Government. Martin v. Mott, 12 Wheat., 28; Devina Pastora, 4 Wh., 52; ib., 497; Gelston v. Hoyt, 3 Wh., 323; United States v. Palmer, et al., 3 Wh., 610; Leather v. Borden, 7 Howard 1; Jones v. Scott, 5 Howard, 343; Miss. v. Johnson, 4 Wal., 475.

The proper political departments must decide whether or not a State has formed a republican State Governmexxt; or, if she ever had one so formed, Avhether or not she has abolished or destroyed it; and, if it is found that a republican State Gov-eminent does not exist in any State, it then becomes obliga-tory upon the Federal Government to secure one to such a-State; and when such necessity calls forth action at the hands of that Government, she must determine what action is necessary to reach the desired end — regulated of course by the general provisions of the Constitution, Such powers, in any department of government, are admitted to be great, and may be considered dangerous; but such power must be lodged somewhere. • / '

There can be no stable government without some authority and power to maintain its several parts, and in ours that power is in the people, and it is by them temporarily delegated to' chosen representatives, with so frequent recurring elections, that all administrative policy, not in harmony with the will of the people, can and will very soon be revolutionized; heneé no safer depository, it is believed, could be had for so great a necessary power. The existence of a nation requires this enlarged discretion, and it was certainly wise not to leave it with a remote department like the judiciary, but to keep it within the narrowest possible grasp of the people.

Now, will it be contended that, at the time the rebel forces were compelled to acknowledge the superiority of the Federal power, any government in harmony with - the Constitution of the United States existed in this State? It would seem not.

Some theorists insist that the former laws of the State were still the law ; that secession was void, and void acts can not affect valid laws, &c.; that the law existed, though no one recognized its being; that it was unknown but not destroyed; dormant but not dead, &c., &c. But the real question is, not whether the law was finally destroyed, but whether the State Government proper had been abolished, set aside or superseded? Government is an organized form of law, an established ■ form of law, the system of polity in a State; and if that organized system in a State is not republican in form, then no republican government.therein exists. 'When the Constitution that was framed under'that of the United States, and in harmony with it,'was set aside, the laws made under it changed, and other organizations and forms of law-, inconsistent with these laws and the Federal Constitution, substituted; when there was not a voice that would acknowledge the former law; not an individual to execute an office, from the highest to the lowest; not a spring to move any part of the machinery of a once government — who would say such was a government in being? Could such a state of things be called a government? Tt means nothing like government.

. By the will and wicked power of the people they rebelled. they attempted to throw off their allegiance to the United States; they destroyed the State Government which had been guaranteed this State, and made other organizations, set up other forms, instead thereof. The authority and power of the Federal Government set aside and destroyed these other organizations and forms; destroyed the pretended government; and whether or not the former laws were forever abolished, no government, in a constitutional sense, then existed. The' rebellion set aside and abolished the constitutional government, with all its varied machinery. Federal power and authority cut down and destroyed the pretended government that had been reared upon its ruins ; whether or not the law perished under these blighting influences of treason and war, it is too clear that the State had no Amice to call that laAv from its years of slumber; no power to again ni0Are the machinery so long neglected; no legislature to rcATive laAv; no'courts to construe and'apply it; no oxecuti\m to enforce it; no legal forms; no system of State policy; no government. LaAv and government are not synonymous, but the political departments should determine. The national Executive declared this State in rebellion ; he moved armies on the Htate to cut to pieces the poAvers. in possession of it, and to compel obedience to Federal mandates; and, it is declared by the most solemn acts of Federal legislation, that no republican State Government then existed in this State; that the status of the people and the State, in its then organized form, Avas changed — Avas that of an enemy— that of war. Time and again the political departments of the United States recognized this State as having no republican form of government claiming existence under the Federal Constitution, or allegiance to .that Government. And the political departments of the so-called Confederate States Government — the then organized power of the people of this State— recognized no such relationship; but declared the United States, and all the citizens of the loyal States, enemies, their property subject to confiscation, &c., &c.

