text:
    Williams v. State.
    Opinion delivered April 24, 1922.
    1. Criminal lav/. — necessity of objections and exceptions. — Errors in the admission and exclusion of testimony and in giving and refusing to give instructions are not reviewable on appeal, in the absence of objection and exception thereto.
    2. Criminal law — right of accused to counsel. — While the Constitution (art. 2, § 10) provides that in all criminal prosecutions the accused shall have the right to be heard by himself and his counsel, services of an attorney cannot be forced upon the accused, and if he conducts his own case he must object to the court’s rulings which he wishes to review on appeal.
    3. Criminal law — motion in arrest of judgment. — Under Crawford & Moses’ Dig., § 3224, providing that the only ground for arresting a judgment shall be that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court, held where the facts alleged in an indictment for robbery constituted a public offense, a motion in arrest of judgment was properly overruled.
    4. Indictment and information — two counts. — An indictment in one count alleging that accused robbed another, and in a second count that he aided and abetted a third person- to commit the robbery, charges a single offense.
    5. Robbery — sufficiency of evidence. — In a prosecution for robbery evidence held sufficient to sustain a conviction of aiding and abetting another in committing robbery.
    Appeal from Sharp Circuit Court, Northern District; J. B. Baker, Judge;
    affirmed.

      David L. King, for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was tried and convicted under an indictment containing two counts. The first count alleged that he robbed one A. E. McConnell. The second count alleged that one Sam Harmon had robbed McConnell, and that appellant “unlawfully and feloniously did stand by, aid, abet and assist the said Sam Harmon to do and commit said robbery in manner and form aforesaid.”

Appellant appeared without counsel and asked permission to conduct his own defense. This right was aocorded him after the court had offered to appoint counsel to defend him if he desired counsel to be appointed.

The jury returned the following verdict: “We, the jury, find the defendant, John Williams, guilty of the crime of being an accessory to the crime of robbery as charged in the indictment, and fix his punishment at imprisonment in the State Penitentiary for a period of three years. (Signed) J. W. Phillips, foreman.” Thereafter appllant employed counsel to represent him, and the attorney so employed filed a motion for a new trial, assigning numerous errors for the reversal of the judgment.

Most of the errors assigned relate to incidents connected with the trial in the admission and exclusion of testimony and in giving and refusing to give instructions; but, as no objections were made or exceptions saved,these questions are not presented for review. Morris v. State, 142 Ark. 297.

The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him. Article 2, § 10, Const. 1874. He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. Appellant should therefore have made objection to such rulings of the court below as he cared to have reviewed by this court, and, as he made no objection to anything that occurred at his trial, there is presented for our review only such questions as can be raised without objection first being made in the court below.

A motion in arrest of judgment was properly overruled, as it is provided by statute that ‘ ‘ the only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect.” Section 3224, C. & M. Dig. The facts set out in the indictment do constitute a public offense. .

No question is made about the sufficiency of the first count of the indictment charging appellant with the crime of robbery. The insistence- is that the indictment apon which appellant was tried charged him with being guilty of the crime of robbery, whereas the jury returned a verdict against appellant of being an accessory to the crime of robbery — a crime not alleged or charged in the indictment.

We think appellant was charged with only one crime, and that was the crime of robbery. This crime was charged in two ways; first, that appellant did, himself, rob McConnell; second, that Sam Harmon robbed McConnell, and that appellant ‘ ‘ did stand by, aid, abet and assist the said Sam Harmon to do*and commit said robbery.” But, as we have said, the two counts charged but a single offense.

This question was gone into thoroughly in the case of Hunter v. State, 104 Ark. 245, and what was there said is decisive of the question here raised. The indictment in that case charged that Hunter had killed and murdered one Patterson by stabbing him with a knife,- whereas no attempt was made to show that Hunter had struck the fatal blow as charged, but only that he was present aiding and abetting in the commission of the offense, which was done by one Monaseo.

It was there pointed out that our statutes have abolished the distinction existing at common law between principals in the first and second degrees, and that where this has been done, “an indictment of a principal in the second degree need not aver any facts other than those requisite to an indictment of the principal in the first degree. 22 Enc. Law & Pro. p. 360. See also 10 Enc. Pl. & Pr. p. 156.”

It was there further said: ‘ ‘ One present -aiding and abetting the commission of a felony, formerly a. principal in the second degree, is, under the statute, responsible for the result of the act done as though he had done it himself, a principal offender, and must be indicted and punished as such; and, in charging appellant with having stabbed the deceased with a knife, his act was stated according to its legal effect, and a verdict upon testimony tending only to show that he was present, aiding and abetting in the commission of the offense is responsive to the charge, and not a variance therefrom. There is no longer a distinction between principals in the first and second degree, but all are principal offenders, and are required to be indicted and punished as such. Evans v. State, 58 Ark. 47; State v. Kirk, 10 Ore. 505; Usselton v. People, 149 Ill. 612; State v. Payton, 90 Mo. 220; Commonwealth v. Chapman, 11 Cush. 428.”

The court there quoted with approval from 2 Bishop’s Crim. Proc. § 1, § 3, par. 2, the following statement of the law: “Whenever one person’s evil intent and another’s criminal act combine, the allegations against the former may be either direct, that he did the thing, according to its legal effect, or indirect, that he instigated or procured the other to do it according to its outward form, and he did it. Whichever method is used in the averment, the proof may be that the defendant employed his personal volition or that he instigated another who did the act, as may be the more convenient to the practioner.” But, after saying the practitioner might allege the commision of an act according to its legal effect, or according to its outward form, the same author says that “not often will the pleader elect to charge one as principal of the second degree; because, since this participant can be equally well convicted on -an allegation of being the actual doer, or principal of the first degree, the latter method will ordinarily be deemed the more convenient. ’ ’ Bishop’s Directions and Forms, § 115. This quotation also appears and is approved in the case of Hunter v. State, supra.

We have here an indictment which does in fact what Bishop says the pleader will not often elect to do, that is, -charge one as principal in the second degree; but, as has been seen, this was not an improper thing to do, and the form of the verdict indicates that the conviction was had on this count.

The indictment also charges appellant as being a principal in the first degree; and this is the ordinary way of alleging the commission of the crime, but, as appears from the opinion in the case of Hunter v. State, supra, the two counts charge a single offense, and we need not further repeat the reasoning of that case here.

It is finally and very earnestly insisted that the testimony does not support the verdict. But, in our opinion, it is legally sufficient for that purpose. The testimony on behalf of the State is that Harmon — whose own conviction was affirmed by us on October 31,1921, appeared at the home where McConnell lived with his maiden sister, a lady seventy-five years old. This old couple had a small iron safe, which Harmon compelled McConnell to unlock, and about $700 in money was found there, of which amount about $25 was in gold. The robber believed the old couple had more gold and demanded its surrender, and refused to accept as true their protestations that they had no more gold or other money. Both McConnell and his sister were bound, and for an hour or more they were subjected to' revolting indignities and fiendish cruelty, all for the purpose of making them disclose the whereabouts of the gold which'the robber insisted they possessed. While these outrages were continuing a second robber, who evidently had previously been on guard, came into the room. Both robbers wore masks, but they remained in the room long enough for the McConnells to closely observe them, and when Harmon was arrested and brought before them for identification. a few days after the crime was committed, they were both positive that Harmon was one of the men who had abused and robbed them. They were less certain about the identity of appellant, but they both testified that he was about the size and make-up of the man who assisted in the robbery. A boy eighteen years of age, named Clarence Hill, testified that on the night of the robbery he saw Harmon and appellant at a place two miles from where Harmon and appellant lived and about six or seven miles from the McConnell home, and they were walking from the direction of the McConnell home to their own home, and as he got within twenty-five or thirty feet of them, they stepped ont by the side of a tree. Witness thought the men he saw were his father and a man named Phillips, and that they were trying to frighten him. So, to be reassured, he called out, “Where are you going?” and one of the men answered, “We are going fishing.” Witness asked, “What did you catch?” and the same man answered, “Twenty” or “Forty,” (the witness didn’t remember which), and, after giving this last answer, they turned out of the road and went on. Appellant subjected this witness to a very searching examination, and made him admit that he might be mistaken, his statement being, “Of course I can’t swear positive that it was them, but I do swear that I believe it was them.” This witness also testified that he told his father the following day about meeting Harmon and appellant and seeing them leave the road and walk under a tree, and that he thought these men were his father and Phillips, and that they were trying to frighten him.

There was also testimony to the effect that appellant called on Sam Harmon after the latter had been arrested and said to him that if he hadn’t already told anything, to keep his mouth shut, and he gave Harmon $5 and left the country the day before Harmon’s trial commenced.

A witness named Harmon — whose relationship to Sam Harmon, if any existed, does not appear — testified that he heard a conversation between appellant and one Eddie Harmon, in which appellant solicited Eddie Harmon to assist in paying his attorney’s fee, and stated that, if Eddie Harmon would do so, he (appellant) could beat his own case, and he (Eddie Harmon) would not thereafter be prosecuted. Will Harmon also testified that appellant solicited him to make a false charge on his books, dating it the day of the robbery, to aid appellant in establishing his alibi.

