author: Smith, J.

text:
    Hamilton v. Anderson.
    Opinion delivered January 30, 1928.
    1. Divorce — foreign divorce* — change of custody of children.— Where ■ parents and children are within this State, the chancery court, upon a proper showing of changed conditions, may change the direction of the court of another State, made at the time a divorce was granted, concerning the custody of the children.
    2. Divorce — change of custody of children. — Upon a proper ’and sufficient showing that a change in the direction of a decree, made at the time of the divorce, awarding the custody of children, for the best interest of the children, the chancery court may order the change.
    3. Divorce — custody of children. — Conditions Iveld to justify an order changing the custody of children and awarding custody to the mother instead of the father, notwithstanding it is under a disposition by a foreign decree of divorce.
    Appeal from Lawrence Chancery Court, Eastern District; A. 8. Irby, Chancellor;
    reversed,

      II. L. Ponder, Smith £ Blackford and Garaimy, Baker £ Gautney, for appellant.

      E. H. Tharp and Mahony, Yocum £ 8aye, for appellee.
   Smith, J.

Appellee, Joseph Max Anderson, was married to appellant, Jewell De Arman, in 1918, and to that union two children were born, Maxine and Nanette, now eight and six years old, respectively. They were married in North Carolina, and later moved to Alabama, where, on January 1, 1925, the wife brought -suit for divorce, which terminated in a decree in her favor. This decree provided that each parent should have the custody of one child for the period of ia year, after which the custody of the children should be changed, and each parent then have for the period of a year the custody of the child which the other parent had had for the previous 3 ear.

The decree relating to the custody of the children was rendered by the consent of the parties. In February, 1926, this decree was modified by consent of the parties, and it was there ordered that the mother should have the custody of both children until July 1, 1927, after which time the father should have the custody of both children until July 1,1928, and thereafter the custody should alternate and be changed on the first day of July of each year, so that the children should be kept together by first one parent and then the other for the period of a year.

Prior to the separation which preceded and led to the suit for divorce, appellee was employed at a mill where George C. Hamilton was employed as a foreman. Hamilton at that time was a married man, but he and his wife separated, and he obtained a divorce from her in September, 1924. Hamilton and appellant were married a few months after the rendition of the last decree by the Alabama court, and, after a short residence in Alabama, they moved to Louisiana, but, in March, 1927, they moved to Walnut Ridge, where they have since lived and are now residing. This was the original home of appellant, where her father and mother 'have long* resided and now live. Appellee also returned to this State, and is now residing in Little Rock.

On March 23, 1927, appellant filed this suit in the chancery court of Lawrence County, and prayed that court to make an order awarding* to her the permanent custody of both children. The court declined to make this order, and the decree of the Alabama court was left in full force and effect, and this appeal is from the decree of the Lawrence Ohancery Court refusing to change the custody of the children ias prayed.

The jurisdiction of the Lawrence Ohancery Court is conceded, and we think there is no question about the jurisdiction of the Arkansas court to change the direction of the Alabama court as to the custody of the children, upon a proper showing.

In the case of Kenner v. Kenner, 139 Tenn. 211, 201 S. W. 779, L. R. A. 1918E 587, the Supreme 'Court of Tennessee said:

“We are of the opinion that, as between the parents, parties to the litigation, the decree of the foreign court awarding the custody of the children is res judicata, subject, as between these parties, to modification only by the court that granted the decree. (Citing cases). However, we think this doctrine should be understood with the qualification that, in ease of the removal of the child to another State, even within the custody of the parent to whom that custody had been awarded b}f the foreign decree of divorce, the courts of the State to which the ' removal has been effected will have the power, on a change of circumstances showing such course essential to the best interests of the child, to make, a new disposition. of the child. (Citing cases).” See also cases cited in the note to the text, chapter “Divorce,” 19 C. J. 366, quoting from this Tennessee case.

The courts of this State have therefore the jurisdiction to order a change of custody of the children upon a proper and sufficient showing that such a change should be made, and prior decisions of this court, have announced the conditions under which that jurisdiction should be exercised.

In the case of Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450, it was said:

“The following statement of the law on the subject is found in 9 Ruling Case Law, page 476: ‘A decree made at the time of the divorce cannot anticipate the changes which may occur in the condition of the parents, or in their habits and character, and their fitness to have the custody and care of the children. The parent, having the custody of the children may marry; may become poor and unable properly to maintain and educate them; may become vicious and morally unfit to have the control of children. These changes, and other sufficient causes, may make it necessary for the good of the children tliat their custody should be changed. * * * Moreover, a delinquent parent may, in the course of time, become entirely fit to have and retain the custody of his or her child. And so it has been held that the presumption of unfitness on the part of a father for the custody of his child, raised by refusal of the court to award it to him upon granting a decree of divorce against him, is overcome by evidence of an exemplary life for many months after the passing of the decree. A decree fixing the custody of ia child is, however, final on the conditions then existing, and should not -be changed afterward unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child’.”

The later cases of Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Stone v. Crofton, 156 Ark. 323, 245 S. W. 827, and Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492, recognized the right of the court to change the custody of children where changed conditions make it advisable and for the best interests of the child or children to do so, although the original decree awarding the custody is a final decree from which an appeal might have been prosecuted. These cases are also authority for holding that, in determining whether there have been changed conditions, the court, as was said in the case of Caldwell v. Caldwell, supra, “must keep in view primarily the welfare of the child,” and that “the custody of the child is not awarded for the purpose of gratifying the feelings of either parent or with any idea of punishing or rewarding either parent.”

Neither party to this litigation questions the fitness of the other to have the custody of the children, but. appellee insists that no change in the circumstances has been shown wdiieh will justify a modification of the amended decree of the Alabama court, which, as we have said, awarded the custody of both children to first one parent and then the other, each for the period of a year.

We think, however, that the testimony does show such conditions as warrants a change of custody. At the time of the rendition of the Alabama decree neither parent had a home to which the children could be taken, and the father has none yet. It is true that he clearly shows his devotion to the children and his willingness and ability to provide for them, but he has remained unmarried and has established no home of his own. He shows that his father and his stepmother have a home in which the children can be properly taken care of, and that he can and will provide a home in which some suitable person will be employed to minister to the children, if necessary. But the mother has now a permanent home, and she is anxious to have the custody of the children, and has given every assurance that the children will, if delivered to her, receive the attentions which their tender ages require. The mother has been a teacher, not only of the common school studies, but of music as well, and it is not questioned that the children will, if placed in her care, have the proper environment and the best advantages.

The elder child was called as a witness at the trial below, and stated that she and her sister were living with appellee’s father, both slept, in the same room with her grandfather and grandmother, and with “Uncle Bruce,” and that, when appellee visited them, he slept with “Uncle Bruce,” and all in the same room, and she stated that she would like to stay with her mother all the time.

We cannot be unmindful of the fact that, because of their tender age, the children require the constant attention which only a mother’s love can give, and for this reason, principally, we think their custody should be awarded to her.

Section 3 of act 257, Acts 1921 (General Acts 1921, page 317) is as follows:

“Where the husband and wife are living apart, there may be an adjudication of the court as to their power, rights and duties with respect to the persons and property of their unmarried minor children. In such cases there should be no preference between the husband and wife, but the welfare of the child must be considered first in determining the custody of such child, or the control of its property * *

This statute has been construed in the cases cited as requiring the courts, in awarding custody of children, to regard, as was said in the case of Stone v. Crofton, supra, the welfare of the child as “of first importance,” and, in the discharge of this duty, we have concluded that the custody of these children should be awarded to their mother, at least during the period of their tender adolescence.

