text:
    Cole v. Shelton.
    Opinion delivered October 26, 1925.
    1. Wills — signature by husband and wipe. — A will signad by both husband and -wife, disposing of property belonging exclusively to the husband, in which the wife had only a homestead and dower interest, is a valid will of the husband, as though the wife had not signed it.
    2. Wills — delay in probating. — Where property became vested by the terms of a will, delay for five years in probating it did not render its provisions void.
    3. Wills — probate—right to object. — One who has no interest in property devised has no right to object to the probate of a will.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This is an appeal from a judgment of the circuit court reversing a judgment of the probate court refusing to admit to probate a will executed by Samuel Shelton, and ordering that the judgment of the- circuit court be certified to the probate court to the end that said will may be duly probated as provided by law.
    Jonas Shelton offered for probate an instrument purporting to be the will of his father, Samuel Shelton, and his mother, 'Catherine Shelton. By the terms of the will a cow is devised to Susie White, their daughter, as her share of the estate. All the remainder of the estate, both real and personal, is devised to Jonas Shelton subject to certain conditions not necessary to state in determining the issues raised by the appeal. The will was executed on the 27th day of July, 1908, and Jonas Shelton was named as executor in the will. It was agreed that the will was executed in proper form and is not a forgery.
    The record shows that Samuel Shelton was the owner 'of eighty acres of land at the time of his death in September, 1917. Catherine Shelton had no interest in the land, except her dower and homestead as the wife of Samuel Shelton. On July 18, 1919, Susie White, a daughter of Samuel 'Shelton and Catherine Shelton, executed a deed to L. L. Cole to a one-half interest in said land. Catherine Shelton died in 'September, 1922. Jonas Shelton paid to his mother the rent on said land from the time of his father’s death until his mother died. After the death of his mother, Jonas Shelton offered the will for probate, and L. L. Cole objected to its probate, claiming that the will was void on its face as being the joint will of 'Samuel Shelton and Catherine Shelton, and claimed an undivided one-half interest in the land devised by the will under a deed executed to him by Susie "White. The probate .court sustained his contention and denied the admission of the will to probate.
    Upon appeal to the circuit court, the case was tried upon an agreed statement of facts substantially as stated above. The circuit court found that the instrument in question was the last will and testament of Samuel Shelton, deceased, and that it should be' admitted to probate as such.
    It was therefore considered and adjudged that the judgment of the probate court be reversed, and that the judgment of the circuit court be certified to the probate court to the end that said will might be duly probated according to law.
    The case is here on appeal.

      Roy D. Campbell, J. F. Summers and J. F. Sumxmers, Jr., for appellant.

      W. T. Trice and Ed Trice, for appellee.
   Hart, J.,

(after stating the facts.) The record shoAVs that the will in question Avas signed by Samuel Shelton and Catherine Shelton, his Avife, and was to take effect after the death of the survivor. The real estate devised by the will was the property of Samuel Shelton, and his wife only had a dower and homestead interest therein. It was agreed that the aao.11 Avas in- proper form and is not a forgery.

The sole ground relied upon for a reversal of the judgment is that the instrument in question is the .joint will of Samuel Shelton and Catherine Shelton to take effect upon the death of the survivor, and is void under the principles of law decided in Hershy v. Clark, 35 Ark. 17.

We do not think the principles of law there decided are controlling under the facts in the case at bar. In that case Abram and Aaron Clark, brothers, had by their joint industry acquired a large amount of personal and real estate, which they held as tenants in common. The brothers entered into a mutual obligation in writing in which each conveyed to the survivor all of his interest in their joint property. Abram died first, and Aaron took charge of their joint property as owner. He made a will giving to his mother and his sister Sarah all of his real estate in two counties. His mother and his sister Sarah took possession of the property under his will after his death. 'Subsequently they executed a joint will in which they 'devised the property they had received under the will of Aaron Clark to various persons.

The court held that the joint instrument between Abram and Aaron Clark and the joint will of Nancy and Sarah Clark should both have been disregarded. Following the common law, the court held that there could be no such thing as a joint will to take effect on the death of the survivor. Ini each instance, the persons attempting to execute the joint will were the owners of the property intended to ,'be devised as tenants in common, and intended that the will devising their joint property should take effect upon the death of the survivor. Such an instrument can not be proved as the separate will of either of the supposed testators, because it disposes of their joint property, and because it implies an agreement between them which is inconsistent with its revooability and therefore prevents its operation as a will.

In the case at bar, however, the property disposed of in the will was not the joint property of Samuel and Catherine Shelton, but belonged to the husband. The wife had no interest whatever in the property, except a dower and homestead right. Therefore, the instrument may be sustained as the will of the husband. The wife, having nothing on which the will could operate, is held to he a mere .cipher in the transaction!. The will is that of the ¡husband in the same manner as though the wife had not signed it, and her acts in the premises must be rejected as 'surplusage. Her joinder in the execution of the will could have no effect upon the power of the husband to legally dispose of his own property. The will is that of the husband in the same manner as though his wife had not signed it. In re Rogers, 11 Me. 303, and Allen v. Allen, 28 Kan. 18, and cases cited.

The title to the property became vested by the terms of the will, and the delay in probating it did not render the provisions of the will void. Moreover, L. L. Cole, the remonstrant, has no interest in the property under the views we have expressed, and therefore has no right to object to the probate of the will.

It follows that the decision of the circuit court was correct, and must be affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Kansas City Southern Railway Company v. Cockrell.
    Opinion delivered November 2, 1925.
    1. Carriers — injury to passenger — res ipsa loquitur. — In an action toy a passenger for injury in a railroad collision, where the evidence conclusively established that the collision was caused by the negligence of some of defendant railway company’s servants, but not the negligence of the conductor operating the train, jointly sued with the railway company, the. doctrine of res ipsa loquitur applies as to the liability of the company but not as to that of the conductor.
    2. Removal op causes — refusal proper when. — In a passenger’s action for injury from a railroad collision, where the federal court had remanded the case to the State court after finding that the joinder of the conductor, a resident, was not shown to have been fraudulent, the court properly denied removal after refusing to direct a verdict for the conductor, since the holding of the federal court was conclusive on the issue of fraud, and the conductor continued to be a party, in the absence of a voluntary dismissal as to him by the plaintiff.

      3. Carriers — injury to passenger in collision — presumption.— In an action ¡by a passenger against a railway company and one of its employees for injuries received in a collision, a verdict for the employee -and against the .company, based upon the testimony of the employee showing no negligence on his part, is not contradictory, since there is no presumption of negligence against the employee while proof of the injury by reason of the collision raised a presumption of negligence against the company.
    4. Carriers — undisputed testimony of nonliability. — In a passenger’s action for negligent injury from a railway collision against the railway company and one of its employees where plaintiff failed to sustain the burden of proving the negligence of the employee, testimony of the employee, though exonerating himself, was not undisputed evidence of nonliability of the company, since the testimony of an interested party is not regarded as undisputed in testing the sufficiency of his evidence.
    5. Evidence — opinion of non-expert. — In a passenger’s action for injury from a railroad collision, it was not error to permit a non-expert to testify from observing plaintiff’s physical condition that he was unable to perform manual labor on account of a hernia.
    6. Carriers — -instruction as to- damages. — In a passenger’s action for a negligent injury received in a railway collision, an instruction to assess such damages as will compensate for injuries, if any, and physical or mental anguish suffered in the past or to be suffered in future, if any, was not objectionable as -ignoring evidence of a possible reduction of damages; if defendant desired an instruction as to a possible reduction of damages by means of a surgical operation, he should have requested it, but could not raise the question for the first time in a motion for new trial.
    7. Damages — bad reputation of plaintiff. — In an action by a passenger for damages received in a railroad collision, an instruction that plaintiff’s bad reputation for truth and morality could be considered only as affecting his credibility was not erroneous as excluding consideration of such fact in determining extent of his future earnings, where plaintiff depended on earnings from manual labor, which could not be affected by bad reputation.
    8. Trial — misconduct of party. — In an action for injury from a railroad collision, a conversation between plaintiff and his father with jurors concerning the weather and farming was not such misconduct as would vitiate a verdict in plaintiff’s favor.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      James B. McDonough, for appellant.

      Lake, Lake & Carlton, for appellee.
   McCulloch, C. J.

The plaintiff, William Cockrell, instituted this action to recover damages on account of personal injuries alleged to have been received while a passenger on one of defendant’s freight trains between Mena and DeQueen. He alleged that there was a collition between the train on which he was riding and another freight train, and that the collision was caused by negligence of Roberts, the conductor, in failing to exercise care to control the movements of his train. He alleged that he was sitting in the caboose when the collision occurred, and that he was violently thrown from the seat and injured about the head and back, had two ribs broken, and that hernia resulted. The conductor, Roberts, who was á resident of the State, as was the plaintiff himself, was joined as defendant.

