author: McHanby, J.

text:
    White Company v. J. E. Thompson Motor Express Co.
    Opinion delivered June 30, 1930.

      Frauexmthal, Sherrill sé Johnson, for appellant.

      Brooks Hays and McMillen S Scott, for appellee.
   McHanby, J.

Appellees sued appellant for damages to the truck and cargo of appellee, J. E. Thompson Motor Express Company, hereinafter called the express company, and appellant cross-complained against it for damages to its truck, resulting from a collision on the intersection of Eighth and Pulaski Streets in the city of Little Bock. The truck of the express company was traveling-west on Eighth Street, while that of appellant was traveling north on Pulaski. The west-bound truck had the right of way over the north-bound truck if they approached the intersection at approximately the same time, under the city ordinance. According to the testimony of appellees ’ witnesses, the driver of the express company truck was traveling at a moderate rate of speed, on the right side of the-street, and reached the intersection of Eighth and Pulaski ahead of the other truck, and that appellant’s truck, traveling at a rapid rate, failed to yield the right of way, but negligently continued on into the intersection, striking the express company truck amidship, turning- it over, and causing great damage to the truck' and cargo. According- to the testimony of appellant’s witnesses, the reverse is true; that its driver was proceeding north at a moderate rate of speed, reached the intersection, ahead of the other truck, and was nearly across the intersection when the express company truck rapidly and negligently ran in front of its truck, striking same about the middle of the right front wheel and causing considerable damage thereto. There was a verdict and judgment for appellees.

Appellant first contends that the verdict was not supported by the evidence. We think it unnecessary to set out the evidence in detail, but the substance of it is as briefly stated above. The evidence is in sharp conflict and was sufficient to support a verdict either way. Being purely a question of fact with substantial evidence to support it, the verdict of the jury must stand.

It is next said the testimony does not support the amount of damages recovered. The verdict and judgment were for $656.54. Mr. Critz, secretary of the express company, testified that they paid $520.65 for the damage done to the truck. He submitted an itemized statement of the amount of repairs necessary and that were done, totaling the above sum. He also testified, submitting an itemized statement, to the damage done to the cargo totaling $135.89. The total of these two items is the amount of the verdict. We think his testimony was sufficient to support the amount of the verdict.

Appellant next says that the court erred in giving instruction No. 1 requested by appellees for the reason that, without covering all the issues in the case, it instructed the jury to find in favor of the plaintiff. Appellant fails to point out any issue in the ease not covered, and we fail to perceive any from an examination thereof.

Complaint is also made of instruction No. 2 for appellees on the measure of damages. It told the jury that the appellees were entitled to recover the actual cash value of the merchandise destroyed and the reasonable cost of repairing its truck in the event there was a verdict in its favor. The objection made to this instruction is that the damage to the merchandise was the difference between its value before and after the collision. The instruction did not relate to damaged merchandise, but to merchandise that was destroyed. The instruction is also criticised because it does not tell the jury that the cost of repairing the truck should be only such cost as was occasioned by the collision. We think the instruction necessarily means this. If appellant had thought it open to this construction, it should have made a specific objection thereto.

It is finally insisted that the court erred in refusing to give its requested instruction No. 5, which would have told the jury that if its truck was being driven at a lawful rate of speed and that it was the first truck to enter the intersection, its truck had the right of way “and it was negligence on the part of plaintiff’s driver to drive into the intersection in front of the defendant’s truck.” The court correctly refused this instruction. It was inherently wrong in telling the jury that, if appellant’s truck reached the intersection first, it was negligence for the driver of the other truck to attempt to pass in front of him, without taking into consideration the other facts and circumstances in the case, and it was in conflict with instruction No. 1, already discussed. Mays v. Ritchie Gro. Co., 177 Ark. 35, 5 S. W. (2d) 728 ; Pollock v. Hamm., 177 Ark. 348, 6 S. W. (2d) 541 ; Herring v. Bollinger, 181 925, 29 S. W. (2d) 676.

We find no error, and the judgment is accordingly affirmed.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Turnage v. State.
    Opinion delivered July 7, 1930.

      J. H. Carmichael, Jr., and H. B. Stubblefield, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

James Turnage prosecutes this appeal to reverse a judgment of conviction for the crime of murder in the first degree.

The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. The record shows that George Washington, James Turnage and Lindsey Turnage were indicted for the oxime of murder in the first degree charged to have been committed by killing William H. Roberts while engaged in an attempt to' rob him. The contention of counsel is based on the allegations of the indictment using the word “intent” instead of the word “attempt” to rob W. H. Roberts. The record shows that this assignment of error was decided adversely against this contention in the case of Washington v. State, 181 Ark. 1011, 28 S. W. (2d) 1055. This is a companion case to that, and, inasmuch as the indictment is set out in full in the Washington case, we do not deem it necessary to repeat it here. We there held that in crimes which required force as an element in their commission, such as robbery, there is no substantial difference between an assault with intent and an assault with attempt to commit the offense. What we there said is conclusive against the position now taken by counsel for the defendant. In addition, it may be said that the indictment charged that the defendant “with a felonious intent then and there to rob William H. Roberts did assault, kill and murder the said William H. Roberts with a certain pistol loaded with gun powder and bullets” et cetera. This, in plain language, charges the defendants with killing Roberts while attempting to ro'b him, and no one could have been misled by the language used. It is of itself a substantial compliance with the language of § 2343 of Crawford & Moses’ Digest under which the defendants were indicted.

It is next insisted that the court erred in refusing to require the State to elect whether it would try the defendant for murder committed under the provisions of § 2343 of the Digest, or for murder as otherwise defined by the statute. We do not think there is any merit in this contention. The record shows that the defendant was tried for murder charged to have been committed under § 2343 of the Digest, that is to say, for murder committed while in the attempt to perpetrate robbery. All of the evidence introduced by the State and all the instructions given by the court unmistakably point to this fact, and counsel for the defendant could not have been misled in the premises.

The most important assignment of error relates to the legal sufficiency of the evidence to support a verdict of guilty of murder in the first degree and the fixing of the death penalty therefor by the jury. A proper consideration of this question necessitates giving a full outline of the circumstances leading up to, and including, the commission of the crime. According to the testimony of Mrs. William H. Roberts, wife of the deceased, her husband was shot on the night of December 7, 1929, at their filling station on the Galloway Pike about three miles east of North Little Rock in Pulaski County, Arkansas, and died shortly afterwards from the wounds received. Just before he was shot, he was sitting in the filling station with witness and C. J. Gordon. Witness looked out of the front window and saw three negroes go from the front down the side of the building toward the rear of the building. Witness told her husband to go into the back room and see what they wanted. Roberts walked into the back room and witness heard two shots fired and immediately after that five more shots. The first two shots were not so loud as the last five. Witness’ husband came in at the front door with his gun in his hand.

Other evidence tended to show that Roberts was shot by George Washington, and that the gun used was smaller caliber than that of Roberts. A. R. Lamb, a deputy sheriff, testified that at the time the defendant was arrested for the murder of W. H. Roberts he had a thirty-eight Special Smith & Wesson pistol under his pillow which was loaded —-this was the next night after the killing. Witness talked to the defendant that night, and the defendant first denied knowing anything about the killing. Finally he told the witness that, if the rest of them had told it, he would tell it too, and stated that they (meaning George Washington and his 'brother, Lindsey Turnage, and himself) went up to the* filling station where Roberts was killed. They stopped the oar before they got to the filling station. Defendant first pretended not to know what they went for. Witness asked the defendant what they were going- np there for and he said that they were going np there to rob- the filling station; that is, he said that one of the others told him that they were going up there to rob the filling station. After the killing occurred officers examined a field near' the filling station and found tracks in it going from the station which fitted the feet of James and Lindsey Turnage. Another officer testified that the defendant admitted to him that he had a sAveat rag under his hat and that George Washington and Lindsey Turn-age each had a rag, or loosely fitting handkerchief, around his neck.

According- to the testimony of George Washington, he was twenty-nine years old, and had been tried and convicted for killing W. H. Roberts; that he, in company with James and Lindsey Turnage, got out of their car and went around Robert’s filling station toward the back of the building; that they passed by the front window and went around toward the back. When they got around to the back Roberts came to the door and shoved it open. Just as he shoved it open James Turnage said, “Look out, Lindsey,” and witness was shot. The witness admitted that he then shot at Roberts. James and Lindsey Turnage ran off when the shooting commenced. Witness testified that he had his pistol in his raincoat and that James and Lindsey Turnage each had a pistol in a holster attached to his belt.