The Convention of 1864, which framed the organic law of the provisional State Government, declared the action of the several departments of the State Government, under the Constitution of 1861, void and of no effect, and recognized a State Government existing from 1861 to 1864, but as revolutionary and without authority. The Convention of 1868, that framed the Constitution under which we are acting, did also declare the action of the Convention of 1861 null and void, and that all action of the State of Arkansas, under the authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial or military, was void; that no debt incurred under any department of that government shall ever lie obligatory, &e., only acdnowledging the existence of an organized power which was revolutionary and without authorty ; which ' was not a government, under the Constitution of the United States, hut opposed thereto. We then have the political departments of all the governments, the revolutionary, the provisional, the State, and the national, concurring in the declaration that the government once guaranteed to the State by the United States, had been displaced, and did not then exist. Hence it became the duty, under the obligations im- ] >osed upon the Federal Government by her Constitution, to take all such action as was necessary to break down the revolutionary powers then in control of the State, and to restore to her, or form for her, a government republican in form ; and it must, from the very necessity of the case, bo left to the Federal Government, and to the department cognizable of such affairs, to determine the means requisite to reestablish such government, or to aid well disposed citizens of the State so to do; and for that purpose, the Congress enacted various laws, the one in question,the Civil Eights Bill,being among- the most prominent.

The State of Arkansas being, by the Federal authorities, declared in rebellion and war with the United States, and her constitutional government set aside, she then became subject to the armed power of the Federal Government, and, being reduced by that power, she was then left without any legally constituted State Government, and could have none until one was restored to her by Federal authority, or formed under its sanction.

During the clash of arms, as well as upon the weakening or breaking down of the rebellious powers, the United , States could have allowed all such courts and such civil proceedings as she deemed best, and proceedings of military, quasi-military or provisional courts, as valid, so. far as the same were properly recognized by the Government.

Preparatory to a .■ thorough organization of a legal ¡átate Government, the authorities of the United States did allow, maintain, and recognize a provisional government and courts; not a government, independent of the United States, nor even one under a constitution approved by her; but it was a government sanctioned, allowed, and maintained for the time being, and binding in its authority, though subject to be set aside or continued, as the Federal authorities might determine best. These consequences naturally flowed from the results of war; the State was therefore peculiarly subject to the laws of the General Government, and the Government, acting- under her constitutional authority to suppress insurrections, secure to the State a republican form of government, and to pass such laws as were for the common good and general welfare of the United States, and as a means of restoration, did declare by law, in the act aforesaid: (U. S. Statutes, p. 27, of the 1st ses., 38 Cong., ap. April 9, 1866:) “That all persons born in the United States, (not Indian, or subject to a foreign power,) are citizens of the United States; and such citizens, of every race and color, and without .regard to previous condition, &c.; shall have the same right in every State and Territory, to make contracts, &c.; to sue, be parties, and give evidence, &c.; and to enjoy full and equal benefit of all laws and proceedings, for the security of person and property, as enjoyed by white citizens, &c., any statutes or law to the contrary notwithstanding.”

And this case, wherein Armstead, a colored man, is alleged to have been assaulted and feloneously robbed, is clearly within the class provided for in that act; and the provisional courts of the State, acting under the direct permission and sanction of the Federal Government, were certainly bound to respect and obey her laws, and especially would their attention be called to acts like this, necessary to meet the changed condition of society, and intended as a means of aiding in the restoration of a State republican form of government.

"VVe are, therefore, of the opinion that the circuit court did not err in allowing colored witnesses, of African descent, to make evidence against the appellant, and the judgment of that court is in all things affirmed.

McClure, J.,

dissenting, says:

It appears from the record that Kelley, a white man, robbed a negro by the name of Armstead, for which he was tried and convicted.

The cause, as we understand it, never did present but one question, and that is whether the negro person who testified on the trial of this cause, was a competent -witness. The lapse of time, the adjudication of other tribunals, that we respect, and the progress of events, have passed writh such rapid and unerring certainty to the establishment of the right of the negro to testify against the white man who robs him, that our decision, so far as the public or the rights of either of the parties are concerned, is a matter of no consequence.

Kelley has long since been pardoned, and, of course, has no interest in the decision of this case. The right of negro persons to testify in the courts of the State is now no longer an unsettled question, and the public mind and inferior courts have long since recognized the principle of law, and the only one that the disposition of this case ever could have settled.

If the rights of any individual hinged on the result of this case, or the restrictions placed over the liberty of any citizen would-be removed by an elaborate discussion of the question involved in this case, we could approach the subject feeling that we were not discussing the abstract issues of the dead past.

