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

text:
    Davis v. State.
    Opinion delivered October 16, 1922.
    1. Criminal law — change of venue — affidavits of credible persons. — Where supporting affidavits to a motion for change of venue in a criminal case showed that affiants had no general acquaintance throughout the county and had not visited a large proportion of the townships, and their opinion that defendant could not get a fair trial in the county was based on the fact that a crowd of citizens from the county seat and from prosecutrix’s neighborhood gathered .at the examining trial, and affiants were told they were waiting to get hold of defendant to lynch him, there was no abuse of discretion in holding that the petition was not supported by affidavits of two credible persons, as required by Crawford & Moses’ Dig., § 3088.
    2. Criminal law — change of venue. — In a prosecution for rape, the fact that 138 jurors out of 173 summoned had formed an opinion as to the guilt of defendants did not show that they coula not obtain a fair trial, defendants not having exhausted their peremptory challenges.
    3. Criminal law — continuance—absent witness. — It was not error to refuse a continuance in a criminal case on account of the absence of a witness where the application failed to state that the witness was not absent by connivance of defendants and where no showing was made that the witness’ attendance could be secured at a subsequent term, and where such witness’ testimony would have contradicted ‘the testimony of one of the defendants.
    4. Criminal law — prosecutor’s remarks — removal of prejudice.—In a prosecution for rape, any prejudicial effect of the prosecutor’s remarks in his opening statement that “it was regrettable that cases of this kind must be brought before the bar of justice, and that the people are to be commended for their good behavior in the matter,” etc., was cured by an instruction to the jury to disregard the remarks.
    5. Criminal law — omission of judge to read instructions.— Under Crawford & Moses’ Dig., § 3179, providing that, when the evidence is concluded, the court shall, on motion of either party, instruct the jury on the law applicable to the case, held that where the instructions were read to the jury by the attorneys, instead of by the judge himself, this method of submitting the instructions did not deny the defendants any rights nor operate to their prejudice.
    6. Criminal law — prosecutor reading instructions. — A contention that there was error in permitting the prosecuting attorney to read the State’s instructions, instead of the judge doing so, will not be considered where no objection was made thereto in the trial court, though such practice is not to be commended.
    7. Criminal law — rape—reduction of punishment. — Where, under the facts in a rape case, punishment by death was excessive, the Supreme Court has power to reduce the punishment to life imprisonment.
    8. Rape — reduction of punishment. — Evidence in a rape case held to justify reduction of the punishment from death to life imprisonment.
    Appeal from Union Circuit Court; G. W. Smith, Judge;
    affirmed.

      Isgrig S Dillon, for appellants.

      J. S. Utley, Attorney G-eneral; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

John Davis and C. F. Johnson-were separately indicted for the crime of rape, and by consent were tried together.

The testimony for the State shows that John Davis and C. P. Johnson each committed the crime of rape upon the person of Euthy Holey, a girl fifteen years old, in Union County, Arkansas, during the first part of June, 1922. The defendant, Davis, admitted having sexual intercourse with Euthy Holey, but said that it was done with her consent. Johnson denied having had intercourse with her at all.

The jury found the defendant, John Davis, guilty of rape on the person of Euthy Holey as charged in the indictment. The jury found the defendant, C. F. Johnson, guilty of carnal abuse on the person of Ruthy Goley, and assessed his punishment at five years in the State Penitentiary.

From the judgment and sentence of conviction each defendant has duly prosecuted an appeal to this court.

Counsel for the defendants do not claim that the evidence for the State is not sufficient to warrant the verdict. Hence we do not deem it necessary to abstract the evidence adduced at the trial, and need only say that the testimony of Ruthy Goley, if believed by the jury, supports the verdict returned in each case.

The first assignment of error relied upon for- a reversal of the judgment is that the court erred in refusing to grant the motion of the defendants for a change of venue.

Dr. W. L. Miles was one of the supporting witnesses to the petition of each of the defendants. Assuming that he was a credible witness within the meaning of the statute, still the court did not abuse its discretion in refusing to grant the motion, because it cannot be said as a matter of law under the evidence disclosed by the record that the other affiant in either ease was a credible person under the statute.

Sec. 3088 of Crawford & Moses’ Digest requires that a petition for a change of venue should be supported by the affidavit of two credible persons.

W. W. Wagner was one of the supporting affiants. On his examination before the court he stated that he was in charge of a transfer company located at El Dorado, the county seat of Union County, and that his duties seldom required him to go outside of the city. He had not been outside the city since the defendants were accused of committing the crime in question, except to go to the oil wells near the city. On one occasion he saw a crowd near the courthouse -and was informed that it was waiting to get hold of the defendants to lynch them. He did not know where the crowd came from, but thought that they were from the town of El Dorado and from the neighborhood where Ruthy Groley lived. He had never heard any one say that Davis and Johnson could not get a fair and impartial trial in Union County. He based his opinion that they could not get such a trial on what he saw at the courthouse and what he heard in a barber shop in the city of El Dorado.

C. M. Barker was a remaining affiant. According to his testimony, he had come from Little Rock to El Dorado about a year before the crime in question was charged to have been committed. He made an affidavit that Johnson could not get a fair trial in Union County, and based 'his opinion on what he heard people say at his drugstore in the city of El Dorado. He did not recall whether he had heard any particular person say that Johnson could not get a fair trial in Union County. His opinion was based upon what he heard from the mob. He was asked if he knew what the people in the various outlying townships in the county thought about the case, and he said that he knew nothing about it.

The examination of these two supporting affiants showed that they had no general acquaintance throughout the county and had not visited a large proportion of the townships of the county. They had heard no expression of the general sentiment of the electors, and their information was of a local character. They based their opinion upon the formation of a mob composed of the citizens of the city of El Dorado and of the neighborhood where the prosecuting witness lived, which had gathered at the, courthouse while the examining trial of the defendants was being held. Therefore, the court did not abuse its discretion in holding that two credible persons had not signed the petitions for a change of venue, as’ required by the statute. Dewein v. State, 120 Ark. 302; Ware v. State, 146 Ark. 321, and Avey v. State, 149 Ark. 642.

Counsel for defendants also urge that the petition for a change of venue should have been granted because 138 jurors out of 173 jurors summoned were excused because they had formed an opinion in the case of the guilt of the defendants. This fact did not show that the defendants could not obtain a fair trial in a large and populous county like Union County. Indeed it is rebutted by the fact that a jury was selected out of a venire of two hundred electors; and the defendants did not exhaust the peremptory challenges allowed them under the statute.

The next assignment of error is that the court erred in refusing to grant the motion of the defendants for a continuance. The motion sets up that the defendants could show by a man named Harris that, if he were present, he would testify that he was present in the room where the prosecuting witness states that Davis and Johnson committed the rape upon her, and that neither of the defendants had sexual intercourse with her at all.

In the first place, it may be stated that the testimony of this witness, if given before the jury, as set out in the motion for a continuance, would have been directly contrary to the testimony given by the defendant, Davis. Davis admitted having voluntary, sexual intercourse with the prosecuting witness at Johnson’s rooming house, and stated that no one else was in the room when it occurred. Besides this, the motion failed to state that the witness was not absent by the consent, connivance, or procurement of the party asking for the postponement, as required by sec. 1270 of Crawford & Moses’ Digest.

Again, no showing was made that the attendance of the absent witness could be procured at a subsequent term of the court. . Hence the denial of the motion was not an abuse of discretion by the court. Davis v. State, 95 Ark. 555, and Owens v. State, 120 Ark. 562.

. It is next insisted that the judgment should be reversed because the circuit court did not instruct the jury that, if it found the defendants guilty of the crime of rape, it might assess their punishment at death or life imprisonment in the penitentiary, as • provided in § 3206 of Crawford & Moses’ Digest.

The record shows that the court expressly told the jury that, if it found the defendants guilty of rape, it might assess their punishment at death or life imprisonment in the State Penitentiary. Therefore, this assignment of error is not well taken.

The next assignment of error is that the prosecuting attorney was permitted to make certain prejudicial remarks in his opening statement of the case to the jury. The record on this assignment of error, is as follows:

“ ‘It is indeed regrettable that cases of this kind must be brought before our bar of justice. ’

‘ ‘ 1 The people of El Dorado and Union County are to be commended for their good behavior in this matter.’ “ ‘It is true that three or four hundred men assembled here on the day set for the examining trial. ’

“The defense objected to each of the above remarks as being prejudicial to the cause of the defendants, and the court instructed the jury to disregard them.”

It will he noted that the court instructed the jury to disregard the remarks made by the prosecuting attorney, and this, we think, had the effect to cure any prejudice that might have resulted to the defendants from the remarks. Walker v. State, 138 Ark. 517; Sims v. State, 131 Ark. 185, and Williams v. State, 131 Ark. 269.