The decree of the court below will therefore be reversed, and the cause remanded, with directions to the court below to award the custody of both children to appellant, reserving to appellee, the father, the right to visit them at any reasonable time- and to give him, if he so desires, the right-to have them with him during their school vacation periods.

Hart, C. J., dissents.

Kirby, J., disqualified and nonparticipatiug..


source: Caselaw Access Project

license: Public Domain

text:
    Beavers v. American Insurance Union.
    Opinion delivered January 30, 1928.
    1. Insurance — merger of assessment society — premiums.—Where an assessment society became merged into an association requiring monthly payments, one who was re-insured in the latter association was required to pay the premiums monthly as required by the reinsurer’s by-laws.
    2. Insurance — lapse of policy — reinstatement.—In an action by the beneficiary of a life insurance policy against the association to recover proceeds of a ■ certificate of an insured on her death, evidence held not to show as a matter of law that the insured had been reinstated.
    3. Insurance — estoppel to deny reinstatement. — In an action against an insurer on a certificate of benefit, it was error to direct a verdict for the defendant where the jury could have found from the evidence that the insurer was estopped to deny that the insured had been reinstated after a lapse of her certificate by reason of the insurer accepting payment of premium.
    4. Appeal and error — review of judgment directing verdict.— On review of a judgment directing a verdict, the Supreme Court ■ is required to assume the possible findings of the jury in the light most favorable to the appellant.
    5. Insurance — estoppel to deny payment of premiums. — An insurer may, in an action on a policy, be estopped to deny that the premiums were paid in proper time to .prevent a forfeiture, where it is shown that on previous occasions payments had been made at a time subsequent to that required by the insurer, and yet they had been accepted and the policy continued in force.
    Appeal from Sharp Circuit Court, Northern District; John G. Ashley, Judge;
    reversed.

      George M. Booth and Walter L. Pope, for appellant.

      Basil Balcer, for appellee.
   Smith, J.

On January 1, 1917, the Ozark Mutual Life Association, hereinafter referred to as the Association, issued two certificates of insurance to Mrs. Mary E. Beavers, in which her son, Van Beavers, was named as beneficiary, and at the same time issued certificates of insurance upon the lives of Van Beavers himself and his wife.

On November 9, 1926, a merger agreement was entered into between the Association and the American Insurance Union, hereinafter referred to as the Union, by the terms of which the Association transferred all its assets to the Union, which company assumed the liabilities of the Association, and agreed to, and did, reinsure all members of the Association who were then in good standing.

After this date the premiums on the certificates issued to Beavers -and his wife and mother were sent, by direction of the Union, to Fred Van "Wagner, at Mena, Arkansas, which had been the home office of the Association, and Van Wagner, after receipting for such payments, remitted them to the home office of the Union, which is in Columbus, Ohio.

The rules of the Association required that payments should be remitted by the 20th of the month in which tlie premium was payable, but Beavers testified that he rarely remitted earlier than that date, but oftener later, and that some of his remittances had been as late as the 10th of the following month, and that none of these payments had been refused and the certificates had never been declared lapsed.

It was the custom of Beavers to include in a single remittance the premiums on his own policy and that of his wife, and on both of the certificates of his mother, but he failed to make the remittance to cover the premiums for July, 1926, until the 2d day of August. Upon the receipt of the remittance to cover the July assessments, he was notified that it would be necessary to sign and return reinstatement blanks, which were inclosed for that purpose, before the premiums would be received.

Mrs. Beavers was unaible to write, and her son attended to all her correspondence, and had charge of her insurance and the payment of her premiums, and on the 7th day of August the reinstatement blanks were filled in and returned. Those relating to the certificates of Mrs. Beavers were signed by her by mark, and the signature was not witnessed by the person who had. signed her name.

In the meantime, notices had been mailed from the Mena office calling for the August premiums. Mrs. Beavers sent sufficient money to pay. the July premiums and the reinstatement fees, and later paid the August premiums. This remittance was made on August 7,1926, and pinned, to the reinstatement applications was a note to the effect that,’ unless all the certificates were reinstated, none should be, and it was requested that the money for this purpose be returned if all the certificates were not reinstated. It is not questioned that Beavers and his wife were reinstated, and they thereafter continued to pay their premiums for a period of several months. The money to pay the August premiums on all the certificates was duly received, and these premiums were marked “paid” by the Union on August 14,1926.

Mrs. Mary E. Beavers died August 14, 1926, and proof of her death was duly made and received by the. Union on August 30, 1926, whereupon Mr. Beavers was advised that his mother had not been reinstated, and on this gTOund liability on her certificates was denied. Thereupon this suit was brought, and a verdict in favor of the Union was directed by the court, and from the judgment accordingly is this appeal.

It was shown at the trial that all the premiums for both July and August had been marked “Paid” on August 14, 1926, and that the money covering these premiums, as well as the reinstatement dues on Mrs. Beavers’ certificates, were retained by the Union until October 12, 1926, at which time they were returned. This suit was begun about that time.

The constitution and by-laws of the Union provide that a member may be reinstated on application, without a medical examination, upon signing an application for reinstatement and the payment of a reinstatement fee, after the approval of the application by the medical examiner of the Union. If a member became delinquent and remained so for as much as six months, a medical reexamination was required before reinstatement.

The application for reinstatement contains the recital that: “For the purpose of securing reinstatement I hereby covenant and warrant that I am now in good health, of sound mind, and free from physical deformities; that I am not now nor have I ever been addicted to excessive drinking of alcoholic beverages, nor the use of narcotic drugs. ’ ’ The application required the applicant to answer -specifically certain questions concerning his or- her health, and concludes with the following' recitals :

“It is understood and agreed between the undersigned and his beneficiary or beneficiaries and the American Insurance Union that this application for reinstatement and the statements, covenants and warranties contained herein shall be a part of my contract of membership and insurance with said society, and that, if this application for reinstatement and the statements, covenants and warranties herein made be false or nntrne in any particular, then the policy reinstated in consequence of this application for reinstatement shall be null and void, and said society shall not be liable to me or my beneficiary or beneficiaries therein, except for the return of the premiums paid thereafter. It is further agreed and understood that the accepting and receipting for my premium or chapter dues or reinstatement fee by the chapter, or cashier, or any chapter officer or national officer, or representative, or any person whomsoever, shall not have the effect of reinstating mje, or rendering my policy valid, until the application for reinstatement has been forwarded to the national office and approved. ’ ’

This application was signed as to each of the certificates held by Mrs. Beavers, and both were signed by her, by her mark.

The truth or falsity of the statements made in the name of Mrs. Beavers iconcerning" the then condition of her health is not discussed in either of the briefs.

The medical director, whose duty it was to pass upon and reinstate delinquent applicants, testified that he was temporarily absent from his office when these applications were received, and that they were never passed upon or approved by him, and that he would not have approved the application of Mrs. Beavers without making some investigation of the signature of the applicant, which was not attested by the person who had signed Mrs. Beavers’ name. He also testified that, as the answers to the questions contained in the application showed that Mrs. Beavers had consulted a physician because of an attack of chills, he would have asked for further proof as to her health before ordering the reinstatement, and that such investigations ordinarily required about ten days or two weeks, and that the application was first submitted to him upon his return to his office on August 21, 1926.

Appellant insists that the judgment of the court below should be reversed for several reasons.

(1) . That it was not shown that an authorized assessment .had been made, and it is therefore insisted, upon the authority of the case of Mutual Aid Union v. Perdue, 162 Ark. 551, 258 S. W. 375, that there was no delinquency.

