author: Smith, J. McCulloch, C.J.,

text:
    Martin v. State.
    Opinion delivered March 3, 1924.
    1. Intoxicating liquors — evidence.—In a prosecution for possessing a still and stillworm, evidence held sufficient to sustain conviction.
    2. Criminal law — instruction as to reasonable doubt. — Where the jury were told to acquit the defendant unless they were convinced of his guilt beyond a reasonable doubt, it was not error to refuse to charge that, if the facts were susceptible of two reasonable interpretations, one of innocence and one of guilt, the interpretation of innocence should be accepted.
    3. Criminal law — reasonable doubt. — It is not necessary to prove each circumstance tending to show guilt beyond a reasonable doubt; the test being whether, on the whole case, after all the evidence has been considered by the jury, they still entertain a reasonable doubt of the defendant’s guilt, in which case they should acquit.
    4. Criminal law: — former jeopardy. — -Discharge of a juror over accused’s objection, after the jury had been -selected and sworn, upon discovery that the |uror had served in a former trial of the same case, which had resulted in a mistrial through the failure of the jury to agree, held not to constitute former jeopardy, which would prevent the court from swearing in a substituted juror in the same panel, the -action of the -court being necessary for the administration of justice.
    5. Criminal law — -discharge of juror — former jeopardy.— Though generally the discharge of a juror after the jury is impaneled and sworn, without consent of the accused, -operates as an -acquittal, the courts have power to protect public justice from imposition by thereafter discharging -a juror or the jury when necessary.
    Appeal from Hempstead Circuit Court; James H. McCollum, Judge;
    affirmed.
    No brief for appellant.
    J. S. Utley, Attorney General, Jno. L. Garter, Wm. T. JELa/mmock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   Smith, J.

Appellant was indicted for possessing a still and stillworm, and, upon his trial, was -convicted, and has appealed.

He assigns as error the -alleged insufficiency of the testimony to support the verdict. The testimony fully supports the summary of the evidence contained in the brief of the Attorney General, as follows: A stillworm and other parts of a still were found, covered in -some hay in a crib, on the farm where appellant -and his father lived. There was also found in the crib about twenty gallons of whiskey, which appellant admitted belonged to him, and for which he testified that he had paid $100. He was a farmer boy — a young man — assisting his father in making a small crop,, and lie does not explain how he obtained the money to buy this amount of whiskey, which he said he bought to drink. Near appellant’s home there was found a still with several'barrels of mash ready to be distilled into whiskey, and there was a path leading from the crib where the whiskey was found to the still.

Defendant testified that he hid the whiskey because his father would not allow him to keep whiskey in his possession. He admitted that, a short time prior to the finding of the still, he had been arrested, on his way to the city of Hope, with six gallons of whiskey, which he admitted he had intended to sell, but did not sell because of his arrest, and’ he also admitted that, prior to that time, he had been arrested with several gallons of whiskey in his possession, which he had intended to sell, but had not sold, and he denied that he had ever at any time sold whiskey or that he had any knowledge of the presence of the still or the mash. There are certain other circumstances tending to corroborate and to contradict the testi- ■ mony set out above, but we think the testimony recited is sufficient to sustain the conviction.

The court refused to give, at appellant’s request, an instruction numbered A, which, if given, would have told the jury that, if the facts testified to by the witnesses “are susceptible of two reasonable interpretations, one of innocence and one of guilt, the interpretation of innocence must be accepted in defendant’s behalf, and you are to acquit.” The refusal to give this instruction is assigned as error.

We think no error was committed in refusing to give this instruction. The jury was told' to acquit the defendant unless they were convinced of his guilt beyond a reasonable doubt, and this was sufficient.

The jury is not required to enter into metaphysical speculations as to the probative value of the separate facts offered in evidence, nor are they required to consider the relative bearing of any fact offered in evidence apart from the other testimony in the case. Nor is it required that each circumstance tending to establish the guilt of the accused shall be established beyond a reasonable doubt before taking the part of it so established into account in making up the verdict. •

In the case of Lackey v. State, 67 Ark. 426, it was said: “The doctrine of reasonable doubt applies to the general issue of guilty or not guilty,- but it does not apply to each item of testimony or to each circumstance tending to show the guilt of the defendant. It would in many cases be difficult to convict the guilty if the law forbade the jury to consider any circumstance or statement of fact not established beyond a reasonable doubt. Such a rule would be difficult of application, would embarrass the prosecution of criminals, and tend to confuse and mislead the jury. We did not intend to establish such a rule in Gill v. State, 59 Ark. 422, for the question was not, in that case, before us.for decision. The test question, under our statute, is whether, on the whole case, after all the evidence has been considered by the jury, they still entertain a reasonable doubt of the defendant’s guilt. If' they do, he should be acquitted. Sand. & H. Dig., § 2233. And this -seems to be the rule generally approved by the courts of other states. (Citing cases).” See also, Sullivan v. State, ante p. 11, and cases there cited.