The confession of the defendant was also introduced in evidence and in it the defendant stated that George Washington had told them on the way up there that they were going to rob the filling station. According to the testimony of the defendant, he left just as soon as he saw George Washington going towards the rear of the filling station, and never had any intention of helping him rob it. The testimony shows that Lindsey Turnage was about eighteen years of age and that James Turnage was twenty-eight years old.

In testing the legal sufficiency of the evidence to support the verdict it must be viewed in the light most favorable to the State. As we have already seen, the indictment was found under § 2343 of the Digest and charges the defendant with murder committed while attempting to perpetrate robbery. An attempt, in general, is an overt act to do a specific thing; it must be something tending to accomplish the end, but falling short of committing it. Here the jury was warranted in finding something more than an intent and preparation to commit the crime of robbery. It is true that under the evidence adduced in favor of the defendant he abandoned any attempt to commit the crime of robbery before any overt act was committed by George Washington, but it cannot be said that his testimony is uncontradicted. They went to the filling station in the nighttime, and the wife of the deceased saw them going toward the rear of the building. Each of them had a loose rag or handkerchief tied around his neck which might have been used for a mask. Each of them was armed with a pistol. According to the testimony of the defendant himself, he knew that something wrong was intended when Washington started toward the rear of the building. This showed that the defendant himself was aware that a. crime of some sort was about to be committed. While the defendant denies any participation in the crime, Washington testified that he was with him when Roberts opened the door. This shows that the defendant was with Washington at the time that the latter did the shooting. It is true that Washington testified that Roberts shot first, but the jury was also warranted in not believing this to be true. According to the testimony of Mrs. Roberts, the two shots first fired were from a smaller gun than the five shots later fired. The evidence showed that the gun used by Washington was of smaller caliber than that used by Roberts. This was a circumstance tending to show thait Washington fired first. The jury doubtless believed that all three of the negroes went to the rear of the filling station, each armed with a pistol with, handkerchiefs aronnd their necks which might be used for masks, for the purpose of entering the filling station from the rear and robbing the proprietor. They happened to be discovered by Mrs. Bobents, who told her husband. He went to the rear door to find out what was the matter and was shot just as he opened the door. He -began to fire at the negroes, and they ran away. These facts were plainly inferable from the facts and circumstances proved on behalf of the State and fully warranted the jury in finding that all three of the negroes were present and were preparing to enlter the filling' station for the purpose of'robbing the proprietor, and that this was the beginning of the robbery or the attempted robbery and not merely an act preparatory to committing it. The act of "Washington in shooting was in furtherance of the original design to rob the filling station, and, being done in the prosecution of such unlawful design, was murder. It was the natural and probable consequence of it, for which all three must be held accountable. The jury might have found that all three were present, and in the eye of the law the act of Washington, who actually did the shooting, was the act of each. The jury was warranted in finding that each formed the felonious intent of robbing the filling station, and, while all were present, Washington shot Boberts in pursuance of that intention and while carrying it into execution. No matter which one fired first, the killing resulted in homicide and was murder. The transaction had gone beyond intent and preparation and had passed into acts which -amounted to an attempt at robbery. See Henry v. State, 151 Ark. 621, 237 S. W. 454 ; Harris v. State, 170 Ark. 1073, 282 S. W. 680 ; and Clark v. State, 169 Ark. 717, 276 S. W. 849. Therefore we hold that the evidence was legally sufficient to support the verdict.

The next assignment of error is that the court erred in allowing the coroner to read the statement of the defendant taken at the coroner’s inquest. Beliance to sustain this assignment of error is placed upon the case of Dunn v. State, 2 Ark. 229. We do not consider this assignment of error well taken. According to the testimony of the coroner the confession in question was not taken during the coroner’s inquest, but it was a confession freely and voluntarily made before him by the defendant. No inducement whatever was held oult to the defendant to cause him to make the confession. There was no hope of gain or torture of fear or any effort made to compel him to testify at the inquest. The confession was made before the inquest was held, and was freely and voluntarily given. Hence it was admissible on the same ground as if iit had been made to the sheriff or anyone else who was investigating the crime. Bullen v. State, 156 Ark. 148, 245 S. W. 493 ; and Sutton v. State, 162 Ark. 438, 258 S. W. 632.

The next assignment of error is that the court erred in allowing C. J. Gordon to testify that when Roberts got back into the filling station and lay down on the bed he was told that Mrs. Roberts had gone to call the ambulance and Roberts remarked that they (meaning the negroes) had gone that way and would hurt his wife. We do not think there was any error in admitting this testimony. It was an incident to what was done immediately after and in connection with the killing, and was admissible as shedding light on the transaction. It would have been difficult to have given a connected account of the killing without stating all that was done and said concerning it at the time. Childs v. State, 98 Ark. 430, 136 S. W. 285.

The next assignment of error is that the judgment should be reversed because two of the jurors read a lengthy article in the daily paper relating to the homicide. The jury was allowed to separate for the night, and it developed that two of them had read the article in the morning paper. They were admonished by the court that what the newspaper stated was not a record of the court and had no bearing on the case, and they were specially told not to be influenced by the article in any respect. In all of the instructions the court told the jury that they were the judges of the evidence and to be guided alone by it in arriving’ at their verdict. Hence we hold that this assignment of error is not well taken.

It is next insisted that the court erred in admitting to the jury the confession of Lindsey Turnage. It will be remembered that James and Lindsey Turnage were jointly indicted and were tried together. The court, several times during the course of the trial, as well as in the instructions given, told the jury that the confessions made by the two brothers could not be used against each other. In plain language the jury was told that what Lindsey Turnage had confessed should not be used against James,- and, inasmuch as the testimony in both cases was practically the same, we cannot see how any prejudice whatever could have resulted.

It is next insisted that the court erred in giving instruction No. 8 which reads as follows: “If you find from the evidence that James Turnage, Lindsey Turnage and George Washington conspired together to commit the crime of robbery, and, pursuant to such conspiracy or agreement, the defendants and George Washington went to Wm. H. Roberts’ place of business to rob, but further find from the evidence that the defendants, or either of them, abandoned the purpose of such conspiracy or agreement prior to the time of the attempted robbery and also find that George Washington had notice of such abandonment before the attempt to rob was made, then the defendant, or defendants, so abandoning such purpose are not chargeable with the hilling of Wm. H. Roberts. And you are instructed that if you find from the evidence that George Washington had notice of such abandonment on the part of the defendants before the attempted robbery, the length of time before is immaterial.”

It is insisted that the instruction is erroneous in telling the jury as a matter of law that George Washington, who did the actual shooting, had attempted to rob Wm. H. Roberts. We do not think so. The instruction, when read in its entirety, submits to the jury not only to find whether there had been a conspiracy to commit the crime of robbery, but also to find whether the purpose of committing the robbery had been abandoned before any attempt had been made to commit it, and also to find whether there had been any attempt on the part of anyone to commit the robbery. In other instructions the court specifically told the jury that it was the judge of the credibility of the witnesses and also of the evidence. We do not think the instruction is erroneous within the rule laid down in Jones v. State, 59 Ark. 417, 27 S. W. 601, in that the court assumed the existence of any fact and thereby invaded the province of the jury. It did not assume there was an attempt to rob by someone, but left that question to be determined by the jury from the evidence. Hogue v. State, 93 Ark. 316, 124 S. W. 783. The instructions were full and complete and presented to the jury every phase of the case. No question was singled out and given undue prominence. No single circumstance was emphasized. The case was tried upon competent evidence, and the rights of the defendant were carefully guarded.

Finally it is insisted that the verdict of the jury should be reduced from the death penalty to that of life imprisonment. There is noithing in the record which would warrant the court in doing so. James and Lindsey Turnage were indicted and tried together; the jury .found each guilty of murder in the first degree and fixed the death penalty in the case of James Turnage and life imprisonment in the case of Lindsey Turnage. Presumably this was done because of the youth of Lindsey Turnage, but in any event it was the peculiar province of the jury to fix the punishment in each case, and on appeal this court has no power to reduce it unless for the purpose of eliminating some error committed by the trial court. It follows that the judgment must be affirmed.


author: Smith, J.

text:
    Hocott v. Dougan.
    Opinion delivered July 7, 1930.

      Beaumont ■& Beaumont, for appellant.
   Smith, J.

This suit was brought by Appellee to recover damages for the breach of a contract evidenced by the following writing:

“December 14, 1928.
“To — Mr. Joe Hocott.
‘ ‘ To whom it may concern:
“This is to certify, that I, Ted Dougan, agree to furnish my (8) piece orchestra in Helena, Ark., for (5) nights, Dec. 24, 25, 27, 29, 31 resp., for the sum of $515 and furnish all transportation and expenses.
“Money to be received by me when above party receives same from employer.
“Ted Dougan
“Orchestra.
“Joe Hocott,
‘ ‘ Manager.
‘ ‘ Slick Hurt
“Witness.”

