author: Mehaffy, J.

text:
    Smith v. Drake.
    Opinion delivered July 4, 1927.
    1. Sheriffs and constables — failure to- make return of execution. — Upon a motion for summary judgment against a sheriff for failure to return an execution within 60 days as required ■by law, his indorsement in writing of service of the writ of execution not filed until after expiration of 60-days held not a return within the 60-day period prescribed .by Crawford & Moses’ Dig. § 4353.
    2. Sheriffs and constables' — return of execution. — Crawford & Moses’ Dig. § 4353, providing that executions shall be returnable in 60 days from their date, requires within that time the indorsement on the writ of what the officer has done and filing it with the clerk who issued it.
    3. Venue — jurisdiction of motion for summary judgment. — The court out of which execution issued had jurisdiction on motion of judgment creditor for summary judgment against the sheriff of another county to whom the execution was directed, under Crawford & Moses’ Dig. § 4360, 4362, where the sheriff failed to make return within the time prescribed.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Frank P. Fitzsimmons, for appellant.

      E. F. Dimean, for appellee.
   Mehaffy, J.

Appellee brought suit in a justice of the peace court in Jackson County, Arkansas, and obtained judgment against H. F. Burton and others. Execution was issued and returned unsatisfied, and thereafter, on September 17, 1925, a duly certified copy of said judgment was filed in the circuit court of Jackson County. On October 3, 1925, the clerk of the Jackson Circuit Court issued his execution based on said judgment against H. F. Burton and other defendants, said execution being directed to the sheriff of Lee County, Arkansas. Thereafter plaintiff filed his motion for summary judgment against Z. C. Smith, sheriff, S. L. Kirkpatrick and W. S. McClintock, sureties on his official bond, and notice of said motion was given to appellants on August 27,1926, and on September 30 the court below rendered judgment against the sheriff and his sureties, appellants here, for $247.25, together with 10 per cent, penalty, and interest from August 11, 1925.

Appellants prayed an appeal to this court, which was granted. Appellants asked for reversal of the judgment on two grounds: First, that the execution was returned within 60 days allowed under the statute; and second, that the Jackson County Circuit Court was wholly without jurisdiction to hear and determine the question.

There was indorsed on the execution the following:

“Indorsed: This writ came to hand on the 8th day of October, 1925, and I have duly served the same by finding no property in my county on which to levy, and now return this execution wholly unsatisfied. November 18, 1925. Z. C. Smith, Sheriff. By C. F. G-ovan, D. S. ”

This indorsement was within the 60 days, and the contention of appellants is that this is a return, and, if this were true, there would be no liability. There would have been no cause of action. But we do not agree with appellants in this contention.

Section 4353 of Crawford & Moses ’ Digest provides: “All executions shall be returnable in 60 days from their date.” The only controversy here, however, is not with reference to this statute. There is no contention that the sheriff should not make a return within 60 days, but the contention is that the indorsement on the execution was a return.

“A return on a writ of execution is the short official statement of the officer, indorsed thereon or attached thereto, of what he has done in obedience to the mandate of the writ, or of the reason why he had done nothing: It consists of the two acts of writing out the statement on the writ or on an attached paper, and the filing. The mere writing out of the statement is not sufficient without filing it, and, vice versa, the mere filing of the writ with no statement is not a return. ” 23 C. J. 791.

It will be observed from the above authority that it requires the two acts, the indorsement on the writ of what the officer has done and the filing it with the clerk of the court out of which it issued. Neither act without the other would constitute a return. An officer might write the statement on a writ and keep it in his office, or do anything else with it except file it with the clerk who issued it, and this would not be a return. On the other hand, he might file the writ with the clerk within the 60 days without any indorsement on it, and this would not be a return. It takes both the indorsement and the filing to make the return, and it appears that, in this case, the writ was not filed until long after the 60 days had, expired.

It has been stated by this court, with reference to the return of a writ:

“In the original answer he alleged that he had indorsed his return on the writ but had failed to lodge it in the clerk’s office as required. This was held insufficient in the former determination of this case, and he has added to this an allegation that the return was not made because the clerk was absent from his office on one occasion when he went there for that purpose-, and that his official duties thereafter prevented him from returning to the clerk’s office. If it were shown that the clerk’s office had been closed for such a time toward the close of the life of the execution, as absolutely to prevent the officer from making- a return, that would be a sufficient excuse for not returning- it within the 60 days, but the ohlig-ation would remain upon the sheriff of perfecting* his return at as early- a day as' practicable thereafter.” Atkinson v. Heer & Co., 44 Ark. 174.
“ Where a process or writ is placed in the hands of a sheriff or constable for service or execution, he is liable if he fails to return the same within the time which is allowed by law for making his return thereon. And the fact that a return is made after the expiration of the time does not release him from' the liability for his default.” 35 Cyc. 17'20.
“The word ‘return’ has a legal meaning more or less definite and certain. Webster’s International Dictionary, defines it: ‘ (aj The rendering back or delivery of a writ, precept, or execution to .the proper officer or court. This is now usually done by filing the document,.properly indorsed, in the clerk’s office, (b) The certificate of an officer stating what he has done in or about the execution of a writ, precept, etc., indorsed on the document, (c) The sending back of a commission with the certificate of the commissioners’.” Tate v. Biggs, 130 N. W. 1053, 89 Neb. 195.

The authorities seem to be practically unanimous that a return means indorsing what the officer has done on the writ and then filing it with the clerk who issued it. We therefore conclude that the sheriff in .this case did not make his return as required by law within the 60 days.

Appellant’s next contention • is that the Jackson County Circuit Court was wholly without jurisdiction to hear and determine the cause. Section 4360 provides that, if an officer fails to return an execution before the return date, he shall be liable, etc., and § 4362 provides for an action against the officer, among other things, for failure to make return. Not only does the' statute provide that the motion for summary judgment must be in the court out of which-the execution issued, but this court has held, in effect, that the court out of which the execution issues has jurisdiction.

An execution was directed to the sheriff of Johnson County and returnable within 60 days. The execution was issued by the clerk of the circuit court of Pope County. Judgment was rendered against the sheriff and sureties on his bond in Pope County, and the judgment was affirmed. Jett v. Shinn, 47 Ark. 373, 1 S. W. 693.

The circuit court of Jackson County had jurisdiction in this case. There was no suit pending in any other county, and, to hold that the Jackson Circuit Court, the court out of which the execution issued, did not have jurisdiction, would be to deprive the judgment plaintiff of the remedy given to him by státute. The Jackson Circuit Court had jurisdiction over the subject-matter and, even if it did not have jurisdiction over the person, it obtained such jurisdiction by the service of the notice upon the sheriff and its sureties and their failure to object to the service in the court below.

This court has said:

“Having elected to submit themselves to the jurisdiction of the tribunal provided by the statute, and having taken an appeal in accordance with the provisions of the statutes, they must abide the results of their own voluntary action. * * * Broadly stated, any action on the part of the defendant, except to object to jurisdiction over his person, which recognizes the case in court, will constitute a general appearance.” Purnell v. Nickell, 173 Ark. 496, 292 S. W. 686.
“In the United States many statutes have been enacted for the purpose of giving ample, and in most cases summary and punitive, .redress against officers neglecting or refusing to return final process. Independent of these statutory provisions, the right of a plaintiff to maintain an action against an officer and his sureties for a failure to make a return'has been generally conceded.” Freeman on Executions, vol. 3, 368.
“In many of the States the liability of an officer for not returning an execution is fixed by statutes. These statutes are very harsh in their terms, and are manifestly intended to be so stringent that no officer will be tempted to neglect this official duty. Some of them impose upon the officer a mere penalty, while others add to this penalty the amount of the .judgment and costs. Where this is the case, the fact that the plaintiff has not been injured by the official neglect can neither be received in evidence in justification, nor in mitigation of damages. In most of these states the proceedings for the enforcement of the officer’s liability are of a summary character. No new or independent action need be commenced. A motion may be made in the suit in which the execution issued, and a judgment obtained therein against the officer and his sureties for the penalty prescribed by statute.” Freeman on Executions, vol. 3, 368.

It is our conclusion that the plaintiff was not required to commence a new or independent action. He had a right to make the motion for a summary judgment in the suit in Jackson County in which the execution was issued, and he could maintain that action or pursue that remedy in the Jackson Circuit Court against the sheriff and his sureties. The judgment of the Jackson Circuit Court is therefore affirmed.


source: Caselaw Access Project

author: McHaNey, J.

license: Public Domain

text:
    Loden v. Paris Auto Company.
    Opinion delivered July 4, 1927.
    1. Sales — interest of conditional vendee. — The vendee of an automobile having paid part of the purchase price and been given possession under a contract retaining the title to the vendor until the payments were completed, had interest therein which he could sell or mortgage.
    2. Sales — purchase from conditional vendee. — Where a conditional vendee of an automobile having paid part of the price and being in possession could sell or mortgage his interest, a purchaser from' him was not chargeable as for its conversion where he sold it in the usual course of business, when he was without knowledge of the rights of the conditional vendor.

