text:
    Missouri Pacific Railroad Company v. Manson-O’Kean Road Improvement District.
    Opinion delivered October 1, 1923.
    Highways — assessment for preliminary expenses — time for appeal. — Under a special act creating a road improvement district and providing that “all cases involving the validity of this district or the assessment of benefits * * * shall be advanced, * * * and all appeals therefrom must be taken and perfected within thirty days,” and also providing for the levy of a tax on all property of the district to pay preliminary expenses in case the improvement is not made, an appeal from an order making an assessment for paying preliminary expenses must be taken within 30 days.
    Appeal from Randolph Chancery Court; Lymcm F. Reeder, Chancellor;
    appeal dismissed.

      Thomas B. Pryor and Ponder & Gibson, for appel- ' lant.

      Pope & Bowers, for appellee.
   McCulloch, C. J.

The road improvement district involved in this appeal was created by a special statute (■act No. 133) enacted during the extraordinary session of the General Assembly in February, 1920, and authorized the construction and improvement of the highway in Bandolph 'County from Manson, on the St. Lonis-San Francisco Bailroad, to O’Kean, a point on appellant’s line. The statute authorized the assessment and appraisal of benefits and the levy of assessments thereon to raise funds to pay for the construction of the improvement. There are two sections of the statute bearing on the present controversy, which read as follows:

“Section 22. All cases involving the validity of this district, or the assessment of benefits, and all suits to foreclose the lien for taxes shall be deemed matters of public interest, and shall be advanced and disposed of at the earliest possible moment, and all appeals therefrom must be taken and perfected within thirty days.

“Section 23. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expenses shall be a first lien upon all property in the district, and shall 'be paid by a levy of tax thereon upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Bandolph County, and.shall be collected by the receiver to be appointed by said court.”

Certain preliminary expenses were incurred in causing surveys to be made, and other things, but the commissioners decided that the improvement could not be made, and abandoned the project altogether, whereupon an action was instituted in the chancery court of Bandolph County by creditors of the district for an adjudication of the amounts of their claims and a levy of an assessment, in accordance with the statute, to pay the debts incurred for preliminary expenses. There was a final decree in that action adjudicating the validity and amounts of the claims of the creditors, and the court also appointed a receiver and made a levy of one and eight-tenths per centum “upon the assessed value of all real property in the district, including railroads.” That decree was rendered on April 7, 1922, and no appeal was prosecuted therefrom. On November 28,1922, appellant instituted an independent action in the Ban-dolpli Cliancery Court attacking the validity of the assessments levied on the property of the company,, setting forth several g*rounds for invalidating the assessment. The cause was heard on December 15, 1922, and a decree was rendered dismissing appellant’s complaint for want of equity.

The transcript was not filed in this court until April 23, 1923, and counsel for appellees, by motion to dismiss the appeal, invoke the provision of § 22. of the act creating the district, which provides that appeals in cases “involving the validity of this district, or the assessment of benefits * * * must be taken and perfected within thirty days. ’ ’'

We are of the opinion that the motion is well founded, that the statute quoted above governs in this proceeding, and that the appeal was not perfected within time to become available for a review in this court. We have in several cases upheld the provisions of similar statutes. The cases on that subject are cited in the recent case of Davis v. Cook, 155 Ark. 613.

The statute in question applies to cases involving the validity of any assessment of benefits, whether those to be made for the construction of the improvement or those made under the statute for the payment of preliminary expenses in case of abandonment of the district. The manifest purpose of the framers of' the statute was to require expedition in all suits involving the question of validity of any assessment made, either for construction purposes or for the payment of preliminarv expenses. There is no reason why the lawmakers could not make the provision applicable to both kinds of assessments, and the language of the statute is open to the interpretation that attacks on either kind of assessments must 'be prosecuted within the time specified.

The appeal not having been prosecuted' within the time required, it follows that it must be dismissed,, and it is so ordered.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Pritchett v. State.
    Opinion delivered October 1, 1923.
    1. ARSON — description of bridge burned. — Between an indictment for arson committed by burning a railroad bridge, the property of a certain railroad company, “designated as bridge No. 7807 and situated approximately three-miles northeast of” a certain city, and proof that the bridge was situated 3 Yz or 3% miles east of said city, and that it was designated by the railroad as bridge No. 78.7 variance held not fatal; the statement of the bridge number being unnecessary and the mistake therein being •merely a clerical error.
    2. Criminal law — judicial notice — The general direction of the route of trunk line railroads is a matter of general knowledge.
    3. Arson — variance.—In a prosecution for arson, a question . of variance between the proof and the indictment is for the court, and not the jury.
    4. Criminal law — harmless error. — Where there was no variance between indictment and proof, the error of submitting the question as to variance to the jury was harmless, though the court should have declared that there was no variance.
    5. Arson — ••evidence.—In a prosecution for arson, in which it was claimed that defendant and another set fire to a railroad bridge, evidence held to sustain a conviction.
    6. Criminal law — evidence—other similar acts. — In a prosecution for arson, in which it was claimed that defendant and another striking employee had set fire to a railroad bridge, evidence as to depredations committed on the railroad property by other strikers held incompetent, in the absence of proof that there was a conspiracy on the part of the strikers to commit the unlawful acts and that the defendant was a party thereto.
    7. Conspiracy — circumstantial evidence. — Conspiracy to commit unlawful acts may be shown by' circumstantial evidence as well as by direct testimony.
    8. Criminal law — prejudicial error. — In a prosecution of a striking railroad employee for setting fire to a railroad bridge, evidence as to other depredations committed on the railroad property, without proof of a conspiracy to commit such acts and that defendant was party thereto, was not admissible to show that the burning of the bridge in question was of incendiary origin, and was prejudicial.
    9. Criminal law — improper statements of prosecuting attorney. - — In a prosecution of a striking railroad employee for setting fire to a railroad bridge, in which defendant testified that, during the night when the crime was alleged to have been committed, he had left for another town, where he had applied • to the yardmaster for employment, the court’s failure to sustain objections to the prosecuting attorney’s statements that he (the prosecuting attorney) had been a railroad man, and knew that the yardmaster could not have given defendant a job, and that two persons were present during the trial who could have testified that defendant did not go to the town where he claimed to have applied for work, held error.
    10. CRIMINAL LAW — INDICTMENT OP AIDER AND ABETTER. — -Under ' Crawford & Moses’ Dig., § 2311, providing that persons present aiding and abetting in the commission of a crime shall be indicted and punished as principal offenders, a person who was present, aiding and abetting in the commission of a crime, may be prosecuted as a principal without being indicted with the one who committed the act. ■
    11. Criminal law — instructions already given. — Refusal to give instructions fully covered by other instructions given by the court was not error.
    Appeal from Madison Circuit Court; W. A. Dich-son, Judge;
    reversed.

      Duty & Duty and Sullins ■& Ivie, for appellant.

      J. S. Utley, Attorney General, and John, L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted under an indictment charging the crime of arson, alleged to have been committed by burning a bridge of the Missouri & North Arkansas Railroad Company, a domestic railroad Corporation. The part of the indictment describing the burned property is in the following language: “A. certain railroad bridge, the property of a carrier, viz., the Missouri & North Arkansas Railway Company, a corporation, and of the value of $6,000, and being known and designated as bridge number 7807, and situated approximately three miles northeast of the city of Eureka Springs, in said Western District of said Carroll County.”

It is contended, in the first place, that there is a fatal variance between the proof in the case and the allegations in the indictment with respect to the identity of the burned bridge. The evidence is undisputed that the burned bridge was about three and a half or three and three quarter miles east of Eureka Springs. There is another bridge, not burned, about two and a half miles east of Eureka Springs. According to the proof, the burned bridge was designated by the railway company by the following figures: “78.7,” which indicates the distance of the structure from Joplin, the northern terminus of the railroad.

Counsel for appellant invoke the application of the rude that “where a person or thing necessary to be mentioned in an indictment is described with circumstances of particular certainty, although it is not requisite, yet those circumstances must be proved. ’ ’ State v. Anderson, 30 Ark. 131; Blackwell v. State, 36 Ark. 178 ; Bennett v. State, 62 Ark. 516; Keoun v. State, 64 Ark. 231; Lee v. State, 114 Ark. 310. We do not think that the facts of this case come within the rule announced above, for there is a sufficiently distinct description of the bridge in the statement that it is a bridge owned by the railroad company approximately three miles northeast of Eureka Springs. Courts and juries, as well as individuals accused of crime, take notice of the general direction of the route of trunk line railroads. The statement of the number of the bridge was an unnecessary addition, and there was merely a clerical error in arranging the figures so as to clearly indicate the number. If a period had been placed between the figures “8” and “0,” it would have indicated the number of the bridge to be 78.07, but the omission of the period and the placing of the figure “0” there changed the figures from seven-tenths to seven one-hundredths. The variance was not of sufficient substance in its nature to prove fatal.

It is also contended that the court erred in permitting the State, in order to obviate the apparent variance in the proof, to show that appellant was advised and knew of the particular bridge that was burned, and also erred in submitting the question of variance to the jury. It was unnecessary to introduce such proof, and improper to submit the question to the jury, for the question of variance between the charge in an indictment and the proof is one for the decision of the court and not for the jury. However, there was no prejudice in either of the respects mentioned, for the reason that the court should have declared, as a matter of law and undisputed fact, that there was no variance.