When courts establish great and new principles of law, that will control the subsequent adjudications of the future, it is but' natural that the enunciation of those principles should go to the world with the reasons that led to their production;but when the people themselves, acknowledging the wrong and injustice under which persons of African descent were laboring, sent their delegates - into convention to remedy the great wrong, and when they again, in the exercise of their assembled wisdom, declared, -when they adopted the Constitution, that “the equality of all men before the law is recognized, and shall ever remain inviolate,” we feel it our duty to stand with uncovered heads before our sovereigns and bow with deference to their wisdom, and excuse ourselves from discussing whether Congress derived the power to pass the Civil Rights Bill from the clause empowering them “ to establish a uniform rule of naturalization;” or, from the clause declaring “the citizens of each'State .shall be entitled to all the privileges and immunities of citizens of the several States;” or, from the clause requiring “ the United States to guarantee to every State in the Union a republican form of government;” or, from the preamble to the Constitution, declaring it to be the object of the Government “to establish justice, insure domestic tranquillity, * * to promote the general welfare and secure the blessings of liberty.”

We are aware that this case presents a fine opening for the discussion of all these questions; but inasmuch as the liberty of Kelley or the right of the negro to testify, are matters that are no longer dependent upon an adjudication, and inasmuch as it is not likely that another ease involving this same question will ever again arise in this State, we content ourselves by saying, we entertain no doubts on the right or power of Congress to pass the Civil Rights Bill, and that it is constitutional; and, being so, wo have no hesitation in saying the negro was a competent witness against Kelley.

"We concur in the affirmance of the judgment; and, under the peculiar circumstances attending this case, decline expressing any opinion as to what particular clause Congress derived the power to pass the law; not that we would feel any hesitancy or delicacy about so doing,' but because we are unable to see wherein Kelley, or the negro, or the public, would be benefited by learning our individual views on a subject that now is without interest.


author: Wjlshire, C. J.

text:
    McAdams v. State.
    Murder. In the sudden killing of a human being, with a deadly weapon, and without provocation, tlie law implies malice. It is not necessary, to constitute murder, that any animosity should exist towards the deceased. A corrupt and wicked motive, and intention to do evil, is sufficient; nor is it necessary that the intention to kill should have been formed for any length of time, if it existed at the instant of the killing.
    To warrant a conviction of murder in the first degree, the jury must be satisfied, beyond a reasonable doubt, that the killing was willful, deliberate, malicious and premeditated.
    The statute defining murder does not require that there should be a predetermined intention to kill fixed in the mind, after mature reflection.
    Indictment for murder. An indictment which alleges that the prisoner “feloniously, willfully, and of his malice aforethought, did shoot,” &c., is a good indictment for murder in the first degree.
    An indictment, good at common law, for the crime of murder, is good in this State for the crime of murder in the first degree.

      Appeal from Union Circuit Court.

    Hon. George W. McCown, Circuit Judge.
    J. II. Askew and M. L. Rice, for appellant.
    At common law, the willful killing of a human being,'with malice aforethought, was murder, the punishment of which was death; and an indictment that charged such a killing was sufficient to support a verdict of guilty and a judgment of death.
    In this State, murder committed with malice aforethought, simply, is not a capital offense. See Gould’s Digest, page 328, sec. 7.

    To constitute this crime the act must be committed not only with malice aforethought (which is necessary in murder in the second degree) but it must be premeditated, which was not necessary to constitute murder at common law.
    Montgomery, Attorney General, for appellee.
    The fact of killing with a deadly weapon is, prima facie, evidence that the design to kill was formed in the mind of the party committing the-act, and that the killing was in consequence of such design. See Bevens v. The State, 11 Arh, 455.
    The law fixes no length of time, if the person has actually formed the purpose maliciously to kill, and deliberated and premeditated upon it before he performs the act. He is guilty of murder in the first degree, however short the time may have been between the purpose and its execution.
    It is not the time that constitutes the distinctive difference between murder in the first and second degree, but the actual existence of such purpose. Mature deliberation and premeditation constitute the crime of murder in the first degree. Shoemaker v. The State, 12 0., 43; People v. Enoch, 13 Wendell, 159.
    The same doctrine is more fully settled and explained in the following cases and authorities: 2 Wheeler’s eases, 84; TKe Commonwealth v. McGee, 1 Ashmead, 299; Same v. Dougherty, Brown’s Rep., 221; The State v. Cheatwood, 2 Hill, (S. C.,) 464.
    The statutes of the different States, defining murder, under which these adjudications were made in the cases referred-to, are substantially the same as the statute of the State of Arkansas.
   Wjlshire, C. J.

