author: Mehaffy, J. Humphreys, J.

text:
    Bell v. Bell.
    Opinion delivered March 11, 1929.

      S. A. Jones, Fred A. Isgrig and Philip McNemer, for appellant.

      Floyd Terral, for appellee.
   Mehaffy, J.

This suit was brought by the appellee, based on the fifth subdivisión of § 3500 of Crawford & Moses ’ Digest. That section reads as' follows:

“Where either party shall be addicted to habitual drunkenness for the space of one year, or shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”

The plaintiff alleged that he and the defendant were married on April 1, 1927, and that soon thereafter she began a systematic course of rudeness, studied neglect, unmerited reproach, open insult and abusive language toward him that renderd his condition in life intolerable, and that he left her on the first of December, 1927.

The defendant filed an answer and cross-complaint, and in her cross-complaint she alleged that the plaintiff, Ezekiel Bell, on October 1,1927, began a systematic course of rudeness, studied neglect, unmerited reproach, open insult and abusive language towards her that rendered her condition in life intolerable.

It therefore appears from the pleadings that the condition in life of each of them was rendered intolerable by the wrongful conduct of the other. The evidence is not very voluminous, but the testimony of the plaintiff tended to show that the parties did not get along well together; that the defendant would refuse to get up of a morning and cook breakfast for the plaintiff, and that plaintiff would have to come back in the middle of the morning and get his breakfast. She stated to one witness that if that man fooled with her she was going to kill him. She also charged him with going to see his former wife. The testimony of plaintiff also tends to show that she would curse, use bad words, and that she would fuss at his dead wife’s children. Finally one of the children, a girl, got so tired of her fussing at her so much, she -went to stay with her sisters. One of his children, Giles Williams, was 18 years of age; she did not make up his bed, and did not want to feed him, and nagged the plaintiff all the time about this. She had a son by a former marriage, who was 24 years of age, and lived with her. 'She would get mad when her husband would go out, and continue to fuss at him until he left. She would give them breakfast about half past nine o ’clock and get dinner late, and have nothing but cold lunches for supper. When one of his children died, he asked Mose Scott to come over to his house and make a coffin for the child, and Scott went over there with his tools and lumber and began to work on the porch, and she told him, in the presence of plaintiff, “You get that devilish thing away from here and carry it out to the barn or somewheres. You are not going to build that here. ” The testimony also shows that she said something about shooting plaintiff.

This testimony was, some of it, contradicted by the testimony offered by the defendant, and it is purely a question of fact.

Appellant calls attention to the fact that this court said in a recent cause:

“It is obvious that the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke. In such cases, parties must, by mutual concessions, make the yoke lighter.” Griffin v. Griffin, 166 Ark. 85, 265 S. W. 352.

But the court also said, in the same case, in the paragraph immediately following the one above quoted:

1 ‘ On the other hand, constant abuse, studied neglect, and humiliating insults and annoyances, which indicate contempt and hatred by the offending party, amount to such indignities to the person as to render his or her condition in life intolerable within the meaning of the statute. Tested by this rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence.”

. Appellant then quotes from the opinion written by Mr. Justice Wood in the case of Davis v. Davis, 163 Ark. 263, 259 S. W. 751. The quotation is quite lengthy, and is to the effect that the ease and frequency with which divorces are often obtained as a matter of expediency is a menace to orderly society, and in it lurks one of the dangers to the stability of our great republic; that one of the foundation pillars of our government is the sanctity of the marriage relation, etc. In the above case, written by Mr. Justice Wood and quoted from by appellant, it was also said, quoting from Pryor v. Pryor, 151 Ark. 150, 235 S. W. 410:

“Divorces are not granted upon the uncorroborated testimony of the parties and their admission of the truth of the matters alleged as grounds therefor.”

It was also said in the above case:

“In conflicts between the two depositions (husband and wife) hers must be deemed of gueater weight, because he seeks to obtain a divorce by his own testimony, and she attempts to defeat it by hers. He must establish alleged causes of divorce by corroborating evidence. In getting at the truth in relation to private scenes, quarrels and injuries between husband and wife, unwitnessed by others, it may be well to admit the testimony of the parties in divorce cases, but, because of the rule, founded on public policy, that a divorce will not be granted upon the unsupported testimony of the party seeking it, it necessarily follows that the greater weight must be given to the party opposing it, where their depositions conflict.”

If there were no testimony in this case corroborating the plaintiff, then he would not be entitled to a divorce. As this court has already held, a divorce will not be granted to one on his uncorroborated testimony, but the testimony of plaintiff in this case is corroborated by other witnesses. And, while their testimony is not very strong, it does corroborate his testimony,- so that the rule announced in the cases referred to does not apply, or rather the facts in. the cases are different from the facts in the present case. In the Davis case there was no corroboration.

Appellant also calls attention to Collins v. Collins, 176 Ark. 12, 28 S. W. (2d) 41. In that case the court said: “The testimony is not very satisfactory on the question of divorce, hut, after considering the whole of the testimony carefully and the situation and condition of the parties, we are of the opinion that the preponderance of the evidence entitles the wife to a divorce. It is perfectly apparent from the testimony of both of them that they were 'continually quarreling with each other, and that there was no likelihood of their becoming reconciled to each other. Each of the parties had children by a former marriage, and there was no hope of them ever living together again. Hence we are of the opinion that a preponderance of the evidence will sustain a decree granting the plaintiff, Alice Collins, a divorce from the defendant, F. D. Collins, on the statutory ground of indignities rendering her ¡condition in life intolerable. ’ ’

In the present case it may be said that the testimony is not very satisfactory, but, as in the Collins case,' each of the parties had been married before and had children by former marriages, and there is no hope of them ever living together again.

Another case to which appellant calls atention and upon which he relies is the case of. Scales v. Scales, 167 Ark. 298, 268 S. W. 9. That case also holds that the rule is well settled that divorces will not be granted upon the uncorroborated testimony of either party, even if admitted to be true by the other party. In the case last referred to the testimony showed that they were quarreling very much, as in this case, and, while the testimony in this case is not very satisfactory, there was some corroboration of. the testimony of the plaintiff.

While indignities mentioned in the statute are somewhat similar to cruelty, mentioned in another part of the section, still it has been' held by all the courts that indignities include conduct which is not within the definition of cruelty as a ground for divorce. Although it is said that indignities must amount to a species of mental cruelty, it is also true that what acts constitute such indignities have not been defined, but that they depend upon the facts of each case. As was said in Rose v. Rose, 9 Ark. 507, they may consist of rudeness, vulgarity, unmerited reproach, haughtiness, contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate and estrangement.

There must be in every case, in order to entitle the complaining party to relief, proof of personal indignities. And not only must there be proof of that by the complaining party, but his testimony must be corroborated by other testimony tending to prove the indignities alleged. In other words, a divorce will not be granted to a party on his own testimony, however strong it might be, but it must have corroboration.

Thé testimony of the plaintiff, Ezekiel Bell, and the testimony of the defendant both have some corroboration, yet it was a question of fact, and the chancery court found the facts in favor of the appellee. We cannot say that the finding was against the preponderance of the evidence, and the decree is therefore affirmed.

Justices Wood and Humphreys, JJ., dissent.

DISSENTING OPINION.

Humphreys, J.

Appellee seeks this divorce from appellant for alleged indignities which rendered his condition in life intolerable. The proof introduced by him shows that during the time they lived together, being eight months, she occasionally quarreled at him for indulging in familiarities with his former wife, from whom he was divorced; also that during said period she had failed several times to get breakfast before nine o’clock, necessitating the return of his hands from the field to eat breakfast at that late hour; also that she refused to allow a carpenter to make a coffin on their front porch in which to bury one of his children, because she had always beard that it was had lack to make a eoffin in the house. He testified that she was in the habit of cursing, but introduced no corroborating testimony on that point. She denied swearing, but admitted quarreling at him occasionally for keeping company with his divorced wife, and explained that she requested the carpenter to make the coffin in an outhouse.

She introduced prolof to the effect that they lived together peaceably practically all the time except for an occasional quarrel over attention shown by him to his divorced wife, and that she faithfully performed all of her household duties, and, in addition, kept the account of the work done by his hands in the field.

During the time they resided together they occupied the same bed and slept together the night before he abandoned her. He left her without explanation, and after doing so offered to borrow the money and pay her $150 if she would consent for him to get a divorce. She declined this offer.

Even if all appellant and his witnesses testified to were true, the evidence does not approach the required rule announced by this court in order to obtain a divorce for indignities. The indignities entitling one to divorce must be habitually and systematically pursued by the party at fault. Haley v. Haley, 44 Ark. 429; Simpkins v. Simpkins, 136 Ark. 588, 207 S. W. 28. An occasional provoked quarrel or a failure to get breakfast on time once in a while does not entitle a husband to a divorce. If so, it would be easy for many undeserving husbands to put aside a good wife when he tired of her and wanted another.

In the opinion of the writer this case should be reversed, and remanded with instructions to dismiss appel-lee’s complaint.