There are numerous assignments of error with respect to rulings of the court in admitting and excluding testimony and in giving and refusing, instructions. Only thpse which are deemed of importance will be discussed in this opinion.

The general direction of the railroad in question, from Harrison, Arkansas, to Seligman, Missouri, is northwesterly, but the city of Eureka Springs is on a spur running south from the main line of the road about a mile, and the bridge in question is shown by the testimony to be nearly due east from Eureka Springs. The bridge was destroyed by fire some time during the night of January 9, 1923, after eight o’clock,, about which time the last train passed over the bridge, and seven o ’clock the next morning, when the next train came along.

Appellant resides in Harrison, is a railroad brakeman by occupation, and is a member of an organized union known as the 'Brotherhood of Railroad Trainmen.

' There was a strike of practically all of the employees of' the railroad, which began in February, 1921,. and lasted up to the incident under investigation in this prosecution. Practically all of the employees- of the railroad quit work and remained out, appellant being of the number. During the period of the strike, appellant and others were drawing an allowance from the strike fund of the union. The strike was caused by a reduction in wages, which employees refused to accept.

According to the undisputed evidence, appellant and one McCurdy left Harrison in a Ford car on January 8, 1923, and reached Eureka Springs in the evening, or early in the night, stopping at a garage on the hill in the .suburbs of Eureka Springs to get repairs made on the car. After the repairs were made and the two men got supper at a nearby restaurant, they drove off, going in the direction of Seligman. The two men returned in a car about the same hour early in the night of January 9. The time is fixed by most of the witnesses at about the hour of seven in the evening. The men stopped at the garage again for repairs, and remained there until about nine o’clock; they also went to a nearby restaurant and got something to eat. There was a can in the back end of the car, which was observed by the witnesses, and the can appeared to have been one in which oil had been carried. There is a conflict in the testimony as to the size of the can — 'the witnesses for the State say that it was a five-gallon can, whereas appellant says that it was a two-gallon can — but it is undisputed that it was a can which had been used for handling oil. None of the witnesses testified about the contents of the can at that time, or whether it contained anything at all.

The two men got into the car, after the completion of the rep’airs, and rode in the direction of Harrison, and the last seen of them by those witnesses they were going in that direction. One of the State’s witnesses testified that there was a third man in the car, named Kimberlin, another railroad employee on strike, who was sitting on appellant’s lap in the car. There is a conflict at this point in the testimony, and appellant testified that neither Kimberlin nor any other person except himself and McCurdy was in the car. Appellant also testified that, shortly after they left Eureka Springs, they met a man by the name df Nelson, about whom there was a rumor that he was engaged in committing depredations on railroad property, and, fearing that he might arouse suspicion by going out in the car1 with Nelson, he got out and walked back to Eureka Springs, and obtained passage that night back to Seligman in another car. He testified that that was the last he saw or heard of McCurdy.

Neither Kimberlin nor McCurdy were introduced as witnesses, nor their whereabouts accounted for in the testimony.

. The State introduced a witness named Weston, who testified that he was a farmer living near the Carroll County line, on the main highway between Seligman and Eureka Springs, and that, about five o ’clock in the evening preceding the night on which the bridge was burned, two men came by in an automobile, going in the direction of Eureka Springs, and stopped at his house and inquired where they could get some whiskey. The witness identified one of the men as appellant, and testified that, after he had stated to the men that he “wasn’t fooling with whiskey,” appellant replied, “You need not be afraid of us; I am into it deeper than you can be. We a,re going to put down one of the biggest bridges on the M. & N. A. tonight.” The witness further testified that appellant had a revolver in his coat pocket, with several inches of the barrel sticking out, and that he added, “We have got the stuff to do it with.” The witness stated that appellant told him his name was Pritchett and that the name of the other man was McCurdy.

The next day after the burning of the bridge several persons in authority went there to make an examination, among them Mr. Murray, the railroad superintendent, and Mr. McShane, the .sheriff of the county. Both of these witnesses testified that they went there about three or four o’clock in the afternoon. They stated that about half a mile from the bridge they found tracks of a Ford car'where it had turned around and stopped on the side of the road; that some oil had leaked out on the ground, and that there were footprints leading from the car down towards the bridge. The tracks indicated that there were two persons, who walked on each side of the path down to the bridge, and returned single-file. One track was larger than the other, and the shoe tracks indicate that the shoes had new rubber heels, and the witness described the shoes as “a pair of English walking shoes with new rubber heels, about number eight in size.” The witness, wbo testified principally on the question of the' identity of the shoes, stated that he lost his measurement of the trucks, but that, after appellant was arrested, he examined the shoes he had on, and that they appeared to be the size and kind that made the tracks. These witnesses found a five-gallon oil can about one hundred yards from the bridge; they stated that it was a can used for motor oil. They also testified that the -soil around the bridge was slightly damp. They also testified that the ground around the bridge was rocky, rough and hilly, and that the creek which the bridge spanned was dry; that the road leading past the bridge runs west towards Eureka Springs, and was about 150 yards from the bridge.

There was testimony tending to show that a car similar to the one that was used by appellant and McCurdy was parked on the premises of one Wise, adjoining appellant’s home in Harrison, and that Wise had entered a plea of guilty to burning a bridge on the railroad in Boone County.

Appellhnt was a witness in his own behalf, and gave an account of his whereabouts on the night of the burning of the bridge and the days preceding and succeeding. He stated that when he passed through Eureka Springs on the evening of January 8 he was en route from his home in Harrison to Rogers, in Benton County, to visit his wife’s mother, who was sick. He testified that he asked McCurdy to drive him over there, and that, after stopping at the garage in Eureka Springs that night, they pursued their journey on to Seligman and thence to Harrison, and returned to Seligman. the next day. He testified that, after reaching Seligman, it was his purpose to go to Monett to seek employment in the railroad service there, but that McCurdy persuaded him to return to Harrison, and that he did so at McCurdy’s urgent request, reaching Eureka Springs about seven o’clock on the evening of January 9', as stated by the other witnesses. In fact, there is no conflict in the testimony up to this point concerning the journey of appellant with McCurdy through Eureka Springs ánd hack.

Appellant denied that he had any conversation with witness Weston, as detailed by the latter, and stated that they 'did not stop at the house of any one on the journey, back to Eureka Springs, nor had any such conversation with any one as detailed by Weston. He testified, as before stated, that, after leaving Eureka Springs on the night of January'9, he got out of the car and walked back to the city, on account of the fact that McCurdy had picked up Nelson, a man about whom there was a suspicion of lawlessness, and that he did not wish to be seen riding in the car with Nelson. Appellant testified that, after he returned to Eureka Springs, he saw a man about to leave that city in a car for Seligman, and that he tooik passage in the car and returned to Seligman that night for the purpose of taking passage on a train over the Frisco to Monett. He testified that the man with whom he rode that night was named Plummer, who worked in a garage at Seligman. Plummer was introduced as a witness, and corroborated appellant. He testified that he had carried a traveling man from Seligman to Eureka Springs that afternoon, and that on the return trip he permitted appellant to ride with him back to Seligman, and accepted seventy-five cents in payment for the ride, merely to cover the cost of the gasoline.

Appellant testified that after reaching Seligman he left there on a freight train and went to Monett; he said he first tried to arrange with the brakeman for a ride, but, failing to do this, he rode between the cars, and that on reaching Monett he sought the yardmaster and applied for a switching job, but that the yardmaster informed him that he could not use him at that time, but would give him a job in about thirty days. He testified that he rode on a freight train out of Monett over to Aurora, and came to Bergman the next day over the Missouri' Pacific Railroad, and then drove over in a taxicab from Bergman to Harrison.

Tbe theory of the State is that appellant and Mo-Curdy, after leaving Eureka Springs on the night of January 9, left the road from Eureka Springs to Harrison and drove out to within a short distance of ■ the bridge in question, and set fire to the bridge, using coal oil or other combustible oil which was carried in the can that was seen in the car by witnesses, and which appellant admits was in the car.

The facts and circumstances, the substance of which is detailed above, were relied on by the State as sustaining the conviction, and we are of the opinion that this evidence was legally sufficient to warrant the jury in finding that appellant and McCurdy burned the bridge. There was, as indicated above, a sharp conflict in the testimony on material points. There was a conflict even as to the cause of the burning of the bridge, whether it was by fire escaping from the ashpan or smokestack of a passing engine, or was communicated by forest fires. There was much testimony introduced tending to show that fire escapes from the ashpan of engines and that several bridges have been known to catch fire from that source. There was also testimony that there was a forest fire raging in that region that night.

