author: Smith, J. McCulloch, C. J.

text:
    Karnes v. State.
    Opinion delivered May 28, 1923.
    1. Criminal law — defense—instruction.—If testimony of a substantial nature presents a defense, the defendant is entitled to have an instruction given on that subject, though it contradicts his own testimony.
    2. Criminal law — accessory—abandonment.—One cannot aid and advise another to commit a crime, and, after inducing him to do so by giving advice and encouragement and assurance of support, escape responsibility by saying that the crime was not committed at the time and place or in the manner he had advised; he must not only withdraw the aid and assistance which prompted and induced the commission of the crime, tout he must communicate the fact of his withdrawal to the person whom he has inspired to commit the crime, and must do so before its commission.

      3. Criminal law — liability of accessory before the fact — abandonment — instruction.—An instruction that an alleged accessory before the fact was not liable if, before the felony was committed, he abandoned the crime and so notified the principal, was properly refused where there was no evidence that the accessory had abandoned the crime except his failure to keep a subsequent appointment with the principal, and no evidence that he had notified such principal of his abandonment of the undertaking.
    Appeal from Cross Circuit Court; G. E. Keck, Judge;
    affirmed.

      W. G. Berry and Block & Kirsch, for appellant.
    Appellant was indicted as an accessory before tlie fact to tlie crime of robbery of W. W. Black, and could uot be convicted upon tlie uncorroborated testimony of an accomplice. Secs. 2309, 3181, Crawford & Moses’ Digest. Dill committed tlie robbery, appellant being at the time out of tlie State, and tlie evidence shows no corroboration of Dill’s statement that appellant participated in any way in the transaction. 49 Ark. 364; 63 Ark. 310; 120 Ark. 148. Even if it be conceded that the evidence establishes that appellant conspired with Dill to rob Black on Friday, October 14, it also shows conclusively that the robbery was not committed at the time or place agreed on, and that appellant withdrew from the conspiracy before the crime was perpetrated. The court erred in refusing to give appellant’s requested instructions numbered 5, 6 and 7. The jury should have been allowed to pass upon the question of appellant’s withdrawal from the conspiracy. 43 Ark. 368.

      J. S. Utley, Attorney G-eueral, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    There was sufficient evidence corroborating the testimony of the accomplice to convict the appellant with the commission of the crime. Sec. 3183, C. & M. Digest; 115 Ark. 480'; 136 Ark. 162; 131 Ark. 599, 233 S. W. 4. Cases cited by appellant are not applicable to different facts of this case. 137 Ark. 250; 148 Ark. 351. The testimony does not -show appellant’s withdrawal from the conspiracy 'before the crime was committed, and instructions requested, five, six and seven, were properly refused. There was strong evidence supporting appellant’s alibi, but the evidence was in conflict and the jury found against him.
   Smith, J.

Appellant, Karnes, was convicted as accessory before the fact to the crime of robbery committed by one Horace Dill on one W. W. Black on October 15, 1921. Dill had entered a plea of guilty to the crime of robbery, and was serving a sentence in the penitentiary when he was called as a witness against Karnes.

Dill testified that he and Karnes lived in Missouri, and that one Dozier Skelton, a brother-in-law of Karnes, lived on Black’s farm. Skelton told Karnes that Black habitually carried on his person from three to four thousand dollars, and these three discussed in the spring of ■ 1920 a plan to rob Black. The discussion was renewed in the fall of that year, and the three met in "Wynne to perfect the details of the robbery. They agreed the best time to commit the crime was when Black was hauling cotton. Their first plan miscarried because Black did not haul the cotton to the place where they anticipated he would haul it. They again met, and it was agreed that Skelton should write Karnes when Black had another load to haul. Karnes received a letter from Skelton that Black would haul another load on Wednesday or Thursday, and the parties prepared to commit the crime on one of those days. Black did not haul cotton on either day, so Dill and Karnes went to the street fair at Wynne on Thursday night, where théy met two young women and an older woman. Dill and Karnes had become impatient over the lack of opportunity to rob Black, and determined to go home on Friday, but, before doing so, Karnes went to the gin on Friday and came back and reported that Black and Skelton had arrived in Wynne. Dill and Karnes put on their overalls and met Skelton for a final conference, at which the plan to rob Black that day was perfected. Karnes insisted that witness Dill and not himself should go out on tlie wagon with. Black, because Black would know Karnes, as Karnes had been at Black’s home a few days before. Karnes was to remain at Wynne, while Dill and Skelton went in the wagon with Black and they were to rob Black on the way to 'Black’s home; and it was agreed that Karnes would meet Dill at a place on the railroad between Fair Oaks and Til-ton, these being stations on the Cotton Belt railroad, and that Dill would indicate the point on the railroad near which he would be in hiding by a small pile of tom paper placed in the center of the railroad track.

After Dill had put on his overalls, Karnes took charge of Dill’s street clothes, and the men separated, to meet again after the robbery at the point indicated by the pile of paper. Skelton knew the road Black would travel from Wynne to his home, and was to indicate to Dill when a favorable time- had arrived and place had been reached for the robbery, but as they drove along Skelton shook his head in protest from time to time, indicating that the time was not propitious on account of the number of people they were meeting and passing on the road, and they arrived at Black’s home without an opportunity having been afforded for Dill to rob Black, but, before getting out of the wagon, Skelton whispered and told Dill to come back the next morning and bring Karnes with him. Dill went to the place appointed for his meeting with Karnes, but failed to find Karnes, so he returned to Fair Oaks and spent the night there, and returned to Black’s farm the next day, and robbed him in the following manner. He told Black he thought of buying his farm, 'and Black proceeded to show it to him. More than one opportunity was afforded, but Dill’s nerve failed him, but finally, on a third trip from -the house into some woods, they came to a ditch, and here the crime was committed. Dill was walking behind Black, when he struck him over the head with his pistol, rendering -Black unconscious. This occurred about eleven o’clock Satur-clay morning. Tlie pistol with which he assaulted Black had been furnished him by Karnes. Dill searched Black’s prostrate body and found $1,181 on his person. He hurriedly made his way to the railroad, and, after counting off $51 of the money, he divided- the remainder into two rolls and hid each roll in a pile of cross-ties. He hid the pistol with one of -the rolls of money, and went to Paragould on the train, where he spent the night. The following day he went to Missouri and to Karnes’ home. Karnes asked him if he 'had gotten the money, but he refused to discuss the-matter with Karnes at that time because Karnes was drunk. He returned to Karnes’ home that evening and found Karnes somewhat sobered, but sick, and told him that he had robbed Black. A short time afterwards Karnes sent another brother-in-law of his back to Cross County with Dill to look for the money, but they found only one of the rolls of bills. Dill testified that the roll which was found was divided equally between himself and Karnes and Skelton, except that he was allowed to keep $51, in consideration of the fact that he had personally committed the robbery; but that Skelton was arrested for this crime, and upon that fact being reported to him by Karnes, he agreed that Skel-ton might have the $51 to aid him in his trial, and gave the'$51 to Karnes to be used for that purpose.