The next assignment of error is that the judgment should be reversed because the court did not read the instructions to the jury.

The record shows that the court itself did not read the instructions to the jury, but permitted them to be read and argued by the prosecuting attorney and by the attorneys for the defendants.

Sec. 3179 of the Digest provides that when the evidence is concluded the court shall, on motion of either party, instruct the jury on the law applicable to the case. This is a part of our statutes regulating the procedure in criminal cases, and we have no provision requiring the presiding judge to read his charge to the jury.

The record affirmatively shows that the attorneys for the defendants were allowed to read and argue to the jury the instructions prepared by themselves in the case. The record further shows that these instructions were given. The omission of the presiding judge to himself read the instructions to the jury merely affected the method pursued and did not deny the defendants any rights under the statute or operate to their prejudice.

The record shows that the defendants saved exceptions to the State’s instructions Nos. 1 to 4. The record also shows that these instructions were not read to the jury by the court but were read to it by the prosecuting attorney. It does not show, however, that any objection was made by the defendants to this course. Hence this assignment of error is not well taken. Wells v. State, 151 Ark. 221.

"While no prejudice resulted to the defendants in this case, the practice is one which should not be resorted to except by reason of some physical disability of the presiding judge, and then be should direct the clerk to read them to the jury as the instructions of the court. The instructions are statements of the law applicable to the facts, and are given for the guidance of the jury in considering the testimony. Hence they should proceed directly from the presiding judge.

The instructions given by the court fully and fairly submitted to the jury the respective theories of the State and of the defendants. Indeed, no complaint is made about the iristructions by counsel for the defendants, except as already discussed.

"We find no reversible error in the record, and the judgment in each case will be affirmed.

Hart, J.,

(on rehearing). Upon a reconsideration of the case, we are of the opinion that, taking all the circumstances together, the sentence of punishment by death is excessive, and that we have the power to reduce it to life imprisonment.

This court has held that in prosecutions for homicide the finding of the jury as to the grade of the offense must stand, unless it is wholly without evidence to sustain it,- but where the punishment assessed by the jury is excessive, this court will reduce it. Whether the punishment is or is not excessive is to be determined upon a consideration of all the facts and circumstances of the particular case. Petty v. State, 76 Ark. 515, and Childs v. State, 98 Ark. 430.

This brings us to a determination of the question of applying this rule to cases of rape. In this State rape is defined to be the carnal knowledge of a female forcibly and against her will. Crawford & Moses’ Digest, § 2714. The statute also provides that any person convicted of the crime of rape shall suffer the punishment of death. Crawford & Moses’ Digest, § 2719. A subsequent statute provides that the jury -shall have the right, in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the State Penitentiary at hard labor. Crawford & Moses-’ Digest, § 3206.

In construing this latter statute in Walker v. State, 137 Ark. 402, the court referred to the jury fixing the punishment in a capital case at life imprisonment as imposing the lesser penalty provided by the statute. This indicates that the court regarded the statute as fixing a lesser and greater punishment in capital cases just as, in cases of murder in the -second degree, the punishment is fixed at a period of not less than five nor more than twenty-one years (§ 2353), and in 'carnal abuse the punishment is fixed by statute at imprisonment for a period of not less than one year nor more than twenty-one years (§ 2720).

Again, in Burns v. State, 154 Ark. 215, it was held that the finding as to the punishment in capital cases was a part of the verdict, and that the statute gave the jury, and not the trial court, the power to fix the punishment at life imprisonment.

The Legislature in providing a greater and lesser punishment in capital cases evidently had in mind that, although the technical guilt of the accused might be established, there might be extenuating circumstances, such as the extreme youth, of the defendants or other matters, as in the present case. Thus it will be seen that in capital oases the jury may now fix the punishment at death or by life imprisonment' in the -State Penitentiary at hard labor. The effect of the two sections, when considered together, fixes a greater and lesser punishment for all capital cases, and therefore brings this case within the rule announced' above.

This brings us to a consideration of the facts. Ruthie Goley, the prosecuting witness, was fifteen years old on the 22nd day of March, 1922, and lived with her parents in Union County, Ark., at the time of the perpetration of the crime there on June 1, 1922. According to her testimony, Ruthie Goley first met the defendant at her father’s house on May 31, 1922. He came in a oar with Shorty Miller, who came to tell Mr. Goley about his mule colt. The defendant went to the cow pen with Ruthie Goley in company with her little brother, and they stayed there about thirty minutes. The next afternoon Ruthie Goley went with her little brother to carry some eggs to a neighbor in the country, and met the defendant on the road about a half mile from her father’s house. Davis asked them to get in and ride with him. When they arrived at the neighbor’s house, Davis told her brother to get out and carry the eggs in. When her brother got out of the car, Davis started the oar down the road. Ruthie Goley asked him to stop and let her get out. He told her he would not do' it, and said that if she hollered he would blow her heart out. Davis had' a gun on him. There was a negro named Grant in the car. Davis drove down the road to a big gate which Grant-opened for him to drive in. Davis asked Grant for a room, and Ruthie Goley refused to go in with him, and grabbed hold of a post on the porch. Davis told the negro to hang a quilt on the porch post so that he could make her go into the house. He then made her go into the house, and told her to get on the bed. She refused, and Davis got hold of her and put her on the bed. He fastened her feet between the springs and the foot of the bed and put his hand' over her mouth. He told her that if she did not lie still he would shoot her head off. Davis then had sexual intercourse with Ruthie Goley. She had never had sexual intercourse with any other man. • They stayed at the negro’s house about twenty minutes, and then went to Johnson’s rooming house. She begged Davis to take her home, but he kept her in the rooming house and had sexual intercourse with her, against her will, several times. That night the defendant, the prosecuting witness, and Johnson drove up the public road a piece. The next night Davis and Johnson took her to a burning gas well in the neighborhood. Davis and Johnson kept her for more than two days, and both had sexual intercourse with her against her will. The night they went to the burning well they passed lots of people, but the prosecuting witness made no outcry. The mother of the prosecuting witness admitted that her young son came back and brought her the information that the defendant had carried his sister away in the car. When Davis was arrested, he did not have any pistol on him.

Mary Jane Grant testified that she did not hang any quilt on the porch at her father’s house to enable the defendant to force the prosecuting witness to go into the house with him. She testified that Davis came into the house and asked for a room. Davis then called the girl, and she came of her own accord from the car, which was about 100 yards from the house. She voluntarily went with the defendant into the room, and they stayed there for about thirty minutes.

Johnson, the proprietor of the rooming house at which the defendant kept the prosecuting witness, denied having had intercourse with her at all. The defendant was forty-two years old, and has been married three times. He admitted having sexual intercourse with Ruthie Goley, but stated that it was with her consent. He wanted to take her back home after they left the negro’s home, but she refused to-go. He then carried her to Johnson’s house and kept her there for two days and nights. The defendant also stated that he made arrangements with Ruthie Goley at the cow pen at her father’s house to meet him down the road the next afternoon. Both Ruthie Goley and her little brother denied that she did this.

The testimony of Ruthie Goley warranted the jury in finding the defendant guilty of rape, and, under the rule announced above, this court can not set aside the finding of the jury as to the grade of the offense. But, taking the surrounding circumstances into consideration, we are convinced that this is not an aggravated ease of rape. After the • prosecuting witness was carried to Johnson’s rooming house she admits that she went out riding with them to a burning gas well and passed lots of people on the way, yet she made no outcry. They stopped the automobile in front of a store, and Davis was absent in the store for a half of an hour. The prosecuting witness sat in the car with Johnson and made no outcry there. Ghe also admitted that they passed people on the first day while Davis was carrying her down the road to the negro’s house, and she made no outcry. She gives as an excuse that she was afraid to cry out because the defendant had a pistol. The defendant had no pistol at the time he was arrested. Her young brother reported the fact to his mother that his sister had gone off with Davis.

These circumstances all .tend to show that the prosecuting witness was not entirely the innocent victim of brute force. When her youth.is considered in connection with the mature age of the defendant, and the fact that our statute makes it unlawful to have sexual intercourse with a girl of her age, it is clear that the defendant should receive a severe punishment, but, taking all the circumstances together, we are of the opinion that a sentence of death is excessive, and, that we have the power, under the statute, to reduce the punishment to life imprisonment in the State Penitentiary at hard labor, which is accordingly done.

. With that modification, fihe judgment will be affirmed.

McCulloch, C. J.,

(dissenting). The power of this court' to reduce the punishment in a criminal case, when found to :be excessive under the evidence, is undoubted. The power to impose life imprisonment instead of death on conviction of murder in the first degree or rape is, however, conferred solely on the trial jury. It is not a question of sufficiency of the evidence, but wholly an act of clemency in imposing the lighter punishment, and where the jury imposes the maximum punishment of death we cannot reduce the punishment if the evidence sustains the conviction. Clemency is not a judicial function. It is exercised, after conviction, by the chief executive.

