author: Wood, J.

text:
    James v. State.
    Opinion delivered December 17, 1923.
    1. Rape — -conviction of carnal abuse — variance.—Under an indictment alleging the rape of a girl under the age of consent, the accused may be convicted of the crime of carnal abuse, where the evidence supports a conviction of the latter offense.
    2. Criminal law — harmless error. — Error, if any in refusing to - charge, in a rape case, upon the duty of the female to resist and make outcry, was harmless where the defendant was convicted of carnal abuse, such matters not being involved in the latter charge.
    3. Continuance — absent witness — cumulative evidence. — A motion for continuance for an absent witness was properly refused when his testimony would have been merely cumulative.
    4. Criminal law — family bible as evidence. — The family Bible is competent to prove the age of the prosecuting witness in a rape case.
    5. Witnesses — competency of family physician. — It was not error to refuse to permit the defendant in a prosecution for rape to use the family physician, who had examined the prosecutrix, as a witness, where she did not consent to hi-s testifying.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.
    No brief for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Wood, J.

The appellant was indicted for the crime of rape upon the person of one Jessie Spyres. It is alleged that lie, “in the county of Washington and State of Arkansas, on or about the 24th day of April, 1923, in and upon the person of one Jessie Spyres, a female person of the age of fourteen years, forcibly, violently and feloniously did rape and as-sault her, the said Jessie Spyres, then and there violently, forcibly and against her will feloniously did ravish and carnally know her,” etc. The appellant was tried and convicted of the crime of carnal abuse.

The motion for a new trial contains thirty-one separate assignments of error, but we find it unnecessary to set out and1 discuss all of these. The court overruled the motion for a new trial and entered a judgment sentencing appellant to one year’s imprisonment in the State Penitentiary, from which he prosecutes this appeal.

The appellant, has not filed any brief in the case, but the Attorney General has filed an elaborate abstract of the record and has discussed fairly the propositions of law and fact presented by the record under six subdivisions.

1. Appellant contends that there is no evidence to sustain the verdict. It could serve no useful purpose to set out and discuss in detail the testimony. Suffice it to say that we have examined the testimony set forth in the record, and find that it is sufficient to sustain the verdict.

2. The fourth and fifth grounds of the. motion for a new trial set up that there was a fatal variance between the charge in the indictment and the proof, the contention being that the appellant was indicted for the crime of rape, and was convicted, under the evidence, of the dime of carnal abuse. In Henson v. State, 76 Ark. 267, we held that an indictment for rape of a female under the age of sixteen years will sustain a conviction for carnal abuse. See also Powell v. State, 149 Ark. 311, and other cases there cited.

3. Several of the grounds in the motion for a new trial assign error in the instructions of the court. These' instructions covered the law of rape and of carnal abuse, also the subjects of the presumption of innocence, reasonable doubt, and credibility of witnesses. Appellant only offered a general objection to 'any of the instructions. The la,w upon the subjects stated was correctly declared in accordance with many previous decisions of this court, and it could' serve no useful purpose to reiterate here the rules of law pertaining to those subjects.

4. The appellant prayed the court to instruct the jury that, before they could find appellant guilty of the crime of rape, they must find that the prosecutrix used all the means within her power and consistent with her safety to prevent appellant from accomplishing his designs; that it was her duty to give an alarm and make an outcry, and that, if she failed to do so, it was the duty of the jury to consider such failure, and that, if the jury found that she failed to use all the means within her power, consistent with her safety, to prevent appellant from having carnal intercourse with her, if such was his purpose, then they should find appellant not guilty. These instructions were fully covered by the instructions which the court gave on its own motion; and besides, these instructions were applicable only to the -charge of rape, .and, since the verdict of the jury acquitted appellant of that charge, he could not have been prejudiced, even if the court had not, in its instructions, covered the subject-matter of the above prayer. In the charge of carnal abuse the questions of the resistance and the outcry of the female are not involved.

5. The appellant contends that the court erred in overruling the motion for a continuance on account of the absence of the witness Hugh Kirkpatrick. The motion was in due form, and set no that the witness was absent in the State of Kansas, and that he could be located and his testimony taken, or his attendance had at the next term of the court. It was alleged that the witness, if present, would testify that, on the day of the alleged offense, the witness saw the appellant and the prosecuting witness sitting in an automobile parked in the roadway between the main traveled part of the road and the ditch opposite the cemetery; that appellant was sitting to her right, both being on the front seat; that they were laughing ’and talking as the witness passed said automobile, something like 6:20 p. m. on the day of the alleged crime. The alleged testimony, if adduced, would have been only cumulative of much other testimony to the same effect. See Williams v. State, 105 Ark. 698. The court did not abuse its discretion in refusing to grant the motion for a continuance.

6. One of the assignments of error is that, when the appellant requested that he be furnished with a certified copy of the indictment and be given forty-eight hours to plead after the copy of the indictment was furnished him, the court made the remark that the defendant was “just taking advantage of a technicality to delay his trial.” The bill of exceptions does not show that the court made any such remark.

Appellant also assigns error in the ruling of the court in permitting the family Bible of the Spyres to be introduced in evidence. This was competent to prove the age of the prosecuting witness,

There was no error in the ruling of the court in refusing to permit the appellant to use Dr. Paddock as a witness. Dr. Paddock had examined the prosecuting witness, as her family physician, and she had not consented to his testifying in the case.

Upon the whole record we find no error prejudicial to the appellant in any of the rulings of the court. The judgment must therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Myers v. Andre.
    Opinion delivered December 17, 1923.
    1. Malicious prosecution — burden of proof. — In an action for malicious prosecution growing out of a charge of raising a check, which plaintiff alleged and defendant denied was written by the latter in the amount for which it was cashed, the burden was on plaintiff to show that defendant wrote the check in such amount, and falsely swore before the grand jury that he did not do so, and that the indictment of plaintiff was predicated on such false testimony.
    2. Malicious prosecution — instructions.—In an action for malicious prosecution on a charge of raising a check, instructions that, if defendant did not write the check for the amount paid on it, the jury could not find for plaintiff, unless convinced that defendant maliciously, wilfully and without probable cause to believe that plaintiff had altered the check, instigated the grand jury to indict plaintiff, and that, if. defendant consulted and made a fair, full and complete statement of all he knew about the transaction to a reputable and reliable attorney, on whose advice he placed the matter before the grand jury, the verdict should be for defendant, held properly given and not to conflict with an instruction .to find for the plaintiff if the check was written by defendant for the sum paid on it, and he testified falsely before the grand jury that it was written for a less amount.
    3. Malicious prosecution — burden of proof. — In actions for malicious prosecution, plaintiff must prove both want of probable cause and malice.
    4. Malicious prosecution — instruction.—In an action for malicious prosecution on a charge of raising a check, where the court instructed the jury on the issue as to whether defendant acted on the advice of counsel, it was error to refuse an instruction that, if defendant wrote the check for the amount paid thereon, - advice of counsel would be no defense.
    5. Appeal and error — abandonment of exceptions. — Exception to the refusal of an instruction will be treated as abandoned when not assigned as ground for new trial in motion for new trial.
    6. Malicious prosecution — evidence of statements of party. — In an action for malicious prosecution on a charge of raising a check, testimony that defendant said, in discussing the case against plaintiff, that “he gave a certain man in this town a check for $52.70, and his G — d d — d wife raised it $100,” held competent on the issue of malice.

      Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    reversed.

      J. T. Boston, for appellant.
    The court erred in instructing tlie jury on the doctrine of probable cause. 163 S. W. 518. It was error for the court to exclude the testimony of witness Lemmer, as to showing malice on the part of Andre. 104 S. E. 729; 240 8. W. 351; 80 S. W. 147; 117 N. E. 759. The court erred in refusing to instruct .the jury that legal advice would be no defense, if Andre wrote the check for the full amount himself. 187 S. W. 626.

      Virgil Greene, for appellee.
    Instruction No. 2, given by the court, on the subject of probable cause, was properly given to the jury. 18 R. C. L. 36; 82 Ark. 252; 96 Ark. 325. Instruction No. 3, submitting the question of legal advice, was proper. 71 Ark. 351; 100 Ark. 316; 107 Ark. 74. The instruction was proper on the question of the good faith of the defendant, acting under advice of counsel. 76 Ark. 41. The testimony of witness Lemmer was properly excluded. In an action for slander the plaintiff must prove the use of ’ substantially the words alleged. 98 Ark. 312; 122 Ark. 254; 124 Ark. 390; 153 Ark. 275.
   Wood, J.