Dill admitted that he never saw Karnes, after leaving him in Wynne, until he saw him in Missouri, after the robbery, and he admitted that he failed to see Karnes at the place appointed for the meeting after Black was to have been robbed on the way to Black’s home in the wagon. Dill testified that Karnes told him in Missouri that his nerve failed him after he reached Fair Oaks, and, instead of waiting between that place and Tilton, as he'had agreed to do, for Dill to appear, he went home.

After leaving Karnes at Wynne, Dill did not see him again until he saw him in Missouri; and after separating from Skelton at the wagon at Black’s home he'did not again see Skelton until the robbery had been committed. •

Karnes denied Dill’s story in its entirety, and testified tliat lie liad never been in Cross County until lie was arrested for the robbery of Black and carried there to be tried on that charge, and offered' testimony which, if believed, established very clearly his defense that he was in Missouri during the time the State’s witnesses located him in Cross County.

The two girls with whom Dill and Karnes went to the fair identified Karnes, as did also the older woman, and three other witnesses, including Black’s wife, also identified him as the man they had seen with Skelton a few days before the robbery, and the identification by three of these witnesses was positive and unequivocal. The other three testified they thought Karnes was the man, but they were not certain.

The court gave, at defendant’s request, correct instructions on the character and quantity of testimony necessary to corroborate the testimony of an accomplice to support a conviction; but the court refused to give, at defendant’s request, instructions numbered 5, 6 and 7. These instructions deal with the same phase of the case, and we set out instruction numbered 7, which is typical of the other two. It reads as follows:

“Even though you may believe and so find, beyond • a reasonable doubt, that the defendant was in Cross County, Arkansas, prior to the commission of the crime with the witness Dill, and that he encouraged and advised the said Dill to commit the same, yet if you find that the crime was to be committed on Friday, October 14, 1921, by witness Dill, and that, after the commission of the crime, the defendant was to meet Dill at a place on the railroad between Fair Oaks and Tilton, and that, after such agreement was so made, the said Dill, for any cause, abandoned the commission óf said crime on said date, and that the defendant Karnes had likewise abandoned the commission thereof in good faith, and that he had left the State of Arkansas and gone to the State of Missouri, and was in said State on the date of the commission of tbe crime, and that said Dill bad notice thal tbe said Karnes bad' abandoned tbe intent to commit tbe crime, and with such notice tbe said Dill thereafter, on Saturday, the 15th day of October, committed said crime, then the court instructs you that the defendant is not guilty, and you will return a verdict for him.”

It is earnestly insisted that error was committed in refusing this instruction, it being insisted that, when Karnes failed to meet Dill at the meeting place on the railroad, and then went to Fair Oaks, where he also failed to meet Dill, this was notice to Dill that Karnes bad not and would not carry out his- part of the agreement, and that, having such notice, Dill could not assume that Karnes was concurring in his conduct on Saturday, when the robbery was carried out in a manner that had never been agreed upon.

Now, the defendant did not testify that he had ever abandoned the conspiracy. On the contrary, his defense is that he never entered it, and all the testimony offered by him was directed to an attempt to sustain that defense.

It is true that, if testimony of a substantial nature presents a defense, the defendant is entitled to have an instruction given on that subject, although it contradicts his own testimony. Gibson v. State, 135 Ark. 520; Flake v. State, 156 Ark. 34.

One cannot aid and advise another to commit a crime and, after inducing him to do so by giving advice and encouragement and assurance of support, escape responsibility by saying that the crime was not committed at the time and place or in the exact manner he had advised. He must withdraw the aid and assistance which prompted and induced the commission of the crime, and this withdrawal must not be a mere mental process, of which the actual perpetrator of the crime is unaware, but he must communicate the fact of his withdrawal to the person whom he has inspired to commit the crime, and must do so before its commission.

At section 12 of the article on Accessories in 1 R. C. L., page 139, it is said: “A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from'the scene. The influence and effect of his encouragement continue until lie renounces the common purpose and makes it plain to the others that he has done so, and that he does not intend to participate further. He cannot, by the coward’s expedient of running away after he has incited his associates to crime, escape punishment.”

At section 27 of the same article, page 147, it is said: “If the accessory withdraws his aid and advice before the crime is committed, and does what he can to prevent its perpetration, he will not be liable if the crime is committed as the result of some new and intervening cause, but mere change of mind will not of itself exonerate him. ’ ’

In the chapter on Criminal Haw in 16 C. J.. under the sub-liead of Accessories before the-Pact, it is said, at section 124, pp. 133, 134: “Where the perpetration of a felony has been entered upon, one who had aided and encouraged its commission may nevertheless, before its completion, withdraw all his aid and encouragement and escape criminal liability for the completed felony; but his withdrawal must be evidenced by acts or words showing to his confederates that he disapproves or opposes the contemplated crime. Thus, his mere flight from the place of the crime before its completion, although his co-conspirators have knowledge thereof, will not relieve him from liability for the consummated crime.”

At section 132, page 137, of the same text, it is said: “If one who has counseled or commanded the commission of a crime, or has agreed to take part in it, repents and withdraws, to the knowledge of the other party, before the crime is committed, he will not be liable as an accessory; but if he does not withdraw until it is too late, or fails to let the other party know of his withdrawal, he will be liable.”

At section 128, page 135 of the same text, it is said: “But for crimes which are the outcome of a total or substantial departure from his counsel, ■agreement, directions, or instructions, he is not liable. Where a particular intent is requisite to constitute a crime, an accessory before the fact must have participated in that particular intent.”

To the text last quoted there is a note 37-(b) reading as follows: “ ‘I believe the following criteria will let the most inquisitive reader into the grounds upon which the several cases falling under this head will be found to turn. Did the principal commit the felony he standeth charged with under the influence of the flagitious advice, and was the event, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject?’ Foster, Crown L., p. 372.”

Under these tests the instruction was not a correct declaration of the law.

The instruction is abstract. The conspiracy was not to rob Black on the 14th, and on no other day; and while he was hauling cotton, and in no other way. The conspiracy was to rob Black, and the time and place of doing- so was a mere detail. Indeed, there had been two plans to rob Black, and both had failed, but the failure in neither case was due, in whole or in part, to the withdrawal of any conspirator from the conspiracy. The failure in the first instance was due to the fact that Black did not haul his cotton to the gin where the conspirators expected him to haul it. The second plan miscarried because there were too many people on the road.

Karnes was not to actually participate in the robbery, according to the second plan. He was not to be present. He was only to wait at an appointed place, and his mere failure to keep the appointment would not support a finding that Karnes had abandoned the crime, and that Dill had notice thereof, and there was no other •testimony in the record upon which to submit that question. The crime was committed with a pistol Karnes had provided for the purpose, and on the morning following the time when its commission had been agreed upon.

Dill testified that Karnes’ explanation of his early departure for home was that his “nerve” had failed him, which was, of course, no legal excuse for his prior participation.

