author: McHaNEy, J.

text:
    Wallace v. State.
    Opinion delivered July 2, 1928.

      Cobb & Cobb, for appellant.

      E. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   McHaNEy, J.

Appellant was indicted, tried, convicted and sentenced to three years in the penitentiary on a charge of carnal abuse committed on the person of Thelma Anderson, a girl eleven years of age.

His first assignment of error for a reversal of the cage is that the court erred in permitting the prosecuting attorney to ask this little girl leading questions regarding the 'commission of the offense. It is not an abuse of discretion for the trial court to permit the prosecuting attorney to ask leading questions to. the young and inexperienced or ignorant. Murray v. State, 151 Ark. 331, 236 S. W. 617. No abuse of discretion was shown in this particular case, as the questions the witness was required to answer were of a very delicate and embarrassing nature, and she was not only young, hut ignorant and inexperienced.

The next assignment of error is. that the evidence is insufficient to support the verdict. The testimony of Thelma Anderson, the prosecuting witness, was of itself sufficient to sustain the verdict, Wilson v. State, ante, p. 885, but in addition to her testimony was the positive testimony of two eyé-witnesses, or persons who claimed to he eye-witnesses, to different acts of intercourse, and this was sufficient to take the question of the guilt or innocence of appellant to the jury.

The final assignment of error is that the prosecuting attorney made an improper statement in his closing .argument to the jury. The following statement was objected to: “They all take them out of very poor homes, where the mother is out worldng for a living. I am unable to express my contempt for that thing; the evidence shows that he took her out of a poor home while her mother was out at work, and ruined her.” On objection being made to the above argument, the court said: “The jury will understand they will consider only the evidence in the case; it is all right for the prosecuting attorney to call to their attention the seriousness of the crime and the importance of proper deliberation by the jury; I think the argument in that respect is all right; the jury will know, in determining the guilt or innocence of the defendant, they will he governed solely by the evidence in the case.” Thereupon counsel for appellant said: “I object to both the argument and the remarks of the court.” There does not appear to have been any ruling upon the last objection, nor any exception; but, even conceding that the effect of th¿ above is that, the court overruled the objection and appellant excepted, still we do not think the argument open to the objection made by counsel. While there may not be any direct evidence in the record that she came out of a poor home while her mothejr was out at work, and ruined her, the jury was able to observe from her appearance and that of her mother and father, who were witnesses in the case, whether she was from a poor home or not. We are of the opinion that the remarks of the court in passing on the objection were proper, as the prosecuting attorney had the right to call the attention of the jury to the seriousness of the crime with which appellant was charged, and that is all the court meant and all the jury could have understood from what the court said. The ■ court did not assume that a grievous crime had been committed, but that one had been charged, and that appellant was being tried therefor. It did not amount to an expression of an opinion on the evidence. The court did not say that appellant had committed a grievous crime, but the effect of what he said was that appellant was charged with such a crime, and that the prosecuting attorney had the right to discuss it. Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946.

Judgment affirmed.


source: Caselaw Access Project

author: MoHaNey, J.

license: Public Domain

text:
    Chesnutt v. Yates.
    Opinion delivered July 2, 1928.

      John N. Gooh, for appellant.

      J. D. Shaver, Henry Moore, Jr., and Ben E. Garter, for appellee.
   MoHaNey, J.

This action was brought by appellant, a citizen and taxpayer of Miller County, to enjoin appellee, as collector of Miller County, from paying to the treasurer of the city of Texarkana $20,000 in warrants issued by the city to various persons, employees and others, to whom the city was indebted, during the year 1926. The city treasurer, the State National Bank and the Southern Surety Company were all made party defendants.

It appears from the pleadings and the evidence that, subsequent to the adoption and effective date of the so-called Amendment No. 11 to the Constitution of this State, December 7, 1924, up to and including December 31,1924, the city of Texarkana allowed claims and issued warrants in excess of its revenues for the same period of time in the sum of $4,828.59; that for the year 1925 the city allowed claims and issued warrants in excess of its revenue for that year in the sum of $13,279.13; and that for the year 1926 the city allowed claims and issued warrants in excess of its revenue in the sum of $4,199.84, making a total for the three years of $22,-307.56 of allowances made and scrip issued in excess of its. revenues for those years.

It further appears that all the warrants which are involved in this controversy were issued in 1926. It further appears that, during the fall of 1926, $20,000 was borrowed from the State National Bank by the mayor and chairman of the finance committee of-the city council, the chairman of the finance committee executing in the name of the city his four promissory notes, one for $7,500, one for $2,500 and two for $5,000 each, which were indorsed by the mayor and the chairman of the finance committee and the amount thereof placed to the credit of the city treasurer. As the city drew its warrants to pay its debts for which the city council, from time to time, had made allowances, the city treasurer paid same out of said funds so borrowed from the State National Bank, and attached the warrants so taken up to the notes held by the State National Bank as collateral thereto. In the spring of 1927 the collector of Miller County took up these warrants to the extent of $20,000 in the hands of the State National Bank and turned them in to the city in making his settlement with the city. This had the effect of retiring the notes, given to the hank. The interest thereon was paid from time to time by the city. It is not alleged or attempted to he proved that any of the parties to this transaction realized any profit therefrom. The warrants that were taken up by the city treasurer out of the funds borrowed from the bank were taken up at par. The court dismissed the bill for want of equity,' dissolved the temporary injunction theretofore issued, and this appeal is from that judgment.

As heretofore stated, this action arises under and grows out of Constitutional Amendment No. 11, the pertinent part of which reads as follows:

“The fiscal affairs olf counties, cities and incorporated towns shall be conducted on a sound financial basis * * *; nor shall any city council, board of aider-men, hoard of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrants, scrip, or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, citv clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class, or incorporated town, sign or issue any scrip, war-' rant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.”

This amendment was declared adopted hy this court in Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865. It was held to become effective December 7, 1924, in Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22.

In Kirk v. High, 169 Ark. 152, 273 S. W. 389, this court said:

“We think the amendment means just this: that, if a county, city or town avails itself of the provision authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its annual revenue. It must stay out of debt. It means further that, if a city, county or town has any outstanding unpaid warrants which it does not take up hy issuing bonds as authorized by the amendment, it must not add to its existing indebtedness hy issuing more warrants than can be paid out of the revenues of the current year.” The city of Texarkana issued bonds to take up its indebtedness to December 7, 1924.

In Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, after quoting the' above from Kirk v. High, the court said:

“In other words, the amendment leaves nothing to the discretion .of the county judge in increasing the county’s outstanding indebtedness. He has no power to do so. It must be conceded that this interpretation of the amendment makes it far-reaching and drastic, but it is so written in the amendment, and we cannot hesitate to declare the effect of its plain and unambiguous language. • ’

In McGregor v. Miller, 173 Ark. 459, 293 S. W. 30, in the opinion on rehearing, the court said:

“The brief on the petition for rehearing discusses the question of priority of warrants issued by a county where the total amount of warrants issued exceeds the revenues. This is a condition which the amendment was ‘intended to prevent. If such a condition arises, those warrants issued in excess of revenues are void. Those warrants are valid which, at the time of their issuance, do not exceed the revenues. All others are void. The holder of a valid warrant may, by an appropriate action, compel the receipt and payment of his warrant, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. More than that, the invalid warrant cannot be received by any collecting officer of the county, and the officer who does receive it does so at his peril, and is not entitled to take credit for it in any settlement of his accounts, because the warrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity.”

It will therefore be seen from the foregoing that contracts made' and warrants issued by the city of Texarkana during the year 1926, at a time when the revenues for that year had not been exceeded, were valid. The record-in this case fails to disclose whether these particular warrants, in the hands of appellee were issued before or after the revenues for the current year had been exhausted. The presumption of law is that they are valid, as they appear to be so on their face, and the burden of proof rested upon appellant to show the invalidity of the particular warrants in controversy. The total revenues for the city of Texarkana for the year 1926 amounted to $88,062.28. The total amount of scrip issued during that year was $92,261.17, making an excess of scrip over revenues of $4,199.89. Appellant was not able to testify, nor did any other witness, that these particular warrants ■ were invalid at the date of their issuance. Having failed to show the invalidity of these particular warrants, appellant must fail in this action. The decree of the chancery court is therefore correct, and it is affirmed.


author: Hart, C. J.,

text:
    Export Insurance Company v. Royster.
    Opinion delivered July 9, 1928.

      Price Shofner, for appellant.

      Edward B. Dillon and Loms Tarlowshi, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant assign as error the action of the court in instructing the jury as follows:

“Now, gentlemen, when the plaintiff proves that his car was delivered to the garage and that he went back for it and that it was missing, without his knowledge or consent, then that would be prima facie evidence of the fact that the car was stolen,”

We think counsel for appellant are correct in their contention. The policy insures the owner against loss or damage to the automobile by reason of theft, robbery or pilferage. Liability is claimed for loss suffered by reason of the automobile being stolen by one of the servants of the Smith Auto Livery Company while it was stored in the garage of that company. There is nothing in the policy that indicates that the word “theft” was used in other than its legal signification.