Appellant filed, in apt time, its petition for removal to the Federal court on the ground of diversity'of citizenship, and alleged that plaintiff had joined, .as defendant in the action, Roberts, the conductor, for the wrongful and fraudulent purpose of defeating the right of removal. The transcript of the proceedings was filed in the office of the clerk of the Federal court of that district, but the plaintiff filed a motion presenting .an issue on the allegations of fraud in joining Roberts as a defendant and asked that the cause be remanded, and the court, after hearing the motion, remanded the cause to the State court.

Appellant and the other defendant filed separate answers containing specific denials of all the allegations of the complaint, and there w,as a. trial of the issues, which resulted in a verdict in favor of Roberts, but in favor of the plaintiff against appellant for the recovery of damages in the sum of $2,500.

The plaintiff himself was introduced as a witness, and his'testimony established the fact that he was a passenger on the train; that there was a violent collision between his train and another freight train; that he was thrown from, his seat and'received serious personal injuries— among other things, two broken ribs and a hernia. Other witnesses were introduced by the plaintiff to prove the extent of his injuries. Plaintiff also introduced as a witness Roberts, the conductor, who testified concerning the collision between the trains, but whose testimony exonerated 'himself from fault concerning the collision. It appears from the testimony that plaintiff took passage on this train, which, was south-bound, from Mena to DeQueen, and that after the train reached Gilham, an intervening station, the conductor received orders to meet an extra north-bound freight at that place. These orders, it appears from the testimony of Roberts, were received after both trains had reached that station. Roberts’ train was standing on the main track, headed south, and the other train was partly on the main track and partly on the side track south of the station. Roberts testified that he transmitted the orders to the engineer by the hands of two brakemen directing that the train proceed southward if it was clear ahead. The testimony of Roberts, if believed, completely exonerated himself from fault, but the necessary inference was that the collision was caused, either by the negligence of the brakemen in failing to properly transjnit the orders to the engineer, or the negligence of the engineer in going forward with the other train standing in front of him on the track. At any rate, it is conclusively established that the collision was caused by negligence of some of the servants of appellant. The doctrine of res ipsa loquitur applies, so far as relates to the question of liability of appellant. Not so, however, as to the liability of the conductor.

When appellant rested its case, Roberts, who was represented by separate counsel, moved for a directed verdict, which was overruled by the court, and thereupon appellant presented its second petition and bond for removal to the Federal Court on the ground that the plaintiff had failed to make out a case against Roberts, and that the cause had then, for the first time, become removable. The court overruled the petition, and the cause proceeded to a verdict and judgment in favor of plaintiff.

It is contended, in the first place, that the court erred in refusing to grant the petition for removal. The ground urged for removal of the cause at the point at which the second petition was filed is that, notwithstanding the plaintiff had not dismissed the cause as to Roberts, and the court had refused to direct a verdict as to him, according to the undisputed evidence plaintiff had made no case against Roberts for submission to the jury, and that this gave appellant the right to remove the cause, as if Roberts was no longer a party to the action. We do not agree with counsel for appellant in this contention. If the plaintiff had, at any stage of the proceedings, dismissed the action against appellant’s co-defendant, who was a resident of the State, the cause would then, for the first time, have become removable. Powers v. Chesapeake & Ohio Railway, 169 U. S. 92; Fritzlen v. Boatmen’s Bank, 212 U. S. 364. The distinction however between those cases and the present one is that the plaintiff did not dismiss the cause as to appellant’s co-defendant, and, whether rightly so or not, the latter was still a party-defendant and remained as such until he was finally exonerated by the verdict of the jury. This distinction is very clearly pointed out by the Supreme Court of the United States in numerous cases. Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S. 63; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206; Lathrop v. Interior Constr. & Imp. Co., 215 U. S. 246; American Car. & Foundry Co. v. Kettelhake, 236 U. S. 311; Great Northern Ry. Co. v. Alexander, 246 U. S. 276. In the case last cited' above, the court said: “It is also settled that a case arising under the laws of the United States, non-removable on the complaint, when commenced, cannot be converted into a removable one by evidence of the defendant or by an order of the court upon any issue tried upon the merits, but that such conversion can only be accomplished by the voluntary amendment of 'his pleadings by the plaintiff, or, where the case is not removable because of joinder of defendants, by the voluntary dismissal or nonsuit by him of a party or parties defendant. ’ ’ The trial court was therefore correct in denying the petition for removal.

The decision of the Federal court in remanding the cause was conclusive on the issue of fraud in joining the conductor as defendant, and that question could not be raised again. Roberts was still a party to- the action, notwithstanding the fact that plaintiff had failed to make out a case against him, and the court should have directed a verdict in his favor. As long as his retention in the case continued, since it was adjudged that the joinder of the defendant was not fraudulent, he was still a party until eliminated by a voluntary dismissal by the plaintiff, and the cause was not removable.

It is next contended that the verdict of the'jury was contradictory in finding in favor of Roberts, against whom the specific charge of negligence was made, but against appellant, whose liability accrued solely on account of its responsibility for the negligence of its own servants, and that the court should not have rendered judgment against appellant on the verdict. This point has been decided in another case against the contention of counsel for appellant. Davis v. Hareford, 156 Ark. 67. The verdict of the jury as to the liability of the two defendants was not essentially inconsistent in view of the fact that the burden of proof rested upon the plaintiff to make out a case against Roberts, there being no presumption of negligence on his part, but on the other hand the proof of the injury by reason of the collision of the two trains raised a presumption of negligence against appellant, and the burden of proving negligence did not rest upon the plaintiff. The plaintiff failed, as against Roberts, to make out a case against him, the burden of proof being upon plaintiff to do so, but Roberts’ own testimony, though containing absolute denial of fault on his part, did not, as against appellant, constitute undisputed evidence of nonliability. His testimony afforded no affirmative evidence of negligence and added nothing to the plaintiff’s case against him or the appellant. It did not constitute undisputed evidence of nonliability, for he was a party to the suit, and the rule established by our court is that the testimony of a party to an action interested in the result cannot be regarded as undisputed in testing the legal sufficiency of the evidence. Skillern v. Baker, 82 Ark. 86.

Another assignment of error relates to the ruling of the court in permitting W. L. Cockrell, plaintiff’s father, to testify concerning the extent of plaintiff’s injuries. The point of the contention is that the witness was not an expert, but was permitted to testify as such. We do not think that counsel properly estimate the character of the testimony of the witness, for he did not pretend to be an expert or to testify as such, but merely testified concerning his knowledge of plaintiff’s physical disability as actually observed by the witness himself. The testimony of the witness was, in effect, that he was familiar with his son’s condition, and that on account of the hernia he was not able to perform manual labor. We do not think that there was any error in permitting the witness to make this statement.

There are very numerous assignments of error with reference to the court’s charge to the jury — in fact, the ruling of the court in giving each of the instructions requested by plaintiff is made the subject of an assignment of error, and each refusal of the court to give an instruction requested by appellant is also made the basis of an assignment of error. These assignments of error are so numerous that it is not practicable to discuss them all. We have considered them and find no error, and will only discuss such as we deem of sufficient importance.

There was evidence introduced to the effect that plaintiff could have been relieved of the hernia by a surgical operation at an expenditure of 'between $150 and $250. An exception was saved as to the ruling of the court in giving a certain instruction on the ground that it ignored the issue that the damages could have been reduced by plaintiff if he had subjected himself to a surgical operation. The instruction which it is contended is offensive on that account reads as follows:

“6. If you find for the plaintiff, you will assess his damages at such sum as will compensate him for the bodily injury sustained, if any; the physical and mental anguish suffered and endured by him in the past, if any; and that which he will endure in the future, if any, by reason of said injury; his loss of time, if any, and his pecuniary loss from his diminished capacity for earning money in the future, if any; and from these, as proved from the evidence, assess such damages as will compensate him for the injuries received. ’ ’

Without deciding whether or not the plaintiff was compelled to reduce his damages by a surgical operation, it is sufficient answer to appellant’s contention to say that the instruction is not open to the objection made to it. It does not ignore any question" of possible or probable reduction of damages. The instruction, reasonably interpreted, relates to damages which proximately resulted from the injury inflicted on account of negligence of appellant’s servants. If the instruction was thought to ignore any other issue in the case, the objection should have been specifically made so as to point it out. to the court. If the result of the injury could have been lessened and the damages thereby reduced by any act or conduct of the plaintiff, the burden to prove it rested upon appellant, and if an instruction on that issue had been desired, appellant should have ashed for it. This was not done, but, on the contrary, appellant suffered the case to go to the jury upon general instructions as to the measure of damages, without calling the attention of the court in any way to the issue of reducing the damages by a surgical operation. It was too late to attempt to’ raise that question in the motion for a new trial.

