text:
    Bullen v. State.
    Opinion delivered December 4, 1922.
    1. Homicide — verdict of murder in first degree. — Where the jury, in a prosecution for murder in the first degree, were instructed that, upon a verdict of guilty of murder in the first degree without fixing the punishment, the law would impose the punishment of death, but that the jury might reduce the punishment to life imprisonment, a verdict of guilty of murder in the first degree, without fixing the punishment, calls for a death sentence.
    2. Indictment and information — indictment alleging different modes OF killing. — Where murder may have been committed in different mlodes and by different means, the indictment may allege the different modes and means in distinct counts, and the State will not be compelled to elect upon which count it relies.
    3. Criminal law — confessions of guilt. — Confessions of guilt, to be admissible, must be free from the taint of official inducement proceeding either from hope of gain or torture of fear.
    4. Criminal law — admissibility of confessions — hearing.—The approved practice is to withdraw the jury while hearing the evidence upon the question whether confessions of guilt proceeded from official inducement.

      5. Criminal law — harmless error. — In a prosecution for murder, there was no prejudice to defendants because the jury was not withdrawn during testimony concerning the admissibility of so-called confessions where neither of the witnesses testifying was indicted, and no inducements had been held out to them; and where one of them, though arrested as an accomplice, testified because his relatives told him to do so, and the other was threatened only by defendants.
    6. Criminal law — necessity of motion for new trial. — An exception to the admission of testimony, not brought forward in the motion for new trial, will not be considered on appeal.
    7. Homicide — harmless error. — Defendants, prosecuted for murder, were not prejudiced by testimony of deceased’s wife that she and her husband were friendly, where she was not present at the crime nor .involved in it.
    8. Criminal law — testimony of confession. — Testimony of a witness as to a confession by one of the defendants in the presence of his co-defendants was admissible.
    9. Witnesses — examination—leading questions.- — It is within the court’s sound discretion t.o permit leading questions o-n direct examination.
    10. Criminal law — testimony of conspirator. — -The rule that when the object of a conspiracy has -been accomplished, the subsequent acts and declarations of one conspirator are inadmissible to show guilt of the others, does not exclude the testimony of a conspirator as to matters which he saw and heard.
    11. Witnesses — impeachment on cross-examination. — Defendants taking the stand in their own behalf may, for the purpose of testing their credibility, he cross-examined as to other crimes committed by them.
    12. Criminal law — instruction—repetition.—Where the court fairly submitted the question of reasonable doubt in a prosecution for murder, it was not necessary to charge that “the jury must have an abiding conviction to a moral certainty of the guilt of accused to justify a conviction.”
    13. Criminal law — instructions.—Where the court fully instructed the jury on the questions of reasonable doubt and presumption of innocence, there was no error in refusing to instruct that “no juror should do violence to his own conscience; rather than this he should stand on his own convictions, even though such stand resulted in a mistrial.”
    14. Homicide — sufficiency of evidence. — Evidence held to identify a -body as that of deceased and to sustain a' conviction of murder in the first degree.

      Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      William Beauregard Stuckey, for appellants.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

. F. G. Bullen, Duncan Richardson and Ben Richardson were separately indicted for the crime of murder in the first degree, charged to have been committed by killing Ira H. Culp in May, 1922, in Ashley County, Ark.

At the request of the defendants, the cases were consolidated, and the defendants were jointly tried before a jury. The jury returned separate verdicts, finding each defendant guilty of murder in the first degree, as charged in the indictment.

The court had told the jury that, under such a form of verdict, the law fixed the penalty at death by electrocution. The court also instructed the jury that, under the statute, it might find each defendant or all of them guilty of murder in the first degree, and fix the punishment at imprisonment for life in the State Penitentiary.

From the judgment and a sentence of death pronounced by the court the defendants have duly prosecuted an appeal to this court.

A verdict in this form was approved by the court in Kelley v. State, 133 Ark. 261. Besides this, under the instructions given by the court, there can be no- doubt as to the punishment intended by the' jury. The court expressly told it that the law would impose the penalty of death upon the verdict in the form returned by the jury, and that, if the jury intended to reduce the punishment, it might do so, under the statute, by returning a verdict fixing the punishment at imprisonment for life in the State Penitentiary.

Counsel for the defendants assign as error the overruling of the motion of the defendants to compel the State to elect upon which count or paragraph of the indictment it intended to rely for the conviction of the defendants.

In the first part of the indictment it is charged that the defendants killed the deceased by shooting him, and in the second part that they killed him by striking him with an ax. This court has held that, if. the offense may have been committed in different modes and by different means, the indictment may allege the modes and means in distinct counts. Howard v. State, 34 Ark. 434, and Franklin v. State, 153 Ark. 536.

The next assignment of error is that the court erred in refusing to grant the request of the defendants to hear testimony in the absence of the jury on the question of whether or not Filmore Gaul and Bill Bowden were induced to give their testimony by bribes or threats.

The well-established rule is that confessions of guilt, to be admissible, must be free from the taint of official inducement proceeding either from the hope of gain or the torture of fear. The approved practice is to withdraw the jury whiie the evidence on this point is being heard. The reason is that, if the court should not admit the evidence, the defendant might not be prejudiced by the hearing. In the case at bar the confessions were admitted in evidence, and the defendants did not show that the testimony of the witnesses in question was given by any inducement of gain or fear. On the other hand, the deputy sheriff who had the witnesses in charge testified that no inducements were held out to them, either of hope or fear; and the witnesses themselves testified to that effect. Bowden was not charged with being implicated with the crime, and was only held by the officers to be used as a witness. Filmore Gaul was arrested as an accomplice, but gave his testimony as the result of being told by some of his relatives to tell the truth. It is true, Gaul made other statements, but he says this was done under threats made by the defendants. Therefore, no prejudice could have resulted to them from the action of the court. Greenwood v. State, 107 Ark. 468, and Dewein v. State, 114 Ark. 472. Moreover, Gaul and Bowden were not defendants, and their testimony was not'a confession by them; but, on the other hand, it was the testimony of witnesses of matters and things they saw and heard and about which they had personal knowledge. Hence any promises or threats made to induce them to testify -would only go to their credibility as witnesses. The witnesses claimed they were- telling the truth- at the trial.

The next assignment of error is that the court erred in permitting Mrs. Ira II. Culp to testify, on direct examination, that the relations between her and her husband were friendly. We do not think that this assignment of error is well taken, because it is not made a ground for a motion for a new trial by the defendants. An exception to the admission of testimony which is not brought forward in the motion for a new trial will not be considered on appeal. Ince v. State, 77 Ark. 418; Gooch v. State, 150 Ark. 268; and Freeman v. State, 150 Ark. 387. Besides this, there was nothing unfavorable to the defendants in allowing the wife to make the statement that she had been on friendly terms with her deceased husband. She was not present when the crime was committed and was not in any way involved ill it. Therefore there was no prejudice in the introduction of the testimony. Shinn v. State, 150 Ark. 215.

The next assignment of error is that the court erred in permitting Pilmore Gaul to testify that P. G. Bullen told him about taking' an ax and cutting off the arms and legs of the deceased in the house, after he had been shot by Ben Richardson.

Pilmore Gaul was a boy sixteen years of age, and, according to his testimony, accompanied the defendants to the scene of the. killing on horseback, but remained on his horse and took no part in the killing. The defendants first called Ira IT. Culp out on the porch, and he came out dressed in his night-clothes. The defendant, Ben Richardson, then shot at Culp and missed him. Culp shot back at ■ Richardson twice and missed him. Ben Richardson then shot at Culp again, and Gaul saw Culp fall on the porch. The three defendants then went into the house. Duncan Richardson got a double-bitted ax in front of the woodpile and carried it into the house with him. Ben Richardson and F. G. Bullen got Culp by his arms and dragged him back into the house. Dunk Richardson followed them into the house. This much the witness saw. He then testified that the defendants cut off the arms and legs of Culp, and when asked why he knew this, he stated that F. G. Bullen told him so. He also testified that Ben and Dunk Richardson were present at the time. The witness also heard the sound of an ax cutting while they were in the. house.

There was no error in the admission of the testimony. It was not testimony of the declarations 'of a co-conspirator after a crime had been committed and the conspiracy ended, but it was testimony in the nature of a confession made by F. G. Bullen to the witness in the presence of his codefendants. Therefore this assignment. of error is not well taken.

The next assignment of error is that the circuit court erred in refusing to exclude the whole testimony of Filmore Gaul, on the ground that his direct examination was extremely leading. In the first place, it may be said that his examination was not leading, and, in the next place, it is always within the sound discretion of the trial court to permit the witness to be asked leading questions, and it cannot be said that there was an abuse of discretion in this respect in the examination of Filmore Gaul.