It may be said that appellant offered the testimony of several witnesses in support of his alibi, which, if true, made it impossible for him to have been present at the time of the robbery. This testimony was evidently not believed by the jury, as is indicated by the verdict of guilty.

There is no error, and the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Fairview Coal Company v. Arkansas Central Railway Company.
    Opinion delivered April 24, 1922.
    1. Appeal and error — final order. — An order sustaining a demurrer to the complaint but not rendering any judgment is not a final order from which an appeal will lie.
    2. Appeal and error — final order. — A recital that, after demurrer to the complaint was sustained, plaintiff excepted and declined to plead further and prayed an appeal to the Supreme Court is not equivalent to a rendition of final judgment for defendant.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    appeal dismissed.

      Robert J. White, for appellant. .

      Thos. B. Pryor, for appellee.
   Humphreys, J.

Appellant instituted suit against appellee in the Logan Circuit Court for the northern district to recover damages on appellee’s common-law liability for failure to furnish cars at the Hall Mine switch, about two miles from Paris, in said county, for the purpose of shipping coal from appellant’s mine, near the Hall Mine switch, within a reasonable time after being requested to do so. A demurrer was filed to the complaint, which, upon hearing, was sustained by the court, over the objection and exception of appellant. The order sustaining the demurrer was in the following language: “Demurrer is by the court sustained; plaintiff at the time excepts and declines to plead further, and prays an appeal to the Supreme Court, which is granted, and 90 days given to file bill of exceptions herein.”

Appellee insists that the appeal from the ruling on the demurrer was premature, as the order was not a final judgment. The appellate jurisdiction of this court is confined to final orders, judgments and determinations of inferior courts of the State. So appeals from interlocutory orders are premature. Crawford & Moses’ Digest, § 2129.

In the case of Moody v. Jonesboro, L. C. & E. R. Co., 83 Ark. 371, it appeared in the order of the court that the demurrer to the answer was overruled in part and sustained in part, and that the plaintiff excepted to the ruling of the court, and elected to stand upon his demurrer, and prayed an appeal to the Supreme Court of Arkansas, which was granted. In passing upon the question as to whether the order was final or merely interlocutory, the court said: “The appeal in this case was premature, as no final judgment was rendered. The plaintiff filed a demurrer to the answer1 of defendant, which the court sustained as to certain defenses set up in the answer and overruled to other defenses contained therein. But no judgment was rendered disposing of the action in any way, not even a judgment for costs was rendered. ” •

In the case of Davis v. Receiver St. L. & S. F. R. Co., 117 Ark. 393, the court said: “When the court (referring to the trial court) sustained the demurrer, the plaintiff had his election to amend his complaint, or to rest and permit final judgment to be rendered dismissing his complaint and then appeal.” In the case of State v. Greenville Stone & Gravel Co., 122 Ark. 151, in holding that an appeal was premature, the court said: “An order sustaining a demurrer to the complaint is in effect a holding that the complaint is of no avail and, it seems, is as near a final order as could be conceived, that is not so in fact; yet we have often, and in some very recent cases, held that, ‘where the trial court sustained a demurrer to a complaint without entering any further order or judgment, its action was not final and the order cannot be appealed from.’ ”

In the instant case it will appear by reference to the order that no final judgment was rendered dismissing the complaint; also that no judgment for costs was rendered against appellant. It was clearly an interlocutory order, unless the use of the language to the effect that appellant refused to plead further amounted to a final disposition of the case. We think this language a mere recital of the attitude of appellant, and in no sense an act or order of the court. Certainly the language could not have greater effect than the language embraced in the swpra, to the effect that the plaintiff elected to stand upon his demurrer. One statement seems to be no order in the case of Moody v. Jonesboro, L. C. & E. R. Co., stronger than the other, and greater effect should not be given to one than the other. As no judgment was in words rendered disposing of the cause of action, or language used in the. order importing that it was a final disposition of the case, the appeal was premature. The appeal is therefore dismissed without prejudice.


text:
    Thomas v. Missouri Pacific Railroad Company.
    Opinion delivered April 24, 1922.
    1. Judgment — res judicata — former dismissal. — Where an action was brought against the receiver of a railroad, and a motion to dismiss the complaint was made on the ground that another court had reserved the right to determine claims against the receiver, and defendant as purchaser at receiver’s sale was made a party defendant and likewise filed its motion to dismiss the complaint on the same ground, a general order dismissing the cause as against all defendants was a final order, and precluded a second action against defendant purchaser.
    2. Judgment — res judicata — parties.—The fact that a party in a prior suit was not a party in the pending suit, his interests having been disposed of to the defendant herein, did not preclude defendant from pleading the judgment in the former suit as res judicata.

    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Oscar E. Winn, Q. A. Eillhouse, E. F. Dunca/n and Otis W. Scarborough, for appellant.

      Thomas B, Pryor and Ponder S Gibson, for appellee.
   Humphreys, J.

This is an appeal from, a judgment of. the Jackson Circuit Court dismissing appellant’s complaint against appellee, seeking to recover damages for an injury received by appellant on November 15, 1916, through the alleged negligence of the employees of B. F. Bush, who was at the time receiver of the St. Louis, Iron Mountain & Southern Railway Co. The complaint, as amended, alleged that appellee succeeded B. F. Bush in the operation of said railroad property by purchase, with full knowledge of all injuries inflicted upon persons and property by its predecessors, and that, on account of taking over said railroad, it assumed the liabilities of its said predecessors. The court dismissed the suit on appellee’s plea of res judicata. This was the third complaint filed by appellant seeking to recover damages for the same injury. A nonsuit was taken on the second complaint, and the first was dismissed by the court for the want of jurisdiction, on the ground that the United States District Court for the Eastern Division of the Eastern District of Missouri, in which the receivership of B. F. Bush over said road had been administered, had reserved the right to determine and allow claims growing out of the liability of the receiver in operating said railroad properties. After B. F. Bush, as receiver for the St. Louis, Iron Mountain & Southern Railway Company, had filed a motion in the . Jackson Circuit Court to dismiss appellant’s first complaint, on the ground above stated, the appellee, the Missouri Pacific Railway Co., as purchaser at the receiver’s sale, and successor in the operation of said railroad properties, was made a party defendant by appellant in said suit; whereupon it filed a motion to dismiss appellant’s first complaint, adopting, in substance, the motion theretofore filed by B. F. 'Bush, receiver for the St. Louis, Iron Mountain & Southern Railway Co.

The order made by the court dismissing appellant’s first complaint was entered under the style of Alex Thomas v. B. F. Bush, as Receiver of the St. Louis, Iron Mountain & Southern Railway Co. The order itself, however, sustained the motion and dismissed the cause for want of jurisdiction and adjudged the costs against plaintiff (appellant). Appellant contends that this order of dismissal was not effective as a bar to his third complaint because the order was made in the receiver’s motion and did not include the Missouri Pacific Railway Co. We cannot agree with appellant in this conclusion. After the Missouri Pacific Railway Company had been made a party, at the instance of appellant, and served by process, it filed a motion to dismiss the cause, adopting the motion of B. F. Bush, receiver, as a part of its motion. The judgment dismissing the cause being general, the language used had the effect of dismissing the case as against all defendants. It was a final order from which an appeal might have been prosecuted. Even if erroneous, which it is unnecessary to determine, appellant’s only remedy to correct the error was by appeal.