      3. Saxes — rights op conditional vendor. — The vendor of a chattel reserving title until price is paid, on breach of condition may retake the chattel and thereby cancel the debt or sue for the debt and thereby waive his title to the property.
    4. Sales — election op conditional vendor to sue for breach.— A conditional vendor of a chattel, electing to sue for the debt on breach of >a conditional sale of the vendee, held precluded from retaking the chattel.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    reversed.

      George W. Dodd, for appellant.

      L, J. Arnett, for appellee.
   McHaNey, J.

On August 25, 1925, the appellee sold and delivered to S. H. Parsons a certain Dodge automo-bile for $817.50, of which $75.93 was paid in cash, and, for the remainder, two notes were executed, one for $517.50, payable $51.75 monthly, for ' which title was retained to the car, and one for $224.07 due December 15, 1925. No further payments were ever made by Parsons. Some time in 1926, the exact date not being shown, Parsons traded this Dodge car to appellant for a new Chrysler, and, on May 4, 1926, appellant sold the Dodge to Leo Bourland of Port Smith, who, in turn, sold it to a man in Booneville. After appellee learned that Parsons had traded the car to appellant, and after appellant had sold it to Bourland, Mr. Wahl, on behalf of appellee, called on appellant and told him they had title, to the car, and appellant advised him to get after Parsons. Thereafter, on June 28, 1926, appellee instituted this action against Parsons to recover on the notes and against appellant to recover the value of the Dodge car as for conversion. Appellee also sued out a writ of general attachment against Parsons, arid the sheriff took the Chrysler car into possession under the writ. The People’s Loan & Investment Company intervened in the attachment matter, claimed title to the Chrysler as holder of the’ notes executed by Parsons in part payment therefor, and on a hearing the court ordered the Chrysler delivered to intervener. Parsons did not answer, and judgment by default for the amount of the notes and interest was rendered against Mm. Appellant demurred to the complaint. The court overruled the demurrer, and appellant excepted. Without waiving his demurrer, he answered, and a trial of the issues between them resulted in a verdict and judgment against appellant for $350, and he has appealed.

We think the demurrer should have been sustained. The complaint showed on its face that Parsons was a conditional vendee of the Dodge ear; that he had paid a part of the purchase price, been given possession of the car under a contract of sale and purchase, which retained title thereto until all the payments had been made in accordance with the terms of the contract. Under such conditions this court has held in numerous cases that the vendee has such an interest in the chattel as he may sell or mortgage it.

Quoting from the first syllabus in the case of Sunny South Lumber Co. v. Neimeyer Lumber Co., 63 Ark. 268, 38 S. W. 902, which is ampfy supported by the text of the opinion, it is said:

“The vendee of personal property, who pays part of the purchase price under an agreement that the title shall remain in the vendor until the purchase money is fully paid, has an interest in the property which may be mortgaged by him. ’ ’

And in the case of Dedman v. Earle, 52 Ark. 164, 12 S. W. 330, the court said:

“If it be true that appellee reserved the title to the mule until the purchase money was paid, McElroy had an interest in the mule which he could sell. He did not become a mere custodian of the mule. He had a right to sell him at such a profit as he could make. [Citing cases]. His vendee would only take such interest as he had. All appellee was entitled to was his purchase money or the mule. He had no right to the profit, if any was gained. When McElroy traded for the horse, the mule still remained appellee’s, subject to the condition of the sale. By what means did the horse become his property? He could not treat the exchange as a wrongful conversion of the mule,' and elect to waive the tort, and, by ratification, convert the horse into his own property.', That would he entirely inconsistent with the rights acquired by McElroy through the conditional sale.”

In the recent case of Fairbanks, Morse & Co. v. Parker, 167 Art. 654, 269 S. W. 42, it is said:

“In conditional sales of personal property, where the title is retained by the vendor until the purchase price is paid, the- vendee acquires an interest which he can sell or mortgage without the consent of the vendor, but the vendor’s right to recover the property, if the purchase price of the property is not paid, is not prejudiced by such sale or mortgage.” Clinton v. Ross, 108 Ark. 442, 159 S. W. 1103; Estes v. Lamb & Co., 149 Ark. 369, 233 S. W. 99.

It will therefore be seen from the above decisions, and many others that might be cited, that the selling of the Dodge car by Parsons was not an act of conversion oh his part, as he had the rightful possession to the car and the lawful right to sell it,’ and there could be no conversion on the part of appellant in accepting said car and selling it in the usual course of business, especially since he had .no knowledge of any rights of appellee in and to the car. This court held in the case of Settles v. State, 92 Ark. 202, 122 S. W. 500, where such a conditional vendee was indicted for larceny by embezzlement, having-sold a piano in which title had been retained in the seller, that Settles had not committed any crime by making such a sale. This case is unlike the case of Newberger Cotton Co. v. Stevens, 167 Ark. 257, 267 S. W. 777, 40 A. L. R. 1279, cited by appellee, for the reason that the facts in that case showed that A. L. G-rey was holding the cotton of Stevens in his warehouse as a bailee. In other words, the cotton of Stevens was' stored in Grey’s warehouse, and, while there, Grey delivered it to the Lesser-Goldman Cotton Company in Port Smith, to whom he was indebted, together with other cotton, and all of it was sold to the Newberger Cotton Company. This was a conversion, as Grey had no interest in the cotton of Stevens as purchaser, or otherwise.

Then there is another rule that would preclude appellee from recovery against the appellant in this action, and this, too, appears on the face of the complaint, which makes the complaint open to demurrer, and that is that, where a vendor of chattels has reserved the title until the purchase price is paid, on breach of condition he has two remedies: One is to retake the chattel and thereby cancel the debt, and the other is to sue for the debt and thereby waive his title to the property. So, in such a case the vendor has the right to elect which remedy he will pursue, and, having elected to pursue the one, he is precluded from pursuing the other. One of the leading cases on this subject in this court is Nashville Lumber Co. v. Robinson, 91 Ark. 319, 121 S. W. 350. In that case the court siaid:

“For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was brought, then it could- not thereafter sue to recover the purchase money also. "When this debt became due and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It. could elect to retake the property, and thus in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation of title.” Citing Butler v. Dodson, 78 Ark. 569, 94 S. W. 703. See also Baker v. Brown Shoe Co., 78 Ark. 501, 95 S. W. 808; White v. Beal & Fletcher Grocery Co., 65 Ark. 278, 45 S. W. 1060; Bell v. Old, 88 Ark. 99, 113 S. W. 1023. And in the case of Hollenberg Music Co. v. Barron, 100 Ark. 403, 407, 140 S. W. 582, 36 L. R. A. (N. S.) 594, Ann. Cas. 1913 C, 659, this court quoted with approval from Bell v. Old, supra, as follows :

“The principle is well established that the seller of personal property who has reserved title until the purchase price is paid may, upon default of payment, retake the property, and thereby cancel the debt, or he may sue to recover the debt, and thereby affirm the sale, in which case he looks to the debtor and not to the property; in the other case he looks to the property and not to the debtor.”

And in the more recent case of Olsen v. Moody, Knight & Lewis, Inc., 156 Ark. 319, 246 S. W. 3, it is said:

“This court is committed to the doctrine-that a vendor who has retained title in personal property until the payment of the purchase money has only two remedies for a breach of contract. He may either treat the sale as canceled and bring suit in replevin for the property, or may treat the sale as absolute and sue for the unpaid purchase money, and, in aid thereof, attach the property, under §§ 8729 and 8730, C. &. M. Digest.” (Citing cases). “There is no suggestion in any of the Arkansas cases that a third remedy is open to a vendor who has conditionally sold personal property.”