Mr. Justice Wood joins the writer in this view, and, for the reasons expressed, we dissent from the majority opinion.


source: Caselaw Access Project

author: McHaNey, J.

license: Public Domain

text:
    Brown v. Nisler.
    Opinion delivered March 11, 1929.

      Bean, Moore & Brasil and Bo-unúe & Sqhoggen, for appellant. . .

      Strait & Strait and Ned'Sellers, for appellee.
   McHaNey, J.

Appellant and appellee were rival candidates for the office of sheriff of Conway County, before the primary election held on August 14, 1928. According to the returns of said election, as certified by the Democratic County Central Committee,, appellee received 1,302 votes and appellant 1,121 votes, or a majority of 181 votes in favor of the appellee.

Within the time provided-by-law appellant instituted, this contest in the circuit court of said county, by filing a complaint charging that he had received 1,121 legal votes, and that, although appellee was credited with 1,302 votes, 720 theréof “were illegal, should not have been counted,' and that he had therefore been nominated by a majority of 539 legal votes. The complaint further alleged that, of the 720 illegal votes counted for appellee, 250 were illegal because they had not assessed any poll tax prior to the second Monday in September, 1927, either with the assessor or county clerk, and that more than 470 of said number of illegal votes should be rejected because their names did not appear on the certified list of legal voters furnished to the election judges, and that in no instance did the judges require persons whose names were not listed in the printed list of qualified electors to' exhibit a poll-tax receipt or certified copy thereof, or an affidavit showing that any of such persons had attained the age of twenty-one years since the last assessing time, and that the judges wholly failed to make a separate list of the names of such persons voting who were not on the certified list, together with the other evidence of their right to vote, nor was any such record returned to the county central committee with the returns of the election, as required by law. The complaint further alleged in detail the names and numbers of persons so voting whose votes were charged to be illegal in the various townships, and challenged other votes on other grounds.

Appellee answered, denying all the material allegations in plaintiff’s complaint, and filed a cross-complaint, alleging that appellant received many illegal votes for various reasons.

Much testimony was taken by both parties, and many weeks were consumed in the taking of testimony and in the trial of the case, running through a record of more than 1,200 pages. During the course of the proceeding the court appointed a canvassing committee of four persons to recount the ballots, - of which each of the parties named two, and this committee-, after canvassing the votes, made- a report showing that appellee had received 1,275 votes and appellant 1,135, or a majority of 140 votes for appellee. This committee was appointed and made its report -subject to the right of the court to hear the testimony and determine the legality of many votes. At the conclusion of the hearing, the court made the following finding:

“On this day the ease of Fred Brown, contestant, versus Sherman Nisler, oontestee, is submitted to the oourt upon the pleadings and testimony and the argument of counsel; and the court holds that § 3740,0. & M. Digest, was not substantially complied with, and that the printed list purporting to be a list of the poll-tax payers under said section was not made in the manner provided by law, and that it has no legal and binding effect, and that the contestant’s, cause of action fails because of the failure upon the part of the officers to file a proper list of the poll-tax payers in the manner provided by law, and the contestant’s cause of action is therefore dismissed.”

We are first called upon to decide whether the learned trial court was correct in so holding. If this holding of the court is correct, that is, that § 3740 of C. & M. Digest was. not substantially complied with, it necessarily follows that appellant’s contest must fail, because there is no basis for determining the legality of many of the votes challenged by appellant. This section of the Digest reads as follows':

“On the first Monday in July of each year the collector shall file with the county clerk a list containing the correct names, alphabetically arranged (according to political or voting townships, and according to color), of all persons who have, up to.and including that date, paid the poll tax assessed against them respectively. The correctness of this list shall be authenticated by the affidavit of the collector in person. The county clerk shall at once record the said list in a well-bound book to be kept for that purpose, and, on or before the 15th day of July, shall deliver to the county election commissioners, or to the chairman or secretary of the said board, a certified copy thereof. The original shall be kept on file in the office of the said clerk, free to the inspection of any elector of said county, and the clerk shall, on demand, accompanied by the fee prescribed by law for making a copy of any instrument for record, make a copy thereof for any person. The county election commissioners shall cause to be printed a sufficient number of said lists to supply to each judge of election at every general or special election a copy thereof, to be sent to such judge with the ballots and blank poll books now directed to be sent preparatory to holding an election. The said election commissioners are authorized to have said printing done at an expense not to exceed one dollar and fifty cents for each one hundred names on said list. The fees of the county clerk for all services to be rendered by him in filing, recording and furnishing to the election commissioners a certified copy of said list shall be ten cents for each one hundred words contained in said list and the certified copy thereof so furnished to said commissioners.”

The very first requirement of this statute is that the collector shall, on the first Monday in July, file with the county clerk the list of poll-tax payers, and that “the correctness of this, list shall be authenticated by the affidavit of the collector in person.” The statute does not permit a deputy in the collector’s office to authenticate the list, but it must be done by the collector himself, on his own affidavit. When the list is. filed with the clerk, it is made his duty to record it in a well-bound book to be kept for that purpose, and, on or before the 15th of July, he is required to deliver a certified copy thereof to the county board of election commissioners, and shall keep the original as made by the collector in his office for the inspection of any elector. The statute next makes it the duty of the election commissioners to have printed a sufficient number of said lists to supply each judge of election at every general or special election a copy thereof, which shall be sent to the judges of election with the poll books and other election supplies. These are the positive requirements of the statute.

The evidence in this record shows that these provisions were wholly disregarded. The collector did not make such a list, or any list, of the poll-tax payers. No such list was verified by the collector, by his. affidavit, in person, or otherwise. No such list verified by the collector was filed with the clerk, and a certified copy of no such, list was made by the cleric and delivered to the board of election commissioners. What did happen was, that the clerk took the taxbooks and himself made a list of the poll-tax payer®, which he delivered to a printer to be printed. The printer printed the list given him by the clerk, and himself sent one copy thereof to the judg’es of election with the other election supplies for holding’ the primary election. The trial court held that this was not a substantial compliance with the act, and, we think, correctly so. It was no' compliance with the act. True, this, court held in Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74, that a substantial compliance with the statute was sufficient, but in that case, while the opinion does not state what was done by way of compliance with the act, the record in that ease, which we have again reviewed, shows that everything was done in compliance with the law except delivering’ the list to the election commissioners by the clerk, to be caused to be printed by them. Instead of doing that, the clerk delivered a certified copy of the list to the printer instead 'of to the election commissioners. The list was made by the collector and delivered to the clerk, as required by law. We do not know what the Legislature had in mind in requiring the list to be prepared, handled and published in the manner required by the statute, unless it was to throw as many safeguards around the preparation and publication of said list as possible, in order that it might import its own truthfulness and verity as other public records and documents. Upon the correctness of this list, in a vast majority of instances, depends the sacred right to vote and to have that vote counted by the judges of election and by the court in any contest growing out of any election. Section 3777, O. & M. Digest, provides:

“No person shall be allowed to vote at any primary election held under the laws of this State who shall not exhibit a poll-tax receipt or other evidence that he has paid his poll tax within the time prescribed by law to entitle him to vote at the succeeding general State election. Such other evidence shall he: (a) A copy of such receipt, duly certified by the clerk of the county court of the county where such tax was paid; (b) or such person’s name shall appear upon the list required to be certified to the judges of election by § 3740; or, if any person offering to vote shall have attained the age of twenty-one years since the time of assessing taxes next preceding such election, which period of assessment is here declared to mean between the second Monday in May and the second Monday in September of each year, and possesses the other necessary qualifications, and shall submit evidence by written affidavit, satisfactory to the judges of election, establishing that fact, he shall be permitted to vote. .All such original and certified copies of poll-tax receipts and written affidavits shall be filed with the judges of election and returned by them with their other returns of election, and the said judges of election shall, in addition to their regular list of voters, make an additional list upon their poll books of all such persons permitted by them to vote, whose names'do not appear upon the certified list of poll-tax payers, and such poll books shall have a separate page for the purpose of recording names of such persons. * * The certified lists required by § 3740 shall contain, in addition to the name of the person paying such poll tax, his color, residence, postoffice address (rural route, town or street address, where by ordinance the numbering of houses is required), the school district and voting precinct, and such list shall be arranged in alphabetical order, according to the respective voting precincts. The county election commissioners shall supply the judges of primary elections with printed copies of such lists. For each error rendering void the poll-tax receipt, in the transcribing, certification or printing of the names, color, residence, postoffice address, school, district, or voting precinct of such persons, the collector,- clerk . or printer making the same shall be assessed the sum of one dollar,which sum or sums shall'be deducted from any sums due such officer or printer from the county when settlements are made with such officer or printer, and the enforcement hereof is made mandatory upon the county court. * * * In any contest arising upon any election held under this act, it shall he a ground of rejection of any ballot cast by an elector whose name (a) does not appear upon the certified list of poll-tax payers; or (b) who has not filed with the judges of election his. original or certified copy of poll-tax receipt, or written affidavit of the attainment of his majority; or (c) if such original or certified copy of such poll-tax receipt or written affidavit has not been returned 'by the judges qf election; or (d) the name of such person listed separately and certified as required by this act.”

