text:
    Kansas City Southern Railway Company v. Hooper.
    Opinion delivered July 11, 1927.
    1. TAXATION — PENALTY FOR delinquency. — A railway company cannot avoid liability for the penalty for tax delinquency by wrongfully procuring1 an injunction against collection of'.the taxes, though there appeared to be valid grounds for a successful contest of the levy; county officers being prevented from collecting the taxes because of the injunction.
    2. Taxation — liability for penalty in case of delinquency. — The report and filing of the delinquent tax list by the county collector and charging of 25 per cent, penalty by the county clerk, under Crawford & Moses’ Dig., § 10083, are not conditions precedent to the collection of the penalty for delinquent taxes.
    3. Taxation — effect of injunction. — The wrongful enjoining of the collection of road taxes on a railroad before they became delinquent was a sufficient reason for the county collector’s failure to report the property as delinquent and the clerk’s failure to extend the penalty under Crawford .& Moses’ Dig., § 10083, where the restraining order remained effective until after the timé for such acts.
    4. Judgment — res judicata. — A decree of the Supreme Court dissolving an injunction against-the' collection of road taxes and dismissing a suit for want of equity,- solely on the ground that the taxes were valid, held not res judicata as to .the railroad’s liability for the penalty in case of delinquency.
    5. Constitutional law — exaction of penalty — equal protection. —A railroad company subjected to a payment of the usual penalty against delinquent taxpayers, after dissolution of an injunction against collection of the taxes, held not denied the equal protection or due process of law.
    6. Injunction — remedies against collection of wrongful taxes. —An injunction against . the collection of taxes wrongfully imposed is not the only remedy, as the taxpayer could have paid the taxes under protest and brought suit to recover them before payment into the treasury by the collector, or he could have proceeded for their return on the successful termination of a suit, as taxes erroneously assessed in accordance with Crawford & Moses’ Dig., § 10180.
    Atppeal from Sevier Chancery Court; G. E. Johnson, Chancellor;
    ¡affirmed.

      James B. McDonough, Jr., Joseph R. Brown and James B. McDonotigh, for appellant.

      Lake, Lake & Carlton, for appellee.
   Kirby, J.

This suit involves the right to the collection of the penalty denounced by the statute for the railroad company’s failure to pay its delinquent road taxes for the years 1922 and 1923.'

This case is related to that of Wallace v. K. C. S. Ry. Co., 169 Ark. 905, 279 S. W. 1, in which the validity of the three-mill road tax levied by Sevier County for the years 1922 and 1923 was upheld. In that case, as shown by the record herein, the railroad company, by suit on April 10, 1923, enjoined the collection of the road taxes for the year 1922, and, by an amendment filed on April 4, 1924, the injunction was made to include the road taxes for 1923. Upon the hearing on April 28, 1923', the injunction was made permanent, but, on appeal to this court, the decree was reversed and the complaint dismissed. Thereupon the appellee, the present tax collector, who had succeeded the collector at the time of the other suit, demanded payment of the amount of the road taxes due, with a 25 per cent, penalty and interest.

The amount of the road taxes only was paid to the collector by the railroad companies., the present appellants, under a stipulation that such payment should not affect the rights of either party as to interest and penalty. The appellants herein then enjoined the collection of the penalties for said years. The appellee demurred to the complaint, and moved for a judgment on the bond. There was a hearing, the appellee still insisting upon his demurrer. The court sustained it, and rendered judgment for the collector for the amount of the penalty, denying interest on either taxes or penalty, or on both, and from this judgment the appeal is prosecuted.

All the pleadings in the former ease were introduced in evidence herein.

The appellants insist that, since the injunctions were granted in 'the first case' during the time allowed for payment of taxes and on or before the 10th day of April, before the property became delinquent and subject to the penalty, and the taxes were paid after .the adjudication and without any return, in fact, of the property as delinquent, or any delinquent list being made of it, tbe court ' erred in bolding them liable to the payment of the penalties. They insist that they had no other adequate remedy to protect their property against what appeared to be an illegal exaction, and by paying the taxes, in fact, after the adjudication of-their validity, before any penalty was attempted to be extended against them under the forms of law, they are not subject thereto.

While it is true the appellants, taxpayers, brought’ this suit enjoining the collection of the taxes during the time allowed foi payment and before they became delinquent, it is also true that they thereby stopped the officers of the county from collecting the taxes which they were required by law to pay, and, not having paid them, they became delinquent and subject to the payment of the penalty, notwithstanding the collector could not proceed with the collection, because of the injunction granted at appellant’s instance, which was afterwards held to have been wrongfully issued.

Even though there appeared to be valid grounds for a successful contest of the levy of the taxes claimed to be illegal, the appellants could not, by an injunction wrongfully obtained on the day before the property became delinquent for taxes, prevent the attaching of the penalty for such delinquency on the date thereof. The failure to pay the taxes in the time allowed therefor is what constitutes them delinquent and fixes the liability for the penalty.

The duty to extend the 10 per cent, penalty against the delinquent taxpayer is devolved on the tax collector, himself, and, although the 25 per cent, penalty (§ 10083, C. & M. Digest) is required to be added by the county clerk upon all taxes on real estate returned delinquent, which is to be collected in the manner provided for the collection of delinquent taxes, we can see no good reason why this penalty should not attach without the filing of a delinquent list, since the law fixes the amount of the penalty, and since it could not be collected in any event by the sale of the railroad property by the collector, as the lands of individual delinquent taxpayers are sold. In other words, the law fixes the penalty for the failure to pay the taxes within the time allowed by law, and the collection of such delinquent taxes can only he made through the courts in the manner provided therefor. The report and filing of a delinquent list by the collector and the charging of the 25 per cent, penalty thereon against such property by the county clerk is not a condition precedent to the collection of such penalty, in the case of delinquent taxes on railroads.

Moreover, the enjoining of the collection of this tax before it became delinquent furnished sufficient reason for the failure to report the property delinquent and the extension of the penalty against same by the county clerk, the restraining order wrongfully issued being effective until after the time for making such delinquent lists and the extension of the penalty.

No unusual or excessive penalties were imposed upon ihe railroad companies, delinquent taxpayers, but only the same reasonable penalties as are imposed upon all delinquent taxpayers for the purpose of enforcing prompt payment of the revenues, the contributions required by law, for the support of the Government.

There is no merit in appellants plea of res judi-cata. In the former case, Wallace v. K. C. S. R. Co., supra, the validity of the tax only was adjudicated, the injunction dissolved, and the complaint dismissed for want of equity.

The tax being held to be valid and legally assessed, it necessarily follows that the injunction against its collection was wrongfully issued, and, being so, upon its dissolution and the dismissal of the suit, nothing more can be said to have been adjudicated than that the railroad companies were liable to the payment of the valid tax, and, not having paid it within the time required by law, relying upon the claim of its illegality, they are liable to the payment of the tax and penalties, as part thereof, being delinquent taxpayers. Scott v. Watkins, 22 Ark. 556; St. L., I. M. & S. R. Co. v. Alexander, 49 Ark. 190, 4 S. W. 753; Dickinson v. Cypress Creek Drainage Dist., 139 Ark. 76, 213 S. W. 1; and Tri-County Highway Improvement District v. Vincennes Bridge Co., 170 Ark. 39, 278 S. W. 627.

Certainly there was no adjudication that the companies were not liable to the payment of the penalty upon the injunction being dissolved and their suits being dismissed for want of equity. Hopson v. Frierson, 106 Ark. 292, 152 S. W. 1008.

Neither do we agree with appellants’ contention that they had no other remedy for protecting their rights against what they deemed an illegal tax levy than the course pursued, nor that they were otherwise denied the equal protection of the laws or due process of law.

By taking this course and unsuccessfully enjoining the collection of the alleged illegal taxes, they were subjected to no other or greater, but only to the payment of the usual, penalties denounced against all such delinquent taxpayers, and they could have paid the tax, if illegal, under protest and brought suit to recover the same before the money was paid into the treasury by the collector, as in Dickinson v. Hensley, 130 Ark. 259, 197 S. W. 25; First National Bank v. Norris, 113 Ark. 138, 167 S. W. 481; and Western Union Tel. Co. v. State of Indiana, 165 U. S. 302, 17 S. Ct. 345, 41 L. ed. 725; or they could have proceeded for its return upon the successful termination of their suit, as taxes erroneously assessed, in accordance with $ 10180, C. & M. Digest, providing therefor.

If such taxes were paid under protest and suit brought for their recovery, there is no reason why, in such suit, the collector should not have been enjoined from paying the money over in settlement, until the termination of the suit, which would, of course, have had the effect to keep the money where it could be returned upon judgment holding the taxes illegal and without the payment of any penalty, as for delinquency, if the suit to recover the taxes should be successful. In other words, if tbe suit was lost, the taxes were paid and no penalty could attach, and, if won, the money to refund was available.

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


source: Caselaw Access Project

author: Kibby, J.

license: Public Domain

text:
    McKinney v. Morgan.
    Opinion delivered July 11, 1927.
    BILLS AND NOTES — RANK NOT BONA FIDE HOLDER WHEN. — Where a bank, having taken over property of a debtor, negotiated a sale thereof, employing the former owner as agent to show the property to the purchaser, and, instead of conveying directly to the purchaser, reeonveyed the property to the former owner and had him make conveyances to the purchaser, whereupon the notes made by the purchaser to the former owner were immediately turned over to the bank, held that the bank was not a bona fide holder of the notes in due course.
    Appeal from Nevada Circuit Court; James II. McCollum, Judge;
    reversed.

