text:
    Spence v. State.
    Opinion delivered January 13, 1930.

      Peyton D. Moncrief, J. B. Brice, A. O. Meehan and John W. Moncrief, for appellant.

      Hal L. Nomvood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction of murder in the second degree, with a penalty assessed of nine years’ imprisonment in the penitentiary, against appellant for the killing of one Jed Wilsey, on an indictment for murder in the first degree.

Appellant pleaded self-defense, and it is conceded that, under the evidence, the jury would have been warranted in returning a verdict of murder or manslaughter, as well as mot guilty.

Appellant contended that timber had been stolen from, him, and that the deceased was interested in the stolen timber, and that on the day of the killing he went down to where a number of timber workers were living in house boats for the purpose of trying to employ one of them. He had previously spoken to. Jed Wilsey about working' for him; stated he went up to the house boat where Wilsey lived, and spoke to him and some other people nearby; that; while he was trying to adjust something in the motor boat, his wife, who was with him, suddenly cried, “Look out!” and he glanced up and saw Wilsey approaching with a pistol, and he dropped down in the bed of the boat and jerked up a shotgun and started firing; shot so. fast that witness did not know the number of shots he fired; said he did not know where the shot took effect in Wilsey’s body, and the State’s testimony tended to show some of them struck him in the back and ethers in the side. Deceased was shot with small shot, bird or squirrel shot, and it was also shown that deceased had threatened the life of appellant.

The State’s testimony showed that appellant came up to where the house boats were moored, in a motor boat, with his wife and another man. He asked if Jed Wilsey was there, and, being told he was, asked him if he was in charge of the timber. Wilsey replied that he was, and appellant said, “Come over here.” Wilsey, coatless, dressed only in his shirt and trousers and unarmed, started over towards appellant’s boat, and when he had gotten within about 15 feet of him, appellant presented a repeating shotgun, shot it empty, shooting deceased in the side and back as he turned to get away. Deceased fell on one of the boats, and his body was hanging off into the water. Appellant said to the others, “Let’s get him out of the water,” and, after first being assured by the others that they would not hurt him, he assisted, and the body was dragged back on the boat where the deceased died shortly.

The only errors assigned for reversal are the giving of instruction 7 A, reading as follows: “The State is required to prove the material allegations in this indictment, and that beyond a reasonable doubt, and the material allegations are that this defendant, some time prior to the finding of the indictment in the Southern District of Arkansas County, Arkansas, killed the deceased, one Jed Wilseyand the misconduct of the jury in that one of the jurors, while the case was being considered became violently ill, and was allowed to be separated from the others after the court had ordered the .jury to be kept together.

The instructions relative to the degree of homicide of which defendant might be convicted, were in narrative form, and there is no complaint that any of the others, or all of them, did not correctly declare the law. The jury was told that the burden was upon the State to prove all the material allegations of the indictment fully specified therein, beyond a reasonable doubt, and the law relative to reasonable doubt and the presumption of innocence was also .fully declared.

The instruction complained .of is not contradictory of any of the instructions given, correctly defining the different degrees of homicide, and instructing the jury ■that appellant could not be convicted of either of them, except upon proof convincing them beyond a reasonable doubt of his guilt. Neither does the instruction complained of attempt to set out all the elements of the different offenses, or contain any direction about how the jury should find. It could not have misled the jury to the prejudice oif the defendant, since it only convicted him of murder in the second degree upon evidence showing him to have been guilty of, and conceded to be sufficient to have supported a verdict against him for, the higher degree of the offense charged — murder in the first degree — showing that the .jury’s consideration of the question was guided by the law, as correctly declared. The jury was directed to consider the instructions given, as a whole, and if the instruction complained of was erroneous it was not prejudicial. Zinn v. State, 135 Ark. 374, 205 S. W. 704; Greathouse v. State, 166 Ark. 206, 265 S. W. 950; Stotts v. State, 170 Ark. 194, 279 S. W. 364; Smith v. State, 172 Ark. 164, 287 S. W. 1026.

It is next complained that the jury was allowed to separate after having been directed to be kept together by the court, in care of an officer; and, by amended motion for a new trial, that the sick juror was under the influence of narcotics to such an extent as to render him incapable of discharging the duties of a juror, which fact it was alleged was unknown to appellant before the rendition of the verdict. After the jury had been ordered kept together, and put in charge of a deputy sheriff, one of the jurors, Mr. L. F. Balter, became violently ill, and the judge, upon being notified, directed that a physician be called for the sick juror, and that he be also attended by a deputy sheriff, which was done, the remainder of the jury being kept together by the other officer in charge. The doctor visited the juror about 7 o’clock in the morning, and administered treatment for bowel trouble, giving* him a hypodermic containing Vi. grain of morphine, and left him a preparation of bismuth and paregoric to be taken. He stated that the juror was suffering no pain, and his .mental condition was normal when he went back to service on the jurv in the afternoon. The juror said he was feeling all rig'ht, and he wás down to his place of business the next day, and informed the doctor, who called at his filling station for gas, that he was feeling all right. The doctor did not think the medicine given the juror would have had a tendency to put him in a dull and sluggish condition, and, if he had not thought the man was normal, he would not have let him continue to sit on the jury.

The record recites the judge stated: “Let the records show that Mr. Hughes, deputy sheriff, was in charge of the jury, and he called me about seven o’clock that morning in my room at the hotel and told me that one of the jurors was ill, and that it was necessary for him to have a doctor, and I advised the deputy sheriff immediately to get up and get in touch with the sheriff, and get another deputy, if it became necessary that the sick juror have a doctor. I believe it was deputy Benton Gibson who told me that it was necessary to have another deputy to look after the sick juror. Attorneys Bugle and Moncrief were sitting on the porch at the hotel, and I asked them if there was any objections to having another deputy to look after the sick juror, and Mr. Moncrief, attorney for the defense, said that it would be agreeable with him.”

Joe Gordon, the deputy sheriff, stated he stayed with, and looked after, the sick juror, L. B. Baker, and that no one was permitted tu talk with the juror during the time he was taking care of him. The evidence also shows that the other jurors were kept together by the officer, into whose charge they were given by the court. There was other testimony, also, showing that the sick juror, separated from the others, was not subjected to any outside influence that could have been hurtful to appellant.

It became necessary for the sick juror to have medical attention, and be separated from the others for that purpose, and he was required to be, and was kept in charge of a deputy sheriff during his separation from the jury.

Under these circumstances we think that the case does not come under the rule that such separation casts upon the State the burden of showing that no improper influence was brought to bear upon the juror during his absence from the jury, or that it was prima facie ground for a new trial, without any affirmative showing that the separated juror was not subjected to any noxious influence. In other words, the separation of the sick juror in charge of a deputy sheriff, for medical attention by direction of the court, from the other members of the jury pending the trial, and after the jury had been ordered kept together by the court, was a proper exercise of the court’s- discretion, and could not be regarded a violation of the order requiring the .jury kept together, and imposing on the State the burden of making an -affirmative showing that the sick juror was not exposed to any improper influence. Armstrong v. State, 102 Ark. 356, 144 S. W. 195, Ann. Cas. 1914A, 734.

Moreover, an affirmative showing was made by the State that said juror was not exposed, or subjected to any improper influence during the separation. The sick juror, upon the resumption of the trial, returned into court with the others, and while it is true he sat in a rocking chair supported by pillows to malee his position more comfortable during the remainder of the trial, there was -no showing made that the juror was incompetent to proceed with the discharge oif his duties. The doctor who was treating him testified that Ms condition was normal, and that the .medicine administered as and according to directions would not have rendered him in •any way incapable of discharging his duty properly. Neither does the verdict, rendered upon evidence that shows him to have been guilty, and which it is conceded would have supported a verdict of a higher degree of the offense charged, indicate any incompetence on the part of such juror. No objection was made by appellant (as should have been done if the juror’s condition warranted it) to proceeding with the trial with the jury as constituted, because of the condition of the sick juror who had been treated by a physician, but this is attempted to be explained by his attorneys stating* that they had no knowledge of the kind of medicine administered in the treatment until after the trial was completed. This court has held that no error was committed in denying motions for a new trial on the ground that a juror had the appearance of being asleep, or was asleep, during the progress of the trial. Pelham v. Page, 6 Ark. 535; Dolan v. State, 40 Ark. 454. See also Braunie v. State, 105 Neb. 355, 180 N. W. 567, 12 A. L. R. 658, and note.

We find no error in the record, and the judgment is affirmed.

Mr. Justice McHaney dissents.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    National Benefit Life Insurance Co. v. Brown.
    Opinion delivered November 11, 1929.

      Leivis Rhoton and John A. Kibbler, for appellant.

      Smith Fitzsimmons, for appellee.
   Butler, J.

This action at law was instituted by appellee, Sarah V. T. Brown, against the appellant, National Benefit Life Insurance Company, to recover the proceeds of a policy of life insurance issued in her favor on the life of John E. Brown by the appellant. The complaint alleg’ed by proper averments the issuance of the policy, the payments of the premiums, the death of the insured, and the proper steps taken subsequent thereto as to the notice of death. There was a prayer for judgment for the face value of the policy, less a loan that had been negotiated by the insured prior to his death.