Appellant contended that plaintiff was suffering from hernia prior to the time of his being injured on the train, and appellant requested the court to give an instruction telling the jury that there would be no liability if plaintiff’s physical disability existed prior to the train collision or otherwise than as a result of the collision, and the court gave that instruction. We think that the instructions on the measure of damages were proper, and there was no error in that regard.

Again, it is urged that the court committed an error in giving an instruction telling the jury that proof of bad reputation of the plaintiff for truth and morality could only be considered as affecting his credibility as a witness. The contention is that the jury should have been permitted to consider this fact for the purpose of determining the extent of his future earning capacity. The plaintiff does not appear to have had any vocation involving professional skill or intelligence or high traits of character, but merely depended upon manual labor, therefore the question of his poor reputation could have had no bearing upon’his probable future earnings. It was too vague to afford any guide to the jury in determining what his earnings in the future by physical labor would probably be.

These are all of the assignments in regard to the court’s charge that we deem to be of sufficient importance to discuss.

Finally, it is contended that'the verdict should be set aside on account of alleged misconduct on the part of the plaintiff and his father in permitting themselves to be brought into personal contact with members of the jury while the case was being tried, or at least before the verdict was rendered. In support of this assignment, appellant introduced the affidavit of one John T. Tisdale, who was an employee of appellant for the purpose of securing evidence in this case. The affidavit, after stating that affiant was acquainted with the plaintiff, and his father, W. L. Cockrell, reads as follows:

‘ ‘ Oil the morning of April 24th, ahont 7:45 a. m. I was at the north entrance of Polk 'County court house, where I noticed W. L. Cockrell in conversation with some of the jurors. I also noticed one or two of the jurors standing near ¥m. Cockrell, plaintiff. During this time I heard an extensive conversation between W. L. Cockrell and the juror. They were discussing at the time I first appeared some matters relative to farming, and later one particular juror asked W. L. Cockrell where he lived. He told him near Hot Springs, at Bear, Arkansas. This juror also asked Cockrell what his name was and he told him ‘ Cockrell. ’ The juror replied that, ‘Yes, I remember you was on the witness stand yesterday.’ W. L. Cockrell stated that, ‘That was my son in that case.’ At this time they continued their conversation with reference to farming conditions near the Cockrell home as well as farming conditions near Mena, Arkansas. This conversation lasted for perhaps twelve to eighteen minutes. This conversation continued until someone called to the juror from upstairs. I also noticed during this time that Wm. Cockrell, plaintiff, was engaged with conversation with two of the jurors whose names I do not know. This conversation, so far as T could hear, was concerning the weather conditions and rain. I only heard a few words of their discussion. They remained in conversation until the jurors were called up stairs. ’ ’

It is contended that this conversation between some of the jurors and the plaintiff and his father constituted such improper conduct as should be treated as sufficient to vitiate the verdict. Counsel cite many authorities sustaining the rule that the slightest misconduct on the part of parties to an action in approaching members of the jury is deemed sufficient to set aside a- verdict which might have been in part obtained by reason of the misconduct. Giving full force to all of these authorities, we find none of them justifies us in holding that a mere chance conversation about the weather, even between the plaintiff himself and one of the jurors, would be sufficient to vitiate the verdict of the jury. It would be carrying the doctrine too far to hold that an incident of that kind, where it appears affirmatively that the conversation extended no further, is sufficient to vitiate the verdict.

Finding no error in the record, the judgment is affirmed.


author: Wood, J.

text:
    Tong v. State.
    Opinion delivered November 2, 1925.
    1. Jury — bias op jurors. — Where jurors in a liquor case disclosed that they were strongly prejudiced against those violating the law concerning the manufacture, sale of giving away of intoxicating liquors, but stated that they could and would, if selected on the jury, try the case according to the law and evidence and not allow such prejudice to influence them in making their verdict, they were not disqualified.
    2. Criminal law. — similar crimes.. — In a prosecution for unlawfully manufacturing intoxicating liquor, admission of the testimony of an officer as to accused having engaged in the business of manufacturing such liquor at other times was admissible as tending to throw light upon the issues.
    3. Witnesses — test of credibility. — For the purpose of testing the credibility of a witness, he may be questioned as to whether two persons living with him had not 'been shot in an attempted robbery, and whether witness had not had possession of stolen cattle.
    4. Intoxicating liquors — sufficiency of indictment. — -An indictment for manufacturing intoxicating liquors is not defective in failing to allege that the liquors were manufactured for beverage purposes, as Crawford & Moses’ Dig., § 6160, makes it unlawful to manufacture such liquor for any purpose.
    5. Criminal law — necessity of bill of exceptions. — Where it is urged that the court erred in instructing the jury after they returned into court for further instructions, the facts relating thereto and the ruling' of the court thereupon should have been set forth in the bill of exceptions.
    6. Criminal law — general objection to instruction. — General objection to an instruction not inherently erroneous is insufficient to call' attention to particular phraseology claimed to be confusing and misleading.

      7. Intoxicating liquors — sufficiency of indictment. — An indictment with charges that defendants “did unlawfully and feloniously set up, own and operate a still, which was used and intended to ¡be used in the manufacture and distilling of alcoholic spirits without having first registered the same with the proper United States officers,” etc., substantially charges an offense within § 2 of act 324 of Acts of 1921.
    8. Indictment and information — duplicity.—An indictment is not void for duplicity in. joining the offenses of possessing a still and of manufacturing alcoholic liquors in one indictment where they were charged in separate counts, and the 'State elected to try each offense separately.
    9. Criminal law — entry of judgment. — Where the record shows a verdict finding accused guilty and fixing punishment and that a motion for new trial was overruled, that sentence was pronounced against accused, and an appeal granted and bond filed, but no formal judgment was entered, it was a sufficient compliance with Crawford & Mioses’ Dig., § 2129, to give the Supreme Court jurisdiction.
    Appeal fro-m. Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Gregory és Eoltzendorff and Emmet Vaughan, for . appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

The indictment against the appellants, Tong and Donaho, contained two counts. The first count charged that the appellants “unlawfully and feloniously did manufacture and were interested in the manufacture of one pint of alcoholic liquor,” and the second count charged that the appellants “unlawfully and feloniously did set up, own and operate a still, which was used and intended to be used in the manufacture and distilling of alcoholic liquors without first having the same registered with the proper United States officers.” Each count charged that the respective offenses were committed in Prairie County, Arkansas, on the 20th day of February, 1925. There was a demurrer to the indictment, which was overruled. The appellants were placed on trial first on the charge contained in the first count of the indictment and were convicted on this count, and their punishment fixed at one year in the State penitentiary. They were put ou trial for the offense charged in the second count, and on motion of the district attorney, before the evidence was concluded, the charge was dismissed as to appellant' Donaho, who has also dismissed his appeal here. Appellant Tong was convicted on the second count, and his punishment fixed at one year’s imprisonment in the State penitentiary. From these judgments they prosecute this appeal, and the cases may be disposed of here in one opinion. ‘

We will dispose of the grounds-urged for reversal in the order presented in the brief of appellants ’ counsel.

Counsel lor appellants urge that the defendants were not tried by a fair and impartial jury; that certain jurors on their voir dire expressed a prejudice against the offense of which the appellants were convicted, and one of them expressed a prejudice against one of the appellant’s attorneys, all of which proved that the jurors were not qualified to sit in the case. While the examination of the jurors on their voir dire disclosed that they were strongly prejudiced against those violating’ the law concerning the manufacture, sale, or giving awáy, etc., of intoxicating liquors, yet they each answered that they, could 'and would, if selected on the jury, try the charge against the appellant according to the law and evidence; that they would not allow any prejudice they had against the violation of the liquor law to influence them in making their verdict; that they knew nothing, of the facts of the particular case and had no personal prejudice against the appellant, and would not render, a verdict against him unless the evidence proved him guilty. One of the jurors stated that he would no,t allow any feeling that he had against one of the appellant’s attorneys to influence him in rendering his verdict.

■Such was the effect of the examination of the jurors on their voir dire, and it brings the case squarely within the doctrine announced in Eddy v. State, 165 Ark. 289. The juror in that case on his voir dire stated that he could go into the jury box and try the defendant according to the law and the evidence just as he conld try him for any other crime, although he had said that he had a prejudice against the crime of selling whiskey. In that case we held the juror was not disqualified; and in the case of Corley v. State, 162 Ark. 178, we held that a juror’s antipathy to the particular crime charged against the defendant is not a disqualification, where he stated he would not convict one so charged unless he was shown to be guilty by the testimony.

The next contention is that the court erred in admitting the testimony of Bingham as to what appellant Tong told him, about making other whiskey. Bingham testified that he was the city marshal of DeValls Bluff and went with the sheriff to make the raid on appellant’s premises. He was permitted, over the objection of appellant, to state that appellant said that most of the liquor they had sent out before went to Little Rock. Appellant received $2.00 a quart for it, and he would not sell less than five gallons to one man. This testimony tended to prove the kind of business appellant was engaged in. 10 R. C. L. p. 925. As is said in Brown v. State, 161 Ark. 253-255, “it tended to throw light upon the issue and was therefore admissible in evidence.” See cases there cited.