It necessarily follows, from what we have said, that - the judgment of the circuit court was wrong, and must therefore be reversed, and, no cause of action appearing, the case will be dismissed. It is so ordered.


text:
    Comer v. Raney.
    Opinion delivered July 4, 1927.
    1. INSURANCE — RIGHTS UNDER BENEFICIARY CERTIFICATE. — In an action on a beneficiary certificate the rights of the beneficiary must be determined by the contract itself, consisting of beneficiary certícate, the application therefor, and a constitution and by-laws of the insurer.
    2. Insurance — notice of conditions of beneficiary certificate.— The executor of a beneficiary under the beneficiary certificate who had the certificate in his possession after death of the beneficiary will be charged with notice of the terms and conditions of the certificate providing that benefits should be paid to the husband or wife of deceased if living; otherwise to the children, if all beneficiaries die during the lifetime of the member.
    3. Insurance — right of executor to recover premiums paid by him. . —Where the by-laws of the beneficial association provided for ¡payment to the ¡spouse or children of the insured if beneficiary were dead, the executor of the beneficiary can recover only . the amount of premiums paid by him after beneficiary’s death in an action on beneficiary certificate, notwithstanding that the beneficiary paid substantially all premiums during his lifetime.
    Appeal from Woodruff Chdncery Court, Central District; A. L. Hutchins, Chancellor;
    affirmed.

      J. F. Summers, for appellant.

      Roy D. Campbell, for appellee.
   McHaNey, J.

In her lifetime Mrs. Julia A. Raney, mother of the appellees and a sister of the' appellant, was a member of the Knight & Ladies of Honor, holding a beneficiary certificate therein in the sum of $2,000, payable $1,750 to J. E. Comer, her brother, and $250 to appellee, W. W. Raney, her son. On or about July 18, 1920, the insured surrendered her beneficiary certificate to the Fráternal Aid Union and received another beneficiary certificate in the latter for the same amount, in which her brother, J. E. Comer, was named the beneficiary. It is admitted that J. E. Comer paid substantially all the premiums or assessments due to the Knights & Ladies of Honor, and that, at the time this insurance was taken over by the Fraternal Aid Union, he refused to pay any more premiums or assessments unless he was made the sole beneficiary therein, which was done, and he thereafter paid all the premiums or assessments due to the Fraternal Aid Union until the time of his death, which occurred in the year 1923, during all of which time he had paid out to the Knights & Ladies of Honor $883.93 and to the Fraternal Aid Union $427.20, making a total of $1,311.13. At the time of his death J. E. Comer had this policy in his possession, and appellant, Andrew Comer, being the chief beneficiary and executor under the will of J. E. Comer, took charge of this policy, and thereafter, from August 1, 1923, paid all the premiums or assessments to the Fraternal Aid Union until the death of Julia A. Raney, which amounted to $464.60. The application for the insurance, the constitution and by-laws, together with the beneficiary certificate or policy, constitute the contract in this case. The pertinent portion of one of the by-laws, No. 96, is as follows:

“If all the beneficiaries shall die during the lifetime of the member, and he shall have made no other directions, the benefit shall be paid to the husband or wife of said member, if living at the time of his death; if no husband or wife survives the member, then said benefit shall be paid, share and share alike, to his children. ’ ’

After the death of J. E. Comer, no request was ever made to change the beneficiary in the policy, and none was made. Appellant brought this suit to recover the full amount of the policy, and, after hearing the matter, the court entered a decree allowing appellant the amount of premiums paid by him personally, with interest, in the total amount of $496.10, and decreed the remainder to appellees. From this judgment this appeal is prosecuted.

We are of the opinion that the decree of the court is correct, and that the rights of the appellant in this policy must be determined by the contract itself, which, as heretofore stated, is the beneficiary certificate, the application therefor and the constitution and by-laws of the insurer. The Fraternal Aid Union was made a defendant in this action, and it answered, setting up the pertinent parts of the contract, including the section of the constitution and by-laws heretofore referred .to. _ It admitted its liability on the policy, paid the money into the court, and asked that it be distributed to the proper parties.

Appellant had this policy in his possession all the time after the death of J.^E. Comer, and will be charged with notice of the terms and conditions of the policy. He knew that it was made payable to J. E. Comer. He knew that the constitution and by-laws constituted part of the contract, and, by the slightest investigation, -he could have known that, on the death of J. E. Comer, all the benefits, in .case of the death of the insured, would, by the terms of the contract, be payable to the children of the insured. He could, no doubt, have had Mrs. Raney change the beneficiary in this policy to himself. There is nothing in the record to show that there was any express agreement that appellant should have a lien on the policy for the amount of premiums paid by him or by his brother, J. E. Comer. J. E. Comer had no lien upon the policy,' either express or implied, as, on the death of the insured, he was made the sole beneficiary, provided he survived her.

Under the decisions of this court, where a beneficiary certificate, such as is involved in this case, provides that the application, constitution and by-laws, together with the certificate, shall constitute the contract, the whole contract must be looked to in order to determine the rights of the parties thereunder, because it is the whole basis of the contract. Baker v. Mosaic Templars, 135 Ark. 65, 204 S. W. 612, L. R. A. 1918F, 776; Eminent Household Columbian Woodmen v. McCray, 156 Ark. 300, 247 S. W. 379; Mutual Aid Society v. Lovett, 170 Ark. 745, 281 S. W. 354. And in Lawson v. Barbee, 170 Ark. 833, 281 S. W. 365, quoting syllabus, it is said:

“The holder of a benefit certificate issued by a mutual benefit society has no power to change the beneficiaries named therein, unless expressly authorized to do so by the policy itself, or by the articles of association or by-laws of the society, where these are, by the terms of the certificate, made a part of it.”

In Block v. Valley Mutual Insurance Co., 52 Ark. 206, 12 S. W. 477, 478, 20 Am. St. Rep. 166, it was said:

“But regardless of the character of the company, the rights of persons claiming insurance arise out of and upon contract, and must be ascertained and fixed by the contract. Although the object of the company in entering into the contract may be benevolent, this purpose can impart no new meaning to the unambiguous terms of the writing. When the courts are invoked, the contract measures the rights of one and the obligation of the other party, and relief must be granted, if at all, according to its terms.”

Numerous cases might be cited to the same effect, but we deem it unnecessary to do so, as we now hold that appellant’s rights are to be determined by the contract, which includes the policy, the application, and the constitution and by-laws, and these, providing how ihe benefits shall be paid in case of the predecease of Ihe beneficiary, are controlling here. .

The decree of the chancery court is right, and it is therefore affirmed.


text:
    Winfrey v. State.
    Opinion delivered July 4, 1927.
    1. Abortion — dying declarations. — -Dying declarations are never admissible, except in homicide cases, and in bastardy proceedings, as provided by Crawford & Moses’ Dig. § 783.
    2. Abortion — admission op woman’s dying statements. — In a prosecution under Crawford & Moses’ Dig.,- § 2598, relating to the administration of drugs with the intent to procure abortion, it was error to admit testimony of dying declarations of a woman to whom drugs were alleged to have been administered, the crime charged being distinct from that of the use of drugs with the intent to destroy a child, under § 2358.
    Appeal from Franklin Circuit Court, Ozark District; J. 0. Kincannon, Judge;
    reversed.

      J. P. Clayton and J. D. Benson, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McHaNey, J.

Appellant was convicted and sentenced to one year in the penitentiary and to pay a fine of $10 on a charge of abortion, under an indictment which, omitting formal parts, reads as follows:

“The said Gordon Winfrey, in the county, district and State aforesaid, on the 20th day of January, 1925, did willfully, unlawfully and feloniously administer and prescribe to one Eithel Volentine, a woman with a child, before the period of quickening, drugs and medicines, with the willful, unlawful and felonious intent then and there and thereby to procure an abortion.”

From the judgment and sentence against him appellant has appealed to this court, and the principal error assigned for reversal of this case, if not the only one, is that the court erred in permitting the witnesses Joe Yolentine and Mrs. Joe Yolentine, to testify to statements made by Eithel Yolentine a short time before her death, that appellant had given her a certain drug for the purpose of causing her to abort, and that appellant had intercourse with her some time in October, before her death in January, from which she became enceinte, on the theory that such statements were competent and admissible as dying declarations. The testimony of these two. witnesses was objected to, and, on being overruled, proper exceptions were saved, and were preserved in the motion for a new trial. These objections and exceptions were well taken, not because the said Eithel Yolentine was not in extremis, but because dying declarations are never admissible except in homicide cases, where the circumstances of the death of the deceased and the guilt or innocence of the party charged are the subject of the inquiry.

In the case of Haley v. State, 99 Ark. 356, 138 S. W. 631, Haley was indicted and convicted of the crime of rape of one Florence Brown, and her declarations prior to her death were admitted.as dying declarations. In reversing the case this court said:

“Appellant was convicted of the crime of rape. The court permitted evidence of the dying declarations of the victim of the alleged assault to go to the jury. The Attorney General confesses that the trial court erred in its ruling. This presents the only question for our consideration. The confession of error must be sustained. ‘Dying declarations’, says the Supreme Court of Alabama, ‘according to the unbroken current of modern authorities, are admissible only in cases of homicide, when death, with the circumstances attendant on it, and the guilty agent in producing it, is the subject of inquiry.’ Johnson v. The State, 50 Ala. 459; Greenleaf on Ev. (15 ed.) § 156; Wigmore on Ev. (3 ed. Bowlby), § 1432. We have no statute making the dying declarations of a victim of rape admissible as evidence. In the absence of such statute, it was error to admit them in the case at bar. It is not shown that the declarations were of the res gestae. The judgment is therefore reversed, and the cause is remanded for a new trial.”

