text:
    Milliner v. State.
    Opinion delivered September 25, 1922.
    Intoxicating liquors- — making mash for feeding cattle. — Where, under indictment for manufacturing alcoholic and intoxicating liquors, it was admitted that defendant had in his possession mash which contained alcohol but which he testified was intended only for feeding his stock, it was error to instruct the jury that if defendant made a liquor containing alcohol he would be guilty, as the defendant would not he guilty if the mash was intended solely for the purpose of feeding his stock.
    Appeal from Sebastian Circuit court, Fort Smith District; John Briszolara, Judge;
    reversed.
    7. S. Simmons, for appellant.

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

This is an appeal from a judgment of conviction upon an indictment which in good form charges that the appellant “unlawfully and feloniously did manufacture and unlawfully and feloniously was interested in the manufacture of ardent, vinous, malt, spirituous, fermented, alcoholic and intoxicating liquor.”

The testimony for the State tended to prove that on or about the 15th day of January, 1922, officers searched the residence of the appellant in Sebastian County, Arkansas, Fort Smith District, under the authority of a search warrant. They found in his house forty or fifty gallons of mash, took a sample therefrom, which was analyzed by the State chemist and found to contain 6.63 per cent, of alcohol by volume. One of the officers making the search testified that the appellant showed the witness the barrel containing the mash, and stated that he had made the chock to sell, but had sold none. He decided it was wrong to sell it and refused to sell any. Appellant raked off the top of the liquor with a cup and took a drink and asked the officers to sample it. The mash was well fermented and was ready for use. The officers had information that there was a still at the house of appellant, and they were looking for it. The liquor found was chock beer. Witness looked for something stronger than chock, but found nothing.

The appellant testified that he had a six months’ old colt that would not eat dry food. He fed the stuff found in his house to the stock — fixed up this mash for a sick colt and other young stock and fed.it to them once or twice a week — did not know it was wrong until the officers came with a search warrant to search for chock beer. He showed it to the officers. The preparation contained corn chops, sugar and water. Witness had on hand from war sugar some brown sugar which wa^s not fit for use. It had worms in it. He put it in the mixture to make sweet mash for the colts. He had fed it to them many times before. Witness did not drink any of it and did not tell the officers that he had done so.

This testimony was corroborated by other witnesses. One of these witnesses testified “that that stuff smelled like corn bread with water over it”; that it was too thick to drink — had to dip it with a cup and it looked more like hominy. After the appellant was arrested the stuff was picked up and fed to the stock.

The court instructed the jury in part as follows:

“1. (a) If you find from the evidence beyond a reasonable doubt that the defendant, J. H. Milliner, in the Fort' Smith District of Sebastian County, Arkansas, within three years next before finding of the indictment in this case, unlawfully and feloniously did manufacture or unlawfully and feloniously was interested in the manufacture of ardent, vinous, malt, spirituous, fermented, alcoholic or intoxicating liquor, it is your duty to find the defendant guilty.” And further,
“4. (a) If you find from the evidence beyond a reasonable doubt that the defendant made a liquor from chops, sugar and water, which contained alcohol, you will find the defendant guilty.”

The appellant asked the court to instruct the jury as follows:

“1. You are instructed that if you find from the evidence in this case that the mash which the officers testified about in this case was made by defendant and was being used by him to feed his sick colt and was not being made and used by him as a beverage, then your verdict should be for the defendant.” •

The appellant was indicted and convicted of the crime of manufacturing alcoholic liquors contrary to the provisions of sections 6160 of Crawford & Moses’ Digest. -There was testimony on behalf of the State sufficient to sustain the verdict, and the court correctly declared the law applicable to the evidence adduced by the State in the above instruction “1 (a).” But the testimony adduced on behalf of the appellant tended to prove that the preparation or concoction which he manufactured was a mash, and although containing alcohol, was not manufactured by him to be used as a beverage, but only for the purpose of feeding his stock, and that same had not been sold by him, nor had he used same, or intended to use same as a beverage; but, on the contrary, that the preparation .was manufactured and was being used by him solely for the purpose o£ feeding his stock. Therefore, the court erred in giving to the jury instruction 4-A. Such instruction, under the testimony, was calculated to confuse and mislead the jury.

Section 1 of act No. 324 of the Acts of 1921 (General Acts of 1921, p. 372) reads as follows: “Sec. 1. No mash, wort or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.”

Construing the above section, in Logan v. State, 150 Ark. 486-490, we said: “But the words, 'fit for’, must, of course be interpreted and defined as meaning 'intended for’ the uses there prohibited, and not as meaning merely adapted to or capable of being- used for such purposes.” And'further (p. 491): “***** the conclusion is reached that the legislative inhibition is against the making of a mash, wort or wash intended as preliminary processes in making distilled, alcoholic and fermented beverages. To give the statute the broad interpretation which would convert into a felony the making of a mash, wort or wash out of which a distilled, alcoholic or fermented liquor might be made, although such was not the purpose for which it had been made, would make the constitutionality of the act very doubtful.” See also Burns v. State, ante p. 215; Neal v. State, ante p. 324.

If the appellant, as the evidence introduced in his behalf tended to prove, manufactured a mash intended solely for the purpose of feeding his stock and not to be used in making “distilled, alcoholic and fermented beverages,” then appellant would not be guilty of the crime charged agaist him in the indictment, and therefore, the instruction No. 4-A of the court, under the authority of Logan v. State, supra, was erroneous and prejudicial.

For the error in giving such instruction the judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Martin v. Allen.
    Opinion delivered July 10, 1922.
    1. Landlord and tenant — contract construed — lien.—Where a purchaser took possession of land under a verbal contract made in December, 1919, and afterward contracted in writing on June 22, 1920, (embodying the terms of the oral contract) that a failure to pay any installment of the purchase price should avoid the contract of sale and cause the relation of landlord and tenant should arise and relate back to January 1st of the year in which such default occurred, and a default occurred in 1920, the relation of landlord and tenant arose and related back to January 1st, and gave the landlord a lien on the tenant’s crop raised on the premises superior to a mortgage on the crop executed by one to whom the tenant rented the premises.
    2. Appeal and error — record should show excluded testimony.— A cause will not be reversed for error in sustaining objection to a question addressed to a witness where appellant does not show in the record what the excluded testimony would have been.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge’;
    affirmed.

      P. G. Grumpier, John E. Harris and Joe Joiner, for appellants.
    The relation of vendor and vendee and of landlord and tenant cannot exist at the same time. 92 Ark. 326. There was nothing to put the appellant on inquiry as to any relationship of landlord and tenant between Allen and Martin. Allen’s contract, by which the relation of landlord and tenant was created on October 1, 1920, to date back to January 1st, was probably good as between the parties to the contract, but it did not affect the rights of Crumpler & Bustion, who had acted in good faith, and whose lien attached on February 13th, while Allen was holding Martin out to the world as his vendee. 60 Ark. 360; 31 Id. 131.
    There was an actual delivery of part of the cotton in suit to Crumpler & Bustion, to be applied on account, before they knew of appellee’s claim. 83 Ark. 118; 103 Ark. 95; 9 A. L. R. 326 and authorities cited; 71 Fla. 536; 150 Ky. 508, 150 S. W. 651; 66 Iowa 731, 24 N. W. 530; 81 Tex. 17; 16 S. W. 555.

      Wade Kitchens, for appellee.
    The agreement to sell was upon the express condition of payment of the purchase money at the time stated in the contract. Upon failure to perform that condition, the relation of landlord and tenant existed between the parties, which related back to the time of execution of the contract. 95 Ark. 34, 37; 48 Ark. 415.
    Crumpfeu’ & Bustion took the mortgage without investigation as to who owned the land. It was their duty, at their own peril, to know who was the owner and the landlord. The landlord’s lien is superior to that of a mortgage. 37 Ark. 403; 31 Ark. 557. They are chargeable with constructive notice of the tenancy. However they had actual notice. 69 Ark. 306. Appellee is entitled to recover his rent in accordance with the contract with Martin, without regard to any contract between the latter and the subtenant for rent. 103 Ark. 94.
    Appellants did not buy the cotton from the subtenant. They did not claim, either in their answer or in their testimony, to be innocent purchasers. The fact is they were holding same for the subtenant for the purpose of selling later and applying the proceeds to the payment of the mortgage debt. The landlord’s lien became a charge upon the crop raised on the land as soon as it came into existence. 95 Ark. 37; 25 Id. 417; 27 Id. 1.
   Smith, J.

Appellee brought suit in a justice of the peace court to recover the value of 3,000 pounds of seed cotton as rent, and caused two bales of cotton to be attached in the hands of Bustion & Crumpler.

