author: Humphreys, J.

text:
    Snyder v. State.
    Opinion delivered July 2, 1923.
    1. Jury — examinatioN or juror as to membership in secret order. —In a prosecution for murder, where suggestion was made that the presiding judge and officers of the court were members of the Ku Klux Klan, and where defendant, because of her sex, could not become a member, it was not prejudicial error to refuse to allow her to ask each of the jurors on his voir d&re examination, whether he was a member of such organization, in the absence of any showing that the members thereof were antagonistic to defendant or to any organization to which she belonged.
    2. Criminal law — improper opening statement — prejudice.—; In a prosecution for murder any prejudice in allowing the prosecuting attorney to state, in his opening statement, that the State would prove the general character and reputation of defendant to be bad, was removed where the court ruled that such proof would be incompetent unless defendant testified in the case, and where she subsequently testified.

      3.. Jury — bias.—In a prosecution for murder of a boy about 10 years old while in the watermelon patch of defendant’s father, it was not error to refuse to discharge for prejudice a juror who, bn his voir dire, stated: “I am not very strongly in favor of firearms being where men or women can handle them, and a child 10 years old is too young to be shot at, whether accidental or otherwise, on account of 'being in a melon patch;” the juror stating further that he could and would discard any bias against crimes of that nature and try the case solely upon the evidence and law.
    Appeal from Pulaski Circuit Court, First Division; W. A. Boyd, special judge;
    affirmed.

      Lewis Rhoton and X. 0. Pindall, for appellant.
    Tlie court erred in not permitting defendant to ask jurors on voir dire if they were not members of the Knights of the Ku Klux Klan, it being shown that the sheriff, the prosecuting attorney, his special assistant and the judge were all members of the Klan, and that defendant was not and could not be. 243 S. W. (Ark.) 869; 114 Ark. 542; 131 Ark. 6; 27 Mont. 327, 71 Pac. 3; 72 Miss. 140, 16 So. 387, 109 A. S. R. 565. The court also erred in permitting the prosecuting attorney to say in his opening statement that the State would prove the general character and reputation of the defendant was bad. 71 Ark. 415. The juror Bomar disqualified himself by his answers, and should have been excused for cause. 149 Col. 310, 117 A. S. R. 130:; 73 Wis. 602, 23 Am. St. 428; 136 Mo. 227, 58 Am. St. 627; note to 9 A. S. R. 747.

      J. S. TJtley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for the State.
    No error was committed in refusing to allow appellant’s counsel to ask jurors on voir dire if they were not members of the Ku Klux Klan. No antagonism was alleged to exist between defendant or any organization' to which she belonged and the Ku Klux Klan. 154 Ark. 592 not as authority contra. 17 Standard Encyclopedia of Procedure, 298; 16 R. C. L. 277. The prosecuting attorney’s statement of what he intended to prove was not prejudicial. No ruling was asked upon the objection nor did appellant request an instruction on the point. 82 Ark. 540; 84 Ark. 128; 109 Ark. 346 ; 66 Ark. 20. The juror Bomar was not incompetent, and the court did not err in not excusing him for cause. 80 Ark. 345; 91 Ark. 441; 84 Ark. 95; 108 Ark. 425; 128 Ark. 302. 9 A. S. R. (Mass.) 747; 149 Cal. 310; 78 Wis. 603; 136 Mo. 227; 72 Miss. 140; 30 S. W. 1110.
   Humphreys, J.

Appellant was indicted in the circuit court of Pulaski' County for murder in the second degree, convicted thereon of voluntary manslaughter, and, as punishment therefor, adjudged to serve a term of four years in the State Penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

Appellant’s first assignment of error is the refusal of the court to allow her to ask juror S. M. Maple, and each of the jurors, on his voir dire examination, whether he was a member of the Knights of the Ku Klux Klan. Appellant claims to have requested this information to enable her to decide whether she would reject -the jurors peremptorily, having peremptory challenges at her disposal. As a basis for the information, she suggested that, on account of her sex she was not, and could not become, a member of the Ku Klux Klan, and that the court, prosecuting attorney, sheriff, deputy sheriff, and the employed attorney to assist in the prosecution were members thereof. The fact that officers of the law, conducting the trial of a cause, belonged to a particular organization in which the defendant could not hold membership, would not be a material inquiry, for that fact alone would not tend to show that prejudice resulted to the defendant because members of the jury were also member's of the organization. It is the sworn duty of officers to see that persons accused of crime obtain a fair and impartial trial, and it would be contrary to their official oaths to use secret order influences in the discharge of their duties. It would be next to impossible to procure jurors or officers of the law who do not hold membership in secret orders to which those frequently accused'of crime do not belong. To make the inquiry other than impertinent and a probe into the personal affairs of jurors, it should be made to appear that the organization to which the officers and jurors belong, or that the members thereof, were antagonistic to an accused or some organization to which he belongs. No showing was made that the Ku Klux "Klan or the members thereof were antagonistic to appellant or to any organization in which she held membership. Clark v. State, 154 Ark. 592.

Appellant’s next assignment of error is that the court erred in allowing the prosecuting attorney to remark, in his opening statement, that the State would prove the general character and reputation of appellant to be' bad. This assignment of error grows out of the following occurrence reflected by the record.

“The prosecuting attorney, in his opening statement to the jury, stated that the State had witnesses to prove the bad reputation and character of the defendant. The defendant at the time .saved her exceptions to •the remarks of the prosecuting attorney. ‘The Court: It is only competent in case the defendant testifies in the case. The defense: Her character might not be put in issue. The State: If you don’t put it in issue, the State will put it in issue. (Defendant saves her exceptions to the remarks of the prosecuting attorney). Tbe Court: I will instruct the jury as to the law when the matter is brought up.’ ”

In the course of the trial appellant took the witness stand in her own behalf. She made no attempt to establish a good character by other witnesses. The State, over her objection, was permitted to prove by several witnesses, in an attempt to impeach her testimony, that her general reputation in North Little Rock for truth and morality was bad. Appellant contends that the statement of the prosecuting attorney and the proof alluded to was an unwarranted attack upon her general character, under the guise of testing her veracity. We think not. When the prosecuting attorney made the statement, the court immediately ruled that such proof would he incompetent unless appellant testified in the case, and, in response to a further objection, stated that he would instruct the jury as to the law when the matter came up. He did so, restricting the matter to impeachment only. The instruction given by the court bearing upon this point is as follows:

“Any evidence of the reputation of the defendant here cannot be considered by you in any light against her except as showing what credibility you should give to her testimony. In other words, this evidence is competent only for this purpose, and cannot be considered by you as evidence in this case as to her guilt, and should not be considered as such.” We think the testimony competent, and that the ruling of the court, together with the instruction given, prevented any prejudice resulting to appellant on account of the remark made bv the prosecuting attorney in the opening statement. Section 4187, Crawford & Moses’ Digest, provides that witnesses may be impeached by showing their immorality.

Appellant’s next and last assignment of error‘is the refusal of the court to discharge juror Bomar for cause, thereby requiring her to exhaust a challenge upon him. This assignment of error is based upon answers to interrogatories propounded to Bomar, in his voir dire examination, indicating, it is alleged, a preconceived conviction about the ease, adverse to appellant. The answer of Bomar reflecting the preconceived conyiction complained of is as follows: “I am not very stronglv in favor of firearms being where men or women can handle them, and a child ten years old is too young to be shot at, whether accidental or otherwise, on account of being in a melon patch.” Appellant was charged with killing a bov about that age who had been in her father’s watermelon patch. The answer indicated just such bias as exists in the mind of every man against crimes of that nature. No man in sympathy with boyhood frailties would voice any other sentiment than .that expressed by Bomar. It was hut the honest expression of a normal man. The answer did not indicate that Bomar’s opposition to that character of crime would influence his judgment in determining the innocence or guilt of appellant. On the contrary, he answered, in effect, that he could and would discard any general bias entertained by him against crimes of that nature and try the case at issue solely upon the evidence and law. We think, under these circumstances, the finding of the trial judge that Bomar was qualified to serve as a juror was correct and should he sustained.

The judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J. McCulloch, C. J.

license: Public Domain

text:
    Ætna Life Insurance Company v. Phifer.
    Opinion delivered July 2, 1923.
    1. Insurance — total disability — waiver op premiums. — Where a policy of life insurance provided that, in case of total disability, “the company will, if all premiums previously due have been paid, waive the payment of all premiums falling due thereafter during such disability,” the word “thereafter” refers to the beginning of the disability, which was the date of the injury, and not to the expiration of six months after final proof of the injury and disability, the period when payment was to be made, and payment of all premiums falling due after the injury was waived.
    2. INSURANCE — TOTAL DISABILITY — COMMENCEMENT OF LIABILITY.— Under a policy obligating the insurer to pay a monthly sum to the insured in case of total disability “during the lifetime and during the disability of the insured,” the liability of the insurer ■began with the injury and consequent disability.
    3. Insurance — total disability defined. — Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation; it is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to ■be done in the prosecution of his business.

      4. INSURANCE — PERMANENT DISABILITY — JURY QUESTION. — In a suit under the permanent disability clause of a life policy, the question whether insured was totally and permanently disabled, under the evidence, was properly submitted to the jury.
    5. Insurance — breach op contract to pay monthly installments —damages.—-Where, in a suit based on the permanent disability clause of a life policy, the insurer denied any liability under the policy, the insured, being permanently disabled, could treat the contract as breached and sue for the present value of the monthly payments agreed to be paid during disability, based on his life expectancy.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Shouse & Rowland, for appellant.
    The demurrer to the complaint should have been sustained. It did not allege fulfilment of the conditions of clause 18, permanent disability clause. 83 Pae. 611; 82 Pac. 898; 121 Ark. 445; 88 Ark. 422; 88 Ark. 491. The loss of one foot was not sufficient to warrant a recovery. The court erred in not sustaining the special demurrer to the jurisdiction. The amount involved not sufficient to bring suit within circuit court’s jurisdiction. The court likewise erred in giving instruction number 2, which was in conflict with terms of the policy. Clark on Contracts, 219; 13-C. J. 525; 84 Pac. iS35; 118 S. W. 989; 182 S. W. 184. Instruction number 3 was erroneous. 13 C. J. 657; 181 Pac. 433; 106 Ark. 310; 54 A. M. S. 159. The court erred in not giving instructions requested by appellant. The judgment should be reversed and the cause dismissed.

      E. G. Mitchell and Sam Williams, for appellee.
    Appellant does not abstract the instructions given, nor the ones requested and refused, and this court will not review them for alleged errors. 98 Ark. 61. Under rule 9, the instructions not being abstracted, the jury is presumed to have been properly instructed. 98 Ark. 61, supra; 78 Ark. 374; 83 Ark. 356. Neither is motion for new trial abstracted. The question of appel-lee’s permanent total disability was submitted under proper instruction. 94 Ark. 417. When appellant refused payment within the time specified and denied liability, it waived proof of loss and also time for payment. 53 Ark. 494; 68 Ark. 8; 83 Ark. 126; 94 Ark. 227; 77 Ark. 27. Verdict is not excessive, and judgment should be affirmed.
   Humphreys, J.

On May 27, 1922, appellee instituted suit against appellant to recover $2,000 damages for an alleged breach of the permanent total disability clause contained in an insurance policy .issued by appellant to appellee on November 17, 1919, which clause is as follows:

“Six months after proof is received at the home office of the company, before the sum insured, or any installment thereof, becomes payable, that the insured has become wholly, continuously and permanently disabled, and will for life be unable to perform any work, or conduct any business for compensation or profit, or has met with the irrevocable loss of the entire sight of both eyes, or'the total and permanent loss, by removal or disease, of the use of both hands, or both feet, or of such loss of one hand and one foot, all from causes originating after the delivery of this policy, the company will, if all premiums previously due have' been ,paid, waive the payment of all premiums falling due thereafter during such disability, and, if such disability was sustained as above described, and before the insured attained the age of 60 years, the compan}^ will pay to the life beneficiary the sum of $10 for each thousand dollars of the sum herein described as the sum insured, and will pay the same sum on the same day of every month thereafter, during the lifetime and during the disability of the insured.”

It was .alleged in the complaint “that .after the issuance and delivery of policy, and before the plaintiff attained the age of sixty years, and at a time when all premiums previously due had been paid, plaintiff sustained, by accident, on the 18th day of July, 1921, a broken leg, which did wholly, continuously and permanently disable and will disable Mm for life, preventing Mm from performing any work, or 'conducting any business for compensation or profit; that, within the time required by the policy, plaintiff furnished proof of said injury and disability, on the ninth day of January, 1922, and the defendant refused to pay plaintiff’s claim; that plaintiff is forty years of age, and has an expectancy in life of tMrty years; that, because of the failure of defendant to pay plaintiff the sum of $10 per month per each thousand dollars insured, and by reason of the breach of contract, plaintiff is entitled to recover of defendant the sum of two thousand dollars, based upon the life expectancy of plaintiff. ”

Appellee filed a demurrer to the complaint upon the grounds, first, that the facts stated did not constitute a cause of action; and second, that the court had no jurisdiction to determine the cause. The demurrer was overruled, to which ruling appellant objected and saved an exception.

Appellee then filed an answer denying all the material allegations of the complaint, and interposed the further defenses that the policy had lapsed by a failure to pay the premium on Nov. 17, 1921, and that the suit was prematurely brought.

The cause was submitted to a jury upon the plead-, ings, testimony, and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $1000, from which is this appeal.

Appellant first contends for a reversal of the judgment because appellee failed to pay the premium due November 17, 1921, claiming it was necessary, under the permanent total disability clause, to pay the premiums maturing during the six months period from the time final proof of injury was made, in order to prevent the policy from lapsing. The injury occurred on July 18, 1921. The final proof of injury was made on January 9, 1922. A premium of $84.12 matured, according to the terms of the contract, on November 17, 1921. The correct interpretation of the permanent total disability clause contained in the policy and set out above is that the payment of all premiums falling* due after the injury was waived. The particular language in the clause providing for a waiver is: “The company will, if all premiums previously due have been paid, waive the payment of all premiums falling due thereafter during such disability.” In the connection used, “thereafter” refers to the beginning of the disability, which was the date of the injury, and not to the expiration of the six months’ period after final proof of the injury and dis-•abilitv. The purpose of the policy, evidenced by said clause, was to relieve the insured from burdens and to compensate him, in ease of permanent and total disability, during the period of disability, meaning from the beginning of such disability.

Appellant next contends for a reversal of the judgment because nothing was due appellee under the terms of the permanent total disability clause when this suit was commenced, claiming that liability under the clause did not begin until six months after the final proof of the injury and disability was made. In other words, that liability did not begin when the injury and consequent disability occurred. The correct construction of the clause is that liability began with the disability. As stated above, and for the reasons given, the purpose of the policy was to compensate the insured during the period of permanent and total disability.

Appellant’s next contention for a reversal of the judgment is that the undisputed evidence showed ap-pellee had not become wholly, continuously, and permanently disabled. We think there is substantial testimony in the record tending to show that 'appellee was totally and permanently disabled, according to Mr. Kerr’s definition of total disability when used in indemnity insurance policies. The definition given by him is as follows:

“Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. It is sufficient to prove that the 'injury -wholly 'disabled him from the doing of all the substantial and material acts necessary to be 'done in the prosecution of his business.” Kerr on Insurance, §§ 385 ¡and 386.