      Dexter Bush and McKay •& Smith, for appellant.

      Qaughan •& Sifford land Randolph P. Hamby, for appellee.
   Kibby, J.

Appellee brought this suit in replevin to recover certain personal property, mules and teams, under a mortgage, in which he was trustee, the mortgagors having defaulted in the payment of the notes secured thereby.

It was alleged: “That on the 11th day of March, 3924, the said defendants were indebted to Earl Morgan in the sum of $5,000, as evidenced by ten promissory notes of that date, each in the sum of $500 and bearing interest at the rate of ten per cent, per annum from date until paid, the three last of which were dud as follows: One due the 10th of January, 19'25; one due the 10th of February, 1925, and one due the 10th of March, 1925, all of said notes having been purchased by the People’s Bank of Stephens, Arkansas, for value before maturity, on the 3d day of. April, 1924, and of that date assigned to it by said Earl Morgan,” and that, to secure the payment of all ten of the notes, the .defendants executed to J. B. Morgan, trustee, a deed of- trust conveying certain personal property, describing it, the same as that sued for, and, under the terms of the deed of trust, plaintiff was authorized, default in the payment of one of the notes having been made, to take possession of the property and sell same for the payment of the remainder of the notes; that all the notes except the three last coming due have been paid, and that, same being due and unpaid, plaintiff was entitled to the possession of the mortgaged property and to sell same for payment of the debt.

The defendants answered, alleging that they had purchased the property described in the complaint from the People’s Bank of Stephens, Arkansas, together with the timber on certain lands near the sawmill in-Columbia County, which they also bought at the time of the execution of the deed of trust, paying to the People’s Bank $5,000 in cash and executing the notes and deed of trust to Earl Morgan, trustee, to secure the balance of the purchase money, that the bank represented to them that Morgan wás largely indebted to it, and his indebtedness was secured by a mortgage, under the terms of which he had turned over all of this property to the People’s Bank to satisfy his indebtedness, but, not having deeded the property to the bank, to save trouble and expense, the bank had Earl Morgan to deed the property directly to them and the defendants to execute the deed of trust and notes referred to in the complaint direct to Earl Morgan, which notes and deed of trust were immediately transferred to the People’s Bank, and that the defendants did not negotiate with any one in the purchase of the property, other than the People’s Bank, did not know that the title to the property had not been conveyed to it until the papers were to be executed, which were executed for the reasons above stated. It was further alleged that, during the negotiations with the People’s Bank for the purchase of the mill, timber and outfit, the bank had Earl Morgan to carry them out there and show them the property, and that lie stowed and represented to the defendants that the People’s Bank was the owner of the timber on a certain 60 acres of land, describing it, which was to be conveyed to them in the transaction, and which was not conveyed to the defendants, who did not know the description of the land upon which the timber was standing, bnt, after they purchased the property from the People’s Bank, it developed that the bank did not convey to the defendants the timber on the 60 acres of land shown them, bnt that it was owned by another lumber company, which cut and removed the same, and “that defendants relied upon the representations of Earl Morgan, who was acting for the People’s Bank in selling this property to the defendants, that the People’s Bank was the owner of the timber standing upon this land and that defendants were getting a deed for same, and, bnt for such representations, would not have purchased the property and paid to 'the People’s Bank the price therefor; that the timber so shown to the defendants and represented as being sold and conveyed to them was of the reasonable cash market value at that time of $1,500, and that the defendants, by reason of said misrepresentations by the People’s Bank, have sustained damages in the sum of $1,500. They admit that there are three notes of the full sum of $1,500 that the defendants have not paid and are refusing to pay to the said People’s Bank, but that said notes are fully offset by reason of the defendants’ claim for damages as aforesaid, and that the defendants are not due the People’s Bank of Stephens any sum whatever on said notes.

The plaintiff denied the allegations of the answer and that defendants had been damaged by any misrepresentations made by him, and that he represented to them that either himself or the bank was the owner of the timber on the lands described in the answer, and alleged that no timber had been removed by any one but the defendants, after their purchase from Morgan, and, further, that the People’s Bank was the holder of said notes in due course, purchased for value before maturity and without notice of any defense.

The testimony shows that the bank was carrying Morgan for a large amount, and that he was operating the sawmill unsuccessfully and at a loss, when defendants were in the market for such a mill outfit; that they talked to the cashier of the People’s Bank, which bank had a mortgage on Morgan’s property and was about to foreclose same, and had stopped the operation of the mill; that they talked,with the cashier of the bank, McClerkin, several times before the transaction was completed; that he told them that Morgan would show them the property and the timber that he and the bank owned, and finally the trade was made, defendants depositing $5,000 in the bank, to be paid when the papers were executed, and afterwards it paid $3,500 to the bank, making the check payablé to McClerkin, the cashier, who wrote it, making in all $8,500; that they did not know at that time the bank was not to make conveyances -to them. None of the defendants know the description or location of the lands upon which the timber purchased with the plant’ was situated, none of thém having ever been in the county before. The cashifer told them that Morgan would show them the propérty,"ánd he did show them the 60 acres of land described 'iii the answer, with virgin timber on it, telling them it was included in the purchase. '

The mill was rebuilt by the purchasers on the south end of the timber tracts — it was something like three miles from the timber — with a view to sawing the timber on the 60 acres of land more conveniently, it being but a quarter, of a mile from the mill. They operated the mill for several months, and the question arose about the ownership of the timber on this 60 acres of land described, and they had a survey made, and discovered that this best timber that had been shown them, and represented as being included in the sale and conveyance to them, belonged to another lumber company, as one witness said, “all the timber they cut except a few little bunches, which they bought from others, was old-field stuff. Morgan had shown them the timber that belonged to Creason-Grayson Lumber Company, and when they found that out was when they stopped paying the notes. Mr. Morgan showed them this timber at the request of Mr. McClerldn, the cashier of the bank. Mr. McClerldn was familiar with every deal that they made in the case. When Mr. Morgan went down there with them at the request of the cashier of the bank, he showed them about 60 acres of timber that- they later found out did not belong to him or the bank. This was the only real good timber in the deal. They would not have made the deal if this 60 acres of good timber had not been included and had not been shown to them as part of the deal. They placed the mill at a disadvantage to the other timber in -order to get closer to this timber with the mill.”

When the other lumber company commenced cutting timber near their -mill, they had the land surveyed, and disavowed that the 60 acres of timber they bought, which hiad been shown to them by Morgan for the bank as included in the trade, did not belong to them. The 60 -acres actually -conveyed was a cotton-patch -with ho timber on it. The testimony -shows that the timber on the 60 acres of land shown the appellants by Morgan and represented to be included in the trade was worth $1,500.

Instruction No. 3 was given over appellant’s objection, and the court’s refusal to give their requested instruction Nos. 1 and 3 as follows is also complained of, instructions:

Instruction No. 3 given:

“You are instructed that, if you believe from a preponderance of the evidence in this case that the People’s Bank of Stephens, for a valid consideration, purchased the notes in question before they became due and at a time when said People’s Bank had no knowledge of any defense the maker of said notes had to same, then you are told that said bank is what is known as an innocent purchaser of said notes, and plaintiff is entitled to recover of and from the makers of said notes the property sued for, or its value, not to exceed the amount due on the notes secured by the deed of trust. ’ ’

Instruction No. 1:

“You are instructed that, if you find from the evidence that the People’s 'Bank of Stephens knew of the terms of the trade between Morgan and Smith & McKinney before it was consummated and contracted with Earl Morgan to the effect that they would take said notes and extend credit on them before they were executed, then said hank could not'he an innocent purchaser of said notes.” ■

Instruction No. 3:

“Although you may not believe that the bank itself sold the property in question to the defendants, still, if you should find that both the hank and the witness, Earl Morgan, were financially interested in the sale of said property, then you are told that the hank could not be an innocent purchaser of the notes in question.”

It is insisted for reversal that the court erred in giving instruction No. 3 over appellants’ objection and in refusing to give their requested instructions Nos. 1 and 3, and the contention must be sustained.

The undisputed testimony shows that the bank had taken .over the mill and property of Morgan, who had been unsuccessfully operating it, and had become so greatly indebted to the bank that it had refused to carry him further; that the negotiations for the sale of the property were between the cashier of the bank and the appellants; that the bank sent Morgan to show the property to the prospective buyers; the terms of sale were agreed upon between the buyers and the cashier of the bank, upon representations made by Morgan, who had been designated by the cashier as agent for the purpose; that the appellants understood that they had made the trade and bought the property from the bank, until the conveyances were made, and it was then discovered that the bank had reconveyed the property to Morgan and had him to make the conveyances to the purchasers and take the notes and mortgages therefor.

The undisputed testimony also shows that all the property purchased by appellants was owned by the bank, except about $830 worth of timber belonging to Morgan. ' The $5,000 payment in cash was made by check to McClerkin, the cashier of the bank, and the other notes were turned over to him by .Morgan, upon completion-of the sale. Under these circumstances the bank could not become a bona fide holder of the notes in due course. It was, in fact, a party to the contract of sale and necessarily chargeable with notice of any defects or defenses to the notes given by appellants for purchase money in concluding the transaction, and this without regard to the fact that, after the terms of the sale had been agreed upon, the bank reconveyed the property to Morgan, who, in turn, conveyed it, as already stated, to the purchasers. The bank occupies no better position, so far as being a bona fide purchaser without notice is concerned, than Morgan, who executed the conveyances of the property to appellants, after it had been reconveyed to him by the bank, for the purpose, taking their notes for the balance of the purchase money and the mortgage securing same, and transferring the notes to the bank. Hogg v. Thurman, 90 Ark. 93, 117 S. W. 1070, 17 Ann. Cas. 383.