There is a conflict in the authorities as to whether or not, to constitute larceny, it is necessary to show that there was an intent to convert the property to the use of the taker. On the one hand it is held that, to constitute the offense of larceny, it is not necessary that the taking should have been with an intent to appropriate the property to the use or benefit of the taker. The felonious intent consists in the purpose of depriving the owner of his property, and no benefit to the guilty agent may be sought, but only injury to the owner. On the other hand, this court has held, in common with other courts, that, to constitute larceny, there must be an intent to convert the property to the taker’s own use. Dove v. State, 37 Ark. 261. The reason for so holding has been tersely given by the Court of Appeals of Kentucky in Ford v. Commonwealth, 175 Ky. 126, 193 S. W. 1026, where the court said:

“To constitute the crime of larceny, the intent with which the property was taken must be felonious. In the language of the common law, it must be done ammo fura/ndi. To take property in the absence of an intention to steal, that is, an intention to convert the same to the use of the taker and permanently to deprive the owner thereof, is not larceny, though under proper conditions it may constitute a.trespass.”

The authorities on both sides of the question may be found annotated in 12 A. L. R. 804-809'. In the case-note referred to, it is said that the weight of authority is against the view taken by this court in the Dove case, but we can perceive no good reason for overruling the rule laid down in that case, for it seems to have been followed by the court ever since. At the least, it has not been expressly overruled, and our attention has not been called to any case where the doctrine there announced has been impliedly overruled.

Therefore we adhere to the rule announced in that case, and it necessarily follows that the instruction complained of was erroneous. Where, to constitute larceny, the taking must have been with an intent to appropriate the same to the taker’s own use and benefit, an instruction which defines larceny merely as a taking with an intent to deprive the owner thereof is erroneous. Such is the effect of the instruction complained of.

Moreover, we think the instruction is erroneous because it, in effect, is an expression of the opinion of the trial judge as to the weight to be given to certain proved facts, and this, under our Constitution, can never be done.

It is also earnestly insisted by counsel for appellant that the evidence is not legally sufficient to sustain the conviction. We cannot agree with counsel in this contention. While the jury might have found that the servant of the Smith Auto Livery Company took the car out of the garage for a drive and intended to return it to the garage, and was prevented from doing so because of the wreck of the car, still, on the other hand, the jury might have found that the servant intended to appropriate the car to his own use, and was prevented from doing so because it was so badly wrecked when it .collided with the iron pole at Ninth and Broadway Streets.

Because the court erred in instructing the jury as above set forth, the judgment will be reversed, and the cause remanded for a new trial.

Smith, J., concurs.


text:
    Von Mosch v. Waldrop.
    Opinion delivered July 9, 1928.

      G. R. Herndon, ¡for appellant.

      Isaac L. Awtrey, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was correct. In Chaffin v. Harpham, 166 Ark. 578, 266 S. W. 685, it was held that a delivery in escrow is irrevocable until failure to perform the stipulated conditions. Again, in Ford v. Moody, 169 Ark. 649, 276 S. W. 595, it was held that, when a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future-, no title passes until the condition has been performed, and it is immaterial that the grantee obtains possession of the instrument before the condition is performed.

In the case at -bar, the record shows that Richardson sent the deed to the Caddo Valley Bank to be delivered to Gust Von Mosch upon the payment of the purchase money. Von Mosch was notified that Richardson was in need of money, and wished to sell at once. In each subsequent letter about the transaction Richardson notified Von Mosch that he was in pressing need of money, and must receive payment of the purchase price of the land quickly. On November 19, 1927, Richardson wrote Von Mosch, assuring him that the title was O. K., and that the Caddo Valley Bank had loaned him $100 on it. He had agreed to sell the land to Von Mosch for $125, to be paid in cash. He notified Yon Mosch that be bad an obligation coming dne on November 28 that be must meet, and also that be bad been offered a little more money than be asked Von Moseb for tbe land. He notified Von Mosch, however, that he was willing’ to stand by his proposition provided it was accepted within a reasonable time. 'The fact that be referred to November 28 as tbe date upon which be was in pressing need of money showed that be considered that a reasonable time. Instead of paying tbe purchase price of tbe land, Von ' Mosch waited until after Richardson bad sold the land to Waldrop and bad executed a deed to him for it, which Waldrop bad filed for record.

It does not make any difference that Waldrop bad notice that Von Mosch claimed title to tbe land. Under tbe facts presented, Von Mosch could only claim title to tbe land provided be complied with tbe condition upon which tbe sale was made. He was notified in express terms that Richardson was badly in need of money on the 28th day of November, and, under the circumstances, we think it was his duty to have sent the moneyjpromptly so thiat Richardson could meet his obligation. Not having done so, Richardson had the right to sell the land to some one else; and it did not make any difference whatever that the purchaser had notice of the contemplated sale to Von Mosch, because the latter failed to comply with the stipulated condition upon which the land was offered to him, and, upon his failure to do so, Richardson had a perfect right to sell the land to Waldrop. Waldrop paid the purchase money for the land and filed the deed for record before Von Mosch attempted to comply with the condition upon which he purchased the land. That condition was that he should pay the purchase price in cash. He did not offer to pay the purchase price until after the deed ifrom Richardson to Waldrop had been delivered and filed for record and Waldrop had paid the purchase money to Richardson.

The result of our views is that the decree of the chancery court is correct, and it will be affirmed.


author: Hart, 0. J.,

text:
    Dorr, Gray and Johnston v. Fike.
    Opinion delivered July 9, 1928.

      McCaleb & MoCaleb, for appellants.

      Gustave Jones and Ira J. Matheny, for appellee.
   Hart, 0. J.,

(after stating the facts). A physician or other person undertaking to use X-rays is held to the same measure of responsibility as in administering other forms of medical treatment. He impliedly contracts with the patient that he possesses ordinary skill in administering X-rays, and that he will exercise reasonable skill, care and diligence in his treatment or diagnosis of the patient. Runyan v. Goodrum, 147 Ark. 481, 13 A. L. R. 1403, 228 S. W. 403.

In discussing the question in that case the court said:

“The doctrine of res ipsa loquitur does not apply in such, eases, because the testimony shows that, on account of the idiosyncracies of the X-ray machine, one person of a certain type and temperament would he susceptible to a burn while anothér person of a different type, under the same circumstances, would not be burned. Moreover, it is shown that burns do occasionally occur, in the ordinary course of the exposure, in spite of the highest diligence and skill to prevent them.”

The facts in this case are substantially the same as the facts developed in the case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S. W. 96. The defendants in the two cases are the same, and the cases were tried before the same circuit judge. An examination of the record discloses that the same rulings were made in the two cases on the admission of evidence and on the instructions. Therefore we do not deem it necessary to again consider the assignments of error which were argued and determined in that case. We have carefully compared the records in the two cases, and find that the same principles of law governed the court in the trial of the two cases, and we do not deem it necessary to reiterate what was said in discussing the various assignments of error in the Headstream case.

In addition to the assignments of error in that case, it is here contended that the court erred in refusing to make the complaint more definite and in excluding from the jury the testimony of the plaintiff as to the loss of time suffered and the expenses incurred in buying medicines and in medical treatment, because he did not itemize these amounts, and because the defendants had no opportunity to meet the issue on these points. We do not deem this assignment of error well taken. The plaintiff in his complaint states the facts upon which his cause of action is based. He alleges facts tending to show that the injury to his back was permanent, and that he has suffered great pain therefrom. He prays for general damages, and he asks for special damages on account of loss of time and on account of money expended for medicines and medical attention. In Ms testimony plaintiff stated that he was damaged in the sum of $3,713 for loss of time and for expenses incurred in buying medicines and paying for medical attention. He alleges that he suffered special damages for loss of time on account of inability to work, and for amounts expended for medicines and medical attention.

It is well settled in this .State (and no citation of authorities is necessary to support the position), that all a pleader is required to state are the facts upon which he relies for a recovery, where general damages are claimed. From the very nature of things, general damages are incapable of segregation into different items. As we have just stated, the plaintiff alleged special damages for loss of time from his usual work, and for medical expenses incurred. He was hot required to itemize .these amounts or to state how many days or months he was unable to work and the exact amount of money he expended for medicines and' medical attention. That was a matter which should be developed in the proof, and good pleading did not require that he should state •the evidence upon which he based his claim for damages in his complaint. All he was required to do was to put the defendants upon notice that he expected to recover special damages for loss of time and for expenses incurred for medicines and medical attention.

It is next insisted that the court erred in instructing the jury to consider plaintiff’s diminished earning capacity in arriving at their verdict. We do not consider this assignment of error well taken. The impairment of the power to earn money implies that the injured person can follow some wage-earning occupation, and that his ability to earn money, though reduced, is not totally destroyed. Hence his impairment of earning capacity begins when the injured person is able in some degree to follow a wage-earning 'occupation. Blue Grass Traction Co. v. Ingles, 140 Ky. 488, 131 S. W. 278.

■ In the present case the evidence for the plaintiff tended to show that his injuries were permanent, and, under his claim for general damages, he was entitled to show that his earning capacity had been impaired so that, when he was able to go to work, he could not earn as much as he had previously done.

His claim for allowance for loss of time was a different matter. His claim in that respect as an element of damage was a claim for special damages, and was actionable as such, because his loss in that respect was due to the fact that he could not follow any wage-earning occupation for a specified length of time.

Again, it is insisted that the court erred in refusing to instruct the jury that there was no evidence that the plaintiff had been delirious since receiving the X-ray treatment on account of that treatment. Therefore the defendants asked the court to instruct the jury that this fact could not be considered by the jury as one of the plaintiff’s grounds for recovery of damages in the case. We do not think the court erred in refusing to so instruct the jury. The jury might have inferred from the evidence for the plaintiff that he was delirious for several weeks on account of the pain and suffering he endured from the defendants’ negligence in administering the X-rays to him.

We have carefully examined the record, and have reached the conclusion that the case was tried according to the principles of law decided in the case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S. W. 16. Hence we find no reversible error in the record, and the judgment will therefore be affirmed.


text:
    Beasley v. Parnell.
    Opinion delivered July 9, 1928.

