author: Wood, J.

text:
    Fair v. Beal-Burrow Dry Goods Company.
    Opinion dlivered April 25, 1921.
    1. COMPROMISE AND SETTLEMENT — CONSIDERATION.—Tile compromise of a disputed claim furnishes sufficient consideration to uphold the settlement, even though the asserted claim is without merit.
    2. Compromise and settlement — executory agreement to make.— An unexecuted agreement to make a settlement in the future, depending upon certain contingencies which never occurred, was without consideration, and did not constitute a completed and enforceable contract for a settlement., .

      3. Attachment — loss op goods in sheriff’s hands. — Plaintiff in attachment was not liable for goods lost by fire after the sheriff had taken possession, unless plaintiff directly caused the loss, or the loss was caused by the sheriff’s negligence to which the plaintiff directly contributed.
    4. Attachment — loss of goods in custody of sheriff. — In an action 1 y defendants to recover for attached goods lost Uy fire while in possession of the sheriff under writ of attachment, the burden was on the defendants to prove that the destruction of the goods was through the negligence of the plaintiff.
    5. Attachment — loss of goods by plaintiff’s negligence — evidence. — In attachment where defendants sought to recover from plaintiff for goods destroyed by fire while in the sheriff’s possession under the writ, evidence held insufficient to prove that plaintiff’s attorney undertook to direct the sheriff as to what disposition he should make of the goods for their safe-keeping and preservation during the sheriff’s possession under the attachment.
    6. Attachment — separate cause of action against one of several defendants. — In a joint cause of action in equity against several defendants, it was error to sustain a separate attachment against one of the defendants on an affidavit introducing a new and independent cause of action against each defendant alone, with which the other defendants were not concerned.
    7. Trial — error as to forum — transfer.—Where, in a suit in equity against several defendants, a separate affidavit for attachment based upon a cause of action at law against one only of the defendants was interposed, the court should have treated such defendant’s demurrer to the court’s jurisdiction as a motion to transfer the separate cause of action to the law court, and transferred it accordingly.
    8. Appeal and error — harmless error. — Where a stock of goods was attached in an action at law, and the cause was subsequently transferred to equity, though the defendants admitted that they had violated the Bulk Sales Law and therefore were subject to be held liable as receivers, it was not material error to sustain the attachment and direct the property to be sold.
    Appeal from Montgomery Chancery Court; J. P. Henderson, Chancellor;
    reversed in part.

      Earl Witt and Gibson Witt, for appellants.
    1. The court erred in holding that there was no settlement or compromise of the matters in controversy between appellants and appellee.

      2. The chancellor erred in not sustaining the claim for damages by appellants for loss of the property at-, tached, and appellee should be held liable for the loss by reason of its compromise and settlement.
    The chancellor was wrong in holding that there was no settlement but merely a proposition. Compromise of a disputed claim is a sufficient consideration for a settlement. 21 Ark. 69; 48 Id. 172; 68 Id. 82; 74 Id. 270; 99 Id. 588; 114 Id. 559; 126 Id. 327. There was sufficient consideration for a compromise and settlement, and the chancellor’s findings as to the effect of the agreement is clearly against the preponderance of the evidence.
    Negligence in care of the attached property was shown for which appellee was liable. Where a sheriff acts under the direction or advice of plaintiff or its attorney, and there is negligence and loss, the plaintiff is liable. 4 Cyc. 580; 35 Id. 1615; 4 Id. 675; 74 Ark. 413; 47 Id. 373; 96 Id. 444.
    A person can not recover from a sheriff for negligence, if he has contributed to the result by his own negligence or that of his attorney employed to supervise the procedure. 55 Cyc. 1637; Tb. 1621. The plaintiff in execution has the right to control the execution by himself or attorney and the officer must follow his instructions. The authority of plaintiff must not be exercised to cause the sheriff to omit a statutory duty; if he does he can not take advantage of it. 74 Ark. 412; 47 Id. {Jett v. Shinn); 96 Ark. 446.
    The findings of a chancellor are not conclusive on appeal, but only persuasive; and where against the clear preponderance of the testimony they will be reversed. Here they certainly are. 50 Ark. 358; 91 Id. 549; 101 Id. 510; 104 Id. 9; 92 Id. 59; 104 Id. 488.
    3. The demurrer to the complaint should have been sustained. There is nothing stated to give the chancery court jurisdiction. There is no proof to sustain the attachment against Summit. The chancellor erred in sustaining the attachment on the ground of fraud. The Bulk Sales Law was not intended to provide a separate and additional ground for attachment at law. The remedy is the appointment of a receiver. If the property is sold in bulk without an invoice and notice to creditors, it is void, and each purchaser is a trustee for creditors to the extent of his purchase. 123 Ark. 285; 127 Id. 296; 135 Id. 420; lb. 252-7; 137 Ark. 37.
    An attachment remedy is purely statutory, and attachment laws are strictly construed.
    4. Stand. Ene. Proe. 323; 1 Ark. 386; 3 Id. 502; 28 Id. 469; 18 Id. 236. A fraudulent motive must prevail in attachment. 31 Ark. 31; 41 Id. 316. Insolvency alone is not sufficient, hut some ground of attachment must be alleged and proved. 4 Oye. 414; 42 N. W. 812. Fraud in law or constructive fraud is not sufficient to constitute a fraudulent transfer; there must be actual fraud or fraudulent intent. 4 Cyc. 439. Injury also must be shown to the particular creditor. 63 Ill. 48; 32 Tex. 225; 31 Ill. 17. The creditor who first secures an attachment obtains a prior lien. Under the Bulk Sales Law, the purchaser becomes liable to all creditors fro rata. On the whole case great injustice has been done appellants, and the chancellor erred in sustaining the attachment and in failing to hold appellee liable.

      Reid, Gray, Bu-rrow & McDonnell, for appellee.
    1. There was no agreement or compromise; but, if there was, there is no proof that the alleged breach contributed to the loss of the goods. The burden was on defendants.
    2. There was no negligence in caring for the attached property, and in the absence thereof there can be no recovery.
    3. The attachment was properly sustained for violation of the Bulk Sales Law, the sale being fraudulent, unlawful and void. 54 Ark. 6; 135 Id. 420; 52 Id. 30; 135 Id. 252; 120 Id. 236; 123 Id. 285.
    This case was tried in chancery and on equitable principles, and the court properly enforced the Bulk Sales Law. The chancellor found there was no negligence, and his findings are clearly sustained.
   Wood, J.

The appellee, a mercantile firm in the city of Little Rock, filed an affidavit for a general attachment in the Montgomery Circuit Court against the appellants, alleging that Summit and Fair were partners and that the firm of Summit & Fair became indebted to the ap-pellee for merchandise; that Summit sold his interest in the firm to Dillard; that Dillard & Fair sold their entire stock of goods and merchandise to Byrd Carter and James Tucker; that Carter & Tucker sold their entire stock of goods and merchandise to Ira Warren. The grounds alleged for the attachment were that the various sales made by the above parties were in violation of the “Bulk Sales Law,” act 88 of the Acts of 1913; that the last purchaser, Ira Warren, was disposing of his property with an intent to cheat, hinder and delay his creditors. An order of general attachment was issued and levied, January 20, 1919, on a stock of merchandise which was then in the possession of Warren. Various other creditors of the appellants intervened and set up claims against the appellants. The appellants demurred to the complaint on the ground that the court had no jurisdiction, which demurrer was overruled.