It will be noticed in the above section of the statute that a penalty is provided against the collector, printer or clerk, whoever may make the error, of $1 for each error, the object being to have printed as nearly an absolutely correct list as possible. If the voter’s name does not appear upon the printed list, his vote cannot be counted in any contest, unless the other evidence required by law is returned by the judges, on a separate list with such other evidence. So it will be seen that the correctness and truthfulness of the list is made the basis for determining fundamental rights, not only of the candidates themselves, but of the citizen’s right of franchise. The election judges in this particular case in Conway County did not require any other evidence of a person’s right to vote, or, if so, they did not make and return a separate list of electors whose names did not appear on the printed list, with such other evidence of their right to vote. Therefore,' treating the list as the basis for determining this contest as a legal list, the court would have been under the necessity of refusing to count any person’s vote whose name did not appear on the printed list, as no other evidence was returned by the judges of the election.

The effect of not substantially complying with the law with regard to the preparation and publication of the printed list of voters was to nullify the list and leave the same condition as if no list had been printed at all. As was held by this court in McLain v. Fish, 159 Ark. 199, 251 S. W. 686, the provisions of the statute, § 8777, C. & M. Digest, are mandatory. And in Storey v. Looney, 166 Ark. 455, 265 S. W. 51, it was said:

“'We decided in the case of McLain v. Fish, 159 Ark. 199, 251 S. W. 686, that the provisions of the statute quoted above (§ 3777, C. & M. Digest), are mandatory, and that, in the contest of an election, where a list was published as required by statute, the qualifications, of voters not on the list must be proved in accordance with the statute, or be excluded.”

In Storey v. Looney, supra, there was no published list of persons who paid their poll tax furnished to the election officers, and none of the persons voting at the election furnished the judges of election other evidence of their right to vote. Appellant there contended that the election was. totally void; that there was no legal nomination made. The court said:

“The question necessarily presents itself in the beginning, whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee. Appellant’s contention being that there was no valid nomination at all, he is not a claimant himself for the nomination, and all that can be done by the court is to cancel the certificate of nomination awarded to appellee. This is therefore not really a contest for nomination as contemplated and authorized by the statute. In order to make a contest for the nomination, appellant must show that he is entitled to the nomination himself, which he fails to do.”

Tn the case before us, appellant contends that he is the rightful nominee. He is contesting appellee’s right to the nomination, and claims that he received a majority of the legal votes, but he bases his contest almost entirely on the printed list, and since, as we have already shown, the printed list was invalid, not having been compiled in substantial compliance with the provisions of the statute, his contest must necessarily fail, and the circuit court was correct in dismissing his complaint.

Judgment, affirmed.

Smith and Kirby, JJ., dissent.


author: McHaney, J.

text:
    Emerich v. Arendt.
    Opinion delivered March 11, 1929.

      A. J. Newman and Geo. W. Emerson, for appellant.

      Downie & Schoggen, for appellee.
   McHaney, J.

William Emerich., single, late of Little

Rock, died testate, his, will being admitted to probate in Pulaski County. Specific bequests of $50 each were made to bis brother and two sisters, and $10 each to the children of two deceased brothers. All the residue of bis, estate was devised and bequeathed to the appellee, Mrs. John C. Arendt, widow of a nephew of the testator, who was also named executrix without bond. An appeal was prosecuted from the order of probate to the circuit court, where a petition was filed by appellants, who are some of the collateral heirs, attacking the validity of the will on the grounds of alleged mental incapacity to make a will, and nndne influence of the appellee and her deceased husband. The case was tried to a jury on conflicting evidence, that of appellants tending very strongly to show mental incapacity.

The testator was born in Germany, and came to this country when quite young. At about the age of eleven, while living in the State of Illinois, he was stricken with typhoid, which left him almost, if not entirely, deaf and dumb. He was wholly uneducated, never attended school, and was unable to read or write, not being able to sign his name. He communicated with strangers with difficulty, but was able to make himself understood by his intimates. He was not insane, and appellants do not so insist, but they do contend that he did not possess sufficient mental capacity to remember, without prompting, the extent of his property, what he owned, nor to whom he was giving it, nor the deserts and relations to him of his other heirs who were practically excluded from participating in his estate. On the other hand, the testimony on behalf of appellee tended to show that the testator had sufficient mental capacity to meet the requirements of the law in order to make a valid will. It was shown that, although he possessed all the peculiarities above stated, he came to Little Rock some 45 years ago, and, in spite of his many handicaps, accumulated an estate of from $15,000 to $20,000 by hard labor and frugality. He owned three lots, and six houses at 13th and Ringo Streets, Little Rock, rented his property himself, collected the rents, and made deposits in the bank. He was able to count money readily, and evidently knew its value. He could read the lips of some of those speaking to him, if they would speak slowly and distinctly, and could make those who were familiar with his manner of communication understand him.

There was much testimony on both sides, but we think the above statement of the effect thereof sufficient for this opinion.- The jury found for the mil.

We think this was ^case for the jury. Evidently appellants so thought, as there was no request for a directed verdict in their favor. The only question was the mental capacity of the testator, no proof being offered of undue influence and no instructions asked or given thereon. The verdict of a jury is binding on this court if there is any substantial evidence to support it, and, as we have seen, the evidence as to capacity is in sharp conflict.

The burden of proving incapacity is always on the contestant, as¡ the presumption is that the testator is sane until the contrary is established. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. It was there said:

“Old age, physical infirmities, and even partial eclipse of the mind would not prevent her from making a valid testament, if she knew and understood what she was doing — if she could retain in her memory, without prompting, the extent and condition of her property, and comprehend to whom she was giving it, and be capable of appreciating the deserts and relations to her of others whom she excluded from participation in her estate. 1 Redfield on Wills, ch. 4, §§ 7-15, and cases there cited; Tobin v. Jenkins, 29 Ark. 159; Delafield v. Parish, 25 N. Y. 22-29; Kempsey v. McGinnis, 21 Mich. 141; Brinkman v. Rueggesick, 71 Mo. 553.”

This statement was quoted with approval in the celebrated case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, where this court further said:

“The test relates, not to the moral quality of the act done, but to the mental capacity of the testator to do what he did. The question is not whether the testator did actually appreciate the deserts of and relation to him of the one excluded, but whether he had, at the time, the capacity to do so. ‘It is not required that he shall in fact correctly ascertain the legal status of each person who apparently stands in natural relation to him. In the exercise of reason, he may move upon false or insufficient evidence, or by mistake of law, and thus exclude from his bounty those whom, but for this error, he would have recognized. Stupid error, either in his reasoning- or conclusion, is not lack of testamentary capacity.’ Smith v. Smith, 48 N. J. Eq. 566; 1 Sharton & Stille, Med. Jur., § 767, p. 73.
“ There is a clear distinction between having the capacity to comprehend deserts and actually comprehending them — the former the law requires, the latter it does not.”

Bearing these rules in mind, and the distinction “between capacity to comprehend deserts” and “actually comprehending them,” we cannot say, as a matter of law, that the testator was mentally incapacitated.

Appellant suggests that several instructions given at appellee’s request are wrong. Only general objections were made, and no error is now pointed out regarding them. Also it is said that a requested instruction, No. 5, should have been given. We do not set these instructions out and comment on them separately, as it would unduly extend this opinion. No. 5 was substantially covered by other instructions. We find that the court fully and fairly instructed the jury, submitting the respective contentions of the parties.

No error appearing, the judgment must be affirmed.


author: Hart, C. J.

text:
    Mahan v. State.
    Opinion delivered March 18, 1929.

      Dave Partam, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

Bill Malian prosecutes this appeal to reverse a judgment of conviction against him for the crime of manufacturing alcoholic liquors, in violation of § 6160 of Crawford & Moses’ Digest.

The first assignment of error is that the circuit court erred in communicating with the jury after it had retired to consider the verdict. After the jury had deliberated some thirty minutes, the trial court told the sheriff to go to the jury room and tell the .jury that the court was waiting on them to bring in a verdict. The sheriff then went to the jury room,. and carried the message of the court to the jury, and in about fifteen minutes the jury returned a verdict of guilty.

It is true, as contended by counsel for appellant, that it is reversible error for the court to communicate with the jury, in the absence of the defendant, any directions in regard to the verdict. Kindrix v. State, 138 Ark. 594, 212 S. W. 84. It is also true that this court is committed to the rule that it is reversible error for the circuit court to coerce or to entreat the jury to render a verdict. Jackson v. State, 94 Ark. 169, 126 S. W. 843, and St. L. I. M. & Sou. Ry. Co. v. Carter, 111 Ark. 272, 164 S. W. 715. In the present case,’ however, it cannot be sai'd that the trial judge, by threat or entreaty, attempted to influence the jury to reach a verdict. There was only one issue to be tried by the jury, and that was whether or not appellant had been engaged in manufacturing- alcoholic liquors. No witnesses were introduced by the appellant, and the only question for the jury to determine was whether or not the testimony of the witnesses for the -State warranted a verdict of guilty. The assignment of error in this respect did not warrant any inference that the court was either threatening or entreating the jury to 'bring in a verdict in the case. The question propounded to the jury by the court, through the sheriff, was nothing more than to ask about the probability of reaching a verdict within a reasonable time. Hence we hold this assignment of error is not well taken.