There are no degrees in the crime of rape, and there can be no mitigating circumstances. If the act is done forcibly and against the will of the injured female, nothing can mitigate the enormity of the offense.

I fail to discover in the present case any mitigating circumstances. The fact that the injured female failed to make outcry when she should have done so, or would have been expected to do so, tends to show that the intercourse was not against her will, but the jury found, upon sufficient evidence, that she did not consent, and that fact did not lessen the enormity of the offense.

I think that the question of clemency should be left to the judgment and discretion of the Chief Executive where the power is lodged by the Constitution.

Mr. Justice Humphreys joins in this dissent.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Waterworks Improvement Dist. No. 2 v. Logan County.
    Opinion delivered October 16, 1922.
    Municipal corporations — improvement district — assessment op county property. — The statutes which authorize the creation of municipal improvement districts and the assessment of real property lying therein do not provide that property exempted- by Const, art. 16, § 5, from taxation for general revenue purposes shall be taxed for improvement district purposes, and in the absence of such authority a city has no power to impose assessments for waterworks purposes against land on which a county courthouse and jail are situated.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      George A. Hall, for appellant.
    The Constitution provides no exemption of public property except for general taxes. Art. 16, sec. 5; .art. 19, sec. 27. Where no exemption is made as to local assessments, all property is subject to this tax, else the express command that “assessments for loe'al improvements shall be uniform” would 'be destroyed. 130 111. 566; 55 Iowa 150; 26 Mo. 468; 48 Ark. 370; id. 251.
    Act 165 of Acts of 1907 does not attempt nor intend that any property be exempt from benefit assessments.
    One who enjoys a benefit shall pay for it, is a principle of natural equity.

      Robert J. White, for appellee.
    While the Constitution does not expressly exempt certain classes of property named from taxation for local improvements, the case in 56 Ark. 354 holds that to include such property for taxation for local improvements there must be special legislative authorization therefor. Such authorization has been granted in cases of school districts, but not as to property used exclusively for courthouse and jails. See also 65 Ark. 343.
   Smith, J.

This appeal involves the right of a municipal improvement district .embracing the city of Paris, in Logan County, to- impose an assessment of betterments against town lots on which a county courthouse and jail were- situated for waterworks purposes. The only defense to the suit is that authority for such assessments does not exist in the law. The court below so found, and dismissed this suit, which was brought to enforce the payment of delinquent assessments.

The power to assess public property used exclusively for public purposes, school buildings and other property exempted by the Constitution of 1874 (section 5, article 16) from taxation for general revenue purposes, for local improvement purposes, was thoroughly considered • by this court in the case of Board of Improvement v. School District, 56 Ark. 335, and the majority opinion by Justice Hemingway and the dissenting opinion by Chief Justice Cockrill leave nothing to be added to the discussion.

The view'was expressed in both opinions that such property was not exempt under the Constitution from assessments for local improvements, but it was the opinion of the majority that the statutes which authorized the creation of municipal improvement districts and the assessment of the real property lying therein did not provide that property exempted by the Constitution from taxation for general revenue purposes should be taxed for improvement district purposes, and, in the absence of legislative authorization, could not be taxed for such purposes.

By act of March 3, 1913 (section 5654, C. & M. Digest) it was enacted that the property of public school districts shall be subject to assessment for local improvements -beneficial thereto; but there has been no legislation authorizing municipal improvement districts to tax other public property used exclusively for public purposes; and the action of the council of the city of Paris in including the courthouse and jail in the improvement district and in assessing benefits against that property was without authorization, and is therefore void, and the decree of the court below is affirmed.


author:
Smith, J.
      Humphreys, J.,

text:
    Mott v. Sovereign Camp Woodmen of the World.
    Opinion delivered October 16, 1922.
    1. Insurance — burden op proving suicide. — In a suit on a policy of life insurance where there was no liability in ease of suicide, the insurer has the burden of proving that insured committed suicide.
    2. Insurance — suicide—evidence.—In a suit on a life insurance policy circumstantial evidence held to warrant a directed verdict for defendant on defense of suicide.
    Appeal from Yell Circuit Court, Dardanelle District;, A. B. Priddy, Judge;
    affirmed.

      B. A. Smdlin and Wilson S Chambers, for appellant.
    The court erred in directing a verdict for the appellee. 89 Ark. 368; 100 Id. 71; 104 Id. 267; 105 Id. 526; 107 Id. 158; 145 Ark. 408.
    The burden of proof was on appellee to establish suicide. 133 Ark. 176. Before it was entitled to an instructed verdict it would have to establish to a reasonable certainty that deceased could not have met his death by accident or the act of a third party. Bacon’s Life & Acc. Ins. (4th ed.) sec. 438; 230 S. AY. 369. Appellee’s proof is entirely circumstantial. There is a presumption against suicide. 80 Ark. 190; 19 A. & E. Ene. Law 77; 127 U. S. 661; 73 Fed. 444.
    The case at bar is stronger from the facts and circumstances that the deceased did not commit suicide than any of the following: 221 S. AY. (Ark.) 858; 128 Ark. 155; 213 8. AY. 45; 215 S. AY. 265; 201 S. AY. 1128; 232 S. AY. 708.

      T. E. Helm, for appellee.
    The cases relied on by appellant may be differentiated from the present one on the facts.
    There was only one reasonable conclusion to be drawn from the evidence in this case and that was that deceased committed suicide, and it was the duty of the court to direct a verdict for appellee. 19 A. & E. Enc., Law. 77; 25 Cyc. 951; 4 Cooley’s Briefs on Law of Ins. 3264; see also sec. 3269 ; 204 Pac. 523.

      The 'undisputed, facts establishing -a case of suicide here, it would have been error to submit the case to a jury. 95 Ark. 456.
   Smith, J.

Appellant sued to recover as beneficiary in a policy of insurance on the life of her son, W. B. Mott. The policy contained a provision that there should be no liability if the insured committed suicide, whether sane or insane, and the insurance company defended on the ground that the insured committed suicide. There was a directed verdict in favor of the insurance company, from which is this appeal.

The insurance company assumed the burden, which the law imposed on it, of showing that the insured died by his own hand. The insured’s throat was cut, and this was the cause of his death. No one actually saw the wound inflicted,- but the insurance company claims that the facts and circumstances are such that no other inference can fairly and reasonably be drawn than that the insured committed suicide, and it contends therefore that the verdict was properly directed in its favor.

The facts are as follows: Mott, the insured, was twenty-two years old, and enlisted in the regular army and was assigned to the Ninth Becruit Company at Fort Logan, Colorado. He became ill and was sent to the army hospital. The physician who had his case in charge testified that Mott had a temperature of 102, and was laboring under the insane delusion of having committed several robberies. One of the crimes which he thought he had committed was that of bank robbery with the assistance of his brother. He thought his brother assisted him in the commission -of the crime and had refused to divide the spoils, and was threatening to turn him over to the -civil authorities. The physician further testified that Mott bought, on the day of his death, a safety razor from a fellow soldier. "Witness was notified ■about 4:10 in the afternoon of July 4th that Mott had killed himself. He reported to the hospital at once, and found the body of Mott on a bed in the medical ward, covered by a sheet. On examination he found an in,cisión through all the tissues of -the lower portion of the neck, including the trachea, and the carotid artery was found severed. The incision was about five inches long. Witness arrived about 4:20 and found deceased had been dead about ten minutes. He stated that, from the evidences before him, it was very clear that the patient had killed himself by the use of a safety-razor blade. He stated the temperature of the patient was not sufficient to produce delirium. With the accompanying symptoms which he had, and from the untruthfulness of the patient’s statements as to his acts, witness was of opinion that the patient had become insane.

A Miss Fox, who was a trained nurse in the surgical ward, testified that she was on duty at the time Mott killed himself. She was not regularly in charge of the medical ward, but on the day in question was giving that ward attention, as the nurse in. charge was not feeling well. She testified that a few minutes after four she entered the end of the ward in which Mott was confined. This was a large ward and had, perhaps, twenty beds in it. Mott’s bed was about three or four beds from the end at which she entered the ward, and he was lying on his 'bed as she walked through the ward, and was the only patient in the ward. Witness walked on out of the door at the far end of the ward on to a porch. About the time she reached this porch or very shortly after-wards she heard a noise which was probably occasioned by Mott falling out of bed. She listened, and presently heard a peculiar noise like some one breathing hard. She then rushed back into the hospital and found Mott lying on his stomach in a pool of blood. She was accompanied back into the ward by the nurse in charge thereof, and who had been standing out on the porch where witness was when she heard the sounds within which attracted her attention. This nurse reached the body a few seconds after witness did, and they put him in his bed, and noticed a deep cut across his throat, from which blood was flowing freely. The patient died in three or four minutes qfter she reached his body. When she first found, the patient, lie was lying in a pool of blood, and in this pool was a safety-razor blade. She stated that only a very short interval elapsed between the time she . saw the patient lying on his bed as she walked through the ward and her return to it.

