author: Kirby, J.

text:
    Crawford v. State.
    Opinion delivered December 21, 1931.

      J. V. Walicer, for appellant.

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

Charles E. Crawford prosecutes this appeal from a judgment of conviction upon an indictment charging him with receiving a deposit in the Citizens’ Bank of Pettigrew, of which he was president, on the 19th day of December, 1930, when the bank was insolvent and known to be so by him at the time of his acceptance of the deposit.

Appellant urges for reversal that the court erred in giving and refusing certain instructions, in the admission of and refusal to exclude from the jury certain testimony, and the refusal of the court to direct a verdict for him on his motion at the conclusion of the testimony, it being claimed that there was not testimony sufficient to support the verdict.

Appellant complains of instruction number 3, given for the State, and the refusal of the court to give his requested instruction number 1. The statute, § 717, Crawford & Moses’ Digest, defines insolvency within the meaning of the banking act, and the instruction complained of is substantially in the language of the statute, the case being tried upon the theory that at the time the bank closed its liabilities exceeded its assets, and it was insolvent within the meaning of the statute defining insolvency, and the contention that the instruction was erroneous cannot be sustained. If some portion of the instruction was abstract as applied to the case, no specific objection was made on that ground, and the instruction requested by appellant on the question of insolvency contained an exact copy of said statute, and was more abstract than the one given by the court. The instruction given closely follows the language of the statute defining insolvency, and is necessarily a. correct declaration of the law, from which doubtless any portion of the instruction which could be considered abstract would have been eliminated upon specific objection made calling attention thereto, and no error was committed in giving this instruction. Hannah v. State, 183 Ark. 810, 38 S. W. (2d) 1090; Hunter v. State, 180 Ark. 613, 22 S. W. (2d) 40.

An inventory of the bank’s affairs was exhibited showing that on December 20,1930, the date of its closing, its liabilities for deposits amounted to $33,765.55, its capital stock was $10,000, and its surplus $4,000, making a total liability of $47,765.55. Evidence of the appraisal appears at Exhibit Q showing losses on the actual value of the assets to be less than it was figured on the bank’s inventory, as follows: loss in bank house, $250; furniture and fixtures, $1,181; cash items, $265.56; loans and discount loss, $12,607.91; the total of these amounts being $14,304.47, which, deducted from the assets of the ■bank, discloses that the liability for deposits exceeds the assets, and that the bank was insolvent, therefore, within the meaning of the said statute. There were a number of other items for large amounts not included in the losses that could have been, most of them being unsecured and no interest having been paid on them for more than a year. In the examiner’s report, a Sullins note for $1,500 was included as a collectable item, upon which no interest had been paid for more than one year, also a note for $2,000 was not included in the loss column, although there was more than one year’s interest due on it, and it was unsecured.

Appellant insists that the court erred in permitting the introduction of Exhibit P an appraisal of the assets and liabilities of the bank on the day it closed, in connection with the testimony of witness, Maxey, because the report was not prepared by him. This witness, however, stated that he was special deputy bank commissioner in charge of the bank when the inventory of its assets was made; that he examined the inventory, and after taking charge of the bank investigated and verified it and found it to be correct. Certainly, the testimony was competent, and, although.the witness referred to the inven- ' tory as having been prepared by another, he stated that he made an investigation of the bank’s condition and affairs aftel taking charge of it, which disclosed that the inventory was correct, and the witness was therefore in effect testifying about his own knowledge acquired from an investigation and examination of the affairs and books of the bank, which verified the inventory as stated by him to be correct.

Objection is also made that the court erred in allowing the introduction of the testimony of other witnesses, or rather in not excluding such testimony or striking it from the record, about appellant’s losses after it was permitted to be introduced without objection. These witnesses were depositors of the bank, and had been working in conjunction with the liquidating agents in making an appraisal of the bank’s assets. Their testimony concerning the value of the assets was predicated on information obtained by them with reference to the value of the assets subsequent to the closing of the bank. In proving the value of assets, any competent evidence pertaining thereto should be received as illustrating and bearing upon the worth of the assets as of the time of December ’20, 1930, the date the bank closed. 1 Michie, Banks and Banking, page 342; State v. Hightower, 187 N. C. 300, 121 S. E. 616; State v. Miller, 131 Kan. 36, 29 Pac. 483.

Some of the testimony of each of the said witnesses was competent, most of it, and, having been introduced without objection, it was within the discretion of the court to refuse to exclude it and withdraw it from the jury. Martin v. State, 180 Ark. 12, 22 S. W. (2d) 1012.

The testimony of C. D. Chaney, cashier of the bank when it closed, that appellant had actual management of the bank, passed on the loans, as the board of directors did not meet regularly, and also concerning the mass meeting on December 13th and the resolution of the board of directors to prohibit the withdrawal of more than'$5 per day by the depositors, and about the reserve, the overdrafts of appellant, his attempts to procure loans for the bank immediately prior to its closing, and his statements relative to the cash item of a two-year-old check drawn by J. H. Phipps and concerning the indebtedness of Phipps to the bank, were introduced without objection; and, although certain portions of this witness’ testimony were objected to, no motion was made to strike any particular part of it out, and the court did not err in allowing it Introduced. This testimony was admissible to show the knowledge of the defendant of the condition of the hank and to show the bank’s failure to maintain its reserve. State v. Cole, 161 La. 829, 109 So. 505; 1 Michie, Banks and Banking, page 339.

In order to sustain the conviction, the State must not only show that the bank is insolvent, but also that the official receiving the deposit has knowledge of that fact. The proof of such knowledge is frequently by inference-from the circumstances, and the official charged with the crime cannot complain of the proof of circumstances which impute to him knowledge of the bank’s insolvency, but such proof should be limited to the purpose stated, and the State should not be permitted to prove any facts or circumstances from which the guilt of the accused might be inferred, unless such facts and circumstances also tend to show the bank’s insolvency and the official’s knowledge of that fact. Skarda v. State, 118 Ark. 182, 175 S. W. 1190, Ann. Cas. 1916E, 586.

The evidence in the ease is voluminous and somewhat conflicting, hut it showed that the deposit was received by appellant, the president of the bank, and that the bank at the time was insolvent within the meaning of the statute, and that the appellant was thoroughly familiar with ■the bank’s condition, that he practically operated it, there being no discount board, and he necessarily knew the condition existing at the time the deposit was accepted, and the jury could have inferred such fact from the testimony.

It is true he was frantically urging certain of the debtors of the bank to pay up and trying to get enough money at the time to restore the reserve, although he had not been called on to do so, and may have believed that the bank would be able to weather the storm, but his good intentions and honest belief about being able to get the money to tide the bank over the difficulty does not excuse him from the penalty of the law for accepting a deposit when the bank was insolvent, and he must have known of that fact.

The jury have found, upon sufficient evidence, that his conduct was a violation of the banking act. The record being free from error, the judgment must be affirmed. It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Powers v. Wood Parts Corporation.
    Opinion delivered December 21, 1931.

      A. M. Coates, for appellant.

      W. O. Diming, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment for damages for an alleged breach of contract to accept delivery of certain lumber ordered by appellee.

Appellant’s brief recites: ‘ ‘ The appellant by this appeal wishes to present only one question for determination by the court, that the judgment of the lower court should be here modified by awarding to the appellant the full amount of damages proved to the extent of $8,763.47, instead of $1,904, as found by the jury.”

The appellee did not deny the execution of the four orders for the magnolia lumber to be used in automobile building, but defended the action upon the ground that they were open orders, the shipping dates being left blank, giving it the right to cancel the orders by custom and usage of trade, provided they did not need the lumber themselves.

Appellant introduced copies of its letters of acceptance of the orders, in each of which the kind of lumber with the prices was stated, the terms, etc., and: “We have entered this order for shipment exactly as per above, shipments to be made as promptly as stock had been on rack for fifteen days or more. If this is not satisfactory, or should you wish to give us any other routing or shipping instructions, do not fail to wire us. Not hearing from you by wire, we will understand that the order as entered above meets with your entire approval, and will proceed to make shipment accordingly.”