We recognize and concede the right of the jury to accept such parts of Dill’s testimony as they believed to be true, and to reject the parts believed to be false; but we think there is no reasonable interpretation of the testimony from which the jury could have found that Karnes withdrew from the conspiracy and notified Dill of that fact. He was either guilty from the beginning of the conspiracy until the spoils were divided, or he was never a party to the conspiracy at all; and we think no error was committed in refusing to give the instruction set out above.

We think the testimony was legally sufficient to support that of the accomplice Dill; and it was, of course, a question of fact for the jury to pass upon its truthfulness, as well as the testimony tending to establish an alibi; and, as we find no error in the record, the judgment is affirmed.

DISSENTING OPINION.

McCulloch, C. J.

There is testimony from which the jury might have found that the conspiracy was to perpetrate the robbery at a particular time and in a particular circumstance, and that, after the-preparations for the crime had proved abortive, so far as that occasion was concerned, appellant abandoned the project in good faith, under -such circumstances as was sufficient to give notice to the other conspirators of his withdrawal. If those were the facts, then appellant was not a participant in the subsequent commission of the crime, under different circumstances, so as to make him guilty of aiding and abetting. Of course, this depends on the fact that the add or encouragement of the crime was limited' to a particular time and occasion, for, if such aid and encouragement was given toward the commission of the crime, mere withdrawal from the project did not undo the unlawful participation. Such is, I think, the effect of the authorities cited in the opinion of the majority. Appellant was entitled to an instruction submitting that question to the jury, and the instruction requested by appellant was correct.

Hart, J., concurs.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Chambers v. Estes.
    Opinion delivered May 28, 1923.
    1. Appeal and error — instructions—absence op objections.— Where no objections are made to the instructions as given by the court, they will be presumed to have correctly declared the law applicable to the facts of the case.
    2. Brokers — right to commission. — Where a broker’s commission was payable from the last of a" series of notes accepted by the vendor as part of the purchase price, the vendor was liable if he unnecessarily consented to a rescission of the contract and return of the notes, thus defeating the broker’s commission.
    a. Brokers — right to commission — evidence.—In an action to recover a broker’s commission from a sale of timber, evidence that the vendor had unnecessarily consented to a rescission of the contract of sale, thereby defeating the broker’s commission, held to sustain a finding in favor of the broker.
    Appeal from Stone Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      W. M. Thompson, for appellant.
    The sale was rescinded because of insolvency of the purchaser, and appellee, not having procured a purchaser ready, willing and able to pay, was not entitled to commission. The payment of the commission was contingent! upon the receipt of the purchase money, which was never collected. 244 S. W. 41. The purchaser was insolvent, and it could not be collected. Commission not earned where sale not completed. 149 Ark. 118.

      Williamson & Williamson, for appellee.
    The verdict of the jury was in accordance with law, appellant have no application to facts of this case. Ap- and is supported by the testimony. The cases cited by pellan-t -earned his commission when he presented a purchaser whom the vendor -accepted and with whom he entered into a valid contract of sale. 89 A.rk. 289. Appel-lee did not warrant financial ability of. purchaser. 89 Ark. 294. Appellant could not defeat-or avoid payment of appellee’s commission by rescinding the contract of sale. 80 Ark. 254. 149 Ark. 118.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of -Stone 'County to recover $1,000 alleged to be due him as a commission for selling the timber on about 700 acres of land owned by appellant. Appellant filed an answer denying the indebtedness, and this formed the only issue in the case. The issue thus joined was submitted to the jury upon testimony introduced by the parties and instructions given by the court, to which no objections were made, which resulted in a verdict and consequent judgment against appellant in said sum. From the judgment an appeal has been duly prosecuted to this court. As no objections were made to the instructions, it will be presumed that the court correctly declared the -law applicable to the facts in the case, so the only question which can arise on the appeal is whether, under the law, the judgment is supported by the evidence. The contract between the parties was that appellee should sell the timber for cash, and receive as commission for making the sale the excess purchase price over $10,000. Appellee presented a purchaser, J. P. Ivy, ready, willing, and able to purchase the timber for $11,000, $1,500 in cash and the balance on time, who was accepted by appellant, upon condition that appellee’s commission should be paid either with the two last notes, or out of them when collected. ■ Ivy then purchased the timber from appellant, paying him therefor $1,500 oasli and executing nineteen notes to him for $500 each, payable monthly, the first becoming due two months after date, which notes were secured by a vendor’s lien retained in the timber deed executed by appellant to said purchaser. . There is a conflict in the testimony as to whether appellee should have the last two notes, or the proceeds thereof when collected, as a commission. This conflict is immaterial, the effect of the contract being for appellant to receive $10,000 for his timber before appellee should receive his commission. The notes and timber deed were executed and5 delivered on August 31, 1920. At that time timber and lumber prices were at the pinnacle. Ivy was regarded as solvent. Appellee did not warrant his finan-.eial ability or guarantee the payment of the notes representing the unpaid purchase money. Later there was a sharp decline in the prices of timber and lumber, which demoralized the business. Ivy failed to make the monthly payments, and in March, 1921, claimed that he was unable to carry out the contract. After some investigation of the financial condition of Ivy by appellant and his- attorney, they concluded he was insolvent, and, on that account, agreed to a rescission of the contract, without the knowledge or consent of appellee, whereby the timber was deeded back to appellant and the notes returned to Ivy. Testimony was introduced by appellee, tending to show that Ivy was solvent when the contract was rescinded. Olay S. Henderson, who lived at Walnut Ridge, where Ivy resided, testified that in March, 1921, Ivy owned eighty acres of land, his home, a sawmill, and some personal property; that he carried $15,000 or $16,000 life insurance; that he considered him ¿rood for $3,000 to $5,000. This was in addition to the timber purchased from appellant, which was then worth $7.000. While appellee had agreecl’to wait for his commission until appellant had first received $10,000, appellant had no right to make an unnecessarv compromise and thereby defeat the recovery of appellee’s commission. It was appellant’s duty, under his interpretation of the contract, to collect the unpaid purchase money, if possible, and the testimony tended to show that he might have done so had he not compromised the matter and returned the notes. It is argued that, as the indebtedness was $9,500, Ivy was unable to nav same, even if it he conceded that he was g’ood for $3,000. This argument is not sound, for it leaves out of consideration the value of the timber. If $3,000 were added to the value of the timber, the amount would exceed the indebtedness by $500 or more. The testimony is susceptible of the construction that appellant prevented the payment of the notes by returning them to Ivy, when he might have collected them by legal proceedings. Appellant cannot avail himself of the defense of a nonperformance which he has occasioned. Pinkerton v. Hudson, 87 Ark. 506; Vaughan v. Odell & Kleiner, 149 Ark. 118. In this view of the testimony the evidence is sufficient to support the verdict and judgment.

