text:
    Gibbs v. State.
    Opinion delivered October 2, 1922.
    1. Criminal law — credibility of witness. — Though a witness was confessedly a liar and a thief, it was for the jury to say whether or not they would believe his testimony.
    2. Witnesses — impeachment of accused. — Where accused testifies in his own behalf, he becomes subject to impeachment in the same manner as any other witness.
    3. Witness — impeachment of accused. — Evidence tending to impeach accused’s general reputation for truth and morality was competent to affect his credibility where he testified in his own behalf.
    4. Criminal law — instruction—invasion of jury’s province. — In a prosecution for selling intoxicating liquors, an instruction that the evidence as to general reputation of the State’s witness and of defendant is not conclusive on the question whether the witnesses told the truth, but affects their credibility as witnesses, and it is a question for the jury to determine as to what extent the credibility of such witnesses is affected by such evidence, does not invade the jury’s province.
    Appeal from Clay Circuit Court, Western District; R. E. L. Johnson, Judge;
    affirmed.

      G. T. Bloodworth, for appellant.

      J. S. Utley, Attorney General, and Elbert Godwin and W. T. HammocJc,- Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment of conviction under an indictment which charged that appellant “did unlawfully and feloniously sell and was unlawfully and feloniously interested in the selling of alcoholic, vinous, malt, spirituous, and fermented liquors.”

George Hoff er, a witness on behalf of the State, testified that in the winter of 1921 he bought a quart of liquor of the appellant in Coining, Clay County, Arkansas, for-which he paid the sum of $3. On cross examination the witness stated that the grand jury asked him if he had' bought any whiskey from the appellant, and he answered that he had not. He further stated that the grand jury told witness that witness’ mother had told them all about it, and that if witness did not tell they’ would put her in jail for perjury. Witness wanted to save her, and had to tell on somebody in order to avoid trouble. Witness was asked if, while he was working at a certain. hotel, he did not steal Mr. Buzbee’s clothes, and answered that the took them.

The appellant, in his own behalf, testified that he had not sold any whiskey to any one and positively denied the testimony of the witness for the State. Several witnesses testified that the general reputation of the witness for the State for truth and morality in the community where he lived was bad.

One of the witnesses for the appellant, on cross-examination, was asked whether or not he knew the general reputation of Bob Gibbs for truth and morality in the community where he lived, and he answered, “Well, there is parts of it that is bad. ’ ’ Appellant duly objected to the question and answer thereto. His objection was overruled by the court, to which ruling appellant duly saved his exceptions.

Among other instructions, the court gave the following:

“8. Certain evidence has been introduced of witnesses examined as to the general reputation of the witness Iioffer and of the defendant himself. This evidence, of course, is not conclusive on the question of whether or not the witnesses swore the truth, but affects their credibility as witnesses, and it is a question for you to determine as to what extent the credibility of such witnesses is affected by such evidence.”

1. Appellant contends that there was no testimony to sustain the verdict, for the reason that Hoffer, the only witness for the State, confessed on his cross-examination that he was a liar and a thief. The jury were the sole judges of the evidence and of the credibility of the witnesses. Noth withstanding his impeachment for truth and morality, it was nevertheless for the jury to say whether or not they would believe and accept his testimony. There was testimony to sustain the verdict that the appellant sold whiskey as charged, and the same is conclusive here.

2. The appellant next contends that the testimony tending to impeach his general reputation for truth.and morality was incompetent. When the appellant testified in his own behalf, he became subject to impeachment in the same manner that any other witness could be impeached.

The court, in its instruction No. 8, expressly told the jury that the testimony as to the general reputation of appellant affected his credibility as a witness. Thus the instruction of the court was tantamount to telling the jury that they could only consider such testimony for that purpose. The testimony as thus limited was competent. Younger v. State, 100 Ark. 321; Paxton v. State, 108 Ark. 316; See, also, Cook v. State, 109 Ark. 384; Turner v. State, 128 Ark. 565; Smedley v. State, 130 Ark. 150; Connor v. State, 132 Ark. 534; Kelly v. State, 133 Ark. 262; Pearrow v. State, 146 Ark. 201.

3. Instruction No. 8 does not, as learned counsel for appellant contends, invade the province of the jury. It simply told the jury that the evidence as to the general reputation of Holier and the appellant affected their credibility as witnesses and left the jury to determine to what extent their credibility as witnesses was affected by such testimony. The effect of the instruction was to tell the jury that they were the sole judges of the credibility of these witnesses and the weight to be given their testimony. The instruction was correct.

The record presents no error in the rulings of the trial court. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Miller v. State.
    Opinion delivered October 2, 1922.
    1. Criminal law — corroboration of accomplice — question for jury. — In a prosecution charging defendant as accessory before the fact to a robbery, facts and circumstances tending to corroborate the testimony of an accomplice held to warrant submission of the issue as to whether the testimony of the accomplice was sufficiently corroborated, and to warrant an instruction submitting the issue as to whether the defendant, not being present, advised and encouraged the crime.
    2. Criminal law — corroboration of accomplice — instruction.— In a prosecution charging defendant with being an accessory before the fact to a robbery, he was entitled, where the State relied on the testimony of an accomplice, to an instruction substantially in the language of Crawford & Moses’ Dig., § 3181, that the corroboration of an accomplice was not sufficient, unless it tended to connect the defendant with the commission of the crimei and was not sufficient if it merely showed that the offense was committed and the circumstances thereof, but he cannot complain where he did not request such instruction.
    3. Criminal law — corroboration of accomplice — instruction.—In a prosecution for being an accessory before the fact to robbery, an instruction which informed the jury that there must be testimony corroborating the testimony of an accomplice sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused, was not erroneous.
    Appeal from Polk Circuit Court; James 8. Steel, Judge;
    affirmed.

      McPhetrige £ Martin, for appellant.

      J. 8. Utley, Attorney General, and Elbert Godwin, for appellee.
   Wood, J.

Appellant was convicted on an indictment whicii in good form charged him with the crime of being an accessory before the fact to the robbery of one John Fain, by one Vol Simpson. In apt words the indictment charged that Simpson robbed Fain of $25 in gold, silver and paper money, and that the appellant “did unlawfully and feloniously advise and encourage the said Vol Simpson to commit said robbery in the manner and form as aforesaid,” etc.

Marion Martin testified substantially as follows: He was on the appellant’s place on the day of the alleged robbery in company with the appellant, Ed Posey, and Robert Magsby'. They were about 150 yards from where John Fain was robbed. Witness thought he knew who robbed Fain. On Sunday before the robbery, which occurred on Tuesday, he had discussed the matter with the appellant. Appellant said to witness, “If you and Yol want to do the hold-up, I will get the whiskey and gun for him.” Appellant said he would get Fain drunk and Simpson could hold him up. Previous to that Simpson and witness had been making whiskey. On the Saturday before the robbery Fain passed witness’ house going to appellant’s. Appellant wanted Fain, and witness had told Fain to go over there. Appellant and witness had been talking about Fain and about getting him there to appellant’s place and robbing him. They had been informed that Fain had some money sewed up in the pockets of his overalls. The understanding was that Vol should do the robbery. Witness delivered to Simpson a gun — a .38 special pistol, with which to hold up Fain. When witness got over to appellant’s on the morning of the robbery, appellant said he would not have anything to do with it. He quit. Witness just hung around until Fain got ready to go, when witness and Fain started down the road. Witness knew in reason what was going to happen, and did not go down with Fain to where the hold-up took place. Witness heard the shot, and Fain came back up’ the road and said he was shot. He was bleeding at the chin, went up the road and passed all of them in a long trot. Simpson told witness how he"accomplished the robbery. After the robbery appellant said to witness, “We were all right. We would all stand pat and not tell anything.” Witness told appellant who shot Fain. “We knew who shot him. We talked about it.” Witness was arrested on the 13th and brought to jail. Witness did not at first tell the truth about the matter, but later witness said, “I went back and come clean with it. ’ ’ Witness had entered his plea of guilty to robbery at that term of the court— had talked with the appellant since he had been in jail, and appellant told witness to stand pat.

On cross-examination the witness stated that when he got to appellant’s something like an hour before Fain was robbed, appellant told witness that he (appellant) “had quit and wasn’t going to have anything more to do with it.” After this, witness went down and saw Simpson and told him what appellant had said a little while before the robbery took place.

Simpson testified that he robbed Fain, using the gun furnished him by Martin. He entered into detail, explaining how he accomplished the robbery, and was permitted, over the objection of the appellant, to identify and introduce the mask used by Simpson, the garments worn by Fain, and other utensils and things connected with the robbery. Witness stated that the robbery occurred on the top of a hill out from where the appellant was plowing. Witness first expected to rob- Fain in the new-ground under the hill. He had received information from Martin that Fain was in the new ground. Witness lost a pocket knife at the place of the robbery, and got another one.

W. C. Faulkner, deputy sheriff, testified that Fain was shot about 210 steps from where appellant, Posey, Magsby and Martin claimed they were standing. The land where appellant was plowing was in 10 steps of the place where Fain was shot. Witness saw appellant the morning after the robbery. Witness got to the ground where the robbery occurred before daylight. When witness got near appellant’s house, he heard something like chains rattling. It was not daylight, but day was breaking. Witness said, “Who is that?” and the appellant answered, “John Miller.” Then the appellant came on down where the witness was and witness asked him, “What are you doing here before daylight?” and the appellant said, “I owe a lot of debts, and I am behind with my plowing, and I have got to get down to the field and plow.” Witness said, “I will go down to the field with you, but you must not make any tracks on the land in plowing.” When witness reached the place where the robbery occurred he found the knife, two or three envelopes, and a torn-out pocket, which seemed to be the pocket of an old overall. Witness was handed two knives, the one witness had found on the spot and the otherwhich he had got from Simpson, and witness stated that they were both just alike — -almost.