The next assignment of error is that the circuit court erred in refusing to .strike out the testimony of Filmore Gaul on the ground that he was a coconspirator, and that his testimony was not admissible to connect any others with commission of the crime. In support of their contention, the defendants cite cases to the effect that, when the object of the conspiracy has been accomplished, the subsequent acts and déclarations of one of the conspirators are not admissible in evidence for the purpose of showing the guilt, of the others. This well-known rule of law has no application to the testimony of Filmore Gaul. According to his own testimony, Filmore Gaul went wit'll the defendant to the scene of the killing, hut did not participate in it. Whether he did or did not participate in the killing has no bearing on the assignment of error now under consideration. The witness testified to matters which he saw and heard. Testimony of matters coming under the personal observation or knowledge of a witness are not acts or declarations of a co-conspirator. They are admissible as a narrative of tilings heard -and seen by the witness, and which come within his own personal knowledge.

The next assignment of error is that the court erred in permitting the prosecuting attorney to cross-examine the defendants as to whether or not they had been guilty of other murders in that vicinity. The defendants took the stand in their own behalf, and, for the purpose of testing their credibility as witnesses, they might be cross-examined as to other crimes committed by them. Shinn v. State, 150 Ark. 215.

The next assignment of error is that the court erred in refusing to give instruction No. 5-B, which is as follows :

“I charge you further that the jury must have an abiding conviction to a moral certainty of the guilt of the accused to justify a conviction.”

The court fully and fairly submitted to the jury the question of reasonable doubt, and it was not required to multiply instructions on the same point.

The next assignment of error is that the-court erred in refusing to give instruction No. 5-0. This instruction is as follows: “I charge you further that, in your effort to harmonize your views for the purpose of reaching a verdict, no juror should do violence to his own conscience ; rather than this, he should stand on his own convictions, even though such stand resulted in a mistrial.” We do not think there was any error in refusing to give this instruction. The court gave full and fair instructions on the question of reasonable doubt and on the presumption of innocence of the accused. We do not deem it necessary to prolong this opinion by any further dis-mission of the instructions asked by the defendants. They were either argumentative in form, or fully covered by the instructions given by the court. The defense of the defendants was that they-were at home when the crime was committed. The court fully instructed the jury on the question of alibi and the credibility of the witnesses.

The court also submitted to the jury the question of whether or not Filmore Gaul was an accomplice of the defendants, and also told the jury that, if it found him to be an accomplice, it could not convict on his uncorroborated testimony, and that the corroboration would not be sufficient if it merely showed that Culp was killed and the circumstances thereof.

Finally, it is insisted that the evidence is not legally sufficient to support the verdict. Filmore Gaul, the principal witness for the State, was about sixteen years old when the crime was committed. According to his testimony, Ira EL Culp was killed by the defendants at his own home in Ashley County, Ark., on Thursday night, May 11, 1922. Filmore Gaul was living with his grandfather, Randall Bullen, and his wife, at the time the crime was committed. Their dwelling house had three rooms. It had two front rooms, and a kitchen behind them running the full length of the front rooms. Gaul went to bed that night at nine o’clock. F. G. Bullen, sometimes called Coley, and a Mrs. French were also living with Randall Bullen at the time the offense was committed. After Filmore Gaul had gone to bed on the night of the killing he was awakened, by hearing Ben Richardson calling Coley. F. G. Bullen heard Ben Richardson calling him, and went out of the house and talked to him. In about fifteen minutes Bullen came back into the house and told Gaul to get up and go and stay all night with Ben Richardson, so that they could go hog-hunting the next morning. Bullen and Gaul then saddled their horses and rode off with Ben Richardson down to Nathan Morris’ at La-Ark, and found there Dunk Richardson sitting on his black mare. Ben Richardson was riding a gray horse, Bullen a bay mare, and Gaul a sorrel horse with a blaze face. Gaul did not carry a gun; Bullen carried a 38 special with a six-inch barrel; Ben Richardson a 38-55 rifle, and Dunk a ten-gauge shotgun. They rode up to the gate at Culp’s house, and Ben and Dunk Richardson and F. G. Bullen got down and hitched their horses. There was a full moon. Gaul remained on his horse. After hitching their horses, Ben and Dunk Richardson swapped guns. Dunk took the rifle and Ben the shotgun. They told Gaul they were going to kill old man Culp. Gaul said, “Don’t kill him.” They said they were going to kill the damned old Yankee, and that if Gaul told it they would kill him. Dunk Richardson climbed the fence and got behind some rolls of fence wire. Ben Richardson stopped beside the gate. Bullen got behind the tank right at the corner of.the house. Ben then called Culp. Culp came out on the gallery in his night-clothes. Ben Richardson shot at Culp and missed him. Culp shot back at Ben twice. Ben then shot again at Culp and killed him. Gaul saw Culp fall on the porch, and he did not struggle after falling. Dunk then went out in front of the woodpile and got a doublebitted ax, which he carried in his hand into the house. Ben and Bullen got Culp by his arms and dragged him back into the house. Dunk followed them in. They carried Culp into a room next to the back porch, and Gaul heard the sound of an ax cutting. The defendants then set fire to the house, and came out. F. G. Bullen told Gaul, in the presence of Ben mid Bunk Richardson, that (hey had cut off Culp’s arms and legs. When they came out of the house, Ben Richardson looked at his watch, and it was 2 o ’clock in the morning. They again told Gaul that if he ever told about the crime they would kill him. Dunk said that they had killed Culp because he had been stealing their hogs. The parties then separated and went to their respective homes.

. Will Bowden, a boy seventeen years of age, was also a witness for the State. According to his testimony, he lived with B. B. Richardson, the father of Ben Richardson and Dunk Richardson, Ben Richardson lived with Ms father, and slept in the same room with Will Bowden. On the night that Culp was killed, Dunk Richardson came to the home of B. B. Richardson about dark, riding Ms black mare and carrying his ten-gauge shotgun. Dunk and Ben Richardson rode away from the house that night. Bon carried a 38-55 high-powered rifle and Dunk his ten-gauge shotgun. The witness did not know what time of night they got back. Ben was in bed when lie waked up the next morning. At the barn the next morning Ben, Dunk and old man Richardson were talking about old man Culp. Dunk told old man Richardson that they had got shut of the old man last night. The latter asked, “Whait old man?” and Dunk replied “That damned old Yankee”. Then Mr. Richardson asked “How did you get rid of him?” Dunk said, “They killed him, chopped him up and burned the old son-of-a-bitch up.” This was Friday morning, and the witness subsequently learned that Culp liad been killed the night before.

According to the testimony of Mrs. Randall Bullen, Filmore Caul was her grandson, and F. C. Bullen was her nephew. They lived with her and her husband at the time Culp was killed. On the' night of the killing some one, who she thought was Ben Richardson, came to her house and called Coley, meaning F. C. Bullen. Coley got up and went outside, and she heard him talking to some one. Coley then came back into the house, and later he and Filmore Caul went out. She heard their horses’ hoofs as they all left the place. They came in the next morning when she was cooking breakfast. She did not know where they had been all night.

According to the testimony of Mrs. Ora French, she was living with Mr. and Mrs. Randall Bullen at the time Culp was killed. She went to bed about 7:30 o’clock that evening, and Filmore Caul and Coley Bullen were at home at that time. They were there the next morning when she awoke. On Friday a week later she washed F. C. Bullen’s overalls, and they had blood on them.

Another witness testified that on the night of the killing he saw four men on horseback riding down the road towards the deceased’s house, but did not recognize any of them.

A tenant on the farm of Ira H. Culp went to Culp’s home early the next morning’ after the killing’. He found that Culp’s house had been burned down, and found Culp’s body in the fire, burning.

D. A. Whitaker went to the Culp place at six-thirty o ’clock on the morning of May 12, 1922. The house had burned down. The witness saw the remains of a body lying right beside a bed. It was a human body, and, with other persons, they took it out of the fire. They found a bunch of keys, a pair of pliers, and a piece of dental' work in the fire.

The wife of the deceased testified that she lived in Wilmot, Ark., and saw her husband last on Thursday morning, May 11, 1922. She identified the bunch of keys, the pair of pliers and the piece of dental work taken out of the fire as the property of her husband.

Dr. Harrington, a practicing physician at Wilmot, Ark., went to the home of the deceased early in the morning oh May 12, 1922. The house had burned down, and close to where there had been a bed, a body was found lying on its right side. On first examination the witness could not tell that it was a human body, because it had no legs. He cut the heart open and examined the valves. He then examined the left lung and the brain and pieces of skull. From his examination of the heart, lung, skull and other parts, the doctor said that it was a human body.

On cross-examination the witness said that he was not right sure that the skeleton was that of a human being. He further stated that he could not say from the body that it was a human body, but that from the brain he could say that it was a human bodju He also testified that the skin left on the body had hair on it like that of a human being.

The defendants were witnesses for themselves, and denied the killing. They claim that they were at home on the night of the killing, and did not leave there at any time during the night. Their testimony was corroborated by that of all the other members of the family except Filmore Gaul, Bill Bowden, and Mrs. Randall Bullen.