Counsel contend that the court erred in permitting the witness Prank Tong to testify that the appellant Tong took care of a crap shooter who had been shot, and also in permitting the witness to answer questions as to some stolen cattle found in'his possession. The witness Prank Tong testified on direct examination that he was the appellant’s brother, and that he never knew of appellant engaging in the illicit manufacture of whiskey; that appellant was a farmer. On cross-examination witness was asked who the two boys were who were shot with reference to a negro crap game or something like that over on witness’ place, and if these parties didn’t live on the same place where witness lived, and if they didn’t get shot in an attempted hold-up, and if they didn’t come back to the witness’ place after they were shot, and whether or not witness’ folks took care of them. The witness, over the objection of appellant, was likewise asked to tell the jury whether or not stolen cattle over there that belonged to a negro in Monroe County were not found in his possession, and whether or not the negro came and got them. When these questions were objected to, the district attorney announced that his purpose was to show the associations of the witness and for the purpose of testing his credibility, and the court, in permitting the questions to be propounded, announced that the examination would be permitted for that purpose. The testimony was competent as bearing on the credibility of the witness. Hollingsworth v. State, 53 Ark. 387-390; Rhea v. State, 104 Ark. 162-181; Smith v. State, 162 Ark. 458-61; Turner v. State, 155 Ark. 443. The testimony in regard to the possession of the stolen cattle by the witness was competent for the same purpose as testing the credibility of the witness, and the court in admitting it limited it to that purpose. See Turner v. State, supra, 448.

Counsel next contend that it is not a crime in this State to manufacture alcoholic liquors unless they are manufactured for beverage purposes. This contention is in the teeth of the statute and of our decisions. See § 6160, C. & M. Digest; Suffield v. State, 141 Ark. 276-280; Saunders v. State, 164 Ark. 491. The statute, in broad terms, makes it unlawful for any person to manufacture any alcoholic liquors within the State of Arkansas. There was, therefore, no error in overruling the demurrer to the indictment.

It is urged that the court erred in instructing the jury, when they returned for further instructions, that, if they convicted one of the defendants, they should convict both. The bill of exceptions does not show that the jury returned for further instructions, and that the court instructed them as set forth in this assignment of error. The 16th ground of appellant’s motion for a new trial does assign the above as one of the errors of the trial court, but, as we have before stated, the motion for a new trial itself is not sufficient to show the alleged error. Such an occurrence, if it took place, and the ruling of the trial court thereon should have been set forth in the bill of exceptions.

'Counsel insist that the court erred in instructing the jury as follows: “It is not material that the defendant may have owned that distillery. If he stood by assisting in the operation of it, or was present aiding', abetting, assenting or consenting to any one else operating it, then he would be guilty of the violation of the provisions of law that I read to you. The charge he is required to meet here is the possession of the still to manufacture intoxicating liquors. Any act done in furtherance of converting the juices of the grain or the sugar into alcoholic liquors would 'constitute the manufacture of liquor under the law. ’ ’ The above instruction was given in the trial of the appellants on the first count of the indictment.

The State had elected to try them only on that count, and counsel urged that the instruction was, therefore misleading and prejudicial to the appellant. The instruction was not inherently erroneous, and the objection to the instruction by counsel was general. If counsel for appellant conceived that the instruction was confusing and calculated to mislead the jury, as they now contend, they should have made specific objection at the trial calling attention to the particular phraseology claimed by them > to be misleading. The instruction, taken as a whole, shows clearly that the court had in mind the manufacture of alcoholic liquors and was stating in effect that, if the appellant had in his possession the still for the purpose of manufacturing liqnor and stood by assisting in the operation of such still, or aided, abetted or consented to the operation of it by any one else, any act thus done by them in the converting of the juices of the grain or sugar into alcoholic liquor would constitute the manufacture of such liquor under the law. The second paragraph of the instruction shows that the court was dealing with the issue as to whether or not the appellant had manufactured alcoholic liqiiors as charged in the first count of the indictment. In Abston v. State, 154 Ark. 59, we held that a general objection was not sufficient to call attention of the trial court to particular phraseology in instructions claimed to be confusing and misleading where' the instruction was not inherently defective, and that under such general objection we could not review the ruling of the trial court in the giving of the instruction there complained of. So here.

Counsel for 'appellant next contend that these cases should be reversed because the record does not show that the trial jury was sworn. Section 3170, C. & M. Digest, requires that the jury in the trial of each criminal case shall be sworn to well and truly try the case and a' true verdict render unless it is discharged by the court or withdrawn by the parties. In Childs v. State, 45 Ark. 143, this court held that the above requirements of the statute must be complied with, and that the fact that the jury was sworn must be shown by the record proper; that it cannot be shown by the bill of exceptions. See also Greenwood v. State, 17 Ark. 332; Clendenning v. State, 154 Ark. 596.

In the original transcript of the record there was no showing that the jury was sworn except by the bill of exceptions; but on application of the State the cause was continued to give the State an opportunity to correct the record, and on application to the trial court the. record was corrected by nunc pro tunc entry thereon to show that the jury trying the causes was duly sworn. The record thus corrected by the trial court has been brought into the transcript of the record here by cer-. tiorari. The appellant contends that the court erred in making this nunc pro tunc entry, but we are convinced, upon an examination of the testimony taken before the trial court on that issue, that the judgment of the court was correct. The -evidence was sufficient -to sustain the finding of the court that the jury was duly sworn.

The appellant Tong insists that the second count of the indictment upon which -he was convicted was demurrable in that it did not charge that the appellants had in their possession a still for the manufacture of distilled spirits for beverage purposes, and further that this count of the indictment was demurrable because it charged both the offense of setting up a still and of possessing a still, and further that the indictment was demurrable because this count of the indictment could not be joined in an indictment for manufacturing alcoholic liquors. None of these assignments are well taken. The language of the second count of the indictment charged that the appellants “did unlawfully and feloniously set up, own and operate a still, which was used and intended to be used in the manufacture and distilling of alcoholic spirits without first having registered the same with the proper United States officers, etc.”

This language shows that it was predicated upon § 2 of act 324 of the Acts of 1921. It follows substantially the language of -that section, and charges that appellants unlawfully and feloniously did set up, own and operate a still without registering the same, etc. True, the language of the indictment specifies that the appellants did set up, own and operate a still, which was used and intended to be used in the manufacture and distilling of alcoholic liquors.. These last words of the indictment were evidently intended to set forth that the appellants possessed the still for the purpose of using the same as a distillery. But the appellant was specifically charged with the crime of possessing a still without registering the same, as we have shown, contrary -to the provisions of § 2, act 324, of the Acts of 1921. The instructions of the court clearly show that Tong was put on trial alone for this alleged offense. The fact that the indictment further in the second count specified that the still possessed by the appellants was used and intended to be used in the manufacture and distilling- of alcoholic liquors did not vitiate the indictment. These words might be treated as surplusage in an indictment where the charge is, as here, in the second count for the keeping of a still without registering the same. Earl v. State, 155 Ark. 286; Hodgkiss v. State, 156 Ark. 340-344.

The contention of appellant Tong that the indictment is void for duplicity because it joins the two offenses of possessing a still and manufacturing alcoholic liquors in the same indictment cannot be sustained for the reason that, even if two non-joinable offenses were charged in one indictment, they were charged in separate counts and the State elected to <try separately on each count. The appellant Tong, therefore, was not prejudiced because two offenses were joined in the same indictment.

■ The appellant contends that the court here is without jurisdiction because no final judgment had been entered against .the appellant. The record shows that the verdict of 'the jury was rendered finding the appellant guilty and fixing his puiiishment at imprisonment in the State penitentiary for one year; that the motion for new trial was overruled; that appellant moved to arrest the judgment and that sentence was pronounced against the appellant; that an appeal was prayed for and granted and an appeal bond filed and approved and the appellant released from custody. While the record does not show a formal judgment entry and is not to be approved as a precedent, yet, taken as a whole, it is tantamount to a judgment sentencing- the appellant to the penitentiary for a period of one year on the verdict, from which he prosecutes an appeal, and is a sufficient compliance with § 2129 of C. & M. Digest to give this court jurisdiction.