In rebuttal testimony was offered to the effect that Mott had long desired to enlist in the army, and was satisfied with his condition there; and an ex-service man testified that army regulations required enlisted men to shave regularly; and a local physician testified that it would be difficult for one to sever the trachea and the carotid artery with a safety-razor blade, as considerable pressure would be required, but he admitted it could be done in that manner.

Appellant insists that the case should have gone to the jury to determine whether Mott died by his own hand. The first suggestion is that he may have killed himself accidentally in an effort to shave. But there is nothing in the testimony to support this theory. He had no soap or towels or water, and it was very highly improbable, if not, indeed, physically impossible, for Mott to have inflicted such a wound as the one which killed him in a mere attempt to shave.

The second suggestion is that Mott may have been murdered, but this theory seems equally improbable. Both the physician and the nurse described the case as one of suicide. Neither motive for any one to kill Mott nor opportunity to do so existed. There was no evidence of a struggle about the bed, except that Mott had fallen off of it, and there was no one in the ward who could have committed the crime, certainly not without the connivance of the nurse, and the theory of her connection with it is not suggested by appellant. Mott had only a small sum of money, and that was returned to his mother after his death.

Under the circumstances stated a case was not made for a jury, as the only reasonable inferenceffo be drawn from the testimony is that he killed himself; and, this being true, there was no liability under the policy sued on.

Judgment affirmed.

Humphreys, J.,

(dissenting). The love of life is so great that the law strongly presumes against death by suicide. Even when death is self-inflicted, the law will presume it was accidental until the contrary is made to appear. Grand Lodge A. O. U. W. v. Bannister, 80 Ark. 890; Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 459; Columbian Woodmen v. Matlock, 144 Ark. 126. In the instant case, therefore, the burden was upon appellee to overcome the legal presumption against death by suicide, with proof sufficiently strong to exclude every reasonable conclusion, except that the death occurred by suicide. The nature of the wound was sufficient within itself to create a reasonable doubt as to the manner in which the insured met his death. It was five inches in length, and, at places, two and one-half inches deep. The hard, gristly parts of the throat were cut. The appellee would have the court draw the inference that such a wound was necessarily inflicted by the insured with a safety razor blade only an inch and a half long. The physician who examined the deceased testified that it would have been hard for him to have inflicted the wound upon himself with such an instrument. In order to have held the blade firmly, the insured would have taken up half its length in the grasp. In that event, only three-quarters of an inch would have been exposed. As said by the physician; it would have been hard indeed to have inflicted such a wound with an instrument so short and thin. Again, the insured was lying on his stomach on the floor when found, having fallen off the bed after inflicting the wound upon himself, according to the surmise of the nurse. Had he inflicted the wound and fallen off the bed, it is passing .strange that blood was not on the bed and all over the floor, instead of being in a pool near the body. No attendant was in the room when the tragedy occurred. The insured was lying, when last seen/ on a bed near a door. Any one so inclined could have entered the door, killed the insured, and escaped before the nurse reappeared on the sc’ene. The nature of the wound, position of the body, and pool of blood might well tend to prove that the insured met his death by foul play. At least, these circumstances are not inconsistent with such a theory, and are rather inconsistent with' the theory of suicide. It seems to me the rule has been reversed in making* the application to the facts in this case. A presumption has been indulged in favor of suicide, instead of against it. Under the facts and circumstances, the manner of death was clearly a question for the jury to determine. For the reason stated, I am impelled to register my dissent.


author: Humphreys, J.

text:
    First National Bank of Rogers v. Tribble.
    Opinion delivered October 16, 1922.
    1. Insane persons — evidence op insanity. — Evidence held to show-insanity.
    2. Evidence — opinions op experts. — Testimony of physicians concerning* the mental condition of a person, based upon personal association with or examination and observation of the person, held competent, though not based upon a case hypothetically stated.
    3. Evidence — opinions op non-experts. — Testimony of non-expert witnesses as to a person’s mental condition was admissible where they stated the facts and circumstances on which they based their opinions.
    4. Partnership — claim op individual partner. — -Where funds of an insane partner were used to pay for goods which went into the firm’s stock, and were sold along with other goods, such partner’s estate was entitled to reimbursement pro rata with other creditors out of the proceeds of sale of the stock.
    5. Insane persons — cancellation op contracts — restitution.— Contracts with insane persons are void ah initio, and may be - canceled without a restoration of the consideration if it has been wasted or dissipated.
    6. Confusion op goods — property wasted during insanity.— Where goods purchased for a partnership by an insane member and paid for by him with his separate money were commingled with the goods of the firm, and were sold at a loss to satisfy the partnership debts, the insane partner was entitled only to share pro rata with other creditors of the firm.

      7. Receivers — taxes.—Where, prior to an application for a receiver in insolvency, an attachment was levied by the seller upon specific goods sold to the insolvent, upon which the seller owed taxes, the State’s lien for taxes was payable from the amount allowed the attaching seller upon his preferred claim.
    Appeal from Benton Chancery Court; Ben F. Mc-Mahan, Chancellor;
    reversed and affirmed.

      Duty & Duty and Funk & Funk, for appellants.
    To invalidate the contract of an insane person, .his insanity must be such as to disqualify him from intelligently comprehending and acting upon business affairs out of which the contract grew, and to prevent him from understanding the nature and consequences of his act at the particular time the contract was entered into. An insane person who has lucid intervals may enter into binding contracts during those intervals, and may be held liable even in the case of an executory contract, if he comprehended the nature and consequences of his act at the time he entered into such contract. 129 Ark. 88.
    Where evidence has been given tending to show the insanity of a person, and other evidence tending to show his sanity, it is not competent to inquire of a medical expert his opinion respecting that person’s sanity or insanity, forming his opinion from the facts and circumstances detailed by the other witnesses. He will not be allowed to determine from the testimony of other witnesses what the facts are, and to give his opinion upon them. 82 U. S. 9; 64 Ala. 18; 62 Miss. 409.
    The opinion of Sam Tribble as to appellee’s insanity was not competent, because the facts and circumstances upon which he based his opinion were not disclosed. 92 Ark. 457; 22 Id. 92. Sanity is presumed until the -contrary is proved, and the burden was on the defendant to prove his insanity. 27 Ark. 156; 59 Id. 246; 4 Elliott on Contracts, 3820.
    The chancellor’s finding as to the insanity of the defendant at the time the contracts were made with Poindexter & Sons’ Merchandise Company, and the borrowing of the money from the two banks, is clearly against the preponderance of the evidence. 70 Ark. 166; 97 Id. 450; 129 Id. 88.
    The estate of an insane person is liable for debts created by him where it is shown that the creditor acted in good faith without knowledge of the mental incapacity of the debtor, and before any adjudication of insanity was had, where no fraud or undue influence was used in the transactions and the insane person actually received the benefit of such transactions. 19 R. C. L. p. 584, § 40; 81 Ind. 433; 94 Id. 535; 23 la. 333; 34 Kan. 87; 88 Md. 368; 48 N. H. 133; 140 N. C. 163; 82 Atl. 837, Ann. Cases 1914-D, p. 865; 79 N. T. 541; 2 Exch. (Eng.) 48'6; 7 De G. M. & G. (Eng.) 487; 1 Story’s Equity, Redf. Ed., §§ 227, 228; 2 Pomeroy, Equity, § 946; Chitty on Contracts, $ 3139; Parsons on Contracts, § 312.
    The contract of an insane person, where he has conveyed real estate and spent the consideration and has no means of returning it, ought not to be placed in the same class with the contract of an insane person which does not involve a conveyance of real estate, but under which he has obtained money and personal property, whose estate is sufficient to place the other part in statu quo. ' Under such an executed contract it would be derogatory alike of sound law and good morals to allow the insane person to retain the consideration to swell the corpus of his estate. 85 Vt. 488; Ann. Cas. 1914-D, p. 869; 38 N. J. 536; 97 Temí. 120, 36 S. W. 716; 78 Pa. St. 407; 65 Ala. 98; 112 Ala. 465; 85 111. 62.

