author: McCulloch:, C. J. Hart, J.,

text:
    Mays v. State.
    Opinion delivered September 28, 1925.
    1. Intoxicating liquors — operating still — etidbnce.—In a prosecution for manufacturing- alcoholic liquors and for possessing a still, evidence held to sustain a conviction.
    2. Witnesses — -impeachment on cross-examination. — In a prosecution for manufacturing alcoholic liquors and for possessing a still, where accused became a witness in his own behalf, it was proper to permit the State, for the purpose of impeachment, to cross-examine him as to a-conviction in the Federal Court for a violation growing out of the same transaction, though the Federal statute differed from that of the State.
    3. Criminal law — sufficiency of verdict. — In prosecutions for manufacturing alcoholic liquors and for possessing a still, verdicts written on separate pieces of paper without giving the style -of the cases or the name of the accused were not too indefinite to authorize judgment, where they were returned into court and duly recorded, as a reasonable construction must be placed upon the form and language of a verdict in order to arrive at the intention of the'jury and for the purpose of identification.
    4. Intoxicating liquors — separate offenses. — The State has a right, -out of the same transaction, to carve the two offenses of manufacturing liquor -and possessing a still, though the manufacture is done through the operation of the same equipment which is the subject-matter of the other charge of possessing a still.

      Appeal from Miller Circuit Court; J. E. McGollum, Judge;
    affirmed.

      Pratt P. Bacon, for appellant.

      E. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch:, C. J.

Three separate indictments were returned by the grand jury of Miller County against appellant — one for the offense of making' mash fit for distillation, another for the offense of manufacturing alcoholic liquors, and another for keeping in his possession a still. The three cases Were tried together with appellant’s consent, and the trial resulted in an acquittal under the indictment for making mash, and a conviction of the other two offenses.

The evidence adduced by the State’s witnesses tended to establish appellant’s guilt, in that they saw appellant at the still, in c'ompany with another man, having a copper bucket in his hand. The officers who. made the raid testified that they heard appellant and the other man talking before they got there, and' that appellant was standing two feet from the still and close to a ten-gallon keg of whiskey, and had a copper bucket in his hand. They testified also as to finding mash at the place. The circumstances, as detailed by the raiding officers, were sufficient to fairly warrant the inference that appellant and other parties were operating a still, and the evidence was therefore sufficient to sustain the verdict.

On. the trial of the case appellant testified in his own behalf, and on cross-examination was permitted to be interrogated, over objection of counsel, concerning his conviction in; the Federal 'Court of violations growing out of the transaction under review <in the trial of this case. Error of the court in permitting cross-examination on that subject is assigned. The court permitted the question to be asked and answered for the purpose 'of affecting the credibility of appellant as a witness. It is urged that the cross-examination on this subject was erroneous because the Federal statute is different from the State statute on this subject, but we think this affords no reason why appellant could not be discredited by showing that he was convicted in- the Federal Court. The fact that the Federal statutes on this .subject are different from the statutes of the State does not relieve the conviction-of odium so as to affect the credibility of the witness.

The point is also made that the cross-examination was improper because it related, not to other crimes, but to the particular transaction under review in this trial. It has -often been held, beginning with the ease of Hollingsworth v. State, 53 Ark. 387, that a witness may be examined as to his associates, residence and guilty, -connection with crimes for the purpose of affecting his credibility, and that an accused person testifying is no exception to that rule. The basis of the rule is that the credibility of the witness is affected by anything that throws odium upon his character, and this -applies, even though the conviction rest-s upon the same state of facts under investigation in the trial of the instant case. It is the odium of the conviction which affects his character to the extent that it is a fact for consideration in testing bis -credibility. Our conclusion is that no error was committed in this regard.

The sufficiency of the verdicts is attacked on the ground that they were indefinite in not identifying the offenses or the- name of the accused or the cause in Which the}r were rendered. The record shows that these verdicts were written -on separate pieces of paper without giving the style of the cases or -the name of the accused, but that the verdicts were returned in. open court and handed to the clerk of the -court and duly recorded. We think this is sufficient to identify the verdicts, and that they are not too indefinite to authorize judgment to be rendered thereon. A reasonable construction must be placed upon, the form and language of a verdict in order to arrive at the intention -of the jury, -and for the -purpose of identification. Fagg v. State, 50 Ark. 506. The two offenses of which appellant was -convicted grew out of the same transaction, but they were separate statutory offenses. The State hah the right to carve out the two offenses of manufacturing liquor and possessing a still, even though the manufacture is done through the operation of the same equipment which is the subject-matter of the other charge-cf possessing a still. The twp charges are based upon different elements, and may be carved out of the same transaction.

Judgment affirmed.

Hart, J.,

dissents on the ground that the court erred in admitting testimony of appellant’s conviction in Federal Court for offenses based on the same transactions as in the instant case.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Bridges v. State.
    Opinion delivered September 28, 1925.
    1. Homicide — evidence—deceased’s good character. — In a prosecution for murder, evidence on behalf of the State that deceased was a peaceable and law-abiding citizen is not admissible unless defendant undertakes to attack deceased’s character.
    2. Homicide — instruction—assumption of fact. — An instruction which assumed as undisputed that defendant procured a pistol and went armed with it to deceased’s abode was erroneous where defendant gave a different explanation of his possession of the weapon.
    Appeal from Sebastian Circuit Court, Ft. Smith District; John E. Tatum, Judge;
    reversed;

      Cravens & Cravens, for appellant.

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

Martin. Bridges was indicted in the Sebastian Circuit Court for the crime of murder in the first degree in the killing of one Douis 'Chappel. He was tried, convicted and sentenced by judgment of the court to two years’ imprisonment in the State penitentiary, from which judgment he appeals.

There are thirty-two assignments of error in appellant’s motion for a new trial. The 18th assignment is as follows: “The court erred in admitting, over the objections of appellant, the testimony of the witness, Gr. L. Winters, as to his knowledge of the general reputation of Louis Chappel, the deceased, as a peaceable, law-abiding citizen'. ”

At the conclusion of the testimony adduced by the appellant, the 'State called in rebuttal Gr. L. Winters and asked him the following question: “Did you know the general reputation of Louis Chappel in the community in which he lived as being a peaceable and law-abiding citizen?” Counsel for appellant objected to the question on the ground that no attack can be made by the appellant on the reputation of Louis Chappel. The 'objection was overruled, and the witness answered that he was acquainted with the general reputation of Chappel in the community in which he lived and that it was good.

Three other witnesses for the State testified in rebuttal to the same effect, over the objection of appellant, but appellant’s objection to their testimony was not made a ground of the motion for a new trial and, therefore, we can only consider the assignment of error as to the rulings of the trial court in permitting the testimony of Winters.

The appellant killed Louis Chappel in a personal rencounter. The testimoiry adduced by the State tended to prove that the appellant was the aggressor, made an unprovoked attack upon Chappel, and shot and killed him with a pistol. On the other hand, the testimony on behalf of the appellant was to the effect that Chappel was the aggressor; that Chappel rushed upon the appellant, grabbed at a gun which appellant had in his belt, and that in the scuffle over the gun both appellant and C'happel and Chappel’s wife, the sister of the appellant, had their hands on the gun, and in the struggle the pistol was fired; that appellant did not try to fire the pistol and did not intend to shout Chappel, or to fire the shot that killed him. In the testimony that was adduced on behalf of the appellant no attack was made upon the reputation of the deceased Chappel for peace and quiet. Under these circumsbances, it was prejudicial error to permit the testimony of Winters as above set forth.

The effect of former ruling’s of this court is that, in the absence of an attack made by the defendant upon the general reputation of the deceased for peace and quiet, testimony offered on behalf of the State tending to prove the general reputation of the deceased for peace and quiet is inadmissible. Bloomer v. State, 75 Ark. 297-299; Fisher v. State, 149 Ark. 48. See also Kelly v. State, 146 Ark. 509-512. The Attorney General contends that the testimony was admissible under the 'announcement made by this court in Carr v. State, 147 Ark. 524 at page 528, as follows: “The plea of self-defense was interposed, so the question' as to whether the appellant or deceased was the aggressor became a material isisue. The general reputation of each- for peace and quiet, therefore, was admissible as fending to show which was the probable aggressor.” But the above language of the court in that ease, when considered in connection with the question there to be decided, cannot be taken as authority for the admission of the testimony to which objection is made in the case at bar. In the Carr case the appellant had attacked the reputation of the deceased for peace and quiet, and the State was undertaking to rebut such testimony by showing that the general reputation of the deceased for peace and quiet was good. As stated in the opinion, the question presented by the record in the Carr case was “whether a character witness who testified to the good reputation of the deceased could, on cross-examination, be interrogated concerning specific acts of violence on the part of the deceased within the personal knowledge of the witness to test the soundness of the statement of the witness tending to establish the good character of the deceased.”

The question in the case at bar, therefore, was not presented and not under consideration in the Carr case, and it was not in the thought of the court in that case to announce a doctrine in conflict with the decision of this court in Bloomer v. State, supra, which doctrine has been since approved in Fisher v. State, supra. Taking the opinion ¡of the Carr case in connection with the facts of that case, the language upon which the Attorney General relies only meant that the general reputation of the deceased for peace and quiet was admissible in evidence by the State to rebut the testimony given -by the defendant in which an attack had been made upon such reputation, and therefore the Carr case is not out of harmony with our former decisions.

The Attorney General also cites cases in other jurisdictions. Wie have not examined these to determine whether they announce a doctrine contrary to our own decisions, for,- whatever may -be the ruling elseivhere, we consider the doctrine of our own cases sound, and would not follow any contrary rule, though approved by other courts.