At the September term, 1868, of the Union county circuit court, George McAdams was convicted and sentenced to be hung on the 23d day of October following, on an indictment for the murder of one General Moore. The defendant below moved the court, for a new trial; the court overruled the motion; to which ruling of the court below defendant excepted, tendered his bill of exceptions, and appealed to this court.

The errors of the court below, complained of by the appellant, are:

1. Because the court below erred in giving the instructions asked by the State, numbered one, two, three and four.

2. That the court erred in refusing to give the second instruction asked by the appellant.

3. That the verdict of the jury is contrary to the first, third 'and fourth instructions asked by the appellant and given by the court.

4. Because the verdict of the jury is contrary to the law and the evidence.

5. Because the verdict of the jury is contrary to the evidence.

6. Because the court erred in refusing to grant a new trial.

The motion for a new trial in the circuit court, was rrpon the grounds set out in first, second, third, fourth and fifth errors assigned. 1. That the court erred in giving the instructions .asked by the State, numbered one, two, three and four, which is the first question we will notice.

The first instruction asked by the State and given by the court is as follows: “That murder is the unlawful killing of a human being in the peace of the State.” This instruction we find to be simply a literal copy of the statute defining murder; and, as there was evidence before the jury applicable to that crime, there could have been no valid objection to its being given.

The second instruction given by the court, at the instance of the State, is: “That in the sudden killing of a human 'beipg, with a deadly weapon, without provocation, the law implies malice; and to make the killing murder it'is not necessary that any particular animosity, towards the deceased should exist; but a corrupt and wicked motive and intention to do evil, which results in the death of the deceased, is sufficient; nor is it necessary that the intention to kill should have been formed or existed for any long length of time; if the intention to kill was formed or existed on the instant of the killing, it is murder.” It would, we think, be a strange rule of law to say that one person could kill another, willfully and intentionally, without any provocation, and say that malice would not he implied. It is laid down as a rule by Wharton, in his American Criminal Law, vol. 1, sec. 970: “If a man kill another suddenly, without any or without considerable provocation, the lawr implies malice, and the homicide is murder.” Itis not necessary that the intention to kill should have been formed for any given time 'before the killing; if the intention existed at the time of the killing, it is sufficient.

It has been held in Pennsylvania that, “if the party killing had time to think, and did intend to kill, for a minute, as well as an hour or a day, it is a deliberate, willful and premeditated killing, constituting murder in the first degree, within the act of the Assembly.” Com. v. Richard Smith, oyer and terminer, 1816, pamphlet 231; Com. v. O’Hara, before McKean, C. J., ibid. . The instruction in question does not indicate to the jury the degree of the crime, but tells them what the law requires to constitute the crime of murder generally, and -was properly given.

The third instruction, given by the court, at the instance of the State, was: “If the jury believe from the evidence that the defendant, at the time he fired the gun, intended to kill the deceased, and did kill him, without any provocation, they will find him guilty of murder in the first degree.”

This is the only instruction, given on the part of the State, directing the attention of the jury to what would be necessary to constitute the crime of murder in the first degree, and what they must find to convict the prisoner of that crime; and for the present, or until we examine and discuss the remaining questions, in which we will state the testimony, wo are content with saying that the instruction is not objectionable.

The fourth and last instruction given by the court, at the instance of the State, was: “If the jury believe from the evidence that the defendant is not guilty of murder in the first degree, but that ho killed the deceased, not in self-defense, nor by accident, nor in sudden heat of passion, and without provocation, they will find him guilty of murder in the second degree, and assess his punishment at not less than five nor more than twenty-one years in the penitentiary.” By the statute there arc two degrees of the crime of murder, that at common law was but one, and the statute makes it the duty of the jury, in trials on indictment for murder, if they find from the evidence that the accused is guilty of murder, to also find from the evidence the degree of murder he is guilty of. "Whether murder in the first or second degree, it was, perhaps, under our statute, the duty of the court to have instructed the jury what state of facts, under the law applicable to the case, was necessary to constitute each of the degrees of the crime of murder; and wo think the instruction under consideration, having the sole efiect of informing the jury what state of facts would be necessary to constitute murder in the second degree, was properly given; as it is made their duty, by the statute, to determine the degree upon conviction.