The testimony shows that in December, 1919, or January, 1920, appellee contracted to sell one Jim Martin a forty-acre tract of land. Martin was put in possession under this contract, and built a house and made other improvements. On June 22, 1920, appellee and Martin entered intq a written contract concerning the sale of the land, which was signed by both parties. This contract contained the following provisions, among others:

“But in case the said second party shall fail to make the payments aforesaid, or any of them, punctually and upon the strict terms and at the times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, then this contract shall, from the date of such failure, be null and void, and all rights and interests hereby created, or then existing, in favor of the said second party, his heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted shall revert to and revest in the said first party, his successors or assigns (without any declaration of forfeiture or act of reentry, or without any other act of said first party to be performed, and without any right in the said second party of reclamation or compensation for moneys paid or improvements made), as absolutely, fully and perfectly as if this contract had never been made.
“And it is hereby further covenanted and agreed by and between the parties hereto, that, immediately upon the failure to pay any of the notes described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties hereto, for one year from January 1st immediately preceding the date of default, and the said party of the second part shall pay rent at the rate of 3,000 pounds of seed cotton for occupying the premises from said January 1st to the time of default, such rent to be due and collectable immediately upon such default. ’ ’

The language quoted appears to be substantially identical with that construed in the case of Murphy v. Myar, 95 Ark. 32, where this court held that, upon default being made in the payment of the consideration contracted for, the vendee became the tenant of the vendor and the tenancy related back to the date of the contract.

Default was made by Martin in the 1920 payment called for by his contract, whereupon the vendor, as landlord, sued for the rent there agreed upon and attached two bales of cotton grown upon the land that year.

It is insisted that the doctrine of the case' of Murphy v. Myar, supra, does not apply here for the reason that the written contract from which we have quoted was dated June 22, 1920, whereas prior to that time Martin had entered upon the land, and had rented it to Alice Wilburn for one-third of the cotton and one-fourth of the corn to be grown thereon, and thereafter, to-wit: on February 3,1920, Alice Wilburn executed a mortgage to Bustion & Crumpler on the crop to be grown by her in the year 1920 on said land, to secure the advances necessary to make said crop, pursuant to which contract advances were made by the mortgagees in the sum of $278.

Martin was called as a witness for himself and his codefendants, and testified that he bought the land in January and entered into possession under an oral agreement of purchase. He was asked: “Were the details of this contract contained in this agreement?” An objection to that question was sustained. The witness then testified that the contract was signed later, and that he was present when Alice Wilburn executed the mortgage on the crop, and he stated to the mortgagees at the time that he was to claim as rent only one-third of the corn and one-fourth of the cotton. The mortgagees tendered the value of one-third of the corn and one-fourth of the cotton; but the tender was refused. They testified that they had no knowledge of the terms of the contract between Martin and appellee, and supposed Martin was in possession of the land as owner.

For the reversal of the judgment it is insisted that the relationship of landlord and tenant did not exist between appellee and Martin at the time the mortgage was executed, and that if that relationship existed it was created by the written contract of June 22, 1920, and the relationship of landlord and tenant related back only to that date, and that prior thereto the mortgage was given and recorded and the mortgage lien therefore became the superior lien.

This argument fails, however, to take account of the fact that June 22, 1920, is not the date of the contract under which Martin entered upon the land. The contract was not reduced to writing until that time, but it was made in January and before Martin entered upon the land. There is no showing that the written contract did not embody the terms of the oral agreement. Such testimony as there is on the subject is to the effect that the written contract embodied the terms of the oral agreement.

It would, of course, have been competent to have shown that the provisions set out above were not a part of the original contract, if such was the case; and, had that proof been made, the lien of the mortgage would have been superior to that of appellee as landlord, because it would first have been created. But, as has been said, there was no offer to make this showing. We do not know what Martin would have testified. This court does not reverse where an objection is sustained to a question unless it is shown what the answer of the witness would have been. Martin might have testified that the oral agreement did not contain the stipulation set out above, converting the contract into a lease upon failure to pay the purchase money; but we cannot assume that he would have done so in the absence of an offer to show what his testimony would have been had he been permitted to testify. Battle v. Guttrey, 137 Ark. 228.

The decision of the question stated is conclusive of the other questions raised on the appeal, and, as no error appears, the judgment is affirmed.


author: Humphreys, J.

text:
    Oastler v. Parks.
    Opinion delivered July 10, 1922.
    1. Husband and wife — mortgage—indebtedness secured. — Where the undisputed evidence showed that certain notes of mortgagor’s husband represented the indebtedness intended to be secured by her trust deed, although such notes did not correspond in date with the notes described' in such deed, the contention that the indebtedness was not sufficiently identified because appellant did not execute her individual notes to cover same will not be sustained.
    2. Deeds — delivery.—Where a wife signed and executed a trust deed to be delivered to grantee to secure him for paying her husband’s indebtedness, and it was delivered to grantee by her husband, she is estopped to deny delivery.
    3. Mortgages — consideration.—Where a grantee, in consideration of the execution and delivery to him of a trust deed, paid a $750 debt owed by grantor’s husband, there was a sufficient consideration for the execution of the deed.
    Appeal from Clark Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Callaway & Callaway, for appellant.
    The notes intended to be secured by the deed of trust were not the notes' of B. R. Oastler. To entitle a party to reform a written instrument upon the ground of mistake it is essential that the mistake be mutual and common to both parties. 102 Ark. 334; 89 Ark. 309; 71 Ark. 614. There was no delivery of the deed; it cannot take effect without delivery. 77 Ark. 89; 113 Ark. 289. There was no consideration for the deed of trust. 34 Ark. 1; 35 Ark. 480; 45 Ark. 117; 70 Ark. 516; 107 Ark. 10. A mortgage (of the wife’s property) given for a preexisting debt of the husband without a new consideration is unenforceable. 21 Cyc. 1486. A promise to perform an existing contract with a third person or the performance of it, does not constitute a valuable consideration. 13 C. J. . 356. Where the consideration named in a deed is not the true consideration, and was inserted through fraud or mistake, such fact may be shown to defeat the conveyance. 125 Ark. 441. The deed of trust was void for uncertainty. 30 Ark. 657; 35 Ark. 470; 30 Ark. 640. This being a voluntary conveyance the plaintiff had no right to have it reformed; a court of equity will not reform a voluntary conveyance. 80 Ark. 548; 15 Ark. 519; Howard v. Howard, 152 Ark. 387.
   Humphreys, J.

Appellee instituted suit against appellant in the Clark County Chancery Court to foreclose a deed of trust against the south half of the southwest quarter of section 1, township 7 south, range 18 west, in said county, given to secure two notes in the sum of $370 each, bearing interest at the rate of 8% per annum from date until paid, the first note due January 1,1918, and the second January 1,1919. The notes and deed of trust were made exhibits to the bill. The notes were described in the deed of trust as of even date with it. The notes were dated on June 9, 1917, and signed by B. R. Oastler, the husband of appellant. • The deed of trust was executed by appellee on the 17th day of July; 1917,' and described the 80-acre tract of land as the south half of the southwest quarter, section 1, township 7, ■ range 18. It was alleged in the bill that the notes signed by B. R. Oastler in the sum of $270 each, due respectively on January 1, 1918, and January 1, 1.919, were the notes intended to be secured by said deed of trust; and that the land intended-to be mortgaged was the south half of the southwest quarter of section 1, township 7 south, range 18 west, in •Clark County, Arkansas.

Appellant filed a separate answer admitting the execution of- the deed of trust but denying its validity on the alleged grounds that it was not delivered; that the land was insufficiently described; that the notes alleged to have been secured represented the antecedent debt of her husband; that neither she nor her husband received any present consideration for the deed of trust, in the nature of money or extension of time for the payment of her husband’s debt, or in any other way. It was also denied in the answer that the alleged notes were intended to be secured by the deed of trust.

The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a reformation of the deed of trust to conform to the allegations of the bill and a foreclosure of the lien upon the land to pay the notes executed by appellant’s husband on June 9, 1917.

From that decree an appeal has been duly prosecuted to this court.

The record reflects that appellee and B. ft. Oastler, appellant’s husband, were partners, and while conducting the partnership business became indebted to the Elk Horn Bank & Trust Co. in the sum of $1,480; that Oastler could not pay his part of the debt and agreed to execute his notes for one-half the amount to appellee and secure same by a deed of trust on said 80 acres of land if appellee would pay his portion of the indebtedness to the bank; that, pursuant to the agreement, B. It. Oastler executed two notes to him on June 9, 1917, in the sum of $370 each, bearing interest .at the rate of 8% per annum from date until paid, due respectively on January 1, 1918, and January 1, 1919; that on the 7th of July, 1917, he delivered the deed of trust executed by appellant to him to secure said notes; that upon the delivery of the trust deed to appellee he paid the partnership debt to the bank; that the two notes represented the only debt B. R. Oastler owed appellee; that the only piece of land owned by appellant at the time she executed the deed of trust was the south half of the southwest quarter of section 1, township 7 south, range 18 west; and that appellant knew of the partnership indebtedness, and that appellee was willing to pay the same and give her husband time to pay his part thereof, if he was given a deed of trust on the land in question, to secure him. Appellant testified that her purpose and intent was to execute her individual notes to cover the indebtedness and secure them by the deed of trust, but that after she executed the deed of trust, she changed her mind and did not execute the notes, or deliver the deed of trust to appellee.