It appears that the Association had the same provision in its constitution and by-laws for levying assessments as the Mutual Aid Union had in the Perdue case, supra, whereunder assessments were not levied unless the death of a member made that action necessary, but it is shown here that the Association had been absorbed, and it was not made to appear that, since the consolidation, the right to make assessments was dependent upon the death of a member, or that the directors of the Association, whose duty it was, under the constitution of the Association, to levy the assessments, had been continued in existence as functioning officers. On the contrary, as we understand the record, it was the duty of the certificate holders,, after the consolidation, to make monthly payments not later than the 20th of each month. If we are mistaken in this, the fact may be more fully developed on the remand of the cause, which is ordered for another reason.

(2) . It is next insisted that the facts and circumstances summarized above support the inference that Mrs. Beavers had, in fact, been reinstated; but we do not agree with counsel in this contention.

'(3). It is also insisted that the Union is estopped by its conduct from asserting a forfeiture,' or, at least, that the jury might have so found, and in this contention we think counsel for appellant are correct.

It was shown that Mr. Beavers had charge of the four certificates and paid .the premiums on all of them, and that, when he remitted the amount necessary to reinstate all of them, he directed that none of them should be reinstated unless all were reinstated. This letter was addressed to the home office, and in due course would have had the attention of the medical director, whose duty it Avas to pass upon applications for reinstatement. Mr. BeaA’ers, for himself and as the agent of his Avife and mother, had the right to stipulate that no one of the certificates. should he reinstated unless all of them were, and, unless the officers of the,Union having the matter in charge were willing to folloAV this direction, they had no right to appropriate airy part of this conditional tender. It is an undisputed fact that Beavers and his wife were reinstated, and if the jury should find (as Ave must assume would have been done, in view of the fact that a judgment in favor of the Union Avas pronounced upon a verdict directed in its favor by the court), that this condition Avas imposed in the remittance letter, the acceptance of any part of the tender Avas an acceptance of the condition under which the tender Avas made. In this connection, it may be recalled that the Union did not return the money tendered to reinstate the certificates of Mus. BeaA'ers until in October, after her death in August.

It is also insisted for the reversal of the judgment that the Union is estopped, through its conduct in receiving belated premiums, from asserting a forfeiture resulting from a payment not longer delayed than the payment of other premiums had been delayed, which had been accepted uithout question. We are of the opinion that the- testimony raises this question. According to Mr. BeaA'ers, none of his payments had been made before the 20th of the month, and some had been made even later than the one here in question.

In the case of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, 219 S. W. 759, 14 A. L. R. 903, it was said:

“The laAV applicable to such.a state of facts is accurately stated in case-note (in 11 Ann. Cas. 533) to Trotter v. Grand Lodge, 132 Iowa 513, 109 N. W. 1099: ‘Where a mutual benefit association has, in repeated instances, received from a member the payment of overdue assess-' ments so as to establish a custom or course of dealing between the parties and led the member to believe that a strict observance of a requirement as to the time of payment is not required, it is held that the certificate of insurance is not forfeited by failure to pay an assessment at the time when the by-laws of the society or a stipulation in the certificate requires it to be^paid, and that a provision for forfeiture for nonpayment at such time is waived within the customary period of extension of the iime of payment.’ Numerous cases are cited to support the text ('Citing cases).”

In the opinion on rehearing in the Newsom case, supra, it was pointed out that, while a subordinate collecting officer of a fraternal benefit society might- not waive the provisions of the constitution and by-laws, the society might be estopped through the action of such officer from asserting a forfeiture, and the doctrine of that case is applicable here. The jury might have found that, while Van Wagner could not waive the provision requiring that payments be made on or before the 20th of each month, the insurer might, by knowingly accepting payments made after that date to its agent, estop itself from asserting that the payments had not been made as required, when they were in fact made as early as other premiums, which, though not made in time, had been accepted.

We conclude therefore, for the reasons stated, that the court was in error in directing a verdict against appellant, and the judgment will therefore be reversed, and the cause remanded for a now trial, and it is so ordered.

Kirby, J., dissents.


author: Humphreys, J.

text:
    Thurman v. State.
    Opinion delivered January 30, 1928.
    1. Criminal law — cross-examination op expert. — In a murder trial, wherein the defendant proved a wound in the head and subsequent suffering from headaches in an effort to show irresponsibility for his acts, it was not error to permit the prosecuting attorney to ask, on cross-examination of a physician introduced on the issue of insanity, as to whether such headaches were the result of the wound, or of dissipation or drunkenness, the purpose of the cross-examination being to test the physician’s knowledge of the cause of headaches, rather than to assail defendant’s character, which had not been put in issue.
    2. Criminal law — form of hypothetical questions. — In a murder trial, failure of the prosecuting attorney in hypothetical questions to include all of the undisputed facts as a basis of hypothetical questions was cured by an instruction of the court to the expert witness to consider all the undisputed facts in his answer.
    3. Criminal law — hypothetical questions. — In a murder trial, the prosecuting attorney’s hypothetical questions to defendant’s expert witness, describing defendant’s acts in firing the gun ten or twelve times in interim between date of purchasing it and of killing deceased as practicing shooting at a target, held not improper as assuming a fact not inferable from the evidence.
    4. Criminal law — exclusion of testimony — harmless error.— Error, if any, in excluding the answer of defendant’s expert witness as to whether he believed defendant was mentally responsible for killing deceased, was cured by his subsequent testimony that one in defendant’s condition could not distinguish between right and wrong as could one in normal condition, and the defendant could not so distinguish in the particular act.
    5. Criminal law — opinions of non-expert. — Opinions as to defendant’s sanity by non-expert witnesses, who had known him a long time and associated and conversed with him before and after the crime, held admissible to rebut expert testimony as to his insanity at the time of the killing.
    6. Criminal law — opinions of non-expert witnesses. — In weighing thé opinions of non-expert witnesses as to defendant’s sanity, the jury were properly told to consider the sources of their information, and to attach such value to their opinions as the facts upon which they based same warranted.
    7. Criminal law — instruction as to expert testimony. — It was not error to instruct the jury that, if they believed any fact or facts stated to the medical experts in the hypothetical questions asked them were not true, they should disregard the opinions of such experts as to defendant’s sanity at the time of the killing.
    8. Criminal law — refusal to duplicate instructions. — It is not error for the court to refuse to duplicate instructions.
    9. Homicide — instructions—harmless error. — -An instruction on a .charge of murder in the first degree to find defendant guilty of murder in the second degree if the jury entertained reasonable doubt as to whether there were premeditation and deliberation being favorable to defendant, he cannot complain on appeal on the ground that the facts showed that he was guilty of murder in the first degree or nothing.

      Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      Cobb é Cobb, for appellant.