We do not deem it necessary to set out in detail the evidence adduced in their behalf, for, in testing the legal sufficiency of the evidence to support the verdict, the evidence for the State alone need be considered. It is perfectly plain, from the evidence of the State, that the killing was the result of deliberation and premeditation. That the killing was deliberately planned as the result of premeditation on the part of the defendants is shown by the fact that they went armed in the night time to the home of the deceased and called him out on his front porch, and then shot him down, with a gun carried with them for that very purpose. They then hacked the arms and legs off of the body and set fire to the house, evidently for the purpose of concealing the crime.

Filmore Gaul was the principal witness for the State, and, even if the jury believed that he was an accomplice of the defendants, it might have found that his testimony was amply corroborated by the other evidence. Will Bowden testified that, on the morning after the killing, Dunk and Ben Richardson were talking about the killing to their father at his barn. They told him that they had killed Culp and then chopped him up and burned him. This statement was in the nature of a confession by them that they had committed the crime. The finding of the charred body in the burned house tended to corroborate the confession. A bunch of keys, a pair of pliers and some dental work, which were identified as the property of the deceased, were found hear the burned body. Mrs. Randall Bullen testified that some one, who' she thought was Ben Richardson, waked up her nephew, F. G. Bullen, and, after talking with him for some time outside the house, F. G. Bullen came back into the house and got Filmore Gaul, and all of the parties left the place together. They did not return until she was getting breakfast early the next morning. All these facts and-circumstances were sufficient to corroborate the test-imony of Filmore Gaul, and warranted the jury in return ing a verdict of murder in the first degree against the defendants.

But it is insisted that the body found in the burned hous.e was not identified as that of a human being. We cannot agree with counsel in this contention. It is true that the physician who examined the body testified that, because it was burned so badly and because it had no legs, he was not certain that it was a human body. At another place in his testimony, however, we find that he stated that the skin and hairs remaining on the body resembled that of a human being, and that from the examination of the brain he felt certain that it was a human body.

There is no reversible error in the record, and the judgment in each case must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Suchan v. State.
    Opinion delivered December 4, 1922.
    1. Criminal law — instruction—general objection. — Where, on an indictment of one as principal for manufacturing intoxicating liquor, the court by its instruction distinguished between the liability of a principal and of an accessory, an instruction that, to warrant conviction, the jury must find that he not only had knowledge that whiskey was being made, “but that he either aided, abetted, assisted, or was present and encouraged some one else to violate the law in the manufacture of this liquor,” was not open to a general objection as authorizing a conviction of defendant as accessory after the fact when he was indicted as principal,
    2. Criminal law — instruction.—An instruction that the jury must find “either from the evidence or from the circumstances and ¡surroundings connected therewith that appellant was guilty” was not prejudicial where the concluding paragraph of the instruction made it clear that the court was not authorizing the jury to consider any circumstances which had not been offered in evidence.
    3. Criminal law — failure to define “conceal.” — Where, in a prosecution for manufacturing intoxicating liquor, the court instructed that “if, with knowledge of the crime, they conceal it from the officers they would be accessories after the fact,” there was no error in not defining the word “conceal,” in the absence of a request therefor.
    4. Intoxicating liquors — evidence.—Evidence held to sustain conviction of manufacturing intoxicating liquor.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Gregory é Holtsendorff, for appellant.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Two indictments were returned against appellant, and, with his consent, he was tried on both of them at the same time. One indictment charged him with the crime of manufacturing intoxicating liquor, and the other indictment charged him with having in his possession a still which was used and was intended to be used in manufacturing distilled intoxicating liquor. He was acquitted on the charge of possessing a still, but was convicted on the charge of manufacturing liquor. Appellant’s father was indicted jointly with him, and entered a plea of guilty, and was sentenced to a term in the penitentiary by the court.

The testimony on the part of the State was to the following effect: Hopper, a Federal prohibition agent, accompanied by two deputies, who testified at the trial, searched appellant’s home under a search warrant, and found a distilling outfit in full operation in an outhouse in the reai%of the yard. They found five quarts of whiskey and a stillworm, and some mash that appeared to have been used, and above five gallons of distilled liquor. The still was of twelve to fifteen-gallon capacity, and was about two-thirds full of mash, and was setting on a little three-burner oil stove, and a quart fruit jar was under the worm, catching the liquor from the still.

Appellant was asked by the officers who owned and operated the still, and he first said it was his mother’s, but he later said it belonged to him and his father, and that they operated it and manufactured and sold the liquor. At the time of the raid appellant was working in a house across the road about forty yards from where the still was located. The officers were informed by appellant’s mother that appellant had the key to the house in which the still was located; but he denied having it, and the officers opened the door with a chisel.

Appellant testified that he was twenty-eight years old, and that he lived with his father, who owned and •operated the still, and that he had nothing to do with its operation. He denied, at his trial, that he had the key to the house, or that he had been asked to produce it, and testified further that he was not present when the officers broke into the house, and he did not know how they entered it.

The court instructed the jury, in a general charge, to which there was no objection, and then gave the following instruction: ‘ ‘ Every person who was present aiding, abetting, advising or encouraging or assisting in or assenting to another committing a felony is indictable as a principal; if they are not present but have encouraged, advised others to commit the crime, they would be an accessory before the fact. If, with the knowledge of the crime that has been committed, they conceal it from the officers, they would be an accessory after the fact. The indictment in this case charges this man with being a principal in the manufacture of that whiskey. In order for you to be warranted in convicting him, you must find, either from the evidence or from the circumstances and surroundings connected therewith, that he not only had knowledge of the fact that whiskey was being made there, but that he either aided, assisted, or was present and encouraged some one else to violate the law in the manufacture of this liquor.

“The State relies here in this case upon a conviction from the circumstances as disclosed by the testimony and admissions against interest upon the part. of the accused at the time of the arrest. The defendant denies the admissions that the State’s witnesses testify he made. That is a question of fact for you to decide and determine as to the truthfulness or falsity of the conflicting and irreconcilable statements of the witnesses for the State and the defendant in his own behalf.”

Appellant objected to the instruction, but made no specific objection to it.

It is insisted that the instruction was prejudicial because it defined an accessory after the fact, when appellant was not charged as such, and it is urged that the jury may have convicted him because he did not inform on his father. The instruction is not happily phrased, and is somewhat abstract, but the court was apparently attempting to apply the law to the issues joined. No one was actually present at the still when it was found, and appellant denied that he had anything to do with it. The instruction first declared who were principals, and then who were accessories after the fact, for the purpose, evidently, of distinguishing between the two offenses, and, after doing so, the instruction told the jury that the indictment charged appellant with being a principal, and that “in order for you to be warranted in convicting him, you must find, either from the evidence or from the circumstances and surroundings connected therewith, that he not only had knowledge of the fact that whiskey was being made there, but that he either aided, abetted, assisted or was present and encouraged some one else to violate the law in the manufacture of this liquor.”

We do not understand the court was submitting the question whether appellant Avas an acccessory before the fact. Under the indictment his presence was necessary, but Ave think this was the thought the court was attempting to convey to the jury; and, if appellant was present aiding and abetting or assisting in the • manufacture of the liquor, or was present and encouraged some one else to do so, he Avas guilty, under the allegations of the indictment. As Ave have said, the instruction is not happily phrased, but its defects are such that a specific objection should have been made to it. Hunter v. State, 104 Ark, 247.

The instruction is unhappily phrased in telling the jury that they must find, “either from the evidence or from the circumstances and surroundings connected therewith,” that 'appellant was guilty. Of course, the circumstances and surroundings were a part of the evidence; but the thought evidently in the court’s mind was that there was not only testimony that appellant had admitted his guilt, but there were circumstances tending to prove guilt, and that both could be considered. The concluding paragraph of the instruction makes it clear chat the court was not authorizing the jury to consider any “circumstances and surroundings connected therewith” which had not been offered in evidence.

It is objected that the court did not define the word “conceal” as employed in the instruction. But no request was made that this be done.

Objection is also made to the part of the instruction which told the jury that the State also relied on the “admissions against interest upon the part of the accused at the time of the arrest,” the ground of the objection being that appellant did not deny the admissions that the State’s witnesses testified he made, the argument being that the statement by the court that there was a conflict in the testimony between the State’s witnesses and appellant would tend to cause the jury to discredit appellant’s testimony as a witness. There can be nothing in this objection, for the'reason that the officers testified that appellant admitted to them that he ■ and his father owned the still and were making the whiskey, and the purport of appellant’s entire testimony was to deny the charge, otherwise appellant would be without a defense.

It is also insisted that the verdict was without substantial testimony to support it. But it appears, from the statement of facts set out above, that the testimony is legally sufficient to sustain the verdict.