By consent of parties, the cause was transferred to equity. The appellants answered, admitting the transfers of the stock of merchandise as alleged in the complaint, but averred that such transfers were all made in good faith as to creditors and without any intent to cheat, hinder or delay them; that it was the understanding and agreement that the vendee in each sale was to assume the indebtedness of the vendor;.that the appellee had ratified these sales and was estopped to complain of any failure to comply with the Bulk Sales Law; that the attachment was wrongfully issued and levied upon the property; that the building which contained the attached stock of mrehandise was locked and the same was burned, and the stock of merchandise under attachment was totally destroyed, through, the negligence of the sheriff having the same in charge, who was acting under the direction of the appellee’s attorney; that the value of the merchandise was $3,694; that, before the fire and after the cause was transferred to equity, an agreement was reached between the appellants and the appellee whereby a compromise and settlement was had of the controversy, which was binding upon the appellee, but which it failed to carry out, which contributed to the loss sustained by the appellants in the destruction of the property by fire. The appellants made their answer a cross action against the appellee for damages in the loss of the stock of goods.

On the 4th of November, 1919, the appellee filed another and separate affidavit for general attachment against appellant Summit, alleging that, in addition to what they had already alleged in the former general affidavit, Summit was indebted to the appellee in the sum of $578.50, and that he was a nonresident, and had departed from the State with the intent to defraud his creditors; that he had removed and was about to remove a material part of his property out of the State and had disposed of his property with the fraudulent intent to cheat, hinder and delay his creditors. This affidavit was filed as a part of the original action, and an attachment was issued and levied on some mules, which were released from the attachment on a bond filed in the chancery court by the appellant Summit.

On January 20,1920, Summit demurred to the affidavit or complaint for attachment against him on the ground that “it was upon a different and separate demand ; that the plaintiff had • a complete and adequate remedy at law, and that the court was without jurisdiction. ’ ’ The demurrer was overruled.

The appellee filed a reply to the answer of the appellants, denying the allegations thereof. The trial court found that the sales were in violation of the Bulk Sales Law, and for that reason sustained the attachment ; that it was not shown by a preponderance of the evidence that the loss of the stock of goods by fire was caused through the negligence of the appellee; that there was no settlement or compromise of the dispute between the appellants and the appellee; that the separate attachment against W. F. Summit should be sustained. The court thereupon entered a personal decree against the appellants in certain amounts, the correctness of which amounts is not in controversy here., From that decree is this appeal.

1. The appellants contend first that the court erred in holding that there was no settlement or compromise of the matters in controversy between the appellants and the appellee. On this issue the testimony of several witnesses on behalf of the appellants tended to prove the following: The appellants after this action was begun had a contract with one Mr. Eaves, who was one of the credit men and agents of the appellee, to the effect that appellants were to give their notes with security for enough to settle the claims of all creditors; that the appellants had the goods sold to Pendergrass and Lackey, who had agreed to pay cash for the goods at the invoice price ($3,289). Eaves was to come within two weeks after the agreement was entered into to turn over the goods to appellants. Eaves set three or four dates to be at “Simms,” the place where the goods were located, but he never came, and appellants were, therefore, not in a position to deliver the goods. The contract was in writing. It was left in possession of the attorney of the appellants and was lost. The reason the contract was not carried out was because Eaves did not come as promised.

The testimony of Eaves on behalf of the appellee was to the effect that, if the appellants would make a note or notes with eight per cent, interest satisfactory to ap-pellee, it would withdraw the suit. The witness promised the appellants that he would be back in two weeks and tried several times to get there, but could not get a conveyance on account of the bad roads. There was no written contract. Witness put down on a piece of paper what appellants must do. Nothing was signed.

“The compromise of a disputed claim furnishes sufficient consideration to uphold the terms of a settlement or compromise, even though the claim he without merit. ’ ’ Gardner v. Ward, 99 Ark. 588; Batchfield v. Laconia Levee Dist., 74 Ark. 270; Lee v. Swilling, 68 Ark. 82.

But the testimony above set forth does not show either a disputed claim or a settlement. The appellants concede that they owed the amount claimed by the ap-pellee. There was no compromise agreement by which the appellants were to pay and the appellee was to accept less than the appellants owed. The most that can be said of the testimony is that it shows that the appellants and the appellee entered into an agreement by which a settlement was to be made in the future in a certain manner depending upon certain contingencies, none of which occurred. A memorandum of the tentative arrangement for a settlement was made, but not signed by the parties. This tentative arrangement was not based upon any consideration and did not constitute a completed and enforceable contract for a settlement.

The testimony tended to prove that the reason the contract for the settlement was not completed and the settlement made in accordance with the contemplated plan was because appellee’s agent was unable, on account of bad roads, to return to Simms at the time promised. But this was wholly immaterial, because there was no liability against the appellee for failure to comply with the terms of the tentative negotiations for a settlement, which did not in law constitute a complete and enforceable contract.

Even if the above testimony were sufficient to establish an enforceable contract for a settlement and that the appellee breached the same, there is no testimony tending to prove that such breach was the proximate cause of any damage to the appellants. Whatever may have been the damage to appellants by reason of the destruction of the stock of goods by fire, there is no testimony tending to prove that the failure of the appellee-’s agent to return to Simms as promised in any manner caused or contributed directly to produce the fire which destroyed the goods. These goods at the time of their destruction were in custodia legis. Being in the hands of the sheriff, the appellee was not liable -for their destruction by fire unless it directly caused the same, or unless the same was caused by the negligence of the sheriff to which the appellee directly contributed.'

2. This brings us to a consideration of whether or not there was any negligence on the part of the sheriff in failing to care for the attached property, causing the loss of same, for which the appellee is responsible. The sheriff testified that he took possession of the store under the attachment, locked the same, and asked Judge I. L. Awtrey, the attorney of the appellee, whether he wished the witness to bring the goods to Mount Ida, and the attorney replied, “Just fasten them up in the house and leave them there.” Witness told the attorney for the appellee that if they were left over there witness would not be responsible for them; that they would be left there at the appellee’s risk. The goods were burned. Witness tried to get insurance, but failed, and advised the attorney of appelllee about it, and the attorney said he would get insurance, and later said that he had done so.

I. L. Awtrey, the attorney for appellee, testified that the sheriff asked him if it would be necessary to bring the goods to Mount Ida, and witness told the sheriff that he did not think it would be necessary to move the goods before court convened; that it was only a few days before court would convene, and that the court would then direct what to do with the goods. The sheriff never asked witness anything about moving the goods after court convened. Witness never told the sheriff that he had insurance on the goods. Witness also stated that he had no recollection that the sheriff said to witness that he would not be responsible for the goods if they were left at Simms, and that they would be left there at the risk of the appellee. On the contrary, witness stated that if the sheriff had made such a statement to witness, witness would have told him that the law made it his duty to hold attached property subject to the orders of the court.

The burden was upon the appellants to show that the destruction of the goods by fire was through the negligence of the appellee. The chancellor found that the above testimony was not sufficient to show by a preponderance of the evidence that the appellee took charge of the goods, or that its attorney directed the sheriff to leave the goods in the storehouse at Simms at the risk of the appellee. The finding of the chancellor is correct. A preponderance of the evidence does not prove that the appellee’s attorney undertook to direct the sheriff as to what disposition he should make of the goods in order for their safe-keeping and preservation after the sheriff had taken possession of the same under the attachment.

3. Did the court err in sustaining the separate attachment against W. F. Summit? The original action was brought against Summit and the other appellants at law by filing an affidavit or complaint for attachment, in which the sole ground alleged for the attachment was the violation of the Bulk Sales Law. Summit and the other appellants demurred to the complaint on the ground that, according to the allegations of the complaint under the Bulk Sales Act, the appellants were receivers, and that the chancery court had no jurisdiction. The court overruled the demurrer. The appellants did not stand on their demurrer, but on the contrary moved the court to transfer the cause to the chancery court, which, with the consent of the appellee, was done.

After the cause was transferred to the chancery court, Summit and the other appellants proceeded to answer the complaint. Later the appellee filed an affidavit for attachment against the appellant Summit, alleging that same was in addition to what had already been alleged by it in the original complaint. The appellant Summit demurred to this affidavit on the ground, among others, that this affidavit was a misjoinder of the cause of action stated therein with the cause of action stated in the original complaint; that the appellee’s remedy on this affidavit was complete at law and that the chancery court was without jurisdiction. The court overruled this demurrer.