This definition was approved in the case of Industrial Mutual Ind. Co. v. Hawkins, 94 Ark. 417 The record reflects that appellee was a farmer 40 years of age, iand not qualified to do any other kind of business; that both bones in his leg were broken about one-half an inch above the ankle, ,and protruded through the flesh something like two inches; that the bones were set by two physicians, but refused to knit; that 17 days thereafter they were set again by Dr. Prank Kirby of Harrison; that in December following an X-ray was made of the leg, which showed that neither one of the bones had united; that in February or March following the little bone united, and appellee gained some strength in the leg, but there was still a discharge from the wound and a tenderness in the bones when appellee threw his weight upon the broken limb; ¡that at the time of the trial decayed bone was sloughing off and being discharged from the wound; that Dr. Hodgins Kirby examined the leg in February and expressed the opinion that there was a chance to make a very good foot if two operations were made upon it; that the first operation would involve a removal of the callus around the break and the second a severance of the bones by sawing them in two and inserting a piece of bone to unite them.

R. S. Krebbs, physician, examined appellee’s wound in Febuary, at the request of appellant, found an un-united break in both bones, and pronounced his disability total and permanent, but stated that, if the bones had since united, he was mistaken about it being permanent.

Dr. Blackwood, physician and surgeon, in company with Drs. Kirby, Fowler, and Ruble, examined the wound and made .an X-ray picture of the leg the morning of the trial. The X-ray picture of the outside bone indicated a break and dislocation in four places, and also showed broken tissue. Their examination revealed a stiff joint and shortened leg. He pronounced the injury permanent, but gave it as his opinion that it would ultimately heal up and.leave a normal leg, except for stiffness and length.

Dj\ L. Kirby, physician and surgeon, who had been practicing since 1871, testified that the large bone or tibia of the right leg was one inch short, and the little bone or fibula pushed down, but not quite as short; that the bones were sufficiently united to support the weight of appellee’s body; .that the discharge was coming from a space where the bone was dead; that the injury was permanent so far as the leg was concerned and would interfere with appellee’s occupation; that he did not know what was meant by a total disability, but, in his opinion, from all the facts, the foot was not wholly and permanently lost to appellee’s use; that it would be better than an artificial foot.

The wounded leg was exhibited to the jury.

We think the evidence was sufficient to warrant a submission of the question to the jury whether appellee was totally and permanently disabled. That question was submitted to the jury under correct instructions. The only objections made by appellant to the instructions were that they did not embrace certain questions precedent to the recovery, which were unnecessary, according to our construction of the permanent total disability clause in the policy. The instructions requested by appellant and refused by the court were properly refused, because based upon an incorrect interpretation of the permanent total disability clause, as heretofore indicated. .

Appellant’s last contention for a reversal of the judgment is that, even if the policy had not lapsed on account of a failure to pay the November premium, and, even if the liability occurred on the date of the injury, appellee was entitled to recover only $20 a month, under the permanent total disability clause in the policy. The record reflects that appellant denied all liability under the permanent total disability clause aforesaid. When appellant received the proof of injury and disability, it wrote the following letter to .appellee:

“Our medical board has considered this case very carefully, and is of the opinion that the insured has not necessarily become so disabled that he will never be able to perform any work or conduct any business for compensation or profit. In fact, there is a strong probability that he will receive such attention as will enable him to pursue some occupation. It would therefore appear that he does not come within the terms and conditions of the permanent total disability clause of this policy.

“It also appears from our records that this insurance lapsed by reason of the nonpayment of the November 17, 1921, premium, and is being continued on the extension feature. By referring to the permanent disability clause, it will be noted that, in order for it to be effective, all premiums should have been paid.”

This letter evinced an intention on the part of appellant not to be bound by the terms of the contract, and was equivalent to ia renunciation thereof. It stated in express words that the policy had lapsed. This denial of liability justified appellee, who was not in default, in treating the contract as breached and suing for gross damages, which he did. The measure of his damages was the amount appellant would have been required to pay him under the contract if if had not breached it, reduced to its present value. According to the mortuary tables introduced in evidence, appellee had an expectancy of 28.18 years. The payment provided for in the contract of the $2,000 policy was $20 a month. The present value thereof, according to appellee’s expectancy, was more than $1000.

The judgment therefore was not excessive, and is affirmed.

McCulloch, C. J., dissenting.

DISSENTING OPINION.

McCulloch, C. J.

I can only discover in this con-

tract one to pay money in installments, and a refusal to pay each installment created a separate cause of action, but not a right of action for future installments. The breach of the contract was in refusing to pay, and the fact that there was a total denial of liability did not accelerate the right of action for future installments. The rule on the subject of remedies on contracts to pay money in installments is stated as follows:

“At common law a.contract to pay a sum certain in installments at different times was considered an entire contract upon which no action of debt could be brought until all the days of payment had elapsed. After the action of assumpsit was introduced, it was held at first that, although, where the contract was to pay 'by installments, assumpsit would lie on default of the first payment, yet plaintiff was obliged to demand his whole damages, even where only one of the several installments was payable, on the ground that the contract was entire, and that no new action could be maintained. Subsequently, however, it was determined that in assumpsit, on such a state of facts, an action plight be brought for such sum only as was due when the action was brought, and that plaintiffs should recover damages accordingly and have a new action as the other sums became due toties quoties. The great weight of modern authority is to the effect that a contract to do several things at several times is divisible in its nature because, although the agreement is in one sense entire, the per-formalice is several, and an action will lie for the breach of any one of the stipulations, each of them being considered in respect to the remedy as a several contract.” 1 C. J., p. 1112.

The text is supported by numerous authorities, among which may be cited the following: Peurrung v. Carter-Crume Co., 110 Fed. 107; Colwell v. Fulton, 117 Fed. 931; Ryall v. Prince, 82 Ala. 264; Higgins v. San Diego Savings Bank, 129 Cal. 184; Puckett v. National Annuity Assn., 134 Mo. App. 501; Thetford v. General Assurance Corporation, 140 Mo. App. 254.

The Missouri cases cited above are identical with the case at bar in that they involve suits on accident policies of insurance, the benefits being payable in installments, and the court held that there could only be a recovery for installments due, though all of the matured installments could be joined in one action.

In Badger v. Titcomb, 15 Pick. (Mass.) 409, the doctrine of the above text is announced, and the opinion shows that the right to recover all of the installments was first announced by the English court on the ground that the contract was entire, and failure to make the first payment constituted a breach of the whole contract, but it is shown by the Massachusetts court that this doctrine was repudiated in later English cases, and the authority of the first case has never been recognized/ This view is in line with our own cases. In State v. Scroggin, 10 Ark. 326, the question of recovery on future installments was not involved, but it was held that the matured installments could be joined in one action for the purpose of giving the circuit court jurisdiction.

The conclusion of the majority is, I think, in direct conflict with the decision of this court in Van Winkle v. Satterfield, 58 Ark. 617, where it is held that a discharged employee whose wages were, under the contract,'due in installments, could not sue for future installments.] In the present case it is shown that there were- sufficient installments due to bring the amount within the jurisdiction of the circuit court, but I am of the opinion that, under the authorities cited above, appellee was only entitled to recover the installments due up to the time of the trial, and that successive actions could be brought for future installments. As stated by Judg'e Battle. sueakine: for the court in the Van Winkle case, sunra, “he might, after recovery of the judgment, die before Ms term of service expired.” So, in the present case, appellee may recover from Ms disability before be is entitled to demand payment of the full amount that has been awarded to him in this judgment.


text:
    Middleton v. State.
    Opinion delivered July 9, 1923.
    1. Criminal law — effect of stay of sentence. — Where accused was convicted of a misdemeanor and sentenced to a fine and imprisonment, and was given a stay of sentence of thirty days and allowed to remain on his present hail bond, no presumption arises that the penalties imposed have been satisfied, and the court did not lose jurisdiction of his person by permitting accused to remain at large.
    2. Criminal law — stay of sentence — rharrest.—One convicted of a misdemeanor and sentenced to a fine and imprisonment with a stay of sentence for thirty days, cannot resist rearrest upon the ground that he had lost his right of appeal after paying his fine, under the belief that such payment would effect his release from the imprisonment, where such belief was not induced by any act of the court.
    3. Criminal law — unsatisfied judgment — arrest and commitment. — An unsatisfied judgment against one permitted to remain at large on.his bail bond may be enforced by his arrest and commitment.
    Appeal from Pnlasld CircMt Court', First Division; John W. Wade, Judge;
    affirmed.