The error of the court in permitting the testimony of Winters was therefore, as already stated, prejudicial to the appellant, and for -this error the judgment will be reversed and the cause remanded for a new trial.

In view of a new trial, we deem it proper to say that the court also erred in giving, -at the request of the State, instruction No. 1, as follows: “The fact that the defendant procured a pistol and went armed with it to the abode of the deceased is a circumstance that the jury may consider in determining what was his purpose and intention of going there at the time; 'but, after considering -all the testimony in the case, if you find that he carried the pistol there with him for some legitimate purpose and not for the purpose of killing the deceased, this will not cut off his right of self-defense. ’ ’

The ¡appellant testified that he had returned to the home of the deceased, which was also appellant’s home, for the purpose of getting the pistol; that it was his custom to carry -tlhe pistol back ¡and forth between- the compress where he worked and his home; that he had neglected to take the pistol with him to work, and he went back home to get it; that he went home and got the gun from where he usually kept it; that Louis Ohappel was there and said, "You are back here again, are you,” and appellant replied, "Yes, I came back to get my gun.” Chappel then said, "Oh, you have a gun, have you,” and rushed toward the appellant.

In view-of the above testimony of the appellant, the court should not have given the instruction above set out. It is at least susceptible of the construction that the trial court assumed as an undisputed fact that the appellant procured a pistol away from his home and went armed with a pistol to the abode of the deceased. Doubtless what the court intended to tell the jury was that, if the jury found from the testimony that the appellant at the time of the fatal rencounter was armed with a pistol, this was a circumstance which the jury might consider in determining what his motive was; that they might consider all the testimony in the case concerning appellant’s possession of the pistol at the time of the rencounter in determining whether he had the same for a legitimate purpose as explained by him or for the purpose of killing the deceased. The phraseology used by the court to express his thought was not happy, to say the least, and, if an instruction' on the subject is offered on new trial, it ■should be couched in language which is not susceptible of being construed as an invasion of the province of the jury in determining a disputed fact.

The appellant objects .to other rulings of the court in the giving of instructions, but we deem it unnecessary to comment upon these except to say we have examined the same and find no reversible error in the rulings of the court in the particulars of which the appellant complains. Since the case must be reversed and remanded for the error indicated, we refrain from discussing the objections made by learned counsel for appellant as to certain remarks of the court, and to the alleged error of the court in its rulings concerning the testimony of one J. A. Barrett, as the alleged errors in these respects, we assume, null not be repeated on a new trial.

For the error in admitting the testimony of fx. L. Winters, the judgment is reversed, and the cause is remanded for a new trial.


author: Hart, J.

text:
    Lewis v. State.
    Opinion delivered September 28, 1925.
    1. Continuance — absent witness. — It was not error to refuse a continuance for the absence of a witness where the party applying therefor does not detail the circumstances which caused the absence of the witness nor state any facts showing that he could procure the attendance of such witness at a subsequent term of court.
    2. Criminal law — arrest of judgment — ground.—Under Crawford & Moses’ Dig., § 3224, the only ground upon which the judgment in a criminal case may be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.
    3. Criminal law — self incrimination — waiver of objection.— Objection that the accused was compelled to appear before the grand jury which indicted him for the purpose of being identified by the prosecuting witness cannot be raised for the first time after conviction.
    4. Criminal law — newly-discovered evidence. — A-s a general rule, newly discovered evidence tending to impeach the credibility of a witness for the State is no ground for a new trial.
    Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keek, Judge;
    affirmed.

      Eugene Sloan, for appellant.

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

Frank Lewis prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime ;of selling intoxicating liquors in violation of our statute.

The first ground for the reversal of the .judgment is that the court erred in refusing to grant his motion for a continuance. According to the allegations of his motion, the indictment was returned against the defendant at the November term, 1924, of the circuit court. Guy Thurman and Otto Snow were named on the indictment as the witnesses before the grand jury. At the same term of the court at which the indictment was returned, the defendant had a subpoena issued for Otto Snow. The case was not tried at that term on account of the failure of the officers to serve the subpoena. Since that term of the court, the defendant has been trying to find Otto Snow in order to serve him with a subpoena in said cause, but has been unable to get definite information concerning his whereabouts. He has been informed that Otto Snow is working- at some log camp in the State of Missouri near the Arkansas boundary line, and that he lives near Apt in Craighead County, Arkansas.

His motion for a continuance further states that Otto Snow would testify that he was not with the prosecuting witness at ‘any time when he purchased intoxicating liquor from the defendant.

The court did not err in refusing to grant the motion for a continuance. The defendant did not detail the circumstances which caused the absence of the witness, and did not state any facts upon which the court could base a claim that he could procure the attendance of'the wit ness at a subsequent term of the court. Under these circumstances it can not be said that the court abused its discretion in refusing to continue the case. James v. State, 225 Ark. 269; Adkisson v. State, 142 Ark. 15; and Eddy v. State, 165 Ark. 289.

The second ground upon which the defendant relies for a reversal of the judgment is that his motion in arrest of judgment should have been sustained.

Under § 3224 of Crawford & Moses’ Dig-est, the only ground upon which a judgment shall be arrested is that the facts stafedrin the indictment do not constitute a public offense within the jurisdiction of the court.

It is not claimed ‘that the language of the indictment does not sufficiently charge the offense for which the defendant was convicted. The sole reliance upon which the motion in arrest of judgment is sought to be sustained is that the defendant was compelled to appear before the grand jury which returned the indictment against Mm for the purpose of being identified by the prosecuting witness. The defendant did not at the time, or any time during the progress of the-trial, interpose any objection, or seek any ruling of the court on account of this alleged error. It is too late to insist upon it now; for it was waived by Ms failure ¡to 'object to the proceeding at some appropriate time in the court below. Hamilton v. State, 62 Ark. 543; Latourette v. State, 91 Ark. 65; and Dover v. State, 165 Ark. 496.

The third ground, relied upon for a reversal of the judgment is that the court erred in refusing to grant the defendant a new trial because of newly discovered evidence.

In support of his contention in tMs behalf the defendant cites Bussey v. State, 69 Ark. 545, and other cases Where ¡the court held it wias error to refuse a new -trial upon the ground of newly discovered evidence where the defendant was convicted mainly upon the testimony of the prosecuting witness, and where 'that witness made an affidavit after the trial in which she made a retraction of her testimony given at the trial. These cases have no application to the facts presented by the record in the case at -bar. The newly discovered evidence only goes to the impeachment of the prosecuting witness by showing that he made statements to other persons inconsistent with his testimony at the trial. This court has repeatedly held that, as a general rule, newly discovered evidence tending only to impeach the credibility of a witness for the State is no ground for a new trial. Jones v. State, 72 Ark. 404; and Morris v. State, 145 Ark. 241.

There was no prejudicial error committed by the trial court, and the judgment will therefore be affirmed.


text:
    Griffin v. State.
    Opinion delivered September 28, 1925.
    1. Intoxicating liquors — unlawful sale — evidence.—Evidence of witnesses that they had bought “liquor” from defendant held to sustain a conviction of selling intoxicating liquor.
    2. Intoxicating liquors — unlawful sale — evidence.—In a prosecution for unlawful sale of intoxicating liquor evidence of the officer who arrested defendant that he found a small quantity of liquor on the defendant’s person was admissible as a circumstance tending to show his guilt.
    3. Criminal law — improper argument of counsel. — In a prosecution for the unlawful sale of intoxicating liquor it was prejudicial error to permit the prosecuting attorney, over objection, to argue that it was the duty of defendant to introduce evidence that the check alleged to have been given by one of the prosecuting witnesses for the liquor claimed to have been sold by defendant had never been issued, as it devolved upon the State to prove defendant’s guilt.
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge;
    reversed.

      G. T. Bloodworth, for appellant.

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

Jay Griffin prosecutes this appeal to reverse a judgment of conviction against him for the crime of selling intoxicating liquors in violation of the .statute.

The first assignment of error is that the evidence is not legally sufficient to sustain the verdict'. It was proved by the State that the defendant bad sold liquors to two different persons on two different occasions. One of these witnesses testified that he bought one quart' of liquor from the defendant and paid him $3 for it; that he took two drinks out of the bottle and had bought liquor from other people; that he never bought any liquor from the defendant except the one time; that he drank liquor, but had not drunk any liquor in a long time.

Another witness was asked if'he (had ever bought any whiskey from the defendant, and he answered that he had got liquor at his house; that he had_gotten one quart; that he asked the defendant about liquor, or something to drink, and the defendant told him to go around his house and, if he found anything he wanted, to get it; that he went around the house and found a quart of liquor and left $1.2-5 in payment of it. We copy from his cross examination the following: “Q. Was it-good liquor? A. No, sir; it wasn’t good. Q. It wasn’t as good as you had been getting-? A. I had drunk better in Missouri when liquor was in. Q. Since it is out, where do you get it? A. I still get it in Missouri.”

This testimony, if believed by the jury, warranted it in bringing in a verdict of guilty. It is true that the word “liquor” includes both intoxicating and non-intoxicating liquors. The jury might have found, however, that it was used by the witness as implying those liquors which are of an intoxicating nature, and this is especially true when we consider that one of the witnesses spoke of having drunk better liquor when liquor was in Missouri, and stated further that he could still get liquor in Missouri. It is a matter of, common knowledge that liquors which are non-intoxicating can be purchased anywhere. Therefore, we hold that this assignment of error is not well taken. Kinnane v. State, 106 Ark. 337, and Joyce on Intoxicating Liquors, § 2. ■ !'-

The evidence for the State also shows that the liquor was sold in the Western District of Olay County, Arkan-, sas, within the time mentioned in the indictment.