Appellant’s first contention for reversal is, that the notes intended to be secured by the deed of trust were not the notes of B. R. Oastler. It is true the B. R. Oastler notes do not correspond in date with the notes described in the deed of trust, but the undisputed evidence shows they represent the indebtedness intended to be secured. They were given in. evidence of a payment to be made by appéllee to said bank, which appellant’s husband owed it, when the deed of trust should be delivered to him. To hold that the indebtedness was not sufficiently identified because appellant did not execute her individual notes to cover same would be giving more regard to form than substance.

Appellant’s next contention for reversal is that there was no delivery of the deed of trust. The trust deed was signed and acknowledged by appellant for the purpose of delivering it to appellee to secure him for paying her husband’s indebtedness to the bank. It was delivered to appellee by her husband, and recorded. Appellee accepted the security, and in good faith paid the indebtedness to the bank. She put it in the power of her husband to deliver the deed, as her agent, and cannot be heard to say that he delivered it without authority. She contents herself with swearing that she did not deliver the deed to appellee. She does not volunteer an explanation as to how it got into the possession of her husband. The only reasonable inference is that she gave it to him to use for the purposes for which it was executed. She is clearly estopped to deny the delivery thereof.

Appellant’s last contention for reversal is that there was no consideration for the deed of trust. It is argued that, if given as a security, it was given to secure an antecedent debt of her husband, and was therefore without a present consideration, and void. This contention is not supported by the fact. The undisputed fact is that, upon the delivery of the deed of trust, and, in reliance thereon, appellee parted with $740 in cash in order that appellant’s husband might liquidate his indebtedness to the bank. This was a present consideration. The consideration being sufficient, it was proper to reform the instrument to conform to the intent of the grantor and decree a foreclosure upon it as reformed.

The decree is therefore affirmed.


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

text:
    Hughes v. State.
    Opinion delivered July 10, 1922.
    1. Indictment and information — failure to lay venue. — An indictment, containing no statement of the venue except by a reference to the county and State in the caption, will be considered, under Crawford & Moses’ Dig. § 3020, as charging that the offense was committed in the local limits of the court in which the grand jury was impaneled.
    2. Indictment and information — negativing presence of accessory. — It is not necessary to the validity of an indictment against an accessory before the fact to a crime to negative the presence of such accessory at the perpetration of the crime.
    3. Homicide — corroboration of accomplice. — Evidence of principal .convicted of murder in the first degree held sufficiently corroborated to sustain conviction of accused as accessory before the fact.
    4. Criminal law — confession—instruction.—Where a confession was admitted in evidence against accused, and there was a conflict as to whether it was voluntarily made, its admission was proper in connection with the court’s charge to consider whether defendant was subjected to undue influence or coercion, etc.
    5. Criminal law — improper argument. — It was the duty of the court in its sound discretion to challenge improper remarks with such comment as the exigencies of the occasion demand.
    6. Criminal law — improper argument of prosecuting attorney. —In a prosecution for murder, it was prejudicial error for the prosecuting attorney to state to the jury: “I know he is guilty. * * *. I have examined the testimony and know so much about it, I know things that never get to anybody else.”

      Appeal from Montgomery Circuit Court; iScott Wood, Judge;
    reversed.

      Witt S Witt, Richard M. Ryan and J. Wythe Walker, for appellant.
    J. $. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and oonvieted in the Montgomery County Circuit Court for the crime of being an accessory before the fact to murder in the first degree, and punished by imprisonment in the State Penitentiary for his natural life. From the judgment of conviction an appeal has been duly prosecuted to this court.

Appellant contends that no crime was charged in the indictment because it does not allege that Anna McKennon was murdered in the State of Arkansas and the county of Montgomery; and because it does not negative the presence of appellant at the time and place of the killing. Omitting the signature of the prosecuting attorney, and the indorsements, the indictment is as follows:

“Montgomery Circuit Court, State of Arkansas against H. M. Hughes. The grand jury of Montgomery County, in the name and by the authority of the State of Arkansas, accuse H. M. Hughes of the crime of accessory before the fact to murder in the first degree, committed as follows, to-wit: The said H. M. Hughes in the county and State aforesaid, on the............day of May, A. D. 1921, that one Raymond Cole unlawfully wilfully, feloniously, with malice aforethought, deliberation and premeditation, did kill and murder one Anna McKennon by then and there shooting her with a gun and then and there loaded with gunpowder and bullets, then and there had and held in the hands of him the said Raymond Cole; and that said H. M. Hughes on the..................day of May A. D. 1921, before the said murder was committed as aforesaid, unlawfully, wilfully, and feloniously, with malice aforethought, premeditation and deliberation, did advise and encourage, aid, abet and assist the said Raymond Cole to do and commit the murder in the manner and form aforesaid, against the peace and dignity of the State of Arkansas.”

(1) In the body of the indictment reference is made to the county and State aforesaid, meaning Montgomery County and the State of Arkansas mentioned in the caption as well as the first part of the indictment. The last part of the indictment also charges that the offense was committed against the peace and dignity of the State of Arkansas. Reading the whole indictment together it is perhaps sufficient, though inaptly worded, to lay the venue in Montgomery County, Arkansas. We, however, uphold the indictment on the more substantial ground that its imperfections in this respect are cured by section 3020 of 'Crawford & Moses ’ Digest, which is as follows:

“If the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was commited in the local limits of the jurisdiction of the court in which the grand jury was impaneled.”

(2) It is not necessary to the validity of an indictment against an accessory before the fact to a crime to negative the presence of the accused at the perpetration of the crime. This court said in the case of Larimore v. State, 84 Ark. 606: “Where the accused is indicted as accessory before the fact, it is unnecessary for the indictment to negative his presence at the perpetration of the crime. Presence at the perpetration of the crime maths the distinction, under our law, between principals and accessories before the fact, and it .is sufficient in an indictment against an accessory to allege that he advised and encouraged the perpetration of the crime,-without specifically alleging that he was not present.”

Appellant next contends that the evidence is insufficient to support the verdict and judgment. The record reflects that Raymond Cole, charged as principal in the crime, was convicted of murder in the first degree. He testified that appellant induced him to kill Mrs. Anno McKennon, at a timo when he was intoxicated, by promising to pay him $850 as soon as he accomplished the act and returned to the home of Mrs. Noland, where appellant resided; that appellant furnished him a 44 Winchester, already loaded, with which to commit the deed; that he went to the home of the old lady, who resided alone, and, while she was standing in the front door, fired upon and killed her; that he took her pony which was hitched near the house and returned to the Noland home to leave the gun and get his money; that he set the gun on the back porch, but, being unable to find appellant, left for his mother’s home, and a short time thereafter left the community. This witness was an accomplice, and under the rule, in order to convict appellant, it was necessary that the testimony of the accomplice be corroborated. The record reveals a number of facts and circumstances tending to corroborate the testimony of this witness.

After a very careful reading and analysis of the evidence, we think it sufficient to sustain the judgment and verdict.

Appellant next contends that the court committed reversible error in admitting a statement or confession made by him while under arrest in. Garland County. After appellant’s arrest by Montgoméry County officers he made his escape and was captured by Garland County officers. While incarcerated in jail there, he was urged by the officers to make a confession, and there is some evidence tending to show that undue pressure was used in an attempt to elicit information concerning the. murder. He refused, however, to yield and make any statement at the time. Later he made a statement in the chambers of the., circuit judge, in the presence of the judge, prosecuting attorney, sheriff, and perhaps others. This statement was in conflict, in part, with appellant’s testimony on the trial. The witnesses present, except appellant, when the statement was made, testified that it was voluntarily made and that no undue influence was used to elicit it. Appellant testified that he made the statement under duress. There being a conflict in the evidence as to whether the statement was voluntarily made, the trial court admitted it, over the objection and exception of appellant, under the following injunction, which was the court’s 7th instruction:

“If the defendant or any of the witnesses have at other times made statements which contradict or do not agree with the testimony given in this trial, you should, in weighing and considering the effect of such contradictory statements on the testimony in this case, carefully consider all of the circumstances under which such contradictory statements were made and whether or not such witnesses were subjected to any undue influence, coercion or intimidation, or were laboring under the influence of dread or fear, and also the physical and mental condition of the witnesses at the time such contradictory statements were made, if such statements were made.” We think, under the principle announced in the case of Henry v. State, 151 Ark. 620, it was proper to admit the statement, with the restrictions contained in the court’s 7th instruction. In the case referred to the court said: “The testimony was sufficient to justify the court in submitting it to the jury, but appellant, as before stated, had a right to have the jury consider the question whether or not it was a confession voluntarily made.’'

Lastly, appellant contends that his rights were prejudiced by the following statements of the prosecuting attorney made in closing the argument, to-wit: “I know he is guilty, I am willing to meet my God in the next hour knowing that Hughes is guilty, because I am thoroughly convinced. I have examined the testimony and know so much about it, and know things that never get to anybody else.” When this statement was made, the counsel for appellant objected, and the court stated that the argument of the prosecuting attorney was improper and the jury should not consider it. The statement was an attempt on the part of the prosecuting attorney to testify. He, in effect, said that he was in possession of faets which could not be revealed to the jury, but which rive't’ed conviction upon appellant. Coming from a sworn official, the remark was calculated to make a deep impression upon the minds of the jurymen. It cannot, perhaps, be classed with remarks the effect of which cannot be removed even by a solemn admonition of the court, but it was certainly a flagrant violation of the right of appellant to a fair and impartial trial vouchsafed to him by the Constitution and laws of the State of Arkansas. Considering the highly prejudicial character of the remark, its effect could not be removed by a mild admonition of the court. We think the trial court, in the exercise of a sound discretion, should .have challenged the statement, with such comment as the exigencies of the occasion demanded. He might have said that it was the sworn duty of the prosecuting attorney to reveal all the facts within his knowledge, and his failure to do so would have been proof conclusive that he had no such information; or he could have stopped the trial and required the attorney to establish the facts in his "possession by competent testimony. Either course would have erased-the ill effects of the remark from the minds of the jury, but, in the opinion of the majority, the mild admonition of the court, as indicated by the language used, did not meet the exigencies of the particular situation.