The answer denied liability, alleging as an affirmative defense that said policy had been reinstated during the life of the insured upon the false and fraudulent statement that the insured was in good health, and that since the day of his examination for the policy he had no illness, ailment, or injury whatsoever, while at the time the said Brown made the statement for reinstatement of his policy he was, and had been, suffering from a disease of the heart for more than one year, of which disease he died.

The issues of fact were presented by the pleadings as to the liability of the appellant company, and were submitted to a jury, which found in favor of the appellee, and judgment was accordingly rendered in her favor.

Counsel for the appellee contend, among other things, for affirmance of the judgment, that there was no motion for a new trial filed in apt time, and, there being no errors of law apparent on the face of the record, this court cannot review the proceedings in the trial court.

Final judgment was entered on the eighth day of April, 1929, and the court continued 'its session until April 17, 19’29, when the term expired. After the expiration of the term, and on July 15 following, appellant filed its motion for a new trial, it having, during the term and immediately after the verdict of the jury, prayed an appeal to this court, and on motion was given one hundred and twenty days to file a bill of exceptions. The record does not show that appellant filed a motion for a new trial during* the term, and a certificate of the judge appended to the transcript certified that no such motion Was filed. The attorney for the appellant made and filed his affidavit in which the following statement is made: “After the verdict was rendered in favor of the plaintiff in this court, I asked the presiding judge for time to file a motion for a new trial and to get up the bill of exceptions. He stated that he would give me 120 days, and I understood that he meant 120 days to file the motion for a new trial, and made no effort to file my motion until I had received the bill of exceptions from the official reporter. I am within the 120 days which I understood that I had been given by the presiding judge, W. D. Davenport. I am attaching a statement from Judge Davenport which speaks for itself.”

— The certificate as referred to is as follows-. - “This is to certify that on the day that the case of Sarah V. T. Brown against the National Benefit Life Insurance Company, No. 2721, Lee Circuit Court, was tried, and after the jury brought in its verdict for the plaintiff, the attorney for the defendant asked the court how many days would be allowed to file the bill of exceptions, and the court said 120, but made no record of it, as no motion for a new trial was filed during the term.”

The trial court had no authority to extend the time of filing the motion beyond the term, -and did not in this instance attempt to do so. Allen v. Francis, 171 Ark. 1187, 287 S. W. 182. The contention of the appellee is correct, and, for the failure to file the motion for a new trial in apt time, this court cannot consider alleged errors in regard to the lack of sufficient evidence to support the judgment, and granting and refusing instructions cannot be considered.

There appearing no errors of law in the record, the judgment must therefore be affirmed. It is so ordered.


author: McHaney, J.

text:
    Ragar v. State.
    Opinion delivered February 10, 1930.

      Clary & Ball and Duval L. Purkins, for appellant.

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

Appellant was convicted of assault with intent to kill and sentenced to five years in the penitentiary, on an indictment charging, in three counts, (1) an assault with intent to kill B. T. Hester by shooting him with a shotgun; (2) an assault with intent to kill Mrs. George Hester in the same manner, and (3) an assault with intent to kill George Hester in the same manner. To this indictment, a general demurrer was filed, and also a specific demurrer on the grounds that it charged three separate and distinct crimes, and was in effect three separate indictments for separate and distinct offenses; that appellant was entitled to know before the trial what crime he is charged to have committed; that it failed to apprise him of the manner and mode of the commission of the crime for which he would be tried; that appellant could not prepare himself for trial without knowing what crime was charged against him. There was also a motion to require the State to elect upon which one of the three counts in the indictment he would be tried, alleging for grounds substantially the same as set up in the specific demurrer. The court overruled the demurrers and motion to elect, the prosecuting attorney making the following- declaration of record: “The indictment No. 972 charges only one crime, one act of assault with intent to kill, and 'same having been committed by firing through a closed door into the room in which George Hester, Mrs. George Hester and R. T. Hester were, after threats having been made that the defendant was going to kill the whole family, the immediate threats before the shots having been addressed to Mrs. George Hester. The shotgun having been fired through a closed door, and having-struck It. T. Hester, George Hester and Mrs. George Hester not having been within the range of the discharge of the gun, and the defendant is apprised of the fact that he is placed upon trial for one crime of assault with intent to kill, and only one crime being- charged.”

For a reversal of the judgment of conviction appellant first says the court erred in overruling- the demurrers and the miotion to elect. We deem it unnecessary to set out the facts, as only questions of law are presented for our determination. The undisputed proof shows that appellant fired a shotgun through a closed door into a room where each iof the parties named into three counts of the indictment were. When the demurrer and motion to elect were presented to the court, the prosecuting attorney made the statement heretofore set out which specifically stated that the indictment charged only one crime. It showed that the State sought only one conviction. The indictment, while charging an assault on three people, refers to one transaction or to facts growing out of the same transaction, all taking-place at the same time, and, when taken in connection with the statement of the prosecuting attorney, shows that no possible prejudice could have resulted to appellant in overruling* the motion to require the 'State to elect. Nor was the indictment open to demurrer on the grounds stated. In State v. Jourdan, 32 Ark. 203, the court said: “If the prosecuting attorney, in drafting the indictment intended in fact tio charge but one offense, and inserted the second count to obviate uncertainty in the evidence as to the ownership of the animals, he should have stated that fact to the court, on the interposing of the demurrer, and made it appear of record.” That is exactly what the prosecuting- attorney did in this ease.

In 14 R. C. L., page 197, it is said: “It is universally held that an indictment or information may charge different offenses covered by the same transaction in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. The rule just stated has been applied to counts charging distinct felonies relating to the same transaction, with the qualification in some of the cases, that the felonies so charged are of the same grade and belong to the same family of crimes, and are subject to the same mode of trial and nature of punishment. It will be assumed that the intention was to charge but one offense, where all the counts are manifestly based upon one and the same transaction.” See also Clark’s Criminal Procedure, 2d ed. p. 338; Kelly’s Criminal Law of Procedure, 4th ed. p. 159; Joyce on Indictments, 2d ed. p. 668. In Kelly’s Criminal Law of Procedure, supra, the general rule upon the question is stated as follows: ‘ ‘ Where the several counts evidently refer * * * to one transaction and one offense, he will not be compelled to elect, and where it may be doubtful upon the face of the indictment whether the intention is to charge more than one felony, he will not be compelled to elect, if he will declare that the charges relate to one transaction, and that he means to convict on one felony only. ’ ’

We are therefore of the opinion that the indictment was not defective as against demurrer or on motion to elect, since it charged only one offense, and, even though on its face it might be said to charge separate offenses, yet, when taken in connection with the statement of the prosecuting attlo-rney, it charged only one offense, and the court did not err in overruling the demurrer and motion.

It is next said the court erred in giving instruction No. 15 as follows: “You are instructed that an assault is an unlawful attempt, coupled with the present ability to commit a violent injury upon the person of another, and yon are told in this case' that the actual hitting of the person is not necessary to constitute the crime charged, and if you believe beyond a reasonable doubt that the defendant at the time he fired the shot had in his mind the specific intent to kill either George Hester or Mrs. George Hester or E. T. Hester or all of them, and that, hadi death ensued, the crime would have been murder, defendant would be guilty of assault with intent to kill, even though the shot did not hit the one the defendant intended to kill, but did hit one of the mentioned parties whom the defendant did not intend to kill. ’

The evidence shows that appellant walked some distance away from the duplex apartment in which he and the Hesters lived in separate apartments, procured a shotgun, returned and fired through a closed door into the room where the three parties named in the indictment were, after having made the statement that he intended to kill the whole family, severely wounding E. T. Hester, a young man who was at home sick. Mr. Michie says: “Where one shoots into a crowd, not caring whom he may kill, with the intent to kill some one of them, it is an assault with intent to kill each of them.” Michie on Homicide, vol. 1, p. 285. In 30 C. J., p. 25, it is said: “Where a person fires into a crowd indiscriminately, with intent to kill some one, it is an assault with intent to Mil each of them.” In Scott v. State, 19 Ark. 156, 4 S. W. 750, the court said: “Doubtless shooting into a crowd is an assault upon each member of the crowd.” ('Citing cases).'

The instruction' complained of is undoubtedly correct in telling the jury that if appellant had the specific intent to kill either of the parties or all of them, and, had death resulted, the crime would have been murder, he would be guilty of assault with intent to kill, even though the shot hit one not intended to be killed. Mr. Wharton says: “Where a blow aimed at one person lighteth unon another and killeth him, this is murder. Thus. A,, haying malice against B, strikes at and misses him, but kills 0, this is murder in A.” 2 Wharton, Crim. Law, § 965, quoted in Lacefield v. State, 34 Ark. 275. The doctrine in that case is that where one, intending to kill A, shoots and wounds B, he cannot be convicted of assault with intent to kill B. But where he shoots into a roiom containing three persons with intent to kill one- or all of them, under such circumstances that if death had resulted it would be murder, then he would be guilty of the crime charged, whether he hit any one of them or not, or if he hit one not intended, because he did intend to kill one of them, and was so charged in the indictment. If he had been charged with assault to kill R. T. Hester only and the proof had shown that shooting him was accidental, that he intended to kill George Hester, then the rule announced in the Lacefield case and followed by many ethers since, down to Jones v. State, 159 Ark. 215, 251 S. W. 690, would apply.