Appellant also contends that the dismissal in the first suit was not a bar to the instant case because B. F. Bush, as receiver of the St. Louis, Iron Mountain & Southern Railway Co., was a party defendant in the first, but not a party in the instant case. We do not think this can make any difference, because the basis of both suits grows out of the alleged negligence of B. F. Bush as receiver of the St. Louis, Iron Mountain & Southern Railway Co. while operating the railroad properties, and it was alleged in both suits that the.Missouri Pacific Railway Company was the purchaser and successor of its predecessors, and that by reason of taking over the operation of the railroad with knowledge of the claim it assumed the liability. The purpose of both suits was to enforce a claim arising under the administration of the railroad properties by B. F. Bush, receiver, against the Missouri Pacific Railway Co. as purchaser of the properties and successor to the former owners thereof. The issues therefore in both suits were identical, and the real parties in interest the same. The dismissal order was, in effect, an adjudication that appellant had no remedy against either the receiver or his successor, the Missouri Pacific Railway Co., in the courts of Arkansas on account of the alleged injury, and was conclusive upon the paxties and their privies. The judgment was based upon the motion to dismiss, and the only ground alleged in the motion for dismissal was that the properties of the St. Louis, Iron Mountain & Southern Railway Co., at the time the injury was received, were being administered in the Federal Court for the Eastern Division of the Eastern District of Missouri, which court had reserved in its orders the exclusive power and authority to adjudicate all claims growing out of the receivership. As above stated, this may have been an erroneous adjudication of appellant’s rights, but it was final and appealable. The fact that a party in the original suit was no longer interested, because his interest had been disposed of, was omitted as a party defendant in another suit involving the same issues between the real parties in interest, could not be regarded as a new suit in the sense of precluding interested parties in the first suit from interposing a plea of res judicata upon issues determined in the first suit.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Murchison v. State.
    Opinion delivered May 1, 1922.
    1. Jury — competency op jurors. — In a criminal case a juror was not incompetent who had, in a general way, an opinion as to defendant’s guilt or innocence, but stated that he knew nothing of the facts of the case or of any other charge against defendant, and that he could try the case on the testimony adduced, disregarding his general opinion.
    2. Intoxicating liquors — evidence op sale. — In a prosecution for sale of intoxicating liquors, where the evidence showed that defendant owned the house where sales were made and employed another to run a lunch stand in the building, evidence that such employee was engaged in selling such liquors was competent as tending to prove that defendant was interested therein.
    8. Criminal law — court’s statement as expression of opinion*— In a prosecution for the sale of intoxicating liquors, where, in overruling objections to testimony of sales made in defendant’s absence, the court stated that the testimony showed that defendant was operating and controlling the house, and upon objection to such remarks the court admonished the jury to pay no attention to such statement, it was not objectionable.
    4. Witnesses — cross-examination.—In a prosecution for selling intoxicating liquor, refusal to permit defendant’s counsel to ask a witness on cross-examination where he got “white mule whiskey” on another occasion was not error.
    5. Criminal law — instruction—general objection. — An instruction that “if you find that any witness has wilfully sworn false as to any material fact in issue in the case then you may disregard, if you see fit, all the evidence of any such witness, or you may give regard to that portion of the evidence of such witness as you may believe to be true or disregard that portion which you believe to be false,” while not literally correct, is not open to a general objection.
    6. Criminal lav/ — instruction already covered. — The refusal of a requested instruction is not error when the instruction is substantially covered by one given.
    7. Criminal law — coercion of jury. — Where the jury in a criminal case were recalled to the court room, and the judge inquired how they stood, and was told, “Eleven to one,” and the judge stated that he saw “no reason why there should be no verdict, in this case, one way or the other,” such remark, when considered with the whole of the judge’s remarks, did not amount to coercion or to an expression of opinion on the weight of the evidence.
    Appeal from Mississipppi Circuit Court, Chickasawba District; R. E. L. Johnson, Judge;
    affirmed.

      Davis, Gosten & Harrison, for appellant.

      J. 8. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted in the trial below under an indictment charging him with selling and being interested in the sale of intoxicating liquor.

In the trial of the case the State relied upon testimony tending to establish the sale of intoxicating liquor at appellant’s place of business in the city of Blytheville, and there was evidence legally sufficient to warrant the jury in finding that whiskey was sold at that place, and that appellant had knowledge of the sale and was interested therein.

The first ground argued here for a reversal of the judgment is that the court erred in holding that one of the talesmen summoned by the sheriff was competent for service as a juror. After the court ruled upon the competency of the juror, appellant exercised a peremptory challenge, and thereafter exhausted his statutory number of peremptory challenges in making up the jury.

The talesman in question, Mr, Oberste, stated that in a general way he had an opinion concerning the guilt or innocence of the accused of the defense embraced in the indictment. On further examination by the court, he stated, however, that he knew nothing of the facts of this case or of any other particular charge of liquor-selling against appellant, and that he could try the case upon the testimony adduced, disregarding entirely his general opinion concerning the guilt or innocence of appellant.

The state of mind of Mr. Oberste, as established in substance by his statement made to the court, was that he had an opinion on his mind that appellant had been guilty of violating the laws against the sale of intoxicants, and that he would go into the jury box with that impression on his mind, but that he was not informed as to any facts upon which a charge of this kind against appellant was or could be predicated, and that he could try this case upon the testimony adduced. He was not asked to state, and did not state, the source of his information upon which his opinion was based. The ‘juror was therefore not disqualified.

In the first place, it is not shown that the opinion of the juror was not based on mere rumor, and his statements of his mental attitude with respect to the matter showed that his opinion was necessarily based upon rumor, and not upon a statement of facts concerning appellant’s guilt or innocence. There was no error of the court therefore in its ruling in this regard.

It is next insisted that the court erred in admitting certain testimony.

Appellant was the owner and occupant of a business house in the city of Blytheville, where he operated a cold-drink stand. The ground floor consisted of a room about twenty-one feet in width and seventy-odd feet in length, with a small room cut off in the back end. There were rooms above, which appellant rented out to roomers. There was a man named Manning employed by appellant to run a hamburger stand in the main room of the store, and the State was permitted to prove that Manning sold whiskey at that place, and that he usually went back to the small room in the rear and brought out the bottles and delivered them to customers and collected the price.

One witness, Durham by name, testified that he bought whiskey from Manning at that place. Another witness, a carpenter who was working at the place, testified that he saw Manning make sales of whiskey, and that appellant wa,s passing in and out of the room from time to time.

The sheriff of the county, Mr. Blackwood, testified that he raided the place several times and found fruit jars in the little room in the rear which smelled of whiskey, and that he found a funnel there which had the whiskey odor in it. Blackwood also testified that he lay in wait in the rear of the store' one night and detected a person coming out of the back door with a bottle of liquor.

It is insisted that the court erred in admitting this testimony as to sales without showing that appéllant was present at the time the sales were made, but we are of the opinion that the testimony was competent under the circumstances proved in the case, as the jury were warranted in drawing the inference from the facts proved that appellant was interested in the sale and had knowledge of the fact that Manning was selling whiskey. The place Of business was owned and operated by appellant, and Manning was his employee. Appellant gave his personal attention to the .operation of the business there, and, even though he was not present when Manning made the sales, if he was interested and knew that the sales were being made by Manning, he was guilty under the statute. Robinson v. State, 38 Ark. 641.

Of course, the fact alone that Manning was the employee of appellant and sold intoxicants without appellant’s knowledge or consent would not render appellant guilty of unlawful participation or interest in the sales (Partridge v. State, 88 Ark. 267); but, as before stated, if appellant was in fact interested in the sale and was aware of the fact that Manning was making the sales, he was equally guilty with Manning.

The court was therefore correct in permitting proof of sales made by Manning under the circumstances shown in the evidence.

Objections were made to remarks made by the court in overruling appellant’s objections to this testimony, wherein the court stated, in substance, that the grounds for overruling the objections were that the testimony of the witnesses showed that the whiskey came out of appellant’s house and tended to show that appellant was operating and controlling the house. The basis of the' objection to this statement of the court is that it amounted to an expression of the opinion of the court on the weight of the evidence. When the objection to the remark was made, the court turned to the jury and gave the following admonition:

“You need not pay any attention to what the court said. I am simply making a ruling, and anything the court said you will pay no attention to, for the facts are for you to determine. And the court further states to you, with reference to the parties coming out of the back door of this place, as to what force and effect it has and the weight to attach to it, under the evidence, it is solely in your province to determine.”

We do not think that the court’s statement, when considered in connection with the admonition given to the jury, could be treated as an expression of the opinion of the court upon the weight of the evidence.

Again, it is insisted that the court erred in refusing to permit appellant’s counsel to ask a witness on cross-examination, where he got “white mule whiskey” on another occasion. The court held that it was unimportant where or from whom the witness had gotten liquor on other occasions, and appellant saved his exceptions to this ruling.

The court was undoubtedly right, for it is unimportant to inquire of the witness concerning the purchase of liquor from other persons at other times and places.

Appellant made a general objection to the following instruction given by the court:

“If you find that any witness has wilfully sworn false as to any material fact in issue in this case, then you may disregard, if you so see fit, all of the evidence of any such witness, or you may give regard to that portion of the evidence of such witness which you may believe to be true or disregard that portion which you believe to be false.”

This instruction, when interpreted literally, was not a correct statement of the law on.the subject, but, in the absence of a specific objection to it, appellant is not in an attitude to complain. Bruder v. State, 110 Ark. 402; Johnson v. State, 120 Ark. 193; Griffin v. State, 141 Ark. 43.

Error of the court is assigned in modifying the following instruction requested by appellant:

“The bare presence of the defendant at the time of the commission of the crime in question, if he were present, would not justify his conviction unless the evidence shows that he was by some act aiding, abetting, assisting or encouraging the person who actually committed the crime. ’ ’

The change in the instruction was slight and merely changed the verbiage, which did not in anywise change the meaning of the instruction, and there was no error committed in this respect.

Finally, it is contended that the court committed error which, was prejudicial to the rights of appellant in remarks made to the jury, after long deliberation over the case, which tended to coerce the jury into rendering a verdict..