      Murphy, MoHaney & Dunaway, for appellant.

      J. S: Utley, Attorney General, Jolm L. Garter and Wm. T. Mammock, Assistants, for appellee.
   Humphreys, J.

This is an appeal from the First Division of the circuit court of Pulaski County, refusing •to quash a .commitment issued March 28,1923,' on a judgment for vagrancy rendered in said court against appellant on December 10, 1921. The judgment rendered on the vagrancy charge is as follows:

“It is therefore .considered, ordered .and adjudged by the court that the State of Arkansas, for the use of Pulaski County, do have and recover of said defendant, Clarence Middleton, the sum of $100, together with all costs of this prosecution, and have execution therefor, and that he 'be imprisoned in the Pulaski County jail for the period of 60 days. It is further .ordered by the court, in case said fine and costs be not immediately paid, that said defendant be imprisoned in the manner provided by law until such fine .and costs are paid, or otherwise 'discharged by due course of law. Execution thereof is stayed until the 10th day of January, 1922, and it is ordered that defendant remain on his present bond.”

An appeal was not prayed or prosecuted from said judgment. Subsequently appellant paid the .fine and costs, but did not surrender himself and serve out the jail sentence imposed upon him in the' judgment. The stay of sentence was treated by the officers as a suspension of judgment during good behavior, but no order ¡of the court was made to that effect. In the attempt to quash the commitment issued March 28, 1923, counsel for appellant made the following request:

“We desire the record to show that I (M. E. Dun-away) was representing the defendant .at that time; that, while it is true the jury returned* a verdict as stated by the court, that the defendant was given time to perfect an appeal from that verdict and judgment of the court; that, while that appeal was pending, the defendant was permitted to pay the fine and costs, 'and that the records of this court do not reflect any further proceedings in the matter; that he was permitted to pay said fine and costs, and it was the understanding ¡of his counsel at the time that his sixty days’ sentence was to be dropped. Let us read the record into the proceedings.” The court refused, over the objection and exception cf appellant, to make the request a part of the record, and in doing so said:

“Let the record, show that no conduct or ¡action of the ¡court at the time ¡said verdict was returned by the jury, or the judgment of the court rendered on said verdict, was done to lead the defendant to understand that he was immune from the execution of said sentence and judgment.”

Appellant then objected to any proceedings ¡on the part of the court at the time. The objection was overruled, ,and an exception saved.

The State then introduced Homer Adkins, sheriff, who testified that he had a ¡commitment for ¡appellant, whereupon the State and appellant rested.

Thereafter, over the objection of appellant, the State was permitted to introduce testimony tending to ¡show that appellant had- violated ¡certain laws subsequent to his conviction for vagrancy. Appellant then introduced testimony tending to show that he had lived an exemplary life after the execution. Also to the effect that he intended to pray and prosecute an appeal, and would have done-so, had he not understood that by paying the fine and costs he would not be required to ¡serve the jail ¡sentence. This understanding was obtained from his attorney in a conversation between them.

At ¡the conclusion of the testimony the court ordered that the commitment stand, and that appellant serve his sentence'on the ¡county farm.

Appellant then filed a motion for rehearing, which was overruled, and prayed an appeal, which was denied. The ¡ease was then brought to this ¡court upon petition for an appeal or writ of certiorari. The transcript of the proceedings having been lodged in this court, it is unnecessary to determine whether appeal or certiorari is the proper remedy.

Appellant’s first ¡contention for a reversal of the judgment is that the ¡court had no jurisdiction to order the commitment because, it is argued, a presumption must be indulged ¡that the penalties imposed on appellant in the judgment of December 10, 1921, were discharged by him. The record reflects that execution was stayed upon the judgment until January 10, 1922, and that appellant was released upon his appearance bond. A release on an appearance bond is not a discharge from penalties imposed by a. judgment, and a presumption cannot be indulged that penalties imposed therein were satisfied while appellant was at large under bond. Had the records shown that appellant appeared and surrendered himself, in keeping with the conditions of his appearance 'bond, then, after the lapse of sufficient time, a presumption would necessarily be indulged to the effect that he had satisfied the judgment, if •afterwards found at large. No such presumption could be indulged in his favor as long as the record reflected that he was out on bond. Such a presumption would amount to a contradiction of the record. The court did not, therefore, lose jurisdiction-over the person of appellant and the right to enforce the judgment against him, by permitting him to remain at large on his appearance bond.

Appellant’s next contention, for a reversal of the judgment is that he lost his right to appeal from the vagrancy judgment by payment of the fine and costs, understanding at the time that the payment of the fine and costs would also effect his discharge from the jail sentence. The record does not show that the judgment imposing the jail sentence was set aside by the court. Appellant testified that he paid the fine and costs under the advice of his attorney, who informed him that such payment would relieve him from serving out the jail sentence. The record does not show that anything said or done by the court induced appellant to pay the fine and costs or led him to believe the payment of same would effect his release. This contention of appellant is not supported by the record.

Appellant’s next and last contention for a reversal of the judgment is that there is no authority in the law to arrest and commit one convicted of a misdemeanor after once being discharged. According to the record, appellairt was never discharged. He was oat on bond, and, While at large, paid the fine and costs, but never surrendered himself and 'served out the jail sentence adjudged against him. Appellant cites the case of State v. Piggues, 58 Ark. 192, in support -of his contention that he was immune from arrest and commitment. In that case the appellant had given a bond with security in satisfaction of the judgment in the manner provided by law. Satisfied judgments cannot be enforced against a defendant by arrest and commitment, but unsatisfied judgments may be.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Spurgeon v. State.
    Opinion delivered July 9, 1923.
    1. Criminal law — application por'change op venue — production op affiants. — Where, in a criminal prosecution, the defendant applied for a change of venue on account of the prejudice of the inhabitants of the county, and filed supporting affidavits, it was the duty of the defendant ■ to produce the affiants, so that the State might test their credibility by oral examination, to determine their means of knowledge concerning the facts about which they made affidavit.
    2. Criminal law — change op venue. — In a criminal prosecution wherein defendant applied for a change of venue on the ground of prejudice of the inhabitants of the county and furnished supporting affidavits, evidence held to sustain the credibility of two of the affiants, so that an order denying the change was erroneous.
    3. Criminal law — petition for change op venue — examination op affiants. — Affiants in- support of a petition for change of venue may be orally examined by the court, not for the purpose of trying an issue as to the truth of the allegations concerning the prejudice in the minds of the inhabitants, but for the sole purpose of determining the credibility of the affiants.
    4. Criminal law — voluntary character of confession. — jury question. — Where the evidence in a criminal ease was in conflict as to whether a confessipn by accused was voluntary, the question was properly submitted to the jury.

      5. CRIMINAL LAW — VOLUNTARY CHARACTER OF CONFESSION — INSTRUCTION. — In a conflict of testimony as to whether a confession was voluntarily made by the accused to police .officers, it was not error to refuse an instruction directing the jury to consider, in determining whether the confession was voluntary, the fact whether the police officers refused to permit accused to send for counsel.
    6. Explosives — destruction of building by dynamite — evidence. —In a prosecution for destroying a building by means of dynamite, evidence concerning the extent of the injury to the building was admissible.
    7. Criminal law — evidence—declaration of co-defendant. — In a prosecution for injuring a building by means of dynamite, proof of a statement by a co-defendant, made shortly before the commission of the crime, that he suggested the use of dynamite, and knew how to use it, was properly excluded.
    8. Criminal law — hearsay evidence. — It is competent for an accused person to show that the crime was in fact committed by some other person, but this cannot be done by declarations of third persons which merely constitute hearsay.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    reversed.