      II. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Garland County for murder in the first degree for shooting and killing Lafayette Branam. On the trial of the alleged crime he was convicted of murder in the second degree, and adjudged to serve a term of fifteen years in the penitentiary as a punishment therefor, from which is this appeal. ■

When arrested, appellant voluntarily confessed that he shot and killed Lafayette Branam on the day charged in the indictment. The confession was reduced to writing, and introduced in evidence on the trial of the cause, which is as follows:

“My name is Wayne Thurman. I am twenty-one years old, and reside at Red Oak, nine miles from Hot Springs. I will make a statement of my connection with the killing of Lafayette Branam. I left the house Monday morning about 8:30, and I was going down to Bill Parr’s place. Just before I’got to Bill’s I saw Branam and some of his children on a wagon. He was sitting in the back, and the best I could judge he had a shotgun. I couldn’t tell just what kind of a gun it was. I waited awhile after he had gone down the road, and then went on to Bill’s place: I was down there about a half an hour, I judge, and then I went back home. I got my rifle, a 30-caliber rifle, and I went about three-quarters of a mile west of our place, and then I turned to- the right and went on about a mile, and then I turned back to the right and went up White Oak Creek about a mile, to where Branam was at work in his field, plowing, and when I got there it was about 12 o’clock, and Branam was eating dinner, and so I Waited until after he had eaten dinner and started back to work in the field, and I went up to the wire fence, about one hundred yards of where he was at work, and I waited — he had gone a couple of rounds — and then I went on up closer, probably within fifty yards of him, and he came down to the creek to get a drink, and just as he got to the creek I raised up from where I was hiding, and kicked thé wire fence and said, ‘Branam, I am here to get you.’ When I spoke he was standing with his right side to me, and he turned his head and facing me, and, just as he turned facing me, I started firing. I shot five times, and, after I had shot what shells I had in my gun, I turned and went down the fence for about 250 yards, crossed the creek, and then recrossed it, and went across the road right in front of the Scott house, the old Scott house, and went down the road for about — an old road — for about 150 yards, and then turned back toward home. I went straight home, and when I got there Dr. Housley and his wife were there, and they had already told the folks that Branam had been killed. I went to my room and changed clothes, and lay down across the bed and waited for the officers. I bought the gun at Hall’s pawnshop, after Branam had killed my brother. After I left home, and before I got to Branam’s field, I fired one shot to test the gun. I had fired the gun previous to that time ten or twelve times. I kept the gun in my room. Branam staggered at the first shot, and I think he was on the ground when I fired the last. The gun was a 30, lever action, and it threw the shells when I worked the lever.- I threw all of the shells out at that place. I carried the gun back home, and carried it over in the field, and there I hid it. This confession is made voluntarily, and signed and sworn to on the day after the occurrence.”

The other evidence introduced by the State corroborated the statement made by appellant that he killed Lafayette Branam in the manner detailed in the confession. ■ .

Appellant made no attempt to contradict the evidence introduced by the State relative to the charge, but interposed the defense of insanity thereto.

•The first assignment of error for a reversal of the judgment is that the court allowed the prosecuting attorney, on cross-examination of Dr. T. B. Hill, introduced by appellant on the issue of his alleged insanity, to ask whether the headaches from which appellant suffered, and which he was called upon to treat, we,re the result of a wound appellant had received in his head some years before, or from dissipation or drunkenness. Appellant contends that the purpose of the question was to get before the jury a statement that he was given to excessive dissipation and drunkenness, in an effort to assail his character, which had not been put in issue. We cannot agree with the construction placed upon the question by appellant. Appellant had proved the injury to his head and subsequent suffering from headaches, in an effort .to show irresponsibility for his acts. This question was asked to test the physician’s knowledge of the cause of the headaches, whether the result of the injury, or from other causes. The witness answered that he did not know what caused the headaches, which discloses the wisdom of permitting the question. The impression had been left, after direct examination, that the headaches were the result of an injury to the head, as tending to prove irresponsibility. When the physician could nut connect the headaches with the injury, it weakened the effect of his testimony. The interrogatory was legitimate on cross-examination.

The next assignment of error for a reversal of the judgment is that the court allowed the prosecuting attorney to propound a cross-interrogatory to Dr. J. P. Randolph, one of appellant’s expert witnesses on the issue of insanity, which did not embrace all the undisputed facts in the testimony essential to the issue. The witness was not permitted to answer the question until instructed by the court to consider all the undisputed facts embraced in both appellant’s and the prosecuting attorney’s hypothetical interrogatories. This cured errors of omission in the prosecuting attorney’s interrogatories. Appellant also objected to the hypothetical question of the prosecuting attorney because it assumed as a fact that, after appellant bought the rifle with which he shot Lafayette Branam, he practiced shooting with it at a target. The argument is made that there is no evidence from which a legitimate inference might be drawn to the effect that he practiced shooting the gun at a target. Appellant did not claim to have fired the gun ten or twelve times at random in the air or at game. The legitimate inference is that he shot at some object, and any object at which he shot might have been characterized as a target. There was no error in thus describing the acts of appellant in firing the gun ten or twelve times in the interim 'between the date of purchase and the killing of Branam.

The next assignment of error for a reversal of the judgment was the refusal of the court to allow appellant to ask Dr. George M. Eckels, one of his expert witnesses on the issue of insanity, after he had answered a hypothetical question, whether he believed appellant was mentally responsible for the act of killing Lafayette Branam. If the question in the form asked was proper, the error in excluding the answer was cured by the subsequent testimony of the witness, to the effect that one in appellant’s condition could not distinguish between right and wrong the same as one in a normal condition, and that appellant could not, in his opinion, distinguish between right and wrong in the particular act of killing Lafayette Branam.

Appellant’s next assignment of error for a reversal of the judgment was the admission of the opinion of a. number of non-expert witnesses touching the sanity of appellant, in rebuttal to the testimony introduced by him tending to show that he was insane when he killed Lafayette Branam. The admission of their testimony was challenged on the ground that they did not detail the facts upon which they formed their respective opinions. We have carefully read the evidence of each, and are of opinion that each disclosed evidence growing out of their conversations with him which warranted each in giving an opinion. Most of them had known appellant for a long time, and had associated with him and conversed with him both before and after the commission of the offense. Appellant also contends, in this connection, that the court erred in allowing the jury to pass upon the admissibility of the testimony of the non-expert witnesses, instead of assuming that responsibility himself. It is argued that this was the effect of instruction number 12, given by the court over appellant’s objection. We do not so interpret the instruction. The purport of the instruction, as we construe it, was to tell the jury, in weighing the opinion of each to consider the sources of his information and to attach such value to his opinion as the facts upon which he based same warranted. The instruction correctly announced the law.

Appellant’s next assignment of error for a reversal of the judgment was in giving instruction number 11 by the court. The part of the instruction criticised by appellant is as follows:

“But, if the jury should believe that any fact, or facts, stated to the medical experts in the questions asked them, are not true, then you should disregard whatever opinion they expressed on the question of the defendant’s sanity at the time of the killing.”

Appellant suggests that the court should have used the following language instead of the language used:

“If the .jury finds any fact, or facts, in the hypothetical questions, material to the issue of defendant’s insanity, untrue, then they would be at liberty to disregard the opinion of the experts as to the sanity of the defendant at the time of the killing.”

The questions referred to by the court in that part of the instruction objected to related to hypothetical questions which had been' propounded to the medical experts, material to the issue of appellant’s sanity or insanity, as may readily be seen by reference to other parts of the instruction. We think the language used by the court, when interpreted in the way the court used it, meant exactly what the suggested language of appellant means. The whole instruction given by the court conforms substantially to the rule announced by this court in the case of Kelly v. State, 146 Ark. 509, 226 S. W. 137.

Appellant’s next assignment of error for a reversal of the judgment was the refusal of the court to give his requested instructions numbers 2, 3, 5 and 6, in connection with instruction No. 6, which was given by the court. We deem it unnecessary to set these instructions out at length in this opinion. Suffice it to say that we have examined them, and find that the requests of appellant numbered 2, 3, 5 and 6 were fully covered by instructions 9 and 10 given by the court. It is not error for the court to refuse to duplicate instructions, in fact the court should avoid multiplying instructions.

