author: Wood, J.

text:
    Chriswell v. State.
    Opinion delivered May 31, 1926.
    1. Homicide — insanity—instruction.—An instruction, in a- prose- ' cution for murder, to acquit if the jury believed from evidence beyond a reasonable doubt that defendant was so mentally deficient that he could not discern right from wrong and 'could not control Ms actions because of his mentally, deficient condition, held erroneous.
    2. Criminal law — sufficiency of general objection. — Where an instruction on insanity in a prosecution for murder is inherently defective, a general objection is sufficient to draw the attention of the court to its defects. ’
    3. Criminal law — proof of insanity. — Proof that'an adult defend- ‘ ant had the intelligence of a child frdm'7 to'9 years old is insufficient to show that he was insane and therefore -incapable- of committing a crime.
    4-. ‘ Homicide — conviction of murder — evidence.—Evidence held sufficient to sustain a conviction of murder in the second degree.
    5. , Criminal law — harmless error.- — -Giving an erroneous instruction on insanity was harmless error in a prosecution for murder where there was no ,-competent evidence tending to establish that defense.
    Appeal from Scott Circuit Court; John E. Tatum, Judge;
    affirmed.

      H. W. Applegate,. Attorney G-eneral, and Darden Moose, Assistant, for appellee., - . :
   Wood, J.

William Chriswell was indicted-by the grand jury of Scott County, charged with, the crime, of murder in the second degree in the killing of one Virgil Isom. The indictment was-in proper form. .. The testimony for the State tended to prove that Chriswell was jealous of Isom because the latter -went with a young lady by the name of Zelma Shelton, to whom Chriswell was engaged to be married. There was testimony to the effect that Chriswell had requested Zelrna Shelton to permit him to accompany her to a dance at Harley Harper’s on Monday night, the night of the killing. Zelma refused, and he said to her at the time that if she did not go with him she would not go with any one. else. She did attend the dance that night with Virgil Isom. Chriswell attended the dance, and one of the witnesses stated that Chriswell asked if Virgil Isom was much of a scrapper, and said that if things didn’t go right after the dance he (Chriswell) would find out. A witness, at whose house the dance took place, testified that he heard Chriswell say that night that he would whip Virgil Isom after the dance, or get whipped. After the dance Virgil Isom and his companion took the two Shelton girls 'back home, and, as the young gentlemen were returning, they passed a stack of lumber on the road, near which Chris-well was standing. As Virgil Isom passed by, Chriswell knocked him down with a club, hitting three or four licks after he fell, -then jumped on him an,d began hitting him with his fist. Chriswell desisted when Buck Shelton told him to quit. Chriswell then left. Isom was carried to a neighbor’s house, where he died within a few hours, without regaining consciousness, as the result of the blows he - had received at the hands of Chriswell. The testimony on behalf of the State tended to prove that the. motive of Chriswell for striking Isom was jealousy. One of the witnesses for the State, the officer who arrested Chriswell, testified that he informed Chriswell. that Isom was dead — that he (Chriswell) had killed him— and Chriswell stated that he guessed he was in for it; that he hit Isom with a club because he was mad at him for taking his girl to the dance; that he didn’t intend to kill him — only to knock him down and whip him; that he hit him three or four times with his fist after Isom fell. He further asked witness if witness thought he could get it reduced to manslaughter, and stated that if he could it would not be-so bad. These statements of Chriswell were free and voluntary.

Miss Zelma Shelton testified, on behalf of the defendant, that she was engaged to Chriswell. She attended the dance, and went with Virgil Isom. She had also been walking with Isom the afternoon of that day, and had told Chriswell about it. She saw Chriswell at the dance, but didn’t talk with him. After the dance she also saw him and her brother coming on behind her and Isom. She stated that, after the boys had returned to her home with witness and her sister, she heard Virgil say, when he went to leave, that he was going back where Chriswell was at the lumber stack. She denied that she and Chris-well had had any words in regard to Isom on the Sunday afternoon before the Monday night of the killing.

Chriswell himself testified, and denied that he and Zelma Shelton had any disagreement about Isom, and denied that he had any conversation on the night of the killing to the effect that he was going to assault Isom. He stated that he and Buck Shelton, Zelma’s brother, stopped at a lumber pile, waiting for Virgil to leave the Shelton house so that he could go down and get a suitcase he had left there. When Isom left the Shelton house and came back, he passed near the lumber stack where witness was standing, and as he passed he hit witness on the shoulder with his left hand, at the same time having his right hand in his pocket. Witness first hit Isom two or three licks with his fist, and stumbled and fell on a stick, which he picked up, and with this stick he hit Isom three or four times. He had no intention of killing Isom. He had no ill-will or malice toward Isom. He left Isom lying on the ground and went to Shelton’s and got his suitcase and left. Witness stated that he went to school about eight years, and was in the third grade when he stopped; that when he was ten or twelve years old he was kicked in the forehead by a horse, leaving a scar.

Chriswell’s mother, brother and sister testified to the effect that Chriswell was kicked in the forehead by a horse when he was ten or eleven years old, leaving a long deep scar; that he remained in bed from the injury for a considerable time, and after he recovered he attended school five or six years, but never advanced from the fourth grade. Chriswell’s mother testified that his actions were sometimes peculiar; that they endeavored to assist him in his studies, hut without results. After the horse kicked him, at times he showed an almost complete lack of intelligence both in actions and looks. He was morose, irritable and ill-tempered, and never exhibited intelligence greater than that possessed by a child eight or nine years of age. Up until he was eighteen or nineteen years old his mother watched over him and cared for him just as if he were a child. About that time he became unruly and refused to obey her, and frequently left and was gone for weeks at a time, when she didn’t know where he was. His mental condition was embarrassing to her and the family, and he did many things witness didn’t think a sane person would do. He told witness, when he came home on Monday night of the killing, that he had a fight with Isom, but he didn’t appear to believe that the result of the fight was anything at all serious. He stated to witness that he might have to pay a fine, and wanted to get work at the mill so that he could earn money enough to pay the . same. Witness further testified that, at times, her son would forget the names of his brothers and sisters, and would ask -witness what their names were. Prom her observation of his conduct since the injury caused by the kick on his forehead she was of the opinion that her son was insane. On cross-examination she testified that her son had been in the penitentiary, where he was sent for three or four years on the charge of carnal abuse, and after serving two years he was paroled. The testimony of Chriswell’s sister and brother was substantially the same as that of his mother.

The instructions of the court on murder in the second degree and manslaughter, the offenses included in the indictment, and likewise the instructions on self-defense, reasonable doubt, presumption of innocence and credibility of witnesses, were all free from error, and conformed to the law on these familiar subjects, as it has been often announced by this court. Hence we find it unnecessary to set them out and comment upon them. Among the instructions given by the court was the following:

“No. 21. The court instructs the jury as a matter of law that an insane person is not amenable to the law for their acts. So in this case, if you believe from the evidence beyond a reasonable doubt that the defendant was so mentally deficient that he could not discern right from wrong and could not control his actions because of his mentally deficient condition, if he was deficient, then you should acquit the defendant.”

The defendant objected and duly excepted to the giving of this instruction. >•

This instruction was contrary to the law on the subject of insanity as announced in numerous decisions of this court. Woodall v. State, 149 Ark. 33; Kelly v. State, 146 Ark. 509; Hankins v. State, 133 Ark. 38; Bell v. State, 120 Ark. 530, and cases there cited. The instruction was inherently defective, and a general objection would be sufficient to draw the attention of the court to the defects therein. But, after a careful examination of the testimony, we have reached the conclusion that the instruction, although erroneous, was not prejudicial, for the reason that there was no testimony to warrant the court in submitting the issue of insanity to the jury. The testimony of the witnesses on this issue tended to prove that the appellant, after he arrived at the years of maturity, possessed only the intelligence of a child from seven to nine years of age. But an adult with the intelligence of a child from seven to nine years of age would be mentally capable of committing a crime, unless it were shown by a preponderance of the evidence that such person was insane, under the tests laid down by the court in the above cases. In other words, where an adult person has the intelligence of a child from seven to nine years of age, that fact alone cannot be made the test as to whether he is insane, and therefore not capable of committing a crime under the rules and tests announced by the court in the above cases.