The next assignment of error is that the court erred in permitting the officer who arrested the defendant to testify that he found a small quantity of liquor on the defendant when he arrested him. This assignment of error is not well taken, for the jury might consider the fact that he unlawfully had liquor upon his person asa circumstance tending to show his guilt of the crime of selling intoxicating liquors. Casteel v. State, 151 Ark. 69, and Noyes v. State, 161 Ark. 340.

The next assignment of error is that the court erred in permitting the prosecuting attorney in his closing argument to tell the jury that it was the duty of counsel for the defendant to 'have introduced evidence to show that the check claimed to have been given: by one of the prosecuting witnesses for the liquor claimed to have been purchased by Mm from the defendant had never been issued. The prosecuting attorne}r asked why the defendant had not done this. His statement was objected to by counsel for the defendant, and the court was requested to instruct the jury to disregard it. The court overruled his objection, and the defendant saved his exceptions to the ruling of the court. We agree with counsel for the defendant that the action -of the court in this respect constituted prejudicial error calling for a reversal of the judgment. It devolves upon the State to establish the guilt of the defendant beyond a reasonable doubt, and the defendant was not required to prove any fact to establish his innocence. The action of the court amounted to an approval of the statement of the prosecuting attorney, and its effect was to instruct the jury that the burden was upon the defendant to show that no check had been given him by one of the witnesses for the State in payment of the liquor claimed to have been purchased from him by the witness. Wells v. State, 102 Ark. 627; Parsley v. State, 148 Ark. 518; and Wood v. State, 169 Ark. 671.

We have examined the instructions given and refused by the court and find no prejudicial error in its ruling on them.

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


author: Smith, J.

text:
    Newton v. State.
    Opinion delivered September 28, 1925.
    1. Larceny — sufficiency op evidence. — In a prosecution for theft of an automobile, evidence held to sustain a conviction.
    2. Criminal law — instruction—assumption of fact. — In a prosecution for larceny, an instruction which, after distinguishing-direct and circumstantial evidence, told the jury that they might consider both the direct testimony of the witnesses and the circumstances that has been proved, and that, if they believed, either from the direct testimony or from circumstantial evidence or from both and .beyond a reasonable doubt, that the defendant is guilty, they should find him- so — held not objectionable as assuming that certain circumstances had been proved.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      D. E. Waddell and J. 8. McKnight, for appellant.

      H. W. Applegate, .Attorney General, and J ohn L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was indicted for the larceny of a Ford automobile, the property of J. R. Wylie, and upon' his trial was convicted, and he has appealed. For the reversal of the judgment he insists that the testimony is not legally sufficient to sustain the judgment, and that error was committed in giving and in refusing to give instructions.

Wylie testified that about twelve o’clock on the night his car was stolen he heard a noise which attracted his attention, and he got up and. went out on his porch, and he there heard some one cranking a car about a hundred yards from his house. H,e went to his garage and discovered that his car was gone, but the car he had heard cranked was not out of hearing. He immediately notified the sheriff and his neighbors, who started in pursuit of the thief. They stopped at a house, and in a short time heard a car approaching, Which they attempted to stop, but the driver drove on without heeding the command to halt. Wylie recognized this car as being the one stolen from his garage, and testified that the next morning he discovered the place where the car had been turned around in the road. Appellant was apprehended, and he gave a fictitious name and told conflicting stories about where he had come from and his destination. His explanation of his possession of the car was that .a -man named ’ Blackie, whom he had never seen before, had employed him, to drive the car to Sheridan., and had promised him twenty dollars to do so. Blackie and a companion, who whs with him in another car which they deserted that night, were not arrested. The oar in which Blackie and his companion were riding had been stolen in Malvern, a night or two before. The theory of the defense was that appellant was the innocent dupe of Blackie, and that while he was Waiting by the roadside Blackie and his other companion, stole Wylie’s car.

Under the circumstances of the case we think the jury was warranted in discrediting appellant’s story, that he was a mere employee of Blackie, and in finding that he was in fact a party to the larceny of Wylie’s car.

Among other instructions given was one numbered 6, reading as follows:

“Gentlemen of the jury: The court tells you that there are two kinds of testimony, namely: direct and circumstantial. Direct evidence is the relation of facts that he knows of his own knowledge through some one of his five senses, either seeing, hearing, smelling, tasting or feeling. Circumstantial evidence is the proof of one or more facts from which a separate or 'another independent fact may be drawn. So in this case, gentlemen, you may take into consideration ¡both the direct testimony of the witnesses and the circumstances that have been proved, and if you believe, either from the direct testimony or from circumstantial evidence or from both and beyond a reasonable doubt, that the defendant is guilty, you should find him so.”

It is insisted that the instruction is a charge upon the facts, in that it assumes that certain- circumstances had been proved. We do not think the instruction is fairly open to this -objection. It does not recite what circumstances were proved, but merely tells the jury to take into account circumstances ‘ ‘ that have been proved. ’ ’ There were certain- 'circumstances which were undisputed, and, if appellant conceived that the instruction assumed that all the circumstances testified to had been proved, a specific objection to that effect should have been made.

Appellant asked an instruction on the subject of circumstantial evidence, which the court properly refused ■to give, because all the evidence was not circumstantial. Some of it was as direct as evidence could be, and the instructions, as -a whole, fairly, submitted the case.

We find no error, so the judgment is affirmed.


text:
    Stroud v. State.
    Opinion delivered September 28, 1925.
    1. Witnesses — -impeachment—interest in case. — In a prosecution of W. for arson, where it was the theory of the prosecution that defendant and his brothers conspired to have W. burn a certain storehouse, and one of defendant’s brothers testified in his behalf, it was competent, showing the interest of such witness, to prove that he bad signed an appearance bond to secure W.’s release from jail, -and that witness had given the check of another brother to another surety on such bond to induce the latter to sign it.
    2. Criminal law — conspiracy—eviden oh. — Where it was the theory of the State in a prosecution for arson that defendant and his brothers had employed W. to burn the house in question, and that W. had employed another to -set the building on fire, and that defendant was party to an arrangement whereby the sum of $150 was advanced -to W. to pay for the burning of the house, it was competent to show that W. was arrested the next day after the fire with $150 on ’his person.
    3. Jury — -selection-—waiver op objection.' — Selection of a jury in a felony -case not according to the 'statutory method will not be ground for reversal where the method used was adopted at defendant’s request, and where the defendant does riot show that any person was -permitted to serve on the jury against whom- he desired to exercise a challenge.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      Jmbe P. Clayton, J. E. Chambers, Benson & Benson and Hays, Pricldy & Borex, for appellant.

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

Tliis is the second appeal in this case, a former -conviction having been reversed in an opinion reported in 167 Ark. 505. The testimony -on the present appeal is essentially the same as that on the former appeal except that certain testimony which was held inadmissible on the former appeal was not offered at the trial from which the present appeal comes.

It was the theory -of the prosecution that appellant and hi-s brothers had conspired to have a certain storehouse 'burned and had employed one T. B. Wackerly to effect that purpose.

Walter Stroud, one of the brothers, was called as a witness for appellant, and in his 'cross-examination it was developed that witness and W. D. Stroud, another brother, Who were jointly indicted with appellant, had signed an appearance bond to secure the release of Wackerly from-jail, and that witness had given the check of his brother, W. D. Stroud, for a thousand dollars to another surety on Wackerly’s bond to induce the surety to sign it and to indemnify him. This testimony was objected to on the ground that it was the independent act of an alleged co-conspirator after the consummation of the conspiracy.

When this testimony was admitted, counsel fc@ appellant stated to the court that the jury should be admonished that the testimony did liot prove that appellant Floyd Stroud had anything to do with the burning, and the court replied: “Certainly not. It goes only to the credibility of the witness.” The court did not admit this testimony as a part cf the conspiracy, but admitted it 'as tending to show the interest of the witness in the matter, and it was competent for this purpose. The testimony wlais elicited on the cross-examination of the witness, and was competent for the purpose for which it was admitted, that is, of showing the interest of the witness in the case.

It was the theory of the prosecution, as appears from the opinion on the former appeal, that appellant and his brothers had employed Wackerly to burn the house in question, and that Wackerly, in turn, had employed another person to set the building on fire, and Wackerly had been advanced $150 in money with which to make the promised payments. Testimony was offered on the part'of the State that Wackerly was arrested in Fort 'Smith the day after the fire, and that he had $150 in money on his person at the time.

It is insisted that this testimonv was incompetent for the reason that the conspiracy — if there was one — had been consummated before the arrest was made; but we do not agree with counsel in this contention. The testimony was competent as tending to prove the existence of the original conspiracy and as a part of it. If there was a conspiracy to burn the house, the payment 'and the disbursement of the $150 was an essential part of it, was in fact the consideration inducing the participation of all the conspirators except that of the Stroud brothers, by whom the payment was alleged to have -been made, and it was the State’s theory that appellant, Floyd Stroud, was a party to the arrangement whereby Wackerly had been paid the $150 found on his person.

It is urgently insisted that reversible error was committed in impaneling’ the jury, and upon this question we copv the following recitals from -the transcript.