The first witness for the State was the sheriff of the county. According to his testimony, he went to the home of appellant, in Crawford County, Arkansas, and, just as they approached the house, some one poured out a tub of something on the porch. He examined the place where the liquid was running off the porch, and found that it was home brew. In a closet in the kitchen the sheriff found six or eight bottles of home brew. He smelled and tasted the liquid that was running off of the porch, and said that it was home brew. He did not drink enough of the liquor to tell if it was intoxicating, but said that, in his judgment, it was. He had been a commissioned officer six years, and had participated in numerous liquor raids. He said that the home brew in the bottles was intoxicating. Appellant admitted to the sheriff that the home brew which had been poured out and that in the bottles was made by him.

The chief deputy sheriff of the county was also a witness for the State. According to his testimony, the home brew which was in the bottles was intoxicating. He also testified that the liquor which was running off the porch was home brew, and that, from its taste and smell, it was intoxicating.

Another witness for the State who was present testified that the home brew which had been poured out, and which was running off the porch, smelled, tasted and looked like home brew which on other occasions he had analyzed and found to contain alcoholic liquor.

As above stated, no -witnesses were introduced by appellant, and tbe testimony of the witnesses for the State, if believed by the jury, was sufficient to warrant it in returning a verdict of guilty. Bums v. State, ante, p. 1. In the present case the court instructed the jury in accordance with the principles of law decided in the Burns case and in other recent decisions of this court.

Therefore the judgment will be affirmed.


author: Hart, C. J.,

text:
    Erwin v. Erwin.
    Opinion delivered March 18, 1929.

      George G. Lewis, for appellant.

      J. A. Watkins and M. F. Elms, for appellee.
   Hart, C. J.,

(after stating the facts). 'Counsel for appellant relies upon the principles of law decided in Brown v. Brown, 38 Ark. 324; Casteel v. Casteel, 38 Ark. 477; and Williams v. Williams, 150 Ark. 319, 234 S. W. 169. Under the principles of law decided in these cases, alimony is a continuing allotment of sums payable at regular intervals for the support of the wife from year to year. Although no definite time is fixed during which it is to continue, it will, from its very nature, cease with the death of either party; or, upon the marriage of the wife, the complainant may apply to the court to be relieved from further payment. It lias been held, however, that such a remarriage does not call for a modification or vacation of an allowance for alimony, where the alimony was awarded in gross, or in lieu of, or as a substitute for, all of the wife’s property rights. Cohen v. Cohen, 150 Cal. 99, 88 Pac. 270, 11 Ann. Cas. 520; and Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028.

The alimony awarded in the divorce decree in the present case shows that it was in lieu of all interest that Mrs. E. E. Erwin may have had or .might thereafter acquire in any property belonging to C. M. Erwin. The decree recites that said alimony be paid in full accord of any right, title or interest that Mrs. E. E. Erwin had in any property of any kind or nature belonging to 'C. M. Erwin. This shows that the parties, by agreement, fixed a sum to be paid by the husband to the wife for alimony and in lieu of her right to a division of his property, under § 3511 of Crawford & Moses’ Digest. This brings the case within the principles of law decided in the California and Wisconsin cases above cited. That principle of law has been recognized by this court in the following cases: Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 A. S. R. 102; Green v. Green, 168 Ark. 937, 272 S. W. 655; and Dunn v. Dunn, 174 Ark. 517, 295 S. W. 963.

In the Pryor case the court held that, where a husband and wife, in contemplation óf immediate divorce, entered into a contract whereby he agreed to pay her certain sums of money at stated times, and they voluntarily caused this contract to be made- part of the decree for divorce, the decree cannot subsequently be modified in so far as it is based on the contract, for a modification of the decree would be a modification of the contract itself; but, should the court find the allowance excessive, it may decline to permit its extraordinary process to be used to collect more than a just and reasonable allowance.

In the Green case the court held that a decree for an accrued sum as alimony becomes final with the end of the term, and cannot be set aside at a subsequent term, even though found to be erroneous. In discussing the question the court said:

“A continuing order of court for the payment of alimony remains within the control of the court from time to time, to be altered according to changes in the circumstances of the parties. A decree rendered for an accrued sum becomes final with the end of the term, and cannot be set aside at a subsequent term, even though found to be erroneous. In that respect it is the same as any other judgment or decree of a court of record.”

In the Dunn case the court held that, where a wife was granted a divorce and decreed one-third of her husband’s personal property absolutely and one-third of his real estate for life, and she afterwards agreed to accept $1,200 in lieu of the property rights under the decree, it was error to refuse to confirm such settlement, in the absence of any showing of false representations or coercion.

The result of our views is that the decree of the chancery court must be affirmed.


author: Wood, J.

text:
    Rural Special School District No. 22 v. McCrory Special School District.
    Opinion delivered March 18, 1929.

      E. M. GarlLee and W. J. Dumgan, for appellant.

      Boy D. Campbell, for appellee.
   Wood, J.

The complaint in this action is as follows: “That plaintiff is a rural special school district (number 22 of "Woodruff County, Ark.), created by a special act of the General Assembly of Arkansas and approved on February 18,1920. R. H. Curtis, W. J. Pohnka, "W. D. Wilson, J. H. Thrasher, M. L. Davis and C. W. Rushings constitute the board of directors. The MoCrory Special School District was created by a special act of the General Assembly of the State of Arkansas. At the regular school election held! in the year 1925 in District No. 22 a twelve-mill school tax was voted by the legal electors. The tax so voted and levied was collected and paid by the collector to the county treasurer, and was properly credited to plaintiff district. The amount collected and credited to plaintiff district was $1,566.71, and this was to the credit of plaintiff district on the books of the county treasurer on the 21st day of September, 1926. That other funds, in the sum of $478.61, arising from a previous vote and levy, were to the credit of plaintiff on the said 21st day of September, 1926. And there were still other funds to the credit of plaintiff district, in the sum of $1,706.28, from the State apportionment of school taxes. That on the said 21st day of September, 1926, there was credited to plaintiff on the treasurer’s books the total sum of $3,773.80, arising from a proper levy and distribution of school funds to plaintiff.

“Plaintiff alleges that on the 21st day of September, 1926, the county board of education of Woodruff County made an order annexing plaintiff to defendant, which was later by the courts declared null and void. The county treasurer, on the 25th day of September, 1926, transferred the funds of plaintiff and credited same to defendant. That defendant expended said funds for school purposes in defendant district, except the item of $1,446.26, in violation of § 3, article 14, of the Constitution of Arkansas.
“Plaintiff alleges that certain electors and taxpayers of plaintiff district filed an injunction suit against the county treasurer to prevent the transfer of the funds, but, next day after the suit -was filed, and before notice was served upon him, the said treasurer made the transfer; that, before a new suit could be filed, defendant had drawn warrants in large sums in purchasing school busses and for other purposes for defendant district, thereby placing the funds beyond the reach of the courts. Plaintiff alleges that $3,773.80 of plaintiff’s funds have been expended by defendant; that $1,446.26 was expended in plaintiff’s district and the balance in the defendant’s district. Plaintiff consents that defendant have credit for the sum of $1,446.26 spent in plaintiff district, and alleges that defendant is indebted unto plaintiff in the sum of $2,337.54.”

The defendant filed a demurrer to the complaint which is as follows: “That the complaint fails to allege that the funds sought to be recovered are funds now on hand to credit of defendant district, or that said funds have not been expended for school purposes.”

The court sustained the demurrer. The plaintiff refused to plead further, whereupon the court entered judgment dismissing the complaint, from which judgment is this appeal.

Amendment No. 11 of the 'Constitution provides in part as follows:

“The General Assembly may by general law authorize school districts to levy, by vote of the qualified electors of such district, a tax not to exceed eighteen mills on the dollar in any one year for school purposes; provided, further, that no such tax shall be appropriated to any other purpose nor to any other district than that for which it is levied.”

It appears from the facts stated in the complaint that on 'September 21, 1926, the appellant had to its credit, as shown by the treasurer’s hooks of Woodruff County, the sum of $3,773.80, which sum had been properly levied, collected and distributed to the appellant. On that day the board of education of Woodruff County made an order annexing the appellant to the appellee and directing the treasurer of the county to transfer all the funds of appellant to the appellee, which was done. This .judgment of annexation and transfer was absolutely void. See McCrory Special School Dist. v. Curtis, 174 Ark. 346, 295 S. W. 971.

'Certain electors and taxpayers of the appellant instituted an action in the chancery, court to prevent the transfer of its funds to the appellee, but, before service was had upon the treasurer, he had made the transfer, and, before action could be filed against the appellee to prevent the expenditure of the funds, the appellee had placed such funds beyond the reach of the courts. The appellee expended, of the above sum,. $1,446.26 in the appellant district, and the remainder, $2,337.54, in the appellee district, and- it is this latter sum that the appellant by this action seeks to recover.