The State was permitted to prove by witness Murray, over the objection of appellant’s counsel, 'that, shortly after the beginning of the strike in the year 1921, there were depredations committed on the railroad property, which consisted of cutting air-hose, interfering with employees, placing obstacles on the line, throwing switches, raising one end of the joint in rails so as to cause derailment, cutting telegraph wires, soaping or greasing the track, putting emery dust in the bearings of locomotives and cars, and putting vitriol in the water so as to cause the flues of the boilers to leak. There was no proof connecting appellant or any of the striking employees with those depredations, except that two of the strikers, Wise and Orr, confessed and pleaded guilty to burning a bridge at Everton, in Boone 'County. The most that the 'witnesses testified in connecting the strikers with these depredations was as to the confession and conviction of Wise and Orr, and that there were seven or eight strikers who were under suspicion. The witnesses testified, under cross-examination, that they did not know who had committeed these depredations, except as a matter of surmise. We are of the opinion that this testimony was incompetent. In order to render it competent, it was necessary to show some concert of action on the part of the strikers to commit unlawful acts, and that appellant was a party to the conspiracy to commit the unlawful acts. This could, of course, be shown by circumstances as well as by direct testimony, but we find no proof in this record tending to connect appellant or the other strikers with the depredations committed along the line of the railroad. The question of the admissibility of this testimony falls within elemental rules'of evidence with reference to proof of other acts committed pursuant to a conspiracy. But, in the absence of proof connecting appellant with the alleged acts of other parties, such testimony falls within the maxim1, res inter alios acta alteri nocere non debet, which is one of universal application. Hamburg Bank v. George, 92 Ark. 472. It is needless to add that the testimony may have been highly prejudicial, and wé are unable to say that it was without influence with the jury in reaching a verdict, hence the error calls for a reversal of the judgment.

The court, in its charge to the jury, limited the consideration of this testimony to the question whether the fire resulted from accident or was of incendiary origin, but the testimony was not competent for that or any o th.br purpose. The accused was not responsible for the acts or conduct of others, in the absence of 'Concerted action or agreement to which he was not a party.

We are also of the opinion that the court erred in two of its rulings on objections made by appellant to statements of the prosecuting attorney in the closing argument. In one instance the prosecuting attorney made this statement: “I have 'been a railroad man, and' have belonged to the union, and I know that the defendant could not have gotten a job from the night yardmaster at Monett, Missouri.” In another instance the prosecuting attorney made the following statement: “'Charles Baltzell was here to show the time that the train left Seligman for Monett, and we had the conductor here to show that defendant did not ride on that train.” It was highly important to the defense of the accused that he give an account of his whereabouts on the night the alleged crime was committed, and there was a direct conflict in the testimony. The testimony of the State’s witnesses tended to show that appellant left Eureka Springs that, night with McCurdy, going toward Harrison, which would have enabled them. to. have changed over to the road going by the burned bridge. On the other hand, the appellant claimed that he left Mc-Curdy and went back to Eureka Springs and thence over to Seligman. He claimed that he rode on a freight train that night from Seligman to Monett, and that he applied to the night yardmaster for work, and was. promised employment by the yardmaster. The prosecuting, attorney undertook to state, as a fact, from his own knowledge, that .appellant could not have obtained employment from the yardmaster, and also stated, in effect, that there were two witnesses present who, if introduced, would have testified that appellant did not ride the freight’ train that night from Seligman to Monett. According to the record, the court made no ruling on these statements in response to the objections of appellant’s counsel, and exceptions were'duly saved in each instance. The statements constituted, in effect, the introduction of testimony and of the witnesses named by the prosecuting'attorney over the objections .of appellant, without the prosecuting attorney or either of those witnesses being introduced or sworn and without any opportunity on the part of the accused to cross-examine them. Such statements are obviously erroneous. Fort v. State, 74 Ark. 210.

The effect of these statements was prejudicial, or might have been so, for they contradicted appellant’s own acount of his whereabouts on the night the bridge was burned.

Error of the' court is assigned in giving instruction-numbered 5, which stated the law to be that the defendant could be convicted under the indictment if it was found that he “either himself did set fire to the bridge or was present, aiding, abetting, or assisting some other person or persons so to do.” It is conceded that, under the statutes of this State, persons who are present aiding and abetting in the commission of a crime “shall be deemed principal offenders, indicted and punished as such” (Crawford & Moses’ Digest, § 2311), but it is contended that, in order to convict one under this state of facts, the person so aiding and abetting must be indicted in connection with the person who committed the act. Counsel cite in support of their contention the case of Hunter v. State, 104 Ark. 245. 'This contention, we think, ignores the plain letter of the statute, that it is not essential that the person so aiding and abetting should be indicted with the principal offender who commits the act. The statute provides that the person so aiding and abetting shall be indicted and punished as a principal,, and contains no requirement that the indictment shall include the principal offender.

Error is assigned also in the court’s refusal to give instructions stating that, in order to convict the accused, the jury must believe beyond a reasonable doubt that the crime had been committed by some one in the manner and form charged in the indictment, and also that it must be shown beyond a reasonable doubt that the burning of the bridge was not caused by accident. Without considering those instructions, it is sufficient to say that the -same grounds were fully covered by other instructions telling the jury that, before- conviction, they must find beyond a reasonable doubt that the bridge was burned, either by the accused himself or by some one else, and that he was: present aiding or abetting in the commission of the crime.

There are several other assignments with respect to the giving and refusing of instructions, but, as before-stated, we find it unnecessary to discusss. them.

For the errors indicated, however, the judgment' is reversed, and the cause is remanded for a new trial.

Wood and Smith, JJ., concur in the judgment.


author: Wood, J.

text:
    Miller v. State.
    Opinion deliverd October 1, 1923.
    1. Criminal law- — motion to withdraw plea op guilty. — Where defendant voluntarily entered a plea of guilty, and subsequently moved to withdraw it, and it did not appear, either in motion or by evidence, that the facts set forth in the motion were not known to defendant at the time he entered his plea,, or that the plea was entered under a misapprehension of facts, the court did not err in denying the motion..
    2. Criminal law — withdrawal op plea op guilty. — Ordinarily the court will permit a plea of guilty to be withdrawn if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act in pleading guilty, or was influenced unduly or improperly, either by hope or fear, in making such plea, or if it appears that the plea was entered from mistake or misapprehension, but will not permit such withdrawal where the plea was entered voluntarily without any undue influence, or where no reason is assigned for its withdrawal.
    3. Criminal law — affidavit for issuance, op warrant. — An affidavit that the accused “did. in the county of Sebastian,., on or before the 27th day of January, 1923, commit the crime of transporting liquor,” held sufficient to sustain issuance of warrant for his arrest for transportation of liquor,, in violation of Crawford & Moses’ Dig., § 6165.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;

    affirmed.

      T. S. Osborne, for appellant.

      As a general rule, leave to withdraw a plea of guilty being in the discretion of the court, a denial of it will not be disturbed on appeal, unless it appears to have been abused. 94 Ark. 198; 114 Ark. 234; 102 Ark. 295. However, a prisoner has an absolute right to withdraw his plea to interpose any good defense which has arisen since the last continuance. 16 Corpus Juris, 397; 51 Neb, 70.
    Where a plea of guilty has been entered under some mistake or misapprehension of his rights, the court should allow it to be withdrawn. 16 C. J. 397-8; 224 Ill. 456; 8 Ann. Cases, 235.
    All courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. 30 G-a. 674; 77 Miss. 691.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Harden Moose, Assistants, for appellee.
    The court did not abuse its discretion in refusing to allow the defendant to withdraw his plea of guilty. 94 ■ Ark. 199.
   Wood, J.

On the 18th day of June, 1923, appellant pleaded guilty in the Sebastian Circuit Court of the crime ,of transporting intoxicating liquor, and a judgment was entered fixing his fine at the sum of $100. Two days-thereafter he filed a motion in which he set up, in effect, that he, in fact, was not guilty of the charge; that he never transported or possessed said whiskey; that he loaned his car to Eay Williams and Joe Thomas, and when they returned it he had a call to come immediately to his sick wife, and as the other parties got out of the car he got in it and started for home; that, being in a hurry, he took no notice of what was in the car; that it turned out that Ray Williams had left his overcoat in the car, and whiskey was in his overcoat, and appellant had no knowledge of same being there; that, without such knowledge, appellant could not be guilty of transporting or possessing liquor; that, after appellant reached-home and was with his sick wife a short time, he started to the drugstore for some medicine and was arrested on the way; that the car was searched and the whiskey was found in Ray Williams’ overcoat in the car; that appellant understood that the officers still had Williams’ overcoat and the whiskey; that, as appellant was in no way responsible for the overcoat and whiskey being in his car, he was not guilty of transporting or possessing • liquor.

The motion was duly verified. The court overruled the motion, and appellant prosecutes this, appeal.

There is nothing in the motion itself, nor did appellant adduce any testimony, to prove that he had no knowledge of the facts set forth in his motion at the time he voluntarily entered his plea of guilty. He does not set up in the motion itself, nor prove by his own, or other, testimony that his plea of guilty was entered under a misapprehension of facts. He does not adduce any testimony to show that his plea was not wholly voluntary. If he had pleaded not guilty, and at his trial had testified that he was not guilty and to the facts as set up in his motion, it would have still been an issue for the court or jury trying the cause to determine whether or not he was guilty. The law governing the subject'is correctly declared in 16 C. J., p. 397-398, § 730, as follows: “Where defendant pleads guilty, he may be allowed to withdraw the plea and substitute another, or a demurrer, or motion to quash; but if the plea is made with an understanding of its nature, and the indictment charges an, offense, the court properly may refuse to permit him to substitute a plea of not guilty, unless a right to withdraw the plea of guilty is given expressly or impliedly by statute; but abuse of discretion in refusing to allow a plea of guilty to be withdrawn is reversible error. The withdrawal of the plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. Therefore, the court ordinarily will permit a plea of guilty to be withdrawn if it fairly appears that defendant -was in ignorance of Ms rights and of the consequence of his act, -or was influenced unduly and improperly, either by hope or by fear, in the making of it, or if it appears that the plea was entered under some mistake or misapprehension. Ordinarily it will not be granted, however, where the plea was entered voluntarily without any undue influence, nr where no reason whatever is assigned for the change.” See Joiner v. State, 94 Ark. 198; Cox v. State., 114 Ark. 234. See also Wolf v. State, 102 Ark. 295 ; 8 R. C. L. 111-112, §§ 77 and 78.