It appears from the recitals of the bill of exceptions that, after the jury had been deliberating for a time, the court called the jury in and made inquiry of the foreman in the presence of the other jurors as to how the jury stood, and the foreman replied, “eleven to one.” The court then stated that the jury would not be discharged, but would be required to deliberate further, and the court then gave further instructions concerning the form of the verdict and handed the jury forms for a verdict either for an acquittal or conviction. The jury came in again just before the noon recess, and, after announcing that a verdict had not been agreed upon, the court discharged them until the reconvening of the court, with the customary admonition not to discuss the case among themselves or permit any one else to speak with them concerning the case until they reconvened after the noon recess for further deliberation. After the recess, when the jury had assembled in the court room, the court made the following statement to the jury:

“Gentlemen of the jury, I just want to say that hung juries don’t get the courts anywhere. It just means additional time taken up by the court and additional burden of expense on the public, and the court sees no reason why there should be no verdict reached in this case, one way or the other. As to how it goes, is a matter for you to determine, and I want you to take these forms of verdict and retire to the jury room and further consider this case.”

It is insisted that this language of the court was calculated to operate as compulsion on the single juror who was holding out for acquittal to go over to the majority and join in a verdict of conviction. It will be observed, however, that the court in its statement admonished the jury that it was their duty to reach a verdict ‘ ‘ one way or the other, ’ ’ and did not direct the attention of the jury to the particular verdict which should be rendered. Tt has been held in some of our decisions that a similar admonition given by the trial court to a jury does not constitute compulsion and is not reversible error. Johnson v. State, 60 Ark. 45; Jackson v. State, 94 Ark. 169; St. L. I. M. & S. Ry. Co. v. Carter, 111 Ark. 272.

In Johnson v. State, supra, Judge Battle, speaking for the court, said:

“In the language objected to, no opinion as to the facts in the case is indicated, nor was the jury advised to yield their honest convictions for the purpose of arriving at a verdict. The court sought to impress them with the importance of a decision, and, while it did not ask them ‘to yield up any question of conscience,’ advised them to not be obstinate or too tenacious of their opinions. What, from this, were they reasonably to understand? Manifestly, that they should not be stubborn or unreasonable in adherence to their opinions. And this is the duty of jurors.”

In the instance now before us for review, the court, by inquiry, elicited a statement from the foreman as to how the jury stood numerically, and it appeared from the statement that the jury stood eleven to one. It is generally a question of discretion with the court to determine how long a jury should be held together in an effort to agree upon a verdict, and there is no impropriety in the trial judge making inquiry as to the probability of the jury being able to arrive at a verdict if kept together for further deliberation. It is the opinion of the majority of this court that it is not improper for the trial court to inquire how the jury stands numerically, but the writer and Mr. Justice Wood think that the practice is not one to be commended, for it is calculated to single out a juror or a small minority of the jurors as being especially in the mind of the court in any admonition that is given. In other words, the remarks of the court are rendered personal to some extent when the fact is openly brought to the attention of the court in the presence of the jury that a small minority is holding out against the majority. It is far better that whatever the court has to say to the jury in an admonition concerning the duty to arrive at a verdict should be entirely impersonal, and a single juror should not be made to feel that he is the sole object of the court’s remarks. However, we do not say that under all circumstances it constitutes reversible error for the court to thus elicit information concerning the standing of the jury and then to further give proper admonition as to the duty of the jurors in an effort to arrive at a verdict. .The inquiry should, we think, be considered in determining the probable effect of the court’s remarks and it might not, under some circumstances, be without controlling force.

In the present instance, when the whole of the court’s remarks are considered together, we do not think that they amount to coercion or to an expression of opinion on the weight of the evidence, and that they do not call for a reversal of the judgment.

We find, after careful consideration of the record, that there was no error committed by the court, and the judgment is therefore affirmed.


text:
    Bank of Searcy v. Baldock.
    Opinion delivered May 1, 1922.
    1. Evidence — relations op. co-sureties on note. — Where the relation of suretyship exists between joint promisors upon a .bill or note, their relation may be shown for the purpose of establishing their relative equities as against each other.
    2. Principal and surety — right to contribution. — The reciprocal obligation of sureties to contribute proportionately to the payment of the principal debt does not depend upon an express contract between them, but is founded on principles of equity as a liability growing out of the mutual relationship.
    3. Evidence — relations op co-sureties. — It may be shown that of two sureties on a note one signed as accommodation for the other and the maker.
    4. Mortgages — mortgagee as innocent purchaser. — A mortgage executed by one tenant in common to plaintiff, conveyed only such rights as the mortgagor had, which were subject to a prior mortgage by both .tenants in common, and the mortgagee in the subsequent mortgage was not an iniiocent purchaser as to equities which might arise between the two co-tenants as to the surplus funds after the foreclosure of the prior mortgage.

      Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. N. Rachels, for appellant.
    Mrs. Hall and Mrs. Phillips were co-sureties for Hall on the Quattlebaum debt and were each liable therefor. One surety cannot take advantage of another so as to be relieved of joint liability. 147 Ark. 530. Mrs. Phillips is estopped from claiming that the debt must be paid by. Mrs. Hall because she did not assert her claim and stood by and permitted the Bank of Searcy to take a mortgage upon Mrs. Hall’s interest in the proceeds of the sale.
    Where there is more property included in a trust deed than is sufficient to satisfy the debts, a pursuing creditor may file a bill to have the trust closed, and the proceeds applied first to the payment of the trust debts, and the excess to the satisfaction of complainant’s debts. 18 Ark. 172; 18 Ark. 508.
    As between parties having liens upon two funds, the holder of the prior lien may be compelled to first exhaust the fund upon which the other party has no lien. 72 Ark. 29.

      Brundidge £ Neelly, for appellee.
    Appellee was not a co-surety with Mrs. Hall but an accommodation surety at the instance of Mrs. Hall. And the Quattlebaum debt should be satisfied out of Mrs. Hall’s share of the proceeds. See 13 R. C. L. 1133; 94 Ark. 335, and cases there cited.
   McCulloch, C. J.

Alpha Smith (then unmarried) and Mrs. Eva Hall, wife of J. W. Hall, were the owners, as equal tenants in common, of ¡certain real estate in the city of Searcy, which they inherited from their father, and which they occupied as their homestead.

J. W. Hall was engaged in the mercantile buiness in Searcy, and borrowed money from one Quattlebaum in the sum of $500, and executed his note for the same. Mrs. Hall and Miss Smith signed the note as joint makers and executed a deed of trust on said real property to appellee Baldock as trustee to secure the payment of the debt to Quattlebaum. J. W. Hall was also indebted to appellant Bank of Searcy on a note in the sum of $1,000, executed to appellant, with certain other parties as sureties.

When the debt to appellant became due, an extension of time was granted in consideration of the execution by Hall and his wife of a mortgage on the latter’s undivided half interest in said real estate to secure the payment of the debt to appellant. This mortgage was executed subsequent to the aforesaid deed of trust executed to secure the Quattlebaum debt.

The Quattlebaum deed of trust was foreclosed by appellee as trustee under the power of sale contained in the deed, and the property was purchased at the sale by T. J. Phillips, with whom Miss Alpha Smith had intermarried, and the price paid by Phillips for the property at the sale was $1,350, which, after paying the Quattlebaum debt, left a surplus of something more than $800.

Mrs. Hall then executed and delivered to appellant a written order, which constituted an assignment, directing appellee, as trustee, to pay over to appellant the sum of $420, which was about half of the surplus proceeds in the hands of appellee after paying off the Quattlebaum debt. Appellee refused to pay the same to appellant, stating that he would hold the proceeds subject to a settlement of the controversy between Mrs. Hall and Mrs. Phillips concerning the right to said surplus.

This action was brought by appellant in the chancery court of White County against appellee to compel the latter to pay over to appellant the amount of surplus funds in the appellee’s hands covered by the order held by appellant from Mrs. Hall.

The contention of appellant is that Mrs. Hall and Mrs. Phillips were co-sureties for Hall on the note executed to Quattlebaum, that the surplus in excess of the amount paid • in satisfaction of the Quattlebaum debt should be equally divided between said co-sureties, and that appellant was entitled to receive, under the order from Mrs. Hall, the latter’s half of said surplus.

On the other hand, the contention of appellee, who defends under the rights and at the instigation of Mrs. Phillips, is that Mrs. Phillips was not a co-surety with Mrs. Hall, but that she was an accommodation surety at the instance of Mrs. Hall herself, and that the Quattlebaum debt should be satisfied out of Mrs. Hall’s share of the proceeds of the foreclosure sale.

Appellant also contends that, even if the contention of appellee is sound with respect to the controversy between Mrs. Phillips and Mrs. Hall with reference to the division of the fund, this has no application as against the rights of appellant, who holds a mortgage on Mrs. Hall’s undivided half interest, subject only to the prior Quattlebaum mortgage, and that appellant is not bound by any equities arising between the two owners of the property with respect to the distribution of the surplus fund.