      Isgrig & Billon, Murphy, McHaney & Buncmay, for appellant.
    1. This record, we think, makes clear the error of the trial court in denying the petition for change of venue. The statute does not mean that a supporting witness, to he credible, must have talked with every citizen in every township in the county, and that he he able, on examination, to give the name of every man with whom he talked. 120 Ark. 302; 85 Ark. 536; 54 Ark. 243.
    2. The court committed error prejudicial to the defendant in the selection of the jury, (a) in holding as qualified, over the defendant’s objections, six jurors who showed in their voir dire examination that they held a fixed opinion unfavorable to the defendant, and. (b) in excusing three jurors from service, over defendant’s objections, who showed opinions favorable to his innocence.
    3. The indictment specifically charged the crime of injury to real property. That alone was the issue. It was prejudicial error to admit proof of the amount and extent of the damage caused by the explosion, the value of the property, the amount of the loss, and the fact that eight women and children were occupants of the house at the time.
    4. That the alleged confession in this case was not freely and voluntarily made, is clear, yet it was incumbent on the State to show that it was free and voluntary. Underhill on Crim. Evidence, 2nd ed., par. 126, 238, 283; Greenleaf, Ev., par. 219; 1 R. C. L. 552, 560, 568; 50 Ark. 305; 107 Ark. 568; Id. 332; 114 Ark. 481; 262 Fed. 473; 66 Ark. 509; 122 Ark. 606-; 115 Ark. 387; 69 Ark. 599; 74 Ark. 397; 97 Ark. 453; 125 Ark. 267; Id. 263; 28 Ark. 121; Id. 531; Wigmore on Evidence, vol. 1, ■§ 861; Id. vol. 3, § 2097. The question of the admissibility of a question is purely a question for the court; and, in this case, it was error to submit that question to the jury.

      J. S. TJtley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    1. The testimony of the supporting witnesses was in large measure based on their personal opinions, and none testified that they had discussed the case with the citizens in all parts of the county. Appellant failed to make the showing contemplated by the statute, C. & M. Digest, § 3087. None of the witnesses claimed to have a general knowledge of the state of mind of the citizens of all portions of the county. 120 Ark. 302, 308; 141 Ark. 509; 149 Ark. 646; 130 Ark. 457; 146 Ark. 328; 54 Ark. 243.
    2. There was no error nor any abuse of discretion in the court’s ruling on the competency of jurors. 16 R. 0. L. 262; Id. par. 80; 120 Ark. 193; 80 Ark. 15; 47 Ark. 180; 113 Ark. 301; 101 Ark. 443; 85 Ark. 64; 109 Ark. 450; Am. St. Rep. vol. 9, p. 747, and cases cited; 149 Cal. 310; 150 Ark. 555.
    3. The admissibility of a confession is a question for the court. 28 Ark. 121. The voluntary statements of a prisoner, though made to an officer and while in that officer’s custody, are admissible in evidence against him. And the fact that the confession was made without caution to the accused that it might 'be used against him does not render it incompetent. 107 Ark. 568; 18 Ark. 156; 14 Ark. 555; 94 Ark. 343; 114 Ark. 574.
   McCulloch, C. J.

The defendant, John Gr. Spur-geon, was indicted and convicted under a statute which makes it an offense punishable by fine, or imprisonment in the State Penitentiary, to “wilfully or maliciously destroy or injure any inclosure, building ■* * * or any real or personal property whatsoever, by means of dynamite, gunpowder or other explosive.” Crawford & Moses’ Digest, § 2528. The charge in the indictment is that defendant injured a dwelling house in the city of Little Rock, owned and occupied by W. J. Kooms, by placing on the porch a dynamite bomb, which exploded, and practically wrecked the building.

The theory of the State was that defendant 'comm.it-ted the crime in connection with ene Rawles, and both of these men were arrested together as they drove by the scene of the crime shortly after the bomb exploded. After the explosion a crowd collected at the scene, and shortly thereafter defendant and Rawles drove by in an automobile driven by Rawles, with the license plates turned upside down and no rear light burning.

The explosion occurred about one or two o’clock on the morning of October 26, 1922. There is a conflict in the testimony as to the precise hour. This conflict only affects the weight of the testimony introduced by defendant in an effort to establish an alibi. The conflict must be treated as settled by the verdict of the jury, and need not be further discussed.

The two accused men were taken to the city hall as soon as arrested, and held in separate confinement, and testimony was adduced by the State to the effect that both of the men made confessions — Rawles first, and defendant later, after Rawles’ confession was reported to him. The defendant denied participation in the crime, and testified that the alleged confession was not voluntary, bnt was induced by promises made to him by police officers, and extorted from him by threats and brutal treatment on .the part of those officers.

The theory of the State wais that defendant and Rawles committed the crime jointly, 'and that it was done as a punishment of Kooms, who was a mechanic on strike, and was about to return to work. There was a strike of railroad shopmen, and defendant, Rawles and Kooms, were all members of the union, and were strikers. Kjooms was about to return to work, despite the unsettled strike, and he testified that he was approached ;by defendant oh the subject, and when he told defendant that he was going to return to work, defendant told him that he “would be sorry-for it.” Defendant admitted that he had a conversation with Kooms about the latter returning to work, but denied .that he made the statement attributed to him, or made any statement in the nature of a threat.

Rawles did not testify in this case, and was not put on trial, the undisputed testimony being that he was promised immunity from prosecution in order to induce his confession, but, after Rawles made the confession and disclosed the information that bomb material could be found buried in defendant’s yard, officers went there and found such material buried there. Defendant undertook to explain away this circumstance. The State’s case therefore rests upon defendant’s confession and proof of circumstances referred to above.

Defendant relied on his own testimony denying the charge, and also the testimony of several witnesses to the effect that at the time of the explosion he was at home 'and in bed. Defendant undertook to explain his presence at the scene of the crime with Rawles by stating that his efforts had been to repress lawless methods by strikers, and that Rawles came to his house that night, woke him up and told him about placing the bomb on Kooms ’ front- porch, and that he went with Rawles with the hope that they could get there before there was an explosion. All these questions made an issue of fact for the jury, and there was sufficient testimony to support the verdict.

The first contention made by counsel for defendant is that the court erred in refusing to grant a change of venue.

Defendant was indicted a few days after the commission of the alleged offense, and was put on trial about the middle of December, 1922, and this resulted in a mistrial. The last trial was begun on January 8, 1923, and, as above stated, resulted in defendant’s conviction and sentence to the State Penitentiary. Before the first trial, defendant filed his petition for a change of venue on the ground that the inhabitants of the county were so prejudiced against him that he could not obtain a fair and impartial trial. Crawford & Moses’ Digest, § 3087 et seq. This petition was verified by defendant as required by law, and was supported by the affidavits pf seventy qualified electors of the county, who were actual' residents of the county and not related to the defendant in any way. The court required the production of all the affiants who were relied upon in support of the petition for change of venue, and most of them were called before the court by the State for examination as to their credibility. During the progress of the examination the court announced that the defendant would be required to produce all affiants who were relied upon, and defendant’s counsel saved exceptions to this ruling. All of the affiants who were produced were examined by the State, but some of the supporting affiants were not produced by the defendants. The court overruled the petition, and the trial proceeded, resulting in a mistrial,'as before stated.

Before the commencement of the last trial, defendant filed an additional petition for change of venue', with several of the supporting affiants to the original petition joining in affidavits in support of the second petition. These were examined .again, and the court overruled the last petition. When the last petition for change of venue was filed, an order was made, b.y agreement, that the original petition should he considered with the last petition, and that the examination of the witnesses taken on the former petition and transcribed by the stenographer should be treated as part of the record, the same as if the witnesses were there and reexamined. The court again overruled the petition.