For the error indicated, the judgment is reversed and the cause is remanded for a new trial.

McCulloch, C. J., dissents.

Wood, Hart, and Smith, JJ., concur.

Mr. Justice Wood holds that the remarks of the prosecuting attorney were so flagrant that their prejudicial effect could not be removed at all, and that the only way to cure the error was to grant a new trial.

CONCURRING OPINION.

Hart, J.

It is conceded by the Attorney General that the result of the questioning of the defendant by the deputy prosecuting attorney and the sheriff in thfe chambers' and in-the presence of the circuit judge elicited testimony which was damaging to the defendant and contrary to some of the testimony given by him at the trial.

Judge Smith and myself think the admissibility of the confession in evidence was, under the circumstances, necessarily prejudicial to the rights of the defendant. Although we have found no case precisely in point, we believe that the court should not have admitted the confession in evidence at the trial.

W. R. Downing, the sheriff of Garland County, testified that he had an interview with the defendant, Hughes, in the chambers of the circuit judge in the Garland County courthouse on Sunday morning after the arrest of the defendant; that Judge Wood was present and the defendant, Hughes, made certain statements regarding the ease and made them of his own volition.

On cross examination the sheriff stated that this was on Sunday morning after the Saturday night before when they had the defendant in the sheriff’s office and questioned him there. Downing further stated that when he first arrested the defendant the latter stated that he did not have anything to say; but could wait until he saw his attorney before making any statement.

On the Sunday morning in question, Bumpass, the deputy prosecuting attorney, had the defendant brought up to the judge’s chambers.in the courthouse so that he could talk to him. The defendant at the time was a prisoner in jail.

According to the testimony of Downing he- had previously told the defendant that if he was not guilty he ought to tell them what he knew about it, and that if he was guilty, not to say anything.

According to the testimony of the defendant, he refused to make a statement' when first arrested and carried to the jail, saying that he wished to see Mr. Walker of Fayetteville, whom he had sent for to be his attorney. The sheriff called him a damned old crook, a murderer, and a liar. He also threatened to turn him over to a mob in. Montgomery County. Tbe prosecuting attorney questioned tbe defendant in an inquisitorial manner and at times would curse and abuse him.

Burt Hall, who was present at the time Hughes declined to make a statement, said that Hughes said that he preferred to talk to his attorney first, and testified that the sheriff did not call Hughes a damned old liar and a crook. The sheriff did tell Hughes, however, that if he was not guilty himself he knew who was guilty and asked him why he did not tell it.

A little later the sheriff said that if the old man was not going to tell the story, he might just as well call up the Montgomery County men and let them come and get him. Sometime later the old man commenced to talk to them about the case. The sheriff said to him: “If you are a minister and a Christian and you are not guilty, you ought to tell us something about as who is the guilty party.” The question of a mob was discussed in the presence of the defendant, but the witness said that he didn’t recollect that the sheriff or any body else threatened the defendant with a mob. It was also shown that the defendant was very nervous and excited and was weak, tired and hungry at the time he was questioned on Saturday night.

The defendant was a witness for himself at the trial. According to his testimony given at that time, the prosecuting attorney abused him very much, and when they took him out of jail he appealed to a man named Floyd not to let them take him to be questioned. Floyd answered him that the prosecuting attorney had a right to take him to the courthouse to question him.

We think the evidence of the sheriff and of Hall shows that the alleged confession of the defendant was secured by the indirect threats of those having authority over the defendant when he was arrested. The evidence for the State shows that the defendant was sixty-four years old and was tired, hungry and weak when arrested. When they questioned him on Saturday night he was nervous and excited. Something was said about a mob in Montgomery County. The sheriff told him that it was his duty to speak.

The sheriff threatened to send the defendant back to Montgomery County if he did not speak. He said that if he did not have anything to do with the killing it was his duty to speak, but that if he was guilty he need not speak. This did not amount to a warning. On the other hand it was perhaps the most effective way the sheriff could have adopted to obtain a statement from the defendant.

It is true that we have held that a statement obtained by questioning the defendant and the fact that he was not cautioned that the statement might be used against him does not render it inadmissible. But it must also be remembered that in this connection we have said that it is always better for the officer to give such warning in order to avoid suspicion of improper inducement. Greenwood v. State, 107 Ark. 568, and Dewein v. State, 114 Ark. 472.

. It must be borne in mind that the questioning of the defendant was not for the purpose of satisfying the officers whether the accused was guilty or not; but he was subjected to the ordeal with the deliberate purpose of securing a statement to be used as evidence against him in the trial. It was doubtless done in good faith, but under the circumstances it was a case where their zeal clearly outran their duty.

It does not appear from the record that the circuit judge took any part in questioning the defendant in his office or that he knew of the inquisition by the prosecuting attorney the night before. This does not make any difference, however. Under the circumstances the prisoner should have been warned that he need not speak.

In Blalock v. State, 31 So. (Miss.) 105, Judge Whit- . field said, that the scale of courage varies from Murat to Aguecheek and that a reasonable apprehension of fear is one that a man of average courage would entertain.

Viewed from the standpoint of the defendant, even under the testimony for the State, it is evident that he was overawed by the officers and that the powers of his mind were overcome by their persistent questioning of him and their unconcealed belief in his guilt.

His attorney was several hundred miles away and yet they persistently urged him to speak, although he protested that he first wanted to talk with his attorney. No person can be compelled to testify against himself in a criminal case, and a proper appreciation of the rights of the accused forbids the methods resorted to in this case to obtain testimony which was intended to be used against him at his trial. It was obtained by intimidation within the meaning of the law and could not be used against the defendant.

McCulloch, C. J.,

(dissenting). The remark of the prosecuting attorney was undoubtedly improper, but I am unwilling to declare that the trial judge failed to adequately withdraw the remark from consideration by the jury so as to remove its prejudicial effect. The court, on objection being made by appellant’s counsel, stated that the remark was improper and that the jury should not consider it. The inference from the objectionable remark was that there was other testimony which, if disclosed, would be damaging to appellant, but I cannot see any sound reason why the effect of such remark should be deemed so damaging and ineradicable that the admonition of the trial court was ineffectual to remove it from the consideration of the jury. It seems to me, on the contrary, that the intimation of the attorney that he was in possession of other undisclosed facts was so unreasonable that men of ordinary intelligence would not accept it as true. Such men on the jury must have treated it as a mere exaggeration on the part of the attorney, born of his overzealousness, and the statement was calculated, I think, to weaken the State’s case in the minds of such men. Be that as it may, however, the court admonished the jury not to consider the statement. Why wasn’t that sufficient? The majority say that the court should have been more emphatic, in the admonition — should have stopped the trial and required the prosecuting attorney to prove what he had stated, or should have told the jury that the prosecuting attorney did not have any further proof.

The record does not, of course, reflect the court’s manner or tone of voice, but we should assume that they were in keeping with the importance of the incident, and that the court, in the exercise of discretion, did all that was deemed necessary to remove the prejudicial effect of the improper remark. Counsel for appellant did not ask for any further action by the court, and, so far as the record discloses, were satisfied with what the court did. St. L. I. M. & S. R. Co. v. Drumright, 112 Ark. 452. We should, at least, respect the trial court’s exercise of discretion in this regard, unless there has been a clear abuse of that discretion, and I fail to discover any abuse, in this instance.

The following language of this court, used under similar circumstances, is appropriate: “The court might have been a little more emphatic in instructing the jury on the subject, but we do not think we can safely circumscribe trial judges to such minuteness of expression as asked in this controversy. They are present conducting the trial, and it is only in case of manifest abuse of discretion that they should be interfered- with; The same may be said, but with still more emphasis, as to the court’s refusal to reprimand the prosecuting attorney: The persistency in disobedience of the rules of the. court, and contumaciousness in unbecoming conduct generally, which alone would call forth a reprimand of a public officer representing the State, are matters to be dealt with cautiously, for fear that the remedy may prove worse than the disease. Each judge ought to and does have a sound discretion when and where to employ this method of -discretion, and this discretion ought not to-be controlled by appellate courts except in extreme cases and where the Control is-clearly right and proper.” In K. C. S. R. Co. v. Murphy, 74 Ark. 256, we said: “As a general rule an objection by the opposing counsel, promptly interposed, followed by a rebuke from the bench and an admonition from the presiding judge to disregard prejudicial statements, is sufficient to cure the prejudice.”