      Martin Fulk and Cockrill & Armistead, for appellant.

      H. W. Applegate, Attorney General, George R. Steel, Assistant, and W. R. Bonham, for appellee.
   Hart, C. J.,

(after stating the facts). -The office of Commissioner of Revenues was created by act 88 of the Acts of 1925, as amended by acts 79 and 115 of the Acts of 1927. Act 88 otf the Acts of 1925 abolished the office of Insurance Commissioner and State Fire Marshal and created the office of Commissioner of Insurance and Revenues, and- prescribed his duties and powers. Acts of 1925, page 260. Inasmuch as the correctness of the decision of the circuit court in the main depends upon the construction to be placed upon § 5 of the act, we copy it in full. It is as follows:

' ‘ ‘ Section 5. The Governor, by and with ■ the consent of the Senate, shall appoint a Commissioner of Insurance and Revenues, who shall be a citizen of this State, of well-known business ability, at least thirty years of age, who shall hold office for a term of four years, or until his successor shall be appointed by the Governor. If the Senate be not in session when such appointment is made, the appointee shall qualify and hold office until his appointment be rejected by the Senate when it next convenes. Said Commissioner of Insurance and Revenues shall receive a salary of $4,000 a year, to be paid as other salaries are paid, and he shall devote his whole time to the duties of the office. Whenever there shall he a vacancy in the office of Commissioner of Insurance and Bevenues, the Governor shall fill such vacancy by appointment. The Commissioner of Insurance and Bev-enues, his deputies and assistants, shall take, subscribe and file in the office of Secretary of State the constitutional oath of office, within five days from the time of the notice of their appointment.”

Section 6 provides that the Commissioner is empowered, with the approval of the Governor, to appoint two deputies and three stenographers, each of whom shall receive a salary as designated in the section.

.Section 2 of the act says that, for and during the period of thirty years from the time this act goes into effect, there is created and established the office of Commissioner of Insurance and Bevenues. In this connection it may he stated that the Legislature of 1927 passed an act to create the Department of Insurance Commissioner and State Fire Marshal, and to define his duties. This office is created for a period of thirty years, and the act provides that the Governor, by and with the consent of the Senate, shall appoint an Insurance Commissioner and State Fire Marshal, who shall hold office for a term of six years and receive the annual salary provided for in the act. This act also provides that the Commissioner is empowered, with the approval of the Governor, to appoint certain assistants, with a stipulated salary.

It is a rule of universal application that, where an office is filled by appointment and a definite term of office is not fixed by a constitutional or statutory provision, the office is held at the pleasure of the appointing' power, and the incumbent may be removed at any time. But the power of removal is riot incident to the power of appointment where the extent of the term of office is fixed by Constitution or statute. Patton v. Vaughan, 39 Ark. 211; Ex parte Henne, 13 Peters (U. S.) 230; and Lake v United States, 103 U. S. 227.

No power of removal is expressly provided for in the statute under consideration, and this makes it necessary for ns to decide whether the incumbent had a fixed term of office or not. The circuit court properly held that there are two methods of establishing a fixed term of office: One is where the statute provides that the appointed officer should hold for a given number of years and until his successor shall he appointed and qualified, and that the other is where a fixed period of time is provided in the statute when the appointment shall be made.

In the first case, where a statute provides that the appointed officer shall hold office (for a definite period of years and until his successor is appointed, the word “and” must ¡be-given its ordinary meaning and be construed conjunctively. The period of years fixed by the statute and the phrase “¡and until his successor is appointed” form but one contingency, and both events must take place before the incumbent can be removed, in the absence of a statute providing for his removal.

Counsel for appellant claim that the language of the statute brings the ease squarely within the rule announced in Bruce v. Matlock, 86 Ark. 554, 111 S. W. 990, and Warren v. McRae, 165 Ark. 436, 264 S. W. 940. We do not agree with counsel in this contention.

In Bruce v. Matlock, 86 Ark. 554, 111 S. W. 990, it was held that the Governor of the State did not have the power to remove a member of the board of trustees of the State charitable institutions. The decision was based upon the construction of the statute creating the board of trustees for the State charitable institutions and the application of the principle that, where a fixed period of time is provided, in the statute for the appointment to be made, this is exclusive and prohibitory of any other mode of appointment, and creates a fixed term of office. In that case the statute provided that the Governor shall biennially appoint one board of trustees for the School for the Blind, the Deaf Mute Institute, and Insane Asylum, to be composed of six members, one from each congressional district, who shall have charge of said institutions and discharge all duties now required by law. In discussing the question, the court said:

“The word ‘biennial’ means once in two years. We do not say that the use of the word under all circumstances necessarily imposes a limitation upon the space of time which -must intervene. It may, under some circumstances, be held to mean that the thing in question shall occur as often as once in two years. But we think that the use of the word in this instance clearly carries with it the meaning that a term of two years is fixed, and that appointments to membership on the board shall be made every two years, conformably to the expiration of the term. The fixing of a time for making’ appointments necessarily implies a fixed tenure for the appointee, for, if the executive can remove him and appoint another at will, the command to appoint biennially is superfluous.”

The case of Bryan v. Patrick, 124 N. C. 651, was cited in support of the holding. In that case the court said: “It appears to this court that ‘to be appointed 'biennially’ ex vi termini implies a two-years ’ term of office. ’ ’

That this was the idea had by this court in deciding the case is 'dearly shown by the subsequent case of Warren v. McRae, 165 Ark. 436, 264 S. W. 940. In that case the court held that the position of county election commissioner, being a public office with a fixed term, and there being no power of removal conferred by statute, the State Board of Election Commissioners had no power to remove county election commissioners after their appointment and qualification. In that 'Case the statute provided for the appointment of county election commissioners by a board of State officers, and it specified that appointments should be made biennially, not more than ninety days nor less than thirty days prior to the election. The court held that the language of the statute provided for a fixed term of office, and based its holding on Bruce v. Matlock, supra. Chief Justice MoCulloch, who delivered the opinion of the. court in both eases, said:

i£Our decision in Bruce v. Matlock, supra, is, we think, decisive of the question. There was involved in that case the question whether or not membership on the board of trustees for the charitable institutions of the State was a public office, and whether or not the Governor, who appointed the members, had the power to remove them. The statute authorizing the appointment of the trustees did not, in so many words, prescribe the duration of the term, but merely specified that the Governor should ‘biennially’ appoint the board. We held that the use of that word necessarily implied a term of office of two years. We held that the position constituted a public office, with durative term, duties and emoluments specified, and that the Governor had no power of removal. ’ ’

This shows that the court based its holding in each case upon the fact that the time of appointment, having been specifically named, indicated that it was exclusive, and that the appointment could be made at no other time than that provided in the statute. Hence the language used, by the Legislature clearly showed that it meant that the appointment should not be made except during the prescribed time, and, that being so, the term of office became fixed when the appointment was made.

Such is not the ease in the statute under consideration. It provides for the commissioner to be appointed, who shall hold office for a term of four years, or until his successor shall be appointed by the Governor. But it is insisted that the word “or” should be construed to mean “and,” in order to effectuate the intent of the Legislature. 'Counsel invoke the well-known rule that “or” may be construed to mean “and,” or vice versa, in order to harmonize the provisions of a statute or to carry out the manifest intent of the Legislature. The court would not be justified in making the proposed substitution unless the whole context of the statute requires, plainly and beyond question, that it be done in order to give effect to the intention of the Legislature. The reason is that, where words have a settled legal meaning, it is dangerous to'Conjecture that they were used in other than their legal signification. Travers v. Reinhardt, 205 U. S. 423, 27 S. Ct. 563, and Brown v. Rushing, 70 Ark. 111, 66 S. W. 442.

In its ordinary sense the word “or” is a disjunctive particle that marks an alternative, generally corresponding to “either,” as “either this or that”; it is a connective that marks an alternative. 29 Cye. 1502.

The substitution of “and” for “or” is not necessary in order to harmonize the provisions of the statute, and there is nothing in the context to indicate that such substitution was in the minds of the members of the Legislature. We think that the Legislature used the disjunctive conjunction “or” in its ordinary and generally accepted sense. It established the alternative, and gave the Governor the power of allowing the incumbent to remain in office for the full period of time prescribed by the statute, or of removing him before that time had expired.

The circuit judge gave an additional reason, which is entitled to some weight, why the disjunctive “or,” as used in the statute, should not be held equivalent in meaning to the copulative conjunction “and.” He said that it was clear that the word “or” was used in a disjunctive and not in a copulative sense because the act provided that the office should exist and the act be in force for a period of thirty years. He pointed out that, if a four-years’ term had been contemplated, the duration of the office provided for in the act would have been in some multiple of four, as was done when the office of Insurance Commissioner and State Piré Marshal was created. In that act the duration of the office of Insurance Commissioner and State Fire Marshal was established for a period of thirty years and the terms of office fixed at six years, making five equal terms.

Again, the circuit judge properly pointed out that some effect should be given to the provisions of the act that no employees could be appointed except by and with the consent of the Governor.

Finally, it is suggested that, as the aet provides that the Governor, by and with the consent of the Senate, shall appoint the Commissioner of Insurance and Revenues, the chief executive alone is not the appointing power, and that the Commissioner could only be removed by the joint action of the Governor and the Senate. We do not think this position is tenable when the language used is considered with the context of the act. In the same sentence there is a provision that the incumbent shall hold office for a term of four years, or until his successor shall be appointed by the Governor. Continuing, the section provides that, if the Senate be not in session when the appointment is made, the appointee shall qualify and hold office until his appointment be rejected by the 'Senate when it next convenes. Hence we are of the opinion that it was contemplated by the Legislature that a vacancy might occur by the death, resignation or removal of the incumbent by the Governor; and it was the intention of the Legislature that the Governor could fill such vacancy and that the appointee would hold office until the next session of the Legislature.