The sheriff testified, and over the- objection of appellant was permitted to identify the clothes that were worn by Fain at the time of the robbery and to exhibit the same to the jury. Witness stated that he went to the scene of the robbery and had a conversation with the, appellant about the matter. Appellant denied everything. Appellant went with witness to the place where the robbery occurred. Witness found where appellant had been plowing the land out just opposite where Fain was shot. Appellant’s tracks making the plowing showed that he was walking right -out to the place and back. Appellant admitted that they were his tracks. The tracks were not over ten steps outside of the place where the robbery -occurred. The appellant walked right out to the place where he admitted the robbery occurred and said he went over there to call Fain to dinner. That was the only excuse he gave witness for being over there. Appellant admitted that Fain had been working for him. When Fain was brought into witness’ office on the day of the robbery, he was very bloody, shot in the chin, his jaw broken open, and he was still bleeding freely.

Appellant testified in his own behalf that he knew nothing about the robbery; that such a thing had never entered his mind. He denied that Martin or Simpson had ever said anything to him about it. Witness stated that there was not a word of truth in Martin’s testimony. Fain was not in appellant’s employ. He had been, but quit that day, saying that he wanted to go somewhere and get him a job. The shooting occurred about 2 o’clock p. m. At that time appellant was standing at the outer end of the field. Appellant had taken a pair of horses to the field with, him and his little crippled son. Appellant, Marion Martin, Posey, Magshy and the boy were over there close together at the time. After the gun fired appellant saw John Pain running up the road where appelland was standing. He said he was shot, and appellant tried to get him to stop and tell all about it, but he would not. Appellant and Robert Magsby ran after him something like a quarter of a mile on foot. Appellant then went back, took his horse out of the plow, and on horseback overtook Pain in about two miles. He took Pain to meet the doctor, to whom he had telephoned to come and get the man. Appellant stated that the place where the robbery occurred was pointed out to him after the shooting; that it was about 250 or 300 yards from where appellant was plowing. No one had worked in the clearing since John Pain; that if any one brought whiskey to his house or to the place where he was working that morning he did not know of it; that a jar containing Whiskey was broken there where appellant was plowing, but that he did not know about it. He found it out the next day. The jar containing' whiskey was broken within eight or ten steps from where appellant was plowing. Appellant testified that he had been in jail in connection with the robbery, and that during the time he was in jail he never discussed it with the sheriff or with any one else.

Appellant on cross-examination stated that Pain came to his home on Saturday before the robbery, hunting a, job. Appellant gave him a job working in the new ground. He began working for the appellant on Monday at noon and quit at noon on the following day — the day the robbery occurred.

The court gave the following instructions:

“No. 2. If you find from the testimony in this case, beyond a reasonable doubt, that Yol Simpson, at the time and place mentioned in the indictment, or within three years before the filing thereof, robbed John Fain in the manner and form thereof, and the defendant, John Miller, not being present, advised or encouraged the said Yol Simpson to commit said crime, you will convict the defendant of accessory before the fact.”

“No. 4. "While it is necessary that the witnesses, Martin and Simpson, be corroborated by some other testimony, the amount of such corroborative testimony is a. matter solely for the jury. It is sufficient if there is any, circumstantial or otherwise, provided you believe the defendant guilty beyond a reasonable doubt.”

The appellant interposed a general objection to the ruling of the court in the giving of these instructions.

1. The appellant contends that there was no testimony to sustain the verdict because the verdict was based upon the testimony of the witness Martin, who was an accomplice, and' his testimony was not sufficiently corroborated. Appellant therefore insists that the giving of instruction 2, as above set forth, was abstract, for the reason that there was no legally sufficient testimony upon Which to base it.

Marion Martin testified that he and the ‘appellant on Sunday before the robbery on Tuesday had discussed a proposed robbery of Fain and had devised the plan, which was to the effect that Martin was to get the whiskey and gun to be used by Simpson; that he would get Fain over to appellant’s place; that appellant would make Fain drunk and Simpson would hold him up. These were the respective parts to be played by the conspirators. This testimony of Martin is sufficiently corroborated by the facts, established by other testimony, that Fain went to work for the appellant the next day after this alleged conversation occurred, and the fact that a jar which had contained whiskey was found broken near the place where the appellant was working on the day of the robbery and in close proximity to the place where the robbery occurred; the fact also that the robbery occurred in broad daylight on appellant’s place and within such a short distance of where the appellant, Martin, Posey, Magsby and appellant’s crippled son were standing at the time the robbery took place; the fact that appellant’s tracks were discovered leading toward and away from the place where the robbery occurred; that appellant, when asked about the tracks, explained that he made them when 'he went to call Fain to dinner; the fact that Fain had not been previously working anywhere near to where the tracks led; the fact that, on the morning after the robbery, appellant, before daylight, admitted that he was going down to the field to the place where the robbery occurred, and the reason he gave was that he was behind with his plowing and had to go down at that hour to plow; the fact, admitted by the appellant himself, that he employed Fain to work for him; that Fain came to the house of appellant on Sunday night before the robbery and he employed him; that Fain worked from Monday noon until Tuesday at noon; that Posey, Martin and Magsby were present with appellant at the time the robbery occurred — all these facts and circumstances tended to corroborate the testimony of the accomplice Martin and tended to connect the appellant with the commission of the crime. At least they were sufficient to warrant the court in submitting the issue to the jury as to whether or not the testimony of the accomplice Martin was sufficently corroborated and to warrant the court in giving its instruction No. 2 in which the court submitted the issue as to whether or not the appellant, not ‘being present, advised and encouraged the commission of the crime.

2. Instruction No. 4, given by the court, did not accurately state the law concerning the corroboration required of an accomplice as prescribed by our statute (sec. 3181, C. & M.) because the instruction omitted to tell the jury that the corroborating evidence was not sufficient unless it tended to connect the accused with the commission of the crime, and was not sufficient if it merely showed that the offense was committed, and the circumstances thereof. To be sure, the appellant was entitled to an instruction substantially in the language of the statute, but he did not ask the court to give such an instruction and cannot complain because such an instruction was not given. The instruction given does not invade the province of the jury and was not calculated to confuse and mislead the jury. The instruction does inform the jury that there must be testimony corroborating the testimony of the accomplice, and that such testimony must be sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused.

This court, in Kennedy v. State, 115 Ark. 180, ruled that an instruction, which is substantially the same as the above, was not erroneous and' prejudicial to the appellant in that case. What was there said is applicable here and need not be repeated.

Finding no reversible error, the judgment must be affirmed.


author: Hart, J.

text:
    Phares v. State.
    Opinion delivered October 2, 1922.
    1. Criminal law — instruction invading jury’s province. — In a murder trial an instruction that “murder in the second degree is the absence of premeditation and deliberation, but this case has all the other elements of murder in the first degree,” invades the province of the jury.
    2. Criminal law — instruction pointing out inferences. — Under Const, art. 7, § 23, prohibiting judges from charging juries with regard to matters of fact, the court has no right to point out what inferences should he drawn from the evidence.
    . 3. Homicide — instruction disapproved. — In a murder trial, an instruction that there were but three verdicts responsive to the issues, murder in the first degree leaving the punishment to the law, murder in the first degree with imprisonment for life, and murder in the second degree with imprisonment for not less than 5 nor more than 21 years, held erroneous, in that it deprived the jury of the right to render a verdict of not guilty.
    4. Criminal law — no authority to direct verdicts in felonies. — . In felony cases, although the evidence for the State is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State’s evidence, and cannot direct a verdict of guilty, since it is within the province of the jury to disbelieve the witnesses for the State and return a verdict for the defendant.

      5. Homicide — instructions.—In a murder trial evidence held to call for instructions on self-defense and on voluntary manslaughter.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.
    STATEMENT OF FACTS.
    Eugene Phares was indicted for murder in the first degree charged to have been 'committed by shooting Edgar Glenn in Monroe County, Ark.
    The facts proved by the State, briefly stated, are that the defendant, Eugene Phares, and his wife had separated. His wife went to live with Edgar Glenn on a houseboat in White River in Monroe Comity, Ark. The mother-in-law of the defendant became ill with pneumonia., and sent for him. He arrived at her house in the night-time, and she told him to go with her young son to the houseboat of Edgar Glenn and bring his wife back for the purpose of nursing her. She also told the defendant that Glenn had threatened his life. The defendant knew that his wife was staying at the houseboat'with Glenn, and brought his gun with him in a motor-boat up the river, because he had to pass Glenn’s houseboat on the way to his mother-in-law’s, and he feared that Glenn would shoot him if he saw him pass his houseboat. The defendant and his young brother-in-law went to the houseboat for the purpose of bringing back the defendant’s wife to her mother. The houseboat was tied to the bank of the river, and just as Glenn stepped out to the front of the boat the next morning, some one fired three shots at him with a shotgun. Three shotgun shells were found under a tree about twenty-five yards distant. There also appeared a beaten path for a short space under the tree where some one had paced up and down for some time the night before the killing. Glenn either fell or jumped into the river when he was shot, and waded or swam to the rear end of the houseboat and climbed upon it again. He expired almost immediately after getting back on the houseboat. It was shown that the defendant was the person who killed Glenn. Indeed, the defendant admitted killing him, but, according to his testimony, the killing was done in his own necessary self-defense. The evidence in his favor will be stated more in detail under an appropriate heading in the opinion.
    The jury returned a verdict of guilty of murder in the second degree 'and fixed the punishment of the defendant at five years in the penitentiary.
    From the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

      Bogle & Sharp, for appellant.