In the case of St. L. I. M. & S. Ry. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912, where the lower court had permitted the introduction of a dying declaration in a civil case, this court said: “It is well settled that dying declarations are not admissible except in prosecutions for homicide, where the cause of death is under investigation.”

The court in that case cited Haley v. State, supra. The only exception made by our statute to the above rule, so far as we are advised, is § 783, C. & M. Digest, which is as follows:

“The mother shall be a competent witness in all cases of bastardy, unless she be legally incompetent in any case; and, if she be dead at the time of the trial, her declarations, made in her travail and proved to be her dying declarations, shall be evidence.”

The above rule with reference to abortion has not been changed.

In 1 C. J., p. 326, § 84, discussing the subject of abortion, it is said:

“At common law, dying declarations are admitted in evidence only when the death of the declarant is the subject of the charge and the cause of the death is the subject of the declarations, and, in the application of this rule, it is established by the great weight of authority that they are admissible in homicide cases only. Within the general rule just stated, where the offense defined by the statute consists of procuring or attempting to procure an abortion, without reference to whether or not the death of the woman is caused thereby, no ground exists in an abortion case for the admission of the dying declarations of the woman whose death was caused by the abortion charged. It is therefore held in such cases that the dying declarations of the woman are not admissible, unless the rule of evidence is changed by statute. ’ ’

This text is supported by a great many authorities. At § 85 the same authority says:

“In several States the dying declarations of a woman whose death resulted from an abortion or an attempt to procure an abortion on her have been made admissible by statute.”

But, as above stated, no such change has been made in our statute.

Appellant was indicted under § 2598 of C. & M. Digest, which is as follows:

“It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with intent to produce an abortion or premature delivery of any foetus before the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provisions of this section shall be fined in any sum not exceeding one thousand dollars, and imprisonment in the penitentiary not less than one nor more than five years. Provided, this section shall not apply to any abortion produced by any regular practicing physician for the purpose of saving the mother’s life.”

Under § 2358, C. & M. Digest, the law is different with reference to the administering to any woman pregnant with a quick child any medicine or drugs, or shall employ any instrument or other fiieans, with intent to destroy such child.

In 1 R. C. L., § 21, discussing the subject of dying declarations in abortion cases, it is said: “As a general rule, dying declarations of the woman are not admissible against the accused, where the prosecution is for the abortion and not for the homicide of the woman. ’ ’

It necessarily follows from what we have said that the court erred in admitting the dying declaration, which calls for a reversal of this case. The cause will therefore be reversed, and remanded for a new trial. It is so ordered.


text:
    Satterfield v. State.
    Opinion delivered July 4, 1927.
    1. BURGLARY — POSSESSION OF burglar’s tools. — Crawford & Moses’ Dig., § 2438, prohibiting the possession of burglar’s tools, must be strictly construed as against defendant, but liberally in his favor; but this rule of strict construction must be applied so as not to work an absurdity or defeat the intention of the Legislature.
    2. Constitutional law — statute prohibiting possession of burglar’s tools. — Crawford & Mdses’ Dig., § 2438, prohibiting the possession of burglar’s tools, was intended to eliminate the crime of burglary as far as possible by making it unlawful to have burglar’s tools in possession, but was not intended to prohibit the possession of ordinary- tools of a mechanic, plumber, carpenter, or farmer, since, if such was the intention, the act would be unconstitutional.
    3. Larceny — bringing stolen goods into state. — Persons committing larceny in Oklahoma and bringing stolen goods into this State may he indicted and tried in any county in this State through which the stolen property is brought.
    4. Burglary — -possession of burglar’s tools. — An indictment under Crawford. & Moses’ Dig., § 2438, prohibiting the possession of burglar’s tools, is not sustained by evidence that defendants possessed a hoe, files, Stilson'wrenches, bolt cutters, a hammer, flashlight and pistol.
    5. Criminal law — possession of stolen flour. — In a prosecution for possessing burglar’s tools, under Crawford & Moses Dig., § 2438, evidence of possession of stolen flour held inadmissible, where the store from which the flour was stolen was not broken into with burglar’s tools named in the indictment.
    6. Indictment and information — charging statutory crime. — An indictment for possessing burglar’s^ tools under Crawford & Moses’ Dig., § 2438, which charged the crime substantially in the language of the statute held sufficient.
    7. Burglary — -possessing burglar’s tools. — In a prosecution under Crawford & Moses’ Dig., § 2438, for possessing burglar’s tools, the proof must show that the tools are '“adapted, designed, or commonly used” for the purposes named and not merely that they may be so used, where their general use is proper.
    Appeal from Crawford Circuit Court; J. 0. Kinccm-non, Judge;
    reversed.

      Dave Par tain, for appellant.

      H. W. Applegate, Attorney General, and Darden Moore, Assistant, for appellee.
   McHaNey, J.

Appellants were indicted, tried and convicted on a charge of possessing burglars’ tools, the indictment, omitting formal parts, being as follows:

“The grand jury of Crawford County, in the name and by the authority of the State of Arkansas, accuse Red Satterfield and John Thomas of the crime of possessing burglary todls, committed as follows, to-wit: The said Red Satterfield and John Thomas, in the county and State aforesaid, .on the 9th day of March, A. D. 1927, .did willfully, unlawfully and feloniously, have in their custody certain tools, nippers, fuse, force screws, punches, drills, jimmies, files and implements and mechanical devices adapted, designed and commonly used for breaking into vaults, safes, railroad cars, boats, vessels, warehouses, stores,, shops, offices, dwelling-houses, door shutters and windows of buildings, and against the peace and dignity of the State of Arkansas. ’ ’

A demurrer to this indictment was overruled. Upon appellants’ motion to require the State to elect upon what particular charge in the indictment it 'Would stand, whether “tools, false keys, lock picks, bits, nippers, fuse, force screws, punches, drills, jimmies or files,” as being adapted, designed and commonly used for breaking into vaults, safes, etc., the prosecuting attorney elected to strike out the words “false keys, lock picks, fuse, force screws, punches, drills, jimmies.” This left the indictment charging the possession of “certain tools, nippers, files and implements and mechanical devices, adapted, designed and commonly used for breaking into vaults, safes,” etc.

Appellants were arrested in Crawford County on the night of the 8th of March, 1927, on their way home from Fort Smith, driving in. appellant Thomas ’ automobile, and at the time of the arrest the sheriff took from the car two bolt cutters, one large and one small, four common hoe files, one ordinary hammer, two Stil-son wrenches, ia flashlight, a pistol that belonged to appellant Satterfield, and some sacks of flour.' The car was equipped with diamond tread tires. It was proved, over appellants’ objections, that a storehouse near Spiro, Oklahoma, had been broken into that night, that is, the padlock in the rear had been unlocked and the lock taken away, and the owner identified three sacks of flour taken from appellants as being that taken from his store. He and his wife testified they were able to identify the flour from a hole in one of the sacks that she had sewed up. One McKinney stated that he lived near the store, and that it was robbed on the morning of the 9th of March, about one o’clock; that his dog barked, and he went out and saw two men get out of a car near his house and go in the direction of the store, and were gone 20 or 30 minutes, and that the car track was a diamond tread.

The arrest was made about 2:30 a. m. Appellants stated they got the flour from a Mr. Allen in Fort Smith, but he denied selling that brand of flour.

Warner Sartain, chief of Police of Fort Smith, and an expert on burgiary tools, for the State, testified, over objection, in answer to a question as to whether these tools were used by burglars and usually found in their possession, “I have had several occasions when these bolt cutters were used. Q. Do they commonly use flashlights'? A. Yes sir. Q. Do burglars commonly use pistols'? A. Yes sir. Q. Then would you say a pistol is a burglar tool? A. Yes sir, I would. Q. From your experience, what would you say as to this set of tools being complete? A. With a complete set of punches and drills, I would consider that a complete set of burglar tools.”

On cross-examination this witness testified: “ Q. Do you see a set of punches or drills there? A. No sir. Q. It would take them to be complete? A. It might. Q. This is a bolt cutter? A. Yes sir. Q. You find them most anywhere? A. Yes sir. Q. And this is an ordinary hammer? A. Yes sir. Q. This is a flashlight, and not a burglar tool? A. I don’t call any of those burglar tools * '* *. Q. Each of these tools can be used for anything? A. Yes sir.”