Under the facts thus properly pleaded in the complaint, and admitted by the demurrer, judgment should have been entered by the trial court in favor of the plaintiff below, appellant here, against the defendant, appellee here, overruling the demurrer to the complaint.

Appellee seeks to uphold the judgment of the trial court in its favor under authority of Mabelvale Special School District v. Halstead School District, 169 Ark. 645, 276 S. W. 584, and Lepanto School District v. Marked Tree School District, 173 Ark. 82, 291 S. W. 1006. In these cases we announced the doctrine that: “School taxes erroneously levied and distributed pursuant to levy to a school district, and consumed in educational purposes by it, cannot thereafter be recovered "by the school district rightfully entitled thereto. * * * .The reason that the rule does not contravene said constitutional proviso is that the taxes were appropriated and expended for the purposes and in the district for which they were levied. ’ ’

We will not encnmlher the record here by restating the facts upon which the above doctrine was announced. Suffice it to say the facts of those cases differentiate them wholly from the case in hand. In those cases the funds sought to be recovered had not only been expended for school purposes, but they had also been expended in and for the district wherein they were levied. Therefore in those cases the provision of the'Constitution above, which requires that no tax levied for school purposes “shall be appropriated to any other purpose nor to any other district than that for which it is levied,” was not violated. But here the facts stated in the complaint show that, while the amount sought to be recovered was expended by the appellee for school purposes, such amount was not expended in the district in and for which the tax was levied. Therefore to allow the appellee to retain the funds would be in the teeth of the provision of the Constitution supra, “that no tax levied for school purposes shall be appropriated to any other purpose nor to any other district than that for which it is levied.” The sum in controversy was a tax levied by and in and for the appellant district, but which, as we have seen, through the void order of the county court of Woodruff County, was transferred to and expended by and for the appellee district, and not in and for appellant.

Learned counsel for the appellee contends that, if “appellant had brought a proper suit to enjoin the treasurer from paying out the funds which had been transferred to McCrory Special School District, relief might have been granted.” A complete answer to this contention is that the appellee admits that an injunction suit was instituted by the appellant against the county treasurer to prevent the transfer of the funds under the void order of the board of education, but, the next day after suit was filed and before notice was served upon him, the treasurer made the transfer, and that, before a new suit could be filed against the appellee, it had placed the funds in controversy “beyond the reach of the courts.”

It follows that the judgment of the circuit court must be reversed, and the cause will be remanded with directions to overrule the demurrer. It is so ordered.

Hart, O. J., and Humphreys, J., dissenting.


author: Smith, J.

text:
    Scruggs v. North Little Rock.
    Opinion delivered March 18, 1929.

      W. W. Shepherd, for appellant.

      Tom F. Digby, for appellee.
   Smith, J.

In, December, 1927, appellant was tried in the municipal court of North Little Rock upon the charg’e of reckless driving'. The court docket reflects that the following judgment was rendered: “Docket No. 6, case No. 4083, page 817. T. N. Scruggs; charge, reckless driving; fined $25 and sixty days. Suspended on promise to stop running a jitney in or past the city of North Little Rock, or picking up passengers therein.”

In September, 1928, appellant was brought- into the same court upon the charges of assault and battery and disturbing the peace, and, after a trial upon these charges (which resulted in the imposition of a fine in each case), the court ordered the chief of police to take appellant into custody under the judgment in the reckless driving case. This order was made without any proceedings being had in that case except that of the order to take appellant into custody. Upon this order being obeyed, appellant sued out a writ of habeas corpus, in which he prayed Ms release from custody upon the ground tliat no final or enforceable judgment liad been rendered against Mm. Tbe circuit court field against tfiis contention, and ordered tfiat appellant be remanded to tfie custody of tfie chief of police of North Little Rock, and tfiis appeal is from tfiat order.

Tfie judgment of tfie circuit court from wfiicfi tfiis appeal comes accords with, tfie views of tfiis court in tfie cases of Holden v. State, 156 Ark. 521, 527, 247 S. W. 768; Middleton v. State, 160 Ark. 108, 254 S. W. 342; and Davis v. State, 169 Ark. 932, 937, 277 S. W. 5.

Tfie municipal court rendered a final and enforceable judgment when the sentence of a fine of $25, with imprisonment for 60 days, was imposed. Tong v. State, 169 Ark. 708, 716, 276 S. W. 1004; ex parte Holdaway, 105 Ark. 1, 150 S. W. 123. Tfie jurisdiction of tfie court to render tfiis judgment' is not questioned, but it is earnestly insisted tfiat tfie judgment immediately ceased to be effective and enforceable as a judgment when it was further ordered tfiat it be “suspended on promise to stop runmng a jitney in or past tfie city of North Little Rock, Ark., or picking up passengers therein.’’ It is not now contended on behalf of tfie city, in support of tfie judgment here appealed from,, tfiat tfie judge of tfie municipal court had the power to impose the condition upon tfie enforcement of tfie judgment wfiicfi was imposed, and it may be said with emphasis tfiat fie had no such power. Tfiis condition was clearly an excess of power; but there was no excess of power in imposing tfie sentence itself.

Tfie Davis case, supra, is one in wfiicfi tfie circuit court, upon a plea of guilty to tfie charge of selling intoxicating liquors, had imposed upon tfie defendant a sentence of one year in tfie penitentiary, but, in tfie same judgment, had ordered tfie sentence be stayed, “provided the defendant did not * * violate any of tfie liquor laws of tfie State of Arkansas; but should fie at any time violate any of tfie liquor laws of tfiis State, then tfiis judgment and sentence is to be in full force and effect from and after any violation by Mm.” At a later term of the circuit court an order was entered of record wherein it was adjudged that the suspension of the execution of the judgment against the defendant Davis was without authority, and the court then entered a judgment suspending the execution of the sentence indefinitely. At a still later term of the court a motion was filed to revoke the order suspending the execution of the sentence, on the ground that the defendant had again violated the liquor laws. The court found that the defendant had violated the previous orders of the court in the premises, and that the suspension of the execution of the sentence should be revoked. It was therefore ordered that the defendant be taken into custody until he had discharged the original sentence, and from that order an appeal was prosecuted.

We there said that the appeal raised the question whether the court had the power to suspend the execution of á sentence for an indefinite time, and we held that the court had no such power.

The .judgment there involved was one which had been rendered by a circuit court, and it was said that neither the Constitution of the State nor any statute thereof conferred this power at the time the sentence was imposed, although, as was pointed out, this power was later conferred on circuit courts. Inquiry was then made whether this power existed at the common law, and, after a review of the authorities, it was there said that, “according to the annotation' in these reports, the weight of authority is that, in the absence of a statute conferring it, courts have no power to suspend the execution of their sentences indefinitely.” It was there also said that “it is evident that-, when a court undertakes, on its own motion, to suspend a sentence indefinitely, it really refuses to enforce the punishment provided by statute, unless it shall at some future time conclude that it is proper to do so. The power to exercise discretion as .to the enforcement of the punishment provided by law and pronounced by tbe court is vested in tbe Governor.”

Tbe court then announced tbe conclusion that tbe circuit judge in each instance above mentioned exceeded bis power, and that tbe stay of tbe execution of tbe sentence was void, and it was held that tbe circuit court bad tbe right to order tbe defendant to be taken into custody, to tbe end that be might serve bis sentence.

Tbe opinion in tbe Davis case cites numerous cases on tbe subject, which we do not again review, as tbe opinion in that case is decisive of tbe present appeal.

Tbe opinion in tbe case of Massey v. Cunningham, 169 Ark. 413, 275 S. W. 737, points out tbe difference which some courts have made between tbe power to suspend tbe imposing of a sentence and tbe power to suspend tbe execution of a sentence, but we do not consider this distinction here, for tbe reason that tbe sentence was imposed, and tbe attempt of tbe court was to suspend its execution, and tbe exact .point decided in tbe Davis case, supra, was that this could not be done. See Ketchum v. Vansickle, 171 Ark. 784, 286 S. W. 948.

Tbe judgment of tbe circuit court is therefore correct, and must be affirmed, and it is so ordered.


text:
    United Order of Good Samaritans v. Betts.
    Opinion delivered March 18, 1929.

      A. D. Whitehead,, for appellant.

      Sheffield & Coates, for appellee.
   Smith, J.

Appellee recovered judgment for the amount of a 'benefit certificate issued to her on the life of her mother by the appellant order. For the reversal of the judgment it is insisted that the monthly dues were not paid within the time required by the by-laws of the order, and that an erroneous instruction on the subject of the waiver of this payment was given by the court, and that the proof of death was not made within sixty days, as required by the by-laws.

The certificate sued on is identical with the one set out in the opinion in the case of United Order of Good Samaritans v. Thompson, 172 Ark. 884, 290 S. W. 965, and the by-law which we held prevented a recovery in that case was offered for the same purpose in the instant case. This by-law provided that dues should be paid by the 10th of each month, and, if not so paid, the delinquent member should be automatically suspended and no liability be enforced against the order during such suspension. The insured died within less than thirty days of the time of payment of the alleged delinquent dues. The by-law further provided that, “should the dues be paid, neither the insured nor the beneficiaries shall be entitled to any benefits if sickness or death occurs before the expiration of thirty days. Also, the subsequent payment- of such arrears shall not entitle the insured or beneficiary to any benefits for sickness or death occurring during the period of such suspension.”

