text:
    Naill v. Kirby.
    Opinion delivered January 28, 1924.
    1. Quieting title — titles prom common source. — Where both parties to a suit to quiet title- claim to hold under -the same individual, it is unnecessary to go behind the latter’s title.
    2. Vendor and purchaser — innocent purchaser. — One purchasing land with knowledg'e that the land is in possession of a neighbor claiming title is not an innocent purchaser.
    3. Deeds — signature by mark — witness.—A deed signed by the grantors’ marks and acknowledged by them before a justice of the peace is not inyalid because their marks were not attested as provided by statute, the method prescribed thereby not being exclusive, but only establishing prima facie the genuineness of the signature.
    4. Witnesses — impeachment.—In a suit to quiet title, testimony' of plaintiff’s attorney that a justice of the peace, before whom a deed to one of - defendant’s predecessors in title was acknowledged, admitted to him that it was executed for money borrowed from the grantee or in aid of a settlement with him, was admissible, to impeach the credibility of such witness, but not as substantive evidence that it was intended as a mortgage or in settlement of any transaction between the grantor and grantee.
    5. Mortgages — effect of absolute deed — A deed absolute on its face can be shown to have been intended as a mortgage only by clear, unequivocal and convincing evidence.
    6. Deeds — deed not signed by grantors. — While a deed not signed by the grantors named therein conveys no title, the grantee acquires such an equitable interest as will protect the possession of one claiming under a deed from such grantee’s heirs as against a subsequent purchaser from the latter, in view of the facts that the grantor, a negro lawyer, on whose advice the legal title had been conveyed to him for reconveyance to grantee, wrote the deed .to the latter, and neither his grantors nor his grantee, who were also negroes; could read or write, the grantors and grantee being dead, and the latter’s 'widow and heirs making no claim to the land.
    7. Ejectment — equitable title. — One holding land under an equitable title cannot be ejected therefrom.
    8. Estoppel — failure of holder of legal title to make defense. —The fact that the heirs of the holder of the legal title to land made no defense did not estop the owner of the equitable title in possession from setting up his title in defense to a suit by another to quiet title.
    9. Vendor and purchaser — possession as notice of title. — One who acquires land while it is in the possession of another takes with notice of the latter’s interest in the land.
    Appeal from Prairie Chancery Court, Southern. District; Wilson W. Sharpe, special chancellor;
    affirmed.
    STATEMENT OP PACTS.
    G. W. Naill and Mary Price brought this suit in equity against John Kirby and others to quiet the title of plaintiff, G. W. Naill, in the land- described in the complaint, and to have a deed from James Hill and wife to G. W. Walker treated as a mortgage which has been fully satisfied.
    The defendant, John Kirby, defended the suit on the ground that he had title to the land in controversy. The other defendants made no defense to the action.
    It appears from the record that G. W. Naill and John Kirby, both of whom claim title to the land in controversy, trace their title to a common source. Each claims title by mesne conveyances from James Hill, who, it is conceded, at one time owned the land and was in possession of it. No attempt is made-'by either party to go behind the title of James Hill or to show that his title to the land was not good. It appears from the record that James Hill and Phoebe Hill, his wife, had title to the land and lived on it.
    The plaintiff, G. W. Naill, deraigned title as follows: In the record there is what purports to be a deed to the land in controversy, comprising 120 acres, from James Hill, a widower, to Mary Price. The consideration recited is $100, and the date of the deed is January 25, 1912. The signature is as follows: “ James (his x mark) Hill, L. G.” The deed purports to have been acknowledged before a notary public by James Hill on the 14th day of February, 1912. It was filed for record on the 10th day of April, 1912, .and was duly recorded. ■
    On the 19th day of October, 1914, Fred Harris executed a quitclaim deed to the land in controversy to Mary Price for the consideration of $1. The signature of Fred Harris was by his mark, and was duly attested by two witnesses. The deed was acknowledged by Fred Harris before a notary public on the 9th day of October, 1914, and filed for record on. October 20, 1914. On September 20, 1918, Mary Price conveyed the land in controversy to Gr. W. Naill for the consideration of $300, and the deed was duly acknowledged and filed for record on the same day.
    The defendant, John Kirby, deraigned title as follows : There is in the record what purports to be a deed to the land in controversy from James Hill and Phoebe Hill to G. W. Walker for the consideration of $600. The deed purports to be a warranty deed with relinquishment of dower, in common form. The signatures to the deed are as follows: “James (his x mark) Hill (seal), Phoebe (her x mark) Hill (seal).” There does not appear any attesting witnesses to the signatures. The certificate of acknowledgment recites that James Hill was the grantor in the deed, and acknowledged it before J. D. Hall, a justice of the peace. The certificate of acknowledgment also recites that Phoebe Hill was the wife of ■ James Hill, and signed her relinquishment of dower and homestead in said land under the laws of the State of Arkansas. The deed was filed for record on the 8th day of June, 1895, and was duly recorded.
    There also appears in the record what purports to be a deed to the same land from G-. W. ¡Walker and Martha T. Walker, his wife, to Phoebe Hill, for the consideration of $625. This deed is dated May .9, 1895, and the signatures to it are the following: “James (his x mark) Hill and Phoebe (her x mark) Hill.” This deed purports to have been acknowledged before ' J. D. Hall, justice of the peace, on May 9, 1895. The certificate of acknowledgment recites that Gr. W. Walker is the grantor in the deed, and stated that he had executed the same for the considerations and purposes mentioned therein. The • certificate of acknowledgment also recites that Martha T. Walker, the wife of G-. W. Walker, to the officer well known, in the absence of her husband appeared before him and signed .and executed her relinquishment of dower and homestead to said lauds. This deed was filed for record on the 13th day of May, 1895, and was duly recorded.
    There also appears in the record a quitclaim deed - to said land from Alice Hurdle, Lafavette Harris and other persons named therein to John Kirby. The deed is dated on the............day of September, 1913, and is signed by the grantors. The consideration recited in the deed is $1. The grantors duly acknowledged the deed before a notary public; and it was filed for record on the 21st day of March, 1918.
    Mary Price was a witness for the plaintiffs. According to her testimony, James Hill was her father, and he could neither read nor write. She was living in Little Rock, Ark., when he deeded the land to her. At the "time her father executed the deed to her, the land had been rented to Gr. W. Naill, and he lived on it with Pearl Bundy, a daughter of the witness. Subsequently the husband of witness procured a deed to the land to her from Fred Harris, a brother of Phoebe Hill. Phoebe Hill was the stepmother of the witness, and was seventy-five years old when she died. James Hill died in 1912, soon after he executed the deed to the witness. Phoebe Hill had died before the deed from James Hill to Mary Price was executed. The witness sold the land to Gr. W. Naill for $400, and he paid her for it.
    Gr. W. Naill was a witness for himself. He said that he paid Mary Price for the land at the time she executed the deed to him. He believed that she had title to the land when he bought it. He did not know anything about the purported deed from Gr.- W. Walker and wife to Phoebe Hill, which was signed by James Hill and Phoebe Hill, when he purchased the. land. He rented the land from Mary Price two years before he rented it from the defendant, Kirby. This was in 1914 and 1915. He rented the land from the defendant Kirby in 1917. On cross-éxamination he stated that he. did not know who occupied the house on the land in 1913, 1914 and 1915, but that John Kirby occupied it in 1916, 1917, and 1918. He knew that the defendant Kirby was in possession of the land when he bought it from Mary Price. Fannie Nichols occupied one room of the house after James Hill died. She was in that room when the witness rented the land. John Kirby lived right in front of the house where the witness lived during the years 1916 and 1917. The . witness paid Kirby $40 rent the first year and $30 the next. The witness refused to pay the rent to Kirby until he received a guaranty that Mary Price would not again collect the rent from him.. As soon as the witness purchased the land from Mary Price in 1918, he brought suit for it.
    Fannie Nichols was a witness for the defendant Kirby. According to her testimony, she lived on the place three years after James Hill died. John Kirby permitted her to live there, and claimed the place while she lived there. Mrs. Gr. W. Naill worked the place a part of the lime. John Kirby moved in a house on the place when she moved, out, and has lived there ever since.
    J. 13. -Hall was also a witness for the defendant, Kirby. According to his testimony, he was a justice of the peace on the 9th day of May, 1895, and took the acknowledgment to two deeds; one from James Hill and wife to G. W. Walker, and one from G. W. Walker and wife to Phoohe Hill. These deeds were prepared by G. W. Walker, a colored lawyer, who occupied the same office with the witness. James and Phoebe Hill were present and acknowledged the first deed. J ames Hill was an ignorant colored man, and stated that he had so much trouble with his children that lie wanted to fix the land so that he would not lose it, and wanted to give the land to his wife. He asked Walker to fix the deed that way. Walker told him that it would be better to deed the land to him, that he and' his wife would deed it to Phoebe Hill. The witness took the acknowledgment of James Hill and wife to the deed to Walker, and also took the acknowledgment of Walker and wife to Phoebe Hill. The witness did not understand why ,Tames Hill and Phoebe Hill signed both deeds. It must have been an oversight. There was nothing said about the deed being intended as a mortgage, and Walker had no money to lend. Both deeds were written and acknowledged at the same time.
    According to the testimony of Jim Bundy, he married a daughter of Mary Price. Mary Price did not live on the land in question after James Hill died. James Hill left the place in November or December, 1911, and Mary Price went with him. G. W. Naill worked the land for several years after James Hill died. Fannie,Nichols lived on the place four years after James Hill died,.and left the place in 1916. John Kirby moved in when she left the place, and has lived there ever since.
    According to the testimony of John Kirby, Phoebe Hill was his aunt. She had no children or parents at the time she died. She had one brother, Fred Harris, also known as Lafayette Harris, and one sister, and his wife, Eliza Kirby. The reason the heirs of Phoebe Hill did not claim the land when she died was because they did not want to disturb James Hill in the possession of it as long as he lived. After James Hill died the witness bought the other heirs out and divided the land, giving’ Pearl Bundy sixty acres. Kirby rented the land to G. W. Naill in 1914 and 1916. He received a deed to the land from the other heirs of Phoebe Hill in 1913, and in 1914 took possession of the land by moving Fannie Nichols on the land to hold possession of it for him, and by renting the land to G. W. Naill. G. W. Walker and Phoebe Hill died some time before James Hill died. The mother of John Kirby inherited the land from Phoebe Hill. ,
    In rebuttal it was shown by the attorney of the plaintiffs that he asked J. D. Hall about the circumstances under which he took the acknowledgment to the deed purporting to be from Walker and wife to Phoebe Hill, signed by James Hill, and Hall told him that the deed was given either for money or security in aid of a son of James Hill who was in trouble. That the deed was in settlement of a matter between Walker and James Hill.
    The court made a specific finding of fact in favor of the defendant Kirby. He found that G. W. Naill purchased the land with full knowledge that the defendant, Kirby, was in possession of the land and was claiming it to be his own.
    The court further found that the plaintiff, Naill, was not an innocent purchaser of the land, and that his bill was without equity, and it was thereupon decreed that the complaint be dismissed for want of equity.
    The case is here on appeal.