In Browning v. State, 84 Ark. 131, where the attorney for the State in a criminal prosecution had, in his argument to the jury, made a highly improper statement, Judge Battle, after referring to the rule laid down in the Murphy case, supra, said: “The appellant promptly interposed an objection to the remark of counsel, and the court directed the jury to disregard it, and thereby rebuked the counsel for making the same.”

So in the present case the admonition of the court in sustaining the objection made by appellant’s counsel was a rebuke to the State’s attorney as well as a direction to the jury not to consider the remark.

It seems to me, with all respect for the opinion of my brethren, that it would have been a novel proceeding — one certainly not in keeping with the dignity of the occasion — for the trial court to tell the jury that the prosecuting attorney had no additional testimony tending to establish appellant’s guilt, or to stop the trial and demand of the attorney proof of his statements. The opinion in this case is not, I think, in line with recent decisions of this court on the subject under discussion. Fox v. State, 102 Ark. 393; Harris v. State, 140 Ark. 13; Sims v. State, 131 Ark. 185; Williamson v. State, 131 Ark. 264; Seaton v. State, 151 Ark. 240.

"We said in the cases above cited that we would assume that the jury heeded the admonition of the court and did not consider the improper remarks of the prosecuting attorney. A similar presumption should be indulged in the present case. The evidence is sufficient, we all agree, to sustain the verdict, and the judgment should not, in my opinion, be disturbed on account of the improper remarks of the attorney, which the court directed the jury no't tó consider.


author: Hemingway, J.,

text:
    Davie v. Davie.
    Opinion delivered March 5, 1892.
    1. Husband and wife — married woman’s power of attorney.— A conveyance by a married woman, by an attorney in fact, of all her interest as heir in a certain estate, consisting of real and personal property, cannot be avoided as to the personalty on the ground that, as a married woman, she is not authorized to convey by attorney.
    2. Guardian and ward — unlawful sale of ward’s land — laches— Where a guardian sells the land of an infant ward without authority, and the money is applied to the ward’s use, the fact that the ward does nothing to disaffirm the sale for nearly seven years after she became of age must be deemed a ratification of the sale.
    3. Wills — sufficiency of probate — Where a will is admitted to probate by the clerk of the court in vacation, and the court subsequently causes an order to be entered, reciting that the will has been fully proved before the clerk, and that the same is approved by the court, this is, in effect, an order of probate, and not merely an order approving the action of the clerk.
    4. Vendor and purchaser — effect of executing bond for title.— Where an owner of land gives a bond for a deed on the payment of the purchase-money notes, and places the purchaser in possession, he holds the legal title only as security, and on his death the land does not deeend to his heirs.
    Cross-appeals from White Chancery Court; David . W. Carroll, Chancellor;
    reversed.
    This was an action of ejectment brought by E. N. Davie and others against J. M. Davie. From a judgment for plaintiffs, both parties appeal.
    The other facts fully appear in the following statement by Hemingway, J.:
    The plaintiffs sued to recover undivided interests in land, which they claimed to have acquired as the heirs of J. C. Davie. The defendant resisted the recovery on the ground that J. C. Davie did not die seized of the land, but had sold it in his lifetime to persons from whom the defendant acquired title. He alleged that J. C. Davie had executed bonds conditioned to convey title upon payment of the purchase money, and placed the purchaser in possession, and that - thereafter, in March, 1870, the said J. C. Davie having died, his widow bought the lands from the obligees in the bonds, and took assignments of said bonds. He further alleged that the said J. C. died the owner of the notes given for the purchase of the land, and that said notes came into the hands of the administrator of said J. C., and were duly listed as a part of his estate in the inventory filed by the administrator; that the distributees of the estate, including the plaintiffs, sold to the widow all their interest in said estate, including the notes, and that said widow thereby, and by virtue of her right to dower, became entitled to the notes; that the administrator, believing her to have the.sole right to said notes, surrendered them to her before she purchased the land from the obligees in the bonds of her husband; and that in said purchase she surrendered the notes to said obligees, and by assignment of said bonds acquired the equitable title to the lands, free from the lien of the notes. He further alleged that the widow died testate in 1881, and by her will devised the lands to him. He made his answer a crossbill, and prayed that the plaintiffs be required to convey to him the legal title to the land, or, in ease.that be denied, that they be required to refund the several sums paid to them by the widow for their respective interests in the land. The cause was transferred to the equity docket, and progressed to a determination upon the pleadings and proof. It was adjudged by the decree that the plaintiffs recover interests in the land in the proportion to which they were entitled as heirs of J. C. Davie. Certain conditions were imposed upon the recovery, which we deem it unnecessary to state. Each party appealed.
    The pleadings contain a mass of matter not set out, but we have found certain issues that are controlling, and have set out in substance the allegations pertinent to them, omitting such matter as might confuse, and could not elucidate their determination. There is no practical disagreement as to the material facts. They are as follows: J. C. Davie owned the land in controversy, and in November, 1869, sold it — a part to one person, and the remainder to others. He executed two bonds conditioned to convey title when the agreed price should be paid, let the purchasers into possession, and took notes for the purchase money, aggre: gating $10,000. On the 13th day of January, 1870, he died intestate and without issue, but leaving a widow. His heirs were a sister, Mrs. Finch, a brother, O. N. Davie, and the children of two brothers, George and Ashborn, who had previously died. The plaintiffs are the children of Mrs. Finch, who subsequently died intestate, and two of three children of the brother Ashbom Davie. On his deathbed, J. C. Davie attempted to devise his entire estate to his wife, but the attempt failed by reason of a failure to execute his will in proper form. On the 10th of February, 1870, the surviving brother, the nephew solely interested by right of one of the deceased brothers, and one of three children interested by right of the other deceased brother, conveyed their several interests in the estate to the widow, the consideration being the accomplishment of the expressed desire of the intestate. The widow thus acquired two whole shares and a third of one of the other two. In February, 1871, she visited Tennessee, where those owning the shares not acquired resided, for the purpose of acquiring them. She solicited their interests as a gift, but subsequently agreed upon a purchase at the rate of $1,000 per whole share. Mrs. Finch thereupon executed to J. D. Garrison a power of attorney, which was intended to authorize him to transfer all her interest in the estate, and collect and receipt for the $1,000. He received that sum and paid it to her, and on the 7th of July, 1871, executed a deed to the widow, conveying all the interests of Mrs. Finch in certain described lands, and also in all the property described in the inventory of the administrator. The plaintiffs’ witnesses prove that Mrs. Finch actually sold all her interest in the estate. E. N. Davie, being one of the three claiming by right of Ashborn Davie, agreed with the widow for a sale of his interest at $385, and on the 4th of December, 1871, executed a power of attorney which authorized B. F. Elder to execute proper conveyances to land, in pursuance of which Elder, on the 10th of January, 1872, executed a deed for the sum thus agreed upon, conveying to the widow all the right, title, and interest of said E. N. in the estate of the said J. C., including all personal property. Mrs. M. E. Clements was then a minor, and the sale of her interest was made by her guardian, who gave bond to the widow, conditioned that the minor on coming of age would make a transfer of all her interest in the ‘estate. The guardian, who was her mother, collected the price agreed upon, and applied it to her use — a part of it after she was married. She knew of it, certainly, as early as 1880, and it is fairly inferable that she knew it much earlier. In 1877 she came of full age. In the fall of 1870 the defendant administered on the estate, received the notes given for the land, and included them in the inventory made and filed by Mm as administrator. He turned the notes over to the widow to enable her to make the trade with the holders of the title-bonds; believing, as he testified, that she was entitled to a part of them as dower, and had acquired the other interests by the transfers from the distributees. On the 4th of March, 1871, after the widow had returned from Tennessee, where she agreed upon the purchase of the interests now claimed by the plaintiffs, she bought from the vendees of her husband their interest in the land created by the title-bonds, and took assignments thereof, paying to the purchasers just what they had paid, and surrendering their notes. Upon receiving an assignment of the bonds the widow went into possession, and she and those claiming under her have held possession continuously since, and have made lasting and valuable improvements, estimated as worth $15,000. The administrator filed accounts current in 1877 and 1879, and in 1881 made his final settlement. He charged himself with the notes, and took credit for them as having been turned over to the widow. No act was done by any of the parties to disaffirm the transfers made by them to the widow until this suit was brought, in May, 1884, an interval of 13 years after the sales, and of nearly 7 years after Mrs. Clements came of age. The defendant married the widow in 1874, and she died in 1881. Subsequently a writing was admitted to probate by the probate court of White County, whereby she devised to the defendant the lands in controversy. The validity of the will is denied by the plaintiffs.