This disposes of the complaint made as to the modification of two instructions requested by appellant, and given as modified. The modification made by the court simply made them harmonize with No. 15, which we have already found to be a correct statement 'of tbe law under the circumstances. We find no error, and the judgment is accordingly affirmed.


text:
    Martin v. State.
    Opinion delivered February 10, 1930.

      Cravens <& Cravens, for appellant.

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

The appellant was indicted for grand larceny in the usual form, the specific charge being that he did unlawfully and feloniously tafee, steal and carry away $1,600 in gold, silver and paper money of the value of $1,600, the property of Fay Sloan. There was a trial which resulted in a verdict of guilty. Judgment was rendered in •accordance with the verdict, from which judgment is this appeal.

The appellant assigns as error, first, that the evidence was insufficient to support the verdict, and that the trial court erred in giving instructions Nos. 1 and 2 at the instance of the appellee, and for refusal to give instruction No. 2 requested by the appellant. The testimony in this case is very confused, whether because the prosecuting witness, Sloan, was intoxicated at the time of the happening of the events, the circumstances of which he attempted to describe, or because of his unwillingness to fully and frankly narrate all the facts, we are unable to say. However, from his testimony and that of the other witnesses it is reasonably certain that $1,600 was obtained from him either by stealth or by trick or device. It appears that one Russell Cooper approached Sloan with the proposition that they would engage in a game of p'ofcer with an alleged millionaire oil man from Tulsa, Oklahoma, and by some means cheat him out of his money. The plan was that Cooper and the appellant, Martin, and Ray Sloan, the prosecuting witness, were to win the money from the supposed millionaire, Woodward, in the pioker game. It developed later that Woodward was a confederate of Martin and Cooper, while Sloan was the real victim. Tie was ■ induced to obtain from his wife $1,700, and with this, while intoxicated, engaged in the game with the parties named in a hotel room. In order to induce Mrs. .Sloan to let her husband have the money, Martin left a Chrysler sedan in her possession as security and gave her a key, which later turned out not to be a key to the ignition, but to the door of the car. Mrs. Sloan was to wait in front of the hotel in the car. At and during the game, Sloan deposited his money with Martin who was the stakeholder. The confederates would indicate to each other by signs the manner of their play, the effect of which was that Sloan consistently lost. There was evidence tending to prove that Sloan had given to Martin as stake-holder some six or seven hundred dollars, and kept about that much in his trouser pocket. After a time an altercation occurred and Sloan attempted to repossess himself of the money he had lost, and in the confusion which followed he either left, or was ejected from the room, and he then discovered that he had only $100 left. Mrs. Sloan had left the sedan, and had come into the room where the play was going* on, and, when the altercation occurred, Martin left the room, broke the glass out of the door to the sedan, entered it and drove away.

Cooper, Mai*tin and "Woodward were jointly indicted for the larceny of the $1,600. On the trial of the case the court gave instruction Nó. T to the jury, as follows:

“If you find from the evidence in this case beyond a reasonable doubt that the defendant Charlie Martin, in the Fort Smith District of Sebastian County, and within three years next before the filing of this indictment, gold, silver and paper money of the United States of the value of more than $10, the property of Ray Sloan, unlawfully and feloniously did steal, take and carry away, or, if you find from the evidence beyond a reasonable doubt that this defendant, within that time, and in the county, district and State aforesaid, was present when another person unlawfully and feloniously did steal, take and carry away, gold, silver and paper money of the United States of the value of more than ten dollars, the property of Ray Sloan, and that this defendant aided, abetted, assisted and encouraged another person to steal, take and carry away the said money, as aforesaid, then you should convict the defendant; otherwise, you should acquit him.”

To this instruction the defendant made a general objection, and now urges that the instruction was erroneous in that it failed to state that the money was taken without the consent of Ray Sloan. "We do not think that the instruction was erroneous, for the expression, “feloniously did steal, take and carry away, ” necessarily negatives the consent of the owner, especially when the instruction is read in connection with the instruction No. 3 as follows: “You are instructed that if you find from the evidence that the witness, Ray Sloan, bet money on a game of cards, intending at the time to part with the title and possession of the money, then the taking of the money, if you believe it was taken, regardless of how fraudulent, would not constitute larceny, and you should acquit this defendant. ’ ’ This instruction in effect told the jury that if Sloan voluntarily parted with the money intending to part with the title, then the taking of the same would not be larceny; and therefore the taking, if with his consent under those conditions, would not constitute the offense charged.

The second instruction given by the court, the giving of which is assigned as error, we think is a correct declaration of law and proper under the indictment, for it is never necessary to allege descriptive means by which the offense was committed. It might have been committed by any one of a number of ways. The instruction is as follows: “You are instructed that if you believe from the evidence in this case beyond a reasonable do-ubt that the defendant, Charlie Martin, obtained possession of the money mentioned in the indictment, olf the value of more than ten dollars, and that the possession of said money was obtained by trick or device, with the unlawful and felonious intent, at the time, to steal, take and carry away, and to convert the said money to his own use, and that you further find that at the time said Sloan parted merely with the possession of the money and not with the title of said money, then you should convict this defendant of larceny unless precluded from doing so by other instructions in this case.”

In the case of Coon v. State, 109 Ark. 346, 160 S. W. 226, cited by appellee, under an indictment like the one in the instant case, this court held that where several persons conspire to' cheat a man under color of a bet, and he merely deposits his money as a stake with one of them, not meaning thereby to part with the ownership therein, the persons taking the money are guilty of larceny. The proofs of such facts were properly admitted.

The third assignment of error is that the court erred in refusing to give instruction No. 2 requested by the ap,pellant, as follows: “If you believe from the evidence in this case that Mrs. Bay Sloan had possession, custody, or owned this money, and went to the bank and got the same and turned it over to Bay 'Sloan and Charlie Martin, anything that either one of them did with the money thereafter would not constitute larceny on their part.” Since the court had instructed the jury in instruction No. 1 for the appellant that the allegation of ownership was material and must be proved by evidence beyond a reasonable doubt, and that it was sufficient to allege ownership of the money in the person in whose possession the money was at the time of the alleged larceny, we think that the refusal to grant instruction No. 2, supra, was not error.

The most serious question in this case is the sufficiency of the evidence to support the verdict, but, viewing it in the light most favorable to the appellee and giving it its strongest probative value, we think there was substantial evidence to warrant the jury in its verdict.

The judgment is therefore affirmed.


text:
    Smith v. Beard.
    Opinion delivered February 10, 1930.

      W. O. Young, for appellant.
   Butler, J.

Mrs. Bub an Smith, an aged woman living in Benton 'County, Arkansas, on the 10th day of January, 1928, being the owner of a tract of land in said county, conveyed by warranty deed twenty acres of the same to her son, Ed Smith. A short time thereafter she died, and her remaining sons and daughters, and their representatives brought suit in the chancery court to cancel the deed for lack of mental capacity of the- grantor to execute the same, and for undue influence exercised by the grantee in the procurement thereof. After having heard the testimony in the case, the chancellor entered a decree in compliance with the prayer of the complaint cancelling- the deed, from which decree this appeal is prosecuted.

The appellant has abstracted only a part of the testimony, dismissing that olf Huel Smith with the statement that “his testimony could not be material.’ ’ As was held in the case of Power Mfg. Co. v. Arkansas Rice Growers Co-Op. Ass’n., 170 Ark. 771-6, 281 S. W. 379, the testimony of a witness cannot be ignored because of the mere statement that it is not important in the case, thereby substituting the opinion of counsel for that of the court, and, under the well-established rule, where the appellant has failed to< set out all the testimony in his abstract, it will be presumed that the decree is justified by the testimony given. Grimes v. McKee, 162 Ark. 196, 258 S. W. 134; Thompson v. Buchanan, 134 Ark. 361, 203 S. W. 1015; Bramble v. College Hill L. & T. Co., 149 Ark. 669, 232 S. W. 758.

We have examined the record in this case, and find that the testimony of Huel Smith was to the effect that he was a son of Mrs. Euban Smith, a very old woman, and that on the 9th olf January, 1928, he received a telegram stating that his mother was very ill, and for him to come home; that he reached home sometime in the night of the 10th, and saw his mother early on the morning of the 11th; that at that time she was so ill as to be incapable of recognizing'him; that he remained with her until she died a few days later, and that she had only been able to recognize him one time before she passed away. The evidence in the case shows that Mrs. Smith was a very old woman at the time of her death, and that she had been stricken with paralysis about five years before her death, and from that time on her physical condition was very bad, and her mind much affected. She and her son, Ed Smith, lived in the home together alone for some time after she was stricken — for about a year or a year and a half — when he married, and from that time he alid his wife continued to live with Mrs. Ruban Smith until a few months before her death, when she was moved to the home of one of her daughters. She suffered a second stroke just a few days before the execution of the deed in question,, and before her death. Her physician who attended her on the 9th of January, the day before the execution of the deed, stated that, while she was not crazy, she was not mentally capable of understanding the nature and effect of her act, and that her mind was as that of a little child.