      Emmet Vaughan, for appellant.
    The purported deed from Walker and wife to Phoebe Hill must fall for want of signatures by the grantors to the deed. Their appearance before a justice of the peace and making acknowledgment to the execution of the deed Was not (sufficient to supply the defect caused by the failure to sign it. 'C. & M. Digest, § 1515, 4862; 13 Oyc. 554, and note 34; 1 Ark. 108, the syllabus to which case is misleading; 116 Pac. 837; 44 Conn. 321; (103 Ky.) 46 S. W. 22; 61 Miss. 423; 107 Pa. 395; 25 W. Va.127; 36 Ohio 584. A purchaser of land or any interest therein is not charged with constructive notice of any fact which is not connected Aith the course of his title. 103 Ark. 425; C. & M. Digest, § 1536. A deed1 for land situated in the Southern District of Prairie County, recorded in the Northern District, after the passage of the act creating the two districts, would not be notice to a subsequent purchaser.

      Cooper Tlmeatt and W. A. Leach, for appellees.
    1. Kirby’s answer traverses every material allegation in the complaint, and that answer, even if the widow and heirs at law of Walker were asserting some right or interest in the land in controversy, would inure to their benefit as co-defendants with Kirby. 86 Ark. 304; 71 Ark. 1; 77 Ark. 103; Icl 299; 102 Ind. 301.
    2. Parol testimony may be offered to show that a deed, absolute in form, was intended as a mortgage, but such evidence must be clear, unequivocal and convincing. 193 S. W. 264; 110 Ark. 632; 88. Ark. 336; Id. 299; 75 Ark. 551. In ascertaining the true intent of the parties, the court will not he limited to the terms of the written instrument, but will consider all the circumstances connected with it, the circumstances of the parties, the property conveyed, its value, the price paid, defeasances, verbal or written, as well as the acts and declarations of the parties. 33 Ark. 332. The test as to whether or not the instrument is a mortgage is the existence of an indebtedness. 103 Ark. 484.
    3. As affecting the validity of the Walker deed to Phoebe Hill for want of signature, the cases cited by appellant, with the possible exception of. one or two, are based on statutes peculiar to those States. Signature is not essential unless required by statute. At the time Jeffrey v. Undertuood, 3 Ark. 108, cited by appellant, was decided, there was no statute requiring the grantor’s name to be signed to a deed, sealing and delivery being-all that was necessary. Our statute requires only that the deed be executed, and that is nothing more than requiring some 'act on the part of the grantor evidencing his intention to give validity to the instrument. C. & M. Digest, §§ 1515, 1522,1524; Id., § 4862; Brewster on Conveyances, 233; 43 Am. Dee. 10G; Century Diet., “Signature;” 33 Am. St. Rep. 805; 8 R. C. L. 938, § 15; 36 Am. Eep. 193; 36 Am. Rep. 418; 41 Am. Dec. 755. See also 36 Cyc. 449; 25 R. C. L. 667, § 303. It appears that Walker and his wife both appeared before a justice of the peace and acknowledged the execution of the deed. The recitals in the certificate of acknowledgment are con-. elusive, in the absence of fraud or duress, of the facts therein stated. 96 Ark. 564. And the-burden of proof rests on him who attacks the certificate of acknowledgment showing such fraud or duress. 38 Ark. 77; 37 Ark. 145.
    . 4. Appellee’s possession was notice to the world of his claims. 33 Ark. 465; 76 Ark. 27; 66 Ark. 167; 55 Ark. 318; 54 Ark. 499; 47 Ark. 533; 41 Ark. 169; 82 Ark. 455; 39 Cyc. 1759.
   Hart, J.,

(after stating the facts). Both parties claim title under mesne conveyances from James Hill. Hence it is not necessary to go back of his title; for neither party would be allowed the inconsistency of claiming under and attacking the same title. The plaintiff, G. W. Naill, claims that he is entitled to maintain this action upon either of two theories. The first is that he has the paper title to the land in controversy, and the second is that, even if it be decreed that the defendant has the legal title to the land, or any equitable interest therein, he is an innocent purchaser for value.

Taking up these propositions in their inverse order, but little need be said to show that the plaintiff is not an innocent purchaser for value. Practically the undisputed facts are that the defendant, Kirby, was in the possession of the land in controversy at the time Mary Price conveyed it to G. W. Naill. Such possession was equivalent to actual notice of the title, rights or equities of Kirby. Thalheimer v. Lockert, 76 Ark. 25, and Craw ley v. Neal, 152 Ark. 232. Besides, Naill admits that he knew that Kirby was in possession of the land and claiming title to it at the time he purchased it. Tliey lived in the same neighborhood, and an investigation of the source of Kirby’s title would have led to a knowledge of the alleged defects in the title of Naill. The latter is bound by a knowledge of the defects in his title which an investigation would have disclosed. Krow & Neumann v. Bernard, 152 Ark. 99. It necessarily follows that the plaintiff was not an innocent purchaser of the land in controversy.

This brings us to a consideration of his title. The plaintiff, Naill, claims title by a warranty deed from Mary Price to himself and by a warranty deed from James Hill to her of the date of January 25, 1912.

The defendant claims that James Hill and Phoebe Hill, his wife, conveyed the land to Gr. W. Walker on the 29th day of .December, 1894; that Gr. W. Walker and his wife conveyed the land to Phoebe Hill; that Phoebe Hill died owning the land, and that her heirs at law then conveyed it to the defendant, Kirby.

As we have already seen, the deed from James Hill to Mary Price was executed on the 25th day of January, 1912, and was duly filed for record on the 10th day of April, 1912. The deed from Mary Price to Gr. W. Naill was executed on the 20th clay of September, 1918, and-filed for record on the same day. The defendant received a deed from the heirs at law of Phoebe Hill, deceased, in September, 1913, and the undisputed facts show that he was in possession of the land at the time the plaintiff obtained his deed from Mary Price.

But it is contended by counsel for the plaintiff that the title to the land never passed into Phoebe Hill. It is first insisted that the deed from James Hill and Phoebe Hill of the date of December 29, 1894, conveying the land to G-. W. Walker, is void and did not pass the title out of James Hill. This deed was signed by James Hill and Phoebe Hill, his wife, by marks, and acknowledged before J. Í). Hall, a justice of the peace. The signatures of James Hill ancl Plioebe Hill by marks. do not appear to have been -attested as provided by our statute. James Hill and Phoebe Hill could not read and1 write. The method provided by statute for attesting the signature of a person who cannot read or write is not exclusive, but only establishes prima facie the genuineness of the signature without other proof of signing. The grantors in this deed appeared before a justice of the peace and acknowledged the execution of the deed. Their signatures -were signed to tire deed, and, even if unauthorized, they were ratified by the grantors appearing before the-justice of the peace and acknowledging the execution of the deed. Ward v. Stark, 91 Ark. 268. Therefore the deed of James Hill and Phoebe Hill, his wife, to Gr. W. Walker passed the title out of James Hill, unless it be treated as a mortgage, as contended by counsel for the plaintiff.

Counsel for the plaintiff testified that J. D. Hall, the justice of the peace before whom the deed was acknowledged, had admitted to him that the deed was executed either for money borrowed from Walker or security in aid of the son of James Hill, and that the deed was given in aid of a settlement between Hill and "Walker.