2. The affidavit upon which the warrant was issued •charged that the appellant “did, in the county of Sebastian, <on or before the 27th day of January, 1923, commit the crime of transporting intoxicating liquor.” The •affidavit .thus charging appellant'was sufficient to justify the court in issuing ,a warrant for the appellant, and his arrest under such warrant was sufficient to give -the trial court jurisdiction. As to whether appellant -was guilty of a violation of the statute making it unlawful for any person in any manner to transport intoxicating liquor ■from one place to another in this State, as prescribed in § 6165 of Crawford & Moses’ Digest, was an issue that could have been and would have been developed by the proof if .appellant had not entered his plea .of guilty.. See Allen v. State, 159 Ark. 663.

There is no error. Let the judgment be affirmed.


text:
    Mitchell v. Jimmerson.
    Opinion delivered October 1, 1923.
    Highways — creation of road ’improvement district — repeal.—Acts 1920, No. 209, created Road Improvement District No. 15, embracing territory in the Northern Judicial District of Wood-ruff 'County, and .provided that ’the assessments -of benefits should be extended on the taxbooks of such district and collected therein. Acts 1923, No. Ill, created the Central Judicial District of Woodruff County, embracing in its territory a part of the road district, and providing that all taxes on property in the Central Judicial District should be extended on a taxbook for that district and collected therein. Held that the latter act did not repeal the former, but that the assessments on lands within the Central Judicial District should he extended and collected in such district.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    reversed.

      H. M. Woods and J. F. Summers, for appellant.
    Act 111 (1923) creating the Central District did not repeal or destroy Act 209 (1920) creating Road District 15. The case in 139 Ark. 586, relied upon by appellee, is not decisive of the issne here, as that case involved lands in different comities, where no .provision was made for the assessment of betterments in one county. The lands in District 15 were originally all located in the-Northern District of Woodruff County, and the creation of the Central District (Act 111, 1923) did not destroy the constitutional unity of the- county. Bonner v. Jackson, 158 Ark. 526. The fact that act 209 provides for the extension of taxes on the books in the Northern District should be construed to mean the district wherein the land lies. Statutes should be construed so as to harmonize them and carry out the object which -the Legislature had in view. Endlich, Int. Stat. § 73; 48 Ark. 305.

      W. J. Dungan, for appellee.
    It is the duty of the court to construe laws .as enacted. 47 Ark. 404. Where no inconvenience will follow, a literal interpretation of a statute should be made. 46 Ark. 159. There is an irreconcilable conflict between § 11, act 209 (1920), and § 19, act 111 (1923), and the later statute must prevail. If there was ever sufficient machinery for the enforcement of act 209,. it was destroyed by act 111, creating the Central District, and the case at 139 Ark., p. 586, is decisive.
   Wood, J.

By act No. 209 of the Acts of 1920, Road-Improvement District No. 15 was created, embracing-territory which was all in the Northern District of Woodruff County. By act No. Ill of the Acts of 1923 the Central Judicial District of Woodruff County was cre'ated, embracing in its territory a part of the territory that was formerly in Road Improvement District No. 15 created by Act 209. Section 11 of act 209 creating the Northern District provides that the taxes on the assessed benefits shall be extended on the taxbooks for the Northern District and collected therein. Section 19 of act 111 provides that all taxes on property in the Central District shall be extended on the taxbooks for that district 'and collected therein.

Appellee instituted this action against the clerk of Woodruff County. In his complaint he alleged that he was a landowner of lands situated in the Central District of Woodruff County, and which land was also in the Northern District, which land he described in his complaint. He set up that, ¡by act 209 creating Road Improvement District No. 15, it is specifically provided that the taxes thereon shall be collected in the Northern District; that the assessors of that district had assessed the benefits against his lands and the county court of Woodruff County had levied assessments on these benefits- and directed the extension of taxes thereon; that a contract had been let for the construction of the work to be done in District No. 15, and that the defendant, the clerk of the county court, was about to extend the taxes on plaintiff’s land on the taxbooks of Woodruff County; that there was no authority in law for such extension, ' because, by the provisions of act 111 of the Acts of 1923, it is provided “that three judicial districts of Woodruff County shall be as if they were separate counties;” that by §"19 of act 111 it is provided that the taxbooks shall bé'made for each judicial district and the taxes collected thereon; that, by the terms of act 209 of the Acts of 1920, creating Road District No. 15, it is provided by § 11 thereof that all taxes must be collected in the Northern District of Woodruff County; that, under act 111 of 1923, taxes on land in the Central District can only be collected and extended in the'Central District. Appel-lee therefore alleged that the assessment of benefits as to his lands and other lands in like position is without authority of law, and void, and that the taxes cannot be lawfully extended or collected against his land. The complaint concludes with a prayer for an order restraining Roy Mitchell, as county clerk, from extending the taxes on the assessed benefits on the taxbooks of Wood-ruff County against his lands in Road Improvement District No. 15, and f or other equitable relief. Attached to the complaint as an exhibit is a copy of act No. 209 of the Acts of 1920.

The cause was heard on the issue raised by a general demurrer to the complaint. The court overruled the demurrer, and the defendant declined to plead further, and stood on his demurrer. Thereupon the court entered a judgment in favor of the plaintiff, from which is this appeal.

In Wood v. Willey, 139 Ark. 586, an attack was made upon an act of the General Assembly of 1919 intending to create the Grady & Arkansas River Road Improvement District of Lincoln and Jefferson counties. In that case the act was declared void because it failed to provide any machinery for the assessment and collection of betterments on the lands in Jefferson County for their proportionate share of the cost of the improvement. The appellee relies upon the authority of that case to sustain his contention that act No. 209, creating Road Improvement District No. 15, is destroyed by the provisions of a later act, act No. Ill of the Acts of 1923, which, he urges, is in direct conflict with the former act. But we cannot uphold this contention of the appellee.

In Wood v. Willey, supra, after setting out the provisions of the act and the amendment thereto, the court, in reviewing and construing the same, concludes its opinion as follows: “If it be conceded that the county court of Lincoln County might levy the tax on lands in Jefferson County, if authorized so to do by the Legislature, it is certain it cannot do so in the absence ■of that authority. We are not, therefore, called upon to decide whether the county court of Lincoln County could he constituted an agency to assess all the lands of the -entire district, as it was in fact constituted an agency to assess only the lands in Lincoln County. It follows therefore that no machinery has been provided to assess against the betterment of the Jefferson County lands their proportionate share of the cost of the improvement, and the act necessarily falls on that account.” But the facts of that case are not 'analogous to this, and therefore the conclusion there reached is not controlling here. In that case the lands constituting the district were situated in Lincoln and Jefferson counties, two separate and wholly independent governmental agencies, and the officers in the one could not function to extend and collect the taxes assessed on the land's in the other, without at least being expressly authorized so to do, -and there was no provision in the act or the amendment thereof, which at first only embraced lands in Lincoln County and was afterwards amended -to include lands in Jefferson County, for taxing the lands in Jefferson County, or collecting the tax. The original act only embraced lands in Lincoln County, and was afterwards amended to include 'lands in Jefferson County without an alteration of its structure, so that the lands in Jefferson County might bear their proportionate share of the -cost of the improvement.

Here the lands are situated wholly in Woodruff County, and when act No. 209, creating Road District No. 15, was enacted, provision was made for the assessment, extension, and collection of the taxes in the Northern District. • Act 111, creating the Central Judicial District, and including therein a part of the lands formerly embraced in the territory of the Northern District, and providing that all taxes on property in the Hentral Judicial District should be extended on a tax-book for that district and collected therein, does not expressly, nor by implication, repeal the provisions of the act providing* for tlie extension and collection of taxes in the Northern District. There is no conflict in the provisions of the latter act which could he construed to repeal, by necessary implication, the provisions of the former act. On the contrary, these acts should be construed together as providings a method for extending, and collecting the taxes on the lands .in Eoad District No. 15, situated- in the Northern District in that district, and the taxes on the land-s in Road District No. 15 that are situated in the Central -Judicial District to be extended and collected in the ‘Central District. The functionaries who perform these duties in the respective districts are precisely the same— the same county court, the same clerk, and the same collector. The integrity of the county in which these districts are situated, as a governmental unit, is in no wise impaired by the creation of these districts. The county, as a unit of government, is not dismembered by act 111, approved February 12, 1923. See Bonner v. Jackson, 158 Ark. 526. It was certainly not the purpose of the Legislature to destroy Road District No. 15 in the Northern District of Woodruff County by the creation of the Central Judicial District of Woodruff County. We do not find that there is any conflict in the statutes that would operate to repeal act No. 209 creating Road District No. 15 of Woodruff County by necessary implication. Both acts may stand and be enforced without conflict, and effectuate the purpose of the Legislature in enacting them.