Our conclusion is that appellant’s contention on both propositions is unsound. Upon the issue of fact in the case, the testimony is with appellee. Mrs. Phillips testified, and she is not contradicted, that she executed the note at the earnest solicitation of both Hall and his wife, and that they both assured her that she would not be called upon to pay any part of the debt.

The evidence was sufficient to warrant the finding that Mrs. Phillips (Miss Smith, as she then was) did not execute the note as a co-surety with Mrs: Hall, but that it was the intention of the parties that she should merely sign the note and execute the mortgage as surety for Mrs. Hall as well as for Hall himself. On the face of the note itself, Mrs. Hall and Miss Smith were joint makers — not indorsers so as to make them liable in succession as between themselves.

We have often held that “Where the relation of suretyship exists between joint promisors upon a bill or note, their relation may be shown as between themselves.” Vestal v. Knight, 54 Ark. 97; Hamiter v. Brown, 88 Ark. 97; Reed v. Rogers, 134 Ark. 528; Colvin v. Glover, 143 Ark. 498.

The principle thus announced is sufficiently broad in its scope to permit co-sureties to prove their relations to each other for the purpose of establishing their relative equities as against each other.

The reciprocal obligations of sureties to contribute' proportionately to the payment of the principal debt does not depend upon an express contract between them, but is founded upon the principles of equity as a liability growing out of the mutual relationship. Weaver-Dowdy Co. v. Brewer, 127 Ark. 462; Reed v. Rogers, supra. The true state of relationship, however, between co-sureties may be proved for the purpose of establishing their equities as between themselves. Within the operation of this principle, it was competent to show that, while Miss Smith and Mrs. Hall both signed the note, not as- joint makers, but as sureties for J. W. Hall, it was not intended between themselves that Miss Smith should be a co-surety with Mrs. Hall, but that she was to be deemed an accommodation surety for both Hall and his wife. The effect of this was to show that, as between the parties themselves, Mrs. Hall was to be treated as a principal debtor and Miss Smith as a surety.

Appellant is in no better attitude in this case than Mrs. Hall would be if she were claiming the fund, for appellant, under its mortgage from Mrs. Hall and the order from her for the payment of the fund, merely stepped into her place, and appellant can claim only such equities as Mrs. Hall could assert.

The mortgage executed by Mrs. Hall to appellant only conveyed what rights she had in the property itself, which was subject to the prior mortgage to Quattlebaum, and appellant, by accepting the mortgage, was not an innocent, purchaser as to the equities which might arise between the two owners in the surplus funds after the foreclosure of the mortgage.

The mortgage, or deed of trust, executed by the two tenants in common to Quattlebaum did not constitute a severable incumbrance upon the moieties owned by the several owners, but was given jointly as security for the whole debt. Therefore, Mrs. Hall’s half interest in the property was bound for the whole debt, and appellant in accepting the subsequent mortgage from Mrs. Hall did so with notice of the fact that the Quattlebaum deed was a superior incumbrance, and it is therefore not an innocent purchaser as against the equities of the owner of the other half of the land. In other words, the equities of Mrs. Phillips were superior in point of time and must prevail over those of appellant.

The decree of the chancery court was therefore correct, and the same is affirmed.


author:
McCulloch, C. J.
      Humphreys, J.,

text:
    Watts v. Bryan.
    Opinion delivered May 1, 1922.
    Highways — tax—vote op majority op electors. — Amendment No. 3 of the Constitution authorizing a public road tax to be levied “if a majority of the qualified electors” of the county ,have voted it, requires a majority only of those voting on the question, not a majority of the highest number of votes cast at .the election, nor a majority of all persons in the county entitled to vote.
    Appeal from Searcy Chancery Court; Ben F. Mc-Mahan, Chancellor;
    reversed.

      W. F. Reeves,'for appellant.
    The court erred in overruling the demurrer of defendant.
    The amendment did not require the affirmative vote of a majority of all the electors voting at the election for State and county officers. 45 Ark. 400; 69 Ark. 336; 15 Cyc. 388.
    Qualified electors who are absent and not voting are considered as acquiescing in the result declared by the majority of those actually voting. 49 La. 422; 21 So. 647; 37 L. R. A. 761; 68 Md. Í46; 5 North Dak. 594; 67 N. W. 958; 20 Ore. 154; 27 Atl. 45; 50 N. Y. 451; 2 Burrow (Eng.) 1017; 104 Ky. 629; 20 Wis. 572; 95 U. S. 360; 111 U. S. 556.

      M. P. Hatcher, for appellee.
    There was no error in overruling the demurrer.
    The majority referred to means a majority of the votes cast at the election, and not a majority of those voting on the question. 45 Ark. 400; 9 R. C. L. sec. 118; 20 C.'J. p. 205; sec. 266; 78 Ark. 432; 117 Ark. 465; 27 Ark. 217; 125 Ark. 557; 9 B. C. L. sec. 117; 6 L. E. A. 317; 135 Ark. 105.
    The subject of road tax cannot be submitted under Amendment No. 5, except at a general election for State and county officers. 95 Ark. 336.
   McCulloch, C. J.

Appellees are citizens and taxpayers of Searcy County, and they instituted this action in the chancery court against appellant as the tax collector of that county to restrain him from collecting a road tax, alleging that it was levied by the county court without authority of a majority vote of the electors of the county as provided in the Constitution. The chancery court granted the relief prayed for in the complaint, the facts being made to appear from the records of the county, and an appeal has.been duly prosecuted.

The facts appearing from the county records are that at the preceding general election the question of road tax was submitted to the electors, and there was a majority of those voting upon the question in favor of the road tax, but not a majority of those voting at the election.

The Constitution (Amendment No. 3, adopted at the general election of 1898) provides that the county courts of the State, with a majority of the justices of the peace, may levy a road tax of not exceeding three mills on the dollar “if a majority of the qualified electors of such county shall have voted public road tax at the general election for State and county officers preceding such levy at such election.”

If the levy of the road tax by the county court was not based on the authority of a majority of the electors within the meaning of the constitutional provision, then appellees, as citizens and taxpayers, ¡have the right to restrain the collector from collecting the tax. Merwin v. Fussell, 93 Ark. 336.

The present inquiry, then, is narrowed to an interpretation of the language of Amendment No. 3 to determine what proportion of votes is required to authorize the levying of a road tax.

Counsel for appellees rely upon the case of Rice v. Palmer, 78 Ark. 432, in support of their contention that a majority of the highest number of votes cast at the election is required. The clause of the Constitution which was under consideration by the court in that case provides for the adoption of an amendment by “a majority of the electors voting at such election.” The language of the amendment now under consideration is different, for it contains no express provision that there must be a favoring majority of those who vote at the election.

The language we are now considering is quite similar to that used in the clause of the Constitution (article 13, § 3) in regard to the removal of county seats, which received interpretation by this 'court in the case of Vance v. Austell, 45 Ark. 400. That provision of the Constitution is that a county seat shall not be changed “without the consent of a majority of the qualified voters of the county,” and the language of the present amendment is that a road tax may be levied “if a majority of the qualified electors of such county shall have voted public road tax.” The similarity of the two provisions is obvious.

In Vance v. Austell, supra, the court held that under this provision of the Constitution it was only necessary to have a majority of those voting on the question of removal. In the opinion in that case it was recognized that there was a conflict in the authorities on the proper construction of similar constitutional and statutory provisions, but the following was approved as the accepted doctrine according to the great weight of authority:

“Where a statute requires a question to be decided, or an officer to be chosen by the votes of a majority of the voters of a county, this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, hut only that the result shall be decided by a majority of the votes cast.”

We think that the decision in the present case should be controlled largely by the views expressed in Vance v. Austell, supra, because of the similarity of the language used in the two provisions of the Constitution. There was nothing said in the provision dealt with in that case about the majority being of the votes cast at the election, and the provision of the Constitution now under consideration is the same in that respect. Among other authorities on this subject, the Supreme Court of the United States has given a similar interpretation to the same language as that used in the provision now under consideration. Carroll County v. Smith, 111 U. S. 556.

It has been said by this court that this “is a government of majorities,” and that in elections only a plurality of the votes on a given question are required “unless there is some contrary specification in the organic law.” Hildreth v. Taylor, 117 Ark. 465. There is, as before stated, no contrary specification in the clause of the Constitution now under consideration, and we should interpret the meaning of the language found in this clause in conformity with the rule of government by majority as expressed by those who exercise the elective franchise. In fact, the similarity of the language of that provision of the Constitution which was construed in Vance v. Austell, supra, justifies the inference that the framing and adoption of this amendment was in the light of the interpretation given to that language in the decision of this court cited above.

Our conclusion, therefore, is that Amendment No. 3 requires only a majority of those voting on the question in order to authorize the levy of a road tax, and that a majority of the highest number of votes cast at the election is not required.

The decree is reversed and the cause remanded, with, directions to dismiss the complaint for want of equity.