Testimony on the part of appellant conduced to show that they set about the manufacture of the lumber in accordance with the orders for supplying the amount desired ; that they shipped only a certain amount of lumber because they could not get releases for any more shipments from the appellee company, and the amount of lumber remaining on hands in October, 1928, when appellee attempted by letter to cancel the orders. They declined to do this at the time, writing appellee that they had a large amount of lumber on hands, but did not have ‘ ‘ releases ’ ’ thereon. They requested appellee, upon receipt of the letter, to wire advice, whether they would send releases for shipments during December and also January.

Appellee company finally wrote that they had canceled the orders of a certain date, claiming they had the right to do so. The testimony shows that appellant was constantly trying to get releases from appellee company for shipment of the lumber; also the amount of lumber . claimed to' be on hands after appellee company notified appellants that it had canceled the orders, and the dam- ' ages resulting from the refusal of the appellee company to accept and pay for the lumber in accordance with the orders.

Appellee, in informing that the orders had been canceled, also.stated that, if the lumber had not been stacked flat, it would be worthless for any purpose at the time of the cancellation of the orders. It also showed that there was very little lumber of the kind appellant claimed to have manufactured for the purpose of filling the orders on hand when the receiver took charge of appellant com-pany, nothing like the amount for which appellant was 'claiming damages. The evidence also tended to show the .difference between the market price of the lumber, claimed to have been manufactured under the orders at the time . of their cancellation by appellee company, and the price agreed to be paid by appellee in the orders. Appellee denied any liability, claimed the orders were conditioned upon their releasing them for shipment, and that they had the right, according to custom of trade, to cancel them, being open orders without any date of shipment being specified therein or any release given for shipment.

The testimony was in conflict as to the amount of the .damages resulting from the cancellation of the orders, that upon the part of appellant conducing to show the .amount of the damages was $8,763.47, instead of $1,904, . as the jury found.

The law requires, when a trial by .jury has been had, thát the judgment must be entered in conformity with the ■verdict, unless it is special and the court orders the case ■to be reserved for further consideration, and also that .-judgment can be entered notwithstanding the verdict, only where, upon the statements in the pleadings, one . party is entitled by law to judgment in his favor. Sections 6271, 6273, Crawford & Moses’ Digest.

: • • :The appellant was not entitled to a judgment under -the pleadings, which denied any liability, nor under the vufidisputed proof, and the verdict and judgment was for a very substantial amount, there being no refusal to render judgment for more than a nominal sum. It may be true that the verdict is not consistent with either theory of the case, but this furnishes no ground for reversal of it, where it is supported by substantial testimony. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49; Moore v. Rogers Wholesale Grocery Co., 177 Ark. 993, 8 S. W. (2d) 457.

The trial court might have granted a new trial if it had regarded the verdict contrary to the preponderance of the testimony, but its failure to do so furnishes no ground for the entry of a judgment for the amount of damages claimed, notwithstanding the verdict of the jury for a smaller amount.

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


author: Mehaffy, J.

text:
    Sovereign Camp Woodmen of the World v. Clark.
    Opinion delivered December 21, 1931.

      D. E. Bradshaw, O. C. Burnside and W. G. Streett, for appellant.

      J. R. Parker, for appellee.
   Mehaffy, J.

In February-, 1926, the appellant, the Sovereign Camp of the Woodmen of the World, issued to Robert E. Ferris a certificate and policy of insurance for the sum of $2,000 and $100 for monument. Fannie E. Ferris, the wife of said Robert E. Ferris, was the sole beneficiary.

On October 14, 1930, Fannie E. Ferris, the beneficiary, shot and killed the insured, Robert E. Ferris, and, in a few minutes thereafter, committed suicide.

D. S. Clark was appointed administrator of the estate of Robert E. Ferris, deceased, and began this action to recover $2,100 with 12 per cent, damages and attorney’s fees. The appellant had denied liability.

The case was tried before the circuit judge sitting as a jury on an agreed statement of facts, which is as follows:

“First. That, on October 14,1930, Fannie E. Ferris, wife of Robert E. Ferris, and sole beneficiary named in the certificate or policy of insurance sued on herein, intentionally killed the said Robert E. Ferris by shooting him, the said Robert E. Ferris, in the back, while the said Robert E. Ferris was talking over the telephone, and very shortly thereafter committed suicide by shooting herself with the same gun as she used in the murder of her said husband.
“Second. That, at the time the said Robert E. Ferris was murdered, as aforesaid, by the said Fannie E. Ferris, he, the said Robert E. Ferris, was a member of, and in gooding standing in, the defendant society.
“Third. That, shortly after the death of the said Robert E. Ferris, as aforesaid, J. R. Parker, the attorney for plaintiff, wrote the defendant, advising it of the murder of said Robert E. Ferris by the said Fannie E. Ferris, whereupon said defendant denied in writing all liability under the policy or certificate sued on herein, and refused to erect the monument as called for by the monument rider, and thereby waived the furnishing of proof of death of the said Robert E. Ferris.
“Fourth. That D. S. Clark is and was at the time of the bringing of this suit the duly appointed, qualified and acting administrator of the estate of Robert E. Ferris, deceased.
“Fifth. That the defendant is what is known as a fraternal benefit association, has a lodge system, a ritualistic form of work, and a representative form of government, and has no capital stock and transacts its business without profit and for the sole benefit of its members and their beneficiaries.
“ Sixth. That a photostatic copy of the original application, signed by the said Bobert E. Ferris, upon which the policy or certificate sued on herein was issued, may be used in evidence in lieu of the original of said certificate.
“Seventh. That, at the time said application was made by the said Bobert E. Ferris for membership in defendant society, and at the time the policy or certificate sued on herein was issued and delivered, the constitution, laws and bylaws of the defendant, among other things, provided:
“ ‘The following conditions shall apply to every beneficiary certificate, and shall be binding on both the member and the beneficiary; * * * If the member holding this certificate * * * should die in consequence of a duel; or from the direct result of the drinking of intoxicating liquors; or while engaged in war, except in defense of the United States of America; or by his own hand or act, whether sane or insane, or by the hands of the beneficiary or beneficiaries, whether sane or insane, except by accident on the part of the beneficiary, * * * the certificate shall be null and void and of no effect, and all moneys which shall have been paid and all rights and benefits which have accrued on account of the certificate shall be absolutely forfeited without notice or service.’
“Eighth. That the statutes of Nebraska, under which defendant is incorporated, provides:
“ ‘That payment of death benefits shall only be made to the wife, husband, families, heirs, blood relations, affianced husband, affianced wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-'law, step-father, step-mother, step-children, stepbrother, step-sister, children by legal adoption or a person or persons dependent upon the member, or under certain circumstances to an incorporated charitable institution or a person entering into a contract to support the member.’ [See Comp. St. Neb. 1929, § 44-1207].
“Ninth. That the heirs of Robert E. Ferris, deceased, consist of his several brothers and sisters.”

The appellant is a fraternal benefit society as described by § 6068 of Crawford & Moses’ Digest. Section 6076 of Crawford & Moses’ Digest provides, among other things: “The certificate, the charter, or articles of incorporation, or, if a voluntary association, the articles of association, the constitution and laws of the society and the application for membership and medical examination signed by the applicant and all amendments to each thereof, shall constitute the agreement between the society and member. * * * And any changes, additions or amendments to said charter or articles of incorporation or articles of association, if a voluntary association, constitution and laws, duly made or enacted subsequent to the issuance of the benefit certificate, shall bind the member and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions, or amendments had been made prior to and were in force at the time of the application for membership.”

One of the provisions in the contract is that, if the insured shall die by the hands of the beneficiary, whether sane or insane, except by accident on the part of the beneficiary, the certificate shall be null and void. The only question for our consideration in this case is whether that provision in the contract making the policy void if the insured is killed by the beneficiary is valid.