The court erred in taking jurisdiction of the separate cause of action against Summit. The separate affidavit for attachment against him introduced a new and independent cause of action against Summit alone. It was grounded upon a different amount from that set forth in the original complaint or affidavit, which was a joint action against all the appellants. The separate affidavit against Summit was for his individual debt. The affidavit was not germane to the original coinplaint or affidavit and could not properly be considered as an addition thereto or amendment thereof. It stated a cause of action at law against Summit, and the remedy at law was complete. Summit made seasonable objection to the jurisdiction of the court, and did not waive his right to have a law court determine any issues arising on this separate attachment. The chancery court, therefore, erred in assuming jurisdiction and sustaining the separate attachment against Summit. The trial court should have treated Summit’s demurrer as a motion to transfer, and should have transferred the cause of action against Summit as set up in this separate affidavit to the law court.

4. Appellants contend, in the last place, that the court erred in holding that the violation of the Bulk Sales Law by them was a ground of attachment. As we view this record, it is unnecessary to decide, and we do not decide, whether a violation of the Bulk Sales Law is a ground for attachment. The cause, though begun at law, was at the instance of appellants transferred to equity. The appellants admitted that they owed the debts, and that each had assumed to pay the same, and that in the sale of the goods impounded by the attach-, ment, they had violated the Bulk Sales Law, act 88, supra. In their answer and cross-action, appellants asked that a receiver be appointed as contemplated by the Bulk Sales Law. The property was already in the custody of the law when the appellants had the cause transferred to the chancery court.

Now, since the stock of goods was destroyed by fire without any negligence on the part of the appellee which would render it liable in damages to the appellants, it is wholly immaterial whether the stock of goods was impounded to be subjected to the appellee’s debt through the ancillary process of attachment or through a receivership appointed by the chancery court. The appellants, as the court found, did not prove by a preponderance of the evidence that they had been damaged by the appellee in the impounding of the property through the attachment. Therefore, even if it were conceded that the court erred in sustaining the attachment against the appellants because of a violation of the Bulk Sales Law, this error did not result to their prejudice.

The court erred in assuming jurisdiction of and in sustaining the separate attachment as to appellant Summit. The decree as to him on the cause of action set up in the separate affidavit for attachment against him is reversed, and that action will be remanded with directions to transfer the same to the law court.' The decree in all other respects is correct and it is affirmed.


source: Caselaw Access Project

author: Habt, J.

license: Public Domain

text:
    Haskins v. State.
    Opinion delivered April 25, 1921.
    1. CRIMINAL law — corroboration op accomplice. — The corroboration of an accomplice in a criminal prosecution is not sufficient if it merely shows that the offense has been committed and the circumstances of it, hut it needs only to he of a character and quality which tends to prove the defendant’s guilt by connecting him with the crime.
    2. Criminal law — corroboration op accomplice. — An accomplice’s testimony tending to implicate defendant in the commission of a robbery committed at night was sufficiently corroborated by proof that defendant and the witness were seen together, prior to the commission of the crime, and by the fact that defendant’s description of the build and dress of the robber corresponded with the testimony of the accomplice.

      3. Kobbery — indictment—description op money. — An indictment alleging that defendant robbed the prosecuting witness of “$98.28, good and lawful money of the government of the United States," was supported by evidence that he was robbed of $95 in greenbacks and $3.28 in silver.
    4. Criminal law — alibi—instruction.—An instruction as to the defense of alibi should tell the jury that if, upon a full consideration of the evidence adduced to prove an alibi in connection with the other evidence, they entertain a reasonable doubt of the defendant’s guilt, they should acquit him.
    5. Criminal law — alibi—instruction.—An instruction in a prosecution for robbery that, to render an alibi effective as a defense, it must cover the period of time during which the offense is shown to have been committed, so as to preclude defendant’s presence at the time and place of its commission, held correct.
    6. Criminal law — alibi—instruction.—An instruction in a prosecution for robbery that, if the evidence in support of the alibi did not explain the whereabouts of the defendant for the -period of time covered in the commission of the crime, the jury should not consider any testimony in support of the alibi, was erroneous, as proof tending to establish an alibi, though not complete, may, with other facts in the case, raise doubt enough to cause an acquittal.
    Appeal from Faulkner Circuit Court,- George W. Clark, Judge;
    reversed.
    STATEMENT OE PACTS.
    Martin Haskins was indicted, tried and convicted before a jury of the crime of robbery.
    Garland Dickens, the victim of the robbery, was a witness for the State. According to his testimony, he was in the city of Conway, in Faulkner County, Arkansas, on the night of the 14th day of October, 1919. Mitchell Kirkpatrick met him and invited him to go down the railroad track a little ways to get some whiskey. They went down the railroad track about three blocks, and just as they crossed a little bridge on the west side of the railroad a man stepped out from behind a big tree and drew a pistol on them, compelling them to put up their hands. Glenn Stephens was walking behind Dickens and Kirkpatrick. The robber took $98.28 from Garland Dickens. Ninety-five dollars of this was in greenbacks and $3.28 was in silver. The'robber then went through the pockets of Kirkpatrick and took what money he had from him. He only went through one of the pockets of Glenn Stephens. The robber weighed about 120 pounds and appeared to be about the build and size of the defendant. He had on tight-legged pants and a long bill cap. The witness did not remember whether or not he had on a sweater. The robbery occurred about 8 or 9 o ’clock at night, and it was very dark.
    Mitchell Kirkpatrick corroborated the testimony of Dickens about the robbery, but said that he did not notice the size or appearance of the man who robbed them.
    Glenn Stephens was also a witness for the State. According to his testimony, he had known Martin Has-kins for about eight years, and they planned the robbery two or three days before it occurred. They went to Little Rock and came back on the Sunday night before the robbery occurred on Tuesday night. On Tuesday night Stephens got with Garland Dickens and Mitchell Kirkpatrick and went down the railroad to where Haskins was hiding. Haskins and Stephens had met that afternoon at the laundry where Haskins worked, and planned that they would commit the robbery. They were to divide the proceeds equally. On the night of the robbery Haskins had on a dark pair of trousers and a cap with a long bill. He had a handkerchief over his face. The robbery occurred between 8 and 9 o’clock at night. Other evidence shows that Stephens and- the defendant had been seen together coming from Little Rock on the Sunday night preceding the robbery.
    On the part of the defendant it was shown that he left the laundry with his uncle about 7 o’clock on the evening of the robbery and went up town with him. A clerk in a drug store testified that he came in there between 7 and 7:30 o ’clock that evening and hung up a black sweater and did not get it any more that night. The witness was positive that it was between 7 and 7:30 o ’clock that evening when Haskins left his sweater in the drug store.

      A cousin of Haskins' testified that lie came to his house between 8 and 9 o ’clock on the evening of the robbery. He stayed about fifteen or twenty minutes and then left in his father’s car. He went to his father’s house after some music records and brought them back in about fifteen or twenty minutes. He was gone just about the time it would take a person driving at 'an ordinary rate of speed to go to his father’s house and return.
    The mother of the defendant testified that he was nineteen years old at the time the robbery was committed and came home to supper a little after 7 o’clock that evening. The father and mother left and went to a relative’s house about 8 o’clock. The defendant then came to the relative’s house where his father and mother were and arrived there at about 8:30 o’clock in the evening. Some one wanted some music records, and the defendant’s father said he would go for them, and Martin then offered to go for them instead of his father and was gone fifteen or twenty minutes when he returned with the records. The robbery had taken place something like a mile from where they were, and it was not possible that the defendant could have participated in the robbery at the time it occurred.
    The jury returned a verdict of guilty, and from the judgment and sentence of the court the defendant has duly prosecuted an appeal.