The trial court therefore erred in overruling the demurrer and in entering a decree enjoining the appellant from extending taxes on appellee’s land in Eoad Improvement District No. 15. The decree is reversed and the cause remanded, with directions to sustain the demurrer.


author: Hart, J.,

text:
    Hall v. Benton.
    Opinion delivered October 1, 1923.
    1. Replevin — burden of proof. — In replevin the plaintiff is required ,to prove the ownership of, and right of possession to, the property sought to be recovered.
    2. Replevin — evidence of value. — Where hogs were impounded and ' sold for $10, that fact was sufficient to establish their value.
    3. Animals — salé of impounded animals. — Where hogs of one living outside a city were impounded while running at large in the ■ city contrary to an ordinance enacted under Acts 1915, p. 812, § 1, and were sold in the manner provided by the ordinance on the owner’s refusal to pay the charges, he was not entitled to recover them. '*•■'’■ (-
    . Appeal from Saline Circuit Court; W. II. Evans, Judge;
    affirmed.
    STATEMENT OE FACTS.
    This suit was commenced before a justice of the peace' by M. A. Hall against the city of Benton to recover three hogs. Upon a judgment rendered against him in the justice court, the plaintiff appealed to the circuit court. There the case was tried before a jury.
    Upon the part of the plaintiff it was shown that he lived out in the country from Benton, in Saline County, Ark., and that the hogs in question belonged to him. The plaintiff allowed the hogs to run on the range near his property, and they strayed into the city of Benton, and were impounded. The plaintiff found out about their being taken up on the day following, and demanded the hogs from the authorities at the pound. He refused to pay the charges on the hogs, and on that account the officers in charge of them refused to return them to him. The plaintiff then brought this suit against the city of Benton to recover the hogs.
    On the part of the defendant it was shown that the hogs were found running at large within the corporate limits of the city of Benton. The hogs were taken up pursuant to an ordinance making it unlawful for the owner of hogs and certain other. enumerated animals to suffer or permit any sucb animal to run at large within the incorporate limits of the city of Benton. Upon the plaintiff’s refusing to pay the charges against the hogs, the city authorities in charge of the pound refused to deliver them to him, and duly sold them for the sum of $10, as provided by the ordinance in question.
    Upon a verdict being returned in favor of the' defendant, the circuit court rendered judgment, dismissing the complaint of the plaintiff.

      Isaac McClellan, for appellant.
    The instructions of the court, placing the burden upon plaintiff of showing that his hogs were not in the city limits, are erroneous. Before he could be guilty of an infraction of the ordinance, it .must be shown that appellant knew that his stock was running at large within the limits of the corporation and that he permitted them to do so after he had such knowledge. 100 Ark. 504; 73 Ark. 428; 77 Ark. 248.

      Ernest Briner, for appellee.
    There is no bill of exceptions in the record, in the absence of which this court will presume that every fact necessary to sustain the finding and judgment of the court was established by the evidence. 139 Ark. 408. There was testimony showing that the hogs were taken inside the city limits, and the matter was' a question for the jury. Where there is any evidence of a substantial nature to sustain the finding of a jury on a question of fact, the verdict will not be disturbed on appeál. 92 Ark. 586; 95 Ark. 321; 103 Ark. 441; 105 Ark. 502; 108 Ark. 425. The question of the value of the hogs was not raised in the trial court and cannot be raised here for the first time. 79 Ark. 293; 96 Ark. 52; 103 Ark. 505. The ordinance in question was based on the authority of act 204 of Acts of 1915, and was valid
   Hart, J.,

(after stating the facts). It is first insisted that the court erred in instructing the jury that the burden of proof was upon the plaintiff. We do not think so. In an action of replevin to recover the possession of personal property the plaintiff is required to prove the ownership and right of possession. Ellis v. Caruthers, 137 Ark. 134. It is also insisted that there was no evidence to prove the value of the hogs. It appears from the record that the hogs were sold for the sum of $10, and this was sufficient to establish their value.

-It is next insisted that the evidence is not legally sufficient to support the verdict. The ordinance in question declares it to be unlawful for the owner of hogs and certain other named animals to suffer or permit any such animal to run at large within the incorporate limits of the city of Benton, Ark. The ordinance was passed pursuant to a special act of the Legislature of 1915. Acts of 1915, p. 812.

Section 1 of this act provides for the impounding of certain animals, including hogs, found to be running at large in a city or town, whether owned by a resident of such city or town or a nonresident thereof. The hogs in question were impounded under an ordinance duly passed by the city of Benton under the provisions of this special statute. The hogs were found running at large within the corporate limits- of the city, and were duly impounded and sold in the manner provided by the ordinance. The owner of the hogs refused to pay the charges- against them as provided by the special statute and ordinance in question. Hence it cannot be said that the evidence is not legally sufficient to warrant the verdict.

It follows that the judgment will be affirmed.


author: Hart, • J. McCulloch, C. J.

text:
    Whittington v. State.
    Opinion delivered October 1, 1923.
    1. Criminal law — entrapment by officer. — The fact that a purchase of intoxicating liquors was induced by an officer for the purpose of prosecuting the seller constitutes no defense.
    2. Intoxicating liquors — purchase by agent — instruction.— Where defendant, in answer to an inquiry, stated that he had no whiskey but that he could get some, and did procure it from another, and there was testimony that he was not in any way interested in the. sale, and that the whiskey was procured solely as an accommodation to the buyer, it was error to refuse to instruct the jury that, if defendant was acting as the agent of the buyer, and not of the seller, then defendant was not guilty.
    3. Criminal law — felony—direction of verdict. — As selling liquor is a felony, it was error to direct a verdict of guilty against defendant.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      T. 8. Osborne, for appellant. •
    The evidence in this case clearly shows that the design and purpose originated and was suggested by the officer, with the aid of Jack McClung, to lay a “trap” and “inveigle somebody into selling liquor.” A defendant cannot be convicted of a crime when he was incited and induced to commit it by a government officer for his entrapment. 253 Fed. 863; 240 Fed. 60; 153 C. C. A. 96; 223 Fed. 412; 137 C. C. A. 604; 12 Cyc. 160.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
    The Federal cases cited by appellant are not applicable, and should not be considered. It is a violation of the law for .any one to sell or be interested in the sale of intoxicating liquors. C. & M. Digest, § 6160. The sale is the only requisite to constitute the crime under the statute. 149 Ark. 643; 149 Ark. 648.
   Hart, • J.

Charles Whittington was tried in the circuit court before a jury on the charge of selling intoxicating liquors in violation of the statute. The jury returned a verdict of guilty, and fixed Ms punishment at one year in the State Penitentiary. The defendant lias duly prosecuted an appeal to tMs court.

The conviction was secured on the testimony of H. B. Patterson, a deputy sheriff. According’ to his testimony, a taxicab driver, named McClung, purchased some whiskey from Charles Whittington in the city of Port Smith, Sebastian County, Ark., on the night of March 4, 1923. Patterson was present and saw the whole transaction. Patterson and McClung drove down on Ninth Street to where Whittington was. McClung asked Whittington if he had any whiskey, and Whittington replied “No.” McClung asked him if he could get him some, and Whit-tington said “Yes.” Whittington asked McClung who was in the car with him. McClung replied “Look at him, he is all right.” He told the negro that he was rooming at the Goldman Hotel, and he looked at him and said, “He is all right.” He then asked McClung how much whiskey he wanted, and McClung told him. In fifteen or twenty minutes the negro returned with the whiskey, and said it was worth $6. McClung paid the defendant for the whiskey and received it from the defendant.

The deputy sheriff had been informed that whiskey was being sold in the neighborhood in question, and he procured McClung to go down there and buy the whiskey in order to catch the person or persons who were selling it. The defendant admitted that he went and got the whiskey for McClung and delivered it to him, but says that he was arrested by the officer before he was paid by McClung for the whiskey. He denied that he was engaged in the business of selling intoxicating liquors, and said that he purchased the liquor from another negro solely as an accommodation to McClung. and that he had no interest whatever in the sale of the whiskey. He had never bought any whiskey from the negro before. He admitted that, a few days before, the negro who had sold him the whiskey in question for McClung told Mm that he was engaged in the business of selling intoxicating liquors. •

It is urged as a defense to the prosecution that the liquor was purchased by McClung for the deputy sheriff for the very purpose of having the defendant prosecuted for its sale, and that the court erred in not instructing the jury, at the request of the defendant, that, if the liquor was procured for the purpose of supporting the prosecution under the circumstances detailed by the deputy sheriff, the defendant was entrapped into making the sale, and was not guilty of a violation of the statute.

There has been much discussion as to the relation of detectives to crime and the effect of officers hiring them to induce or solicit the 'commission of a crime. There is a clear distinction between inducing a person to do an unlawful act for the purpose of prosecuting him, where the consent of the prosecuting witness is a necessary element of the offense, and catching the' offender in the execution of a criminal design of his own conception.