The testimony adduced by the appellant, given its strongest probative force in his favor, does not tend to' prove that, at the time of the commission of the crime charged, the appellant was insane. The appellant’s own testimony, if believed by the jury, would have justified them in acquitting the appellant, or at least in finding that he was guilty of no higher offense than that of manslaughter. There was nothing in his testimony to indicate that his conduct in slaying Isom was the result of a diseased mind, nor was there anything in the testimony of appellant’s mother, brother and sister, tending • to prove that, at the time of the-killing’, the appellant was insane. The facts stated 'by them did not warrant their opinion that the appellant was crazy, in the sense that he was not responsible under the law for the crime charged.

We conclude therefore that the giving of the instruction No. 21, although erroneous, could not have been prejudicial to the appellant, but, on the contrary, the submission of the issue of insanity to the jury, -under the undisputed testimony, allowed the jury to consider a defense to which appellant was not entitled, and hence was .in appellant’s favor rather than prejudicial to him. The judgment is therefore correct, and it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    McCown v. Nicks.
    Opinion delivered May 31, 1926.
    1. Appeal and error — acceptance of benefit under decree appealed from. — A party may appeal from the unfavorable portion of a decree, though he accepted the benefit of the favorable portion, if a reversal cannot affect his right to the favorable portion.
    2. Appeal and error — appeal from part of decree. — A mortgagee ' may appeal from that part of a foreclosure decree which denies him a personal deficiency judgment against certain defendants, though he proceeded with the sale under the decree and became a purchaser thereat.

      3. Mortgages — assumption op debt by grantee. — Acceptance of a deed containing a stipulation for payment by the grantee of a mortgage on the property implies a promise to perform it, on which assumpsit will lie.
    4. Mortgages — assumption op debt — rescission.—An agreement toy the purchaser of mortgaged land with the mortgagor to pay the mortgagor’s debt to the mortgagee may toe rescinded without the latter’s knowledge or consent, where no privity of contract has been established by the latter’s acceptance of the purchaser as debtor.
    5. Mortgages — assumption op debt — rescission.—An agreement by a purchaser to pay off a mortgage debt could not be rescinded by a reconveyance to the mortgagor without the consent of the mortgagee after the latter had been notified of such assumption and had extended the time of making the payment to the purchaser and the property in the meantime had decreased in value.
    6. Mortgages — rescission op assumption of debt — burden op proof. —One who, by purchase of mortgaged property, assumed and became liable to the mortgagee for payment of the debt secured, has the burden of proving that the mortgagee consented to release him on reconveying the property to the mortgagor.
    Appeal from Jefferson Chancery Court; E. B. Lucas, Chancellor;
    reversed.

      Rowell <& Alexander and Church & Gmmaway, for appellant.

      Dcmaher & Danaher, for appellee.
   Wood, J.

On December 1, 1918, O. S. McCown, individually and as trustee, Moore Moore, W. B. Sivley, H. Gannaway, B. M. Hammond and B. F. Hammond Sr., sold a tract of land owned by them in Jefferson County, consisting of 227 acres, to one W. R. Willis for a consideration of $11,400, evidenced by promissory notes secured by vendor’s lien reserved in the deed. The Hammonds later assigned their interest in the purchase money notes to the other owners. On the 29th of November, 1919, Willis and wife conveyed this land to one Dan W. Nicks for a consideration of $155.23 in cash and the assumption by Nicks of the payment of the deferred purchase money notes. The first purchase money note for $1,500 was due December 1, 1919, which note Nicks paid. The second note for $1,100 was due December 1, 1920, and five days before the maturity of this note Nicks requested an extension of time for. the payment thereof, which was granted, and the time extended until January 1, 1921. Nicks failed to pay this note on the day it was due, and on January 12,. 1921, reconveyed the land to his vendor, Willis, for a consideration recited in the deed of $100 cash and the assumption by Willis of the payment of the unpaid purchase money notes executed by him for the purchase of the land. No further payments were made by Willis or Nicks on these notes. On June 2,1922, this action was instituted in the Jefferson Chancery Court by O. S. McCown individually, and as trustee, and by Moore Moore, W. B. Sivley and H. Gannaway, against Willis and wife and Nicks and wife, to recover .judgment on the unpaid purchase money notes and certain taxes. They set up the vendors ’ lien, and asked that the same be foreclosed, and for judgment on the notes, and that, unless the same be paid, the lands be sold to satisfy the judgment. A lis pendens was filed June 2, 1922. Willis died during the pendency of the action, and the cause was revived in the name of his heirs. A guardian ad litem was appointed for the minor heirs -of Willis, and he answered for them, denying all the material allegations of the complaint. Nicks and wife answered on June 9, 1922. They denied personal liability on the notes, -and alleged that, after purchase of the land by Nicks from Willis, he and his wife resold the property to Willis, and by such sale were absolved from liability to the plaintiffs ; that they were never indebted directly to the plaintiffs for the unpaid purchase money on the lands, and denied all other allegations of the complaint.

McCown testified, and, after identifying the notes and the original deed, the same were'introduced in evidence. In addition to the above facts, he testified that he had correspondence with Nicks concerning the lands sold to Willis and the indebtedness therefor. He exhibited the correspondence between himself and Nicks, which was introduced in evidence. These exhibits establish the facts as above set forth. He further testified that, at the time he received the letter from Nicks asking for an extension of time for the payment of the second purchase money note and stating that Nicks had assumed the payment of these notes, the price of the land was at its peak, and that the land could have been sold at that time for the amount of the balance of the purchase money due thereon. But that at the time witness was testifying it' could not be so sold, as the market value of such lands had greatly depreciated. He testified that, when Nicks notified him that he had resold the property to Willis, witness notified Nicks that the plaintiffs would expect him to pay the notes. Witness never had any agreement with Nicks that the plaintiffs would look solely to Willis or relieve him (Nicks) from liability on the notes.

In addition to the above, there was other testimony on behalf of the plaintiffs to the effect that, at the time the payment of the second purchase money note was extended by the plaintiffs at the request of Nicks, Nicks was in good financial standing, and the extension was based upon knowledge of that fact.

Nicks testified, over the objections of the plaintiffs, that, before he reconveyed the property purchased by him from Willis back to Willis, he had a conversation with McCown over the telephone, and notified him of what they were doing; that Willis was not able to make the payments of more than forty-odd hundred dollars, and that witness was taking over Willis’ interest in the property owned jointly with Willis and letting Willis have the property that witness purchased from Willis the year before. McCown isaid that would be all right. They would look to Mr. Willis for payment on the'227 acres and look to him (Nicks) for the payment on the 480 acres (another tract not involved), and that McCown asked for some definite time when the payment on the 480-acre tract would be expected, and that witness replied, “Not later than January 25,” to which McCown agreed. Witness stated that he and Willis then consummated the deal by which he reconveyed to Willis the 227-acre tract; that he never heard anything more about the 227-acre tract until something more than a year thereafter, when the plaintiffs notified witness that they were expecting him to pay the balance of the purchase money on this tract.

McCown testified in rebuttal that he never agreed to release Nicies from personal liability, and could not recall that Nicks had "ever made such request. Witness only owned an interest of eleven thirty-fourths in the purchase money notes, and could not have made a release without the consent of the other owners. He denied that in a telephone conversation with Nicks he made any statements to the effect that Nicks would be relieved from liability on the notes for the 227-acre tract; that he would not have relieved him from liability on the notes without consideration. He had no authority from the other parties interested to relieve any one from liability, and did not agree with Nicks to relieve him from liability on said notes.

Upon the above facts the court found that Nicks was relieved from any personal liability to the plaintiffs for the purchase price of the lands being foreclosed by the acceptance by W. R. Willis of the deed from Dan W. Nicks reconveying said land executed on January 12, 1921, and entered a decree dismissing the complaint against Nicks and wife for want of equity, from which is this appeal.

The court further found that there was a balance due on the unpaid purchase money notes of $13,983.47, and entered a decree for that sum, and directed that the 227 acres be sold to satisfy such decree.. There is no appeal from this part of the decree. The concluding paragraph of the decree is as follows: “It is further ordered that the report of the commissioner be made a part of the record in this cause and be included in any transcript of the record of this cause for the purpose of showing any deficiency, if any, which may exist between the sale price of said lands and the judgment herein rendered.”