In construing the language just quoted, which was also quoted in the Thompson case, supra, we held that the subsequent, payment of delinquent dues to the order would not entitle the beneficiary to recover if the insured died within thirty days of the date of such payment, for the reason that “the section (quoted) further provides that, should the dues be paid, neither the insured nor the 'beneficiaries shall be entitled to any benefits for sickness or death occurring during the period of such suspension.”

The testimony was-conflicting as to whether the dues had been paid within the time required by the by-laws, and was legally sufficient to support a finding either way on that subject. But the court gave, over appellant’s objection, an oral instruction in which the jury was told that, “if they (the dues) were not paid by the 10th, if the company accepted them as payment, then they would be estopped from denying that they had received it, thereby they would waive prompt payment of the premiums if they accepted the premiums and kept them. ” The effect of this instruction is to nullify the provision of the by-law quoted above, which, we held in the Thompson ease, was valid, that is, that the subsequent payment of delinquent dues did not, for a period of thirty days after such payment, reinstate the delinquent. The court was in error therefore in telling the jury that the order was estopped, by the receipt of this delinquent payment, from relying on the by-law quoted.

There was conflicting testimony as to whether the. proof of death had been made within sixty days after the death of the insured, as the by-laws of the order required. On behalf of appellee the testimony was to the effect, (1) that proof of death was furnished within the sixty days, and (2) that, within that time, the order denied liability on the certificate. Proof of either of these facts would suffice to meet the requirement in regard to proof of death, and we think the testimony was legally sufficient to support both of them.

But, for the error indicated, the judgment must be reversed, and it is so ordered.


author: Humphreys, J.

text:
    Gehl v. State.
    Opinion delivered March 18, 1929.

      Robert L. Rogers, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the Pulaski County Circuit Court, First Division, for murder in the first degree, for killing Charles Weldon, and, on the trial of the cause-, was convicted of voluntary manslaughter, and, as a punishment therefor, was adjudged to- serve a term of two years in the State Penitentiary, from which he has duly prosecuted an appeal to this court.

The only assignment of error urged for a reversal of the judgment is the permission granted by the. trial court to special counsel to read testimony taken at the coroner’s inquest as a part of his statement to the jury. Before offering evidence in support of an indictment, a prosecuting attorney, or any attorney assisting him, may make a brief statement -of the evidence on which the State relies. Section 3171 of Crawford & Moses’ Digest so provides. There is nothing in this statute authorizing the reading -of testimony theretofore taken in aid of the statement, and it is 'bad practice, and should not be countenanced. It was error to allow the evidence- taken at the coroner’s inquest to be read, but we are unable to discover any prejudice resulting to appellant on account of reading same. The testimony read did not differ in any material respect from' that subsequently introduced by the State in support of the indictment. In order to guard aeainst any prejudice that might result to appellant on account of reading the testimony, the court admonished the jury not to consider the testimony read as evidence in the case, but to treat same as a statement of what the State expected to prove; and, further, that they must be governed only by the evidence introduced and the instructions given by the court.

No' prejudicial error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Bobo v. State.
    Opinion delivered March 18, 1929.

      Hays, Priddy & Borex, for appellant.

      Hal L. Norwood, Attorney General, and E. F. McFaddin; Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a conviction of appellant of the crime of murder in the second degree for killing one Sam Dean, with punishment fixed at 12 years in the penitentiary.

Only two assignments of error are urged; first, that the court erred in permitting the introduction of testimony in rebuttal tending to impeach the defendant’s statement; and second, that error was committed in allowing a witness to state his opinion, after examination of the place where the shooting occurred, that it was impossible that shot from one discharge of the gun could have struck the deceased on the ground, cut certain twigs from the bushes where he left the road, and struck the end-gate of his wagonbed.

Appellant and deceased were colored men, farmers, about 40 years of age, living in the same community, about five miles south of Atkins, and about a mile apart. They had been friends from boyhood, belonged to the same lodges and church, and had had no trouble before this difficulty. They were both at church on Sunday before the killing on the next Friday, and agreed that they would attend church together on the next Sunday. Dean was to come by for appellant on Sunday morning.

Richard Bobo, cousin of defendant, and brother-in-law of deceased, spent Saturday night at Dean’s home, and he and Dean began drinking “home brew” Sunday morning, and about 9 o’clock they went to defendant’s home and continued drinking “home brew.” They left defendant’s home at about 12 o’clock with another neighbor, Alex Pledger, and went to Dean’s home, where Dean served more “home brew.” . All Were d-rinking, and Dean went into the house and engaged in a controversy with his wife. Defendant went inside, being* helped by Richard Bobo to take Dean out of the house, which they did. They took Dean’s shotgun away from him, and also a target rifle, his wife saying at the time that Dean was getting his gun to shoot the defendant. When they got outside, defendant asked Pledger to hold Dean, and ran on down to his own home. Dean quieted down, and there seemed .to have been no ill will between them or any ground for a quarrel, except condition from drinking. Defendant went home, got Ms shotgun, and started to Cuba, a negro settlement about three miles away, after' Ms wife. Shortly after leaving home he met Dean with his two oompaMons walking up that way. They spoke to each other in passing, and defendant fired his gun in the air shortly after passing the others.

On Friday morning afterwards both men started early to the gin with a load of cotton, Dean being ahead of appellant, on the same road, and neither knowing of the other’s presence. After leaving the Atkins highway, Dean stopped to talk with a colored neighbor, and appellant drove up within about twenty-five yards, and the two engaged in a friendly conversation about their crops and the amount of cotton picked. Dean drove on, with the defendant following. This was about a half-mile from the scene of the Mlling. Dean’s team was the faster, and he was about 75 yards ahead of defendant when they passed Walker’s house. He continued to gain, and was about 200 yards ahead when he stopped where the killing occurred. The neighborhood is thickly settled along the' road, a State highway, to the cotton gin, except about 250 yards of the road where the killing took place has tMck woods on each side and a high bank on the left, an old river-bed, where sand was being taken oiit for construction work. There was an “S” curve in the road here, with no view of that portion of it from any house along the road. Dean was ahead of appellant, stopped his wagon, and, according to defendant’s statement, waited until he drove up. Said he could not drive around Dean’s wagon, his team being cut across to the right, and the hole from which the sand was being taken was on the left. When defendant got within about 30 feet, Dean stopped his wagon, wrapped his lines on the sideboard, and started back toward the end of the wagon, telling the defendant it was a good time to settle their differences of last Sunday, at the same time putting his hand into the bib of his overalls' and coming towards defendant, who was sitting on his load of cotton. When lie started to take Ms hand out, defendant grabbed his shotgun and fired at Dean, Mtting him in the 'breast. Both teams started to run, and both men either fell or jumped from their wagons, deceased landing first. As appellant fell or jumped, the gun was discharged a second time, just as deceased had turned 'and started to run. This shot struck the deceased in the hip, and also struck the hind-gate of his wagon. Deceased ran down the right side of the road 25 or 30 steps, turned off into the old road through the bushes at the edge of the road, and fell about 15 steps from the turn-out, where the body was found. Defendant ran after Ms team, going in the direction of the gin, following the team of the deceased. At the north end of the curve the highway turns directly east to the gin about a quarter of a mile way, and defendant, not having overtaken his team, continued north to the town of Atkins, about one and a half miles, and surrendered to the officers, telling them he had shot Dean. Demed that his gun was concealed, and said he had carried Ms shotgun for protection against robbers, as he was going to bring the money home he received for Ms cotton, and Ms brother-in-law had been robbed a few days 'before on the road.

Dean, when killed, was dressed in overalls and jumper, the bib of Ms overalls over his jumper. He was shot in the face, side, head and back with No. 4 shot, and no weapon was found on or near the body. One witness said there were some shot in one of Ms hands.

Odis Austin, on his way to the gin with some cotton, first saw the wagons of defendant and deceased about one-half mile from the Mlling, and did not then know which was in front. Did not see Bobo’s wagon stop on the left side of the road at the bend. "Was a good piece beMnd, “but Bobo was on the front end of the wagon, facing the right side of the road, and I "saw him pick up. Ms shotgun and shoot twice. A piece of sack or wagon sheet or something was over his gun. He pointed it south, or to the right, and shot. He didn’t seem to be excited, but put tbe gun to Ms shoulder, and I tMnk he took .aim. 'The gun was pointed down, a little out, and he shot twice. His second shot was about the same range as the first. He never took the gun down from his shoulder. His team started to run with the first shot; about ten seconds between the shots, and his team was going when the second fired. Did not see what he was shooting at. When I drove by the place where his wagon had been, there was some cotton and a hat on the ground at the right side of the road. The hat was on the cotton, and the cotton was scattered along three or four feet. Did not stop my team, and, when I got around the bend of the road, the teams were going on to the gin, but I didn’t see any drivers. When I got about 250 yards beyond the place of the killing, I saw Simpson Bobo going through the cotton patch in the direction of AtMns, and he had Ms gun with him.” Witness was about 150 yards from Bobo’s wagon when he first saw it, and about 75 yards distant when the shots were fired.' Bobo’s wagon was not moving while witness drove the 75 yards, and he did not shoot down, but across the road. Could not see Dean’s wagon at all, but there was shot in the 'back of it. The road runs east .and west, and Bobo was on the north side, with Ms gun pointed south. Could not see wMch way the wagons were facing. There was no wagon between witness and Bobo’s, and he was in the same position when he shot the second time; not changing the range of his gun, wMch was across the road, and down.

