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    Hester v. State.
    Opinion delivered September 26, 1921.
    1. CRIMINA!, law — EVIDENCE—CORROBORATION OF ACCOMPLICES.— One who received goods, knowing them to have been burglar-iously stolen, is an, accomplice within the statutory rule requiring the testimony of an accomplice to be corroborated.
    2. Criminal law — res gestae. — Statement of defendant’s mother, made on the day following the night on which the burglary was committed, to the effect that she was glad the defendant had been at home on the night of the burglary because they could not accuse him of it, as they had done in another burglary case, was inadmissible, not being. part of res gestae.

    Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson, Judge;
    reversed.

      Jeff Bratton and W. W. Bandy, for appellant.
    1. Tbe declaration as to appellant’s whereabouts on tbe night of the burglary, made by his mother immediately after her husband on the next day reported the occurrence of the burglary, was competent. This exclamation was res gestae of the evidentiary fact of her remembrance as to where he was at the time the crime was committed, his whereabouts at that time being the ultimate, or principal, fact to be proved. Corpus Juris, vol. 22, p. 449; 88 S. W. 212, 215; 48 Art. 333; 17 Oye., 795.
    2. The testimony of the witness Bill Woods, to the effect that after the burglary Cole, in the absence of the appellant, told him who committed the burglary, and that appellant was one of them, was pure hearsay, and not admissible. 73 Ark. 146; 141 Ark. 170; 143 Ark. 315; 37 Ark. 84; 63 Ark. 457.
    3. The court erred in refusing to declare, as a matter of law, that the witness, Wood, was an accomplice. At least, the question should have been submitted to the jury. 139 Ark. 385. The evidence shows unmistakably that he was an accessory after the fact, and, therefore, an accomplice; but, if there was any dispute, the question should have been submitted to the jury. 51 Ark. 115; 111 Ark. 299; Terry and Gornall v. State, ms. op.; Corpus Juris, vol. 16, pp, 139, 670; 130 Ark. 353; 128 Id. 452; 63 Id. 457; 125 S. W. 16; 36 Ark. 126.
    4. The jury should have been instructed not to consider the testimony of the witnesses, Cole and Spillman, as being corroborative each of the other. 51 Ark. 115; 43 Id. 369.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The remark of appellant’s mother in conversation at the table the next day after the perpetration of the crime was not a part of the res gestae. 1. Wharton on Evidence, §259; 69 Ark. 648; 85 Id. 300; 114 Id. 267; 138 Id. 517; 217 S. W. 482.
    2. Conceded that it would have been improper for Woods to testify that appellant was one of the parties implicated in the crime, but Woods did not so testify.

      3. On the question as to Woods feeing an accomplice, the court was correct in its rulings. The test as to whether a witness is an accomplice is whether he .could himself have been indicted for the offense either as principal or accessory. 1 R .C. L. § 3, p. 157; 12 Cyc. 445, 446; 16 Corpus Juris, p. 671. Appellant was tried and convicted, not on the larceny charge, hut only for burglary. Woods anight have 'been an accomplice of Cole, and still not be an accomplice of appellant. 0. & M. Digest, § 2432; Id. % 2483; Id. § 2495; 1 R. C. L. § 3, pp. 157, 158; Id. % 5, p. 159; 132 Ky. 666, 117 S. W. 253; 136 A. S. R. 192, 19 Ann. Cas. 140 and note; li8 S. D. 1, 98 N. W. 171; 5 Ann. Cas. 760 and note. See also 16 Corpus Juris, p. 672.. This testimony, if believed, sufficiently corroborated the testimony of Cole and Spillman to warrant conviction of appellant for burglary. 36 Ark. 653; 32 Id. 220.
   Hart, J.

Ray Hester prosecutes this appeal to reverse a judgment of conviction against him for the crime of burglary.

The first assignment of error is that the court erred in not telling the jury that Bill Woods was an accomplice, and that his testimony required corroboration in order to convict the defendant.

Among the witnesses for the State were Walter Cole, Bill Woods, and Gilbert Spillman. Walter Cole and Gilbert Spillman testified that they, in company with Ray Hester, broke into a mercantile establishment in Para-gould, Greene County, Arkansas, in April, 1920, in the night time and took therefrom silk shirts, silk hose, shoes, underwear, collars and neckties, worth between $2,000 and $3,000.

Walter Cole testified that they hid the goods under a certain house on the night the burglary was committed; that he told Bill Woods about the burglary before the goods were divided; that he also talked with Bill Woods about the burglary- after the goods had been divided; that Bill Woods agreed to help him take his share of the stolen goods to Oklahoma; that they placed the stolen ■goods in grips and that he and Bill Woods started to Oklahoma and were arrested soon after they started, and that Bill Woods had part of the stolen goods in his grip at the time he was arrested.

Bill Woods testified that, in a few days after the burglary was committed, Walter Cole told him that Ray Hester, Gilbert Spillman and himself had committed the burglary; that soon afterward witness asked Ray Hester if they had divided the goods, and Hester replied that they had, and that some one had stolen his part. Witness then agreed with Walter Cole to help him carry his part of the stolen goods to Oklahoma for the purpose of disposing of them. Walter Cole and Bill Woods then started to Oklahoma, each carrying a grip with part of the stolen goods in it. Witness knew that the goods had been stolen at the time the storehouse in question was burglarized in Paragould, Arkansas, and he was going with Cole to Oklahoma to help him dispose of his share of them at the time they were arrested.

The court instructed the jury that Walter Cole and Gilbert Spillman were accomplices of the defendant in the burglary, but refused to instruct them that Bill Woods was also an accomplice, and that there could be no conviction upon his uncorroborated testimony.

This raises the question of whether or not the failure of the court to charge that Bill Woods was an accomplice, and that under the statutes his testimony required corroboration, calls for a reversal of the judgment. The word, “accomplice,” as used in our statute requiring corroboration, has been construed by the court to include an accessory after the fact. Edmondson v. State, 51 Ark. 11, and Stevens v. State, 111 Ark. 299.

But it is insisted by the State that the receiver of stolen goods is not an accomplice of the person committing burglary at the time the goods are stolen. There is a division of the authority in other -States on this question. In Murphy v. State, 130 Ark. 353, the defendant was charged with the crime of ' larceny, and it appeared from the testimony that he had delivered some of the stolen goods to one “C.” This court held that it was the dnty of the court to tell the jury that if “C.” received the stolen goods with knowledge that they were stolen, she was an accomplice, and a conviction could not he had unless her testimony was corroborated in the manner provided in the statute.

In the light of the authorities cited, it follows that Bill Woods was an accomplice of the person committing the burglary, so that the conviction of the one can not be sustained on the uncorroborated testimony of the other. In this case it is not shown that the witness, Bill Woods, participated in the original taking, but it is not questioned that he received a part of the stolen goods, knowing they were stolen, for the purpose of helping dispose of the same. Thus the undisputed evidence places him in the attitude of an accomplice, and it was reversible error on the part of the trial court not to charge the jury on accomplice’s testimony in the manner provided in the statute.

In view of a new trial, it is thought advisable to consider one other alleged error. It pertains to the refusal of the court to permit the mother of the defendant to give certain testimony in support of his defense of an alibi. On the day following the night of the burglary, the father of the defendant came home and reported the fact of the burglary to his family at the dinner table. The defendant offered to prove that his mother at once stated that she was glad the defendant had been at home on the night of the burglary because they could not accuse him of it, as they had done in the Bertig burglary.

It is claimed that this statement made by the mother of the defendant was a part of the res gestae, and should have been admitted in evidence. We do not agree with counsel in this contention. The burglary had been committed on the preceding night and the stolen goods had been hidden. The statement of the mother had no connection whatever with the burglary and could not be said in any manner to be associated with it. It was simply an utterance on her part relative to a past transaction and constituted no part of the res gestae. Elder v. State, 69 Ark. 648, and Spivey v. State, 114 Ark. 267.

The mother of the defendant was permitted to testify that her son was at home on the night the burglary was committed and to give in full her reason for recollecting that he was there on that night. This was as far as she was entitled to go, and the trial court committed no error in refusing the excluded testimony just referred to.

For the error in refusing to tell the jury that the witness, Bill Woods, was an accomplice and charge the jury on an accomplice’s testimony in the manner provided by the statute, the judgment must be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Wood v. State.
    Opinion delivered September 26, 1921.
    Criminal law — harmless error. — In a prosecution for murder, defendant’s counsel- in argument criticised the State for failure to produce the overalls of the deceased worn by him when shot, claiming that if produced they would show powder burns, whereupon the prosecuting attorney produced a pair of overalls and exhibited them to the jury. Upon objection by the defendant’s attorney, the court ordered the overalls removed, which was done. Held, not prejudicial.
    Appeal from Hempstead Circuit Court; George R. Haynie, Judge;
    affirmed.

      R. P. Hamby and Steve Garrigan, for appellant.
    It was manifest error for the plaintiff to introduce the overalls, which had not been identified, during the closing argument. 3 Wigmore on Evidence, Sec. 1878; 1 Nott & M. C. 153; 2 N. C. Law Rep. 238; 4 S. & R. 480-482; 16 Corpus Juris, 619.

      The error was prejudicial and the case should he reversed.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.
    There was no error committed by the defendant in placing the overalls, which had not been identified, before the jury during the closing argument, but if it was error, it was invited error. 129' Ark. 18; 93 Ark. 66; 104 Ark. 528; 112 Ark. 267; 122 Ark. 509; 12 Cyc. 582; 61 Ark. 157.
   Smith, J.

Appellant was indicted for killing Tom Noland, and upon his trial was convicted of voluntary manslaughter, and from the judgment of the court sentencing him to the peniteniary for a period of three years and six months has prosecuted this appeal.

The parties had disagreed about the settlement of an account between them. The State contended that appellant invited Noland to come to the mill yard, where the timber had been stacked, over which the dispute had arisen, to remeasure it. That, after appellant and No-land had met at the mill yard, appellant provoked a difficulty with Noland, and shot him when no demonstration of any kind was being made against appellant, and while the parties were standing eight or ten feet apart.