There was testimony to the effect that Mrs. Smith had been requested to make a deed to her son, Ed, and that she refused to do so on the ground that Ed had not been treating her right. There was considerable evidence also, besides that of the attending physician, to show that Mrs. Smith’s mind was so impaired as to render her incapable of transacting any kind of business, and, while the evidence was conflicting on this point, there being other testimony to the effect that she was able to know what she was about and to realize the consequences of her act, and that she had intended to make the deed to Ed, we cannot say that the finding of the chancellor was against the preponderance of the evidence.

We are of the opinion that under the rule as stated in Kelly’s Heirs v. McGuire, 15 Ark. 603, the evidence is sufficient to sustain the holding that the execution of the deed was not the free act of Mrs. Ruban Smith. In that case it was said: “If a person, although not positively non compos or insane, is yet of such great weakness of mind as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility, the natural incapacity of "early infancy, the infirmity of extreme old age, or those accidental depressions which result from sudden fear, constitutional despondency, or overwhelming calamities. And, although there is no direct proof that a man is non compos or delirious, yet, if he is of weak understanding, and is harassed and uneasy at the time, or if the deed is executed by him in extrenvis, or when he is a paralytic, it cannot be supposed that he had a mind adequate to the business which he was about.”

As we have seen, Mrs. Ruban Smith had been a paralytic for five years, and on or about the 9th olf January, 1928, suffered a second stroke which was of such severity" as to cause apprehension of the imminence of her death. Her children were sent for, and, while she was lying in a helpless condition with the mind of a little child, her son, Ed Smith, procured the description of her property, and the drafting of the deed which she signed on the 10th of January, 1928, by her mark, and within a few days thereafter she died. Applying the rule above stated to the testimony believed by the chancellor, we think it was sufficient to warrant the conclusion reached. The decree is therefore affirmed.


author: Hart, C. J.,

text:
    Murray v. Jackson.
    Opinion delivered February 17, 1930.

      McMillen & Scott, for appellant.

      John E. Coates, Jr., for appellee.
   Hart, C. J.,

(after stating the facts). It is first contended that the court erred in allowing the wife of W. S. Mitchell to testify. The record shows that, before she commenced to testify, the court told the jury that her testimony could only be considered by it as to the claim of Mrs. Jackson, and could not be considered as to the claim of her husband. W. S. Mitchell and Mrs. Jackson brought suit together against Murray under § 1081 of Crawford & Moses’ Dig’est. When causes of action of a like nature or relative to the same question are pending, the court may consolidate said causes, when it appears reasonable to do so. So it will be seen that, if W. S. Mitchell and Mrs. Jackson had brought separate suits, it would have been proper for the court to have consolidated them for the purpose of trial. The same evidence was necessary for a recovery in each case, and to present the defense to the action. W. S. Mitchell was not financially interested in the recovery by Mrs. Jackson. Their respective interests in the result of the trial were entirely separate, and the court expressly limited the effect of Mrs. Mitchell’s testimony to the suit of Mrs. Jackson in recognition of the prohibition by the statute against testifying of the wife for or against her husband. The position of the parties was in no wise different than if separate suits had been brought by W. S. Mitchell and Mrs. Jackson and had been consolidated for trial.

This court has held that the fact that a husband and wife have .joint claims in an action does not prevent either of them from testifying in his or her own case, but that the testimony of the wife cannot be considered in the case of the husband, and the testimony of the husband cannot ¡be considered in the case of the wife. Little Rock Gas & Fuel Co. v. Coppage, 116 Ark. 333, 172 S. W. 885. In Bush v. Brewer, 136 Ark. 246, 206 S. W. 322, it was held that where two causes of action in behalf of two plaintiffs for personal injuries growing out of the same accident were consolidated, the wife of each plaintiff was not disqualified to testify on behalf of the other plaintiff. Hence, we hold that this assignment of error is not well taken.

The next assignment of error relates to the admission of testimony fpr the plaintiff Mrs. Jackson. It had been shown in behalf of Mrs. Jackson that her injuries were permanent, and that it was necessary to keep her in the hospital for some time with special nurses and a physician attending her daily. The hospital, nurses’ and physician’s bills amounted to something over $1,700. The defendant then introduced a physician as a witness who testified that he examined Mrs. Jackson at the hospital, that she could walk about while there, that it was not necessary to keep her there for so long, and that her injuries were not permanent. On cross-examination counsel for the plaintiff asked for whom he made the examination, and he replied that he did not remember, but believed that it was for an insurance company, and stated further that the Southern Insurance Company asked him to make a report on the case.

A reversal of the judgment was asked on account of the admission of this testimony. The claim is made that the cross-examination of the witness as to- who employed him was made for the purpose of showing that an insur.anee company was in reality defending the case, and that the cross-examination of the witness brought the case within the rule announced in Pekin Stave & Manufacturing Co. v. Barney, 104 Ark. 1, 147 S. W. 83. We do not agree with counsel in this contention. The testimony of the physician introduced by the defendant tended to contradict the testimony of the physician introduced by Mrs. Jackson as to the character and extent of her injuries and as to the necessity of expending the money that was expended for her for hospital bills and attendance by nurses and a physician. The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case. Because it chanced to show that an insurance company was back of the defendant to the action does not affect its competency. Caddo Transfer & Warehouse Co. v. Perry, 174 Ark. 1030, 298 S. W. 33; and Warner v. Oriel Glass Co. (Mo.) 8 S. W. (2d) 846, 60 A. L. R. 448.

The most serious assignment of error is that the judgment should be reversed because the court instructed the jury as follows:

“The court instructs the jury that where two vehicles approach or enter an intersection at approximately the same time, the one on the left shall yield the right-of-way to the vehicle on the right; but, however, where one vehicle has already entered the intersection, and the other vehicle has not, then the former vehicle has the right-of-way over the latter.”

It is claimed that this instruction is erroneous in view of an ordinance of the city of Little Rock, § 35, which reads as follows:

“Section 35. When two vehicles approach, or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in 37, 38 and 39.”

It is conceded that §§ 37, 38 and 39 apply to pedestrians, and that only § 35 applies in the case at bar. We do not think this assignment ctf error is well-taken. In the first place, this court has held that the g-eneral rules governing’ the movement of automobiles, except as changed by statute, are the same as those which regulate the movement of wagons and other vehicles. Hodges v. Smith, 175 Ark. 101, 298 S. W. 1023. In the absence of a statute or ordinance regulating the matter, it is the general rule that the vehicle entering an intersection of streets first is entitled to the right-of-way, and it is the duty of the driver of the other ear to proceed with sufficient care to permit the exercise of such right without danger of collision. Case notes to 21 A. L. R. 974, 37 A. L. R. 494, and 47 A. L. R. 595.

In Berry on Automobiles, 6th ed. vol. 1, § 1045, it is said that an automobile that enters the intersection of two streets first, is, generally speaking, entitled to the right-of-way; and it is the duty olf a motorist approaching at right angles to avoid colliding therewith. Again, in the same se: tion, on page 891, the same author says that under a statute or ordinance giving right-of-way at intersections to the vehicle approaching from the right, if the vehicle approaching from the left arrives at the intersection when it is apparent that it can safely cross before the other vehicle arrives, it may proceed to- do so; the rule as to right-of-way not applying in such instance.

It is plain that the ordinance was passed to obviate the confusion which would result if there was no rule on the subject where automobiles approach each other at intersecting streets in such a manner that, unless one of them gives wny, a collision will result. The ordinance does not give the automobile approaching from the right the right-of-way where the automobile approaching from the left enters the intersecting’ street first, and proceeds across it before the other automobile reaches the intersection of the street.

According to the testimony of Mrs. Mitchell, she looked up and down the street -before starting across Broadway, and had got a part of the way across it before she saw the automobile of the defendant coming north on Broadway at a rapid rate of speed. She'was driving her car slowly, and a witness who had stopped his car, as required by ordinance, before starting across Broadway from the east side, testified that the driver of the defendant’s car could have avoided striking Mrs. Mitchell’s car if he had turned this car as much as two feet. According to this testimony, Mrs. Mitchell was not guilty of contributory negligence, and was not in violation of the ordinance. According to the testimony, she had entered the intersection first, and she had a right to continue across the street, and had the right-of-way over the defendant’s automobile. This is in recognition of the general rule on the subject announced above. The instruction as given by the court was not contradictory. The first part of the instruction announces the general rights of the parties under the ordinance, and the other curtails that right upon the finding- of certain facts by the jury. In other words, the ordinance gives the right-of-way to the automobile approaching from the right, if the two automobiles approach the intersection at right angles at approximately the same time; but this rule does not govern where the automobile on the left enters the intersection first, and the driver of it, in the exercise of reasonable care, has the right-of-way to continue across the street. Otherwise, he would have to stop in the middle of the street upon any other automobile approaching the intersection from the right. In this view of the matter, the two parts of the instruction supplement one another and do not at all conflict. The instruction, as a whole, submits the respective theories of the parties under the evidence adduced before the jury.