At the trial J,. D. Hall testified that the deed w-as executed pursuant to a plan whereby James Hill intended to convey the land to Phoebe Hill, his wife. The statement of Hall to the counsel' of the plaintiff is not affirmative proof that the deed was intended as a mortgage or in settlement of any transaction between Hill and Walker. At most the testimony of the attorney for the plaintiff affected the credibility of Hall as a witness, and Hall’s statements to him could in no manner prove as substantive evidence the effect of the transaction between Hill and Walker.

It is well settled in this State that a deed absolute on its face can only be shown that it was intended to be a mortgage by clear, unequivocal and convincing evidence. Wimberly v. Scroggin, 128 Ark. 67, and cases cited. We are therefore of the opinion that the deed from James Hill and Plicebe Hill to (I. W. Walker divested the title to the land out of James Hill.

It is next contended by counsel for the plaintiff that the deed of May 9, 1895, in which G. W. Walker and Martha T. Walker are named as the grantors and Phoebe Hill as the grantee, which was not signed by G. W. ¡Walker and wife, but was signed by James Hill and Plioebe Hill, did not convey the legal title to Phoebe Hill. In this contention we think counsel for the plaintiff is correct, especially when we consider the chapters of our Digest on Conveyances and the Statute of Frauds. It has been frequently said that the clear weight of authority is to the effect that a deed which is not signed by the person named therein as the grantor is not effective to convey the interest of the person named1 as grantor. The reason is that a conveyance, to be effective, must contain not only the names of the parties, but also words indicative of an intent to transfer an interest in the described property from one to another. Agricultural Bank of Mississippi v. Rice, 4 How. (U. S.) 225; Cordano v. Wright (Cal.), 115 Pac. 227; Ann. Cas. 1912-C, 1044, and cases cited, and note to Ann. Cas. 1916-E. at p. 521.

It does not follow, however, that the deed, although invalid to pass the legal title to Phcobe Hill, did not convey to her an equitable interest in the land. In the case of Swindall v. Ford (Ala.), 63 So. 651, it was held that, while a deed signed 'and acknowledged by a person when the body of the deed makes no mention of him, is void as a conveyance of his interest, it is, as a contract to convey, good and enforceable.

In Stirman v. Cravens, 29 Ark. 548, the court said that our statute of ejectment recognizes equitable titles, such as certificates of entry, preemption, etc., as sufficient evidence of title to maintain ejectment, and asked what reason there could be for holding that the same metal which would make a sword might not make a shield?

We think that case recognizes the principle that, under the facts of this case, while a complete legal title may not have been conveyed to Phcebe Hill, she acquired such an equitable interest, which, being accompanied with possession by Kirby, protected his possession against Naill. As we have already seen; James Hill is the.common source of title of both parties, and the legal title passed out of him by his conveyance to G-. W. Walker. According to'the testimony of Hall, it was intended by James Hill to convey the land in question to his wife, Phcebe Hill, and he was advised by CL W. Walker, a negro lawyer, to first make a deed to him and that he would then convey -the land to Phoebe Hill. The conveyance to Walker invested him with the legal title, and, under the circumstances, we think the subsequent deed in which Gr. W. Walker and wife are named as the grantors and Phoebe Hill as the grantee, conveyed an equitable interest to her, although the deed was not signed by Gr. W. Walker and wife, but was signed by J ames Hill and Phoebe Hill. This is especially so when we remember that all the parties were negroes, and that James Hill and Phcebe Hill could not read and write, and that CL W. Walker wrote the deed. It is true that the testimony of J. D. Hall to this effect is greatly weakened on cross-examination, but it is not entirely overcome. This is especially true under the existing circumstances. James Hill, Phcebe Hill and Gh W. Walker are all dead. The widow and heirs of- GL W. Walker made no defense to the action, and are claiming no interest in the land. J. H. Plall is not shown to have any personal interest in the matter. His contradictory statements to plaintiff’s attorney may have been the result of a faulty memory, but, whatever was the cause of it, his testimony of the main facts is not entirely overcome, but is only weakened by his contradictory statements and bjr his cross-examination.

The plaintiff does not in any way claim title from Gr. W. Walker. In this connection it may he said that the defendant is not asking affirmative relief, but is only seeking to protect his possession, which was taken after acquiring the equitable interest of Phoebe Hill. It is well settled that one who holds land under ail equitable title cannot be ejected therefrom. Gates v. Gray, 85 Ark. 25. Again, in the case of Dobbs v. Gilleti, 119 Ark. 398, it was held that the owner of an equitable title cannot maintain ejectment, but that he may maintain his own possession under such title.

But it is insisted by counsel for the plaintiff that the widow and heirs of G-. W. Walker, deceased, filed no answer and made no defense to the action, and that, on this account, the plaintiff was entitled to have whatever title they may have had to the land vested in him. We do not think so. Kirby was in possession of the land when Naill purchased it, and whatever equitable interest he had in the land could not be divested out of him by making the heirs of G-. W. Walker, deceased, defendants to the action. He had a right to make his own defense to the suit, and his rights could not be prejudiced, or in any way affected, by the fact that the heirs of G-. W. Walker, deceased, failed or refused to make any defense to the action, or failed to cooperate with him in making Ms own defense.

Finally, it is insisted by counsel for the plaintiff that, if the defendant succeeds at all, he cannot succeed in holding the entire tract, because the deed to him from Fred Harris, while executed prior to the deed the latter made to Mary Price, was not recorded until four years after the deed to Mary Price was recorded. Phcebe Hill died, leaving two heirs at law. One of them was the mother of John Kirby and the other was Fred Harris. The deed from Fred Harris to John Kirby was executed in September, 1913. The deed from Fred Harris to Mary Price was not executed until the 19th day of October, 1914. The evidence shows that John Kirby was in possession of the land, through his tenants, at the time the deed to Mary Price was executed. The parties lived in the same neighborhood, and were related to each other.

It is fairly and legally inferable from all the existing circumstances that Mary Price knew that John Kirby was in possession of the land at the time she received her quitclaim deed from Fred Harris. Therefore, under the authorities above cited, sliq will be deemed to have had notice of the equitable interest of the defendant Kirby in the land. It is only by admitting that Phoebe Hill had an equitable interest in the land that the deed from Fred Harris to Mary Price could convey any interest at all. The deed was a quitclaim deed, and, if Phoebe Hill had no equitable interest in the land, Fred Harris, who was her brother and one of her heirs at law, could acquire no interest by inheritance, and had no interest to convey.

It follows from the views we have expressed that John Kirby had an equitable interest in the land, which, coupled with his possession at the time the plaintiff acquired an interest by purchase from Mary Price, enabled him to protect liis possession.

It follows that the chancellor was right in dismissing the complaint for want of equity, and the decree of the chancery court will be affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Stone v. State.
    Opinion delivered January 28, 1924.
    1. Robbery — evidence.—Evidence held to sustain a conviction of assault -with intent to rob.
    2. Criminal law — harmless error. — The refusal to permit the accused to cross-examine a State’s witness as to whether he had been promised immunity from punishment if he would testify for the State in the case at bar held error, but harmless, where the witness was permitted to state that there were indictments against him and that he had been convicted and paroled, and he denied that any express promise had been made that he would be released from prosecution if he testified against accused.
    3. Criminal law — admission of testimony without objection.— Where testimony was admitted without objection, it was within the court’s discretion whether it should be withdrawn.

      4. Criminal law — evidence of other crimes. — To the general rule that evidence of a distinct offense is inadmissible, there is an exception where such evidence is necessary to fix the intent of the accused or to prove the motive for the offense charged against him.
    5. Criminal law — evidence of other crimes. — It is no objection to the admission of evidence of a distinct offense to fix the intent or motive of the accused that such other offense is subject to indictment.
    6. Robbery — instruction.—In a prosecution for assault with intent to rob, an instruction that, if accused was present when the victim was assaulted, aiding, abetting, “or ready and consenting to aid and abet,” the perpetrators or either of them, the jury should find him guilty, held not error, under Crawford & Moses’ Big., § 2412.
    7. Robbery — instruction.—In a prosecution for assault with intent to rob, an instruction that the mere presence of defendant _ at the time of the alleg-ed assault would not be sufficient to authorize a conviction unless he in some manner aided or abetted in the alleged assault or, being- present, was ready and consenting- to aid and abet therein, held not erroneous as argumentative, but beneficial to defendant.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Duty & Duty, for appellant.
    _ J. S. Utley, Attorney General, John, L. Carter, Assistant, for appellee.
   Hart, J.

Roy Stone prosecutes this appeal from a judgment of conviction against him for the crime of assault with intent to rob.

According to the evidence for the State, in March, 1921, Roy Stone, Slim West, Bill Cox and Luther Stacks made a trip in an automobile from Tulsa, Okla., to Siloam Springs, Benton County, Arkansas. After staying in Siloam Springs for a short time they started back towards Gentry, in Benton County, and stopped and robbed two buggies in each of which a boy and a girl were riding home from the meeting of a literary society.

Four persons in an automobile first held up a buggy in which Ralph Couch and Eunice Atkins were riding, and robbed them. Then Bert January and Ina Little, who were riding in a huggy close by them, were held up by the same persons and robbed. The persons in the automobile then went on south about a quarter of a mile, and stopped the buggy in which Robert Harper was riding, and attempted to rob him. They did not find anything worth taking on his person, and let him go. Harper identified Luther Stacks and Roy Stone as being two of the persons who held liim up and attempted to rob him. Ralph Couch also identified Roy Stone as one of the persons who attempted to rob him just before Robert Harper was held up.