The next and last assignment of error for a reversal of the judgment was the giving of instruction number 16, which is as follows:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant was of sound mind, and the killing was unlawful and felonious and done with malice aforethought, but entertain a reasonable doubt as to whether or not there was any premeditation and deliberation, then you should find the defendant guilty of murder in the second degree, and fix his punishment at imprisonment in the penitentiary for a period of not less than five nor more than twenty-one years. If, on the whole, you should entertain a reasonable doubt of the defendant’s guilt of either of the grades of homicide included in the charge, then you should find the defendant not guilty. ”
It is argued that there was no place in the case for the instruction, because the facts showed that he was guilty of murder in the first degree or nothing. This court ruled, in the case of Williams v. State, 50 Ark. 511, 9 S. W. 5, a case where the undisputed proof showed a deliberate killing and where the defense was insanity, that, “as there was ground'for a difference of opinion as to the insanity of the focused, under the evidence and the instructions of the court, the verdict will not be’ disturbed by this court for the want of testimony to support it.”

The instruction was favorable to appellant, and he is in no position to complain.

No error appearing, the judgment is affirmed.


text:
    Marshall v. Davis Construction Company.
    Opinion delivered January 30, 1928.
    Highways — authority op commissioners to compromise action.— . In an action by a contractor against a highway improvement district created by Acts 1917, p. 2181, where all the commissioners were served with notice, and a majority of them were present in court when the cause was set for trial, they had authority to compromise the action by confessing judgment for an agreed amount.
    Appeal from Izard Circuit Court; John O. Ashley, Judge;
    affirmed.

      S. M. Casey, for appellant.

      George T. -IlitmiphrieS and li. A. North-cult, for appellee.
   Humphreys, J.

North Arkansas Highway Improvement District No. 2, running through Independence, Izard and Fulton counties, was created by act No. 473 of the Legislature of 1917, and provided for three commissioners, one from each county. A part of the roadbed in the district was constructed under written contract ■between said commissioners and Davis Construction Company, the appellee herein.

Appellee instituted suit in the circuit court of Izard County, at the March term, 1926, against the district for $.1.7,232 for additional estimates which it alleged it should have received from the engineer in charge of the construction of the road. An amended complaint was filed in September, 1926, to which the district filed an answer, through its employed attorneys, denying the material allegations in the complaint. The cause was passed until the March term of court, 1927. During the pendency of the suit, and a short time before court convened, the Legislature of 1927 passed act No. 22, making the county judges in each of the three counties commissioners of said district to succeed the old commissioners. Two of the new commissioners, C. C. Aylor and E. H. LaMore, Ayler being president and LaMore secretary of the board of commissioners, attended court and, while the employed attorneys were trying to' get a continuance of the cause, compromised and settled the case by agreeing in open court that a judgment for the sum of $8,000 might be rendered against the district. The agreement upon which the judgment was rendered is as follows:

“We, the undersigned, president and secretary of North Arkansas Highway Improvement District No. 2, hereby agree in open court that the judgment for the sum of eight thousand dollars ($8,000) may be rendered against said district, instead of $17,232 as asked for in the complaint of the plaintiff. It is understood that this judgment for the sum of $8,000 shall be rendered against said district in full settlement of all claims in the suit herein pending for $17,232.
Signed: “Davis Construction Company,
‘ ‘ By Northcutt & Humphries,
“Attys. for plaintiff.
■“North Arkansas Highway
Improvement District No. 2,
“By C. C. Aylor, President.
“E. H. LaMore, Secretary.”

After the rendition of the judgment and final adjournment of court, appellants herein instituted suit in said court to set aside the judgment, upon the alleged ground, amongst others, that the confession of the judgment by two members of the board, in the absence of the third, without notice to him, was void. This issue was controverted, and submitted to the court upon the testimony introduced by the respective parties, which resulted in a dismissal of appellant’s complaint to vacate the judgment, from which is this appeal.

The sole question therefore presented by this appeal is whether two members of the board, in the absence of the third, could compromise and settle the suit against the district and bind it by confession of judgment for the amount agreed upon.

Appellants contend that, under the rule announced by this court in the oases of School District v. Bennett, 52 Ark. 511, 13 S. W. 132, and Kirst v. Street Improvement Dist. No. 120, 86 Ark. 1, 109 S. W. 526, the compromise agreement was not binding upon the district, being made by two members of the board in the absence of the third, without notice to him. In the first case cited this court said: “We conclude that two directors might, bind the district by a contract made at the meeting at which the third was present, or of which he had notice; but no contract can be made at a meeeting, and no meeting can be held, unless all are present, or unless the absent member had notice.” And in the last case cited, said: “Two members of a board of assessment of an improvement district are not authorized to act as a board in the absence of the third member, and without notice to him.”

The character of business referred to by the court in the two cases cited had no reference whatever to the conduct or disposition of suits brought against the district. The district was a party defendant in the instant case by virtue of a summons which had been duly served upon the commissioners of the district at the time of the institution of the suit, and by virtue of an answer which the commissioners had filed, denying each and every allegation in the complaint. It was the duty of each of the commissioners to be present when the case was called, for the purpose of taking such steps as were necessary to protect the interest of the district. The successors to the original commissioners took their place, and it was incumbent upon each of them to be present when the case was called for the purpose of either procuring a continuance, defending against the suit, or compromising and settling same. Each was bound to know that the case was pending and that the court could not he expected to delay business for the new board representing the district to give additional notice to an absent member to meet for the purpose of determining what course to pursue when the case should be called. Notice of the pendency of the suit and when the court would meet was sufficient notice to all members to be present and perform their duty. An emergency confronted the majority of the board who were present in the performance of their duty. Appellee was pressing for a trial, and appellants had failed to file a motion’ in accordance with the law for a continuance. The commissioners present sought a conference with the representatives of appellee, and finally effected a compromise and consented to the judgment. As no additional notice was required for the absent commissioner to be present, the court is of opinion that the other two, constituting a majority of the membership, had authority to compromise and settle the case and agree to a consent judgment.

No error appearing, the judgment is affirmed.


text:
    Gibson v. Steadman.
    Opinion delivered January 30, 1928.
    1. Highways — order to lay off road. — Where the county court had ordered a public road to he laid out along a certain line, adjoining landowners had a right to have the road laid off as ordered, substantial compliance with the order not being sufficient.
    2. Judgment — conclusiveness.—On a petition by adjacent landowners to have a public, highway laid out according to the order .of the county court, wherein defendants pleaded a prior court order relative to the road’s location as res judicata, held that such prior order, holding that the road was laid out substantially in compliance with the court’s order, was not res judicata as to the road having been laid out exactly according to the court’s order.
    3. Highways — compliance with order of court — evidence.—On a petition by adjacent landowners to have a highway laid out as prescribed by the order of the county court, evidence held sufficient to sustain a finding and judgment that the highway had not been laid out as ordered by the court.
    Appeal from Lawrence Circuit Court, Western District; S. M. Bone, Judge;
    affirmed.

      G. M. Gibson, for appellant.

      R. C. Waldron, for appellee.
   Humphreys, J.

On September 6,1926, appellees filed a petition under and by virtue of § 5249 of Crawford & Mooses’ Digest (act No. 422 of the Acts of 1911) in the county court of Lawrence County, Arkansas, to lay out and establish a public road beginning at the northeast corner of the southeast quartet of the southeast quarter of section 7, township 16 north, range 1 west; thence south on the east line of said southeast quarter, southeast quarter to the southeast corner thereof; thence southwesterly to the west bank of said draw or branch; thence along said bank to the intersection of the Powhatan-Clover Bend Highway. On October 4, 1926, the county court established a highway along the line designated in the petition, and ordered the road opened, from which an appeal was duly prosecuted to the circuit court by appellants herein.