A more serious question, and the only one which gives us concern, is the action of the court in excusing a •juror named Middlebrook after the jury had been selected and sworn to try the case. It appears that, after this had been done, the prosecuting attorney discovered that the juror had served as such in a former trial of the case, which had resulted in a mistrial through the failure of the jury to agree.

The record before us contains the following recitals: “Mr. Bush (the prosecuting attorney): If the court please, we would like to excuse Mr. Middlebrook. He has been sworn, but he has evidently overlooked the fact in his statement to the court that he was a juror in the previous case. Evidently he has an opinion, must have had, one way or the other, to sit on the jury, and if it takes it, we would like for the court to declare this a mistrial, and summon the jury over. The court: I won’t do that. Mr. Middlebrook, you remember that you were on the trial of this case before, and had overlooked it in answering questions here? Mr. Middlebrook: Yes sir. The court: I will permit the State to challenge him. Mr. Carrigan (attorney for defendant): The defendant objects to that, and saves exceptions on the ground that the jury has already been sworn and impaneled to try the case, and asks that his exceptions be noted of record.”

The court overruled the objection of defendant, and, after another juror had been qualified and sworn, the trial proceeded, and defendant was convicted, as has been said.

In Martin v. State, 161 Ark. 423, the jury had been sworn and the prosecuting attorney was engaged in making his opfening statement, whereupon a juror stated that he had been a member of the grand jury which had returned the indictment. The court gave appellant an opportunity to challenge the juror, which he declined to do, whereupon the court discharged the entire jury and ordered that another jury be impaneled. The defendant excepted and entered a plea of former jeopardy.

We overruled the plea, and did so upon the express ground of public necessity, saying that a necessity had arisen in the administration of justice which demanded action on the part of the court, and that it was the duty .of the court to safeguard the right of the accused to a trial by an impartial jury and also to protect the rights of the public to test the guilt or innocence of one charged with crime, and we expressly based the decision that jeopardy had not attached upon the holding in the case of Franklin v. State. 149 Ark. 546, that the necessity of a case might require the discharge of a juror, or, as was there done, the entire jury, to secure a trial fair alike •to the State and to the defendant. No other reason for •so holding was given in the Martin case.

In the Franklin case the facts were that, after the '■jury had been sworn, a juror announced that he had been a member of a jury which had convicted three other defendants upon their joint trial for the same offense of which the accused was on trial. The court, without objection on the part of the accused, excused the juror, and ordered that another juror be selected to take his place. The defendant then interposed a plea of former jeopardy, which the court overruled.

In upholding the trial court we there said that, as this was obviously done in the defendant’s interest, it would be presumed that he had consented to the action taken, inasmuch as he made no objection to the court’s action until after the juror had been discharged.

It is true that ruling would have disposed of the exception, but we did not content ourselves with putting the decision on that ground alone. The action of the trial court was upheld on a second ground. We said there was a manifest necessity which warranted the court in discharging the juror, and that therefore no jeopardy attached to the accused.

As authority for that holding we cited and quoted with approval from the decision of the Supreme Court of the United States in the case of Thompson v. United States, 155 U. S. 271, which, by the way, came from the District Court of the United States for the Western District of Arkansas (in which case.a juror discovered, after the jury had been sworn, that he had been a member of the grand jury which had returned the indictment, and the court had discharged the entire jury and had ordered that another jury be called): “ ‘As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Perez, 9 Wheat. 579; Simmons v. United States, 142 U. S. 148, and Logan v. United States, 144 U. S. 263. Those cases clearly establish the law of this court, that courts of justice are invested with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the •circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice' would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy within the meaning of- the Fifth Amendment to the Constitution of the United States.’ ”