The contentions of the parties to this contract in regard to this purpose and interpretation is stated in the instruction under which the case was submitted to the jury, which reads as follows:

“1. Gentlemen of the jury, this is a suit by Ted Dougan, as plaintiff, against Joe Hocott, as defendant. The plaintiff claims ¡that he made a contract with the defendant in writing by the terms of which he, the plaintiff, was to furnish his band to perform services at Helena and that after the contract was made the defendant called him and canceled the contract without his assent. The defendant claims that he did not make a contract but that the instrument they signed was a mere negotiation which would lead to a contract if he secured the employment at Helena.
“Now, gentlemen, if you find from a preponderance of the testimony that the instrument the parties signed was in fact a completed contract, and further that it was not canceled by mutual consent, then you will find for the plaintiff. If you find, on the other hand, that the instrument they signed was not a contract but a negotiation which would ultimately lead to a contract if the employment was secured, in that event you will find for the defendant ; or if you find that it was a completed contract but that when defendant, notified plaintiff that the employment had not been secured in Helena and the plaintiff assented to that, then in that event you will find for the defendant. Now, if you find for the plaintiff, you will find for him in such sum as you find to be due him less the expenses to Helena and less the amount you find he earned with his band, during the period which he would have earned in Helena had he gone there. ’ ’

As appears from this instruction, appellee is the leader of an orchestra. It consists of eight instruments, including the one which he played himself. He testified that the above writing evidenced a contract which he made with appellant, and that in order to fill the engagement he canceled another which he had to play at the banquet of the Arkansas Sheriffs’ Association on the night of December 26, for which service he would have received $125. Appellee also testified that appellant did not notify him that the engagement at Helena could not be filled until December 22d, and he was thereafter able to secure only one other engagement for his orchestra during ¡the holidays, although he did earn $20 by. playing in another orchestra.

Appellant’s testimony was to the effect that he did not employ appellee to play at Helena, but that he was acting, in the capacity of a booking agent to secure engagements for appellee’s orchestra. That he endeavored to secure the contemplated engagement at Helena, but was unsuccessful in doing so, and that in: this attempt he was acting as appellant’s agent, and the writing.set out above was intended only to evidence the terms upon which he might accept an engagement for appellee’s orchestra to play at Helena on the dates named in the writing.

The instruction set out above correctly submitted this issue of fact to the jury, and the finding for appellee is conclusive of that question.

The instruction also correctly submitted to the jury the proper measure of damages. There is a conflict in the testimony as to the’expenses which would have been incurred in the performance of the contract, but we think the testimony on appellee’s-behalf was sufficient to support a finding'that the net loss sustained was as much as $336.20, for which amount a verdict was returned and judgment rendered.

It is insisted that the contract, if there was one, is void as being- without consideration. But this is not true if appellee’s version of ¡the transaction is accepted, as the jury evidently must have done. Appellee agreed to furnish an eight-piece orchestra for five nights for $515, out of which he was to pay all transportation and expenses, and he testified that he was ready, willing and able to perform the contract.

There appears to be no error, and the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Jones v. Hammons.
    Opinion delivered July 7, 1930.

      S. W. Woods and Karl Oreenhaw, for appellant.

      W. P. Spears and J. M. Shinn, for appellee.
   Humphreys, J.

This suit was brought by appellees against appellants to re-establish an obliterated or lost comer in order to locate definitely the dividing line between certain lands owned by appellees and appellants in Newton County. It is admitted in the pleadings that appellees owned, according to Government calls, that part of the northwest quarter of the northeast quarter of section 7, township 16 north, range 20 west, south of Buffalo River and the southwest quarter of the northeast quarter of section 7, township 16 north, range 20 west, and that appellants owned, according to Government calls, the east half of the southwest quarter and the northwest quarter of section 7 in township 16 north, range 20 west.

After 'the issue as to the location of the division line was joined and the cause was called for trial appellees introduced Tom Jones, surveyor of Boone County, who testified that he correctly surveyed out the division line according to the United States Government field notes, and marked same upon the land.

Appellant then introduced J. E. Bolin, deputy county surveyor of Newton County, who testified that he correctly surveyed out the division line according to the United States Government field notes and marked same upon the land, and also introduced Brice Jones as a witness, at which juncture the court stopped the proceedings and appointed Capt. Charles Le Vhsseur of Yellville to survey out the true division line. Le Vasseur sent a substitute who was not satisfactory to the parties, and that survey was not made. The court then appointed the surveyor of Johnson County to survey out the division line and continued the case. His survey was never completed. At the next term the court appointed R. A. Sturgeon, who was connected with the State Highway Department, to survey 'out the division line and continued the ease. At the next term of the court Sturgeon filed a report showing that he made a partial survey without notice to the parties, and to which exceptions were filed by .both appellants and appellees. The court then took the case under advisement for further consideration and rendition of a decree in vacation.

The final decree rendered in vacation, from which both appellants and appellees have appealed to this court, contained the recitals thalt the case had been in court a long time and if permitted to go on the costs would exceed the value of the land; that on his own motion he declined to hear further evidence or to appoint another surveyor to locate said line; that he would sustain the exceptions of both parties to the R. A. Sturgeon survey because incomplete and made without notice to the parties; that from the evidence before him he could not tell where the line was; and that, over the objection and exception of both appellants and appellees, he would equitably adjust the matter by directing the line between the lands involved be located at an equal distance between the Jones and Bolin surveys and order and adjudge that the line be located at said point, that each party pay his own costs and that the court costs be divided between them.

As we read the findings and decree of the court the line was located by way of equitable adjustment or compromise because it was impossible for the court to determine from the evidence where the true division line was. The recital in the decree that the court refused to hear additional testimony or order another survey on account of the expense incident thereto reflects that the case was not fully developed.

In this undeveloped condition of the case it is impossible for this court on trial de novo to locate the true division line.

The decree is therefore reversed, and the cause is remanded with directions' to the court to hear further testimony and determine from all the evidence in the ease where the true division line is.


author: Kirby, J.

text:
    Fenter v. First National Bank of Malvern.
    Opinion delivered July 7, 1930.

      Isaac McClellan, for appellant.

      John L. McClellan, for appellee.
   Kirby, J.

Appellee bank brought this suit to charge appellant with liability to the payment of a certain note sued on executed by his father to the bank, upon the allegation that the father had conveyed certain lands to appellant charged with a trust for payment of his debt to the bank.

Appellant demurred to the complaint and answered denying that D. C. Fenter had executed the note for the amount as alleged to the bank on November 5, 1926, and denied that the Exhibit A to the complaint was a copy of the note; admitted that on August 6, 1924, his father executed and delivered to him two deeds conveying certain of the lands, 70 acres, and on October 1, 1924, executed and delivered to him another warranty deed conveying to him the other 40 acres; denied that there was any consideration expressed in said deeds or that there was any verbal understanding or agreement between the grantor and him that he was to assume and pay the note to the plaintiff or any other indebtedness that might become valid claims against the estate of D. C. Fenter; alleged that, after the execution and delivery of the deeds, he took possession of the lands, lived on them and paid the faxes for more than two years before the execution of the note sued on; denied that he was trustee for the bank or that he held the lands otherwise than as his own, and adversely to every one else after the execution of the deeds; denied that plaintiff had asked for an administration on the estate of D. O. Fenter as one of the creditors, notwithstanding Fenter had been dead for more than two years.

It appears from the testimony that the deeds, ordinary warranty deeds, were made by D. C. Fenter, the father of appellant, upon the dates alleged, each reciting a consideration of $5. Appellant stated he took possession of the lands after the conveyance, took care of his father and supported him from that time until his death, and agreed when the deeds were delivered to pay two debts, one the individual debt of' his father to the appellee bank for $200 and $200 due to John A. Cunningham, the note to Cunningham being secured by a mortgage on some of the lands; that he thereafter paid or arranged to pay these debts; that he agreed to pay and took care of and supported his father during the remainder of his life. He denied that there was any agreement on his part to pay the note or debt sued on by the bank, evidenced by the note dated nearly two years after the execution of the deeds to him by his father.

The cashier of appellee bank testified that the note sued on was executed by H. F. 'Cloud, D. C. Fenter and A. R. Nichols dated November 5, 1926, but that it was a renewal note for a note executed November 5, 1925. He then gave a history of the note claiming the first note, of which he said this was a renewal, was given to the bank in November, 1920, for $165, and that it had never been paid except by renewals. He was not able to explain why the note sued on did not show on its face that it was a renewal note, but said that it was not necessary that it should, since the bank’s books showed that it was such a renewal.

