text:
    Johnson v. Coleman.
    Opinion delivered September 23, 1929.

      Hill, Filzhugh & Brizzolara, Pryor, Miles & Pryor, for appellant.

      Evans & Evans, Daily S Woods and J. B. Mc-Donough, for appellee.
   Mehaffy, J.

An action was instituted in the Sebastian Chancery Court by the City National Bank ag’ainst the appellants, and another suit was instituted in the same court by 'Charles E. Coleman et al. against appellants, and these cases were consolidated for trial, and all of the evidence is contained in one bill of exceptions. Both suits are against appellants as directors of the John A. Guthrie Mortgage Company, a corporation created under the laws of the State of Arkansas.

John A. Guthrie, who was the owner of practically all the stock in the mortgage company, began business in the city of Fayetteville prior to August, 1924, and began business in Fort Smith some time in August, 1924.

Out of the mass of testimony introduced on the trial of these cases appear a few relevant and pertinent bits of evidence, and the testimony establishing them is, for all practicable purposes, without conflict, so much so that we are warranted in assuming that the relevant and pertinent facts may be taken as established, and which may be summarized and stated in a few paragraphs.

John A. Guthrie established the business of a farm loan broker with his office in the city of Fayetteville, which he conducted for a time under the name of the Security Mortgage & Investment Company. Afterward the John A. Guthrie Mortgage Company was formed, with a paid-up capital stock, as shown by its articles and certificate, of $15,000. Guthrie was the owner of practically the entire capital stock, and for all practical purposes was the owner of the corporation. The business of the Security Mortgage & Investment Company was taken over by the Guthrie Mortgage Company. The affairs of this last-named company seem to have prospered, and Guthrie approached the Merchants’ National Bank of the city of Fort Smith for a line of credit, where he was informed that he could not be accommodated, doing business as he was in Fayetteville, but, if he transferred his office to Fort Smith, his application would have consideration at the bank. 'Shortly thereafter he did move the office of his company to that city, and brought with him complimentary statements from the banks at Fay-etteville, with whom he had been doing business. He began making deposits (from time to time with the Merchants’ Bank, and finally was given a line of credit of $10,000. He also secured credit with the Valley Bank & Trust Company, to what extent is nob disclosed, and which is unimportant. He did a large volume of business with the Merchants’ National Bank and presumably with the Valley Bank. He procured a handsome suite of offices for his company, engaged a number of employees, and, in a remarkably short space of time, appeared to have established a prosperous and rapidly growing business.

W. H. Johnson, acting vice president of the Merchants’ Bank, and Mr. Branson, president of the Valley Bank, were each given $500 worth of “promotion stock,” which, they were informed, _then had no value, but which might become of value in the future, and thes.e gentlemen were induced to 'become directors of said mortgage company. They evidently took considerable interest in the success of the mortgage company, and attended a number of the meetings of its hoard of directors, and gave the company frequent advice as to the conduct of its affairs. They were gratified to have for their banks the business of this young man, and doubtless hoped .that their several institutions would reap considerable profit therefrom.

His business appeared wholly legitimate, and was conducted in this manner: He would procure from the borrower an application for the loan, constituting his company the agent to procure same, and with the application was given the note, and, to secure it, the mortgage of the borrower. He would deposit the application, note and mortgage in the banks, and from.them secure the money for the borrower. To repay the bank, he was to sell the note and security to Eastern investors. As its profit the company received a commission from the borrower,. in a few instances paid in cash, but more frequently by interest-bearing note, to be paid in the future, and secured by mortgage on the land, but subject to the mortgage given for the loan. This method of doing business appears to have mot been unusual.

After having been engaged in this 'business for some time at Fort Smith, and after a number of loans had been made, it became necessary to realize cash upon the commission notes for purposes of meeting current expenses and for the expansion of the business. To accomplish this, the Guthrie Mortgage Company issued a number of interest “gold bonds,” each for a stipulated principal sum, with coupons attached, these bonds being secured by the deposit with Mr. Branson, trustee, of a number of commission notes secured as aforesaid, in an amount in excess of the principal sum named in the bond. These bonds were in the hands of the company’s agents for «ale, and a considerable number of bonds were sold to various persons.

The Guthrie Company advertised its business extensively, and gave prominent mention of the fact that the appellants were members of its board of directors. Its advertisements emphasized the conservative character of its business, the fertility of the soil of the farms securing the loans, and-the salubrity of the climate, with all other matters which would make its securities attractive to investors.

Johnson, Branson and the other appellants knew of the method used in the conduct of the ¡mortgage company’s business with respect to securing the money to be given the borrower from the local banks, selling securities to investors to repay the banks, and the purpose of the “gold bond” issue, and how this issue was to be secured.

A Mr. Boles told appellant, Johnson, that he had negotiated a loan for $8,000 on his farm, had only received $3,000', and had learned that Guthrie Company had obtained as much as $6,000 from an investor, and, naturally, was much dissatisfied. Mr. Johnson at once took this complaint to Guthrie, who made an explanation which satisfied Johnson that there was no reason to suspect Guthrie of any wrongful conduct, and an arrangement was made by which Boles was immediately paid $3,000 more, this, with the sum he had previously received, making $6,000, the total amount for which the security was sold, and the remaining $2,000 was paid Boles at a later date from the sale of the bonds of the company. This appears to have been the only complaint from any one, borrower or any one else, of which Johnson or any of the other appellants were apprised from the beginning until the closing of the mortgage company’s business. All of its business with the banks at Fort Smith or elsewhere appears to have been conducted in a manner highly satisfactory, and no criticism was heard from any source until within a few weeks before the company went out of business, and long after the transactions were made out of which this litigation arose.

On or about the 10th day of July, 1926, circumstances were brought to the attention of Mr. Johnson indicating that the financial condition of the Guthrie Mortgage Company might not be satisfactory. He immediately sought an interview with Guthrie and his associates engaged in the active management of its affairs, which at length disclosed the fact that the mortgage company was so heavily involved that proceedings in bankruptcy were instituted, resulting in the mortgage company being adjudged a bankrupt and the sale of its assets, and all of its creditors received practically nothing. There then remained owing and still unpaid considerable sums to the Merchants’ National Bank, Arkansas Valley Bank, to Wilmans for merchandise sold it, City National Bank, Coleman, and various sums to persons not parties to these suits.

Appellee, Coleman, became the creditor of the mortgage company under the following circumstances: Ho was, at and before the time of the transactions upon which this suit is based, a mortgage broker in Chicago, engaged in the purchase of farm loan securities for investors. He first became acquainted with John A. Guthrie when the latter was doing business as the Security Mortgage & Investment Company, but which lasted only a few months and was merged into another company. While 'Guthrie was in business at Fayetteville, Coleman had business dealing's with him, purchasing-mortgages from him, and continued to make such purchases from him after his removal to Fort Smith. There has been no complaint made by him regarding any security purchased from Guthrie.