In certain crimes relating to person or1 property, consent is a necessary element of the offense, and, where the accused is lured into the commission of such a crime for the very purpose of prosecuting him therefor, there are well considered cases holding that no conviction may be had. Prosecutions under the liquor laws do not fall within this class of cases. The sale of intoxicating linuor contrary to the statute depends, after all, upon the voluntary act of the person selling the liquor. The fact that an officer of the law procured a detective or other person to purchase the liquor for the purpose of convicting the defendant can make no difference, since an officer cannot, by consenting to the sale, justify the illegal act of selling on the part of the defendant, any more than could the consent of any private person justify the sale.

The mode adopted by the officer in this ¡case to bring to light the fact that the defendant was selling intoxicating liquors had no necessary connection with his violation of the law. The defendant exercised his own volition in the matter, independent of all outside influence or control.

In a case note to 18 A. L. R, at p. 162, the defense of entrapment in a prosecution for selling intoxicating liquors is discussed, and it is said that the great 'Weight of authority supports the view that a person making an unlawful sale of intoxicating liquors is not excused from criminality by the fact that the sale is. induced for the purpose of prosecuting the seller. Many eases are cited from the various courts of last resort and from the Circuit Court of Appeals of the United States, and most of them sustain the annotator. Goldstein v. United States, 256 Fed. 813; Fetters v. United States, 260 Fed. 142, certiorari denied in 1919, 251 U. S. 554; Borck v. State, (Ala.) 39 So. 580; Duff v. State (Ariz.), 171 Pac. 133; Evanston v. Meyers (Ill.), 50 N. E. 204; Com. v. Graves, 97 Mass. 114; People v. Everts (Mich.), 70 N. W. 430; State v. Gibbs (Minn.), 25 L. R. A. (N. S.), 449; State v. O’Brien (Mont.), 10 Ann. Cas. 1006; State v. Smith, (N. C.), 30 L. R. A. (N. S.) 946; DeGraff v. State (Okla.), 103 Pac. 538; and Tripp v. Flanigan, 10. R. I. 128.

Our own decisions bearing on the question are in harmony with the authorities just cited.

In Springer v. State, 129 Ark. 106, the court held that, in a prosecution for the illegal sale of .liquor, the purchaser is not an accomplice of the seller, and.his testimony does not require corroboration to sustain a conviction.

Again, in McNeil v. State, 125 Ark. 47, the court recognized that the offense of selling liquor had been raised to the grade of a felony, but said that- it is still not an offense against the person or property of an individual, and that the gist of the offense consists in selling the liquor.

Of course the testimony, while admissible, is to be weighed by the jury in the light of the facts in the same manner as other facts or circumstances which might affect the credibility of the witnesses. Therefore the court did not err in refusing to submit to the jury the defense of entrapment as requested by the defendant.

It is next contended that the court erred in refusing to give instruction No. 4, requested by the defendant, and in this contention we think counsel is correct. The instruction is as follows:

“If you find from the evidence that the defendant was acting as the agent of the .buyer and not the seller, then you should find the defendant not guilty. ’ ’

As we have already seen, the crime of selling intoxicating liquors is now a felony, and for that reason it is error to direct a verdict of guilty against the defendant. Snead, v. State, 134 Ark. 303. In that case it was held that, where the defendant was charged with the illegal sale of liquor, and there was evidence that he may have •acted merely as a messenger for the buyer, his guilt or innocence is a question for the jury.

Again, in Ellis v. State, 133 Ark. 540, the court held that the test of criminal responsibility by an intermediary in the purchase and sale of liquor is whether the intermediary, in good faith, acted only for the 'buyer in the purchase of the liquor, or merely pretended to act for the buyer as a subterfuge to evade the law. The court said that the accused had a right to have an instruction covering his defense, and that it was reversible error to refuse to give such an instruction. The guilt.or innocence of the defendant denends unon whether or not he, in good faith, acted only for MoClung in the purchase of the whiskey or merely pretended to buy it for him as a subterfuge to evade the law.

The court did not submit the theory of the defendant in any instruction given by it. Consequently it was error to refuse to give the instruction requested by the defendant. The defendant testified positively that he had not been in any manner interested in the sale of intoxicating liquors, and only procured the whiskey in question for McClung as an accommodation to him. The mere fact that the negro from whom the defendant says he got the whiskey in question had told him a few days before that he was engaged in selling whiskey did not, as a matter of law, make the defendant bis agent and deprive Mm of Ms defense that he, in good faith, acted for the buyer in buying the whiskey, and had no interest whatever in the sale of it.

For the error in refusing to give instruction No. 4 as requested by the defendant, the judgment must be reversed, and the cause will be remanded for a new trial.

McCulloch, C. J.

(dissenting). I am unable to agree with the conclusion reached by the majority in this case, for the reason that it appears to me in direct conflict with several other decision of the court on this subject, which should either be followed or overruled. I refer particularly to the case of Bobo v. State, 105 Ark. 462. In that case the court sustained the conviction of Bobo on proof of a transaction with one Mulkey. Bobo admitted that he received'money from Mulkey and delivered the whiskey to him, but he testified that he only acted as agent for Mulkey in purchasing the liquor, that he had no interest in the sale, and that he purchased it for Mulkey from one Bussell. He admitted, however, that Bussell was not known to Mulkey and that he did not disclose to Mulkey the identity of Bussell as the seller. In the trial below, Bobo claimed the right to go to the jury on the issue whether or not he was a mere agent of the purchaser, or whether he sold the liquor himself to Mulkey. The trial court refused to send the case to the jury, and directed a verdict against Bobo. This court affirmed the judgment, on the ground that Bobo’s own testimony showed that, by reason of his failure to disclose the identity of Bussell, the seller, he was a necessary participant in the sale, and was guilty as principal. In disposing of the case, the court said: “Under the facts of the present case the defendant Bobo aided Bussell in making the sale of the whiskey to Mul-.key, and thereby became a principal in the offense. 'Mul-key did not know that Bussell was engaged in the illegal sale of whiskey. He came into the restaurant where Bobo was working and asked liim if be could get him any whiskey, and gave him money to pay for it with. Bobo went out and got tlie whiskey from Russell, and came back and delivered it to Mulkey. * * * While Bobo says he procured the liquor from Russell at the request of Mulkey, with money furnished by him for the purpose, still he admits that Russell was not known to the buyer, and had told him that he had liquor for him whenever he wanted it. This shows that Bobo was a necessary factor in making the sale, and that he acted for the seller as well as the buyer, and, as such intermediary, he was interested in the sale of the liquor, within the rule announced in the case of Dale v. State, supra, and became thereby a principal offender.”

The Bobo case has been followed by this court in several decisions rendered since that time. Williams v. State, 129 Ark. 344; Dean v. State, 130 Ark. 322; Bryant v. State, 156 Ark. 580; Metcalf v. State, 159 Ark. 349.

The facts in the present case, as correctly set out in the opinion of the majority, make it identical in alf essential particulars, so far as concerns the question of error in the trial below, with the Bobo case. Appellant admits, in other words, that he procured liquor for the State’s witnesses at their request, that he obtained it from a certain negro, who, a few days before, had told him that he was engaged in the business of selling intoxicating liquors, and he admits that he did not disclose the name or identity of the seller to the persons for whom he obtained the liquor. He denied that he actually delivered the liquor to the State’s witnesses, but this issue was settled by the verdict of the jury against him, and that question has nothing to do with the correctness of appellant’s refused instruction, by which it was sought to submit the question of agency. When the Bobo case was decided, the offense of selling liquor without a license was a misdemeanor, and the court had the power to direct a verdict against the accused, which would be improper now, because of the 'fact that selling liquor is a felony now. But that difference in the cases has no hearing here, for the reason that the court did not give a directed verdict; it merely refused to give this instruction on the question of agency, for the reason that the undisputed testimony showed that appellant, if he delivered the liquor at all to the State’s witnesses, obtained the liquor, according to his own confession, under circumstances which, under the doctrine of the Bobo case, made him a participant in the crime.

It is a familiar rule in our decisions that in felony oases, as well as in all other trials, the instructions of the court should be confined to such issues that find some support in the testimony, and that abstract instructions should not be given. We have frequently decided that, even in a homicide case, it is not error to refuse to give ■an instruction upon a degree of the crime about which there is no testimony. The court submitted all of the issues in this case upon which there was any testimony. The instructions were even more favorable to appellant than he was entitled, to, for an instruction was given which told the jury that “where the intermediary between the purchaser and seller is a necessary factor, without whose assistance the sale of liquor could not have been consummated, he is interested in the sale in the sense of the law.” Williams v. State, supra; Metcalf v. State, supra.

The cases cited by the majority db not, I think, sustain them. In the Ellis case the accused did not admit, and it was not shown, that he knew beforehand where he could get the liquor or who he would get it from; he merely testified that he received the money from Beard to purchase liquor for the latter, and that, when he'went out in search of it, he found a man who sold it to him, and that he bought it and took it back to Beard. He testified that he had never seen the person he bought the liquor from before that transaction. According to the testimony of the accused in that case, ■there was no element involved of his own participation in the sale, and lie was therefore entitled to go to the jury on the question of agency. In the Sneed case it was held to be error to give a directed verdict, and that the instruction of the court was, in effect, peremptory.