There was testimony sufficient to sustain the verdict, and the instructions of the court were free from error. The judgments are therefore affirmed.


author:
Hart, J.
      Hart, J.,

text:
    Clark v. State.
    Opinion delivered November 2, 1925.
    1. Indictment and information — statutory crime. — The general rule is that an indictment upon a statute must state all the facts and circumstances which constitute the statutory crime, so as to bring the accused within the provision of the statute, 'but it is generally sufficient if it contains the substance thereof.
    2. Homicide — murder in first degree — indictment.—An indictment charging that defendant and others named wilfully and feloniously killed another, while engaged in the commission of the crime of robbery, charges the crime of murder in the first degree, under Crawford & Moses’ Dig., § 2343.
    3. Courts — special term of court to try persons in jail. — Crawford & Moses’ Dig., §§ 22.18, 2220, relating to calling special terms to try persons in jail, held complied with.
    4. Criminal law — petition for change of venue — credibility of affiants. — In determining the credibility and means of knowledge of the supporting affiants on a motion for a change of venue, the court was authorized to inquire, not only as to whether the affiants had sworn or were likely to swear falsely, but into their motives, intent, and feelings, and their opportunities and means of knowledge as to existing prejudice, in order that the court might determine whether they were credible persons within the statute.
    5. Criminal law — judicial notice. — The courts take judicial notice of the division of counties into townships.
    6. Criminal law — petition for change of venue — discretion of ■ court. — In a murder prosecution, the court did not abuse its discretion in overruling defendant’s motion for a change .of venue on the ground of -prejudice of the inhabitants, under Crawford & Moses’ Dig., § 3088, where supporting affiants were sent out for the purpose of being able to support -defendant’s petition for change of venue, and knew very few of the persons to whom they talked, and were necessarily hurried in their investigation, and hence were not “credible persons” within the meaning of the statute.
    7. Homicide — sufficiency of evidence. — In a prosecution for murder, alleged to have -been committed while robbing a bank, under Crawford & Moses’ Dig., § 2343, evidence held sufficient to warrant a verdict of guilty of murder in the first degree.
    8. Homicide — murder in first degree — validity of statute. — Statutes which enact that murder committed in the perpetration of robbery, burglary and other crimes shall be deemed murder in the first degree are valid enactments and do not violate any provision of the State or United States Constitution.
    9. 'Homicide — evidence.—In a prosecution for murder while engaged in robbing a bank, evidence held to warrant the jury in finding that deceased was killed by defendant and his confederates in immediate connection with the robbery, and before their flight, thereby justifying a verdict of guilty of murder in the first degree.
    10. Homicide — effect of verdict. — In a prosecution of defendant.for murder while engaged in robbing a bank, the court properly imposed the death sentence where the jury were instructed as to their right to render a verdict of life imprisonment, under Crawford & Moses’ Dig., § 3206, and yet returned a verdict of guilty of murder in the first degree as charged in the indictment.
    11. Homicide — refusal to charge as to lower degrees. — In a prosecution for murder in first degree shown to have been committed while defendant was engaged in robbing a bank, refusal to charge as to murder in the second degree or any lower degree of homicide was not erroneous.
    12. Criminal law — duty of court TO' instruct jury. — Under Const., art. 7, § 23, and at common law, it is the duty of the court to instruct the jury upon the law, and the jury is required to accept the ruling- and be guided by it.
    13. Criminal law — power of jury. — The jury may disregard the evidence and acquit a person whom the evidence shows to be guilty of the crime charged in the indictment, and may disregard the instructions of the court and find for a lower degree of homicide than is warranted by the evidence.
    14. Criminal law — instruction—invasion of jury’s province.— Instructions requiring the jury to convict or acquit the defendant of murder in the first degree, and no other offense, is not violative of Const., art. 7, §i 23, as invading the province of the jury or as a comment on the evidence, where there was an entire absence of evidence tending to prove any grade of homicide other than that of first degree.
    15. Criminal law — joint indictment — order of trial. — Where defendants, jointly indicted for murder, elected to- sever for trial, Crawford & Moses’ Dig., § 3140, requiring in such case that the defendants shall stand for trial in the order in which their names ■appear upon the indictment, is directory merely.
    16. Indictment and information — copy of indictment. — The fact that the copy of the indictment served on defendant did not contain the name of the foreman of the grand jury and date of filing was immaterial where it was complete in all other respects, and the defendant was informed of the charge so that he might prepare for trial.

      17. Criminal law — waiver of right to copy of indictment. — The privilege of having a copy of the indictment served on him was waived by the defendant where he filed a motion to quash the indictment and one to change the venue.
    18. Homicide — murder in committing robbery — defense.—The fact that defendant, in perpetration of robbery, had no intent to commit murder would toe no defense, under Crawford & Moses’ Dig., § 2342, providing that all murders committed in perpetration of robbery, etc., shall be murder in the first degree.
    Appeal from Benton Cironit Court; W. A. Dickson, Judge;
    affirmed.

      W. E. Spencer and Vol T. Lindsey, for appellant.

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

Tyrus Clark appeals from a judgment of conviction of murder in the first degree where a sentence of death was pronounced in conformity with the verdict of the jury trying him.

The hody of the indictment is as follows:

“The 'grand jury of Benton County, in the name and by the authority of the 'State of Arkansas, accuse John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark of the crime of murder in the first degree, committed as follows; to-wit:
“The said John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark, in the county of Benton and State of Arkansas, on the eleventh day of June, 192-5, then and there being, and while acting’ and conspiring together and having a common purpose and design to perpetrate the crime of robbery and effect their escape, and while executing the purposes of said conspiracy aforesaid, did unlawfully, feloniously -and violently taire from the Bank of Sulphur Springs, a corporation, situated and doing a banking business in the town of Sulphur Springs, in the county -and State aforesaid, the sum of nine hundred ($900) dollars, gold, silver and paper money — current and lawful money of -the United States of America; the property of said Bank of Sulphur Spring’s, a corporation, and of the value of nine hundred ($900) dollars, in the presence of one S. 0. ¡Whaley, the lawfully authorized and acting cashier of said Bank of Sulphur Springs, a corporation, and having the care and control of said sum of money aforesaid, forcibly and against his will and by intimidating and putting fear in him, the said S. 0. Whaley, and while perpetrating said crime of robbery as aforesaid, feloniously, wilfully, and with malice aforethought, and with premeditation and deliberation did kill and murder one Lou Stout, with a certain gun loaded with gunpowder and leaden balls and then and there held in the hands of him, the ¡said Tyrus Clark; the said Boyd Jewel, John Burchfield and Elva McDonald 'being then and there present aiding and abetting and consenting to aid 'and abet the said Tyrus Clark in the commission of said homicide, from the effect of wounds so inflicted, he, the said Lou Stout, died on the 12th day of June, 1925, against the peace and dignity of the State of Arkansas.”

The general rule is that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense so as to bring the accused within the provisions of the statute; but it is generally sufficient if it contains the substance thereof.

The indictment in the present case was returned under § 2343 of Crawford & Moses’ Digest, and every element of murder in the first degree as defined by the statute is alleged in the indictment, and the court properly ruled that the indictment charged the crime of murder in the first degree and put the defendant on trial for that offense. The indictment fully charges the offense of murder in the first degree by alleging in proper words that Tyrus Clark and other named persons wilfully and feloniously killed Lou Stout while they were engaged in the commission of the crime of robbery. See Henry v. State, 151 Ark. 620, and Kelly v. State, ante p. 289.

It is claimed by counsel for the defendant that the court should have quashed the indictment because the defendant was tried at a special term of the court which was not called as provided by law.

A call for a special term of the court to be held in Benton County on the 29th day of June, 1925, was signed by W. A. Dickson, judge of the Fourth Judicial Circuit of Arkansas on June 18, 1925, and the call was entered of record. The call recites that it had been certified to the undersigned judge that John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark were confined in the Benton County jail, charged with the crime of murder in the first degree for killing Lou Stout on or about June 11, 1925, and for the robbery and burglary of the Bank of Sulphur Springs, Arkansas, on the same day.

The call further recites that it is necessary and expedient that a special term of the circuit court of Benton County be called for the purpose of investigating and disposing of said charges, and it appearing that no term of the circuit court of the Fourth Judicial District in any county convenes prior to the first Monday in August, 1925, and that the regular term of the Benton Circuit Court convenes on the third Monday in September, 1925, it is by the undersigned'judge on June 18, 1925, ordered that, a special term of said circuit court be convened and held in the circuit court room in Bentonville, Benton County, Arkansas, on Monday, June 29, 1925, at ten o’clock a. m. for the purpose of investigating and disposing of said charges in the manner prescribed by law. It was ordered that the sheriff summon a grand jury cf sixteen qualified electors to attend at said special term of the court, that the 'order for the call be entered of record, and that a certified copy be served upon the prosecuting attorney of the Fourth Judicial Circuit. The order was entered upon the records of the circuit court, and the record also showed that the prosecmting attorney acknowledged the sendee of summons upon him of the copy of the order on June 18, 1925. The certificate of the clerk shows that the call was placed upon the record by him on June 18, 1925, together with the acknowledgment of service by the prosecuting attorney.

Thus it will be seen that the special call was made by the circuit court under the provisions of § 2218 of Crawford & Moses’ Digest, providing that the judge of the circuit court may at any time hold a special term for the trial of persons confined in jail by making1 out a written order to that effect and transmitting it to the clerk, who shall enter it on the records of the court.