      J. S. XJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

(after stating the facts). The first assignment of error is that the court erred in instructing the jury as to murder in the second degree.

In instruction No. 4, given by the court on its own motion, the difference between murder in the first degree and murder in the second degree was explained. Among other things, the court said:

“Murder in the second degree is the absence of premeditation and deliberation, 'but this case has all the other elements of murder in the first degree.”

The court had no right to point out what inferences s-hpuld be drawn from the evidence. This, was within the peculiar province of the jury. Sec. 23, art. 7, of the Constitution of 1874 expressly declares that judges shall not charge juries with regard to matters of fact. Blankenship v. State, 55 Ark. 244, and Spivey v. State, 133 Ark. 314.

It is suggested that the words, “this case,” were put in the instruction by the stenographer in copying his shorthand notes and that it is simply a. typographical error. The record shows to the contrary. Counsel made a specific objection to the instruction on the ground that the court invaded the province of the jury by saying to it that’“this case has all the other elements of murder in the first degree.” This constitutes an affirmative showing that the court gave the instruction, and for the reasons above stated reversible error was committed in giving it.

It is next contended that the court erred in telling the jury that there were but three verdicts responsive to the issue in this case, and that they were murder in the first degree, leaving the punishment of the defendant to the law, or murder in the first degree with the finding that the punishment of the defendant should be imprisonment for life in the State Penitentiary, and murder in the second degree with the punishment at not less than five nor more than twenty-one years in the State Penitentiary.

The court erred in giving this instruction to the jury. It amounted to taking away from the jury the right to render a verdict of not guilty.

In felony cases, although the evidence for the State is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State’s evidence. It is within the province of the jury to disbelieve the witnesses for the State and return a verdict for the defendant. The court is without power to ditect a verdict for the State. Parker v. State, 130 Ark. 234.

The next assignment of error is that the court erred in refusing to instruct the jury upon the law of self-defense.

According to the testimony of the defendant’s brother-in-law, who went with him to the houseboat where the defendant’s wife was staying with Edgar Glenn, they arrived there about daylight. The defendant stopped on the bank about twenty-five yards away and told his brother-in-law to go on the boat and tell his wife that they had come for her. His brother-in-law did so. He went into the room where Glenn and the defendant’s wife were. He told them that the defendant had come for his wife and was on the river bank near by waiting for her. Glenn had already dressed himself. He grabbed a thirty-two caliber automatic pistol and ran out towards the front of the- houseboat, and almost immediately three shots were fired. In a few minutes Glenn climbed up on the boat at its rear end, and expired. The defendant’s brother-in-law did not see the shooting, but denied that he and the defendant had waited under a tree near the houseboat for Glenn to come out and that the defendant shot Glenn without warning as he Walked out to the front end of the houseboat.

According to the testimony of the defendant, he went to the houseboat for his wife at the request of his mother-in-law, and did not intend to kill or inflict bodily harm upon Glenn. He only carried his gun with him for his own protection in the case he was attacked by Glenn. He remained on the bank about twenty-five yards away from the houseboat while his young brother-in-law went into the houseboat for the defendant’s wife. Glenn came ont to the front end of the houseboat towards the defendant with a thirty-two caliber pistol in his hand and endeavored to shoot the defendant with it. The defendant fired at Glenn three times in rapid succession with his pump-gun in order to prevent Glenn from shooting him with the pistol. ' ,'

This testimony warranted the court in instructing the jury on the law of self-defense. Magness v. State, 67 Ark. 594, and Gibson v. State, 135 Ark. 520.

It is also insisted by counsel for the defendant that the court erred in refusing to instruct the jury on voluntary manslaughter, and in this"contention we think counsel ¡are correct.

According to the testimony just recited, the jury might have concluded that the defendant shot deceased under the belief that he was about to be assaulted, but 'that he acted too hastilv and without due care, and was therefore not justified in taking life under the circumstances.

In Allison v. State, 74 Ark. 444, the court, after sayini? that the jury may accent that part of the evidence it believes to be true and reject other portions as untrue, in discussing this very .question said that it was not always necessary to show that the killing was done in the heat of passion to reduce the crime to manslaughter.

The court further said that where the killing is done because the slayer believes he is in great danger, but the facts do not warrant such belief, it shall be murder or manslaughter, according to the circumstances, even though there be no passion. Again, when the slayer, though acting in self-defense, is not himself free from blame, the crime may be manslaughter. See also Bruder v. State, 110 Ark. 402.

The Attorney General has confessed error in regard to each of the assignments discussed above, and for the reasons set forth, his confessions of error are well taken.

It follows that the judgment must be reversed and the cause remanded for a new trial.


text:
    Barron v. State.
    Opinion delivered October 2, 1922.
    1. Criminal law — instruction on possession op stolen property. —In a prosecution for cattle theft, an instruction that “the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances of the case, to be weighed as tending- to show the guilt of one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it is not rebutted,” held not objectionable as on the weight of the evidence; and objection that the instruction was argumentative in using the word “imperative” should have been made specifically.
    2. Criminal law — repetition op instructions. — Refusal of instructions sufficiently covered by other instructions held not error.
    3. Witnesses — cross-examination of accused as to other crimes. —In a prosecution for larceny it was not error to allow the State on cross-examination to ask defendants, for the purpose of testing their credibility, whether they had not recently been engaged in selling whiskey.
    4. Names — idem sonans. — An indictment for larceny charging ownership of the stolen property in Ad Stewart, when his name was Ab Stewart, was- not a fatal variance; the names being idem sonans.

      5. Larceny — admissibility op evidence. — In a prosecution for cattle 1 theft, in which defendants claimed to have purchased the stolen cattle from a big man with a dark complexion, testimony of a third person that two years previously he had bought cattle from a dark-complexioned man weighing about 180 pounds was inadmissible both as being too remote and because there was no evidence that the men were the same, and in view of the fact that the cattle bought by the witness did not belong to the prosecuting witness.
    Appeal from Greene Circuit Court, Second Division; B. E. L. Johnson, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    George Barron and Earnest Barron were separately indicted for'the crime of grand larceny charged to have been committed by stealing three head of cattle of the value of $20 each, in Greene County, Ark.
    The indictment against George Barron alleged the ownership in Ab Stewart, and the indictment against Earnest Barron placed it in Ad Stewart. By consent the cases were consolidated and tried together.
    It appears from the record that within a year before the indictments were returned, the defendants drove two head of cattle from the range several miles southeast of Paragould, in Greene County, Arkansas, to the home of Herman Guetzeit in said county.
    It was further proved that the- two head of cattle belonged to Ab Stewart, who had not sold the cattle, and who had not authorized the defendants to drive them out of the range or1 to sell them. Guetzeit paid the defendants $60 for the cattle, which was the market price. In a few days after they were taken, Ab Stewart located the cattle and demanded possession of them. Upon the refusal to surrender possession to him, Stewart obtained possession of them by a writ of replevin, and afterwards the defendants reimbursed Guetzeit.
    Other evidence tended to show that the defendants had stolen the cattle. The defendants claimed to have bought the cattle, and introduced proof to establish their claim.

      The jury returned a verdict of guilty and fixed the punishment of the defendants at one year each in the State Penitentiary.
    Prom the judgment and sentence of conviction, the defendants have duly prosecuted an appeal to this court.

      M. P. Huddleston, for appellants.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants.
   Hart, J.

(after stating the facts). The first assignment of error is that the court erred in giving instruction No. 10, which is as follows:

“You are instructed that the possession of the property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances of the case, to be weighed as tending to show the guilt of one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it is not rebutted. ’ ’

Counsel for the defendant relies upon the cases of Duckworth v. State, 83 Ark. 192, and Pearrow v. State, 146 Ark. 182.

An examination of the Duckworth case will show that the instruction condemned was materially different from the one now under consideration. The instruction under consideration in that case was No. 5, and an examination of it shows the vice of it was in the court’s telling the jury that the possession of property recently stolen, unexplained, when corroborated by other evidence, was sufficient to convict, and that if the jury believed from the evidence that the defendant was found in the possession of the goods immediately after the store was burned and that the possession was corroborated by other evidence tending to connect the defendants with the larceny, it should find them guilty.

The court properly held, that this was a charge upon the weight of the evidence and fell within the prohibition of the Constitution. It was not proper to tell the jury that it was their duty to convict the defendants if they were found in the possession of goods recently stolen and that such possession was corroborated by other evidence. It was within the exclusive province o-*2 ‘he jury to pass upon the weight to be given to the -evidence. Here the court went no further than to tell the jury that such evidence was for its consideration. The court also told the jury that such evidence alone did not imperatively impose upon it the duty of convicting, even though such evidence was not rebutted.

While the form of the instruction is faulty in using the word, “imperatively,” before the words, “impose upon you the duty of” etc., in the concluding part of the instruction, still, if counsel for the defendant thought that this made the instruction argumentative, a -specific objection should have been made and the defect pointed out to the court. If this had' been done, doubtless the court would have corrected the form of the instruction to meet the objection made to it.

So, too, in the Pearrow case the trial court erred in telling the jury that the possession of property recently stolen and unexplained by the defendant afforded presumptive evidence of his guilt. This was a charge upon the weight of the evidence and fell within the ban of the Constitution.

As we have already stated, no. such vice appears in the instruction quoted above, and we hold that the assignment of error is not well taken.