No error appearing, the judgment is affirmed.


text:
    Perry State Bank v. Myers.
    Opinion delivered May 28, 1923.
    Banks and banking — failure to collect check — negligence.—On December 14 plaintiff deposited for collection with defendant bank a check drawn on another bank in the same county, haying in such bank sufficient funds to meet it. Defendant on the same day mailed the check to a correspondent bank in an adjoining county. On December 16 the latter bank mailed the check to the drawee bank, which received it not later than December 17. On December 21 the drawee bank failed. There was an unexplained silence of four or five days. Held that a finding that defendant, through its agent, the correspondent bank, was guilty of negligence in failing to collect the check was sustained by the evidence.
    Appeal from Perry Circuit Court; Richard M. Mann, Judge;
    affirmed.

      G. B. Colvin, for appellant.
    There was no evidence of lack of diligence on appellant’s part in the presentation of the check-for payment. The court erred in refusing appellant’s requested instructions 2, 4 and 5. 5 Cyc. 504. Erred also in giving instructions numbered 2, 3, 4 and 5.

      J. H. Bowen, for appellee.
    Appellant was negligent in presenting the check for payment, and its negligence caused a loss of the amount of it to appellee. 81 Ark. 127; 98 S. W. 956; 95 Ark. Ill, 128 S. W. 554.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of Perry County to recover $240 for failing to collect a check for that .amount drawn on the Bigelow State Bank and deposited with appellant on December 14, .1920. ' The suit was based upon the alleged negligence and carelessness of appellant in not collecting the cheek before the Bigelow Bank failed. It was alleged that the Bigelow. State Bank did not become insolvent until December 22, 1920, and that, had appellant been diligent, it would have collected the check before it failed.

Appellant filed an answer denying the material allegations of the complaint.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a judgment against appellant for the amount claimed, from which is this appeal.

The cause was sent to the jury upon the sole issue of whether or not appellant used due diligence in attempting to collect the check, to which objection was made upon the ground that the instructions submitting the issue excluded the responsibility assumed by appellant in accepting the check for collection. Appellant proved by its cashier that it received the check subject to payment by the bank upon which it was drawn, and assumed no responsibility. The court admitted the proof with reference to the custom of the bank in receiving checks subject to payment by the drawee, and the manner in which presented to the drawee through corresponding banks, but excluded the evidence tending to show what responsibility, if any, the baiik assumed. .Several instructions were asked by appellant and refused by the court, embracing' the idea that the bank assumed no responsibility in accepting the check for collection. The court excluded the evidence relating to the assumed responsibility of appellant bank, and refused to give instructions embracing the idea that it assumed no responsibility, upon the theory that, while the bank might prove the custom and usage of itself and other hanks in the collection of checks, the law fixes its responsibility in making the collections. The law requires a bank to use due diligence in collecting checks deposited with it for collection. What due diligence is depends on the particular circumstances in each case. At the conclusion of the testimony appellant asked for a peremptory instruction on the ground that the undisputed facts showed that it had used due diligence in attempting to collect the check. It is contended that the court committed reversible error in refusing to instruct a verdict in its favor. The facts are undisputed, and are as follows: On the 14th day of December, 1920, appellee drew a check for $240 on the Bigelow State Bunk, and at the time had on deposit in said bank sufficient funds with which to meet it. On said date he deposited the check with appellant, Perry State Bank, for collection, and received a certificate of deposit for same. On the same afternoon appellant mailed the check to the American Bank of Commerce & Trust Company of Little Bock, Arkansas, its corresponding bank, for collection. It was received by the corresponding bank on the 16th, and on the same day forwarded to the drawee, the Bigelow State Bank, the latter hank being the only hank in Bigelow. In due course of mail the check should have been received by the Bigelow Bank not later than the 17th during banking hours. The record is silent as to why the check was not received by the corresponding bank in Little Bock on the 15th instead. of the 16th of the month. The Perry State Bank is located in the town of Perry, only a short distance from Little Bock, and in the same count}'- -with Bigelow, the two towns being only fifteen or twenty miles apart. The Bigelow State Bank did not acknowledge the receipt of the check and pay same, and the corresponding bank did not demand the prompt return of the check. On December 21 the corresponding bank sent a tracer after the check. On December 22 the Bigelow State Bank became insolvent and was taken over by the Bank Commissioner of Arkansas. The Bigelow State Bank paid all checks presented to it over the counter until taken in charge by said Commissioner, and all checks which were mailed to it, until two or three days before it failed. The deputy bank commissioner found the check in question in the Bigelow Bank when he took over its assets, and returned it to the American Bank of Commerce & Trust Company on December 23. That bank charged it back to the account of appellant bank and returned the check to the latter. Appellant bank charged it back to the account of appellee on December 24, and returned the check to him. Five days elapsed between the time the corresponding bank mailed the check to the drawee and the time it sent the tracer after the check. The record is silent as to why no inquiry was made concerning the nonpayment of the check. The jury might have concluded that it was negligence on the part of the corresponding bank not to inquire concerning the check when it failed to receive a response by return mail from the Bigelow State Bank. The negligence of the corresponding bank was necessarily the negligence of the sending bank. It had selected the corresponding bank as its agent for the collection of the check. The unexplained silence of four or five days was a matter for the jury to consider in determining whether the corresponding bank used due diligence in attempting to collect the check. The corresponding bank not only owed the drawer the duty of presenting the check for payment within a reasonable time, but also the duty of pressing payment upon the drawee until payment was refused, and to promptly notify the sending bank, and through, it the drawer, of the refusal to pay on the part of the drawee. The failure to do these things was a matter to he considered by the jury in determining whether due diligence had been used in attempting to collect the check. It cannot be said, as a matter of law, that the failure to collect the check was not due to appellant’s negligence. This was the only issue arising out of the pleadings and evidence, and the court submitted that issue to the jury under correct instructions.

No error appearing, the judgment is affirmed.


text:
    Brewer v. Yancey.
    Opinion delivered May 28, 1923.
    1. Mortgages — deed absolute in form — evidence.—A conveyance absolute in form is presumed to be a deed, and not a mortgage, and to overcome the presumption, in the absence of fraud, the evidence must be clear, unequivocal and convincing.
    2. Mortgages — deed absolute in form. — Whether a deed absolute in form is a mortgage is determined by ascertaining whether it was given to secure a debt.
    3. Mortgages — deed absolute in form — evidence.—Evidence held to establish that a deed absolute in form was intended as a mortgage.
    Appeal from-Conway Chancery Court; W. E. Atkinson, Chancellor;
    reversed.