In the Franklin case we also quoted with approval from the Supreme Court of Maine in the case of State v. Slorah, 4 A. L. R. 1256, 106 Atl. 768, the following statement of the law: “ ‘The administration of justice requires that verdicts, criminal as well as civil, shall be found by impartial juries, and shall be the result of honest deliberations absolutely free from prejudice or bias. The public as well as the accused have rights which must be safeguarded. If, during the progress of a trial, it shall become known to the court that some of the jury do not stand indifferent, whether toward the State or the accused, it would be a travesty on the administration of justice if the trial must proceed, and, if acquitted by such a tribunal, the constitutional safeguard may be invoked against again placing him in jeopardy before an impartial jury. Such a trial obviously should not constitute jeopardy, whether the jury be prejudiced or influenced in behalf of the accused or the State. To prevent such a perversion of justice, it is now well recognized that, if it comes to the knowledge of the presiding justice that such conditions exist, it creates that imperious, manifest necessity that will warrant a discharge of the jury, and such discharge will constitute no bar to another trial on the same indictment.’ ” The court cited many authorities, which it reviewed and considered. The provision of the Constitution of the State of Maine is identical with that of our own Constitution of 1836, 1861 and 1864 on the subject.

The question was so thoroughly considered by the Supreme Court -of Maine that it is a work of supererogation to consider it further, but, in addition to the cases there cited, the following may also be cited; Jefferson v. State, 52 Miss. 767; State v. Cason, 41 S. C. 531, 19 S. E. 918; State v. Stephens, 11 S. C. 319; State v. Hill, 46 La. Ann. 736, 15 So. 145; Yarborough v. State, 105 Ala. 43, 16 So. 758; Webb v. State, 100 Ala. 45, 14 So. 865; Haines v. State, 88 Ala. 37, 7 So. 302; State v. Upton, 170 N. C. 769, 87 S. E. 328; State v. Pritchard, 16 Nev. 101; People v. Brady, 72 Cal. 490, 14 Pac. 202; Mabry v. State, 71 Miss. 716, 14 So. 207; Gilham v. Brown, 43 Miss. 641; McGuire v. State, 37 Miss. 369; Marsh v. State, 30 Miss. 627; Lewis v. State, 9 Smead & M. (Miss.) 115; Stewart v. State, 15 Oh. St. 155; State v. Williams, 49 W. Va. 220, 38 S. E. 495; State v. Vaughan, 23 Nev. 103, 43 Pac. 193; State v. Carter, 5 Humph. (Tenn.) 601; State v. Davis, 31 W. Va. 390, 7 S. E. 24.

We will not review all these cases, but the case of State of Nevada v. Pritchard, 16 Nev. 101, is a case in which the question is thoroughly considered. There the fact was discovered, in a case in which the prosecution was asking the imposition of the death penalty, after the jury had been sworn, that a juror had such conscientious scruples against capital punishment that he could not return a verdict where the penalty was death. The juror was excused, and the defendant pleaded former jeopardy. The court held against this plea, and, in doing so, said: “All the authorities agree ‘that where the jury has been discharged upon necessity, the.prisoner may again be put upon trial.’ (State v. Nelson, 26 Ind. 368). But what shall be considered as constituting such a necessity as to justify courts in exercising this power is not so well settled. The power is one, as before stated, of judicial discretion to be exercised soundly, not arbitrarily, according to the peculiar facts and circumstances of each particular case. The most common of the class denominated as physical necessities that have been held to justify the courts in discharging a jury, although it has been sworn, is where the presiding judge becomes so ill as to be unable to proceed with the trial (Nugent v. State, 4 Stew. & P. 72); or where a juror is prevented by sickness from attending' court during the trial. (Citing cases). There is another class of cases where the courts have been justified in discharging a jury upon what is termed the necessity of doing justice, which arises from the duty of the court to prevent the obstruction of iustiee by guarding its administration against all fraudulent practices, such as tampering with the jurors after they are sworn (Foster’s Crown Law, 27; State v. Wiseman, 68 N. C. 203); or the fraudulent introduction into the panel of a perjured juror, who, at the instance of the defendant, has procured himself to be selected on the jury for the purpose of acquitting • the prisoner (State v. Bell, 81 N.C. 591). From an examination of the numerous authorities, bearing more or less upon this subject, we think it may safely be announced, as a general rule, that courts are legally authorized to discharge a juror or a jury, after the jury has been sworn to try the case, whenever, from any cause, such a necessity exists as to make it apparent that the ends of justice would otherwise be defeated.”