Appellant contends that he went to the mill by agreement to recheck the timber in dispute. That, after he had gone with Noland to the place where the timber had been piled, they found that part of it had been removed, and that it could not be rechecked. That Noland became angry, drew his knife and opened it, and grabbed appellant in the' collar with his left hand and attempted to cut appellant with the knife, but appellant broke loose from Noland’s hold, and pulled his pistol, and shot No-land in his self-defense.

It is recited in the 'bill of exceptions “that during the closing argument of Hon. Steve Carrigan, one of the attorneys for the defendant, he argued to the jury that if the overalls of the deceased, worn at the time he was shot, had been introduced in evidence, they would have shown powder-burn where the bullet went through them, and said, 'Why didn’t they introduce them in evidence?’ During the course of the argument of the Hon. O. A. Graves, who concluded the argument for. the State, he referred to the argument of Mr. Carrigan with regard to the overalls, and as to whether they would show powder-burn. At this instant the prosecuting attorney unwrapped a bundle and removed therefrom a pair of ■ overalls and walked around behind Mr. Graves and hung the overalls on the back of a chair in the presence and in front of the jury, but neither he nor Mr. Graves referred to the overalls hanging on the chair. Immediately the Hon. Steve Carrigan, one of the attorneys for defendant, arose and objected to said overalls being brought in, for the reason they had not been identified as being the overalls worn by deceased at the time he was shot, and requested the court to order said overalls removed from the courtroom, and to instruct the jury not to consider the same. Thereupon the court ordered the prosecuting attorney to remove the overalls from the presence of the jury, which he did. ’ ’

No testimony had been offered by either side concerning the overalls, and they had not been offered in evidence, and the first reference made to the overalls appeared in Mr. Carrigan’s argument.

It is earnestly insisted that the acts of the prosecuting attorney in producing in court a pair of overalls and exhibiting them to the jury constituted error so prejudicial that "nothing the court could have said or done at the time could shut out from the jury’s view or wipe out from their minds the impression made'by what they had seen with their own eyes.”

In answer to this insistence it is said on behalf of the State that, if error was committed, it was invited by the conduct of appellant’s counsel in making the afirma-’ tive statement set out above concerning the condition of the overalls when the overalls had not been offered in evidence.

But, without deciding that question, we dispose of the assignment of error by saying that the action of the prosecuting attorney does not call for the reversal of the judgment. The overalls were not admissible in evidence because they had not been identified and had not been offered in evidence. This was the objection made by counsel for appellant, and that objection was sustained. The court ordered the prosecuting attorney to remove the overalls from the presence of the jury; and this he did.

Other exceptions were saved at the trial; but they are not discussed in the brief, and do not appear to be of sufficient importance to require discussion. Judgment affirmed.


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    Benson v. State.
    Opinion delivered September 26, 1921.
    1. Criminal law — evidence of authorship of unsigned letter.— It was not error to refuse to permit defendant to pursue his inquiry as to the authorship of an unsigned letter, giving the information to the officers about the location of a still on defendant’s farm, as the letter had performed its function in enabling the officers to locate the still, and it was immaterial who wrote it.
    2. Witness — placing under the rule. — Whether any witness or all the witnesses shall be put under the rule is addressed to the sound discretion of the trial court.
    3. Criminal law — evidence illegally procured. — The fact that evidence was obtained by means of a wrongful search of de- . fendant’s premises without a search warrant does not render it inadmissible.
    4. Criminal .law — instruction—general objection. — A general objection ' to an instruction is insufficient to raise the objection that it assumes the existence of a still on defendant’s premises, where the purpose of the instruction was, not to tell the jury what a still wasi but to declare what connection one must have with a still illegally operated to make him a -party to the crime thus being operated.

      ■5. Criminal law- — instruction—weight of evidence.— An instruction that the jury, in determining the guilt or innocence of the defendant, might consider certain enumerated facts, if they so found, together with all the other facts and circumstances, if any, proved, and if upon the whole case they believe him guilty, they should convict him, held, not objectionable as being upon the weight of the evidence.
    6. Criminal law- — admonition to jury.— An instruction urging the jury to get together, and to listen to each other’s opinions, held, not objectionable.
    Appeal from Polk Circuit Court; James 8. Steel, Judge;
    affirmed.

      Norwood & Alley, for appellant.
    The testimony introduced was not sufficient to justify a conviction. Even if there was an indictment for conspiracy, and Briscoe was shown to have been connected with the offense, it could not he used against the defendant until there was evidence first showing the conspiracy between them. 77 Ark. 444; 78 Ark. 284; 95 Ark. 460; 87 Ark. 34.
    The court erred in admitting the evidence of Tis-dale, Hazel and Earl Tisdale, as to what was found on the premises of defendant,- as they had no warrant, and the search and seizure was unlawful, and any evidence so obtained was unlawfully obtained and not admissible. Amendment No. 4 to Constitution of U. S.; 270 Fed. 578; 251 IT. S. 385; 232 U. S. 383; 233 U. S. 481; 252 Fed. 414.
    The court erred in not allowing defendant to inquire of the witness, Tisdale, who wrote the unsigned letter, giving diagram and information leading to his arrest.
    The court erred in instructing the jury as to the weight of the evidence. 63 Ark. 457. Instructions must not assume facts which are to be determined by the jury. 58 Ark. 504; 71 Ark. 38; 48 Ark. 396.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hamvmoch, for appellee.
    1. The evidence is legally sufficient to justify a conviction.

      2. The court did not commit error in allowing the Witness, Hazel, to testify relative to finding a cooling trough and piece of piping, used for a worm to a still, near a path leading from the home of defendant to the home of Briscoe. No objection being’ made to this testimony at the time by defendant, an objection, made for the first time on appeal, will be unavailing. 123 Ark. 66.
    3. The trial court did not err in admitting the evidence of the Tisdales and Hazel, witnesses for the State, as to what they found on the premises of the appellant. 1 G-reenleaf on Ev. § 254a; 157 Mass. 519, 32 N. E. 910; 165 Mass. 11, 42 N. E. 329; 166 Mass. 370, 44 N. E. 503; 192 U. S. 585; 119 U. S. 340, 30 L. Ed. 421, 7 Sup. Ct. Rep. 225; 127 U. S. 700, 32 L. Ed. 283, 8 Sup. Ct. Rep. 1204.
    4. There was no error in the court’s refusal to allow defendant to inquire of the witness, Tisdale, who wrote the unsigned letter giving diagram and information leading to defendant’s arrest.
    5. The court did not err in instructing the jury as to the weight of the evidence.
   Smith, J.

Appellant was convicted of making intoxicating liquors, and has appealed. He strongly insists that the testimony is insufficient to support the verdict; that the court erred in admitting testimony and in instructing the jury and in permitting a witness' named Tisdale to remain in the courtroom during the progress of the trial when other witnesses had been put under the rule.

Testimony tending to support the verdict was offered to the following effect: J. T. Tisdale, a Federal prohibition enforcement officer, received information that a still was being operated. He applied to, and received from, the sheriff of the county a diagram of appellant’s premises, as Tisdale was not familiar with the roads in the section of the county where the still was supposed to be located. Accompanying this diagram was a letter of information and directions, which was not signed. Tis-dale went to appellant’s borne, and found appellant there with his wife. Tisdale was accompanied by his son and by one Hazel, a constable of the county. These officers searched, appellant’s house, and found a quart fruit jar about half .or two-thirds full of moonshine whiskey. Upon further search several jars, jugs and bottles containing small quantities of whiskey were found, and still other receptacles were found which were redolent of whiskey. Before this search was made, appellant had stated that there was no whiskey in his house. The officers testified that about one hundred and twenty-five yards from appellant’s residence and on his farm they found a cave which contained a still or where a still had been. The place was afire and had evidently been burning for some hours. They found there six barrels of mash, some of the barrels full and others which had been burned were only partly full. The officers took appellant and his wife to the still and asked what it meant. Appellant’s wife, in appellant’s presence, suggested that the still had been placed there by some enemy of her husband, because he was, as she expressed it, the “law,” meaning thereby that her husband was the justice of the peace for that township. She made the same suggestion in regard to the whiskey in her house. Appellant’s explanation of the presence of the whiskey in Ms home was that a doctor had prescribed and furnished this whiskey for the use of his wife.

The field between appellant’s house and the still had been freshly plowed, and there were tracks of a man and woman to and from the still and appellant’s house, and there was a well-beaten path from appellant’s back gate to the distillery. There were fresh wagon tracks from appellant’s barn gate to the still, and appellant admitted he had made these tracks doing some hauling the day before.

The .officers also observed that a sweetgum bush had been cut about four feet from the distillery walls. They also saw in appellant’s smokehouse three one-gallon jugs, each containing a little whiskey, and these jugs each contained a stopper made from a sweetgum hush of a size corresponding to the piece that was cut out' of the hush near the distillery.

Tisdale testified that,- as a prohibition enforcement officer, he had raided or captured about five hundred stills, and was familiar with the manufacture of whiskey, and that the mash or beer found at appellant’s place was intoxicating and ready to run. The officers further testified that some of the mash or beer that was found at the still had been boiled off or run through the still.

Hazel, the constable, testified that he found, between the homes of appellant and one Briscoe, which were about half-a-mile apart, a cooling trough and pipe bent for a worm for a still, and that a trail led from appellant’s home to Briscoe’s house. The trough and piping were found about fifty or seventy-five yards from this páth and about half a mile from appellant’s house.

Objections were made to the admission of most of this testimony. But we think it was all competent, and that it established the existence of a partly dismantled still, and we think the jury was warranted in drawing the inference that whiskey had been manufactured at this still, and that appellant was a party to the operation of the still. It may be further added that Briscoe was the stepson and tenant of appellant.

Appellant offered the explanation that the excavation in the side of the hill — which the officers designate as a still — had been made while he was prospecting for ore, and he offered testimony tending to show that no whiskey had been made bn his place, and that, if any had been made, it had been done without his knowledge or consent. The verdict of the jury reflects the fact, however, that this testimony was not credited by the jury.