      S. L. Coder oft, for appellant.

      J. M. Battle, J. E. Gatewood, and J. N. Cypert, for appellee.
   Hemingway, J.,

(after stating the facts). The sale in 1869 divested J. C. Davie of all beneficial title to the land. He held the legal title as a security for the purchase money, but his property was in the notes, not in the land. As the land had passed from him, and he was not the owner, it could not descend upon his death to his heirs. The plaintiffs could therefore recover no share in it by reason merely of his death and their heirship. But it is said that the notes given for the purchase money belonged to the estate of which plaintiffs were distributees; that said notes were without authority delivered by the administrator to the widow, and constituted almost the entire consideration for the assignment of the title-bonds to her; and that by reason thereof she held the estate created by the bonds for the benefit of those interested in the notes. The administrator was not authorized to purchase the land for the benefit of the estate, or to acquire title for the heirs by surrender of the notes. If he diverted assets of the estate by an unlawful delivery to the widow, it may be that those interested in the estate could have demanded that she restore them, or that they could have followed the proceeds into other property, in case the notes had been converted; but, if such right would have arisen upon the condition indicated, it would not have vested any title to the land, but conferred only an equity to charge the land with the payment of the notes. Whether the plaintiffs could assert that right in this proceeding after the administrator had fairly settled the estate, and accounted, though improperly, for the notes, is a question not presented; for the record shows that the plaintiffs have parted with whatever rights they had in the notes, and are in no position to question the conduct of the administrator. The plaintiff E. N. Davie, by his deed of the 10th of January, 1872, conveyed and sold to the widow all his interest in the estate, and this conveyance was but the consummation of a sale actually made about a year before. How he can find any pretext to claim an interest in the notes we cannot conceive.

Mrs. Finch, the mother of the plaintiffs Garrison, Halloman, McCutchen, and Finch, early in 1871 sold to the widow all her interest in the estate for $1,000, which was paid to her; and, by her attorney in fact, she executed a conveyance for the purpose of consummating the sale on the 7th day of July, 1871. The description in the conveyance is about as obscure as one could be, but its meaning can be ascertained, and it appears that the property conveyed “was that set out in the inventory of the administrator. But it is said that a married woman cannot convey property by attorney. The reply is that she can dispose at least of her personalty, as a feme sole. Much of the business of the country is conducted by married women, and the result of the argument would be to invalidate all sales made for them by clerks or other agents — a position without support. But, independent of the deed, a parol sale was made months before, and the agreed price paid. The notes were delivered to the widow as entitled to all the estate, and the administration subsequently settled. For more than 13 years after the sale, no effort was made to dis-affirm it, and no reason shown to excuse the delay. If there ever was any ground for Mrs. Finch or those claiming under her to avoid the sale, the unexplained lapse of time bars it. The same may- be said as to the rights of E. N. Davie.

The claim of Mrs. Clement presents more color of merit; for she was a minor when the sales were made to the widow, and her interest is claimed only by virtue of the attempted sale of her guardian. . There is no proof that the guardian was authorized to make the sale, and we infer from the circumstances that she was not. But the widow paid for her interest, the money went to her use, and, as the evidence discloses, she knew the facts. She came of full age in August, 1877, before the administration of the estate was settled. For nearly seven years she did nothing to disaffirm the sale. Acquiescence for that time must be held an implied ratification of the guardian’s sale of her interest.

The widow, therefore, acquired the interest of all the heirs in the notes, and, having acquired the land subject only to the lien of the notes, her title became perfect; and the plaintiffs are entitled to no relief as against those to whom her rights have passed.

It was suggested in the argument that some of the plaintiffs were entitled to recover as heirs of the widow, in case she was found to have owned the land. No such claim was asserted in the pleadings, or appears to be sustained by the proof. The mother of two of the plaintiffs is an heir of the widow; but, as she is living, they cannot have a recovery upon her heirship. Besides, it appears that the widow made a will, which was admitted to probate by the probate court of White County; and whether it was properly admitted is a question that cannot be reviewed in this collateral proceedings, nor at the suit of persons not interested in it. But it is contended that the will was not in fact admitted to probate by the probate court, but by the clerk of the court in vacation, and that the court subsequently only caused an order to be entered, reciting that the will had been fully proved before the clerk, and that the same was approved by the court, and directing that the will be recorded as such. This, it is contended, was not an order admitting the will to probate, but simply approving the clerk’s action. The argument has no regard for the effect of the order, but rests alone upon its form. It is too technical for our approval. Petty v. Ducker, 51 Ark. 281, 11 S. W. Rep. 2. It is admitted that by the will the defendant was to have the lands, and so long as the judgment of a court of competent jurisdiction, admitting it to probate, is unreversed, its terms must control the course of the land. Dowell v. Tucker, 46 Ark. 438.

From the views expressed, it follows that the plaintiffs were entitled to no relief, and that the defendant was entitled to have the legal title to the land vested in him. The judgment granting the relief to the former and denying it to the latter was therefore erroneous in each respect. Reversed and remanded, with directions to enter judgment in accordance with this opinion.


author: Hast, J.

text:
    Burns v. State.
    Opinion delivered September 25, 1922
    1. Homicide — admissibility of dying declarations. — The admissibility of alleged dying declarations is for the court to determine, and the weight and Credit to be given them is for the jury.
    2. Homicide — dying declarations — matters considered. — In determining. whether dying declarations were made under a sense of certain and impending death, the court may consider all the facts and surrounding circumstances, such as the character of the wound itself, the declarations of deceased that he could not live, and the fact that he died shortly thereafter.
    3. Homicide — sufficiency of evidence. — Deceased’s dying declaration that defendant shot him, together with corroborating circumstances, held sufficient to sustain a conviction for murder in . the first degree.
    4. Homicide — evidence of quarrel in which defendant took sides. —In a murder case, where there was evidence of bad feelings between deceased’s family and the family for which defendant was working, evidence that defendant took sides with the latter family was admissible.
    5. Criminal law — evidence of quarrel in defendant’s absence.— Where there was evidence that defendant and his employers conspired to kill deceased because of bad feeling growing out of disputes between a school teacher and the employer’s children, evidence of a quarrel between the teacher and the children in defendant’s absence was admissible.
    6. Criminal law — proof of conspiracy. — Proof of a conspiracy between defendant and others is a preliminary quejtion to be passed upon by the court before admitting evidence of acts and declarations of the conspirators.
    7. Criminal law — acts and declarations of conspirators. — Where evidence offered is sufficient to make a prima facie showing of a conspiracy, evidence of all the acts and declarations of each eon- • spirator are admissible against his co-conspirator.

      8. Homicide — punishment as part of the verdict. — Under Crawford & Moses’ Dig., § 3205, requiring the jury to ascertain the degree in all cases of murder, and § 3206, authorizing the jury in all cases where the punishment is now death by law to render a verdict of life imprisonment, the fixing of the punishment for . first degree murder must be a part of the verdict.
    9. Homicide — sufficiency of verdict. — Under Crawford & Moses’ Dig., §§ 3205-6, where defendant was indicted for murder in the first degree, a verdict stating that the jury “find the defendant guilty and place his punishment for life in the State Penitentiary,” sufficiently showed that they found him guilty of murder in the first degree.
    10. Criminal law — order of trial of defendants jointly indicted. —Crawford & Moses’ Dig., providing that defendants, jointly indicted for felony, may elect the order in which their eases shall stand upon the docket for trial, merely fixes the order in which the cases shall be called for trial, and does not require that the case of the defendant first placed upon trial, as to whom the jury disagreed, shall be finally disposed of before the other defendant is tried.
    11. Criminal law — instructions already covered.- — -Where the instructions given fully submitted the respective theories of the State and the defendant, requested instructions which were either covered by those given or were argumentative in form were properly refused.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge; affirmed.

      E. G. Mitchell, for appellant.

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

Charley Burns was indicted for the crime of murder in the first degree, charged to have been committed by killing Elijah Roberts by shooting him at his home in Newton County, Ark.

The defendant was tried before a jury, which fixed his punishment at imprisonment for life in the penitentiary, and he has duly prosecuted an appeal to this court.

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

It appears from the record that Elijah Roberts was filled at his home in Newton County, Ark., on the night of September 10, 1921. According to the testimony of the wife of the deceased, she and her husband had gone to bed and were asleep. They were awakened by the barking of their dog. The husband thought that his mare was in the fodder at the bam, and told his wife that he would go out there and tie the mare up. He took his bridle and lantern and went tow;ards the barn. In a few minutes Mrs. Roberts heard her husband scream. She ran to the door and met her husband coming to the house. He said that he had been shot and killed. He asked her to go and get Alex Lewis and his wife, who lived about a quarter of a mile away. He said that he was going to die, and asked his wife to pray for him. She made a short prayer for him and then went for Mr. and Mts. Lewis. They immediately dressed and returned home with her. After they got back home she asked her husband, could it have been Roscoe Dixon that shot him? Her husband replied: “No.” The deceased had already stated a number of times that Charley Burns had done the killing. The deceased died the next morning after he was shot, at about seven o’clock. He realized that he was going to die, and stated to every one. who came in that he was going to die, and that Charley Burns had shot him.

Some one shot the deceased about the waist line on his right side, and this caused his death.

George Roberts, the father of the deceased, was notified of the shooting, and went to the home of his son. His son took him by the hand and said, “Pa, they have killed your boy.” The deceased was about twenty-five years old. The witness said, “Son, do you know who done it?” The deceased replied, “Yes, Charley Burns killed me. I heard the racket of my fodder rattling, and my dog kept barking, and I got up and lighted my lantern and went out there. ""When I got to the feed trough, and just as I stepped over it, I heard some one say, ‘Now,’ and then a gun fired and Charley Burns said, “God damn him, I got him’.” Again the witness said, “Son, couldn’t you be mistaken?” The deceased replied, “No; Pa, I know who killed me.’ ’ The deceased said that his “dying testimony” was that he knew that Charley Burns had killed him.