The appellee earnestly argues that the provision is immoral, base, revolting, and non-enforeeable, and that it is contrary to public policy. He calls attention to numerous authorities to the effect that contracts against public policy are not enforceable. In this he is correct, but the question whether a contract is against public policy must be.determined by its purpose and tendency. No one can lawfully do that which has a tendency to be injurious to the public welfare. There is no contention that the provision in the contract here involved is injurious to the public welfare or that it violates any statute.

If the beneficiary in a policy had hilled the insured, he could not recover. It would be against public policy for him to recover. No one can recover on a contract that is either against public policy or that is illegal, but the fact that the beneficiary who murders the insured cannot recover does not mean that the benefit society would not have the right to make a contract which would make the policy void if the beneficiary killed the insured.

The statute in Arkansas expressly authorizes fraternal benefit societies like the appellant to make contracts with their members. The appellant has no capital stock, transacts its business without profit for the sole benefit of its members. Therefore, if a policy is void, this is a benefit, not to the organization, but to all of the members, and we know of no law that prohibits fraternal bene•fit societies from making contracts of this kind.

The society is expressly authorized by statutes, not only to make contracts with its members, but it is authorized from time to time to change its constitution and bylaws, and the statute provides that the constitution and bylaws so changed shall be as binding on the member as if they had been in force at the time the contract was made.

This court said: ‘ ‘ The wilful, unlawful, and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein. It is unnecessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of such person in such event. On considerations of public policy, the death of the insured, wilfully and intentionally caused by the beneficiary of the policy, is an excepted risk so far as the person thus causing the death is concerned.” Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S. W. 836.

The doctrine announced in the above case has been uniformly followed by this court since that time.

It is therefore the settled doctrine in this State that' a beneficiary who murders the assured cannot recover. If that was all the provision there was in the benefit certificate, it would not avoid the policy, but recovery could be had by the estate oí the assured. But this policy provides that, if the beneficiary kills the assured, the policy shall be void, and no recovery can be had. It is conceded that no recovery can be had unless this provision of the contract is contrary to public policy.

The Colorado court quoted with approval the following from the Supreme Court of Indiana: “While forfeitures are never favored, yet, if, upon a reasonable construction, it appears that the parties contracted for a forfeiture upon certain conditions, it only remains for the courts to enforce the contract as the parties have made it. It is neither unlawful nor against public policy for a contract of life insurance to stipulate that upon certain conditions or contingencies the policy should become void.” Grand Circle Women of Woodcraft v. Rausch, 24 Cal. App. 304, 134 Pac. 141.

This court said: “The application for membership in appellant order and the certificate issued thereon both expressly refer to the laws, rules, and regulations of appellant, and make the certificate null and void, if the holder thereof fails to comply with such laws, rules, and regulations.

“It is well settled by our own cases, as well as the authorities generally, that the constitution and laws of a mutual benefit fraternal society, such as that of appellant form the basis and constitute a part of the contract of insurance. This contract measures the obligations of the members and the liability of the association or governing body.” Sovereign Camp of W. of W. v. Newsom, 142 Ark. 132, 219 S. W. 759; Sovereign Camp of W. of W. v. Barnes, 154 Ark. 486, 243 S. W. 55; Greer v. Supreme Tribe of Ben Hur, 195 Mo. App. 336, 190 S. W. 72; Griffith v. Mutual Protective League, 200 Mo. App. 87, 205 S. W. 286; Markland v. Modern Woodmen of America, (Mo. App.) 210 S. W. 920; McDade v. Mystic Workers of the World, 196 Iowa 857, 195 N. W. 603.

The last three or four cases cited above hold not only that both parties are bound by the contract they make, but that a contract like the one here involved is not a violation of the statute, and is not against public policy.

The law-making power could prohibit the making of-contracts like_ the one here involved and could provide that, in a case like the one at bar, there might be a recovery by the estate of the assured, but that is a question for the Legislature and not the courts. The .provision of the contract heré involved does not violate any statute, and is not contrary to public policy.

The judgment is therefore reversed, and the cause dismissed.


author: McIIaney, J.

text:
    Fair Oaks Stave Company v. Shue.
    Opinion delivered December 21, 1931.

      L. L. Campbell aud E. L. Westbrooke, for appellant.

      W. J. Dungcvn, E. M. Carl-Lee and Tom W. Caonpbell, for appellee.
   McIIaney, J.

Appellant is a partnership composed of J. R. Riable, B. O. Wallace and A. E. Coyle. The Miller Lumber Company, in connection with its lumber plant, owns a tramroad running northward from a junction with the Missouri Pacific Railroad, known as C Spur, a distance of about eight miles in Woodruff County. It was built for the use of said lumber company in hauling logs to its mill. It is not a railroad in the common acceptation of that term, is not a common carrier, as it hauls no freight or passengers for hire or otherwise. By virtue of a contract with appellant, it permits appellant to use the tramroad, with appellant’s equipment, for the purpose of hauling stave bolts from the woods along the tram to the public highway crossing said tram, where the bolts are unloaded and trucked into Fair Oaks and manufactured into staves. Appellant’s equipment for hauling bolts consisted of a Fordson tractor set on a small flat car, built for the purpose, which was geared to the trucks of the flat car, with a flat car in front and one behind for hauling the bolts. When the machinery was going northward, the tractor was headed north, but, when coming south, the tractor was in reverse and backed up, and operated at a rate of three or four miles per hour. Appellant paid the lumber company 25 cents a cord for the privilege of operating over its tram at such time as their operations would not interfere with that of the lumber company. On the evening of August 17,1929, appellee and his wife drove from their home in a truck to 0 Spur and there borrowed a hand-car from a man by the name of Henry Oupples, who was in the employ of the Miller Lumber Company, and started to visit his uncle, Charlie Shue, who lived some distance north of C Spur. The handcar was an old-fashioned one, operated by pumping the handles up and down, and Mrs. Shue assisted her husband in operating the car for a short time. They were traveling north and were advised by Cupples before leaving that appellant’s equipment was in north on the line about Charlie Shue’s place and to look out for it. Appellee and his wife started northward on the hand-ear in the nighttime, without any light thereon, and about a mile and one-half to two miles north of the highway crossing they had a collision with appellant’s equipment coming southward, which resulted in the serious injury and subsequent death of appellee’s wife. The hand-oar made a considerable noise, and appellee had his back to the north while operating the car. There was no light on appellant’s equipment, and no lookout was kept as the equipment was backed southward toward C Spur.

Appellee brought two actions against appellant, one as administrator of the estate of his wife for the benefit of the estate; the other for the benefit of the children for loss to them of the mother’s care, training and companionship. It was alleged in the complaint, and some proof to support the allegation was offered,- that it was customary for people in the vicinity to use the hand-car on the tram-road, and it was alleged that this custom was known, to appellants. It was further alleged that appellants had always operated their equipment with a light on each end of the cars when operated after dark, but that upon the night of the collision there were no lights on the cars, and that appellants were negligent in operating their equipment without them. The answer denied all the material allegations of the complaint, and pleaded the contributory negligence of appellee and his wife as a defense. At the conclusion of appellee’s testimony, and again at the conclusion of all the testimony, appellant requested a directed verdict which was refused. The jury found for appellant in the action for the benefit of the estate, but in the action for the benefit of the children there was a verdict for $1,500, and from the judgment thereon- this appeal is prosecuted.