¡William Cox was a witness for the State, and testified that he was in the party which committed the robberies described above, and which attempted to rob Robert Harper. Roy Stone helped them to attempt to rob Robert Harper. The robbery and the attempted robbery all occurred in Benton County, Arkansas. Roy Stone denied his guilt, but admitted being present when his companions committed the crimes. He said that he tried to prevent them from committing the robberies on the persons in the first two buggies, but could not do so. He admitted getting out of the ear when Robert Harper was attempted to be robbed, but said that he got out for the purpose of holding'Harper’s horse, which had become frightened. He had nothing to do with holding up and robbing Ralph Couch and Bert January, and tried to prevent his companions from attempting to rob Robert Harper.

The evidence for the State was sufficient to warrant the jury in returning a verdict of guilty against the defendant.

Counsel for the defendant assign as error the action of the court in refusing to permit them to ask William Cox. on cross-examination, if he had not been indicted at the previous term of the court in Benton County, Arkansas, for having carnal knowledge of a female under sixteen years of age, and had been promised that he would not be tried for that offense if he testified for the State in the case against Roy Stone.

We are of the opinion that the defendant was entitled to an answer to this question. It was material to show the influence and inducements under which the witness testified. The witness had acknowledged complicity in the crime, and this, to a great extent, affected his credibility as a witness. The accused had the right to still further lessen the witness’ credibility by showing an existing motive in the mind of the witness to give testimony against him, regardless of truth. If the witness was to be the gainer by testifying in the case, it might have affected his credibility before the jury. The defendant had the right to show to the jury, by cross-examination, if he could do so, that Cox had given testimony against him in order to prevent a prosecution against himself, or to lighten his own punishment. Johnson v. State, 161 Ark. 111, relied upon by the State, is not applicable to the facts in the present case. There, following our earlier decisions, it was held prejudicial error to permit the defendant in a criminal case to be asked whether or not he had been previously indicted for a felony. The question was asked aud permitted to be answered as a matter affecting the credibility of the accused, who was a witness. Tt was held to be error for the reason that the indictment of itself afforded no presumption whatever of the guilt of the accused.

Here, as we. have already seen, the question was asked, not for the pumose of showing that the witness had been indio!ed. and thereby affecting his credibility, but the gis! of the question was to elicit an answer from the wilness that he had been promised immunity from the indictment, if he would testify for the State in the ■case at bar. This, for the reason stated above,was a proper question to be asked the witness on cross-examination, and it was error to refuse to allow the witness to answer it. But it does not. follow, however, that the error was nrejudicial and therefore calls for a reversal of the judgment. The attorneys for the defendant accomplished all the purpose that could have been gained from an answer to this question by asking and obtaining answers from the witness to similar questions.

He was permitted to state that there were three or four indictments against him in the Benton Circuit Court, and that he had been told to be present at the court by the Governor of the State. He was asked if the Governor had not paroled him on condition that he would be at the court to testify in the case at bar, and answered: “Not exactly; he told me to make monthly reports to Mr. Nance, and to be over here at each term of the court.” Nance was the prosecuting attorney. It appears that William Cox had been convicted of this robbery and sentenced to serve a term in the State Penitentiary. The Governor had paroled him and allowed him to return to his home at Tulsa upon his promise to report to the prosecuting attorney monthly and to be present at all terms of the circuit court in Benton County as long as requested. He denied having received any express promise that he would be released from prosecution if he testified against Roy Stone. He said that he did not know about that. He just knew that he was out on parole, and had promised to report, as above stated.

Thus it will be seen that the attorneys for the defendant were permitted to cross-examine the witness thoroughly as to whether he would receive immunity from the indictments pending against him upon the condition that he should testify for the State in the case against Roy Stone. In this state of the record, no prejudice resulted to the defendant in refusing to allow the witness to answer the particular question above stated. Hence this assignment of error is not well taken.

The next assignment of error is that the court erred in permitting William Cox to testify that they had stolen a casing from the automobile of a Mr. Berry while they were in the town of Siloam Springs, on the afternoon of the night of the robbery in question. It is insisted that, inasmuch as the defendant was not present when this casing was taken from Berry’s car, it was not proper to allow the witness to testify about it. No objections were made to this testimony at the time it was offered and given before the jury. After the testimony had been permitted to go to the jury, it was a matter of discretion of the court whether or not it would be withdrawn from the jury.

The next assignment of error is that the court erred in allowing the witness to testify that two young men riding in separate buggies were first robbed on the night in question. It is insisted that these were separate crimes and proof of them could not be introduced to establish the guilt of the accused in the case at bar. In this connection it may be stated that these robberies were committed by the same persons, and that the first two young men were robbed while they were riding in buggies only a quarter of a mile distant from the buggy in which Bob Harper was riding. As soon as Couch and January were robbed, the defendant and his companions rode south a quarter of a mile, in an automobile, and immediately attempted to rob Bob Harper.

It is true that the general rule is that evidence of a distinct offense cannot be admitted in support of another offense; but there are several exceptions to the general rule. One of the exceptions is that, when it is necessary -to fix the intent of the accused, or to prove the motive for the offense charged against him such, testimony is admissible. It is no objection to its admission that it discloses other offenses that are subject to indictment. The exceptions to the general rule as to the admission of evidence of collateral crimes, when the evidence of the extraneous crime tends to identify the accused as the perpetrator of the crime charged, or to show the intent with which the defendant committed it, is as well settled as the general rule itself. Billings v. State, 52 Ark. 303; Davis and Thomas v. State, 117 Ark. 296; Setzer v. State, 110 Ark. 226; Cain v. State, 149 Ark. 616; and Hall v. State, 161 Ark. 453. Hence this assignment of error is not well taken.

It is next insisted that the court erred in giving instruction No. 2, which is as follows: “If you find from the evidence, beyond a reasonable doubt, that the defendant, Roy Stone, in Benton County, Arkansas, and at some time within three years before the indictment was filed in this court, did feloniously, wilfully, and with malice aforethought, commit an -assault on one Bob Harper, wjth the felonious intent then and there the personal property of him, the said Bob Harper, forcibly and violently to take from the person of him, the said Bob Harper, forcibly and against his will; or if you find from the evidence, beyond a reasonable doubt, that, in Benton County, Arkansas, and at any time within three years before the indictment was returned herein, Luther Stacks, Bill Cox and Slim West, or either one or more of them, did feloniously, violently and of malice aforethought commit an assault on one Bob Harper, with the felonious intent then -and there the personal property of him, the said Bob Harper, forcibly and against his will, and that the defendant, Roy Stone, was then and there present aiding, abetting, or ready and consenting to aid and abet said Cox, West and Stacks, or either of them, in making said assault, if you find the assault was made, then you should find the defendant guilty as charged in the indictment, and assess his punishment in the penitentiary for any period of time not less than one nor more than five years. If you fail to find the foregoing allegations proved beyond a reasonable doubt, you should find the defendant not guilty.”

In this connection it may be stated that the defendant was indicted under § 2412' of Crawford & Moses’ Digest. This section of the statute was read to the jury as instruction No. 1, and reads as follows: “Whoever shall, feloniously, wilfully and of malice aforethought, assault any person with intent to rob, and his counselors, aiders, and abetters shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than five years.”

It is contended that instruction No. 2 is broader than the statute, and should not have been given by the court. It is insisted that the statute does not make any one guilty of assault with intent to rob who might be ready and consenting to aid and abet. The particular language in instruction No. 2 objected1 to is as follows: “or ready and consenting to aid and abet said Cox, West and Stacks. ’ ’ When the language just preceding that quoted is considered in connection with it, it is evident that the court submitted to the jury the question of whether or not the defendant was present when Bob Harper was assaulted with the intent to rob him, and was ready and consenting to aid and abet his-companions in making the assault, with intent to rob, upon Harper. The language of the statute is that whoever shall assault any person with intent to rob, and his counselors, aiders and abetters, shall, on conviction thereof, be imprisoned in the penitentiary. Thus it will be seen that the statute in plain terms makes guilty the person committing the assault, and as well his counselors, aiders and abetters. Any one present, ready and consenting to aid and abet the person making the assault, will be deemed his counselor, and' the jury would be warranted in convicting such person. Indeed, from the nature of the crime it is difficult to see how any one can be present, ready to aid and abet the person actually committing the assault, and yet not be aiding and abetting him. His very presence at the scene of the crime, standing ready to aid and abet the person actually making the assault, would show a participation in it. His presence for that purpose would have a tendency to awe the person assaulted, and, by the mere suggestion of numbers, prevent him from making resistance. Hence we hold that this assignment of error is not well taken.

It is next insisted that the court erred in giving instruction No. 5, which is as follows: “I charge you that the mere presence of defendant at the time of the alleged assault with intent to rob would not be sufficient to authorize a conviction, unless he, in some manner, aided or abetted in said alleged assault, or, being present, was ready and consenting to aid and abet therein.”

It is claimed that this instruction is highly argumentative, and assumes that the facts necessary to prove the defendant’s guilt had been made. We do not think that the instruction is open to that objection. It was the theory of the defendant, and he so testified, that he did not have anything whatever to do with committing the crime. He said that the horse of Bob Harper got scared, and that he took hold of him, to prevent his running away with the buggy. This instruction, then, would be beneficial rather than harmful to the defendant, on his theory of the case. His guilt, in the instruction, is made to depend upon whether he aided in committing the alleged assault, or, being present, was ready and consenting to aid and abet.