At an undisclosed date in the year 1925, Guthrie, in company with one Leo Grimes, visited Chicago. Grimes had been farm loan examiner for an Oklahoma company, and Coleman was familiar with his name and business, but this was the first time he had actually met either Mm or Guthrie. At the time of this meeting Coleman had on his hands a number of farm loan notes, procured from a farm loan company that had failed, and which he was endeavoring to collect for the investors, who had purchased them through him as broker. ' These were called “orphan loans” by Coleman. Coleman had an agreement with Guthrie about these loans, requesting Guthrie to look after them, and Guthrie stated that he would. These loans that Coleman testified about were mortgages that the Guthrie Company had nothing to do with as to making the loan. They were loans made by the Collins Investment Company, and sold by his clients, and he was undertaking to collect them for his clients through the Guthrie 'Company. He had bought the collections when Guthrie was in 'Chicago, and made the arrangements at that time.

The other plaintiffs in the Coleman case are persons whose funds are involved in the mortgages and collections testified about by Coleman.

Coleman began doing business with- Guthrie at Fayetteville in 1924, and, when Guthrie moved to. Fort Smith, Coleman increased his business with the Guthrie Mortgage Company, and, until the failure of the corn-pan}'-, Coleman did not know of any balance in his favor except the Vaughan loan. 'Coleman authorized Guthrie to make these collections.

The 'City National Bank, according to the testimony of Mr. Nakdkuen, president of the bank, conducted in the same manner as Guthrie’s business with the other its business with the Guthrie Mortgage Company banks. Guthrie would agree to make a loan; that is, he-agreed to act as agent for the borrower, and the borrower would give to him a note, and mortgage authorizing the Guthrie Mortgage Company to act as -agent and secure a loan. Guthrie would then take this note and mortgage to the City National Bank and execute the mortgage company’s note, borrow money, and pledge the note and mortgage given to him by the borrower as security for the payment of the note at the bank. He would then give the bank a receipt for the note and mortgage, which were deposited as security, and the bank would surrender him the note and security, with the understanding that he would sell it in the East) or wherever he could, and then pay the bank. All of the banks doing business with the mortgage company knew this was the manner in which it did business, and knew that it was acting as agent for borrowers; knew that it did not have the money to furnish itself, and did not undertake to furnish the money.

The testimony is very voluminous, and it would be impracticable and would make this opinion entirely too long to set out even the substance of the testimony. We have, however, carefully read and considered the entire record, and have reached the conclusion that the appel-lees did not suffer any loss because- of the negligence of the appellants.

The law governing liability in -cases of this sort is well settled by the decisions of this court, and we recently said: to pay. In other words, the director whose negligence canses loss is liable for such loss to stockholders and creditors.” Sternberg v. Blaine, ante, p. 449, 17 S. W. (2d) 286.

“It may therefore be stated as the settled rule in this State that any failure of a director to exercise diligence or good faith which results in loss to a stockholder or creditor entitles such stockholder or creditor to require the directors whose negligence has caused the- loss

There is no contention made in this case that any of the appellants are dishonest or that they had any intention of doing wrong, and we think it clearly appears from the testimony in the case that neither of them was guilty of negligence or any intentional wrong. rSNeg'ligence means the failure to exercise ordinary care; such care as a man of ordinary prudence would exercise under similar circumstances.

When the entire testimony is considered, we are of opinion that the appellants in this case acted as men of ordinary prudence usually act under such circumstances. Mr. Nakdimen. himself wrote letters recommending Guthrie and his mortgage company, and he knew, of course, at the time that his bank loaned money to' the mortgage company, that the collateral used was to be sold to get the money to pay the loan to the bank. In other words, all of them knew all about the manner in which the business of the mortgage company was transacted.

It would serve no useful purpose to refer to the testimony in detail or to discuss the law at length. The case above referred to and cases therein cited announce the principles of law governing cases of this kind.

From what we have said it follows that the decree must be reversed, and the case dismissed, and the decree on the cross-appeal against the Merchants’ National Bank is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Wilson v. Batesville.
    Opinion delivered September 23, 1929.

      Coleman & Reeder, for appellant.

      W. K. Ruddell, for appellee.
   McHaney, J.

Appellant was arrested toy the city marshal of Batesville, 'brought ¡before the mayor, tried, and convicted on a charg’e of transporting liquor, and fined $100. His conviction was affirmed on-appeal to the circuit court.

The facts as disclosed by the marshal, the only witness in the case, are that the marshal saw appellant and “another fellow” walking along the street and go into Hardy & Sons’ livery barn. He suspected that they were about to make some whiskey deal, although what aroused his suspicions is not stated. He walked across the street, and followed them into the barn. When he got about halfway back in the barn, he saw them coming toward him from the rear end of the barn, and when appellant saw the ¡marshal, he reached in his shirt, pulled out a pint of whiskey, poured it out, and threw the bottle to one side. Appellant was not employed in the barn, and, so far as witness knew, had no legitimate business therein. Witness thought appellant had started out of the barn with the whiskey.

These are all the facts developed, and the question is, are they sufficient to establish the charge of transporting under either the ordinance of the city' of Batesville or the statute, § 6165, C. & M. Digest? Conceding that the mayor had no .jurisdiction under the ordinance, the case'would not be dismissed on appeal because the mayor had an erroneous view of the effect of the city ordinance, but the circuit court would proceed to try the case cle novo under the statute and render such judgment as was proper. Marianna v. Vincent, 68 Ark. 244, 58 S. W. 251; Watts v. State, 160 Ark. 228, 254 S. W. 486; Sharp v. Booneville, 177 Ark. 294, 6 S. W. (2d) 295. But we are of the opinion that, under the evidence, the crime of transporting' was not established within the meaning of the statute as construed by this court in Locke v. Ft. Smith, 155 Ark. 158, 244 S. W. 11, 12. We there said:

“From the language used, the court is of the opinion that the Legislature only intended to make criminal, the removal of intoxicating liquors from one locality in the State, or in a city or county, to another locality in the State, or city or county. These places must he separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense the liquor must be in the act of being conveyed from one objective point to another. The name of one or even both of the places might be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating -liquor from one place or locality to another, in order to render him guilty under the statute, or under an ordinance based upon the statute. We think this holding is in accord with Hager v. State, 141 Ark. 419, 217 S. W. 461.”

In this case the marshal did not testify that appellant took the liquor into the barn, nor that he took it out of the barn. He thought he intended to take it out, but that was only a surmise. We cannot presume that he did so. All the evidence shows is that he had a pint of liquor in his possession in a livery stable, which is made unlawful by § 6169, C. & M. Digest, To transport or move liquor from one place in a room of a building to another place in the same room would not constitute an unlawful transportation within the meaning of the statute. This case differs from Allen v. State, 159 Ark. 663, 252 S. W. 899, where appellant was arrested in a store with liquor on his person, and stated to. the officer that he was taking it to bis sick wife; also from Fly v. Fort Smith, 165 Ark. 392, 264 S. W. 840, where appellant was arrested on a street car with the liquor on his person, destined for a definite point; from Church v. State, 170 Ark. 974, 281 S. W. 903, where appellant caused another to go to appellant’s home and get a bottle of whiskey for him; and from Walbert v. State, 176 Ark. 173, 2 S. W. (2d) 17, where the officers followed appellants, who took a quantity of liquor out of town and hid it by the roadside. Here the only actual proof we have is that appellant was walking toward the front of the 'barn with a pint of liquor on his person, and not “from one objective point to another.” So, under the rule announced in Locke v. Fort Smith, supra, the offense charged was not sufficiently established by the evidence.