The Governor is the chief executive of the State, and the Legislature has made him responsible for the conduct of this office. This is done by giving him the power to remove an incumbent and by requiring the incumbent to select his employees and assistants with the approval of the Governor. Section 5 expressly provides that, whenever there shall be a vacancy in the office of the Commissioner of Insurance and Revenues, the Governor shall fill such vacancy by appointment.

If the word “or” be given its ordinary meaning as a disjunctive particle, in the phrase, “who shall hold office for a term of four years, or until his successor shall be appointed by the Governor,” this gives the Governor the power to remove the Commissioner, and to appoint a successor in his place.

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

Kirby, J., dissents.


text:
    Holland v. Nakdimen.
    Opinion delivered September 24, 1928.

      Chester Holland and Daily & Woods, for appellant.

      J. B. McDonough, Jr., and J. B. McDonough, for appellee.
   Hart, C. J.,

(after stating the facts). The correctness of the decree of the chancery court depends upon the validity or invalidity of act 118, passed by the Legislature of 1927, having for its purpose to regulate the rate of interest which may be paid by banks in the State of Arkansas on deposits. Acts of 1927, p. 357.

Section 1 of the act reads as follows:

“That from and after the passage of this act it shall be unlawful for any bank, savings bank or trust company, or other association of persons engaged in the business of receiving deposits within this State, to either directly or indirectly offer to pay or pay a rate of interest in excess of four per centum per annum upon such deposits, irrespective of the nature thereof.”

Section 2 provides that any officer of any such bank violating- the provisions of the act shall be g-uilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than $25 nor more than $100, and each transaction of such a nature as described in § 1 shall constitute a separate offense.

.All the text-writers ag-ree that the business of banking is so closely related to the public welfare that it properly falls within the police power of the State, and the adjudicated cases so hold.

In Thompson on Corporations, 3 ed., vol. 1, § 491 (460), it is said:

Perhaps no class of corporations are more completely under police regulation of the States than banking companies. The police power, in its visitorial aspect, as exercised by Congress and the several States, extends to the minutest details of the 'banking business. These corporations'are not, strictly speaking, quasi public in their nature; but they are of such a character that the State can and does protect the public by any and all reasonable regulations necessary to that end. The peculiar relation that banks sustain to the public, and by this is meant their depositors, is such thiat it is the business and the duty of the State to see that corporations embarking in such an enterprise are entitled to the confidence of the public, and that depositors who, in good faith, intrust their money to these institutions shall be protected.”

■Continuing, the learned author quoted with approval the following: “The quasi public nature of the banking-business, and the intimate relation which it bears to the fiscal affairs of the people and the revenues of the State, clearly bring it within the domain of the internal police power and make it a proper subject for legislative control.” Further on in the same section the author quoted with, approval from Blaker v. Hood, 53 Kan. 499, 36 Pac. 1115, 24 L. R. A. 854, as follows:

“Enactments controlling the loaning- of money and regulating the rate of interest upon the same have been sanctioned from the earliest times, and the nature of the business done by blanks dealing in money, receiving deposits for safekeeping, discounting paper, and loaning money, is such, and is so affected with a public interest, as to justify reasonable regulation for the protection of the people. The confidential and trust relations which exist between the bank and its patrons, and the difficulty that depositors and those dealing with the bank necessarily encounter in detecting irregular practices and in ascertaining the real financial condition of banks, are sufficient to justify inspection and control. ’ ’

In Noble State Bank v. Haskell, 219 U. S. 104, 31 S. Ct. 186, the court said that the police power extends to all the great public needs, and held that it includes the enforcement of commercial conditions, such as the protection of bank deposits and checks drawn against them, by compelling cooperation so as to prevent failure and panic. Hence it was held that statutes of the State of Oklahoma subjecting State banks to assessments for a depositors’ guaranty fund are within the police power of the State and do not deprive the banks assessed of their property without due process of law or deny to them the equal protection of the law, nor do they impair the obligation of the charter contracts. In discussing the subject, Mr. Justice Holmes, who delivered the opinion of the court, said:

“Among matters of that sort probably few would doubt that both usage and preponderant opinion give their sanction to enforcing the primary conditions of successful commerce. One of those conditions at the present time is the possibility of payment by checks drawn against bank deposits, to such an extent do checks replace currency in daily business. If, then, the Legislature of the State thinks that the public welfare requires the measure under consideration, analogy and principle are in favor of the power to enact it. Even the primary object of the required assessment is not a private benefit, as it was in the cases above cited, of a ditch far irrigation or a railway to a mine, but it is to make the currency of checks secure, and by the same stroke to make safe the almost compulsory resort of depositors to hanks las the only available means for keeping money on hand. 'The priority of claim given to depositors is incidental to the same object and is justified in the same way. The power to restrict liberty by fixing a minimum of capital required of those who would engage in banking is not denied. The power to restrict investments to securities regarded as relatively safe seems equally plain.”

Following this opinion, it was held that a similar act of Nebraska providing for a guaranty fund and prohibiting banking except by corporations formed under the act, was not unconstitutional. Shallenberger v. First State Bank, 219 U. S. 114, 31 S. Ct. 189.

We think the principles of law above announced control the present case, and that the act under consideration Is a valid one, and is not unconstitutional. If the State, under its police power, may provide a guaranty fund for the protection of depositors and prohibit banking, except by corporations formed under the act, it would certainly seem that declaring the rate of interest which a 'bank might lawfully pay on deposits, if reasonable, is not so unnecessarily oppressive and arbitrary as to render the act invalid.

It is the contention of the plaintiffs that it has been paying four and one-half per cent, interest on time deposits, and that it is an unreasonable requirement to restrict banks to paying only four per cent, on such deposits. We do not think so. If the business of banking is a proper subject for legislative control, and its regulation falls within the internal police power of the State, the Legislature would clearly have the right to restrict the rate of interest in a reasonable way on time deposits to prevent banks, by agreeing to pay a large rate of interest on time deposits, from ever becoming insolvent. The act was passed to prevent .officers of banks from paying a too high rate of interest on time deposits, recklessly, or in ia vain effort to prevent threatened insolvency. 'The people, of necessity, must deposit their savings in banks, and any reasonable regulation for the protection of such.depositors falls within the police power of the 'State. Small depositors of savings from their daily wages have no means of making an investigation into the solvency of the banks into which they put their money. Hence it is proper for the Legislature to enact laws regulating, restraining and governing the banking business.

It is next insisted that the act in question is an attempt to regulate commerce between the States. It is claimed that the statute places a direct burden on interstate commerce which Congress alone may control. It is insisted that the act is broad enough to include deposits, even when received for the purpose of transmission to another State. The 'statute was passed for the purpose of regulating and safeguarding the receiving of deposits, which precedes the later transmission of money, although leading to it. Engel v. O’Malley, 219 U. S. 128, 31 S. Ct. 190. The Supreme Court of the United States in that case cited the case of Musco v. United Surety Company, 196 N. Y. 459, 90 N. E. 171, 134 A. S. R. 851, and approved the reasoning of that court on the subject. The Court of Appeals of New York said that the acts of receiving the deposits and of subsequently transmitting them, although they may be related, are still entirely distinct.

Again, it is claimed that the act is invalid because it infringes upon the power of Congress to regulate and govern national banks. The City National Bank was organized- under the laws of the United -States, and is subject to all the acts of Congress regulating and governing national banks. On February 25, 1927, an act of Congress was approved which provided, among other things, the following:

“Any national banking association may malee loans secured by first lien upon improved real estate, etc. Sucb banks may continue hereafter, as heretofore, to receive time and1’savings deposits and to pay interest on same, but the rate of interest which such banks may pay upon such time deposits or upon savings or other deposits should not exceed the maximum rate authorized by law to he paid upon such deposits by State banks or trust companies organized under the laws of the State wherein such national banking association is located. ’ ’

Thus it will be seen that the act of Congress expressly provides that national banks may not pay upon time deposits or upon savings accounts a rate of interest exceeding the maximum rate authorized by law to be paid on such deposits by State hanks in the same State where the national bank is located.

Finally, it is insisted that the act under consideration went into effect March 7, 1927, and that, in so far as the plaintiff, Mrs. C. C. Scott, is concerned, it would violate a contract which the bank had previously made with her to pay her four and one-half per cent, on time deposits until June 30, 1927. When Mrs. Scott and the bank made this contract they knew that the regulation and control of banks came under the internal police power of the State and that this contract must be subject to all laws then in force or which might thereafter be passed.

The result of our views is that the act under consideration is a valid exercise of the police power of the State, and the chancery court erred in not so holding. Therefore the decree will be reversed, and the case will be remanded, with directions to the chancery court to sustain the demurrer of the defendants to the complaint and to dismiss the complaint for want of equity. It is so ordered.


author: Wood, J.

text:
    Inter-Southern Life Insurance Company v. Holzhauer.
    Opinion delivered July 9, 1928.

      Bullion & Harrison and Utley S Hammoch, for appellant.

      Joseph Morrison, for appellee.
   Wood, J.