      U. W. Robbms, for appellant.
    1. The court erred in admitting improper and incompetent testimony.
    2. The argument of the prosecuting attorney was improper and prejudicial. 141 Ark. 448-9.
    3. It was error to give instruction No. 1-A. The court had no right to single out any phase of the testimony and instruct the jury relative thereto. 140 Ark. 529. It was an invasion of the province of the jury.
    4. There was a fatal variance between the allegations in the indictment and the proof. Description of the property in an indictment for robbery is required to •be as specific as in larceny. 100 Cal. 437. The indictment did not allege that the money taken was gold, silver or paper money, nor the denomination. The property taken must be described with such particularity that defendant may know of what he is accused. C. & M. Digest, § 2506; 18 A. & E. Enc. Law 1220-1. When a particular description of the property taken is given, or where it is described as unknown to the grand jury, the proof must support the allegations or the variance is fatal. 18 Enc. PI. & Pr. 122; 115 Ala. 83; 5 Mont. 565.
    5. There was no corroboration of the testimony of Stephens, the accomplice. 218 S. W. 197; 50 Ark. 534; 36 Id. 117.
    6. The verdict is contrary to the evidence and the testimony of the accomplice was uncorroborated. Supra.

      J. 8. Utley, Attorney General, and Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Where there is serious doubt in the law as to whether certain proof is or not permissible, the safe rule is to permit it to go to the jury. 10 B. C. L., p. 862 ; 92 Ark. 728.
    2. The remarks of the prosecuting attorney were not improper nor prejudicial, nor did they transcend the bounds of legitimate argument. 58 Ark. 368; lb. 473; 71 Id. 623; 81 Id. 173; 94 Id. 514; 95 Id. 321; 100 Id. 232.
    3. There was no error in the instruction complained of. The defense was an alibi, and the burden was on defendant to establish it. Hawthorne v. State, 135 Ark. 247. Taking the instructions all together, they state the law, and the case was fairly submitted to the jury. 59 Ark. 422; 58 Id. 353.
    • 4. There was no variance between the allegation in the indictment and proof. O. & M. Dig., § 2410, 3014; 4 Words & Phrases, 3146; 83 Ala. 51. Greenback is the popular and almost universal and exclusive name applied to United States paper notes. 4 Words & Phrases, 3165; 23 Ind. 21-3; 2 Ga. App. 633; 72 S. E. 518; 43 Iowa 418.

      5. No error in giving instruction 1-A. Stephens was an accomplice, and Ms testimony was sufficiently corroborated. 36 Ark. 117; 50 IS. 534; 97 Id. 92. Whether a witness is an accomplice or not is a mixed question of law and fact for a jury, and their finding is conclusive. 51 Ark. 115; lb. 189. Corroboration is sufficient if shown by circumstances connecting defendant with the crime. 52 Ark. 180; 1 Enc. of Ev., p. 108.
    6. The evidence fully sustains the verdict.
   Habt, J.

(after stating the facts). It is earnestly insisted by counsel for the defendant that there was not sufficient corroboration of the testimony of Glenn Stephens to warrant the jury in finding a verdict of guilty. According to Stephens ’ own testimony, he was an accomplice, and the statutory requirement is that the testimony of an accomplice shall be corroborated by other evidence tending to connect the defendant with the commission of the crime and the corroboration is not sufficient if it merely shows that the offense has been committed and the circumstances of it. Cook v. State, 109 Ark. 384, and Polk v. State, 36 Ark. 117.

It can not be said that the conviction of the defendant rested entirely upon the evidence of Glenn Stephens, the accomplice. There is other evidence tending to connect the defendant with the commission of the crime. The corroboration need only be of a character and quality which tends to prove the defendant’s guilt by connecting him with the crime. The testimony on the part of the State tends to show that Glenn Stephens, and the defendant had been seen together returning from Little Rock on the Sunday night before the robbery occurred on Tuesday night. Stephens testified that they began planning to commit a robbery on that occasion. The prosecuting witness testified that the man who robbed him weighed about 120 pounds and was of the build of the defendant. He said that the robber had on tight-legged pants and a cap with a long bill on it. This tallies with the way' Stephens described the defendant’s dress on that night. The night was dark, and the witness’ description of the robber tallies with the appearance of the defendant and the way he was dressed, and this, together with the apparent intimacy between the accomplice and the defendant, was sufficient corroboration of the testimony of the former. Brown v. State, 143 Ark. 523. •

The next assignment of error is that there was a variance between the allegations of the indictment with regard to the description of the property taken and the proof in the case. The indictment alleged that the defendant “did rob the said Garland Dickens of $98.28, good and lawful money of the Government of the United States of America.” Garland Dickens testified that he was robbed of $95 in greenbacks and $3.28 in silver. The term greenback is the common name applied to almost all United States treasury notes and not applied to any particular kind of paper currency. It is the popular name applied to all United States Government notes, and this court has held that where the subject of the robbery charged is lawful money of the United States, the charge is supported by proof that it is the ordinary circulated medium of the country called greenbacks that was taken. Jenkins v. State, 131 Ark. 312, and Cook v. State, 130 Ark. 90.

The defense in this case is an alibi, and it is earnestly insisted by counsel for the defendant that the court erred in instructing the jury on this phase of the case. The court first gave the jury the following instruction:

“One of the defenses relied upon in this case, gentlemen of the jury, is an alibi. To use plain and simple English means that the defendant pleads that he was not at the place where the alleged robbery is charged to have been committed. Upon the question of alibi, you are instructed that the burden of establishing an alibi in a criminal prosecution rests upon the accused, and in order to maintain it he is bound to establish in its support such facts and circumstances as are sufficient when considered with all other evidence in the case to create in the minds of tlie jury a reasonable doubt, not an imaginary, speculative or captious doubt, but a reasonable doubt of tbe truth of the charge against him.

‘ ‘ And you are further instructed that an alibi is sufficiently established if the proof in support of such alibi, considered with and taken in connection with all other testimony in the case, creates such a probability of its own truth as to engender a reasonable doubt of the truth of the charge or the guilt of the accused of the specific crime of robbery.”

Continuing over the objections of the defendant, the court gave to the jury the following: .

“No. 1-A. And you are further instructed, in order for such alibi to be effective, it must explain the whereabouts of the defendant at the time the alleged robbery is claimed to have been committed; and if, after a careful consideration of all the testimony in support of an alibi, that the whereabouts of the defendant are unexplained for such period of time as would be reasonably required to commit the alleged crime, then you should not consider any testimony in support of such alibi. ’ ’

The last instruction was objected to by the defendant ‘for the reason that it invades the province of the jury and singles out certain testimony. The defendant duly excepted to the action of the court in overruling his objection to the instruction.

The purpose of an instruction in regard to an alibi where that defense is interposed is that the jury may be told in plain terms, that if, upon a full consideration of the evidence adduced to prove an alibi in connection with the other evidence they entertain a reasonable doubt of the defendant’s guilt, they should acquit him. Blankenship v. State, 55 Ark. 244; Woodland v. State, 110 Ark. 15, and Joiner v. State, 113 Ark. 112.

The first part of instruction No. 1-A was correct in telling the jury that, in order to render an alibi effective as a defense, it must cover the period of time during which the offense is shown to have been committed, so as to preclude the defendant’s presence at the time and place of its commission. The vice of the instruction, however, is in the latter part where it, in effect, tells the jury that if the evidence in support of the alibi does not explain the whereabouts of the defendant for the period of time covered in the commission of the crime, the jury should not consider any testimony in support of the alibi. This was wrong. The proof of an alibi is as much a denial of the crime as any other defense, and proof tending to establish it, though not complete, may, nevertheless, with the other facts of the case, raise doubt enough to produce an acquittal. Evidence of an alibi, though insufficient of itself to establish that defense, should not be excluded from the consideration of the jury. While such testimony may not establish a perfect alibi, and though it may not cover the entire time during which the crime may be shown to have been committed, or so much as to render it impossible that the defendant could have committed the offense, yet it may be considered by the jury in connection with the other evidence, and if, when so considered, it raises a reasonable doubt that the defendant committed the crime, it is the duty of the jury to acquit. The instruction as given invaded the province of the jury. The defendant had only to raise in the minds of the jury a reasonable doubt of his guilt springing out of all the evidence in the case, and the court erred in telling the jury, in effect, that it should not consider any of the testimony in support of the alibi unless the evidence on that point explained the whereabouts of the defendant during the whole period of the time during which the offense was committed.