No error appearing, the judgment is affirmed.


text:
    Henry v. Knights and Daughters of Tabor.
    Opinions delivered December 4, 1922.
    1. Insurance — murder of insured by beneficiary. — Where the beneficiary of a benefit certificate of insurance wilfully murdered the insured, he cannot collect the insurance.
    2. Pleading — sufficiency on demurrer. — In determining the sufficiency of a complaint on demurrer, not only its express allegations but all inferences fairly deducible therefrom must be considered.
    3. Pleading — sufficiency on demurrer. — Where a complaint on a fraternal insurance policy -alleged that plaintiffs were the “sole heirs at law” of the insured, on demurrer it is presumed that one’s sole heirs 'at law had an insurable interest in the insured’s life, as defined by Crawford & Moses’ Dig., § 6074.
    4. Insurance — murder of insured by beneficiary. — Where the beneficiary of an insurance policy wilfully murdered the insured, the -policy is payable to the insured’s estate.
    5. Descent and distribution — right of heirs to sue on policy.— Where a policy of insurance is payable to the estate of the insured, the heirs at law may bring an action on the policy, on showing that there were no debts.
    6. Questions raised by demurrer. — Whil-e -a demurrer does not raise the question of defect of parties, it does raise the question of the right to sue, that is, that the proper parties have not sued.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    affirmed.

      J. B. Broker, for appellant.
    1. A beneficiary wlio wilfully takes the life of the insured cannot recover under the policy. 98 Ark. 132. The death of the insured in such case, classes as an excepted risk, as a matter of public policy. 4 Cooley’s Briefs on Insurance, 3153, and cases cited.
    2. The liability of the insurer is not terminated by the death of the insured at the hands of the beneficiary, but, in that case, the heirs at -law may recover. 4 Cooley’s Briefs, § 3154; 209 111. 277, 70 N. E. 567; 7 Cooley’s Supplement, 3154, and ea-sesy Vance on Insurance, 392; 7 Am. Law Rep. Ann. 828 -and cases; 112 Iowa, 41 ; 135 Minn. 35; 29 Cyc. 156.

      Scipio A. Jones, for appellee.
    1. While conceding that the wilful slaying of the insured by the beneficiary will forfeit the right's of the latter under the policy, it is denied, that the heirs at law are entitled to recover in this case. There is in this State a substantial difference between ordinary life insurance companies and fraternal benefit societies. C. & M. Dig., § 6071. In this action, it is essential to recovery that the complaint allege a breach of the contract. There is no contract, and can be no breach. Neither is there any allegation that the plaintiffs are within the class who may take as beneficiaries, as defined in the statute, C. & M. Dig., § 6074. Therefore the complaint states no cause of action.
    2. The plaintiffs, cannot recover. A member has no property in the funds' created by his contributions, but only a mere right to designate the ultimate beneficiary. If the member makes no designation, no one can do it for him, yet such designation is a condition precedent to the obligation of the society to pay. Here the funds involved revert to the society. 87 Conn. 644; Ann. Cas. 1916-B, 181; 67 Neb. 233; 2 Am. & Eng. Ann Cas. 660; 94 N. Y. 580. This case is ruled by the opinion in 135 Ark. 65. See also 140 Ark. 318; 142 Ark. 142; 1 Bacon on Benefit Societies, 4th ed., 310; 62 N. E. 555; 10 Fed. 227; 44 Md. 429; 29 Cyc. 157-159; 202 Mass. 85.
   Smith, J.

This appeal is from a judgment of the court below, sustaining a demurrer to the complaint on the ground that it did not state a cause of action.

The allegations of the complaint are that the plaintiffs are the sole heirs at law of one Annie Porter, whose life was insured in the defendant insurance company for the sum of $300, payable upon her death to her husband, Robert Porter, and that the beneficiary had wilfully murdered the insured, thereby forfeiting his. right to the proceeds of the insurance certificate, and defendant had, after demand so to do, failed to pay plaintiffs, as the insured’s next of kin, the amount of said policy or certificate.

The defendant insurance company admits that, under the allegations of the complaint, the beneficiary named is not entitled to collect the insurance. This court so held in the case of Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132. But defendant contends that the heirs at law of the insured cannot recover because the certificate sued on was issued by a fraternal insurance company, and not by an old-line insurance company, and as authority for this insistence defendant cites § 6071, C. & M: Digest, which reads as follows: “Except as herein provided, such societies (fraternal benefit societies) shall be governed by this act, and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein.”

It is also insisted that no recovery can be had because plaintiffs do not show that they are within any of the clauses of permissible beneficiaries of fraternal benefit societies defined in § 6074, C. & M. Digest; and it is finally insisted by the defendant that a member of the order has no right in the funds created by his payment of dues except to designate a beneficiary to whom the certificate shall be payable on the member’s death, and that this designation must be made in the manner provided by the by-laws of the order, and only such beneficiaries can take as are designated properly pursuant to those by-laws, and that the plaintiffs are not so designated.

It is apparent that the complaint is defective, but no motion to make it more specific was filed, and, as we are considering its sufficiency on demurrer, we must consider not only its express allegations, but all inferences fairly deducible therefrom.

The complaint does allege that the plaintiffs are the “sole heirs at law” of the insured, and, while this allegation should have been made specific, had a motion to that effect been filed, we would have to presume, by fair intendment, that one’s “sole heirs at law” had an insurable interest in the life of the insured, even as limited by § 6074, C. & M. Digest.

The parties agree that, under the allegations of the complaint, the beneficiary named cannot collect the insurance. What becomes of it? This question was considered by the Court of Appeals of West Virginia in the case of Johnson v. Metropolitan Life Ins. Co., 100 S. E. 865, and that court held that the rule of public policy which prevents the beneficiary in a' policy of insurance who has murdered the insured from collecting the insurance will not be extended further than is necessary to prevent the felon from reaping benefit from his crime, and that the proceeds of such a policy are payable to the estate of the insured. This is a well considered case, and is extensively annotated in 7 Am. Law Reports, page 823. The annotator’s note to the case reads as follows: “Subject to the limitations stated in the following subdivisions, it is generally held in cases involving both ordinary policies and benefit certificates that, although the beneficiary’s right to recover under the insurance contract is forfeited by reason of the felonious killing of the insured by the beneficiary, the insurer is not thereby relieved of liability, but is liable to pay the proceeds of the contract to the insured’s estate.”

As sustaining the. action of the court below, we are cited to the case of Baker v. Mosaic Templars of America, 135 Ark. 65, and some later cases following it, in which we held that the provision in the by-laws of a fraternal insurance order, that the death benefit would not be paid unless the insured had designated a beneficiary in the manner required by-the by-laws, was valid and binding. Those cases, however, do not apply here, for the reason that there was a proper designation of a beneficiary, and this beneficiary could collect the benefit but for the fact. that, public policy forbids. In the circumstances stated, tlie insurer is not absolved from payment, but is required to pay to tlie estate of the insured.

As we have said, the policy of insurance was payable to the estate of the insured, but the suit was not brought on behalf of the estate. It was brought by the sole heirs at law for their own benefit. There are conditions under which a suit may be maintained by the sole heirs at law upon a policy of insurance payable to one’s estate. See Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 336. But the necessary showing is not made here, for there is no allegation that there are no debts, as appeared in the case just cited.

It is true that § 1190, C. & M. Digest, provides that a demurrer shall distinctly specify the grounds of objection to a complaint, and that, unless this is done, the demurrer shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action; and we have such a demurrer here. We have held, however, that, while a demurrer does not raise the question of defect of parties, it does raise the question of the right to sue, that is, that proper parties have not sued. Such was the holding of this court in the cases of Creamery Package Mfg. Co. v. Wilhite, 149 Ark. 576, and Deloney v. Dillard, 152 Ark. 159.

So, here, the complaint'does not contain the allegations necessary to give the heirs, as such, the right to sue, and the demurrer was therefore properly sustained.


text:
    State v. Boney.
    Opinion delivered December 4, 1922.
    1. Statutes — construction as entirety. — An act must be read in its entirety to extract its meaning.

      % Statutes — construction with other acts. — In construing a statute, other acts dealing with the same subject must be read in pari materia.