It is contended however that this view of the matter gives the wrong meaning- to the word ‘'‘intersection,” as used in the ordinance. The ordinance provides that, when two vehicles approach or enter an intersection at approximately the same time, the driver in the vehicle on the left shall yield the right-of-way to the vehicle on the right. This does not mean that the intersection is the place or point where the two automobiles would meet if they continued on their course; or, in other words, it does not mean the point where the middle or center line of the two streets would cross each other. The word “intersection,” as used in the ordinance, means the space occupied by the two streets at the place where they cross each other. It is the whole space between the lines of the two streets. As said in Neuman v. Apter, 95 Conn. 695, 112 Atl. 350, 21 A. L. R. 970, the term “intersection,” as used in the ordinance, means the space olf the street common to both streets.

In Varley v. Columbia Taxicab Co., 240 S. W. 218, it was held by the Supreme Court of Missouri that, under an ordinance giving vehicles traveling in an east and west direction the right-of-way, there was no conflict between instructions that, if one defendant was westbound and the other southbound, the first defendant had the right-of-way, and instructions that the ordinance did not apply to one driving at an unlawful rate of speed, and that it did not apply under all circumstances and on all occasions, but that the vehicle reaching the intersection first was entitled to the right-of-way, as the first simply announced the rule, and the others curtailed the general right.

No other errors are urged for a reversal of the judgment, and it will be affirmed.


author: Smith, J.

text:
    Kibler v. Kibler.
    Opinion delivered February 17, 1930.

      G. M. Wofford, for appellant.

      G. R. Starbird, for appellee.
   Smith, J.

Mrs. Georgia Kibler brought this suit ah the natural guardian and nest friend of her infant son, Burl Kibler, to annul his marriage to Harriett Harned Kibler, who was also an infant, and for whom a guardian ad litem defended. There is no substantial conflict in the testimony, and it was to the following effect.

Burl Kibler is a minor, and became sixteen years of age on June 5, 1928, and on the 29th of August, 1928, was married to Harriett Harned, a girl of about his own age. Friends and relatives of the girl met the boy in the absence of his mother, or other friends or relatives, and accused him of having seduced the girl, who was about to become a mother, and he was threatened with prosecution if he did not marry her. He did not deny the charge, and consented to marry, and a marriage license was procured, and the ceremony performed.

The cancellation of the marriage is prayed on account of the alleged duress, and the non-age of the boy, and he has confirmed the action of his mother in bringing this suit, as is evidenced by the testimony which he gave. He testified that he did not want to marry, and only consented to do so because of the threats of prosecution. But this plea is unavailing, as was said in the case of Jacobs v. Jacobs, 146 Ark. 49, 225 S. W. 22: “This court has held that, if a man seduces a woman, and marries her through fear of the consequences of his crime, the marriage nevertheless will be valid, and the child will be legitimate. Honnett v. Honnett, 33 Ark. 156; Marvin v. Marvin, 52 Ark. 425 [12 S. W. 875, 20 Am. St. 191].”

This suit was filed January 11, 1929, at which time a child had been born, but its father was even then under the age of seventeen years, and the court, after finding that there had been no duress, further found that the right of action, if any existed, is personal to the plaintiff, and cannot be maintained by a guardian or next friend.

Section 1111, C. & M. Digest, reads as follows: “The action of an infant must be brought by his guardian or next friend; any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend. ’ ’

This suit was therefore properly brought by the mother 'of the boy as his natural guardian and next friend, but it is, of course, his suit, and, as we have said, his testimony in the case shows that it was brought with his consent and for his benefit.

Did he have the right to maintain this suit, and must he wait until he has attained full age before doing so ?'

Answering the last question first, it may be said that there are many cases holding that an infant cannot annul and have his marriage canceled on account of his non-age until he has attained his majority; but we think the better considered cases hold to the contrary. Indeed, we think the correct rule is that he may, after attaining the statutory age at which he may be lawfully married, yet while still a-minor, ratify his marriage, and be thereafter estopped to question its validity on account of his minority, but he may, through his guardian or next friend, so long as-he is of non-age,-require the court having jurisdiction to annul it.

Section 7037, C. & M. Digest, reads as follows: “Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the age of fourteen years, shall be capable in law of contracting marriage; if under those ages their marriages are void.”

There are States having similar statutes, in which it is held that a marriage by an infant below the age fixed by the statute at which an infant may be married is void; and, that no sentence or decree of a court is necessary to cancel it; but this is not the case under our statute -which we have quoted, because it must bo construed in connection with $ 7041, C. & M. Digest, which reads as follows: “When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.”

When these statutes are read and construed together, as they must be, the word “void,” appearing in § 7037, C. & M. Digest, must be held to mean “voidable,” and the marriage of an infant of non-age creates the relation and imposes the obligations of a husband or a wife until its nullity shall be decreed by a court of competent jurisdiction.

In the case of Walls v. State, 32 Ark. 565, the facts were that the defendant Walls married at the age of fifteen, and, without being divorced, was married a second time, and was indicted for bigamy on account of this second marriage, and was in his twenty-first year at the time of his trial. He defended upon the ground that his first marriage was void, and that his second marriage was therefore not bigamous; but the court held that the fact that he was within the age of legal consent when his first marriage was contracted was no defense when it was not also shown that it had been annulled by a court of competent jurisdiction.

At § 33 of the chapter on Divorce and 'Separation in 9 R. C. L., page 273, it is said: “Continued cohabitation of the parties after reaching the age of consent validates the marriage, and it cannot thereafter be annulled. 'But the fact that the parties cohabited together before the complaining party reached the statutory age is not generally ground for denying a decree of annullment. It is usually recognized that an infant is not concluded ,by false representations of his age so as to bind him by a contract with him entered into on the faith of such representations. And, according to the better view, an infant incapable for want of ag-e of entering into a valid marriage is incapable also of estopping himself by a fraudulent declaration of his age from asserting its invalidity in an action to annul it brought under a statute with the sole proviso that there must have been no voluntary cohabitation after the attainment of the age of consent. On the question as to when a suit may be brought to annul a marriage for want of legal age on the part of the complainant, there is some support, especially in the early cases, for the position that the complainant cannot be heard to assert this right until he or she has reached the- age of legal consent. According to the prevailing and better view, however, a party marrying before the legal age of consent may disaffirm the marriage 'before reaching that ag*e, and avoid it in toto, and a suit for its annullment may be brought through a guardian before the legal age is attained. On principle, this view seems both logical, and in accord with public policy. The marriage is, so to speak, on condition subsequent, the condition being its disaffirmance by a party thereto, and annullment thereof by the court from the time named. If the plaintiff had capacity to become a party to such imperfect and inchoate or conditional marriage, he or she should have capacity to disaffirm it at any time thereafter, before it has ripened into an absolute marriage, by invoking the authority of the court to annul it. ’ ’

In the note to the text quoted annotated cases are cited, which themselves cite numerous cases in point which sustain the text.

In the annotator’s note to the case of Hunt v. Hunt, 23 Okla. 490, 100 Pac. 541, 22 L. R. A. (N. S.) 1202, it is said: “And it is generally held that statutes fixing the ages at which persons ‘may be joined in marriage’ or ‘may lawfully marry,’ or which prohibit the celebration of a marriage where the parties are under the prescribed ages, do not have the effect of making a marriage contracted without the statutory requisites void, but merely voidable; unless avoided, the relation remains valid. Koonce v. Wallace, 52 N. C. (7 Jones L.) 194; Holtz v. Dich, 42 Ohio St. 23, 51 Am. Rep. 791; and State ex rel. Scott v. Lowell, 78 Minn. 166, 46 L. R. A. 440, 79 Am. St. Rep. 358, 80 N. W. 877.”

Now, while the minor has the right to have his marriage annulled, he does not thereby rid himself of his obligations to his child. These continue, and his duty to this child may he enforced by appropriate orders of court.

Section 3475, C. & M. Digest, reads as follows: “The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate. ’ ’

In construing the statute just quoted, we held that children of a marriage void because the father had a former wife living are legitimate, and entitled to inherit from their father. Cooper v. McCoy, 116 Ark. 501, 173 S. W. 412; Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L. R A. 1916C, 759.

iSo here, we hold that, when this minor contracted a voidable marriage, he assumed the same obligations which the law imposes upon an adult, so far as issue is concerned, and while the law permits him to be relieved of his obligations as a husband, it does not relieve him from those of a father.

A minor who is of sufficient age to be criminally responsible is liable for his torts, and may even be liable for punitive damages as an adult person, and satisfaction thereof may be had out of his estate. And what greater wrong can an infant commit than to seduce another? Moore v. Wilson, ante p. 41, 20 S. W. (2d) 310.

"While the law permits an infant to throw off the obligations of a husband, contracted through a marriage while of non-age, there appears to be no policy which relieves him of his obligations as a father.

It is insisted that the relief prayed should be denied, because the minor has -come into -court with- unclean hands, and that it is inequitable to -grant him this relief.

A similar -contention was made- in the case of Swenson v. Swenson, 179 Wis. 536, 192 N. W. 70. A child was born in that case of a marriag'e contracted while the father was under age prescribed by the laws of the State of Wisconsin, and there was an appeal from a decree annulling the marriage, but providing for the maintenance of the child. For the reversal of this decree it was insisted that the court had erred: “Because the marriage will not he annulled as a matter of right to plaintiff; (b) because plaintiff did not come into court with clean hands; (c) because plaintiff is estopped by his conduct to question the validity of the marriage; and (d) becansé in divorce actions the State has a substantial, well-recognized interest, and a court cannot lend its assistance in perpétrating a fraud upon a party.”