This is the effect of our decision in Wells v. State, 102 Ark. 627. There the court disapproved an instruction which told the jury that, unless they found from the evidence that the defendant had established an alibi, it was their duty to convict him. The instruction should have been that, if the proof of the alibi in connection with the other evidence was sufficient to raise in the minds of the jury a reasonable doubt as tO' the defendant’s guilt, then it was their duty to acquit,

While 'the instruction in the present case does not tell the jury that, unless it should find from the evidence that the defendant has established an alibi, it will find him guilty, it does tell the jury that if the evidence of an alibi does not cover the whole period of time during which the crime was committed, the jury should not consider any of it. The difference is in degree merely, and clearly invades the province of the jury. If it is the duty of the jury to acquit the defendant if the evidence upon the subject of an alibi in connection with the other evidence in the case raises a doubt as to his guilt, then it is manifestly prejudicial to his interests to tell t the jury not to consider any evidence on the subject of an alibi unless it' covers the whole period of time during which the offense was committed. Although the evidence might not establish a perfect alibi, the jury had a right to consider it with the other evidence in the case; and, if from all the evidence together a reasonable doubt of the defendant’s guilt is raised, there should be an acquittal.

The court erred in telling the jury the defendant must produce sufficient evidence to establish his alibi, or else the jury should not consider any of the evidence on this point.

The defendant also assigns as error certain remarks of the prosecuting attorney and also an alleged error of the court admitting certain testimony out of its order. These alleged errors are not likely to occur on a new trial of the ease, and for that reason we will not deter-miné-them.

For the error in giving instruction No. l-A, the judgment must be reversed and the cause remanded for a new trial.


author: Hart, J.

text:
    Home Mutual Benefit Association v. Keller.
    Opinion delivered April 25, 1921.
    1. Insurance — “insurable interest.” — An insurable interest in tbe life of another is such an interest arising from the relations of the party obtaining the insurance, either as creditor, or as surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life.
    2. Insurance — “insurable interest.” — A son-in-law has no insurable interest in the life of his father-in-law by reason of the relationship merely, nor because the father-in-law had loaned him money, and was kindly disposed toward him.
    3. Insurance — statute construed. — Crawford & Moses’ Dig., § 6068, pertaining to the regulation and incorporation of fraternal benefit societies has no application to mutual benefit societies having no lodge system of government.
    Appeal from Polk Circuit Court; James 8. Steel, Judge;
    reversed.
    STATEMENT OE PACTS.
    I. T. Keller sued the Home Mutual Benefit Association to recover on two benefit certificates issued by the association at bis application upon tbe life of E. W. Moore.
    Tbe Home Mutual Benefit Association was incorporated under tbe laws of tbe State of Arkansas for tbe purpose of conducting a life and accident insurance business in tbis State. I. T. Keller applied to tbe Home Mutual Benefit Association to issue two benefit certificates to bim as tbe beneficiary upon tbe life of E. W. Moore, and they issued in tbe sum of $1,000 each, on tbe 4th day of May, 1915. At tbe time E. W. Moore resided with I. T. Keller, who bad married bis daughter, and bad one child by her. E. W. Moore owned the farm on which they resided, and Keller cultivated the land for a part of tbe crop. Two years later Keller moved to town and borrowed $1,000 from Moore with which to run a garage. Moore moved to town and lived with Keller for a while. Subsequently be married again and died on tbe 14th day of May, 1920. After be mar-. ried tlie second time Moore said to Ms wife that he had loaned Keller $1,000, and that the latter had been as good to him as if he had been his own son. Moore was very much attached to his grandson, who was the son of his daughter and Keller. After Moore died Keller paid to his estate $1,000 which he had borrowed from him. Keller took out the policy as a good investment because Moore was about sixty years of age and resided with Keller at the time the latter took out the insurance.
    The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has appealed.

      Norwood & Alley, for appellant.
    1. Keller had no insurable interest in the life of Moore, and a verdict should have been directed for defendant. 132 Ark. 461. The mere fact that he is the son-in-law does not give him an insurable interest. 98 Ark. 52; 132 Id. 458; 35 L. R. A. 692; 14 R. C. L. 97-8; 33 L. R. A. (N. S.) 941. _ •
    _ 2. The court erred in its instructions given and refused.

      Pole McPJietridge, for appellee.
    Keller has an insurable interest in Moore. Appel-lee was living with the insured and was a son-in-law and treated as a son and had an interest in Moore’s life, and would derive more benefit from his life than Ms death. 154 Penn. St. 99; 26 Atl. 253; 83 S. E. 1045; 1 Bacon on Life & Acc. Ins. (4 ed.), $ 296; Id. 300; 104 IT. S. 779. A primary interest is not required. 8 Elliott on Cont., § 4068; 172 Ky. 444. 98 Ark. 52, nor 132 Ark. 458 are in point. Act No. 462, Acts 1917, defines those who have an insurable interest, and there is no error in the instructions. The testimony and the law sustain the verdict.
   Hart, J.

(after stating the facts). The defense of the insurance company to the suit is that Keller did not have an insurable interest in the life of Moore, and on this account the policy is void. Hence it is earnestly insisted by counsel for the defendant that the court erred in not directing a verdict in its favor, and in this contention we think counsel are correct.

"What constitutes an insurable interest in the life of another is clearly stated in Warnock v. Davis, 104 U. S. 775, as follows:

“It is not easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor or of surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of his wife and a wife in the life of her husband. The natural affection in cases of this kind is considered as more powerful, as operating more efficaciously, to protect the life of the insured, than any other consideration. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or of affinity to expect some benefit or advantage from the continuance of the life of the assured, otherwise the contract is a mere wager by which the party taking the policy is directly interested in the early death of the assured.”

The rule there announced has been approved by this court. McRae v. Warmack, 98 Ark. 52, and Cotton v. Mutual Aid Union, 132 Ark. 458. It is generally held that the connection between son-in-law and father-in-law is not sufficient to create an insurable interest in the latter in favor of the former. Crismond’s Admx. v. Jones, 83 S. E. (Va.), 1045; Aim. Cas. 1917 C, 155 and note; Rombach v. Piedmont & Arlington Life Ins. Co., 35 La. Ann. 233, 48 Am. Repts. 239, and Shea v. Massachusetts Benefit Assn. (Mass.), 39 Am. St. Repts. 475.

In the present case Keller procured the Home Mutual Benefit Association to issue the two benefit certificates sued on to him upon the life of E. W. Moore, his father-in-law. Keller kept the assessments paid until Moore died. Keller had no pecuniary interest in the continuation of the life of Moore. Moore was under no obligation, legal or moral, to support Keller or his family. The benefit certificates sued on were wager policies, and therefore void as against public policy. The mere fact that Moore lent Keller money and was willing to lend him more, coupled with the fact that he was kindly disposed toward him, can be said in no sense to take the case out of the rule that Keller was speculating on the hazard of a life in which he had no interest. The fácts in the record of the present case show conclusively that Keller could have no expectation of advantage or benefit in the life of Moore, and the court erred in not instructing the jury that the benefit certificates sued on were wagering contracts and not enforceable in law.