He also testified that they are used by burglars. Two keys were found in the jail, but not in the possession of either appellant. From a verdict and judgment sentencing them to two years in the penitentiary they have prosecuted this appeal.

Appellants were indicted under § 2438, C. & M. Digest, which reads as follows:

“Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person, any tools, false key, lock pick, hit, nippers, fuse, force screw, punch, drill, jimmy, hit or any material,, implement or other mechanical device whatsoever, adapted, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter, or window of a building of any kind, shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.”

This statute was passed in 1915, and has never before been before this court for construction. It is notable that the statute does not require an intent to commit the crime of burglary to make the possession of such tools or implements unlawful. The bare possession thereof, without anything more, is made a felony. In this respect it is unlike the statutes of some of the other states. This being a criminal statute, it must be strictly construed. As was said in State v. Graham, 38 Ark. 519, “Criminal statutes are to be strictly construed, and no case is to be brought by construction within a statute unless it is completely within its words.” State v. LeMay, 13 Ark. 405; Stout v. State, 43 Ark. 413; Robinson v. State, 59 Ark. 341, 27 S. W. 233. And the construction must be strict as against the defendant, but liberal in his favor. Grace v. State, 40 Ark. 97; Stout v. State, supra. But this rule of strict construction must be applied with other rules of construction in mind so as not to work an absurdity or to defeat the intention of the Legislature. State v. Sewell, 45 Ark. 387. We must attribute to the Legislature, in enacting the above statute, the intention to accomplish a useful and laudable purpose, that of eliminating the crime of burglary, as far as possible, by making it unlawful to make, mend, design, set up or have in possession burglar tools, such tools as are peculiarly and fittingly “adapted, designed or commonly used for breaking into any vault, safe, railroad cars, boats, vessels, warehouses, stores, shops, dwelling-houses, or door shutters or windows of a building of any kind.” We cannot attribute to the Legislature the intention to prohibit the making, mending, designing, setting up or having in possession of the common, ordinary, everyday work tools of a mechanic, plumber, carpenter, farmer or other person who may require such tools in his business, trade or profession. If so, the act would be unconstitutional and void. The tools mentioned, including the particular enumeration of tools (and every tool mentioned may be had for a lawful purpose) must be such as are “adapted, designed or commonly used” by burglars. Under this construction of the statute, we agree with the State’s expert witness that the tools found in appellants’ car were not burglar tools, within the meaning of the statute. Therefore appellants’ objections to the testimony of the witness, Warner Sartain, were proper, and should have been sustained.

If appellants committed larceny in Oklahoma, and brought the stolen goods into this State, they may be indicted and tried in any county in this State into or through which the stolen property was brought. If they committed burglary in Oldahoma, they may be indicted and tried there on such charge'. But we do not think the possession of hoe files, Stilson wrenches, bolt cutters, a hammer, a flashlight and a pistol was in violation of the above statute. Nor was the possession of the stolen flour properly admitted over appellants’ objection, for the only purpose for which it could have been competent was to show the intent for which these tools were possessed, or the use to which they had been put in the burglary of the store near Spiro. But the undisputed proof is that the store was not broken into- with these tools. The padlock had been unlocked and taken away, and either the storekeeper had left it unlocked or the burglar had a pass key, or false key. However, the State elected to strike out “false keys,” which was never in the ■ indictment, according to the copy of it in the record, and failed to show that appellants had any false key.

The demurrer was properly overruled. ' It is sufficient to charge this crime substantially in the language of the statute, but the proof must conform to the requirements of the statute, in that the tools lare “adapted, designed, or commonly used” for the purposes named in the statute by burglars, and not merely that they may be so used, their general use and purpose, being lawful.

It necessarily follows from what we have said that the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


author: Hart, C. J.,

text:
    McLain v. Jordan.
    Opinion delivered July 11, 1927.
    1. Mortgages — record containing wrong description. — The record of a mortgage containing a description of land as being in section 15, instead of section 16, where it was actually situated, was not constructive notice that it was intended to cover land ’ in section 16.
    2. Mortgages — priority. — Where J’s mortgage containing an incorrect description of land was;filed March 30, 1921, and H’s mortgage was executed December 12, 1921, and J entered into possession of the land as purchaser at foreclosure sale under mortgage in February, 1922, but the mortgagor redeemed in June, 1922, and H’s mortgage was filed January 14, 1924, but J’s mortgage was not reformed so as to correctly describe the land until November, 1924, held that H’s mortgage was superior to that of J.
    Appeal from Crawford Chancery .Court; J. V. Bour-land, Chancellor;
    reversed in part.

      STATEMENT OE FACTS.
    S. M. Jordan brought this suit in equity ■ against J. H. McLain to foreclose a mortgage on a tract of land containing 120 acres in Crawford County, Arkansas. The complaint alleges that the draftsman of the mortgage made a mistake and described the land as being in section 15 when it was intended that the mortgage should embrace land under the same subdivision in section 16. J. H. McLain filed an answer, in which he admitted the execution of the mortgage as well as the error in the description of the land embraced in it. He filed a cross-complaint, in which he asked for damages against the plaintiff because of the injury to Ms orchard after the plaintiff took possession of the land under the mortgage. D. T. House filed an intervention, in which he asked for the foreclosure of a mortgage to him on the same land, and that his mortgage be declared to be a prior lien on the land to that of the plaintiff Jordan.
    The record shows that J. H. McLain first gave a mortgage on the land to a bank, which foreclosed the mortgage, and that S. JVL Jordan became the purchaser at the foreclosure sale. J. H. McLain borrowed $1,000 from D. T. House for the purpose of redeeming the land' from the bank’s mortgage, and executed to D. T. House a mortgage on the land to secure the payment of the $1,000. This mortgage was executed on the 12th day of December, 1921, and was duly acknowledged on the same, day. It was not filed for record, however, until- the 14th day of January, 1924. In June, 1922, J. H. McLain redeemed the land from the mortgage of the Farmers’ & Merchants ’ Bank, and a decree was entered of record in the chancery court allowing the redemption. Accords ing to the testimony of S. M. Jordan, he did not enter into possession of the land until February, 1922. Other facts will be stated or referred to in the opinion.
    On the 4th day of November, 1924, the court entered of record a decree reforming the mortgage executed by J. H. McLain to S. M. Jordan, and appointed a master for the purpose of taking testimony on the issue of damages raised by the cross-complaint of J. H. McLain. The case was continued as to the priority of mortgages between S. M. Jordan and D. T. House. On the 3rd day of May, 1926, the chancellor entered a decree of record, declaring that the mortgage of S. M. Jordan was a superior lien on the land to. that of D. T. House. It was ordered and decreed that the money arising from the sale of the land under the decree of the chancery court should be applied first to the payment of the mortgage of S. M. Jordan, and the remainder, if any, to the payment of the .judgment of D. T. House. It was further decreed that, if there should then remain any further proceeds of sale, they should be paid to J. H. McLain. The court found against McLain on his cross-complaint, and it was dismissed for want of equity. To reverse the decree J. H. McLain and D. T. House have duly prosecuted an appeal to this court.

      E. D. Chastain and D. L. Ford, for appellant.

      Starbird & Starbird, for appellee.
   Hart, C. J.,

(after stating the facts). The mortgage in favor of D. T. House was executed in December, 1921, and, according to the testimony of S. M. Jordan himself, he did not go into possession of the land until in February, 1922. He then went into possession of the land as purchaser under a mortgage foreclosure decree against J. H. McLain in favor of the Farmers’ & Merchants’ Bank. In June, 1922, the chancery court entered a decree of record allowing J. H. McLain to redeem the land from the foreclosure decree of the bank. The land was correctly described in the mortgage of House as being in section 16. By mistake it was described in the mortgage to Jordan as being in section 15, instead of section 16. The mortgage to Jordan was executed on the 11th day of February, 1921, and filed for record on the 30th day of March, 1921. The mortgage to House was not executed until the 12th day of December, 1921. The record of Jordan’s mortgage containing the description of the land as being in section 15 instead of in section 16, where it was actually situated, did not constitute constructive notice that it was intended to cover the lands in controversy. Storthz v. Bank of England, 123 Ark. 451, 185 S. W. 784, and cases cited. Jordan did not enter into possession of the land until in 1922 after the mortgage had been executed to House. The mortgage of House was filed for record in 1924, before the decree of the chancery court reforming the mortgage of Jordan. Therefore we are of the opinion thiat the mortgage of House was a superior and iprior lien on the land in controversy to that of Jordan, and the chancery court erred in not so holding.