      B. T. Coulter -and W. R. McHaney, for appellants.
    The instrument was given, conveyance made, to secure a debt, and was in effect only a mortgage. The grantor was ignorant and illiterate, and the instrument was not read over to him. 30 Atl. 672; 5 Neb. 247; 88 N. Y. Supp. 385. Brewer relied on Sutton confidently to attend to his business property for him. 91 N. Y. S. 917; 26 Ark. 610;-85 Ark. 363; 101 Ark. 558. The bank’s contention that the conveyance was made to satisfy balance due of Brewer’s mortgage debt will be carefully scrutinized. 192 Ill. App. 318. Inadequacy of price also entitled to great weight in -showing deed intended as mortgage. 193 S. W. 264; 86 Ark.-460. The test is the continued existence of the debt it was given to secure. 88 Ark. 229; 100 Pac. 1031; 114 Pac. 224. Further advances were made on the strength of the conveyance, and Brewer was allowed to continue long in possession of the lands without notice that the hank claimed them. The written evidence shows that the conveyance was not an absolute one. 13 Ark. 112; 174 S. W. 1154. Other cases in point. 78 Ark. 527; 88 Ark. 336; 174 S. W. 1154; 193 S. W. 264; 202 S. W. 821. The court erred in not holding the instrument a mortgage, and the decree should he reversed.

      Galvin Sellers, for appellee bank.
    The only question is whether or not the deed executed to the Bank of Plumerville should be held to be a mortgage. The grantor had sufficient mental capacity to execute such an instrument. The deed is in proper form, and has been of record in the recorder’s office since March 6, 1911, and is presumed to be a deed. The proof is not sufficient to .show instrument was a mortgage. 85 Ark. 363 and other cases cited by appellants have no application to the facts of this case. If the deed was invalid, Brewer, by accepting a bond for title thereafter for part of the lands, permitting himself to be sued thereon and making default and permitting a decree of foreclosure of the bond rendered against him, ratified the deed. 29 So. 385; 48 Pac. 68; 87 N. W. 748; 16 Kan. 312; 69 N. E. 542; 92 N. Y. 601. To overcome the presumption that a conveyance absolute in form is a deed, in the .absence of fraud, the evidence must be clear, unequivocal and convincing. 143 Ark. 607; 132 Ark. 349; 75 Ark. 551; 40 Ark. 417; 88 Ark. 297; 96 Ark. 564; 105 Ark. 314; 106 Ark. 587; 148 Ark. 654; 148 Ark. 669.

      M. H. Dean, for appellees.
    J. R. Yancey was a bona fide purchaser of the lands and entitled to protection as such. Before he purchased the lands from the bank, he was informed by Brewer that the lands belonged to the bank, and he was looking after the timber for the bank. The record showed he had conveyed the lands by warranty deed. 28 S. W. (T.ex.) 356; 49 Ark. 207; 36 Iowa 664; 50 S. E. (Ga.) 382; 90 S. W. (Tex.) 431; 23 S. W. 257; 108 Ark. 490; note 13 L. R. A. (N. S.) 68.
    Sam M. Yancey not an innocent purchaser, not having1 paid whole consideration. 44 Ark. 48; 49 Ark. 207, cited by appellee, was overruled in 54 Ark. 273. Sam M. Yancey pleads that his vendor, J. R. Yancey, was an innocent purchaser. J. R. admits the Brewers were in possession when he purchased, and claiming an interest in the lands. Eng. & Am. Ene. 513; 40 W. Ya. 540; 54 Ark. 273.
   Humphreys, J.

On February 21, 1910, William Brewer was the owner of a 627-acre tract of land in Conway County, Arkansas. He resided with his family upon the land, four hundred acres being under fence, and three hundred acres thereof in cultivation. Five sets of improvements were upon the property. Brewer was a negro of little or no education, but through his own management and industry had accumulated this large tract of land. In carrying on his business he became indebted to A. R. Bowdre & Company in the sum of $2,614.12, as well as to the Bank of Plumerville. The bank took over the indebtedness of A. R. Bowdre & Company, and, in order to secure that and the amount due it, took a mortgage from Brewer for $4,500 on said date, February 1, 1910, covering the entire tract of land. Cn the 4th day of March, 1911, William Brewer' and his wife, Emma, whom he had married after the execution of said mortgage, executed a warranty deed for these lands to the Bank of Plumerville for a recited consideration of $4,000. The main issue involved in this suit is Avhether said warranty deed, absolute upon its face, was in fact a mortgage to secure the balance due, covered by the mortgage given on February 21, 1910. Two other issues, incidental to the main'issue, were presented by the pleadings, the first being whether M. 0. McKindra and Sam M..Yancey are innocent purchasers of certain parts of tlie tract of land, purchased respectively by tliem, and the second being the amount of the indebtedness secured by the deed, if in fact a mortgage. We incorporate herein an excerpt from the narrative of appellant giving a succinct statement of the proceedings and substance of the various pleadings presenting the issues in the case. It is as follows:

“This suit had its origin in the circuit court of Conway County. On January 17,1918, J. R. Yancey and the Bank of Plumerville joined in a suit in unlawful detainer against Alonzo and Elijah Brewer, alleging ownership in Yancey, by purchase from the bank, of the SW14 and the south 2/3 of the SE% of sec. 26, of the lands in dispute, and praying for possession. The Brewers were ousted. They answered denying the allegations of the complaint. This suit was No. 1493. On February 28, 1918, the bank filed an attachment suit in the court of C. E. Millen, a justice of the peace, against Elijah Brewer, to collect certain rents from him for a part of these lands. This cause was appealed to the circuit court, and became cause No. 1507. On October 7, 1918, William Brewer and his sons, Charlie and William Jr., filed in cause No. 1493 an intervention in the nature of a bill of discovery, asking for a disclosure of the rights under which plaintiffs claimed title aiid for a transfer of the cause to equity. On November 21, 1918, the circuit court made an order consolidating the two causes and transferring them to equity, where they became cause No. 1917, which is the case at bar. On December 30, 1919, after certain discoveries, and by permission of the court, the original defendants, Alonzo and Elijah Brewer, joined their father, William, and their two brothers, Charlie and William Jr., in an amended intervention and cross-complaint, alleging ownership of the lands in dispute, together with the remaining portion of the entire 627-acre tract, making M. 0. McKindra, who bad purchased from the bank the BWi/j. of sec. 25, a cross-defendant, praying for a reformation of the jnstrument of March 4, 1911, and for Yancey and McKindra to be declared purchasers of the parts of these lands claimed by them with notice of the rights of the Brewers. With all these parties properly in court, the cause was heard on August 14, 1920, the instrument of March 4, 1911, was declared to be a mortgage, and Yancey and McKindra were declared to be purchasers of the parts of the lands claimed by them with notice of the rights of the Brewers. On September 11, 1920, this decree was vacated on motion of Sam M. Yancey, who filed an intervention alleging ownership by purchase from J. K. Yancey of the lands described in the original complaint. On September 20, 1920, the decree of August 14th was reentered, reserving to Sam M. Yancey his rights of intervention. On this same date E. H. Coulter and T. M. Williams filed their interplea in the cause, alleging that Coulter had become the owner of the south 2/3 of the SE% of sec. 26, by purchase from William Brewer, and that he had conveyed the same to Williams. On January 6, 1921, on motion of plaintiffs and Sam M. Yancey, the decree of August 14 and September 30 was again vacated. On a rehearing of the cause on November 30, 1921, the court held the instrument of March 4, 1911, to be a deed absolute, and, in keeping with that finding, granted other relief. On that same date a motion was filed to vacate the decree, and, in order to save the rights of the parties over to the ensuing term, the decree was vacated for the purpose of hearing the motion at a later date. An order was made on April 19, 1922, overruling this motion and reentering the decree of November 30, 1921, as of the date of April 19, 1922. From this order and decree the Brewers, Coulter and Williams perfect this appeal.