The court therefore erred in giving said instruction No. 3, permitting the jury to find that the bank was a bona fide purchaser of the notes. This question should not have been submitted to the jury at all, under the circumstances, as the bank occupied no better position, relative to the defense to the notes arising out of the transaction, than did Morgan, who took the notes and transferred them to the bank under the circumstances stated.

The court also erred in refusing to give appellant’s requested instructions Nos. 1 and 3, and such error was accentuated and the harmful effect of instruction No. 3, erroneously given, increased by the refusal to give the said instructions Nos. 1 and 3.

The undisputed testimony also shows that the market value of the timber on the 60 acres alleged to have been shown to appellants by Morgan, in the making of the sale, as included in it, which was not in -fact owned by either the bank or Morgan, nor conveyed in the transaction, was more than the amounts still due on the notes given for the purchase money; and the only question for the determination of the jury was whether the seller of the property had made such false representations about the ownership and conveyance of the 60 acres of timber as alleged, and could have been submitted as well on instruction No. 2, as asked by appellants, as upon the instruction as amended and given by the court, in which we find no error, however.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.


author: McIíaN'ey, J.

text:
    Huckabee v. State.
    Opinion delivered July 11, 1927.
    1. CRIMINAL law — new TRIAL — DISCRETION OP court. — Motions for a new trial are addressed to the sound discretion of the presiding judge, and it is only in cases of apparent abuse of that discretion or injustice that the Supreme Court interferes.
    2. Criminal law- — newly discovered evidence — diligence.- — A motion for a new trial for newly discovered evidence should show diligence in getting such evidence on the trial -of the case, and must ordinarily show an excuse why such evidence was not produced at the trial.
    3. Criminal law — denial op new trial — -abuse of discretion.— Where defendants, o-n the day after conviction of possessing a -still and denial of their motion for new trial, and while the court was still in session, presented a supplemental motion for new trial on the ground of newly discovered evidence, alleging that, since their conviction, defendants had discovered that a certain witness would testify that he and another, and not defendants, were the persons at the still when the officers testified that defendants were there, and that defendants had nothing whatever to do with the still, together with the affidavit of such witness attached to the motion, and where the witness appeared in open court and testified to the same effect, held, that denial of the motion was an abuse of discretion.

      4. CRIMINAL law — object op trial. — It is the object of the court in the trial of all criminal cases to bring about the conviction of the guilty and the protection and acquittal of the innocent.
    Appeal from Hempstead Circuit Court; James 11. McCollum, Judg’e;
    reversed.

      Liike F. Monroe, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose., Assistant, for appellee.
   McIíaN'ey, J.

Dick and Jack Huckabee, two boys aged 21 and 15 years, respectively, were indicted, tried and convicted in the Hempstead Circuit Court of the crime of possessing a still, and Dick was sentenced to one year in the pentitentiary and Jack to one year in the industrial school. This appeal is prosecuted to reverse these judgments on the ground that the evidence against them was not sufficient to justify the .jury in finding them guilty, especially so in view of the newly discovered evidence set up in a supplemental motion for a new trial, which will be hereafter referred to.

Appellants’ home is between a quarter and a half mile from where the three officers who testified on behalf of the State found a still and found two men working at the still. When the officers got within 75 or 100 yards of the still, the men who were working there ran away. These officers testified positively that these boys were the ones they saw working there. One of them left his coat, hat and rubber boots near the still, and ran up the road bareheaded, barefooted, and in his shirtsleeves, and in jumping a branch one of them fell into the water. The two boys who ran away from the still went in the direction of the Huckabee home, and the officers followed some few minutes later and arrested appellants, both of them denying their guilt. When the officers arrived at the Hucka-bee home, these two boys were not there, but very shortly came in from the field to the house, and were arrested. Neither of them was barefooted, bareheaded, or in his shirtsleeves, and neither was wet from falling in the creek. At the time the parties working at the still ran away, the officers fired some shots, and several witnesses ’in and about tbe Huckabee home testified that they heard these shots, and a short time thereafter saw two men, Sam Hansford and Wallace Bazemore, running from the direction of the shooting up the road, passing directly in front of the Huckabee home, and that Hansford was barefooted, bareheaded, and in his shirtsleeves. Appellants proved by a large number of witnesses that they were not at the still, but, on the contrary, were in their father’s field, repairing a fence, all the morning. Some of the witnesses who testified stated that they were there with them. The pair of boots found at the still did not fit either of the appellants, and the clothes and hat found there were not identified as belonging to either of these two boys.

Appellants were tried and convicted on April 18, 1927, and on the same day filed their motion for a new trial, which was overruled, and an appeal was prayed and granted to this court. On April 19, by permission of the court, they filed a supplemental motion for a new trial, setting up that, since their conviction, they had discovered that Sam Hansford would testify that he and Wallace Bazemore were the parties at the still at the time the officers testified that appellants were there, and that they were the parties who ran away from said still, instead of these appellants, and that appellants' had nothing whatsoever to do with it; that, in running away from the still, they ran by the Huckabee home, and that the hat, coat and rubber boots exhibited in court belonged to him, Sam Hansford. His affidavit to this effect was attached to the supplemental motion for a new trial, and he appeared in open court and testified to the same effect. The court overruled the supplemental motion, and appellants excepted.

We think the court erred in not granting appellants a new trial on hearing this evidence. The Attorney General contends that appellánts showed no diligence in obtaining or discovering this evidence and in producing it on the trial of their cases, and that therefore the judgment ought to be affirmed. It is undoubtedly true, as contended by the Attorney General, that -motions for a new trial are addressed to the sound discretion of the presiding* jjidge, and that it is only in cases of apparent abuse of that discretion or injustice that this court interferes. Armstrong v. State, 54 Ark., 364, 15 S. W. 1036. And'it is also true that this court’has held in numerous cases that a motion for* a new trial for newly discovered evidence should show diligence in getting such evidence on the trial of the case, and must ordinarily show an excuse why such evidence was not produced' at the trial. Ary v. State, 104 Ark. 212, 148 S. W. 1032; White v. State, 145 Ark. 170, 224 S. W. 435; Morris v. State, 150 Ark. 1, 233 S. W. 801. And no doubt it was under these well-settled rules that the learned trial judge refused to set aside the verdict in this case. We think there was a manifest abuse of the discretion of the trial judge in this case. The court was still in session. The trial had taken place on the 18th, and the motion for a new trial had been filed and overruled on the same day, and the supplemental motion was presented to the court on the next day, while the court was still in session, and, so far as the record discloses, the jurors were still present and an immediate trial could have been had. While appellants undoubtedly had just grounds to believe that Hansford and Bazemore were the guilty parties, yet it was not within their power to. comp el either to admit his guilt. The rules above announced do not apply to situations of this kind — situations where the guilty party comes into court after conviction of the innocent and announces that he is the guilty party, and that the- persons convicted are innocent. It is the object of the court, in the trial of all criminal-cases,-to bring about the conviction of the guilty and the protection and acquittal of the innocent. Had the newly discovered evidence been merely cumulative to that already before the court, the rules above announced would have been controlling. But -it is such an unusual and extraordinary thing for a person not charged with a crime to come into court and assume all the responsibility for- the crime charged against another that we do not think the diligence rule is applicable. Had appellants been acquitted, Hansford undoubtedly would never have admitted bis guilt, but, after appellants bad been convicted, be no doubt realized the. great wrong and irreparable injury that had been done them, and be therefore felt impelled to do what be = could to prevent the execution of a judgment upon innocent parties.

We do not think appellants should be held responsible for failure to produce Hansford at the trial and compel him to testify. For the error indicated the judgment will be reversed, and the cause remanded for a new trial.


author: McIíaNey, J.

text:
    Fort Smith v. Quinn.
    Opinion delivered July 11, 1927.
    1. Municipal corporations — officer of city. — A member of the city fire department holding his position under Acts 1913, chapter 13, § 19, was an officer of the city and entitled to his salary during the time he was wrongfully excluded from office.
    2. Municipal corporatioNs — right of city to set-off .earnings of officer wrongfully excluded. — In an action by a member of the city fire department holding a position as civil service employee under Acts 1913, chapter 13, § 19, to recover his salary while wrongfully excluded from that position, the city could not set-off the amount earned by him during that period while ' a member of the fire department of another city:
    3. Municipal corporations — breach of employment — right io set-off earnings. — The rule that, in actions for breach of contract .of employment, the earnings of the plaintiff may be set-off does not apply to actions by employees under civil service, but only to cases where there has been wrongful breach of employment contract.
    4. Municipal corporations — right to recover salary. — A member of a city fire department who was a civil service employee, under Acts 1913, chapter 13, § 19, was entitled to recover his salary while wrongfully excluded from his office, although after the order of reinstatement, which was affirmed on appeal, he did not actually re-enter the employment of the city.
    Appeal from Sebastian Circuit Court, Fort Smith • District; John E. Tatum, Judge;
    affirmed.

      Pryor, Miles & Pryor, for appellant.

      Cravens & Cravens, for appellee.
   McIíaNey, J.