This action was brought by the appellant against the appellee to recover damages for malicious prosecution. Appellant alleged, in substance, that the appellee, on October 4, 1921, made a cheek payable to E. H. Meyers, husband of the appellant, for the sum of $152.70, which check was delivered to the .appellant for her husband; that on the 21st of December, 1921, appellee appeared before the grand jury of Mississippi County and maliciously and falsely testified that the check mentioned was raised by appellant after its delivery from $52.70 to $152.70; that, predicated upon such testimony, the grand jury returned an indictment ¿gainst the appellant, charging her with forgery and uttering a forged instrument; that on the 24th of March, 1922, the appel-, lant was tried on the above indictment and acquitted; that appellee, before the indictment was returned, had stated to divers persons and on divers and sundry occasions that the appellant had raised the check, thereby falsely and maliciously accusing appellant of the crime of forgery. Appellant prayed for punitive and actual damages in the sum of $50,000.

Appellee, in his answer, admitted that the appellant was indicted, tried, and acquitted of the crime of forgery, as set up in the complaint, but specifically denied all of its other allegations.

The appellant adduced evidence tending to show that her husband ordered a carload of coal shipped to Osceola, intending to take what he needed for his own use and to sell the balance to his neighbors at a sum named. When the coal arrived Meyers was recovering from a long spell of typhoid fever. He was still in bed; and appellant was .attending to his business for him. At the time the coal arrived the appellee and Meyers were close friends and neighbors. Appellee at the time was at Meyers ’ home, calling on him. " Meyers stated that he had .a carload of coal coming, and didn’t know how to get rid of it, and appellee said to Meyers that he would dish it out for him if he would have his wife make out a list of those to whom it was going, which she did, and appellee delivered the coal. Appellee testified that he hauled the nine loads of coal he was to take out of the car and turned the residue of the coal over to the parties named in the list. Appellee didn’t weigh the coal for the other parties and didn’t settle with Meyers for any of it except his own, which amounted to $50 and some cents, but the appellee, through mistake, executed his cheek to Meyers for $52.70. Appellee collected from one of the parties for Meyers. They wanted him to collect from .another party, but finally made arrangements to collect for themselves.

The testimony of the appellant concerning this was to the effect that, during the time her husband was sick, appellee was at their house almost every evening. He and appellant’s husband apparently liked each other. Appellant and her husband expected a man by the name of Laug’hlin to handle the coal when it came, but appellee assumed authority, and said he would handle it, and would not let people have it who didn’t have the money. When appellee called up about the check he first talked to Meyers. Appellant heard her husband ask over the phone, “What is the matter, Doc?” and she then took the ’phone out of her husband’s hand, and also asked appellee what was the matter, and he said, “I gave you a cheek for $152.70, and it’s $100 too much.” Appellant replied, “If there is any discrepancy, I will have either Joe Young- or Mr. Laughlin come and straighten it up.” In less than an hour the bank called appellant and told her that the check had been raised. As soon as her husband was able, he and appellant went to the bank. When appellant was accused of raising the check, they called in Mr. Coston, their lawyer. Appellant told appellee that, if there was anything wrong with the check, to come over to their house, and they would adjust it. Appellant knew that the prosecuting attorney offered to dismiss the prosecution against her, but she, acting with the sanction and advice of her counsel, insisted that the case he tried. Her reason for such action was that it was public talk, and, if she had allowed the case to be dismissed, it would be said that they had compromised with the appellee. Appellant was seeking vindication. Appellee had damaged her character. Appellant testified that she had been employed in the postoffice before she married Meyers, and stated that she had suffered enough humiliation and embarrassment from the time of the indictment until the trial to kill any person in the world. She consulted with her attorney. At the time the check was given to her husband he was receiving $300 per month salary, payable every two weeks, which continued during the time he was ill, and in addition he received a sick benefit of $25 per week. Appellee didn’t pay appellant or her husband the money received on Coley Hall’s check. He was at the home of the appellant, and stated that he had delivered Hall’s coal and put the check for same in his pocket. He had never since that time been in their house. Appellant stated that she voluntarily appeared before the grand jury and wrote the words “one hundred” in the grand jury room, but she absolutely did not write the words “one hundred” on the cheek. She indorsed her husband’s name on the check, and nothing more. It was shown, on behalf of the appellant, that the appellee appeared before the grand jury and.testified that the check mentioned was raised from $52.70 to $152.70. He was subpoenaed before the grand jury and questioned about other matters. On cross-examination the witness testified that the appellee, in his manner of testifying before the grand jury concerning the check, “seemed to be reticent and showed no feeling in the matter. He left it up to the jury, and regretted to make the report.”

Two experts in handwriting testified on behalf of the appellant, after being shown the alleged forged check and after examining a large number of checks signed, some by E. H. Meyers and some by Mrs. E. H. Meyers, but with their signatures concealed from the witnesses, that none of the checks which bore the genuine signature of Mrs. Meyers were in the same hand as that on the face of the alleged forged check; and, after examining a large number of checks that were signed by the appellee, they testified that the “d” in those checks was made by the same person who wrote the alleged forged check. One of these experts testified that the words “one hundred” in the alleged forged check and the signature of the appellee (V. J. Andre) were, in his opinion, written by the same person.

W. 0. Lemmer was introduced as a witness for the appellant, and he testified on direct examination as follows: “Ques: Did he (appellee) make any remark to you about who wrote the check? Ans: Yes sir. Ques: What did he say, if anything? Ans: He told me he gave a certain man in this town a check for $52.70 and his Gr- d- wife raised it $100, and 1 asked him what was her object in raising it, and he said he didn’t know unless her husband put her up to it.” On cross-examination the witness testified that he was at Osceola in the interest of the Burns Detective Agency, investigating this check. He reported the matter to Judge Coston. Witness pretended to be an automobile mechanic. He had the conversation with the appellee detailed above on the second day after his arrival in his place of business. The conversation was concerning the case of the State against appellant. He further testified on cross-examination as follows: “Ques: Have you detailed to the jury all he said on that subject? Ans: That is all he said that I can remember. Ques: That ended your labors? Ans: No sir; he was very reluctant about talking about it. I forced him on it afterwards once, and he wanted to know what the opinion of the people was around here, and I told him the opinion was divided. Ques: And”all he said is he had given a check for fifty-two dollars and seventy cents to a man in town, and his damned wife raised it one hundred dollars, and he thought she did so under the influence of her husband, or, in substance, that of her damned husband? Ans: Yes sir. Ques: He said nothing-further to you on the subject? Ans: No sir.”

There was further testimony on behalf of the appellant corroborating the testimony of appellant to the effect that they were present and heard appellee tell Mrs. Meyers, in a conversation between them concerning: the check of Coley Hall, that he had Coley Hall’s check for the coal, that he had it in his pocket.

Hall testified that he gave the check for the coal that he purchased from Meyers to the appellee. Another witness testified that he heard Mrs. Meyers tell appellee, over the telephone, that if there was any mistake about the check to come over and she would be more than glad to fix it up. At the time Meyers had just got up from a spell of sickness.

Another witness, who was foreman of the grand jury, testified that the grand jury was hot after whiskey sellers, and they thought that the appellee might know something about it. The check in question had been brought to the attention of the grand jury by the appellee. "While the witness was going across the street, appellee hailed him and said, “I want you to come over to the barn — I have something to show you.” Witness replied, “I ain’t got no time now — I will come over later.” Witness supposed it was the check. Appellee didn’t mention the check that day at all. Witness had heard about it through other sources, and stated that they would have him subpoenaed before the grand jury on other matters.

Appellant, on being recalled, stated that it was before the check for $152.70 was delivered to her that the appellee stated that he had Coley Hall’s check. The appellee never paid for Coley Hall’s coal or his own except by the check for $152.70. He never paid the appellant cash at any time, and was never in their house after he said he had Coley Hall’s check in his pocket.

The appellee, in his own behalf, testified substantially as heretofore set forth, and further to the effect that, when Hall gave witness a check for the coal purchased by him from Meyers, witness cashed it in the sum of $50 and took it over to the appellant, telling her that it would help to pay the freight hill. He stated that no one except the appellant was present when he delivered the money to her. The delivery of the coal was made by a man named Quinn, and the appellee accepted Quinn’s figures on the coal, and Meyers and his wife also accepted them. Quinn figured and. weighed it all, and the book weights were sent to Mrs. Meyers, and she didn’t question them in any way. Witness sent the check for his coal in an envelope with the freight bill and invoice, and didn’t see the check any more until he took it out of the envelope, after it had been canceled by the bank and returned, to him with his monthly statement and checks. The alleged forged check called for $52.70 when witness sent it to the appellant, and the next time he saw it among witness’ returned checks it called for $152.70. Witness didn’t write the words “one hundred” on the check. Witness wrote the check for $52.70 and stated on the check what it was for. He didn’t write the words “Andre, Hale, or Hall,” on it and didn’t know that it had been raised until his' attention was called to the fact by the Citizens’ Bank. When his attention was called to the fact that the check had been raised, witness rang up the residence of the appellant and told her that he had sent her a check for $52.70 and that it had been raised to $152.70, and called her attention to the fact that there was something wrong, and she replied, “It can’t be,” and seemed vexed, and witness said, “This is no place for an argument,” and hung up the receiver. From that day the appellant and her husband had not said anything to the witness about it.