The court did not err in refusing an instruction asked by the defendant on this point, because the instruction asked was sufficiently covered by the instruction given, and the court is not required to multiply instructions on the same point.

Again, it is insisted that the -court erred in allowing the State to ask the defendants if they had not recently been engaged in the business of selling whiskey.

There was no error in this regard. It is against the law to-sell whiskey, and the accused in a criminal case may, for the purpose of testing his credibility, be questioned on cross-examination as to his having been a gambler and as to other offenses and immoralities. Shinn v. State, 150 Ark. 215.

The indictment against George Barron charged the ownership of the property stolen in Ab Stewart, and the indictment against Earnest Barron charged the ownership in Ad Stewart. This court has repeatedly held that in an indictment for larceny the allegation of ownership is material and must be proved as alleged. • It appears from the record that Ab Stewart was the owner of the cattle stolen.

In. Mooney v. State, 137 Ark. 410, it was held that there was sufficient similarity in the sound of the names “Fincher” and “Fancher” to bring the case within the well recognized doctrine of idem sonans. So here the words “Ab” and “Ad” bring the case within this rule.

The next assignment of error is that the court erred in refusing to allow Allie Reed t'o testify that he had bought cattle from a dark-complexioned fellow weighing about 180 pounds, and that the cattle which he purchased turned out to have been stolen from one of his neighbors.

The defense was that the defendants had bought the stolen cattle in the present case from a large-sized dark-complexioned man, and they contend that the testimony of Allie Reed was competent to corroborate their testimony.

In the first place, the occurrence testified to by Allie Reed happened about two years before the Barron boys were charged with stealing the cattle in the present case. It was therefore too remote in point of time to be of any value as corroborating testimony.

In the next place, the evidence is too general. Testimony that Reed bought cattle from a dark-complexioned man, heavy in weight, does not establish the fact that the defendants also bought cattle from that man. There is nothing in the record even to show that the men were the same ones, and the testimony of Reed shows that the cattle he bought did not belong to Stewart but to another man in the neighborhood.

The same assignment of error is made with regard to the testimony of Jim Melton, which was also excluded from the jury for the same reason.

It follows that the judgment must be affirmed.


author: Hart' J.

text:
    Groning v. State.
    Opinion delivered October 2, 1922.
    L. Criminal law — conclusiveness of finding on motion to quash indictment. — The question presented hy a motion to quash an indictment for collusion between the prosecuting attorney and other court officials to omit calling the names of certain alternate grand jurors and to substitute' the names of others in their stead was one of fact to be determined by the trial court; and, where its finding is supported by evidence, it will not be disturbed on appeal.
    2. Larceny — sufficiency of evidence. — Evidence held to sustain a conviction of stealing chickens.
    -3. Larceny — allegation of ownership. — In an indictment for larceny the allegation of ownership is material, and must be proved as alleged.
    4. Larceny — allegation of ownership — variance.—On a trial for stealing chickens, an allegation that they belonged to a husband is supported by proof that they belonged to him and his wife jointly or to “the family.”
    5. Witnesses — cross-examination of accused. — Cross-examination df defendant charged with stealing chickens as to whether he had been charged-vwith selling whiskey and whether he had been in jail was properly permitted where, the jury were instructed that such evidence should not be considered in arriving at a conclusion as to his guilt or innocence, but only on his credibility.
    Appeal from Clay Circuit Court, Eastern District; R. E. L. Jolmson, Judge;
    reversed.

      C. T. Rloodworth, for appellants.

      J. S. TJtley, Attorney Deneral, Elbert Godioin, Assistant, for appellee.
   Hart' J.

John B. Droning and Joe Droning prosecute this appeal to reverse a judgment of conviction against them for the crime of stealing thirty chickens of the aggregate value of $30. >

The first assignment of error is that the circuit court erred in refusing to sustain the motion of the defendants to set aside and quash the indictment. As grounds for their motion, the defendants introduced evidence tending to prove that the prosecuting attorney and other officers of the court had entered into collusion to have the names of certain alternates on the list of grand jurors not called and to substitute other persons in their stead.

On the other hand, the State introduced evidence tending to show that the names of the two alternate grand jurors in question were called by the clerk, and that, upon their failure to answer to their names, two other qualified persons were selected as grand jurors in their stead.

The circuit court made a specific finding of fact that the alternate list of grand jurors, which included the names of Luther Magee and Jesse Glasgow, was called, and that, upon the failure of these two persons to answer to their names, or to come into the jury box, the court ordered two other grand jurors to be summoned by the sheriff from the bystanders to take their places; that the sheriff thereupon summoned two other persons who were qualified to act as grand jurors, and they were duly sworn and impaneled as grand jurors in the place of said Luther Magee and Jesse Glasgow.

The question presented by the motion to quash the indictment was one of fact to be determined by the circuit court, and the finding made by the court was supported by the evidence introduced by the State. Therefore, under the settled rules of this court, if will not be disturbed upon appeal. Jordan v. Muse, 88 Ark. 587; Burton v. Creel, 122 Ark. 347; and Thomas v. Thomas, 150 Ark. 43.

It is next earnestly insisted that the evidence is not legally sufficient to support the verdict. The defendants denied their guilt and introduced evidence to corroborate their own testimony.

On the part of the State it was shown that thirty Chickens, of the value of $1 each, were stolen from the chicken-house of J. S. Hopper, in the Eastern District of ' Olay Gounty, Ark., on the 14th day of March, 1922. Hopper had about one hundred chickens of all descriptions, and his chicken-house was- situated about sixty yards from his dwelling-house. On the next morning after the chickens were stolen, Hopper found that some one had taken a plank off of the back of his chicken-house and that about thirty hens were gone. They were of the value of $1 each. Hopper saw signs of some one having been there. ,One of the persons wore gum boots and the other shoes. It had rained on the preceding night and it was easy to follow the tracks on the muddy ground. After following the tracks a short distance, they came to where two horses had been hitched to a sapling, and it was easy to follow their tracks on account of the front foot of one of them being of a very peculiar shape. The tracks were followed to the home of Lige Raymer, who had married the mother of the defendants. Joe Groning lived with them at the time. John'B. Groning lived at Poplar Bluff, Mo., but was there on a visit at the time. When the searching party got to Raymer’s, they found two horses which had been hitched to a wagon, and their tracks appeared to be about the same size as those followed to the house. The horse tracks which were followed by the searching party were the only ones that had been made in the road leading to Raymer’s house since the rain on the preceding night. One of the horses hitched to Raymer’s wagon made-a track exactly like the peculiar track which the searching party had followed from near Hopper’s house to Raymer’s house. On that morning one of the defendants had on gum boots and the other shoes. The tracks which they made corresponded with the tracks leading from Hopper’s chicken-house to where the horses appealed to have been hitched to a sapling. Hopper did not see any of his chickens at Raymer ’s house, but Mrs. Hopper identified two or three chickens at Raymer’s as being part of those which had been stolen from their chicken-house on the night in question.

Was this evidence sufficient to warrant the verdict?

The undisputed evidence shows that thirty hens, of the value of $1 each, were stolen from the chicken-house of the Hoppers on the night of the 14th of March, 1922. The jury might have found from the evidence that these chickens belonged to J. S. Hopper, and that they were taken by the defendants. There had been a rain on the night the chickens were stolen and the ground was muddy. Tracks were found leading from the chicken-house to where two horses were tied near by to a sapling. One of the tracks was made by gum boots and one by shoes. On the next morning it was found out that one of the defendants had on gum boots and the other one had on shoes. Their tracks corresponded with the tracks leading from the chicken-house to where the horses were tied. The horses were followed by their tracks to the ’home of the stepfather of the defendants. One of these horses had a peculiar foot, which made a track like the track of one of the Raymer horses. The defendants were staying at Raymer’s house at the time, and some of the chickens which had been stolen were found there. These circumstances pointed to the guilt of the defendants, and were sufficient to support the finding of the jury that the defendants were the guilty persons.

The next assignment of error is that there is a variance between the allegation of ownership of the stolen property in the indictment and the evidence in the case. This court has uniformly held that in an indictment for larceny the allegations of ownership are material and' must be proved as alleged. Mooney v. State, 137 Ark. 410. The indictment alleged the chickens to be the property of J. S. Hopper. It is true that Mrs. Hopper stated that the chickens belonged .to her husband and herself jointly, but her evidence on this point is not undisputed. It is also true that her husband at one point stated that the chickens belonged to the family, but he also stated in the same connection that he was the head of the family. In other portions of his testimony he spoke of the chickens as his own and as having been taken from his chicken-house. Therefore, we hold that this assignment of error is not well taken.

The third assignment of error is that the court erred in permitting the prosecuting attorney to ask John B. G-rohing as to whether or not he had been charged with selling whiskey in Poplar Bluff, Mo., and as to whether or not he had been in jail there.

There was no error in permitting the question to be asked the defendant. In Shinn v. State, 150 Ark. 215, it was held that the accused in a criminal case may, for the purpose of testing his credibility, 'be questioned on cross-examination as to his having been a gambler and as to other offenses and immoralities. The court specifically told the jury that the evidence should not be considered by it in arriving at a conclusion as to the guilt or innocence of the defendant. The jury was also expressly told that it affected only the credibility of the witness.

Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Pierce v. Drainage District No. 17.
    Opinion delivered October 2, 1922.
    1. Drains — enforcement of tax against land of united states.— It is no defense in a suit to enforce a drainage tax against lands that the lands belonged to the United States at the time the assesment was made, where Congress, by act of Jan. 17, 1920, < expressly consented to the assessment of such lands for drainage purposes.
    2. Drains — assessments—time allowed for attacking. — Where no objections were made to drainage assessments made under Acts 1917, No. 103, and 1920, No. 305, within the time and in the manner provided by such acts, the validity thereof cannot be questioned in the drainage district’s action to enforce the collection of the drainage taxes.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor;
    affirmed.