On the cross-complaint of McLain but little need be said. The testimony introduced by McLain to sustain his claim of damages for injury to his 'orchard, as abstracted in the record, is entirely too vague and general to afford him any relief. On this point counsel for Jordan abstracted his testimony, and, according to it, Jordan took good care of the orchard while he was in possession of the land as mortgagee, and did not in any wise damage it. No useful purpose could be served by reviewing and discussing in detail the evidence on this branch of the case. We deem it sufficient to say that we are of the opinion that the chancellor correctly held in favor of Jordan on the cross-complaint of J. H. McLain.

We are of the opinion, however, that the .chancery court erred in holding that the mortgage of ¡3. M. Jordan was superior to that of D. T. House, and, for that reason, the decree in this respect will he reversed, with directions to the chancery court to enter a decree that the mortgage of D. T. House is superior to that of S. M. Jordan, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.


author: Hart, C. J.

text:
    Railey v. State.
    Opinion delivered July 11, 1927.
    1. Criminal law — contributory delinquency — testimony of accomplice. — Under Crawford & Moses’ Dig., § 3181; a conviction of contributing to the delinquency of children, which is made a misdemeanor by § 5784, may be had on the testimony of an accomplice.
    2. Criminal law — conclusive ness of verdict. — The Supreme Court will not disturb the verdict of a jury if supported by any legal evidence of a substantial character, though contrary to the decided preponderance of the evidence.
    Appeal from Pulasld Circuit Court, First Division; Abner McGehee, Judge;
    affirmed.

      Robert L. Rogers and Sam Robinson, for appellant.

      E. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, C. J.

Guy Railey prosecutes this appeal to reverse a judgment of conviction against him for the statutory offense of contributory delinquency.

The first assignment of error is that the witnesses for the State are accomplices, and that there is no corroborating testimony. The defendant was indicted under § 5784 of Crawford & Moses’ Digest, and the statute makes the offense a misdemeanor. Under § 3181 of Crawford & Moses’ Digest a conviction may be had upon the testimony of an accomplice. Hence this assignment of error is not well taken.

A careful consideration of the testimoney leads us to the conclusion that the defendant is a man of good character and was not likely to have committed the crime with which he was charged. It seems to us that a decided preponderance of the evidence shows that he was not guilty. . Under our rules of practice, however, we cannot disturb the verdict of a jury if there is any legal evidence of substantial character to support it. The testimony of the witnesses for the State warranted the jury in finding that the defendant was guilty of conduct towards the children which constituted the statutory crime, as will appear from our construction of the statute shown by the opinion on the former appeal, where the judgment was reversed on account of erroneous remarks of the trial court. Railey v. State, 170 Ark. 979, 282 S. W. 5.

The judgment will be affirmed.


author: 'Hast, C. J.

text:
    Stanley v. State.
    Opinion delivered July 11, 1927.
    1. Criminal law — admission of guilt. — In a prosecution for murder, testimony showing that defendant made no answer when deceased denied the -statement that he was coming on defendant with a knife, when the latter shot him, held admissible in the nature of admission of guilt by silence.
    2. Criminal law — -reference to previous conviction in opening statement. — In a prosecution for murder, it was not error for the prosecuting attorney in his opening statement to tell the jury of a previous conviction -and reversal by the Supreme Court.
    3. Criminal law — discretion in limiting opening statement.— Much discretion as to what may be stated by the prosecuting attorney in his opening statement is given to the trial court, which should always see that the prosecuting attorney acts in good faith in making his opening statement.
    4. Criminal law — conviction of manslaughter as acquittal of higher degree of homicide. — In a prosecution for homicide, a conviction for involuntary manslaughter which was reversed on appeal, operated as an acquittal of all degrees of homicide higher than involuntary manslaughter.
    Appeal from Pulaski Circuit Court, First Division; Abner McGehee, Judge;
    affirmed.

      Robert L. Rogers and Sam Robinson, for appellant.

      H. W. Applegate, Attorney G-'enerial, and John L. Carter, Assistant, for .appellee.
   'Hast, C. J.

M. E. Stanley prosecutes this appeal to reverse a judgment of conviction against bim for the crime of involuntary manslaughter. Under the evidence adduced by the State, the jury would have been warranted in finding the defendant guilty of a higher degree of homicide. According to the evidence adduced by the defendant, the killing was done in self-defense. Inasmuch as no reversal of the judgment is urged because the evidence is not sufficient to support the verdict, we do not deem it necessary to abstract the evidence.

The first assignment of error relates to the admission of the evidence of Coy Davenport. The evidence ‘••hows that Roy Arrington was killed by a bullet'fired from a pistol in the hands of the defendant, M. E. Stanley. According to the testimony of Davenport, he heard a gun fired, and saw Roy Arring-ton sit down on the fender of a car. Arrington asked them to take him in the house, and they took him in there and put him on the bed. The witness then said: “Angelo Stanley said, ‘Father, what did you want to shoot Roy for? He is going to die.’ The doctor said, ‘He was coming on me with a knife, and I had to shoot him,’ and Roy said, ‘Every time you say I was coming on you with a knife you are telling a G-od damn lie,’ and he died a few minutes afterwards.”

We do not think the assignment of error of the defendant on the admission of this evidence is well taken. The statement of the witness shows that the defendant made no answer when Roy Arrington promptly denied the version of the affair given by the defendant, and denied that he was coming on the defendant with a knife, when the latter shot him. The evidence was in the nature of admission by silence on the part of the defendant, and, however- weak the inference of guilt which might be drawn from it was, under the circumstances, still the evidence itself was competent, and it was for the jury to say what inference might be drawn from it as a tacit admission of guilt on the part of the defendant. Thomas v. State, 161 Ark. 644, 257 S. W. 376.

It is next insisted that the judgment should be reversed because the court- erred in permitting the prosecuting attorney, in his opening- statement to the jury, to state that the defendant was tried and convicted about a year before and the case had been reversed by the Supreme Court. On this point, the record shows the following:

“Mr. W. H. Donham, of counsel for the State, in his opening statement to the jury stated that the defendant had been tried and convicted of this same offense about a year ago and the case had been reversed by the Supreme Court, and is now here for a second trial. (To which statement the defendant objected, which objection was by the court overruled, and exceptions saved by the defendant). Counsel for the State then stated that the defendant was convicted of involuntary manslaughter and was acquitted of second degree homicide and voluntary manslaughter. (To which remark to the jury defendant at the time objected; objection overruled, and exceptions saved by the defendant).”

• There was no error in the ruling of the court. Under our statutes, after the jury is impaneled and sworn, the prosecuting attorney may read to the jury the indictment, and state the defendant’s plea thereto, and the punishment prescribed by law for the offense, and may make a brief statement of the evidence on which the State relies. The object of the statement is to enable the court and jury to more readily understand the issues to be tried and the evidence subsequently adduced. Much discretion as to what may be stated by the prosecuting attorney is given to the trial court. The trial court should always see to-it that the prosecuting attorney acts in good faith in making his opening statement. McFalls v. State, 66 Ark. 16, 48 S. W. 492; Coates v. State, 101 Ark. 51, 141 S. W. 197; and Mode v. State, 169 Ark. 356, 275 S. W. 700. The record shows that Stanley was indicted for murder in the first degree and was convicted of involuntary manslaughter. He prosecuted an appeal to the Supreme Court, and the judgment of conviction was reversed. Stanley v. State, 171 Ark. 536, 285 S. W. 17.

Under these circumstances it was entirely proper for the prosecuting attorney, in his opening statement on the second trial of the case, to have made the remarks set out above. It was necessary to do so in order to inform the court and jury of the issues to be tried by them. The reversal of the judgment upon the former appeal operated as an acquittal of all degrees of homicide higher than involuntary manslaughter. Johnson v. State, 29 Ark. 34, 21 Am. Rep. 154; Ross v. State, 34 Ark. 376; and Youngblood v. State, 161 Ark. 144, 255 S. W. 572.