The trial court did not have occasion to decide either incidental issue. It was admitted that on November 30, 1917, the Bank of Plumerville executed and delivered to J. R. Yancey a deed to 267 acres of said tract, which he conveyed to Sam M. Yancey on December 23, 1919; and that said bank conveyed 160 acres of said tract to M. -C. McKindra on January 28, 1919. After finding that the deed executed by William Brewer and Emma Brewer, on March 4, 1911, was executed and delivered as a deed and not as a mortgage, it follows that Yancey and McKindra were entitled to the lands' conveyed to each by the bank, and that it was unnecessary to state an account between the bank and William Brewer. The court therefore decreed the lands to the Bank of Plumer-ville, Sam M. Yancey, and M. C. McKindra, according* to their several interests as shown by their deeds, and dismissed the suits of appellants for the want of equity.

Appellants contend for a reversal of the decree upon the ground that the testimony shows the deed was given to secure the balance due on the preexisting mortgage indebtedness. Testimony was introduced pro and con as to the capacity of William Brewer to execute the instrument-' in question, and as to whether he was induced to execute it through undue influence. Appellant does not now contend that the evidence is sufficient to show incapacity on the part of William Brewer, and, after reading the testimony, we are convinced that he executed the deed of his own free ■will and without being unduly influenced by the bank’s representative, D. F. Sutton. The testimony does not support the contention of appellant that a fraud was practiced upon William Brewer and his wife, by deception or otherwise, to obtain their signatures to the instrument in question. While of opinion that no fraud was practiced upon William Brewer by Sutton in obtaining the deed,' we are convinced, after carefully reading the testimony, that the instrument was intended by the parties, at the time of its execution, as a mortgage, and not a deed. In arriving at this conclusion we are mindful of the rule that “a conveyance absolute in form is presumed to be a deed, and to overcome the presumption, in the absence of fraud, the evidence must be clear, unequivocal and convincing.” Snell v. White, 132 Ark. 349; Henry v. Henry, 143 Ark, 607. The character of the instrument in cases of this kind is determined by ascertaining whether it was given to secure a debt. If given to secure a debt, the instrument is a mortgage, although a deed absolute on its face. Gates v. McPeace, 106 Ark. 587. In ascertaining the character of the instrument in the instant case, little aid is afforded by the parol testimony of the witnesses introduced by the parties to the action, for the testimony of the witnesses on each side is in sharp conflict. It would extend this opinion to unusual length to set out the testimony of each witness, even in substance. Suffice it to say that the witnesses introduced by appellant testified that the instrument was intended as a mortgage, and that William Brewer remained in possession until ousted therefrom in this litigation, renting' out a large part thereof to tenants, who paid the rent- to the bank on the indebtedness of Brewer, and that he paid the net proceeds of the lands he cultivated to the bank upon his indebtedness; and that the witnesses introduced by ap-pellees testified that William Brewer and all others who occupied the land after the execution of said deed occupied same as tenants of the bank and paid rent to it 'as the exclusive owner thereof. Notwithstanding the conflict in testimony, certain facts are revealed by the record which cannot be reconciled upon any other theory than that the instrument was executed and intended as a security. There was a preexisting mortgage debt at the time the deed was executed. The debt had not increased to an amount equal to or in excess of the value of the land. In fact, according to the face of the two instruments, the mortgage indebtedness had been reduced from $4,500 to $4,000. No urgent necessity appeared for selling the land, especially at a great sacrifice. According to the decided weight of the testimony, the land was worth a great deal more than the consideration expressed in the deed. The deed expressed the correct amount of the existing indebtedness. For more than eleven months after the deed was executed and recorded, the notes of 'William Brewer, evidencing liis indebtedness to the bank, were carried on the books of the bank as bank assets. On December 27, 1911, after the execution of the deed on March 4, 1911, the bank, by its cashier, Sutton, who had procured the deed in question from Brewer, wrote the following letter to him:

“Plumerville, Ark., Dec. 27, 1911.
“William Brewer, Esq., Plumerville, Ark.
“Dear sir: It will soon be time for people to want to begin to make arrangements so as to prepare to farm, and in view of that fact it would be a good idea for you to come down within the next week or so, so we may have an understanding with you about renewing your land debt. If yoh can come soon, kindly do not come on Saturday or Monday, as those are the most busy days we have, and it is generally that we are croweded on those days.
“Yours truly,
“Bank of Plumerville,
“B. F. Sutton.”

At the time the letter was written William Brewer owed no other land debt to the bank except the notes evidencing the mortgage indebtedness, which were carried' upon the books as an asset of the bank, after the execution of the deed in question. Appellee suggests that this letter had reference to a land indebtedness growing out of the execution of a bond for title to 107 acres of land which the bank sold back to Brewer for $1,800. According to the bank’s testimony, the bond for title referred to was not executed until February 14, 1912, some time after the letter was written. A. J. Nesbett, who succeeded Sutton as cashier of the bank in January, 1915, testified that he found a copy of a title bond for 107 acres covering Brewer’s home place, which the bank had executed to William Brewer for $1,800, and that a foreclosure proceeding on the bond was brought and prosecuted to a conclusion in the chancery court of said county against William Brewer. William Brewer denied buying his home place back from the bank, or that a bond was executed to him for same by the bank, or that he executed notes to the bank in the sum of $1,800 to pay for same. He testified that when summons was served upon him in the foreclosure proceding, he and his two sons went to Mr. Nesbett about the matter; that they were disturbed, and Mr. Nesbett told them “to just go ahead, and he would make it all right.” Mr. Nesbett denied making any statement concerning the suit.

We think the offer in the Sutton letter to renew the land debt referred to the mortgage indebtedness and not to the title bond indebtedness, which, according to the bank’s own statement, was not executed for several months after the letter was written. We also think the letter, together with the fact that the mortgage indebtedness was carried on the bank 'books as an asset and not canceled off until Feburary 14, 1912, is proof conclusive that the deed in question was given to secure the mortgage indebtedness.