Nichols, one of the parties to the note, testified that it had been given and renewed several times; that, after it was due the last time, he had had a conversation with appellant, having heard that his father had deeded him certain lands charged with the payment of his debts, about the payment of this note, and appellant denied that he had agreed to pay this note at all, and refused to renew it or pay it before the suit was brought; said he would not have renewed this note when it was presented to him the last time if D. C. Fenter had not represented to him that he had deeded his lands to appellant in consideration that he would pay all his obligations and debts.

The justice of the peace who prepared the deeds for execution testified that Fenter said to him when he made the deeds; “I want to deed Gilbert my place. I have some debts which Gilbert is going’ to have to pay if they are ever paid, and of course I want them paid. It looks like I am not going to be able to work any more, and it would not be right for Gilbert to pay my debts and the other children come in and share equal.” Witness said he did not think Mr. Fenter deeded his lands to Gilbert for the purpose of defrauding his creditors. He did not know what debts he expected Gilbert to take care of, but said he had some debts that Gilbert would have to pay if they were paid.

Appellant stated that he did not consider that he owed the Cloud note, the one sued on, that he did not assume the obligation, took care of the funeral expenses, the doctor ¡bills and all the personal indebtedness his' father told him about, and that he never told him anything about this Cloud note; that he never heard of it until after his father’s death, when some one came to him asking him to pay it off or renew it, and that he refused to do so, and it was not part off the consideration he was to pay for the lands.

It appears that he paid out about $1,100 for his father’s indebtedness and funeral expenses, and this was about the value of the lands as some witnesses testified.

The conveyances of the lands to appellant make no mention of any trust for the payment or security of any debts of the grantor by the grantee, appellant, as attempted to be proved by appellee to charge appellant with the payment of the debt sued on. An express trust cannot be proved by parol evidence, and neither will such evidence be heard to graft an express trust upon a deed absolute in its terms. Salyers v. Smith, 67 Ark. 526, 88 S. W. 753 ; Harbour v. Harbour, 103 Ark. 273, 88 S. W. 589.

Appellee attempted to prove as a consideration for the conveyance olf the lands by D. C. Fenter to his son, appellant, an agreement on his part to pay the indebtedness of the grantor to the bank evidenced by his signature to the note sued on; and, if such conveyances had been made without a valuable consideration, the want of such consideration would not of itself have created a presumption that the grantee was the trustee of the grantor. The burden of proof was upon the appellee bank to displace the title or right of the appellant to the enjoyment of the beneficial interest in the lands by such evidence of intention on the part of the grantor to create a trust, and this burden cannot be discharged by a mere preponderance of the testimony. The evidence required must be ¡full, clear and convincing. Eaton’s Equity, p. 404; Tiller v. Henry, 75 Ark. 446, 88 S. W. 573 ; McNutt v. McNutt, 76 Ark. 14, 88 S. W. 589.

The conveyances to appellant -were by no means voluntary conveyances without consideration, it. appearing- from the testimony that there was an adequate consideration money actually paid out equal to about the value of the lands conveyed. The conveyances were not attempted to be set aside as made in fraud of creditors, and there was no testimony offered to show that they were voluntary conveyances nor to impress the lands with a trust for the payment of the note or debt sued on. The decree is not supported by such testimony as the la.w requires shall be furnished or produced in such cases, and the chancellor erred in so holding and in not dismissing the cause for want of equity.

The decree is reversed, and the cause remanded, with directions to enter a decree in accordance with this opinion.


author: Mehapfy, J.

text:
    Seaman-Dunning Corporation v. Haralson.
    Opinion delivered July 7, 1930.

      Wynne <fb Miller and Rowell S Alexander, for appellant.

      8am M. Levine, for appellee.
   Mehapfy, J.

This action was 'begun by the appellee against the appellant, a corporation, to recover damages for an injury alleged to have been received because of the neg'lig’ence of the appellant. Appellee was in the employ of the appellant, and at the time of the injury was assisting in feeding a shaper machine, at which automobile sills were being manufactured. The machine consisted principally of a table with a metal surface about three feet above the floor and was about five feet long and three or four feet wide. Adjusted to and set in said tatole were two- spindles or vertido axes. That in said spindles or vertical axes were attached knives which revolved at a high rate of speed; the knives were set in metal collars against which the wood to toe cut was pushed; the spindles were about four feet apart, and on a line of about two feet from the south edge of the table. The board out of which the sill was to be made was placed upon and clamped to another heavy board designated the pattern, and said board was shaped to conform to the pattern; the pattern used at the time of the accident was a very heavy board about two inches thick and six or seven feet long and of a width varying from two inches to one foot; there were four handles affixed on the edge of the pattern, two on one end being grasped by the appellee and two at the other end held by a fellow workman. No guards were in front of the handles to protect the hands of appellee or to keep them from coming in contact with the revolving knives. It was the practice of those operating the machine to alternate in pulling said pattern and unshaped ¡board attached thereto across the revolving knives. About three o’clock p. m. while plaintiff was engaged in the ordinary and regular duty assigned to him, he was thrown ag-ainst the revolving knives which permanently injured his hand. Appellee alleged that he was in the exercise of care at the time, and that the injury was due solely to the negligence of the appellant, its agents and employees, in failing to provide adequate guards and owing to the negligence and carelessness of the fellow employee in suddenly jerking the pattern, the handles of which were properly grasped by appellee, throwing appellee against the revolving knives; he alleged that he suffered great pain and anguish and would continue to suffer; that his hand was permanently injured. Prior to the injury, appellee was an able-bodied man, earning good wages and in line for advancement; his earning capacity is permanently impaired. The appellant filed answer, denying each allegation of negligence, pleading assumed risk, negligence of appellee and unavoidable accident.

The appellee testified that the machine was made something like a table, the top covered with some kind of metal, and on the day he received his injury, he and the operator were running sills, appellee being at the small end of the pattern and the fellow servant at the large end. He testified that the fellow servant snatched awfully fast, and that appellee had just told him ten minutes before that he was too fast for him. Appellee had never run the particular machine and had never run sills. The fellow workman had carried him over there, and he had been at work about an hour. That the other workman would give a quick snatch and snatch both of appellee’s hands into the knives. There were four handles on the pattern, all on the back edge. In running these things you are required to hold your hand a certain way. There is no possible way to hold the handles unless you grip them; the fellow servant, when he pulled, had been snatching. Appellee had been working for the company about a year; worked on different things, on different machines, but had not worked on a machine like this one. Appellee worked with Mr. Truhett about one hour before he was injured; he received his orders from Mr. Truhett; Truhett did not tell him how to operate the machine. There was nothing- wrong with the pattern, only there was no guard there, no protection. When Truhett snatched it, he snatched it out of appellee’s hand; when it hit his hand, it knocked him back. There was a guard on one handle, but not the handles that appellee was using. The physician testified about the injury and the extent of it, and said that his right hand was about ten per cent, useful. He doubted if any treatment which could be given would relieve the stiff condition of his fingers.

Frank McWilly testified that he was in the employ of appellant and was cleaning up near the machine where Haralson was employed; was present when Haralson was injured and was looking at the man handling that machine, was attracted byi the manner in which he was performing his work; he was just like a shot out of a Winchester gun, .jumping up this way fast as he could, and Lisbon’s hand got into the machine and was injured. There was not any guard on the machine in front of the right handle. It seemed to him that Haralson had a firm grip. This witness never worked at a machine like the one at which Haralson was at work.

Truhett, who was working with Haralson, operating the shaper, testified that Haralson took orders from him; that he supposed Haralson’s hand slipped off; that he had cautioned him before that; had told him if he was not careful Ms hand would slip off and go into the knives, and that tMs was what happened; he testified that he did not snatch it or jerk it, and he also testified that Haralson did not tell him he was working too fast. He was running the machine slow. He said you could not make the sills correct by jerking and snatching it. He testified that the guard at the end is to keep chips and splinters from hurting your hand; that if there had been a guard it would not have kept appellee’s hands from, going into the knives; that there was no necessity for the guard; that he was not jumping and going from side to side, and that he could not have cut the pieces correctly in any such manner. If he had jerked it, it would not have been cut smooth. The reason the guard is placed there is to prevent shavings coming on the handle; had known Haralson ever since he had been at work there; had never worked on a shaper machine, but they had been working on the box shaper once, but that had been quite a while ago. The knives cannot out beyond the pattern. The cuff holds it away from the knife. That he was not working fast and was watching Libson to see that he held it up there right. He testified that Haralson was experienced on shapers; that, when they pulled it to one another, quite a bit of the pattern extended over the table, and you had to hold it up. Haralson was called a helper. The table was in good shape with a steel top.