The Inter-Southern Life Insurance Company, successor to North American National Life Insurance Company, is a corporation authorized to do the business of life insurance in Arkansas. It will hereafter, for convenience, he called appellant. The State manager for the appellant was Creen H. Dale. Paul II. Logsden was an insurance solicitor under Dale. As such solicitor he was authorized to sell policies for appellant. On August 6, 1925, Paul H. Holzhauer signed an application for a policy which, so far as is material here, is as follows;

“I hereby agree, if or myself and any person who may have or claim an interest in any contract which may he issued .upon this application, * * * that there shall be no contract of insurance until the policy shall have been delivered to me and the first premium paid to said company or to its duly authorized agent # * *. That I have read a sample blank form of the policy applied for * * *, which policy I agree to accept; and I agree that no statements, promises, or information made or given by the person soliciting or taking this application shall be binding on the company, unless his statements, promises or information be reduced to writing and presented to the officers of the company, at the home office, in this application. I also understand that no person is authorized to erase, waive or change in any manner any of the blanks or printed matter furnished by the company, or to promise any other terms or conditions than those published by the company in its printed matter. I agree that if the policy contains provisions for double indemnity or disability benefits, such provisions shall immediately terminate, if I enter military, naval, aerial, Red Cross, or other relief services.”

On September 4, 1925, the appellant issued to Holzhauer a policy which contained, among others, the following provision, which is material here:

“This policy is issued in consideration of the application therefor, copy of which is attached hereto and made a part hereof. The privileges, provisions and conditions * * * stated on the following pages form a part of this contract as (fully as if recited over the signatures hereto.” * * * Only the president or the secretary has power on behalf of the company (and then only in writing) to make or modify this or any contract of insurance, * * * and the company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above' * * *. This policy and the application herefor (a copy of which application is attached hereto) constitute the. entire contract between the parties. * * * This policy takes effect and becomes binding upon the company only upon actual delivery thereof to the applicant. * * * Provisions ifor accidental death benefit issued as a part of and attached to policy No. 17989 on the life of Paul Gr. Holzhauer. In consideration of the application here-for, which is made a part hereof, and a copy of which is attached to the policy, # * * in the event of the accidental death of the insured, such accident occurring more than one year after date hereof and under the conditions described herein, the North American National Life Insurance Company of Omaha, Nebraska, promises to pay to the beneficiary named in said policy the sum of $2,000, in addition to the sum insured under the said policy. * * * The provisions of said policy and the application therefor concerning misrepresentations * * * are hereby referred to and by such reference made a part hereof.”

The policy was inclo-sed to Holzhaner with a letter, which is as follows:

“Inclosed please find your policy No. 17989 for $2,000, being the same as applied for and explained by onr Mr. P. H. Logsden, agent.” The letter was dated at Little Rock, September 4, 1925, signed by G. H. Dale, State manager of the company. The policy was received by Holzhauer and retained by him until the date of his death, which occurred the fifth or sixth of January, 1926. The sole cause of his death was through violent and external means — the breaking of his leg, and shock and physical suffering incident thereto.

The insured was 26 or 27 years of age. He was a rice farmer; could read and write English, and attend to his own business. The policy was received through the mail with similar policies sold to the insured’s brothers. The insured and his brother, Herman, carefully examined the policies. They did not read the whole thing, because they took it ifor granted that it was a good policy and like Logsden told them it was. The father of the insured was a German and his mother a Russian. He was ¡born at Gillett, Arkansas, and educated at that place in a Lutheran school. He was duller than the balance of the family, and relied on his brother Herman’s judgment. Logsden, the appellant’s soliciting agent, had authority to sell life insurance for the appellant with disability benefits and double indemnity riders. Logsden had never seen a copy of the double indemnity rider, and had never had it explained to him. Other soliciting agents for appellant sold the double indemnity the same way ¡as Logsden did. He never had any copy of the double indemnity rider, and was instructed by the manager that it would go into effect when the policy was issued, and he sold Holzhauer the policy with that understanding. The premium for double indemnity was $2 per thousand extra, and Holzhauer paid the $4 [for the extra $2,000 insurance. Logsden did not know until after Holzhauer was dead that the double indemnity rider provided that it should not go into effect until one year after the date of its issue. The appellant, at the time it issued its policy and at all times while doing business in Arkansas, bad on file with the insurance company the identical form of a double indemnity rider which was attached to the policy issued to Holzhauer, and no other. Appellant did not write or issue double indemnity insurance in any form except that attached to Holzhauer’s policy. After the death of Holzhauer and proof of same had been made to the appellant, appellant tendered to the beneficiary in the policy the sum oif $2,000 in full settlement of the policy, which was refused.

Pauline Holzhauer, the beneficiary in the policy, hereafter called appellee, instituted this action in the chancery court,- in which she set up the policy. She alleged compliance with the terms of the contract on the part of the insured, and that appellant had refused to comply with the terms of the contract by paying the amount of insurance due, to-wit, $4,000. She prayed that the contract of insurance with the double indemnity rider ibe reformed so as to be in force and effect from the date of the policy, and for judgment in the sum of $4,000, with interest, penalty and attorney’s fees. In its answer, the appellant denied liability for any greater sum than $2,000.

The above states the facts upon which the chancery court entered its .decree granting the prayer of appel-lee’s complaint and rendering a decree in her favor in the sum of $4,000, with interest at 6 per cent., 1'2 per cent, penalty, and attorney’s 'fees of 10 per cent, of the amount recovered. From that decree is this appeal.

1. The only two persons that were present at the time the application was signed were the insured and Logsden, the appellant’s agent, who was authorized to take applications for the appellant’s policies, or, as the testimony shows, “to sell appellant’s policies.” The application shows that the insured contemplated that a policy might be issued which contained double indemnity or disability benefits. The uncontroverted testimony of Logsden, who took the application, shows that the insured applied for a policy containing double indemnity or disability benefits. He paid the premium for a policy that should contain such features. The application, which was prepared by the appellant, did not show when the double indemnity rider attached to the policy would take effect. The soliciting agent explained to the insured that the rider providing for the double indemnity insurance, which was attached to and of course a part of the policy, would take effect when the policy took effect. .Since there was no one present at the time the written application was signed by the insured except himselif and Logsden, the testimony of Logsden establishes conclusively that the insured applied and paid for a policy that should contain disability benefits and double indemnity insurance, and that this feature of the policy should take effect and be in force at the time the policy was issued. But, when the application for the insurance was received and approved by the appellant, it issued its policy, which contained disability benefits and double indemnity insurance in a rider attached thereto, which rider provided that that feature (disability and double indemnity) should not take effect until one year after the date of the policy.

The company accepted the premium paid by the insured for double indemnity insurance, and issued its policy providing ifor such insurance, which should go into effect one year after the issuance of such policy.

The appellant contends, first, that the appellee is not entitled to a reformation of the contract, and is •bound by the terms of the policy as written, because the application and the policy constitute the contract, which was not t-o become effective until the policy was delivered; that, after the policy was delivered, it was accepted by the insured and retained by him without any objection to its provisions for a period of four months, when his death occurred. To sustain this contention, appellant relies npon the doctrine announced in 1 Joyce on Ins. 267, § 66G-, as follows:

“But it is lalso held that, if a person received a policy of insurance ostensibly in response to an application therefor, which he signed and parted with in the belief, induced by the fraud of the agent taking same, that it called for a policy different from that which it called for in fact, he is bound, as a matter of law, to examine the policy within a reasonable time after it comes to his hand, and to discover obvious departures therein from the one which he supposed he was to get, and promptly, upon discovering the same, to rescind the transaction, give the company due notice thereof, and do all on his part which justice requires to restore the former situation, or he will be held to have accepted the policy as satisfying his application, so as to he precluded from rescinding the same. And the insured is charged with notice of the contents of a written application executed by him, land which, by the terms of the policy, is made a part thereof.”

Learned counsel for the appellant also cite and rely upon the following cases of our own court: New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412; Carrigan v. Nichols, 148 Ark. 336, 230 S. W. 9; Gray v. Blackwood, 117 Ark. 100, 165 S. W. 958; Gray v. Blackwood, 112 Ark. 332, 165 S. W. 958; Gray v. Stone, 102 Ark. 146, 143 S. W. 114; Smith v. Smith, 86 Ark. 284, 110 S. W. 1038; Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70.

Where an insurance company issues its policy and takes in payment therefor the note of the insured, if the insured retains the policy an unreasonable time, he cannot, when sued on the note, defend on the ground that the policy does not express the terms of the contract, unless he can prove that he failed to read the policy and to return same within a reasonable time with his objections thereto, because of some act of the company which misled and prevented him.

Judge Battle, speaking for the court in Remmel v. Griffin, supra, says:

“It was bis duty to examine the policy in a reasonable time after he received it — that is, in such time as he could have done so — and, if he rejected it, to so inform the insurance company, or its agent, and, flailing to do so, he is deemed to have accepted it. After such acceptance he cannot avoid the payment of his note on the ground that he did not read the policy, unless he was induced by the insurance company, or its agent, not to do so.”

Unless the insured was induced by the insurance company, or its agent, not to read his policy, it would be manifestly unjust to the company to allow him to retain the policy an unreasonable time, or until his note became due, and then plead that the policy did not express the contract. Because, in the meantime, he had been insured, and if he had died the company would have had to pay. Hence under those circumstances he would be estopped. Such is the doctrine announced by Mr. Joyce, supra, and the cases •cited supra.