      3. Taxation — dower.—Under Acts 1917, p. 455, § 1, amending Acts 1913, p. 824, § 1, taxing gifts, legacies, inheritances, etc., by including widows’ dower, the effect of the amendment was to make the widow’s dower .taxable, though not specifically designated in section 2 of the act of 1917, dealing with taxable transfers.
    4. Taxation — power of state to tax dower. — The right to impose a tax on a widow’s dower need not be granted by the Constitution, as the State has that right unless the Constitution has forbidden its exercise.
    5. Taxation — dower.—The right of a widow to take dower being a privilege which the Legislature may give or withhold, it may impose a tax upon the exercise of the right against the person to whom it is given; such tax not being a property tax within the constitutional requirement of equality and uniformity.
    6. Taxation — privilege tax. — 'The Legislature is not prohibited from taxing the privilege of taking dower, by Const., art. 16, § 5, authorizing the taxation of “hawkers, peddlers, ferries, exhibitions and privileges;” the term “privileges” not being limited ■to the class mentioned or to such as were recognized at common law.
    Appeal from Lafayette Circuit Court; George B. Haynie, Judge;
    reversed.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants; W. V. Tompkins, Special Counsel; David A. Gates, Inheritance Tax Attorney, for appellant.
    1. After the decision of this court in McDaniel v. Byrkett, 120 Ark. 295, the Legislature, by the amendatory act of 1917, specifically taxed dower, and it had the constitutional right -to do so. The right of dower is not a property right, but a privilege. 49 U. S. (8 How.) 490-493; 178 U. S. 41-45; 9 R. C. L. 563; 90 U. S. 137-148; 112 N. W. 1020; 102 Minn. 253; 35 Id. 436; 40 Id. 164. It is a creature of law and not of contract, subject, while it remains inchoate, to such modifications and qualifications as the Legislature may deem proper to impose. 6 Ohio St. 547; 8 N. T. 110. See also 11 Ark. 212; 17 Penn. St. 449; 55 Ark. 225-233; 62 Id. 11; 2 Bishop, Married Women, § 42; 19 L. R. A. 256-262; Cooley’s.Const. Lim., 6th ed., 441. It is not a vested right, but “a mere intangible, inchoate, contingent expecfancy.” 53 Ark. 279; 56 Id. 139. See also 53 Ark. 255; 60 Id. 169; 14 Id. 465; 21 Id. 62. It is as much a creature of statute as are inheritances.
    The estates of dower and curtesy, tenancy by the entirety and joint tenancy are similar in that neither is an estate of inheritance, and neither passes under .the intestate laws of the State. If curtesy, tenancy by the entirety and joint tenancy can be taxed'(and wherever there is a specific statute taxing them, such statutes have been upheld), then dower may also be taxed. Laws of New York, 1911, chap. 73, art. 10, § 243; 1 Washburn on Real Property, 8 ed., 529; Reeves on Real Property, vol. 2, §§ 689-870; Tiedman, Real Property, 2nd ed., § 237; 165 N. Y. Supp. 887; Id. 127; 166 Id. 1079; 169 Id. 206; 170 Id. 232; 221 N. Y. 15. See also 248 111. 147; 15 Cal. 308; 78 Gal. 319; 93 Pac. 1025.
    2. The amendment, approved February 16, 1917, at the first session of the Legislature following the decision of this court in McDaniel v. Byrhett, 120 Ark. 295, amended subdivision 1 of section 1, act of March 24, 1913, the inheritance tax act, which, like the act’of 1909, construed in the McDaniel case, did not include dower, by incorporating therein, in the proper connection, the words “including widow’s dower, or any property in any way granted, given or devised to the widow in lieu of dower, and to the husband’s curtesy, or any gift, grant or bequest of the wife to the husband.”
    The effect of this amendment was to substitute the section, as amended and reenacted, for the old section, and to so change the act as to make it read in the same manner it would have read, and to give the same effect it would have had, if it had been originally enacted as amended. 100 Ark. 175. The words “estate” and “property,” in the original act, §§ 10217-10218, O. & M. Digest, did not include dower and curtesy. By the amendment they were included. See also Black on Interpretation of Laws, ch. 357.

      Henry Moore, Jr., and A. Tj. Burford, for appellees.
    1. The widow’s dower is not subject to an inheritance tax. In determining whether or not the law invoked by the State in this case taxes dower, all' doubt must be resolved in favor of the widow, both on the ground that a taxing statute, — levying a special tax — is being considered, and because the effect of the statute is to diminish dower. 120 Ark. 295, 179 S. W. 491; 30 S. W. (Tenn.) 745; 134 II. S. 583, 46 L. ed. 697; 5 Ark. 82; 42 Sup. Ct. Rep. 346. If this question is in doubt, the title of the act maj^ be examined to determine the legislative intent.
    Inheritance taxes are not laid upon the property of a decedent, but are in the nature of excise taxes, and are a tax upon the privilege of succeeding to an inheritance. 100 Ark. 179, 139 S. W. 1112.
    The transfers that are taxable are set out in § 10218, C. & M. Digest. They are embraced under five classifications, and, unless dower is-included therein, it is not subject to this tax, irrespective of the definition of “property’’ and “estate” contained in § 10217, Id.

    Had the Legislature intended to tax dower, unambiguous language could, and should, have been used; but, being ambiguous and this question in doubt, this doubt must be resolved against the State, and in favor of the taxpayer.
    2. Dower is not a mere privilege, to be placed on the same footing with an inheritance, or to be classified with hawkers and peddlers. It is an incumbrance upon the title of the heirs at law, superior to the claims of the husband’s creditors, a positive and definite institution of the State, dependent not entirely upon maintenance and nurture of the widow and her children, but exists also for reasons of public policy. 11 Ark. 82; 137 S. W. (Tenn.) 924: 19 Corpus Juris, 460, § 10; Bacon, Uses, p. 37; 2 Blackstone, Comm. 129-133; Gilbert, Uses, n. 354 et seq.; -Park, Dower, p. 2; 13 Ark. 761; 4'4 Ark. 134.

      If the present law be held to include dower, then that portion of the statute is unconstitutional and void. Art. XVI, § 5, Constitution 1874.
   Smith, J.

This appeal involves the right of the State to tax a widow’s right to take dower, under the authority of act 96 of the Acts of 1917, page 455. The court below held that there was no such authority, and the State has appealed.

An attempt was made by the State to tax a widow’s dower in the case of McDaniel v. Byrkett, 120 Ark. 295; but, after a review of the authorities and a consideration of the nature and character of dower, we • reached the conclusion that the statutes on the subject then in force did not authorize the imposition of a tax on dower. Our conclusion to that effect was summed up in the construction we gave the statute then in force as, follows: “We conclude therefore that the widow of a deceased person does not take dower as the heir of her husband, or by virtue of the intestate laws, but that this estate is inimical to the claim of the heir and is carved out of the estate of the deceased in spite of, and in derogation to, the rights of the heir under the intestate laws, and the judgment of the court below (denying the right to tax dower) will therefore be affirmed.”

This opinion was delivered October 11, 1915, and at the next session of the General Assembly the law was amended by amending act 197 of the Acts of 1913; page 824, which had itself amended act. 303 of the Acts of 1909 (Acts 1909, p. 904).

The first section of the act of 1913 was one of definitions, and the words “estate,” “property,” “tangible property,” “intangible property,” and “transfer” were defined. After defining the word “transfer” in section 1 of the act, section 2 thereof dealt with the subject of “taxable transfers.”

Section 1 of the act of 1917 reads as follows: “That subdivision one of section 1 of the act 197 of the Acts of 1913, same being the act to establish a tax on gifts, legacies, inheritances, bequests, successions, and transfers of property, be. amended so as to read as follows: (1) The words ‘estate’ and ‘property,’ as used in this act, shall be taken to mean the property or interest therein passing or transferring to any individual or corporate legacies, devisees, heirs, next of kin, grantees, donees or vendees, including widow’s dower or any property in any way granted, given or devised to the widow in lieu of dower, and the husband’s curtesy, or any gifts, grant or bequest by the wife to the husband, and not as property or interest therein of the decedent, donor or vendor, and shall include all property or interest therein, whether situated within or without the State. Provided, five thousand ($5,000) dollars of the market value of the widow’s dower or the husband’s curtesy shall be exempt from taxation.”

The amendment consisted in the correction of certain typographical errors (and others were made in the amendment) and the addition of two phrases. The first phrase reads as follows: “including widow’s dower or any property in any way granted, given or devised to the widow in lieu of dower, and the husband’s curtesy, or any gifts, grant or bequest by the wife to the husband.” The second addition is: “Provided, five thousand ($5,000) dollars of the market value of the widow’s dower or the husband’s curtesy shall be exempt from taxation.”

The act of 1917 does not expressly amend section 2 of the act of 1913, which deals with “taxable transfers,” and it is insisted that this omission renders nugatory the amendment made to section 1 of the act of 1913. We do not think so. It is a settled rule of construction that an act must be read in its entirety to extract its meaning, and that acts dealing with the same subject must be read m pari materia in construing them. The case of State v. Handlin, 100 Ark. 175, discussed the effect of an amendment to the inheritance tax law, the amendment being made by changing a certain section thereof, and the court said (quoting the syllabus): “The effect of an amendment of an act is to so change the act as to make it read in the same manner it would have read and to give it the same effect it would have had if it had been originally enacted as amended.”

When the act under review is thus construed, we think the legislative intent in amending section 1 of the act of 1913 is too plain to be mistaken, the purpose being to make taxable the widow’s dower, or any property granted or devised in lieu of dower, and to make taxable the husband’s curtesy, or any grant or bequest by a wife to her husband. The proviso that five thousand dollars of the market value of the widow’s dower shall be exempt from taxation is itself a direction that the excess over that amount shall be taxed.