It was agreed between the parties at the time this cause was submited to the chancellor that he should try and determine the question only of whether the deed of date March 4, 1911, was intended as a deed or mortgage, and, if a mortgage, to fix the amount of the indebtedness due from William Brewer to the Bank of Plumerville. The decree rendered by the chancellor contains the following recital:

“It appears from the pleadings and proofs that the issues to be determined are whether or not the deed executed by William Brewer and Emma Brewer, his wife, on March 4, 1911, and conveying the lands as mentioned above, should be held to have been executed and delivered as a deed, or as a mortgage to secure indebtedness due the Bank of Plumerville; and, if a mortgage, to fix the amount of the indebtedness.” In keeping with this understanding, when appellants filed their original abstract and brief, they did not abstract any evidence relating to the issue of whether M. C. McKindra and Sam M. Yancey were innocent purchasers of certain parts of the. land, purchased by them out of the 627-acre tract in controversy. M. C. McKindra and Sam M. Yancey later filed an abstract and brief upon the issue of whether or not they were innocent purchasers of certain parcels of said tract. In view of the fact that this issue was not tried and determined b3r the chancellor, and perhaps not fully developed, and the further fact that the decree of the trial court must be reversed, ive have concluded to remand the cause in order that the issue as to whether McKindra and Yancey were innocent purchasers may be more fully developed and first determined by the trial court. We also think it more practical for the trial court to state an account, or appoint a master to do so, than to attempt it ourselves in the present state of the record.

The decree of the court is therefore reversed, and the cause is remanded, with directions to the trial court to render'a decree to the effect that the deed in question is, in fact, a mortgage; to determine whether M. C. Mc-Kindra and Sam M: Yancey are innocent purchasers of the particular parcels of land purchased by them out of the 627-acre tract in controversy, and to state an account between William Brewer and the Bank of Plumerville, with permission to the parties to adduce additional testimony, if desired, upon the undecided issues.


author: McCulloch, C. J.

text:
    Tumbleson v. State.
    Opinion delivered June 4, 1923.
    Intoxicating liquoks — indictment for setting up substitute for ' still. — 'An indictment. under Acts 1921, No. 324, § 2, which alleges -that defendant “did unlawfully- and feloniously possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits,” etc., is demurrable for failure to allege that . defendant set up either a still or such a substitute as could he used in the production of distilled spirits.

      Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    reversed.

      I. S'. Simmons, for appellant.
    Motion to require the State to elect should have been sustained. Three offenses are attempted to he charged in the indictment. The court erred in overruling • the demurrer. The material elements of neither offense are alleged. Hoclgkiss v. State, 156 Ark. 340. Error was committed in refusing to give instructions 1, 2, 3, 4, 5 and 6, requested by appellant. Especially should number 1, directing a verdict, have been given. The court erred in dictating instructions numbered 1, 2, 3, 4 and 5, which were taken in shorthand, which is not a compliance with the law requiring written instructions. Sec. 1292, Crawford .& Moses’ Digest; § 23, art. 7, Constitution 1874. The court erred in giving in change § 1 of Act 324 in connection with the reading of the indictment.
    J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee. . ,
    ' The Attorney General confesses error; the indictment is fatally defective, and the demurrer should have been sustained. 151 Ark. 458. The judgment should be reversed, and cause remanded.
   McCulloch, C. J.

Appellant was convicted on the - following indictment (omitting caption) :

-‘‘The said Ed Tumbleson, on the 3rd day of July, 1922, in the county and-district aforesaid, did unlawfully and feloniously possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits and for the distillation and manufacture of alcoholic and intoxicating liquors, against the peace and dignity- of - the State of Arkansas.”

The indictment was framed under the second section of act No. 324 of the General Assembly of 1921 (Acts 1921, p. 372). There was a demurrer to the indictment, which the court overruled, and on the trial of the-.case the State introduced testimony tending to show that there were found on appellant’s farm, near Ms house, a copper stillworm, a five-gallon metal oil can, and a -lot of mash. These articles were not connected together so as to constitute a still; but were found in close proximity, and there were indications that a still had been operated there.

The evidence was sufficient to sustain a finding that appellant had set up and operated an .improvised distillery for the purpose of manufacturing distilled spirits. McGarity v. State, 151 Ark. 423.

The most serious question in the case. is whether the. language of the indictment is sufficient to charge an offense under the statute, and the Attorney General confesses error on this point.

It is clear that the indictment is not sufficient, under the first part of the section mentioned above, for the reason that there is no allegation that the still or still-worm was not registered. In order to. constitute an offense under that part of the section there must be such an allegation. McIntyre v. State, 151 Ark. 458.

The language of the indictment is somewhat confused by the use of the comma between the words “still” and “worm,” but it is evident that the pleader did not intend to use .the word “still” separately from the word “worm” so as to charge the possession of a complete still. It is clear that the meaning was to charge the possession of a stillworm and boiler.

The further question arises, then, whether or not •the language of the indictment is sufficient to charge the offense of setting up a still, or a substitute for a still, within the meaning of the latter part of section 2 of the statute. In the recent case of Hodgkiss v. State, 156 Ark. 340, we undertook to make an analysis of this part of the. statute, and in doing so we said:

“The latter part of section 2 relates to the setting up of the apparatus for use as a distillery, and the thing or things set un must be susceptible of that use. A stillworm cannot alone be used as a distillery, neither can a ‘kettle, waslipot, metal tank, or any other vessel’ alone be so used. The'language relates to a complete distillery, technically speaking, or to any substitute therefor, ‘which, after being set up, may be used for the production of distilled spirits.’ It will be observed that the words, ‘any stillworm or substitute therefor,’ are conjunctively joined with the words ‘a still or substitute therefor, ’ which bears out the interpretation that, in order to constitute an offense under this part of the statute, the apparatus set up must be complete so that it may be used for the production of distilled spirits. This part of section 2 of the statute, and section 3 thereof, overlaps to some extent in effect, but an indictment may be framed in the language of either. The indictment in this case was intended to state an offense under the latter part of section 2, but it merely charges the setting up of ‘a certain trough as substitute for a still, for the purpose,’ etc. It does not charge the setting up of a worm in connection with the still, nor that the trough was a thing ‘which, after being set up, may be used for- the production of distilled spirits.’ A trough may be fit for use as a part of the apparatus for the distillation of spirits, but it cannot alone be used for that purpose.”

It is not charged, in so many words, in the indictment that the accused set up a still, but the charge is that he did “possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits.” Nor is it charged in the indictment that the stillworm and boiler were contrivances “which, after being set up, may be used for the production of distilled spirits.” Under this part of the statute the indictment must either charge the setting up of a still, or it must charge the settingup of substituted contrivances or articles “which, after being set' up, may be used for the production of distilled spirits.'” Of course,' where the charge in the indictment is that a'still is set up for the purpose of producing distilled spirits, it is unnecessary to allege that it is such a contrivance as may he used for that purpose, for the definition of the word “still” sufficiently indicates its use; hut where there is an attempt to charge the setting up of a substitute, then there must be a charge that such substitute is susceptible of use as a still, or, in the language of the statute, “after being set up, may be used for the production of distilled spirits.”

This indictment neither charges that a still was set up nor such a substitute as could be used in the production of distilled spirits. For that reason the indictment is insufficient, and the court should have sustained appellant’s demurrer.