      John W. Nance and Lee Seamster, for appellee.
    If there was any error at all in the finding of the chancellor with reference to appellee’s insanity, it was in finding that he was not' of unsound mind prior to the time he located at Rogers.
    Conceding that an insane person may make a valid contract during a lucid interval, there is no testimony that appellee made either of the contracts sued upon during a lucid interval, no testimony offered to show that lie was sane at any time during the progress of these transactions.
    Appellant’s authorities on the proposition that the opinions of expert witnesses must be based on questions hypothetically stated were not necessary; they have no application here, since none of the witnesses attempted to testify as experts. Their testimony must be classed as non-expert, and, since they detailed the specific facts upon which their opinions were based, their testimony was competent and admissible. 103 Ark. 200; 61 Id. 245; 97 Id. 457; 22 Id. 92.
    It is true that every person is presumed to be sane until the contrary is shown; 'but it .is also true that where one’s insanity has once been established by proof, he is presumed to continue of unsound mind until the contrary is shown, and in this case the burden was on the plaintiffs to establish the defendant’s sanity by a preponderance of the evidence, and to show that he executed the contracts during lucid intervals. 14 R. C. L. 622; 4 A. & E. Ann. Cas. 490, 491.
    Under the law as construed by this court an insane person’s estate cannot be held liable for his debts incurred and contracted when he was insane. 148 Ark. 249; 129 Id. 188; 23 Id. 417.
    The State’s lien for taxes had attached before Tribble purchased the McGintv stock of goods,, and Mc-Ginty had become personally liable, and that lien was not affected by the failure of the receiver to pay the taxes. The goods could be followed by the State for the purpose of enforcing its lien for taxes into whosesoever hands they might be found. 46 Ark. 73.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Benton County involving the validity of loans made to A. L. Tribble by the First National Bank on Jan. 18, 26, and Feb. 2, 1921, in the respective sums of $2,000, $1,000, and $5,000, and by the American National Bank on Jan. 28 and Feb. 1, 1921, in the respective sums of $750 and $503; and of the purchase of a large bill of goods from H. D. Poindexter & Sons’ Merchandise Co. Jan. 26th of the same year. The First National Bank filed suit on Feb. 5, 1921, against A. L. Tribble, doing business under the firm name of Rogers Mercantile Co., and A. L. Tribble and G. Flanigan, doing business under the firm name of Tribble & Flanigan, alleging that it was a large creditor of the firms; that said •firms and the members thereof were insolvent, and that, through the gross mismanagement and waste of A. L. Tribble, the assets of the respective firms were being 'rapidly dissipated. The prayer of the bill was for the appointment of a receiver to take charge of the assets of the firms and apply the proceeds thereof to the payment of its claim. Prior to the application for a receiver, E. A. McGinty had instituted and levied a specific attachment upon the stock of goods sold by him to A. L. Tribble for the balance of the purchase money due thereon. Other creditors, including the State of Arkansas for the use of Benton County to collect taxes on the MoGinty stock, intervened, and a receiver was appointed, who took charge of the assets belonging to both firms, including the McGinty stock. The receiver, by order of the court, sold the several stocks of goods separately. The stock of goods purchased by Tribble from É. A. MoGinty, and operated in the name of Rogers Mercantile Co., brought $3,765.13; the new stock purchased for the latter firm brought $8,216.12, and the Tribble & Flanigan stock brought $2,909.49.

A guardian was appointed by the probate court for A. L. Tribble, who intervened and attacked the validity of the claims of the creditors, on the ground that his ward was insane at the time he borrowed the money and purchased the goods.

The cause was submitted to the court upon the pleadings and testimony, which resulted in the following findings : That A. L. Tribble was competent to transact business on Oct. 18, 1921, when he borrowed $1,800 from the First National Bank, which went into the business of Tribble & Flanigan; but that he became insane soon thereafter, and was insane when he borrowed the other moneys from said banks and purchased the McGinty stock and other goods; that the moneys borrowed from both banks, including an overdraft of $444.54 in the First National Bank, were used in the purchase of the McGinty stock and other goods for the firms owned and operated by A. L. Tribble; that A. L. Tribble invested $4,064.90 in cash out of his separate estate in the Rogers Mercantile Co.; and that, on account of the disability of A. L. Tribble, appellants were not entitled to recover out of Tribble’s separate estate, on their claims growing out of contracts entered into with him after October, 1921; but were entitled to participate pro rata, according to the several amounts of their claims, out of the proceeds of the sale of the goods of the Rogers Mercantile Company, after paying McGinty’s claim, the taxes on the McGinty stock, and A. L. Tribble’s individual investment of $4,064.90 in the company; that the First National Bank was entitled to recover $1,800, which it loaned Tribble on the 18th day of October, 1921, and which was included in the renewal note of $2,000 in January, 1922, out of the proceeds of the sale of the Tribble & Flanigan stock. A decree was rendered in accordance with the aforesaid findings.

Appellant’s first contention for reversal is, that the court erred in finding that appellant was insane at the time he purchased the goods and borrowed all the moneys except the amount of $1,800. The record reveals that as early as March, 1921, Tribble was under treatment of Dr. Kitchens, a physician of DeQueen, for mental trouble; that he was taken to Dr. J. L. Green of Hot Springs, a specialist, who discovered that he was suffering from a depressed phase of manic-depressive insanity, which disease, according to the testimony of the expert, in both its first and second stages, incapacitated him for intelligently transacting business. He returned to his home, but was taken a second time to Dr. Green for treatment. Dr. Green was out of Hot Springs, so he was treated by one of Dr. Green’s assistants. During the month of February, 1921, just after the receiver was appointed, he was again taken to Dr. Green for examination, who advised that he be taken to the insane asylum for treatment. The expert described the second stage of Tribble’s disease as the period of exaltation, saying that the evidence of it was over-activity of mind, the disease leading him to do unreasonable things, such as acquiring unreasonable obligations. Tribble was a candidate for sheriff of Sevier County in the summer of 1920, and was defeated by a small vote. After his defeat he moved to Rogers, hoping that the climate would improve his mental condition. He purchased a small grocery business and conducted it under the name of Tribble & Flanigan. Flanigan only had a working interest in the firm. On the 18th of October, 1920, Tribble borrowed $1,800 from the First National Bank, wfhich was put in the business. On January 18,1921, he borrowed $2,000 from the First National Bank out of which he paid the $1,800 note he had given in October. He then decided to add a small stock of dry goods to his grocery stock, and, after informing W. R. Daly, his family, and the bank of his intention, he went to Kansas City to purchase the dry goods. On January 20, 1921 a collection of $4,064.90 was made for him by the First National Bank on a note against Texas parties, and was that day placed to his credit in the bank. He was in Kansas City at the time, where he had gone to buy goods. While there he purchased goods to the amount of about $10,000 and gave a check for. $3,500 in part payment thereof, on his account in the First National Bank. At the time of the purchase he had no place to put the goods or money to pay for the rest of them. He came home, and on January 26th borrowed an additional $1,000 from the First National Bank, and on January 28th he borrowed $1,303.69 from the American National Bank. He then purchased the McGinty stock of groceries, which invoiced over $6,000, and contracted for the building in which the McGinty stock was located for $10,000. On February 1st he borrowed $5,000 from the First National Bank, $4,000 of which amount was used in part payment of the McGinty stock. Early in February he tried to borrow $5,000 more from the American National Bank to pay on the Kefauver brick building, for which he had contracted, but it declined to make the loan. He made extensive improvements on the brick building he purchased before making arrangements to pay for it. He occupied the home of his sister-in-law, and, without her consent, built a large basement under it for the purpose of putting in a heating plant, and contracted for other substantial improvements on it. He was residing next door to Dr. W. A. Moore, who testified that Tribble spent much time with him in the evenings; that in December Tribble abruptly informed him that he was going to build a concrete road across his (the doctor’s) back yard over to his outbuildings so he could wash his car; that Tribble was nervous and abnormal in conversation; that he planned to build a $100,000 hotel, and talked about it a great deal, when he had no capital with which to build it; that he became convinced in December, from his conversation, that he was mentally wrong, and gave it as his opinion that during the months of December, 1920, and January, 1921, he was mentally deranged and unable to exercise a reasonable judgment in business affairs. On February 3rd Tribble called on the First National Bank and tried to borrow eight or ten thousand dollars more, and when refused became boisterous and showed evidence of insanity. After consultation, the president and cashier of the bank notified his brother and requested him to come to Rogers. When he came and investigated his 'brother’s condition, it was agreed that the bank should make application for a receiver to take charge of the assets of both firms, to prevent waste and protect the creditors. During the negotiation of the loans and the various purchases of the goods Tribble appeared to be normal. No evidences of insanity were observed by the officials of the banks or the parties from whom he purchased goods. The banks loaned him money on the strength of very flattering reports and recommendations received from bank officials at Lockesburg and DeQueen. The loans and sales of goods were made to Mm believing, in good faith, that he was sane. Immediately after his condition was discovered he ivas taken to Little. Rock, and before he was committed to the asylum for treatment he called on the Doyle-Kidd Dry Goods Company, made a financial statement showing that he had a capital of $150,000, bought $5,000 worth of goods in the piece department, a large quantity of overalls and work shirts in the furnishing department, and several thousand dollars’ worth in the silk department. He handed the company a cheek for $500 and ordered the goods shipped C. O. D. They took his. check, at his wife’s suggestion, for the purpose of humoring him.