The act of 1909 did not attempt to tax dower. It taxed “all property which passed by will or by the intestate laws of the State,” and our holding in the case of McDaniel v. Byrkett, supra, was to the effect that the widow did not take dower as an heir of her husband, or by virtue of the intestate laws of the State; and the amendatory act of 1913 did not include dower. The attention of the Legislature was directed to this fact by the case of McDaniel v. Byrkett, and the Legislature, at the first session thereafter, amended the law in the particulars stated.

Section 1 of this act has a recital which is not to be overlooked in the interpretation of the amended section 1 which follows. This recital is “that subdivision one of section 1 of act 197 of the Acts of 1913, same being an act to establish a tax on gifts, legacies, inheritances, bequests, successions, and transfers of property, be amended so as to read as follows.” After so reciting, the General Assembly proceeded to amend that section by adding widow’s dower, or property granted or devised in lieu thereof, and the husband’s curtesy, with a proviso that five thousand dollars of the market value of dower or curtesy shall be exempt from taxation.

We conclude, therefore, that the legislative purpose to make dower taxable has been sufficiently expressed, although dower is not specifically designated in the section of the act dealing with “taxable transfers.”

It is next insisted that the Legislature has no power to subject dower to a privilege tax, and that, if the act attempts to do so, it is, to that extent, unconstitutional and void.

We do not, of course, have to look to the Constitution for a grant of the right to impose this tax, for the State has this right, unless the Constitution has forbidden its exercise. The insistence of appellee is that § 5 of article 16 of the Constitution has denied the State this right. The relevant portions of that section of the Constitution are as follows: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species, of property of e'qual value; provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper. * * *”

The argument is that dower is not a privilege and cannot be taxed as such; that it is a property right of the wife in the estate of her husband, which becomes vested at marriage, and cannot therefore be taxed as a privilege.

Legislation of this character is becoming general throughout the States of the Union, and many of them have legislation on the subject much older than our own; indeed, much of our law on the subject appears to have been copied from other States, and in the construction of such legislation it appears that the courts have uniformly held that these taxes are not laid upon property, but upon the privilege or right of succession to it, or, as was said by this court in the case of State v. Handlin, supra, “it is in the nature of an excise tax,- and not- subject to the same tests with respect to equality and uniformity as taxes levied upon property.”

An early case on the subject, and one which is cited by many of the later cases, is that of Mager v. Grima, 49 U. S. (8 How.) 490. In that ease an inheritance tax law of the State of Louisiana was upheld, and Chief Justice Taney, for the. court, said that it was nothing more than an exercise of the power inhering in any sovereignty to regulate the manner and terms upon which property, real or personal, within its dominion may be transmitted by last will and testament, and of. prescribing who shall and who shall not be capable of taking it.

In the later case of Knowlton v. Moore, 178 U. S. 41, it was said: “An inheritance tax is not one on property, but one on the succession. The right to take property by devise or descent is a creature of the law, and not a natural right — a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the States may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions; and are not precluded from this power by the provisions of the respective State Constitutions requiring uniformity and equality of taxation-.” Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283.

In the brief of counsel for the State, numerous texts and cases are cited to the effect that dower is not regarded as springing .from contract, although the contract or marriage is a prerequisite to its existence, but is a right, the existence, nature and extent of which is subject to legislative control. The estate of dower appears to be as old as the common law; but so also is the right of an heir to inherit from an ancestor; and the lawmaking power possesses as plenary control over the one as it has over the other. The Legislature has the right to change the law of dower, and has done so more than once, usually by enlarging the common-law right of dower. The Legislature as’certainly has the right to diminish or to abolish. dower, and, as the right to take dower is a privilege which the Legislature may give or may withhold as it pleases, it follows that, in granting the right, the Legislature may impose a tax for governmental purposes upon the exercise of the right or privilege against the person to whom it is given. 9 R. C. L. p. 563, and the annotated cases cited in the foot-note; McNeer, v. McNeer, 19 L. R. A. 256, and cases cited in the aamotator’s note; see also Randall v. Kreiger, 90 U. S. (23 Wall.) 137; Griswold v. McGee, 112 N. W. (Minn.) 1020; Stitt v. Smith, 102 Minn. 253; Weaver v. Gregg, 6 Ohio St. 547; 2 Bishop on the Law of Married Women, vol. 2, § 42; Cooley’s Constitutional Limitations, 7th ed. pp. 512-514; Hatcher v. Buford, 60 Ark. 169; Hewitt v. Cox, 55 Ark. 225; Smith v. Howell, 53 Ark. 279; Littell v. Jones, 56 Ark. 139.

Excellent briefs have been filed by the respective counsel in this case; but we shall attempt no review of the authorities therein cited. It may be said, however, that no case has been called to our attention where the right to impose a privilege tax on the right to take dower was denied in any case where the statute expressly conferred that right.

It is finally insisted by counsel for appellee that the tax in question cannot be sustained under § 5, art. 16, of the Constitution, for the reason that the privileges there authorized to be taxed are those only which were ascertained and recognized at common law, and the case of Washington v. State, 13 Ark. 752, is cited as sustaining that view.

A similar contention was made against the imposition of a tax on gasoline, which was considered in the case of Standard Oil Co. v. Brodie, 153 Ark. 114. After holding that the word “privileges” was not to be construed, under the doctrine of ejusdem' generis, to relate only tó the subjects which preceded it, we said: “In the later case of Baker v. State, 44 Ark. 134, Chief Justice Cockrill summarizes the effect of the ruling in the Washington case, supra, as follows: ‘We do not understand this case, reading it all together, to limit the power of legislation for State purposes to the taxation of such privileges as were technically known as such at the common law, notwithstanding an expression to that effect occurs in the opinion. We think the Legislature is not restrained by anything in the.organic law from laying a tax on the franchise of a corporation, and the reasoning of the learned judge who delivered the opinion in Washington’s cáse, supra, leads to that conclusion’.”

We conclude therefore that the court below was in error in holding that the widow’s right of dower was not taxable, and the judgment of the court below is reversed, and the cause remanded for further proceeding.


author: Humphreys, J.

text:
    Hays v. State.
    Opinion delivered December 4, 1922.
    1. Continuance — absent witness. — Where, on a motion for continuance, it was shown that a witness was beyond the jurisdiction of the court, and no showing was made that his attendance could be procured at a future term, it was not error to deny a continuance on account of his absence.
    2. Continuance — absent witness. — To procure a continuance on account of the absence of a witness, a definite showing must be made that he can be produced or his evidence procured at the next term.
    Appeal from Lafayette Circuit Court; George B. ■ Haynie, Judge;
    affirmed.

      McKay $ Smith, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Lafayette Circuit Court of the crime of grand larceny for stealing $600 from Will Young. An appeal from the judgment of conviction has been duly prosecuted to this court.

Appellant’s only insistence for reversal is that the court erred in overruling a motion for continuance of the cause to another day in the term, or to the next term of court. The cause had been continued by agreement from the February to the August, 1922, term of court and set for trial on the second Monday of said term. The witnesses, having been subpoenaed to appear at the February term, were notified by the court to appear on the second Monday of the August term. Three of appellant’s witnesses did not appear. The testimony of two of them, Luther Parish and Jacob Burke, was material to his defense, and not entirely cumulative. The motion for continuance, in form, met with requirements of the law, and the absence of the witnesses was made the ground thereof.

It was shown that Luther Parish had gone to Shreveport, Louisiana, beyond the jurisdiction of the court, and no showing was made that his attendance could he procured at a future term of court. It was not error to deny a continuance on account of the absence of said witness. McCarthy v. State, 90 Ark. 384; C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509.

The whereabouts of Jacob Burke was not definitely shown. L. A. McLendon, a deputy sheriff, testified that some of them told him the witness was working for the Rock Island at Little Rock. A definite showing should have been made by appellant that the absent witness was within the jurisdiction of the court. Unless the witness was in Arkansas, it was not within the ability of appellant to produce him at the next term of court. In order to procure a continuance on account of the absence of a witness, a defendant must make a definite showing that he can produce the witness or procure his evidence at the next term of court. Striplin v. State, 100 Ark. 132.