The appellee moves to dismiss the appeal on the ground that “the appellants had enforced the decree appealed from by causing the property to be sold under the decree, at which sale McCown and the other appellants purchased the property for the sum of $5,000, which sale was duly confirmed by the court.” The appellee contends that this procedure on the part of the appellants is a waiver of their right to appeal.from the decree, and. that they are estopped thereby from prosecuting this appeal. As we construe the record from which this appeal comes, there is no appeal from that part of the decree fixing the amount of the decree in favor of the appellants and directing the lands to be sold in satisfaction of such decree. The appellants do not contend here that there was any error in that part of the court’s decree. The' appellants only appeal from that portion of the decree which dismisses their complaint against the appellee and results in denying the appellants any judgment against the appellee for the balance due them on the purchase money notes. Learned counsel for the appellee contend that, as the court below had held appellee free from liability, he was not bound to protect himself from loss by purchasing the land at foreclosure sale. They argued that, after a judgment had been rendered in the trial court in favor of the appellee, “Nicks-had no interest in the property or in his codefendants, and no reason to think that it was to his interest to procure bidders or to bid for the property on his. own account.” This argument is unsound, for the reason that Nicks knew that the appellants had prayed an appeal to this court from the judgment in his favor. While the appeal was pending Nicks was bound to know that the judgment of the trial court in his favor was not final, and he could not assume that such judgment relieved him from any personal liability for the amount of the decree that had been rendered in appellant’s favor against his codefendants. Nicks was bound to know that the judgment of the trial court in his favor might be reversed by this court on appeal, and that he might finally be held liable personally for the balance of the unpaid purchase money on the notes. So long as Nicks’ personal liability was thus undetermined, it is not correct to say that he had no interest in the'property pledged to secure the purchase money notes and that it was wholly immaterial to him whether the land under the decree was sold for enough to satisfy the judgment. So long as the issue was unsettled as to his personal liability, Nicks was bound to know that it was to his interest to have the property at the foreclosure sale sell for enough, if possible, to liquidate the amount of the decree.

“It is quite generally conceded,” says Ruling Case. Law, “that one cannot ordinarily accept or secure a benefit under a judgment or decree and then appeal from it or sue out a writ of error, when the effect of his appeal or writ of error may be to annul the judgment. * * * The rule just stated is subject to the exception that, where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, and will be sustained despite the fact that the appellant has sought and secured such benefit. * * * If it is possible for the appellant to obtain a more favorable judgment in the appellate court without the risk of a less favorable judgment from a new trial of the whole case there, or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without retrial of the Vhole case, a decision more advantageous to him.” 2 R. C. L., p. 61, § 44, and cases cited in note. The exception to the rule is quite as well established as the rule. Since the appellants have not appealed from the amount of the decree in their favor and directing a sale of the land to satisfy the same, there is no possibility that their appeal from the judgment against them in favor of the appellee may lead to a result showing that they were not entitled to what they have already received. Appellants received, as a result of the decree in .their favor, only the sum of $5,000, leaving a balance due them on such judgment in the sum of $8,983.47. There is no inconsistency whatever in appellants’ accepting the proceeds of the sale of the property under the decree as a payment on such judgment, and then seeking by their appeal to have appellee held personally liable for the balance due on such decree. To be sure, the appellants would only be entitled to one satisfaction of their judgment, but, since the proceeds of the foreclosure sale did not pay the amount of the judgment, if the appellee be personally liable therefor, the appellants had the right to appeal from the judgment of the trial court holding to the contrary. In Goodlet v. St. Elmo Investment Co., 94 Cal. 297, 29 Pac. 505, it is held, quoting syllabus 3: “A plaintiff in a foreclosure suit does not, by causing a sale under the decree of foreclosure before taking an appeal, thereby waive his right to appeal from that part of the decree fixing personal liability for a deficiency of proceeds of such sale. ’ ’ In Bolen v. Cumby, 53 Ark. 514, we held that “a party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event — that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.” See also Mathis v. Litteral, 117 Ark. 481; Jones v. Hall, 136 Ark. 348. The above doctrine clearly applies to the facts of this record. The decree, as we have seen, was divisible — partly in appellants’ favor and partly against them — and the benefit accepted by appellants was not inconsistent with the claim which they seek to establish by the appeal. The appeal by the appellants, as already stated, was only from that part of the decree dismissing their complaint against the appellee. It follows that the appellee’s motion to dismiss the appeal must be overruled.

This brings us to the consideration of the issue on the merits as to whether or not the appellee is liable personally to the appellants for the unpaid purchase money notes executed by Willis. By tbe deed from Willis to Nicks the latter “agrees to pay when due and save harmless against the notes given by W. R. Willis toO. S. McCown, trustee, which are described in the deed from O. S. McCown to Willis.” The doctrine of this court is that the ‘‘ acceptance of a deed containing a stipulation whereby the grantee agrees to pay a mortgage on the land implies a promise to perform it; on which promise, in case of failure, assumpsit will lie.” Patton v. Adkins, 42 Ark. 197; Benjamin v. Birmingham, 50 Ark. 433; Felker v. Rice, 110 Ark. 70; Walker v. Mathis, 128 Ark. 317; Kirby v. Young, 145 Ark. 507; Beard v. Beard, 148 Ark. 29; Wallace v. Hammond, 170 Ark. 952, 281 S. W. 902.

' Since the appellee, under these authorities, became liable to the appellants for the debt of Willis, the issue, in the last analysis, is whether the appellee was released from his liability. On the 12th of January, 1921, the appellee and wife executed to Willis a deed reconveying to Willis the'227 acres, 'and in this deed Willis “agrees to pay when due and save the grantors harmless against the notes heretofore, assumed by Dan W. Nicks” — the notes in controversy. Long before this deed was executed Nicks, under his assumption of the debt of Willis, paid off the first of the purchase monéy notes on December 2, 1919, in the sum of $1,500. McCown not only received and accepted this payment, but also notified Nicks on November 29,1920, of the amount of the balance due on the second note, and agreed with Nicks to extend the time of payment from December 1, 1920, to January 1, 1921. There seems to be a contrariety of view in this country as to whether one who sells property upon which there is an incumbrance and procures from his grantee as. a consideration, or part consideration, of the purchase price a promise to pay off the debt or incumbrance, can afterwards release his grantee from the obligation or liability to pay the debt to the creditor holding the lien. In a few .jurisdictions, and by some authorities, it is held that, where the conveyance is absolute, the assumption of the debt by the grantee is an absolute obligation in favor of the creditor holding the debt or incumbrance, and, without his consent, the grantor has no power to release his grantee from his obligation to pay the debt. Dean v. Walker, 107 Ill. 540; Bay v. Williams, 121 Ill. 91; Ingram v. Ingram, 72 Ill. 287; Douglass v. Wells, 18 Hun (N. Y.) 88; Starbird v. Cranston, 24 Colo. 20; 2 Jones on Mortgages, § 764; Devlin on Deeds, § 1093.

The question is one of first impression in our State. We think the better reason and the weight of authority is to the effect that such contract may be rescinded. There is no privity of contract with the third party holding the mortgage lien or incumbrance, and, unless he has in some manner become a privy to the contract of sale, there is no reason why the parties to the contract may not rescind the same without his knowledge or consent. Under the equitable doctrine of subrogation, the mortgagee would only be entitled to such remedy as the debtor — the mortgagor or vendor himself — has against his vendee. If these immediate parties to the contract have rescinded the same before any privity has been established between the mortgagee or lien-holder and the vendee who has assumed to pay the debt, then the mortgagee or lien-holder has no right to complain. He must stand in the shoes of the mortgagor, so far as the enforcement of any rights under the contract is concerned. But, where the mortgagee or lien-holder has accepted the contract, or asserted rights thereunder, denoting acceptance, and a privity has thus been established between him and the vendee who has assumed the debt, then the parties to the contract cannot rescind the same without the knowledge, consent or acquiescence of the lien-holder. Thacker v. Hubbard, 21 A. L. R. 414; Crowell v. Surrier, 27 N. J. Eq. 152, 156; Whiting v. Gearty, 14 Hun (N. Y.) 498, and numerous cases cited by the editors in 21 A. L. R. supra, at pages 462, 466. This doctrine is clearly recognized by implication in the recent case of Wallace v. Hammonds supra.