Reversed, and remanded for a new trial.

Humphreys and Kirby, JJ., dissent.


text:
    National Union Indemnity Company v. Standard Accident Company of Detroit.
    Opinion delivered September 23, 1929.

      Chas. D. Frierson, for appellant.

      Moore, Gray & Burrow, for appellee.
   McHaney, J.

Appellant issued to one Laird a policy of accident insurance covering', among other things, damages done to his Stutz automobile by another through collision, which policy was in force on July 18, 1927. On that date appellee Browning negligently ran into the car of Laird, damaging it to the extent of $2,800, which amount appellant paid to Laird, taking from him at the time (Oct. 6, 1927) a release, assignment, and agreement for subrogation.. It thereafter instituted this action to recover from both appellees the amount paid Laird, with interest. The recovery sought against appellee Standard Accident Insurance Company of Detroit, hereafter called the appellee, since Browning has no interest in the appeal, a default having been taken against him, is based on the ground that it and certain associate companies had issued a policy of automobile insurance to Browning, indemnifying him against loss imposed by law upon him for property damage resulting from accident for an amount not to exceed $1,000.

The case was submitted on the following stipulation:

“1. The insurance policy sued upon is number A. P. L. 656725, and was issued to be effective from noon October 14, 1926, to noon October 14, 1927. The said policy, or a true copy thereof, may be attached to and become a part of this stipulation.
“2. ¡Said policy was deposited with the Railroad Commission of the State of Arkansas, pursuant to law and the commission’s rules.
“3. Under act No. 99 of the General Assembly of Arkansas at the 1927 session, approved March 4, 1927, a certain additional indorsement was required, and the Standard Accident Insurance Company, after considerable correspondence with the Railroad Commission and with D. J. Browning and with its local representative at Jonesboro and others, refused to place such indorsement upon the policy.
“4. Thereafter the Railroad Commission demanded of D. J. Browning that he take down the policy of the Standard Accident Insurance Company and deposit in its stead a policy with some other company complying with said act of .the General Assembly.
“5. Thereupon Browning requested Pierre La-tourette, the local agent of the Standard Company, to write the Railroad Commission and ask for the return of the said policy, with the understanding between Browning and the said local agent of the Standard Accident Insurance Company that later the policy would be canceled and that Browning would be refunded the unearned premium thereon.
“6. The Railroad Commission mailed the policy to the local agent of the Standard Accident Insurance Company at Jonesboro, and it was received a few days prior to June 29, 1927, and on the day that Browning and the local agent of the Standard Company discussed the matter and agreed to cancel the policy and that said local agent would take up by correspondence with the insurance company the question as to- what basis of refund of unearned premium would be made by the company, whether the refund should be estimated at the pro rata rate or the short term rate.
“7. On said June 29, 1927, the local agent of the Standard Company, with Browning’s consent, indorsed on the back of the policy: ‘Canceled 6-29-27. ’ On said day the policy was mailed by the local agent to the general agent of the defendant company at Little Rock, with a letter requesting that the local agent be directed on what basis the unearned premium should be refunded. On receipt of that letter and policy the general agent forwarded the policy to the home office of the company at Detroit, with a letter requesting instructions on what basis the unearned premium should be refunded.
“8. On July 2, 1927, the letter and policy reached the home office, and on July 6 the home office wrote the general agent a letter directing that the unearned premium be refunded on the basis of charging for the time the policy had been in force up to June 29, 1927, at the regular'rate, and deducting that amount from the amount paid, the difference being the amount which should be refunded to Browning. The home office made the calculation, and sent the general agent its check for the amount which should thus be refunded. The general agent received the letter and check about July 10, and wrote the local representative at Jonesboro, inclosing the cheek in the sum of $73.25, and directing that the refund of unearned premium be made on the basis of charging at the pro rata rate as if the policy had been canceled under its terms on a pro rata basis, and that letter and check were received by the local agent, Latourette, at Jones-boro, on July 18, 1927. The return premium was figured by changing the pro rata rate on the policy to June 29, 1927.
“9. On July 3, 1927, D. J. Browning filled out an application to New Amsterdam Casualty Company for a policy of liability insurance to take the place with the Railroad Commission of the policy of Standard Accident Insurance Company referred to above. Latourette was not the local agent for New Amsterdam Casualty Company, but was told by Mr. E. L. Dyer, State agent of that company, that if he would submit the application on blanks sent Latourette by Dyer, Dyer would submit the same to the New Amsterdam Company and see if they would issue the policy.
“10. Such application was made to P. M. Latou-rette, an insurance agent or broker, at Jonesboro, he being the same person who acted as local agent for the Standard Accident Insurance Company, and who had taken the application of Browning and procured the policy in that company in October, 1928. Latourette acts as agent for a number of insurance companies writing different kinds of insurance, he taking the applications and procuring the policies.
“11. At the time Browning applied through Latou-rette for the policy to be issued by the New Amsterdam Casualty Company, said Latourette was directed by Browning to take charge of the amount which would be due him as a refund of the unearned premium from the Standard Accident Insurance Company on the policy in that company previously referred to, and to credit the amount on the premium which would become due the New Amsterdam Casualty Company if and when that company should issue him an insurance policy.
“12. Said Latourette received a check for return premium due Browning from the Standard Accident Insurance Company on July 18, 1927, and on July 23, 1927, Latourette gave Browning credit on his books for the amount of the unearned premium due Browning from the Standard Company. The policy in the New Amsterdam Casualty Company was issued on July 25, 1927.
“13. The accident out of which this suit grew occurred on July 18, 1927.”

The depositions of two employees of appellee were also submitted to the court, together with certain correspondence, relating to its refusal to indorse its policy, as demanded by the Railroad Commission, so as to make it a statutory policy, to the matter of cancellation and the amount of return premium due Browning for the unexpired term. The court entered a default judgment against Browning for $2,800, but as to appéllee found that its policy had been canceled prior to the accident, and dismissed the complaint for want of equity. This latter action of the court is challenged by this appeal.