Where the soliciting or sales agent of an insurance company takes an application for a policy of insurance, telling the applicant that the policy, when issued, if he desires that kind of a policy, will contain, in addition to straight life insurance, a provision for disability and double indemnity insurance, and that the policy will take effect when issued, both as to the straight life and double indemnity insurance, then, when the policy is delivered, it is the duty of the applicant, the insured, to read the policy to see if it expresses the contract, and, if it does not, to return the same within a reasonable time, and to thus notify the company of his objections thereto. This the insured must do, unless the company, or its agent, has done some act which is calculated to, and does, mislead him and prevent him from reading and returning the policy. But, if the insurance company, or its agent, having real or apparent authority so to do, has so misled the insured and caused him not to read and return the policy, then the insurance company, when suit is brought against it by the beneficiary to reform and to recover on the policy, as he alleged it should have been written according to the understanding between the sales agent and the insured that it would be written, cannot defend on the ground that the insured did not read the policy and did not notify it of his objections thereto, or return the policy within a reasonable time. For, under such circumstances, it would be obviously unfair and unjust to the insured and his beneficiary to permit the company to take advantage of its own wrong, and to thus defeat the beneficiary from recovering on the policy. Under such circumstances, the company is estopped.

This brings us, in the final analysis, to the crux of the lawsuit — that is, whether the letter from the appellant’s State manager to the insured, taken in connection with the other facts, was sufficient to estop the company and thereby enable appellee to obtain the relief sought. A majority of the court has reached the conclusion that the appellant is estopped.

We have not overlooked the well-established doctrine that a local and special insurance agent, having only authority to solicit applications for insurance and to collect premiums, ¡but not to issue policies, would have no power to issue policies or to bind the company to enter into a contract of insurance in conformity with any representations he may have made. 'Such lan agent has no power to make contracts for the company. See Mutual Insurance Company v. Abbey, 76 Ark. 328-31, 88 S. W. 950, and cases there cited; American Insurance Co. v. Hornbarger, 85 Ark. 337-45, 108 S. W. 213; Pacific Mutual Life Insurance Co. v. Carter, 92 Ark. 378, 123 S. W. 384; 124 S. W. 764; Home Life and Accident Co. v. Haskins, 156 Ark. 77, 245 S. W. 181. Logsden was not authorized, as a merely local and special soliciting or sales agent of the appellant,.to bind the appellant to issue a policy containing disability land double indemnity insurance to take effect when the policy was issued. The application signed by the insured himself specified that there should “be no contract of insurance until a policy shall have been delivered,” etc. Our decision is not bottomed upon the idea that Logsden had authority, real or apparent, to bind the company to issue a policy according to his promise and representation. But our decision is grounded upon the fact that the letter of Dale misled the insured, as his brother testified, and caused them not to read the policy as closely as they would have done had they not been relying upon the explanation of Logsden. The letter was certainly calculated to so mislead the insured.

It will be observed that the insured applied for a policy containing disability and double indemnity benefits, and the written application does not show when this character otf insurance was to take effect. Logsden testified that the insured'“wanted double indemnity to be in force and effect from the time the policy was issued. ’ ’ He explained to the applicant that such insurance “would be in effect from the time the policy was issued.” Logsden, at that time, had not seen the disability rider, but he testified that he told the applicant “it would take effect when the policy was delivered;” “that” says he, “was my instructions from Mr. Dale.” He “just told us to add all the features and charge $2 per thousand for the double indemnity.” The insured settled for the rider and the policy at the time the application was taken.

While Dale denied, in his testimony, that he gave Logsden such instructions, we are convinced that he is mistaken, and that Logsden is correct in his testimony. It occurs to us that Dale’s letter shows conclusively that he knew that Logsden had explained the policy. It shows that he knew that the applicant was applying for a disability and double indemnity policy, which did not show on the face of the application when it went into effect. Thereifore it bad to be explained, and tbe general manager informed tbe insured tbat tbe policy issued was “tbe same as ¡applied for and explained” by P. H. Logsden, agent. Where agents of foreign companies represent them as general managers or managers, they have generally large discretionary powers in regard to making insurance and transacting business relating thereto. Their powers are similar to those of officers of the company. A resident agent, designated officially as manager, has authority to employ another to solicit risks, contract therefor, to deliver policies, and collect premiums, and the acts of the agent so appointed, done within the employment, will bind the company. He may also waive conditions in the policy, and estop the company by his acts within the scope of his authority. It certainly was within the scope of Logsden’s authority, as soliciting or sales agent, to explain the terms of the policy which the company authorized him to sell. He could not make any headway without doing so. The company, through its manager, authorized him to do so; knew that he. had done so, and by his letter expressly ratified the explanation Logsden had made. Had Dale simply inclosed the policy to the insured without comment, the case would have been entirely different. The proof that appellee is entitled to the relief sought is “full, clear and decisive.” McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Parker v. Carter, 91 Ark. 166, 120 S. W. 836; Waddell v. Bowdre, 151 Ark. 474, 236 S. W. 599; Augusta Cooperage Co. v. Black, 153 Ark. 133, 239 S. W. 760.

We do not find any intentional or actual fraud on the part of the agents of appellant. The law warranting the relief under the facts proved by the appellee is well expressed by Corpus Juris, vol. 32, p. 1135, par. 24'2, as follows:

“Even where there is a mistake, and both parties act in good faith, yet when the mistake is that of the company or its agents, and it reasonably induces the other party to believe that he is insured, the company is estopped to deny the effectiveness of the insurance. The delivery of a policy with the assurance that it is in compliance with the application is a waiver of an agreement that the insured would notify the company if the policy were not right.” See also note 4 (b). See also Fidelity Insurance Company v. Parmer, 91 Conn. 410, 99 Atl. 1052. See also Connecticut Fire Insurance Co. v. Wigginton, 134 Ark. 152, 263 S. W. 844; Stewart v. Fleming, 96 Ark. 371, 131 S. W. 955. The appellant is clearly estopped from asserting that the policy is different from that which its agents represented it would he. The decree is therefore correct, and is affirmed.

Smith and Kirby, JJ., dissent.


author: "Wood, J.

text:
    Powell v. State.
    Opinion delivered July 9, 1928.

      Robert L. Rogers, 0. A. Graves and McMillan & McMillan, for appellant.

      E. W. Applegate, Attorney General, Walter L. Pope, Assistant, for appellee.
   "Wood, J.

Earl Powell was indicted as accessory before the fact to the crime of arson, alleged to have been committed on January 23, 1928, by Marcus Faulkner.

Mrs. Wright testified that she was the owner of the property on which a picture show was being operated by E. D. Wright in Gurdon, Clark County, Arkansas. The building was destroyed by fire, December 20, 1927. E. D. Wright testified that in the building in which he maintained a theater there was also a barber shop, restaurant, and offices up stairs.

The defendant also operated another picture show at Gurdon. The building had been damaged in March, 1926, by a fire similar to the last one, and defendant had rebuilt the same. The defendant was in the picture show business at Gurdon at the time of the first fire. The first fire resulted in a total loss of equipment and machinery, and the damage was more than $5,000. The first fire was set in the man-hole under the booth; the man-hole was made for the plumbers and electricians to go under there and do their work. Witness, on August 19, sold a negro a ticket to. the show. When the negro entered the theater, he had a package under his arm. He came out, complaining that he had a headache. The next morning at two o’clock the building was dynamited, and badly wrecked. The explosion was on the brick wall where the negro sat. Witness noticed that the negro had a bundle when he went in, but did not notice the bundle when the negro came out. After tie explosion, witness went to the defendant and told defendant that he didn’t believe in dirty competition, and offered to buy defendant’s show business for a fair price. The defendant and witness had several conversations, and defendant recently offered to buy witness’ picture show business. Witness offered defendant his business for $40,000. One night the defendant came to witness’ ticket office, and stated be thought the property was worth the money, and that he would let witness know in a few days. That occurred about thirty or forty days' before the fire. The defendant did not come around in a few days, and witness then called on him about it, at which time he stated the price was too much. Witness was one of the aldermen of Gfurdon, and the defendant was fire chief. The fire-fighting equipment in Gurdon consisted of a big truck which operates on its own power, and 1,500 feet of hose. It was an efficient outfit. On the night of the last fire, the truck wasn’t there for a long time. It was pushed by hand to the railroad track, where a truck had to be hitched to it to pull it over the track. Witness did not see the defendant at the fire that night. Witness got a high-powered flashlight, and went on the roof, looking for tracks. The first building, next to the theater, was four feet higher than the next building going up the street toward the hotel, and in fighting the fire it was not necessary to go on the second roof. Witness and a man named Newton, who accompanied witness, went over to the hotel, where the owner told witness about Faulkner’s having a room there, and that he had requested to be moved back after she had moved him out. Witness traced tracks to Faulkner’s room in the hotel. Witness informed the sheriff. They guarded Faulkner’s room until daylight. When it was light, the city marshal, the sheriff and his deputy saw the tracks, and went in and arrested Faulkner, after having fitted his shoes in the tracks. There was frost all over the roofs of the houses, and it was easy to trace the tracks.

We need not set out any further testimony tending to prove that Faulkner burned the building, for he was a witness, and testified that he did burn the same, and that he was hired to do so by the defendant. Mrs. Epperson testified that she operated the Commercial Hotel and the restaurant therewith in December, 1927. She knew Marcus Faulkner, and first saw him December 14, when he came and registered at the hotel, where he had a room and was staying on the night of the fire, and where he was arrested after the fire. Faulkner, by mistake, went to room No. 12, which is on the opposite side from the theater. ■ He later asked for room No. 1, on the side next to the theater. Faulkner was taken out of No. 12 and was given room No. 39, and after-wards he asked (for room No. 1 again. Witness knew the defendant. He took some of his meals at witness’ restaurant. Powell was in and out all during the day. He sometimes entered the hotel through'the hall, sometimes through the dining-room, and on through the hotel door. He came and went in the lobby of the dining-room, and it was not unusual for him to be around the hotel. He didn’t spend much time at the hotel; came and took his meals and went out, as others did. She didn’t see him at the hotel the nig*ht before the fire nor the morning after the fire, but he came into the cafe in the afternoon of that day for something to eat.