In® ípaneling the jury to try the cause the following occurred:

“After 38 men had been questioned on their voir dire as to their qualifications by both the State and defendant, and found to be qualified, each side retired from the court room, and when they returned the following occurred. Court: Gentlemen, hand in your lists to the clerk. Counsel for Appellant: We said that we would pass on the jury as we did before. We are ready to challenge. It is the duty of the State to make their challenges or acceptances first. We just want to look over our list and then: come back and pass on them, and as soon as the prosecuting attorney has passed on each juror we will pass on that juror. Court: Gentlemen, I understood that you wanted a struck jury. I asked you how Amu wanted to pass on them, and you said: ‘Qualify all of them and then let you make your challenge. ’ The court then addressed to the prosecuting attorney the following question: ‘Did you have any understanding with them?’ And the prosecuting attorney replied: I didn’t have any agreement, either this time or any other time, but I am willing to do as the court says about it. Counsel for Appellant: We are not trying to get out of any agreement. The court must have misunderstood what the defendant asked for. I never did think about the defendant being required to pass on them before the State did. Court: I asked you how you wanted to pass on them, and you said get the list ready and take it out and pass on them. Now you come in and ask that the State be required to pass on each juror first. Counsel for Appellant: We especially request that the State be required to make her challenges first. Court: We have gone over that a number of times. Save your exceptions. Counsel for Appellant: We save our exceptions. Court: At the beginning of this trial when the jury was sworn to answer questions the attorneys for the defendant asked that they have a struck jury. The court agreed and permitted them to qualify thirty-eight men and then permitted them to take lists and spend thirty or forty minutes in making their challenges. When the defendant’s attorney returned into court, they then demanded that the jury be called one at a time and the State be required to pass on each juror first and the defense second. This the court refused to do, and the defendant saved his exceptions. The court then directed that the lists be passed in to the clerk, and the jury made up from the lists on which the State and the defendant had exercised their challenges. ’ ’

We must take'as true the facts recited by the trial court as to the agreement made in the case. No bill of exceptions was made by 'bystanders or otherwise to show that the facts in regard to the impaneling of a struck jury as stated by the court were not true, and that this wias done at the request of the defendant.

It may be said that this jury was nof made in the manner provided by law and that the practice pursued is not one to be approved. But what was done was done at the request of the defendant. He probably conceived it to be to his advantage to have thirty-eight jurors qualified before any challenges were exercised, and this favor had been granted him. Had the jury been made in the manner provided by law, it would have been the duty of the State to have first exercised its challenges, but the jury was not being made in that manner, and tbe statute had been departed from at the request of the defendant.

We have copied in. full the recitals of the transcript on the subject, and it does not appear that defendant was deprived of the right to exercise the full number of challenges given him by law, or that any person was permitted to serve on the jury against whom he desired to exercise a challenge.

It is not clear why thirty-eight jurors, and no more, were qualified, but this appears to have been the number agreed upon. As we understand the record, the State and defendant were each provided with a list of tbe thirty-eight jurors who had been qualified, and the defendant was allowed thirty or forty minutes to con sider the challenges he would make, and the challenges were exercised both by the State and by the defendant by indicating on their respective lists the names against which the right of challenge was desired to be exercised. These lists were handed to the clerk, and from the persons whose names were not challenged the jury was completed.

We say again this is not a practice to he approved, as it is not the method of impaneling juries in felony cases provided hv the statute, and we would reverse the judgment of conviction for that reason except for the facts: (a) It was done at defendant’s request, (b) The defendant does not show that any person was permitted to serve on the jury against whom he desired to exercise a challenge. And for these reasons appellant is in no attitude to complain of the irregular proceedings.

We find no prejudicial error, so the judgment is affirmed.


author: Humphreys, J.

text:
    Jimmerson v. State.
    Opinion delivered September 28, 1925.
    1. Homicide — voluntary manslaughter — provocation.—Provocation. on the part of the deceased is a necessary essential to the crime of voluntary manslaughter.
    2. Homicide — when murder. — A killing which was not accidental and was caused by no provocation, held, under the evidence, to be murder in the first degree.
    3. Homicide — harmless error. — A finding that defendant was guilty of voluntary manslaughter when the evidence established his guilt of murder in the first degree was not prejudicial to him.
    4. Witnesses — contradicting one’s witness on ground of surprise. — Where the prosecution is surprised by a witness failing to testify to facts related by him to the grand jury, he may be asked whether he had not testified to certain facts before the grand jury, as a foundation to contradict him.
    5. Criminal law — opinion of witness. — It was not improper to-refuse to permit the defendant in a murder case to1 ask a witness whether he did not know that appellant was playing with deceased when he told her that he was going to kill her.
    6. Homicide — burden of proving intent. — -It was not error to refuse to instruct the jury that the burden was on the State to prove that defendant intended to kill deceased; the statute placing the burden of proving circumstances of mitigation upon the defendant (Crawford & Moses’ Dig-. § 2342).
    7. Criminal law — -proof of venue. — Evidence held sufficient to establish the venue in a murder case.
    Appeal from Woodruff 'Circuit Court, Central District; E. D. Robertson, Judge;
    affirmed.

      Elmo CarlLee, for -appellant.

      H. W. Applegate, Attorney General, and John L. .Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted for murder in the first degree in the Circuit Court o.f Woodruff County, Central District, -and convicted of voluntary manslaughter upon a trial of the cause. From the judgment of conviction, he has prosecuted an appeal to this court.

The testimony introduced by the ¡State was to the effect that appellant had tried to go with and marry Allie Moore, and that when she refused, he threatened to kill her; that, two or three days after making the threat, they, with others, were visiting- at Beulah Woods’ house on the Hallowiay place; that about four o ’clock in the afternoon, Walter Brown, who had been hunting- rabbits, came in and laid 'his g-un down; that while the crowd was guessing riddles out of an almanac and laughing and talking, appellant arose and remarked to Allie Moore that he was going to kill her that evening, and with that remark picked up the gun and unbreeched it; that he was told by three different parties that the gun was loaded and not to be playing- with it and the girl at the same time; that, with the gun in his hands, he stepped onto the porch where Allie was; in a few minutes, the gun was discharged, the load entering- her head and killing her instantly; that, being- called upon, appellant assisted in laying the girl down, and then ran away; that he returned early that night and claimed the gun was accidentally fired.

Appellant testified in his own behalf, claiming that, while he was unloading the gun, it accidentally went off and killed Allie Moore. He testified that he had never tried to go with her or marry her, and that the .threats he made were made in a joke. He explained that the plunger in the gun was long, and for that reason he had to pull the trigger back to unload it, and, while doing so, the gun accidentally fired.

The record reflects that appellant and deceased were upon good terms, and that he had married another girl about a week before the killing- occurred.

Zollie Moore, the father of deceased, testified that he supposed the killing- occurred in the central district; that he almost knew it did.

George Barber identified a map exhibited to him as a map of Woodruff County, put out by the Woodruff County Bank of Augusta, upon which he had drawn the boundary line of the central district according- to the description thereof in the act of the Legislature creating the district. He testified that, to the best of his knowledge, it was correct.

F. Lewis testified that the Halloway place, where the killing occurred, was within the 'boundary line of the central district, as represented by the map.

The first assignment of error insisted upon by appellant for a reversal of the judgment is the insufficiency of the evidence to support the verdict. It is true that the record contains no evidence showing provocation on the part of the deceased, Which is a necessary essential to the crime of voluntary manslaughter; but the result reached by the jury amounted to a finding that the killing was not accidental. Not being accidental, it must have been, under the facts, murder in the first degree; so appellant was not prejudiced by a verdict for a lower-offense.

The next assignment of error was the admission of testimony alleged to be incompetent. The testimony referred to was that of Octavius Duffy, a State witness, given in answer to the following query of the prosecuting attorney:

Q. “By way of refreshing your memory, I want to ask you if you didn’t testify before the grand jury a short time ago, ‘He was trying to get her to let him kiss her, and she wouldn’t let him, and he got up and got a gun and said, ‘I am going- to kill you. ’ A. Yes, sir. ’ ’

We think the question proper as -laying a foundation to contradict the 'State’s witness, who had surprised the prosecuting attorney in failing to testify to facts related by him to the grand jury. The object in asking the question was to ascertain whether the statement had been made to the grand jury, and, if so, whether it was true.

The next assignment of error was the refusal of the court to permit appellant to ask Walter Brown, on cross-examination, whether he did not know that appellant Was playing with Allie Moore when he said, “I am going to kill you this evening.” This question was improper 'because it called for a conclusion from the witness. The cross-examination should have been confined to what was said and done.

Tlio next assignment of error was the refusal of the court to give appellant’s requested instructions Nos. 1 and 2. The first was >a peremptory instruction. It was properly refused because the testimony in the case warranted a submission of the issue of murder in the first degree to the jury for determination. The other was an instruction covering appellant’s theory of an accidental killing, but it was erroneous in placing the burden upon the State to prove that appellant intended to kill the deceased. Tire killing Was admitted; hence, under § 2342 of Crawford & Moses’ Digest, the burden of proving circumstances of mitigation that excused the homicide devolved upon appellant.

The next assignment of error was the alleged failure to prove the venue. The venue was established with sufficient certainty by the testimony of Zollie Moore, George Barber, and F. Lewis, heretofore set out in this opinion.