The first contention in regard to the ruling on this subject is that the court erred in requiring the accused to produce the supporting affiants for examination, and counsel insist that all those who were not brought into court and examined by the State should be treated as credible persons. There were twelve or fifteen of these, and if the contention of counsel is sound, then the change of venue should have been granted as a matter of course, for there is a presumption that the persons who make the affidavit are credible'until the. contrary is shown. We do not think, however, that the contention of counsel • for appellant is sound, for it was (their duty to produce the supporting affiants so that the State could have an opportunity to test their credibility, which could be done by eral examination to determine their ¡means of knowledge concerning the facts about which they made affidavit. It is true that there is a presumption as to the credibility of the supporting affiants which must be overcome before the'affidavits can be disregarded, but the duty rests primarily upon the accused to produce the affiants, so that they may be examined as a test of their credibility, and it imposes no unnecessary burden on the accused to require him to produce the affiants; they are supposed to come forward voluntarily for the purpose of supporting -the accused in his efforts to secure a change of venue. This view finds support in the opinion of this 'court in the comparatively recent case of Whitehead v. State, 121 Ark. 390, where we said that the duty of the court and the State was fully discharged by inquiring into the credibility “of all of the affiants who were present and available for that purpose.”

The question of the credibility of those of the affiants who were examined is a more ■serious one. Nearly all of the affiants resided in Little Rock and in North Little Rock, and practically all of them showed familiarity with sentiment in both of the cities, but most of them admitted ithat they had little, if any, knowledge concerning the sentiment in the county outside of the two cities. The oral examination and cross-examination took a -wide range, and it was shown that a g’reat many of the affiants based their opinion merely upon what they conceived to be the effect of newspaper publications giving the circumstances of ithe commission of the crime, the confession of the accused, and 'comments on the enormity of the crime. After careful consideration of the testimony, however, we are of the opinion that there were at least three or four of the affiants whose credibility was not broken down by proof, either by contradictory statements or lack of information on which the affidavits were made. These particular ones which we refer to (it being unnecessary to name them) were men who had for many years been engaged in business either in Little Rock or North Little Rock, and they testified to their familiarity with the sentiment and opportunities to acquire such familiarity so far as concerned the people of the two cities, and also that they were familiar with practically the whole of the county, several of these witnesses naming a large number of townships in which they had talked to people who were familiar with public sentiment. For instance, one of the affiants showed that he had been engaged in business in Little Rock for a number of years, and frequented public places, and that he talked to people of all classes concerning the commission of this crime and the defendant’s connection with it. He testified that he had not talked to country people, but that in the operation of his business four of his employees had been traveling over the county since the date of the commission of the crime, displaying and distributing advertising matter, and that they had informed him from time to time of the sentiment .concerning this crime and defendant’s connection with, it as a matter of general discussion throughout the county. We see no reason why the fact that this affiant had not talked to the country people himself was sufficient to overturn the presumption of his credibility. This information was acquired by him in ordinary conversations with his employees as they went back and forth over the county, distributing advertising matter. Another one of the affiants, a, merchant in Little Bock, testified that he was familiar with sentiment in both of the cities and that he also had acquired information throughout the county by frequent conversations with men from the country. He testified that it was part 'of his business to go to the curb market every morning, where farmers from- different parts of the county assembled for the purpose of selling produce, and that the question of the commission of this offense was the domi'nant topic of conversation. We think that this man’s testimony .was sufficient to show that he had acquired knowledge of sentiment throughout the county, or at least it did not show lack of knowledge so as to discredit him.

It is unnecessary to discuss in detail the oral testimony of other affiants, but we think there are at least one or two others who showed sufficient familiarity with the sentiment throughout the county to make them credible persons within the meaning of the statute.

Nor is it necessary to discuss the law on this subject, for it is settled that,affiants in support of a petition for change of venue may be orally examined by the court, not for the purpose of trying an issue ,as to the truth of the allegations concerning the prejudice in the minds of the inhabitants, but for the sole purpose of determining the credibility of the affiants — whether they had sufficient information to make an affidavit on the subject, or whether they swore recklessly and without information. The following authorities are only a few of the cases which establish this rule: Jackson v. State, 54 Ark. 243; Ward v. State, 68 Ark. 466; Maxwell v. State, 76 Ark. 276; White v. State, 83 Ark. 36; Strong v. State, 85 Ark. 536; Duckworth v. State, 86 Ark. 357; Latourette v. State, 91 Ark. 65; Williams v. State, 103 Ark. 70; Whitehead v. State, supra.

In the last ease cited above the court reviews the authorities and states the rule as follows:

“The trial court exercises a judicial discretion in passing upon the 'credibility of the affiants, but its discretion is limited to that question. When the petition for change of venue is properly made and .supported, the court has no discretion about granting the payer thereof, whatever the opinion of the court may be as to its truthfulness. The statute provides no method by which the court may determine the credibility of the affiants, but leaves the question to the court. A number of cases, however, have approved the practice of calling the affi-ants and examining them as to the source and extent of their information for the purpose of ascertaining whether or not they have sworn falsely or recklessly without sufficient information as to the state of mind of the inhabitants of the county as to the accused. But the cases also hold that the statute on this subject does not contemplate that the truth or falsity of the affidavits shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to that question.”

Tested by this rule, wé are of the opinion that more than two of the affiants must be treated as credible persons, their credibility not being successfully assailed by the State, and that the court erred in denying the petition. The statute only requires supporting affidavits of two credible persons, and this requirement was satisfied. This conclusion renders it unnecessary to discuss several of the assignments of error, but, in view of another trial of the case, we deem it proper to discuss some of the questions which may arise again.

It is earnestly insisted that the court erred in admitting evidence of the alleged confession of defendant. The contention is that it is established by undisputed evidence that the confession was extorted by cruel and coercive treatment. Defendant testified that the police officers not only coerced him, but that they made promises to him which induced the confession. The officers were introduced as witnesses, and denied that they made any promises. One of them stated that, after Eawles confessed, he informed defendant of that fact, and told him that it would be the best thing for him to make a confession merely to get the thing off his mind, but he denied that he made this statement to him in any way that was calculated to lead defendant to believe that any favors were to be shown him. Defendant also testified that the police officers handled him roug'hly and cursed and abused him, and finally made him 'believe that a mob was assembling to do him violence. This was all denied by the officers, and >of course made an issue for the jury.

The principal contention of counsel for defendant is that the confession was extorted by continuous and persistent questioning of defendant for more than twenty-four hours, subjecting him to rapid-fire questions, without giving him an opportunity to get food or water or sleep. The undisputed testimony is that defendant was taken to police headquarters as soon as he was arrested, and that almost immediately he was subjected to close questioning from time do time until he offered to make a confession between midnigffit and morning of the second night after the commission of the crime. The testimony tends to show that this was done continuously and persistently by officers in relays, who kept the' defendant in one of the rooms at the city hall and subjected him to rapid-fire questions ceaselessly until the confession was made. Defendant himself testified that he was not given any food or water or an opportunity to sleep. He said that the officers would question him rapidly and in relays, and that occasionally he was sent to his cell, hut that by the time he took off his clothes he was carried hack again without an opportunity to lie down. He testified that finally the prosecuting attorney was brought to the city hall and told him that it would he easier on him to confess, as Eawles had confessed, and that he then told the prosecuting attorney that he was willing to say that whatever Eawles had 'stated was true. A number of police officers who participated in the inquisition testified in the case,’ and many <of them testified with perfect candor. They admitted that they subjected defendant to a searching and persistent inquiry to get the truth out of him, and they felt if was their duty to do so, but it does not appear from their testimony that the inquisition was continuous or that it was without an opportunity afforded defendant for food, drink or sleep.