The second error assigned, and which was one of the grounds set out in the motion for a new trial, that the court below erred in refusing to give the second instruction asked by the appellant, as follows: “That, if the jury believe from the evidence, that the killing was accidental, and without any willful and malicious intent, they must acquit the prisoner.” From a careful examination of the testimony brought up by the record, we find none to support this instruction. We think the testimony so clearly opposed to the instruction, that it seems that the jury could not have drawn an inference of accident from it, and the only effect the instruction could have had, would have been to mislead the jury. This court held, in the case of Saddler v. Saddler, 16 Ark., 628: “That it is error in the court to give an instruction not warranted by the testimony, and which may mislead the jury.” See Worthington v. Card, 15 Ark., 492.

The third error assigned, (also one of the grounds for the new trial,) is: “ That the verdict of the jury is contrary tó the first, third and fourth instructions asked by the appellant and given by the court, as follows: 1. That, before the jury can convict the prisoner for murder, they must find from the testimony that the supposed killing was willful and malicious, with malice aforethought. 8. That, although the jury may believe the killing was not accidental, but from criminal negligence, they can not find the prisoner guilty of murder, but only involuntary manslaughter. 4. That, to authorize, a conviction for murder in this case, the jury must believe from the evidence that the killing was willful, malicious and with malice aforethought; and, if the jury have a reasonable doubt, they must acquit.” We think this question will necessarily be disposed of in discussing the next and only remaining question raised by the motion for a new trial: “ That the verdict of the jury is contrary to the law and the evidence.”

In discussing this question, it will be observed that, at common law, there was but one degree of the crime of murder ; and under our statute the crime of murder consists of two degrees, namely : Murder in the first degree, and murder in the second degree.

The counsel for the appellant insists that, under the statute, to make a ease of murder in the first degree, it must appear to have been premeditated — that is to say, the accused must have meditated upon the act previous to the infliction of the mortal wound, and that it is in this the distinction between the two degrees of murder under the statute exists. "We think it will not he disputed that to convict a prisoner of murder in the first degree, on an indictment for murder, the jury must believe from the evidence, beyond a reasonable doubt, the killing was willful, deliberate, malicious and premeditated. To determine, then, whether the verdict of the jury, in the case under consideration, was contrary to the law and the evidence, it will he necessary for us to notice the testimony from which the jury found their verdict, as brought up here by the bill of exceptions.

Mrs. Jane Harrold, the mother of the deceased, testified substantially as follows: That she was at the house where her son, the deceased, lived, on the first day of August, 1868, in Union county. That the defendant, George McAdams, came there and said he was waiting for General, the deceased, to pay him, prisoner, for bringing his meal. He sat a while and bid the witness and family farewell, and started as though he was going to leave, and went to the fence and. then came back, and said he would wait for General, and wished he would come; that General Moore, her son, came and went into his house, and came out with his gun, when witness asked him what ho was going to do, and he said: “ Mother, I’m going to kill some squirrels ; they are eating up my corn.” That he, witness’ son, set the gun down at the door, and went back in the house to get his squirrel sack, when George, the prisoner, who was about fifteen steps off, ran and took up the gun and pointed it at Harriet, witness’ daughter, when General, the deceased, said: “Don’t point that gun at her, it is heavily loaded,” when the defendant turned the gun on General, and said: “I will shoot you;” then the witness’ daughter, Harriet, said: “Don’t point that gun at my brother, it is heavily loaded.” George, the defendant, put the gun on his shoulder and. started towards the gap, and the deceased after him, reaching out his hands as though he would take hold of the gun, when the defendant looked, over his shoulder backwards, and seeing the deceased in the act of taking his gun, the defendant made three or four rapid strides, turning around, taking the gun from his shoulder, saying: “I will shoot you,” and presented the gun at him, the deceased, and fired, killing him instantly. Witness knew of no fuss between the deceased and the defendant; they were friendly, as far as witness knew.