Appellant was not permitted to pursue his inquiry as to the authorship of the unsigned letter giving information to the officers about the location of the still. He excepted to the ruling of the court on the ground that, if he had been permitted to pursue the inquiry as to the authorship of the letter, he might have ascertained who his enemies were. No error was committed in this respect, as the only purpose of the letter was to enable its possessor to locate the premises. It performed that function, and it was immaterial who wrote it.

Exceptions were saved to the refusal of the court to put the witness, Tisdale, under the rule along with the other witnesses.

In the case of Oakes v. State, 135 Ark. 221, 229, one Claude Duty, an attorney, had been specially employed to aid in the prosecution of the case then on trial. He was not placed under the rule as the other witnesses had been, and objection was made to his testimony on that account. We there disposed of the question by saying: “The question as to whether any witness, or all the witnesses, shall be put under the rule is one that addresses itself to the sound discretion of the court, and that discretion was not abused in permitting Duty to testify. Kirby’s Digest, § 3142; Vance v. State, 70 Ark. 272; Hlass v. Fulford, 77 Ark. 603; St. L., 1. M. & S. Ry. Co. v. Pate, 90 Ark. 135.”

Tisdale made the search without a warrant, or other process, from any court specially authorizing him so to do. It is insisted, therefore, that, as the search was illegally made, any evidence of guilt thus discovered was inadmissible in evidence. The authorities are against appellant on this proposition. Without inquiring or deciding what right Tisdale had to search appellant’s premises, it suffices to say that the evidence of appellant’s guilt thus discovered is not rendered inadmissible because Tisdale may have been a trespasser.

At page 2955 of volume 3 of Wigmore on Evidence, in the chapter on “Rules of Extrinsic Policy,” Professor Wigmore says: “For these reasons it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned; it is merely ignored.” Starchman v. State, 62 Ark. 238. See, also, 8 R. C. L., p. 196; 24 R. C. L., § 22 of the article on Search and Seizure; 10 R. C. L., § 97 of the article on Evidence, and cases cited in the notes. See, also, numerous cases cited in the brief of the Attorney General.

Among other instructions given by the court was one numbered 2, which reads as follows:

“It is not necessary that you should find that the defendant was the owner of the still, or that he was receiving any pay for his services. It is sufficient if you find beyond a reasonable doubt that the defendant aided, abetted, encouraged or advised the manufacture of intoxicating liquors, or being present was ready and consenting to aid and abet in its manufacture, or was interested in its manufacture.”

Only a general objection was made to this instruction, and it is now specifically objected that the instruction assumes that there was a still. We think the objection comes too late. It was not the purpose of this instruction to tell the jury what constituted a still, but its purpose was to declare as a matter of law what connection one must have with a still being illegally operated to make him a party to the crime thus being committed. The general objection was not, therefore, sufficient to raise the question now presented. Miller v. Fort Smith Light & Traction Co., 136 Ark. 272.

After having had the case under consideration for some time the jury returned into court for further instructions, whereupon the court orally charged the jury in part as follows:

“In determining the guilt or innocence of the defendant, the jury has a right to take into consideration the fact that moonshine whiskey was found; the fact that a still was found near his home, if they so found; the fact that a path, led to the same, if they so found; the fact that containers, containing small amounts of whiskey, were found in his possession, if they so found, and that the same was upon his enclosure, if they so find; together with all other facts and circumstances, if any, proved. And if, upon the whole case, you believe him guilty, you will convict him.”

A general objection was made to the instruction at the time, and it is now insisted that it was erroneous as being a charge on the sufficiency of the evidence.

It will be observed that all the facts stated are recited hypothetically except the fact that moonshine whiskey was found (a fact which was not denied); but the court did not tell the jury that the facts there mentioned were sufficient, if true, to warrant a conviction. Nor did the court limit the consideration of the jury to those facts alone. On the contrary, the court told the jury to consider all the facts and circumstances proved in the case and to thus make up their verdict.

A very similar contention was disposed of by this court in the case of Hogue v. State, 93 Ark. 316, where it was said: “The practice of framing separate instructions on distinct circumstances, and thus, as it is said, singling them out, is not commendable, and it has been held by this court in several decisions that it is not error to refuse such instructions. Carpenter v. State, 62 Ark. 286; Ince w. State, 77 Ark. 418. But the giving of such an instruction is not prejudicial error where the court in the whole charge directs the jury to consider all the facts and circumstances proved in the case, and especially where, as in this case, the court instructs that ‘the facts and circumtsances in evidence shall be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of defendant’s innocence.”

It is finally insisted that in the oral charge to the jury the court erred in its admonition to the jury to “get together” on a verdict. The language complained of reads as follows: “Now, I want to say this: I have not inquired of you how you stand, or anything about it; but this is an important case to Mr. Benson, and an important case to your county, and you gentlemen have absolutely no interest in the matter, and you do not know anything about the matter; and I want you to get together. Some times we find a juryman, or anybody else in life, that says a horse is sixteen feet high, and they want to stand by it, right or wrong. It shows good judgment for a juryman to listen to his fellow-jurors in giving their opinion.” The insistence is that the effect of the court’s admonition was to advise the individual jurors to make such sacrifice of their individual opinions as might be necessary to arrive at a verdict.

The court, of course, can not give any such direction. But we do not think the instruction susceptible of that construction. In the case of St. L., I. M. & S. Ry. Co. v. Garter, 111 Ark. 272, 282, we said: “The rule is well settled in this State that the trial court may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement. The trial judge should not, by threat or entreaty, attempt to influence the jury to reach a verdict. He should not, by word or act, intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their conscience. He may, however, warn them not to be stubborn and to lay aside all pride of opinion and to consult with each other and give due regard.and weight to the opinion of their fellow-jurors.” See, also, Mallory v. State, 141 Ark. 496, 500, 503; Reed v. Rogers, 134 Ark. 528, 534; Whitley v. State, 114 Ark. 243; Jackson v. State, 94 Ark. 169, 174, 175; Southern Ins. Co. v. White, 58 Ark. 277, 282.

We think the oral instruction did not transcend the trial court’s right and duty as thus defined.

No error appearing, the judgment is affirmed.


text:
    Avey v. State.
    Opinion delivered September 26, 1921.
    1. Criminal law — change of venue — discretion of court.— Upon an application for a change of venue in a criminal case upon the ground that the minds of the inhabitants of the county are so prejudiced against defendant that a fair and impartial trial cannot be had therein, it was not an abuse of discretion to deny the application where the affiants were advised as to the state of public sentiment in only 8 of the 24 townships in the county.
    2. Witness — cross-examination—impeachment.—While a witness who is cross-examined as to a collateral matter cannot be contradicted, if a witness for the defense in a murder case denied any illicit relationship with the defendant, and such relationship, if established, would tend to prove a motive for the killing, such witness may be contradicted, as proof of a motive is not a collateral matter.
    Appeal from Stone Circuit Court; Dene E. Coleman, Judge;
    affirmed.

      E. G. Mitchell, Earl C. Casey, Samuel M. Casey, for appellant.
    Appellant’s petition for change of venue; supported by witnesses who testified as to tbe state of feeling in regard to Mm, coming from parties wbo showed a knowledge of such feeling existing in at least three-fourths of the county, should have been granted. 98 Ark. 189 ; 121 Ark. 390; 95 Ark.; 83 Ark. 36; 80 Ark. 360.
    The purpose of examining the supporting witnesses is not to determine whether or not the accused can obtain a fair trial but to ascertain the credibility of the supporting witnesses. 120 Ark. 302.
    Because the witnesses could not remember the names of all the persons to whom they talked about the case does not detract from the value of their testimony. 98 Ark. 139.
    It is not necessary to show beyond a reasonable doubt or even by a preponderance of the evidence that a fair and impartial trial cannot be had, to obtain a change of venue, ibut same should ibe granted if the showing is such as to raise a reasonable apprehension that the defendant cannot receive a fair trial. 16 C. J. p. 215; 262 Ill. 411,104 N. E. 804, Ann. Cas. 1915 A. P. 1171.
    It was error for the court to give instruction No. 19. Also to allow the impeachment of the witness Vada Avey and the defendant himself upon a collateral matter, C. & M. Digest, § 4187. A witness cannot he impeached 'by proof of specific acts of immorality, nor as to immaterial collateral matters. 53 Ark. 387; 91 Id. 555; 76 Id. 366; 120 Id. 458; 100 Id. 321; 132 Id. 522; 99 Id. 604; 101 Id. 147; Powell v. State, ms. op.
    Bad character of the accused cannot he resorted to from which to infer guilt. 188 Ark. 261.
    As to the test of whether a fact inquired into on cross examination is collateral, see 99 Ark. 616.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The refusal of a motion for a change of venue, after hearing of testimony hearing on the credibility of the persons making supporting affidavit, is in the sound discretion of the court. 85 Ark. 536; 121 Ark. 302. The subscribing witnesses must have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward defendant. Here the witnesses only showed such knowledge in eight of the twenty-four townships in the county.
    Unless the trial court abuses its discretion in overruling motion for change of venue, the order is conclusive on appeal. 95 Ark. 239; 98 Ark. 139; 100 Ark. 301.
    Testimony of the immoral conduct of the defendant and Yada Avey was not introduced for the purpose of impeaching them but to show a motive for the crime, and is not a collateral issue. 144 Fed. 14, 18, 75 C. C. A. 172, 7 Ann. Cas. 62.
    Motive is an inferential fact, and may be inferred, not merely from the attendant and surrounding circumstances, .but, in conjunction with these, all previous occurrences having reference to and connected with the commission of the offense. 86 Pac. 43, 12 Idaho 424; 4 Sou. 686, 85 Ala. 7, 7 Am. St. Rep. 17; 71 Ark. 112.
   Smith, J.

At the trial from which this appeal comes appellant was convicted of the crime of murder in the first degree for killing one Garfield Norman. He was given a life sentence in the penitentiary..

Two points are insisted upon for the reversal of the judgment of the court below. The first is that the court erred in refusing appellant a change of venue. The second is that the court erred in admitting certain testimony, and that the error was accentuated by giving an instruction covering- this incompetent testimony.