Again it is sought to uphold the judgment upon the authority of the act of 1917, pertaining to the regulation and incorporation of fraternal benefit societies. Crawford & Moses’ Digest, § 6068. That act has no application to the present case. By its terms it applies to .mutual benefit societies having a lodge system with a ritualistic form of work, and does not purport to apply to a mutual benefit association having no lodge system of government as in the present case. Acree v. Whitley, 136 Ark. 149.

It follows that the court erred in not directing a verdict for the defendant. Inasmuch as the case has been fully developed, the judgment will be reversed, and the cause of action dismissed,


author: Smith, J.

text:
    Nunes v. Coyle.
    Opinion delivered April 25, 1921.
    X. Highways — authority op commissioners to change route.— Commissioners of a road improvement district created under Acts 1915, p. 1400, were not authorized to change the route so as to construct a new road for a distance of 3% miles where the county-court had not established the new road, nor the property owners of the district consented to the change.
    2. Highways — change op route — estoppel.—A landowner in a highway improvement district created under Acts 1915, p. 1400, was not estopped from questioning the right of the commissioners to make a material change in the route of the road for 3% miles by reason of the fact that he signed a petition for the district in which he agreed to any change that might thereafter be made by the court or the commissioners.
    Appeal from Polk Chancery Court; James D. Shaver, Chancellor;
    reversed.

      Lake & Lake, for appellant.
    1. The commissioners of district organized under act 338, Acts 1915, had no authority to change the location of the public road. The change can only he made by the county court. Art. 28, § 7, Constitution 1874; act No. 338, Acts 1915; 138 Ark. 549; 139 Id. 277; 89 Id. 513; 118 Id. 294; 92 Id. 93; 91 Id. 274.
    2. The proposed change in the route of the road is the adoption of a new route, and only the county road can do this. 133 Ark. 491; 135 Id. 102.

      Norwood S Alley, for appellees.
    The route of the road is not changed at all. It was impracticable to stay with the old road, and the petition authorized the change. The court so found, and the finding will not be disturbed unless clearly against the preponderance of the evidence. 71 Ark. 643; 86 Id. 622. The facts are conclusive, and the findings of the chancellor could not be other than they were. The purpose of the order of the county court was to improve the road through the district ‘‘along” the public road, etc. As to definition of “along,” see 1 Words & Phrases, p. 251. The judgment below is sustained by tbe evidence, and tbe law as laid down by this court in a long line of decisions was followed. Tbe commissioners did not exceed tbeir authority given under tbe act. 123 Ark. 205 does not bear on this case. See 133 Ark. 491; 135 Id. 102. Tbe commissioners acted witbin tbeir authority. 142 Ark. 509. Tbe decree is sustained by our decisions construing tbe Alexander Road Law.
   Smith, J.

Appellant, wbo was tbe plaintiff below, is a landowner in Road Improvement District No. 1 of Polk County. This district was organized on tbe petition of tbe landowners under act 338 of tbe Acts of 1915, page 1400. Tbis suit was brought to enjoin tbe commissioners and tbe contractor from proceeding with tbe construction of tbe road along tbe route selected by them. Upon final bearing a temporary restraining order wbieb bad been issued was dissolved and tbe suit dismissed for want of equity; and tbis appeal is from tbat decree.

Tbe proposed improvement extends north and south almost entirely across Polk County for a distance of fifty miles, and throughout its course practically parallels tbe Kansas City Southern Railroad. Tbe petition for the improvement gave the termini of tbe road and named tbe various towns and villages through which tbe proposed improvement would run. The prayer of tbe petition was granted by the county court, and tbe construction of tbe proposed improvement was ordered.

It was alleged, and shown by tbe testimony, that tbe public road between Wickes and Grannis crosses tbe Kansas City Southern Railroad to tbe west at a point, approximately one mile south of Wickes, and runs in a southerly direction along the railroad to a point at Gran-nis, where it again crosses tbe railroad to tbe east. Tbe distance between tbe two points is estimated to be three and one-balf miles. Tbe commissioners, on tbe recommendation of tbe engineer, selected a new route for this three and one-balf miles along tbe east side of tbe rail-roád. Tbe purpose of tbis change was to eliminate two grade crossings of the railroad and to lesson the cost of construction. The testimony on the question of decreased cost is conflicting; hut the court found that there would be a saving of nine thousand dollars; and we are unable to say that that finding is against the preponderance of the testimony.

The proposed change shifts the road to the opposite side of the railroad from a quarter to a half mile for a distance of three and one-half miles; and it is admitted that there is no public road along the route selected by the commissioners, and that no order of the county court has ever been made opening up this new road and authorizing this change. The only public road between the two points between which the change was made runs along the west side of the railroad.

The petition for the district, after defining the general course of the road,, contains the following recital: “Your petitioners agree to any changes that may here-' after be made by the court or the commissioners of the district in the line of said road, provided that the general purpose of securing an improved highway between the termini mentioned is retained.”

Appellant was among the property owners who signed the petition.

The court below made the following finding of fact: “That the entire road, when completed, extends north and south along the line of the Kansas City Southern Railroad; that the old roadbed, along which this improvement is being made, passes through a rough, hilly country for much of the way, and the old roadbed is very crooked, and to remain in the old road would be impractical, and of more expense, and there could not be constructed as good road by so doing, and that some changes in actual location is necessary and for the better, and that the change complained of is a change that should be made, and to do so is a saving instead of an expense. ’ ’

In defense of this finding and the decree thereon, it is insisted that the act under which the district was created conferred the authority to make such a change as was here made, and that if this is not true appellant is estopped from raising the question, inasmuch as he had consented in advance to changes in the route of the road by signing the petition.

The decree in this cause must be reversed. In the first place, no order of the county court was obtained laying out the three and one-half miles of new road. We have many times said that new roads could not be established and the burden of their maintenance imposed on the county except by the order of the county court. It is true we have also held that established public roads might be improved whether the county court had so ordered or not. And these holdings are not in conflict. In improving an established road the burdens of the county as a governmental unit are not increased. Those who assume this burden become the allies of the county court, as was said bv Judge Battle in the case of Parkview Land Co. v. Road Imp. Dist. No. 1, 92 Ark. 93.

Here there is a laying out of an entirely new road for a distance of three and one-half miles; and that can be done only when the county court has so ordered. Rd. Imp. Dist. No. 1 v. Glover, 89 Ark. 513; Sallee v. Dalton, 138 Ark. 549.

We do not mean to hold that the county court could make an order in the instant case changing the road. We do hold that the change could not be made without the order of the county court; but the proposed change can not be made even with the approval of the county court because the property owners have not thereunto consented.

The case of Pritchett v. Road Imp. Dist. No. 3 of Poinsett County, 142 Ark. 509, is decisive of the question stated. We have here a proposed change of route, and not a question of laterals or extensions, and the change proposed is one which has not received the precedent approval of the county court. In the Pritchett case, supra, the approval of the court had been previously obtained ; but, notwithstanding that fact, in holding against the authority of the commissioners to change the route we said:

“The further question is then presented whether or not the changes in the route are in conformity with the original plans or whether they constitute an abandonment of the original route and a change to a wholly different route. There was, as before stated, a change in the route by shifting it a distance of one-fourth of a mile, running for a distance of one mile. This necessarily constituted the adoption of a different route, and not merely a slight change in conformity with the original route. It is conceded that this change was made for the purpose of benefiting appellants’ lands, which, according to the judgment of the county court, would not have been benefited by the original improvement. This contention of counsel necessarily implies a substantial change in the route. It is, in other words, a substitution of an entirely new route for the one specified in the original plans upon which the petition of property owners was based. That is precisely what we held in Rayder v. Warrick, supra, could not be done. The laterals contemplated by the altered plans were authorized according to the decision in Harris v. Wallace, supra, but in testing the validity of the adoption of the new plans we must take them as a whole, for we are not at liberty in this proceeding to discard that which is beyond the statutory authority, leaving intact that part which is within the limits of such authority.” See, also, Phillips v. Tyronza Imp. Dist., 145 Ark. 487.