Appellee testified that appellant acknowledged that she and her husband still owed the appellee $20 in the coal deal which they had never. offered to settle. After the matter of the raised check was called to witness’ attention, he consulted with his attorney about it, and laid the whole facts before him. Witness appeared before the grand jury in obedience to a subpoena and laid the facts before them. He made no effort to prosecute appellant. He had no malice towards her, and did not testify falsely, and what he did along the line of prosecution was done on the advice of counsel. He didn’t in any manner urge to any person that the appellant be prosecuted. After the indictment was lodged, the prosecuting attorney asked the witness if he objected to dismissing the case, and witness replied, “Use your best- judgment.” He said in open court that he didn’t want to prosecute.

The above is substantially the material testimony as developed at the trial.

Among other instructions the court gave on its own motion instruction No. 2, as follows: “But if you find that the defendant did not himself write the check for $152.70, but for $52.70, then,, before yon can find for the plaintiff, you must be'convinced by a preponderance of the evidence that defendant instigated and caused the grand jury to indict the plaintiff, and that this was done maliciously and wilfully and without probable cause to believe that plaintiff had altered the check. And if you find .that defendant instigated or procured the grand jury to find the indictment, but that he did so without malice towards the plaintiff and with probable cause to believe that plaintiff had altered the check, your verdict should be for defendant. If you find that the defendant did not instigate or induce the grand jury to find the indictment, your verdict should be for the defendant.”

The plaintiff offered specific objection to the giving of this instruction to the effect that it injected into the case an issue not raised by the pleadings, and further, because “if Andre himself wrote the check for $152.70 in the first instance, then, in that event, malice is implied, and there is no question of good faith to be submitted to the jury, and because it was in conflict with instruction No. 1, and was abstract, misleading, and prejudicial.”

Instruction No. 1 given at the instance of the appellant is as follows: “If you find from a preponderance of the evidence that the check in question was written by Victor J. Andre, payable to E. H. Meyers, for the sum of $152.70, and if you further find that the said Andre testified falsely before the grand jury that the check was written by him for only $52.70, and that such testimony resulted wholly or in part in the indictment of the plaintiff, Mrs. Meyers, your verdict should be for plaintiff.”

Instruction No. 3 given on the court’s own motion is as follows: “You are instructed that if you find from the evidence that, before plaintiff was indicted and prosecuted, charged with the crime of .altering the check in controversy, the defendant consulted a reputable and reliable attorney and made to said attorney a fair, full and complete statement of all he knew about the said check and the plaintiff in connection therewith, withholding from said attorney no material fact in regard to the changing or altering of the said cheek, or any of the persons connected therewith, and was advised by said attorney to place the matter before the grand jury, and that he, acting in good faith, did this, and had nothing further to do with the procurement of the indictment or the prosecution thereunder, your verdict should be for the defendant.” The appellant specifically objected to the giving of this instruction, on the ground that the complaint alleges that Andre wrote the check himself for $152.70, and, being based on that ground and no other, if he did write the check himself, he is liable, and the advice of counsel would be no defense; and further, fihat the instruction was in conflict with instruction No. 1 given at the instance of the appellant.

Instruction No. 6 given on the court’s own motion is as follows: “Now, there has been some testimony here introduced by the plaintiff in regard to a statement by some gentleman that he had heard the defendant here in town malee the remark that he had given a check up here to some man for $52.70 and his damned wife had raised it to $152.70. The court has decided that that proof is incompetent, and it is withdrawn from your consideration, and the court will depend upon the intelligence of this jury to not regard that testimony for any purpose whatever. The court has decided the testimony is incompetent, and no incompetent testimony has a right to go before you for any purpose.”

The jury returned a verdict in favor of the appellee. The court rendered judgment dismissing the appellant’s action, from which is this appeal.

1. The appellant bottomed her cause of action solely upon the allegation that the appellee had himself written the check to the payee, Meyers, in the sum of $152.70, and then appeared before the grand jury and wilfully, deliberately and maliciously testified falsely that he wrote the check himself for $52.70, and, after the check was delivered, it was raised by the appellant to the sum of $152.70, and that, upon such false testimony, the prosecution was instituted against her. The denial of this allegation in terms raised the issue of whether or not the appellee wrote the check himself. Upon this issue the burden of proof was upon the appellant to show by a preponderance of the evidence that the appellee wrote the check himself and that he falsely swore before the grand jury that he didn’t write it, and that the indictment was predicated, and the prosecution thereby instigated, upon such false testimony. The court, in effect, so instructed the jury in instruction No. 1 given at the instance of the appellant. Instruction No. 1 presents the appellant’s theory of the case, as set forth in her complaint. The appellee denied the allegations of appellant’s complaint to the effect that he had written the check himself, and that he had testified falsely before the grand jury that he did not write the check. The effect of the allegations of his answer is that he didn’t write the check himself, and that his testimony to that effect before the grand jury was true, and that he did not voluntarily appear before the grand jury and accuse appellant of raising the check. His contention, as made by his answer and proof adduced in support of its allegations, was that he did not write the check himself, and that he did not seek the prosecution of the appellant, but simply, when subpoenaed before the grand jury, laid the facts before them. He also contended that what he did in the matter was after he had sought the advice and direction of counsel, and that his actions were predicated upon such advice.

The court therefore, in its instructions Nos. 2 and 3, correctly presented appellee’s theory of the case, based upon his answer and the testimony adduced by him to sustain his contentions. These instructions were not in conflict with instruction No. 1 given at the instance of the appellant, and, when taken together, declare the law in conformity with numerous decisions of this .court. In actions for malicious prosecution it is essential that plantiff prove both the want of probable cause and malice in order to maintain the action. Foster v. Pitts, 63 Ark. 387; Price v. Morris, 122 Ark. 382; Keebey v. Stifft, 145 Ark. 8. To be sure, if the appellant proved that the appellee wrote the check himself, the jury would be warranted in finding from this and the other facts in evidence that the prosecution was malicious and without any probable cause. But these issues, under the evidence, were for the jury.

2. Instruction No. 3 given by the court on its own motion was a correct declaration of law applicable to the facts pertaining to the issue raised by the testimony as to whether or not the appellee acted on the advice of counsel. Price v. Morris, supra, and other cases there cited. In view of this instruction, however, in order to fairly present the theory of appellant to the jury, the court should have given appellant’s prayer for instruction to the effect that, if Andre wrote the check himself for $152.70, the advice of counsel would be no defense, and a refusal to so instruct the jury would have been reversible error if error in this ruling of the court had been assigned in the motion for a new trial. While the appellant made the request for such an instruction, and the court refused to grant it, and appellant’s exceptions were duly noted, she failed to bring forward her exceptions to the ruling in the assignment of error in her motion for a new trial... Therefore such exceptions to the ruling of the court will be treated here as abandoned.

3. The court erred in excluding the testimony of the witness Lemmer to the effect that, in a conversation with the appellee concerning the case of State of Aricansas against appellant, tlie appellee,' in speaking of the alleged forged check, said to witness that “he gave a certain man in this town a check for $52.70 and his Grod d-• wife raised it $100, and asked him what was her object in raising it, and he didn’t know, unless her husband put her up to it.” It occurs to us, in the connection in which it was elicited, this testimony shows that the remarks of' appellee clearly had reference to the appellant, and was competent on the issue as to whether or not the prosecution, if instituted by the appellee, was prompted by malice. Ramsey v. Flowers, 72 Ark. 316; see also Goodman v. Cline, 104 S. E. 729; Read v. Lindley, 240 S. W. 351.