I dissent therefore from the conclusion of the majority, and am authorized to say that Mr. Justice Humphbexs joins me in this opinion. ®


author: Smith, J.

text:
    Riddle v. Holcomb.
    Opinion delivered October 1, 1923.
    Evidence — parol evidence of consideration of deed. — Where a surviving wife and heirs conveyed the homestead to a trustee, who conveyed it to grantees who agreed, as consideration for the conveyance, to support and care for the surviving wife and to pay the debts of the deceased husband, parol testimony was admissible to prove that, at the time of execution of the trustee’s deed, an heir to whom the husband had executed a note agreed to cancel the note if the grantees would undertake the care of the wife.
    Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      Lee Seamster, for appellant.
    Where a contract is reduced to writing, with.a full knowledge by the parties of its contents, parol evidence is inadmissible to show an understanding or intent of the parties different from that expressed in the instrument. 13 Ark. 593. Unless fraud is alleged, parol evidence cannot be introduced to show a different contract. Id. See also 15 Ark. 543; 24 Ark. 210; 105 Ark. 50. Provision is made in the deed for the payment of the debts of Selvy, and oral evidence to the effect that appellant had waived her debt would certainly contradict the written instrument. As all holding to the effect that parol evidence cannot be introduced to contradict or vary the terms of a deed or contract, see 105 Ark. 445; 102 Ark. 326; Id. 428; Id. 575; 152 Ark. 27; Id. 135; Id.
      448 ; 244 S. W. 340. The deed under which appellees hold especially mentions appellant’s debt and was notice of her claim against the property. 240 S. W. 14. The deed provides that all debts not paid shall be a lien against the property and is almost identical with the case in 239 S. W. 1053 (Ark.). No view of the evidence for appellees shows an abandonment by appellant of her claim.

      W. 0. Young, for appellee.
   Smith, J.

Appellant, Mrs. Dora Biddle, is the daughter of F. M. Selvy, and was the owner, at the time of her father’s death, of a note executed by him on April 23, 1906, to her order for the sum of $215. Small payments had been made on this note which had kept it alive as a subsisting obligation.

Selvy was survived by three other daughters, who were all married women and adults, and by his widow, Sarah Selvy, who was the stepmother of his children, and he owned, at the time of his death, a lot in Benton-ville, which was his homestead.'

On September 12, 1921, the widow and the four heirs executed to W. W. Woods, as trustee, a deed conveying the homestead, and it was there recited that the conveyance was executed for the use and benefit of Sarah Selvy, the widow of F. M. Selvy, “with full power and authority to sell and convey the same and convey a good and perfect title to the purchaser, and with authority to use the proceeds of sale for the care and support of Sarah Selvy,” and that it should be sold, if it became necessary, for the care and support of the said widow. It was further provided that, “if, after the death of the said Sarah Selvy and the payment of her funeral expenses, there should be any of the proceeds left, then the trustee shall first pay to Mrs. Dora Biddle the amount due her on a certain note held by her against the deceased” (Selvy), and that the remainder, if anv, should be divided equally among all the children of the deceased.

Mrs. Selvy was a large woman, and was helpless and required almost constant attention, which could be obtained only by employing some one to render it. The trustee was not able to render this attention, and, at a family conference, the subject of mortgaging the lot was considered, hut they were unable to° secure a satisfactory or sufficient loan, as the funeral expenses and a few small debts which Selvy owed had not been paid.

The trustee then opened negotiations with appellees, James and Arkie Holcomb, who are husband and wife, for the care of Mrs. Selvy, and these negotiations terminated in the deed from him to them for the lot, which the deed recited was of the value of a thousand dollars. The consideration recited in the deed was “that James Holcomb and Arkie Holcomb, husband and wife, shall take Sarah Selvy and shall care for her, furnish her with a home and clothing and food and the necessary medical treatment, and shall care for her in a proper way as long as the said Sarah Selvy shall live, and at her death will pay all her funeral expenses and pay any debt that may have been made for the care or treatment of the said Sarah Selvy, and for further consideration that James Holcomb and Arkie Holcomb will pay the debts of F. M. Selvy, deceased.”

The trustee, before executing this instrument, conferred with the heirs, including appellant, and they assented to this conveyance. Indeed, he attempted to induce appellant to undertake the care of Mrs. Selvy for the same consideration, but she declined to assume the responsiblity.

The facts stated are undisputed. There is a conflict in the testimony as to the note due appellant; but the preponderance of the testimony shows that this debt was discussed by the parties, and appellant agreed that she would cancel it if the Holcombs would undertake the care of Mrs. Selvy.

It is now insisted that the court should not have considered the testimony that appellant had canceled her debt, it- being insisted that this testimony contradicts and varies the recitals of the deed, that Holcomb had assumed the payment of Selvy’s debts, and that the oral testimony was improper to show that appellant’s debt was excepted from the list of the debts to be paid.

The case of Lybrand v. Watkins Hardware Co., 153 Ark. 266, is cited as supporting this view. That case is not in point, however, for the reason that the testimony was not offered to show that appellant’s debt was excepted from those which were to be paid, but the testimony was offered to show that appellant had no debt, hers having been canceled, as stated above. This testimony was admissible to show what the debts were and that appellant had no debt, and was not admitted to show that appellant’s debt was excepted from those which were to be paid.

The deed to appellees recited their agreement to pay all the debts, but did not name the creditors to whom the debts were due. Parol testimony was therefore admissible to show what debts were outstanding; and the testimony shows that appellant had ceased to be a creditor.

The undisputed testimony shows that appellees fully discharged their obligation to care for Mrs. Selvy. This they did by taking her into the home which they acquired by the deed, where they kept, her until her death, eight months later, and during this time Mrs. Selvey required, and received, almost constant care.

After Mrs. Selvy’s death, appellant brought this suit to have a lien declared on the lot in her favor to secure the payment of the note. The suit was dismissed as being without equity, and this appeal is from that decree.

We think the decree was correct. The testimony tending to show what the debts were was admissible, and the testimony objected to established the fact that appellant had no debt when the deed was made. New Amsterdam Casualty Co. v. Union Sawmill Co., 95 Ark. 140; Geiser Mfg. Co. v. Davis, 110 Ark. 455, 456; Mewes v. Mewes, 116 Ark. 155.

. It was competent for the purpose for which it was admitted, and established the fact that appellant was not a creditor, and the suit to enforce a lien in her favor was therefore properly dismissed.

' Decree affirmed.


author: Hart, J.

text:
    Craig v. Sims.
    Opinion delivered October 1, 1923.
    1. Erections — primaey erection raw constRued. — Crawford & Moses’ Dig., § 3777, relating to primary elections, does not restrict the right of a voter in a primary election, but merely regulates the method of voting and the preservation of the evidence of the elector’s right to vote.
    2. Erections — right to vote in primary erection. — When, in a primary election, a voter’s name does not appear on the certified list of voters required to be furnished to the election judges by Crawford & Moses’ Dig., § 3740, he must prove his qualifications as an elector in the manner required by the statute, so as to entitle him to vote; and, if he fails to do so, his ballot may be rejected, and, if, without such proof, he has been permitted to vote, his ballot may be rejected in a contest in the court.
    3. Erections — construction op primary erection raw. — Crawford & Moses’ Dig., § 3777, regulating primary elections, was mandatory because it both gave directions for conducting them and declared what the consequences of neglecting their observance should be.
    4. Erections — primary erection — contest—burden op proof.— As the returns in a primary election are made by persons charged by the statute with the duty of receiving and canvassing the ballots and certifying the result, a presumption exists in favor of the due performance thereof, and the burden of overcoming such presumption is upon the contestant.
    5. Erections — primary erection contest — instruction.—In a contest of the declared result of a primary election, refusal of the court to make a declaration of law that it shall be ground for rejection of any ballot cast by a voter that his name does not appear upon the certified list of polltax payers or who has not filed with the judges of the election his poll-tax receipt or the affidavit of attainment of his majority in the form provided by the statute, is not prejudicial where there is neither allegation nor proof of any facts calling for such declaration.

      6. Elections — primary election — constitutional provisions.— Art. 3, § 11, Cont-, providing that “if the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest growing out of said election,” held not to apply to primary elections.
    7. Elections — persons entitled to vote in primary election.— Under Crawford & Moses’ Dig., § 3780, providing that primary elections “shall be conducted in conformity with this act and the general election laws of the State,” and § 3741, Id., providing that any.person liable to pay poll tax, and who has paid the same at any time between the first Monday in January and the Saturday next preceding the first Monday in July, shall be “entitled to vote at any election held in this State at any time before the first Monday in July of the year succeeding that in which the payment is made,” held that persons not paying their poll tax within the dates named are not entitled to vote in a primary election.
    8. Elections — primary election contest — evidence of illegal voting. — Proof. that poll-tax receipts were illegally issued by the county collector and purchased by the contestee or by other persons for his benefit is insufficient to establish that illegal votes were cast for the contestee.
    Appeal from Prairie Circuit Court, Southern District; George W. Clarlt, Judge;
    affirmed.

      Brundidge & Neelly and Emmet Vcvughan, for appellant.
    The collector has no right to issue a poll-tax receipt to any person not assessed for taxation as provided by law, C. & M. Digest, § 3738; and the holder of such poll-tax receipt is not entitled to vote in any election held in this State. If such person votes, 'that vote should be cast out. 61 Ark. 247; 68 Ark. 555; 69 Ark. 501; 97 Ark. 221. It is time for this court to declare in positive terms that a poll-tax receipt held by a person who has not been assessed, either by the assessor in apt time, or by the clerk after the assessor’s return, does not entitle the holder’ thereof to be entered upon the list of qualified electors. C. & M. Digest, § 3740.