The affidavit for the change of venue was made by certain residents of Stone County, the county in which the killing occurred. To ascertain the credibility of these affiants, they were examined in open court. At the conclusion of this hearing the court announced its finding and decision as follows: ‘ ‘ Gentlemen, the law provides that when .a person charged with a crime files the proper affidavit, complying with the statute, and setting out that the minds of the inhabitants of the county, in which he is charged with the crime, are so prejudiced against him that he can not obtain a fair and impartial trial, and this affidavit of two credible witnesses, that a change of venue must be granted.

“Now, the Supreme Court, in a number of cases, has defined what credible witnesses are and among these definitions, or among the holdings of the. Supreme Court, they say that the witness should have a sufficient knowledge of the facts to which he has made the affidavit to be a credible witness.

“Now, the witness Poster and the witness Roberts both show that they haven’t sufficient information upon which to base the facts, and the further fact that Mr. Roberts stated that he didn’t intend to say that this defendant couldn’t get a fair and impartial trial. Mr. Foster didn’t seem to understand the nature of the petition which he has signed, and he wouldn’t say that the minds of the inhabitants of Stone County were prejudiced against the defendant. The witness Haley, however, has testified that in his community, that is, in Chalybeate Township, in the southeastern part of the county, such prejudice does exist. He states, however, that he hasn’t been anywhere except at his own home town and to town and to mill. Now, according to my understanding, as to that section of the county, he would be a credible witness; however, as to the county at large and the feeling in the entire county he has shown no knowledge whatever. The witness Johnson, while he made an additional affidavit, shows on examination that the affidavit was prepared by one of the attorneys in the case, and then submitted to him, and he signed it. He shows that he has been nowhere but here and in Sylamore Township. The witness, Lamp, testifies to conditions on Northwest Township and Sylamore and Mountain View, the places where he has been. The witness G-ower testifies that he has not been outside of Mountain View, and that he hasn’t heard any .one say that the defendant, Floyd Avey, can not get a fair and impartial trial in this county. The witness Herrington has heard the matter discussed in Sylamore and Northwest townships and seems to have heard very few people talk about it. The witness McGee says that the sentiment is usually against the defendant around Fox and Rushing where he has been. Now, there is no question, I think, of the witness Conditt in and around the three townships down there. Now, none of the witnesses in this case have shown a general knowledge of the conditions all over the county, and taking them all together, they have shown information — taking their affidavits and statements as true — they have shown more or less general knowledge of the conditions and of the prejudice existing in, I believe, all together they have shown the conditions in eight townships or communities in the county.

“I don’t feel that unless a more general knowledge of the conditions existing in the connty is shown — there being twenty-fonr townships in the county — that I would be authorized to grant this motion for a change of venue, and I would have to overrule it. ’ ’

It appears from the court’s statement that he was properly advised as to his duty and as to appellant’s rights in the premises. The court limited the inquiry to an ascertainment of the credibility of the affiants as that term has been defined in frequent decisions of this court. He found the fact to be that these affiants, combined, were advised as to the state of public sentiment in only eight of the twenty-four townships in the county, and that, .with information thus limited, they were not credible persons within the meaning of the statute when they made an affidavit embracing and including the entire county. We can not say that the court abused the discretion it was required to exercise in passing upon this question, nor can we say that he so far misapplied the testimony that his judgment must be reversed on that account. Speer v. State, 130 Ark. 457; Hopson v. State, 121 Ark. 87; Dewein v. State, 120 Ark. 302.

' It was the theory of the State that immoral relations existed between appellant and one Yada Avey, a sixteen-year-old woman who had but recently married appellant’s brother, a young man' eighteen years of age, and that John Stevens, in whose home Yada Avey had been reared, sought to break up this illicit relation. Vada Avey had been living at appellant’s home, working for his wife, and it was the theory of the State that he induced his younger brother to marry her.

The- testimony on the part of the prosecution tended to show that appellant and Yada Avey left home in the morning, and remained together until about 3 o’clock in the afternoon, at which time the killing occurred, and that they had traveled only a few miles during this time. Appellant and Mrs. Avey were riding double on a,horse, appellant being in front and Mrs, Avey behind, While thus traveling, they met John Stevens and his son Garland, who were ■ riding horseback and traveling in company with Roy and Zed Satterfield and Garfield Norman. When the parties met, Stevens said to Yada Avey, “Get down, I want to talk to you a minute.” She answered, “No, Uncle John, I don’t want to get down.” But Stevens was insistent, and she dismounted. Appellant also dismounted. Thereafter the testimony is in sharpest conflict. According to the testimony on behalf of the State, appellant shot Stevens without any provocation except that he had been intercepted with Yada Avey, and an attempt was being made to induce her to leave him; and, further, that, after shooting Stevens, appellant turned on Norman, who begged for his life and assured' appellant that he was his friend, but Norman was also killed. So far as the killing of Norman is concerned, the State’s theory is that this was done to prevent Norman from being a witness against appellant for killing Stevens.

Yada Avey gave testimony favorable to appellant and tending to show that the killings were done in self-defense. Upon her cross-examination, she was asked if she was not appellant’s mistress. This she denied. She was then asked if she had not slept with appellant at the home of Mrs. Wallace on a certain night. This she also denied. Thereafter the State called Mrs. Wallace and a Mrs. Brewer and proved by each of them, over appellant’s objection, that they had seen appellant and Yada Avey in his bed together at Mrs. Wallace’s house on the occasion about which Yada Avey had been asked. In instructing the jury the court referred to this testimony, and told the jury that their consideration of it should be limited to the determination of the existence of a motive, and that, if it did not tend to show the existence of a motive, it would not be proper to be considered for any purpose.

It is the insistence of learned counsel for appellant that the relationship of appellant with Yada Avey was a collateral matter, and that, if it was proper to ask her at all concerning this relationship on her cross-examination to impeach her as a witness, her answer, whether true or false, was conclusive of the question so far as that trial was concerned.

This would he true if the relationship between Vada Avey and appellant was in fact a collateral matter, and the only purpose of the inquiry had been to. impeach her character as a witness. But there was a deeper purpose, to-wit, the proof of a motive for the killing, and the proof of motive is not a collateral matter. McCain v. State, 129 Ark. 75.'

This court has many times held that the State is not required to prove a motive to establish the guilt of one accused of homicide; but the court has also held that, as the absence of a motive is a circumstance tending to show innocence, the State may show the existence of a motive for taking the life of a decedent to be considered with other facts and circumstances in determining the guilt or innocence of the accused. Hogue v. State, 92 Ark. 323; Walker v. State, 138 Ark. 517, 528, 529; Scott v. State, 109 Ark. 391; Ince v. State, 77 Ark. 418; Stokes v. State, 71 Ark. 112, 116, 117.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Briscoe v. State.
    Opinion delivered September 26, 1921.
    1. Criminal law — evidence illegally procured.— The fact that evidence was obtained by means of a wrongful search of defendant’s premises without a search warrant does not render it inadmissible.
    2. Witnesses — placing under the rule. — Whether witnesses shall be placed under the rule is a matter addressed to the sound discretion of the court.
    3. Criminal law — evidence.— It was error to permit an officer in a prosecution for manufacturing intoxicating liquors, after testifying that he found a dismantled still on defendant’s premises, to testify further that it had been his experience that persons engaged in illicit distilling generally dismantle their stills after a run had been completed.

      Appeal from Polk Circuit Court; James 8. Steel, Judge;
    reversed.

      Norwood & Alley, for appellant.
    It being admitted that the officers, Tisdale and Hazel, had no warrant authorizing them to search the premises of the appellant and Benson, it was error to permit them to testify as to what they found as the result of such illegal search, and to admit evidence of anything found at Benson’s or of anything he said. Amendment No. 4, Constitution, TJ. S.; 116 U. S. 616; Id. 746; 232 Id. 652; Id. 383; 270 Fed. 578; 233 Id. 481; 263 Id, 113.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammoch, Assistants, for appellee.
    1. Exceptions saved to the giving of instructions without first having' objected thereto and sustained an adverse ruling by the court on the objection, afford no ground for review of the instructions on appeal. 129 Ark. 316; 96 Ark. 52. An objection that an instruction assumed a fact or facts as proved, and is misleading for that reason, will not be considered on appeal unless specific objection was made at the time the instruction was given. Ill Ark. 196; 136 Id. 272.
    2. Since the defendant testified in his own behalf, it was not reversible error to instruct the jury that he had that right and that they should give his testimony the same fair and impartial consideration they would give to the testimony of other witnesses, but that in weighing his testimony they should consider that he was the defendant and interested in the result of their verdict; that they were not blindly to accept it as true, but should consider whether it was true and made in good faith, etc. 58 Ark. 362.
    3. The instructions given are to be considered as a whole and as declaring the law of the case. 123 Ark. 583; 109 Ark. 378.

      .4. There was no abuse of discretion in allowing the witnesses, Tisdale and Hazel, to remain in the court room after the witness had been put under the rule. 90 Ark. 135; 93 Id. 141; C. & M. Digest, §4191.
    ' 5. The testimony of witnesses Tisdale and Hazel was not rendered incompetent or inadmissible, even if their search was made without a warrant. 62 Ark. 538; 1 Greenleaf on Ev. §254a; 192 U. S. 585; 157 Mass. 519, 32 N. E. 910; 165 Mass. 11, 42 N. E. 329; 166 Mass. 370; 44 N. E. 503; 162 U. S. 585; 119 U. S. 436, 3 L. Ed. 421, 7 Sup. Ct. Rep. 226; 127 IT. S. 700, 32 L. Ed. 283, 8 Sup. Ct. Rep. 1204.
    6. An assignment of error based on the exclusion of testimony will not be considered on appeal where there was no offer to show what the witness would have testified. 188 Ark. 562; 87 Id. 123; 133 Ark. 599.
    7. It was within the discretion of the court as to whether or not the jury would be,permitted to view the premises, and the refusal of such permission was not error. 114 Ark. 243; 26 R. C. L. 1017.
   Humphreys, J.