Humphreys, J.,

(concurring). I concur in the majority opinion to the effect that only a majority of the qualified electors voting for or against the public road tax in the general election was necessary to carry the road tax, and that the instant case is ruled by the case of Vance v. Austell, 45 Ark. 400. The majority, however, differentiate the instant case from the case of Rice v. Palmer, 78 Ark. 432, relied upon by appellee in support of his contention that a majority of the highest number of votes cast at the election was required to adopt the public road tax. In doing so they indirectly recommit themselves to the doctrine announced by the majority in the ease of Rice v. Palmer, supra. In concurring in the reversal and dismissal of the instant case for the want of equity, it is not my purpose or intention to reaffirm the doctrine announced by the majority in the case of Rice v. Palmer, supra. I am in accord with the concurring opinion of Mr. Justice Riddick and dissenting opinion of Mr. Justice McCulloch registered in that case,’ to the effect that the framers of the Constitution meant to require for the adoption of an amendment only a majority of all the electors voting upon that question at the election. In my opinion, the reasoning of Mr. Justice Riddick upon this particular point in his concurring opinion is unanswerable, and that the conclusion reached by him and Mr. Justice McCulloch is sound. There can certainly be no escape from the correctness of their conclusion since the adoption of the initiative and referendum amendment to our Constitution.


author: Hart, J.

text:
    Logi v. State.
    Opinion delivered May 1, 1922.
    1. Intoxicating liquors — evidence of manufacturing. — Proof of mere possession of “choc beer” is insufficient to warrant a conviction of manufacturing intoxicating liquors where there was evidence that the beer had been bought of another.

      2. Intoxicating liquors. — Proof of possession of a small quantity of hops and yeast was not sufficient to warrant a conviction of manufacturing intoxicating liquor where the testimony showed that they might have been procured for making bread.
    3. Intoxicating liquors — ‘‘malt liquor” defined. — “Malt liquor” is defined as a general term for an alcoholic beverage produced merely by the fermentation of malt, as opposed to those obtained by a distillation of malt or mash.
    4. Intoxicating liquors — burden of proof. — The burden of proof is on the State in a prosecution for manufacturing intoxicating liquors.
    5. Criminal law — weight of circumstantial evidence. — Where circumstantial evidence alone is relied upon to establish the guilt of oiié charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused.
    6. Criminal law — sufficiency of evidence. — A conviction resting upon evidence which fails to come up to the standard prescribed by law is contrary to law, and it is the duty of the court to set aside the verdict.
    Appeal from Sebastian Circuit Court, Greenwood District; John Briseolara, Judge;
    reversed.

      Holland é Holland, for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Antone Logi was indicted for tbe crime of manufacturing alcoholic, vinous,' malt, spirituous or fermented liquors contrary to the provisions of sec. 6160 of Crawford & Moses’ Digest. From the judgment of conviction he has duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for appellant that the evidence is not sufficient to warrant the verdict, and we think that in this contention' counsel are correct.

The chief witness for the State was John T. Tisdale, a prohibition enforcement officer. According to his testimony, he searched the dwelling house of appellant fox-intoxicating liquors in May, 1921. There was a cellar in the yard with a chicken coop over1 the top of it. Two barrels of “choc beer” were found in the cellar or hole in the ground. One of the barrels was nearly full, and the other was about two-thirds full. They had pipes running from them to a cellar under the house. Both barrels were filled with a liquor called “choc beer,” and it is intoxicating. Thel officer also found one carton containing four yeast cakes and a full carton containing six cakes. They were labeled “Yeast Foam” and were such as you buy out of a store. The officer also found two packages of hops and some sugar. He said that “choc beer” would ordinarily ferment in four days unless the weather was very cold. If it is exposed to air it will soon deteriorate, but if kept air-tight it would remain in kegs for fifteen or twenty days or perhaps ninety days. The “choc beer” in question appeared to have been covered up in the hole or cellar for about three weeks. The barrels had sacks over them and boards over the sacks. Then there was a piece of tin roofing over the boards and a chicken coop was set over it.

According to the testimony of appellant, he had bought the “choc beer” from John Loraine for his own use and had placed it in his cellar to preserve it. He had never engaged in the manufacture of any kind of intoxicating liquors and had never been interested therein. John Loraine hung himself a short time after he sold appellant the “choc beer.”

Another witness, who was disinterested, testified that he saw John Loraine bring the two barrels of “choc beer” to the home of appellent and leave them.

The fourteen-year-old daughter of appellant was also a witness for him. According to her testimony the yeast cakes were used to make bread by her mother: There were also two little bunches of hops there, and her mother used them to make yeast.

The court correctly told the jury that the mere pos: session of the “choc beer” by appellant was not sufficient to convict him of manufacturing malt or intoxicating liquor.

It is insisted, however, that the possession of the hops and the yeast was sufficient to warrant the jury in finding him guilty.

Malt liquor is defined as a general term for an alcoholic .'beverage produced merely by the fermentation of malt, as opposed to those obtained by a distillation of malt or mash. Sarlls v. United States, 152 U. S. 570.

It will be noted that only a small amount of hops and yeast calces were found at the home of appellant and these were only in such quantities as would naturally be used by a housewife in cooking. It is true that yeast is used to produce the fermentation of malt, but it was not shown that appellant had on hand any malt, mash or anything of the sort that might have been used in making choc beer.

It was also shown that the officer found some sugar at the house, but the quantity is not stated, and the finding of some sugar there is nothing more than would happen at any home. While the yeast and the hops could be used to ferment malt, nevertheless the yeast could be used for making bread and the hops for making yeast. The quantity found at appellant’s house did not indicate that it was being used to make “choc beer” or other malt liquor.

It is suggested that the reason no quantity of malt, mash or any kind of grain that might have been used in making “choc beer” was not found at appellant’s house was because he had used it up in making the “choc beer.” If appellant had fermented the “choc beer” in the barrels in which it was found, the malt or grain would have settled in the barrels and have been found there. If appellant had manufactured malt liquors in other vessels, such vessels would have likely been found around his place and there would have been the grounds or residue of the grain which had been used in making the malt liquor. A search of the premises was made by the officer and none of these ingredients was found.

As we have already seen the possession of the “choc beer” itself was not sufficient to convict appellant of making it. It was not shown that appellant had purchased or had on hand any quantity of malt, hops, or yeast. To say that he had them on hand and had used them in making ‘ ‘ choc heer ’ ’ would he merely a surmise. Considering the small quantity of yeast and hops found at appellant’s house it is more likely that they were used in cooking than in making “choc beer.” Anyway it would be a matter of conjecture to say that they were used in the manufacture of “choc beer.” The burden of proof was on the State to establish that appellant had manufactured “choc beer,” which is a malt liquor, contrary to the provisions of our statute, and having failed to meet this requirement of the law, a verdict of guilty can not be u-pheld on conjecture merely.

Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Lowry v. State, 135 Ark. 159, and Green v. State, 38 Ark. 304. A conviction resting upon evidence which fails to come up to the standard prescribed by law is contrary to law, and it is the duty of the court to set aside the verdict.

It follows that, the evidence not being legally sufficient to support the verdict, the judgment must be reversed, and the cause will be remanded for a new trial.


text:
    Gage v. Road Improvement District No. 3.
    Opinion delivered May 1, 1922.
    1. Highways — liability on contractor’s bond. — Under Crawford & Moses’ Dig., § 5446, requiring a highway contractor to give a bond to the road district, conditioned to pay all indebtedness for labor and material furnished, and that action thereon, without involving the district in expense, may be brought by any person supplying labor and material, every such person has a separate and distinct cause of action.
    2. Courts — jurisdictional amount — separate cause op action.— A circuit court has no jurisdiction of a consolidated suit on 72 separate causes of action in favor of as many persons on a highway contractor’s bond for material and labor furnished, all of which causes except four were for a sum less than $100, although the aggregate amount exceeded the jurisdictional amount.

      Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    reversed.
    STATEMENT OP PACTS.
    Road Improvement District No. 3 of Newton County, Ark., for the use 'and benefit of the Hale Hardware Company and numerous other parties, brought suit in the circuit court against W. E. Gage, Wm. H. Spencer and the National Surety Company of New York, to recover judgment for the value of materials furnished and labor performed in the construction of a public road for the improvement of which said road improvement district was organized.
    The complaint alleges that W. E. Gage and Wm. H. Spencer were the-principal contractors to construct said improved road, and that they entered into a contract with said commissioners for the faithful performance of their contract. They also executed a bond with the National Surety Company of New York as surety to said road improvement district. The bond was conditioned for the faithful performance of the contract of W. E. Gage and Wm. H. Spencer with said road improvement district. The bond also contained a covenant that Gage and Spencer should pay all bills for materials and labor used in the construction of said improved road. A copy of the bond was exhibited with the complaint and made a part of it. A list of creditors who had furnished materials and performed labor on said road was attached to the complaint and made a part of it. There were about seventy-two claimants and the amount due each of them except four of them was less than $100.
    The defendants interposed a special demurrer on the ground that the circuit court did not have jurisdiction because the amounts sued for were due on separate contracts and were for sums below the jurisdiction of the circuit court.
    The court overruled the demurrer, and the defendants refusing to plead further, the court entered judgment in favor of said road improvement district against the defendants for the aggregate amount sued for.