As appellant says, the sole question to he determined is whether the policy issued by appellee to Browning had been effectually canceled prior to the accident on July 18, 1927, so as to determine its liability thereunder. We agree with the trial court that it had, and that the cancellation became effective June 29,1927, nineteen days before the accident. Appellant’s counsel says that this cancellation-was conditioned upon Latourette’s securing Browning another policy in the New Amsterdam Company, and that therefore the cancellation did not become effective until such a policy was secured. We- do not so understand the agreed statement of facts. The Railroad Commission demanded that this policy be taken down and another be substituted complying with act 99 of 1927,-and, at Browning’s request, Latourette wrote the commission for the policy, which was sent to him, and on June 29 they agreed that it should toe canceled, so indorsed it, and sent it to the general agent in Little Rock, requesting to be advised as to basis of refund, whether short term or pro rata. The home office, on request, advised the settlement would toe made on a pro rata basis, which, was the more favorable to Browning. Now, Browning desired other insurance, and an application was made to the New Amsterdam Company through Latourette, not as agent for said company (which he was not), but as agent for Browning, who directed him to collect the unearned premium from appellee and apply it, so far as it would go, on the premium in the other company. There was no provision making the. cancellation of the policy issued by appellee dependent on securing other insurance. There was no agreement by Latourette binding him to obtain other insurance, but only to try to place the liability with another company. Under such conditions it cannot be said that the cancellation was conditional, and the case of Ætna Insurance Co. v. Rosenberg, 62 Ark. 507, 36 S. W. 908, has no application.

The general rule is that an insurance company may cancel a policy only on compliance with the provisions of the policy relating thereto, and then only by refunding the unearned premium prior to cancellation. Southern Ins. Co. v. Williams, 62 Ark. 382, 35 S. W. 1101. But it is also the general rule that the parties may agree to a cancellation at any time, with or without an actual refund of unearned premium. Payment or tender of the unearned premium may be waived by the insured by agreement to cancel and voluntary surrender of the policy for cancellation. 'Cooley’s Briefs on Insurance, 2 ed., vol. 5, pp. 4604, 4615. In 14 R. C. L., page 1012, it is said: ‘ ‘ The right of the insured to the return of the premium as a condition precedent to a cancellation may be waived, and is waived when the validity of the cancellation is acquiesced in by the insured, as by his voluntary and unconditional surrender of the policy upon receiving the notice of cancellation.” See also cases cited in note to above text, and 13 L. R. A. (N. S.), 889, and note, But here appellee did not request cancellation nor give notice, and canceled only at request of insured because, he desired to continue operating cars for hire in compliance with law.

Neither is any public interest involved, as the Railroad Commission, the agency established by law representing the public interest, demanded that this policy be taken down and another complying with the statute substituted. It may be that the commission could have prevented Browning from operating his cars for hire during the interim between the surrender of the policy in question and the receipt of another in due form, a question not decided, but it could not compel appellee to change the conditions of its policy in compliance with an act passed subsequent to the date of issue, nor to assume other or different obligations. So it requested the policy to be withdrawn.

Other questions are argued by appellant, but we find it unnecessary to discuss them. The decree of the court was correct, and is affirmed.


author: Butler, J.

text:
    Walker v. Allred.
    Opinion delivered September 23, 1929.

      Festus 0. Butt, for appellant.

      W. J. Tate and Chas. D. James, for appellee.
   Butler, J.

At the 1928 election in Carroll County the name of Jack Walker, appellant, appeared on the ballot, without opposition, as Democratic candidate for sheriff of Carroll County, and the name of E. 0. Allred appeared ¡on said ballot, unopposed, as the Democratic candidate for collector of Carroll County. Each received a majority of the votes cast; each was thereafter certified by the election board of the county as the officer-elect for the office sought; and each was issued a commission by the Governor for the respective office sought. Each thereafter presented a bond as collector of Carroll County to the county court; the bond of appellant was accepted and approved; that of the appellee was rejected by the county court and approval thereof refused.

The appellant filed bis action in the court below, setting up these facts, and further alleging- that he was entitled by law to exercise the duties of tax collector, and that he had duly qualified as such; that appellee was attempting to hold and exercise the powers and duties of tax collector; and prayed for judgment of ouster.

The appellee answered, admitting that the appellant was duly elected and qualified sheriff of Carroll County, but denied that by virtue of § 46, article 7, of the 'Constitution of the State of Arkansas, appellant was entitled to exercise the duties of that office, and denied that he had taken the oath as the collector or filed bond required, or that such bond had been recognized or approved by the proper authorities. He denied that he had unlawfully usurped, or was unlawfully attempting to usurp, said office, or to exercise its powers and duties et cetera. He alleged that act No. 32 of the Acts of the General Assembly of the State of Arkansas for the year 1897 created the separate office of tax collector for Carroll County, and that said act was in full force and effect at the date of the general election for 1928, at which election he was regularly elected tax collector, and that he was' commissioned and qualified as such,, and was and is entitled to said office and to perform the duties and receive the emoluments thereof, and that said act had not been repealed.

• The case was submitted to the court upon the complaint and answer, and the court rendered judgment, which, omitting the caption, is as follows:

“This cause came on for hearing, and the plaintiff, Jack Walker, appeared in person and by his attorney, and the defendant, E. 0. Allred, appeared in person and by his attorney, and both announced ready for trial. The cause is submitted to the court upon the complaint of the plaintiff and the answer of defendant, and the court, being sufficiently advised as to both law and facts, finds: That Jack Walker was on the 6th day of November, 1928, at the general election in Carroll County, Arkansas, duly and regularly and legally elected to the office of sheriff of the said county of Carroll, and thereupon received a certificate 'of election from the legally constituted authorities, and thereafter received from the Governor of the State a commission as such sheriff, and that he was duly qualified as such sheriff, and that he duly filed bond as such, and that the bond as such sheriff was approved by the proper authority. The court further finds that, by virtue of § 46 of article 7 of the Constitution of the State of Arkansas, the sheriff is not the collector of taxes as a result of the act No. 32 passed by the General Assembly of 1897. Said act created the office of tax collector of Carroll County, Arkansas, and that the defendant, E. 0. Allred, was on the 6th day of November, 1928, duly elected as such tax collector, and that he was so certified as such collector by the election commissioners of Carroll County, Arkansas, and that he was duly commissioned as such collector by the Governor and Secretary of State of Arkansas, and as such is not a usurper of the office of collector, but is the legal authorized tax collector of Carroll County, Arkansas, since act No. 32 passed at the General Assembly of 1897 is still in force and effect, and that same has not been repealed as relates to the office of tax collector. It is therefore considered, ordered and adjudged that the complaint of the plaintiff, Jack Walker, be and the same is hereby dismissed, and that the defendant, E. 0. Allred, be given judgment for his costs herein expended.”

Appellant filed his motion for a new trial, setting up therein that the court erred in declaring act No. 32 of the General Assembly of 1897 still in force, and that it had not been repealed, and that the court erred in declaring that the sheriff of Carroll County, plaintiff below and appellant here, is not the collector of taxes of said county. This motion was overruled by the court, and the plaintiff has prosecuted his appeal therefrom.