Applying the above doctrine to the facts of tins record, the appellee was not released from liability by reason of his conveyance of the land to Willis and the assumption by the latter of his original indebtedness, because, long before such conveyance from the appellee to Willis, the appellants had accepted the appellee’s covenant to assume the debt of Willis, and appellee had made a payment on such debt. The appellants, moreover, had changed their position hy extending’, at the request of the appellee, the time for the payment of the second purchase money note. By that extension, as the proof shows, the appellants were placed in a more unfavorable position, because the lands from that time began to decrease-in value, and their security for the payment of the debt of Willis was thereby greatly lessened.

We find it unnecessary to decide, and do not decide, the issue as to whether or not McCown had authority to, and could, release the appellee orally from liability for the mortgage debt, for the reason that, even if this could be done, the testimony, as we view it, is not sufficient to show that it was done. The burden of proof as to this issue was on the appellee, and he has not met the requirements of the law in this respect. The most that could be said of the testimony on this issue in favor of the appellee is that the testimony is conflicting. The appellee testified positively that he called McCown over the phone, and that McCown consented to release appellee on the 227 acres. McCown, on the other hand, positively asserted that he never agreed to release the appellee from personal liability, and never said anything in a conversation with appellee over the phone which could possibly be construed by him as an agreement to release him from liability on the notes on the 227-acre tract. He testified that he only owned an 11/34 interest in the notes, and held the balance as a trustee for other parties, from whom he had no authority to make such release, and he did not in any conversation agree to release the appellee. Dr. Moore testified to the effect that, in the summer of 1922, he had a conversation with the appellee, in which he told appellee that appellants had both a moral and legal right, to expect him to pay for the 227 acres, and appellee said in substance that Willis had assumed the notes. Appellee “seemed very much depressed, and claimed to be sick also, and would only say that he just didn’t see how he could make the payments — how he could do it. ’ ’ .Appellant did not deny that the conversation with Dr. Moore occurred as Dr. Moore stated above. The testimony of McCown and Dr. Moore on this issue is far more reasonable and believable than the testimony of the appellee; and it cannot be said therefore that appellee has proved a parol release by a preponderance of the evidence. On the contrary, .we are convinced that the finding of the trial court on this issue is clearly against the preponderance of the evidence.

The court therefore erred in entering a decree dismissing the appellants’ complaint for want of equity. For this error the decree is reversed, and the cause is remanded with directions to enter a decree in favor of the appellants against the appellee for the balance found to be due on the purchase money notes, after deducting the amount of the proceeds of the foreclosure sale, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.


text:
    Stephens v. State.
    Opinion delivered May 31, 1926.
    1. Witnesses — examination as to bias. — Where defendant on cross-examination of a State’s witness sought to show that animosity existed between the witness and defendant, which actuated the witness to appear before the grand jury, it was competent for the State, on redirect examination, to show that his testimony was not voluntary but in response to process of the court.
    2. Criminal law — admission of evidence — harmless error.— Where, on cross-examination, the State’s witness was shown to have been brought back from another State on a charge of wife desertion, though he had been living with his wife in the other State, testimony of the prosecuting attorney that the charge of wife desertion had been filed at the wife’s instance, though improper as introducing a collateral issue, was not prejudicial, where the same fact was elicited on examination of the witness.
    3. Criminal law — instruction as to reasonable doubt. — An instruction defining reasonable doubt as “a doubt that is reasonable and one upon which you would be willing to act in any matter of highest concern to you with which you might be confronted in your everyday walks of life” held not erroneous.
    4. Intoxicating liquors — instruction as to other sales. — In a prosecution for selling liquor, an instruction that the jury could consider testimony of other sales 'by defendant only for the purpose of shedding light, if any, on the kind and character of business the defendant might have been engaged in, was not erroneous where the testimony tended to prove that defendant was engaged in selling liquor.
    5. Criminal law — invited error. — Where, in the argument, counsel for the accused criticised the prosecution for bringing a State’s witness from another State on a charge of wife desertion when he was living with his wife, remarks of the prosecuting attorney that the witness had run off to keep, from testifying against the accused were invited and were not prejudicial.
    Appeal from Clay Circuit Court, Western District; O. E. Keck, Judge;
    affirmed.

      W. E. Spence and F. O. Taylor, for appellant.

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

On the tenth, day of June, 1925, the grand jury of Clay County returned into court an indictment against Ed Stephens in two counts, the first count charging him with selling liquor and the second with the crime of procuring liquor. He was placed on trial on both counts.

Witness Crow testified on direct examination in substance that he’was a traveling salesman in 1923, and lived in Missouri. He traveled in Missouri and Arkansas. Some time in October, 1923, he stopped at the St. James Hotel in Corning, Arkansas. He was in a room with another party, and they sent out and got a quart of whiskey. The appellant brought the whiskey to the room and received pay for it, and then went away. On cross-examination witness was asked when he first told of the occurrence, and stated that it was last summer before the grand jury — at the last June term of the grand jury. He hadn’t thought of it or mentioned it since it occurred until then. There was nothing to draw witness ’ particular attention to it, and he hadn’t discussed it with anybody. Witness was then asked: “Q. In other words, it was nearly two years after it occurred before you ever said anything to anybody about it? A. I don’t remember having mentioned that incident to any one. I don’t know whether it was two years or not.” The witness was further asked if there was not some little had feeling or something of a misunderstanding between witness and Stephens at the time he appeared before the grand jury, and he replied, “Well, you can’t hardly call it bad feeling. I felt like I was mistreated by Mr. Bill Stephens.” He was further asked if he had had any misunderstanding or any hard feeling toward any of the Stephens family, and he answered, “Well, really, no hard feelings.” He never had any trouble with the appellant.

On redirect examination the witness, over the objection of the appellant, was asked by the prosecuting attorney the following questions: “Mr. Crow, did you go voluntarily before the grand jury?” He answered, “No sir.” The witness stated that he was sick one time, and the court didn’t understand it, and fined witness for contempt of court because witness Avasn’t there. He further stated that he was subpoenaed to appear before' the grand jury. The appellant moved to strike all the testimony with reference to his. appearance before the grand jury. The court overruled the motion and announced in doing so that “the jury will consider that as going to the interest of the witness only.” The appellant duly .excepted to the ruling of the court.

On further re-cross examination the appellant, among other questions, asked the witness if he was not present here under bond, if he hadn’t been attached, and the witness answered these questions in the affirmative.

Everett Powers, another witness for the State, testified that he now lived in St. Louis but had formerly lived in Corning, Arkansas; that he had lived there practically all of his life and had known the appellant all of that time. He was friendly with the appellant — never had any falling out with him. He bought whiskey from appellant in 1924 in Corning and paid him $1.25 for a pint. This witness, on cross-examination, among other questions, was asked, “When did you come back as a witness here to this court, to attend this term? A. Well — -you mean when they brought me back? Q. Did some one bring you back? A. Yes sir.” Witness was asked where he was at the time they brought him back, and stated that he lived in St. Louis, and was there with his wife keeping house when the officer came for him and brought him back here and placed him in jail on a charge of wife desertion. On redirect examination the witness was asked if he knew when the charge of wife desertion was lodged against him, and he answered that he did not. He further stated that, when he went to St. Louis about a year before, he left his wife in Corning, and witness didn’t know who preferred the charge of wife desertion against him. On re-cross examination he was asked if they served a writ on him for wife desertion, and he stated that was what they brought him back for. He further stated on redirect examination that he waived extradition and volunteered to come back.

The bill of exceptions shows that the appellant objected to all of his testimony, and that the objection was overruled, and the appellant duly excepted to the ruling of the court.

Witness Holloway was called as a witness for the State and testified that he was the deputy prosecuting attorney of the county; that he filed information against Everett Powers charging him with wife abandonment on February 21, 1925, at the instance of his wife, and that Powers was brought back on that charge. The appellant objected to the testimony and asked that the same be stricken from the record. The court overruled the objection and motion, stating, “Well, there is some testimony brought in here as to why he -came back. It may -shed some light on that, and the jury will consider it only for that purpose, if they find it does shed any light on it.” To this ruling the appellant duly excepted.