      Arthur T. Brewster, for appellant.
    The said special assessments are null and void and non-enforceable for the reason that they are not uniform and equal. Sec. 5. art. 16, Const, of Arkansas; 48 Ark. 382; 239 IT. S.'234; 151 Mo. App. 561; 201 Mo. 482; 260 Mo. 679; 4 Wheat. 581.
    The order of the county court should be set aside for the reason that said report was confirmed without exceptions by the fraudulent representations of the board of directors. C. & M. Dig., sec. 6290; 3 Ann. Cas. 565; 86 Fed. 200; 138 Fed. 223; 107 Fed. 305; 210 U. S. 385; 207 U. S. 127.
    A chancery court has jurisdiction to grant relief against a judgment at law. 33 Ark. 455; 97 Ark. 314; 110 Ark. 79.
    A court of equity has power to set aside a judgment for fraud practiced by the successful party in obtaining the judgment. C. & M. Dig., sec. 6290.
    The assessment charged against the lands is absolutely null, void and ineffective for the following reasons: (1) said special act 103 is in conflict with and in contravention of § 5, article 10, of the Constitution of Arkansas; (2) is in conflict with and in violation of § 10 of article 1 of the Constitution of the United States; (3) is in conflict with and in violation of the Act of Admission, approved June 16, 1836, the “Compact” approved June 23, 1836, and the “Ordinance and Acceptance of Compact,” approved October 18, 1836; (4) is in conflict with § 3 of article 4 of the Constitution of the United States. Act of Admission, p. 199, C. & M. Dig.; Compact, p. 200, C. & M. Dig.; Ordinance and Acceptance of Compact, p. 202, C. & M. Dig., 96 U. S. 107.
    The State of Arkansas had no authority to pass an act seeking to impose taxes on Government property. Compact, p. 200, C. & M. Dig!; 186 U. S. 206; 16 Wall. 603; 22 Wall. 444; 179 U. S. 222; 95 U. S. 259; 115 U. S. 600; 133 U. S. 496; 9 Wall. 23; 117 U. S. 151; 243 U: S. 404; 43 Ark. 203.

      Davis & Costen and Rose, Hemingway, Cantrell & Loughborough, for appellee.
    Appellant was barred from objecting to the assessment. Kirby’s Digest, § 5685; 98 Ark. 544.
    The Legislature may determine the amount of benefits or it may empower a board to act for it, and it is only an arbitrary determination in this respect that the courts will review. 133 Ark. 125; 83 Ark. 344; 98 Ark. 113; 98 Ark. 543.
    The testimony fails to show that no benefits are derived fyom the construction of the improvement. 134 Ark. 14.
    The fact that benefits have not been fully realized affords no avenue of escape from payment of the cost of the improvement. 100 Ark. 366; 140 S. W. 585; 123 Iowa 427; 1 L. E. A. (N. S.) 431.
    No relief can be given against a judgment on account of irregularity in obtaining it unless the party shows a meritorious defense. 50 Ark. 458; 33 Ark. 778; 51 Ark. 344; 52 Ark. 81; 54 Ark. 3; 55 Ark. 103; 56 Ark. 546; 57 Ark. 354; 57 Ark. 603; 61 Ark. 647; 72 Ark. 106; 74 Ark. 296; 75 Ark. 425; 84 Ark. 532; 86 Ark. 597; 94 Ark. 350; 101 Ark. 145; 104 Ark. 458; 123 Ark. 448; 136 Ark. 551; 137 Ark. 462; 140 Ark. 447; 143 Ark. 551; 145 Ark. 298.
   Smith, J.

This suit was brought to enforce the collection Of certain delinquent drainage taxes. The delinquent landowners answered and attacked the validity both of the district itself and the assessments levied by it. There was a decree in favor of the district, and the landowners have appealed. The district was created by act 103 of the Acts of 1917 (page 485), and many of the objections to the act itself have been so frequently considered by this court, and decided adversely to the contentions of appellants, that we will not again review them.

So far as the assessments themselves are concerned, there are three grounds of attack: First, that the lands were not subject to taxation for drainage purposes; second, that the assessments were not authorized by the act itself; and third, that the assessments were fraudulently made.

The district was organized to drain a large area in Mississippi and Poinsett counties, and included within the boundaries of the district were about 17,000 acres of unsurveyed land the title to which was in dispute at the time of the passage of the act creating the drainage district. Subsequently the title to this land was adjudged to be in the United States.

The Congress, on January 17, 1920, passed an act entitled “An act authorizing local drainage districts to drain certain public lands in the State of Arkansas, counties of Mississippi and Poinsett, and subjecting said lands to taxation.” 41 U. S. Statutes at Large, part 1, chap. 47, p. 392. This act provided that all of the unentered, unreserved public lands, and all of the public lands for which no final certificates had been issued, within the area described by the act, should be subject to the laws of Arkansas relating to the organization of drainage districts. The appellants are owners of the lands therein referred to, and insist that the lands are not taxable for the reason that the title to the lands was in the United States Government when the drainage district was organized.

A complete answer to this objection appears to be that the Federal Government, through the Congress, has expressly consented that the lands be taxed for drainage purposes; and we see no reason why the Federal Government might not, at its own election, assume the ordinary duties of proprietorship. It stands admitted that no lands in the district had greater need of drainage- than these government lands. The fact that they were unsurveyed and were located principally within the meander lines of what the original government surveys showed to be lakes would indicate an even greater necessity for drainage. It is also one of the undisputed facts in the case that the necessity for a drainage district was emphasized and made urgent by the fact that drainage dkp. tricts in the State of Missouri had been organized which would have used a large part of the area of the Arkansas district for outlet purposes.

It is very earnestly insisted that appellants’ lands were not included in the original assessments of benefits for the reason that at the time those assessments were made the Congress had not consented to the assessment of the government lands lying within the district, and that the drainage act conferred no authority for the assessment of these lands, which was made after the act of Congress was passed.

It appears, however, that after the passage of the act of 'Congress, the General Assembly of this State, on February 23, 1920, passed an act, No. 305, providing for a modification of the plans of the district and for a reassessment of benefits. The provisions of this last act, which will not be set out, as they are similar to numerous other acts which have been upheld by this court, appear to be sufficiently comprehensive to answer the objection that no authority existed for the assessment of appellants’ lands.

Pursuant to act 305 an assessment of appellants’ lands was made, the plans of the district having been altered to afford those lands, better drainage than the original plans promised. A voluminous record was made in the court below on that assessment, which was attacked on the grounds, among others, that proper notice was not given of the change of plans and the assessment conforming thereto; that the assessments of appellants’ lands were arbitrary, discriminatory and confiscatory; and that the confirmation thereof was procured by fraud.

Upon this issue the court, in its opinion, made a finding of fact which we think is not clearly against the preponderance of the evidence, as follows:

“The defendants contend, and several of them testify, that a hearing on the assessments was advertised for a certain day, that they appeared in the county court at that time, and that Mr. Origger, one of the commissioners, was present and said that, owing to the absence of the other 'commissioners, the matter could not be taken np then, but that the assessments would either be made right or another day of court would be had; that they relied upon this assurance and did not file exceptions; but, notwithstanding the promise, the assessments were made binding, and were approved that day. The hearing was before the county judge, Hon. Gr. E. Keck, and the fact that he, at the request of reputable counsel for the district, entered the order complained of immediately after the alleged statement of Mr. Crigger, is weight in itself against the probability of the statements having been made.

‘ ‘ Some 65 or 70 landowners plead this fraud, but only a few of them testify with reference to the alleged statements of Mr. Crigger as a representative of the district. The others do not show that they were present or were in any way deterred from making a defense by reason thereof. Some eight or ten in all were represented by an attorney at the time, and he testified that he was employed merely with reference to the adjustment of damages and not to fight the assessment; that he did not hear or learn of the statement complained of. Mr. Crigger and his attorney, Mr. Costen, both positively deny any such agreement. It is not customary for contesting litigants to enter the court-room at the hour of trial without either counsel or pleadings, and the fact that the few who did have counsel did not employ him to fight the assessment is significant. The actions of defendants speak louder than their words, and the question of fact must be decided against them, making unnecessary a consideration of whether they would have had a legal defense to the assessments had they made a contest.”

We concur also in the view expressed by the court that his finding of fact made it unnecessary to consider whether appellants would have had a legal defense to the assessments, had they made a contest.

This suit, which, as we have said, was brought to enforce the payment of delinquent assessments, was filed August 29, 1921; and an answer was filed on December 10, 1921, which was nearly a year and a half after the confirmation of the assessments complained of. This answer is the first pleading of appellants questioning their assessments; and this lapse of a year and a half is, itself, a circumstance tending to sustain the chancellor’s finding of fact.

The assessments became final under the terms of the act under which they were levied because no objections were made thereto in the time and manner provided by the act. In the recent case of Road Imp. Dists. 1, 2 and 3 v. Crary, 151 Ark. 484, we said: “We have often decided that the method provided in the statute for attacking the validity of the assessment of benefits is exclusive, and that it must be pursued within the time prescribed by the statute. In other words, it has been settled by repeated decisions of this court that a collateral attack cannot be made upon the assessment of 'benefits unless void on the face of the proceedings. Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168; Summers v. Conway & Damascus Rd. Imp. Dist., 139 Ark. 277; Nettles v. Hazlewood Road Imp. Dist., 144 Ark. 632; Sikes v. Douglas, 147 Ark. 469.”