The constable testified that he made a thorough examination of the place of the shooting about two hours after it occurred; found no weapon on the body of the deceased nor in his wagon. .Some shots were in the back of his left hand. Did not know whether there were any shots in his right hand. Was shot from the navel up as Mgh as the mouth. 'Saw some tracks on the side of the highway that came down aways and turned into the bushes, which were shot, and had blood oh them about six or seven steps from where the body was lying. It was about 24 or 25 steps from where the first tracks were off the wagon to where he turned off the highway. There was blood on the bushes and on the road. Found 16 shot in the back of Dean’s wagon, which would be on the south side of the wagon, traveling east, and the shot ranged down. It was about 64 feet to where he turned off in the bushes and where the shot had struck the bushes. Witness was asked the question, from where he saw the tracks and the blood, if shot from the same load could have hit the wagon and cut the hushes 65 or 75 feet away, where the tracks turned in. This question was objected to, and the court first refused to allow the witness to ¡answer; later, on his own motion, the court said he thought he ought to be permitted to answer the question, since he was on the ground, and the situation could be better understood if he would do so, to which witness replied, “It would be impossible.” Did not know from where the shot was fired that cut the bushes or struck Dean, nor where Dean was standing when shot, or where the wagon was standing when the shot struck the end-gate. It would have been impossible for shot fired from the same load to have struck a man where the blood started and also to have struck the bushes down there. The range of the bullets in the body was slanting a little down and to the right, and they were pretty straight in the wagon-bed.

Alec Standridge was allowed to testify in rebuttal of a threat made by the defendant, after defendant had denied making such statement, that defendant had not said that on' the day before the-killing* he was at a man’s house on Sunday before that, and that “for ten minutes he would kill hiim.” Said he did say that he was at a neighbor’s on Sunday before that, and that the fellow, the first thing he knew, was getting a gun to kill him with, and says, “For a little I would take my gun and kill that sucker yet. ’ ’ That is all that he did say.

The proper predicate was laid for the impeachment of the defendant’s testimony by showing his contradictory statements made to the witness. Section 4187, C. & M. Digest; McCoy v. State, 46 Ark. 141; Cook v. State, 109 Ark. 384, 160 S. W. 223; Pinkerton v. State, 126 Ark. 201, 190 S. W. 110. It was within the sonnd discretion of the trial court to allow the introduction of testimony in rebuttal anyway, notwithstanding it had been better if regularly introduced. Section 3173, C. & M. Digest; Walker v. State, 100 Ark. 182, 139 S. W. 1139.

We find no abuse of discretion in the court permitting the introduction of this testimony at the time.

Neither was error committed in allowing the witness Kimberling, after stating in detail the conditions discovered at the place .of the killing, to say that, in his opinion, it was impossible for shot from the same charge to have struck defendant where the tracks began on the ground, and to have cut the bushes at the side of the road sixty feet away, where the tracks left the road, and to have gone into the end-gtate of deceased’'S wagon. This was a question about which a nonexpert witness could testify, and, having stated in detail the point of beginning of the tracks of the deceased and of the bushes 70 feet away, cut by the shot, where deceased turned out of the road, and of the range of the shot in the body of deceased and in the wagon-bed, that it was impossible for the shot fired from the same charge to have struck as indicated. This was a conclusion of fact taken from the appearances in reference to an ordinary transaction which any man of common understanding was capable of comprehending, although it could not have been reproduced or described to the jury precisely as it appeared to the witness, and, if there was no right to insist upon an expression of the opinion of the witness under the circumstances, it was not reversible error to permit it done. See 11 R. C. L 593, 635, 22 C. J. 564; Ford v. State, 52 Ark. 180, 11 S. W. 959. 20 A. S. R. 163.

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


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    Hines v. Hines.
    Opinion delivered March 18, 1929.

      A. L. Smith, for appellant.

      Bice S Dichson, for appellee.
   Kirby, J.

This appeal i-s prosecuted from a judgment against appellants upon a promissory note.

Appellee, wife of appellant, Ercell Hines, at the time, had had him arrested for wife abandonment, -and the prosecution was discharged or dismissed upon payment by appellant, his mother, of $131.20 by check, $100 of which was given to appellee and the remainder used in the payment of the costs of the prosecution, including a fee for the prosecuting attorney, and the execution by appellants of the note sued on for $150, appellant’s mother signing the name of his father thereto, who was not present, being in a hospital in Kansas City at the time. . .

Appellants defended on the ground that the note was void, being executed in consideration of the dismissal of the prosecution; appellant W. F. Hines denying liability also on account of his name being signed thereto without authority.

The testimony tends to show — is, in fact, well-nigh undisputed — that this settlement was made, the money paid and the note given for the purpose of procuring the dismissal of the prosecution, which was done, the justice’s judgment reciting:

“On the 9th day of January, 1926, came the said Florence Hines and Ercell Hines, husband and wife, and announced that they had settled their domestic troubles as to this suit, that he had paid her full consideration, as required, and the case to he dismissed, and defendant is discharged, all costs being paid,- therefore, this case is dismissed and defendant discharged.”

The court instructed the jury that the burden was upon the defendants to show by a preponderance of the evidence that the note in controversy was given for suppression of criminal prosecution, and, if it appeared that it was given in settlement of obligations on the part of defendant for maintenance and support of his wife, and not for the purpose of suppressing the criminal prosecution, it would be valid. It refused to instruct a verdict for defendants, and amended their requested instruction No. 2 by striking out that part of same italicized herein.

“You are instructed that, if you find from a preponderance of the evidence that the note sued on was given for the purpose and in consideration of the dismissal of the prosecution pending in the justice of the peace court, you will find for the defendants, even though you should find that a further consideration of making of said note was for the purpose of providing funds for the living expense of the plaintiff.”

The court erred in amending appellants requested instruction No. 2, and the prejudice resulting therefrom was aggravated and accentuated by the giving of instruction No. 1.

In Winter v. Lewis, 132 Ark. 399, 200 S. W. 981, it is said: “Any contract the consideration of which, in whole or in part, is to conceal a crime or stifle a prosecution therefor, is necessarily repugnant to public policy, and, for that reason, is illegal and void. ’ ’

In Kirkland v. Benjamin, 67 Ark. 480, 55 S. W. 840, the court said:

“A promissory note made to procure the dismissal of a criminal prosecution, although given for the amount of a debt due the payee, is contrary to public policy, and void.” Citing Rogers v. Blythe, 51 Ark. 519, 11 S. W. 822.

If it cannot be said that the undisputed testimony shows that the note sued on was executed for the purpose of procuring the dismissal of a criminal prosecution, which is the opinion of the writer, it all tended to show that that was a material part of the consideration therefor, and, such being the case, would have rendered it illegal and void, and the court erred in not so declaring the law, in accordance with appellant’s requested instruction No. 2.

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


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    Bryan v. State.
    Opinion delivered March 18, 1929.

      W. H. Neal and Dave Partain, for appellant.

      Hal. L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaNey, J.

Appellant was convicted of the crime of receiving three hags of stolen coffee, of the value of $100, knowing the same to have been stolen, and sentenced to one year in the penitentiary.

Several errors are assigned for a reversal of the case. The first is that the court erred in overruling his motion for a continuance on account of the absence from the jurisdiction of the -witness, Marion Smith, who was in the employ of the appellant in his grocery store in Yan Burén at and prior to the time the offense was-charged to have been committed. The indictment was returned on July 5, 1928, hut appellant was not put to trial until November 28, 1928. It was alleged, in the motion for a continuance, that Smith was ill in a hospital in Kansas City, Mo., and had been since about October 1, and the certificate of the physician showed that his condition was such that he would have to remain some months longer. Appellant waited until November 23, five days before the date of trial, at a time when he knew the absent witness was out of the jurisdiction, to have a subpoena issued for him.

We think there is no sufficient showing of diligence to entitle appellant to a continuance. He could have had a subpoena issued and served on the witness long before he left the jurisdiction, and he had ample time, after the witness left the jurisdiction, to have determined whether the witness would be available for the trial, and, if not, to have taken his deposition. It is a well established rule of this court that matters of continuance rest in the sound discretion of the trial court, and that this court will not reverse for the refusal to grant a continuance in the absence of a positive abuse of such discretion. Thompson v. State, 26 Ark. 323; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946, and cases there cited. And no abuse of discretion can be relied on where it appears that the party has not used due diligence to procure the attendance of such witness, or to obtain his testimony. Many cases are cited under § 3129, C. & M. Digest, regarding the necessity of diligence in efforts to secure the attendance of witnesses, and many more might be cited subsequent thereto.