Appellee and his wife were on a joint mission to the home of Charlie Shue, for business and pleasure. They were advised by- Mr. Cupples to “look out for that moose,” meaning the tractor and two cars operated by appellant. He and his wife both assisted in operating the hand-car, he with his back to the north and she with her face to the north when assisting in the operation. "When not so assisting, she stood between the handles with her face to the north or east. Although advised to look out for this equipment, neither did so, but blindly proceeded into a collision, which resulted in her death. We think they were both guilty of contributory negligence as a matter of law, which precludes a recovery. Appellants were not required to keep a lookout as they were not operating a railroad as owners, lessees or otherwise. No statute of this State applicable to railroads applies. The injury did not occur at a highway crossing. Conceding that appellant’s employees were negligent in the operation of that equipment in failing to have a light on the front end, appellees were guilty of contributory negligence, and cannot recover. The comparative negligence statute, (§ 8575, Crawford & Moses’ Digest) has no application for the reason that this is not a suit against a railroad, and the injury was not caused by the running of a train. Nor does § 7145 of the Digest apply for the reason that the action is not against a corporation, nor is the appellee an employee of appellant. Appellee and his wife being on a joint mission, and both being guilty of contributory negligence as a matter of law, no recovery can be had, and the court should have directed a verdict in appellant’s 'favor at their request, even though appellant may have been guilty of negligence. The judgment will be reversed, and the cause dismissed. It is so ordered.


author: Butler, J.

text:
    Arkola Bauxite Company v. Horn.
    Opinion delivered December 21, 1931.

      W. A. Utley, for appellant.

      Horace Chamtberlin and W. B. Bonham, for appellees.
   Butler, J.

We adopt the statement of the case made by counsel for the appellant, which is as follows:

“Appellees claim that, during the months of April and May, 1928, they entered into written leases with appellant granting the privilege of mining* and operating- for bauxite and other minerals, claiming that by the terms of said leases the appellant obligated itself to remove from said lands three thousand tons of ore per year, minimum, or in lieu thereof to pay the sum of fifteen hundred dollars, either of which would keep said lease in force and effect ; that the appellant entered upon said lands and opened up a mine and took therefrom and shipped a car of bauxite, and each of said appellees state that certain payments were made to them, approximately. $1,000 each, which paid, as they state, their rentals to about March 1, 1929, and thereafter appellant did not do any mining or operating of any kind and made no further payments. Each of said appellees seek to have their respective leases canceled and possession of said leases restored to them, and also to collect the amount stipulated in said leases which appellant could have paid and have kept said leases in force and effect from year to year, had it desired to do so.
“Appellant’s contention is that appellees waived their right to collect said amounts or to have said leases canceled, since, owing to the depressed economic conditions, they had permitted payments to be deferred or rather withheld, and for this reason were not entitled to have said leases canceled; or, if entitled to have said leases canceled, they were not entitled to recover the amounts provided in said leases which appellant could have paid and have kept same in full force and effect.”

That part of the lease material to the questions presented is as follows: “It is agreed that this lease shall remain in force as long as bauxite, kaolin and other minerais are produced from said lauds in paying quantities by tbe lessee, and/or if lessee shall commence operations at any time while this lease is in force, this lease shall remain in force and its terms shall continue so long as such operations continue with due diligence, said lessee agreeing to mine and take from said lands a minimum of three thousand (3,000) tons per year, or in lieu thereof, to pay lessor the sum of $1,500' per year, which sum shall operate as a rental and cover the privilege of continuing this lease in force and effect from year to year on the same terms and conditions as herein set forth.”

There is no dispute as to the facts in these cases. The lease of the appellee, Mrs. Louella Horn, was made on the 25th day of May, 1928, and that of the appellee, Boy'Bizzell, on April '25, 1928. The appellant, Arkola Bauxite Company, entered upon the demised premises and installed equipment thereon and built houses to the value of approximately $30,000, and began mining oper- ■ ations and removed a few tons of ore when it shut down its plant and has not operated it since. It paid Mrs. Horn $1,000 and Bizzell the rents for the year 1928 and $200 to apply on the rents for 1929.

The chancellor rendered judgment in favor of the appellees in the amount of the sums claimed as damages for breach of the leases, estimating the damages to be such as would have accrued for rents, and decreed the cancellation of the several leases.

It is clear that the appellant breached the leases by failing to take from the lands the minimum annual tonnage and failed to pay in lieu thereof the sums agreed upon. This entitled the lessors to sue in a court of equity for a cancellation of the leases and to recover damages for breach of same. The contract itself fixed the measure of damages which was $1,500 a year. This case is ruled by the doctrine announced in the case of Miller v. Mauney, 150 Ark. 161, 234 S. W. 498, as'.follows: “In the construction of mineral leases such as is involved in this case, the authorities uniformly hold that there is an implied obligation on the part of the lessee to proceed with the search and also with the development of the land with reasonable diligence according to the usual course of such business, and that a failure to do so amounts in effect to an abandonment and works a forfeiture of the lease. * * * They may go into a court of equity to cancel the contract and recover any incidental damages; they may in a separate action at law sue for' damages for. breach of the contract; or they may treat the contract as rescinded and sue to recover possession of the property.”

The appellant argues that the payments of $1,500 per year would not be due until the second year, that is, that under the terms of the lease they would have a year in which to explore the lease and prepare to mine the ore and the $1,500 a year would accrue only in and during the second year. The appellant has called to our attention no provision of the lease to warrant this position, and indeed there is no such provision. We think the interpretation of the chancellor ©f that part of the lease which we have quoted is the correct one. The decree is therefore affirmed.


text:
    Spear v. State.
    Opinion delivered December 21, 1931.

      Hardin $ Barton, for appellant.

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

Between 8 and 9 o’clock on the night of January ’28, 1931, three masked men appeared at the Reynolds Drug Store in the northeast section of the town on Van Burén in an automobile. Two of these men entered the drug store, and the third, described by witnesses as a very tall man, stood on the outside near the curb where the car was parked. All three were armed with pistols and masked, and the two who entered the store proceeded to rob it. While the robbery was going on a young man named Brown, accompanied by a young lady, parked his car on the opposite side of the street from the drug store and, observing what was occurring, took hi's pistol from the pocket of the car and ran across the street in the direction of the drug store and opened fire upon the man standing on the outside. In an interchange of shots between the two Brown was killed. The two men in the drug store had completed the robbery, and the three immediately left and made their escape, the one on the outside leaving in the car, the other two on foot.

At the March term, 1931, of the Crawford Circuit Court following the robbery an indictment was returned by the grand jury charging the appellant, Percy Spear in common-law form with having, on the’ date aforesaid with malice aforethought and after deliberation and premeditation, killed Elmo Brown by shooting him with a gun, etc. When the case was called for trial, the defendant filed his motion for a change of venue on the ground that the minds of the inhabitants of Crawford County were so prejudiced against him that he could not get a fair and impartial trial in said county. This petition was supported, by the affidavits of 15 or 16 persons. The motion was overruled by the court, and proper exceptions were saved to the action of the court. After a demurrer had been interposed to the indictment, which demurrer was overruled, the defendant was duly arrainged and the case tried before a jury, and the trial resulted in the conviction of the defendant for. the crime of murder in the second degree, with punishment fixed at imprisonment in the State penitentiary for a period of twenty-one years.

It is first insisted on appeal that the court erred in overruling the motion for the change of venue, the contention being that the examination of those who signed the supporting affidavits disclosed the state of mind of the inhabitants of the county as alleged, and that their examination showed that they were credible persons within the meaning' of the statute. After a careful consideration of the testimony of these' affiants, we cannot say that the trial court abused its discretion in denying the petition. There were ten affiants examined at length, which testimony requires fifty-eight pages of the transcript to record it. It would be impracticable to set out this testimony, but we have carefully read, not only the examination of the affiants abstracted by the appellant, but that of the others as well, and we conclude that their opinion was based on insufficient information. It was formed largely from gossip on the streets of Van Burén and by the expression of opinion of a few persons from some of the outlying townships, and the prejudice, if any, existing in the minds of the people appears to have been more against the crime itself than the individual accused of having committed it. It naturally aroused great feeling and resentment in the minds of all who heard it and an earnest desire that the guilty person, whoever he might be, should be punished. Some of the prejudice appears to have been directed more against the sheriff than against any one else, but this seems to have been entertained by only a very few.