No error appearing, the judgment is affirmed.


text:
    Mode v. State.
    Opinion delivered September 28, 1925.
    1. Criminal law — opening statement. — Where the State’s theory was that appellant and three others committed a ¡burglary, it was not error for the State's attorney, in his opening statement, to state that one of defendant’s accomplices was dead and that ■another one had escaped from the penitentiary, as it was proper for the State to explain why the others would not be used for witnesses.
    2. Criminal law — competency op evidence. — Proof by one of appellant’s alleged accomplices that appellant assisted witness, arrested for the same offense, in escaping from jail, harbored him, and took him to another State, was competent as tending to show a connection between appellant and the witness in the crime.
    3. Criminal law-new trial — newly-discovered evidence. — Newly-discovered evidence which will warrant the granting of a new trial means testimony discovered after the trial which could not be discovered by the exercise of diligence before the trial, and not testimony known to the party in interest before and during the trial.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Edward Gordon, for appellant.

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

Appellant was indicted, tried, and convicted in the circuit court of Conway County for' burglary and grand larceny, and was adjudged to serve a term of three years in the 'State penitentiary on each charge nr count in the indictment. From the judgment of conviction, he has duly prosecuted an appeal to this court.

The evidence introduced by the State fended to show that appellant and three others, Homer Hendrickson, Bob Shaw, and Harry Durbin, burglarized a store at Oppelo on the night of April 7, 1924, and stole merchandise, belonging to the Van Meter Mercantile Company, of the value of $110.56.

Upon the trial of the cause, Harry Durbin testified that appellant assisted him in escaping from jail, harbored him after the escape in his home for five or six days, and then took him to Oklahoma in his car, where he left him. Toward the close of the trial, appellant moved to exclude Durbin’s testimony, and • saved an exception to the court’s refusal to do so. This exception was carried into appellant’s motion for a new trial, wherein appellant alleged surprise at its introduction and the discovery of testimony by which he could establish, an ¡alibi at the time Durbin claimed he assisted him in escaping.

The 'Opening statement of the case was made by Mr. Rorex, who Was employed to assist the prosecuting attorney. In making the statement, he took occasion to say that Homer Hendrickson had been killed, and that Bob Shaw had escaped from the penitentiary. Appellant objected to this remark, and saved his exception to the refusal of the court to exclude it. When the objection was made, Mr. Rorex said that he had made the statement in explanation of why the State could not introduce Hendrickson and Shaw as witnesses. Three assignments of error are presented by appellant as reasons for a reversal of the judgment; first, that the remark made by Mr. Rprex was improper and prejudicial; second, that the testimony of Harry Durbin was incompetent as a circumstance flor the jury to consider in arriving at the verdict; and third, that the court erred in refusing to grant him a new trial upon the grounds of surprise at Dubbin’s testimony and discovery of new evidence after the trial to counteract it.

The remark complained of was made by Mr. Rorex in the preliminary presentation of the case and in explanation of the absence of two parties that the State Would have used for witnesses if they had been available. The ¡State used Durbin, who admitted that he Was implicated in the robbery, and it was both natural and logical for the State to explain why the others implicated in the robbery would not also be used for witnesses. We see nothing in the statement indicating bad faith on the part of the attorney, or ¡an attempt on his part to testify or introduce hearsay evidence. We think the remark was proper in outlining the case.

We think the testimony of Durbin was admissible as a circumstance tending to ¡show the guilt of appellant. DiUxbin was arrested for the same offense with which appellant was charged; and, if he assisted Durbin ini escaping from jail, harbored him, and took him to another State, these acts tended to show a connection between them in the ¡crime. The relevancy of the testimony is apparent because appellant would not have assisted Durbin in making his escape if he 'had not been a participant in the crime.

Appellant’s surprise at Durbin’s testimony and the discovery of evidence to refute it were not sufficient to bring him -within the rule allowing a new trial for newly discovered evidence relating to a material issue in the case. His surprise should have been announced ■when Durbin testified, and he should have followed it up by asking a suspension of the proceedings until he could secure the Avitness to show an alibi. He must have knoAvn Where he was on the night of October 10, 1924, the time Durbin testified he assisted him in. escaping from jail. The affidavits attached to the motion for a new trial, tending to establish his alibi on that date, were affidavits of witnesses living in a town near the county seat. He knew at that time where these -witnesses lived and what they would testify Avith reference to his whereT abouts on that night. Newly discovered evidence which will warrant the granting of a new trial means testimony discovered after the trial -which could not be discovered by the exercise of diligence before the trial, and not testimony knoAvn to the party in interest before and during the trial. The rule announced by this court in the case of Nickens v. State, 55 Ark., 567, is applicable to the facts in the instant case.

No error appearing, the judgment is affirmed.


author: 'McCulloch, C. J.

text:
    Yelvington v. State.
    Opinion delivered October 5, 1925.
    1. Larceny — sufficiency of evidence. — Evidence held to sustain a conviction of grand larceny.
    2. Larceny — unexplained possession of stolen property. — The unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn, and constitutes legally sufficient evidence of guilt, though it is improper for the trial court to give an instruction as to its sufficiency.
    3. Larceny — explanation of possession of stolen property— jury question. — Where recently stolen property is found in possession of the accused, the reasonableness of his explanation is a question for the jury.
    4. Criminal law — proof of other crimes. — While proof of other crimes of a similar nature, shown to have been committed about the same time, may be admitted, as disclosing the good faith or criminal intent of the accused, or to prove a scheme or plan or system of committing- crime, or to show a connection between that particular crime and the one under investigation, it is* improper, on a charge of stealing mules, to admit proof of a theft of harness having no connection with the former offense.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.

      Bogle S Sharp, -for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   'McCulloch, C. J.

Appellant was indicted for the crimes of grand larceny and receiving stolen property, and the trial jury convicted him of grand larceny, but acquitted him -of the -crime of receiving stolen property. An appeal has 'been duly prosecuted, and the first ground urgéd for reversal is -that the testimony is not -sufficient to -sustain the verdict.

-The charge against appellant is that he stole two mules, the property of C. P. Trice. Mr. Trice i-s a farmer in Monroe County, and it has -been his -custom for many years to turn his mules and other stock into the White River bottom after the -crop had been gathered. He did that in the autumn or winter of 1921 and placed -seventeen) mules in the bottom range, and they were to remain there until -he Was ready to begin his crop in 1925. He hired -a man to look -after the mules occasionally and salt them. Askew, the man employed by Trice to look after thenuules, salted them on a .certain Thursday in -the month -of February, 1925, and on the following Wednesday, Askew and Walter Trice rode through -the- bottom looking for the mules, and five of them were missing, there being two bay mules among the missing, which were afterwards found in appellant’s possession, at his home in Phillips C-ounty, about twenty or twenty-five miles distance from the range from which the mules were lost. Appellant claims -that he bought the mtule-s from a ban-d of traveling horse-traders who passed through the country, and that he had been keeping the mules openly in his horse-l-ot adjoining the public .highway and working them in a' field along the highway. Two other witnesses testified that, shortly after the time the mules were missed from the range, they saw; three men traveling along- the highway leading- out of the range and having seme mules in their possession. According to the testimony of one of the witnesses, the mules answered the description of those lost by Trice, and the same witness also identified appellant as being one of the men that he saw talcing the mules out of the range. This witness testified that when the men with the mules approached he heard one of them give directions to the other two to ‘ 'turn into the woods, ’ ’ and that immediately the men with the mules turned off the highway into the woods. The identification by the witness of appellant • as one of the men with the mules wias a little indefinite, and the witness refused to say positively and unequivocally that appellant was one of the men, but he stated in his testimony that according to his opinion and belief appellant was one of the men. While the testimony of this ■witness was not positive and convincing, the question Of weight was one for the jury. The statement of this witness was sufficient to constitute an identification of appellant, and his testimony, if given full credit and weight, was sufficient to constitute an identification of appellant as being one of the men having the mules.

It has been decided by this court that unexplained possession of recently stolen property is a fact from Which an inference of guilt may' be drawn‘and con stitutes legally sufficient evidence of guilt, though it is improper for the trial court to give an instruction as to its sufficiency. Duckworth v. State, 83 Ark. 192; Long v. State, 140 Ark. 413; Pearrow v. State, 146 Ark. 182.

Where recently stolen property is found in the possession of the accused, the reasonableness of his explanation is a question for the jury to decide in determining What inference is to be drawn. In the present case we have the fact that recently stolen property was found to be in appellant’s possession, and the reasonableness of his explanation was, as before stated, a question for the jury. He testified that he bought the mules from the horse-traders and paid thirty dollars apiece for them. The jury might have concluded that his explanation was unreasonable. In addition to that, there was one witness who testified that he saw appellant and two other men driving along the road with mules in their possession;, and there was testimony that the tracks of the mules went in the direction of appellant’s house, where they were finally found. Ou)r conclusion, therefore, is that the evidence was sufficient to sustain the verdict.