This is an appeal from a judgment of conviction and sentence to the penitentiary for one year .of appellant, for manufacturing and being interested in the manufacture of ardent, vinous, malt, fermented, intoxicating, spirituous, and alcoholic liquor. Appellant was convicted upon circumstantial evidence J. T. Tisdale, a United States Government prohibition enforcement officer, being informed that appellant was interested in operating a still in Polk County, met appellant .on the highway, near appellant’s home, and searched his person, and found a pint of moonshine whiskey in his pocket, then proceeded to search appellant’s home, and found nearly a gallon of moonshine' liquor, also several pint bottles on a table, containing small amounts of it, also two sacks of sprouted or malt-corn in the smokehouse, also a number of fruit jars containing small amounts of whiskey, also a small joint of copper piping, for use as a worm in the manufacture of whiskey, in the trunk of a Mr. "Williams, a joint cropper of appellant; also found, some half mile from appellant’s house, in the woods, a pipe bent in the shape of an “S” which had been used as a worm for a still, together with a cooling trough, which had been recently deposited there; also found, in a field at the Benson home, near appellant’s, which was" cultivated by appellant and Williams, a pit or cave covered with rib poles and shingles, which contained a furnace and pipe and six barrels, four large ones, and two small ones, which barrels contained mash or beer, some of which had run out of the barrels on to the ground, and was a composition of distilled mash or beer. At the time the cave was discovered, the roof and entire contents thereof were on fire, and it was so hot that the revenue officer could not secure a sample of the mash or beer. Mrs. Benson was the mother of appellant, and, at the Benson home, containers were found with a small amount of moonshine whiskey in them. A distillery set or furnace was also found some fifty yards below appellant’s house, which had been out of use for some time.

These and other circumstances discovered during the search of appellant’s person and the homes of appellant and Benson were detailed in the trial of appellant by Tisdale and his assistants in the search. The search was made without a search warrant. In the course of the trial, J. T. Tisdale, the Government prohibition enforcement officer, was recalled for further examination and the record reflects the following occurrence:

“It has been my (Tisdale’s') experience when I captured moonshine stills if they are not in operation—
Mr. Alley: “We object to that.
Court: “Go ahead.”
Exceptions saved and noted.
“Usually when they get through with these mountain distilleries, they dismantle the still, and the worm, cap and boiler, if there is any, are taken away and hid; and nine ont of ten instances it is that way, and we have to make a considerable search away from the still to find them.5 ’
Mr. Alley: I object to that evidence and move to exclude it. It is nothing more than an argument in the case.
Court: “He is just giving his experience with other stills. It is not an argument. I think that it is competent to show the way these wildcat stills are generally run. ’ ’

Exceptions saved and noted,

J. T. Tisdale and D. A. Hazel, a deputy sheriff who assisted Tisdale in making the search, were permitted to remain in the court room during the trial, over the objection of appellant, to which ruling of the court an exception was preserved. Appellant also preserved an exception to the ruling of the court over his objection permitting the witnesses who made the search to detail the facts and circumstances discovered during said search. Other exceptions preserved by appellant, relating to the sufficiency of the evidence and to instructions given and refused, appear in the record, but we deem it unnecessary to state them, as the case must be reversed and remanded for a new trial because incompetent evidence prejudicial, to appellant was admitted. ■

Appellant contends that the court committed reversible error in permitting J. T. Tisdale and his associates in the search to testify to facts and circumstances discovered during the search of appellant’s person, his residence and the residence of W. C. Benson. The court ruled adversely to the contention of appellant on this point in the case of Benson v. State, ante p. 633.

Again, appellant contends that the court committed reversible error in permitting J. T. Tisdale and D. A. Hazel to remain in the court room during the trial when all other witnesses had been put under the rule and ex-eluded from the room. This point was also decided adversely to the contention of appellant in the case of Benson v. State, supra.

Appellant also contends that the court erred in permitting witness Tisdale to testify what had been his experience in capturing moonshine stills and the habits of moonshiners generally in dismantling stills when the run had been completed, and hiding the worm, cap, boiler and other parts at a distance from the still. The admission of these statements was, in effect, allowing the witness to bolster up his own evidence and calculated to give it undue effect, and, as he had testified to the circumstances and facts tending to establish the guilt of appellant, was necessarily prejudicial to him.

For the error indicated, the judgment will be reversed and the cause remanded for a new trial.


author: Huhphbeys, J.

text:
    McCool v. State.
    Opinion delivered September 26, 1921.
    1. Embezzlement — failure of officer to pay oyer funds.— An indictment which alleges a wilful failure of a county treasurer to pay over to his successor public funds of the county which came into his hands as such treasurer sufficiently alleges a wilful failure to pay over the county funds.
    2. Embezzlement — failure to pay oyer funds.— An indictment of a county treasurer for wilful failure to pay over county funds to his successor in office is defective in failing to allege that he had such funds when his term expired.
    Appeal from G-rant Circuit Court; W. H. Evans, Judge;
    reversed.

      D. E. Waddell, R. R. Posey and W. D. Brouse, for appellant.
    1. The indictment does not sufficiently describe the, funds. It is not a description “in general terms” as is contemplated by the statute. C. & M. Digest, § 2836; Id. § 2832; Id. § 2835; 60 Ark. 13; 80 Id; 310; 99 Id. 32.

      2. It is defective also in that it fails to allege that the funds were in the care, etc., and 'under the control of the appellant, at the time it is alleged he failed to pay them over. 80 Ark. 310-313; 60 Id. 13.
    3. Instruction 1 given, was erroneous in failing to describe the funds and did not charge the jury that they must find that he had the funds in hand or under his control at the time alleged in the indictment. 63 Ark. 477; 102 Id. 205; Arkansas Shortleaf Lumber Co. v. Wilkinson.

    4.Instruction 3, being a mere copy of the statute, was' abstract and misleading. Cases supra.

    5. It was erroneous to refuse to instruct the jury not to consider testimony as to county court record made subséquent to Jan. 1, 1919. 99 Ark. 32.
    6. It was error to modify the 6th instruction requested by the defendant with reference to the demand, leaving the jury to speculate as to what was a proper demand. 83 Ark. 61; Arkansas Shortleaf Lumber Co. v. Wilkinson,, 149 Ark. 270.
    7. Instruction 17 should have been given as asked. Modifying it so as to let in proof that defendant had in hand or under his control public funds prior to Jan. 1, 1919, was erroneous. 80 Ark. 310.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The indictment follows the statutes and properly alleges all the essentials of the crime. C. & M. Dig. §§ 2832, 2835, 2836. It charges but one offense. No election as to counts required. 50 Ark. 305; 60 Id. 13; 99 Id. 32. It is sufficient in alleging failure to pay over “public funds ’ ’ of Grant County, without alleging the various classes of funds. Statutes and cases supra. The allegation “which had during his administration come to his hands as county treasurer, and which he had not lawfully paid out,” sufficiently avers funds on hand Jan. 1, 1919. 80 Ark. 313.

      2. Instruction 1 given by the court was correct, and clearly presented the issue as to public funds.
    Instruction 3, a copy of the statute, § 2835, C. & M. Dig., was properly given in charge to the jury as a definition of the term “public funds.” It does not come within the principle announced in 63 Ark. 477, cited by appellant.
    There was no error in modifying appellant’s requested instruction 6 with reference to the demand. Demand by the successor in office is not required. Moreover, the duty to pay over without demand is statutory. C. & M. Dig. §§ 1918, 2832. If demand is necessary, that must be made by citation. Id. §§ 1918, 10165 and 10166
   Huhphbeys, J.

Appellant, ex-treasurer of Grant County, was indicted, tried and. convicted in the Grant Circuit Court for wilfully failing, neglecting and refusing to pay over to his successor in office $7,404.04 of the public funds of Grant County, his penalty therefor being assessed at five years’ imprisonment in the State penitentiary. The indictment, omitting the caption and signature, is as follows:

“The grand jury of Grant County, in the name and by the authority of the State of Arkansas, accuse E. E; McCool of the crime of failing to pay over public funds to his successor in office as county treasurer committed as follows, towit: The said E. E. McCool in the county and State aforesaid, on the 1st day of January, A. D. 1919, after having served and been the duly elected and legally qualified and acting county treasurer of Grant County, Arkansas, for three successive terms of office immediately before the said 1st day of January, 1919, and during that time had the care, custody, possession and control of the public funds of said Grant County in said State of Arkansas, and that on the 1st day of Janu ary, 1919, W. D. Mathews, after being legally elected and qualified as the successor in office as county treasurer of che said E. E. McCool and having legal authority to receive from E. E. McCool all public funds belonging to Grant County which had been placed in the hands and possession of the said E. E. McCool as connty treasurer, and after proper demand, that the said E. E. McCool did unlawfully and feloniously fail, neglect and refuse and did wilfully fail, neglect and refuse to pay over to the said W. D. Mathews as his successor in office $7,404.04 of the public funds of Grant County which had during his administration of said office come into his hands and possession as county treasurer, and which he had not lawfully paid out- for the uses and purposes for which they were collected and placed in his hands and possession, but that the said E. E. McCool did unlawfully and felo-niously misappropriate and embezzle the said public funds above mentioned, against the peace and dignity of the State of Arkansas. ’ ’

Appellant demurred to the indictment upon the following grounds:

“First. That the statements of facts alleged in the indictment do not constitute a public offense.
“Second. That if the indictment does charge facts which constitute a public offense, it charges more than one public offense.
“Third. That the indictment does not contain a statement of facts constituting an offense in ordinary and concise language in such manner as to enable a person of common understanding to know what is intended.”