It is also urged that the latter part of the instruction is faulty because a person being present merely ready and consenting to aid and abet in the commission of the crime is not guilty, under the statute. As above stated, we think that the words “counselors, aiders and abetters” include not only those actually participating in the 'assault, but also those present standing ready to aid and abet in the assault. If they actively assisted in making the assault, they would come within the first part of the section that whoever shall assault any person with the intent to rob. Hence we deem this assignment of error not well taken.

We have carefully examined the record, and find no reversible errors in it. Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Burns v. Harrington.
    Opinion delivered January 28, 1924.
    1. Appeal and error — error appearing upon record. — Neither motion for new trial nor bill of exceptions is necessary where ■the error sought to be reviewed appears from the judgment record itself.
    2. Highways — order laying out — right op appeal. — Under Crawford & Moses’ Dig., § 5249, employing the county court to lay out a road without notice and without the appointment of viewers to locate the road, a landowner affected thereby has a right to appeal from such an order.
    3. Highways — designation op road — indefiniteness.—An order of the county court establishing a road, in which no reference is made to any survey, and the route is not marked or designated except in a general and indefinite way, without indicating how or where the lands of the respective owners would be crossed, except that one terminus would intersect the county road at a designated place, held void for indefiniteness.
    4. Appeal and error — establishment op road — review.—Where, in the proceeding to establish a new road, an order of the county court, rendered after the cause was fully heard on the merits, became final, it was reviewable on appeal, and could not be set aside at a subsequent term of the county court.
    Appeal from Marion Circuit Court; J. M. Shinn, Judge;
    reversed.

      Sam Williams, for appellants.
    There is no bill of exceptions, hence the only errors of which the court dan take cognizance must appear on the face of the record. 100 Ark. 515; 111 Ark. 468. C. & M. Digest, § 5249, has been upheld by this court. 134 Ark. 121. As also the landowners’ right to appeal. 135 Ark. 83. Proceeding under the above statute, the route to be followed should be sufficiently described in the order of the court laying it out' as to enable the overseer to locate the roadbed. 66 Ark. 292, 295-6. The record shows that that was not done in this case.

      J. II. Black, for appellees.
    The description is sufficiently definite to meet the requirements of the statute. C. So M. Digest, § 5229.

      Sam Williams, for appellant, in reply.
    Section 5229, C. & M. Digest, does not apply. This is a proceeding under § 5249, Id., which does not provide for the appointment of viewers to lay out and mark the location of the road.
   Smith, J.

On January 2, 1922, G. H. Harrington and other citizens filed in the county court of Marion County a petition for the establishment of a new road, described as follows: “Beginning at or near the NE corner of the NE% of the NW]4 section 19, township 17 north, range 37 west, known as the J. L. Smithée place, running thence in a northeasterly direction, following the ridge along the most practical road way, keeping on top of the ridge a distance of about three miles to the northwest corner of the Isom Stanley place; thence following said ridge miming in a northeasterly direction along the most practical road way or route, crossing the lands of A. D. Morgan, G. A. Elton, D. W. Jackson, D. B. McNair, John Glenn, W. R. Jones, S. D. Glenn, Theo. Burns, B. F. Burns, Pink Kyles, G. W. Bogle, A. T. Bogle, Watson & Jones, and intersecting the county road at what is known as the Stone place. ” The petition was filed under § 5249, C. & M. Digest.

On the next day after the filing of the petition the court made an order establishing the road, the description set out in the petition being employed in the court order.

On January 27, 1922, B. F. Burns and other citizens filed a petition in the county court praying the court to set aside the order establishing the road. This petition was heard and denied. Thereafter Burns prayed an appeal from the order of the court establishing the road, and from the order overruling the petition to vacate the order establishing the road. -These appeals were Iieardi as presenting a single issue in the circuit court on October 32,1922, when the order of the county court was affirmed, and this appeal is from that judgment.

There was no motion for a new trial, nor bill of exceptions filed, but these are not necessary where the error sought to be reviewed appears from the record itself. Ford v. State, 100 Ark. 515; Independence County v. Tomlinson, 95 Ark. 565; Normana. Fife, 61 Ark. 33; Ward v. Carlton, 26 Ark. 662; Anthony v. Sills, 111 Ark. 468.

The error here sought to be reviewed is the alleged indefiniteness of the description of the road — a fact which appears from the record itself.

The section of the statutes under'which this proceeding was had (§ 5249, C. & M. Digest) empowers the county court to lay out a road without notice and without the appointment of viewers to locate the road. Sloan v. Lawrence County, 134 Ark. 121. But that section of the ■ statute also gives a landowner affected thereby the right to appeal, as has been done here. McMahan v. Ruble, 135 Ark. 83.

In the case of Beck v. Biggers, 66 Ark. 292, an order of the county court laying out a road was held void because the road was not sufficiently described. It was there said: “Again, whether the route of the road was set forth in the report of the viewers as really fixed by them, it is impossible for us to determine from this record; but the description of the terminal and intermediate points of the route contained in said reports, and in the order of the court based thereon, is certainly indefinite enough, and a stranger, even with the aid of compass and chain, could with difficulty, if at all, certainly determine what was the true location of the road. This being true, the description is too indefinite to meet the requirements of the law.”

The necessity for a description of a road sufficient to make its location certain is as great now as it was when that case was decided, for. under the law as it then existed, notice of the intended presentation of the petition was necessary, whereas this notice is not required by § 5249, C. & M. Digest.

Here, there is no reference to any survey, and it does not appear that the route of the new road has in any way been marked or designated, except in the general and indefinite language set out above. It begins at or near a corner of a forty-acre tract of ’land, and runs thence in a northeasterly direction, following the ridge, along the most practical road way, keeping on top of the ridge, a distance of about three miles, to a fixed point, from which point it follows the ridge in a northeasterly direction along the most practical road way or route (a fact which the court order makes no pretense of determining), across the lands of thirteen different landowners. The road crosses the land of these proprietors. It does not appear whether they are coterminous owners, and, if so, what line forms their boundary; and, if they are not coterminous owners, there is nothing to indicate how or where the lands of the respective owners would be crossed, except that the northeastern terminus of the new road would intersect the county road at what is known as the Stone place.

We think the interested persons are entitled to more definite information than this order contains, and that it is therefore void for indefiniteness.

The judgment here appealed from was rendered by the circuit court on October 12, 1922, the same being an adjourned day of the August term of the court. This order recited the appearance of the petitioners and the remonstrators, and the hearing by the court of the cause on its merits, and a general finding in favor- of the petitioners for the road, and an affirmance of the order of the county court, to which ruling exceptions were duly saved.

After thus hearing and adjudging the -cause, it appears that, at the ensuing January term of -the court, without additional pleadings of any character, or notice of any kind, the court entered an order that the remonstrators -had failed to take and perfect their appeal as prayed for by them. The court thereupon renewed its finding that the road was required by the public, etc., and directed the clerk of the circuit court to remand the cause, with directions to the county court to open up the road as prayed for.

We think that the order and judgment rendered at the August term, at which the cause was fully heard on. its merits, became final, and passed beyond the control of the court, upon the adjournment of that term, and appellants had the right to have that judgment reviewed, and, as it appears to be. erroneous on its face, it will be quashed.


author: Wood, J.

text:
    Graves v. McConnell.
    Opinion delivered January 28, 1924.
    1. Statutes — construction—-legislative purpose. — A statute should be construed as a whole, giving some meaning to every word if possible, and, in order to effectuate the intent of the Legislature, the court may eliminate or correct errors or reject certain words and substitute others, in order to reconcile apparent inconsistencies.
    2. Animals — stock-law election. — Under Special Acts 1923, No. 534, providing for a special stock law in Howard County, but that it should not become effective until approved at a special election to be held on any date before the 1st day of August, 1923, and in § 6 that the act should take effect 90 days after its passage, an election held on any date between the date of the Governor’s approval of the act and August 1, 1923, though before such 90-day period, was valid.
    3. Animals — stock-law election — majority defined. — -Special Acts 1923, No. 534, § 5, providing that such act should not become effective until approved by a majority of the qualified electors of the territory affected, requires a majority only of those voting on the question of its adoption.
    4. Animals — review of returns of stock-law election. — Under Crawford & Moses’ Digest, § 2237, giving circuit courts power to issue writs of certiorari to any officer or inferior tribunal to correct any erroneous or void proceeding, the writ does not lie to review the action of the board of election commissioners and county judge and clerk in canvassing the returns and proclaiming the result of a special stock election.
    5. Certiorari- — ministerial act. — Certiorari will not lie to correct a purely ministerial act, even though the performance of the act involves discretion.
    6. Mandamus — -when writ does not lie. — Mandamus will not lie to correct an erroneous statement in the election commissioners’ ' proclamation of the result of a special stock law election that the law had not become effective, where the proclamation showed on its face that a majority of the votes cast were in favor of adopting the law, which put it in full force notwithstanding such statement.
    7. Certiorari — affirmance.—A judgment correctly quashing a writ of certiorari must be affirmed, though the trial court gave an erroneous reason for affirmance.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.