Appellee was discharged by the city commission of the city of Fort Smith, Arkansas, on May 26,1924, as a member of the Fort Smith Fire Department, and on a trial of the case, both in the circuit court and in this court, it was held that he had been wrongfully discharged, and his reinstatement was ordered. The facts in the case and the reasons therefor are stated in "the case of Fort Smith v. Quinn, 170 Ark. 54, 278 S. W. 625, and this case grows out of that. It is a suit to collect his salary at the rate of $110 per month from the time of his discharge, May 26, 1924, until the 16th day of February, 1.926, at which latter date he was reinstated. The case was tried 'before the court sitting as a jury, and the court found that he was entitled to his pay between those dates, at the rate stated, less $130, which the -court found he had earned in other employment between those dates. This left a balance due appellee in the sum of1 $2,125, for which judgment was entered, and the city has appealed.

Appellant’s first contention for reversal is that the contract of employment is void for want of mutuality. The answer to that contention is that appellant was not serving as an officer in the fire department by virtue of a contract. He held his office as such member pursuant to the civil service act of Arkansas, applicable to cities with the commission form of government, and the rules enacted pursuant thereto, which is act 13 of the Acts of 1913, page 48. Section 19 of said act provides for the creation of a board of civil service commissioners, who shall hold examinations, under rules and regulations, to determine the qualifications of persons desiring appointment to municipal positions, and who shall certify those qualified as shown by such examinations, and all vacancies in municipal positions are required to be filled from such certified list. It is admitted that appellee was selected pursuant to this act, and it necessarily follows that he did not hold his position by virtue of any contract, express or implied. As was said in the case of City of Louisville v. Gorley (Ky.), 80 S. W. 203, which involved the right of policemen illegally prevented from discharging their duties, and who had been employed under a civil service act, to recover their salaries, “the appellees derived their pay hy reason of law and not hy contract.”

In the case of Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787, 55 Am. Rep. 835, the court used this language:

“The rule sought to be applied hy the city to the claim of the plaintiff: finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analogous to those existing between the officer and the State or municipality. The rule in those cases is founded upon the fact that the action is brought for a breach of contract and aimed to recover damage for that breach or compensation for the servant’s loss actually sustained hy the default of the master, * * * but this rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and the State or municipality hy force of which the salary is payable. That belongs to him as an incident of his office and so long as he holds it; and, when improperly withheld, he may sue for it and recover it. When he does so, he is entitled to his full amount, not by force of any contract but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the .doctrine invoked has grown.”

To the same effect, see Paden v. City of New York, 92 N. Y. (Supp.) 926, 45 Misc. Rep. 517; City of Chicago v. Luthardt, 61 N. E. 410, 191 Ill. 516; People v. Laffer, 175 Ill. 585, 51 N. E. 785. And in the case of Leonard v. City of Terre Haute, 93 N. E. 872, 48 Ind. App. 104, the Supreme Court of Indiana said:

‘ The salary of an official position belongs to the officer occupying such position as an incident to the office and does not depend upon his performance of the duties of the office. The statute makes provision for the chief and the fire force. It also provides for their appointment, the manner of fixing their compensation and the proceedings by which they can be removed. Their duties are of a public nature. We therefore.conclude that the duties of the. chief and fire force or a member of the department are so far official in their character .that the one holding either position is entitled to draw his salary as. an incident' to such position, whether he performs the duties of such position or not.”

Appellee was undoubtedly an officer of the city of Fort Smith, This court, in Lucas v. Futrell, 84 Ark. 540, 106 S. W. 667, quoted approvingly from U. S. v. Maurice, 2 Brock. 96, Fed. Cas. No. 151, 747, where Chief Justice Marshall, speaking’ for the court, said:

• ■ “An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. * ■ * * Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the Government, and not by contract, which an individual is appointed by Government'to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer. ’ ’

We therefore hold that appellee was not serving the city of Fort Smith under a contract, and that appellant’s contention on this point is not well taken.

The next contention of appellant is that, even though appellee should recover, the amount thereof should he offset by the amount he earned while working for the Ponca City Fire Department in Oklahoma. We do not agree with appellant in this, contention. The court deducted one month’s salary on this account in the sum of $130, and allowed appellee to recover from the time of his discharge to the date of the order of his reinstatement, less $130, which he had received in. other employment. What we have said with reference to the first-contention of appellant applies with equal force here, and the authorities there cited are applicable here.

In the case of Andrews v. Portland, 79 Me, 484, 10A. 458, Am. St. Rep. 280, the court held that an officer illegally discharged could recover his compensation for the period between the wrongful discharge and'his reinstatement, and that the city could not offset an amount earned by him in other employment during the period he.was wrongfully prevented from working. See also Peterson v. City of Butte, 120 Pac. 483, 41 Mont. 401; Reising v. City of Portland, 57 Ore. 295, 111 Pac. 377, Ann. Cas. 1912B, 895. The rule of law contended for by appellant does not apply to employees under the civil service, and only to those eases in which there has been a wrongful breach of the contract of employment, in which case the city may offset the earnings of the employee in other employment to reduce the damages, caused by the breach.

It is finally contended that appellee cannot recover because it is claimed that he was not reinstated. But he was reinstated by the order of this court, affirming the judgment of the lower court. The city commission thereafter made an order reinstating him. The fact that he did not.actually reenter the service of the Fort Smith Fire Department' did not preclude his right to recovery during the time appellant unlawfully deprived him of his employment.-

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


author: Kirby, J.,

text:
    Thompson v. Lee.
    Opinion delivered July 11, 1927.
    1. Abatement and revival — parties. — A suit to cancel a trustee’s deed will be dismissed, when it was not revived against his heirs or devisees of the deceased grantee, although it was revived against the executor, since, under Crawford & Moses’ Dig., § 1063, the heirs were necessary parties, .and, under § 1065, the action could not be revived against them without their consent after one year from defendant’s death.
    2. Abatement and revival — right to recover rents against an executor. — A judgment for rents could not he rendered against an executor, where a suit for cancellation of the deed to testator and an accounting of rents was revived as to the executor alone, since the right to rents was dependent on the adjudication of the title to the realty with the heirs as necessary parties before the ' court.
    3. Estoppel — want op necessary parties. — Where' a suit for cancellation of a deed and for accounting of rents was revived against the executor only of the deceased grantee, the executor was not, by pleading, testifying and appealing, estopped from objecting in his individúal capacity to jurisdiction on the ground that the action was not revived against the heirs of such grantee.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancello,r;
    affirmed.
    STATEMENT BY THE COURT.
    Appellant moves to dismiss the cause because no order of revivor was properly made against Thompson, executor, upon the suggestion of the death of defendant, M. D. Thompson; states also that the revivor should have been made against the heirs instead of the executor, as was attempted to be done, and that it was made more than two years after the death of M. D. Thompson, without agreement of the parties to revive.
    The suit was brought by appellees, heirs of George Washington, Jr., to cancel a trustee’s deed from W. H. Gray to certain lands belonging to said Washington’s ancestors, to M. D. Thompson, and to require an accounting of him for the rents and profits of the land and timber cut therefrom, it being alleged that the trustee’s deed was void, and the lands had been turned over by appel-lees’ ancestors and held by Thompson as mortgagee in possession for the collection of his debts, which had long since been paid out of the rents and profits accruing therefrom.
    An amended complaint was filed, showing the death of M. D. Thompson on May 12, 1924, and the cause was revived in the name of Vance Thompson, his executor.
    The testimony was voluminous. The chancellor, on the 11th day of May, 1925, found in favor of appellees, and decreed a cancellation of the trustee’s deed, and that appellees were the legal owners of the land, and vested the title in them; and also that they have judgment against the estate of M. D. Thompson for rent and profits found to be due for the land and the value of the timber cut therefrom by defendant, and appointed a special master to state the account and ascertain the amount due to appellees, retaining jurisdiction of the cause for final disposition thereof. This decree recites that the cause was heard on amended complaint, and that the depositions of certain witnesses, naming among the number Vance Thompson, who was also shown as executor of the •estate of M. D. Thompson, and defendant, in the style of the decree. The special master later filed his report showing the amount of indebtedness that should be charged against the appellant. Exceptions were duly filed to the account, and were disallowed, the account approved, and the decree entered for the amount shown to be due, from which this appeal is. prosecuted.

      W. J. Bv/ngan, for appellant.

      Jonas F. By son, for appellee.
   Kirby, J.,

(after stating the facts). It is contended that the decree should be reversed and the cause dismissed, it never having been properly revived in the name of nor against his heirs, after the death of M. D. Thompson, against whom suit was brought for the cancellation of the trustee’s deed conveying the lands to him, the purchaser, under the foreclosure sale.

The record shows the following order of revivor made by the court: “Come the plaintiffs and file their amended complaint herein. The death of M. D. Thompson being suggested to the court, this cause is revived in the name of'Vance Thompson, executor.”

But, considering this order, which could not have been made otherwise than with notice, and upon proof, except by agreement, with the conduct of Vance Thompson, executor, answering thereafter, without objection, the amended complaint against him testifying in the case, excepting to the account stated by the special master, and appealing from the decree, warrants this court in presuming, there being no showing in the record contradictory thereof, that the order of revivor was duly made against the executor, it could not operate as a revivor of the action against the heirs or devisees of M. D. Thompson. The heirs were necessary parties to the suit, after his death, it being an action affecting the title to and for the recovery of real property, and the revivor should have been made against and in the name of his heirs. Section 1063, C. & M. Digest; Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762; and Dupree v. Smith, 150 Ark. 80, 233 S. W. 812.