In overruling these contentions the Supreme Court of Wisconsin said: “It is argued on behalf of the defendant that the language of § 2351, ‘a marriage may be annulled for any of the following causes,’ is permissive; that it therefore vests in the court a discretion to say whether or not a marriage, where one or both of the parties is below the age of consent, should or should not, depending upon the circumstances of the case, be annulled. ,A moment’s consideration is sufficient to establish the invalidity of this contention. The statute is not one conferring jurisdiction upon the court. It is one defining and establishing the rights of parties. If a party plaintiff by sufficient proof establish his right to have his marriage annulled under the provisions of § '2351, and the court refused to grant the relief, the court would he just as much in error, as it would be if it refused to grant a divorce under the provisions of § 2356, assuming that cruel and inhuman treatment was by the finding of the court, duly and properly established. The only condition attached by the statute to the right of a party to have a marriage voidable for non-age of one or both of the parties annulled is that the marriage shall not have been confirmed by the party seeking the relief after arriving at the age of consent, which in the case of the wife is 15 years and in the case of the husband 18 years.”

We think onr statute should receive a similar construction, and the duty of the court to annul the marriage is plain, because the party asking it was under the age required by law for contracting a valid marriage when this relief was prayed, and the decree of the court below must be reversed, and the cause will be remanded, with directions to enter a decree conforming to this opinion. We do not ourselves render this decree, because the court may find it necessary to make some provision for the maintenance of the child, and it may be necessary to hear testimony in that behalf.

Hart, O. J., dissents.


author: 'Smith, J.

text:
    Kendrick v. State. Post v. State.
    Opinion delivered February 17, 1930.

      G. C. Garter and Dave Parta/in, for appellants.

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

Appellants were separately indicted, tried and convicted for selling intoxicating liquors, ¡but the issues raised on their separate appeals are so nearly identical that a single opinion will suffice to dispose of both cases.

A motion was filed in each case for a change of venue, and the supporting affidavits appear to have been made by the same affiants in each case. There were sixteen of these affidavits, but only ten of the affiants were examined on the hearing of the petitions. These affiants gave testimony to the following effect. The death of the sheriff made a special election necessary to select his successor. Mack Ledgerwood, who was one of the candidates (for the office, secured the nomination, and was elected, and it was currently stated during the campaign preceding the primary that if Ledgerwood were elected he would send both defendants to the penitentiary. This statement was repeated all over the county, and with such frequency that it became one of the principal issues in the campaign.

Most of this testimony related to the state of the public mind in the townships of “White Oak, Hogan and Alix, but it was shown that all the cities and towns of the Ozark District of the county (in which the venue was laid) were in these three townships, and that they were the most populous townships in the county, and contained about half the population olf that district of the county. The testimony was not confined, however, to these three townships. One of the affiants lived in Watalula township; another in Middle township; another in Wallace; and still another in Mulberry township, and all these affiants testified that the talk was general all over the county that if Ledgerwood were elected sheriff he would send both defendants to- the penitentiary, and for this reason they were of the opinion that defendants could not obtain a fair and impartial trial in that county.

In the recent case of Mills v. State, 168 Ark. 1009, 272 6. W. 671, it was said: "The rule by which the trial court should be governed in passing upon an application for a change of venue in a criminal case was restated by this court in the recent case of Spurgeon v. State, 160 Ark. 112, 254 S. W. 376, where we quoted from the case of Whitehead v. State, 121 Ark. 390, 181 S. W. 154, as follows: 'The trial court exercises a judicial discretion in passing upon the credibility of the affiants, but its discretion is limited to that question. When the petition for change of venue is properly made and supported, the court has no discretion about granting the prayer thereof, whatever the opinion of the court may be as to its truthfulness. The statute provides no method by which the court may determine the credibility of the affiants, but leaves the question to the court. A number of cases, however, have approved the practice of calling the affiants and examining them as to the source and extent of their information, for the purpose of ascertaining whether or not they have sworn falsely or recklessly without sufficient information as to the state of mind of the inhabitants of the county as to the accused. But the cases also hold that the statute on this subject does not contemplate that the truth or falsity of the affidavits shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to that question.’ ”

Applying this test to the testimony of the affiants, we think the court was not warranted in finding that they had sworn so recklessly, or had so little foundation upon which to base their opinion as not to be credible persons. If their opinions were correct, and they gave a plausible basis upon which they were founded, the public mind was so inflamed against the defendants, and this inflammation was so wide spread, that the affiants were not open to the charge of having sworn so recklessly as to be unworthy of belief.

It follows, therefore, that the venue should have been changed in each case. See, also, Sisson v. State, 168 Ark. 783, 272 S. W. 674.

In the case of appellant, Post, the facts were that the trial judge had directed the sheriff to deny bail, and when formal application for bail was made it was refused. In justification of this action the court held, that Post was in contempt of court, in that he had boasted to the sheriff, in a tone that could be heard by the court, that he could make bond up- to fifty thousand dollars, and further that it was common talk around the court, and the court offices, that Post had stated that he would make bail, but would not be present when his case was called for trial.

It was not improper for the court to investigate the report that Post had stated that he would abscond and forfeit his bail,- but the purpose of this inquiry should have been to ascertain what amount of bail should be required if the report was found to be true, and, if found to be true, the court might have fixed bail in a larger sum than would have otherwise been required. But, even so, the offense charged was a felony, punishable only by imprisonment in the penitentiary, and the accused had the legal right to.give bond for his appearance, and the denial of this right was not conducive to securing a fair trial.

After the jury in the Kendrick case had been considering of their verdict for some time, they returned into court and stated that the jury had stood six to six, but were then divided seven to five, and one of the jurors stated that “It don’t look like we can ever agree.” Thereupon, over the objection of defendant Kendrick, the court charged the jury as follows: ‘ ‘ Gentlemen, I held one jury one time here six days, and they agreed. I have never started out with a jury that they didn’t agree. I have discharged juries because I thought something was wrong. I discharged one awhile ago, because I thought there was something wrong, and I am going to have a hearing- to see about it.”

We have many times held that the trial court had the right to give cautionary instructions on the duty and necessity of juries agreeing upon verdicts, and have not reversed in such cases unless it appeared, that the instruction was coercive in its character. The instruction set out aJbove appears to be of that -character, for its purport was that no jury would be discharged until a verdict was returned, unless the court, “thought - something was wrong.” The jury was therefore confronted with the alternative of being kept together indefinitely or olf being investigated if a verdict was not returned, and the instruction was therefore calculated to induce the jurors to make such concessions as were necessary to arrive at a verdict, and the instruction was therefore, erroneous. Stockton v. State, 174 Ark. 472, 295 S. W. 397.

The .jury in the Post case also disagreed, and the juries in both case-s were brought into open court, whereupon the court charged the juries orally in the presence of each other over the objections of both defendants, as follows: “Gentlemen of the jury, these are two of the most important cases that have been tried in this court; this is a crucial time; the law enforcément olf Franklin County depends on the outcome of these two trials. You can go out and convict them or acquit them, whichever you see fit. I hope you can get a verdict.”

We think, under the circumstances, this instruction was erroneous, and prejudicial in both cases. There was no connection between these cases except that the offense charged in each indictment was the same. The jurors were no doubt familiar with the proceedings, which had previously occurred in the court, and the statement that “the law enforcement of Franklin County depends on the outcome of these two trials” appears to be not only a charge upon the facts, but also to carry an intimation that a verdict of guilty should be returned. The language quoted is followed by the statement that “You can go out and convict them or acquit them, whichever you see fit,” but that qualification must be construed in connection with the strong language which preceded it. The instruction recognized the power of the jury to acquit or convict, but it told the jury that the exercise of that power was crucial, in that upon the proper exercise of the power depended the enforcement of the law in that county. The import of the language appears to be too plain to be mistaken. The implication is that if the jurors were good citizens, and favored law enforcement, they would return a verdict of guilty. We are sure the learned trial judge was actuated by the laudable motive of attempting to enforce the law, but we think his zeal in this behalf led him to overstep the bounds. Trial .judges are not permitted to express an opinion upon questions of fact, or to indicate to juries what in their opinion the verdict should be. However great the exasperation of the trial judge may be that juries do not return the verdict which the law and the testimony would seem to require, they must restrain themselves, and refrain from giving any instruction which contains a charge upon the weight of the testimony. 'Section 23, Article 7, Constitution.

The instruction which we have just criticized does not appear in the bill of exceptions approved by the court, but does appear in the bill of exceptions made by bystanders, and as there is no controverting affidavit it must be said, as was said of a similar record in the case of Rebecca v. State, 158 Ark. 265, 250 S. W. 513, that “we are therefore compelled, under the statute, to accept them as a correct statement of the language used by the court. Wingfield v. State, 95 Ark. 71, 128 S. W. 562.” See also Cox v. Cooley, 88 Ark. 350, 114 S. W. 929; Boone v. Holder, 87 Ark. 461, 112 S. W. 1081, 15 Ann. Cas. 735.