Appellants filed an answer in the circuit court, pleading as a defense that an order was entered in the county court establishing a public road on identically the same line designated in the petition of appellees herein, and that, pursuant to the order, overseers were appointed and the road laid out,' and that as laid out it has since been a public highway; that on February 2, 1925, the county court of Lawrence County made another order, on petition of appellees herein, in which it was recited that said road had been ordered to be laid out in 1899, and ordered the road overseer of Road District No. 5, in which said road was located, to open up said road; that appellants herein appealed from that order to the circuit court, and, on the trial of the cause, the circuit court found that the road had been laid out in substantial conformity to the order of the county court entered of record on October 8, 1899; that no appeal was taken from said order; that two such roads are unnecessary; that all matters and things now in issue were in issue in the cause above mentioned, and were adjudicated and decided in the circuit court for the Western District of Lawrence County, Arkansas, at its August term, 1925, and that said order is res judicata as to all matters and things attempted to be adjudicated in the present action; said order is especially pleaded as being res judicata. Appellants further prayed that the order of the county court of October 4,1926, be quashed; that the petition of appellees herein be disallowed; and that, in case the order was sustained, appellants herein be allowed damages in the sum of $650, and for all other proper relief.

The cause was heard upon the petition of appellees herein and the answer of appellees herein and the testimony introduced by the respective parties by the court sitting as a jury, which resulted in the following finding and judgment:

‘ ‘ Gentlemen: The court does not undertake to establish a line between these quarter sections, and I do not understand that that is before the court, or that it is necessary for the court to establish that line. I find from the testimony in the case that there is a public necessity for a public road through there between these two quarter sections, between Mrs. Gibson and Mr. Stead-man ; and that an order of the county court of this county was made in 1899 establishing a public road through there, but it seems that the road was never regularly established and has not been maintained as a . regular county road; that it has just been drifting along under present conditions. And it shall be the order of this, court that the road be established on the section line, in accordance with the order of the county court made on October 4,1926, and that that be the only road through there. That the order of 1899 be vacated and set aside, and that any roads now leading through there be changed to follow the section line in compliance with the order of the county court herein appealed from; and that the proper authorities :be directed to open the road and place it on the line in accordance with the order of the county court; and that, in the event of a fence having to be moved which belongs to Mrs. Gibson, the county pay the expense of moving the fence. And the court further finds that the amount of damages allowed in the order of 1899 was to cover damages for the public road that should go through there, and no further damages will be allowed other than the expense of moving the fence.”

From these findings and .judgment an appeal has been duly prosecuted to this court.

The testimony introduced by appellees tended to show that, although a road had been laid out and ordered opened along the line designated in appellees’ petition, it never had been actually opened; that, although appellants herein had received an allowance of damages in the sum of $40 for the land supposed to be taken under the county court’s order of 1899, they had never moved back their fence, and that the road remained and was used just as it had been prior to the order of 1899 opening the road on the section line; that several surveys had been made to ascertain where the section line was, but that said line was never definitely located and the road opened on said section line in accordance with the order.

All orders of the county and circuit courts pertaining to laying off the road were introduced in evidence by appellants herein, as well as evidence tending to show that the road had been actually laid off and opened in accordance with the order of 1899. Appellants also introduced testimony tending to show that, if the road as actually used is not on the section line, and if, when moved, it should take a strip off of appellants’ forty, the land thus taken would be worth, at the time of the trial of the cause, $650.

If, according to the contention of appellants, the road is actually on the section line, in accordance with the order of 1899, for taking- it appellants received damag-es in the sum of $40, they would not be damaged in the least by re-establishing the road on the lands already occupied by it. The order opening it would be a matter of form, and could not result in any damage whatever to them.

If, on the other hand, appellants received compensation for a road on the section line, which the undisputed evidence showed they did, they would have no right to retain this money and refuse to allow the road to be actually opened on the line designated, unless the matter at issue had once been litigated between the same parties and adjudged to have been opened on the line designated in the order of 1899. Appellants insist that this is exactly what was done, and that all matters now at issue in this proceeding are res judicata under the judgment of the circuit court of 1899, on an appeal from the county court’s order that the road be opened by the road overseer of that district. The order and judgment of 1899 relied upon by appellants does not say that the road was laid off exactly on the line designated in the order of the county court of 1899. The court only found ' and decreed that the road was laid off in substantial conformity thereto. Appellees had a right to have the road laid off exactly on the line,’ and this, we understand, is what they attempted to do in their petition filed in 1926, upon which the judgment and the order of the circuit court is based, from which they are now appealing.

There is ample evidence in the record to sustain the finding and judgment of the circuit court from which this appeal is prosecuted.

The judgment is therefore affirmed.


author: Kirby, J.

text:
    Lanahan and Brown v. State.
    Opinion delivered January 30, 1928.
    1. Indictment and information — formation of grand jury— waiver of irregularity. — By pleading to the indictment, defendants waived any alleged illegality in the formation of the grand jury.
    2. Criminal law — harmless error. — Any alleged irregularity in the formation of the grand jury is not ground for reversal, where it does not appear that defendants could have been prejudiced thereby.
    8. Robbery — ownership of property taken. — To constitute robbery it is not necessary that the ownership of the property taken should have been in the person robbed; it is sufficient if he had exclusive possession of it.
    4. Criminal law — former testimony of absent witness. — Testimony as to the statement of an absent witness made at the preliminary trial was properly admitted, where the testifying witness heard the absent witness testify and could remember his testimony.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      Houston Emory and Berry H. Ra/n&olph, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from ia judgment of conviction for robbery in Garland County. Three errors are assigned for reversal.

I. That the court erred in impaneling the grand WW.

It appears that the court convened in regular term on September 26, 1927, the grand jury was impaneled, and, after returning certain indictments, by permission of the court adjourned to Tuesday, October 18, 1927, at 10 o’clock, and that on the 6th day of October, a day of the regular term, “by order of the court, the grand jury came into open court, and, three of the members being absent, the sheriff, who had been directed to summon the grand .jury to meet in special session that day, and to summon a sufficient number of electors to serve as grand jurors during the absence of any of the regular panel, reported that he had failed to notify three of the regular members of the called meeting of the grand jury, and Bettis Wheatley, J. N. Coppick and Herman Jenks were found to be qualified, and were sworn and impaneled as members of the grand jury.” No objection was made at the time to any of said grand jurors, but, when the case was called for trial, appellants’ attorney said they desired to' save exceptions to the grand jury, which had adjourned to the 18th. The court stated the grand jury had just recessed to the 18th, subject to call.

No motion to set aside or quash the indictment on the ground that the jury was irregularly impaneled was made, and, by pleading to the indictment, the defendants waived the alleged illegality in the formation of the grand jury. Carpenter v. State, 62 Ark. 286, 36 S. W. 900 ; Holt v. State, 171 Ark. 279, 284 S. W. 1.

The court had the right to complete the panel upon the grand jury being reassembled by its order as though the members who failed to appear had been excused or discharged; and no contention is made that the new .jurors were not qualified, or that any of them were prejudiced against appellants, and any such irregularity in the formation of the grand jury was not material and could not have prejudiced the rights of appellants. 12 R. C. L., p. 1019, 28 C. J., § 60, 786; Perkins v. State, 168 Ark. 710, 271 S. W. 326; Runnels v. State, 28 Ark. 121.

2. There is no merit in - the contention that the court erred in refusing to give appellants’ requested instruction telling the jury that, before they could convict either of the defendants, they must find that the money alleged to have been taken “was the property of Peter Grumbley, and, if there is a reasonable doubt as to such ownership,” they should give the defendants the benefit of such doubt and acquit; and in instructing the jury that, if they believed from the evidence that defendants took the money from Mr. Grumbley, “and that the money taken was the property of Mr. Grumbley, or that at the time he had exclusive possession or control of it,” then the defendants would be guilty, etc. * ■

The instruction requested wlas not technically correct, and the one given correctly declared the law, it not being necessary that the ownership of the property taken must have been in the person robbed, it being sufficient if he had the exclusive possession or control of it, as the court told the jury. 17 R. C. L., § 72, p. 67; Harrell v. State, 169 Ark. 1038, 278 S. W. 45; Stoddard v. State, 169 Ark. 594, 276 S. W. 358.