Other employees of the appellant testified, in substance, that a guard was unnecessary, and corroborated Truhett as to the manner in wMch the work had been done in order to cut the sills properly; that if it was jerked through fast, it failed to cut clean. There was no guard on the end, the other end does not have it because it is not considered necessary. On the other patterns, some have a guard on the outside handle and some don’t. They do not put guards on to protect the hands of workmen; it would not involve a great expense to put on a guard; the effect of the guard would depend upon what kind of guard was up there. The machine was proper and safe. Other witnesses testified to substantially the same facts as Truhett.

The evidence as to the negligence of the fellow.servant is conflicting. All agree, however, that there was no guard to protect the hands of the operator.

The appellant.first contends that the court should have • given a peremptory instruction requested by it. It is contended that the appellee assumed the risk; that under the evidence fair minds could not arrive at different conclusions. In other words, he contends that the. appellee should be held to have assumed the risk as a matter of law. In making- this contention and argument, however, the appellant does not take into consideration the evidence of the negligence of the fellow servant. The evidence on behalf of the appellee showed that the fellow servant was negligent in jerking and snatching the machine, and that this negligence caused the injury. The servant while he assumes the ordinary and usual risks and hazards of his employment does not assume the risk of the negligence of the company for which he is working nor the risk of the negligence of any of his fellow servants. Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522, 117 S. W. 568 ; Southwest Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373 ; C. R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. (2d) 197 ; C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15 ; E. L. Bruce Co. v. Yax, 135 Ark. 580, 199 S. W. 535 ; St. L. S. W. Ry. Co. v. Garrett, 179 Ark. 690, 18 S. W. (2d) 321 ; Newark Gravel Co. v. Barber, 179 Ark. 799, 18 S. W. (2d) 331.

The court did not err in refusing- to direct a verdict for appellant. The question of assumed risk in this case would have been a question for the jury if there had been no evidence of the negligence off a fellow servant. From the evidence in this case it cannot be said that the danger was so obvious and open that a prudent person would not have continued the work. The evidence in the record does not show very clearly the kind of machine being used nor the location-of the knives. It is evident from the record that the machine was exhibited to the -jury and witnesses demonstrated the manner of operation. The machine was about four and a half or five feet long, about three and a half feet'high and had a blazer on it. Spindles coiné-up each side. These spindles have knives on them, and cut what you run on it. The machine is made something like a table. -There was a guard on one handle, but no guard on the handle which appellee was- using. . One of appellant’s witnesses. testified that the (knife could not cut beyond the pattern. The cuff holds it away from the knife. There is evidence about the practical use of a guard and as to whether a guard was necessary, but practically no evidence as to whether the danger was obvious or apparent. It-therefore appears that the question of assumed risk was a question for the jury. While the rule is firmly established that a servant assumes the ordinary risks and hazards incident to his employment, it is said: “Although the defense of assumption of risk is established as a part of the law and will be applied in all cases fairly within the rule, it is nevertheless, not a favored doctrine, but at best is artificial and harsh and should not be extended beyond its reasonable limits.” 39 C. J. p. 689.

In cases where intelligent, reasonable and fair-minded men would differ as to whether the danger- was obvious or whether it was one of the ordinary risks incident to the employment, the question must .be left to the jury. “Whether- the servant knew and appreciated the danger or, in the exercise of ordinary care,-ought to have known of it so as to be chargeable with the assumption -of the risk thereof, is a question for the .jury, unless the evidence warrants but a single reasonable inference to such fact. Thus on conflicting evidence it is for the jury to determine whether the danger was obvious or latent, and whether the servant had sufficient opportunity to discover it. ” 39 C. J., p. 1188, § 1365.

Appellant next contends that the court erred in refusing to give its instruction No. 2, which follows: “No. 2. The court instructs the jury that it was as much the duty of the plaintiff, Haralson, to have avoided an injury to himself as it was the duty off Truhett to have prevented an injjury. If, after a consideration of the testimony, you find that the injury sustained by the plaintiff was the result of his failure to exercise ordinary care in avoiding the injury, then your verdict will be for the defendant.” This instruction was properly refused because it told the jury in effect that plaintiff could not recover if he was guilty of contributory negligence. This is not the law. Contributory negligence is not a bar to recovery. The court gave a correct instruction on contributory negligence.

It is next contended that Truhett should have been permitted to testify that, if there had been a guard there,it would not have kept appellee’s Hand from going into the knives. This was not only a mere opinion, but the machine itself was in the presence of the jury, and they could see whether a guard would have been a protection. The witness gave no reason why it would not have protected him. This witness and others were permitted to show the machine and knives and demonstrate how it was used.

There was no error in the court refusing to permit witness LaiClear to testify about what the record showed as to how fast other employees worked. The witness did not make the record, and there was no evidence that it was correctly kept. He was undertaking to testify as to what the record showed from a memorandum. Appellee did not object to the record, but asked that he be required to produce the record, and the appellant did not offer to do this.

As sustaining its contention that; Truhett should have been permitted to state his opinion about the guard, the appellant cites and relies on Railway Company v. Barron, 166 Ark. 641, 267 S. W. 582. Jn that case the court held that the statement of the witness was proper because he stated at the time the facts upon which he based his opinion. The other case relied on is Pine Bluff Compress & Wurehouse Co. v. Andrews, 180 Ark. 106, 20 S. W. (2d) 633. In that case the witness did not give his opinion but stated facts.

The evidence was in conflict as to Avhether the fellow servant was guilty of negligence that caused the injury, and this was a question for the jury. We find no error, and the judgment of the circuit court is therefore affirmed.

       See Crawford & Moses’ Dig., § 7145 (Rep.).


author: Mehafey, J.

text:
    Rushing v. State.
    Opinion delivered July 7, 1930.

      J. H. Loohadoo, Millard Alford and Robert L. Rogers, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehafey, J.

The appellant was indicted for the killing of David Hodges. He was charged with murder in the first degree; he was convicted of murder in the second degree and his punishment fixed at imprisonment in the penitentiary for fifteen years. The deceased and the appellant were competitors in the jewelry business in Gurdon, Arkansas, and were not on friendly terms. The appellant was local watch inspector for the Missouri Pacific Railway 'Company at Gurdon and had been for several years. There was apparently some dissatisfaction among the railroad men, and they wanted the deceased to inspect their watches instead of the appellant. On September 21, 1929, about 10 o’clock at night, the deceased went into the cafe of the Commercial Hotel at Gurdon with Hugh Campbell to get a cup of coif ee. While they were in the cafe, the appellant and J. D. MeGedee came in and ordered something to eat. It is claimed by the Gtate that when Hodges started out of the cafe appellant shot him. Appellant, however, claims that Hodges was coming* towards him with a chair. When the deceased was shot, he ran out of the cafe, and fell after going* a short distance. An ambulance was called and Hodges was taken to the hospital in Prescott, but died from the effects of the wound about an hour after reaching the hospital. The physicians and undertaker testified about the wound, describing* it and the physicians testified that this caused Hodges’ death.

Herschel Kitchens, a locomotive engineer testified in substance that he had known Hodges all his life, went to the cafe on the night of the killing, saw Hodges there. Rushing and some other gentleman were sitting down at the counter, and saw deceased come towards the center of the room and sit down. Appellant was at the far end of the room next to the kitchen. Witness turned to the counter, and after a. few seconds something attracted his attention, and he saw Hodges standing with his hand on the back of a chair and saw Rushing shoot. When he looked again Hodges was running; heard Rushing say:

“He got what he had been wanting for a long time.” Witness was a little hard of hearing, and they were the only words he heard- spoken. Deceased was facing towards Rushing with his left, hand on the chair, but did not see his right hand.
The undertaker testified that while deceased was lying on the sidewalk, his father came up and asked what happened. Deceased replied: ‘ ‘ He shot me; I was in the -cafe for a cup of coffee. Rushing and a tall salesman from St. Louis came in. He was cursing me. When I started out, Rushing’ said, ‘There goes the low down S. of B.’ I turned round to look, and he shot me.”

Witness 'Callaway testified in substance that he took his watch one time to appellant.to have it repaired, and that appellant kept it some time and returned it in the same condition; he then took it to deceased, who repaired it. This witness testified aibout a class meeting of the railroad men several months before the killing when they voted to change watch inspectors and give the position to Hodges. It was the duty of appellant to inspect watches for railroad men.

Herman Osborn saw deceased fall to the sidewalk after being shot, and heard him say he was going to die. Deceased said he was in there drinking a cup of coffee and Rushing turned around to the fellow who was with him and said: “There goes the Gr. D. dirty scab selling watches at $2.50 and $5 profit.” He said, “Now look here,” and Rushing shook his finger and shot him.