We find no other reversible error, but for this error the judgment is reversed and the cause remanded for a new trial.


author: Hart, J.,

text:
    Missouri Pacific Railroad Company v. Stein.
    Opinion delivered December 17, 1923.
    1. Railroads — negligence during federal control. — No liability for negligence arising out of the operation of a railroad while under Federal control is imposed on the owner company, and an action for damages therefor cannot be maintained against it for a cause of action arising out of operation while under such control.
    2. Carriers — statements of agent of connecting carrier. — Where plaintiff delivered a box of goods to the Director General of Railroads, but misdirected it, and the box was found after the railroads were returned to the owners, neither conversations between the agents of the carrier in whose custody it was found and the plaintiff, nor the fact that defendant’s claim agent asked plaintiff what he wished done about forwarding the goods, made defendant liable.
    S. Carriers — misdirection of shipment — liability.—Where, during Federal control of defendant railroad, plaintiff made a shipment of goods over defendant’s road but misdirected them, and, after the railroads were returned to their owners, a connecting carrier found them, but never relinquished possession to defendant, and on plaintiff’s refusal to pay freight charges, sold them for nonpayment of the freight charges, defendant was not guilty of negligence, nor liable. 4. Compromise — admissibility op offer. — An offer of compromise, made, while denying liability, did not create any liability.
    Appeal from Sebastian Circuit Court, Port Smith District; John Brizzolara, Judge;
    reversed.
    STATEMENT OF FACTS.
    Benno Stein, doing business as Stein Wholesale Dry Goods Company, brought this suit against the Missouri Pacific Railroad Company and James C. Davis, Agent of the United States Government, under -the Transportation Act of 1920, to recover damages for the alleged loss of a box of dry goods of the value of $620.48.
    The Missouri Pacific Railroad Company denied liability on the ground that the damage occurred while the railroad company was being operated by the Director General of Railroads under authority of an act of Congress. The agent of the United States under the Transportation Act of 1920 denied liability on the ground that the damage to the goods, if any, occurred on account of the negligence of the plaintiff.-
    On the 24th day of January, 1920, the plaintiff delivered to the Director General of Railroads a box of dry goods which he intended to ship to “B. E. Loving, Allen, Oklahoma.” At that time all the railroads in the United States, including the railroad of the Missouri Pacific Railroad Company and that of the Kansas City Southern Railroad Company, were operated by the United States. The plaintiff, instead of marking the box of dry goods, “B. E. Loving, Allen, Oklahoma,” as he intended to do, marked it “B. E. Loving, Loving, Oklahoma.” Loving, Oklahoma, is not situated on a railroad, and the nearest railroad station to it is Bates, a station on the railroad of the Kansas City Southern Railroad Company. The Director General of Railroads caused the box of dry goods to be transported to Bates, Ark., and the agent of the Kansas City Southern Railroad Company at that point mailed the written notice of its arrival to “B. E. Loving, Loving, Oklahoma.” No one came for the box of dry goods, -and on March 1, 1920, when the railroads of the United States were returned to their owners, the box of dry goods was on hand in the station of the Kansas City Southern Railroad Company at Bates, Ark., and was turned' over to that company by the agent of the United States.
    On March 24, 1920, the plaintiff filed a claim for the loss of the box of goods in question with the freight claim agent of the Missouri Pacific Railroad Company. Some time in April, 1920, an agent of the Kansas City Southern Railroad Company saw the box of dry goods in question at its station at Bates, Ark. It was marked “B. E. Loving, Loving, Oklahoma.” The box was opened, and the marks or brands on the goods indicated that the shipper was the plaintiff, doing business at Port Smith, Ark., and that the box of goods was intended to be shipped to “B. E. Loving, Allen, Oklahoma.” The agent of the Kansas City Southern Railroad Company went to Port Smith and talked with Benno Stein. Mr. Stein did not tell him to have the box shipped to B. E. Loving, Allen, Okla. He stated that he had. filed a claim for it against the Missouri Pacific Railroad Company and was going to get his money from that railroad company. He said that he would not have anything to do with the box. Subsequently the Kansas City Southern Railroad Company sold the box of goods for the payment of the freight charges. His testimony in regard to finding the box of dry goods in question at Bates, Ark., was corroborated by other employees of the Kansas City Southern Railroad Company.,
    According to the testimony of Benno Stein and Hiram Mincer, the assistant manager of his firm, they told the representative of the Kansas City Southern Railway Company to ship the goods to “B. E. Loving, Allen, Oklahoma” when they were informed that the box of dry goods was in Bates, Ark., in the possession of the Kansas City Southern Railroad Company. Various letters which passed between the plaintiff and T. S. Walton, freight -claim agent of the Missouri Pacific Bailroad Company, were introduced in evidence, and will be stated or referred to more particularly in a discussion of that branch of the case in our opinion.
    The jury returned a verdict in favor of the agent of the President, but against the defendant, Missouri Pacific Bailroad Company, in the sum of $620.48, with the accrued interest. Judgment was entered on this verdict against the Missouri Pacific Bailroad Company.
    The plaintiff filed a motion for a new trial against the agent of the - United States Government, which the court granted, and that cause is still pending in the circuit court. This appeal is prosecuted alone by the Missouri Pacific Bailroad Company to reverse the judgment against it.

      Thos. B. Pryor -and Vincent M. Miles, for appellant.
    The court should have directed a verdict for defendant. The company was not liable for any act of the agent of the Government in the operation Of the railroads. 256 U. S. 554.

      I. J. Friedman and Daniel Hon, for appellee.
   Hart, J.,

(after stating the facts). It appears from the record that the cause of action arose out of the operation of the railroad of the Missouri Pacific Bailroad Company by the Director General of Bailroads under the Federal Control Act. Therefore it is claimed by the railroad company that it is not liable for the alleged negligence and consequent damage.

It is now finally settled by a decision of the Supreme Court of the United States, which this court has followed, that no liability for negligence arising out of the operation of a railroad by the Director General under the Federal Control Act is imposed upon the owner company, and that an action for damages therefor cannot be maintained against it for a cause of action arising out of the operation of the property of the railroad company under governmental supervision. Mo. Pac. Rd. Co. v. Ault, 256 U. S. 554, and Ark. Cent. Rd. Co. v. Walker, 150 Ark. 514.

It is contended by counsel for the plaintiff, however, that the railroad company is estopped by its conduct from denying liability. It appears that, after the United States returned the railroads to their owners, the plaintiff filed a claim of loss for the box of dry goods in question with T. S. Walton, freight claim agent of the Missouri Pacific Bailroad Company, and that the plaintiff and Walton carried on a correspondence about the claim for about a year. In April, 1920, the agents of the Kansas City Southern Bailroad Company discovered a box of dry goods at its station at Bates, Ark., marked “B. E. Loving, Loving, Oklahoma.” When the box was opened the marks or brands on the goods indicated that the plaintiff was the shipper. The claim agent of the Kansas City Southern Bailroad Company went to Fort Smith and talked with the plaintiff about the box, and told him that it was at Bates, Ark. The claim agent says that the plaintiff told him that he would have nothing to do with the matter, because he had already filed a claim of loss with the Missouri Pacific Bailroad Company and looked to that company for the payment of the box of goods.

On the other hand, the plaintiff and the assistant manager of the plaintiff’s firm testified that they told the claim ageiit of the Kansas City Southern Bailroad Company that the goods should be shipped to “B. E. Loving, Allen, Oklahoma,” and that he would doubtless receive them. In this connection it may be stated that the conversation between the plaintiff and the claim agent of the Kansas City Southern Bailroad Company could not in any manner create liability on the part of the Missouri Pacific Bailroad Company where none existed before.

But it is insisted by counsel for the plaintiff that the Missouri Pacific Bailroad Company is liable under a letter written by its claim agent to the plaintiff on May 21, 1920. In this letter the plaintiff is informed that the railroad company is in receipt of information from the Kansas City Southern Railroad Company that the box of goods in question was at its station at Bates, Ark., having arrived there on February 1,1920, marked “B. E. Loving, Loving, Oklahoma.” The letter concludes with the following: “Advise what disposition you wish made of this shipment as promptly as possible.” On May 24, 1920, the plaintiff answered this letter, and the answer states that the plaintiff had already been informed by a representative of the Kansas City Southern Railroad Company that the box had been located, and that the plaintiff had instructed that railroad company to forward the box to its proper destination. The box was never forwarded by the Kansas City Southern Railroad Company, and never came into the possession of the Missouri Pacific Railroad Company after the United States returned the railroads to their owners. The mere fact that the claim agent of the Missouri Pacific Railroad Company asked the plaintiff what he wished to be done about forwarding the box would not make it liable for the damages which had been suffered by the negligence of the servants of the United States while the railroad was being operated under the Federal Control Act. If the Missouri Pacific Railroad Company had received the goods on its line of railroad and then ■ refused to forward them to their proper destination, there would have been liability on this account. The undisputed facts, however, show that the possession of the goods was never relinquished by the Kansas City Southern Railroad Company. That company refused to forward the goods, or to deliver them to the plaintiff or anyone else, unless the plaintiff would pay the freight charges. This the plaintiff refused to do, and the goods were sold by the Kansas City Southern Railroad Company for the nonpayment of the freight charges. The Missouri Pacific Railroad Company, under these circumstances, was in no wise guilty of negligence in the premises, and there was nothing in its conduct to create liability on its part. There was an offer of compromise made by the claim agent of the Missouri Pacific Railroad Company, but the letter also carried with it a denial of liability. We do not think that the mere fact that the Missouri Pacific Railroad Company endeavored to trace the misdirected bos of goods and to adjust a claim of loss therefor would create liability on its part. -

Therefore, under the undisputed facts as they appear in this record, there was no liability on the part of the Missouri Pacific Railroad Company, and the circuit court should have instructed a verdict in its favor.