The county contained 37 townships and several thousand qualified electors, and none of the affiants testified as to any prejudice except in a few of these townships and as to a limited number of people. It was not shown that the jury was drawn from that part of the county where the prejudice existed, and we must indulge the presumption that the court endeavored to secure jurors who were unaffected by passion and without prejudice to the defendant. As is held in Spurgeon v. State, 160 Ark. 112, 254 S. W. 376, called to our attention by the appellant. f,< There is a presumption as to the credibility of supporting affiants which must be overcome before the affidavits can be disregarded.” But in the conduct of a criminal case a wide latitude must necessarily be given the trial judge in passing upon questions of this kind, and it must always be assumed that his rulings are based upon a fair and impartial consideration of the questions before him, and his decision ought not to be disturbed unless it clearly appears that his action is arbitrary. He is not obliged to conform to the opinions of the affiants where it appears that those opinions are formed upon no substantial basis.

We have not overlooked the supplemental typewritten brief filed by the appellant or the suggestion that the original transcript fails to show the evidence of a number of persons at the hearing of tue petition, nor the argument that, as the presumption of credibility attaches to the affiant, it must be presumed that these persons were credible within the meaning of the statute, and that therefore the prayer of the petition ought to have been granted. The answer to this is that the statute requires the supporting affidavit to be made by two credible persons having the requirements mentioned, and, while it is silent as to the number in excess of two who may affirm the truth of the petition, the court is not required to examine an indefinite number. Here ten were examined at length, and it was the privilege of the defendant to present those of the affiants whom he believed to be most thoroughly acquainted with the sentiment of the minds of the inhabitants of the county for examination by the court, and the record should affirmatively show that these witnesses were presented and their examination refused. The mere suggestion that their examination was not incorporated in the transcript and impliedly that it was not made is not sufficient.

It is next urged that the court erred in refusing to excuse certain jurors for cause and excusing others. A juror, being examined as to his qualifications, in answer to questions stated, in effect, that, if the facts he had heard were true, it would tend to establish an opinion in his mind, and that at the time of the examination he had an opinion regarding the guilt or innocence of the defendant which it would take evidence to remove, if what he had heard was proved to be true. The question was, “You have an opinion,” and the answer, “Yes, if what I heard is true, I have an opinion. ’ ’ Answering further a question of the court, he said that he thought he could disregard the opinion and try the man as fairly and impartially as if he had not heard of the case. From the record of his examination, it is obvious that this opinion was not formed from any statement he had heard made by witnesses in the case, but from newspaper accounts and general discussion. The opinion was therefore based upon rumor. Counsel for appellant say that under the authority of McGough v. State, 113 Ark. 301, 167 S. W. 857, this was a disqualification and ground for the excusal of the juror for cause. Counsel misinterpret the rule stated in that case. There the rule stated was that the entertainment of preconceived opinions about the merits of a criminal case renders a juror prima facie incompetent, but, where it is shown that the opinion was founded on rumor not of a nature to influence the verdict of the juror, he is qualified. It may happen that the examination of the juror will disclose a fixed opinion, although based upon rumor only. Then, of course, the prospective juror cannot be disinterested or unbiased, and is therefore disqualified. But where he is able to say that he can disregard the opinion, and give to the evidence a fair consideration, and from that reach his conclusion as to the guilt or innocence of the defendant, he is not disqualified. We think this is the purport of the statement made by the juror, and that the court correctly held him qualified . It may he said, moreover, that no prejudice has been shown by the’ ruling of the court. The abstract does not show the disposition made of the juror, whether he was taken or peremptorily challenged by the defendant, or that he was forced to exhaust his challenges because of the court’s action.

Two of the jurors were excused for cause by the court because they announced that they were opposed to capital punishment, and another because it appeared that he was one of the signers of the supporting affidavits on defendant’s petition for change of venue, although the juror stated on his voir clife that he had no interest in the case and was unacquainted with the facts. We are committed to the rule that in the conduct of a trial the trial court is clothed with wide discretion, and necessarily so, for the proper and expeditious dispatch of its business, and that this court will not interfere with the action of the trial court where there is no violation of some mandatory provision of the law, or unless it is shown to have operated to the prejudice of the party complaining. Mabry v. State, 50 Ark. 492, 8 S. W. 823; Pate v. State, 152 Ark. 553, 239 S. W. 27; Sullivan v. State, 163 Ark. 11, 258 S. W. 643. As is said in Rose v. State, 178 Ark. 980, 13 S. W. (2d) 25: “Appellant was not entitled to have any particular jury to try his case. It does not appear that he challenged any of the jurors for cause, nor does he make it appear that any of them were prejudiced against him. Hence he was in no attitude to complain of the manner in which the jurors necessary to complete the full panel were selected, in the absence of any showing that the members of the special panel were prejudiced against him.” See also Bennett v. State, 161 Ark. 496, 257 S. W. 372.

The next assignment of error is that the court erred in admitting incompetent testimony and in refusing to admit other testimony which was competent. The testimony thought to be incompetent was a part of Mrs. Reynolds’ testimony relating the facts connected with the robbery of the store where the shooting took place, and to the effect that the defendant and one Clifton Harback were about the same size as the two men who robbed the store. The objections to this testimony is that it varies from the charge of the indictment, to-wit: that the defendant murdered the deceased by shooting him with a gun with malice aforethought and after deliberation and premeditation. There was no error committed by the court in this regard, for reasons we shall state in our discussion of instruction No. 1, given at the request of the State, and to which objection was made. The same objection was made to the testimony of the witness Luke Smith, who testified about the same matters as did Mrs. Reynolds. Objection was also made to the testimony of a Mrs. 'Beavers, in which she stated that she had seen the defendant with Allan Taylor in Fort Smith on the day of the robbery. It is argued that this testimony was irrelevant and prejudicial because Allan Taylor was a man of bad reputation in that county, known to be such by the people of the county, and that the testimony was introduced only for the purpose of creating prejudice against the defendant. This testimony might have had but slight bearing on the question of defendant’s guilt or innocence, but, when the remainder of the evidence is considered, it may have had some. It may be very true that Allan Taylor was a man of such reputation as would likely create prejudice against one who continually associated with him, but we cannot say that this was the purpose of the testimony, as we have been unable to find from the record any evidence relating to the reputation of Taylor.

Exception is taken to the action of the court in permitting Cons Wilson to testify regarding the actions of the defendant at the house of a Mrs. Brannon at about nine o’clock on the evening of the robbery, and to relate his conduct in her house later on; also in permitting Wilson Reynolds to detail the story of what happened relating to the robbery, and as to what was taken by the robbers from the store, and to state that in his judgment the defendant was about the same size as one of the robbers; also in permitting a Mrs. High to testify that she had an automobile taken from her house between five and eight o’clock on that evening, and in permitting the witness Patterson to testify about finding the car the next day and relating what marks he discovered on the body of the car when found. Numerous other objections were taken to the testimony of other witnesses substantially the same as those before specifically mentioned and to testimony regarding a pistol having been found back of Mrs. Brannon’s house. There was no error committed in the admission of this testimony as will appear when the evidence is hereafter summarized.

A. D. Maxie, the sheriff, testified as to his investigations during the night of the robbery and homicide, and was asked, “Did you receive any information as to the whereabouts of Percy Spear?” He answered: “We were out all night making investigations and the next day doing the same thing, and along late in the afternoon of the following day we got information that Percy Spear and two other boys were the ones that did it.” It is argued that this testimony was hearsay. If this is true, appellant cannot now complain. While the record shows that the statement was objected to, that objection was not pressed upon the attention of the court, and no ruling asked or given, nor was the court requested to exclude it from the jury or to admonish the jury that it was incompetent and to disregard it, for, after the objection was interposed, counsel for the State interrupted, admonishing the witness to “just tell what you did.” and' the witness then proceeded to relate the discovery by him of the whereabouts of Spear and of his subsequent arrest. The failure to request a ruling on the objection, and that the jury be admonished to disregard this testimony waived the objection. St. Louis & S. F. Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225; Whaley v. Vannatta, 77 Ark. 238, 91 S. W. 191; Roberts v. State, 96 Ark. 58, 131 S. W. 60.