Lester 'Stewart testified in substance that he saw deceased run by his store hollering and was stopped and said, “Boys, you will never see me alive again. I believe I am going to die. I was in the Commercial Cafe and drank a cup of coffee or sandwich or something and started out.” Rushing said, “There goes that crooked S. of B. that sells watches at $1.50' profit.” This witness said that deceased said he turned around and said, “Look here, Rushing,” and when he'did that, Rushing shot him.

R. M. Davidson, a conductor, knew both appellant and deceased, and some months before the killing heard Rushing say ‘ ‘ That damned fellow ought to be killed. ’ ’

Dr. McLain, a witness for defendant, testified in substance that he was called to treat the deceased about ten minutes after the shooting, and deceased’s father came up and asked Hodges a question, and Hodges said he had been selling watches at $1 profit, and Rushing did not like it or something like that and he had stood that kind of talk about as long as he could. He testified that Hodges did not say he was going to die; that he made no such statement loud enough for witness to hear.

Dr. Epperson, witness for appellant, testified in substance that he was acquainted with both appellant and deceased. Deceased was a large man weighing something over two hundred pounds. He reached Hodges shortly aJfter he was shot while he was lying on the sidewalk. When deceased’s father asked who shot him and what for, he replied: “Because I was selling goods cheaper than he could.” Witness said that Rushing did not say, “There goes the G-. D. S. of B.” while he was there.

Justis Yates testified on behalf of appellant, that he was constable of the township, knew both parties, had a conversation with deceased ten days or two weeks before he was killed. Deceased said he had been advised to let Rushing go so far with his talk and then knock him to the south when he was traveling north.

J. T. Watson testified in substance that he was train-master for the Missouri Pacific Railway Company, had been with the railroad company for twenty-five years. Cfurdon was formerly his home. Had known appellant and deceased about ten years. Some thirty days- before the killing Hodges told witness that he was going to have the job if he had to kill. This was with reference to Hodges trying to get Rushing’s place as time-inspector, and he said, “I will kill him,” or “if I have to kill him.” Witness told Rushing of the threats sometime later. Hodges had been trying to get witness ’ help to get Rushing’s place.

J. W. McDaniels testified in substance that he was night clerk at the Commercial Hotel; had known Hodges all his life, knew Rushing when he saw him. They both ate at the cafe. Was present on the night of the killing. Rushing and another man went into the cafe and sat on the stools near the back end of the lunch counter. The room was about twenty-five feet long. Hodges was sitting down when Rushing came in. Rushing and the man with him gave an order, and the witness went to the kitchen and prepared the order and was returning with it when he saw Hodges advance with a chair and Rushing whirled off the stool and shot him. Hodges carried the chair about half way out of the cafe, set it down and ran; had a plain view of Hodges; he was only about six feet from me when he was shot; did not know how he was handling the chair, either at his side or over his shoulder, could not say which, he was advancing on Rushing; did not know whether he was going slow or running or whether he was in the act of striking when shot, he was facing towards-Rushing, had a chair in his hands but not directly in front of him. After the shooting was over, Rushing went back and finished his tomatoes. Witness denied that he talked to Burroughs and Rudolph the next morning, telling them first that he could not see it at all and later that he did see it and denied talking to them at all. Witness did not hear a word spoken before the shooting.

J. D. McG-edee was acquainted with Rushing but not with the deceased; walked with Rushing to the hotel; after sitting on stools near the back end of the counter, noticed the man standing in front of the counter next to the cash register. Thought the man was looking at him1, and at the same time Rushing was saying something to witness which he did not understand. The man in front put his hand in his pocket, whether it contained change or not witness did not know, but he stood there a few seconds and then ran or walked towards witness and appellant. When he- got about half way between witness and the far end of the counter, he picked up a chair and advanced on witness six or' eight feet where he was shot. He was holding the chair up in front in a striking mood; could not hear what he said. Did not hear Rushing or understand anything- he said before the shooting.

Appellant testified that he had lived at Gu-rdon for the past thirteen or fourteen years, was a jeweler and local time inspector for the Missouri Pacific Railway Company at Gordon for the past six years; had known deceased for eight or nine years; were not considered good friends, but nothing unusual but competitors in business; had heard a good many threats. Deceased was a large man weighing 225 pounds and appellant weighs 114 to' 117 pounds; carries a good line of goods and at times has to look out to keep from being robbed, and when he has to carry jewelry from his place of business to his room nearly always goes armed for his own protection; did not go to the hotel to meet'deceased nor -with any intention whatever of doing him bodily harm or to kill him; went to the hotel with McGedee, and, when'their lunch was brought in, something attracted his attention; glanced up and saw Hodges advancing with a chair, coming at a fast stride, saying; “Rushing, I have taken all I want to,” or •something like that. About that time I jumped up and shot. I was .afraid he was going to kill me. I shot to save my own life; did not shoot out of a spirit of revenge; denies that he ever told David Hodges he should be killed or that he would ldll( him; denied that he had ever made any threats. He thought Hodg*es was going to kill him, and he, started on him with a chair. Hodges was within seven or eight feet when he was shot; could not have stopped Hodges without shooting him; denies that he said anything that he remembers to the salesman; denies that he knew anything about the class meeting or wanting to change inspector.

R. E. Burroughs testified that, he knew McDaniels who testified for appellant, and the morning after - the shooting McDaniels said he did not see it. Later McDan- ' iels said that when he came out .of the kitchen Hodges was standing with his hand on the hack of a chair, and he heard some one say that Hodges said he was just trying to make an honest living, and Rushing whipped out his gun and shot him. Mr. Rudolph was present, when this was said.

Rudolph testified that witness McDaniels talked to him on the morning after the killing and said that he was in the kitchen and did not know how it occurred.

At the time that witness Oallaway testified about the class meeting and the resolutions, the prosecuting attorney stated-to the court that he would offer evidence showing that Rushing knew about this or connect Rushing with it, but when that proof was not offered and before the case was submitted to the jury, the court withdrew this testimony and told the jury they could not consider it for any purpose. The court had already stated that it could be introduced for one purpose only, and for that purpose on condition that the State showed it was communicated to Rushing.

Appellant first contends that the ease should be reversed because witness P. E. Callaway was permitted to testify about a meeting of railroad men and to state what took place at said meeting. The appellant had been watch inspector for the Missouri Pacific at Gurdon for several years, and at the meeting testified about 'it was decided to give it to Mr. Hodges, the deceased. The evidence did not show that appellant was ever informed of the meeting or what took place there and therefore was not competent to-prove motive nor for any purpose. The court stated to the State’s attorney, when the testimony was offered, that it must be shown that this information was conveyed to the defendant, and the attorney stated that he would undertake to show the connection. The court then said: “Now, gentlemen, I will say to the jury this: That that testimony will be admitted for one purpose and one purpose only. I don’t know whether it goes to show, or will go to show, that whatever happened at that meeting, the information or action of the meeting was conveyed to the defendant or not, but the only purpose is to show, if it does show, and that’s a question for the jury, whether it raised the animosity or anger of the defendant, and whether or not he was seeking revenge on account of it.” The State did not show that appellant received any information about the meeting or what took place there. After-wards the court said to the jury: “Gentlemen of the jury, on yesterday there was some testimony introduced relative to a meeting of some of the railroad men down at Gurdon in which it was claimed that a resolution was passed to take the watch inspection away from the defendant and give it to the deceased, Hodges. Now, gentlemen, I let that testimony go to the jury for the time, but the court has determined that that is not proper for your consideration. So you will not consider anything — in considering your verdict you will not consider anything with reference to that meeting where that matter was discussed, or anything about it. I am withdrawing that from the jury, and you have no right to> consider that at all because it is not proper for your consideration.” It was a matter of discretion for the court to permit the prosecuting attorney to proceed with the testimony above mentioned on condition that proof would be subsequently introduced to show that appellant had received information as to the meeting and what took place there. Housley v. State, 143 Ark. 425, 220 S. W. 460 ; Easter v. State, 96 Ark. 629, 132 S. W. 924.

The instruction of the court that the testimony was not proper and that it should not be considered by them cured the error and removed any possible prejudice against the appellant that may have been created in the minds of the jury by such testimony. Wells v. State, 151 Ark. 221, 235 S. W. 798 ; Johnson v. State, 60 Ark. 45, 28 S. W. 792 ; Carr v. State, 43 Ark. 99 ; Holt v. State, 91 Ark. 576, 121 S. W. 1072 ; Pitman v. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509 ; Wickham v. People, 41 Colo. 345, 93 Pac. 478.

If the connection had been made as the prosecuting attorney told the court it would, the testimony would have been competent. The trial court necessarily has large discretion in the manner and order of admitting testimony, and when it appeared that the meeting and statements there made had not been communicated to appellant, the court withdrew the evidence from the consideration of the jury and instructed them not to consider it. The jury is assumed to be composed of men of intelligence, and they could not have misunderstood the instruction of the court.