Section 2220 provides that the judge ordering the special term shall cause a notice thereof to be served on the prosecuting attorney of the circuit ten days before the commencement of such special term.

The prerequisites of the statute were complied with in the case at bar, and the requirements laid down by this court, as to a call for a special term to try persons in jail were complied with. Beard v. State, 79 Ark. 293; Hill v. State, 100 Ark. 373; Reece v. State, 118 Ark. 310; Bell v. State, 120 Ark. 530; and Harris v. State, ante p. 627.

The next assignment of error is that the court erred in refusing to grant the defendant a. change of venue. The defendant filed a motion for a change of venue on the ground that the minds of the inhabitants of Benton County were so prejudiced against him that a fair and impartial trial could not be had therein. His petition was duly verified by his affidavit, and the affidavits of two qualified electors, actual residents of Benton County and not related to the defendant in any way were also filed as required by § 3088 of Crawford & Moses’ Digest.

The statute requires that the petition be supported by the affidavits of two credible persons. This court has held that the supporting affiants are not credible persons within the meaning of the statute where they do not possess the necessary means of knowledge as to the facts to which they swear. In discussing the question in Price v. State, 71 Ark. 180, the court said:

“It may happen, and does frequently happen, that the line of demarcation ¡between evidence as to the credibility and of sources of information is difficult to be observed. Therefore, it is necessary that the examination of such witnesses should be set forth in detail in the bill of exceptions. Otherwise, the appellate court must take the examination to have been made within the proper limits, and hold that the ruling of the trial court is correct. This is the status of this particular .controversy, and under the rule we must hold that there was no error in this respect. A witness may be truthful and intelligent in the ordinary acceptance of these terms, and yet, on examination before the court, it may be made to appear that he has made his affidavit carelessly, without really possessing any definite and reasonable information as to the public feeling toward the defendant. Then the credibility of the witness is involved, for there is, little difference between the effect of false testimony and testimony recklessly given. ’ ’

In determining the credibility and means of knowledge of the supporting affiants, the circuit court was authorized to inquire, not only as to whether the affiants had sworn, or were likely to swear falsely; but into their motives, intent, ¡feelings and their opportunities and means of knowledge as to the existing prejudice, in order that the court could determine whether they were credible persons under the statute in matters of this nature.

It cannot be said that the action of the court in overruling the defendant’s motion for a change of venue was without legal ■ evidence to support it. In this connection it may be stated 'that Benton County is a large county, containing thirty-four townships. Our Constitution provides for the division of the'State into counties and the boundaries of the counties to be fixed by the Legislature under the restrictions provided for in the Constitution. Bittle v. Stuart, 34 Ark. 224. The division of counties into townships is made necessary by the Constitution of. the State. St. L., I. M. & S. Ry. Co. v. State, 68 Ark. 561. These cases also hold that the court will take judicial notice of these facts.

The Bank of Sulphur Springs in Benton County, Arkansas, was robbed on the 11th day of June, 1925, and Lou .Stout was killed while the robbers Were attempting to escape. A call for a special term of the court to be convened on the 29th day of June, 1925, was made by the: circuit judge on June 18, 1925. The circuit -court convened pursuant to thecaH, and the grand jury returned an indictment against the defendant and others on the 30th day of June, 1925, charging them with the murder of Lou Stout. On the 7th day of July, 1925, a day of said special term, the defendant filed a petition for a change of venue.

Earnest Poe and W- II. Harris were supporting affiants to his petition. According to their testimony, they were employed by an attorney for the defendant to travel over Benton County to ascertain the condition of the minds of the inhabitants as to prejudice against the defendant. They started on their investigation on the 4th day of July, 1925, and spent three days in traveling over the county. On the 7th day of July, 1925, they were interrogated in open court as to the result of their investigation and made a detailed statement of the various townships which they visited, and what the inhabitants they saw there said about the feeling against the defendant on account of the alleged killing of Lou Stout and the robbery iof the bank.

It is true the witnesses visited a good many townships in the county; but, under the circumstances, they were necessarily hurried in their investigation. They admitted that they knew very few of the people with whom they talked. They were sent out for the very purpose of being able to subscribe to an affidavit of the defendant for a 'Change of venue as supporting affiants. The court was justified, under the circumstances, in finding that, when their feelings, motives, and opportunities for finding the true state of mind of the inhabitants were considered, they were not credible persons within the meaning of the statute and the rule above announced. The. court might have thought, when their testimony and the surrounding circumstances were considered together, that they simply found an excited feeling among the people they talked with on account of the crime itself, and that no opportunities under the circumstance's were given the supporting affiants to ascertain the state of mind of the inhabitants of the county as a whole with regard to the existence of prejudice against the defendant. Hence it cannot be said that the circuit court abused its discretion in overruling the motion of the defendant for a change of venue. Dewein v. State, 120 Ark. 302, and Williams v. State, 162 Ark. 285.

The jury returned a verdict against the defendant of guilty of murder in the first degree as charged in the indictment.

S. O. Whaley was the cashier of the 'Bank of Sulphur Springs, Benton County, Arkansas, on the 11th day of June, 1925, when the bank was robbed. According to his testimony, about ten minutes before noon on the day in question, he was in the directors’ room just back of the main room of the bank with a customer. He was just getting ready to go to dinner, and, as he walked to the door leading into the lobby with the customer, Burch-field drew a pistol on them and held them-up. Burchfield then turned them over to McDonald, his confederate, who held a gun on them. Burchfield then went back into the vault and took the money out of the safe. He then made the cashier and the customer go back in the vault and slammed the door on them. The robbers took $933 out of the safe of the vault.

Clara Abereombie, assistant cashier of the bank, was the next witness for the State. According to her testimony she was behind the fixtures .and looked up and saw two men enter the bank. She knew just what they were and walked out past them. She heard one of them say, “Let her go.” She walked up the street to Mr. 'Stout’s store and told him about the robbery. Stout jumped up and said, “Where is my gun?” When Mr. Stout got his gun she pointed out a car to him and told him that she had passed it on her way to the store. There were two men in the car. The witness did not know them at the time, but has since learned that Burchfield and McDonald were the men who came into the bank and that Boyd Jewel and Tyrus Clark were the men who stayed with the car. When Mr. Stout and the witness looked out, she pointed out the car to him and they saw two men coming from.the bank towards the ear. Mr. Stout said, “They have got the money.” He then pushed open the door of his store and said, “Hold up, you fellows!” then the men in the car commenced shooting and instantly the glass began to fall. The front of the store was plate glass and it 'began to fall .just after the shots were fired. Mr. Stout then commenced shooting at the robbers and fired five shots at them. The first shooting came from the car.

On cross-examination, the witness told the jury that Mr. Stout was shot before he fired his gun. The men were still shooting when they ran away.

A son of the deceased testified that he saw the defendant in the back seat of the car and saw him draw a shotgun in the direction of his father when he opened the door.

Other witnesses testified that the men in the car were shooting at Mr. Stout.

Mr. Stout died as the result of his wounds. Before his death he told his wife and other persons that, the robbers fired at him first, and that he shot five times at them after they shot him.

Boyd Jewel was .also a witness for the State. According to his testimony, John Burchfield, Elva McDonald, Tyrus Clark and himself left Oklahoma for the purpose of robbing the bank at Sulphur Springs in Benton County, Arkansas. They had two double-barrel shotguns, a pistol, and two twenty-two rifles. McDonald and Burchfield went into the bank and robbed it. Two shotguns and one rifle were left in the car with the witness and Clark. Clark was to stay in the car and use the gun from the outside if necessary. The witness was to stay at the wheel and take care of the car. Clark was the one who killed Lou Stout.

The defendant was a witness for himself. He admitted that he went with the persons referred to above to rob the bank at Sulphur Springs; but denied that he shot Lou Stout, or that he intended to shoot any one when they went to rob the bank. He said that the gam he held would not pull off; but that he did not know what was the matter with it. He admitted picking* up the loaded shotgun, but denied that he attempted 'to shoot Mr. Stout. During the shooting the defendant was hit three times. The witness said that he was left out there with the car to help carry out the robbery, but did not intend to kill any .one. He intended to see that they got the money and escape, but did not intend to kill any one to do so. The understanding was that the witness was to drive the car away.

The evidence for the State, if believed by the jury, was sufficient to warrant a verdict of guilty of murder in the first degree. The indictment against the defendant was returned under § 2343 of Crawford & Moses’ Digest. It provides, among other things, that all murder which shall be committed in the perpetration of arson, rape, robbery, burglary or larceny shall be deemed murder in the first degree. The evidence for the State shows, and the defendant himself admit^f that he and his companions conspired to rob the Bank of Sulphur Springs, and the evidence shows that the death of Mr. Stout resulted from gunshot wounds fired by some of the party while in the prosecution of the common object. Indeed, some of the evidence for the State shows that the shots which killed Mr. Stout were actually fired by the defendant. Be that as it may, he was present at the time the shots were fired, and admitted that he was there to see that his companions, who went into the bank for the purpose of robbing it, should get away with the money they secured. Under such circumstances each one of the party would be responsible for every thing done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Besides, this killing done under such circumstances is made by the express terms of the statute murder in the first degree.