Bill Jamerson was a colored porter at the Commercial Hotel. He was such on the night that the Wright Theater burned. He saw Faulkner two or three times around the hotel before the theater burned, and he also saw Powell around the hotel often. Witness explained the situation of the. lobby and the barber shop and the lavatory. The lavatory was on the left of the hall— the barber shop on the right. Witness stated that he had seen Powell and Faulkner in the lavatory. Powell was in a pay-station toilet, and Faulkner came in and washed his hands. Both were in the back room, where the toilets were. Witness was sweeping at the timé, and went out, after he got through with his duties, and left Powell and Faulkner in there. Witness did not see nor hear them talking* to each other. Witness saw Powell in the hotel frequently. He ate his meals around there all the time. Witness saw him in the pay station once; nearly everybody uses the lavatory.

Milton Morton testified that he operated a barber shop in the same building as the Commercial Hotel. About the middle of the week before the fire, witness saw Powell come into the barber, shop from the back olf the hotel; he did that on an average of two or three times a week. Customers in witness’ shop, as a rule, used the hotel lavatory; there was nothing unusual in Powell coming into witness’ shop and going into, the hotel lavatory; different ones did that.

H. 'Shepard testified that he was marshal of Grurdon the night of the fire. Powell was the fire chief at that time, and, as such, had charge of the fire equipment and the house in which it is kept. Witness did not see Powell at the fire on December 20, 1927. Witness was at the fire, and found that they had to push the engine to get it there, and he helped to push it. The fire-plug was operated with a wrench by which the cap was taken off of same, the hose attached, and the water turned on. The thing you turn the water on with is on the top over the plug* — the wrench goes with the truck. There are special wrenches for the plugs. The firemen tried to turn on the water, and couldn’t do it. There was but one wrench with the engine that night. There are five sides on the thing with which you turn on the water, and there are four wrenches that go with the truck. Since the fire witness had found one or two wrenches in the fire-house, under some rubbish. The wrench they had that night had ¡been hammered on all sides, and wouldn’t go on the plug. The wrench was exhibited to the jury. The water was turned on that night with' a little monkey wrench that witness got over it. Witness couldn’t say how many keys there were to the firehouse. Witness had one in his possession. The fire chief had one, and there was one that stayed at the council room. There were supposed to he several more.

A. L. Horton testified that he was night marshal at G-urdon on December 20, 1927. The door to the house where the fire engine stays is generally operated with a little stick. The doors come together, and generally the doors were opened by running a little stick in to raise the latch and open the bars. That couldn’t he done that night. Nails were stuck up over the bars at the ends. After the doors were opened, the truck couldn’t be driven out; it had to he pushed out ¡and hitched to another truck. The • regular driver was there, hut he couldn’t drive the fire-truck. Usually the doors to the engine room were left so anybody could flop the stick that fastened them and get in, hut, on the night of the fire, nails had been put in, as stated, to keep them from opening it.

Roy Gates testified that he worked on the fire-truck the morning after the fire; the truck would not run. The carburetor was off from' the needle valve so it couldn’t get any gas. The valve underneath the gas had been fastened up with a pair of pliers, and witness had to loosen it with a pair of pliers. When it wasn’t screwed too tight, it could be started with the hand, but on this occasion it had to ibe unscrewed with pliers. It had been put out of business — so it wouldn’t run.

Doan Yeager testified that he knew Earl Powell, the defendant, and saw him the morning before the fire. Witness and others were warming by a fire at the planing mill when defendant Powell drove up and said, “What’s the matter, not having more fire?” He took a piece of waste out of his pocket, and said, “I reckon that’ll burn.” The waste is stuff that automobile mechanics use to work on cars with in their business. Powell had this in his hands, lit it in the fire, and threw it on the ground, and said, “Reckon that’ll burn,” and witness said, “Sure, it will burn.”

John Martin testified, over the objection of the defendant, that he knew Luther Holliman at Hope, where witness and Holliman lived. Witness also knew .Marcus Faulkner. Witness, at the time of the fire, was working for the Natural Gas Company at Gurdon. Before coming to Gurdon, witness had frequently seen Marcus Faulkner around Luther Holliman’s place of business. He had seen Faulkner in Hope, around in the company of Luther Holliman. He had seen him around there several times, but didn’t know about his hanging around there -most of the time. The defendant duly excepted to the ruling of the court in admitting this testimony.

J. H. Lookadoo, the sheriff, was recalled, and testified that, after Powell was arrested, he asked a party or two to make his. bond, and then said he wanted to call his uncle at Hope — witness believed it was' Luther Holliman — over the ’phone. He called him Uncle Newt, or Uncle Luke. Witness believed it was Uncle Luke.

Marcus Faulkner testified that he knew the defendant, but had not known him very long. Witness set fire to the theater. Powell hired witness to do it. Over the objection of the defendant, witness testified that Holliman sent witness to Gurdon. Holliman talked with witness about one week before, at Holliman’s place of business. When witness went to Gurdon from Hope, he traveled from Hope to Emmet on the train, and then got off the train and got in Mr. Holliman’s car, and he brought witness to Powell’s 'filling station, and Powell was not there at the time, and Holliman went into the filling station and called him. Holliman introduced witness to Powell. Powell told witness that he wanted to see him. Witness told Powell that witness did not have any money. Powell gave witness $5, and told witness to go over to the hotel. Witness went there, and Powell came over to the hotel and told witness to go down and go to the first show, and, after the first show was over, to go to his picture show. Witness met Powell between bis show and tbe drugstore, and Powell toob him in his oar and carried him down, the street a piece, and showed him the place he wanted burned, and how to get in there, and brought witness back to the hotel, and said he wanted witness to burn the theater, and told him how to get in a window. Powell said he wanted the theater burned on Monday, because the firemen would be away, and said that he, Powell, would be out of town. Powell told witness to burn it with waste that he had put there in a little box. Witness was to get $150 for burning the theater. Witness knew the negro Bill Jamerson. Jamerson came into the lavatory at the hotel when witness and Powell were in there. When Jamerson came in, Powell went to washing his hands. Powell talked to witness about burning the theater, in the back of the hotel. Defendant duly excepted to the ruling of the court in admitting the above testimony. Witness then detailed how he went from his room at the hotel out of the window and.across into the Wright building, and set fire to same. Witness, further along in his testimony, stated that he was in the laviatory with Powell two or three times; that the darkey came in three times when witness and Powell were in there. They were in there twice on Monday, and he came in both times, and also on Thursday evening. On the first meeting on Monday, when the darkey came in, witness turned and washed his hands, and the darkey walked out. Powell did not Wash his hands then.. Powell was to pay witness $150 Wednesday morning. He didn’t pay the money. Witness got $5 one day, $5 another day, and the promise of $150, and for that the witness burned the building.

The defendant testified that he was chief of the fire department at Hurdon, and had been ever since they had had a fire department. He also operated'a picture show since he had been at Glurdon. His duty as chief was to see that fires are put out, and to take care of the men and the fire equipment. He had a key to the building where the fire-truck was kept, but seldom used it. They entered by thrusting a stick under the latch through a crack in the door. Two or three days before the Wright Theater burned, witness Was in the place where the fire truck was kept, and took it out and put gas in it. It ran at that time with its own motor. He did not examine the carburetor. There was nothing wrong with the fire-truck at that time. It worked all right. Witness never looked at the wrenches. They were in the back of the truck, in a box. Witness denied that he hiad put the carburetor out df fix. Witness was not in Gurdon on the night of the fire. He was in Little Rock. He left Gurdon for Little Rock on Monday, about twelve o’clock, and returned to Gurdon on Tuesday morning, on No. 5, which gets to Gurdon about 10 o'clock a. m. Witness stated that he had. a key also- to the garage where the fire-truck was kept. There was a key also in the council room,- Ross Moore had one; and there was still other keys. Witness testified that he had nothing to do with the advising or encouraging or prompting Marcus Faulkner to set fire to the building. He denied that he was acquainted with Faulkner, and stated that he never saw him until he saw him in court. He denied that he had ever met Faulkner in the laviatory of the hotel, and denied all statements that Faulkner had made connecting witness with the burning of the theater.

The court, at the instance of the State, gave the following instruction:

“A. If you find from the evidence in this case, beyond a reasonable doubt, that the witness, Marcus Faulkner, in Clark County, Arkansas, at any time within three years before the indictment in this case was returned into court, willfully, feloniously and maliciously set fire to and burned the building about which the witnesses have testified, and that the building was the property of the -witness Lulu May Wright, that that property was at the time in the possession of R. D. Wright, and you further find from the evidence in this case, beyond a reasonable doubt, that the defendant, Earl Powell, in Clark County, Arkansas, at any time within three years before the indictment was returned into court, and before said building was burned by the said Marcus Faulkner, unlawfully, willfully, feloniously and maliciously advised or encouraged the said Marcus Faulkner to set fire to and burn said building, then you will convict the defendant, and assess his punishment at imprisonment in the penitentiary for some period of time not less than two nor more than ten years.”

The defendant objected generally to the instruction, and also specifically because the instruction used the word “or” before the word “encouraged,” instead of the word “and.” The defendant asked the court to instruct the jury to return a verdict of not guilty. The court refused to give such instruction, and the appellant duly excepted to the ruling of the court.