No error appearing, the judgment is affirmed.


text:
    Myers v. Fulmer.
    Opinion delivered December 4, 1922.
    1. Appeal and error — abstract of testimony. — On appeal the rules of the Supreme Court require the appellant to abstract the testimony of witnesses responsive to the issues joined which are involved on the appeal; and where there was no attempt made to follow the rule, it must be presumed that the decree on those issues was supported by testimony not abstracted.
    2. Licenses — note shavers. — Rev. Act of Tenn. of 1919, §§ 4, 16, requiring- the procurement of a license by note shavers, does not apply to one who occasionally invests in notes or other securities.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Stichley S Fitshugh, for appellant.
    The notes are unenforceable in this State, as they would be in Tennessee, where they were made, and were to be paid, for the reason that in that State a person, firm or corporation, buying- or selling notes is required by statute to pay a privilege tax, a violation of which act by failure to pay the privilege license not only subjects the offender to prosecution for misdemeanor, but also renders the note unenforceable. See Public Acts, Tennessee, 1919, chap. 134, §§ 4, and sub-section thereof and § 16; 118 Tenn., 115; 111 Tenn. 346. The opinion in the case last cited held that proof of a single act which is characteristic of any of the privileges created by the act casts the burden on the defendant to show that he was not in fact exercising- the privilege. See also 139 Tenn. 677; 87 Tenn. 45; 8 Pickle, 593; 12 Icl. 714; 19 Id. 264.
    The validity of the note and the lien securing the same will, in this case, be determined by the laws of Tennes-see; and if the contract -is invalid, and not enforceable in that State, it will not be enforced in Arkansas. 61 Ark. 329; 66 Id. 77; 70 Id. 493; 69 Id. 352; 44 Id. 213; Id. 230; 46 Id. 66; 14 Id. 189; 25 Id. 261; 40 Id. 423; 33 Id. 645; 22 Id. 125; 47 Id. 54; 60 Id. 269; 126 Id. 14; 129 Id. 384; 127 Id. 577; Jones on Mortgages, 3rd ed. 84, § 110; Id. 481, § 610; 6 Law ed. (U. S.) 343; 7 Id. 833; 12 Id. 992; 89 Ark. 209.

      Jas. R. McDowell, for appellee, Fulmer.
    The finding of the chancellor to the effect that plaintiff, Fulmer, was entitled to foreclose his mortgage lien in the courts of Arkansas was correct.
    1. The suit is a proceeding in rem and not in personam, and is maintainable in this State. The remedy and. procedure are governed by the lex fori. 5 E. C. L. 941, § 28; Id. 925-6-7, §§ 20 and 21; 22 Am. and Eng. Enc. of L., 1337; 19 E. C. L. 524, § 325; 12 C. J. 457; 90 Ark. 351; 119 S. W. 75; 23 L. E. A. (N. S.) 659, Syl. 3.; 1 Jones on Mortgages, 7th ed., § 661, pp. 1092-1093.
    2. The courts of Arkansas will not enforce penal-' ties prescribed by the statute of 'another State, even though the contract sued on is construed by the laws of that other State. The act relied on by appellant is penal. 5 E. C. L. § 126, p. 1033 et sec[.; 83 Ark. 240; 103 S. W. 185; 96 Ark. 105; 131 S. W. 208; 121 Ark. 59; 180 S. W. 470; 89 Ark. 195; 115 S. W.'ll34, 1140; 25 Cyc. 633.-
    3. Fulmer is not a broker or security dealer, as a matter of law or of fact, and is not liable for the privilege tax under the Tennessee statute. 84 Tenn. 75; Id. 118; 19 Cyc. 186; 33 Ark. 436, 444; 64 S. W. 632-633; Words and Phrases “Broker,” 2nd series, vol. 1, pp. 504-505; Id. vol. 3, 2d series, 685; Constitution of Tennessee, Art. 2, § 28, note 151; 3 Shannon’s Cases, 242-245 ; 3 Cates, 346; 76 S. W. 904; 2 Pickle, 134; 5 S. W. 593; S. Cates, 98; 93 S. W. 100; 10 Cates 129; 101 S. W. 424; 570; 188 S. W. 795; 77 So. 189; 116 Miss. 424; 106 Miss. 199; 63 So. 412; 50 L. E. A. (N. S.) 421; 17 E. C. L. 558; §§ 72, 93; L. E. A. 1915-B, 851, Syl. 3.

      M. B. Norfleet, Jr., for Linder Bros., interveners.
   Humphreys, J.

This is an appeal by the respective parties from certain parts of the decree rendered by the chancery court of St. Francis County.

Appellant, W. B. Myers, appealed from that part of the decree in which he was adjudged to pay appellee, J. I). Fulmer, the sum of $16,072.72, and for which a lien and foreclosure were declared against 720 acres of land in said county purchased by Myers from Jere Belote.

Appellee, J. D. Fulmer, appealed from that part of the decree awarding W. B. Myers a credit of $4,725 upon said judgment aforesaid, on account of the difference in value between the tracts of land sold by Belote to W. B. Myers and M. S. Boyd, which Myers and Mrs. Boyd had agreed to equalize, the court having found that Fulmer purchased the Boyd tract of land with knowledge of said equalization agreement.

Appellant, Myers, and appellee, Fulmer, appealed from that part of the decree awarding appellees, Linder Bros., who were interveners below, liens to the amount of $2,680.20 on eleven houses, five of which were erected on the Myers and six on the Boyd land.

In order to better understand the parts of the decree from which appeals have been prosecuted, it may be well to state that the Myers tract of land consisted of the west 720 acres and the Boyd tract of the east 720 acres of the entire tract of 1,440 acres formerly owned by Evander Williams. He sold the entire tract to Jere Belote and retained a lien upon all of it- for a considerable portion of the purchase money. His lien is still in effect and not questioned in this litigation. Belote sold the east one-half of the tract to Mrs. Boyd and the west one-half to Myers, with the understanding between Myers and Mrs. Boyd that she would make certain improvements upon Myers’ part so as to equalize the value of the two tracts. As a part of the consideration for the west 720 acres, Myers assumed a part of Belote’s indebtedness to Evander Williams, and in evidence thereof executed five notes in the sum of $3,165.48 each, payable to his own order, secured by mortgage upon the land, and indorsed them to Belote, who sold them at a discount to appellant, Fulmer. Fulmer afterwards boright the Boyd tract of land, and, it was alleged, with a full knowledge of the equalization agreement between Mrs. Boyd and Myers. Myers failed to pay the first note when it became due, and subsequently this suit was instituted. An intervention was filed by Linder Bros, to enforce a lien upon certain houses on said lands for materials furnished to construct them. The intervention was contested by both Myers and Fulmer. Issue was joined between Fulmer and Myers as to whether Myers was entitled to a credit for improvements which Mrs. Boyd had agreed to make upon his land to equalize the value of the two tracts. The main defense interposed by appellant,’Myers, to the suit upon the notes and for foreclosure, and the only one upon which a reversal of decree is sought, consisted in the averment "that at the time appellee, J. D. Fulmer, purchased from the said Jere Belote said five notes set out and described in the original complaint, referred to in the amended complaint, there was, is now, and has been for a number of years, a -statute law in the State of Tennessee, declaring it to be a privilege for any person, firm or corporation to engage in the business of buying or selling-notes, bonds, stocks, or other securities, and providingth'at such person or persons so engaged shall pay a privilege tax, fixed upon a graduated scale; that said statute law provides that any person, firm, or corporation engaged in said business of buying or selling said securities without the payment of said tax shall be guilty of a misdemeanor, and subject to a fine of not less than $10 nor more than $50 for each day said privilege is exercised without the payment of said tax; that said law was in full force and effect at the time said appellee purchased said notes, the same being sec. 4 of chapter 134 of the Public Acts of the General Assembly of the State of Tennessee for the year 1919.” The notes-in controversy were executed in Tennessee, were payable at the Union & Planters’ Bank in Memphis, Tennessee, and were purchased by Fulmer from Myers in Tennessee. At.that time both Fulmer and Myers were residents of that State. Testimony was heard by the court upon the issues joined.

The appellee, J. D. Fulmer, earnestly contends that the court erred in allowing appellant, Myers, a credit of $4,725 upon the amount adjudged to him on the notes, and also in allowing a lien for $2,680.28 against the improvements upon the lands in favor of the interveners. It is impossible, without exploring the record, to ascertain whether the court’s findings of fact upon these issues are contrary to the weight of the evidence. The rules of this court require the complaining party to abstract the testimony of the several witnesses responsive to the issues joined, which are involved on the appeal. Said appellee has made no attempt to do this. We must presume the decree of the court upon these issues is supported by the weight of the unabstracted testimony in the record.

Appellant, Myers, insists that the court erred in not repelling appellee, Fulmer, from the court, on the alleged ground that he violated the revenue law of Tennessee in buying the notes in controversy, without having first procured a license to do so. When the notes were purchased, the revenue act in force in Tennessee, in so far as applicable to brokers and security dealers, is as follows:

“Section 4. Be it further enacted, that each vocation, occupation, and business hereinafter named in this section is hereby declared to be a privilege, and the rate of taxation on such privilege shall be as hereinafter fixed, which privilege tax shall be paid to the county court clerk, as provided by law, for the collection of revenue.”