Neil Rogers, (colored,) being sworn, testified as-follows: I was sent for, to go to the house of aunt Jane, where deceased lived;’ defendant was at the house when I came to aunt Jane’s, about fifteen steps from the door; the deceased came to the door with his gun, and when he, the deceased, got on the steps of thedoor, he, defendant, came up to him, deceased, and took the gun away from him, and.pointed it, the gun, at deceased’s sister, and deceased said to him: “ That gun is loaded, don’t point it at my sister;” when the defendant replied: “ No you take it up ? I will shoot you;” and started from deceased and cocked the gun, and turned and shot the deceased; then I walked away. There had been n,o grudge between the parties that I know of.

The next witness was Nave Robinson, sworn and examined, on the part of the State, who testified as follows: I live in the town of Hillsboro, at the tavern; it was on Saturday evening, and the deceased, General Moore, was in town, and we had knocked off for the evening. The deceased asked me to go down home with him; I did so, to see my wife, Harriet, who lived there, about some flour. When we got to the fence, we met with the defendant, and all three of us engaged in a friendly talk of about five minutes, then we went into the yard where the deceased lived. The deceased went into the house; I sat down by a tree in the yard, near my wife, and engaged in conversation with her; the defendant remained in the yard, about fifteen steps from the door. In about fifteen minutes after going into the house, the deceased came to the door, with his gun upon his shoulder and his shot bag on,’ when defendant rushed up to the door, and met deceased upon the bottom step, and asked deceased what he was going to do with the gun ? Deceased responded: I am going to shoot some squirrels, or any thing that will do to eatdefendant said: “ Let me see this gun,” and took the gun from deceased’s shoulder and pointed it at deceased’s sister, and deceased said: “ Don’t point that gun at my Sister, for it is heavily loaded.” Defendant then turned and pointed the gun at the deceased, saying: “I will shoot you.” Then the sister of deceased, my wife, said to defendant: “ Don’t point that gun at my brother, it is heavily loadedthen defendant put the gun upon his shoulder and started toward the gap, and deceased followed defendant, with his hands up, reaching like he was trying to turn the gun out of his face, when the defendant, looking back over his shoulder at the deceased, moved quickly two or three steps, turning round, cocking the gun, exclaiming : “I will shoot you, I will shoot you,” and fired, killing the deceased instantly. The shot took effect at the lower end of the breast hone, in or near the middle of the chest; tlhe wound was nearly large enough to run my fist in; ■ a part of his liver came out at the wound, and was pressed back. This was done in the county of Union, and in the State of Arkansas, on the first day of August, 1868.

William H. Pendleton testified that the defendant was at his mill on the day of the killing, and he heard the defendant make no threats or declarations whatever.

This is all the testimony offered on the trial in the court below. The defendant offered no testimony whatever. Prom the testimony, we think there can be birt little, if any, doubt that, the killing of the deceased, General Moore, by the prisoner, George Ale Adams, was wailful, deliberate, malicious and premeditated ; because, after th'e prisoner pointed the gun first at the deceased’s sister, then at the deceased, he put the gun upon his shoulder and started to vTalk off, giving sufficient time for reflection and deliberation, after making the first attempt and threat, and before making and executing the last, which resulted in the instant death of the deceased.

The counsel for the appellant have argued this cause at great length and with marked ability; but upon the supposition that the words of the statute, “ or any other kind of willful, deliberate, malicious, and premeditated killing,” requires, in order to make the killing murder in the first degree, that the deliberation and premeditation contemplated by the statute, should be a predetermined intention to kill, fixed in the mind, after a mature reflection and deliberation upon the act of killing. This we can not concede to be the import of the language of the statute. It may be stated as true, that to constitute murder in the first degree, under the statute, the evidence should show such a state of facts as to satisfy the jury, beyond a reasonable doubt, that there was a clearly formed design to kill; a clear intent to take life, without provocation; The witnesses all testify that they knew of no difficulty or dispute between the prisoner and the deceased; but had there been, the testimony shows that there was time reasonably sufficient, after the prisoner pointed the gun at the deceased first, and threatened to shoot him, and the killing, for reflection, and for ^his reason to have assumed its natural power over him, even if it had been dethroned, temporarily, by- heated passion, resulting from personal difficulty. The testimony does show in this case, wo think, a state of facts sufficient to have warranted the jury in the belief that the prisoner -willfully and deliberately pointed the gun at the deceased with, the clear intention of killing him. There is no circumstance connected with the testimony, nor is it claimed, that the prisoner was not sane, or that he was in a frame of mind, from any cause for which he was not immediately responsible, that would prevent him -from deliberating and reflecting.