Of course, the officers had a right to interrogate the accused concerning his participation in'the offense, but they liad no right to coerce him into a confession by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will. Of course, there was testimony in this case which tended to show that the confession was not voluntary, but we cannot say that there is an entire absence of testimony tending to show that the confession was voluntary and that the inquisition was not persisted in long enough to exhaust defendant mentally and physically and overcome his will. The law on the ¡subject of voluntary confessions is well settled, and it is unnecessary to enter into an extended discussion on this subject. In a recent decision on this subject, we said:

“It has been said that no general rule can be formulated for determining when a confession is voluntary, because the character of the inducements held out to a person must depend very much upon the circumstances of each case. Where threats of harm, promises of favor or benefits, infliction of pain, a show of violence or inquisitorial methods are used to extort a confession, then the confession is attributed to such influences. It may be sáid also that, in determining whether a confession is voluntary or not, the .court should look to the whole situation and surrounding of the accused.” Dewein v. State, 114 Ark. 472.

Now, the court refused to exclude this confession from the jury, but submitted it to the jury upon instructions as favorable as the defendant could ask for, and left it to the jury to determine whether or not the confession was free and voluntary.

One of the assignments of error in regard to rulings of the court on instructions is that the court should have given an instruction requested by defendant telling the jury that they should consider, as a circumstance in determining whether or not the confession was voluntary, the fact that the police officers refused to permit the accused to send for counsel. The instructions of the court were, as before stated, as favorable to the defendant as he could ask, and there was no error in refusing to give the instruction which singled out the alleged conduct of one or more of the police officers in refusing to send for defendant’s attorney. In the court’s charge to the jury it was said that all circumstances and facts in the case should be taken into consideration in determining whether or not the confession was voluntary.

It is also contended that the court erred in admitting, over the objection of defendant, testimony concerning the extent of the injury to the home of Blooms. We are unable to see why this testimony was objectionable, it being a necessary part of the State’s case to show that the house was injured, otherwise there would be no offense under the statute, and certainly the State had a right- to show the extent of the injury.

Again, it.is insisted that the court erred in refusing to permit the defendant to introduce testimony concerning statements made by Rawles to witnesses, shortly before the commission of the crime, in substance tha.t he (Rawles) suggested the use of dynamite in connection with the strike, and that he knew how to use it. We are unable to discover any beneficial effect that could have resulted to defendant if this testimony had been admitted, but, conceding that point, we think it is clear that the court was correct in refusing to allow the testimony to go to the jury. It is true that the State tried this case on the theory that the crime was committed jointly by Rawles and defendant, but this did not render competent Rawles’ 'Statement concerning third parties. It merely amounted to proof that Rawles approached other persons to induce them to commit the crime. This is not inconsistent with the theory of the State that Rawles and defendant committed the crime jointly. It is competent, of course, for an accused person to show that the crime was, in fact, committed by some other person, but this cannot be established by the declarations of third persons which merely constitute hearsay. Tillman v. State, 112 Ark. 236.

Questions argued concerning the competency of certain jurors may not arise on the nest trial, and it is therefore unnecessary to discuss this subject. Suffice it to say that we find no error in the' record except in regard to the ruling of the court in denying the change of venue. On account of the error in that ruling the judgment is reversed, and the cause is remanded with directions to the circuit court to grant the change of venue in accordance with the prayer for defendant’s petition.

Hart, J., concurs.


author: Wood, J.

text:
    Scott v. State.
    Opinion delivered July 9, 1923.
    1. Criminal law — former testimony of absent witnesses. — Testimony of absent witnesses, as taken and correctly reduced to writing at a preliminary trial, when accused had an opportunity to cross-examine' them, is admissible where the witnesses are beyond the court’s jurisdiction.

      2. Intoxicating LIQUORS — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of selling intoxicating liquors.
    Appeal from. Sebastian Circuit Court, Fort Smith District; J. E. Tatum, Judge;
    affirmed.

      J. E. London, for appellant.
    It was error to permit to be read in evidence statements purporting to be tbe testimony given by tbe three absent witnesses in a trial bad in tbe municipal court, with no showing as to when subpoenas were issued for them, and upon tbe testimony of the sheriff alone that tbe witnesses were absent. 1 Greenleaf on Evidence, 16th ed., p. 248, § 163-g; Id. § 166; 58 Ark. 378; 66 Ark. 546; Underhill, Crim. Evidence, 326; 17 So. 512, 35 Md. 531; 90 N. Y. 675.

      J. S. TJtley, Attorney General, JoJm L. Garter and ' Wm. T. Hammock, Assistants, for appellee.
    There was a sufficient showing made to entitle the State to introduce the testimony given by the absent witnesses in the municipal court, and its admission was in accordance with the weight of authority on the subject. 8 R. C. L. 214, par. 211; 136 Ark. 161; 95 Ark. 176; 60 Ark. 400; 29 Ark. 17; 133 Ark. 261.
   Wood, J.

This was an appeal from a judgment sentencing appellant to the penitentiary for one year. The appellant was tried and convicted on an indictment which, in apt words, charged 'him with the crime of selling intoxicating liquors.

Pink Shaw, a witness for the State, testified that he was the sheriff of' Sebastian County, Arkansas. As such sheriff a subpoena was placed in his hands to ‘be served on Laura Green, Herman Isaacs and Rufus Kelly, witnesses for the State. The subpoena was not served. Witness had information that Laura Green had left. Witness did not receive any information as to where she had gone. He understood she had gone to Oklahoma. Witness had information that Herman Isaacs had left the city and State, and could not be found. Witness ’ information in regard to Rufus Kelly was that he had been gone about two months. Witness didn’t know how long Laura Green had lived in Fort Smith and didn’t know where she had gone. His information was that she had left recently. Witness never heard of Bufus Belly until he tried to get service on him, and didn’t know where he had gone.

A witness for the State, L. F. Fishback, testified that he was municipal judge of the city of Fort Smith, and held the preliminary trial of the appellant on a charge of selling intoxicating liquor, for which he was after-wards indicted. He took down the testimony of the witness, Laura Green, in that case, and it was correctly done. Over the objection of the appellant the testimony of Laura Green, thus taken by Judge Fishback, was read to the jury, as follows: “I live near the mouth of Poteau. I know defendant when I see him. I got half pint of liquor from him Sunday morning, December 17, 1922. He came to my house, and I asked him if he knew where I could get any whiskey. He replied he could get it for me. He had it with him, and I bought it. Paid him $1.50 for it, and Herman Isaacs, Floyd Chat of 205 Garrison, and Clara Brown helped me drink it, that is, Clara Brown was there but would not drink it. I got a pint from him also the day before. He came to the house that time. The first time I asked if he knew where I could get any whiskey, and he said he did. I told him1 I did not want it if he couldn’t get it in thirty minutes. He said he could get it in thirty minutes, so I gave 'him $3, and he and Chat went off together, and Chat brought it back.”

Judge Fishback further testified that the above statement of the witness was not read over to or signed by her, after he took it down.

The testimony of Herman Isaacs was also read, and it was to the effect that he had bought whiskey from the defendant. His testimony was taken down in the same manner by Judge Fishback, who stated, after reading the same to the jury, that the statement was not read .to Isaacs or signed by him, hut it was the evidence of Isaacs as given at the trial, and was correctly taken down.

The testimony of Rufus Kelly, Taken in the same examining trial and reduced to writing in the same way, was read, and showed that he had also purchased ’liquor from the appellant. The testimony of witness Laura Brown was to the effect that she saw appellant sell whiskey in Sebastian County, Arkansas, in December, 1922.

Counsel for appellant contend, first, that the court erred in permitting the State to read the testimony of the witnesses taken before Judge Fishback at the preliminary hearing and reduced to writing by him. They urge that a proper foundation was not laid for the introduction of this secondary evidence.