In the Kendrick case it is insisted that the testimony is insufficient to support the verdict, in that it shows only what the testimony off the prosecuting witness was before the grand jury. We do not so understand the testimony. The witness was an unwilling one, and most of his examination related to his testimony before the grand jury, but we understand the purport of the testimony at the trial from which this appeal comes to be that the testimony which the witness had given before the grand jury, to the effect that he had bought liquor from appellant, was true. The truth of the testimony of this witness at the trial was, of course, a question for the jury.

Certain other errors are assigned and discussed, but as they relate to matters which are not likely to recur, we do not discuss them, but for the errors indicated the judgments must be reversed in both cases, and it is so ordered.

Hart, C. J., concurs upon the ground, that the instructions were erroneous and prejudicial.

Kirby,-J., dissents.


author: KiRby, J.

text:
    National Life and Accident Insurance Company v. Robinson.
    Opinion delivered February 17, 1930.

      Snodgress S Snodgress, for appellant.

      Oscar Hunt Winn, for appellee.
   KiRby, J.

It was alleged that the policy was issued on August 9, 1926, insuring the life of Tom Hunt, the amount of the policy, that all payments of premiums had been duly made, the death of the insured on December 14, 1926, proof of loss, and a refusal to pay same by the company. A copy of the policy was exhibited with the complaint.

A demurrer to the complaint was overruled, and a motion to make more definite and certain was granted and complied with, and an answer was finally filed admitting the issuance of the policy, the payment of premiums and setting up a provision in the policy: “No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health, ’ ’ with the allegation that the insured at the time the policy was issued was afflicted with dropsy, and abscess of the liver and had been so afflicted for a long period of time; that the company would not have issued the policy if it had known of his condition and because of it denied liability thereon.

The cause proceeded to trial, and the jury was instructed and a verdict rendered in favor of appellee for the face of the policy, penalty and attorney’s fees. No abstract of the testimony of any but one witness for appellee is furnished the court nor any of the instructions given upon the trial except one No. 1. There are many assignments of error in the motion for a new trial, but it is only insisted for reversal that the court erred in admitting the testimony of the beneficiary to the effect that the policy sued on was issued by the company in lieu of its policy that had long been held and paid on by the insured, which had been destroyed in a fire that burned his home; and also in refusing to grant a continuance upon the introduction of such testimony and giving the instruction complained of relative thereto. No objection was made by appellant when the testimony was introduced about the issuance of the policy sued on as a substitute for or in lieu of the same kind of policy that had been held by the insured at the time of its destruction in the fire. Appellant’s counsel cross-examined the witness exhaustively relative to this matter, and, as said, made no objection to its introduction until after appellee’s evidence in chief was all introduced, when lie moved to exclude the testimony because of surprise and its incompetency, there being no allegation of the fact in the complaint, and asked a postponement or continuance of the case to give him an opportunity to meet this proof.

The action was necessarily based upon the policy issued and held at the time of the death of the insured, and the testimony tending to show that this policy was issued in lieu of or as a substitute for the other policy that had been held by the insured until its destruction by fire was competent, and, of course, if it was issued by the company in lieu of its valid policy held by the insured at the time of its destruction, there was no • reason to say that it would not be valid, regardless of the provision that it created no obligation for the company unless the insured ivas alive aud in sound health at the date of its issuance, since it only took the place of or evidenced the liability of the company under the valid contract of insurance that had been destroyed in the fire. In any event there was no attempt on the part of the insurer to show that it did not issue any such policies under the conditions disclosed by the evidence attempting to show its issuance of the substitute policy, except upon such conditions as new policies were issued. The court did not err in telling the jury that, if this policy was issued to restore the lost polic3r, it made no difference whether the deceased was in sound health or not when the last policy was issued. The burden of proof was upon the appellant company, having- admitted the issuance of the policy sued on, to show its invalidity, and it has wholly failed to make an abstract of the testimony heard in the case, save that of the witness and the instruction given by the court, none other of which are complained of. The presumptions must necessarily all be in favor of the verdict, and the judgment will be affirmed. Files v. Tebbs, 101 Ark. 207, 142 S. W. 159.

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


author: Mehabby, J.

text:
    Taylor v. Cheairs.
    Opinion delivered February 17, 1930.

      John Baxter, for appellant.

      P. L. Neville and J. T. Cheairs, for appellees.
   Mehabby, J.

This suit was begun in the Drew Chancery Court by W. E. Taylor, State Bank Commissioner in charge of the Bank of Commerce, MeGehee, Arkansas, an insolvent banking corporation, against John T. Cheairs, Jr., and wife, seeking’ to foreclose a mortgage given by Cheairs and wife to the MeGehee Yalley Bank, and later transferred to the Bank of Commerce.

John T. Cheairs, Jr., on the 8th day of March, 1920, made a promissory note to the MeGehee Yalley Bank for $9,000, said note being payable on tbe 15th day of November, 1920, and bearing interest at 10 per cent, per annum. To secure the payment of said note, John T. Cheairs, Jr., and wife executed to the McGehee Yalley Bank a mortgage on certain property located in the town of Tillar, Drew County, Arkansas.

Appellant alleged that two payments had been made and credited on said note, one of $202.86 on the 23d day of March, 1922, and $150 on the 15th day of February, 1927,

The McGehee Yalley Bank failed, and its assets were taken over by. the State Bank Commissioner for the State of Arkansas, and sold to the Bank of Commerce in January, 1922.

The appellant alleged that the defendants, John T. Cheairs, Jr., and Maye K. Cheairs, made, executed and delivered to Mrs. J. E. Kincannon a purported deed to part of the property described in the complaint, said deed purporting to have been executed on the 29th day of March, 1927. It was alleged that said deed was executed without consideration, and for the purpose of hindering and defrauding defendant from the collection of the debt. Mrs. Kincannon is the daughter of John T. Cheairs. The appellant prayed that the deed to Mrs. Kincannon be set aside and that its mortgage be foreclosed.

The appellees, John T. Cheairs, Jr., and wife, filed an answer and cross-complaint. They denied the payments credited on the note, and denied that they were the owners of the property. They alleged in their cross-complaint, that the $150 credit on the note was fraudulent, and that it was not a payment made on the note sued on.

In March, 1924, John T. Cheairs, Jr., executed and delivered to the Bank of Commerce of McGehee, Arkansas, a chattel mortgage to secure a note of $5,464.60. Said note was payable December 27, 1924. Among other property included in said mortgage was a certain mule which was afterwards killed by a train of the Missouri Pacific Railway Company, and the company paid to Cheairs $150, which he gave to the cashier of the bank.

It is also alleged in the cross-complaint that no credits, of any sum whatever were ever placed on the margin of the records in Drew County; that the property included in the real estate mortgage was the homestead of John T. Cheairs, Jr., and wife, and appellees also pleaded the statute of limitations.

Mrs. Kincannon also filed answer in which she alleged that she was the owner of the property, having purchased it from John T. Cheairs and his wife.

The chancellor found that appellant’s cause of action was barred by the statute of limitations, and dismissed the complaint and, to reverse this decree, this appeal is prosecuted.

The appellant first contends, that the debt was not barred by the statute.of limitations; that the credit of $150 made on February 16, 1927, was a payment on the note sued on, and that this payment had the effect of taking the action out of the statute of limitations, and that it was a new promise and acknowledgment of the debt.

The evidence as to the payment of the $150 is conflicting. The preponderance of the evidence, however, supports the finding of the chancellor.

The special deputy bank commissioner, H. A. Daugherty, testified that he took charge of the Bank of Commerce on the '27th day of June, 1927, and was the custodian of all the assets of the bank, and that he found among the assets of the bank the note and mortgage sued on. He testified that the credits were indorsed on the note as shown in the complaint at the time he took charge. The original note and mortgage were introduced. He also testified that they held a chattel mortgage given by Cheairs, and small mortgages indorsed and signed by Cheairs. They held a chattel mortgage against Cheairs which covers other indebtedness, and there was no credit on any other indebtedness of the $150.

I).- 0. O. Cleveland testified that he lived at Dermott, and was cashier of the Bank of Commerce from 1925 until it closed its doors in 1927; that Mr. Cheairs handed him the Missouri Pacific Railway check for $150, and that he credited it on the note. When asked if Cheairs made any contention at this time that the bank had any mortgage on a mule, this witness testified that he did not until this suit was brought. When asked if he had ever had any conversation with Cheairs with reference to the payment of any other note, he said, “nothing special.” This note, meaning the real estate note, was the one he was more interested in than any others, because he said it was his understanding that it was the only note which the bank had which had any security behind it.

This witness said that when Cheairs handed him the Missouri Pacific check he told him to credit it on the note, and said nothing about a mule note, and that he did credit it upon the real estate note. At the time the bank closed Cheairs owed the bank more than $11,000, besides the realty note and mortgage.

Cheairs testified that included in one of the mortgages that he executed to secure the payment of a certain note to the bank was a mule, and that this mule was killed by one of the trains of the Missouri Pacific Railway Company, and that the railway company paid him $150, and he turned that over to the cashier of the bank. He also testified that he saw the cashier after the mule was killed, and before he collected for it, and told him about the railroad train having killed the mule, and that as soon as he received the voucher he would turn it over to him, and that he did thereafter turn it over to him and told him to credit it on the mule note.

Other witnesses testified about the mule that was killed, described it and gave its name, and the mule they described with the name given by them was included in the chattel mortgage of Cheairs to the bank. Among others who testified to this was Mr. Lusk, the section foreman.