Learned counsel for appellants argue that all the business transactions of appellant, from the time he located in Rogers until he attempted to borrow an additional eight or ten thousand dollars from the First National Bank, were normal in character and judiciously made, evidencing within themselves that Tribble fully comprehended the nature and consequences of his acts. We cannot concur in this conclusion. It does appear that he conducted the first business in which he engaged in a conservative and careful'manner for a few months, but all of a sudden, and contrary to the plans divulged to the bank and his family, he borrowed and bought far beyond Ms ability to pay. Through the sudden adoption of an unsound business policy, to buy large bills of goods without money to pay for them or a place to put them, and m an attempt to obtain both, he successfully wrecked, within a few days, the business he owned and the one he purchased from McGinty. His reckless conduct indicated very clearly that he was in the second stage of mental derangement described by. Dr. Green, which impelled him to acquire unreasonable obligations. Again, it is argued that the opinions of the physicians as to the insanity of Tribble were not based upon a- case hypothetically stated, and for that reason are incompetent and worthless. As we understand the record, the opinions of the three experts who testified were based upon personal association with, or examinations and observations of, Tribble. Two of them treated him for insanity. It is also argued that the lay witnesses, who testified to his insanity did not testify to the facts and circumstances upon which they based their opinion. Morgan Price, one of the lay witnesses whose acquaintance with him was intimate, testified that he based his opinion upon the fact that he was nervous, unusually short and abrupt in conversation, and talkative about big deals. Sam Tribble, another lay witness, a brother of A. L. Tribble, testified that during the winter of 1918 and 1919 his brother had an attack of the “flu,” which affected his mind; that he placed him under the treatment of a specialist in March, 1920; that after his return from Hot Springs in July of the same year his mental condition grew worse; that in October he located in Rogers, hoping that the climate there would benefit him; that he visited him at Rogers four times between November 1, 1920, and February 1, 1921, and discovered that he was nervous all the time and talked at random; that he conceived the notion of building a big hotel in Rogers, and in January, 1921, he began to buy goods in a reckless manner. These excerpts, taken from the testimony of the two lay witnesses best qualified by intimate association to testify, disclosed that théy detailed substantial facts and circumstances upon which to base their opinions.

Appellants’ next contention for reversal is, that the finding of the court to the effect that Tribble had $4,064.90 of his own personal money in the Rogers Mercantile Company, was clearly against the preponderance of evidence. We think otherwise. On January 20, 1921, the First National Bank collected that particular amount for him and placed it to his credit. Two days before that he had borrowed $2,000 from the bank with which to pay the $1,800 note he had given it on October 18,1920. On the same day the collection was placed to his credit, to-wit, January 20, 1921, the bank wired H. T. Poindexter &'Sons’ Mdse. Co. that his check was good for $3,500. The check was given for that amount in part payment of a large bill of goods that day purchased by him from said company. As soon as he returned he had to borrow from the bank again, and overohecked his account in paying for the goods more than $400. We think the irresistible inference is that his individual money, to the amount of $4,064.90, was used to pay for goods which were purchased for the Rogers Mercantile Company. The finding is supported by a preponderance of evidence.

Appellants’ next contention for reversal is, that notwithstanding the insanity of Tribble at the time he borrowed the money and purchased the goods, the court erred in refusing to charge his personal estate with the payment thereof. In support of this contention appellant cites cases holding that the estate of an insane person is liable for debts created by him upon contracts partially or wholly executed, if he received the benefit thereof, and was fairly dealt with by the creditor, without notice of his infirmity, and before an adjudication of insanity. This court, however, is committed to the doctrine that all contracts with insane persons aré void ah initio and may be canceled without a restoration of thé consideration if it has been wasted or dissipated. Henry v. Fine, 23 Ark. 417; Seawel v. Dirst, 70 Ark. 166; Reaves v. Davidson, 129 Ark. 88; Hudson v. Union & Merc. Trust Co., 148 Ark. 249. It appears from the record, however, in the instant case, that the court in the distribution of the assets of the Rogers Mercantile Company allowed Tribble full value of the goods he purchased and commingled with the general stock. Had the goods had been intact and separable, it would have been proper to return them to his guardian. But' they were intermingled and not separable. The stock as a whole was greatly^ depreciated in value and sold at a loss. It was impossible to apportion the waste or depreciation of any particular goods. Under these circumstances it was inequitable to require the creditors to bear the depreciation of or loss on Tribble’s individual goods. It was proper to allow Ms claim, but no preference in the apportionment should have been accorded to him. He should have shared pro rata in the distribution with other creditors, thereby requiring Mm to stand the loss or depreciation in value on his goods..

Appellants’ last insistence for reversal is, that the court erroneously allowed the State’s claim for taxes against the McGinty stock. The State had the first and paramount lien on the stock for taxes. Sec. 10023, Crawford & Moses’ Digest. The payment should have been made out of amount ordered paid to McGinty, as it was his duty to pay the taxes on the stock he sold to Tribble, but.no objection was made or appeal taken from the priority declared in his favor.

The decree is affirmed in all particulars except the preference given A. L. Tribble in-apportioning the proceeds derived from the sale of the assets of the Rogers Mercantile Company. In that particular it is reversed, and remanded for pro rata distribution with the other creditors.


text:
    Coleman v. Edgar Lumber Company.
    Opinion delivered October 16, 1922.
    1. Brokers' — contingency op commission. — Where brokers were to be paid $1.20 an acre out of the purchase money received for certain lands, the payments to be made only as the several tracts were released from the lien for the purchase money, the brokers’ fee or commission was contingent on collection of the purchase money.
    2. Brokers — payment op commissions. — As a general rule, a broker earns his compensation when he presents a purchaser ready, willing and able to buy at the price and on the terms specified, and, unless the broker warrants the financial ability of the purchaser, the vendor by accepting him takes the risk of payment and burden of collecting.

      3. Brokers — contingent commission. — Under a contract by which real estate brokers were to be paid a commission per acre out of the purchase money received for the lands sold, payments of which commission were to be made only as the several tracts were released from the purchase money lien, the brokers were not entitled to their commission where the purchasers defaulted, and the vendor foreclosed against them and procured a deficiency judgment; such judgment not constituting a release from the vendor’s lien.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      Reid, Gray, Burrow & McDonnell, for appellants.
    1. There was a brokerage agency created. Appellant and his associates were employed to sell the lands, or find purchasers therefor. Such was the effect, actually and legally, of the two contracts between the parties, é it. C. D. oÍ5; 123 Pac. 667; 127 Iowa 526; 114 N. W. 1076; 58 N. W. (Wis.) 450; 146 N. W..(Mich.) 418; 79 Wis. 108; 89 Ark. 289.
    2. The brokers’ compensation was earned when the deed was made, and, although postponed, was not contingent. 4 it. C. D. 308; 309, 311; 9 Corpus Juris, 595, 596; 89 Ark. 289.
    There was no express warranty of the financial ability of the purchaser in this case, and the contract letter of October 19, 1916, does not directly or by implication express a warranty or render the payment of the commission contingent upon the full payment of the purchase price. Giving it even a construction most favorable to the appellee, it merely postponed the payment. The contract is admitted, and must be construed by the court. 67 Ark. 553; 78 Id. 574; 112 Id. 165; 90 Id. 272.
    A contract, however, will be construed most strongly against the obligor, as unfavorable as its terms will admit against the party who proposed and prepared it. 4 Ark. 199'; 73 Id. 338. In case of doubt, a contract will be construed most .strongly against the party who wrote it. 112 Ark. 1; 84 Id. 431; 74 Id. 41. See also 90 Ark. 256; 105 Id. 421; 114 Id. 415.

      The law leans toward that construction of a broker’s 'Contract which will secure the payment of his commission, rather than to the contrary construction. 77 N. W. OWis.) 152.
    A promise to pay “out of the proceeds” fixes the time of payment, but does not show that the obligee is to look for his pay alone to that fund. 32 Ark. 59; 42 Ala. 9.
    3. Even though the commissions were contingent, they are now due. Appellee received and accepted $84,000 and a deficiency judgment in full satisfaction of the debt. It thereby released its vendor’s lien, and, under the contract, became immediately liable for the full amount of commissions. 191 111. 645, 61 N. E. 431; 174 Mass. 410, 54 N. E. 872; 25 Ore. 336, 35 Pac. 1066; 23 S. E. (Ya.) 754; 87 Ark. 506.
    If a vendor accepts and contracts with the purchaser, the latter’s solvency is presumed. 82 111. App. 558; 29 Ind. App. 305; 64 N. E. 643; 31 Minn. 484; 18 N. W. 290; 68 N. E. 349; 44 Atl. 484; 44 S. O. 227; 22 S. E. 108.