Error of the court is assigned in admitting the testimony of the theft of other property and the finding of the same in appellant’s possession. The State proved ■by witness T. T. Malone that he went to appellant’s house at the latter’s request and saw mules there which were afterwards identified as the Tlrice mules which had 'been, stolen from the range, and that he also saw some sets of harness which were afterwards shown by another witness, P. G. Nolen, to have been stolen from him. Appellant objected to this testimony both of Malone and Nolen. We are of the opinion that it was error to admit the testimony of other thefts and appellant’s possession of the other property which had been stolen. This court has adopted a very liberal rule in declaring exceptions to the general rule against proof of other crimes. We have said that proof of other crimes of a similar nature, shown to have been committed about the same time, may be admitted as disclosing the good faith or criminal intent of the accused, or to prove a scheme or plan or system of 'committing crime, or to show a connection between that particular crime and the one under investigation. Howard v. State, 72 Ark. 586; Setzer v. State, 110 Ark. 226; Davis v. State, 117 Ark. 296; Murphy v. State, 130 Ark. 353; Cain v. State, 149 Ark. 616; Johnson v. State, 152 Ark. 218; Nichols v. State, 153 Ark. 467. The proof in the present case does not, however, fall within the exception. The proof of the theft of the harness had no connection with the alleged theft of the mules. It occurred at a different time and place, and uq,der those circumstances it had no tendency to establish a plan or •scheme which included the theflt of the stock, and formed no connection with that incident. The court admitted the testimony on the theory that it tended .to establish the good or bad faith of the accused, but we do-not think that it was proper for that purpose. The assignment falls squarely within the decision of this court iii the recent case of Mays v. State, 163 Ark. 232. In that case the defendant w!as convicted of the offense of receiving stolen property, -and the 'State proved the theft of ia valise containing woman’s apparel, that two of the dresses were ■ found in the possession of appellant, and that other stolen property had also been found in his possession. We held that the testimony was incompetent, and the same reasoning calls for the exclusion in the present case of testimony relating to other thefts. The fact that the stolen harness was found in appellant’s'possession at ¡the same time that the mules were found there does not relieve the testimony of the objection that it relates to another crime. Oiur conclusion, therefore, is that the court erred in admitting this testimony, land, as we have no means of knowing its effect upon the mind of the trial jury, the error must be treated as prejudicial. .

The judgment is therefore reversed, and the cause remanded for a new trial.


author: McCulloch, C. J.

text:
    Stewart v. Budd.
    Opinion delivered October 5, 1925.
    1. Pleading — answer alleging procurement of judgment by fraud — conclusion.—In a suit upon a foreign judgment, an answer alleging that, after plaintiff commenced an action against defendant in Missouri, defendant paid off plaintiff’s claim which was the basis of the suit, and that, notwithstanding such payment, plaintiff subsequently procured a judgment in such action, and that this constituted a fraud in procuring the judgment, held not to state a conclusion, but a good defense defectively stated, and was not demurrable, ibut the defect should have been reached by motion to make the answer more definite and certain.

      2. Judgment — procurement by fraud — evidence.—Evidence held to sustain a finding that a judgment in another State was procured by fraud.
    3. Trial — effect of both parties asking a peremptory- verdict.— Where each of the parties to an action requested the court to direct a verdict in his favor and requested no other instructions, this was tantamount to consent for the court to take the ease from the jury and decide the issues upon the evidence.
    4. Appeal and error — wrong forum- — harmless error. — That a case triable in equity was tried at law before the circuit judge sitting as a jury was harmless error where the case was correctly decided.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      G. D. Atkinson, for appellant.
   McCulloch, C. J.

Appellant instituted this action against appellee in the circuit court of Washington County on a judgment rendered in his favor against appellee for the sum of $500 in the circuit court of Newton County, Missouri. The transcript of the proceedings in the Missouri court shows that the action was based upon -alleged liability for tort, and that the court rendered judgment in favor of ap-pellant against, appellee and assessed the damages at $500. Appellee filed an answer stating, 'among other things, that the claim of ■appellant against appellee had been fully settled and paid off, that appellant had executed a written receipt for the sum paid, and that the judgment in the Missouri court had been secured by fraud practiced by appellant upon the court. There was a demurrer to this part ’ of the answer, which the court overruled. Appellant also filed a motion to transfer the case to equity, which the court overruled, and the parties proceeded to trial before a jury, but, when the testimony had been introduced, both parties moved for a peremptory instruction, and the court decided the issues in favor of appellee -and rendered judgment accordingly.

The first assignment is that the court erred in overruling the demurrer to the answer, the contention being that the allegations with respect to the alleged fraud in procuring the judgment sued on merely constituted conclusions of law rather than a statement of facts. There was, as we have already seen, an .allegation that appellee had, after the commencement of the Missouri action, paid off appellant’s claim which was the basis of that suit, but that, notwithstanding* such payment and the execution of a written receipt by appellant, she had procured a judgment on the original claim, and that this constituted a fraud upon the court. This was not a mere .statement of a conclusion, but it was an attempt to state facts upon which the alleged fraud was based. In other words, the allegations, taken together, constituted an imperfect statement of a defense and was not demurrable, but should have been reached by a motion to make more definite and certain. There was no error therefore in overruling the demurrer.

It appears from the testimony in the case that appellee resides in the city of Fayetteville, in Washington County, Arkansas, and that the judgment rendered by the Missouri court was based upon a claim by appellant that appellee had wrongfully and negligently injured appellant in the operation of an automobile while driving through and along the streets of Neosho, Missouri. Appellee testified in the trial that he did n'ot in fact cause the injury of which appellant complains, but that, when the suit was brought against Mm in Missouri, he, with his attorney, went to Neosho during the pendency of the action and made a complete settlement with appellant, paying her the sum of fifty dollars and the fees of her physician, and the costs of the action, and that this settlement was made with the consent of appellant’s attorney, who was representing her in the case at that time. Appellee testified that after making settlement he returned borne, and that, he knew notMng more of the matter until suit was brought in this 'State on the judgment. There was other testimony adduced by appellee in support of the claim that he had compromised and settled appellant’s claim against him. Appellant did not testify as to any specific agreement that the suit was to be dismissed, tout it is fairly inferable from his testimony that there was such an understanding, and that the judgment against .appellee was taken in violation of this agreement after the settlement was made. The court found these facts to be true, and the evidence is abundant to sustain this finding.

The request of both parties for a peremptory instruction, without asking other instruction, was tantamount to consent for the court to take the case from the jury and decide the issues upon the evidence. St. Louis Southwestern Ry. Co. v. Mulkey, 100 Ark. 71.

The facts constituted a fraud upon the Missouri court, for, if there was a settlement made with the understanding that the case was to be dismissed and appellee was permitted to return to his home in Arkansas in reliance upon that agreement, it constituted fraud to ask the court to render judgment on the original claim.

It is also contended that appellee is precluded from taking advantage of the alleged fraud by reason of the fact that he appeared in the Missouri court by attorney and filed a motion to quash the service of summons, and that his sole remedy was to prosecute an appeal from the action of the court in overruling the motion. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488. It does not appear in the record, as abstracted, whether settlement was made between the parties before or ’after the motion was made to quash the service. That is unimportant, however, so far as concerns the result, for, if the settlement was made after the court refused to quash the service, 'and appellee relied upon the promise to dismiss the action, it would constitute fraud, notwithstanding that the service of summons was valid. On the other hand, appellee testified that he did not authorize any attorney to appear for him in the action or to move to- quash the service, and hence an unauthorized appearance after they made a settlement of the case would not bar appellee from setting up fraud in procuring the judgment. The question of the validity of the service of summons is not involved in the action here. Treating it now as valid, appellee is not precluded from showing' that the judgment against him was obtained by fraud after he had settled with appellant and left the State of Missouri and returned to his home, relying upon appellant’s promise to dismiss the action.

It is next contended that the Missouri judgment w'as conclusive, and that the allegations of fraud in obtaining ■the judgment are not available as a defense at law. Appellant relies on the decisions of this court in Peel v. January, 35 Ark. 331, where the court held that in a -suit on a foreign judgment the defense of fraud in procuring the judgment was not available at law, but must be resorted to in a court of equity in a proceeding to cancel the judgment. The right to defend in the courts of this State against a foreign .judgment sought to be enforced here wavs clearly recognized in the case of Peel v. January, supra, and, if we adhere to the rule announced in that rase, that the defense must be taken advantage- of in a court of equity, there was no prejudice in the trial court’s refusal to transfer the cause to equity. The case was taken from the jury and decided by the trial court upon the facts, and appellant was not injured by having the issues decided by the circuit judge instead of by the chancellor. The finding of the trial judge is supported by a clear preponderance of the evidence, and we will not reverse the judgment merely because that finding was made by -the circuit judge instead of by the chancellor. In other words, the case was decided correctly, and, if it had been transferred and decided by the chancellor upon the same state of facts, it would be our duty to affirm the decree; hence there was no prejudice in the failure to make the transfer.

Finding no prejudicial error in the record, the judgment must be affirmed, and it is so ordered.


text:
    Daughtery v. Garner.
    Opinion delivered October 5, 1925.
    Appeal and error — transcript not properly authenticated.— A transcript signed by a person not authorized, either expressly or .by implication to .act as deputy clerk, is not properly authenticated, and will be stricken from the files.
    Appeal from Sharp Chancery Court, Northern District; Lyman F. Reeder, Chancellor;
    appeal dismissed.

      II. A. Northcutt and T. I. Ilerrn, for appellant.

      D. L. King and Arthur Sullivan, for appellee.
   McCulloch, C. J.

Appellants were the defendants in an action instituted by appellees in the chancery court of the Northern District of Sharp County to cancel certain deeds to real estate and to remove the cloud from the title of the lands in controversy, alleged to ¡be owned by appellees. A final decree was rendered in the cause on April 7, 3.924, awarding- to appellees' the relief sought .in the complaint. On -September 3.0, 3924, -appellants 'prayed for and were granted -by the -clerk -of this court an appeal -and filed a transcript -of the proceedings purporting to be -certified under the hand of Sidney Kelley, '.he circuit clerk of Sharp County. Appellees subseuently filed a motion to strike that transcript from the A es of thi-s court and -dismiss the appeál on the ground that the certificate to the transcript was not signed by the clerk nor any of his deputies nor by any person authorized by him to do so. Appellants filed a response alleging that the name of the clerk was signed to the certificate by T. J. Davidson, who had been left in charge of the office of the clerk by that -officer, with authority conferred orally to -sign papers in his name. The issue raised concerning the authenticity of the clerk’s signature to the transcript was referred by this court to a master to take testimony, and that has been done, and the testimony of the witnesses is before us for consideration in determining whether -or not the transcript was properly authenticated.