Learned counsel for the appellee point out the fact that no testimony was taken or statement of facts agreed upon and filed, and insist that, inasmuch as the appellant alleged that he had taken oath of office as tax collector and that his bond as such had been filed and approved, and that these allegations were specifically denied by the appellee, the duty devolved upon appellant to make proof of the same, and, having failed to do so, he has not shown himself .such a party in interest as would entitle him to maintain this action. While this is doubtless correct as a general proposition, it is apparent that all of these matters were disregarded in the trial court, and the case was tried on the question as to whether there was, at the time of the election of 1928, the separate office of tax collector of Carroll County, and, as the court below had before it all the information necessary for the determination of that question, and so expressly declared in its judgment, this court will likewise disregard all matters except that which was expressly passed upon and determined by the court below, and will proceed at once to a consideration of that issue.

Section 46, article 7, of the Constitution of the State of Arkansas reads in part as follows: “The qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law.” Under this section the sheriff was entitled to the office of collector of taxes of Carroll County until the passage of act No. 32 of the Acts of 1897, which, by § 1, created the office of tax collector for Carroll County, fixing his salary at $900 per annum, and providing that he should receive in addition certain fees. The act contained, including the repealing clause, nine sections, which fixed the salaries of other county officers, and in addition provided that the same fees should be collected as then prescribed by law, and provided for the disposition of such fees.

In 1889 the Legislature, by act No. 85, amended § 3254 of Mansfield’s Digest, being the general law for the allowance of fees for county treasurers, so as to change the amount of fees allowed to such treasurers. In 1903 the Legislature passed act No. 63, relating to the fees and salaries of the officers of Boone County. By act No. 310 of the Acts of 1905, act No. 32 of the Acts of 1897 was amended in so far as it related to the salaries of the clerks of the courts, the sheriff, and the tax collector of Carroll County. Act No. 412 of the Acts of 1907 amended § 3 of act No. 310 of the Acts of 1905, relating to the salary of tax collector of Carroll County. Act No. 360 of the Acts of 1919 fixed the salaries of the circuit clerk and county clerk of Carroll County.

In 1927 the General Assembly passed act No. 77, which is as follows:

"An act to repeal act No. 85, approved April 6, 1889; act No. 32, approved March 2, 1897; act No. 63, approved March 7,1903; act No. '29, approved February 21, 1903; act No. 412, approved May 28, 1907; act No. 360, approved March 22, 1919, regulating the salaries of certain county officers of Carroll County, and for other purposes.
"Be it enacted, etc. Section 1. That the following special acts of the Legislature, to-wit: Act No. 85, approved April 6, 1889; act No. 32, approved March 2, 1897; act No. 63, approved March 7, 1903; act No. 29, approved February '21, 1903; act No. 412, approved May 28, 1907; and act No. 360, approved March 22, 1907, all of said acts being- special acts relating to and fixing the salaries of certain officer® of Carroll County, be and the same are hereby repealed. Section 2. That each and all of the officers of said county as designated in all of said acts, whose salaries are fixed by such acts, shall receive the fees now fixed by law for their respective offices as their full compensation for their services for such offices. Section 3. That all acts or parts of acts in conflict with any of the provisions of this act be and the same are hereby repealed, and this act shall be in full force and effect from and after its passage.”

The contention of counsel for appellee is that the intention of the Legislature was only to repeal and abolish the salaries of the officers of Carroll County, and there was no intention to repeal or abolish the office of tax collector as created by act No. 32 of the Acts of 1897. He invokes the rule that, where it appears that there is any ambiguity, the intent of the Legislature should be determined from a consideration of the entire body of the act, regard being had for its various provisions, taking into consideration the occasion and necessity of the law and the mischief intended to be remedied and the object and remedy in view. It is his contention that the sole purpose of act No. 77 of the Acts of 1927 was to repeal that part only of act No. 32 regulating the salaries of the officers of Carroll County, which intent is established by an application of the rule above announced to the construction of said act. He cites the case of Cotton v. Boone County, 177 Ark. 249, 6 S. W. (2d) 283, as conclusive of this question.

The court is of the opinion that the language of § 1, act 77, of the Acts of 1927, is not ambiguous, but that the language used can be susceptible of but one meaning, namely, that act No. 32 of the Acts of 1897 was repealed, and where the language is plain it will need no construction. The language in the title following the numbers of the acts sought to be repealed, i. e., “regulating the salaries of certain county officers of Carroll County,” and that following the numbers of the sections to be repealed by § 1 of the act, i. e., “all of said acts being special acts relating to and fixing the salaries of certain officers of Carroll County,” is merely descriptive of the act to be repealed, and which, in connection with the number of the act, identifies the law which the Legislature has in mind and which it is repealing. It is a well-settled rule of law that, where the will of the Legislature is clearly expressed, the court should adhere to the literal expression of the enactment without regard to consequences, and every construction derived from a consideration of its reason and spirit should be discarded, for it is dangerous to interpret a statute contrary to its express words, where it is not obvious that the makers meant something different from what they have said. Bennett v. Worthington, 24 Ark. 487; M. L. R. R. Co. v. Adams, 46 Ark. 159; Ry. Co. v. B’Shears, 59 Ark. 243, 27 S. W. 2. In the case of Cotton v. Boone County, supra, this court did not intend to, and did not, construe act No. 77 of the Acts of 1927 with reference to act No. 32 of the Acts of 1897, hut only as to its effect on special act No. 63 of the Acts of 1903, which placed the officers of Boone County on a salary, and held that the inclusion of act No. 63 in the title and body of act No. 77 of the Acts of 1927 was a clerical mistake, as both in the title and body of said act the declared intent was to repeal special acts relating to and fixing the salaries of certain officers of Carroll County, and, no other purpose being mentioned, the phrase at the conclusion of the title, “and for other purposes,” was without meaning.

It follows from the views expressed that the trial court erred, and the cause must be reversed, and remanded with directions to enter judgment giving to appellant the relief prayed. -.


author: Hart, C. J.,

text:
    Rives v. Woodruff County.
    Opinion delivered September 30, 1929.

      W. J. Dungcm, for appellant.

      Elmo CarlLee, for appellee.
   Hart, C. J.,

(after stating the facts). Section 9879 of Crawford & Moses’ Digest provides that the clerk of the county court shall, on or before the first Monday in June next, and at the same time every second year thereafter, make out and deliver to the assessor of each county an abstract containing a description of each tract of land situated in his county, with the name of the owner, if any, and the number of acres or quantity of land contained therein, as' the" same shall appear from the books of his office: This section of the statute was § 35 of an act passed March 28, 1887, being an act to amend the revenue laws of the State. Prior to that time it was made the duty of the clerk of the county court to deliver the land assessment (book to the assessor on or before the first Monday in February, 1883, and at the same time every second year thereafter. Mansfield’s Digest, § 5694.

When appellant first entered into the office of county clerk lie made out the land assessment 'book for the assessor 'for the years 1925 and 1927, and delivered the same to the assessor, under the provisions of § 9879, Crawford & Moses’ Digest.