Among instructions given by. the court were the following: “No. 7. The phrase ‘beyond a reasonable doubt’ should be defined to you, and it means that, after a full and fair consideration of all of the facts and circumstances introduced in evidence before you, there naturally arises in your mind, either out of the evidence, by reason thereof or on account of a lack of it, a substantial doubt of the defendant’s guilt. That is what is meant by a reasonable doubt. It does not mean an imaginary or far-fetched doubt to be conjured up by you in order to enable some guilty man to escape jtlst punishment, but is intended as a shield to protect the innocent from unjust conviction. It is a doubt that is reasonable -and one upon which you would be willing to act in any matter of highest concern to you with which you might be confronted in your every day walks of life.”

The bill of exceptions recites the following: “Everett Powers had testified that he-lived in St. Louis, Missouri, and had regular employment there, and that his wife was living with him and even keeping house, and that they had been living there one year when the deputy sheriff of Clay County came after him on Saturday morning before the present term of court convened on the following Monday. The attorneys for the defendant in their argument referred to this testimony and criticised the procedure on the part of the State. The prosecuting attorney, in answer to the argument of the attorneys for the defendant, stated, ‘ C. Everett Powers, after he was a witness, had run off to keep from testifying against the defendant.’ The defendant objected to this statement of the prosecuting attorney, and the court said to the jury that they were the sole judges of the evidence, and the defendant excepted to the ruling of- the court.” The-jury returned a verdict finding the defendant guilty of selling liquor and fixing his punishment at imprisonment in the State Penitentiary for a period of one year. The court pronounced judgment of 'Sentence in accordance with the verdict, from which judgment is this appeal.

There was no prejudicial error in the rilling of the trial court in permitting the witness Crow to testify, in substance that he did not voluntarily appear before the grand jury, but was subpoenaed as a witness. Nor was there any error prejudicial to- the appellant in permitting the witness Crow to testify that he was arrested on a charge of contempt of court for failure to appear before the grand jury to testify against the appellant and fined for contempt and placed under bond to appear before the circuit court. Learned counsel for appellant,.on cross-examination of the witness Crow, had endeavored to show that animosity'existed between the witness and the appellant which actuated the witness to appear before the grand jury and thus to establish the fact that the witness was biased and had a prejudice against the appellant. This cross-examination was legitimate, but, since appellant’s counsel elected to thus cross-examine the witness,' it was likewise permissible for the counsel for the State, by redirect examination on the same subject, to endeavor to prove by the witness that he was not biased, and that his testimony was not voluntary but in response to a subpoena issued out of the circuit court. The court, in ruling upon this testimony, announced that it was admitted only for the purpose of showing the interest of the witness, and the jury could only consider it for that purpose.

On cross-examination of the witness Everett Powers by counsel for the appellant, the fact was elicited that he had been brought back from St. Louis on a charge of wife desertion and had been put in jail and was in jail in Corning at the time he was brought before the court to testify in this cause; that he.had as yet not been tried on the charge of wife desertion; that he and his wife were living together in St. Louis, keeping house, when the deputy sheriff arrested him and brought him back to Corning. On redirect examination by the attorney for the State, the witness stated that he had waived extradition and had volunteered to- come back before the sheriff had come to St. Louis for him. The court, over the objection of the appellant, permitted the deputy prosecuting attorney, Holloway, to testify that he had filed information against Powers, charging him with wife desertion, on February 21, 1925, at the instance of his wife, and that he was 'brought back to Corning on that charge. This testimony of Holloway was improper because it introduced a collateral issue which the court should not have permitted. But, since the same facts in substance had been elicited >by proper cross-examination and redirect examination of the witness Powers himself on the witness stand, it occurs to us that it is thus affirmatively shown that the testimony of the witness Holloway, though improper, was not prejudicial. It was, of course, .legitimate to prove by cross-examination and redirect examination of witness Powers himself what bias or prejudice, if any, he had as a witness in the cause, as affecting his credibility.

The court did not err in giving instruction No. 7 on reasonable doubt. It differs radically from the instruction on that subject which was condemned by this court in Robinson v. State, 149 Ark. 1. This court, in Carpenter v. State, 62 Ark. 286, held that it was not error to charge the jury that ‘ ‘ a reasonable doubt is not a captious, imaginary or possible doubt, but must be such a doubt as a reasonable man would have in matters of deepest concern to himself, and must arise out of the evidence in the ease.”

We find no reversible error in the ruling of the court in the giving of instruction No. 11. In this instruction the court told the jury that they could not consider any testimony as to sales of liquor other than to witness Crow, except for the purpose of shedding light, if it did shed light, on the kind and character of business the defendant might have been engaged in. The instruction was in harmony with an instruction of similar purport approved by us in Nelson v. State, 165 Ark. 448. The testimony as to other sales is competent where it tends to prove that the accused is engaged in the business of selling intoxicating liquor. The testimony here tended to prove that the appellant was engaged in the business of selling intoxicating liquor at the St. James Hotel in Corning, Arkansas. This brings the case well within the doctrine announced in Nelson v. State, above, and cases there cited. Counsel for the appellant complain here that the testimony with reference to other sales was not stricken out. As we interpret instruction No. 11, it does withdraw from the consideration of the jury the testimony concerning all other sales except in so far as it might shed light on the kind of business that appellant might have been engaged in. Only a general objection was made to the above instruction, and we find no inherent defect in it.

The remarks of the prosecuting attorney to which objection is urged were invited by the remarks of. the attorneys for the appellant in commenting upon the testimony of Powers. Besides, these remarks, as we view them, were not calculated to create any prejudice in the mind of the jury against the appellant. Powers was a witness for the State, and the remarks of the prosecuting attorney tended to reflect on his credibility and reliability as a witness, which could not have been prejudicial to the appellant. There is no error in the judgment, and the same is therefore affirmed.


author: Hart, J.

text:
    Holt v. State.
    Opinion delivered May 31, 1926.
    1. Grand jury — irregularities in formation — waiver of objection. — Objections for irregularities in the formation of the grand jury are waived by pleading to the indictment.
    2. Criminal law — admission of evidence — necessity of objection. — Where no objection was made to the introduction of a photograph in evidence, or to the examination of a witness, the objections will not be considered on appeal.
    3. Larceny — liability of participant. — One who participated in the original asportation of property stolen by her confederate was guilty of the larceny.
    4. Criminal law — argumentative instruction. — An instruction in a prosecution of a wife for larceny alleged to have been committed with her husband, that “flight cannot be considered forceful resistance, and the fact that the defendant left in flight with her husband, standing alone, raises no presumption of her guilt, and it is insufficient to sustain a conviction,” was properly refused as being argumentative and giving undue prominence to a single fact.
    Appeal from Garland Circuit Court; Eafl Witt, Judge;
    affirmed.

      C. Floyd Huff and Jay M. Rowland, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

This is a companion case to the one of Bob Holt v. State, ante, p. 40. Hazel Holt is the wife of Boh Holt, and was convicted of the same larceny and has duly prosecuted an appeal to this court.

The first assignment of error is as to the formation of the grand jury at the time of the return of the indictment in this case. The record shows that the defendant pleaded not guilty to the indictment, and went to trial. Objections for irregularities in the formation of the grand jury were waived by pleading to the indictment. Hence, if there had been any error in impaneling the grand jury, the defendant was too late in taking advantage of it. Carpenter v. State, 62 Ark. 286, and Latourette v. State, 91 Ark. 65.

The next assignment of error relates to the introduction of a photograph of the defendant taken by the police in Memphis. .No objection was made to the introduction of the photograph in evidence, and, under our' rules of'practice, we cannot consider this alleged assignment of error. Brown v. State, 169 Ark. 324.

• The third contention of counsel for the defendant is that the court erred in permitting the State to interrogate the defendant with reference to a passport obtained by her after the commission of the alleged offense. No objection was made, and no exceptions were saved on this point. Hence, under our rules of practice, this alleged assignment of error cannot be considered by us.

The principal ground relied upon for a reversal of the judgment is that the court refused to give the following instruction: “The jury are instructed that, the evidence in this case having failed to show the presence of the defendant at the time the larceny charged in the indictment was alleged to have been committed, you will find the defendant not guilty on the first count in the indictment.”