It follows, from what we have said, that the decree of the court below must be affirmed, and it is so ordered.


text:
    Jacobs v. State.
    Opinion delivered October 2, 1922.
    1. Agriculture — selling infected nursery stock. — In a prosecution for selling and offering for sale nursery stock infected with a disease in violation of a rule of the State Plant Board promulgated pursuant to Acts 1917, p. 1904, No. 414, prohibiting the sale of infected nursery stock, the State was not required to show that the sale was made with knowledge that the trees were so infected.
    2. Agriculture — rule of plant board. — A rule of the State Plant Board prohibiting the sale of infected .nursery stock, promulgated pursuant to Acts 1917, p. 1904, No. 414, has the force and effect of a statute and should be construed as if it were one.

      3. Criminal law — venue.—In a prosecution for selling infected nursery stock in violation -of the rule of the State Plant Board promulgated under Acts 1917, p. 1904, No. 414, the sale must he shown to have been made in the county where the venue was laid.
    4. Criminal law — sale of infected nursery stock — venue.— Where, pursuant to a mail order for nursery stock, the seller delivered the stock to the carrier for shipment to the buyer in an adjoining county, the sale took place in the county in which the delivery was made to the carrier, and not in the county in which the buyer received the shipment, though the buyer reserved the right to return the shipment if the stock should be . infected.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge-;
    reversed.

      Walker & Walker, for appellant. ■
    J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was convicted under an indictment charging that he “did unlawfully sell and offer for sale certain nursery stock called apple trees, which were •then and there infected with a disease called crown gall, and he, the said T. L. Jacobs, then and there well knowing that said apple trees aforesaid were so infected with s-aid disease called crown gall * *

It is first insisted, for the reversal of the judgment, that the testimony did not show knowledge that the trees sold were infected with crown gall. In response to this insistence it may be first said that the instructions to the jury required a finding of knowledge and told the jury to acquit unless this finding was made, and the verdict is not without testimony legally sufficient to support it under this requirement. But it may be further said — and we put the decision of the point under consideration on that-ground — that the State was not required to show criminal intent.

■ The General Assembly of 1917 passed an act entitled “An act to prevent the introduction into and the dissemination within the State of insect pests and diseases injurious to plants and plant products of this State, to create a State Plant Board, and to prescribe its powers and duties.” Act 417, vol. 2, Acts 1917, p. 1904.

This act requires the board there created to make rules and regulations found necessary to promote the purposes of the act, and provides for the imposition of a fine not exceeding $100 against any one violating such rules and regulations. One of the rules so promulgated provides that certain “insect pests and plant diseases and nursery stock infested or infected therewith are declared to be public nuisances of such nature that their dissemination should be prevented,” and the infection of crown gall is among those thus included, and the sale or shipment of such infected nursery stock is prohibited.

This rule has the force and effect of a statute and should be construed as if it were one. - Howard v. State, 154 Ark. 430.

In the case of Wells Fargo & Co. Express v. State, 79 Ark. 349, a conviction was had against a common carrier exporting a shipment of game beyond the State. The express company defended upon the ground that it had no knowledge that the package tendered for shipment contained game; but the court held this was no defense, and, in doing so, quoted from tíie Supreme Court of Michigan as follows: “Judge Cooley, while Chief Justice of Michigan, and speaking for the court said: ‘Many statutes which are in the nature of police regulations,' as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require. a degree of diligence for the protection of the public which will render violation - impossible.’ People v. Roby, 52 Mich. 579, s. c. 50 Am. Rep. 270.” See also McClure v. State, 37 Ark. 426; Brittin v. State, 10 Ark. 299; Redmond v. State, 36 Ark. 58; Annotation to case of People v. Johnson, 4 A. L. R. 1535, 288 Ill. 442, 123 N. E. 543.

It is further insisted that- the undisputed evidence shows that the sale occurred in Benton-County, whereas the indictment alleges the sale occurred in Washington County, The evidence on the question of venue is as follows. Appellant is a nurseryman, and Ms place of business is at Rogers, in Benton County, and be advertised Ms business in newspapers circulating in that and the adjoining counties. F. F. Copeland is a resident of Cane Hill, in Washington County, and on March 9, 1921, he wrote appellant the following letter:

“Cane Hill, Arkansas, March 9, 1921.

“Gentlemen: Find inclosed money order for $51.20 for which ship, by prepaid express, to Lincoln, Arkansas, the following: (Then follows list of trees desired). Notify me at Cane Hill, Arkansas, R. F. D. 1.

“Respectfully yours,

“F. F. Copeland.”

Pursuant to this letter, appellant shipped the trees ordered to Copeland at Lincoln, and while the trees were in the express office at Lincoln they were inspected by the chief inspector of the State Plant Board and found to be infected with crown gall. Copeland was notified of that fact by the inspector, and thereupon wrote the following letter:

“Cane Hill, Arkansas, March 17, 1921.

“Benton County Nursery Co.,

“Rogers, Ark.

“Gentlemen: I was informed this morning that the trees you shipped me was at Lincoln and had been inspected there by George G. Becker, State inspection agent, and pronounced from 35 to 40 per cent, diseased, and not fit for use, so will leave them there subject to your orders, as I can’t use the diseased stock, but will say further if you can supply, stock free from disease, good healthy stuff that will stand inspection, and-send them at once, I will still take the trees as ordered, otherwise return my money. I am advised by Mr. Becker to make this move, he also advised me to notify Mm as to results; he cut off some 15 or 20 roots from stock shipped and carried some off with him, and said whole thing was in bad condition so my notice said.

“Hoping to hear from you at once, I remain,

“Yours truly,

“F. F. Copeland, Cane Hill, Ark.”

Pursuant to this letter, appellant shipped the trees there referred to from Rogers, in Benton County, to Copeland at Lincoln, in Washington County; and while the second shipment was never officially inspected, there was testimony from which the. jury might have found that trees embraced in this second shipment were also infected. Copeland accepted this second shipment, took the trees from the express office to his home and planted them.

It is conceded by the Attorney General that if the sale was completed in Benton County, the judgment must be reversed; but it is insisted that the letter set out above made the sale a conditional one, which was not completed until the arrival of the trees at Lincoln and their inspection and acceptance at that place. Is this true?

It will be borne in mind that the particular regulation of the State Plant Board which appellant is charged with having violated is that of selling trees infected with crown gall. The conviction cannot be sustained unless the sale was shown to have been made in Washington County, where the venue was laid. .

We have a number of cases which consider the question when a sale is complete, but the ones most analogous to the case under consideration ,,are those involving the venue of sales of intoxicating liquor. The case of Harper v. State, 91 Ark. 422, is much in point. There Harper was indicted in the Fort Smith District of Sebastian County for selling liquor to a minor. The sale was made under these circumstances. One Russell, a resident of Warner, Oklahoma, wrote Harper a letter inclosing three dollars for a gallon of whiskey. Harper was convicted of selling liquor to a minor, and on his appeal contended that he did not know that Russell was a minor, and that the sale did not take place in Fort Smith, but in Warner, Oklahoma, where the whiskey was delivered. Answering the contentions of the appellant the court said: “The sale occurred at the place where the contract and delivery were actually made. The contract of sale, like all other contracts, consists of an agreement between the parties and in addition thereto a delivery of the chattel. In this case the minor sent a letter to the defendants making an offer to bny the liquor, and this letter was received by the defendants at Fort Smith, and at that place the offer was accepted by them. When they accepted the offer, the contract was entered into, and the place of the agreement was therefore at Fort Smith. The defendants thereupon at Fort Smith appropriated and segregated from their stock the gallon of whiskey, and delivered same to a common carrier at Fort Smith, duly addressed to the minor, and went further and obtained a bill of lading for the whiskey from the carrier for .the minor, in which the minor was named as the consignee. Now, it is uniformly held that the delivery of goods to a common carrier, when made in pursuance of an order to. ship, is in effect a delivery to the consignee; and more especially is this true when the title to the shipment, as evidenced by the bill of lading, is-made in the name of the consignee. State v. Carl & Tobey, 43 Ark. 353; Burton v. Baird, 44 Ark. 556; Berger v. State, 50 Ark. 20; Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Equitable Mfg. Co., 79 Ark. 456; 1 Mechem on Sales, secs. 736, 739; Tiedeman on Sales, see. 95.” See also Josey v. State, 88 Ark. 269; Glass v. State, 68 Ark. 266; Hunter v. State, 55 Ark. 357; Herron v. State, 51 Ark. 133.

We have cases holding that the title does not pass where goods have been delivered to a common carrier pursuant to an order to ship, but under an agreement'between the parties that the title thereto shall not pass until certain conditions have been performed. For instance, in the case of Gibson v. Inman Packet Co., 111 Ark. 521, the court, after announcing the general principle that delivery of goods to a common carrier, when made in pursuance of an order to ship, is, in effect, a delivery to the consignee, stated that it was not one of unvarying application, as the rule had its origin in the theory that the parties, by such delivery, intended to pass the title to the property, but where a contrary intention was shown the rule does not apply.

It is not contended that anything occurred between appellant and Copeland to defeat the application of the rule except the letter set out above; but it is contended that the letter itself shows that the sale was conditional, and that it was a condition precedent that the trees should be free from crown gall, and the sale did not, therefore, become complete until after the arrival of the shipment at Lincoln and an opportunity had been afforded to inspect the trees.