The court overruled the demurrer, holding that only one offense was charged in the indictment, to-wit, wil-fully failing, neglecting and refusing to pay over public funds of Grant County to appellant’s successor in office, and also holding that the indictment properly alleged all the essentials of the crime charged as specified in sections 2832, 2835 and 2836 of Crawford & Moses’ Digest, under which the indictment was drawn. Exceptions were properly saved, and one purpose of this appeal is to challenge the ruling of the court as to the sufficiency of the indictment in charging a wilful failure to pay over public funds to appellant’s successor in office. While the statutes referred to authorize charges of either embezzlement of, or a wilful failure to pay oyer, public funds, the Attorney General concedes that the indictment in question does not attempt to charge embezzlement of public funds, and, after a careful reading of it, we agree with him in this regard. The sole question, therefore, as to the sufficiency of the indictment is whether it contains the neces-' sary essentials to charge a wilful failure or omission to pay over public funds of Grant County to appellant’s successor in office. Appellant contends that the indictment is fatally defective for failing to describe the kind of public funds withheld. A particular description of the kind or denomination, date or number of the funds failed or omitted to be paid over to the successor in office by a retiring officer is not necessary, but a description in general terms is necessary under the provisions of section 2836 of Crawford & Moses’ Digest. It must appear from the description what funds were intended, whether county funds, municipal funds, school funds, etc. The description of the funds in this indictment is insufficient as to all funds except the county funds. We think the designation in the indictment “public funds of Grant County” necessarily means ‘‘county funds,” and is a sufficient classification of that particular fund.

The indictment, however, is fatally defective in another respect. It is not alleged that any county funds were in the possession or under the control of appellant at the time his term of office expired. The gist of the charge under the statute is a wilful failure to pay over public funds under any classification in the possession or under the control of the retiring officer. If the retiring officer had misappropriated the funds before the expiration of his term of office, he should have been indicted for misappropriation or embezzlement of such funds, and not for a failure or omission to pay them over at the expiration of the term of his office. So also, under the statutes made the basis of this indictment, an ex-officer could' not be prosecuted criminally if robbed of the funds or if the funds were innocently lost in some other way. In construing section 2832 of Crawford & Moses’ Digest, upon which this indictment was founded, this court said, in the •case of Davis v. State, 80 Ark. 310, that (quoting the second syllabus), “An indictment of a county treasurer for failure to pay over public funds to his successor in office which alleges that on a certain date he had funds belonging to a school district, and that on a subsequent date when his term expired he failed to pay over such funds to his successor, is defective in failing to state'that he had such funds when his term expired.”

Under the rule announced in that case, the demurrer to this indictment should have been sustained. In this view of the case, it is unnecessary to discuss whether the evidence was sufficient to sustain the verdict or the alleged errors in giving, refusing and modifying’ instructions.

For the error indicated, the judgment is reversed, and the cause remanded with directions to sustain the demurrer to the indictment.


text:
    Famous Store v. Lund-Mauldin Company.
    Opinion delivered September 26, 1921.
    1. Sales — breach op contract.— Where a contract for the sale of goods contemplated payment within 60 days after receipt of the goods, and three installments of the goods were shipped, for which the vendee failed to pay within the required time, being himself in default, he cannot insist upon the shipment by the vendor of the remainder of the goods.
    2. Pleading — amendment to conform to proof.— It was not error to treat the pleading in the count below as amended to conform to proof introduced without objection.
    Appeal from Desha Circuit Court; W. B. Sorrells, Judge;
    affirmed.

      H. II. Hays, for appellant.
    The court erred in refusing to permit defendant to offer in evidence copy of letter to plaintiff, dated July 25th. The court erred in instructing the jury that defendant was not entitled to recover on Ms counter claim, and in directing a verdict thereon. 9 Cyc. 732; 22 Ill. 522; 108 Ala. 50l8; 88 Ark. 422. The court erred in directing a verdict against defendant. 88 Ark. .372; 63 Ark. 94; 77 Ark. 556; 62 Ark. 63; 84 Ark. 57; 89 Ark. 372; 73 Ark. 561; 76 Ark. 520.

      Rogers, Barber & Henry, for appellee.
    The contract was severable. 88 Ark. 491. The defendant could not stand on the contract and insist on further sMpments when it was in default in making payments that were past due under it, at least without tendering the payments. 88 Ark. 422.
   Humphreys, J.

Appellee instituted suit against appellant in the Desha Circuit Court to recover $181.40 for goods, wares and merchandise sold and delivered by it to said appellant. Appellant admitted the indebtedness, but alleged by way of cross-complaint that appellee was indebted to him in the sum of $1,848 by way of damages for the failure to ship all the goods ordered from ap-pellee.

The substance of the cross-complaint is set out in appellant’s abstract, and the allegations therein are:

“That on the first day of March, 1919, N. Dollar, the appellant, ordered from Lund-Mauldin Company, the ap-pellee, three hundred pairs of shoes, particularly described in order No. li and invoice No. 849, attached to the cross-complaint, and marked ‘Exhibits A, B, C,’
“That the appellee, Lund-Mauldin Company, accepted said order and shipped a part thereof on the 8th day of March, 1919, and agreed to ship the balance on or about August 1, 1919, at the option of appellant, N. Dollar.
“That, immediately after the shipment of March 8, 1919, of the shoes described in invoice No. 849 (which shipment was the basis of the original complaint) the Lund-Mauldin Company notified ‘The Famous Store’ that because of the advance in labor and leather they could not make shipment of the balance of the order of March 1, 1919.
“That on the 25th day of July, 1919, the-first day of August, 1919, and repeatedly thereafter, shipment of the balance ,of the order of March 1,1919, was requested and demanded by ‘The Famous Store’ and by N. Dollar.
“That the shoes so ordered, shipment of which was refused, advanced in price $7 per pair between the date of the order and August 1, 1919, and that ‘ The Famous Store’ was forced to go into the open market to purchase shoes of the same kind, character, quality and description at an advance of $7 per pair over the contract price as fixed in the order of March 1.
“That they had sustained damages in the sum of $1,848, and prayed judgment therefor, and their cost.”
The amended reply to the cross-complaint denied each and every allegation contained therein.
The record reflects that the only witness who testified in the case was N. Dollar, the cross-complainant. On direct examination, he testified, in substance, as follows:
“N. Dollar, doing business as the Famous Store, gave to the traveling salesman of the Lund-Mauldin Company, on the first day of March, 1919, an order for 28i8 pairs of shoes of the kind, description, size and price set out in order No. 11, exhibited with his cross-complaint, and found fully set out at pages 11, 12, 13 of the transcript :
“That 36 pairs of these shoes were to be delivered immediately, and 252 pairs were to be shipped on or about August 1.
“That the 36 pairs were shipped March 8, 1919, in one shipment of three boxes, each box containing 12 pairs, and were delivered in three separate installments, one box arriving March 14, one box May 18, and one box June 16.
“That no bill of lading, or other information showing delivery to the carrier, was furnished the appellant by the Lund-Mauldin Company. That he made repeated requests and demands upon the Lund-Mauldin Company for shipment of the 252 pairs, and that such demands began July 25, and extended to August 4 or 5, and the only reason or excuse they gave for their failure to make shipment was the advance in the price of shoes. That the purchase price of the 36 pairs shipped March 8, 1919, was not due until sixty days from the receipt of the whole shipment. That because of the failure of the Lund-Mauldin Company to make delivery of the 252 pairs, the balance of the order, the Famous Store was compelled to go into the open market to purchase shoes of the kind, description and quality ordered from appellee, and that the same were purchased at an advance of $4.50 per pair over the contract price.”

On cross-examination, N. Dollar made the following responses to the following questions:

Q. The three cases for immediate shipment were shipped March 8?
A. Yes, sir; that is what the hill shows.
Q. Attached to your cross-complaint as an exhibit is this invoice (handing witness paper) that shows your goods were shipped when?
A. March 8, 1919.
Q. When was that invoice due?
A. It was due sixty days after receipt of the shoes.
Q. Within sixty days ?
A. Yes, sir.
Q. The first part of your installments that you say you got on March 14, when was that due?
A. The first one?
Q. Yes; when was the first shipment due to be paid for?
A. Within sixty days after I had received the goods.
Q. Yon bad one case in your store about March 14?
A. Yes, sir;.I did.
Q. Now the second shipment, when was that due— sixty days from the date you received it, that would be July 18, would it not?
A. Yes, sir.
Q. The first case you received, according to the express receipts, March 14?
A. Yes, sir.
Q. Sixty days from that day would make it May 14 ?
A. Yes, sir.
Q. That was when the payment for the first shipment was due — sixty days from the day it was received.
A. Yes, sir.
Q. And the second shipment was May 18 — sixty days from that time would be July 18?
A. Yes, sir.
In testifying, N. Dollar offered a copy of a letter which he wrote to appellee on July 25, which is as follows:
“July 25.
“Lund-Mauldin Company, 11th and Washington Ave., St. Louis, Mo.:
“Gentlemen: We know that there is an advance in shoes, and we are desirous of being protected on the shoes that we have under order from your house. We want you to ship these shoes €. O. D. by express at once.
“As we are needing thesé goods at the present timé, trusting that you will give this your immediate attention, we beg to remain, Yours very truly,
“The Famous Store,
“Per...”

The court excluded the letter, to which ruling appellant objected and preserved an exception.

At the conclusion of the evidence, the court peremptorily instructed, over the objection and proper exception of appellant, that appellant was not entitled to recover on his cross-complaint, and directed the jury to return a verdict for appellee upon his complaint, for the assigned reason that the undisputed evidence reflected that appellant first breached the contract by failing to pay for goods he had received within sixty days after receiving same, and, for that reason, was not in a position to demand a shipment of the balance of the goods, and therefore not entitled to damages for the failure of ap-pellee to ship them.

Appellant contends that the court erred in giving the peremptory instruction because, according to his ver-, sion, the contract was not severable, and the evidence was not undisputed that appellee should pay the amount of each shipment within sixty days after received by appellant. "While appellant testified both ways as to when the payment on the shipment of shoes received by him on March 14, May 18, and June 16 became due, when pressed, on cross-examination, he admitted that the payment for the shipment he received on March 14 fell due on May 14, and that payment for the shipment he received on May 18 fell due on July 18. After making such an admission, it does not lie in appellant’s mouth to say the evidence is disputed upon that point, v Appellant also stated in his evidence that his reason for refusing to pay for the first two bills of shoes received by him was because he concluded appellees was not going to carry out his contract according to agreement. Under the rule announced in Harris Lumber Co. v. Wheeler Lumber Co., 88 Ark. 491, the contract in the instant case, as reflected by the evidence, was severable. Under the undisputed evidence in the instant case, as we view it, appellant committed the first breach of the contract and continued to breach it unto the end by failing to pay the first two installments of the purchase money within the proper time after receiving the two shipments of goods, and, being himself in default, was in no position to maintain his cross-complaint. This court said in the case of Harris Lumber Co. v. Wheeler Limber Co., supra, that .(quoting syllabi 3 and 4): “Where a vendee in a contract of sale' wilfully refused to pay an installment of the purchase money when due, the vendor was authorized to rescind the contract. ’ ’

"A vendee who is himself in default in failing to pay an installment of the purchase money can not insist upon performance by the vendor as a condition precedent to his performance.”