      To reverse that judgment the defendants have duly prosecuted an appeal to this court.

      N. B. Maxey and Geo. J. Grump, for appellants.
    The circuit court did not have jurisdiction. These were separate and distinct causes of action. Const. 1874, art. 7, sec. 11.
    This is not a suit for the recovery of a penalty, but was an action for the recovery of a certain amount, and judgment for same.
    The amount of each separate demand or cause of action determines the jurisdiction. 78 Ark. 595; 1 Ark. 252; 74 Ark. 615; 95 Ark. 195; 89 Ark. 435.

      E. G. Mitchell, for appellees.
    The circuit court had jurisdiction under sec. 5446 of Crawford & Moses’ Digest.
   Hart, J.

(after stating the facts). The suit is based upon sec. 5446 of Crawford & Moses’ Digest, which is as follows:

“All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that such contractor, or contractors, shall promptly make payment to all persons, supply him, or them, labor and material in the prosecution of work provided for in such contract. Suit may be brought by and in the name of the district upon the bond given to the board. Any person, individual or corporation supplying labor and material shall have the right of action, and shall be authorized to bring suit in the name of the district for his, their or its use and benefit against said contractor and surety, and to prosecute same to final judgment and execution, but such action and its prosecution shall involve the district in no expense whatsoever.”

The section in question is a part of our general statute relating to road improvement districts. The section provides that all contractors shall be required to give bond for the faithful performance of their contracts with security in an amount to be fixed by the board of road commissioners. The section then provides that the bond shall contain an additional obligation that such contractors shall pay all persons supplying labor and materials in the prosecution of the work. It then provides that suit may be brought by and in the name of the district upon the bond given to the board. It provides further that any person supplying labor and materials shall have a right of action and shall be authorized to bring suit in the name of the district for his use against the contractor and his surety.

Continuing, the section provides that such person may prosecute his suit to final judgment and execution, but that the prosecution shall not involve the district in any expense.

The effect of this is to give the district a right to bring suit against the contractor and his surety for a breach of contract for the construction of the road. This part of the statute is for the benefit of the road district and gives it a right of action for the nonperformance of the contract by the contractor, or for a breach thereof by him.

The second condition of the bond is for the benefit of those furnishing material and labor used in the construction of the improved road. The statute in express terms gives such persons a right of action against the contractor and his surety. It is true that the statute provides that the suit may be brought in the name of the district, but it also expressly provides that such action shall not involve the district in any expe'nse. This shows that the Legislature intended that each person furnishing labor or material, which is used in the construction of the road, shall have the control of the action against thé contractor and his surety, and the various suits are separate and distinct causes of action against the contractor and the surety on his bond. Each person furnishing labor or material to be used in the construction of the road acts independently of the others, and the various contracts are necessarily separate and independent agreements. A person who furnishes material under a contract made with the contractor or one of his subcontractors has no relation whatever to a person furnishing materials under another contract. So, too, different persons performing labor on the road under separate contracts have no relation to each other. Each person who brings himself within the provisions of the statute in making a contract has a right of action thereunder in the name of the district, but such action is for his own benefit and is separate and distinct from all other persons claiming rights under different contracts. Such is the effect of our construction of a similar statute in Oliver Construction Co. v. Williams, 152 Ark. 414, and Arkansas Road Construction Co. v. Evans, ante p. 142.

The action was commenced in the circuit court, and, since each cause of action was a separate one and was for less than the sum of $100, the circuit court had no jurisdiction of the subject-matter of the action. Schaap v. First National Bank of Fort Smith, 137 Ark. 251, and S. A. Robertson & Co. v. Lewis Rich Const. Co., 151 Ark. 557.

According to the allegations of the complaint each party had a separate cause of action, and the circuit court was without jurisdiction of those where the amount sued for was less than $100.

Therefore, the court erred in not sustaining the demurrer to the complaint, and for that error the judgment will be reversed and the cause remanded for further proceedings according to law.


author: Smith, J.

text:
    Barnett v. McClain.
    Opinion delivered May 1, 1922.
    1. Appeal and error — question not raised below. — -Incapacity of an infant to sue in his own name cannot be raised for the fir*t time on appeal from a judgment for the infant.
    2. Libel and slander — admissibility op testimony. — In an action for libel, in which plaintiifs were charged with having committed perjury, testimony of grand jurors that one of the defendants who admitted his connection with the prosecution of plaintiffs for perjury but who had denied any connection with the alleged libel, had appeared before the grand jury in connection with the finding of the indictment charging defendants with perjury held admissible.
    3." Libel and slander — words actionable per se. — A publication in a newspaper charging plaintiffs with having given perjured ■' testimony is actionable per se.

    4Ñ Libel and slander — right to compensatory damages. — Where libelous words are actionable per se, the plaintiff is entitled, as a matter of law, to compensatory damages, and is not required to introduce evidence of actual damages to entitle him to sub- . stantial damages.
    5.. . . Partnership- — liability por libel. — Where a libelous publication was signed by one partner in the partnership name, the other , partner would be liable though he did not authorize its publi- - cation, if the publication was to further any partnership plan or . purpose or if he ratified it; but he would not be liable in the ab- -. sence of ratification if the purpose of the publication was not to further the partnership business, but merely because of the individual volition of the partner who published it.
    6.. Partnership — agency.—Each partner is the agent of the partnership while acting within the scope of the partnership.
    Appeal from Hot Spring Circuit Court; W. R. Donham, special judge;
    reversed as to Oscar Barnett.
    ' Henry B. Means and Martin, Wootton & Martm, for appellants.
    The trial court should have directed a verdict for appellants in the suit of Lola McCain. She was an infant and incapable of bringing or maintaining an action in her own name. C. & M. Digest, 1111. See also 117 Ark. 547.
    The appellants were not liable as partners. Bates on Partnership, § 461; 31 Minn. 268.
    Oscar Barnett was not liable, in that the publication was not-within the scope of the partnership agreement, and was not authorized by him. 51 Ind. 66; 7 Hun. 229; 92 S. W. 796; 13 So. 297; 9 111. 478; 14 111. App. 381; 56 Am. Bep. 169; 57 111. App. 296; 55 Am. Bep. 286; 7 Mo. App. 329; 42 N. H. 25; 45 N. Y. 180; 21 Hun. 210; 18 N. Y. Supp. 215; 27 Tenn. 415.
    The court erred in allowing B. M. Johnson, Albert Brown and Geo. Robertson, former grand jurors, to testify regarding what took place in the grand jury room concerning the indictment of Joe Porter for perjury. C. & M. Digest, §§ 2992-3; 99 Ark. 1; 136 S. W. 938; 84 S. W. 497; 73 Ark. 405; 66 S. W. 503; 140 S, W. 289; 100 Ark. 344; 152 S. W. 1019; 106 Ark. 131.

      Isgrig S Dillon, for appellees.
    The legal capacity of Lola McCain to sue was not taken advantage of as provided by statute. C. & M. Dig. § 1189; 117 Ark. 544. Questions are not raised at the trial below will not be considered on appeal. 108 Ark. 490; 74 Ark. 557; 74 Ark. 88.
    If a partner in conducting the business of a partnership causes a libel to be published, the firm as well as the individual partner will be liable. Newell on Libel & Slander, 27. It is not necessary that the partner should publish the libel himself. 106 S. W. 837 ; 21 Ann. Cas. 485.
    The individual members of a copartnership are civilly liable for torts, of which they have no knowledge, committed by any member of the firm in the conduct of the business. 104 N. E. 135; 41 L. R. A. (N..S.) 1223.
    A civil action for libel can be maintained against a partnership where the wrong was done by one of the partners in the prosecution of the business. 83 Ala. 404; 3 So. 800; 106 S. W. 837; 133 Mass. 471.
    Instruction No. 8 was a correct statement of the law. 99 N. E. 258; 41 L. R. A. (N. S.) 1223; 104 N. E. 135; 138 N. Y. Supp. 119.
    The court properly refused to exclude from the jury’s consideration evidence of malicious prosecution. 117 HI. App. 198.
    There was no error in permitting the grand jurors to testify. 12 R. C. L. 1039.
   Smith, J.

Lola McClain, Joe T. Porter and Eugene Porter brought separate suits against Horatio Barnett and Oscar Barnett for damages for libel. The causes were consolidated and tried together, and each of the plaintiffs recovered judgment against both defendants for damages.

The litigation arose out of the publication, in August, 1918, in the Meteor, a newspaper published in Malvern, in which or near which city all of the parties lived, of the following advertisement:

“notice to bidders.