The principal ground urged for the reversal of the case is for the alleged error of the court in giving instruction No. 1 at the request of the State. This instruction is as follows:

“The court instructs the jury that if you find from the evidence beyond a reasonable doubt that the defendant, Percy Spear, in Crawford County, Arkansas, and within three years from the finding of this indictment, entered into a conspiracy with any other person or persons to rob the Reynolds Drug Store in the city of Van Burén, Arkansas, and that the defendant with such other person or persons with common intent to rob same did rob said Reynolds Drug Store with a common purpose, and you further find from the testimony beyond a reasonable doubt that by reason of such common conduct on their part and while carrying out such common purpose and intent, an altercation arose on account of the carrying out of such common conduct in which Elmore Brown aaus shot and killed by either one of the persons so engaged, the defendant, Percy Spear, being present aiding and abbetting in the acts and conduct aforesaid of his companion or companions, then each would be guilty of an unlawful homicide in some degree, and if the fatal injury was inflicted upon Elmore Brown AAÚth malice aforethought but without premeditation or deliberation, then the defendant would be guilty of murder in the second degree, and if the fatal injury was inflicted on Elmore Brown with malice aforethought and after premeditation and deliberation by either one of the three, then the defendant, Percy Spear, would be guilty of murder in the first degree, and if the fatal injury was inflicted without malice and Avithout deliberation, but upon a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible, then the defendant would be guilty of manslaughter.”

It is insisted that, as the indictment did not charge mnrder committed in the perpetration of robbery under § 2343 of Crawford & Moses’ Digest, but charged in commou-law language the commission of murder by killing done with malice aforethought, deliberation and premeditation, the instruction was erroneous under the rule announced in Rayburn v. State, 69 Ark. 177, 63 S. W. 359, and in Shepherd v. State, 120 Ark. 160, 179 S. W. 168. In those cases the indictments, as in this case, charged the commission of murder at common-law, and the instructions held to be erroneous in those oases were as follows: “If you find from the evidence beyond a reasonable doubt that defendant, in perpetration of, or in the attempt to perpetrate, the robbery * * *, shot and killed (deceased), then defendant is guilty of murder in the first degree and you will so find.” The decision reached by the majority of the court in the Rayburn case appears to have been based upon the reasoning of the court in the case of Cannon v. State, 60 Ark. 564, 31 S, W, 150; 32 S. W. 128. In the Rayburn case it was held that the indictment charged one crime and the instruction stated another and different one, and that, as a defendant could not lawfully be convicted of a crime with which he was not charged, the instruction was erroneous. But that part of instruction No. 1 in the case at bar urged as error is not at all like the instruction in the Rayburn case. It simply told the jury that if the defendant entered into a conspiracy with other persons to commit a robbery and if, while in the prosecution of the common design, Brown was killed by either one of the persons, defendant being present aiding and abetting in the acts of his companion or companions, then each would be guilty of an unlawful homicide in the same degree. This is the law. The general rule is that all who join in a common design to commit an unlawful act, the natural and probable consequence of which involves the contingency of taking life, are responsible for a homicide committed by one of them while acting in pursuance or furtherance of the common design, although the homicide might not have been in contemplation of the parties when they conspired to commit the unlawful act, and although the actual perpetrator is not identified. This rule was recognized in Carr v. State, 43 Ark. 101. In that case reference is made with approval to the case of Stephens v. State, 42 Ohio St. 150, where the indictment appears to have been one which charged the offense of murder at common law. The trial court gave the following instruction: “That if Luke Jones, "William Jones and Laban Stephens entered into a conspiracy to commit a robbery on the .person of Anderson Lackey and that the evidence also shows that the attempt to perpetrate such robbery, under all the circumstances, would naturally, reasonably and probably involve the taking of the life of Lackey, and then from the evidence that in attempting to perpetrate such robbery that one of the co-conspirators of defendant unlawfully and maliciously assaulted and shot Anderson Lackey with the intent to take his life and that by such assault and shooting gave him a mortal wound, * * * then the defendant is equally guilty in law * * * as if done with his own hand, whether he was present when the assault and shooting were done or not. ’ ’ The Supreme Court, in approving this instruction, said: “If several are associated together to commit a robbery and one of them, while all were engaged in the common design, intentionally kills the person they are attempting to rob in furtherance of the common purpose, all are equally guilty, though the others had not previously consented to the killing, where such killing was done in the execution of the common purpose and was a natural and probable result of the attempt to rob. * * * Each is presumed to have intended to authorize the other to kill if in perpetrating the robbery it became a necessary means to its consummation.”

In Brista v. State, 126 Ark. 565, 191 S. W. 7, the appellant was indicted for murder in the first degree, the indictment in apt words charging him with that crime, committed by killing one Sweetie Statelier. The facts were that appellant, after having had a fight with a negro man, started out with some companions looking for him. They reached a house, the door of which was closed, and in which several negroes then were. It was thought that the negro they were seeking was one of these inside the house. They were told by those within that the negro they sought was not there. They demanded that the door be opened, and, no one answering, the companions of appellant began shooting through the door, one of the shots striking' a child and killing* it. The court held that under these facts the appellant, although he did not fire the fatal shot, was guilty of murder. In the late case of Boone v. State, 176 Ark. 1003, 5 S. W. (2d) 322, this rule was expressly approved.

.It will be observed that the jury are merely told that, if the killing- was done by one of a number while engaged in the perpetration of a felony, the defendant would be guilty of some degree of unlawful homicide, and not that he would be guilty of murder in the first degree; and the instruction further told the jury that the degree of homicide would depend upon whether it was committed with malice aforethought only (for then it would be murder in the second degree), or if with malice aforethought, deliberation and premeditation by either one of the three, it would be murder in the first degree, and that if the homicide was committed without malice, but upon a sudden heat of passion, etc., the crime would be manslaughter. We think this instruction was responsive to the indictment and not subject to the objection urged.

Instruction No. 2, said by appellant to be erroneous, first recites the indictment and, continuing, informs the jury that it is competent under the indictment, if the proof justifies it, to convict the defendant of murder in the first or second degree, or of manslaughter, or to acquit him outright. Instructions similar to this have been many times given and approved, and are not subject to the criticism made.

Objections were made to the instructions of the court given on its own motion. These dealt with the law of self-defense. We agree with the appellant that these instructions were improperly given, but it is an error of which he may not complain, as they were more favorable to him than he could ask.' The proof shows that the killing occurred while the slayer was engaged in the perpetration of a robbery. It is well settled that one who, while in the actual perpetration of a felony by violence, kills another person who is attempting to prevent the felony, cannot plead self-defense. 30 C. J. 49. This would bo true even though the person attempting to prevent the felony and who was killed began firing first. State v. Hart, 292 Mo. 74, 237 S. W. 473.

It is lastly and strenuously urged that the evidence failed to connect the appellant with the commission of the crime, and that the court should have directed a verdict of not guilty as requested by appellant. It follows from what we have already said that the evidence of the robbery and its attendant circumstances was competent. It disclosed that the two who entered the store were masked so that their features could not be identified, but they were about the same height and weight, and the proprietor of the drug store, who was the first to come in contact with the two robbers, stated that they were armed with automatic pistols, one of which was nickel-plated, and that the defendant Spear corresponded in size to them. Spear had been seen in Van Burén about two days before the robbery, and again he was seen at the house of a Mrs. Brannon at about seven o’clock on the evening of the robbery. He came there on that occasion in an automobile, a description of which witnesses could not give. Late in the afternoon of that day or early in the evening a Buick coupe belonging to Mrs. High was taken from in front of her house and was discovered in the town the next day with a mark on the fender similar to that which might be made by the impact of a bullet. Spear stayed at Mrs. Brannon’s only a short time after he arrived there about seven o’clock, but returned again about nine o’clock and not in an automobile. He was under the influence of intoxicating liquor and had some with him which he offered to some of the persons at Mrs. Brannon’s. He was observed to go to the back part of the house, from which he returned after a time and appeared to be restless. He had a quantity of small change, which he emptied out before him and offered to, and did, exchange $1.25 of this for a $1 bill. On being asked how he happened to have so much small change, he said that he had won it in a crap game over the river. At about this time some one came to Mrs. Brannon’s and told of the robbery, and in the course of the conversation Spear stated that he had driven to Mrs. Brannon’s in a Chevrolet car. An investigation was made that night by the officers, and Spear and one Clifton Harbach were suspected of implication in the commission of the crime, and the officers visited Mrs. Brannon’s house inquiring for Spear. The next morning they returned, and in the course of their investigation found an automatic .32 calibre revolver hidden near the back of the premises under a piece of tin. Two or three days later Spear was discovered in Little Bock living under an assumed name.