In McNamara v. State, 60 Ark. 400-406, we quoted with approval from Mr. Greenleaf. as follows: “The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath and of any opportunity to cross-examine the- witness. But where the testimony was given under oath, in a judicial proceeding, in which the adverse litigant was a party, and where he had the power to cross-examine, and'was legally called upon to do so, the great and ordinary test of truth being no longer wanting, .the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the parties. It is also received if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the adverse party.” Greenleaf on Evidence, § 163. In that case we said: “This rule has never been changed by statute in this State, and, whatever rule may have been approved in other States, our own court has recognized the doctrine, as thus announced by Mr. Greenleaf, in such phases of it as it has had occasion to pass upon.” (Citing several former cases of this court). In addition, see Poe v. State, 95 Ark. 176; Kelly v. State, 135 Ark. 261.

Every requirement of the law as announced in the above oases was complied with in the introduction of the testimony of which the ¡appellant complains. The testimony of Judge Fishback shows that the testimony of the witnesses, taken before him at the preliminary trial, was correctly reduced to writing. Their testimony, as thus reduced to writing, was read before the jury. This testimony was something more than the mere notes of the judge purporting to set forth the substance of the testimony taken before him. It was the actual testimony of the witnesses as they gave it. The judge took it down in the language of the witness as the testimony was delivered. The personal pronoun I is used, and the manner of reducing it to writing shows that the judge, in taking it down, was not using his own language, but the language of the witnesses. The return of the sheriff shows that the witnesses could not be found, and his testimony showed that he had made inquiry and was inf ormed that the witnesses were gone to,parts unknown. His testimony was sufficient to justify the court in concluding that the sheriff had made 'diligent inquiry, and that the witnesses were beyond the jurisdiction of the court, and that there was no reasonable probability that their testimony could be obtained.

The appellant also contends that the testimony was not sufficient to sustain the verdict, 'but it is obvious that he is mistaken in this contention. The record presents no error, and the judgment is therefore affirmed.


text:
    Rinehart v. State.
    Opinion delivered July 9, 1923.
    1. Indictment and information — joinder of offenses. — The offenses of selling and procuring intoxicating liquor for another, under Acts 1921, No. 230, may he joined in one indictment.

      2. Indictment and information — election between counts.— Where an indictment charged unlawful sale of intoxicating liquor in one count and unlawful procuring of such sale in another count, the action of the State in offering evidence only to show an unlawful sale was equivalent to an election to rely only upon that charge.
    3. Indictment and information — clerical misprision. — Where an indictment charged the defendant with the crime of selling liquors, followed by allegations that he sold “alcoholic, vinous, malt, spirituous and fermented -,” the omission of the word “liquor” after the word “fermented” was a clerical misprision which did not invalidate the indictment.
    4. Criminal law — harmless error. — A charge in one count of an indictment of both a gift and sale of intoxicating liquor was not prejudicial where the State elected to rely upon the charge of selling liquor, which was supported by the evidence, and of which alone defendant was convicted by the jury.
    Appeal from Perry Circuit Court; John W. Wade, Judge;
    affirmed.

      Osear H. Wivm and X. 0. Tindall, for .appellant.
    There is a misjoinder of offenses in the indictment. C. &. M. Digest, §§ 3016, 3015; 50 Ark. 30, 31.

      J. S. IJttey, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    The indictment is sufficient. 14 R. C. L. 197; 149 Ark. 387; 143 Ark. 364; 140 Ark. 50.

      Oscar H. Winn and X. O. Tindall, for appellant, in reply.
    To charge “sell or give .away, or he interested in selling or giving away alcoholic, vinous, malt, spirituous and fermented -,” does not charge a crime. It is not a misprision, it is a fatal omission. 36 Ark. 242'; 34 ■Ark. 275; 130 Ark. 457.
   Wood, J.

The grand jury of Perry Comity, in the first count of an indictment, accused Henry Rinehart of the crime of selling liquor, committed as follows: “The said Henry Rinehart, in the county and State aforesaid, on the 1st day of September, A. D. 1922, unlawfully and feloniously did sell and give away, and was interested in selling and giving away alcoholic, vinous, malt, spirituous and fermented-, against the peace and dignity of the State of Arkansas. ’ ’

In the second count the grand jury accused him of the further crime of procuring liquor, committed as follows : ‘‘The said Henry Rinehart, on the 1st day of September, 1922, in the county and State aforesaid, unlawfully and wilfully did procure and purchase for another person, and was interested in procuring and purchasing for another person alcoholic, vinous, malt, spirituous and fermented liquor.”

The appellant moved to quash, and also demurred to the indictment, on the ground that it charged two of-, fenses in the first count and that it did not charge that appellant sold and gave away intoxicating liquor; that it did not state any charge with sufficient certainty to constitute a public offense.

G. O. Martin, a witness for the State, testified that he had known the defendant twenty years — -had bought whiskey from him as many as three times in the spring of 1921. He bought a quart and paid the defendant $3 for it. This was at Adona, Perry County, Arkansas. He bought a half gallon from him at his home in Perry County in the spring of 1922, and paid him $7 for it. It was pretty bad stuff; it was intoxicating. Witness had been buying whiskey from the defendant from the spring of 1921 to the spring of 1922.

The defendant and two of the witnesses in his behalf testified to the effect that the defendant did not sell Martin any whiskey on the occasions mentioned by him ; that Martin came to the house of the divorced wife of the defendant, where the defendant was at the time: that Martin on that occasion was drunk and had whiskey, and asked the defendant if he wished to buy some whiskey. Defendant did not buy any whiskey from Martin, and did not sell him any then, or at any other time. Martin was recalled, and denied the testimony of the defendant'and the witnesses.

• The jury returned the following, verdict: “We, the jury, find the defendant guilty of selling whiskey, as charged in the indictment.” The court overruled the motion for a new trial and also motion to arrest, and rendered judgment sentencing appellant to- one year’s imprisonment in the State Penitentiary, from which is this appeal.

1. One of the grounds urged by appellant’s counsel for reversal is that the indictment is fatally defective because of the misjoinder of offenses, that is, the offense-of selling intoxicating liquor in the first count, if such count be valid, with the offense of procuring intoxicating liquor in the second count. The indictment was not defective in this respect, because act 230 of the Acts of 1921 provides that the offenses of selling and procuring intoxicating liquor may be joined in one indictment. Furthermore, the testimony adduced by the State was directed solely to the offense of selling liquor. There was no testimony whatever by the State to prove that the appellant procured any intoxicating liquor. This act of the State in ignoring the second count was tantamount to an election by the State to prosecute the appellant only on the first count.

2. The appellant contends that the first count was fatally defective 'because it did not name any alcoholic, vinous, malt, spirituous and fermented liquor in the charging 'clause of that count of the indictment. But the language of this count -of the indictment must be considered as a whole in determining whether or not it was sufficient to charge a public offense. In the first paragraph the grand jury accused the appellant of the crime of -selling liquor. Here it names the offense and follows it with the description “alcoholic, vinous, malt, spirituous -and fermented --The omission of the word “liquor” after the word “fermented” is obviously but a misprision, and, when the language of the entire count is considered, it is clear that the appellant is charged with the crime of selling “alcoholic, vinous, malt, spirituous and fermented liquor.” See Bennett v. State, 73 Ark. 386.

Counsel for appellant also urge that this count is defective because it contains the double charg’e of selling and also of giving away liquor. But, as we have seen, the State elected to pursue the appellant only for the offense of selling liquor by directing its proof solely to that offense. Such offense is aptly charged in the first count, and the verdict of the jury was responsive to the charge of selling liquor in that count and to the proof to sustain such charge. See McIntyre v. State, 151 Ark. 458, 461, 462. Since the State elected to direct its proof solely to the charge of selling, and abandoned or ignored the charge of giving away, appellant could not have been prejudiced because the latter offense was joined with the offense of selling, for which alone the appellant was tried and convicted. See Chronister v. State, 140 Ark. 40.

We conclude by saying that the indictment contained a valid charge against the appellant for selling liquor. The State, by its testimony, elected to proceed against him solely on that charge. The verdict of the jury was responsive to the evidence adduced, and the evidence was sufficient to sustain the verdict. The judgment is therefore correct, and it is affirmed.