The change here proposed is greater than that which we held could not be made in the Pritchett case, supra. The proceeding in that case, as in this, was under act 338, Acts 1915, page 1400.

We think appellant is not estopped by the fact he signed the petition from questioning the right of the commissioners to make the proposed change in the route.

The paragraph in the petition quoted above consenting to change of route is in the identical language employed in the case of Rayder v. Warrick, 133 Ark. 491. In that case the party who sought to enjoin the change of route had not signed the petition. The objecting landowner here did sign the petition. But that fact is not of controlling importance.

The petition in any event must be construed to conform to the statute under which the parties proceeded. The right to proceed is conferred by the statute, and the authority of those who act for the petitioners is derived from the statute. As was said in Rayder v. Warrick, supra, the petitioners have no power to legislate or to change the meaning of a provision of the statute; and we must hold that the language of the petition did not confer a power in excess of that granted by the statute.

The change proposed is not one of those minor changes which perfect the general plan, and, as no authority, for the change exists, the injunction prayed for should have been granted.

The decree will, therefore, be reversed, and the cause, remanded with directions to enter a decree in accordance with this opinion.


author: Humphreys, J.

text:
    Garrison v. State.
    Opinion delivered April 25, 1921.
    1. Intoxicating liquors — indictment—name op purchaser. — An indictment for illegally selling whiskey need not name the person to whom the alleged sale was made.
    2. Witnesses — impeaching one’s witness. — Under Crawford & Moses’ Digest, § 4186, prohibiting a party from impeaching the character of a witness produced by him, but allowing such witness to be contradicted with other evidence and by showing that he has made statements different from his present testimony, the prosecuting attorney can ask a witness for the State, who testified that no sale of whiskey was made in his presence, whether he had not stated to the prosecuting attorney that morning that he was present when the sale was made, and the testimony of the witness, in reply to such question, that he made that statement, was admissible.

      8. Criminal law — cross-examination op accused. — It was not prejudicial error to permit the prosecuting attorney to cross-examine the accused as to whether he had been making whiskey for three years, and whether the neighbors were getting tired of his conduct, where accused answered both questions in the negative.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Gwy L. Trimble, for appellant.
    The indictment is insufficient because it does not show the name of the purchaser of the whiskey. 13 Ark. 703; 68 Id. 188; 47 S. W. 1015. Only two witnesses testified to the sale, and one of these was discredited, and that discredited the other, and the verdict is not supported by any evidence.

      J. S. Utley, Attorney General, Elbert Godwm and W. T. Hammock, Assistants, for appellee.
    1. The indictment was not insufficient because it did not name the purchaser of the liquor (125 Ark. 47), and that objection should be overruled. The law has been changed. A party may now impeach his own witness where it is indispensible. C. & M. Digest, § 4186.
    If the witness was impeached, Ms credibility was a question for the jury, and if believed by the jury it was sufficient to sustain the verdict. 36 Ark. 653; 32 Id: 220.
    2. The evidence sustains the judgment.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Newton Circuit Court for selling whiskey, and, as a punishment therefor, sentenced to the State penitentiary for a term of one year. From that judgment is this appeal.

The indictment was assailed in the trial court on the ground that it did not name the person to whom the alleged illegal sale of intoxicating liquors was made. Over the objection and exception of appellant, the court sustained the indictment, and it is contended that reversible error, was committed in doing so. The contention is made that, since the offense has been raised to the grade of a felony, it is necessary to allege the name of the purchaser in the indictment, so as to inform the accused of the particular charge he is called to meet. The identical point raised here was before the court in the case of McNeil v. State, 125 Ark. 47, at which time the court ruled adversely to the contention of appellant. Appellant suggests that this was not a well-considered case, and should be overruled. Subsequent consideration of the rule announced in that case convinced us of its soundness, and it was reaffirmed. Springer v. State, 129 Ark. 106.

Appellant’s next insistence for reversal is that Ober Martin, a witness for the State, was permitted to testify contrary to the first testimony given by him. Dewey Martin, the main prosecuting witness, testified that he bought whiskey from appellant at appellant’s home in the presence of Ober Martin. When Ober Martin was placed on the stand by the State, he first testified that Dewey Martin never purchased the whiskey from appellant in his presence, but that Dewey Martin stopped at appellant’s home, and, after he came out, witness saw him with some whiskey. Over the objection and exception of appellant, the prosecuting attorney was permitted to ask Ober Martin whether he had not admitted to him, in a conversation that morning, that he was present when Dewey Martin purchased the whiskey from appellant. Ober Martin admitted making the statement, and then testified that he was present when his cousin, Dewey Martin, purchased the whiskey from appellant. Appellant insists that this was an impeachment or contradiction of the State’s own witness in a manner contrary to. section 4186 of Crawford & Moses’ Digest, which is as follows:

“The party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is a case in which it was indispensable that the party should produce him; but he may contradict him with other evidence,'and by showing that he has made statements different from his present testimony.”

This statute, if applicable in criminal cases, allows the party producing the witness, if surprised and prejudiced by the statement made, to show that he had made a different statement from his present testimony. Doran v. State, 141 Ark. 442. The fact first testified to by Ober Martin was a surprise and prejudicial to the State. Therefore, the question propounded by the prosecuting attorney to the witnesses as to whether he had not made a different statement was clearly admissible as laying the foundation for a contradiction. Jonesboro, Lake City & East. Rd. Co. v. Gainer, 112 Ark. 477. Of course, it was unnecessary to prove the . contradictory statement by other witnesses after Ober Martin admitted making a different statement from that to which he had testified.

Appellant’s last insistence for reversal is that the court, over the objection and exception of appellant, permitted the prosecuting attorney to cross-examine him as follows:

“Q. Now, isn’t it a fact that you have been making whiskey for three years?

“A. No, sir; I haven’t made a drop of whiskey or sold a drop of whiskey.

“Q. As a matter-of fact,.aren’t people out there getting mighty tired of the way you are doing?

“A. No, sir; I don’t. * * *”

The appellant answered the questions in, the negative, so no prejudice resulted to him on this account.