Reversed and remanded, with directions to sustain the demurrer, and for such further proceedings as the court may deem advisable.


author: Wood, J.

text:
    Young v. Morrison.
    Opinion delivered June 4, 1923.
    1. Jury — manner op selection. — Crawford & Moses’ Dig., §§ 6383-5, regulating the manner of selecting a jury, are mandatory.
    2. Jury — manner op selection.. — Where the clerk, under the orders of the court, prepared a list of eighteen jurors from the regular panel of 24, upon which list each of the parties made three peremptory challenges, and the court, at appellant’s request, then called the jurors from the bottom of the list, a substantial compliance with Crawford & Moses’ Dig., §§ 6383-5, is shown.
    Appeal from Miller Circuit Court; George R. Haynie, Judge;
    affirmed.

      David C. Arnold and John N. Coolc, for appellant.
    The court erred in refusing to grant appellant a panel, the clerk of the court, who had made up the jury list, being the party defendant. Secs. 6383-4, Crawford & Moses.’ Digest; 48 Fed. 148; 49 Fed-. 347; 49 Fed. 359. Statute is mandatory. 157 IT. S. 348.

      Pratt P. Bacon and Louis Josephs, for appellees.
    The procedure for selecting the jury was a virtual compliance with the law, and the cases cited by appellant are not applicable to the case made nor controlling herein. Appellant was in no way prejudiced by the method of selecting the jury. 60 Ark. 481; 97 Ark. 226; 128 Ark. 594. Burden on appellant to show prejudicial error. 150 Ark. 508; 139 Ark. 408. Appellee’s consenting to selection of the jury by calling the names from the bottom of list of 24 waived request for drawn jury. 134 Ark. 268. The judgment is right on the whole case, and should be affirmed. 62 Ark. 228; 141 Ark. 540; 135 Ark. 559.
   Wood, J.

This action was instituted by the appellant against O. P. Morrison and John T. Davis. The appellant alleged that Morrison executed a note to appellant in the sum of $1,652.68, and that Davis indorsed the note; that the note was past due, and that no part thereof had been paid. No service was had on Morrison.

On June 12, 1922, the appellee, Davis, answered and denied that he indorsed the note at the time same was executed and delivered to the appellant. He averred that he indorsed the note at the request of the appellant, and solely for his accommodation, and not for the purpose of guaranteeing the payment thereof, but to enable the appellant to obtain an extension of time on his past due indebtedness to the Murray G-in Company.

The cause came on for trial on the 20th day of June, and the bill of exceptions states the following: “* * * the plaintiff appearing by D. C. Arnold, his attorney, and the defendant by his attorney, Louis Josephs, and this cause is. regularly reached upon the docket and called for trial. Before the jury was selected and list thereof furnished the parties, the plaintiff stated to the court that the defendant, John T. Davis, is the clerk of this court, and has prepared the list of eighteen names from which the jury to try this cause'is to be selected, and moves the court to grant a panel in order that the jurors trying this cause should he drawn according to the provisions of law found in 6383 and 6384 of Crawford & Moses’ Digest. The court refused to grant the said motion, and overruled said motion for a drawn jury; to which the plaintiff at the time excepted and ashed that his exceptions be noted of record, which is acQordingly done. The court then to oh the list of jurors, and ashed plaintiff’s counsel if he desired the court to call from the top or bottom of the list as prepared bjr the elerh, whereupon plaintiff’s counsel requested the court to call the jurors from the bottom of the list, which was done. Thereupon the plaintiff was required to go to trial before a jury of twelve men selected from the list of eighteen names of jurors from the regular panel, said list of eighteen names of jurors from the regular panel having been, prepared by said defendant, John T. Davis, in the usual manner, the said John T. Davis being the elerh of this court, upon which said list each of the parties made three peremptory challenges. ’ ’

The cause was submitted to the jury thus formed. The trial resulted in a verdict and judgment in favor of the appellee, Davis, from which judgment is this appeal.

The only question presented by the appellant for our consideration is whether or not the court erred in the manner of forming the jury. The appellee contends that there would have been no reversible error even if the court had refused a jury trial, under the undisputed evidence. But we find that no reversible error was committed by the,.trial court in the manner of forming the jury, and it is therefore unnecessary to consider any other issue. Sec. 6383 of C. & M. Digest provides as follows: “If either party shall desire a panel, the court shall cause the names of twenty-four competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen shall be drawn, and entered on a list in the order in which they were drawn, and numbered,”

See. 6384 provides as follows: “Each, party shall he furnished with a copy of said list, from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining on said original list shall constitute the jury.”

Sec. 6385 provides: “Before the drawing of the list above mentioned, the court shall decide all challenges for cause which are presented, and, if there are not twenty-four 'competent jurors, bystanders shall be summoned, as hereinbefore provided, until the requisite number of competent jurors is obtained; from which said list shall be drawn. Where there are several persons on the same side, the challenge of one shall he the challenge of all, under this chapter.”

Learned counsel for the appellant assumes that the record above set forth shows that the trial court refused him a panel drawn in accordance with the requirements of the above statutes, and, in doing so, erred. To sustain his contention he cites Gulf, C. & S. F. Ry. Co. v. James, 48 Fed. 148; Gulf, C. & S. F. Ry. Co. v. Washington, 49 Fed. 437; Gulf, C. & S. F. Ry. Co. v. Martin, 49 Fed. 359; Gulf, C. & S. F. Ry. Co. v. Shane, 157 U. S. 348. The decisions of the Federal courts in these cases are to the effect that the above provisions of the Digest are mandatory. In the case of Gulf, C. & S. F. Ry. Co. v. Shane, supra, Judge White, speaking for the court, said: “Under these sections (Mansfield’s Digest, which correspond to the sections under review) then, the parties are entitled, after the challenges for cause have been exhausted, to have a list of eighteen drawn according to the terms of the statute, upon which list their peremptory challenges are to be made. The action of the court below was in violation of this statute. It refused to make up the list of eighteen, as requested, and confined the right of peremptory challenge to the twelve jurymen called to be sworn, on the ground that such was the custom and rule of practice of the court. • Manifestly, the ‘rule’ or custom of the court could not override the mandatory terms of the statute. That to thus impanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error, is clear.”

We concur with the -Supreme Court of the United States in this interpretation of our statute, but we do not agree with counsel for the appellant that the above record shows that the trial court denied appellant a panel as the statute requires. On the contrary, as we view the record, the method that the court adopted of selecting the trial panel was a substantial compliance with the provisions of the statute. The record shows that a list of eighteen jurors was prepared by the clerk from the regular panel, as the statute requires, upon which list each of the parties made three peremptory challenges, and the court then called the jurors from the bottom of the list, .at the request of the appellant. It seems that the only reason of the appellant’s counsel for demanding the panel was that the appellee was the clerk of .the court, and had prepared the list. These were mere clerical duties which the appellee had to perform. Even if the appellant had been entitled to have -some one else appointed to perform these duties, which we do not decide, he did not make such request, and he cannot complain therefore because the court did not have some one else prepare the list, if the court had such power under the statute. The appellant does not allege or show that there was any fraud perpetrated upon him by the appellee in the preparation of the list from the regular panel in the usual manner. The judgment is therefore correct, and it is affirmed.