No other assignments of error are urged for a reversal of the judgment, and we find no prejudicial error in the record. The judgment will therefore be affirmed.


text:
    Commonwealth Brokerage Company v. Oil Fields Corporation.
    Opinion delivered July 11, 1927.
    1. CORPORATIONS — authority of PRESIDENT. — Where, without authority, the president of a corporation, whose duty it was to sell interests in oil and gas leases held by the corporation, hired another corporation, stock of which was owned by him and his associates, to sell such property, the latter company could not recover against the former company in a receivership proceedings.
    2. Payment — recovery of voluntary payments. — Where the board of directors of a corporation did not authorize another corporation to advance money for it to be used in satisfying its payroll, or for other purposes, the action of the president of both companies in paying out of the second company’s funds sums of money to pay debts of the first corporation on demands which were not enforceable against the second corporation,-was deemed voluntary, and money so paid could not be recovered by the latter company.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor ;
    affirmed.
    STATEMENT OE EAOTS.
    In a suit instituted in the chancery court by those beneficially interested in the Oil Fields Corporation, a receiver was duly appointed to take charge of the property of said corporation for the purpose of winding up its affairs. The Commonwealth Brokerage Company filed with, the receiver a claim against the Oil Fields Corporation in the sum of $6,442.26.
    Cordon Ingalls, Robert Edmond Ingalls, his brother, John Dashko, and Kenneth Forbes, during the years 1921-1923, inclusive, were engaged in promoting four common-law trusts in Ouachita County, Arkansas, for the purpose of buying and selling oil leases and interests therein. Gordon Ingalls was trustee for three of these common-law trusts, and John Dashko was trustee for the remaining one. The Oil Fields Corporation was organized under the laws of the State of New Jersey,, and Gordon Ingalls was its president. Robert Edmond Ingalls and John Dashko were made vice-presidents, and Kenneth Forbes became secretary and treasurer of said corporation. The Commonwealth Brokerage Company was an Arkansas corporation, and was organized by Gordon Ingalls, Robert Edmond Ingalls, John Dashko and Kenneth Forbes. Gordon Ingalls owned seventy ■per cent, of its stock, and his other three associates owned ten per cent. each. Gordon Ingalls directed the management of the affairs of both corporations. The Commonwealth Brokerage Company was organized for the purpose of selling interests in oil leases for a commission, and the principal business transacted by it was in selling leasehold interests for the Oil Fields Corporation after it had been organized by consolidating the four common-law trusts above referred to. Other facts will be stated in the opinion.
    The chancellor found that the Commonwealth Brokerage Company had been guilty of fraud in dealing with the four trust estates above mentioned, and, for this reason, was not entitled to recover its claim filed with the receiver of the Oil Fields Corporation. A decree was entered rejecting the claim of the Commonwealth Brokerage Company in accordance with the finding of the chancellor, and to reverse that decree this appeal has been prosecuted.

      Powell, Smead & Knox, for appellant.

      Albert L. Wilson, for appellee.
   Hart, C. J.,

(after stating the facts). We are of the opinion that the decree of the chancellor was correct. ■ .

In the first place, the evidence in the record shows that Gordon Ingalls and his associates, who organized the Commonwealth Brokerage Company and who owned all of its stock, were the managers of that corporation and also of the Oil Fields Corporation. Gordon Ingalls was the president of both corporations and managed the affairs of both of them. He was assisted by his associates, who owned the remaining stock in the Commonwealth Brokerage Company. No authority was ever given Gordon Ingalls or his associates by the Oil Fields Corporation to employ brokers to sell the interests of the common-law trust who composed that corporation, and there was no necessity for them to do so. Gordon Ingalls was president and manager of the Oil Fields Corporation, and it was his duty to sell the interests in the oil and gas leases held by the corporation. His pretended employment of the Commonwealth Brokerage Company for that purpose resulted merely in hiring himself and his associates to do what it was their- duty to do under the positions held by them in the Oil Fields Corporation.

In the second place, the claim of the Commonwealth Brokerage Company was properly disallowed for another reason. As we have already seen, the board of directors of the Oil Fields Corporation did not authorize the Commonwealth Brokerage Company to act as its agent in selling oil leases or any interests therein, nor did it authorize the Commonwealth Brokerage Company to advance any money for it to be used in satisfying its payroll or for any other purpose. Hence the action of Gordon Ingalls in paying out of its funds sums of money to be used in paying the debts of the Oil Fields Corporation was a voluntary payment merely, and the Oil Fields Corporation cannot be held liable for such payment. The rule is well settled that, when a person or corporation, without mistake of fact or fraud, pays money on a demand which is not enforceable against him, the payment is deemed voluntary, and cannot be recovered. Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778; and Tancred v. First National Bank of Fort Smith, 130 Ark. 520, 197 S. W. 1178.

A cross-appeal was granted tbe Oil Fields Corporation on tbe theory that tbe chancellor bad erred in not giving it judgment against tbe Commonwealth Brokerage Company for certain funds belonging to tbe common-law trusts above mentioned and which bad been secretly appropriated by Cordon Ingalls and bis associates. An examination of the record shows that no such judgment appears in tbe transcript. Hence there is nothing for review on the cross-appeal.

It follows that the decree of the chancellor will be affirmed.


author: Smith, J.

text:
    Paris Medicine Company v. Lusby.
    Opinion delivered July 11, 1927.
    1. Bankruptcy — composition with creditors. — To be binding on all the creditors, a composition with creditors in bankruptcy proceedings requires confirmation by the court.
    2. Bankruptcy — composition with creditors. — Where a debtor, after being adjudged a bankrupt, offered to make a composition with creditors which was accepted by certain creditors, but was not confirmed by the court, the composition was binding only on the creditors who accepted same.
    Appeal from Pulaski Circuit Court, Second Division; Bichará M. Mann, Judge;
    reversed.

      Rogers, Barber & Henry, for appellant.

      Walter A. Isgrig and Thos. G. Claiborne, for appel-lee.
   Smith, J.

Three separate suits, which were later consolidated, were brought against W. H. Lusby to recover balances of accounts for goods, wares and merchandise sold by the plaintiffs tó the defendant. The suits were brought in the municipal court of Little Bock, and from judgments in favor of the plaintiff the defendant appealed to the circuit court, where the causes were consolidated and tried as a single case.

The correctness of the accounts sued on and the original liability therefor is not denied by the defendant, but a present liability is denied on the ground that there was a composition and settlement of these and all other accounts due by the defendant to his various creditors; but plaintiffs offered testimony, which is not disputed, showing the original liability of the defendant for the amounts sued for in each of the three cases.

The plaintiffs offered in evidence, and in opposition to the plea of composition, the record of the proceedings in the bankruptcy court in the matter wherein the defendant had filed a voluntary petition in bankruptcy.

Appellee had been engaged in the retail drug business, and he filed a voluntary petition in bankruptcy, and accompanying this petition was a list of his creditors, with the addresses and amounts due each. Upon this petition defendant was adjudged a bankrupt on August 2,1922. Thereafter the referee in ¡bankruptcy sent to each creditor the following notice: “You are notified that the first meeting of the creditors of W. H. Lusby of Little Rock, Arkansas, who was duly adjudged a bankrupt on August 2, 1922, on a petition filed August 2, 1922, will be held before Charles G. Waters, referee in bankruptcy, at room 110, Fulk Building, in the city of Little Rock, Arkansas, on August 21, 1922, at 10 o’clock a. m., where claims may be presented, properly verified for allowance, trustee appointed, bankrupt examined, proposed sale of assets acted upon, and such other business transacted as may properly come before the meeting.”

But, before this meeting of the creditors, which was appointed for August 21, 1922, was held, there was filed with the clerk of the court in which the bankruptcy proceeding was pending, on August 17, 1922, a motion by the defendant, Lusby, to dismiss his petition. This petition contained the following recitals: “Comes the petitioner, W. H. Lusby, and asks to dismiss his petition filed in this cause, and for cause says: . That he has made satisfactory settlement with all Ms creditors except-, and that he is ready and willing to make satisfactory settlement with them. He attaches hereto and makes a part of his motion the agreement he has with his creditors. Wherefore, yonr petitioner, W. H. Lusby, asks that his petition he dismissed.”

The agreement with the creditors referred to reads as follows“This agreement, made this 14th day of August, 1922, by and between W. H. Lusby and the undersigned creditors, or attorneys representing creditors, with full power to act, witnesseth: For and in consideration of the sum of fifteen hundred dollars ($1,500) agrees to execute a full and complete release of any and all claims against the said W. H. Lusby, and further agrees to a dismissal and to dismiss any and all suits now pending against W. H. Lusby. It is distinctly understood ánd agreed by and between ourselves that we will accept our pro rata share to which we may be entitled under the law in full satisfaction of any and all claims against the stock of drugs, sundries, toilet articles, patent medicines, and all other items not classed as fixtures, and to deliver a full and • complete release to W. H. Lusby, against any claims of whatsoever kind or nature.” This agreement was signed by a number of creditors, but was not signed by either of the plaintiffs- here.