The Legislature of 1927 provided that the fiscal year for the affairs of the counties of the State of Arkansas should begin on the second Monday in November of each year. Acts of 1927, p. 1086. Appellant thought that the moving up of the date of the fiscal year would give him time to make out the land assessment 'book before his term of office would expire, on the 31st day of December, 1928, and that this would entitle him to the fees prescribed by statute for making out such assessment book in accordance with the provisions of § 9879 of Crawford & Moses’ Digest. We do not think so.

The section of the statute in question, as well as the earlier provisions on the subject, provide that, on or before a certain designated day, and every two years thereafter, the county clerk should make out and deliver to the assessor of the county the land assessment book for such comity. The Legislature contemplated that the making out and delivery of the land assessment book should be one continuous act, and should be done by the same person. The act contemplated that the clerk who should deliver the land assessment book should also make it out. There is nothing in the act which would tend to separate the making out of the abstract of the assessment book from the delivery of it. In the very nature of things, the two acts could only be performed by the clerk who was in office at the time the delivery was made. He would have plenty of time to make out the book after he had entered into the discharge of the duties of his office and to deliver the same to the assessor on or before the day prescribed by the act. This was the construction of the" act by appellant when he was first inducted into the office of county clerk, and the construction seems to have been acquiesced in ¡by his predecessor in office. In any event, we think that such construction carries out the intention of the Legislature as indicated by the language of the statute; and we think there would he no good reason to change such interpretation because a subsequent Legislature moved up the fiscal year to an earlier date.

It follows that the judgment of the circuit court will therefore be affirmed.


author: Hart, C. J.

text:
    Creekmore v. Scott.
    Opinion delivered September 30, 1929.

      8. W. Woods, for appellant.

      J. M. Shinn and Henry Youngblood, 'for appellee.
   Hart, C. J.

Appellee, Julia Scott, recovered. judgment in the circuit court for damages against appellants, Hench Creekmore and Claude Creekmore, for the sum of $5,000, and caused an execution to be issued thereon, •which was by the sheriff levied upon two farms owned by appellants. Hench Creekmore claimed one of the farms, which comprised ninety acres, as his homestead, and filed his schedule of exemptions with the clerk of the circuit court. Claude Creekmore owned one of the farms, comprising thirty acres, and filed his schedule of exemptions with the clerk, claiming it as his homestead. The circuit clerk refused to issue a supersedeas staying the sale under the execution, and each of the appellants appealed to the circuit court. The circuit court heard the application of each appellant for a supersedeas upon the evidence adduced at the trial, and refused to grant the same. The case is here on appeal.

According to the evidence adduced by appellee, Hench Creekmore had not lived on his farm for more than two' years before the issuance of the execution, and Claude Creekmore had not lived on his farm for more than six years before the issuance of the execution. Each one of the appellants had allowed his farm to become run down and the house on' it to become badly out of repair. No one occupied the house on either farm, and no one cultivated the land. Claude Creekmore left his farm and went to Missouri, and lived there with his wife and children. Hench Creekmore lived with his mother on his farm, and carried her to his new home in Carroll County when he left his home place.

Claude Creekmore admitted that he voted in Missouri for President at the last presidential election, ’but testified that he never abandoned his homestead, but intended to return to it as soon as he was able to do so. He claimed that he had left his homestead because of financial trouble, and never intended to permanently abandon it. It was shown by one witness that Hench Creekmore had testified before the clerk, when he filed his schedule of exemptions, that he had voted one time in Carroll County since he left his home. Hench Creek-more denied this, however, and testified that he never abandoned his homestead, but intended to return to it as soon as he conld arrange to do so. Each one of them admitted that his property had been assessed at his new place of abode after he had left his homestead, but insisted that his intention was to return to his homestead as soon as he could arrange his 'business affairs.

The circuit court made a general finding in favor of appellee, and it was adjudged that the application of each appellant for a supersedeas upon his schedule filed should be refused, and that proceedings under the execution should go on as if no application for a supersedeas had been made. This was tantamount to a finding that each appellant had abandoned his homestead and that the same was subject to the execution which had been levied upon it.

This court has uniformly held that an abandonment of a homestead is almost, if not entirely, a question of intention which must be determined from the facts and circumstances attending each case. The court has further held that a removal from the homestead may be caused by necessity, or for business purposes, and that, if the owner has an unqualified intention to preserve it as a homestead and to return to it, his removal cannot result in the abandonment of the land as a homestead. Gazola v. Savage, 80 Ark. 249, 96 S. W. 981; Caldcleugh v. Caldcleugh, 158 Ark. 224, 250 S. W. 324, and cases cited.

This court has held, however, that the abandonment of a homestead may be proved by conduct, circumstances and actions, as well as by direct testimony. Lilly v. Lilly, 178 Ark. 324, 11 S. W. (2d) 705. Tested by this rule, we are of the opinion that there is substantial evidence to sustain the circuit court’s finding that appellants intended to abandon their homesteads, and did abandon them. It is true that each of them denied that such was his intention, and testified that he intended to return to his homestead; yet the court might have found that this testimony was overcome by the conduct of the appellants and the attendant circumstances. Neither of them attempted to rent out his homestead or to give any attention whatever to it. They permitted the houses to become badly out of repair, and did not attempt to have the land cultivated. One of them actually voted in the State of Missouri, which tends to show that he intended to live there and make that State his home. The court might have found that the other assessed his property in Carroll County, and, 'by the neglect of his homestead, which was near by, evinced an intention to abandon it and make his permanent home elsewhere.

It is well settled in this State that, where there is substantial evidence in support of the findings of the trial court, it will not be set aside on appeal; and this rule has been frequently applied in cases of this sort. Robinson v. Swearengen, 55 Ark. 55, 17 S. W. 365; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981; Harris v. Ray, 107 Ark. 281, 154 S. W. 199; Bank v. Brown, 136 Ark. 517, 203 S. W. 579.

When the law makes the .judge the trier of facts in cases to which the constitutional right of trial by jury does not extend, the finding's of fact by the circuit judge are as' conclusive on appeal as the verdict of a jury. Jones v. Glidewell, 53 Axk. 161, 13 S. W. 723, 7 L. R. A. 831; Matthews v. Clay County, 125 Ark. 136, 188 S. W. 564, and cases cited.

The result of our views is that the judgment of the circuit court was correct, and it mil therefore be affirmed.


author: Smith, J.

text:
    Johnson v. Washington County.
    Opinion delivered September 30, 1929.

      R. J. Wilson, John Mayes and Karl Greenhaw, for appellant.
   Smith, J.

This appeal is from a judgment of the circuit court, denying appellant’s claim for damages to a tract of land which was owned by a man named Davis at the time an order of condemnation was made laying out a public road across the land.

Davis delivered to appellant a deed to the land and an assignment in writing of the claim for damages, and both instruments were filed for record on the same day and within less than one year of the date of the order of condemnation by the county court. The claim was disallowed by the county court, and by the circuit court on the appeal to that court, and the judgment of the circuit court appears to have been based upon the finding of fact, recited in the judgment, that appellant “purchased the land after having full knowledge that the county court had made the change in said road, and his assignment of the alleged cause of action was made some months after the title had passed from his grantor.”