      Geo. W. Emerson, Gregory & Holtzendorjf and Cooper Thweatt, for appellee.

      1. Election returns are quasi records, and will stand until overcome by affirmative evidence. 73 Ark. 188; 41 Ark. Ill; 94 Ark. 478.
    2. Even if the assessment of a poll-tax is necessary under the general election law, it is not necessary under the primary election law. Sections 3738, 3739, 3740, C. & M. Digest, are directory merely, and none of their provisions, when considered in connection with § 3841, purport to make the assessment of one’s poll-tax a condition precedent to his right to vote. The last named section, which is mandatory, gives a. voter the absolute right to vote upon payment of his poll-tax within the specified time. 20 Ark. 455; 34 Ark. 493; 69 Ark. 506. If the statutes providing for an assessment of the poll-tax, in addition to the payment thereof, are mandatory, they are unconstitutional. 24 Ark. 161.
   Hart, J.

This was a statutory proceeding in the circuit court by Geo. W. Craig against J. F. Sims to contest the nomination of the latter for the office of county judge at the Democratic primary held on August 8, 1922, in Prairie County, Ark.

Craig, Sims and others were candidates for county judge of Prairie County in that primary election. The Democratic County Central Committee met to declare the result of the primary election after it was held, and J. F. Sims was declared to be nominated. Subsequently he was duly elected at the general election held in the same year.

As above stated, Craig brought this suit against Sims, under the statute, to oust him from office, on the ground that he had been illegally and fraudulently declared to be the nominee of the Democratic party for the office of county judge of Prairie County, when, in fact, Craig received the highest number of legal votes cast at the primary election, and was entitled to be declared the nominee.

After hearing the evidence adduced by both, parties, the circuit court found the facts and declared the law to be in favor of Sims. Judgment was accordingly rendered in bis favor, and tbe complaint of Craig was dismissed.

To reverse tbat judgment Craig bas duly prosecuted, an appeal to this court.

Tbe case was beard and determined in tbe circuit court on September 26, 1922. Our primary election law bas recently been construed, in tbe case of McClain v. Fish, 159 Ark. 199. In tbat case tbe court said tbat § 3777 of Crawford & Moses’ Digest does not restrict tbe right of a voter in a primary election, but merely regulates tbe method of voting and tbe preservation of tbe evidence of an elector’s right to vote.

Tbe court held further tbat, under this section of tbe statute, when a voter’s name does not appear on the certified list of voters required to be furnished the election judges by Crawford & Moses’ Digest,. § 3740, he must prove his qualifications as an elector in tbe manner required by tbe statute, so as to entitle him to vote, and, if he fails to do so, bis ballot may be rejected; and if, without such proof, be bas been permitted to vote, his ballot may be rejected on a contest in the court.

This section of tbe statute was copied in full in tbe case just cited, and no useful purpose could be served by copying it again here. This holding proceeded upon the theory tbat the statute regulating primary elections was mandatory because it both gave, directed, and declared what tbe consequences of neglecting their observance should be.

Tbe court was of tbe opinion tbat tbe statute was intended to prevent fraudulent voting, and tbat, if the Legislature believed the good to be accomplished from its enforcement would outweigh tbe occasional evil resulting from its strict enforcement, that was within the province of the Legislature, and the courts could not interfere.

Tbe primary election statute provides for tbe counting of the ballots and tbe declaration of tbe re-suit by the county central committee of the party holding such primary election. There is also a provision for the procedure to contest the certificate of nomination or the certification of the vote as made by the county central committee.

The burden of proof in such a contest is upon the contestant. In the first place, it may be said that the failure on the part of the contestee to prove his right to the nomination would not establish that of the contestant. In the next place, the returns are made by persons charged by the statute with the duty of receiving and canvassing the ballots, and the presumption which always exists in favor of the due performance of official duty mates the returns and the certificate prima facie evidence of the facts contained in them. The election, however, and not the returns, is the foundation of the right to an elective office, and for that reason provision is made for contesting the election and throwing out fraudulent and illegal votes.

As we have already seen, the present case was tried in the circuit court before the decision in the case of McClain v. Fish, supra, was rendered in this court. It does not seem that the contestant asked the circuit court to observe the procedure laid down in the case just referred to, and for that reason he is in no attitude to complain for the first time in this court that such procedure was not followed. It was his duty to have asked the court to follow that procedure and to have saved exceptions to the ruling of the court if it had refused to do so. Then it could have been made the basis of an assignment of error calling for a reversal of the judgment.

In other words, the contestant does not allege in his complaint that any votes were cast for the contestee other than those on the printed list required by § 3740 of the Digest. No proof was made by contestant showing that any qualified electors voted for contestee whose names did not appear upon the certified list of poll-tax payers required to be printed and furnished the election judges, or who had not filed with the election judges his poll-tax receipt as required by the statute. Hence the declaration of law asked by contestant, to the effect that, under § 3777 of the Digest, in any contest arising under the act, it shall be grounds of rejection of any ballot cast by an elector that his name does not appear upon the certified list of poll-tax payers, or who has not filed with the judges of the election his poll tax receipt or the affidavit of attainment of his majority in the form provided by the statute, was an abstract one, not applicable to the facts in the case. In the absence of proof, such a declaration of law by the court, while correct in the abstract, would be harmless if there was no evidence requiring its application. The refusal to give the declaration of law as asked could result in no prejudice to the contestant.

Doubtless, counsel for the contestant had the same view of the meaning of § 3777 as did the writer of this opinion before the case of McClain v. Fish, supra, was decided by this court. "While the writer thought that the judges of the election should not receive the ballot of any one whose name did not appear on the certified list, or who had not filed his poll-tax receipt, or written attainment of his majority, as required by statute, yet, if the judges actually received the ballot of a qualified elector, this ballot could not be thrown out because the voter had not complied with the statute. The writer thought that this portion of the statute was invalid because it was in conflict with art. 3, % 11, of our Constitution, which provides that, if the officers of any election shall unlawfully fail to receive, count, or return the vote or ballot of any qualified elector, such vote or ballot shall .nevertheless be counted upon the trial of any contest arising .out of said election. But in McClain v. Fish, supra, it was said that constitutional provisions with respect to elections do not apply to party primaries, and Hester v. Bourland, 80 Ark. 145, was cited.

In that case the court held that, under our Constitution, chancery courts can only be vested with matters of equity, and that contests for party nominations have never been so considered. It was also held that art. 19, § 24, of the Constitution, saying that the General Assembly shall provide by law the mode of contesting elections in cases not specially provided for in this Constitution, had reference only to elections for office, and not for nominations. Hence it was held that this section did not confer jurisdiction upon chancery courts to hear primary election contests.

I cannot see how this holding would prevent the Legislature from making art. 3, § 11, to apply to primary elections. Section 3780 of our statute expressly provides that primary elections shall be conducted in conformity with the primary act and the general election laws of the State; and that they shall be, to all intents and purposes, legal elections. This section carries into our primary election laws all of the provisions of art. 3 of our Constitution appertaining thereto. If none of the provisions of our Constitution with regard to elections can be made to apply to primary elections, what become of our provisions of the Constitution with regard to the qualifications of electors, the right of suffrage, and our poll-tax amendment to the Constitution when applied to primary election laws?

It is also contended by counsel for appellant, who was the contestant in the court below, that, under the provisions of the statute, the county collector had no right to issue additional poll-tax receipts to persons offering to pay a poll-tax on and subsequent to the first Monday in July just preceding the primary election in August, 1922. The statute does not give the county collector the power to assess a poll-tax and deliver it to a person otherwise qualified to vote at an election. Hence he can have no such power. His power is only to collect a poll-tax as provided.

Section 3741 provides that any person liable to pay a poll-tax, and who has paid the same at any time within the dates named in the section, shall/if possessed of the other qualifications required by law of an elector, be entitled to vote at any election field in this State, as provided in the statute. None of the provisions of the statute governing primary elections gives the collector the right to assess or collect poll-taxes subsequent to the last day fixed by the statute for paying the same.

It is the contention of counsel for the contestant in this case that “the contestee purchased a large quantity of poll-tax receipts after the last day allowed by law for paying the same prior to the primary election held in August, 1922, and persons holding them voted at the primary election, and that if these illegal ballots had not been received by the election judges at certain election precincts in the county, the contestant would have received the highest number of legal votes cast at the primary election and would have been declared the nominee for county judge.

Conceding that these poll-tax receipts were illegally issued by the collector and purchased by the contestee or other persons for his benefit, still this falls short of establishing that the illegal votes were cast for the con-testee. The ballots must have been cast by «the persons holding the poll-tax receipts, and, in the absence of a showing, we have no means of knowing how they voted. The contestee might have furnished the receipts .and intended them to vote for him. The votes may have been cast for the contestant or for some other person.

As we have already seen, the burden was upon the contestant to show that he was entitled to the office, and he has failed in this respect.

It follows that the judgment of the circuit court must be affirmed.