If Cheairs had given the Missouri Pacific check, and stated to him what the cashier says he did, that is, credit this on my note, this would evidently have been understood to mean the note secured by the mortgage on the mule. But, as we have said, the preponderance of the testimony shows that it was the intention to pay this on the note secured by the chattel mortgage, and the bank therefore had no right to indorse this credit on the other note. But it is contended that when the chattel mortgage was given by Cheairs on March 29, 1924, this mortgage was a new promise and an acknowledgment of the debt.

The mortgage contained the following clause: “It is understood and agreed by and between the grantor and the grantees herein that this mortgage is not given in settlement of any former indebtedness, but is to secure a new debt as herein set forth; and that this mortgage also is given to secure all other and further indebtedness whether incurred heretofore or hereafter until full and final settlement,” etc.

The chattel mortgage also contained the following, after reciting* the several notes mentioned, aggregating the $5,464.60 due November 1, 1924:

“And this mortgage being given to secure the payment of, not only said notes, any and all renewals thereof, but also any and all other and further indebtedness, whether original or by indorsement, which grantor or either of them may assume, guarantee or contract to pay to the grantee for any loans, advanced, indorse-ments, credits, overdrafts, or acceptances, made prior to the foreclosure or satisfaction of this mortgage, and all just charges made against the grantor; it being the intention of the parties that this mortgage shall secure all present obligations and all future obligations made prior to the foreclosure of this instrument.”

And another clause is contained in said mortgage, and relied on by appellant as follows:

“To the discharge and satisfaction of all indebtedness and obligations held by grantees against the grantor or either of them.”

And it is contended that the mortgage given March 29, 1924, in which the above clauses appear, is a new date from which the statute of limitations would ruu on all the indebtedness, including the note in controversy. It is contended that this was a new promise, and broad enough to cover all indebtedness owing by Cheairs to the Bank of Commerce.

In support of this contention appellant cites and relies on the case of Kelly v. Telle, 66 Ark. 464, 51 S. W. 633. The note sued on in that case was barred by the statute of limitations before the beginning of the suit; that is, more than five years had elapsed and no demand had been made. The suit was begun on the 6th day of October, 1893, more than five years after the execution of the note. But on the 8th day of February, 1890, Telle addressed a letter to the payee of the note in which the court said that he definitely and unconditionally admitted the execution and validity of the note sued on, and, in effect, definitely promised to pay the amount according to the legal tenor and effect thereof. And, for that reason, because he had definitely and unconditionally admitted the execution and validity of the note and definitely promised to pay the amount, the court held that this furnished a new date from which the statute ran, and that the bar had not attached when suit was instituted.

We do not think, however, it can be paid that there was any definite promise to pay here or any acknowledgment of the indebtedness involved in this suit. Written instruments must be considered as a whole and the intention of the parties ascertained.

The first clause mentioned by appellant in the mortgage is as follows: “It is understood and agreed, by and .between the grantor and the grantees herein, that this mortgage is not given in settlement of any former Indebtedness, but is to secure a new debt as herein set forth; and that this mortgage also is given to secure all other and further indebtedness whether incurred heretofore or hereafter until full and final settlement.”

It could not have been the intention of the parties to secure the note sued on when they had expressly stated that it was not given in settlement of any former indebtedness, but to secure a new debt as therein set forth. When the whole clause is considered, it was manifestly the intention of the parties not to include any former indebtedness, but to secure the new debt as therein set forth.

The next clause relied on by appellant reads as follows:

“It being the intention of the .parties that this mortgage shall secure all present obligations and all future obligations made prior to the foreclosure of this instrument. ’ ’

All present obligations meant obligations created at that time, because it has already been stated in the mortgage that it was not given in settlement of any former indebtedness. And, when the three clauses relied on by appellant are construed together, the conclusion that the debt sued on in the instant suit was not intended is inevitable.

Appellant also calls attention to and relies on Conley v. Archillian, 146 Ark. 64, 225 S. W. 5. The court said in that case: “It is insisted that one of the notes sued on was barred’by the statute of limitations. 'But this is not true if the payments of interest were made as testified by Conley. Moreover, before the bar of the statute had fallen, the deed from J. W. Conley was executed, and, as found 'by the court, the assumption at that time of the payment of the two notes furnished in part the consideration for the deed, and this suit was commenced July 1, 1917.”

Such, however, is not the case here. In fact, there is no question about the payments being made, and the preponderance of the testimony showed that the $150 payment was not made on this note, but on the note secured by the chattel mortgage. Moreover, the court in the instant case found that there was no assumption at the time of the execution of the chattel mortgage.

As we have already said, the intention of the parties is to be ascertained. Where the statute of limitations was pleaded in a case, the court held that there was no bar of the statute, but used this language: “Though usual, it is not necessary that a mortgage state the amount of the debt to be secured, or that it is evidenced by a note or any other instrument. If it contains a general description, sufficient to embrace the liability intended to be secured, and to put a person examining' the records upon inquiry, and to direct him to the proper source for particular information of the amount of the debt, it is sufficiently certain.” First National Bank of Corning v. Corning Bank & Trust Co., 168 Ark. 17, 268 S. W. 606.

The court in the above case also said: “The case of Lightle v. Rotenberry, [166 Ark. 337, 266 S. W. 297], is also authority for holding here that the intention of the parties at the time of the execution of the mortgage, as expressed by the language there employed, governs, and that this purpose cannot be enlarged by any contemporaneous parol or subsequent agreement that it should secure any indebtedness other than that referred to in the mortgage.”

The authorities on the question of the reviving a cause of action by written promises or acknowledgments are in hopeless conflict. And while it is not necessary that the acknowledgment or promise should be formal, or that the debt should be specifically described, the 'writing relied on must clearly refer to the very debt in question, and the acknowledgment must be express, dear and direct.

One of the recitals in the mortgage is as follows: “All of said notes being due and payable November 1, 1924, and this mortgage being given to secure the payment of, not only said notes, any and all renewals thereof, but also any and all other and further indebtedness, whether original or by indorsement, which grantor or either of them, may assume, guarantee, or contract to pay to the grantee for any loans, advances, indorsements, credits, overdrafts, or aceptances,” etc.

We think this clearly shows that the debts mentioned which were secured by this mortgage other than the note were debts that the parties might assume, guarantee, or contract to pay, or for loans, advances, in-dorsements, etc., and certainly did not include the note sued on.

Said mortgages also has this recital: “No real estate included in this mortgage. ”

When the entire mortgage is considered, the conclusion that it did not refer to the note involved in this suit cannot be escaped. There is no reference to this note and mortgage anywhere in the chattel mortgage, and it is contended that Cheairs is indebted to the bank in approximately $20,000.

“.Although specific reference to a particular claim has been declared unnecessary, it has also been held that the promise or acknowledgment must itself specify or plainly refer to the particular demand or cause of action, and it matters not where the uncertainty lies, whether in the acknowledgment or in the identification, its existence is equally fatal to the plaintiff’s recovery, or that the acknowledgment should furnish the means by which the character or amount of the debt can be certainly ascertained, or refer to something from which this can be certainly determined: So it is held that th'e new promise must arise out of facts which identify the debt with such certainty as will clearly determine its character, and fix the amount due; and a general admission of unsettled matters of account between the parties, or a general admission of indebtedness not referring to any particular claim, where there are several claims, is not sufficient to support a promise to pay any particular demand, and particularly where such general acknowledgment is made to a third person and not to the creditor. * * * There must, however, be a clear recognition of some amount due which is reasonably ascertainable.” 37 C. J. 1101.

“Many examples of what the rule is on this subject may be found in our books; some of later date may be consulted in the cases of Cooke v. Ashe, Chambers & Campbell v. Sims, and Williamson v. King, Admr. of Bacot. It is said in the last case cited, the acknowledgment must be of some specific demand; that the promise should be so explicit that the liability could be made apparent by stating the terms of the undertaking in a declaration, reference being had to the old demand for a consideration; that is, the extent of the liability must appear in the terms of the assumption.” Brailsford v. James, 3 Strobhart, (S. C.) 171.

“The acknowledgment of Ashe is that the account existed against him, but no particular sum was acknowledged; nor does it appear what specific account was intended to be acknowledged. The acknowledgment, therefore, can amount to no more than the avowal that he owed Cooke on open account an unascertained sum of money which he would pay by installments. The witness does not recollect that he even owed the present account to Ashe nor the amount of the account assumed, but he lately said he had not paid it, and that Cooke did not give him the correct check. There is had no express assumption of any specific amount or account.” Cooke v. Ashe, Bailey’s Law Cases, S. C., Rep. 246; Robbins v. Farley, 33 S. C. Law 33, 348.

The cause of action on the note sued on ivas barred by the statute of limitations, and under our statute the mortgage was barred when the debt was barred. Holding as we do that the cause of action was barred by the statute of limitations, it becomes unnecessary to decide whether the conveyance by Cheairs and his wife to Mrs. Kincannon was valid or void. The property being the homestead, it wonld not be liable for any other debt of Cheairs, and they could convey it to their daughter or any other person, and it would not be a fraud on the creditors as the homestead is exempt.

The decree of the chancery court is affirmed.