There was no error in refusing to give this instruction. The defendant was indicted for the crime of grand larceny for stealing $55,000, the property of Pete Sirbu and his wife. It was the thebry of the State that Bob Holt and Hazel Holt, his wife, entered into a conspiracy to steal $55,000 from Pete Sirbu and his wife by the use of a trick or device, within the principles. announced in Arkansas National Bank v. Johnson, 122 Ark. 1, and cases cited.

According to the evidence for the State, Bob Holt, the husband of Hazel Holt, by a trick or device obtained from Pete Sirbu, in the city of Hot Springs, G-arland County, Arkansas, $55,000 belonging to Sirbu and $5,000 belonging to Sirbu’s wife. The money was wrapped up in paper, and was delivered to Bob Holt on the steps of a hotel. Bob Holt took the money -and walked down the porch of the hotel, where Hazel Holt was sitting. .As soon as she saw her husband, she stood up and talked to Mm for a few minutes. Bob Holt delivered the package of money to Ms wife, and they sat down for a minute or two. Then Hazel Holt got up and walked down the porch to a garage, with the money, and got in a taxicab and drove away.

This testimony brings the case squarely within the principles of law decided in Monk v. State, 130 Ark. 358, and Davidson v. State, 132 Ark. 116.

The evidence just detailed shows that there was a continuation of the asportation of the money,, and that Hazel Holt participated in the larceny of the money, because the original asportation was still in progress when she received the money from her husband and carried it away in the taxicab.

It will be noted that the instruction was peremptory in its nature. It as.sumed that the original theft of the money had been ended when Hazel Holt received the package of money from her husband. As we have just seen, such was not the case, and the original asportation of the money was continued when the defendant received the package from her husband and carried it away with her.

Finally, it is insisted that the court erred in refusing to instruct the jury as follows: “Flight cannot be considered forceful resistance, and the fact that the defendant left in flight with her husband, standing alone, raises no presumption of her guilt, and it is insufficient to sustain a conviction.”

The court properly refused to give this instruction. The instruction is argumentative, and singled out a, single fact and gave it undue prominence to the jury. This the court is never required to do, because such action would have a tendency to confuse and mislead the jury as to the weight it should give to the evidence as a whole. Fisher v. State, 161 Ark. 586.

"We.find no prejudicial error in the record, and the judgment will therefore be affirmed.


text:
    Brock v. State.
    Opinion delivered May 31, 1926.
    1. Criminal law — corroboration of accomplice. — Testimony of an accomplice held sufficiently corroborated to sustain a conviction of larceny and burglary.
    2. Criminal law — sufficiency of proof of venue. — Evidence in a prosecution for larceny held to establish the venue.
    3. Criminal law — admission of accomplice. — Admission in evidence of the statement of an accomplice that accused, with himself and others, had stolen the cotton alleged to have been stolen, made after the cotton had been sold and the proceeds divided, held erroneous.
    4. Criminal law — admission of evidence — prejudice.—In a prosecution for larceny of cotton, the erroneous admission of the declaration of an accomplice that accused with himself and others stole the. cotton was. prejudicial where the jury might have considered it as corroborative of the accomplice’s testimony.
    5. Criminal law — general objection to instruction. — A general objection to an instruction given in two paragraphs, one of which properly declared the law, was insufficient.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.

      Walter A. Isgrig and Thos. C. Claiborne, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee. •
   Hart, J.

Pete Brock prosecutes' this appeal to reverse a judgment of conviction against him for the crime of grand larceny and burglary.

The first assignment of error is that the evidence is not legally sufficient to sustain the verdict.

McKinley Pitts, an accomplice of the defendant, was a witne'ss for the State. According to his testimony, Pete Brock, Lewis Stewart, Fred Stewart, and himself stole 900 pounds of seed-cotton and sold it for $27, and divided the proceeds of .the sale.

It is contended by counsel for the defendant that the testimony of Pitts is not sufficiently corroborated to warrant the jury in convicting the defendant. We do not agree with counsel in this contention. The State showed by other witnesses that the cotton was stolen from the Walt farm, and that the defendant was seen on the farm two days before the cotton was stolen. On the night the cotton was stolen, two automobiles came by the house of Alf 'Cunningham on the farm between -eleven and twelve o’clock, and he could tell from the tracks around the cotton-pen that two cars had been there. One of the cars had a peculiar track, which was followed and led to the defendant’s house. An examination of a car found in the defendant’s garage showed that it made the same peculiar track as that which had been followed from the cotton-pen from which the cotton was stolen to the defendant’s house.

It was shown by another witness, who lived about a mile from the Walt place, that, on the night the cotton Was stolen, the defendant, McKinley Pitts, and Stewart came to his house about nine or ten o ’clock at night, and stayed for an hour. The parties came in two cars, and did not give any reason for coming. McKinley Pitts was a stranger to those living in the house.

The testimony of these witnesses was sufficient to corroborate the testimony of McKinley Pitts and Lewis Stewart, who also testified that he assisted the defendant and McKinley Pitts in stealing 900 pounds of seed-cotton from the Walt place. Then, too, a cotton sack belonging to Alf Cunningham, one of the owners of the cotton, was found in the possession of McKinley Pitts the next day after the cotton was stolen. Brewer v. State, 137 Ark. 243, and Middleton v. State, 162 Ark. 530.

It was also shown by other witnesses-for the State that 900 pounds of seed-cotton belonging to Alf Cunningham and D. C. Walt was stolen from the farm of the latter on the night of December 10, 1925. The cotton was worth about $45.

It is also insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict, because the venue was not proved.

The evidence for the 'State shows that the cotton in question was stolen from the farm of D. C. Walt. It was grown by Alf.'Cunningham, who lived on the Walt farm, and who testified that he lived in Lonoke County. The distance! of the Walt farm from the city of North Little Bock, Pulaski County, Arkansas, was also shown, and from these facts the jury might have legally inferred that the cotton was stolen in Lonoke County, Arkansas.

It is earnestly insisted that the court erred in permitting J. W. Cox to testify that McKinley Pitts had told, him that he and the defendant and two other negroes had stolen the cotton in question from the Walt farm. This statement of McKinley Pitts to Cox was made after the stolen cotton had been sold and the proceeds divided between McKinley Pitts, the. Stewarts, and the defendants.

This statement of McKinley Pitts to Cox, under these circumstances, was merely a narrative of a past occurrence, and it is well settled that declarations made by one conspirator after the conspiracy has ended is not admissible against those who were not present when the admission was made. The undisputed evidence showed that the conspiracy to steal the cotton had ended by the consummation, of. the crime, and that the defendant was not present when McKinley Pitts told Cox what had taken place in connection with stealing the cotton. Gill v. State, 59 Ark. 422, and W. D. Stroud v. State, 167 Ark. 502.

The rule is that evidence improperly admitted must be treated as prejudicial unless there be something to show that it was not. Elder v. State, 69 Ark. 648, and Moon v. State, 161 Ark. 234. The jury might have considered the incompetent evidence of J. W. Cox as corroborative of the testimony of Pitts and Stewart.

Another assignment of error is that the court erred in giving instruction No. 4. This instruction need not be set out, for the reason that it contains two paragraphs, and counsel for the defendant admit that the instruction is not objectionable as to one paragraph, and that the court properly declared the law in that paragraph. This court lias held that, where an instruction given by the court consists of two or more paragraphs, one of which has properly declared the law, a general objection to the instruction is insufficient. Bruder v. State, 110 Ark. 402.

In this connection it may be stated that that portion of the instruction upon which a reversal is sought is covered by the principles of law declared in this opinion with reference to the testimony of the witness Cox as to the statement made to him by McKinley Pitts, an accomplice of the defendant.

We call attention to this phase of the case in order that the court may properly instruct the jury upon a retrial of the case, although we would not reverse the judgment for the alleged error in giving the instruction because only a general objection was made to it.

For the error in admitting the testimony of J. W. Cox, as stated in the opinion, the judgment must' be • reversed, and the cause will be remanded for a new trial.


author: Hart, J., McCulloch, C. J.,

text:
    Taylor v. Bay St. Francis Drainage District.
    Opinion delivered May 31, 1926.
    1. Appeal and error — void judgment. — An appeal from a void judgment will not be dismissed, but the judgment will be reversed, as otherwise it might seriously embarrass the person against whom it is rendered, though it can be of no benefit to the person who has secured it.
    2. Judgment — effect of void judgment. — In theory of law, a void judgment is no judgment, and can therefore have no effect.
    3. Drains — pendency of appeal. — The county court has no authority to make a second order establishing a drainage district while an appeal from the void original order was pending in the Supreme Court, though the proceeding was in rem, since the appeal was a continuation of the action, and not a new action.
    4. Appeal and error — effect of pendency of appeal. — After a cause has been removed from the county court to the circuit court by appeal, the circuit court has no jurisdiction to make an ‘ order in the proceeding until the cause is again sent down.