The appellant interposed the defense of an alibi, and there were a number of witnesses who testified in positive terms that before and at the time of the robbery, appellant was on the opposite side of the Arkansas Biver from the drugstore. It must be conceded that the evidence tending to connect Spear with the commission of the crime is wholly circumstantial, and some of the circumstances have but slight probative value, but, when considered together with the inferences reasonably deducible therefrom, we think the evidence tending to establish his guilt is of a substantial nature. The probative value of circumstantial evidence is discussed in the case of Scott v. State, 180 Ark. 408, 21 S. W. (2d) 186, where the declaration is made that “there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and if the jury believes from the circumstances introduced in evidence beyond a reasonable doubt that the defendant is guilty, it is the duty of the jury to find him guilty, just as it would be if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. ’ ’

The jury had before it the witnesses who testified as to the alibi, and it has found that they were unworthy of belief. The jury is the exclusive judge of that question and its verdict is binding on us. From the evidence in the whole case the jury was satisfied that the defendant was guilty, and we cannot say that it was mistaken. Learned counsel for appellant has ably argued the errors assigned, but we are of the opinion that no prejudicial error was committed by the trial court, and that the testimony was reasonably sufficient to sustain the verdict of the jury.

The judgment is affirmed.


author: Hart, C. J.

text:
    Davis v. State.
    Opinion delivered January 11, 1932.

      Arthur L. Jones, for appellant.

      Ilal L. Nonvood, Attorney General, and Pat Me■* liaffy, Assistant, for appellee.
   Hart, C. J.

The only issue raised by this appeal is whether or not appellant is barred by limitation of his right to appeal from a judgment and. sentence for disturbing the peace, rendered in the Little Rock Municipal •Court on the 11th day of June, 1931.

The record shows that appellant, T. H. Davis, was tried in the Little Rock Municipal Court for disturbing the peace and was convicted and sentenced to serve six months in the county jail and pay a fine of $300. After the judgment of conviction and sentence was passed upon him, it was ordered by the municipal court that the execution of the sentence be suspended. On the 12th day of September, 1931, the municipal court set aside its order suspending execution of sentence, and on the same day appellant prayed an appeal to the circuit court.

The act creating the municipal court of Little Rock prescribed that all appeals from it must be taken and the transcript lodged in the office of the circuit clerk within thirty days after judgment had been rendered and not thereafter. Acts of 1915, No. 87 § 8, page 346.

Inasmuch as more than thirty days elapsed from the date of the judgment and sentence of conviction before an appeal was prayed, the question is presented whether or not the execution of the sentence could be suspended by the municipal court after it had duly rendered a judgment of conviction and had sentenced the defendant. Where there has been a judgment of conviction, we have recognized the power of courts of record to suspend the sentence for a reasonable time, and that, in the absence of statutory requirement, this need not be at the same term of court at which the verdict was found. The reason is that such an order is not equivalent to a final judgment but is a mere suspension of active proceedings in the case for a limited time. Thurman v. State, 54 Ark. 120, 15 S. W. 84; and Davis v. State, 169 Ark. 932, 277 S. W. 5.

In the latter case, however, it was expressly decided that, in the absence of a statute conferring the power, a judgment and sentence of conviction is a final judgment, and exhausts the power of the court rendering it except to set aside the judgment and sentence at the term at which it was rendered.

Here the record shows that the court made no attempt to set aside its judgment and sentence of conviction. It merely attempted to suspend the execution of the sentence. The court exhausted its power in rendering the judgment of conviction and in passing sentence. It then undertook to exercise an entirely different power for which it had no warrant at the common law or under our statute.

In the case of Davis v. State, supra, the court recognized that the Legislature of 1923 passed an act authorizing certain judges to suspend sentence upon certain conditions and that the act was valid. Acts of 1923, No. 96, page 41.

The Legislature of 1929 gave municipal courts the same power to postpone or suspend sentence in misdemeanor cases as is conferred upon the circuit judges of this State. Acts of 19'29, No. 14, page 20.

As we have already seen, the court in the present case did not attempt to suspend the sentence but undertook to suspend the execution of the sentence after it had been duly passed. This it had no power to do, and the case is controlled by that of Ketchum v. Van Sickle, 171 Ark. 784, 286 S. W. 948, where it was held that where the circuit court, without authority, suspended the execution of a sentence for one year in the penitentiary, to which suspension the defendant consented, the court had authority, more than a year later, to direct that the suspended sentence be enforced.

In the present case, if the defendant wished to avail himself of his right of appeal, he should have done so within the time prescribed by statute, and the action of the court in attempting to suspend the execution of his sentence could not have denied him that right. We therefore hold that the sentence and the- commitment of the defendant were legal, and, because he did not appeal to the circuit court within the time prescribed by law, the judgment of that court be affirmed.


author: Hart, C. J.,

text:
    Bank of Hoxie v. Graham.
    Opinion delivered January 11, 1932.

      G. M. Gibson, for appellant.

      W. P. Smith and O. C. Blackford, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset, it may be stated that it is the settled law of this State- that creditors cannot attack as fraudulent the conveyance of a homestead as made without a consideration and in bad faith as to them. The reason is that, under our Constitution and statutes, the homestead is not subject to the lien of a judgment or to a sale under execution except in certain specified instances. It is conceded that appellant, Bank of Hoxie, does not fall within the excepted class of creditors. Bogan v. Cleveland, 52 Ark. 101, 12 S. W. 159, 20 Am. St. Rep. 158; Davis v. Day, 56 Ark. 146, 19 S. W. 502; Fluke v. Sharum, 118 Ark. 229, 176 S. W. 684; Dean v. Cole, 141 Ark. 177, 216 S. W. 308; and Starr v. City National Bank, 159 Ark. 409, 252 S. W. 356.

This is conceded to be the settled law in this State, but it is earnestly insisted that there has been no selecting or setting apart of the 80 acres of land as a homestead, and that the value of the whole tract amounts to much more than $2,500. Under our Constitution, the homestead outside any city, town, or village, owned and occupied as a residence, shall consist of not exceeding 160 acres of land with the improvements thereon to be selected by the owner; provided, the same shall not exceed in value the sum of $2,500, and in no event shall the homestead be reduced to less than 80 acres, without regard to value. Constitution,. art. 9, § 4. The claim that the 80 acres of land was not selected as a homestead is not tenable. It contains the home of the family and was occupied by them as a residence from the time J. M. Graham purchased it in 1914 until his death in 1928, and since that time it has been occupied by the widow and those of the children who live with her. From the beginning, constitutional and statutory provisions relating to homestead exemptions have been liberally construed in this State in the interest of the family home.

In the early case of Tumlinson v. Swinney, 22 Ark. 400, 76 Am. Dec. 432, the term “homestead” has been designated as the place of a house or home, that part of a man’s landed property which lies about and contiguous to his dwelling house with the improvements and appurtenances. The same definition of a homestead has been recognized and applied by the court in interpreting all our Constitutions on this subject. Williams v. Dorris, 31 Ark. 468; McCloy v. Arnett, 47 Ark. 453, 2 S. W. 71; McCrosky v. Walker, 55 Ark. 303, 18 S. W. 169; Flowers v. United States Fidelity & Guaranty Company, 89 Ark. 506, 117 S. W. 547; and Pulse v. McGregor, 179 Ark. 712, 17 S. W. (2d) 888.