      W. P. Peasel, for appellant.
    1. The court erred in holding that, under § 6 of the act, no part of it went into effect until ninety days after its approval. Having the emergency clause attached, it became a valid law and effective for the purpose of holding the election from the time it was approved b3r the Governor. 109 Ark. 479. See § 5 of the act. On construction of statute, see 135 Ark. 462; 94 Ark. 422; 133 Ark. 491; Sumners v. Road Imp. Dist. 16, 160 Ark. 371. The intent of the Legislature as to when an act shall become effective is controlling, and, when ascertained, it is the duty of the courts to give effect to it. Miller v. Witcher, 160 Ark. 479.
    2. The county judge and board of election commissioners are estopped from defending on the ground that the election was held without authority. 76 Ark. 48.
    3. The commissioners were ministerial officers merely, and had no discretion to take testimony as to the number of electors in the district. Their plain duty was to certify the results as shown by the returns. McCrary on Elections, § 81-5. The provision that the act should not become effective “until it has first been approved by a majority of the qualified electors residing in said district” does not mean a majority of those who actually reside in the district, but a majority of those voting on the question at the election. 45 Ark. 400; 153 Ark. 313.
    4. Certiorari and mandamus the proper remedy. C. & M. Digest, § 2237; 126 Ark. 125; 153 Ark. 50; McCrary on Elections, § 331.

      J. W. Bishop, for appellees.
    1. The legislative intent was that the act as a whole should receive a majority of votes of the qualified electors residing in the district in its favor before it became operative. Sections 2, 5 and 6; 157 Ark. 186; 145 Ark. 144, 147.
    2. Certiorari will not lie to correct ministerial acts. 158 Ark. 437; 157 Ark. 186; Tilghman v. Russell, 158 Ark. 593.

      3. Mandamus will not lie to control the discretion of a court or judge or other functionary, but will be granted only to compel him to act when he refuses to do so. 103 Ark. 504; 26 Cyc. 159; 18 A. L. R. 233; 48 Ark. 384; 56 Ark. 113; 59 Ark. 330; 66 Ark. 579; 78 Ark. 462; 80 Ark. 337; 83 Ark. 598; 84 Ark. 394; 92 Ark. 4; 109 Ark. 491.
    4. If the referendum governs, then no election could be held until ninety days after the adjournment of the Legislature. 103 Ark. 57.
   Wood, J.

Act No. 534 of the Acts of 1923 provides for a special stock law in certain parts of Howard County, Arkansas, known as the “no-fence district.” Sections 1, 2, 3 and 4 contain provisions as to the manner of creating the district and the duties of owners of stock with reference thereto, and the penalty for failure to comply with the provisions thereof.

Section 5 of the act, among other things, provides: “No provision of this ant shall become effective until it has first been approved by a majority of the'qualified electors residing in said described district, at a special election to be held and decide the question. Said election shall be called by the county judge of said county, by publishing proclamation, to be printed for four weeks in all newspapers which have a general 'circulation in said territory * * *. Such special election shall be held on any date before the first day of August, 1923, etc. * * *. Upon the county board of election commissioners issuing their proclamation, attested by the county judge and county clerk, that a majority of said qualified voters, voted in favor of this act, then and thereupon it shall be in force and effect from date; otherwise it shall be null and void.”

Section 6 provides: “That all laws and parts of laws in conflict herewith are hereby repealed, and this act, being necessary for the immediate • preservation of the public peace, health and safety, shall take effect and be in force 90 days after its passage.”

The county judge called the election provided for in § 5, fixing May 5, 1923, as the day the law should be voted upon. The election was held on that day; and, as shown by the certificates of the election commissioners, there were 1,450 votes cast, 760 of the qualified electors voting for the law and 688 voting’ against it. The proclamation was duly issued, attested by the county judge and the county clerk. The commissioners, upon evidence adduced before them tending to prove there were 2,250 qualified electors residing within the district, proclaimed that the law had not received a majority of such electors, and therefore the law had not become effective. The appellants, by certiorari issued out of the circuit court, sought to have the action of the election commissioners and the county judge reviewed, and, if they had erred, to compel them by mandamus to proclaim that the law had been' put in effect by such election. The election officers joined issue on the allegations of the petition for certiorari, and, at the hearing, the trial court held that the election called on March 19, and held on May 25, 1923, was prematurely called and prematurely held, for the reason that what purports to be the emergency clause attached to said act provides that the same shall not take effect and be in force until ninety days after its passage, and that the law was not effective for any purpose until ninety days after March 21, 1923, or until June 21, 1923, and therefore said election was called and held before the law went into effect.

In construing a statute it is the duty of the court to construe it as a whole and give some meaning to every word, if possible, and, in order to effectuate the intent of the Legislature, the court may eliminate or correct errors in a statute, or reject certain words and substitute others, when, by so doing, it only reconciles apparent inconsistencies of language, and, on the whole, accomplishes the purpose which the Legislature had in mind in the enactment of the law. Garland Power Co. v. State Board, 94 Ark. 422; Rayden v. Warrich, 133 Ark. 491; Kindricks v. Machin, 135 Ark. 460; Summers v. Road Imp. Dist., 160 Ark. 371.

Now, the language, “suck special election shall be held on any date before the first day of August, 1923,” is so plain that it does not admit of any construction. The appellees contend that the only way this language can be reconciled with § 6 of the act and carry out the intention of the Legislature is to amend it so as to read as follows: “Such special election shall be held on any date (after ninety days) but before the first day of August, 1923,” adding the words inclosed in the brackets. But it occurs to us that the Legislature did not intend to postpone the election to determine whether the act should become effective beyond the expiration of ninety days after the act was approved by the Governor. The act contains the emergency clause, and therefore was not subject to the referendum. Ark. Tax Com. v. Moore, 103 Ark. 48; Hanson v. Hodges, 109 Ark. 479. It was therefore clearly the intention of the Legislature that this law should become effective, so far as the holding of the election was concerned, before the expiration of ninety days after the final adjournment of thé Legislature.

We think it is equally clear that the Legislature intended that the election to determine whether the act should become effective should be held before the first day of August, 1923, as the act plainly declares. The meaning of the act is simply this: The qualified electors, under the act, had the right to hold an election on any date between the time of'the approval of the act by the Governor until the first day of August, 1923, to determine, by the election held in the manner prescribed by the act, whether the act should become effective, and, if the election were held and it was decided by the majority of the qualified electors residing within the district voting upon the subject that the provisions of the law should be put in force, then the remedial provisions of the act were in force, beginning at a period ninety days after the act was approved by the Governor.

The act under review here is not like the act that was under consideration in the case of Gaster v. Dermott-Collins Road Dist., 156 Ark. 507, where we held that an act without an emergency clause does not become operative until ninety days after the adjournment of the Legislature. There the election could not be held at all until after the expiration of the ninety-day period from the adjournment of the Legislature, because there was no emergency clause. Here, there is an emergency clause, and the act takes effect, for the purpose of having the election held, after ninety days from its passage, provided the qualified electors have held an election before the first day of August, 1923, and determined by majority that the remedial provisions of the law shall become operative.

The case is controlled in this respect by the recent case of Miller v. Witcher, 160 Ark. 479. In that case, while there was no emergen^ clause, the act designated a fixed day when the election was to be held to determine whether the act should take effect, which day was before the expiration of ninety days for the law to become operative under the initiative and referendum of the Constitution. In that case we said: “The only way to give any effect to that part of the act providing for an election in the district is to say the Legislature intended to impose that condition before the act could be put in operation. * * * Until the expiration of the ninety-day period after the adjournment of the Legislature, the voters had the power to refer the act to the people as a whole, for approval or rejection, at the next general election.” In the instant casé the act was not referred to the people for approval or rejection under • the initiative and referendum, and it became a law when it was approved by the Governor, authorizing the qualified electors to hold the election at the time and in the manner prescribed therein, but it' was not to become operative, so far as its remedial provisions were concerned, until the election was held and a majority of the qualified electors in the district had voted that its remedial provisions should go into operation and effect.

In Gaster v. Dermott-Collins Road Imp. Dist., supra, inasmuch as the Legislate did not specify any time for holding the election, and since there was no emergency clause,- we held that it was the intention of the Legislature that the election should not be held until some time after the expiration of the referendum period. But here the Legislature has fixed a definite time for the election and has added the emergency clause. Construing all the provisions of the act together, we are convinced that it was the design of the Legislature to have the election held before the first day of August, 1923, and, if the result of that election was in favor of putting the remedial provisions of the act in force, then these provisions became effective as soon as the ninety days expired after the approval of the act by the Governor. We conclude therefore that the election to determine whether the remedial provisions of the act should become operative was not premature.

2. Section 5 of the act provides: “No provision of this act shall become effective until it has first been approved by a majority of the qualified electors residing in said district.” In Watts v. Bryan, 153 Ark. 313, an amendment to the Constitution contained the following provision: “If a majority of the qualified electors of such county shall have voted public road tax, etc. * * In that case we held that this language requires a majority only of those voting on the question, and not a majority of the highest number of votes cast at the election, nor a majority of all persons in the county entitled to Vote. See also Banks v. Austell, 45 Ark. 400, where we. gave similar language a like construction. The canvass of the returns by the commissioners of 'the votes cast upon the subject showed a majority for making the law effective. It follows therefore that, under the above decisions, the commissioners should have proclaimed the law in effect.