For the error in refusing to direct a verdict in favor of the defendant the judgment will be reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    Mifflinburg Bank v. Kuhn.
    Opinion delivered December 17, 1923.
    1. Appeal and error — order granting new trial. — Under Crawford & Moses’ Dig., § 2129, an appeal may be taken to the Supreme Court from an order of the circuit court granting a new trial.
    2. Trial — direction of verdict. — In an action on notes, undisputed evidence that plaintiff bank obtained them for value before maturity, in the usual course of business, without notice of any facts tending .to put the bank on notice of any defense, held to entitle plaintiff to a directed verdict.
    3. Bills and notes — bona fide purchaser. — An indorsee of notes paying $300 for notes of the face value of $750 may be a bona fide holder, as' it is only where the consideration is nominal that the inadequacy thereof constitutes bad faith.
    Appeal from Crittenden Circuit Court; W. W. Bandy, Judge;
    reversed.

      Cooley & Adams, for appellant.
    In a clear case of abuse of discretion in a trial court in granting a motion for new trial, this court will correct the error. 20 Ene. Proc., pp. 643-645; 94 Ark. 566; 54 Ark. 364; 98 Ark. 304. Any errors which might be ground for a new trial must be set ont in the motion for new trial. 20 Ene. Proc., p. 423; 73 Ark. 453; 101 Ark. 120; 105 Ark. 353; 108 Ark. 425; 27 Ark. 506. The motion filed contains no such ground. If reasonable minds cannot draw different conclusions from the testimony, it becomes the court’s duty to direct a verdict. 104 Ark. 267; 97 Ark. 438; 103 Ark. 401; 111 Ark. 309. See also J ones, Com. on Ev., vol. 1, § 174, pp. 906-908; 8 Am. St. Bep. 855; 18 Am. St. Bep. 381; 17'Am. St. Bep. 281; 88 Ark. 510; 57 Ark. 461; 39 Ark. 413; 79 Ark. 608. Appellant was a holder of the notes for value. The burden was on the defendant to show fraud or bad faith. 139 U. S. 166; 78 C. C. A. 581; 113 Ark. 120; 104 Ark. 388. Any substantial consideration paid for the notes is sufficient to make the plaintiff a bona fide holder. 8 C J., pp. 508-509, § 717; 90 Ark. 93; 92 Ark. 248; 118 Ark. 229. To show bad faith, it should have been shown that the appellant had1 some notice of a defect or infirmity in the notes. 94 Ark. 100; 121 Ark. 171; 79 Ark. 149. ¡Where there is nothing on the face of the paper itself to show an infirmity, the purchaser is not called upon to make inquiry concerning the execution to avert the imputation of bad faith. 8 C. J. 499, § 709;. 113 Ark. 72; 61 Ark. 81; see also 148 Ark. 66.

      Caraiuay é Isom, for appellee.
    There was sufficient evidence to submit the issues to the jury, and this should have been done. 121 Ark. 250; 218 S. W. 843; 103 Ark. 401; 57 Ark. 461. The discount offered on the paper was in itself enough to put any one on notice of the fraudulent nature of the business and the manner of procuring the notes in suit. 121 Ark. 171. Where there is any evidence to show that the plaintiff was not an innocent purchaser, the question should be submitted to the jury. 218 S. W. 843. Trial courts have large discretion in matters of granting new trial. 94 Ark. 566; 98 Ark. 304.
   Hart, J.

The Mifflinburg Bank, a corporation organized under the laws of the State of Pennsylvania, brought suit in the circuit court against R. T. Kuhn, trading as R. T. Kuhn & Co., in Crittenden County, Arkansas, to recover upon four promissory notes for the sum of $187.50 each.

The notes were dated March 21, 1921, payable at the Crittenden County Bank & Trust Company of Marion, Ark., to the order of the Farmers’ Medicated Stock Salt Company, and due respectively on July 1, August 1, September 1, and October 1, after date.. The notes were signed “R. T. Kuhn & Co., by R. T. Kuhn,” and were indorsed by the Farmers’ Medicated Stock Salt Company and the Federal Stock Food Company.

John W. Lincoln, the cashier of the Mifflinburg Bank, was the principal witness for the plaintiff. According to his testimony, these four notes were discounted by his bank on March 29, 1921. The notes were indorsed by the Farmers’ Medicated Stock Salt Company and the Federal Stock Food Company. The notes were assigned to the bank for value before maturity, in due course of business, without notice of any defect, infirmity or defense of any kind' on the part of the maker of the notes.. The Mifflinburg Bank paid $300 for the notes, and had no knowledge or notice of any fraudulent methods pursued in procuring the notes, or any notes such as these by the Farmers’ Medicated Stock Salt Company or the Federal Stock Food Company. The proceeds from the sale of the notes was placed to the credit of the Federal Stock Food Company, and used by it in the ordinary course of business. No part of the notes has been paid, and the face value of the notes, with interest and protest fees, is due the bank.

On cross-examination the cashier stated that his bank had had relations with the Farmers’ Medicated Stock Salt Como any during the past four years, while he has been cashier of the bank. The witness did not recall, any suits on hand by the bank for the collection of similar notes. He had no other notes against this defendant than those in this suit. All the notes purchased by the bank from the Farmers’ Medicated Stock Salt Company were in the usual course of business, and plaintiff, in purchasing the notes sued on, was governed largely by the financial reports concerning the maker. No officer or director of the bank is in any way interested in the Farmers’ Medicated Stock Salt Company or in the Federal Stock Food Company. None of these two last named companies are interestedv financially in the plaintiff bank. The funds arising from the sale of the notes sued on to' the bank were immediately used by the Federal Stock Food Company in the ordinary course of its business.

C. H. Could, manager of the Federal Stock Food Company and the Farmers’ Medicated Stock Salt Company, was a witness for the plaintiff. According to his testimony, the Farmers’ Medicated Stock Salt Company received an order for $750 worth of its products from the defendant on March 21, 1921, and the notes sued on were given for the purchase price. Shipment was made to the defendant in the regular way on March 28, 1921, and a bill of lading was sent to him on the same day. On the same day each of the notes sued on was transferred and assigned for value to the plaintiff bank. There was no knowledge on the part of the plaintiff or'its agents of any defense to the notes.' No fraudulent methods were used by the Farmers’ Medicated Stock Salt Company in taking orders and notes. The goods were sold successfully by other agepts of the Farmers’ Medicated Stock Salt Company.

On cross-examination he stated that the notes were assigned in order to obtain current funds. The plaintiff has been accenting similar notes from the Farmers’ Medicated Stock Salt Company for three or four years. The notes sued on is the first instance of any htigation in the collection of the notes assigned by the Farmers’ Medicated Stock Salt Company to the plaintiff bank. The witness had been the manager of the Farmers’ Medicated Stock Salt Company and the Federal Stock Food Company since December, 1921. He owns no interest or stock in the Farmers’ Medicated Stock Salt Company or the Federal Stock Food Company. The former company manufactures stock salt, composed of salt, copperas, epsom salts, and charcoal, and the goods are being successfully sold over a large part of the United States. The notes were sold to obtain funds to meet current expenses in running the business.

According to the testimony of the defendant, when the feed arrived the sacks were all burst open, and there contained a direction in them to the effect that, unless the product was fed with blood meal, flax meal, bone meal, etc., the indemnity agreement of the plaintiff would not be available. The defendant never took the shipment out of the car, and had nothing to do with it, because the product did not come up to the representations made by the seller. His testimony was corroborated by that of an employee. The defendant offered to send the product back, and the company refused to take it.

On motion of the plaintiff, the court instructed the jury to find for it in the sum of $768.60, with interest from the maturity of the notes sued on. Judgment was entered from the verdict- for the principal, interest and protest fees, amounting in the aggregate to the sum of $832.71. on the same day, which was the 5th of December, 1922. ■ -I H

On the 7th day of December, 1922, the defendant filed a motion for a new trial, which was granted by the court on the same day, and the judgment in favor of the plaintiff was set aside.

The plaintiff then made a motion to set aside the judgment granting the defendant a new trial, and the court refused to-grant the same. Whereupon the plaintiff prayed an appeal to the Supreme Court, and filed its notice of appeal and stipulations for a judgment absolute, as required by subdivision 2 of § 2129 of Crawford & Moses’ Digest.

This section of the Digest makes the order of the circuit court granting a new trial a final judgment, from which an appeal to the Supreme Court may be taken, upon compliance with the statute. First National Bank of Newark v. People’s National Bank of Springfield, 97 Ark. 15; Bush v. Barksdale, 122 Ark. 262, and Etcherson v. Hamil, 131 Ark. 87.

In construing this statute, in Johnson v. Mantooth, 120 Ark. 99, this court held that the action of the trial court in granting a new trial on the ground that the verdict is not supported by the evidence, is not reviewable on appeal, where it appears that there is a substantial conflict in the testimony.

In the application of the rule there announced to the' case at bar, the sole issue is whether or not the court erred in setting aside its first judgment, based on an instructed verdict in favor of the plaintiff, and granting the defendant a new trial.