If it were material to determine whether the assignment of the claim for damages had been made at a date subsequent to the delivery of the deed, this question of fact should have been submitted to the jury, as the testimony was conflicting on this question. The circuit court, however, withdrew the case from the jury and made this finding of fact, which was error, for the reason that the question is one for the jury.

The testimony on the part of the appellant was to the effect that he refused to accept the deed until the claim for damages had been assigned, and that there was a simultaneous delivery of these instruments, and that both were filed for record on the same day.

However, we regard this question of fact as immaterial, for, if it be said that the deed did not operate to convey and assign the cause of action (which we do not decide), the cause of action was assignable (§ 6303, C. & M. Digest), and the assignment was made within less fhan one year of the date of the order of the county court condemning the land, and the claim for damages based on the assignment was also filed with the county court for allowance within less than a year of that date.

The order of the county court appears to have been based upon the act construed in the case of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, which appears as § 5249, C. & M. Digest. Under this section the landowner whose land is taken or damaged by the order of the county court has twelve months within which to file a claim. Appellant became the owner of the land and of the cause of action for its damage within twelve months of the date of the order of the county court, and, as it is -alleged, and appears not to be denied, that his predecessor in title received no compensation, he is entitled to demand the compensation to which his grantor would have been entitled had the land not been sold. If therefore the right to sue for the damage to the land did not arise from the acquisition of the title thereto under the deed, it was given by the assignment of that cause of action, and, as the claim was filed within the time limited by the statute, it should have, been heard on its merits.

The judgment will therefore be reversed, and the cause remanded, with directions to assess such damages in appellant’s favor as the law and the testimony require.


author: Humphreys, J.

text:
    Woolem v. State.
    Opinion delivered September 30, 1929.

      Isaac McClellan, for appellant.

      Ilal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Grant County for possessing a still, on the 3d day of February, 1929, and, as a punishment for the commission of the crime, was adjudged to serve a term of one year in the State Penitentiary, from which judgment he has duly prosecuted an appeal to this court.

Appellant assigns as reversible error admission by the trial court of testimony on the trial of the cause obtained by officers of the law in searching his dwelling-house on the 2d day of February, 1929, without a legal search warrant. The testimony admitted by the'court, over the objection and exception of appellant, was that of the sheriff and his deputies, to the effect that they made a search of appellant’s home on the 2d day of February, 1929, and found a lot of fruit .jars, about two dozen jugs, one barrel containing a little mash, a rubber hose three feet long in the house, two sacks of sugar in the loft, six empty barrels in the barn under the hay, a five-gallon keg, and a funnel; and that next morning, in searching the premises, they found a still, worm and other fixtures, making a complete still, hidden under a brushpile in appellant’s field, about one hundred and fifty yards back of the house. The search warrant bore date of February 5, 1929, and authorized the search of appellant’s house or premises for stolen or embezzled property. The return made 'by the sheriff on the back of the warrant on the 6th day of February, 1929, stated that same was executed on the 2d day of February, 1929, by searching appellant’s house, with results stated above.

Appellant argues that the warrant on its face postdated the search, necessarily showing that same was issued after the search was made; that it was not supported by an affidavit, and that it authorized a search for stolen or embezzled property and not for .stills and paraphernalia used in connection therewith, and that for these reasons and other defects appearing on its face- the warrant was illegal and of no effect.

Even though the warrant were illegally issued and void, evidence discovered by the search, tending to show appellant’s guilt, was admissible under the rule announced by this court in Starchman v. State, 62 Ark. 538, 36 S. W. 910, and reiterated and adhered to in the cases of Benson v. State, 149 Ark. 633, 233 S. W. 758; Van Hookc v. Helena, 170 Ark. 1083, 282 S. W. 673; Knight v. State, 171 Ark. 882, 286 S. W. 1013; Milton v. Fort Smith, 175 Ark. 694, 1 S. W. (2d) 45. Under the doctrine of all of these cases the admissibility of - such evidence is not affected, by the fact that the search warrant was illegally issued, or the officers making the search had no. warrant at all, and were trespassers.

Appellant also assigns as reversible error the action of the trial court in excluding testimony offered by appellants to the effect that Robert McGuire had been convicted several times for liquor violations. Appellant denied the ownership of the still, and testified that he believed Robert McGuire, who resided upon the farm, owned the still, and offered the excluded testimony as a circumstance in support of his belief. One may possess a still in violation of the law without being the owner thereof, so the testimony was not pertinent to the issue, and was properly excluded.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Beck v. State.
    Opinion delivered September 30, 1929.

      Ilal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.

Vina Beck prosecutes this appeal from a conviction for murder in the first degree for killing her husiband, with a sentence of life imprisonment. No brief has been filed on her behalf.

It appears from the testimony that she and her husband and their seven children had not been living happily together; that she had left home and gone to the residence of one Mr. Porter, and remained there for some time before the killing, and had some of her things removed to his place. Later the parties resumed living together again, and, upon her leaving home a second time and going to Porter’s, her husband began a prosecution by swearing out a warrant against her and Porter, charging illegal cohabitation. On the day seit for trial, and just before the time set therefor, she met her husiband, they spoke and talked together a little, and she caressed the baby which he was carrying. They were seen walking along the street together, some of the witnesses said, and others stated she was a step or two behind him. When they reached a place on another street, around behind some warehouses, she shot him with a pistol in the back of the head, about two inches to the left of the right ear, the bullet ranging upward and coming out near the left eye. He fell, and died immediately. When witnesses reached there in the next two or three minutes he was lying on his back, apparently dead, with one hand clutched in the bib of his overalls and the other lying out, with a knife in it, some of the witnesses saying the knife was not clutched in but lying in his open hand. Other witnesses testified that she had told them she was going to kill her husband about this charge, and showed them the pistol with which she expected to do it, which, they identified, was the same one with which the shooting was done.

She claimed to have acted in self-defense in the shooting, after a demonstration had been made against her with the knife, and also to be mentally irresponsible because of a venereal disease which her husband had communicated to her. There was some testimony in support of this latter fact, and witnesses stated that the body of the husband, upon examination, did not disclose that he had ever been afflicted with a venereal disease, and over objection other witnesses were allowed to state that Porter, with whom she was charged to have been living, was suffering with such a disease. There was some testimony also supporting the claim of irresponsibility because of the venereal disease from which she had suffered.

The instructions given appear to have correctly declared the law, and the majority is of opinion that no prejudicial error resulted from the introduction of the testimony about the physical condition of her alleged paramour, that he had the same kind of a disease which she claimed to have contracted from intercourse with her husband, and on account of which she had suffered the mental derangement. The writer, however, thinks it was a oollater'al matter about which her statement denying it was conclusive, and that the testimony was incompetent and hig’hly prejudicial.