      5. Drains — void order — certiorari.—Certiorari lies to quash a second order of the county court establishing a drainage district, made while an appeal from a void original order attempting to establish the same district was pending, since the county court had no jurisdiction to make such order.
    6. Certiorari — practice on review. — On certiorari to review an order of the county court establishing a drainage district, made while an appeal from an earlier order was pending, the circuit court could do nothing but quash the judgment, and hence, on reversal of its order dismissing the petition, a remand is unnecessary.
    • Appeal from Craighead . Circuit Court, Joneshoro District; W. W. Bandy, Judge;•
    reversed.
    statement by the court.
    A. F. Taylor and other landowners have prosecuted an appeal from a judgment of the circuit court dismissing their complaint for a writ of certiorari to quash a judgment of the county court establishing Bay St. Francis Drainage District.
    On the 8th day of July, 1924, certain landowners in Craighead County filed a petition in the county court under the statute for the establishment of a drainage district embracing certain territory therein described. An engineer was appointed, as required by statute, to make a preliminary survey of the district, aiid he filed his report on July 16, 1924.
    On the 30th day of August, 1924, the report of the engineer was approved by the county court, and September 17, 1924, was fixed for the time of hearing the- petition for the establishment of the drainage district. The county clerk was directed to give notice fixing said day for the hearing and calling upon all landowners in the proposed district to show cause why said district should not be established. Notice was duly published by the clerk, and on September 17,1924, the court continued the proceedings until the 11th day of October, 1924.
    A. F. Taylor and other landowners in the proposed district appeared in the county court and filed objections to the establishment of the district. After hearing the evidence introduced, the county court made an order establishing the district. A. F. Taylor and others, who had become remonstrants to the petition, duly prayed an appeal to the circuit court, which was granted. The cause came on for hearing in the circuit court on March 25, 1925, which was an adjourned day of the circuit court.
    Upon a hearing anew in the circuit court, the action of the county court establishing the district was affirmed. A. F. Taylor and others filed a motion for a new trial, which was overruled by the circuit court. They then prayed and perfected an appeal to the Supreme Court. Bay St. Francis Drainage District and the commissioners thereof filed a motion in the Supreme Court to dismiss the appeal of A. F. Taylor and other landowners, and they filed a response to the motion to dismiss.
    On the 19th clay of October, 1925, the Supreme Court took under consideration the motion of the Bay St. Francis Drainage District to dismiss the appeal and the confession of error on the part of the drainage district which had been subsequently filed.
    The motion to dismiss the appeal was overruled, and the record cf the Supreme Court in the proceedings is as follows:
    “And this cause coming on now to be he'ard upon the transcript of the record of the circuit court of Craig-head County, Jonesboro District, and on the confession of error aforesaid, viz.: That the circuit court erred in not declaring the order creating the district void, on the ground that certain tracts of land described in the petition and engineers’ plans were omitted from the published notice.
    “It is therefore considered by the court that the judgment of said circuit court in this cause rendered be, and the same is hereby, for the error aforesaid, reversed, annulled and set aside, with costs, and that this cause be remanded to said circuit court with directions to set aside the order aforesaid, and to certify its judgment down to the county court.

      “It is further considered' that' said appellants recover of said appellee all their costs in this court in this cause expended, and have execution thereof.
    ‘ ‘ Ordered further that the clerk issue a mandate to the lower court in this cause forthwith. ’ ’
    On May 4, 1925, the engineer filed his report as prescribed in the statute relating to the creation of drainage districts, and on May 29, 1925, the drainage district was duly ordered established by the county court and commissioners were appointed to construct the proposed drainage ditch.
    On the 28th day of August, 1925, the commissioners filed an assessment of benefits of the real property within the boundaries of the district, and the county court made an order fixing October 22, 1925, a,s the day for hearing said assessment of benefits, and calling upon the landowners to show cause why said assessment of benefits should not be confirmed.
    On October 21, 1925, A. F. Taylor and other landowners in the 'district filed a complaint in the circuit court against the Bay 'St. Francis Drainage District and the commissioners thereof for a writ of certiorari to quash the judgment of the county court of May 29, 1925.
    On the 5th day of February, 1926, there was, a judgment of the circuit court dismissing the petition of A. F. Taylor and other property owners for a writ of certiorari to quash the judgment of the county court establishing Bay St. Francis Drainage District.
    The case is here on appeal.'

      Eugene Sloan and Qautney S Dudley, for appellant.

      Basil Baker and Chas. D. Frierson, for appellee.
   Hart, J.,

(after stating the facts). The original order, of the county court establishing the drainage district was made on the 11th day of October, 1924. A. F. Taylor and other landowners prosecuted an appeal from this order to the circuit court. The cause or proceeding was heard in the circuit court on the 25th day of. March, 1925, and' the judgment of the county • court establishing the district was affirmed. The landowners then prosecuted an appeal to the Supreme Court, and the commissioners of the drainage district made a motion to dismiss the appeal. It was then discovered that the original order of the county court establishing the district was void because of the misdescription of an 80-acre tract of land, which was wholly at variance with the description of the same tract in the notice required under the statute as a prerequisite to the establishment of the district. It was conceded that this rendered the order establishing the district void, and the Supreme Court reversed the judgment expressly on the ground that this tract of land was misdescribed in the notice, and it was therefore ordered that the judgment of the circuit court should be reversed and the cause remanded to the circuit court with directions to set aside its order and to certify its judgment-down to the county court.

During the pendency of the appeal in the Supreme Court, counsel for the drainage district treated the original order establishing the district as void, and obtained another order of the county court on May 29, 1925,- establishing the district. The provisions of the statute were in all respects complied with in obtaining this order, and the order is valid on its face, unless it can be said that it is void because rendered during the pendency of a former appeal in this court.

In Bailey v. Gibson, 29 Ark. 472, the court said that it is well settled that chancery causes will be reviewed on appeal, whether the court below had jurisdiction or not. In that case, and in Brumley v. State, 20 Ark. 77, it was said that no appeal will lie from a void judgment at law, and the proper remedy would be to dismiss the appeal. It will be observed, however, that on the first appeal in this case the court refused to dismiss the appeal, but reversed the judgment. It is now well settled that a void judgment or order is appealable. In Alexander v. Crollott, 199 U. S. 580, it was said that the fact that the judgment may have been void will not prevent its reversal upon appeal. In a case-note to 33 L. R. A. (N. S.) 733, it is said that the prevailing opinion, as attested by tlie collated cases, is clearly to the effect that the appellate court will so far take cognizance of the void entry as to reverse it and restore the parties to the position they originally occupied.

To the same effect see note to 20 Ann. Cas., p. 277, Hayne on New Trial and Appeal, vol. 2, pp. 950, 979, and 1069, and Elliott on Appellate Procedure, § 110. On this question Elliott says:

There is solid reason for this rule, inasmuch as it enables a party injured by such a judgment to remove it from the record without injury to the rights of adverse parties, for they can have no rights under a judgment which has no force. It is a sacrifice of substance to a barren technicality to hold, as some of the courts do, that no relief can be had against a void judgment.”

It is true that, in the theory of law, a void .judgment is no judgment at all and can therefore have no effect. In this view of the matter the landowners would have had a right to treat the original order of establishing the drainage ditch as a nullity; but if they did so it would have been at their peril. The better practice and a juster rule seems to be that the parties affected should have the right to have the matter judicially determined on appeal. Of course, in theory of law, a void judgment is harmless because it is a nullity; but,as a practical fact a void judgment, especially where it creates a lien on land, or is used as a basis for the creation of a lien on land, is not harmless. To illustrate: in a proceeding like this, the commissioners of the district, representing a majority of the landowners, were contending that the judgment was valid. As a practical matter, this fact and the fact that the judgment had been entered of record would serve to create a cloud on the title of the landowners. The judgment would have a tendency to affect a sale of the property, and, even if the landowners had assured prospective purchasers that the judgment was’ void, they might be reluctant to purchase the land at its full value. The fact that the commissioners were proceeding under the judgment as if it were valid would tend to create a cloud on the title of the lands. It has been well said that a judgment unreversed, thoug'h void upon its face, may seriously embarrass the person against whom it is in form rendered, though it can of course be of no benefit to the person who has secured it. Stewart v. Lohr, 1 Wash. 341, 25 Pac. 457, 22 Am. St. Rep. 150.