This presents the issue of whether the plaintiff is entitled to a directed verdict in its favor upon the testimony presented in the record. "We are of the opinion that the undisputed evidence shows that the plaintiff was entitled to a directed verdict. No part of the notes had been paid, and it is established by the testimony of the cashier of the bank and the manager of the Farmers’ Medicated Stock Salt Company, to which the notes were given, that the bank paid &300 for the four notes, and that the notes were transferred to it before maturity in the usual course of business. Both of these witnesses testified that the bank had no notice of any facts tending to put it on notice that the maker of the notes had any defense thereto.

It appears from the record that the Farmers’ Medicated Stock Salt Company and the Federal Stock Food Company were the' same, and that they had been doing business with the bank for three or four years. They would discount the notes with the bank which thev received from customers to whom they had sold their products. The money received thereby would- be used in conducting the current business of the company. There were no suits on the notes or other facts which would lead the bank to believe that the makers of the notes had any defense to them.

It is next contended that the fact that the consideration for the assignment of the notes is less than their face value shows that the purchase of the notes by the bank was in bad faith. This, court has held that, where there has been a substantial price paid by the purchaser for a negotiable instrument, and he is in other respects a bona fide holder thereof, then the fact that it was purchased at a sum less than its face value is not alone sufficient to make him a purchaser in bad faith. Hogg v. Thurman, 90 Ark. 93; 17 Ann. Cas. 383, and case note. It is only where the consideration is nominal that the inadequacy of the consideration itself constitutes bad faith on the part of the purchaser. In the case at bar the face value of the notes amounted to $750, and the bank paid $300 for them. No other fact appearing tending to show bad faith on the part of the bank in purchasing the notes, it follows that the court erred in setting aside a directed verdict in its favor. There are no facts or circumstances in this case tending to impute bad faith on the part of the bank in the purchase of the notes, as was the case in Holland Banking Co. v. Booth, 121 Ark. 171.

Therefore the court erred in granting a new trial to the defendant, and the judgment will be reentered here in favor of the plaintiff in the sum of $832.71, with interest from the date of said judgment. It is so ordered.


author: Smith, J.

text:
    Fields v. Kline.
    Opinion delivered December 17, 1923.
    1. Wills — right of widow to dispose of realty. — A will giving the testator’s land and personal property to his -widow during widowhood “with the right to use and manage said property in any manner she may choose, for her support and maintenance,” with remainder over to certain children of the testator, did not vest the widow with a fee in the land nor the right to dispose of it,, so as to defeat the remaindermen’s rights.
    2. Wills — testator’s intention. — The courts must gather the testator’s intention from the language employed by him.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      J. A. Comer and Cohn, Clayton S Cohn, for appellant.
    For the purpose of construing a will, the court will read all its provisions and give it such construction as appears to have been the intention of the testator. 151 Ark. 189; 141 Ark. 484; 115 Ark. 400; 112 Ark. 527; 104 Ark. 439; 98 Ark. 553. The will in question, when read as a whole, means that the widow should take the title to the property with the right to dispose of it for her maintenance, or, if she did not dispose of it, then the remaining part, at her remarriage or death, to descend in the manner specified. Where a life estate is conveyed, with the rigid to use the property for support or maintenance, with a residuary clause that the balance that remains, or words of like import, should go to other legatees, it is generally held that the life tenant is given, by implication, the right to dispose of the fee. ' 140 Ga. 101; 111 Atl. 506; 103 Me. 17; 99 Me. 334; 128 Iowa 750; 132 N. E. 761; 110 Atl. 238; 163 Ky. 442; 205 S. W. 1141.

      McNalley, Kitchen & Karris, for. appellee.
    The will granted only a life estate to the widow, with power, perhaps, to sell or dispose of perishable and personal property, and falls within the rule declared in 51 Ark. 61; 52 Ark. 113; 146 Ark. 443. ' The deed by the widow conveyed only her life estate.
   Smith, J.

The appeal in this case involves the construction of the following will:

“I devise and bequeath to my wife, Martha Susan Hill, in lieu of her rights of dower and homestead, all my property, both real and personal, to have and hold the same as long as she shall remain my widow, with the right to use and manage said property in any manner she may choose, for her support and maintenance. In case my said wife Martha should remarry, she shall only retain her dower and homestead interest under the law, from what may be' left of said property at the time of said remarriage. In case of the remarriage of my said wife Martha, and after the taking of her dower and homestead from my said estate, I devise and bequeath the residue of my said property as follows: To my daughter, Hattie Blackwood, the sum of one dollar, and after the said one dollar shall be paid to my said daughter Hattie, the remainder of my said property to go, share and share alike, to the rest of my children, Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline.
“In case my said wife should not remarry and should die my widow, then I bequeath the residue of my property remaining at her death as follows, to wit: One dollar to my daughter, Hattie Blackwood, if living, and, if she be dead, one dollar to the heirs of Hattie Blackwood, and, after the payment of said one dollar, the residue, share and share alike, to the remainder of my children — Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline — or to the heirs, if any be dead.
“In case my said wife, at my death, should elect to take of my property under the law, then the residue of my property I bequeath as follows, to-wit: One dollar to my daughter, Hattie Blackwood, or to her heirs if she be dead, and the residue of my property, after payment of the said one dollar, I bequeath to the remainder of my children, Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline, share and share alike, or to the heirs of any of said children as may be dead. ’

Appellant, who was the plaintiff below, claims under a deed from the testator’s widow wherein the fee title was conveyed. Appellees, the defendants below, are the heirs-at-law of the testator, and claim that the widow took only a life estate in the lands. The deed from the widow to appellant’s grantor was a plain warranty deed, and contained no recitation that the land was conveyed for the purpose of raising’ funds with which to support herself, under any power or right given under the will authorizing her so to do.

The court below sustained a demurrer to the complaint, in which the plaintiff undertook to have the title to the land quieted in himself; and this action is defended upon the ground that the will did not convey a fee title to the land, nor grant to the widow the right to dispose of the fee in the land so as to defeat the rights of the testator’s children, the remaindermen.

We concur in this view, as, in our opinion, the widow was given only a life estate in the land, with the right to use and manage the same for the purpose of providing support and maintenance for herself. The right to dispose of the lands is the only question involved on this appeal.

, In our opinion, the will under review is so nearly like the one construed in the case of Patty v. Goolsby, 51 Ark. 61, that'it is to be controlled by the decision in that case. It was there said (to quote a syllabus) as follows: “By the first item of his will a testator gave ‘his entire estate,’ real and personal, to his wife, ‘during- her natural life,’ or until she might ‘think proper to marry, with full power to sell and dispose of such property as she might think proper.’ The second and third items are as follows: 2. ‘It is my desire that, at the death of my said wife, all my worldly effects be equally divided between my children.’ 3. ‘If my wife should marry, it is my will and desire that my estate of all kinds whatsoever be equally divided between my wife and children, thereby each one to share each and each alike.’ By other provisions the wife was made executrix and charged with the payment of the testator’s debts and the education of his children out of the estate. Reid: (1) That the testator gave to his wife a life estate in the real property, with remainder in fee to his children. (2) That while, under the power contained in the will, the wife could dispose absolutely of the personal property of the testator, she could sell only her life interest in his real estate.” 1

It is the contention of appellant that the will in question grants a life estate to the widow, with power to dispose of the fee for purposes of her own maintenance; that'a person given a life estate by will may also, in the same instrument, be granted the power of disposition of the fee.

If such a power is here conferred, it must be found in the first paragraph, for the second and third paragraphs contemplate the contingency of the widow remarrying or of renouncing the will, and provides the disposition to be made of the estate in either of those events, and clearly contemplates there will be an estate undisposed of if it be so divided.

It is the first paragraph of the will .which undertakes to define the estate granted the widow. In it the testator bequeaths to her “all my property, both real and personal, to have and hold the same as long as she shall remain my widow, with the right to use and manage said property in any manner she may choose, for her support and maintenance.”

It is significant that, while the language quoted covers the entire estate, the power given is to “use and manage,” and this during the period of widowhood. The estate consisted of both, real and personal property, and, no doubt, the testator intended to give the widow the right to consume the personal property, for such property, as is pointed out in Patty v. Goolsby, supra, is ordinarily consumed in its use. But, in defining the power granted, the testator employed the word “manage” also, which was no doubt intended to refer to the real estate, which would not be consumed by use. It is significant also that the testator did not use the words “sell and convey,” or other words of similar import, which are usually employed when the power of sale is intended to be granted, but employed only,the words “use and manage.”