Moreover, an examination of the allegations in the motion as to what the absent witness would testify, as compared with the other evidence in the case, shows that his testimony, if present, would have been merely eumu-lative, and another well-established rule of this court is that it is no abuse of discretion of the trial court to deny a motion for continuance where the testimony of the absent witness is cumulative to the testimony of other witnesses. Sneed v. State, 47 Ark. 180, 1 S. W. 68; Maxey v. State, 66 Ark. 523, 52 S. W. 2; Moon v. State, 164 Ark. 486, 262 S. W. 658; Adams v. State, supra.

No abuse of discretion having been shown on the part of the trial court, we cannot reverse on this assignment.

Appellant next discusses the insufficiency of the testimony, and the lack of corroboration of the witness, Merritt Knight, who admittedly burglarized the Frisco Railroad’s warehouse and stole a quantity of merchandise, including the coffee in question. It is argued that there is no proof to show that appellant knew the coffee was stolen at the time it is claimed the coffee came into his possession. In this connection appellant requested instructions numbered 1, 2 and 3, all to the effect that appellant could not be convicted of the charge of receiving stolen property unless the State had proved, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant 'knew that the said property had been stolen. These instructions were covered by the court in an instruction given on its own motion, as No. 2, to the effect that, before the jury would be justified in convicting the appellant, they must find beyond a reasonable doubt:

“First. That the property was stolen; second, that it belonged to the party alleged in the indictment; third, that this defendant himself received it in his possession; fourth, that, when he received it, he did so with the knowledge that it had been.stolen; fifth, that he had the intention at the time he received it to deprive the true owner of his property, and continued the larceny of it. If you have any doubt from the evidence as to the truth of these several elements, acquit him. If, on the other hand, you believe these things have been proved to your satisfaction beyond a reasonable doubt, you should convict him/’

It is not contended that this is not a correct instruction. It is a correct declaration of the law on this subject, and fully and fairly instructed the jury as to every element of the offense charged, and the appellant cannot complain that the court refused to multiply instructions on the same subject. "We have examined the evidence carefully, and find it amply sufficient to take the case to the jury on appellant’s guilt or innocence.

It is finally insisted that the court erred in improperly submitting the question of corroboration of the accomplice, Merritt Knight. Section 3181, C. & M. Digest, provides: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof * # #

Relative to the sufficiency of the corroborating evidence, in addition to the fact that appellant permitted his delivery boy to take the witness Knight to the place where he had stored the coffee, and haul same to his storehouse on his own truck, and in addition to his own statement that he was suspicious that the coffee was stolen, because Knight was possessed of too much coffee, there are other facts and circumstances in the case tending to corroborate the witness Knight. There were several boxes of underwear stolen at the same time that the coffee was stolen from the railroad warehouse. One witness testified that he had ordered a shipment of this particular brand of underwear from St. Louis, and had been notified, the day before the warehouse was broken into, that the shipment had arrived; that he had the exclusive sale of this particular brand of underwear in Van Burén, and that no one else could buy it. Another -witness for the State testified that, in addition to finding the stolen coffee in appellant’s store, they found some underwear of the same brand that had been stolen from the warehouse. Appellant makes no explanation of how the underwear found came into his possession. Other facts and circumstances were developed tending to corroborate the witness Knight, which we do not. set out, but suffice it to say that the evidence was sufficient to go to the jury on the question of corroboration. Powell v. State, 177 Ark. 938, 9 S. W. (2d) 583.

Appellant asked correct declarations of the law in instructions Nos. 4 and 7, relating to the testimony of an accomplice, which we do not set out, as we are of the opinion that the court correctly instructed the jury, and sufficiently covered the requested instructions in instruction No. 5 given on the court’s own motion, which is as follows:

“Our statute provides that the jury cannot convict any one charged with a felony on the uncorroborated evidence of an accomplice. . By an accomplice is meant any person who had anything to do with the commission of the offense charged, and the evidence of any accomplice uncorroborated will not justify any jury in convicting a defendant, even though they believe it beyond a reasonable doubt.
“You will observe that the corroborating evidence of an accomplice must not only show the facts and circumstances of the case, but also show the defendant’s connection with it. The .jury must not malee the mistake of thinking that the corroborating evidence itself should be sufficient to convince you of his guilt beyond a reasonable doubt. The instruction tells you, first, that the evidence of an accomplice must be corroborated, and second, that all the evidence in the case, taken together, must convince you of his guilt beyond a reasonable doubt, before you can convict him.”

While unly a general objection is made to this instruction, appellant asked correct instructions on the same subject, which amount to specific objections to the instruction given. As we have already stated, an analysis of the court’s instruction, as above set out, shows that it is in conformity with the statute above quoted. We do not think it is inherently wrong. The last sentence in the second paragraph is somewhat argumentative, but not sufficiently so to condemn the instruction as a whole. It would perhaps have been better for the court to have instructed the jury substantially in the language of the statute, as asked in appellant’s requested instruction No. 4. Nor do we think the use of the word “case” in the second paragraph was misleading to the jury and subject to the criticism made by appellant. We think the jury necessarily understood that the court.meant the facts and circumstances connected with the offense charged when it used that word.

We find no error, and the judgment is affirmed.


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    Fine v. Lockwood.
    Opinion delivered March 18, 1929.

      Louis Tarlowski, for appellant.

      Jay M. Rowland,'A. T. Davies and Murphy & Wood, for appellee.
   McHaney, J.

Appellant brought this action to enjoin the appellees from using or attempting to use the name of “Palais Royal” as the name of a ladies’ ready-to-wear store which they were preparing to open in that name in the city of Hot Springs. He based his right to an injunction on two grounds: First, that he had duly registered the name “Jack Fine’s Palais Royal” in white letters upon a background of blue, with a royal crown above the words, with the Secretary of State, pursuant to the provisions of § 10295 et seq., C. & M. Digest, as a trade-mark, and had been issued a certificate of registration therefor; and, second, that, by reason of the prior continuous and extensive use of said name over a period of years, same had become valuable to him, had acquired a secondary meaning as applied to his business, and that the use of such name by a competitor would result in unfair competition, and a deception upon the buying public, and that, by virtue of said use by him, he had acquired a property right in that name which entitled him to the protection thereof by the court. He further alleged that he was preparing to open a store in the city of Hot- Springs under that name, and that the operation of twn stores in that city under the same name would cause confusion.

Appellee filed an answer, consisting of -a general denial and cross-complaint, seeking to enjoin appellant from opening or operating a store in Hot Springs under the name of “Jack Fine’s Palais Royal,” or under any name including the term “Palais Royal.”

After hearing the testimony, the court entered a decree dismissing appellant’s complaint for want of equity, and restraining him from using the name of “Palais Royal” alone as the name of his store which he proposed to open in Hot Springs, but permitting him to use the name of “Jack Fine’s Palais Royal.” The court further decreed that the appellee only was entitled to the use of the name “Palais Royal” in said city.

The correctness of this decree is questioned both by an appeal and a cross-appeal. We think the court correctly determined the case both on the appeal and the cross-appeal. The name “Palais Royal” is a name in common use generally throughout the United States, and perhaps in foreign countries, for .ladies’ ready-to-wear stores, and other business establishments. The great preponderance of the evidence shows this to be a fact. It is such a common name, so generally used in 'business establishments, that we are of the opinion that, standing alone, it is not subject to be registered as a trade-mark. But, when taken in connection with appellant’s own name in white letters on a background of blue, with a royal crown emblem, above the words, it might be subject to registration as a trade-mark under our statute. Section 10297, O'. & M. Digest, provides that “the Secretary shall not receive and record any proposed trade-mark which is not and cannot become a lawful trade-mark, or which is merely the name of a'person, firm or corporation, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons, or which is identical with a trade-mark appropriated to the same class of merchandise, ’ ’ etc.

The name “Palais Royal” standing alone, however, is a name in common use, such as “The Leader,” “The Famous,” “The Boston Store,” or other similar names as applied "to business establishments, some of which you will find in most every city or town of any size. We are therefore of the opinion that the name “Palais Royal,” standing alone, would not be subject to registration, and that the name “Palais Royal” is not a name of such similar resemblance to the trade-mark, “Jack Fine’s Palais Royal,” as to constitute an infringement upon his trade-mark. It is true that appellant is doing business under his trade-mark name in the cities of Little Rock, El Dorado, iSmackover, Fort Smith, in the State of Arkansas, and in Monroe, Louisiana. He is also doing business in Pine Bluff, Arkansas, under the name of “Jack Fine’s Ladies’ Ready-to-Wear,” the name “Palais Royal” having been appropriated by another store in Pine Bluff prior to his entrance therein.

We do not think appellant acquired any secondary meaning to his business under the name of “Palais Royal,” but he may have done so under the name of “Jack Fine’s Palais Royal,” and in this the decree of the court protects him.

We do not deem it necessary to enter upon a discussion of the many cases cited in the hriefs of the respective parties, as we do not regard them as applicable to the facts in this ease. The decree is therefore affirmed, both on the appeal and the cross-appeal.