In 13 R. C. L., § 53, p. 588, it is said that in a majority of the 'States occupancy of a place by a family is presumptive evidence of its appropriation as a homestead, and is notice to all the world of that fact, it being furthermore the rule that the purchase of a home with the intention to occupy it as a homestead, followed by actual occupancy within a reasonable time, impresses it, ab initio, with the homestead character and inviolability. Among the cases cited is Tumlinson v. Swinney, 22 Ark. 400.

In that case the court quoted with approval from Cook v. McChristian, 4 Cal. 26, construing the homestead act of California, the following:

“The statute does not require any record of the selection of the homestead, and points out no mode in which the intention to dedicate property as a homestead shall be made known. In this particular the statute is lame, and it will be observed, from reading the whole act, that the Legislature by accident has omitted this necessary provision. In the absence of any statute regulating the subject, the filing of notice in the recorder’s office of the county could have no legal verity, and would not be conclusive on purchasers or creditors. The homestead is the dwelling place of the family, where they permanently reside. By the common law such residence would raise the presumption that the premises so held were the homestead, and every one would be bound to take notice of the character of the occupant’s claim, as occupation is prima facie evidence of title. There is no dispute in this case that the plaintiffs knew of the defendant’s possession. Such possession, taken in connection with other circumstances in the case, was properly submitted to the jury, from which to find the fact of the dedication of the premises as a homestead.”

In the present case, the evidence shows that the land upon which the dwelling house is situated, and the contiguous land, not exceeding eighty acres, was in a reasonable, compact and convenient form and constituted Graham’s homestead. J. M. Graham resided on the land from the time he purchased it in 1914 until he conveyed it to his wife in December, 1928. No other selection of his homestead was necessary. Delisha v. Minneapolis, St. Paul, Rochester & Debuque Electric Traction Company, 110 Minn. 518, 126 N. W. 276, 27 L. R. A. (N. S.) 963.

It is next insisted that the court erred in not setting aside the deed as to the remaining sixteen acres and ordering it sold for the payment of the debts to appellant bank. We do not think the court erred in so holding. There was a valid mortgage on the whole homestead with nearly $1,000 balance due on it. The great preponderance of the evidence shows that the remaining 16 acres of land was not worth more than $250. Hence no useful purpose could have been served in setting aside the conveyance as to the 16 acres and ordering them sold, provided appellees had the right to have them first sold in satisfaction of the mortgage indebtedness to the exclusion of the homestead.

In the case of Grimes v. Luster, 73 Ark. 266, 84 S. W. 223, Am. St. Rep. 34, the court in discussing a similar and kindred question of law said:

‘In Littell v. Jones, 56 Ark. 130, [19 S. W. 497] an action was brought by next friend of minors to select and set apart to them a homestead in a tract of 240 acres, and to require a creditor holding a mortgage upon the whole to be limited to the part not selected as homestead. The selection was held proper to be made, and the mortgage, which was subject to their rights, enforced only against the surplus over the homestead. The principal of selecting one of two homesteads is not different from segregating a homestead out of an area larger than the homestead limit. The rule allowing a debtor to select a homestead has long been in force in this State.”

As we have already seen, the whole theory of onr homestead laws is based upon the idea of giving a family home to debtors, which is exempt from the liens of judgments and executions levied upon them except in certain specified cases. The policy of the statute is to preserve the home to the family, and we think the interpretation put upon tie case of Littell v. Jones, 56 Ark. 139, 19 S. W. 197, in the later case of Grimes v. Luster, supra, is applicable to this case, and should govern.

Therefore the decree will be affirmed.


author: Kirby, J.,

text:
    Miller v. Johnson.
    Opinion delivered December 21, 1931.

      Joseph Morrison, for appellant.

      John W. Moncrief and Sami T., and Donald Poe, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists for reversal that the evidence was not legally sufficient to support the verdict; that the court erred in not granting him a new trial because of newly-discovered evidence; and also in allowing appellee to take a nonsuit as against the alleged operator of the motordrome.

The evidence is undisputed that the appellant, the holder of the exclusive concession for furnishing amusements to the fair, permitted Puryear, for 25 per cent, of the gross receipts, to bring his amusement contrivance, the motordrome owned and operated by him, into the grounds with the other features and attractions of appellant’s shows, devices and contrivances for affording amusement to the public, all advertised as the Ealph E. Miller Shows, and the operators in the grounds, as well as the performers, wore uniforms with the words Ealph E. Miller Shows on the back. That the tickets for admission to this device were furnished by the Ealph E. Miller Shows and had the name printed thereon.

That appellee, a patron of the show, stepped on the platform and was standing thereon watching the performance within the motordrome when the plank broke, because of the defect or knot near the end thereof, allowing her to fall to the pavement 10 or 12 feet below, a young man falling through striking her, resulting in painful and severe injuries. There was no opportunity afforded appellee to discover the defective condition of the plank, which was painted on the top side and put into the platform upon which the patrons were to stand in order to observe the performance inside the drome. The defective condition could easily have been discovered by the employees in charge of the erection of the platform, the plank not being- painted on the under side, and no care whatever was shown to have been exercised by appellant, whose duty it was to use ordinary care to see that the device or contrivance, which he had employed from the owner, was reasonably safe for the patrons invited by him to-use it.

It is insisted by appellant that he had no proprietary interest in the motordrome, and had nothing to do with the manner of its operation, and that therefore he was under no duty to those who patronized the attraction, and that Puryear, the owner of the contrivance, was an independent contractor for whose negligence he should not be held responsible. He allowed the owner of this contrivance, however, to erect and operate it for 25 per cent, of the gross receipts among the other contrivances, attractions and amusement devices upon the grounds for which, he held the exclusive concession for furnishing amusements to the people visiting the fair, inviting the patrons to make use of this device the same as the others exhibited and of which he was the owner, and he was bound to the exercise of ordinary care to see that the devices operated were reasonably safe for the purpose for which the public was invited to use them. Hartman v. Tenn. State Fair Assn, 134 Tenn. 149, 183 S. W. 733, Ann. Cas. 1917D, 931.

In 22 A. L. R., page 620; the annotation states: “The weight of authority is to the effect that the proprietor or manager of a place of amusement owes a duty to the public who are invited there to exercise reasonable care to see that the premises are safe and are kept in a safe condition, and that, if he does not discharge the duty, he may be held liable for injury to a patron, although the exhibition, or performance, or act which resulted in the injury is that of a concessioner, independent contractor, or other third person.”

The injury occurred in Oklahoma, and the actionable quality of the acts causing it is to be determined by reference to the lex loci, rather than the lex fori. 5 R. C. L. 1038, § 129; Tulsa Entertainment Co. v. Greenlees, 85 Okla. 13, 205 Pac. 179, 22 A. L. R. 602.

The injury here was not caused by the personal negligence of the owner or independent contractor, but resulted from the defective condition of the amusement apparatus. Appellant, having the exclusive right to furnish amusements on the grounds and the selection of the kinds of attractions and their operators, cannot excuse himself from liability for failure to exercise ordinary care to have and keep the equipment or apparatus operated for amusement purposes reasonably safe for the patrons and visitors by contending that the device belonged to an independent contractor who alone was responsible for negligence in supplying and operating the device or contrivance.

Appellant made no application for a continuance upon discovery that Puryear, the owner of the motordrome wlio had been sued along with Mm, was not present at the trial, and be necessarily knew at the time of going to trial wbat the testimony, now claimed to be newly discovered, would be, since be testified of tbe facts bimself relating to said witness being an independent contractor. Tbis testimony would have been only cumulative in any event, and tbe court did not abuse its discretion in denying tbe motion for a -new trial on account of alleged newly-discovered evidence.

In our view of tbe law, appellee could recover of appellant herein without regard to any rights and liabilities existing between appellant and bis codefendant, and, since be asked no relief by cross complaint against bis co-defendant, tbe plaintiff, appellee could dismiss bis action against Puryear, as was done herein, and the court did not err in allowing it to be done.

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