There are no other errors complained of which seem to require a discussion, and upon the whole case, after a careful examination, the court concludes the record is without prejudicial error, and that the judgment should be affirmed. It is so ordered.


text:
    Evers v. State.
    Opinion delivered September 30, 1929.

      W. A. Leach, for appellant.

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

This appeal is from tbe judgment of the Arkansas Circuit Court, Southern District, sentencing appellant to death upon the charge of having murdered Terry Miller.

It is very earnestly insisted that the grand jury which returned the indictment was not legally constituted at the time the indictment was returned, and that it was void for this reason. It is also argued that the testimony is not legally sufficient to show that deliberation and premeditation which the law requires to raise an unlawful killing to the grade of murder in the first degree.

It appears that the regular session of the court convened on January 21,1929, but, on account of an epidemio of influenza in that community, an adjournment was had to the 25th day of February, 1929, at which time the grand jury was duly impaneled. The court remained in session until March 1, 1929, at which time it was ordered that the court he adjourned until May 7, 1929. On February 28, 1929, the grand jury filed a report, which was designated as a “final report,” and the circuit clerk entered upon the records of the court an order in which it was recited that the “report is by the court received, and, with the extension of thanks to the members of the jury, the court doth now excuse such .jury from further service at this term, subject to call, if needed.”

On the night of March 19, 1929, the crime for which appellant was indicted was committed, and, when the court reconvened pursuant to adjournment, appellant had been arrested and was in custody, and the indictment upon which he was tried was returned on the day to which the court had adjourned.

On May. 9, 1929, a motion was filed by counsel for -appellant to quash the indictment, upon the ground that the grand jury, having been discharged, had become functus officio, and had no legal authority to return the indictment. Upon the hearing of this motion, testimony was heard. The clerk of the court, a deputy sheriff, and special counsel representing the State, were sworn, and testified concerning the order which the court had made in regard to the discharge of the grand jury, and the trial judge who had presided at that time made a statement, which was incorporated into the record, and upon this testimony a nunc pro tunc order was entered purporting to show the order which was actually made.

In the case of Lowe v. Mart, 93 ,Ank. 548, 125 ¡S. W. 1030, it was said that “a nunc pro tunc order is intended to state what the court did, and not what it should have done,” and that the'recollection of the presiding judge in mating such an order must he accepted in the absence of any oral testimony or anything in the record itself to the contrary.

Here the oral testimony did not contradict the recollection of the presiding judge as to the order made, hut was corroborative, and we must accept the nunc pro tunc order as correctly reciting the order which was in fact made.

This nunc pro tunc order recited that the previous order had been erroneously entered by the clerk of the court, and “that on the date said alleged or purported order appears to have been made the court did make an order, after receiving report of the grand jury, allowing the grand jury to go to their homes for the present, but with a distinct and clear statement that the grand jury was neither excused nor discharged, but that it was to and did remain the grand .jury of this term and a part of the court for this term, and that their functions as a grand jury were to remain and continue, and this was the order made 'by the court with respect to the grand jury. The court did not excuse the. grand jury for the term, but merely allowed the members thereof to go to their homes, and still retained jurisdiction over said jury. The record is purged irnnc pro tunc of the erroneous entry, which was inadvertently entered without the consent or approval of the court, and the record is now corrected nunc pro tunc to show that the grand jury was never discharged or excused, but that the court did allow the members thereof to retire to their homes, after having stated to the jury that the court was not going to adjourn on that date, but that it would recess over to a future date, stating to the jury the date to which it would recess. And the court overruled the motion of defendant, and defendant saves his exceptions.”

If it should he held that the original order entered by the clerk correctly reflected the order of the court when the grand jury report was filed, and that the effect of this order was to discharge the grand .jury for the term (which we do not hold), it must be said that the nunc fro tunc order showed that the jury was not discharged, but remained a legally constituted body.

It is true that, under our practice, the grand jury sits as an agency of the court, and can function only during a term of court. But it is not required that the grand jury shall remain continuously in session after being impaneled until finally discharged, nor is its right to sit confined to such days as the court of which it is an adjunct is actually in session, provided the term has not lapsed. The jury itself necessarily has a discretion as to the continuity of its session, subject, however, to any affirmative orders of the court in this behalf.

Of necessity the trial judge must have — and he does have — a wide discretion in such matters. In the case of McVay v. State, 104 Ark. 629, 150 S. W. 126, a jury was impaneled which later returned a verdict upon which a sentence of death was imposed. The jury was impaneled in that case on February 5, 1912, at which time an order was made adjourning the session of the court to a future day, and in the interval a term of court was held in another county in the circuit, and when the court met pursuant to the adjourning order a motion was made that the trial jury be discharged upon the ground that it had become functus officio on account of the holding of a term of court in another county. This motion was overruled, and in affirming that action this court said:

“The statutes of this State provide that ‘special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge in term time, and entered by the clerk on the record of the court.’ Kirby’s Digest, § 1531. This statute confers authority to adjourn to a day beyond the intervening term of court in another county in the same circuit (citing authorities). When the court reconvened, it did not begin a new term, but that constituted a, continuation of the old. Davies v. State, 39 Ark. 448. The court stood as originally organized, and the adjournment over to a certain day did not operate as a discharge of the regular juries, grand and petit, nor of a jury impaneled in a particular case. Commonwealth v. Bannon, 97 Mass. 214. If the court had the power to order an adjournment over to another day, that necessarily carried with it the power to retain the entire organization as constituted at the time of the adjournment.”

The court had the power to dismiss the grand jury until such time as the service of that body was again needed, as its control over the grand jury was complete so long as the term of court continued, and it is not contended in this case that the term of court had lapsed.

'Concerning the assignment of error that the testimony does not support the verdict of the .jury, but little need be said. The testimony on the part of the State was to the effect that the deceased, who was the marshal of the town of DeWitt, had in his possession a warrant for the arrest of appellant, which charged appellant with the crime of assault with intent to kill, and appellant was aware of that fact. Appellant made the statement to more than one person, who later testified in the case, that if ‘ the law, ’ ’ as he designated the marshal, attempted to arrest him, he would kill “the law.” Miller located appellant in the home of McKinley Fitzpatrick, about nine o’clock at night, where, accompanied by another officer, he went for the purpose of arresting appellant under the warrant in his possession. Appellant and a man named Mann Garrett were engaged in a game of cards in the front room of Fitzpatrick’s house when Miller knocked at the front door for admission. Garrett opened the door, and then followed appellant into a middle room of the house, into which Miller proceeded after entering the house by the front door. When Miller entered this middle room, the firing began, and Gaxrett *was first shot, and then Miller, and the testimony is to the effect that appellant fired the shots which hilled both those men, although he had no intention of killing Garrett. The testimony supports the finding that Miller did not fire until after he had been shot, and that appellant commenced firing to make good his threat that he would kill the officer who attempted to arrest him.

The testimony is sufficient to support the verdict, and, as no error appears, the judgment must be affirmed, and it is so ordered.