      Gaughan $ Sifford and Mahoney <& Yocum, for appellee.
    If, as is contended by appellant, he was employed by appellee as a real estate broker to sell the lands, the law of the case is fully stated in the case of Boy sen v. Frink, 80 Ark. 254.
    We may admit that the principle on which the decision in that case was based, as applied here, would make the appellee liable to the appellant,, if it purposely failed to collect the full purchase price of the land sold, or it might go to the full extent of requiring appellee to use reasonable diligence to collect the full purchase price. The trial court, however, found that appellee had not failed in its duty, and that finding is supported by the evidence.
    The case of Pinkerton v. Hudson, 87 Ark. 506, is not in conflict in any way with the principles announced in the Boysen case, supra. Liability in the Pinkerton case was-based entirely on two facts, (1) the financial ability ofthe purchaser to pay, and (2) the refusal of the seller, without reason, to collect the purchase money. No such facts appear in this case.
    Other cases cited by appellant, 61 N. E. 431, and 35 Pac. 1066, do not sustain his position. In this case there is no showing* that at the time of the foreclosure sale, the property was worth any more than the bid accepted by the court, no showing that appellant filed any exception to the report of sale, 'Or to its confirmation.
   Humphreys, J.

Appellant instituted suit against appellee in the Dallas Circuit Court to recover $8,882.26, a balance alleged to be due him for selling a large tract of land belonging to appellee. Appellant alleged that he and his two associates, while engaged in the real estate business in Little Rock, Árk., effected a sale of 28,461 acres of land, situated in Union and Columbia counticp for appellee, the owner thereof, to William and Thomas Maloney, for $5.70 an acre, for which service they were to receive a commission of $1.20 an acre in the proportion of 60 cents an acre, to appellant and 30 cents an acre to each of his associates; that he received a payment of $2,563.60 on commission, leaving a balance due him of $8,820.80.

Appellee filed an answer alleging that it had paid appellant all it owed him under the terms of the contract, and denying any additional indebtedness to him on account of the sale of the said land.

The cause was submitted to the court sitting as a jury, upon the pleadings and evidence, which resulted in a judgment for appellee. From that judgment an appeal has been duly prosecuted to this court.

The facts, revealed by the record, are in substance as follows: On Julyl, 1916, appellant and his two associates, T. F. Patterson and R. A. Leavitt, real estate brokers, entered into an agreement to sell a large tract of land, estimated at 24,000 acres, in Union and Columbia counties, for appellee by Dec. 15, 1916, at $5.70 per acre, payable as follows: $4,500 cash, $5,000 on or before June 1, 1917, $10,000 on or before Dec.'1, 1917; $10,000 on or before Dec. 1, 1918; $10,000 on or before Dec. 1, 1919, and tbe balance on or before Dec. 1,1921, tbe unpaid purchase money to bear interest at the rate of 6 per cent, per annum from date until paid. The agreement was reduced to writing in the form of an option contract between appellee and one of appellant’s associates, T. F. Patterson. The contract provided that appellee should convey the land by warranty deed to the optionee or his assignee, in case the option was exercised, upon the payment of the cash consideration and the execution of notes covering the deferred payments, which were to be secured by a vendor’s lien on the land. The option contract covered the transaction in detail and is quite lengthy. Among other things it provided that appellee or grantor should be liable upon its warranty for only $4.50 per acre on that part of the land to which title might fail; also, that upon failure to pay the interest or any installment of principal when due, the vendor might declare all the deferred payments due; also that any forty-acre tract should be released from the lien for the purchase money upon payment to the vendor of $5.70 per acre thereon, in addition to any payment made on the whole purchase price, said payment to be credited on the last deferred payment of the purchase price. The option contract was signed on Oct. 18, 1916. On the next day, Oct. 19,1916, a letter was written by appellee to appellant and his associates for the purpose of reducing the brokerage agency to writing. The previous contract and option, given to T.’F. Patterson, are referred to in the letter. The letter is as follows:

“October 19, 1916.

“Messrs. T. F. Patterson, B. A. Leavitt, L. P. Coleman,

“Little Bock, Arkansas:

“Gentlemen: By previous arrangement with you an option is given to Mr. T. F. Patterson whereby he has the right to purchase, subject to certain conditions and limitations, the land of the Edgar Lumber Company, es7 timated at this time to he about 24,000 acres, at the price of $5.70 per acre, to be paid for in different installments.

“As an evidence of our previous contract, we now place in writing our obligation to pay you out of the purchase money received — provided the option given is exercised by the said Patterson — $1.20 per acre for such part of said lands as are so taken under said option. The payments are to be made as the several tracts are released from the lien for purchase money, and only as they are released from the lien, until the whole purchase pric'e is paid. At which time any amounts not paid you at the rates above, before, will be due and payable. If the said option is not exercised, we are under no obligation to pay you anything and will not pay the same, and the same will be due and payable only as hereinbefore mentioned, and we acknowledge no liability to you otherwise or under any other conditions.

“Without instructions from you to the contrary, of the amounts to be paid you as hereinbefore mentioned, 60 cents per acre will be remitted to L. P. Coleman, Little Rock, Arkansas; 30 cents per acre to T. F. Patterson, Little Rock, Arkansas; and 30 cents per acre to R. A. Leavitt, Little Rock, Arkansas, by our checks deposited in the United States mail to the addresses above mentioned.

“Yours truly,

“Edgar Lumber Company,

(Signed) “C. V. Edgar, President.”

“The foregoing writing is accepted and approved as a contract between the undersigned and the Edgar Lumber Company, with reference to the matters mentioned. This October 19, 1916.

(Signed) “R. A. Leavitt,

“T. F. Patterson,

“L, P. Coleman.”

Appellant and his associates showed the land to William and Thomas Maloney, citizens of Iowa and Nebraska, who took over the option, and in the exercise of it procured a deed conforming in every respect to the option contract. They organized a corporation, known as the Realty & Colonization Company, and conveyed the land to it. Appellee paid appellant' and his associates their commission out of the cash payment of $4,500 on the basis of $1.20 out of every $5.70 received by it from the Maloneys. Appellant sold one-third of his commission to the Realty & Colonization Company. Under the terms of the option contract and deed made to the Maloneys, the Realty & Colonization Company obtained releases to a certain number -of forty-acre tracts by paying appellee $5.70 additional per acre, and, out of the money thus received, appellee paid appellant his pro rata share of the commissions on the basis of $1.20 out of every $5.70, his pro rata share being 40 cents instead of 60 cents out of every $5.70 received, because he had sold one-third of his commissions to the Realty Company, as heretofore stated. Appellant was paid a total of $2,563.60 as his pro rata share of commissions out of the purchase money actually received by appellee. The total number of acres sold, as shown by the survey, was 28,461. The total number of acres released under the contract was 6,490. The number not released 22,105. Default was made on the deferred payments, and appellee foreclosed its vendor’s lien against the 22,105 acres not released. The land only sold for $84,000 at the foreclosure sale, less than $4.50 per acre. Appellee took a deficiency judgment against the Realty & Colonization Company, but the company had no property out of which to collect it. There was evidence tending to show that the Maloneys, the makers of the notes evidencing the deferred payments, were insolvent.

Judgment was rendered by the trial court, dismissing appellant’s complaint, on the theory, that his commissions were contingent on the payment of the purchase money. Appellant contends that the court erred in thus construing the contract. He insists that, under a proper construction of the contract, his compensation was earned when appellee made the deed to the Maloneys and accepted their notes for the balance of the purchase money; that the payment thereof was postponed until the purchase money was paid, or the vendor’s lien was enforced against the land. The brokerage contract was evidenced by two writings, the option signed on the 18th and the letter written and accepted on the 19th of October. These instruments must be read together to ascertain the purpose and intent of the contracting parties. When construed as one instrument, it is quite apparent that the fee to the brokers was contingent upon the collection of the purchase money. The letter states that the brokers shall be paid $1.20 an acre out of the purchase money received; also that the payments (the $1.20 an acre) shall be paid as the several tracts are released from the lien for the purchase money, and only as they are released from the lien, until the whole purchase price is paid. The written option provided the method by which a release might be obtained on a part or all of the land. Payment of the full consideration of $5.70 per acre on any cut-over forty-acre tract or more was the method provided for effecting a release from the vendor’s lien. The clause contained in the option, to the effect that appellee should be bound to the extent of $4.50 per acre only on its covenant of warranty, strongly indicates that it should receive that amount, in any event, out of the purchase price. Had the intention been otherwise, the covenant would have been drafted to cover the entire-purchase price. The general rules of law contended for by appellant, to the effect that a broker earns his compensation when he presents a purchaser ready, willing, and able to buy at the price and upon the terms specified, and that, unless the broker warrants the financial ability of the purchaser, the vendor, by accepting 'him, takes the risk of payment and burden of collection, are correct. These rules have no application, however, to cases where the brokerage contract makes the payment of the commission contingent upon the payment or collection of the purchase -money as in the instant case.