Appellant contends that he can not be held to this breach for the reason that it was not pleaded in the answer or reply to the cross-complaint. The evidence as to the breach was introduced by appellee without objection on the part of appellant. It was within the discretion of the court to allow the breach to be pleaded and to treat the pleadings as amended to conform to the evidence. Appellant did not plead surprise at the new issue injected by the evidence and ask for time to meet it, Having acquiesced in the issue and determination thereof, he can not complain for the first time in the Supreme Court.

Appellant contends that the court erred in refusing to admit the letter of July 25 in evidence. The letter was an order to ship out the balance of the goods, and its exclusion could not prejudice appellant, because he was in default in the payment of the purchase money on the orders theretofore received, and was therefore not in a position to insist upon the performance of the contract by the vendor.

No error appearing, the judgment is affirmed.


text:
    Federal Truck & Motors Company v. Tompkins.
    Opinion delivered June 6, 1921.
    Evidence — engrafting paRol warranty on written contract.— Where a complete contract of sale in writing- is unambiguous, and contains no warranty, a warranty cannot be proved by parol testimony.
    Appeal from Franklin Circuit Court, .Ozark District; Jas. Cochran, Judge;
    reversed.

      Willard Pend).ergrass and Evans & Evans, for appellant.
    I. The court erred in submitting to the jury the question of the breach of warranty. A warranty is so clearly a part of a sale where the sale is evidenced by a written contract that it is incompetent to engraft upon it a warranty by parol. 80 Ark. 505. The written contract signed 'by the parties was a complete contract. 80 Ark. 505 is decisive of this case. It was not competent to engraft upon it a warranty resting on parol. Id. 83; Id. 240; Id. 283; 94 Ark. 130.'
    It is not admissible to contradict or to vary or add to a written contract by parol testimony. 24 Ark. 210; 25 Id. 339; 30 Id. 186; 67 Id. 62; 80 Id. 507; 83 Id. 163; 86 Id. 162; 88 Id. 213; 1 Greenleaf, Ev. § 275; 140 Ark. 182. See also 142 Ark. 234. It was clearly error to admit parol testimony.

      J. P. -Clayton, for appellee.
    80 Ark. 505 has no application here, nor have the other cases cited by appellant. The court’s instruction states the law correctly. The question as to the false representations made by appellant to induce appellee to buy the truck was submitted to the jury, and theii' finding is conclusive that false representations were made for the purpose of selling the truck. 80 Ark. 240; 73 Id. 542, 60 Id. 387. The case was fairly submitted to the jury on the facts as proved, and the verdict is conclusive. 46 Ark. 142; 51 Id. 196; 56 Id. 314; 59 Id. 381. Where there is evidence to support, it will not be disturbed. 70 Ark. 513; 117 Id. 71. The evidence must be viewed in its strongest light in favor of the finding of the jury. 87 Ark.'101; 97 Id. 438.
   Smith, J.

On September 7th, 1919, appellee made á contract to purchase a second-hand truck from the appellant company. By the terms of the contract $500 of the purchase price was to be paid in cash. Appellee gave his check for $100 and agreed to pay the balance of $400 when the truck was delivered to him at his place of business in Ozark. He also agreed, on delivery of the truck, to execute ten notes, each for $75, payable one every thirty days. Under the agreement, appellant company was to send the truck from Fort Smith, where the sale was made, to Ozark, but was unable to make delivery, and so notified appellee. Thereafter, on September 20th, appellee, accompanied by one Dodgins, went to Ft. Smith. Dodgins examined the truck, passed judgment upon it and approved it, and was employed by appellant company to drive the truck to Ozark. Thereupon the parties entered into the following contract:

‘ ‘ Original.
‘ ‘ Retail Car Contract.
“Fort Smith, Ark., 9/20/19. “Federal Truck & Motors Co. (Distributor):
“Gentlemen: Please enter order for one model 1% ton truck, second-hand, to be delivered on or about 9/20/19 (barring delays in transportation or other causes beyond our control), according to the following plan and
specifications:
“Price as per contract.-._.$1250.00
“Catalogue Specifications.
“Freight from factory........
“War tax ...
“Total ...$1250.00
“Total price of extra equipment:
, “Deposit ....$500.00
“Credit .$500.00
“In notes of $75 each 30 days.!__$750.00
’“It is understood and made a part of this agreement that title or ownership of car as above described, does not pass to purchaser until final cash payment is made.
“(Salesman) George W. Malecot.
“Dated: Accepted 9/20/1919, at Federal Truck & Motors Co.
“By: S. L. Tompkins (Purchaser).”

Appellee proceeded to use tbe truck in Ms business, and, after three of the notes had been paid and two others had matured, proposed to pay the balance if allowed proper discount. This proposition was not accepted, and appellee thereafter refused to make other payments, and this suit was begun in the court of a justice of the peace to enforce payment of the notes.

The case reached the circuit court on appeal, and at the trial there appellee interposed the defense of a breach of warranty. He testified that before completing the payments he discovered that the truck was worn out, and, instead of being only eight months old and in good condition as warranted, it had been in use for three years, and was about worn out. Over appellant’s objection the cause was submitted to the jury on this issue, and there was a verdict and judgment in appellee’s favor, from which is this appeal.

Appellee defends the judgment of the court below on ' the theory that he was deceived and induced, by false representations in regard to the age and condition of the truck, to make the contract. But the case was not tried or submitted on that issue. In the instructions submitting the case to the jury the court said: “The defendant admits the execution of the notes, the sale of the motor truck, but says that the truck was warranted or guaranteed to Mm to be in good condition and not to have been run to exceed eight months and to be as good as new. He says that it was not as good as new and it was not in good condition and it was run more than eight months, and that the warranty has proved to be false * * * * ” Having thus stated the issue, the court told the jury to find for appellee if the testimony supported his contention.

The court was in error in submitting the question of warranty. The contract set out above is apparently a complete contract of sale. There appears to be do ambiguity about it requiring explanation, and no warranty is incorporated therein. In Lower v. Hickman, 80 Ark, 508, this court said: “A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. It may be a complete contract signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms and stipulations, or it may be a simple bill of sale, or sale note evidencing the sale.- The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale. It is not important that the instrument be signed by both parties, for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments. For the statement of the principles involved and the many applications thereof see — ” citing cases.

What was there said is equally applicable here. See also Johnson v. Hughes, 83 Ark. 105; Arden Lumber Co. v. Henderson Iron Works, 83 Ark. 240; Barry-Wehmiller Machine Co. v. Thompson, 83 Ark. 288; Bradley Gin Co. v. Means Machinery Co., 94 Ark. 130; Morris v. S. W. Supply Co., 136 Ark. 507; Sweet Springs Milling Co. v. Gentry-Buchanan Co., 142 Ark. 234.

For the error of submitting the question of breach of warranty, the judgment is reversed, and the cause will be remanded for a new trial.


author: Mr. Chief Justice WaticiNS

text:
    Anderson vs. Yell.
    The liability of an endorser, according to the law merchant, is conditional upon due presentment and notice of non-payment; and, in an action against him by the holder of a promissory note, payable to order, and at a future day, the allegation of notice of non-payment is indispensable, and the omission of it in the declaration a fatal .defect, for which no valid judgment could be rendered even after verdict.
    The allegation of presentment on the day of maturity, is insufficient, for, if treated as commercial paper, it is entitled to days of grace.
    A prior endorser, being a party to the record, but having suffered a default, is a competent witness for the holder in a suit against-a subsequent endorser.
    Parol evidence is inadmissible to prove that it was the intention of the parties that one of the endorsers should become bound as maker; and, on the admission of such evi- ' dence, it was error to permit the plaintiff to change a blank endorsement, as given on oyer, into one waiving demand and notice.

      Appeal from Circuit Qoivrt of Desha County.

    Hon. JoiiN C. Mueeay, Circuit Judge.
    TeapNALl, for tire appellant.-
    Baird incompetent, (J Wend. P. 453. 19 Wend. 353. 20 Jb/m. 142,) being a party to the record. He was interested. 2 Verm. 144. 4 Taunt. 752. 8 Taunt. 139.
    The filling of the endorsement was error: 1st. It was done after note offered in evidence, (6 Eng. P. 325); and, 2d. After evidence on both sides closed, (2 Phil.. Ev. 407); 3d. The endorsement was so filled up as to deprive appellant of his legal right to notice. See 9 chap., sec. 1, Dig. 3 Eng. 484.
    CumjiiNS, for appellee.
    After judgment by default against him, Baird was a competent witness, he consenting to testify.. Qa/rradi/ne & Kewmcm vs. Cra/ry, 4 Ark. P. 227. Hcomlin vs. Pitch, 1 Ki/rby 174. Storrs vs. Wetmore, Kirby 203. Jackson’ vs. VendePbergh, 1 J. P. 159.. Jackson vs. Fountain et al., 2 J.. Pep. 170. Willmgs et al. vs. Conseguer, 1 Pet. C. C. Pep. 305. Worden vs. Williamson, 1 Taunt. 378. Warrall vs. Jones, 7 Dingh. 395.