3. Section 2237 of Crawford & Moses’ Digest gives to circuit courts the power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same. The appellants contend that, under this section, certiorari is the proper remedy, since the act under review provides no method for reviewing the action of the board of election commissioners and the county judge and clerk, by appeal or otherwise. But an examination of the act will disclose that the appellants are not correct in this contention, for the authority conferred upon the board of election commissioners is simply to canvass the returns and declare the result and file a certificate of the same with the county clerk. They issue their proclamation, attested by the county judge and county clerk, that the majority of the voters voted in favor of or against the act. We cannot discover in any of these duties any quasijuclicial function. The acts of canvassing the returns and declaring the result of the election and filing the certificate thereof and issuing the proclamation are all purely ministerial acts. The law is well settled by numerous decisions of this court that certiorari will not lie to correct a purely ministerial act, even though the performance of the act involves discretion. Patterson v. Adcock, 157 Ark. 186, and cases there cited. Mandamus will not lie. The election officers did not refuse to act, but only, as appellants contend, did not make the correct proclamation. Mandamus cannot be invoked to correct an erroneous proclamation. The proclamation, on its face, shows that a majority of the votes cast were in favor of adoption of the law, and this put the law in force, notwithstanding the erroneous statement in the proclamation that the law had not become effective.

We are not called upon here to determine what court or tribunal would have jurisdiction to determine a contest of the result of the election. Suffice it to say, in response to the contention of the appellees, that certiorari" and mandamus are not tlie proper remedies to review the action of the election commissioners in canvassing the returns of the election and proclaiming the result thereof. While the trial court gave an erroneous reason for its judgment in quashing the writ, its judgment is nevertheless correct, and it therefore must be affirmed.


author: Humphreys, J.

text:
    Brown v. Peach Orchard.
    Opinion delivered January 28, 1924.
    1. Appeal and error — conclusivbness of court’s finding. — The finding of the circuit court sitting as a jury will not he disturbed on appeal if supported by any substantial evidence.
    2. Municipal corporations — annexation of territory — evidence. ■ — In a proceeding by a municipality to annex territo.ry, evidence held to sustain -a finding that the territory was needed for town purposes.
    3. Schools and school districts. — Acts 1919, p. 177, creating county boards of education and vesting them with jurisdiction to change the boundaries of school districts, neither expressly nor impliedly repealed act No. 312 of 1909, which provided that “when the limits of the city or town are extended so as to include territory not before within the school district, all of said new territory in the city or town becomes a part of special district of said city or town.”
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge;
    affirmed.

      F. G. Taylor, for appellants.
    1. Under the evidence the petitioner has failed to make a showing sufficient to entitle it to annex the territory described in the petition, but the land sought to be annexed is shown to be farm and timber land, not necessary for any purpose to the town. 54 Ark. 321.
    2. The court erred in holding that it had jurisdiction to change the boundaries of school districts by annexing territory to an incorporated town constituting a separate special school district, and which would necessarily change boundary lines of school districts. The act of 1919 places the jurisdiction to establish new districts and change the boundaries of school districts then existing exclusively in the county board of education. 153 Ark. 50; Id. 188; 159 Ark. 438.

      G. T. Bloodivorth; for appellee.
    1. The evidence does not sustain appellant’s contention that the land sought to be annexed is farm and timber land. Part of it, it is true, is farm and timber land, but Brown’s own testimony shows that there are two additions laid out and platted in this territory; and all the witnesses agree that it will be a benefit even to the' farm and timber land and to the entire community, to annex it. 54 Ark. 321.
    2. An incorporated town or city has the right to annex contiguous territory, making same a part of the school district of the municipality. Ill Ark. 379.
   Humphreys, J.

A petition was filed by appellee in the county court of Clay County for the Western District to annex certain adjoining territory to it and thereby extend its corporate limits. The proceeding was regular in form, and proper notice thereof was given.

Remonstrances were filed by certain landowners and patrons of Rural School Districts' Nos. 12 and 90, upon the ground that a part of the territory sought to be annexed to the incorporated town was embraced in said districts, and that the effect would be to enlarge the Special School District No': 88, which embraced the incorporated town only, and to decrease the revenues and patrons of the other school districts; also that the territory sought to be annexed was agricultural land.

The petition was granted in the connty court, and on appeal to and hearing de novo in the circuit court a verdict and judgment was rendered annexing the territory, from which is this appeal.

Appellant first contends for a reversal of the judgment upon the alleged ground that the undisputed evideuce shows that the land sought to be annexed was exclusively agricultural, and not needed for town purposes. After a careful reading of the testimony we cannot place that interpretation upon it. The testimony was in conflict upon this issue. We are not called upon to determine the weight thereof, for the court sat as a jury, and its finding cannot be disturbed upon appeal, if supported by any substantial evidence. The record -contains testimony to the effect that two additions to the town had been laid off on the lands sought to be annexed and that some improvements had been made upon them; -also that streets of the town extended to and over the lands, which are needed by the town, and which would be improved . and made passable if the territory was annexed; also that the health of the inhabitants of the town would be greatly benefited if the lands were annexed, so that they might be drained; also that the lands are needed for the purpose of making improvements. This testimony is substantial, and sufficient to support the verdict and judgment.

The next and last contention of appellant ' for a reversal of the judgment is that it was unlawful to annex the territory because the effect was to change the -boundary lines between school districts. The insistence is made that, under the act of the Legislature of 1919 creating a county board -of education, the exclusive jurisdiction to change the boundary lines of school districts was transferred from the county court to the county board of education. This statute was passed subsequent to act No.. 312 of the Acts of the General Assembly of 1909, and did not, in express terms, repeal the former act. We do not think it did so by implication. It was provided by the former act that, “when the lands of a city -or town are extended so as to include territory not before within the school district, all of said new territory in the city or town becomes a part of special district of said city or town.” The purpose of the latter act was to substitute county boards of education for the county -court as a tribuual to form local school districts, change district boundary lines, etc., and not to change or modify the act of 1909 authorizing the extension of town and city limits so as to embrace a part or all of the outlying school districts.

No error appearing, the judgment is affirmed.


text:
    Corley v. State.
    Opinion delivered January 28, 1924.
    1. Jury — bias.—A juror is not disqualified because he had formed and expressed an opinion as to the guilt of accused based on rumor, where he stated that he could and would disregard such opinion and base his verdict on the testimony.
    2. Jury — disqualification.—A juror .who has contributed money to promote a law and order league for the purpose of suppressing lawlessness, but not for the purpose of prosecuting defendant, was not disqualified.
    3. Jury — disqualification.—A juror’s antipathy to the particular crime charged against defendant is not a disqualification where he stated that he would not convict one so charged unless he was shown to he guilty by the testimony.
    4. Jury — mayor not disqualified.- — -The mayor of a town is not subject to challenge under Crawford & Moses’ Dig., § 6382, providing for a peremptory challenge of a justice of the peace, though a mayor exercises the same jurisdiction as a justice of the peace.
    5. Intoxicating liquors — sale—evidence.—In a prosecution for selling intoxicating liquors, testimony of a witness that he bought liquor from accused within three years before the return of the indictment on which accused was tried, furnishes a legally sufficient basis for conviction.
    6. Criminal law — juror—bias.—A remark by a juror, who was held competent on voir dire -and accepted on the jury, that it was a dirty shame to admit defendant to bail on a charge of murder in -another State, and that he should have his neck broken instead of being turned loose to come back and go to selling whiskey, was ground for new trial, where nothing appeared in the examination of the juror which indicated bias or prejudice against defendant, and the juror was not called on to explain or deny such remark, and there was no explanation or denial thereof in the record, and defendant did not learn of the remark until after the trial.
    Appeal from Jackson Circuit Court; Dene II. Coleman, Judge;
    reversed.

      G. A. Hillhouse, F. M. Pickens and Gustave Jones, for appellant.
    j. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was convicted of selling intoxicating liquors, and has appealed.

A considerable part of the record consists of the examination of the jurors on their voir dire, and a number of the assignments of error relate to rulings made by the court on the competency of the jurors. Excerpts from the examination of the different veniremen would indicate that disqualified jurors were held competent; but a careful consideration of the questions and answers in their entirety leads us to the conclusion that no1 error was committed in this respect. There is much similarity in the questions and answers, and we treat them collectively, instead of reviewing the separate answers of the veniremen.

A number of jurors had formed an opinion and had expressed it; but the opinions were based on rumor, and in every ease the juror stated that he could and would disregard the opinion thus formed, and base his verdict upon the testimony. Upon the authority of many decisions of this court, these jurors were properly held competent.

It appears that the citizens of Newport, where the trial occurred, had organized, and had contributed money to promote a law and order league, and a member of the veniremen had contributed money to this association. These veniremen testified that their contributions had been made for the purpose of suppressing lawlessness generally, and no juror held competent was shown to have made a contribution for the purpose of prosecuting appellant personally.

At § 94 of the chapter on “Jury,” 16 R. C. L., page 277, it is said: “As a general rule the mere fact that certain persons are members of an association for the detection and suppression of crime, pay dues thereto, and are liable to assessments by the association, does not necessarily disqualify them as jurors, in the absence of a showing that the association to which they belong is in some manner connected with or interested in the prosecution of the particular case * * *.”