The court proceeded to a hearing of the cause without revivor against the heirs or devisees of M. D. Thompson or treating them as proper or necessary parties, and the cause could not have been revived against them without their consent, after the expiration of one year from the time the order of revival might have first been made. Section 1065, C. & M. Digest. More than two years had expired after the death of the defendant, M. D. Thompson, on March 28, 1922, before an attempt was made to revive the cause, when revivor against the executor only was sought, no revivor having been asked or rendered against the heirs.

The right to revive the suit against the executor was contingent upon the revivor against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. D. Thompson, deceased, was dependent upon the title to the real estate being adjudged to appellees, which could not have been done, of course, without the necessary parties before the court. The causes of action, not being severable, so that the appellees might revive and prosecute their suit for rents against the executor of the estate of M. D. Thompson, deceased, no valid judgment could be rendered against such executor, notwithstanding revival of the suit as to him, nor at all, since the necessary parties were not brought before the court, the revivor of the action against the heirs or devisees of the deceased was invalid, and the court was without .jurisdiction to make any adjudication in the case concerning the subject-matter of the suit. Ex parte Gilbert and Dupree v. Smith, supra.

Since there is no showing in the record proper of the names of the heirs or devisees of the said M. D. Thompson, nor any showing of an attempt to revive the suit against Vance Thompson as one of them, nor any appearance to or defense of the suit by him, after such attempted revivor, except as the executor of M. D. Thompson, in whose name it had been revived, there was no waiver by him of the defect, which would prevent his objection here to the lack of jurisdiction of the court to render a valid judgment that affects his individual interest.

The decree is accordingly reversed, and the cause dismissed.


author: Hart, C. J.

text:
    Carter v. State.
    Opinion delivered September 26, 1927.
    1. CRIMINAL law — province of jury. — In the trial oí the accused for robbery, it was the peculiar province of the jury to judge of the credibility of the witnesses and of the weight to be given to their evidence.
    2. Criminal law — sufficiency of evidence. — -In the trial of the accused for robbery, evidence held legally sufficient to support a verdict of guilty.

      3. Criminad law — relevancy op evidence. — In a trial of one for robbery, it was not error to permit the sheriif who arrested the accused to testify that, when arrested, he had on his person a pistol very similar to that held in the hands of one of the persons who committed the robbery, as the evidence tended to establish the particular crime.
    4. .Criminal law — newly discovered evidence — cumulative character. — In a prosecution for robbery, denial of the motion for new trial, based upon newly discovered evidence of an alibi, was not ¡an abuse of discretion where such evidence was merely cumulative.
    Appeal from Pulaski Circuit Court, First .Division; Abner McGehee, Judge;
    affirmed.

      Thomas C. Claiborne -and Walter A. Isgrig, for appellant.

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

Appellants prosecute this appeal to reverse a judgment of conviction against them for the crime of robbery.

Appellants were witnesses for themselves, and denied their guilt. Other witnesses testified that they were at work at the Temple Cotton Oil Mill Company, in the city of North Little Rock, on the hour of the day on which the - robbery occurred. It was the peculiar province of the jury to judge of the credibility of the witnesses and of the weight to be given to'their testimony. Hence the right of the jury to refurn a verdict of guilty depends upon whether or not, when the evidence is viewed in the light most favorable to the State, it is legally sufficient to show that the accused committed the crime with which they were charged.

According to the evidence of Roy ■ Gribble, he runs a store in North Little Rock, Pulaski County, Arkansas, and two negroes entered his store about six-thirty or six forty-five p. m. on February 14, 1927, and robbed him. He got a good look at the persons who robbed him, and recognizes James Carter and Melvin Carter, appellants, as being the two negroes who robbed him. They were in the store about three or four minutes, and Melvin Carter pulled a short gnn or pistol which had a rib all the way down the barrel. James Carter searched the witness, and got about a dollar out of his pocket. They then went through his cash-drawer. About eight days later James Carter came back in the store and bought some candy. The witness recognized him as one of the negroes who,had robbed him. Julius James, a boy thirteen years of age, who worked for Boy Cribble in his store at the time he was robbed, was also a witness for the State. Melvin Carter is a big man, and the witness recognized him as being one of the men who robbed Cribble. The witness stated that he was positive that the big man was the one who held the gun or pistol on Cribble. On cross-examination he was asked how he identified the big man, and he answered by stating that he saw all of his face.

Appellants were arrested about eight days after the robbery was committed, and Melvin had on his person a thirty-eight caliber pistol which had a rib on top of the barrel.

While the testimony of the witnesses for the State was somewhat shaken by their cross-examination, it was of such a substantial character as to warrant the jury in convicting the appellants if they believed the testimony to be true. Two of the witnesses for thé State positively identified Melvin Carter as one of the persons who committed the robbery, and their testimony is corroborated by the fact that, when he was arrested, he had on his person a pistol similar to the one used in the robbery. Crib-ble also identified James Carter as one of the persons who robbed him. When James Carter came into the store, about eight days after the robbery, Cribble at once recognized him as being one of the persons who had committed the robbery. Hence we hold that the evidence was legally sufficient to support the verdict.

The next assignment of error is that the court erred in permitting the officer who arrested Melvin Carter to testify that he had a thirty-eight caliber pistol on his person. While, as insisted by counsel for appellants, a person is not to be convicted of a criminal offense by evidence that be bas committed other crimes wholly disconnected with the one for which he is being’ tried, yet such testimony is admissible if it tends to establish the crime in question. Here the evidence with regard to Melvin Carter having a pistol on his person when arrested was introduced because the pistol found on his person was very similar to that held in the hands of one of the persons who committed the robbery. Hence this assignment of error is not well taken. Cain v. State, 149 Ark. 616, 233 S. W. 779; and Morris v. State, 165 Ark. 452, 264 S. W. 970.

It is also earnestly insisted that the court erred in not granting the motion of appellants for a new trial upon the ground of newly discovered evidence. In support of their motion, they introduced an affidavit of a witness who swears that he was employed by the Temple Cotton Oil Mill Company on the 14th day of February, 1927, and was working on the night-shift; that he left his home about six-twenty p. m. and saw two negro boys going in the store of Roy Gribble, when he passed there on his way to work. When he reached the mill, he saw James and Melvin Carter at work. He had known them for a number of years, and knew that they were not the negro boys whom he had seen enter the store of Gribble on the evening of the' robbery. As we have already seen, appellants had introduced several witnesses who testified that they worked at the Temple Cotton Oil Mill Company from seven o ’clock in the morning to seven in the evening •on the 14th day of February, 1927. Hence the newly discovered evidence was merely cumulative, and it was within the discretion of the trial court to grant a new trial or not. There is nothing to show that the trial court abused its discretion in failing to grant a new trial for cumulative evidence. Crouthers v. State, 154 Ark. 372, 242 S. W. 815, and Pendergrass v. State, 157 Ark. 364, 248 S, W. 914.