Appellant cites and relies upon the case of Archer v. Palmer, 112 Ark. 527. There a testator devised his widow an estate for life only, but he added power to the life tenant to convey the land absolutely, and we held that, because of the grant of this power, the life tenant might defeat the estate of the remaindermen by the exercise of the power. We there distinguished the facts of that case from those in the case of Patty v. Goolsby, supra, and, in doing so, said: “It will be noted that the power of disposition in that case (Patty v. Goolsby) was given in the same clause as that which devised to her the property for her natural life, and in immediate connection with the devise of the life estate, thereby indicating that the power of disposal be limited to the life estate. In other words, the court held that, by the terms of the will, the widow took a life estate, and that, since the power of disposition was annexed to the devise of the life estate,'its presence did not give the widow an unlimited power of disposition, but was restricted to the life estate.” So here, the language which is said to confer a power of sale appears in the same paragraph which grants the estate, and thus apparently refers to the estate there granted, which is the right to use and manage all the property, both Real and personal, during widowhood.

In the will under review there was no provision that the widow might dispose of the property as she saw fit — the power granted is to use and manage during her widowhood, and it appears in the clause which grants the interest itself, and, while that interest (except in the contingencies provided against in the second and third paragraphs) is all the property, both real and personal, the power granted is to use and manage that interest, and not to sell or convey.

Counsel cite and review a number of our cases, as well as a number from other jurisdictions, which construe wills more or less similar to the one under review; but no useful purpose would be served in reviewing those cases and pointing out the differences in the wills construed which induced the courts construing them to hold that the power of sale existed in some cases, but did not exist in others. It was the purpose of the court in each case to ascertain the intention of the testator, and that was gathered from the language employed by him. So here, we must gather the intention of the testator from the language which he has employed, and we have concluded that the power to sell the fee was not granted the widow, and the decree of the court below, based upon that construction of the will, is affirmed.


author: Humphreys, J.

text:
    Martin v. State.
    Opinion delivered December 17, 1923.
    1. Criminal law — former jeopardy — discharge of jury. — Discharge of a jury, after conclusion of the opening statement of the prosecuting attorney, when one of the jurors announced that he was a member of the grand jury that returned the indictment against defendant, did not support a plea of former jeopardy; the action of the court being necessary in the administration of justice.
    2. Criminal law — instruction sufficiently covered. — In a prosecution for murder, no error was committed in refusing defendant’s instruction that mere suspicion of an offense was not sufficient to justify a conviction; the requested instruction being substantially covered by the court’s instruction on reasonable doubt.
    3. Homicide — sufficiency of evidence. — In a prosecution ' for murder, evidence held to sustain a conviction of murder in the second degree.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Gustave Jones and Fred M. Piclcens, for appellant.

      J. S. TJtley, Attorney General, JohnL. Garter, Assist■ant, for appellee.
   Humphreys, J.

Appellant was indicted for murder in the first degree, in the circuit court of Jackson County, and, when arraigned, entered a plea of not guilty to the charge. He was convicted of murder in the second degree, and adjudged to serve a term of five years in the State Penitentiary as punishment therefor. Prom the judgment of conviction he has prosecuted an appeal to this court. At the conclusion of the opening statement of the prosecuting attorney as to the issues involved and what evidence the State would introduce in support of the charge, B. P. Hartwick, one of the jurors, announced that he was a member of the grand jury that returned the indictment in the case. Thereupon the court gave appellant an opportunity to challenge the juror for cause, which he declined to do. The court then discharged the jury, and appellant immediately entered a plea of former jeopardy, and moved the court for a discharge. The court overruled the motion, and impaneled another jury to try the case, over the objection and exception of appellant.

Appellant first contends for a reversal of the judgment upon the ground that the court erred in overruling the motion. Not so, for a necessity in the administration of justice had arisen demanding action on the part of the. court. It became the duty of the court to safeguard the right of appellant to a trial by an impartial jury, and also to protect the right of the public to test the guilt or innocence of one charged with crime hy jury trial. This court is committed to the doctrine that- the discharge of a jury and impaneling of another in a situation of this kind does not constitute jeopardy. Franklin v. State, 149 Ark. 546, and cases cited therein in support of the rule. The rule is based upon and grows out of the necessity of the situation.

Appellant next contends for a reversal of the judgment because the court refused to give, at his request, the following instruction: "Mere suspicion of the commission of an offense is not sufficient. What the law requires is proof, fully satisfying your minds and consciences of the defendant’s guilt of the offense charged.’’ The requested instruction was substantially covered by the court’s instruction No. 3, upon reasonable doubt, which is as follows:

"By ‘beyond a reasonable doubt’ is meant that the evidence of the defendant’s guilt must be clear and convincing, fully satisfying your minds and consciences. A mere imaginary, possible or captious doubt, however, is not a reasonable doubt. Such a doubt as the law contemplates as a reasonable doubt is a rational doubt, arising* from the testimony and circumstances presented by the evidence in the case.”

Appellee’s last contention for a reversal of the judgment is that the verdict is without evidence under the law to support it. The argument is made that the undisputed evidence showed that appellant shot and killed John Hall in necessary self-defense. It is true. that appellant and the witnesses introduced by him testified that John Hall was reaching for and advancing upon appellant, with an open knife in his left hand, at the time appellant shot and killed him, but there was evidence introduced by the State tending to show that deceased did not own a knife, and that he was right-handed. One of appellant’s witnesses admitted, on cross-examination, that Hall was six feet from appellant when he began to shoot. The testimony also showed that the deceased was shot above the heart, through the heart, in the leg above the knee, and in the shin. Appellant shot at Hall seven times. He oiled his pistol the morning before the crime occurred. The jury may have drawn an inference from these facts and other circumstances leading up to the affray, needless to mention, that the killing was unnecessary. '

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Parker v. Bodcaw Bank.
    Opinion delivered December 24, 1923.
    1. Appeal and error — final decrees. — A decree foreclosing a mortgage and a later decree confirming the foreclosure sale were both final and appealable.
    2. Appeal and error — time for appealing. — Where a decree foreclosing a mortgage was rendered on September 22, 1922, and a decree confirming the sale on December 21, 1922, an appeal perfected on March 29, 1923, was too late to bring up for review the decree of September 22, 1922.'
    3. Appeal and error — matters for review. — Where, in an appeal from a decree confirming a foreclosure sale, the abstract showed that there were exceptions to the confirmation of the sale, but the grounds were not shown nor any argument made to support them, the decree must foe affirmed.
    Appeal from Columbia Chancery Court; J. 7. Stevens, Chancellor;
    affirmed.

      Joe Joiner, for appellant.

      Wade Kitchens, for appellee.
   McCulloch, C. J.

Appellee instituted' this action in the chancery court of Columbia County to recover the amount of certain promissory notes executed by appellants, and to foreclose a mortgage on land given as security for said notes. Appellants answered, and filed a cross-complaint setting forth claim for damages in an amount sufficient to extinguish appellee’s debt if the counter-claim be sustained. Final decree was rendered by the court on September 22, 1922, in favor of appellee against appellants for the recovery of said debt, and for the foreclosure of the mortgage, and dismissing the cross-complaint of appellants for want of equity. There was a sale of the land by the court’s commissioner, and on December 21, 1922, the sale came on for confirmation, and the court overruled the exceptions of appellants and confirmed the sale.

The appeal was not perfected by the filing of the transcript in this court until March 29, 1923, which was too late to bring up for review the original decree of Sentember 22, 1922. On motion of appellee we have heretofore dismissed the appeal as to the first decree, leaving only the appeal from the hist decree, which confirmed the sale.

The original decree foreclosing the mortgage was final and appealable, and the later decree confirming the sale was also final, from which an appeal could be prosecuted. Cooper v. Ryan, 73 Ark. 37.

Appellants have failed to abstract the record with respect to the proceedings before the court when the sale came up for confirmation, therefore we have nothing before us to decide as to that feature of the record. The abstract shows that there were exceptions to the confirmation, but the grounds of the exceptions are not shown, nor is there an argument made in support of them.

The decree confirming the sale is therefore affirmed.


text:
    Pollard v. Reisinger.
    Opinion delivered December 24, 1923.
    1. Corporations — surrender op franchise. — The attempted surrender of a corporate charter by virtue of a resolution adopted -at a special meeting, of which one of the stockholders had no notice and at which he was not present, was void.
    2. Corporations — liability of directors. — In the absence of fraud, the directors of an insolvent corporation are not personally liable for preferring one creditor over another.
    3. Corporations — liability of directors — false certificate.— Where the owner of land on which a cotton gin and sawmill were located acquiesced in their being treated as her husband’s personal property and being turned over by him in payment of his subscription to the capital stock of a corporation, creditors of the corporation cannot hold the directors of such corporation liable as for having falsely certified that ®ueh stock was paid up.
    4. Corporations — payment of stock in personal property. — Where personal property had a cash value equal to the amount of capital stock of a corporation issued therefor, and was accepted in payment therefor by the stockholders and directors of the corporation, it was in full payment therefor.

      Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Gautney £ Dudley, for appellant.
    1. The attempted dissolution of the corporation was void, because all of the stockholders were not notified. 152 Ark. 271. Its assets therefore, the corporation being insolvent, became a trust fund in the hands of Beisinger for the benefit of creditors.
    2. The directors filed a false certificate, showing that the capital stock was paid, when, in fact, Beisinger failed to pay $4,600 thereof. C. & M. Digest, § 1711, 1730; 92 Ark. 416; 129 Ark. 416; 3 A. S. B. 797; 46 Penn. St., 48; 97 Ark. 522.
    3. The uncontradicted ‘evidence shows that" the gin and mill were upon the farm owned by Beisinger’s wife, and the burden of proof was on him to show that he placed these fixtures upon the realty with the agreement that they could be removed at the end of the lease. 120 Ark. 252; 95 Ark. 268.

      L. P. Berry and B. V. Wheeler, for appellee.
    1. The burden was on the appellant to prove the allegations of his complaint, and, as to the allegations of fraud, the burden was on him to prove it by clear and satisfactory evidence. 92 Ark. 509, 122 S. W. 649.
    . 2. The gin and mill belonged to Beisinger. As to the rule governing “fixtures,” whether they are a part of the realty or to be treated -as personalty and removable, see 56 Ark. 55, 19 S. W. 108; Ewell, Fixtures, p. 22; 95 Ark. 268, 129 S. W.'543; 26 C. J. 703; 74 Miss. 450. There was no proof that the gin and mill were not treated as trade fixtures, removable by the tenant. 95 Ark. 268; 98 Ark. 597.
    3. In the absence of fraud, the directors of a corporation are not personally liable for preferring one creditor over another. 95 Ark. 124.
   Wood, J.

This action was instituted by the appellant against the F. W. Beisinger Company, a corporation, F. W. Beisinger. J. D. Elliott and W. W. Watson, to recover the balance cine upon a promissory note. Service was had upon the Reisinger Company, Reisinger and Watson, but no service was had upon Elliott. The complaint alleged in substance that the corporation was indebted to the appellant in the snm of $1,500, evidenced by promissory note executed May 11, 1920, and due November 15, 1920, which note was signed by W. W.' Watson as surety. It was alleged that the corporation was insolvent; that the stockholders, by resolution, attempted to dissolve the corporation; that such dissolution was void; that the stockholders had appropriated to their own use the assets of the corporation, and without applying to the chancery court for an order distributing the same; that the charter was surrendered for the purpose of hindering, delaying and defrauding the creditors of the corporation; that the capital stock of the corporation, to-wit, $25,000, was divided into one thousand shares of $25 each, of which four hundred shares were subscribed by Reisinger, four hundred by Elliott, and two hundred by Watson; that no part of the capital stock had been paid, and that the stockholders mentioned had sold all of the property of the corporation with intent to cheat, hinder and' delay its creditors.

Reisinger alone answered, and in his answer admitted the insolvency of the corporation and that it had surrendered its charter; that the stock was owned in the manner set forth in the complaint, and that the assets had been sold. He denied all the other allegations of the complaint. He pleaded ultra vires, and, by way of cross-complaint, alleged that the appellant was indebted to the corporation in the sum of $800, which, he alleged, was paid to him without authority by Watson and Elliott, and was a fraud upon the rights of the cross-complainant and the other creditors of the corporation. He prayed that he have judgment for this sum for himself and all other creditors of the corporation.

The facts of the case which the preponderance of the evidence tended to prove, and the law applicable to those facts, are well stated in what purports to be a memorándum opinion of the trial court, which counsel for appellee have appended to their brief, and which is as follows:

“F. W. Reisinger, J. D. Elliott and W. W. Watson, in the early part of 1920, organized the F. W. Reisinger Company, a corporation, for the purpose of farming certain lands owned by Mrs. F. W. Reisinger, and of carrying on a general farming operation in connection therewith. The capital stock of $25,000 was all furnished by Mr. Reisinger, who took personal notes of Elliott for $10,000 and of Watson for $5,000 to himself for their shares. The capital consisted of about $18,000 in property and the balance in cash. The company met with reverses during 1920, and that fall, in payment of the $12,500 rent owed Mrs. Reisinger, delivered to her the personal property of the corporation, then valued at $8,900, for which she released her landlord’s lien on the cotton crop of greater value, which was turned over to a trustee for distribution pro rata among the creditors of the corporation. For some reason, not explained by the evidence, plaintiff did not share in this distribution. In June, 1921, an attempt was made by Mr. Reisinger and Mr. Watson to dissolve the corporation, but Mr. Elliott, who had forty per cent, of the stock, had no notice of this procedure.
“Plaintiff Pollard in May, 1920, sold to the corporation for $2,100 ($600' cash and a note of $1,500) the timber on SWt4 section 5, T. 9 N. R. 7 E. He was later paid $200 more, leaving a balance of $1,300, for which he sued the corporation and the stockholders.
“It is contended for plaintiff that the attempted dissolution of the corporation was void because Elliott was not notified, and this is true. Quinn v. Linden, 152 Ark. 271.
“Plaintiff also claims that defendant Reisinger wrongfully appropriated the assets of the corporation when he turned over to his wife everything but the crop, and that a creditor can proceed against any stockholder appropriating to his own use the assets of an insolvent corporation. Arlington Hotel Co. v. Rector, 124 Ark. 90; Jones v. Arkansas, etc., Co., 38 Ark. 17. This is a correct statement of the law, but it lias no application here, because Mr. Reisinger is not shown to have received any of the corporation’s property or to have used any of it to his own advantage. His wife was a bona fide creditor of the company. To such extent as she or any other creditor may have received an unlawful preference, plaintiff had a remedy as prescribed by §§ 1798 to 1801 of Crawford & Moses’ Digest. But, in the absence of fraud — and none is shown here — the directors of a corporation are not personally liable for preferring one creditor over another. Wait v. McKee, 95 Ark. 124-129.
“The next contention is that the defendants are liable because there was a false certificate of incorporation filed, in that the $25,000 capital was not paid up, as alleged. This is based on the theory that the cotton gin and1 sawmill were part of Mrs. Reisinger’s realty and could not have been turned over to the corporation by Mr. Reisinger as part of the assets, and O’Neill v. Eagle Generator Co., 92 Ark. 416, is cited. There is no proof, however, that these were not treated as trade fixtures which could -be removed by the tenant, as was authorized by Field v. Morris, 95 Ark. 268, and National Bank v. Coal Co., 98 Ark. 597; and the fact that Mrs. Reisinger accepted the gin and sawmill as part payment of her 1920 rent indicates that she was not then claiming these fixtures as her own. Plaintiff has failed to establish the falsity of the certificate in this particular.
“Another ground set forth by plaintiff is that the notes of Watson and Elliott were surrendered without consideration, and that, as a creditor, he can compel their payment to such extent as may be necessary to cover his debt. Jones v. Dodge, 97 Ark. 248. The facts, however, are that they were never indebted to the corporation on- these notes, which were given to Mr. Reisinger personally; and, so far as the corporation was concerned, their stock was fully paid for. Such disposition as was made of -these notes between Mr. Reisinger, Mr. Elliott and Mr. Watson is no concern of the corporation’s creditors. It follows that no ground of personal liability against the corporators is shown, and the plaintiff, having failed to take action against the preference given the other creditors within the time prescribed by law, there is no relief that can be given him in this action except a decree against the defunct corporation.”

The undisputed facts show that the capital stock was $25,000. Eeisinger testified that this capital stock was paid by him in the sum of $6,621.50' cash and the balance of $18,371.50 in personal property, which he itemized. He stated that he took the notes of Elliott and Watson for their respective shares of stock and paid up the capital stock himself, as above stated. Learned counsel for appellant contend that this was a fraudulent transaction, and they rely upon the case of Ford Hardwood Lumber Company v. Clement, 97 Ark. 522, to sustain their contention, and quote therefrom as follows: “Ford was liable for the amount of the judgment against the corporation. The corporation was insolvent. It was not shown that the corporation had any assets, and it owed, besides appellee’s claim, more than $3,000. The capital stock was $30,000. Ford had subscribed for $29,600 of this, for which he claimed, to have paid by transferring real estate and other property to the corporation. But there is no evidence that any such transfer was ever made. Ford, as president of the corporation, could not accept property for himself in payment of his stock, without express authority to do so *#rom its managing board. The directors had not given him any such authority. Besides, the evidence does not warrant the conclusion that Ford transferred any property to the corporation.”

The case is not authority for appellant’s contention here, for the reason, as shown in that part of the opinion quoted, that there was no transfer in that- case of any property by the president to the corporation in payment 'of the stock. In this case, according to the undisputed evidence, the property which Eeisinger used tó pay up the capital stock, in addition to the cash payment made by him, was personal property, and same was transferred and possession thereof delivered to the corporation, and this was done by consent of the other stockholders and directors. These stockholders and directors also testified to the value of the personal property, showing that it had a cash value equal to the balance of the subscription to the capital stock.

After carefully reading all of the testimony, as set forth in the record, we are convinced that the findings and judgment of the trial court, as reflected by the memorandum opinion of the chancellor, are in all things correct. The decree is affirmed.