3. Neither was error committed in admitting the testimony of W. G. Bouic, relating to the statement of the absent witness, Grumbley, shown to' be out of the State, made at the preliminary trial, ‘ ‘ that he was riding in an automobile on the highway with Mr. Ferguson and two young ladies, Misses Hawthorne and Murray; 'that they had parked for a minute on the^road, and that two men by the name of Laitahan and Brown came up; that Lanahan had a heavy voice, and a tooth missing above and 'below, and pulled a gun on him, and a searchlight, and took ‘his money from his person. The court asked if he said whose property it was that was taken, and Bouic replied that he had said he lost this money from his person; did not remember that he had said anything other than that he had lost $11, and that they took it from him. ’ ’

This testimony shows that the witness had heard the absent witness testify and could remember his testimony. Petty v. State, 76 Ark. 515, 89 S. W. 465; Poe v. State, 95 Ark. 172, 129 S. W. 292.

The young ladies also testified about the occurrence, and the evidence is ample to support the verdict.

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


text:
    Edwards v. Jackson.
    Opinion delivered January 30, 1928.
    1. Venue — actions on official bonds. — Crawford & Moses’ Dig., § 1165, providing that actions against public officers for an act done in virtue or under color of office or on official bond, except as provided in § 1175, must be brought in the county where the cause or some part thereof arose, held valid.
    2. Venue — action on sheriff’s bond. — An action against a sheriff, deputies, members of posse, and sureties on sheriff’s bond, for killing plaintiff’s husband, must be brought in the county where the cause of action arose, under Crawford & Moses’ Dig., § 1165.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Steel é Edwards, for appellant.
    J. J. Alley, for appellee.
   Kirby, J.

Appellant, Cynthia Edwards, brought this suit in Polk County, for her own benefit as widow and as next friend for her minor children, against George A. Jackson, sheriff of Montgomery County, his deputies, members of his posse and the sureties on his official bond, for damages for the alleged wrongful act of the sheriff, the willful, wanton and negligent killing of her husband, Carl Edwards, in Montgomery County, Arkansas, while he was driving along the public highway in a Ford touring car.

The complaint also alleged that all the defendants were residents of Montgomery County, except that Ed Lewis and Will Faulkner, who were members of the sheriff’s posse at the time Carl Edwards was killed, are residents of Polk County, Arkansas.

A demurrer to the complaint and the jurisdiction of the court was interposed, its allegations showing that neither the cause of action or any part thereof were in Polk County, where the suit was brought, and also that the action was against a public officer, his deputies, members of his posse and the sureties on his official bond for acts done by him in virtue or under color of his office.

The demurrer was sustained, and, appellants declining to plead further, the cause was dismissed, and from the judgment comes this appeal.

Our statutes provide: “Actions for the following-causes must be brought in the county where the cause or some part thereof arose * * *. Second. On actions against a -public officer for an act done by him in virtue or under color of his office, as for a neglect of official duty. Third. On actions upon the official bond of a public officer, except as provided in § 1175.” Section . 1165, C. & M. Digest.

The language and meaning- of the statute on the questions involved herein is so plain as to admit of no construction. It was within the competency of the Legislature to enact it; is not in conflict with the Constitution of the State, and does not deprive appellants of any rights guaranteed by the Constitution of the United States.

The venue of the action, as shown by the allegations of the complaint, was in Montgomery County, where the cause arose, no part of it having- arisen in Polk County, where the suit was brought, and the demurrer was properly sustained. Bledsoe v. Pierce Williams Co., 147 Ark. 51, 226 S. W. 532; Reed v. Williams, 163 Ark. 520, 260 S. W. 438.

No error was committed in dismissing the complaint, and.the judgment is affirmed.


author: Mehaffy, J.

text:
    Jewel Coal & Mining Company v. Watson.
    Opinion delivered January 30, 1928.
    1. Mines and minerals — wrongful taking op coal. — -Persons taking coal from land leased to another, if done under an honest mistake as to the boundaries of the tract from which they were entitled to take coal under an agreement with the lessor, would be liable to the lessee only for the value of the ore as originally in place, but if they took it' out wrongfully and intentionally, they would be liable for the value thereof at the mouth of the mine.
    2. Mines and minerals — intentional taking. — In, a suit for the value of coal taken by defendants from land leased to plaintiff, testimony of defendants’ witnesses that the taking was intentional, held not to show that it was wrongful, but only that it was not accidental.
    3. Mines and minerals — wrongful taking — damages.—To render one talcing coal from land leased to another liable for damages in amount of the coal’s value at the mouth of the mine, there must be a determination to take it with a bad' intent, and not merely that it was taken voluntarily.
    4. Mines and minerals — intent in taking coal. — In an action for the value of coal taken by defendants from land leased to plaintiff, evidence held sufficient to show that defendants did not take the coal with bad intent, but thought they had a right to do so under agreement with the plaintiff’s lessor.
    5. Trespass — ignorance of boundaries as defense. — It is one’s duty to know and keep within the boundaries of his own land, and the ignorance thereof does not justify trespass on his neighbor’s land.
    6. Witnesses — credibility.—In a suit for the valup of coal taken by the defendants from land leased to plaintiff, evidence that no suit was begun or action of any kind taken during the life of the lessor under the verbal agreement with whom the defendants claimed the right to take coal, held admissible as bearing on the credibility of witnesses.
    7. Mines and minerals — laches.—In a suit for the value of coal taken by defendants from land leased to plaintiff, evidence that no suit was begun or action of any kind taken during the life of the lessor, under a verbal agreement with whom defendants claimed the right to take the coal, held under the evidence to be insufficient to bar the cause of action on account of laches
    8. Appeal and error — remand of cause. — The measure of damages ■ for taking coal from land leased to plaintiff as the result of an honest mistake as to boundaries being the value of the coal as originally in place in the ground, thé cause will be remanded, on reversal of judgment for defendants, to ascertain the amount of coal taken and the value per ton of coal as originally in the ground.
    Appeal from Logan Cliancery Court; J. V. Bourlancl, Chancellor;
    reversed.

      McCune, Caldwell & Downing, H. M. Noble, Ray Blair and Hill & Fitzhugh, for appellant.

      Hall Brothers and Evans & Evans, for appellee.
   Mehaffy, J.

The appellant, who- was plaintiff below, brought suit against J. D. Watson and sons, appellees, defendants below, to recover the value of coal which plaintiff claimed to have owned and alleged to have been willfully and wrongfully taken by the defendants, and also for damages for wrongfully transporting coal through entries and haulage ways belonging to plaintiff. .

Emil Baerlocher owned approximately 148 acres of land, and, on September 16, 1921, he leased all the coal under 124 acres of said land to the plaintiff. The lease was for a period of 20 years, and provided for a royalty of 21 cents per ton, and minimum royalty of $1,000 per year. This lease, however, did not cover the land in controversy, which was 3.8 acres. Besides the 124 acres included in the lease, however, Baerlocher owned 23.8 acres, and it was 3.8 acres out of this latter tract that it is claimed plaintiff owned and under which it is claimed that defendants took the coal.

. On October 20, 1921, the plaintiff secured another lease from Baerlocher, which, it is alleged, covered the entire 148 acres, and the royalty per ton was the same, but the minimum royalty increased to $1,200 per year. It is alleged that this lease covered all of the coal owned by Baerlocher.