No error appearing in the record, the judgment is affirmed,


text:
    Ashmore v. Noble.
    Opinion delivered April 25, 1921.
    1. Landlord and tenant — lease option construed. — Where an option to lease a building provided that it should be exercisable by notice in writing at any time within two years that the present tenant should vacate the premises, provided that the optionee must exercise the option within ten days from the date of receipt of written notice of vacancy, the right to exercise the option existed if the occupancy was changed within the optionee’s knowledge at any time within two years from the date of the option.
    2. Specific performance — delay in exercising option. — Where an option to lease premises provided for its exercise on the vacancy of the building at any time within two years upon ten days’ notice, and the optionee delayed for sixteen months after receiving notice of a change of occupancy, relief by way of specific performance will be denied.
    Appeal from G-reene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      B. P. Taylor, for appellant.
    1. 1. A -written contract for the lease of realty is susceptible of specific performance. 25 ft. C. L. 283. The fact that it is an option does not displace the right of specific performance. A vendee is entitled to an option contract. 80 Ark. 209.
    2. So far as appellant is concerned, there is no ground for distinction between Mrs. Noble and her co-defendants. Her title is the common source of appellant’s claims and those of Breckinridge and Hays alike. Tenancy by the month may be terminated upon thirty days’ notice, in the absence of a showing to the contrary that a different time has been agreed upon. 105 Ark. 127. Here there is no such showing, and notice served on Mrs. Noble serves to oust her codefendants as well as herself.
    3. Appellant is entitled to immediate possession. (1) The present tenants are not standing upon a failure of notice, and notice would have been futile, as they stand upon an alleged want of any right in appellant whatever, and (2) there is no affirmative proof that they were not served with, notice; the presumption is that appellant performed his duty and gave notice. 25 Ark. 311.
    4. The chancellor’s findings as to the provision for notice are clearly erroneous. The proviso in the contract was. for the purpose of enabling Mrs. Noble to force for acceptance or rejection of the lease by Ashmore and to expedite his action in that respect.
    5. The chancellor erred in fixing the departure of Stutts as the point from which a reasonable time should begin to run. Appellant proceeded within a reasonable time to ask specific performance, and the doctrine of laches does not apply. 103 Ark. 191.
    The contract of the vendor in treating the contract as no longer binding fixes the point at which begins the reasonable time allowed the vendee .to tender performance. 113 Ark. 433; 20 Ore. 265; 12 L. R. A. 239-43; 25 L. R. A. 253. Delay in seeking specific performance works no harm where there has been continuous acqui-esence on both sides, but laches may be imputed to one seeking specific performance from the time when the one against whom relief is sought has indicated by acts or intentions to abandon the contract. 25 R. C. L. 252; 62 Mich. 15; 28 N. jW. 744; 9 Tex. 129; 58 Am. Dec. 136-143. See, also, Willeston on Cont., § 689. Failure to speak or act when it is one’s duty to do so amounts to action inducing postponement as effectually as any positive statement might do. 103 U. S. 828; 63 Neb. 128; 88 N. W. 171. See, also, 70 Mich. 517; 38 N. W. 555-7; 104 Ga. 157; 30 S. E. 723; 3 Tenn. Rep. 653; 57 Mass 224-8.
    Where one of the parties to an executory contract of sale formally gives notice to the other to comply, it is fatal to his right of rescission if he lacks good faith. 126 Ark. 498.
    5. Even if Mrs. Noble’s waiver of her right to expedite action be held not to be a continuing one, appellant has discharged his obligation. Mere lapse of timé is not laches. 83 Ark. 154-160.

      While courts of equity by analogy follow the statute of limitations, the defense of laches may he made when the lapse of time is less than the statutory limitation. 25 R. C. L. 257; 158 Cal. 290; 110 Pac. 947; 9 Tex. 129; 58 Am. Dec. 136-142; 124 Ark. 244-270; 15 R. C. L. 1125.
    Where a contract has been partially performed and one makes default, the other has a choice of remedies; he may rescind or affirm, but can not do both. If he rescinds, he must return the value received. 72 Ark. 359-64.
    No discretion remains in this case to refuse specific performance. The contract was freely entered into for a valuable consideration paid, and it is fair and just in all its provisions and specific performance should be decreed. 16 Ark. 340; 140 Id. 384; Pom., Eq. Jur. (3 ed.), $ 1404.

      M. P. Huddleston, R. E. Fuhr and J. M. Futrell, for appellees.
    1. An option is not a sale, but only an offer to sell within a limited time, and must be accepted or rejected within such time. No notice to Ashmore was necessary, as no occasion arose for same.
    2. It is unnecessary to discuss the questions of law raised by appellant, as appellant had a full and adequate remedy at law.
    3. No notice was necessary to be given, as the parties had actual knowledge. WiUeston on Contracts, § 57. The house was unoccupied and vacant, and notice was unnecessary and no rights accrued to appellant under his option. Willeston on Cont., § 57. See, also, 68 Md. 21; 11 Atl. 284; 6 Am. St. 417; 135 N. W. 712; 77 Pac. 134; 67 L. R. A. 571; 110' Am. St. 963.
    The option here provides that same shall begin, “provided that the premises shall be vacated by the tenant who now occupies them,” etc. There was no vacancy; the premises were not vacant. 48 Ark. 82; 8 Words and Phrases, p. 7258; 2 L. R. A. (N. S.) 517 and note. As the house was not vacant, no rights accrued to appellant, and the decree is right.
   Humphreys, J.

This is an appeal from the decree in the Greene Chancery Court, dismissing appellant’s hill to enforce an option to lease a building in Paragould, owned by appellee, Mrs. Minnie Noble. The option contract was entered into between Mrs. Minnie Noble and E. B. Ashmore on the 10th day of April, 1919, and is, in part, as follows:

“In consideration of $10 now paid by the lessee to the lessor, the receipt whereof is hereby acknowledged, the lessor shall have the option of taking a lease of the premises described as follows:

“The one-story brick building on South Pruet street now occupied as a pool room, in the city of Paragould, Ark., for a term of one year at the monthly rental of $60 per month, and the privilege of extending three (3) years additional at same rental, provided said premises shall be vacated by the tenant who now occupies said premises at any time within two years from the date of this option.

“This option shall be exercisable by notice in writing by the lessee to the lessor at any time within two years from the date hereof that the present tenant shall vacate said premises, and if and when so exercised then the lessor shall grant and the lessee shall accept a lease of the said premises for the said term which shall commence from the date of the exercise of the option, at the said rent, and the said sum of $10 paid for this option shall be applied to the payment of the first month’s rent; provided that the lessee must exercise his option within ten days from the date he shall receive written notice from the lessor that said premises will be' vacant and ready to be occupied by lessee within said ten days.”

At the time the contract was executed the building was occupied by Hugh Stutts, as tenant of Mrs. Noble, at a rental of $50 per month. On May 7 following Hugh Stütts sold his business and equipment to appellees, G, T. Breckenridge and Sam Hays, who thereafter occupied the building under a monthly rental contract with Mrs. Noble for $75 per month. Appellant obtained knowledge that Stutts had sold and delivered possession of his business and equipment to Breckenridge and Hays a week or ten days after the sale. He occupied an adjoining building to the building in question, for which he paid $30 per month, and, on that account, did not attempt to exercise his option under the option contract until September 20, 1920. Appellant first made a verbal request for the fulfillment of the option contract, and, when Mrs. Noble refused to execute a lease pursuant to its terms, he gave her written notice of his intention to exercise his rights under the option, then instituted this suit for specific performance of the option.

Appellant’s contention is that he had a right under the option contract to lease the building at any time within two years from its date after being vacated by the tenant then occupying the building, by giving written notice to the lessor, Mrs. Noble, of his intention to exercise the option, and that it was not incumbent upon him to give written notice of his intention until Mrs. Noble first gave written notice that said tenant had vacated the building. We do not place that construction upon the contract. The two-year period in the contract had relation to the life of the contract, and not the time of the accrual of appellant’s right to exercise the option. It is made manifest by the proviso in the first paragraph of the contract set out that the right to exercise the option accrued if the occupancy was changed — of course, with the knowledge of the lessee — at any time within two years from the date of the option. We see nothing in other parts of the contract in conflict with this plain proviso, which is as follows-: “Provided said premises shall be vacated by the tenant who now occupies said premises at any time within two years from the date of this option.” It is argued that the last proviso in the contract is in conflict with this construction, because, by it, the lessee is not required to exercise his option until the lessor gives him ten days’ written notice that the occupancy had changed. This was not the purpose of the last proviso in the option contract. The purpose of that proviso was to prevent a lapse between the time of the departure of the then tenant and the entry of the optionor, if he desired to take advantage of his option. The last proviso was clearly for the benefit of the lessor, as it permitted her to 'give the notice which accelerated the right to exercise the option even before the vacancy occurred. Having thus construed the contract, the only remaining question to be determined on this appeal is whether appellant attempted to exercise his option within a reasonable time after his right to specific performance accrued. The rule is that one entitled to specific performance of a contract must proceed to enforce it within a reasonable time. This court, in the case of Uzzell v. Gates, 103 Ark. 191, quoted approvingly the rule announced by Lord Cranworth to the effect that “specific performance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit.” In the instant case, the appellant delayed before taking steps to enforce his option about sixteen months after receiving notice of a change in occupancy of the building in question. In the meantime, without objection or protest on the part of appellant, Mrs. Noble leased the building to others from month to month, at a rental of $75 per month. Appellant’s lack of diligence prevents him now from calling on a court of equity for specific performance.

The decree is therefore affirmed.