There is a conflict in the testimony as to some of the facts involved. The case was, as before stated, tried in the chancery court of the Northern District at Hardy. The courts of the Southern District are held at Evening Shade, the county seat. Sidney Kelley, the circuit clerk of Sharp County, lives at or near Evening 'Shade and has personal charge of the office there. He has only one deputy, his wife, Mrs. Myrtle L. Kelley, and the clerk’s office at Hardy is kept ¡by two legally appointed deputies, Gus Causey and Roy Prewitt.

Appellants were represented below, and are so represented-here on the appeal, by two attorneys, Mr. Noxthcutt, who resides at Salem, in Pulton County, and Mr. Herrn, who resides near Evening Shade, in Sharp County. After the rendition of the decree, Mr. Northcutt caused a transcript of the proceedings to be prepared at Salem, and on or about June 25, 1924, he presented it to Mr. Kelley in person at Evening Shade for certification, and Kelley signed the certificate and delivered it to Northcutt, but that transcript has never been filed in this court. Mr. Northcutt sent it to Mr. Herrn for use in preparing a brief and the latter discovered that it contained some of the original papers instead of copies and he sent it back to Northcutt for correction. Northcutt then took the original papers out of the transcript and caused a new transcript to be prepared at Salem with copies instead of the original papers, and then sent the new transcript, retaining the old one in his possession, to Mr. Herrn at Evening Shade to have it signed by the clerk. The transcript was presented by Mr. Herrn to T. J. Davidson at the clerk’s office at Evening Shade. Davidson signed the name of Kelley to the certificate. This was done in the absence of Kelley and his wife, the authorized deputy.

It is claimed on the part of appellants that Davidson, though not regularly appointed in accordance with the statute (Crawford & Moses’ Digest, § 1370), was given authority orally to perform the clerk’s duties during the absence of Kelley. Davidson testified that he had been in and about the clerk’s office for many years and was familiar with the duties of the office, and that Kelley, being sick a g'ood deal of the time, had asked him to look after the office in his absence; that he told Kelley that he (witness) was one of the commissioners of accounts of Sharp County, and reminded Kelley of his disqualification to act. as deputy clerk on that account, but that he would stay in the office in the absence of the clerk and look after the business there, and did so, and that he signed the certificate under presumed authority in the absence of Kelley. Kelley denied that he had ever authorized Davidson to manage the office or to sign his name to papers except in one or two instances he had orally authorized Davidson to make up and sign certain pension certificates. Kelley testified that he had two deputies at Hardy to transact the business there, and that his wife as his deputy assisted him at Evening Shade,, and that no authority was ever conferred upon Davidson or any body else to act in his name. He and his wife both testified that they had refused to sign the transcript because it was not made by them or by any authorized deputy, and they had had no opportunity to compare the transcript with the original papers.

There is no pretense of regular authority conferred upon Davidson in the manner prescribed by statute, that is to say, by appointment in writing’ duly approved by the judge of the court.

It seems to have been the rule at common law that the appointment of a deputy to a public office might be made orally (Throop on Public Officers, § 577); •but we find it unnecessary to decide whether that rule could be applied in the face of our statute, which prescribed the mode of appointment of deputies, or whether the acts of a deputy orally appointed could be upheld on the theory that he was a de facto officer, for the majority have reached the conclusion that the evidence is insufficient to establish the fact that Davidson received authority orally to perform the duties of the office or that the acts performed by him with the consent of the clerk were sufficient to make Mm a de facto officer. All that the evidence establishes is that Davidson occasionally performed duties in the clerk’s office, but he was not authorized, either expressly or by implication, to .assume to act as deputy whenever called on to do so.

There is no indication of bad faith on the part of Davidson or the attorney who presented the transcript to him for the clerk’s signature. They both doubtless assumed that the transcript had been correctly made, and that no question would arise as to Davidson’s authority. But we think that the proof fails to show any actual authority conferred upon Davidson. On the contrary, the evidence shows that there were regularly appointed deputies at Hardy, and that Mrs. Kelley was deputy at Evening Shade. This case was tried at Hardy, and the papers were all there, and the transcript should have been made there and certified, even though the clerk himself or Ms deputy could have certified it at Evening Shade. The fact, however, that the ease was from the Northern District strengthens the view that Davidson had no authority to certify the transcript. Even if he had been authorized to attend to the clerk’s office and perform duties there iu the absence of the clerk and his regularly appointed deputy, this 'did not imply any authority to discharge any duties pertaining to -the other office in the Northern District.

The transcript being unauthorized, it cannot be accepted here in perfecting the appeal, and it must therefore be stricken out in accordance with the prayer of appellees, and, as the time for filing the transcript had expired before the motion to dismiss was presented, it is too late to supply a new transcript. The appeal is therefore dismissed.

Justices Hart and Humphreys concur in the judgment of dismissal on the grounds stated in the opinion above, and also on the ground that they have read the record presented and find that the appeal is without merit.

Justices "Wood and Smith dissent.


author: Hart, J.,

text:
    Cameron v. Fenton.
    Opinion delivered October 5, 1925.
    1. Vendor and purchaser — innocent purchaser — notice of defects. — To overcome a plea of innocent purchaser, it was only necessary to .show that the purchaser had actual knowledge of the defects in his vendor’s title, or had notice of such facts and circumstances as would put a man of ordinary intelligence an-d prudence on inquiry, which, if diligently pursued, would lead to such knowledge.
    2. Vendor and purchaser — notice to partner. — Notice of a defect in the title to land to one partner is notice to and hinds the firm wlhich purchased the land.
    3. Vendor and purchaser — notice of defect. — Evidence held to ■sustain a finding that a partnership, in purchasing land, had actual notic.e of the rights of a prior purchaser of standing timber.
    4. Appeal and error — issue not raised below. — An issue not raised by the pleadings nor determined by the court below will not be decided on appeal.
    Appeal from Little River Chancery Court; C. E. Johnson, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Tlii-s suit was brought in the chanc-e-ry court by W. 0. Fenton against J. T. Cameron to foreclose a vendor’s lien for $1,500 for the unpaid purchase- price -of the merchantable timber on a certain tract of land in Little River County, Arkansas. J. R. Hooten and Ada Mills were made 'defendants to the suit «on the ground that they claimed to have a lien on the same timber, and plaintiff asks that his lien he declared superior to the lien claimed by them.
    The facts, so far as they are material to the issues raised by the appeal, are that on the 27th day of January, 1922, W. D. Waldrop executed and delivered to W. 0. Fenton and A. A. Donham a timber deed to the merchantable timber on the land described in the complaint. The deed provides that the grantees shall have until the first day of January, 1924, to remove- the timber. On the 10th day -of January, 1923, W. 0. Fenton executed to J. T. Cameron a deed to the merchantable timber -on said land, and it also contained a stipulation that the grantee should have until the first da.y of January, 1924, to remove said timber.
    On the 29th day of January, 1923, W. D. Waldrop executed and delivered to J. T. Cameron a warranty deed to said land and reserved in it a vendor’s lien for the purchase money, in the sum of $1,500. On the 3rd day of April, 1923, a written contract was entered into between J. T. Oameron and W. 0. Fenton, in which it was expressly agreed to give to Fenton until the first day of December, 1924, the right to remove the timber from said land, and this was called an “extension agreement;” The agreement was duly signed by the parties and acknowledged by J. T. Cameron before a notary public. It was not filed for record until the 10th day of January, 1924. In the meantime, on December 21, 1923, J. T. Oameron conveyed said lands by deed to Ada Mills, as trustee for the Wilton Lumber Company, a partnership, composed of Joel Mills, Ada Mills and J. R. Hooten. It was stipulated in the deed that the land was purchased subject to the rights of W. 0. Fenton for the purchase of the timber on said lands.
    According to the testimony of W. 0. Fenton, J. R. Hooten read the extension contract and knew that his time for removing the timber had been extended by it until the first day of December, 1924. The defendants also knew that J. T. Cameron owed him for the timber. J. R. Hooten denied any knowledge of the so-called extension contract at or before the time the land was purchased by the Wilton Lumber Company from J. T. Cameron. The testimony on this phase of the case will be more particularly stated in the opinion.
    The 'chancellor made a specific finding that J. T. Oameron owed W. 0. Fenton $1,500 and the accrued interest, iand that Fenton had a lien upon the timber on said land for said amount. The chancellor also specifically found that the Wilton Lumber Company was a partnership composed of Ada Mills, Joel Mills and J. R. Hooten, and that they acquired said land with notice of, and subject to, all the rights of W. 0. Fenton.
    From an adverse decree against them in favor of the plaintiff, the defendants have duly prosecuted an appeal to this court.

      Dulaney & Steel, for appellant.

      Shaver, Shaver <& Williams, for appellee.
   Hart, J.,

(after stating'the facts.) It appears from the record that W. D. Waldrop sold the timber in question to W. 0. Fenton and A. A. Bonham. Fenton paid Waldrop for the timber, and as -between these parties there is no dispute but that the timber was owned by Fenton. Under his original agreement with Waldrop, Fenton had until the first day of January, 1924, within which to remove the timber. After he purchased the timber, Fenton sold it to J. T. Cameron for $1,500 and took his note for the purchase money. No part of this amount has been paid by C'ameron or any one for him. On the 3rd day of April, 1923, Fenton and Cameron entered into an agreement in writing extending* the time for removing the timber by Fenton until the first -day of December, 1924. This contract was signed and acknowledged by J. T. Cameron, but was not filed for record until the 10th day of January, 1924. The Wilton Lumber Company purchased said timber from Cameron on December 21, 1923.