In the case of the Commonwealth v. Jones, 1 Leigh, (Va.,) 612, the court there, in construing their statute, which is similar to ours, as to what constituted murder in the first degree, said, that “ other homicides, which were murder at common law, aro now murder in the second degree, except when it shall be proved that the homicide was the result of a willful, deliberate and premeditated killing; and it also follows, of necessity, that when, by the proof, the mind is satisfied that the killing was willful, deliberate and premeditated, such killing must be taken and held to be murder in the first degree.”

In the case of Whitford v. Commonwealth of Va., 6 Randolph, 721, the court said: “ The inquiry, then, always must be, is the killing willful, deliberate and determined upon before the act ?” If it is, it proves that degree of malice which places the act in the highest grade of the offense. If a man willfully and deliberately points a gun, or a pistol, which he knows to be loaded with powder and ball, at another’s head or heart, fires it and kills him, not having received any provocation from him, surely'there is as much malignity in his heart, there is as little excuse for him, and there is evidence of as willful, deliberate and premeditated a purpose to kill, as if he had waylaid him.”

In the ease of the Commonwealth of Pennsylvania v. Daugherty, 1 Br., appx. XVIII., the court said: “ "Whenever it appears, from the whole evidence, that the crime was, at the moment, deliberately or intentionally executed, the killing is murder in the first degree.” In that ease the court further said, that “ it is sufficient to constitute the crime, if the circumstances of willfulness and deliberation were proven, although they arose and were generated at the period of the transaction.” See, also, Penn v. Louis, Add., 283; Respublica v. Mulatto Bob, 4 D., 146; People v. Nichols, 34 Cal., 211.

The counsel for the appellant, with equal earnestness and ability, insist that the indictment does not contain the necessary allegations to warrant the conviction of the prisoner of murder in the first degree, under the statute. It is insisted that the indictment should allege that the killing was willful, deliberate, malicious, and premeditated, in addition to malice aforethought. We find that the indictment alleges that the prisoner, “ feloniously, willfully, and of his malice aforethought, did shoot,” &c. These allegations we think sufficient to chargé. murder in the first degree. The terms malice aforethought, deliberation, and premeditation, are synonymous. But does the statute, which makes two degrees of the crime of murder, which at common law constituted but one, change the form of proceeding in murder, or abolish the crime of murder as it existed at common law ? By the 6th section, part 4, article 1, chapter 51, Gould’s Digest, it is provided that the crime of murder shall consist of two degrees, namely: Murder in the first degree, and murder in the second degree. Thus we see that murder at common law is still murder in this State ; but constituting two degrees. By the same section of the statute, it is provided, after defining the two degrees of murder, “that the jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall' impanel a jury and examine testimony, and the degree of crime shall be found by such jury.”

It can not, we think, be seriously contended that the provision of the statute quoted, in the least changes the well recognized common law form of proceeding on indictments for murder ; as is seen, it is made the duty of the jury to ascertain the degree of the crime from the testimony; and an indictment for murder, in form good at common law, will authorize tlic jury in finding the accused guilty in the first degree, if the testimony is sufficient to warrant such a finding. See Commonwealth v. Gardner, 11 Gray, (Mass.,) 438; Green v. Commonwealth, 12 Allen, (Mass.,) 155.

In the case of White v. Com., 6 Binn., (Pa.,) 179, the court held, under a similar statute to ours, that, “ in an indictment for murder it is not necessary so to describe the offense as to show whether it be murder of the first or second degree.” See Com. v. Flanagan, 7 W. and S., 418.

In the case of Com. v. Joyce, et al., 6 Binn., 183, the court said': “Nor is it necessary that an indictment for murder .should charge it to have been committed by a willful, deliberate, and premeditated killing, as expressed in the act of the Assembly.”