We do not so interpret the letter. It does reserve the right to return an infected shipment. But this was a right which existed without being reserved, and was one which the consignee exercised in regard to the first shipment without having reserved it in his order. The consignee could not be required to' keep infected stock, but there is nothing in the letter which purports to change the place of delivery. That occurred in Benton County, where the order was accepted ’and filled and the goods delivered to the carrier properly consigned; and the circumstance that a right of rescission was reserved did not alter the fact that the delivery was made in Benton County. This right of rescission was not exercised and the second shipment was not inspected but was accepted by the consignee. The law of this subject is stated in sec. 304 of the article on Sales in 24 R. C. L. as follows: “The question as to when the title passes in case of a delivery to a carrier for transportation to the buyer primarily depends on whether such delivery is a full compliance with the duty of the .seller with respect to delivery, and the intention of-the parties as to whether the title shall pass at the time of such delivery or not. It is the general rule, where the place of delivery is the point of shipment, that a delivery of the goods to a carrier, consigned to the buyer, whether the carrier is one designated by the buyer or left by him to selection by the seller, will pass the title to the buyer, if there is nothing else to show a contrary intention. * * * * Likewise the fact that the buyer has the right to inspect the goods on arrival at a certain point and reject them for nonconformity to the contract of sale will not itself prevent the passing of the title on delivery to the carrier; it is otherwise, however, where the goods are shipped without any contract binding the consignee to accept the goods, but merely giving him the option to do so or not as he may elect. ’ ’

The letter set out did not ask a mere option to buy or a privilege to do so after inspection; .it was an order for goods to be filled by delivery for shipment to a common carrier by prepaid express. The purchase price was paid in advance and preceded the shipment, and the contract became a closed and completed transaction so far as the appellant was concerned when he delivered the trees ordered by Copeland to the carrier, subject only to the right of rescission by Copeland, which was never exercised.

We conclude, therefore, that the sale was made in Benton County, and the judgment ’ of conviction must therefore be reversed. It is so ordered.


text:
    Spights v. State.
    Opinion delivered October 2, 1922.
    1. Intoxicating liquors — unlawful sale — evidence.—In a prosecution for selling intoxicating liquors, evidence held sufficient to warrant conviction.
    2. Witnesses — cross-examination.—In a prosecution for selling intoxicating liquors, cross-examination of accused as to his testimoney before the grand jury was properly allowed where the prosecuting attorney testified that accused told him he wanted to go before the grand jury and explain the charges against him, which he knew was under investigation, and was told that he might do so, but, if he did so, he would be cross-examined.
    3. Continuance — absence of non-resident witnesses. — It was not error to refuse a continuance for the absence of nonresident witnesses where .no showing was made why their depositions had not been taken.

      t. Criminal law — instruction as- to reasonable doubt. — An instruction that-the jury must-consider all the evidence fully and fairly before they could entertain a reasonable doubt as to the defendant’s guilt was not erroneous.
    5. Criminal law — testimony on preliminary hearing. — In a prosecution for selling intoxicating liquors, the refusal to permit defendant to read in evidence the testimony of absent witnesses given at the preliminary hearing of defendant on a charge of operating a gambling house was not error, both because no effort to take their deposition had been made, and because the charges were different. ;
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      Richard M. Ryan, for appellant.

      J. S. Utley, Attorney General, Elbert Godioin, Assistant, for appellee.
   Smith, J.

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

One J. A. Brooks testified that he lived in Hot Springs, and left his home to spend an idle evening. As he sauntered down the street he met a negro boy, of whom he inquired where a crap game could be found. The boy furnished the information -by conducting Brooks to appellant’s place of business, and upon entering this place Brooks found two negroes shooting craps on a pool table. Brooks participated in that game until three or four other men came in and a game of poker was started. After the poker game had been in progTess for a short time appellant appeared with a bottle of whiskey and sold drinks to the players for twenty-five cents each. Brooks soon bought a second drink, after which he says he bebeeame unconscious, and when he woke the next morning he found he had lost his money, had pawned his watch, and had drawn a check against his bank account for $300. A witness named Sexton corroborated Brooks about the purchase of the whiskey.

This statement of facts answers the assignment of error that the evidence is insufficient to sustain the verdict.

Appellant denied all these facts, although he admitted cashing the check for Brooks, which he says he did as an accommodation, although he stated that Brooks was drunk at the time and he had never seen him. before.

On the cross-examination of appellant he was asked, “Did you not say this: ‘He wrote the check out in my presence and signed it’?” This question appears to have been asked by the prosecuting attorney while examining and apparently reading from the minutes of the grand jury. Objection was made to this question on the ground that by using the grand jury notes appellant had been required to repeat testimony which he gave involuntarily before the grand jury.

This assignment of error may be disposed of by saying that the prosecuting attorney took the stand and testified that appellant told him he wanted to gc before the grand jury and explain the charge against him which he knew was under investigation, and appellant was told that he might do so, but if he did go before the grand jury he would be cross-examined. Under these circumstances there was no error in asking the witness about his testimony before the grand jury. State v. Roberts, 148 Ark. 328, 336; Pinkerton v. State, 126 Ark. 201; Ex parte Butt, 78 Ark. 262; Eastling v. State, 69 Ark. 191.

A motion for continuance was filed on account of the absence of certain witnesses. But these witnesses were nonresidents of the State, and were known to be so by appellant, who was indicted and arrested on the 12th day of January, 1922. His case was continued to the next term and was set and called for trial on the 29th day of March, 1922. No showing was made why the depositions of these nonresident witnesses were not taken, as might have been done.

An exception was saved to the istruction given by the court on the question of reasonable doubt, the objection to the instruction being that it told the jury they must consider all the evidence fully and fairly before they could entertain a reasonable doubt. The portion of the instruction upon which this objection is based reads as follows: “But if, after fully and fairly considering all of the evidence, you entertain a reasonable doubt as to whether or not he sold alcoholic liquors, or was interested in the sale, then it would be your duty to find him not guilty.” We think the instruction a proper one. The jury should consider all the evidence fully and fairly, and this consideration should properly precede the determination of the question of guilt.

It is insisted that error was committed in refusing to permit appellant to read in evidence the testimony of certain witnesses given at the preliminary hearing in the municipal court of Hot Springs, in which appellant was there charged with operating a gambling-house. These were the same witnesses on account of whose absence a continuance was asked. A stenographic report of the testimony of these witnesses had been made at the time, and the stenographer who had reported the case had transcribed his notes and was present to read them; but the court refused to permit this to be done. As has been said, it appeared from the examination of the witnesses in .this preliminary trial that they were nonresidents of the State, and were only temporarily, staying in Hot Springs, yet, as has been said, no attempt had been made to take their depositions. A syllabus in the case of Wimberly v. State, 90 Ark. 514, is applicable here: “Proof of what a witness swore upon a former trial is admissible on a subsequent trial of the same cause if it be shown that he is a nonresident and out of the court’s jurisdiction; but if his place of residence be known, and his testimony can be taken under a commission, it is within the court’s discretion to issue a commission to take his testimony or to admit proof of his former testimony, and the exercise of such discretion is not reviewable save for gross abuse.”.

Moreover, the charge before the municipal court was that of operating a gambling-house, while the charge here is that of selling liquor, and the evidence was excluded by the court on that ground, as is indicated by the remarks of the judge in overruling the motion. It affirmatively appeared that the prosecuting attorney had dismissed before the municipal court the charge of selling liquor against appellant and was seeking to have appellant bound over- for operating a gambling-house. The charges being different, there was no error in excluding the testimony on that ground. Eyer v. State, 112 Ark. 37; Fox v. State, 102 Ark. 393.

Exceptions were saved to certain remarks of the prosecuting attorney; but after considering them we have soncluded they were matters of declamation or argument and could not have been prejudicial.

No error appearing, the judgment is affirmed.


author: Humphreys, ,J.

text:
    Cook v. State.
    Opinion delivered October 2, 1922.
    1. Indictment and information — blank date. — An indictment is not demurrable for leaving the date of the offense blank.
    2. Continuance — illness of defendant. — Refusal to grant a continuance for the merely temporary illness of defendant was not error where the court had opportunity to observe defendant, where no prejudice was shown to have resulted from being forced into trial, and where defendant was insisting upon a continuance for the term, instead of postponement for a few days.
    3. Criminal law — evidence of improper relations with other GIRLS. — In a prosecution for assault to rape, evidence that defendant attempted to have improper relations with three other little girls on various occasions about the time of the alleged assault on the prosecutrix was admissible to rebut testimony of defendant that he had been without sexual power for two years previous.
    4. Criminal law — weight of testimony of infant. — In a prosecution for assault to rape, the weight and effect of the testimony of the prosecutrix, who was 8 years old, who displayed knowledge of right and wrong and understood the nature of an oath, was for the jury.
    5; Rape — sufficiency of evidence. — In a prosecution for assault with intent to rape, evidence held to sustain conviction.
    6. Criminal law — repetition of instructions. — It was not error to refuse instructions covered by those given.

      7. Criminal law — judicial notice. — The court will take judicial notice that Bentonville is located in Benton County and within the jurisdiction of the Benton Circuit Court.
    8. Criminal law — failure to require state to elect. — In a prosecution for assault to rape, 'the failure to require the State to elect the particular act of defendant it relied upon for conviction was not error where defendant made no request for election.
    9. Witnesses — impeachment op accused. — Where defendant testifies in his own behalf, he becomes subject to impeachment like any other witness.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      W. D. Mauck, for appellant. .

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, ,J.

Appellant was indicted, tried and convicted in the Benton Circuit Court for an assault with intent to commit rape on Frances Allen and, as punishment therefor, was adjudged to serve a term of twelve years in the State Penitentiary. From the judgment of conviction an appeal has .been duly prosecuted to this court.