A sub-section of section 4: “ Brokers and Security Dealers other than Real Estate or Merchandise. — Every person, firm or corporation, or agent engaged in buying or selling notes, stocks, bonds, or other securities, in cities, towns, or taxing districts of 60,000 inhabitants or over, each per annum $100. In cities, taxing districts or towns of from 20,000 to 60,000, each per annum $50. In cities,'taxing districts or towns of from 20,000 inhabitants and under, $25. ’ ’

“Section 16. That it is hereby a misdemeanor for exercising any of the foregoing privileges without first paying the taxes prescribed for the exercise of the same, and all parties so offending shall be liable for a fine of not less- than $10 nor more than $50-for each day such privilege is exercised without license; but this inhibition shall not apply to any person, firm, or corporation engaged in interstate commerce.” We do not think the language of the act broad enough-to include one who occasionally invests his money in notes or other securities. If it were, that portion of the act would be nugatory, because the Legislature had no power to impose a privilege tax upon the purchase or ownership of property.. Unless the acquisition or sale of property is exorcised so as to make a business of it, the privilege cannot be taxed. In the construction of a clause in the revenue act of 1901, attempting to define brokers and dealers, the Supreme Court of Tennessee restricted the privilege tax to those engaged in such business. The clause under construction was as follows: “Shaving notes, accounts, judgments, or evidences of indebtedness is hereby classed and held to be dealing in securities.” In interpreting the clause as being applicable only to a business, in the case of Trentham v. Moore, 111 Tenn. 346, Mr. Justice Weil said:

“The words attempting to tax the exercise of a privilege where a business is not made of it are nugatory. The Legislature cannot tax a single act, per se, as a privilege, inasmuch as such act, in the very nature of things, cannot, in and of itself, constitute a business, occupation, pursuit or vocation. There is no privilege to be taxed, unless it is exercised so as to make a business out of it.” The clause of the act of 1919, relating to dealers in securities, has not been construed by the Supreme Court of Tennessee. We are quite sure the purpose and intent of the act was to impose a privilege tax upon those engaged in the business of buying or selling securities, and not upon persons buying notes for investment only. Especially is this our construction of the act in view of the interpretation placed upon a similar, but stronger act, by the Supreme Court of Tennessee in the cases of Trentham v. Moore, supra, and Gilley v. Harrell, 118 Tenn. 115. Upon the authority of those cases appellant also contends that the proof in the instant case establishes that Fulmer was a dealer in securities as defined above. Those two cases laid down a rule of evidence to the effect that proof of the purchase of one note at a discount would make a prima facie case that the purchaser was a dealer in securities, and put the burden of proof on him to show to- the contrary. That rule was announced under a statute designating a dealer in securities as being one who shaved notes, and in a case where the purchaser, G-illy, admitted he traded in notes. Even if the„ rule of evidence laid down for the enforcement of the revenue act of Í901 should be adopted as the correct rule for the enforcement of the revenue act.of 1919, we think, in the instant case, appellee, Fulmer, has successfully met the burden. The substance of his testimony was to the effect that he purchased the notes at a discount for an investment; that he did not deal in securities as a business; that he was engaged regularly in the cotton business, and only bought notes when he had idle money, and then for investment only; that he had never bought and sold notes in his life; that he had purchased a number of notes for investment during the last thirty years, but that the notes in controversy and some of the Boyd notes were the only ones he had purchased for the past two years. We think his statement that he purchased notes as a side line only meant, when construed along with his other statements, that he did not purchase notes in connection with his business, but- for investment outside of and disconnected from his business.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Kelley v. State.
    Opinion delivered December 11, 1922.
    1. Error coram nobis — when remedy available. — The writ of error coram nobis is available to set aside a judgment of conviction after .expiration of the term of court if the defendant was insane at the tim-e of the trial and that fact was not made known or suggested at the trial.
    2. Criminal law — insanity—error coram nobis. — Where there was a suggestion at the trial of a felony of the question of the present insanity of the accused, the failure or refusal of the court to institute an inquiry into that question by impaneling a jury must be corrected, if erroneous, by appeal or writ of error, and not by writ of error coram nobis.

    Appeal from Logan Circuit Court, Southern District; James Goehr an, Judge;
    affirmed.

      John P. Roberts and Evans & Evans, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for-appellee.
   McCulloch, C. J.

This is an appeal from a judgment of the circuit court refusing to issue a writ of error coram nobis for the purpose of inquiring into the question of appellant’s sanity at the time of his trial and conviction of a felony during a former term of the court.

It has been decided by this court that the method of reviewing an order of the circuit judge in vacation refusing to issue such a writ is by certiorari, but since the” record is now before us and could be treated as being here on certiorari, we pretermit decision of the question whether the record should have been brought up by writ of certorari or on appeal, where the order refusing the writ was made by the circuit court, and not by the judge in vacation.

Appellant was indicted for the crime of murder in’ the first degree, and upon the first trial' was convicted of murder in the second degree, but on appeal .the judgment was reversed, and the cause remanded for a new trial. 146 Ark. 509. On the trial anew appellant was again convicted of mnrder in the second degree, and on appeal the judgment of conviction was affirmed. Kelley v. State, 154 Ark. 246.

It was conceded, at each of the trials, that appellant shot and killed the person named in the indictment, hut the defense was based on the grounds that appellant acted in necessary self-defense, and also that he was insane at the time the killing occurred. Both of these issues were submitted to the jury, and the last judgment of conviction was affirmed on the ground that the issues were properly submitted.

After the expiration of the term, appellant, acting through his next friend, filed and presented to the court, at the next term, a petition for a writ of error coram nobis, to the end that a jury might be impaneled to try the question of his insanity.at the time of the trial. The petition was accompanied by affidavits in support of the allegation that appellant was insane at the time of his last trial. The trial court heard these affidavits, and also heard oral testimony in the proceeding to determine whether or not the writ should be granted.

There was evidence adduced on appellant’s behalf tending to show that he was insane, both at the time the killing occurred and at the time of the trial. It appeared also, from the testimony adduced, that during the trial of the cause appellant’s counsel contended on his behalf that he was insane at the time of the trial and did not comprehend the importance of the proceedings. This statement, it appears, was made by appellant’s counsel in his opening statement to the jury, which, of course, was in the presence of the court.

It is shown in the evidence in this case that, in the trial of appellant, there was an attempt to show hereditary insanity on the part of appellant, and that it took the form of delusional insanity, or paranoia, which had reached what is termed the “persecutory stage.”

In many decisions of this court the office of a writ of error coram nobis has been outlined and discussed, and, among other things, it has been held that the remedy under this writ is available to set aside a judgment of conviction after expiration of the term of conrt, if the defendant was insane at the time of the trial and that fact was not made known or suggested at the trial. Adler v. State, 35 Ark. 517; Howard v. State, 58 Ark. 229; Ince v. State, 77 Ark. 418; Johnson v. State, 97 Ark. 131; Hydrick v. State, 104 Ark. 43; Duncan v. State, 110 Ark. 523; Hodges v. State, 111 Ark. 22; Cunningham v. State, 149 Ark. 336. In all of these cases stress is laid upon the fact that it is essential to the availability of this remedy that the question of the insanity of the accused had not been suggested at the trial, the reason being that it is not the office of this writ to bring up for trial anew any issue of fact decided in the trial. In Howard v. State, supra, these questions were learnedly discussed by special Judge Fletcher, who said:

“But it will not lie to contradict or put in issue any fact that has been already adjudicated in the action. An issue of fact wrongly decided is not error, in that technical sense to which the writ refers. If the error lie in the judgment itself, it must be corrected by appeal or writ of error to a superior court.”

It necessarily follows therefore from these decisions that, if there has been a suggestion at the trial of the question of the present insanity of the accused, the failure or refusal of the court to institute an inquiry into that question by impaneling a jury must'be corrected, if erroneous, by appeal or writ of error to this -court, and cannot be again raised on writ of error coram nobis.

It is made the duty of the trial court by statute (Crawford & Moses’ Digest, § 3055) when it appears that “there are reasonable grounds to believe that the defendant is insane,” to postpone the trial and impanel a jury to inquire “whether the defendant is of unsound mind.” No particular formula is prescribed for bringing this matter to the attention of the court, but, if it is brought to the attention of the court in any form and there is error, it can be corrected on appeal. Duncan v. State, supra.

It is not important, at this stage of the proceedings, whether or not there was an assignment of error on the former appeal from the judgment of conviction as to the failure of the court to inquire into the question of appellant’s insanity at the time of the trial, but it is shown in the present proceedings that the question was raised at the trial by appellant’s counsel in such manner that the court could have taken cognizance of tlie suggestion, and, since that was done, appellant’s only remedy was to insist on an inquiry at the time and appeal to this court from erroneous refusal of the trial court to institute such an inquiry. The fact that this question was brought to the court’s attention in the former trial affords sufficient grounds for refusing to issue a writ of error coram nobis for the purpose of raising again the question of appellant’s insanity at the time of the trial. The trial court was therefore correct in refusing to issue the writ.

Affirmed.