The general ride is that .statutes which enact that murder committed in the perpetration of robbery, burglary and other crimes shall he deemed murder in the first degree are valid enactments, and are not in violation of any provisions of State Constitutions or the Constitution of the United States. Henry v. State, 151 Ark. 620; Kelly v. State, ante p. 289; Wharton on Homicide, 3 Ed. p. 186, § 126, and cases cited, and Michie on Homicide, vol. 1, p. 120.

It cannot he said that the evidence is insufficient to justify the verdict of murder in the first degree, because it was not done until after the confederates of the defendant had robbed the bank and left it.

It is true that the shooting did not occur until after Burchfield and McDonald had left the bank, but it was done before they got into the car, which was waiting for them, and apparently was done for the purpose of preventing detection and escaping. It was part of the continuous scheme to rob the bank and escape with the proceeds of the robbery. The charge was murder committed in the perpetration of robbery,' and the killing occurred just after the robbers had left the bank and before they had gotten into the automobile which was there for the purpose of enabling them to escape. It could not be said that the robbery was consummated un til at least the robbers had left the scene of their operations. It was part of their scheme to have an automobile waiting for them. Two of the persons engaged in the perpetration of the robbery were to go into the bank and get the money, and two of them were to stay in the automobile and prevent any one from interfering in the actual robbery. Then the four of them would leave the scene of the robbery in the automobile. The jury was justified in finding that the robbery was not consummated until the four of them had gotten in the automobile and left the scene of the robbery. Therefore, the jury was warranted in finding that Stout was killed by the defendant and his confederates in immediate connection with the robbery and before their flight, and under the statute the defendant was guilty of murder in the first degree.

The jury was instructed as to its rights to render a verdict of life imprisonment under § 3206 of Crawford & Moses’ Digest. Hence it may be said that the jury was fully informed in the matter, and yet returned a verdict of guilty of murder in the first degree as charged in the indictment. In such a ease the law fixes the punishment at death. Bullen v. State, 156 Ark. 148. The result of our views is that the verdict was supported by the evidence, and the court properly imposed the death sentence.

The next assignment of error is that the court erred in refusing to charge as to murder in the second degree or any lower degree of homicide. We have just set out the substance of the evidence for the State and for the defendant, and need not repeat it here. It is sufficient to say that there is nothing in the evidence to warrant the jury in finding the defendant guilty of a lower degree of homicide than murder in the first degree.

This court has repeatedly held that where the indictment charges murder in the first degree and the undisputed evidence shows that the accused, if guilty at all, is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide. The reason is that, if there is no evidence to establish a lower degree of homicide than murder in the first degree, the court in properly giving the law must of necessity determine upon whether there is any evidence at all to justify a particular instruction, and it is the duty of the jury to take the court’s exposition of the law. Jones v. State, 52 Ark. 345; King v. State, 117 Ark. 82; and Rogers v. State, 136 Ark. 161, and cases cited.

Therefore, we hold that the court properly declined to give the jury instructions as to any lower degree of homicide because there was no evidence upon which to predicate them.

It is earnestly insisted that the court erred in giving instruction, No. 1, which reads as follows:

“The defendant is charged in the indictment with ' the crime of murder in the first degree, and to this charge he has interposed his plea of not guilty, and this forms the issue you are to determine. You must convict or acquit of murder in the first degree and no other offense. ’ ’

Counsel for the defendant chiefly base their contention upon § 3205 of Crawford & Moses’ Digest. This section was a part of 'the act of December 17,1838, defining murder. It provides that the jury shall in all cases of murder, upon the conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree. Hence it is contended that the instruction in question is peremptory in its nature, and violates § 23 of article 7 of the Constitution, which provides that judges shall not charge juries with regard to matters of fact, but shall declare the law.

It is contended that the instruction did not leave the jury free to deliberate and fix the degree of murder as contemplated by the statute. It is insisted that to tell the jury that they must find for murder in the first degree or nothing was to withdraw the point from the jury and decide it as a question of law.

It is true that the Supreme Courts of the States of Pennsylvania and of North Carolina have decided that a statute in each State, which is similar to our own, by its terms confers the duty upon the jury to determine the degree of the murder, and that it cannot be taken from them by the court. Lane v. Commonwealth, 59 Pa. St. 371; and State v. Gadberry (N. C.), 23 S. E. 477.

This holding, however, is contrary to the weight of authority as will be seen by the citation of cases in a note to 21 A. L. R. at page 619. It is there stated that, in the absence of evidence of a lower grade of homicide than that of which the accused is found to be guilty, he is, by the weight of authority, not entitled to a new trial because of ail instruction to the effect that he should he found guilty of the higher degree or found not guilty.

Among the numerous cases in support of the text there cited is that of Sparf v. United States, 156 U. S. 51, in which the whole subject was thoroughly considered and the authorities exhaustively reviewed. Judge Harlan in his strong characteristic way wrote the opinion of the majority, and an able dissenting opinion was written by Judge Gray. In the first place it may be said that the Supreme Courts of the States of North Carolina and Pennsylvania have attributed to its Legislature a wholly different purpose in enacting a statute like the one under consideration than that given by our own court.

This court has repeatedly held that the statute requiring the jury to find the degree of murder was passed for the purpose of preventing the accused from being sentenced for capital punishment without a special finding of the jury of murder in the first degree. The reason is that the two degrees of murder are not distinct offenses, and no distinction as to the degree is made in charging the offense. So that, if the jury fails to find by its verdict the degree of guilt, it cannot be ascertained by reference to the indictment. Hence it has been held that where a jury returns a verdict of guilty of murder as charged in the indictment, sentence for murder in the first degree cannot be pronounced. Thompson v. State, 26 Ark. 323; Simpson v. State, 56 Ark. 8; and Banks v. State, 143 Ark. 154.

In this connection it may be stated that under another section of the statute a person charged with murder in the first degree may be convicted of any lower degree of criminal homicide. Crawford & Moses’ Digest, § 3210. It is manifest from our previous decisions on the subject that this section of the statute was passed for the purpose of enabling the jury to convict the defendant of a lower degree of homicide where the proof fails to sustain the charge of the higher degree, but does support a verdict of guilty of the lower degree.

Under the provisions of onr Constitution above referred to as well as under the common law, it is the duty of the court to .instruct the jury upon the law, and it is the duty of the jury to accept the ruling and be guided by it. - As stated in Jones v. State, supra, the trial court should in no case indicate an opinion as to what the facts establish; but in properly giving the law the court must of necessity determine whether there is any evidence at all justifying a particular instruction. The rights and power of juries in criminal cases should not be confused. Undoubtedly it is within the power of a jury to disregard the evidence and acquit persons whom the evidence show to be guilty of the crime charged in the indictment. It is also true that a jury might disregard the instructions of the court and find for a lower degree of homicide than that warranted by the evidence, and the State have no remedy. This was pointed out by Chief Justice English in Allen v. State, 37 Ark. 433. In that case the court recognized that a person charged with murder in the first degree might be convicted of a lower degree of criminal homicide, though the charge be murder in the first degree by poisoning.

The learned .judge said that a jury would sometimes return a verdict for a lower degree of homicide under an indictment for one of the specific statutory murders in the first degree, and the State had no remedy. In such case no new trial can be granted to the State, and, if the judgment be arrested, the verdict is nevertheless an acquittal of any degree higher than that for which the verdict is rendered. Continuing the learned judge said:

“Until the Legislature shall think proper to enact that, upon a charge for murder perpetrated by means of poison, etc., the jury must find the accused guilty of murder in the first degree, or acquit him, we know of no remedy except that of appropriate charges to the juries by the circuit judges.”

The same question was under consideration in the case of Fagg v. State, 50 Ark. 506, in which it was said that where the evidence and the instructions of the court demand a verdict of murder, hut the jury finds manslaughter, there is no alternative but to sentence the prisoner accordingly.

In discussing the question, Chief Justice Cockrill said:

“The principle of those cases is that the court cannot withhold from the jury the power to return a verdict according to their will for any grade of the offense charged against a defendant.. The courts can only instruct juries as to their duty, .giving them in charge the law applicable to the facts and no other. If there is no evidence whatever tending to establish a lower grade of homicide than murder in one instance, or voluntary manslaughter in another, the court should decline to give to the jury directions as to any lower grade of homicide (Benton v. State, 30 Ark. 328; Allen v. State, sup.), and it-is the jury’s duty to take the court’s exposition of the law as that applicable to the case. But the court cannot direct a verdict for the higher offense nor restrain the jury from returning it for the lower grade. Flynn v. State, 43 Ark. 289 ; Adams v. State, 29 Ohio St. 412.”