In the notes to the section from which we have quoted several annotated cases are cited, which collect many cases on the subject. One of these is the case of State v. Sultan, 142 N. C. 569, 9 A. & E. Cases, 310. The annotator, in his note, says: “The mere fact that a person is a member of an organization which has for its purpose the (detection or suppression of crime, but which is under no obligation or duty to prosecute criminals unduly, or to prosecute persons charged with a particular crime, is not per se a legal disqualification of such person to sit as juror in the trial of a criminal case.”

The case-note recognizes that the authorities are not unanimous, but the rule as stated appears to be supported by the weight of authority as well as by the better reasoning. ' '

Certain veniremen appeared to entertain a special antipathy to the crime of selling intoxicating liquors, but they stated that, notwithstanding this aversion to that crime, they would not convict one charged with its commission unless he was shown to be guilty by' the testimony.

These veniremen were not disqualified'by this bias. The rule is that a juror is not disqualified from trying a person accused of a particular crime because he has a prejudice against the crime charged, if such prejudice against a particular crime would not prevent the juror from impartially considering the question of the guilt of the accused.' Section 80 of the chapter on “Jury,” 16 R. C. L., page 263, and authorities cited in the notes to that text.

The court properly permitted the accused to inquire into these matters, because it was essential for the accused to be in possession of this information in order that he might intelligently exercise the peremptory challenges which the law gives him. But it does not follow, •because he had the right to thus inform himself, that he had the right to have these jurors excused for cause.

Appellant sought to challenge juror Hutchins upon the ground that he was the mayor of the town of Tupelo; but the court held this was not ground for challenge. This ruling was correct. It is provided by statute (§ 6382, C. & M. Digest), that it shall be a ground of peremptory challenge that a juryman' is a postmaster, justice of the peace, or county officer. It is true a mayor exercises a certain jurisdiction as ex-officio justice of the peace; but he is not a justice of the peace. His is an entirely different office. • The right to challenge a justice of the peace peremptorily exists only because the statute confers it, and this right of challenge is limited by the language of the statute which confers it.

There are a number of questions about the competency and the sufficiency of the testimony which we do not review, as they involve no question of law which has not been settled adversely to appellant. A witness testified that he bought liquór from appellant within three years before the returning of the indictment on which appellant was tried, and this testimony furnishes a legally sufficient basis for the jury’s verdict, whatever the contradictions in the testimony of the witnesses may have been.

Jeff Avera was held competent as a juror, and served as such. His voir dire examination disclosed no bias or prejudice against appellant, or other circumstances affecting his competency. In support of the motion for a new trial the following showing was made: Witness Ennis testified that, some time before the trial from which this appeal is prosecuted, anpffilant was granted bail in Missouri upon a charge of murder pending in that State. Witness read from a newspaper the announcement that bail had been granted appellant on that charge, whereupon Mr. Avera said: “Well, that was a dirty shame. It is a dirty shame to grant a man bail like that; he ought to have his neck broken, instead of being turned loose to come back down here and go to selling whiskey. ”

William Caruthers testified that he was present and heard Avera make the remark quoted. Appellant was not advised of this until after his trial, and there was nothing in Avera’s examination as a juror which indicated bias or prejudice against appellant. Avera was not called as a witness to explain or deny this remark, and there is no explanation or denial in the record, nor is there any inconsistency or contradiction in the testimony of Ennis and Caruthers which discredits their testimony or affords ground to disregard it.

The authorities dealing with this subject were recently reviewed in the case of Pendergrass v. State, 157 Ark. 364. In that case the competency of a juror was questioned. The trial court had held, on the hearing of the motion for a new trial, that the juror was competent, and we affirmed that holding, but we did so because, as we said, the trial -court had exercised its discretion and judgment, and no abuse thereof was shown in considering the testimony relating to the juror’s competency. We there reviewed the case of Meyer v. State, 19 Ark. 156, which, we said, was the leading case in our own reports on'the subject under consideration, and, in distinguishing that case from the Meyer case on the facts, it was pointed out -that in the Meyer case there was nothing in the record to discredit the affidavits tending to -show prejudice on the part of the juror. The juror himself, in the Meyer -case, whose conduct was impeached, was not examined, nor was his affidavit taken in rebuttal of the alleged fraud and misconduct practiced upon the court by the concealment of his prejudice. We reaffirmed the doctrine of the Meyer case, but held it did not apply because of the difference in the facts.

Here the record is identical with that in the Meyer case. No explanation is made of the alleged fraud practiced upon the court by the concealment of the prejudice of the juror. That the juror was prejudiced appears clear. The juror’s remark, in the absence of explanation — and none was offered — indicated that he thought appellant should not be granted bail, but should be kept in custody and have his neck broken, and this was thought a proper thing to do as the meaij»s of preventing appellant’s return to this State for the purpose of continuing to sell liquor, the offense charged in the indictment. The ruling of the court was erroneous in this respect, and the judgment must therefore be reversed. It is so ordered.


text:
    Fisher v. State.
    Opinion delivered January 28, 1924.
    Arson — distinction between principal and accessory before the fact. — Crawford & Moses' Dig., § 2417, providing that any person who shall wilfully and maliciously burn, or “cause to be burned, any dwelling house,” etc., shall be guilty of a felony, held not to abolish the common-law distinction between a principal and an accessory before the fact, so that one who directed another to burn a certain building, but was not present when his order was carried out, could not be convicted as a principal.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    reversed.

      Robert L. Rogers and Floyd Terral, for appellant.

      J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the first division of the circuit court of Pulaski County for the offenses of accessory before the fact to arson and arson, in separate -counts. At the conclusion of the testimony the State elected to rely upon the charge of arson, contained in the second count of the indictment, whereupon appellant requested the court to instruct the jury to find him not guilty, and, upon refusal to do so, objected, and.duly saved his exception.

The charge of arson against appellant was based upon § 2417 of Crawford & Moses’ Digest, which is as follows:

“Any person who shall wilfully and maliciously burn or cause to be burned any dwelling house or other house, although not herein specifically named, the property of himself or of amother person, shall be deemed guilty of a felony, and, upon conviction, shall be imprisoned in the State Penitentiary for a period of not less than two nor more than ten years.”

The testimony introduced by the State showed that a store building in North Little Rock belonging to Greorge Scott was burned on the night of July 1, 1921, by Joe Fisher, who had been instructed to do so by appellant, his father. According to the State’s testimony, Joe Fisher, then over fifteen years of age, retired at 8 o’clock p. m., and was awakened bv his father about midnight, who gave him a can of gasoline and some matches, directing him to go to the store, quite a distance from their residence, and burn it. Appellant did not accompany Joe, and was not present, aiding and encouraging the boy, at the time he set the house on fire.

Appellant testified in his own behalf, denying in toto the testimony detailed above. He attributed the testimony of the State to a conspiracy on the part of his daughter and son to send him to the penitentiary.

Other testimony was introduced by the State and appellant, which it is unnecessary to summarize. The court submitted the issue of the guilt or innocence of appellant, under the second count of the indictment, to the jury. A verdict of guilty was returned, and appellant was adjudged to serve a term of four years in the State Penitentiary as punishment therefor.

An appeal from the judgment of conviction has been duly prosecuted to this court.

Appellant was tried and convicted as a principal upon the charge of arson. While he was charged in a separate count with being accessory before the fact to arson, the State elected to rely upon the second count of the indictment, which charged him with being a principal in the crime of arson.

Appellant contends for a.reversal of the judgment upon the ground that there is a fatal variance between the charge and proof. It is insisted that the proof is responsive to the charge of accessory before the fact to arson, but not responsive to the charge of principal in the crime. This is true, unless the distinction between principal and accessory was abolished by the Legislature.

Learned counsel for the State contend that the use of the words “or cause to be burned” in the arson statute abrogated the common-law distinction between a principal in the crime and an accessory before the fact to the crime.

If the distinction between the principal and accessory was abolished in the crime of arson by the use of said words, it follows that there was no variance between the charge and proof. We think the words used, however, were not .intended to abolish this distinction. Long after the passage of the act this distinction was recognized by our court in the case of Larimore v. State, 84 Ark. 606. In that case the proof showed that Larimore paid another party $10 to burn Sutton’s gin. He was convicted of being an accessory to the crime of arson. The judgment was affirmed by this court. Again, in the case of Pritchett v. State, 160 Ark. 233, this court took occasion to say, in an arson case, that one present, aiding and abetting in the commission of the crime, was admittedly a principal. This was tantamount'to saying that an accused who was absent from the scene of the crime could not be convicted as-a principal. It is true that these particular words in the statute were not called to the attention of the court in those cases, but this time-honored distinction was recognized in both cases. If the Legislature had intended to abolish this distinction, it could have done so by the use of unambiguous words, or by use of words susceptible of only one meaning. We think the words “or cause to be burned” were included in the statute to reach persons who accomplished their purpose in burning any kind of house by the use of some inanimate agency, viz., by setting fire to something which will spread to and burn the house intended to be destroyed, and those present, aiding and abetting in the -commission of the crime, and those present and compelling another by duress to commit the crime. In other words, the intention of the Legislature was to make the language broad enough to include every one as principals in the crime who could be charged and convicted as principals in the crime under the common law.

For the error indicated the judgment is reversed, and the cause is remanded for proceedings in accordance with law.