“Notice Is Hereby Given, that any and all parties who may bid upon the above described property with view of securing title thereto are trespassers and will make themselves parties criminally thereto and will become a party to the conspirators now composed of E. H. Vance, Jr., and A. W. Jernigan as attorneys, and Joe T. Porter, Eugene Porter and Lola Porter, as witnesses, because the judgment from which the above described execution issued was secured by fraud practiced by said attorneys upon the court and upon the defendants, E. 0. Barnett Bros., and by perjured evidence given by Joe T. Porter, Eugene Porter and Lola Porter as witnesses, all of which as facts appear upon the recoxds of the circuit court.records of Hot Springs County, Arkansas; as evidenced by transcript of case in E. O. Barnett Bros. v. Joe T. Porter and various affidavits now on file.

“(Signed) E. 0. Barnett Bros.

‘ ‘ By Horatio Barnett. ’ ’

Horatio Barnett and Oscar Barnett are father and son, and for some years had been in business as partners under the firm name and style of E. 0. Barnett Bros. This copartnership did a mercantile and brokerage business, and while thus engaged bought a mortgage which J. T. Porter had given to one Sligh on a mare and a crop of cotton and corn which Porter was growing on Sligh’s farm, and the original litigation grew out of the proceeding brought- to foreclose this mortgage.

The publisher of the paper testified that the article was a paid advertisement, authorized and paid for by Horatio Barnett. He further testified that he had done other printing for E. 0. Barnett Bros., consisting principally of briefs in the Supreme Court, and that Oscar Barnett had paid for that work.

The above notice had reference to a sale about to occur under an execution which had issued in the case of E. O. Barnett Bros. v. Joe T. Porter. This litigation was long drawn but, and came before this court in the following appeals: E. O. Barnett Bros. v. Porter, 134 Ark. 268; same, 138 Ark. 65; same, 138 Ark. 613.

The defendants first filed a motion to dismiss the complaints on the ground that the firm had been dissolved in May, 1919, and that there existed no partnership assets. This motion was overruled; and the same fact was alleged in the separate answers filed in each of the cases. The-answers further pleaded privilege, as relating to a pending suit in court; denied malice; and also pleaded the statute of limitations, and the truth of the publication. In addition, Oscar Barnett alleged in his answers that the publication was the individual act of Horatio Barnett and was unauthorized by him, and was not within the scope of the partnership agreement.

For the reversal of the judgment in the case of Lola McClain, it is insisted that she lacked capacity to sue, in that she was a minor. This question is, however, raised here for the first time; and the failure to raise it in the court below is sought to be excused on the ground that the infancy of the plaintiff did not appear in any pleading filed in the cause and the fact was first made known by the testimony offered at the trial. But no objection to her right to sue was made when this fact was developed in the testimony; and this question is disposed of in the case of Davie v. Padgett, 117 Ark. 544, where it was said: “It is insisted that under our statute, which provides that the action of an infant ‘must be brought by a guardian or next friend’ (Kirby’s Digest, sec. 6021), that incapacity of an infant to sue in his own name is jurisdictional, and that the question of jurisdiction may be raised at any stage of the proceedings, even on appeal to this court. The contention is, we think, unsound. The code of civil practice provides, as one of the grounds for demurrer, that the plaintiff has not legal capacity to sue, and that when such matter does not appear upon the face of the complaint, the objection may be made by answer (Kirby’s Digest, secs. 6093-6096). The last section just cited provides that ‘if no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.’ It thus appears that the statute itself provides that the incapacity of the plaintiff to sue may be waived by the defendant, and is waived by failing to take advantage of the defense at the time and in the manner pointed out by the statute. The judgment is not void because of the plaintiff’s incapacity to sue, but that defect only • constitutes error which calls for a reversal of the judgment, if taken advantage of in apt time.”

It will be observed that the notice charges the plaintiffs with having given perjured testimony in the case of Barnett Bros. v. Porter; and it was shown that both father and son were instrumental in prosecuting Joe T. Porter and Eugene Porter for perjury, alleged to have been committed by them in that case. They were indicted for that offense, and upon their trial were acquitted.

Three members of the grand jury were permitted to testify that Oscar Barnett appeared before them in connection with the finding of this indictment.

No error was committed in admitting this testimony. In the first place, Oscar Barnett admitted his connection with this prosecution. He is a practicing attorney, and in that capacity consulted with his father and advised him that the parties were guilty of perjury. .He admits doing this. Moreover, it was competent, aside from Oscar Barnett’s admissions as a witness on the stand, to show his attitude and relation to this lawsuit and its management as circumstances from which the jury might determine what, if anything, he had to do with the publication of the alleged libelous article. 12 R. C. L. p. 1039.

Defendants undertook to show that the article published was true, in that the plaintiffs in this suit had given perjured testimony in the original suit; and this defense was submitted under instructions against which no objections are urged; and the verdict of the jury is conclusive of that issue of fact. •'

The court refused to give, at the request of the defendants, instruction numbered 7, reading as follows: “You are instructed that you cannot find any damage beyond nominal damages unless the plaintiff proves such damages, and the court tells you that you cannot base your verdict on speculative damages, but it must be based on actual damages; and if the proof fails to show such actual damages your verdict must be for nominal damages only if you find from the evidence the plaintiff is entitled to recover against the defendant.”

No error was committed in refusing this instruction. The article set out above charged the plaintiffs with the crime of perjury, and was therefore actionable perse. The law is that “where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to-introduce evidence of actual damages to entitle him to recover substantial damages. In such case the plaintiff need mot prove special damages in order to recover substantial damages. Murray v. Galbraith, 95 Ark. 199; 25 Cyc. 490.” Taylor v. Gumpert, 96 Ark 354.

It is finally insisted that error was committed in giving, over the objection of Oscar Barnett, an instruction numbered 8, reading as follows: “You are instructed in this case that, if you believe from the evidence. that Horatio Barnett and Oscar Barnett were acting together, or that Horatio Barnett was acting for them in a matter in which the partnership was inter ested, and in which he had a right to represent the partnership,, then, although Oscar Barnett may not have published the libelous publication, then, if Horatio Barnett is liable, Oscar Barnett would be liable also. ’ ’

This instruction appears to make the liability of Oscar Barnett depend upon that of Horatio Barnett, if there was a copartnership, and if Horatio Barnett was liable. But such is not the law. Oscar Barnett testified that he knew nothing about the publication of this article until he read it in the paper. Horatio Barnett was asked if Oscar Barnett knew of this article or had ratified it, and he answered, “No; it produced a little friction between us. He said I had done wrong; it was liable to get us in trouble; that I had better be careful about it. ’ ’

Now, a partner may be civilly liable for the tort of his copartner; and he is liable if such tort is committed in the course of the.partnership business; or if there is a ratification of such act with a knowledge of the circumstances of its commission. McClure v. Hill, 36 Ark. 268.

In 17 R. C. L. page 383, it is said: “According to the weight of authority, a civil action for the publication of a libel can be maintained against a partnership as such, where the wrong was participated in by all the partners, or was done by one of them in the prosecution of the firm’s business.”

The principle upon which a copartner may be held responsible for a libel is similar in principle to that upon which a corporation may be held liable. In the case of Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, a corporation was held liable for slander, and we there said: “There is some conflict of authority in respect to the liability of a corporation for slander; but, inasmuch as a corporation must transact its business and perform its duties through natural persons, it is now well settled that a corporation is liable in damages for slander as it is for other torts. To establish its liability, the utterance of the slander must be shown to have been made by its authority or ratified by it, or to have been made by one of its servants or agents in the scope of his employment and in the course of the business in which he is employed. (Citing cases).”

Each partner is the agent of the copartnership while acting within the scope of the copartnership. “If a partner in conducting the business of a firm causes a libel to be published, the firm will be liable as well as the individual partner. So if any agent or servant of the firm defames any one by the express direction of the firm or in accordance with the general orders given by the firm for the conduct of their business. To hold either of the members of a partnership, it is not necessary that the partner should publish the libel himself. It is sufficient if he authorized, incited or encouraged any other person to do it; or if, having authority to forbid it, he permitted it, the act was his.” Newell, Slander and Libel, (3rd. Ed.), § 472, p. 455.

See, also, Parsons on Partnership, § 100; Burdick on Partnership, p. 219; 1 Bowley, Modern Law of Partnership, § 513; Gilmore’s Cases on Partnership, p. 396; 1 Bates on Partnership, § 315; Gilmore on Partnership, 75; Duquesne Distributing Co. v. Greenbaum, 21 A. & E. Cas. 481.

If it was a part of the partnership purpose to deter bidding at the sale with reference to which the alleged libelous article was published, then both Horatio Barnett and Oscar Barnett are liable; or if Oscar Barnett authorized its publication, then he is liable. On the other hand, if the article was published by Horatio Barnett without authority of Oscar Barnett, and not in furtherance of any partnership plan or purpose, 'but only because of the individual volition of Horatio Barnett, then Horatio Barnett is alone liable.

For the error in giving instruction numbered 8 the judgment as to Oscar Barnett is reversed, and the cause remanded for a new trial. The judgment as to Horatio Barnett is affirmed.