On August 22, 1922, the defendant sent to each of his creditors the following notice: “On August 2 the writer, trading as Lusby’s Drug Store, filed in the district court a petition in voluntary bankruptcy, a compromise offer was submitted to a majority of the creditors and accepted, accordingly a motion was filed on the 17th day of August to dismiss the petition, which was recommended by the district court referee to the court. The agreement, which was signed by a majority of creditors, is based on the proposition to accept $1,500 in full satisfaction of any and all claims and to accept whatever pro rata they would be entitled to under the law. By- this method we are able to secure a larger pro rata and to save a considerable portion of the court cost. Kindly advise me if you have any objections, and wbo represents you here, so your portion may be handed him upon the execution of an assignment of claim. I regret the necessity of this action, but feel that I acted for the best interests of all parties. Kindly accept this as notice of the procedure indicated. (Signed) W. H. Lusby.”

On September 27 the referee mailed to the creditors the following notice: “.You are notified that W. H. Lusby, of Little Rock, Arkansas, has filed a petition in the United States District Court at Little Rock, Arkansas, asking for a composition with its creditors on this the 27th day of September, 1922, and said petition has been referred to Charles C. Waters, one of the referees of said district, and, in accordance therewith, a meeting of creditors is hereby called to consider offer of composition on the 9th day of October, 1922, at 11 o’clock in the forenoon, in the office of the referee, 110 Pulk Building, in the city of Little Rock, Arkansas.”

On September 28 the referee sent to the creditors the following additional notice: “Disregard notice mailed September 28,1922, In re W. H. Lusby, bankrupt, and be advised as to the following notice: You are notified that W. H. Lusby has filed a petition in the United States District Court at Little Rock, Arkansas, asking that said court vacate its order of adjudication and also to dismiss W. H. Lusby’s voluntary bankruptcy petition as filed August 2, 1922. The district court has ordered the referee to call a meeting of said W. H. Lusby’s creditors to meet for the purpose of accepting or rejecting said petition, and the referee herewith calls a meeting of the creditors for October 9, 1922, at 11 o’clock in the forenoon, at the office of the referee, 110 Fulk Building, in the city of Little Rock, Arkansas.”

It does not appear that the meeting of which notice was there given was ever held, but it does appear that, on August 17, 1922, the referee entered upon his records a notation of the filing of the petition of the bankrupt on that date, and it was there recited that: “Now therefore it is recommended by the referee that the petition for setting aside the adjudication and dismissing the petition be granted and allowed. Without objection the motion to dismiss is to be treated also as a motion to vacate the adjudication of bankruptcy.” (Signed by the referee).

On the 14th of October, 1922, the referee filed with the clerk of the United States District Court the follow-iny report and recommendations : ‘ ‘ The referee reports that he gave all the creditors mentioned in the bankrupt’s petition a full ten-days’ written notice that there would be a meeting of the creditors held in the office of the referee in the Fulk Building in the city of Little Rock, Arkansas, at 11 o’clock a. m. October 9,1922. No creditor appeared at said meeting. W. H. Lusby, the bankrupt, did appear for said meeting, and showed that he had made satisfactory settlement with all of his creditors, and requested a recommendation by the referee to the court that the adjudication declaring him a bankrupt be vacated. The referee sees no reason why this request should not be granted, and therefore recommends to the court that the adjudication declaring the said W. H. Lusby a bankrupt be vacated, and that said petition be dismissed. ’ ’

This report was indorsed by the presiding judge of the United States District Court as follows: “Let the case be dismissed.” And no other order appear to have been made by the court.

A receiver was appointed in the case, but no trustee was ever elected, and the receiver explained what was done as follows: “I can explain that. Mr. Lusby filed a petition in bankruptcy; Judge Trieber was absent, and it was referred to Judge Waters as referee, who adjudicated him a bankrupt and appointed myself as receiver. The sheriff had closed up the store, and I went over and got the keys from Mr. Sibeck, in the sheriff’s office, and what money was on hand, and took it into the bankruptcy court, and inventoried the assets, and was going to ask for an order of sale, but Mr. Lusby and his 'attorney came into court and asked the sale not to be made for the fact he was going to make a settlement with the creditors. He was going to petition the court to have the bankruptcy proceedings dismissed, which was done at a later date. At the meeting of the creditors no action was taken; in fact no creditors appeared except Mr. Lusby and a few lawyers — I don’t remember who, right now, and they agreed then to withhold any action as to the election of a trustee until such action was taken by Mr. Lusby on dismissing his petition in bankruptcy; and he filed a petition to dismiss the bankruptcy proceedings, which was granted by Judge Trieber. There had been no sale of the assets whatever, and, after the petition in bankruptcy had been dismissed, and I had received — I do not remember how much, but I had received a certain sum of money to be pro rated to certain creditors, which I did pro rate, but that was acting as trustee merely by consent of the different attorneys who represented the creditors, and that had nothing to do with the bankruptcy.”

The receiver further testified that there was no composition at all, and that the bankruptcy proceedings was dismissed because the petitioner filed a petition asking that this be done, and that the “agreement (for the settlement) did not go into effect until after the petition in bankruptcy had been dismissed.”

The receiver was asked: “Didn’t the court know of this agreement, and that is the reason he dismissed it?” The witness answered: “They (the creditors) agreed to this settlement outside of the bankruptcy court, and that is the reason the petition in bankruptcy was dismissed.”

The receiver further testified that he distributed the money paid him by Lusby, but he paid money only to those creditors who had agreed to the proposed settlement, and the plaintiffs here were not among that number, and nothing was paid them. He further testified that “I did not pay out any money acting under the bankruptcy court whatever,” and further that “he was acting as trustee merely by the consent of the different attorneys who represented creditors, and that had nothing to do with the bankruptcy, ’ ’ and that the money paid out by him “was all pro rated after the. 'bankruptcy adjudication had been dismissed by Judge Trieber.”

The trial court made the following finding: “I will render judgment for the amount of the composition; as to the rest, I think they are estopped from collecting it. Judgment will be for the percentage of the claim.”

We have set out rather extensively the proceedings of the bankruptcy court as they were certified by the clerk of the United States District Court, and also the testimony in relation thereto, because it is insisted that there was a composition in bankruptcy with the creditors.

Appellee cites us to §§ 597 and 600 of the chapter on Bankruptcy, in 7 C. J. page 346. These sections read as follows:

“Section 597. The effect -of a composition is to supersede the bankruptcy proceedings and to reinvest the bankrupt with all his property free from the claims of creditors, without any further act by the trustee or by the court.”
‘ ‘ Section 600. The composition binds creditors who proved their claims or whose debts were scheduled and who had notice of the offer of composition, although they did not prove their claims; but an unscheduled creditor is not bound unless he had notice of the bankruptcy proceeding prior to the time when the application for confirmation was filed.”

The error in appellee’s contention is that there has been no composition in bankruptcy. The record which we have set out shows a settlement with certain creditors, but this settlement binds only the parties thereto. Appellants were not parties thereto, and are therefore not bound, unless there was, in fact, a composition as is provided for in the bankruptcy act.

Speaking of the nature of a composition proceeding, the Supreme Court of the United States, in the case of Cumberland Glass Mfg. Co. v. DeWitt & Co., 237 U. S. 447, 35 S. Ct. 636, 59 L. ed. 1042, said:

“The nature of composition proceedings is nowhere better stated than by Judge Lowell in In re Lane, 125 Fed. Rep. 772, 773 (D. C.), in which, it is said: ‘ The case of composition is in some respects exceptional. It is a proceeding voluntary on both sides, by which the debtor, of his own motion, offers to pay his creditors a certain percentage of their claims in exchange for a release from his liabilities. The amount offered may be less or more than would be realized through distribution in bankruptcy by the trustee. The creditors may accept this offer or they may refuse it. For the purpose of the composition all the creditors are treated as a class, and the will of the majority is enforced upon the minority, provided the decision of the majority is approved by the court. Except for this coercion of the minority, the intervention of the court of bankruptcy would be hardly necessary. Section 12-e (30 Stat. 550, U. S. Comp. St. 1901, p. 3427) provides: ‘Upon the confirmation of a composition, the consideration shall be distributed as the judge shall direct, and the case dismissed. Whenever a composition is not confirmed, the estate shall be administered in bankruptcy as herein provided.’ Composition is thus treated, even in the act, as in some respects outside of bankruptcy. ’ ’

It thus appears that a composition, to be binding-on all the creditors, requires confirmation by the court. Here there was no confirmation of the composition. The court was not asked to confirm, and the only action taken by the court was to dismiss the entire proceeding, and, when this was done, the debtor’s attitude was and is that of one who made a private settlement with his creditors, and those creditors are barred — and those only — who participated in and became parties to this settlement. Appellants did not participate and therefore are not barred. International Shoe Co. v. Pinkus, 173 Ark. 316, 292 S. W. 996.

It follows therefore that, under the undisputed testimony, judgment should have been rendered for the plaintiffs for the amounts of their accounts; and, as the case appears to have been fully developed, judgments will be rendered here accordingly.