Other neighbors were witnesses in the case and testified that they went to the deceased’s house after he had been shot. The deceased told them that he was going to die, and that Charley Burns had killed him.

According to the testimony of Mrs. Sarah Simpkins,'' on the Sunday before Elijah Roberts was killed she saw Charley Burns and Leonard Cranford riding mules down the road. She saw that they Were drunk, and stepped out behind some bushes to permit them to pass. They were talking pretty loud, and Charley Burns said, ‘ ‘ God damn him, we’ll get him some night; we’ll fix him so he won’t be no witness against us.” She did not know to whom they had reference.

Another witness testified that on the Sunday preceding the killing of Elijah Roberts on Saturday night, she was at Hawley’s store, and that Charley Burns and Leonard Cranford came into the store and bought four cartridges. It was nearly dark at the time.

It also appears from the record that Elijah Roberts was a school director, and that the Cranfords had trouble with a young lady whom the directors had employed to teach school. The trouble between the teachei and the Cranfords resulted in breaking up the school. The deceased took the,part of the teacher. A short time before the killing the lady teacher and tne mother of the deceased had a difficulty with the Cranford girls at the schoolhouse. The defendant and some of the Cranford boys actively took the part of their sisters. The defendant encouraged them to carry on the difficulty. The father of the Cranford boys on several occasions stated that the Roberts were causing his family trouble, and threatened them in various ways.

Another witness testified that Leonard Cranford and Charley ‘Bums came to the home of one of the directors, where she was staying, after the school had been broken up, and wanted to know if school would begin the next Monday. Leonard Cranford said that he was not going to have anything to do with any of the teachers. Charley Burns did not say much of anything. The defendant was working for the Cranfords and staying at their home at the time the killing occurred.' Some time prior to this, however, he had lived at the home of the deceased and had worked for him. The above is the substance of the testimony introduced by the State.

The defendant was a witness for himself, and denied that he shot the deceased. He' stated that he was on good terms with the deceased and had no animosity toward him at all. He admitted that he was working for the Cranfords, but stated that he did not participate in any ill feeling that they might have towards the deceased.

His testimony was corroborated by that of the Cranfords, and several witnesses testified that the defendant was out hunting the night the deceased was shot, and was several miles away from the scene of the killing.

The main reliance of the State for a conviction was the dying declarations of the deceased. On this point t’he law is that the admissibility of such declarations is for the court to determine, and the weight and credit to be given them is for the jury. Freels v. State, 130 Ark. 189.

In determining whether the dying declarations were made under a sense of certain and impending death the court may consider all the facts and surrounding circumstances, such as the character of the wound itself, the declarations of the deceased himself that he could not live, and the fact that he died shortly afterward. Stewart v. State, 148 Ark. 540.

The undisputed evidence, shows that the deceased received a gunshot wound about ten or eleven o’clock in the night, and died as the result thereof the next morning at seven o ’clock. He realized that he was going to die, and so stated to a number of his neighbors who were called in after he was shot. Therefore the .evidence met all the requirements of the law with regard to the admissibility of dying declarations.

The circumstances under which the death occurred show that whoever killed the deceased was guilty of murder in the first degree. According to the evidence, the deceased heard a noise at his barn, and thought that his mare had got into the fodder. He went out there to see about it, taking with him a bridle and a lantern. A gun was heard fired, and the deceased came into his house, stating that he had been shot while at the barn. The deceased did not take his gun with him, so that it is certain that he was shot by some one else, and, as about stated, the attending circumstances show that the killing was done after deliberation and premeditation.

It is earnestly insisted that the deceased did not see who shot him, and that the defendant should not be convicted on the statement of the deceased to the effect that he recognized the defendant as the person who shot him, from hearing his voice. According to the dying declarations of the deceased, when he approached the bam some one cried, “Now!” and then a gun was fired and the deceased was struck ¡by the bullet from it. After the gun was fired some one said, “God damn him, I got him.” The deceased recognized the defendant as the person who shot him after hearing him, speak these words. The deceased had been well acquainted with the defendant, and it was possible for him to recognize him by his sense of hearing as well as by his sense of sight. A person may be recognized by his voice as well as by his appearance. Other evidence was introduced tending to corroborate the dying declarations of the deceased.

It appears that the deceased was a school director' and had taken the part of a lady school-teacher in a quarrel with the Cranfords, whose children were pupils at the school. This resulted in bitter feeling between the two families. While the defendant had formerly worked with the deceased and they had been good friends, at the time of the killing he was living with the Cranfords and working for them. He took sides with the Cranfords in their quarrel with the Roberts family. On the Sunday preceding the killing on Saturday night, a neighbor saw the defendant and one of the Cranford boys riding along the road, talking pretty lond. They appeared to be drunk, and the defendant said, “Cod damn him, we’ll get him some night; we’ll fix him so he won’t be no witness against us.” While the defendant did not state in this connection to whom he had reference, the jury might have inferred that he was talking about the deceased. Later on the same day the defendant and Cranford purchased some shells.

Therefore, the dying declarations of the deceased, together with the surrounding circumstances as detailed above, were sufficient to warrant the jury in finding the defendant guilty of murder in the first degree.

It is next insisted, that the court erred in admitting certain testimony relative to the quarrel between the mother of the deceased and the lady school-teacher on the one side, and the Cranford children on the other, which occurred a few days before the killing. The record shows that the defendant was present when this difficulty occurred and took sides with the Cranfords, and we do not think there was any error in admitting the testimony.

It is more earnestly insisted that the court erred in admitting testimony relative to another quarrel between the teacher and the Cranford, children at which the defendant was not present. We think this evidence was admissible upon the theory that the defendant and the Cranfords had conspired to kill the deceased. The proof of such conspiracy is a preliminary question to be passed upon by the court, and where the evidence offered is sufficient to make a prima facie showing of the existence of such conspiracy, then evidence of all the acts and declarations of each conspirator are admissible against his co-conspirator. Cantrell v. State, 117 Ark. 233. The evidence shows that bitter feeling had arisen between the Roberts family and the Cranfords on account of a quarrel between a lady school-teacher and the Cranford children. The deceased was one of the- school directors, and took the side of the lady teacher. The defendant at the time lived with the Cranfords, and took their side of the quarrel. The quarrel became so bitter that each side endeavored to have the other arrested, and the head of the Cranford family went so far as to state that he Would no longer try to keep peace between the two families, but would like to see some of the Roberts family killed. All these circumstances show the existence of a conspiracy and renders admissible the testimony alluded to. The testimony tended to establish a motive for the killing, and was admissible as acts and declarations leading up to the killing as a result of the conspiracy.

The next assignment of error is that the court could not lawfully proceed to judgment and sentence upon the verdict. The form of the verdict is as follows: “We, the jury, find the defendant guilty and place his punishment for life in the State Penitentiary.”

Reliance is placed by counsel upon the case of Banks v. State, 143 Ark. 154. There the defendant was indicted for murder in the first degree, and the jury returned a verdict of ‘ ‘ Guilty as charged in the indictment, ’ ’ without anything more. Following its previous decision, the court held that the verdict was fatally defective.' The reason given was that the statute expressly requires the jury to ascertain the degree in all cases of murder, and that its terms are imperative. The section of the statute referred to is 3205 of Crawford & Moses’ Digest. Sec. 3206 provides that the jury shall have the right in all oases where the punishment is now death by law to render a verdict of life imprisonment in the State Penitentiary at hard labor. This act gives the jury the right to fix the punishment of a defendant found to be guilty of murder in the first degree at life imprisonment instead of death. Before the passage of the act there was but one penalty for murder in the first degree, and that was death. The language of the act makes the punishment a part of the verdict. The statute gives the jury, and not the court, the right to reduce the punishment. The fixing of the punisment must necessarily, then, be a part of the verdict. See Webb v. State, 154 Ark. 67.

The indictment in this case was for murder in the first degree. It is true that the indictment contained a charge of all the lesser degrees of homicide, but the jury could only fix the punishment at imprisonment for life in the State Penitentiary for murder in the first degree. The defendant having been indicted for murder in the first degree and the statute having required the jury to find the degree of the offense, coupled with an express finding of the jury that the defendant was guilty and his punishment fixed at imprisonment for life in the State Penitentiary, showed that they found the defendant guilty of murder in the first degree and reduced his punishment to life imprisonment, as they had the right to do under the" statute. Therefore, this assignment is. not well taken.

The next assignment -of error is that the judgment should be reversed because the defendant was tried before the case of his codefendant was finally disposed of. The defendant and John Cranford were jointly indicted for the murder of Elijah Roberts. They elected to put John Cranford on trial first. This was done, and the jury in the Cranford case was discharged because it could not agree upon a verdict. The defendant was then put on trial over his objections. It is insisted by counsel for the defendant that under the statute he could not be placed upon trial. until the case against John Cranford had been finally disposed of.