Plaintiff alleged that it was later discovered that there was an error in this lease- of October 20, 1921, in that it did not properly describe the 3.8 acres. Plaintiff claims, that this discrepancy was not discovered until early in the year of 1925.

On March 30, 1925, a new lease was executed which, it is alleged, was for the sole purpose of correcting the description of the 3.8-acre tract. The plaintiff makes no claim that defendants took any coal from any part of the Baerlocher lands, except from, the 3.8-acre tract. The plaintiff alleged and contended that the defendants had no claim on said land at all, and that they had tried and . flailed to secure a lease from Baerlocher, and that they had also tried to secure lease from plaintiff.

Plaintiff alleges'that the coal taken by defendants was a willful and intentional trespass, and that the measure of damages is the value of the ore as found at the month of the mine. That is, the value of the coal after it had been mined and brought to the surface.

The defendants admit that they are partners and engaged in mining coal, and have been for a number of years, and deny all of the material allegations of plaintiff's complaint. They allege that, in the year 1919, they leased lands from Hunter and from Jones, and were mining coal on these lands, and that in 1924 the defendants extended an entry across the southeast corner of the Baerlocher land, and that these entries on the Baerlocher land were made with Baerlocher's knowledge and consent, and in accordance with a verbal agreement made in 1919 and 1920, and they had settled and paid Baerlocher for the coal in accordance with said agreement. They alleged that this agreement between defendants and Baerlocher was known to the plaintiff at the time they secured a lease, and that there was no proper description of the 3.8 acres, and that they had a right, under the verbal agreement with Baerlocher, to take the coal which they did take, and that all the coal they took from the 3.8 acres was taken under the agreement and with the knowledge both of Baerlocher and of the plaintiff.

Plaintiff introduced in evidence plats showing the location of the lands leased and of the 3.8 acres, the land involved in this controversy.

The appellant states: “The issues in this case are brought to rather narrow confines under the pleadings and evidence.”

The only questions involved are, first, did the defendants wrongfully take coal that belonged to the plaintiff1? If they did not, it would be unnecessary to discuss or determine any other question. If, however, they did take coal that belonged to the plaintiff which they did not have a right to take, it then becomes important to 'determine whether they took it in good fáith or whether they were willful trespassers, because, even if the coal belonged to the plaintiff and defendants took it as a result of an honest mistake, the defendants would have to pay only the value of the ore as it was originally in place in the ground; whereas, if they took out the coal wrongfully and intentionally, that is, if they were willful trespassers, they would have to pay the value as found at the mouth of the mine.

Appellant states: “The sole issues are, first, the amount of coal removed, and, second, the measure of damages. ”

We agree with this statement of the appellant. And since these are the only issues involved, it is necessary to determine whether the coal taken by defendants was taken under an honest belief that they had a right to take it, or Avhether they Awllfully and intentionally took the ore, because, if they Avillfully and intentionally took the ore, the measure of damages would be the value of the coal as found at .the mouth of the mine.

Several witnesses Avere asked by appellant if they intended to take this coal. That is, if it was intentional. They of course said it was. But evidently Avhat they meant Avas not intentional in the sense that it was wrongful, but that it Avas not accidental; that it was voluntary.

The word “intentional,” Avhen used in connection AAdth the doing of a Avrongful act, signifies not only that the party intended to do the particular act, but to do it knowing at the time that it was wrongful. Ickenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162.

It is perfectly plain that the witnesses did not mean that they took it knowing at the time that it was wrongful, but what they did mean Avas that it was intentional in. the sense that it was not accidental.

This court has said, in defining “willfully” and “intentionally” in the Digest: “They mean in such statutes not merely voluntarily, but Avith a bad purpose. An evil intent Avithout justifiable excuse. Doing, or omitting to do a thing, knowingly and Avillfully, implies not only knowledge of the thing, but a determination with a bad intent to do it or omit to do it.” St. L. I. M. & S. R. Co. v. Batesville & W. T. Co., 80 Ark. 499, 97 S. W. 660.

“Intentional” is used in the same sense here. That is, to make the person who takes the property liable for damages in the value of the coal at the mouth of the mine, there must be a determination to take it with a bad intent, and not merely voluntary. It must be with a bad purpose.

In this ease the plaintiff obtained a lease, first, for 124 acres from Baerlocher. At the time it procured this lease, it endeavored to secure a lease also on the lands in controversy, but Baerlocher declined to lease this land. Shortly thereafter another lease was taken, including the 124 acres already leased to plaintiff and 23.8 acres in addition. And of this 23.8 acres this lawsuit involves, not the entire tract, but the 3.8 aeres only. In this lease, however, the 3.8 acres was not correctly described, and defendants claim that, as the lease was written and recorded, they did not take any coal from the land on which plaintiff had a lease. In other words, as testified., to by Watson, if the recorded lease was. correct, Watson did not take coal from any part of the 3.8 acres, according to his testimony. It also appears from the evidence that Baerlocher not only agreed with the defendants to let them have this coal, but that he told plaintiffs that Watson should have the right to take coal from this tract of land.

Baerlocher died before the lawsuit was begun, but, before he died, he accepted pay from Watson for coal taken from this tract of land, which he presumably would not have done if there had been no understanding that Watson should take this coal.

Mr. Gaither, one of the witnesses who testified, had been manager and superintendent for the plaintiff for a number of years. He understood that Baerlocher had given Watson the right to take coal. The testimony on this question is conflicting, but it is sufficient to show that Watson did not take it with a bad motive, but that he thought he had a right, under his verbal agreement, to take it.

Appellant refers to many authorities and quotes from some, and, among other things, contends, and the authorities support the' contention, that it is the duty of defendant to know the boundaries of his own land and keep within them, and ignorance thereof would not justify a trespasser upon his neighbor’s land. Jeffries v. Hargis, 50. Ark. 65, 6 S. W. 328.

■ There is no controversy about this proposition of law. But in this case there is no contention about the boundaries, unless it might be said that the second lease taken, not describing the land accurately., might justify Watson in taking coal up to that line. We do not think that it would justify it, however, for the reason that he knew that Baerlocher had 23.8 acres, and he knew that the lease purported to convey 23.8 acres, and he therefore knew that the lease to the plaintiff included the land about which he and Baerlocher had had the vei’bal agreement. We think his conversation with the superintendent and manager of the plaintiff and the understanding he had with Baerlocher and all the facts and circumstances justify the conclusion that he -was not a willful trespasser.

We deem it unnecessary to set out the testimony at length. It is conflicting, but we think it justifies the conclusion that we have reached. We also deem it unnecessary to comment upon or review the authorities to which attention has. been called by appellant, because there is no dispute about the rules of law applicable to this case. And these principles or rules of law are well settled by decisions of this court, which make it unnecessary to refer to any other authorities.

The chancellor -was in error in holding that the plaintiff’s claim was barred by laches. It is true that no suit was begun and no action of any kind taken during the life of Baerlocher. And it was proper to admit this testimony for the purpose of showing the action of the parties and as bearing on the credibility of the witnesses. But we do not think it sufficient to bar the cause of action.

Since the appellant itself says that the only ques.tions involved are the amount of coal taken and the measure of damages, it is unnecessary to discuss any other questions. The measure of damages is the value of the coal as it was originally in place in the ground. It will therefore be necessary, as contended by appellant, to ascertain the amount of coal taken, and it will also be necessary to take proof on the value per ton of the coal as it was originally in the ground.

The decree is therefore reversed, and remanded with directions to ascertain the amount of coal taken and the value of the coal in the ground, and to take such further action as may be necessary, not inconsistent with this opinion.