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


author: Habt, C. J.,

text:
    Turquette v. State.
    Opinion delivered September 26, 1927.
    1. Contempt — assault on judos outside op territorial jurisdiction. — The fact that .an assault and battery on a judge of á municipal court was committed outside of its territorial jurisdiction does not affect its power to punish for contempt.
    2. Contempt — assault during pendency of case. — A finding that an assault on a municipal court judge, before "the transcript on defendant’s appeal from judgment imposing a fine on the assailant was lodged in the circuit court, was made while the case was still pending in the municipal court, and the latter had control over its judgment, held warranted.
    3. Contempt — conclusiveness of court’s finding. — Evidence held to sustain a finding otf the trial court that defendant assaulted a municipal judge for the purpose of influencing, his conduct in • the trial of a case against him, and that, while the assault was committed in the State of Texas, it was so near the municipal courthouse in the State of Arkansas that it should he considered as to have been consummated there, and therefore in the constructive presence of.the court.
    4. Contempt — municipal court as court of record.. — Acts 1917, p. 734, made the municipal court of Texarkana a court of record, with power to punish for contempt.
    Appeal from Miller Circuit Court; J. H. MoCollwn, Judge;
    affirmed.
    STATEMENT OE EACTS.
    ■ This is an appeal from a judgment of the circuit court, refusing to quash a judgment of the municipal court of Texarkana punishing W. ft.' Turquette for contempt of court.
    On the 21st day of January, 1926, Louis Josephs, judge of the municipal court of Texarkana, Arkansas, caused to be spread upon the records of that court a citation against W. ft. Turquette for making an assault upon the presiding judge of said municipal court on account of rendering a judgment fining said Turquette for violation of an ordinance of the city against reckless driving. In the citation it was ordered that an attachment for contempt of court be issued to said W. It. Turquette and that he be apprehended and cited to appear in said court to answer why be should not be punished for contempt. This was served upon Turquette on June '28, 1926, in the city of Texarkana, Arkansas, while Turquette was in attendance upon the circuit court upon the appeal of his case from said municipal court. Judge Louis Josephs disqualified himself in the contempt proceeding against W. R. Turquette, and the Honorable P. P. Bacon became special judge to try the contempt proceeding. "W. R. Turquette appeared at the trial of the contempt proceeding in person and by attorney, and the prosecuting attorney and other attorneys represented the State.
    The record shows that W. R. Turquette was charged with reckless driving in the city of Texarkana, in violation of an ordinance of the city. He entered a plea of not guilty, and was tried before Louis Josephs, the presiding judge' of the municipal court. He was found guilty, and fined in the sum of ten dollars. On the day of the trial, which was on January 2, 1926, W. R. Tur-quette prayed and was guanted an appeal to the circuit court. His bond was fixed in the sum of $110, and, upon giving the same, he was released from custody.
    The city of Texarkana is situated in both the States of Texas and Arkansas. Louis Josephs was the presiding judge of the Texarkana municipal court, in Miller County, Arkansas, at the time W. R. Turquette was fined for reckless driving, contrary to the ordinance of the city. Turquette resided in Texarkana, Texas, and went home after he was released from custody upon filing his appeal bond. The trial of the case was had on Saturday, and on the following Monday Judge Louis Josephs, during a recess of the municipal court of Tex-arkana, Arkansas, went across the State line into the State of Texas for the purpose of obtaining a cool drink. The drugstore which he entered was about two hundred feet from the State line. He left the drugstore and started back to resume the trial of a case which he was engaged in trying as judge of the Texarkana municipal court in the State of Arkansas. Turquette approached him while in Texarkana, Texas, and told him that he wanted to talk about his case. Judge Josephs refused to talk with him upon the' street about the case, and started to walk away. Turquette then assaulted Judge Josephs, and struck him a hard blow with his fist.
    W. R. Turquette was a witness for himself, and admitted that he struck Judge Josephs on the streets of Texarkana, Texas, and knocked him down. He claims that he did so because he approached Judge Josephs in a quiet and gentlemanly manner for the purpose of talking about his case, and that Judge Josephs stared at him rudely and refused to talk with him at all.
    Judge Bacon made a finding of fact that W. R. Tur-quette struck Judge Josephs with his fist in Texarkana, Texas, on January 4, 1926, and knocked him down; that said assault was made upon said judge because of his judicial action in finding the defendant guilty of reckless driving in the city of Texarkana, Arkansas, and assessing a fine against him. The court further found that, at the time of said assault upon the judge of the municipal court of Texarkana, Arkansas, W. R. Turquette was constructively before said court, the assault having been made at a time when the case against Turquette was still pending in the municipal court of Texarkana, Arkansas, and at a time when said court had control over said judgment. The court found that Turquette was guilty of contempt, and fixed his punishment at a fine of $50 and ten days in the county jail of Miller County, Arkansas.
    W. R. Turquette filed his petition in the circuit court to quash said judgment, and presented with his petition a record of the proceedings in the municipal court of Texarkana, Arkansas, substantially as above stated. The circuit court dismissed the petition upon the record presented, and, as above stated, the case is here on appeal.

      Shaver, Shaver & Williams, for appellant.

      H. W. Applegate, Attorney General, John, L. Garter, Assistant; John, N. Gooh and Will Steel, for ^appellee.
   Habt, C. J.,

(after stating the facts). The record m this case shows a proceeding instituted by the municipal court of Texarkana, Arkansas, against W. E. Turquette for an alleged contempt charged to have been committed by striking and beating said municipal judge because he had fined -said Turquette for violation of a city ordinance. Turquette was fined in the municipal court in the State of Arkansas on the 2d day of January, -1926, and the assault was made in the State of Texas on January 4, 1926. The municipal court was still in session, but had taken a short recess, during which Judge Josephs had g-one to a drugstore which was situated in the city of Texarkana, Texas, about two hundred feet from the boundary line between the States of Texas and Arkansas.

This court has held, in effect, that all acts which impede or obstruct a court of justice or which tend to produce such effect, whether done in or out of court, are to be considered as done in the presence of the court, and are punishable as contempt. Weldon v. State, 150 Ark. 407, 234 S. W. 466. In that case, during a recess of the court, the circuit judge - was struck by Weldon for conduct in the performance of his'judicial duties in trying the case of the State of Arkansas against said Weldon. The case of the State of Arkansas against Weldon was tried at the courthouse in the city of Hot Springs, in Garland County, Arkansas, and the assault and battery was made upon the judge at a bathing place about eight.miles from Hot Springs, but which was in Garland County. The court, following the rule of the common law, held that the conduct, of Weldon was calculated to impede or obstruct the circuit court in the administration of justice, and that the act should be considered as done in the presence of the court, although it was done during a recess of the court and .about eight miles distant from the courthouse.

It is insisted, however, that the assault and battery in the present case was committed outside of the territorial jurisdiction of the municipal court of the city of Texarkana, Arkansas, and, for that reason, the court had no power to pnnish for contempt. We have not been cited to any case where the precise question- has been presented, and-have not been able to find any such case on onr own research. A majority of the court, however, is of the opinion that, under the doctrine of the Weldon case and of- the decisions from other courts upon which it was partly based, this does not make any difference.

It is perfectly plain that Turquette’s object was to embarrass or obstruct Judge Josephs in the discharge of his duties. He had been granted an appeal by the municipal court, but the transcript had not yet been lodged in the circuit court. Turquette was fined in the municipal court on Saturday, and the assault was made upon Judge Josephs on the following Monday. Tur-quette evidently intended to influence Judge Josephs in the matter, and the special judge trying the contempt -proceeding was warranted in finding that the assault was made while the case was still pending in the municipal court and at a time when that court had control over its judgment. The court made a special finding that, at the time the municipal judge was struck by Turquette, the latter said: “I’ll show you what it is to have me before your court and fine me.” This is a-quotation from the testimony of Judge Josephs, and, upon appeal, the finding of the. court below must be taken by us as reflecting the purpose for which the assault was made.

In short, the trial judge was warranted in finding that the assault was made for the purpose of influencing the municipal court in the trial of the case against Tur-quette, and that, while the assault was committed in the State of Texas, it was so near the municipal courthouse in the State of- Arkansas that it should be considered as to have been consummated there, and, for that reason, it was committed in the constructive presence of the court. The writer believes the better, view is to- hold that, the act having been committed outside of the terriT torial jurisdiction of the courts of the State of Arkansas, Turquette was not guilty of contempt. • ■ • <

It is next contended that the circuit court erred in not quashing the judgment of the municipal conrt punishing Turquette for contempt on the ground that the municipal court is not a court of record and therefore could not punish Turquette for contempt of court under the rule laid down in Ex parte Patterson, 110 Ark. 94, 161 S. W. 173. We do not agree with counsel in this contention. The municipal court of Texarkana, Arkansas, was created by the Legislature of 1917. Acts of 1917, vol. 1, page 734. The act provides that the judge of the municipal court shall he at least twenty-five years of age, of good moral character, learned in the law, two years a resident -of the State, and that he shall have have practiced law six years. His salary is fixed at $1,500 a year. The act provides that 'the city clerk shall be the clerk of the municipal court, and that' the city attorney shall be present and prosecute all cases arising out of the city- ordinances. The municipal clerk is required, to keep a complete docket of all civil and criminal pro ceedings to the extent directed by the judge. Hence we are of the opinion that the statute creating said municipal court made it a court of record, and that it has the same power to punish for contempt as other' courts of record. 6 R. C. L., § 29, page 517.

It follows that the judgment of the circuit court was correct, and it will therefore be affirmed.


author: Wood, J.

text:
    Munson v. Wade.
    Opinion delivered September 26, 1927.
    EXECUTION — right to Redemption.- — The terms, “real property,” “real estate,” “land” and “premises,” in Crawford & M-oses-’ Dig., §§ 4253-4333, respecting execution sale and redemption therefrom, are used interchangeably and mean the same thing. i — I
    Execution — redemption of leasehold interest. — In the absence of a statute changing the common-law rule and declaring a leasehold interest ah estate o-r interest in freehold or land C-3 itself-, such interest must be considered as personal property, not subject to redemption from execution sale under Crawford & Moses’ Dig., § 4329.
    3. Execution — redemption of real estate or interest therein.— Crawford & Moses’ Dig., § 4329, authorizing redemption of real estate or interest therein, sold on execution, does not embrace a leasehold interest in land for a term of years for agricultural purposes.
    4. Landlord and tenant — interest in land.- — A leasehold interest may be so worded as to give the lessee an ownership or interest in land itself during the time of lease.
    5. Execution — right to levy on crops. — At common law all the annual crops may be levied on as personal property, irrespective of the state of maturity, whether planted by the tenant or by the owner of the soil.
    6. Execution — sale of leasehold interest — redemption. — A tenant under a lease of lands for the purpose of growing crops has no- ownership or lease in the land itself and no right to redeem from an execution sale of such lease under Crawford & Moses’ Dig., § 4329.
    7. Execution- — sale of leasehold interest — redemption; — A lease of lands for agricultural purposes held not real estate under Crawford & Moses’ Dig., § 4271, so as to authorize redemption from an execution sale thereof under § 4329, in view of § 4270, classifying property Subject to sale, and §§ 4323-4328, 4341 et seq., describing different methods for the sale of real and personal . property. ’ •
    Aprpeal from Washington Chancery Court; Lee Seamster, Chancellor;
    affirmed.

      B. J. Wilson and J. W. Grabiel, for appellant.

      John Mayes and W. N. Ivie, for appellee.
   Wood, J.

The facts, as stated hy counsel for the appellant, are as follows:

On and prior to April 18, 1925, appellant was the owner and in possession of an unexpired lease on ten acres of land in Washington County, which was to continue so long as the strawberries growing thereon should produce a paying crop; on the 18th of April, 1925, this lease was sold under an execution levied out of the circuit court of Washington County upon a judgment against the appellant and in favor of the Mcllroy Banking Company. At this execution salé the appellee, H. K. Wade, became the purchaser of the unexpired lease; the sheriff executed to Wade a certificate of purchase.