The section .referred to is 3140 of Crawford & Moses’ Digest, which provides that-in felony cases defendants jointly indicted may elect the order in which their cases shall stand upon the docket for trial.

In Sims v. State, 68 Ark. 188, the court held that this statute does not contemplate that a defendant jointly indicted shall not go to trial until final disposition has been made of the case against his codefendant which stands first on the docket for .trial. The court said that the statute fixes only the order in which the cases of defendants jointly indicted shall be called for trial after they have severed. Therefore we hold that this assignment of error is not well taken.

Finally, it is insisted that the court erred in refusing to give certain instructions asked by the defendant. We have examined the instructions given by the court and think they fully and fairly submitted the respective theories of the State and of the defendant to the jury. The requests of. the defendants refused by the court were either covered by the instructions already given, or were argumentative in form. Therefore no error was committed by the court in refusing to give them, and we do not think it is necessary to set out the instructions and discuss them separately.1 ’

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


author: Hart, J.

text:
    Shaw v. State.
    Opinion delivered September 25, 1922.
    False pretenses — sufficiency of evidence. — Proof, in a prosecution for obtaining personal property under false pretenses, that the prosecuting witness when told by defendant that he was “into it and had better settle up” a certain claim, yielded his property knowing that defendant occasionally made arrests, and fearing that he would be arrested if he failed to settle, was . not sufficient to establish the charge where defendant made no threats of arrest or accusations, and did not claim that he was an officer.
    Appeal from Hot Spring. Circuit Court; W. H. 'Evans, Judge;
    reversed.

      M. S. Cobh, for appellant.
    J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Gid Shaw prosecuted this appeal to reverse a judgment of conviction against him for the crime of obtaining goods and money under false pretenses.

To sustain the conviction the State relies upon the principles decided in Lawson v. State, 120 Ark. 337. There the defendant was an officer, and not only had the power but it was his duty to arrest the prosecuting witness. The defendant stated to him that he would not arrest him if he would comply with his terms. In other words, there was an implied threat that the defendant, as an officer, would arrest the prosecuting witness if he did not comply with his terms. By this means the defendant obtained from the prosecuting witness the sum of $300.

Here the facts relied upon by the State for a conviction fall short of bringing the case within the rule announced above. It appears from the record that John L. Burke sold a mare to one McKay for $25 and held a note for the purchase price, retaining title in the mare until she was paid for. McKay left the mare with Lewis Elliott, the prosecuting witness. Elliott traded the mare to A. B. Roehte for another one. Some time afterwards the defendant, Shaw, and Roehte went to Elliott and demanded payment bf the note which had been given by McKay for the purchase price of the mare. The defendant, Shaw, told Elliott that he was up against it and had better settle the matter. Shaw did not say that he was an officer, or that Elliott had violated the law. Elliott knew that Shaw sometimes arrested men, and from this, and his acts on the occasion in question thought that Shaw was an officer. Shaw gave Elliott until the next morning to think the matter over. On the next morning Shaw and Roehte went to Elliott’s house, and the latter gave them certain personal property in settlement of the matter. After Elliott had delivered to them the personal property, the defendant wrote a receipt, which was signed by Roehte, and then gave the receipt to Elliott. They told the latter that the receipt was to clear him from making any further payment of the note given for the purchase price of the mare.

On cross-examination, the witness testified that Shaw did not teli him he was an officer, nor did Shaw charge him with violating the law. Shaw only said to Elliott that he was “.into it and had better settle the matter up.”

The defendant himself testified that he was not an officer, and that he only went with Rochte to help collect the note. His testimony was corroborated by that of John L. 'Burke.

The testimony does not show any causal connection between the alleged false pretenses and the loss to the prosecuting witness. Shaw did not represent himself to the prosecuting witness as an officer clothed with the power and duty to arrest him for violating the law. He did not even charge the prosecuting witness with a violation of the law. He only told him that he had better settle the matter up. This referred to the fact that the original owner of the mare had a note for the purchase price, which was unpaid, and in which the title to the mare was retained until the purchase price was paid.

The defendant was not induced to give up his property by any implied threat on the part of the defendant that he had committed a crime and would be prosecuted unless he settled the matter.

The facts proved do not constitute the criminal offense of obtaining goods and money by false pretenses under the statute. Roberts v. State, 85 Ark. 435.

It follows that the evidence fails to support the verdict, and inasmuch as the facts have been fully developed, the judgment will be reversed and -the cause remanded, with directions to dismiss the indictment.


text:
    Miller v. State.
    Opinion delivered September 25, 1922.
    ,1. Embezzlement — failure of officer to pay over funds. — Under Crawford & Moses’ Dig., § 2832, it is an offense for a city collector to misappropriate funds intrusted to him by law, or to allow them to be misappropriated; his failure to pay over funds to his successor being of itself a wrongful misappropriation thereof.
    2. Embezzlement — misappropriation of funds. — Evidence that a city collector, who was also custodian of funds of various improvement districts, mingled the funds of the city and of the. districts, and had insufficient funds on hand, warranted a conviction for misappropriating both funds, as the city and improvement districts would be entitled pro rata to the funds on hand.
    3. Embezzlement — inference from commingling funds. — Where a city collector mixed funds of the city and of certain improvement districts so that it could not be ascertained whether funds on hand belonged to one or the other, the jury might infer that they were so mixed with intent to deprive the owner thereof.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      1Mehaffy, Bonham & Mehaffy, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Tbe indictment in this case charges R. W. Miller, as city collector of the city of North Little Rock, with embezzling the public funds of that city, in violation of the provisions of sec. 2832 of Crawford & Moses Digest.

From a judgment and sentence of conviction pronounced upon a verdict of guilty, the 'defendant lias duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for the defendant that the evidence fails to support the verdict, but in this contention we cannot agree with counsel, for the reasons 'which we shall now state.

During the year 1920, and up until April, 1921, the defendant, R. W. Miller, was city clerk and ex-officio collector of the city of North Little Rock, in Pulaski County, Arkansas. When the defendant turned the office over to his successor, he had on hand city warrants of the face value of $1,834.68, cash in the sum of $1,010.22, and checks which, added to the above, amount to something over $6,000. An audit of his books showed that at the time he resigned his office he should have had on hand city funds to the amount of $5,531.63 and funds belonging to the various city improvement districts in the sum of $7,249.74. Other evidence tended to establish the correctness of the audit.

The defendant was a witness for himself. He could not account for his shortage of funds and did not claim to have on hand any funds except the city warrants, cash and checks above set forth. The defendant stated that he did not know how much of the money he had on (hand belonged to the city, and how much belonged to the different improvement districts. He stated that the way he did was to check up the improvement districts and deposit money for them, and what he had left he considered as belonging to the city

Under this state of the record, counsel for the defendant contends that it was a matter of conjecture merely whether the defendant misappropriated the city ‘funds or the improvement districts funds, and that therefore the evidence is not legally sufficient to support the charge of embezzling the. city funds.

Under the statute it was an offense for the defendant to misappropriate the funds intrusted by law to his care, or to allow them to be misappropriated. In other words, his wilful failure to pay over the public funds to his successor was of itself a wrongful misappropriation of the public funds in his hands. Davis v. State, 80 Ark. 310. The undisputed evidence shows that there was a shortage in his accounts with the city and that this shortage resulted from a misappropriation, either of the city funds, or of the improvement district funds, or both. In the very nature of things the city warrants belonged to the city, but the cash on hand and the checks might have belonged to either the city or to the improvement districts.

The theory of the defendant is that the cash and checks on hand, when added to the face value of the city warrants, amounted to more than the sum he was accused of embezzling from the city, and that, because the record does not show to which fund the cash and checks should be applied, there is a failure of evidence to support a charge of embezzling the city funds.

The fallacy of this argument is that the defendant had the actual custody of both the city funds and the improvement district funds, and it was a violation of law to embezzle the funds of either. The defendant was short in his accounts as the custodian of these funds, and, from the evidence in the record, must have commingled the city funds and the improvement district funds. The defendant wrongfully mingled the funds, and it is not possible from the evidence to trace the city funds or the improvement districts’ funds to any particular part of the cash and checks on hand turned over by the defendant to his successor in office.

Under this state of the record the city and the improvement districts would each be entitled to a pro rata part of the funds on hand. It results that the evidence is sufficient to convict the defendant of embezzling the city funds. The defendant mixed the city funds and the improvement district funds so that it could not 'be ascertained Whether the funds on hand belonged to the one or the other. Under the circumstances, the jury might have inferred that the funds were so mixed with the intent to deprive the owner thereof. Otherwise a public officer would, be able to escape the penalties of the statute by wrongfully commingling the various funds intrusted to his custody. Such is not the law, and it follows that the evidence is legally sufficient to support the verdict.

It is also contended by counsel that the court erred in failing to.instruct the jury that, if they were unable to determine whether the funds on hand were the city’s funds or the funds of the various improvement districts, they should acquit the defendant.

This phase of the case was covered by the instructions given by the court. The jury was specifically told that the funds of the improvement districts were not the funds of the city, and in another instruction the jury was told that the ownership of the property taken was material, and that it must find beyond a reasonable doubt that the defendant was guilty of taking the property of the city of North Little Bock before it could convict him.

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