The appellant next contends that the court erred in giving' instruction No. 14. The objection urged to .this instruction is that it 'does not tell the jury that a reasonable doubt may arise out of the lack of evidence. This instruction, however, is followed by No. 23, which the court gave, and it contains the statement that the doubt may arise out of the lack of evidence. The appellant contends that the court erred in refusing to give certain instructions requested by him, but they were all covered by instructions given by the court. After a careful examination of all the instructions we are of opinion that the court fully and correctly instructed the jury, and the evidence is sufficient to sustain the verdict. The judgment is affirmed.


author: McHaney, J.

text:
    Blevins v. State.
    Opinion delivered July 7, 1930.

      Rice & Rioe, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellant was convicted for manufacturing liquor and sentenced to one year in the penitentiary. For a reversal of the case, it is first argued that the evidence is insufficient to support the verdict. On the day of the arrest, the sheriff and two deputies, who had received information that appellant was making liquor, went to the home of appellant, but he was -absent. They made a search and saw appellant’s wife pour out some whiskey into the water troug’h. They then went up in the hollow north of appellant’s house about one-half mile and found him and his son at a still making liquor. Appellant ran away, but the sheriff, who was only about fifty yards away, saw him plainly and positively identified him as being present. The son started to run but stopped. Appellant’s team was standing there near the still. When arrested at his home a short time later his clothes were wet, indicating- he had traveled through the wet bushes recently as it had rained that morning. The deputies testified they thought it was appellant who -ran away from the still. On the other hand, appellant denied that he had anything to do with the still, that he was there when the officers arrived, and offered evidence of an alibi. The son testified that his father was not there and had nothing to do with the still, that he was employed by Boy Wells to haul a sack of sugar and two barrels to the still, which he did.

Although the evidence was in sharp dispute, the question of appellant’s guilt or innocence, as also his identity, was properly submitted to the jury, and its verdict against him on appeal is binding on this court.

The court instructed the jury in the language of the statute, declaring it to be unlawful for any person to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic liquor. (§ 6160, C. & M. Digest.) Complaint is made of this instruction on the ground that he was charged with manufacturing' only and that the statute covered many other offenses than manufacturing. The court, immediately following the reading of the statute, told the jury that if they found from the evidence, beyond a reasonable doubt, that appellant “did manufacture or was unlawfully and feloniously interested in the manufacture of any amount of alcoholic liquors or intoxicating spirits,” they should find him guilty, otherwise not. The effect of the whole charge embraced in instruction No. 2 complained of is to limit the question of his guilt or innocence to the charge in the indictment, that of manufacturing. Therefore no prejudice could have resulted from, reading said section to the jury.

In defining a reasonable doubt, the court used this" language, which is objected to : “ The court does not mean a far-fetched doubt or chimerical doubt or a doubt hatched up for the purpose of an acquittal.” No specific objection was made to this language, and we think it not open to a general objection, if objectionable at all.

Complaint is also made of the refusal of the court to give appellant’s requested instruction on circumstantial evidence. No error was committed in this regard. The State did not rely wholly on circumstantial evidence, and it has been frequently held that it is not error to refuse an instruction of this kind where the court properly instructed the jury on reasonable doubt and the presumption of innocence. Bost v. State, 140 Ark. 254, 215 S. W. 615 ; Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980 ; White v. State, 176 Ark. 771, 4 S. W. (2d) 9.

Finally it is said the court erred in refusing to permit appellant to prove his reputation for truth and veracity. The witnesses offered for this purpose were permitted to testify to his good reputation for being a law-abiding citizen. Appellant’s reputation for truth and veracity was not involved in the charge against him, nor did the State attack his reputation in this regard, but his reputation as a law-abiding citizen was involved. Therefore it was not error to exclude this evidence. . See 16 C. J., p. 582, § 1124; Underhill’s Crim. Ev. (3d ed.), p. 171, % 136.

Judgment affirmed.


author: MoHaney, J.

text:
    Boster v. Boster.
    Opinion delivered July 7, 1930.

      E. D. Chastain, for appellant.

      Partain $ Agee, for appellee.
   MoHaney, J.

In 1886 Samuel Kimbler died testate in Crawford County, Arkansas. By paragraph two of his will he devised the land in controversy to his two sons, William and Andrew, subject to the life estate therein given to his widow who predeceased him. In Bird v. Swearingen, 179 Ark. 402, 16 S. W. (2d) 569, we held that said sons, William and Andrew, under said paragraph of the will, took the fee simple title thereto. Prior to his death, William conveyed all his interest in said land t.o Andrew by deed. Thereafter Andrew died intestate leaving surviving him the appellees, Martha Boster (nee Kimbler), Luck Seabolt (nee Kimbler) and Clayton Kimbler, a minor, as his only children and heirs at law.

Frank Kimbler and Matilda Bird are children of said Samuel Kimbler, and brother and sister to said William and Andrew. In 1926, on the theory that the will above mentioned conveyed only a life estate to William and Andrew, they brought a suit to partition said land, claiming an interest therein. They caused a summons to be issued to the appellees directing them to attend a meeting on an adjoining farm tO' the land in controversy for the purpose of settling the Kimbler estate, the meeting to be held at 10 a. m., and caused a deputy sheriff in a remote part of the county to serve the appellees on the morning of the day set for said meeting. All the parties attended the meeting, and in addition appellant, the deputy sheriff, Mr. Seabolt and the attorney representing plaintiffs in the partition suit and appellant in this appeal, also attended. Through representations there made appellees were induced to execute a deed to appellant, prepared at the time by the attorney then present, in which Frank Kimbler and Matilda Bird joined, for a consideration of $666.66 to each of the appellees, $500 each to Kimbler and Bird and $500 to be paid Nannie Cowen, a sister of Kimbler and Bird, whose address was unknown.

About two months later, appellees brought this action to cancel the deed executed by them as having been obtained through misrepresentation, fraud, duress and as the result of a conspiracy on the part of all the other parties present to cheat them 'out of said land.

The trial court overruled a demurrer to the complaint, and, after hearing the evidence, canceled the deed, and offset the rents and profits against the betterments made by appellant. The case is here on appeal by the purchaser. .

The demurrer was properly overruled, as the complaint stated a good cause of action. It is said there was no tender made in the complaint of the money received from the sale, but the record discloses that the two adult plaintiffs paid the money they received into court, and that the money paid to the guardian of the minor was held subject to the order of the court. So the purchase money received by them was actually tendered and in court.

We.are also of the opinion that the court.correctly held that the deed was obtained by fraud, to which appellant was a party, and that it should be canceled. The uncles and aunts of appellees had no interest in this land as the fee simple title passed from Samuel Kimbler to his two sons, William and Andrew, and by deed from William to Andrew. Bird v. Swearingen, supra. Therefore when Andrew died intestate, the whole title passed to his children, the appellees, free from any claims of his brother and sisters as heirs of Samuel Kimbler. As to appellee, Clayton Kimbler, it is admitted that he was a minor at the time he signed the deed, and that he has the right to rescind, even in the absence of any fraud or misrepresentation. As to the other two adult-appellees, who were summoned to be present on the Larue place at 10 a. m. of the morning of the service of notice, we think the evidence clear, satisfactory and convincing in favor of the finding of the court that they were induced to execute the deed to appellant through ignorance of their rights and through fear of loss of their entire inheritance in litigation. We think it unnecessary to set the evidence out in detail, but suffice it to say we have carefully considered it and find that it more than preponderates in favor of the findings of the court — that it complies with the clear, satisfactory and convincing rule relative to the cancellation of deeds. The circumstances under which the meeting was arranged,-the abuse of the process of the court t.o obtain the meeting, the possession of the process by appellant, his arrangement with the remote deputy to serve it, the fee of $25 paid the deputy by appellant to serve it, the youth and inexperience of the minor, the inexperience and illiteracy of the two adult appellees, the threats of litigation which had already been instituted by three persons who had no title whatever, and other facts and circumstances that might be mentioned lead inevitably to the conclusion reached by the court, and that appellant was a party to the whole transaction.

We also conclude that the court properly offset the rents and profits against the betterments made by appellant while in possession of the land. The abstract of the evidence before the master is too meager to justify us in setting’ aside the decree in this regard.

We find no error, and the decree is accordingly affirmed.


text:
    Smith v. Fish.
    Opinion delivered July 14, 1930.