On April 17, 1926, within a year from the date of the execution sale,.appellant paid into the office of the circuit clerk of Washington County the sale price of the lease, fifteen per cent, additional, and the cost of the action, for the purpose of redeeming the lease from the execution sale so made to Wade, .the clerk issued, a receipt for the money so paid, and appellant thereupon asserted his right to the possession of the leasehold.

After the expiration of one year from the date of the execution sale, and after the redemption by the execution debtor, H. K. Wade, the purchaser, with knowledge of the redemption, demanded and received from the sheriff of Washington County a sheriff’s deed conveying to him the leasehold involved. The exact date of this deed is uncertain, for the reason that the deed itself is not dated, but it was recorded, as shown by the transcript, on the 6th day of May, 1926; it does not appear to have been acknowledged. Thereupon the appellee brought this action for an injunction to restrain the appellant from interfering with the appellee in the possession of said leasehold. The chancery court in its decree held that a lease is a mere chattel and not subject to redemption, and granted the injunction prayed for.

For the purposes of our decision we accept the above as a correct and succinct statement of the facts. It thus appears that the only question for decision is whether or not an unexpired lease of land for agricultural purposes, when sold under execution, is subject to redemption under the laws of Arkansas. The statutes concerning the sale of real property under execution and the redemption from such sale are contained in §§ 4223 to 4333 inclusive, chapter 59, of Crawford & Moses’ Digest. In these sections the terms “real property,’’’ “real estate,” “land,” and “premises” are all used interchangeably and mean the same thing. The particular section under which appellant claims the right to redeem reads as follows:

“Section 4329. When any real estate, or any interest therein/ is sold under execution, the same may be redeemed by the debtor from, the purchaser, or his vendees, or the personal representatives of either, within twelve months thereafter. ’ ’

Section 6299, C. & M., declares that a judgment obtained in the courts therein named, including the circuit court, shall be a lien on the real estate owned'by the defendant in the county in which the judgment was rendered from the date of its rendition. We have no statute which, in specific terms, declares that a judgment lien on land or real estate includes, under these terms, likewise a leasehold interest in such land for any purpose, much less for agricultural purposes. Mr. Freeman says:

“A term of years in real estate was always, by the common law, regarded as a chattel. It was transferred as personal, and not • as real, estate. In this respect there was no difference between voluntary and involuntary transfers. Hence a leasehold interest in lands, for whatever term of years it may continue, must,. unless some statute directs otherwise, be levied upon and-sold as personal property. ’ ’ 1 Freeman' on Executions, § 119.

Many authorities are cited in note to sustain the text. ■ Among them is Barr v. Doe, ex dem. Binford, 6 Blackford 335, 38 Amer. Dec. 146, where, among other things, it is said:

- “A term of years is a chattel interest. Upon the death of the tenant it does not descend to his heirs, but goes to his executor. In the division of property into real and personal, it is classed among, the latter. And in'England, upon a fieri facias against the goods and chattels of the debtor, it is liable to be seized-and sold.” See also Coombs v. Jordan, 22 Am. Dec. 236.

Our own court, in Lenow v. Fones, 48 Ark. 557, speaking through Chief Justice Cockrill, at piage 565, 48 S. W. 56, 59, says: • *

“No proposition has been better settled, from the earliest days of the common law, than that a lease, of whatever duration, is but a chattel. It was at common law regarded within the definition of personal things, and, although it was denominated a chattel real to distinguish it from mere movables, it was not, when speaking with legal accuracy, considered as real estate. ’ ’

Now, in the absence-of a statute changing this rule of the common law and declaring that a leasehold interest in lands is an estate or interest in the freehold or land itself, the rule of the common law must obtain, and such leasehold interest be considered as personal property. Therefore the question recurs whether the words “or interest therein” in the above statute are sufficient to embrace a leasehold interest in lands for a term of years for agricultural purposes. We do not believe that these words have that effect or that they were so intended by the Legislature.

The language of the statute clearly shows that it was only intended to include the freehold and any interest- or ownership in the freehold itself. A leasehold interest may be so worded as to give the lessee, during the time of his lease, an ownership or interest in the land itself; but the lease under consideration is not so phrased. “At common law, and generally in the United States, all annual crops which are raised by yearly mam urance and labor, and essentially owe their annual existence to cultivation by man, termed ‘emblements,’ and sometimes ‘fructus industriales/ irrespective of their state of maturity, whether planted by the tenant or the owner of the soil, may be levied on as personal property. But, in several of the United States, execution levies are restricted to mature crops, and are not allowed as to unripe crops or as to growing crops not in a fit state to be gathered.” “Perennial plants and their ungath-ered products, such as trees, bushes, grasses, peaches, timber, fruit, etc., are incident to the soil and not subject to execution” (as personal property). 17 Cyc. 941, §■§ 3 and 4.

A tenant under a lease of lands for the purpose of growing crops has no ownership or interest in the land itself on which the crops are grown. Therefore, from a sale of such lease under execution the tenant has no right to redeem under the above statute. To be sure, those leases which convey to the lessee an interest and easement in the land itself, such as gas and oil, and other mineral leases, and leases for the purpose of cutting and removing timber and other natural products which are a part of the land itself, would fall under a different rule; and we do not mean to hold that the statute under review would not be applicable to such leases. We are not called upon to decide and do not decide that question, but merely mention it to show the distinction between those leases and the lease under review. See Standard Oil Co. v. Oil Well Salvage Co., 170 Ark. 729, 281 S. W. 360; Shreveport Pipe Line Co., v. Bennett, 172 Ark. 804, 290 S. W. 929; Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807.

Section 4271, C. & M. Digest, provides: “Every unexpired lease of land shall be subject to execution and sale as real estate.” Learned counsel for the appellant contend that, under this statute, the lease in controversy was real estate, but we do not concur in this view. The preceding section (4270) prescribes and classifies the property, real and personal, that may be sold under any execution upon any judgment, order or decree of a court of record, and, after specifying certain personal property, it mentions, in the sixth subdivision, all real estate whereof the defendant in the execution is seized in law or equity on the day of the rendition of the judgment order or decree whereon the execution issued, or at any time thereafter.

Sections 43'23 to 4328 inclusive prescribe the manner of sale of real property under execution, and §§ 4341 et seq. prescribe the manner of sale for personal property under execution. The methods of procedure for the sale of real and personal property prescribed by these statutes are different. A consideration of these statutes convinces us that the purpose of § 4271, supra, was merely to declare that unexpired leases of land should he governed by the methods prescribed for the sale of real property, rather than the method prescribed for the sale of personal property mentioned in the statute. It was within the province of the Legislature to declare that unexpired leases of land, when subject to sale and execution, should be sold as real estate is sold, that is, after giving notice of the time, place, etc., the same as that required for the sale of real estate. But it will be observed that § 4271 does not declare that unexpired leases of land or real property are an interest in the real estate itself. It only provides that, in the execution and sale of such property, it should be governed by the same methods as are prescribed for real estate. Our conclusion with reference to this statute (§ 4271) is that it is not sufficient to convert an unexpired lease of land for agricultural purposes (which, as we have seen, is a chattel real) into real estate or real property. We do not believe that such was the purpose of the Legislature, and therefore the redemption statute invoked by appellant in this case has no application.

The decree of the chancery court is in all things correct, and it must affirmed. It is so ordered.


text:
    Hill v. State.
    Opinion delivered September 26, 1927.
    1. Criminal law — presumption prom absence of bill of exceptions. — Where there is no hill of exceptions setting forth the evidence, it will he presumed that there was testimony justifying the court’s refusal of prayers for instructions.
    2. Criminal law — harmless instructions. — 'Where defendant was convicted of assault and battery, and therefore acquitted of aggravated assault, he could not have been prejudiced by an instruction submitting the latter charge.
    3. Criminal law — abstract instructions. — Refusal of a prayer for • instructions not based on testimony in the record was not error.

      4. Criminal law — conviction in mayor’s court — jurisdiction.— An information for assault, filed in the mayor’s court, is not demurrable on appeal to the circuit court on the ground that the mayor had no jurisdiction because he and the jury and . officers had a pecuniary interest in the conviction, since the trial in the circuit court on appeal is de novo.

    5. Constitutional law — right to impartial trial. — One who.was convicted of an assault in a mayor’s court was not deprived of his right to impartial trial, because the mayor, jury and officers had a pecuniary interest in his conviction, where he had a right of appeal and trial de novo< before the circuit court,- in which the court, jury and officers were not financially interested in the result of his trial.
    Appeal from Pike Circuit Court; B. E. Isbell, Judge;
    affirmed.
    P. L. Smith, for appellant.

      R. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

The prosecuting attorney of the Ninth Judicial Circuit of Arkansas, through his deputy of the county of Pike, filed an information with the mayor of the towii of Delight, accusing Jesse Hill- of the crime of an aggravated assault, alleged to have been committed as follows: “The said Jesse Hill, in the county and State aforesaid, on the 21st day of January, 1927, did unlawfully strike and hit the person of H. D. Dean with a deadly weapon, with the intent to inflict upon his person great bodily injury, no considerable provocation appearing, against the peace and dignity of the State of Arkansas.”