    The party agreeing to join in the note; and signing to make himself co-maker, authorized holder to fill up endorsement with an absolute guarantee or waiving demand and notice, and recover thereon. Kelson vs. Dubois, 13 J. P. 175. Bailey et al. vs. Ereemcm, 11 J. P. 221. De Wolf vs. Jacgues et al., 1 Pet. P. 476. Hwnt vs. Adeems, 5 Mass. P. 358. Pres., dec., of Oxford Ba/nk vs. Haynes, 8 Pick. 423. Story Prom. Kotes, secs. 133,148, 147. Story on Bills, sec. 215, a/nd notes.

    Party is bound to allege demand and notice, and, under that allegation, he can prove any thing showing demand and notice not necessary or waived. The Pres., dec., of Tcmnion Ba/nk vs. Picha/rdson et al., 5 Pick. 436. Horton vs. Lewis, 2 Conn. P. 478. Williams vs. Mcothews, 3 Cow. 252.

      Aii endorsement may be filled up on trial. Edwards vs. /Scull,, 6 Eng. 325.
   Mr. Chief Justice WaticiNS

delivered the opinion of the Court.

This was an action of debt-, brought by the appellee, James Yell, against John T. Anderson, "William R. Anderson, and Jas. R. Baird, the maker, and first and second endorsers of a promissory note, alleged to be lost or mislaid, to which the Andersons pleaded nil debet, and failure-of consideration. The plaintiff took issue upon the first plea and replied to the second. lie then filed an amended declaration, after -which the death of John T. Anderson^ was .suggested, and the suit ordered to be revived, and progress against his administratrix. At a subsequent day of the same term, that order was set aside, and, on the plaintiff’s motion, the suit was ordered to abate as to John T., and progress against the surviving defendants. The plaintiff then, by leave of the court, filed a second amended declaration, which is as follows :

-“ARKANSAS, Sex.

In Desha Circuit Goicrt, October Term, A. D. 1852.

James Yell, .plaintiff, complains of John T. Anderson, William R. Anderson, .and James R. Baird, of a plea ©f debt. For that, whereas, heretofore, to wit: on the 15th day *of April, 1851, to "wit, at the county aforesaid, the said John T. Anderson, under 1ns style of John T. Anderson, made his certain promissory note in writing, bearing .date the.day and year last aforesaid, and now here to the court shown, and therd&y there promised, on or before the first day of January next, after the date thereof, to pay said James R. Baird, or order, the sum of four hundred and eighty-five dollars, for value received, with interest at the rate of ton per centum per annum from due until paid, and then and there said James R. Baird endorsed and delivered the same to the said William R. Anderson, and when said note remained wholly unpaid, and then and there said William R. Anderson, when said note remained wholly unpaid, endorsed and delivered the same to said plaintiff, which endorsements are now shown to the court here, and the said plaintiff, in fact, says that afterwards, when said note became due and payable, to wit: on the first day of January, A. D. 1852, at the county aforesaid, said plaintiff presented, and showed said promissory note to the said John T. Anderson for payment, and payment was then and there demanded, but no part thereof was then, or before, or afterwards, paid. By means whereof, said defendants became liable to pay said plaintiff said sum in said note specified, with interest thereon accruing to the tenor and effect thereof. Yét said defendants, or any of them, or any one else, has since paid the said sum in said note specified, or the interest thereon, or any part of either, either before or after said respective assignments to the parties entitled, or to -the said plaintiff. To the damage of said plaintiff of five hundred dollars, therefore he sues,” &c.

William B. Anderson, after having oyer of the instrument sued on, pleaded nil debet, and two special traverses, both in effect denying that he had any legal or sufficient notice of the nonpayment of the note by the maker. The grant of oyer is as follows :

$485. . 13th ‘Apeil, 1851.

On or before the first day of January next, I promise to pay James B. Baird, or order, four hundred and eighty-five dollars for value received, with interest at the rate of ten per cent, per annum from due until paid. /

(Signed,) JOHN T. ANDEBSON.

(Endorsed,) Bay William *B. Anderson.

JAMES B. BAIBD.

Pay to James Yell,

WM. B. ANDEBSON.”

A default was noted against Baird, failing to appear, and issues being fprmed upon the pleas of Wm. B. Anderson to the amended declaration, they were tried by a jury. It appears, from the bill of exceptions, that the plaintiff offered, as a witness, the defendant, Baird, and was’permitted to prove by him, .against the objection of bis co-defendant, Anderson, that tbe note sued upon was written by ¥m. R. Anderson, and wben it was written, be-(Baird) objected to it, upon tbe ground that it was to have been a joint note of Wm. R. and John T. Anderson, but Wm. R. said it made no difference, and would answer as well, as be would endorse it, and that was tbe proper form for him to join in tbe note: whereupon, it was endorsed in blank by him (tbe witness) and William R., and delivered to tbe plaintiff. That afterwards, (but be could not say wben it was, whether it was before or after tbe bote became due and payable,) tbe .plaintiff told tbe witness and Wm. R., that John T. Anderson bad told him that be would not pay tbe note, and that be (tbe plaintiff) should bold them responsible for tbe full amount. Which was all tbe evidence in the cause, and thereupon tbe court permitted tbe plaintiff, against the objection of Wm. R. Anderson, to fill up the endorsement on tbe note so as to read: “Pay tbe within to James Yell, waiving . demand and notice. Wm. R. Anderson.” Tbe court then, on motion of tbe plaintiff, instructed tbe jury, that tbe note and en ■ dorsenients were conclusive evidence of the debt in the absence of proof of payment, and there was no necessity of proof of de-demand and notice, to which also tbe defendant excepted. Tbe jury found the issues for tbe plaintiff, and thereupon a joint judgment against tbe two defendants, Baird and Anderson, was rendered in bis favor.

Without noticing tbe form of tbe declaration being in debt instead of assumpsit, or tbe joinder of one of tbe original defendants, whose death bad been suggested by tbe plaintiff, or tbe variance in tbe date of tbe instrument which appears in tbe transcript brought here, though it may be a clerical misprision, tbe judgment must be reversed, because tbe declaration contains ím averment of notice of non-payment to tbe endorsers, and without which, they could not be charged. Tbe plaintiff dose not sue as assignee, under tbe statute of assignments, which would require him to exhaust bis remedies against tbe maker, or bis estate, before proceeding against tbe assignor, but bis claim is against tbe endorsers, whose liability, according to the law merchant, is conditional upon due presentment and notice of non-payment. (Walker vs. Johnson, 13 Ark. 530.) An averment of notice was indispensable to the title of the plaintiff to recover, and the omission ■of it was a iatal defect in the declaration, upon which no valid judgment could have been rendered, even after verdict. (Sevier vs. Holliday, 2 Ark. 512.) tío, the declaration is defective in the allegation of presentment. Notwithstanding the seeming misconstruction, in the report of the .case, of what the court said in Ruddle & McGuire vs. Walker, (2 Eng. 462,) there can be no doubt that the note in question, if treated as commercial paper, was entitled to days of grace. What the court there meant .to decide, was, that as the statute made writings obligatory for the payment of money equally negotiable with bills and notes, • and enable the holder, at his option, to make the assignors primarily liable upon the condition precedent of demand and notice, by analogy the rule would be the same in regard to the time of demanding payment of a writing under seal, in order to fix the liability of the endorser. See, also, Levy vs. Drew., decided at the present term, as to the propriety and policy of adhering to the settled rules of the law merchant, .to the .extent that it is introduced or recognized by statute.

The abstract question whether Baird, the prior-endorser, being a party to the record, but having suffered a default, would be for any purpose a competent witness for the plaintiff against a co-defendant, on the ground of being called to testify against his interest, is a very curious one, considered with reference to the statute making all obligations several as well as joint, and -another general provision enabling any plaintiff, having a cause of action against two or more persons, to sue all or as many of them as he anay think proper, so he have but one actual satisfaction; and more particularly, the statute making all endorsers, upon receiving due notice of non-payment, equally liable with the maker, and providing that the holder may sue them at the same time with the maker or separately. Though the liability of the defen-. dants is not necessarily joint, tlie case presents another aspect of the same enquiry, which occasioned so much doubt in Frazier v. The State Bank, (4 Ark. R. 510,) and Beebe vs. The Real Estate Bank, (ib. 553,) whether the plaintiff, having elected to sne all jointly, was not bound by the consequences of his election, so-that a successful defence to' the merits by one would operate as a defence for all. In the case of Pipe vs. Steel and Harvey, (2 Ad. & El. N. S. 733,) the court of Queen’s Bench held that, in a suit upon a joint liability of one defendant, who had suffered a default, thereby admitting a' cause of action against himself, and thus becoming severed from the action, would be a competent witness for the plaintiff against a co - defendant, notwithstanding his objection, because, though the witness be interested in procuring contribution from his co-defendant — he had a greater interest in defeating the action altogether by testifying in support of a defence, Avliicli if successful, would enure to his own discharge. In a separate suit, by the holder against endorser, a prior endorser would bo a competent witness for the plaintiff upon tlie ground of his liability to one or either of them in any event, and there appeal’s to be no good reason for excluding him because made a party to the record. Though all the prior parties to a bill or note be sued at the same time in .this statutory mode, there is nothing in the nature of a joint liability in their successive undertakings, and it would seem that the plaintiff might well succeed as to one defendant, though he fail as against the other.

But the court below erred in admitting the testimony of Bail’d; and, for the like reason, all the subsequent proceedings depending upon-its admission, Avere equally erroneous, not merely because it changed the order, of the liability of the parties on the note, Avlffch might possibly make no difference in a subsequent suit, as between themselves, for contribution or recourse, but because it was an attempt to exjffain, or vary by parol, the terms of a written contract deliberately entered into. If there Avas any mistake or fraud in its execution, that might have been put in issue, and co^-ected in a suit to-reform the instrument. But when it is considered that the plaintiff was permitted to prove that one of the defendants intended to become bound as maker, when in fact lie refused to join in the note, but signed only as second endorser, and uponsuch proof wáspermitted to change the endorsement into one waiving demand and notice, which went to the jury as conclusive proof of liability, at variance with the instrument which the plaintiff had produced for oyer, and in the face of the allegations in the declaration, the whole proceeding was a remarkable violation of the ¡rules of law, though the intention, and, for aught this «court can know, the result of it may have been to attain substantial justice. Reversed.