Appellant’s first insistence for reversal is that the court erroneously overruled his demurrer to the indictment. The indictment alleged the commission of the offense on a blank date. It was not demurrable on this ground. Grayson v. State, 92 Ark. 413; Threadgill v. State, 99 Ark. 126.

Appellant’s first insistence for reversal is that the court erroneously overruled his motion for continuance. His case was set for trial on May 17, 1922. On that day he procured a continuance until June 5, a day in the same term. On June 5 his attorney made an obal motion for continuance on account of the illness of appellant. The ■ State’s attorney agreed that evidence might be heard upon the motion, which resulted in a denial of a continuance for the term, over the objection and exception of appellant. The court passed the case on his own motion, however, until the following morning. Two physicians, Doctor-s Hurley and Pickens, gave testimony relative to appellant’s illness. Dr. Pickens was the physician in attendance upon him, and Dr. Hurley made an examination of him before testifying. Both agreed that appellant was temporarily confined to his bed on account of a disordered stomach, and bowel complaint. Both thought it best for him to keep quiet and remain at home until there was a change for the better, but neither thought it would endanger his health or his life to attend court. On the following morning appellant appeared in court and insisted upon a continuance of his case for the term. The oral motion was reduced to writing and submitted upon the evidence adduced the day before. The court again denied the motion, over the objection and exception of appellant, and ordered the trial to proceed. In view of the fact that appellant’s ailment was temporary, that the court had an opportunity to observe him, and that no prejudice was shown to have resulted to him on account of being forced into trial; and the further fact that appellant was insisting upon a continuance for the term instead of a few days’ delay, we are unable to say that the court abused his discretion in overruling the motion. Morris v. State, 102 Ark. 518.

Appellant’s next insistence for reversal is that the court erroneously admitted the testimony of three little girls, Virgie Dean, Hazel Booth, and Hazel Hubbard, who testified that appellant attempted to have improper relations with them on various occasions about the same time it is alleged he assaulted Frances Allen. This evidence was admitted in rebuttal to testimony given by appellant in his own behalf, to the effect that he had been without sexual power for two years at the time of the alleged assault. He testified to this fact as tending to show the improbability of the alleged assault. Having made his lack of sexual desire a material issue, he was not in position to complain of the introduction of testimony as to collateral acts, tending to refute his claim of sexual inability. The admissibility of the testimony comes within the rule announced in the case of Brust v. State, 153 Ark. 348.

Appellant’s next insistence for reversal is that the testimony of the prosecuting witness, Frances Allen, was so unreasonable that no faith and credit should be attached to it, and, because of this fact, the evidence was insufficient to support the verdict. She testified that she was in the habit of visiting the appellant’s store in Bentonville, and that for more than a year he petted, coaxed, and handled her in an overly familiar way, and, through his advice, she did not inform her mother of his immoral conduct; that on one occasion he gave her candy and induced her to go upstairs with him where he laid her on sacks and attempted to have sexual intercourse with her. It is true, the little girl was only eight years of age, but upon examination she displayed a knowledge of right and wrong, and understood the nature of an oath. iShe, seemingly, was of average intelligence. The weight and the effect to be attached to her testimony was a matter exclusively for the jury. Roland v. Nall, 100 Ark. 629; Malone v. Collins, 112 Ark. 269. Credit having been accorded her testimony by the jury, the evidence, revealed by the record, was sufficient to support the verdict.

Appellant’s next insistence for reversal is that the court erred in refusing to give his requested instruction No. 4, defining a simple assault. The court correctly defined simple assault in his oral instructions. Also, that the court erred in refusing to give his requested instruction No. 7, which is as follows: “Unless you believe from all the evidence in this case, beyond a reasonable doubt, that the defendant assaulted the prosecuting witness with the intent of ravishing’ her, and that he intended to overcome her resistance, then you are authorized to find the defendant not guilty of an assault to rape.” This instruction was fully covered in appellant’s requested instruction No. 1, given by the court. The law does not require courts to repeat themselves in instructing juries.

Appellant’s next insistence for reversal is .that the venue was not established. The proof showed that the assault was' committed in appellant’s store in B'entonville. The court had notice, without proof, that Bentonville is located in Benton County and within the jurisdiction of the Benton Circuit Court. Foreham v. State, 53 Ark. 46.

Appellant’s next insistence for reversal is that the court did not require the State to elect the particular act of appellant it relied upon for a conviction. No request was made for 'an election, hence the question of election does not arise.

Appellant’s next and last insistence for reversal is that the court erred in permitting the State to impeach his reputation for morality. Appellant became a witness in his own behalf, and was subject to impeachment the same as any other witness. Hunt v. State, 114 Ark. 239.

The judgment is affirmed.


author: McCulloch, C. J.

text:
    Satterfield v. George.
    Opinion delivered October 9, 1922.
    1. Appeal and error — finding on conflicting testimony. — A finding of the trial court on conflicting oral testimony on issue of fact will not be disturbed.
    2. Attachment — insufficiency of 'levy — waiver.—Where plaintiff in attachment consented to a levy as made by the sheriff and made no objection thereto until after final judgment against the attachment defendant, he could not thereafter complain that the sheriff had made an insufficient levy.
    Appeal from Tell Circuit Court, Dardanelle District; A. B. Priddy, Judge;
    affirmed.

      John M. Parker, for appellant.
    The writ commanded the sheriff to attach and safely keep the crop of corn, cotton, etc., of the defendant, etc., and the sheriff in his return stated: “I have duly served same by taking charge of the within named crop and holding same subject to the orders of the court, as herein commanded.” Plaintiff had the right to rely, and did rely, on this' return as correct.
    In the face of his return that he had levied on the crop as commanded, it was not competent to contradict the same by oral proof that this return was not true and that he had in fact only levied on one hundred bushels . out of the two hundred 'and fifteen bushels subject to levy. 4 Ark. 184; 5 Ark. 665; Id. 375.
   McCulloch, C. J.

Appellant instituted an actión in the circuit court of Yell County (Dardanelle district) against his tenant, A. S. Haney, to recover the sum of $1,100, alleged to lie due as rent of land, and caused to be issued and delivered to appellee, as sheriff; of the county, a writ of attachment commanding him to attach and safely keep all of the crops of cotton, corn and other products grown on the farm by defendant Haney.

Appellee, through his deputy, Elmer Warren, proceeded to levy the attachment, and took into his possession one hundred bushels of corn and made a return on the writ showing that he had levied upon the crop as therein commanded. Neither the writ of attachment nor the return thereon specified the number of bushels of corn to be taken, or which the sheriff took, under the writ.

No objection was made to the officer’s return until after judgment in the action was rendered in appellant’s favor against defendant Haney, and then appellant filed a petition for mandamus, alleging that the sheriff had only taken one hundred bushels of corn, when, in truth and fact, there were two hundred and fifteen bushels of the corn, and praying that the sheriff be compelled to take the balance of the corn into his possession and sell it.

There was a trial before the court of the issues presented by the petition, and oral testimony was adduced, and the court found the issues in favor of appellee, the sheriff, as against appellant’s petition. Appellant introduced testimony ' tending to show that at the time the attachment was issued and levied by the sheriff the quantity of corn raised by the tenant and in his possession was two hundred and fifteen bushels, but that the sheriff had only' levied on one hundred bushels, and refused to levy bn any more. The testimony introduced by appellant also, tended to show that he did not consent In any way for the sheriff to levy on any less quantity .than the full amount in the tenant’s possession.

On the other hand, Warren, who levied the writ of attachment, testified that when he received the writ he went out to see the appellant and requested him to go along and point out the property to be taken, but that appellant declined to go and stated that Haney would point out the “stuff” to be levied on. The witness testified that when he reached the farm where Haney lived the latter staied that he had only sixty-five or seventy bushels of corn on which appellant had a claim, but that he was willing to turn over one hundred bushels, and did turn over that quantity; that witness reported this to appellant, and that appellant made no objection to the levy. Witness stated that his understanding from appellant was that the levy was satisfactory, and that no objection was made until after the judgment was rendered in the suit against Haney. The witness was asked, on cross-examination, if appellant and his attorney did not insist from the very start that the witness had not levied on all the corn and that he should go back and make another levy, but the witness positively denied that there was any such insistence on the part of appellant or his attorney.

Haney also testified as a witness and stated that at the time of the levy he had left only about sixty-five or seventy bushels of the corn against which appellant had a rent lien, and that he turned over one hundred bushels in order to obviate a controversy.

- ' Pretermitting a discussion of the question whether or not appellant has adopted the proper remedy, it is sufficient to say that the issue of fact tendered by appellant was heard by the court upon oral testimony and that it was conflicting, and it was sufficient to sustain the finding of the court. If appellant consented to the levy made by the sheriff and Reported in his return, and made on objections thereto until after final judgment in the cause, he would not be heard to complain that the sheriff had made an insufficient levy.

According to appellant’s own testimony, he knew before the trial of the main cause that, notwithstanding the return of the sheriff had not specified any particular quantity, only one hundred bushels of corn had been taken, and if he considered that this was an insufficient levy he could have made a seasonable attack upon it. And if, as stated by the witness Warren, he consented to the compromise involved in the levy of the writ,' he could not thereafter repudiate it and insist on another levy of the same writ for an additional quantity of corn.

According to Warren’s testimony, there was an execution issued on the judgment after it was rendered, and appellant placed the writ in his hands, but later directed him not to serve it, for the reason that defend: ant Haney would schedule his property as exempt.

As before stated, the issue of fact has been decided against appellant, and we think the decision is based upon sufficient evidence.

Affirmed.