The mayor issued the warrant, the defendant was arrested and tried in the mayor’s court, by a jury, which returned the following verdict: “We, the jury, find the defendant guilty of assault, and assess his fine at $1000 and costs.”

• The defendant appealed to the circuit court. In that court he demurred to the information on the ground that the mayor was without jurisdiction, that the mayor and marshal of the town and all of the jurors were interested in the conviction, and that his conviction before the mayor was therefore without due process of law and in violation of the 14th Amendment to the Constitution of the United States as well as article 2 of the Constitution of the State. The demurrer was overruled by the circuit court, and the defendant was tried by the jury in that court, and the following verdict was returned: “We, the jury, find the defendant guilty of assault and .battery, and assess a fine of $100.”

In the circuit court the defendant presented prayer for instruction No. 7, which, in effect, told the jury that the defendant had a right, under the law, to protect his person against the attacks of the prosecuting witness; and, if he only did enough to protect his person or only what any prudent person would have done for the protection of his person under the circumstances, it was the duty of the jury to acquit him. The defendant also presented prayer for instruction No. 8, which, in effect, told the jury that the defendant had the right to go before a justice of the peace of his township and offer to submit, and that the law favors pleas of guilty in small offenses, and, if the jury found that the defendant did submit or surrender himself in the proper court and offered to submit, and that there was no collusion between him and the justice, and that the irregularity, if any, was the fault of the justice and not that of the defendant, he had a right to go before the justice, and, unless the jury found him guilty of a greater offense than he offered to submit to, the jury should acquit him. The defendant’s prayer for instruction No. 9 would have told the jury that, under the charge, it could only consider, the guilt or innocence of the defendant for assault and battery.

The court, over the general objection of the appellant, refused the above prayers for instructions and gave instructions which, in effect, defined in the language of the statute the offenses of simple, assault, assault and battery, and aggravated assault, and the punishment for each, and also instructed the jury that no words, however opprobrious, would justify an assault, and that a person was justified in using snch force as was necessary to protect himself against an assault made upon him.

The court also gave the usual instructions, to which the defendant offered no objection, giving the defendant the benefit of the presumption of innocence and reasonable doubt.

There is a bill of exceptions in the record in which the above prayers for instructions were set forth, but it does not set out any testimony that was adduced at the trial. It must be presumed therefore, in the absence of a bill of exceptions setting forth the evidence, that there was testimony to justify the court in its rulings upon the prayers for instructions. Moreover, since the jury found the appellant guilty only of assault and battery and thus acquitted him of the charge of aggravated assault, the appellant could not have been prejudiced by the instructions submitting such charge. There is no testimony in the record upon which to bottom appellant’s prayer for instruction No. 8. The court therefore did not err in refusing such prayer.

The appellant contends that the mayor had no jurisdiction on the ground that he and the jury and the officers had a pecuniary interest in convicting the defendant. To sustain this contention appellant relies upon the decision of the United States Supreme Court in the case of Tumey v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L. ed. p. 749. This case has no application to the facts of this record, for the reason that the statutes of Ohio, which were reviewed by the Supreme Court of the United States, are entirely different from the statutes of our State. The statutes of Ohio under consideration by the Supreme Court of the United States did not grant the defendant convicted before, the mayor’s court the right of appeal to a higher court, where a trial de novo was to be had in the higher court. But the appeal under the Ohio statutes was merely for the purpose of review, whereas, on appeal from a judgment of conviction for misdemeanor in óur State, from the lower court to the circuit court, the trial is de novo, that is, as if no judgment had been rendered, and the accused is to be tried for the same offense. Section 3387, C. & M. Digest.

Without entering upon a discussion of the decision of the Supreme Court of the United States, supra, the following language of Chief Justice Taft shows clearly that that case has no application to the case at bar:

“The trial is to be had before a mayor without a jury, without opportunity for retrial, and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so manifestly against the evidence as to indicate mistake, bias or willful disregard of duty by the trial court.” Under our law the mayor of a corporation is given the same power and jurisdiction of a justice of the peace, in all matters,. civil and criminal, arising under the laws of the State, to all intents and purposes whatever, and for crimes and offenses committed within the limits of the corporation his jurisdiction is coextensive with the county, and appeals may be taken in the same manner as from a decision of -the justice of the peace. Section 7676, C. & M. Digest, as amended by act 368 of the General Acts of 1921, page 407.

In Marianna v. Vincent, 68 Ark. 244-248, 58 S. W. 251, we said: “The mayor, having once obtained jurisdiction, the case should not have been subsequently dismissed for want of jurisdiction by the circuit court, merely on mistake of law made by the mayor, or for any other irregularity, but it should have proceeded to try the case de novo and rendered such judgment as was proper therein.” See also Laur v. State, 94 Ark. 178, 126 S. W. 840; Drifoos v. City of Jonesboro, 107 Ark. 99, 154 S. W. 196.

In 16 R. C. L., p. 209, par. 26, it is said: “It is a general rule that the right to trial by jury is not impaired where, though no jury be allowed in the court in which the action was originally tried, an appeal lies to a court in which a jnry trial may he had, if no conditions are imposed.”

Under our law neither the presiding judge at the trial in the circuit court nor the trial jury are interested financially in the result of a criminal trial, for the reason that they receive their compensation regardless of whether the accused he acquitted or convicted. It follows that the defendant was not deprived of any of his rights under the Constitution of the United States or of this State.

The judgment is in all things correct, and it is therefore affirmed.


author: Smith, J.

text:
    Davis v. State.
    Opinion delivered September 26, 1927.
    1. Criminal law — argument as to dependant’s failure to testify. ■ — The prosecuting attorney’s statement in his closing argument that “there is no denial that there is any other testimony” than that of named persons, held not a comment on defendant’s failure to testify, contrary to Crawford & Moses’ Dig., § 3123, but merely an argument that the named witnesses’ testimony should be believed because undisputed.
    2. Intoxicating liquors — registration of still — burden of proof. —The State was not required to prove the allegation that defendants kept and were in possession of an unregistered still, as the burden was on the defendant to prove its registration.
    Appeal from Hempstead Circuit Court; J. H. McCol-lum, Judge;
    affirmed.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellants were jointly indicted and tried upon the charge of possessing a still, and at the trial witnesses J. D. and Harold Parker and Braswell, Woodall and Hays gave testimony which fully warranted the jury in finding- that the appellants were in possession of the still and were about to. make whiskey with it when they were arrested.

No testimony was introduced in behalf of appellants, and none of them testified. The prosecuting attorney, in Ms closing argument, stated: ‘ ‘ There is the testimony of Parker, and the testimony of Braswell, and of Wood-all, and of Hays, and of Harold Parker, to this state of facts, and there is no denial that there is any other testimony in the case.”

Appellants objected to this argument, and the objection was overruled, and that ruling is assigned as error, as a comment by the prosecuting attorney upon the failure of appellants to testify.

Section 3123, C. & M. Digest, provides that a person charged with a violation of a law shall, at his own request, but not otherwise,- be a competent witness, and that his failure to make such a request shall not create any presumption against him, and, in the construction of this statute, we have held that it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. .

We think the record now before us is like that of the case of Markham v. State, 149 Ark. 507, 233 S. W. 676, and unlike that of the case of Bridgman v. State, 170 Ark. 709, 280 S. W. 982. In the last cited case the prosecuting witness had testified that, when he met the defendant and the defendant’s brother, the defendant was drunk. The brother of the defendant testified, and denied that the defendant was drunk, and no other person than the prosecuting witness, the defendant and the defendant’s brother were present at the time in question. The prosecuting' attorney, in Ms argument, among other things, stated that defendant’s brother had testified that the defendant had not had any liquor that day, but that the defendant did not say so, and we held that the comment that the defendant did not deny having had liquor that day necessarily referred to the fact that the defendant did not testify in the case, and for this' reference to that failure we reversed the judgment of conviction.

In the Markham case, supra, the earlier cases on the subject were reviewed, and it was held that the statement by the prosecuting attorney that testimony tending to prove the guilt of the accused was undenied and uncon-tradicted, was not necessarily a violation of the statute hereinbefore referred to. Davidson v. State, 108 Ark. 191, 158 S. W. 1103 Ann. Cas. 1915B, 436.

We conclude therefore that the argument of the prosecuting attorney set out above does not constitute a comment upon the failure of appellants to testify, but was an argument merely that the testimony of the witnesses, naming them, should be believed, because that testimony was undisputed.

In 16 O. J. 903 it is said:

“It does not follow, however, that every allusion of the prosecuting attorney to accused’s failure to testify is error, for, although there may be some reference to the matter, it is not error if the allusion is very remote and evidently not intended to call attention to that fact,' as where the comment is on the failure of accused to produce certain evidence or to prove or disprove facts, which he might do by other witnesses, or to account for his whereabouts at the time of the crime.” See also 2 R. C. L. chapter on “Arguments of Counsel,” § 27.

' The indictment alleged that defendants had kept and were in possession of a still without registering the same with the proper United States officer, as is required by law, and appellants requested an instruction to the effect that this was a material allegation which the State was required to prove. We have held, however, that the State was not required to prove this allegation, but that the burden of proving registration was upon the defendant and not upon the State. Ring v. State, 154 Ark. 250, 242 S. W. 561; Clark v. State, 155 Ark. 16, 243 S. W. 865; Rosslot v. State, 162 Ark. 340, 258 S. W. 348.

No other questions are presented in the motion for new trial, and, as no error appears, the judgment of the court below must he affirmed, and it is so ordered.