      II. K. Toney and Thos. W. Pames, for appellant.

      E. W. Brockman, for appellee.
   Hart, C. J.

This is an action of false imprisonment by William Lee Smith against W. A. Fish as sheriff of Linclon County and his bondsmen. The defendants justified the arrest of the plaintiff on a warrant issued by the county court of Lincoln County, which is as follows:

“The -State of Arkansas, to the sheriff of Lincoln County — Greeting:
“Whereas, William Lee Smith was on the 4th day of June, 1927, by the county and probate judge of Lincoln County, adjudged to be insane; and,
“Whereas, the superintendent of the State Insane Asylum has signified his readiness to receive said William Lee Smith as an inmate of said asylum.
“Now, therefore, you are hereby commanded to take the said William Lee Smith into custody and to deliver him without delay to the -superintendent of the State Insane Asylum at Little Bock, Arkansas.
“In testimony whereof, I have hereunto set my hand this 4th day of June, 1927.
“J. W. Paschall,
County and Probate Judge.”

The basis of the suit was that the county court acquired no jurisdiction over the person of the plaintiff at the time the judgment of insanity was pronounced against him, and the warrant for his commitment pursuant to said order was issued and delivered to the sheriff. On the part of the plaintiff, it was shown that he was arrested and confined in the insane asylum for several months under the warrant of commitment issued to the sheriff, and that no service of process had been had on him at the time the county court of Lincoln County adjudged him to be insane. The circuit court directed a verdict in favor of the defendants, and the case is here on appeal.

The judgment of the circuit court in favor of the defendants was correct. It is the settled rule in this State that process, fair on its face, will protect from liability the officer executing it. This court has held that imprisonment by virtue of a legal writ in due form issued by a court of competent jurisdiction and served in a lawful manner does not constitute false imprisonment, even though it was improvidently or wrongfully issued. Trammell v. Russellville, 34 Ark. 106 ; Campbell v. Hyde, 92 Ark. 128, 122 S. W. 99. Under our statute any county and probate judge has jurisdiction to examine for insanity any citizen within its jurisdiction and to order such person, if found to be insane, to be confined in the State Hospital for Nervous Diseases. Section 9401, et seq. Crawford & Moses’ Digest. The record shows that the order of commitment was issued by the county court of Lincoln County in which county the plaintiff at the time resided. The warrant of commitment was regular on its face, and protected the sheriff in his arrest of the plaintiff. Moreover, the plaintiff failed to file his motion for a new trial within the three days prescribed by § 1314 of the Digest, and offered no excuse for his failure to do so.

The court has held that where the record is silent as to the considerations that control the court in permitting the motion to be filed and remain of record, it must be presumed that they were legally sufficient to justify such action, and that it was made to appear to the court that the delay was unavoidable. Fordyce v. Hardin, 54 Ark. 554, 16 S. W. 576. See Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 972. In the present case, however, the record shows that when counsel for plaintiff offered to file his motion for a new trial out of time the court informed him that he might deliver it to the clerk, and that when it was presented for the determination of the'court his grounds for delay would he considered. Counsel for the defendants objected to the court’s consideration of the motion on the ground that it was not filed within the time, allowed by statute, and that th,e plaintiff was not unavoidably prevented from doing so within the meaning' of §1314 of the. Digest. Hence, there being no motion for a new trial filed, every presumption must be indulged in favor of the validity of the .judgment, and we can consider only errors which appear on the face of the record.

There are no errors apparent on the face of the record, and the judgment will therefore be affirmed.


author: Hart, C. J.,

text:
    Stade v. Berg.
    Opinion delivered July 14, 1930.

      ■
    ■ Hayme, Parks d Westfall, for appellant.

      Oaughan <& Sifford, for appellee.
   Hart, C. J.,

(after stating the facts). According to the principles of the common law, the purchaser at a tax sale, when he attempts to enforce rights under his purchase, has the burden of showing that the purchase was made pursuant to law. To do this he must show the substantial regularity of all the proceedings. Cooley on Taxation, 3d ed. vol. 2, page 1004. In this State the common law rule has been changed by statute so that the burden of showing the invalidity of the tax sale is upon the owner of the land. Section 10109, C. & M. Digest; Sawyer v. Wilson, 81 Ark. 319, 99 S. W. 389 ; Gannon v. Moore, 83 Ark. 196, 104 S. W. 139 ; Newman v. Lybrand, 130 Ark. 424, 197 S. W. 855. In the case at bar the defendants assumed this burden and showed by proof, which is not attempted to be contradicted, that the tax warrant required to be delivered to the collector by the clerk of the county court on or before the first Monday in January of each year was not delivered until the 22d day of January, 1925. This section of the statute provides that the clerk of the county court of each county shall, on or before the first Monday in January in each year, make out and deliver the tax books of his county to the collector with his warrant thereunto attached, under his hand, and the seal of his office authorizing such collector to collect such taxes. The section also provides the form of the collector’s warrant. These provisions of our statute relating to the sale of lands for the nonpayment of taxes are in the nature of conditions to the power to sell and are not merely directory. Such provisions are enacted for the benefit and protection of the landowner.

It has become the established rule in this State that a tax sale and deed thereunder confers no title upon the purchaser unless the statutory provisions relating thereto have been strictly complied with. While the section under consideration in this case has not been construed by the court to be mandatory and a compliance with its provisions a pre-requisite to the validity of a tax sale, yet it will be seen that such strict construction of it is in harmony with other decisions of the court relating to the question.

In Martin v. Allard, 55 Ark. 218,17 iS. W. 878, it was held that where the clerk failed to certify the publication of a notice of sale of delinquent lands as provided by statute, the tax sale was void. In Quertermous v. Walls, 70 Ark. 326, 67 S. W. 1014, it was held that a tax sale of land is void where the list of delinquent lands was filed by a deputy sheriff, and not by the collector of taxes or his deputy. In the same case it was also held that a sale of land to the State for nonpayment of taxes is void where the county clerk failed to keep a record of such sale as required by statute. In Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199, it was held that the failure of the clerk to make the certificate provided by the statute with reference to publication of the delinquent list of lands is fatal to the validity of a tax sale. In Pride v. Gist, 152 Ark. 368, 238 S. W. 35, it was held that a failure to comply with the statute on the part of the collector in filing with the clerk a list of delinquent lands was mandatory and jurisdictional, and that the failure to file such list within time renders void the sale for the taxes of that year. In Wildman v. Enfield, 174 Ark. 1005, 298 S. W. 196, it was held that the failure of the clerk to attach, his warrant authorizing the collector to collect taxes as provided in § 10016 is not a mere irregularity, but is such a defect that is not cured by the two-year statute of limitation.

In the case at bar the clerk did not file his warrant under the section of the statute until the 22d day of January, 1925, while the statute provided that it should be filed on the first Monday in January. This was not a substantial compliance with the statute. The statute prescribes a time limit within which owners of real property may pay their taxes without a penalty. We do not mean to hold that a literal compliance with the provisions of the statute is absolutely essential to the validity of a tax sale, but we do mean to hold that the statute must be substantially complied with. For instance, a delay of two or three days might only result in inconvenience to the landowners, but such a long delay as existed in the present case might seriously impair their rights. It might be necessary that the whole of the time allowed by statute would be essential to the proper discharge of the duties of the office of collector. It might require that •length of -time for him to collect all the taxes. In.any event, it was evidently the purpose of the framers of the statute to require a strict -compliance with its provisions upon the part of the officers charged with the duty of issuing a warrant for the collection oif taxes by the proper officer. This is the authority under which the officer acts and is in the nature of a distress warrant; it affords the officer power to sell the land of the property owner for the nonpayment of delinquent taxes and its provisions we construe-to be mandatory, and that a substantial compliance with them is a pre-requisite to a valid sale of the land.

By analogy the court has held that the warrant is essential to the proper authorization of the collection of taxes. Keith v. Freeman, 43 Ark. 296. Again, in Hooker v. Southwestern Improvement Ass’n., 105 Ark. 99, 150 S. W. 398, it was held that a sale for taxes for the year 1900 was invalidated by the county clerk’s failure to issue a warrant authorizing the collection of taxes for that year. This is in application of the principle that what the law requires to be done in the assessment and collection of taxes for the protection of the taxpayer is mandatory and not directory merely. American Trust Co. v. Nash, 111 Ark. 97, 163 S. W. 178.

The power of sale in a collector of taxes is a naked power conferred by statute, and the effect of its exercise is to divest the- owner - of his property without his consent, and oftentimes without his actual knowledge. Therefore, it has been well said that the power to sell property for the nonpayment of taxes is strictissimi juris, and a failure to comply with the statutory requirements is fatal. Charland v. Trustees of Home for Aged Women, 204 Mass. 563, 91 N. E. 146, 134 Am. St. Rep. 696.

Therefore, we hold that the .statute under consideration is- mandatory, and that its observance is a condition precedent to a valid sale of the land for taxes.

Having reached this conclusion, it is not necessary to consider the other grounds of attack on the sale.

It follows that the decree was correct, and it will be affirmed.