At the request of the defendant the court gave several instructions on the question of the corroboration of an accomplice, and also on the presumption of innocence, burden of proof, and reasonable doubt. The jury returned a verdict finding the appellant guilty, and assessing his punishment at six years’ imprisonment in the State Penitentiary. Defendant’s motion for a- new trial was overruled, and defendant was sentenced by judgment of the court in accordance with the verdict, from which judgment is this appeal.

1. The appellant contends that'there was not sufficient testimony to meet the requirements of the law as set forth in our statute and decisions concerning the corroboration of an accomplice.' Section 3181, C. & M. Digest, provides that a conviction cannot be had in a case of felony upon the testimony of an accomplice,' unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and a corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. The law, as prescribed by our statute supra. and announced in numerous decisions of our court, was correctly declared by the trial court, and appellant does not contend otherwise. He only insists that the testimony was not sufficient to justify the trial court in submitting the issue of corroboration to the jury, and urges therefore that the court should have granted his prayer to direct the jury to find a verdict of not. guilty.

Of the many decisions of this court passing on the question of a corroboration of an accomplice, not one of them is authority for any other decision on that question, because each case necessarily must depend upon its own peculiar facts, and no case is found where the facts are precisely the same. After a somewhat extensive review of our cases where the sufficiency of the testimony to meet the requirements of the statute has been challenged, it occurs to us that the testimony in this record is amply sufficient to have warranted the court in submitting to the jury to determine whether the testimony of the 'accomplice had been corroborated as the statute requires. The court did not err therefore in refusing appellant’s prayer for instruction.

In Kennedy v. State, 115 Ark. 480, 171 S. W. 878, we approved an instruction in the following language: “While the defendant cannot be convicted on the uncorroborated testimony of an accomplice, the amount of such corroborating evidence which should be required is a question solely for the jury, and it is sufficient, if there is 'any such evidence, to warrant you in convicting the defendant, provided it, taken with all the other evidence in the case, convinces you of his guilt beyond a reasonable doubt.” G-uided by this declaration of law, we are convinced that the court did not err in submitting to the jury, under the facts of this case, whether or not the testimony of the accomplice, Faulkner, when considered in connection with other evidence, was of sufficient weight to convince them of the appellant’s guilt beyond a reasonable doubt. The circumstances tending to show Faulkner’s guilt were very strong, and the jury would have been fully warranted in finding him guilty, independent of his confession. His confession shows that his only motive was.purely mercenary, and the testimony for the State tending to prove that appellant and Wright were rivals in' the picture show business at Grurdon, that two or three efforts had been made ¡by some one to destroy by fire and explosion the building in which he operated his picture show, and because of this Wright had suspected and approached the appellant to purchase his business or to sell out to appellant, and that these negotiations had not been successful, was relevant on the issue as to whether or not appellant had a motive for destroying Wright’s property. The fact, testified to by the accomplice, that he was directed' by Holliman, appellant’s uncle, to go to G-urdon, that appellant wanted to see him, and that he was taken to Gurdon by Holliman and introduced by him to the appellant, was relevant testimony as tending to show how Faulkner came in contact with the appellant. While appellant denies this circumstance, Holliman did not testify. As a circumstance tending to corroborate the accomplice as to his acquaintance with Holliman, and the opportunity for Holliman to have done as Faulkner testified he did do, the testimony of the witness Martin, to the effect that he had seen Faulkner around Hollimian’s place of business in Holliman’s company, corroborated Faulkner. The testimony of Faulkner was that, when he got to Grurdon and was introduced to Powell, Powell told him to go to the hotel, and, after showing Faulkner the theater he wanted burned, he took witness back to the hotel and showed him how to get in the theater from the hotel, and told him that he wanted it burned on Monday because the firemen would be away and he would be out of town, and to burn it with waste that he had placed in a box.

Appellant, to be sure, denies all these circumstances, and denies that he had ever seen Faulkner, but here again there is testimony tending to corroborate thé testimony of Faulkner in some of the circumstances detailed by him. The testimony of Mrs. Epperson, the hotel keeper, that Faulkner, when he came to the hotel, was first assigned to a room on the side next to the theater, and when he found that, by mistake, he was placed in the wrong room, and again placed in the room next to the theater, from which he went and set fire to the theater, tends to corroborate the testimony of Faulkner. Faulkner’s testimony was to the effect that appellant had shown him liow to set fire to the theater from a room in the hotel. Mrs. Epperson’s testimony tended to prove that Faulkner was assigned a room in the hotel from which he emerged and passed over the roofs to the theater building. The testimony of Faulkner was also, in a manner, corroborated by the negro porter, Jamerson, who testified that he saw Earl Powell and Faulkner together in the lavatory of the hotel; that Faulkner came in while Powell was there, thus showing that, notwithstanding appellant’s denial that he had ever seen Faulkner, he did see him, according to the porter, and had an opportunity to talk with him. Faulkner testified, in this connection, that the porter came into the lavatory while he and Powell were in there, and that he and Powell talked about it in the back of the hotel. The testimony of Faulkner, it occurs to us, is also corroborated by the testimony of the appellant himself, showing that he was out of town on the night of the fire, as Faulkner had testified that he said he would be. Also the testimony of Faulkner that appellant was connected with the burning of the theater is corroborated most strongly in the circumstances detailed by the witness tending to prove that the appellant was fire chief of the town, having full control over the fire-truck and other equipment, and that some one had so injured the entire fire equipment on the night of the fire as to put it practically out of commission. The testimony in detail shows how this was done, which we need not here repeat. The testimony of Faulkner was corroborated by the witness who testified that appellant had prepared and exhibited a waste that would burn.

The testimony of Faulkner to the effect that appellant told him he wanted the building burned Monday nig’ht .because he would be out of town and that the firemen would be away, and to burn it with certain waste that he had prepared, was all corroborated. The jury had the.right to conclude that some one who must have been interested in the destruction of this theater building by fire had destroyed the effectiveness of the fire equipment so that it could not be used for the extinguishment of the fire, and the jury had the right to lay this responsibility at appellant’s door, because, under the proof, he had complete control over the fire-fighting apparatus and the house which contained it. In the absence of proof by appellant to the contrary, the jury had a right to conclude that the appellant had barred the doors and crippled the machinery so that the burning of the theater on the night mentioned could not be prevented.

We will not pursue the matter further. Our conclusion is that the court was warranted in submitting the issue to the jury, and that there was substantial testimony from which the jury was justified in finding that the accomplice, Faulkner, was corroborated in the manner and to the extent required by our statute and decisions. See Scott v. State, 63 Ark. 310, 38 S. W. 339; Cook v. State, 75 Ark. 540, 87 S. W. 1176; Kennedy v. State, supra; Ernest v. State, 120 Ark. 148, 179 S. W. 174; Rogers v. State, 136 Ark. 161, 206 S. W. 152; Brown v. State, 143 Ark. 523, 222 S. W. 377; Haskin v. State, 148 Ark. 351, 230 S. W. 5; Casteel v. State, 151 Ark. 69, 235 S. W. 386; Middleton v. State, 162 Ark. 535, 258 S. W. 995; Strum v. State, 168 Ark. 1012, 272 S, W. 359

2. The objection of appellant that the court erred in not using the word “and” instead of “or” in instruction No. A is without merit. True, our statute, in § 2308, defines an accessory as “one who stands by, aids, abets, or assists, or who, not being present, aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime.” But in the next section, No. 2309, it is provided that “he who thus aids, assists, advises or encourages shall he deemed in law a principal, and shall ¡be judged accordingly.” For all practical purposes the words “advise and encourage,” or the words “advise or encourage” should be used interchangeably or synonymously in the administration of the criminal law. At least, they mean so nearly the same thing that no nice and critical. distinction should be drawn between them, and this court has not heretofore done so. See Boze Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173; Brown v. State, 55 Ark. 593, 18 S. W. 1051. Our lawmakers did not intend that these terms should be used in any hypertechnical sense. It is difficult to see how, if one “advises” another to commit a crime, he does not in that act also “encourage” him to commit it ; and, on the other hand, when one “encourages” ¡another to commit a crime, he also in a sense “advises” him to commit the crime. This is necessarily the case, unless we indulge in refinements of distinction which, we are sure, were not in the minds of the lawmakers when they defined the term “accessory to a crime” and prescribed his punishment. Any definition of the word “accessory” or of the words “advise” and “encourage,” given by standard literary or legal lexicographers, will show that, where one is charged as an accessory before the fact by advising and encouraging the commission of a crime, as in the case at ¡bar, proof that he either advised or encouraged the commission of the crime will sustain the charge. See Funk & Wagnalls, also Webster, s. v., advise, encourage; also see 1 E. C. L., p. 131, 132, §§ 1, 2 and 3; 1 Wharton, Crim. Law, § 263 et seq; 1 Brill’s Cyo. Crim. Law, § 237, 241; 1 McClain’s Crim. Law, § 204, 208;, 1 Bishop’s Crim. Law, § 600 et seq., and § 663. Under our statute (§§ 2308, 2309, 2311, C. & M. Digest), one who is charged with being an accessory before the fact may be convicted if he advised and encouraged or if he advised or encouraged the commission of the crime.

3. The court did not err in admitting’ the testimony oif Marcus Faulkner to the effect that Holliman talked with him and directed him to see the appellant. Nor did the court err in admitting the testimony of John Martin that he had seen Faulkner in company with Holliman at Hope and around Holliman’s place of business. Appellant denied that he had ever seen Faulkner. Holliman was appellant’s uncle, and it was relevant testimony to show how Faulkner came in contact with the appellant. It is one of the incidents in the chain of circumstances proper to be related by Faulkner in his narrative explaining his connection with the crime charged.

There is no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.