Appellant makes the further contention that, through the foreclosure sale and procurement of a deficiency judgment against the Bealty & Colonization Company, a release of all the lands from the vendor’s lien, within the meaning of the contract, was effected and the com-' missions were matured. “We do not think so. Our interpretation of the 'contract is that the maturity of the commission depended on the collection of a part, or all, of the purchase money in excess of $4.50 per acre, which appellee was to receive first. Of course the duty rested upon the appellee, when default was made, to endeavor, in good faith, to collect the purchase money. It is true, the land brought less than $4.50 an acre at the foreclosure sale, but it is not shown that the price was influenced through connivance or fraud of appellee or its agents. Neither was it made to appear that the deficiency judgment was collectable, nor that the balance of the purchase money could have been collected by legal proceedings, from the Maloneys, the makers of the notes.

No error appearing, the judgment is affirmed.


text:
    Crawford v. Slaten.
    Opinion delivered October 16, 1922.
    1. Replevin — necessity of demand. — In replevin by a landlord against a share-cropper for certain cotton, demand by plaintiff before suit was unnecessary where the undisputed evidence that demand would have been unavailing because defendant con- • tested plaintiff’s right to recover.
    2. Replevin — counterclaim.—In replevin by a landlord against a share-cropper for recovery of the crop, where no claim for damage for detention was made, and title was the only issue, it was error to submit a counterclaim for damages for breach of contract in failing to make repairs; such counterclaim being foreign to the issue of title.
    3. Landlord and tenant — relation of landlord and sharecropper. — A landlord and a share-cropper stand in the relation of employer and employee.

      4. Landlord and tenant — abandonment—abandonment of crop by share-cropper. — Where a share-cropper abandons his crop, . he forfeits it to the landlord, under Crawford & Moses’ Dig, § 6886, providing that if any laborer abandons his employer, he shall forfeit his wages or share of crop due him.
    Appeal from Cleburne Circuit Court; J. M. Shinn, Judge;
    reversed.

      Mortimer Fraioenthal, for appellant.
    1. The relation of employer and employee existed between Crawford and Slaten. 48 Ark. 264; 70 Id. 427; 54 Id. 347.
    Crawford was entitled to possession of the crop if Slaten abandoned it, or attempted to turn it over to other persons. 130 Ark. 431. The title to the crop was in Crawford. 144 Ark. 289; 235 S. W. 185.
    2. Slaten had not asked for damages in the justice of the peace court on account of Crawford’s failure to build or repair fences, and it was erroneous to admit testimony on that issue in the circuit court. 144 Ark. 293.
    3. The court erred in refusing to consider instructions offered by the appellant. He was entitled to have his theory of the case presented to the jury m proper instructions'. 87 Ark. 243, 281; 50 Id. 545; 52 Id. 45; 68 Id. 106.
    4. The instruction given by the court on its own motion was, in effect, a direction to find for the defendant, and was erroneous. Art. VII. § 23, Constitution; 107 Ark. 158; 37 Id. 164; 147 Id. 613.
    No brief filed for appellee.
   Humphreys, J.

Appellant instituted suit in replevin against appellee in the court of A. Kaufman, a justice of the peace in Heber Township, Cleburne County, to recover the possession of 1,430 pounds of seed cotton, alleging that he owned same. The cotton was seized under a writ, and later sold for $120. The pleadings were lost, and the cause was continued from time to time. Finally an agreement was reached as to the contents of the lost papers, and the Qap§e_ w§,s tried upQrL Hie agreement &nd, evidence, which resulted in a dismissal of the replevin and a judgment in favor of appellee for $60, one-half the value of the cotton, and damages to the amount of $40. From the judgment an appeal was prosecuted to the circuit court. The agreement, in lieu of the lost papers, presented the sole issue of the title to the cotton. No issue was presented by the agreement for damages on account of the detention of the cotton. The agreement, did not contain a counterclaim of appellee for damages.

Upon trial de novo in the circuit court, testimony was adduced tending to establish three issues, and was in conflict on each issue. The first issue was whether a demand for the cotton was made by appellee before suit. The next was whether appellant, the landlord, became the owner of the cotton by virtue of abandonment of the cotton crop by appellee, who was a share-cropper. The last was whether appellant breached the rental contract by failing to repair the fences so as to prevent the cattle from injuring the cotton crop.

The court instructed the jury to find the issues in the replevin suit against appellant because he made no demand for the possession of the cotton before instituting suit. This constituted reversible error, because the undisputed evidence shows that appellee denied and contested the right of appellant to recover the cotton. Unless a demand would have availed, it was not necessary to make it before the institution of the suit. Triplett v. Rugby Distilling Co., 66 Ark. 220.

During the trial of the replevin suit in the circuit court appellee was permitted, over the objection and exception of appellant, to introduce testimony in support of the counterclaim for damages, on the ground that appellant had breached the rental contract, in failing to make repairs on the fences so as to prevent cattle from injuring the crop. No claim of damages was made by appellant for detention of the cotton. The agreement substituted for the lost papers presented the sole question of title to the seed cotton. The counterclaim was foreign to, the issue of title and could not be set up in a replevin suit where no damages were claimed by the plaintiff in the action. The court therefore erroneously submitted the issue on the counterclaim to the jury for determination.

The undisputed facts in the instant case show that appellee was a share-cropper. This court is committed to the doctrine that a landlord and share-cropper stand in relationship of employer and employee. Rand v. Walton, 130 Ark. 431, and cases cited therein to this point. It is provided by sec. 6886, Crawford & Moses’ Digest, that, “if any laborer shall, without good cause, abandon his employer before the expiration of his contract, he shall be liable to such employer to the full amount of any account that he may owe him and shall forfeit to his employer all wages or share of crop due him, or which might become due him from his employer. ’ ’ Testimony was introduced tending to show that appellant abandoned the cotton crop. The evidence was in conflict upon this point. The court should have submitted the question of abandonment to the jury for determination. The refusal to do so constituted reversible error.

On account of errors indicated, the judgment is reversed and the cause remanded for new trial.


author: McCulloch, C. J.

text:
    Earl v. State.
    Opinion delivered October 23, 1922.
    1. Intoxicating liquors — indictment for having unregistered still. — An allegation in an indictment under Acts 1921, p. 372, § 2, prohibiting the possession of an unregistered still regardless of intention as to its use, that the still was kept for use in the production of spirits was surplusage, and did not affect the validity of the indictment.
    2. Criminal law — presumption from absence of bill of exceptions., — In the absence of a bill of exceptions, the court will assume that the evidence was sufficient to sustain the verdict, and th'at no error occurred in the proceedings.

      Appeal from Sebastian Circuit Court, Fort Smith District, John Brizsolara, Judge;
    affirmed.

      Wallace Bourland, for appellee.
   McCulloch, C. J.

Appellant was convicted under an indictment couched in the following language (omitting the caption and formal conclusion):

“The said defendant,’ "Will Earl, in the county, district and State aforesaid, on the 5th .day of December, A. D. 1921, did then and there unlawfully and feloniously have and keep in his possession a still for the purpose of using same for the production of distilled spirits, without registering the same with the proper United States officers as required by law.”

The record of the trial was not preserved by a bill of exceptions, and we can only review the record presented for the purpose of determining whether or not error appears upon its face.

The only ground urged for reversal is that the indictment does not state a public offense.

The statute under which the indictment was preferred reads as follows:

“Sec. 2. No person shall keep in his possession any stillworm or still without registering the same with the proper United States officer, and no person shall set up, to be used as a distillery, any stillworm or substitute therefor, and a still or substitute therefor, such as a kettle, washpot, metal tank, or any other vessel of any kind, for the purpose of using same, or which, after being so set up, may be used for the production of distilled spirits.” Acts 1921, p. 372.

The contention is that the indictment is defective and not in conformity with the statute in that it contains the charge that the unregistered still was kept for use in the production of distilled spirits.

Conceding that such defect can b.e raised here for the first time, the ground of attack upon the indictment is untenable. It is true that the statute makes it an offense for a person to keep an unregistered still or stillworm in 'possession, regardless of intention as to its use, but the additional charge that it was kept for the purpose of using same in the produetion of spirits was mere surplusage, and did not affect the validity of the indictment on the charge óf keeping an unregistered still.

We must assume, in the absence of a bill of exceptions setting forth the record of the trial, that the evidence was sufficient to sustain the verdict, and that no error in the proceedings occurred..

Affirmed.