The chancellor found the Wilton Lumber Company to be a partnership composed of Joel Mills, Ada Mills and J. E. Hooten, and the undisputed testimony shows this to be a fact. The chancellor also found that the partnership had notice of the rights of Fenton to remove the timber at the time it purchased the land and timber from -Cameron.

On this point W. 0. Fenton was a witness for himself. According to his testimony, he showed his contracts, including the extension contract, to Hooten in November, 1923, before the Wilton Lumber Company purchased the land. J. E. Hooten at first admitted that he had -signed the so-called extension contract; but later on in his testimony denied that he had signed it and explained that he was referring to the original’ contract whereby Fenton had purchased the timber from W. D. Waldrop.

The court found that the defendants had notice of the rights of Fenton. The extension contract, which was executed on the 3rd day of April, 1923, expressly provides that Fenton should have until the first day of December, 1924, within which to remove the timber.

In the deed from J. T. Cameron to Ada Mills, trustee, appears the following:

“The grantee herein buys said land subject to the right of the grantor in the 'Contract with W. 0. Fenton for the purchase of the timber on said lands, and reserves the right to remove all timber that is cut into lumber by said date, mentioned in said contract, or January 1,1924, it being understood that there are1 no other 'outstanding contracts affecting said timber, after said date, and that the timber remaining on said lands not removed therefrom, that is not cut into timber, shall be the property of the grantee herein.”

This deed is dated December 21,1923. The grantees in this deed knew that Fenton had not removed the timber from the land at the time they purchased it. Indeed, their reason for purchasing the land was to get the timber on it. Judge Waldrop told them that Fenton had paid him for the timber on the land, and that he was entitled to it. The deed from Cameron to Ada Mills, trustee, distinctly recognizes the rights of Fenton under his timber deed.

It is true that J. E. Hooten and Ada Mills claim that this stipulation refers to the original contract whereby Fenton acquired title to the timber from Judge Waldrop. It will be noted, however, that, by the terms of the original contract, the time limit for removing the timber by Fenton was January 1, 1924, and the deed from Cameron to Ada Mills, trustee, Was December 21, 1923.- It would hardly have been necessary to have made such a specific provision recognizing the rights of Fenton to remove the timber for this short space of time. Under all these circumstances it cannot be said that the chancellor erred in finding that the Wilton Lumber Company had knowledge of the extension contract whereby Fenton was given until the first day of December, 1924, for the removal of the timber. See Krow & Neumann v. Bernard, 152 Ark. 99. In that ease it was held that, to overcome a plea of innocent purchaser, it was only necessary to show that the purchaser had actual knowledge of the defects in his vendor’s title, or had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry, which, if diligently pursued, would lead to such knowledge.

This case also holds that notice to one partner is notice to all and binds the firm. Therefore, notice to ETooten of the rights of Fenton in the extension contract amounted to notice to all the partners and bound them all.

Counsel for the defendants also seek to invoke the doctrine of subrogation.

We do not deem it necessary to state the facts upon which this right is based, or even to discuss it. No such issue was raised by the pleadings or determined in the chancery court. Therefore, we now decline to pass upon the question. Desha Bank & Trust Co. v. Quilling, 118 Ark. 114; Burke Construction Co. v. Board of Improvement of Paving District No. 20, 161 Ark. 433.

It follows that the decree must be affirmed.


text:
    Miller v. Fitzgerald.
    Opinion delivered October 5, 1925.
    Adverse possession — mistake as to boundary. — Where plaintiff, owning tw;o adjacent lots, sold one of them to defendant, and the defendant, relying upon a fence enclosing his lot, took possession of a small1 strip off the plaintiff’s lot and retained possession thereof under claim of ownership for more than seven years, his ■ possession was adverse to the plaintiff, even though his claim of title was the result of a mistake as to the boundary.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      W. D. Swaim, 'for appellant.

      Longstreth & Longstreth, for appellee.
   Smith, J.

What appears to have 'been the undisputed testimony at the trial from which this appeal comes is as follows: Appellant owned lots 15 and 16, in block 5, of Capitol View Addition to the city of Little Rock. Both lots were 135 by 50 feet, 'and on January 21, 1913, appellant sold lot 15 to appellee, the sale being negotiated by a Mr. C. A. Lee, a real estate agent. At the time of the sale there was a residence standing in about the center of lot 15, and there was a fence on what appeared to be the boundary line between lots 15 and 16, and this fence has remained there continuously since. The agent making the sale supposed the fence was on the line and pointed out the lot thus enclosed as the lot which he proposed to sell. This fence did not extend for the entire distance of the line 'dividing the lots, but appellee supposed it was on the line and indicated the boundary between the lots, and soon after purchasing the lot and moving into the house standing thereon, which appellee has since continuously occupied as her home, she planted a hedge, which became a continuation of the fence. The hedge was planted on a line with the existing plank fence and formed a continuation thereof along the supposed line between the two lots. This hedge was planted as long as eight or nine years before the institution of this suit. The hedge was at first small and grew slowly, but it continued to grow and was supposed to be on the line between the two lots.

The fence standing at the time of the sale was not on the true line between the lots. This line ran east and west and instead of being on this line the fence extended over it on to lot 16 for a distance of approximately four feet at the front and sixteen inches at the rear, and the litigation involves the strip off lot 16 which was enclosed by the fence.

Appellant contracted to sell lot 15 and the deed described only lot 15. Neither appellant nor appellee knew that the fence was not on the line, and appellant appears not to have discovered that fact until a few months before the institution of this suit, and appellee was not advised of the fact until demand was made that the /fence he moved to the true line, which demand was made shortly before the institution of this suit.

The real estate agent testified that in malting the sale he showed appellee the house and the lot, which was then enclosed by the fence still standing, and there appears to be no question that appellee supposed the fence was on the line and that she claimed title to the land enclosed by the fence.

In addition to extending the fence by planting the hedge, appellee also planted flowers in the disputed strip, this being done at the time she planted the hedge.

The law of the case appears to be thoroughly .settled. It was clearly announced by Justice Battle in the case of Wilson v. Hunter, 59 Ark. 626. The syllabus in that case which announced the conclusion reached by the court reads as follows: “¡Where one of two coterminous proprietors by mistake builds upon or encloses land of the other, intending to claim adversely merely to the real boundary line, his possession is not adverse to the other; but, if his possession was acquired and held under the claim that the 'land was his own, h-is possession is adverse to the other, even though the claim of title was the result of a mistake as to the boundary. ’ ’ The law as thus declared has been reaffirmed in the cases of Etcherson v. Hamil, 131 Ark. 89; O’Neal v. Ross, 100 Ark. 555; St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71; Goodwin v. Garabaldi, 83 Ark. 74; Shirey v. Whitlow, 80 Ark. 444; Bayles v. Daugherty, 77 Ark. 201; Broad v. Beatty, 73 Ark. 106; Murdock v. Stillman, 72 Ark. 498.

Under the testimony stated, we think the court might very well have directed a verdict in favor of appellee, the defendant below, as the testimony is undisputed that she bought lot 15 on the assumption that the fence then standing Was on the line, and that this enclosure was extended by the hedge fence, and that by the two fences she occupied, openly and adversely, the strip in question for a period of more than seven years before the institution of the suit, and that during all this time she had claimed the disputed land as her own and so regarded it, although her claim to the title was the result of the.gnistake of putting the fence back on lot 16.

Appellant asked an instruction numbered 3 reading as follows: “You are instructed that, if you find from the evidence that the title to lot 16 was in the plaintiff and that the defendant was claiming the strip of land in dispute by adverse possession, then -you are instructed that the burden of proof is upon the defendant to show by a fair preponderance of the evidence that she had been holding the said land in dispute for., more than 7 years openly and adverse against the true owner and the world, and the s-aid holding and possession was with the intention to hold the same, as against the true owner, to the fence without regards to the boundary line.”

The -court changed the word ' ‘ fence ” to “ hedge ’ ’ and gave it as thus modified, and -appellant excepted to the modification.

After ithns modifying the instruction by changing the word ' 'fence ’ ’ to read ' ‘ hedge, ’ ’ the court further charged the jury orally as follows: '' Ladies and gentlemen of the jnry: You are directed to find a verdict for the defendant as far as that part of lot 16, block 6, C'apitol View Addition, is concerned, enclosed by the fence. That leaves for your consideration only that part -of the lot which is enclosed by the hedge, of which there has been some evidence.”

It was evidently the theory of the conrt that the existence of the fence for more than seven years was an undisputed fact, whereas there might he- -some question as to the 'length of time the hedge had stood as a fence, and the modification of instruction numbered 3 and the oral instruction submitted this question.

In response to these instructions the jury returned two verdicts. In the first a finding was made as directed by the court for the part of lot 16 enclosed by the fence, and in the second a general finding was made for the defendant-appellee, thus indicating that the jury found that the hedge fence, as well as the plank fence, had stood for more than seven years enclosing the disputed strip, all >of which-' had been claimed by appellee.

The testimony is certainly sufficient, if indeed it is not undisputed, that the hedge-fence was more than seven years’ old; and it is likewise undisputed that appellee had occupied and claimed the land enclosed for a period of more than seven years, although this claim was based on the mistaken assumption that the fence was on the true line.

There appears, therefore, to have been no error in the instructions, so the judgment must be affirmed, and it is so ordered.