Thus it will be seen that this court is committed to the doctrine that it is the duty of the court to declare the law, notwithstanding the jury has the power to disregard both the evidence and the instructions of the court.

A careful examination of the record in this case shows that there is an entire absence of evidence tending to establish any grade of homicide other than that of murder in the first degree committed in the perpetration of robbery. If there was a failuré of proof as to murder in the first degree touching the robbery, there was a like failure of proof as to the evidence necessary to establish any other grade of homicide. An instruction like the one under consideration is not an invasion of the province of the jury; nor can it be regarded as a comment upon the evidence. To say that certain facts, if believed, constitute an offense of one degree, and no other or less degree, is no comment on the evidence. The instruction simply declares the law upon the facts as the jury may find them.

Other instructions fully define the crime of murder in the first degree committed in the perpetration of robbery, and the court in the present instruction, as well, as in all the others given to the jury, left it to them to say whether the evidence warranted a verdict of guilty of murder in the first degree or an acquittal. It has been well said that under such circumstances the responsibility of the verdict is not on the court and jury trying the case, but on the law.

In the case of Sparf v. United States, 156 U. S. 51, it was urged that an act of Congress providing that in all criminal cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which lie is charged in the indictment, prevented the court from giving an instruction like the one under consideration. The court held to the contrary on the ground that in criminal cases it is competent for the court to instruct the jury as to the legal presumptions arising.from a given state of facts; but that it may not, by a peremptory instruction, require the jury to find the accused guilty of the offense charged, nor of any offense less than that charged. The court expressly held that on the trial in a court of theUnitecl States of aperson accused of committing the crime of murder, if there be no evidence upon which the jury can properly find the defendant guilty of an offense included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offense less than the one charged; and that, in such case, if the defendant was not guilty of the offense charged, it is the duty of the jury to returma verdict of not guilty.

In concluding an extended review of the authorities on both sides of the question at p. 101, Judge Harlan said:

“Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under -such a system the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting-life, liberty, or property according to such legal principles as in their judgment were applicable to the particular ease being tried. If, because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating- what the law is upon a given state of facts, the result would be that the .enforcement of the law against criminals and the protection of citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And, if it be true that jurors in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged oases and the views of elementary writers.”

We think the holding of the Supreme Court of the United States on the subject is in conformity with the reasoning of this court in decisions bearing upon the question, and that it is in accord with the better reasoning and weight of authority. Hence we hold that this assignment, of error is not well taken.

We have carefully considered the instructions given by the court and its rulings on the admission of evidence. It seems to us that the rights of the defendant were guarded by the court at all stages of the trial.

We find no reversible error in the record, and the judgment must therefore be affirmed.

Hart, J.,

(on rehearing). Counsel for the defendant ask for a rehearing, because they insist that the provisions of § 3140 of Crawford & Moses’ Digest were not complied with.

The record shows that the defendant and three other persons were jointly indicted for the murder of Lou Stout, charged to have 'been committed while robbing a bank in Sulphur Springs, Benton County, Ark. The defendants elected to sever for trial. McDonald was tried first, then the defendant, Clark, and then Burchfield. The defendants did not elect the order in which they should be tried, and it is insisted that, under the statute, the defendant shoüld have ‘been tried last, because' his name appeared last in the indictment.

This is not the effect of the statute as construed by this, court. The provisions of the statute have been held to be directory merely. Where defendants jointly indicted sever, they stand in court as they would had they been indicted separately. If one is not ready for trial, or is not tried when his case is reached, the next in order of succession stands for trial like all other cases upon the criminal docket of the court. Thus it will be seen that, when the defendants severed, the defendant Clark stood upon the docket as if he had been separately indicted, and his case might be tried when reached upon the call of the calendar like that*of any other defendant. He has no concern with what was done with the other defendants after they had severed. Sims v. State, 68 Ark. 188, and Burns v. State, 155 Ark. 1.

It is next insisted that the defendant should have a rehearing because he was not served with a true copy of the indictment as required by § 3052 of Crawford & Moses’ Digest.

■ There is no merit whatever in this contention. The defendant was served with a copy of the indictment. His only contention in this respect is that the copy served upon hi(m did not contain the name of the foreman of the grand .jury and the date of the filing of the indictment. The object of the statute in question is to inform the defendant of the charge against him so that he may ibe enabled to prepare himself for trial. Johnson v. State, 43 Ark. 391. The copy of the indictment served upon the defendant contained Hhe names of ¡the witnesses against him, and informed him of the nature of the charge against him. It was complete in all respects except as to the date that it was filed in court, and the name of the foreman of the grand jury. These were immaterial matters, and we are of the opinion that the statute was substantially complied with.

Moreover, this court has frequently held that the .statute might be waived. Johnson v. State, 43 Ark. 391, and Powell v. State, 74 Ark. 355. The defendant had already filed a motion to quash the indictment for certain specified reasons contained in his motion, and also a motion for a change of venue. Both of these motions had been overruled by the court. His action in this respect constituted a waiver of his privilege to have a copy of the indictment served upon him. 0

Counsel for the defendant, also, insisted that the court erred in giving instruction No. 15, which reads as follows:

“If you find from the evidence beyond a reasonable doubt that Tyrus Clark, while in the alleged perpetration of robbing- the Bank of Sulphur Springs, wilfully fired a shot at Lou Stout, which resulted in his death, then the mere fact that he did not intend to take life in the alleged perpetration of robbery is no defense to the charge against him. ”

We did not set out this instruction in our original opinion or make any separate discussion of it for the reason that we believed that it was contained in our discussion of the law. As we have already seen, the defendant was indicted under § 2342 of Crawford & Moses’ Digest, which provides that all murder committed in the perpetration of robbery, burglary, larceny, etc., shall be dee'med murder in the first degree. The intent of the Legislature was to say that where a party committed murder he should be guilty and punished for murder in first degree, if it was done in the perpetration of any of the crimes named in the statute. . .

It may ibe true, as contended by counsel for the defendant, that a person could commit a homicide in the perpetration of a robbery and not be guilty of murder in the first degree, still the record before us does not show a state of facts that would authorize the court in charging on any other grade of homicide than murder in the first degree. There is no middle ground in the case.

According to the evidence for the State, the defendant and three other persons went to the. Bank of Sulphur Springs for the purpose of robbing it. The defendant and one of these persons stayed in the automobile in which they went to the bank, for the purpose of watching and guarding while the other two went into the bank and robbed it. Ain officer of the bank was informed of the fact of the robbery and went to the door of his store for the purpose of stopping the robbery or capturing the robbers. As soon as he opened the front, door of his store, one of the persons in the car commenced shooting at him with a shotgun. The defendant is shown to have been the person who had the shotgun. The person in the car with the defendant also testified that the defendant shot .the deceased. The proof for the State also showed that Stout died as the result of the wound received from the first shot. If the testimony for the State was believed by the jury, the killing was committed in the perpetration of robbery, and by the express language of the statute which supplied the elements of wilfullness, deliberation, and premeditation, the killing was murder in the first degree.

When, on the evidence, the,accused is clearly guilty of murder in the first degree, or not guilty, it is not only the right, but the duty, of the court to so instruct the jury. The fact that the defendant did not intend to take life in the perpetration of the robbery is.no defense under, the statute. The defendant himself admits that he went there to aid in the perpetration of the robbery, and the mere fact that he had no intention to commit murder while committing the robbery would afford him no defense under the statute. If such was the case, then the statute can serve no useful purpose. Such is the effect of our former decisions in the cases of Henry v. State, 151 Ark. 620, and Kelly v. State, ante p. 289. :

In addition to the authorities cited in our former opinion, we call attention. to a case note in 21 A. L. R. 628. In the discussion of homicide by poison or in the perpetration of felony, the annotator there said: “The courts have frequently decided that where the only evidence of a homicide tends to show that it was committed by poison or in the perpetration of, or an attempt to perpetrate, one of the felonies enumerated in the statute defining murder in the first degree, no instruction on any grade of homicide less than murder in the first degree is necessary, and that one convicted of murder in the first degree on such evidence is not entitled to a new trial because of a failure to charge the law on a lower grade of homicide, or because of an instruction that no conviction of a lower degree can be had. ’ ’

We have examined cases from the various States cited in the note- and find that they support the text. Under the evidence there was no middle ground or room for compromise in the present cáse. Under the evidence for ther-State the defendant was guilty of the statutory crime of murder in the first degree, committed in the perpetration of robbery. The jury was properly directed to find that -defendant was guilty of murder in the first degree,’ or not guilty.

A further examination of the record -convinces us that there was no prejudicial error in the trial of the defendant, and his motion for a rehearing must be denied.