The only remaining question is, the objection urged by counsel for the appellant, that the court below erred in the conclusion of its voluntary charge to the jury, that they were “both the judges of the law and the facts, and must be responsible for their verdict.” This instruction by the court was not objected to by the defendant in the court below.

• Still, under the practice, in criminal cases, if there was any doubt about the testimony or the verdict being fully warranted by the evidence, the giving of such an instruction by the court, without any explanation as to whose exposition of the law they should consider as the law, the judgment would be reversed ; but, as we have before stated, we think the verdict was fully warranted by the testimony, and that the jury could have paid but little attention to the careless, loose remark of the court.

Judgment affirmed.


author: Harrison, J.

text:
    Sevier, admr., v. Shaw, Barbour & Co.
    Landlord's hen. The Hen of the landlord is a charge upon the crop for’the payment of the rent, and accrues as soon as there is any crop upon which it may attach. It does not in any manner depend upon the maturity of the rent.
    This lien, even before the rent falls due, takes precedence of a lien by attachment of the crop.

      Appeal from Arkansas Circuit Court.

    Hon. II. B. Morse, Circuit Judge.

      Watkins & Bose and Garland & Nash, for appellant.
    The landlord’s lien had priority over the attachment. Drake on Attachment, secs. 532, 223 ; 13 Ala., 465; Upham v. Dodd, 24 Ark., 548, and cases cited; DeWolf v. Dearbon, 4 Pick., .466; Rankin v. Schatzell, 12 Wheat., 177.
    Bell & Carleton, for appellee.
    A landlord has no specific lien or title to crops raised by his tenant. When the landlord’s rent falls due, he can bring his suit for his rent, within the time prescribed by the statute, and by so doing, has a lien over all other debts due by the tenant, from the time the rent fell due. We think the authority very clearly sustains us in this view of a landlord’s lien. Uphami v. Dodd, 24 Ark., 548 ; Hardeman v. Shumate, Meigs, 402; Ballentine v. 'Greer, 6 Yer., 267; Lawrence v. Jenkins, 7 Yer., 494.
   Harrison, J.

Shaw, Barbour & Co. brought suit by attachment, in the Arkansas circuit court, against Bobert G. Hunt. The attachment was levied on the 14th day of December, 1867, on ’the defendant’s undivided interest in a lot of cotton; and at tfce November term, 1868, they recovered judgment against him, by default. At the same term, Ambrose H. Sevier, under the provision of section 257, of the Code of Civil Practice, presented to the court a complaint, in substance as follows : That the cotton attached was raised and produced in 1867, upon a plantation demised and rented by him, for the year, to Eichard H. Johnson, and which Johnson and Hunt cultivated that year in partnership; that the rent of said plantation became due on the 31st of December, 1867, and was still unpaid; that, to enforce his lien upon the crop for the rent, after the same became due, he brought suit in that court, by attachment, against Johnson, and attached the cotton in the hands of the sheriff, and at the then present term recovered judgment against him, by default, and claiming that his lien upon the cotton for rent was prior and paramount to that obtained by Shaw, Barbour & Co., by their attachment upon it, and praying the court to order the proceeds of the cotton when sold to be first applied to the satisfaction of his judgment against Johnson, and to make such other order as might be necessary to protect his rights in the premises.

Shaw, Barbour & Co. demurred to the complaint, The court sustained the demurrer, and adjudged that the lien of their attachment was prior and paramount to Sevier’s lien for rent, and ordered that the proceeds of the cotton be first applied to the satisfaction of their judgment. Sevier appealed.

The lien of the landlord is a charge upon the crop for the payment of the rent, and accrues as soon as there is any crop upon which it may attach, and does not in any manner depend upon the maturity of the rent.

Were it not so, it would depend entirely upon the will of the tenant whether the landlord obtained a lien or not, for he could sell or dispose of the crop before the rent fell due, and so deprive him of his security.

The act of December 28,1860, which gives the landlord the process of attachment for enforcing his lien, declares that the proceeding may be commenced before the rent is due.

We are, therefore, of the opinion that Sevier’s lien for rent, was prior and paramount to Shaw, Barbour & Co.’s attachment, and that the court erred in sustaining the demurrer and rendering judgment in their favor.

The judgment of the court below is therefore reversed, and the cause remanded, to be' proceeded in according to law.