It is said that, as appellate courts have the power to clear their own records of objectionable entries, even though as standing thereon they are absolutely void, they have like power to set aside void entries in the inferior courts when the forms of reviewing such void entries to such appellate courts have been complied with.

This court has held that, where an appeal is granted and an authenticated copy of the record is filed in the appellate court, the court or action is thereby removed to the appellate court. Robinson v. Arkansas Loan & Trust Co., 72 Ark. 475, 81 S. W. 609.

In McKenzie v. Engelhard Co., 266 U. S. 131, it is said that an appeal is a proceeding in the original cause, and that the suit is pending until the appeal is disposed of.

In this view of the matter, the county court would have no right to make another order establishing the drainage district while the appeal from the original order creating the district was still pending on appeal. If the appeal is a proceeding in the original cause, until the appeal is disposed of the county court .would have no jurisdiction to make an order after the cause had been removed to another court by appeal. The better procedure, and the ordinary procedure in such cases, is that the suit should be treated as pending in the appellate court until, by appropriate orders, it is again sent down to the county court.

But it is insisted that a statutory proceeding for the establishment of a drainage district is a proceeding in rem, and that the ordinary rules of practice relative to adversary causes should not be applied.

A majority of the court fails to see any distinction in the matter. Our statute expressly provides that the landowners in a proposed drainage district may become parties to the proceeding and file a remonstrance to the petition asking for the establishment of the district. The statute also provides that the landowners may appeal, if their remonstrance is overruled and the drainage district is established. The statute also expressly provides that, where an appeal is taken to the circuit court, the original papers in the case shall be deposited there, together with a transcript of the record in the county court. Presumably these original papers would remain in the circuit court until the case was finally disposed of. The record in this case shows that the order attacked was made by the county court while the case was pending on appeal. If, under the express provisions of the statute, the proceeding may become an adversary one by the landowners filing a remonstrance to the petition seeking the establishment of the drainage district, and if they are allowed to appeal from an adverse judgment, it would seem that the better practice would be that the incidents and methods of procedure usual in cases where there are adversary parties should obtain. This course would prevent confusion and might prevent fraud. To illustrate: Take a case like the present one, where the .judgment is void. As we have already seen, it is now settled that an appeal from a void judgment will not be dismissed, but the judgment will be reversed. The landowners feeling-aggrieved and appealing from an order of the court establishing a drainage district are required to follow the case through the appellate court and take notice of the proceedings there. They should not be required, however, to watch the proceedings in the county court, to see if that court was taking jurisdiction of the case while it was pending on appeal to this court, or in the circuit court. Suppose the circuit court should be trying the appeal and using the original papers in some- stage of the trial; or suppose, for good reasons, upon appeal to this court we should permit one of the original papers to be sent here for our inspection, then suppose, while the papers were here or in the circuit court, the county court should undertake to exercise jurisdiction in the premises, this would bring about a conflict of jurisdiction as to which court would be entitled to the original papers. It is no answer to say that the presumption is that the county court would not undertake to act unless it could in some way get the original papers. The test of jurisdiction would not be what it would do, but what it could do. .

If, as we have already seen, the appeal is a continuation of the action and not a new action, it seems to a majority of us that the better practice is to hold that the county court had no jurisdiction to establish the drainage district during the pendency of an appeal from its original order establishing the district, even though the original judgment was void.

Moreover, it is claimed that the landowners should have appealed from the judgment of the county court of May 29,1925, instead of applying for a writ of certiorari to quash it.

In Browning v. Waldrip, 169 Ark. 261, it was held that certiorari lies to quash a judgment of the county court which was void because that court had no jurisdiction, even though such void judgment might have been vacated and set aside on appeal.

But it is insisted that the judgment of the county court of May 29, 1925, establishing the district, is valid on its face. The records of the county court show that an appeal had been granted from the original judgment of the county court establishing the district, and that the original cause was pending on appeal. "When an appeal is taken from an order of the county court establishing or refusing to establish a drainage district, the statute requires the original papers to be sent to the circuit court. If the appeal is a continuation of the original cause or proceeding, the case would remain in the appellate court until it had been sent back to the county court by some appropriate order in the regular course of procedure. To illustrate, when the judgment in the cause was reversed in this court, it was ordered that the cause be remanded to the. circuit court with directions to set aside its order and certify its .judgment down to the county court. When this was done, the county court would again acquire jurisdiction of the cause, and the certification of the circuit court would be notice to the county court, as well as all interested parties, that the cause had' been sent back to the county court for further proceedings in accordance with the statute. . Until this certification was made, the records of the county court would show that the cause was pending* on appeal, and consequently the county court has no- jurisdiction to make any order whatever while the cause or proceeding is pending on appeal.

The result of our views is that the judgment of the county court was void; and the landowner might have ignored it or he might have gotten rid of it by appeal. The reason is that it was in form a judgment entered upon the records of the -county court, which, although void, might through judicial process cast a cloud upon the title of the landowners in the district. All the circuit court could have done on certiorari was to have quashed the judgment of the county court and thereby have eliminated it from the record. Because the circuit court erred in not following this course, its judgment is reversed, and, inasmuch as no further proceedings in the matter can be taken in the circuit court, it is not necessary to remand the case.

The reversal of the judgment of the circuit court in effect declares the judgment of the county court to be void. This leaves the proceedings in the county court, and it may take such further steps as it deems to be advisable in the establishment of the drainage district which are according to law.

McCulloch, C. J.,

(dissenting). I would not ignore the settled rule that an appeal from a judgment, whether it be a valid or void judgment, removes the cause to the appellate court, but that removal is only for the purpose of a review; and the rule should be considered in harmony with another -well-settled one that a judgment void on its face is a complete nullity, neither binds nor bars any one, may be altogether disregarded, and no rights can be built up under it. Townsly-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181. It is conceded that the judgment originally appealed from was void— both the judgment of the county court and that of the circuit court. A learned text-writer, speaking of such a judgment, says: “It does not terminate or discontinue the action in which it is entered, nor merge the cause of action, and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which void judgment was entered or in some other action. * * * Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant.” 1 Freeman on Judgments, p. 644. In another text-book on the same subject it is said: “Now, a ‘void’ judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever, it has no effect as a lien upon his property, it does not raise an estoppel against him. As to the person in whose favor it professes to be, it places him in no better position than he occupied before; it gives him no new right, but an attempt to enforce it will place him in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. It is not necessary to take any steps to have it reversed, vacated, or set aside. But whenever it is brought up against the party, he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or 'collateral.” 1 Black on Judgments, § 170. The appeal by the defendant in a void judgment being merely to get rid of it as a menace to his rights, it does not hinder or postpone the right of the plaintiff to secure a valid judgment. Such is' the effect of the authorities cited above.

There was 'no error' in the initial proceeding in the county, court, but the error crept into the publication of the notice, and that rendered the judgment void. All proceedings thereafter, in either the county court or circuit court, were void, and the original petitioners had the right at any time to disregard the void proceedings and proceed from the point where the proceedings were regular. Now, the fact that the original petition had been carried to the circuit court on appeal and was lodged in the office of the clerk of that court constituted no obstacle in the way of the county court exercising its jurisdiction. The record of the county court on the last proceeding was regular and valid on its face, showing that the county court was in possession of all of the original papers when it rendered its last order creating the district: The proceedings in the county court were brought up to the circuit court on certiorari and not by appeal. We must assume, on this attack, that the county court acquired possession of the original papers so as to confer jurisdiction on it to proceed. I am therefore unable to discover any reason why the judgment of the county court is open to such attack, and my conclusion is that the circuit court was correct in refusing to entertain the petition for certiorari or to quash the judgment of the county court.

Mr. Justice Smith entertains the same views • as herein, expressed.