In this connection it may be pointed out that the provision of our Constitution in regard to twice putting one accused in jeopardy for the same offense is substantially the same as the provision of the Federal Constitution on that subject, which appears as a part of the Fifth Amendment to the Constitution, and reads as follows: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. ’ ’ Provisions affording this protection are found in the Constitutions of all of the States.

It is obvious also that the framers of our Constitution substantially copied the provision of the Federal Constitution on this subject; and it may also be pointed out that the decision of the Supreme Court of the United' States in the case of United States v. Perez, 9 Wheat. 579 (cited in the quotation appearing in the Franklin case, supra) was rendered on March 17, 1824, which was, of course, before the adoption of our present Constitution, or even our first Constitution of 1836, and the doctrine of that case has been consistently adhered to by the Supreme Court of the United States in numerous subsequent cases.

It was the evident purpose of the provisions of both the Constitution of this State and of the United States to protect ail accused person from being prosecuted more than once for the same offense, and the Supreme Court of the United States has held, as appears from the decisions of- that court cited above, that the provision of the Federal Constitution is not violated when a jury which has been sworn to try a case is discharged before rendering a verdict, when there is a manifest necessity for that action, to prevent the ends of public justice from being defeated.

¡We perceive no reason why the same provision of our Constitution should not be given the same construction. The same reason exists in the one case as in the other.

Suppose, for instance, a trial court should discover, after the jury had been sworn, that a juror had imposed himself upon the court for the purpose of either convicting or acquitting the accused, without regard to what the law and the testimony might require. Is the court powerless to protect itself from such imposition? Must the court, in these days of many and rapid means of communicating intelligence, proceed with the trial which, if it ends in a conviction, must be set aside? Has the public no rights in the matter? It requires no stretch of the imagination to assume a case in which there might be a trial of such general interest that the full development of the testimony in one trial might make it very difficult, as well as expensive to the county, to secure a jury for a second trial of the same case. Must the judge who possesses this knowledge in a particular case proceed with the appearance of a trial which he, at the time, knows is in fact no trial at all? Must a trial, which is no trial in fact, be carried on when the court knows a conviction will not be permitted to stand, and is the defendant entitled to speculate on the prospect of an acquittal when it is known in advance that he stands no chance of conviction? We think these questions may be answered by saying that the framers of our Constitution did not intend to guarantee an accused any such right.

The provision of onr Constitution that no person, for the same offense, shall be twice put in jeopardy of life or liberty, contains the qualification that if, in any criminal prosecution, the jury be divided in opinion, the court may discharge the jury and commit or bail the accused for another trial.

It cannot be contended that this qualification forbids a second trial except in those cases only where the jury was divided in opinion and therefore failed to arrive at a verdict. If this language was so construed, a second trial could be had in those cases only where the jury had, through disagreement, failed to- arrive at a verdict. That no such result was intended is evidenced by the numerous cases in which a second trial was ordered by this court, in eases where the conviction had been reversed because of error in the trial in which the conviction was first, had.

The case of Whitmore v. State, 43 Ark. 271, which, we concede, does not go to the extent of the Franklin and'Martin cases, recognized that the language of the Constitution quoted is not to be taken as stating the only condition under which an accused may be twice tried for the same offense, and that there are cases in which a second trial may be had, the necessity for which did not arise from any failure of the jury to agree. The court there said: “Section 8 in the Declaration of Eights, Constitution of 1874, authorizes the court, in its discretion, to discharge a jury, in case of their inability to agree upon a verdict after a reasonable time for deliberation. And cases of overruling necessity for their discharge without verdict may sometimes arise, such as the illness or death of the presiding judge or of a juror. Atkins v. State, 16 Ark. 568. But the general rule is that the discharge of a jury, after the machinery of the court is fully organized for trial and judgment, without the consent of the defendant, expressed or implied, operates as an acquittal.”

As was there said, the general rule is that the discharge of the jury, after the machinery of the court is fully organized for trial and judgment, without the consent of the defendant, express or implied, operates as an acquittal. But it was there also said that other exceptions than the mere failure of the jury to agree might exist and authorize a second trial. These exceptions were stated to be reasons of overruling necessity. The court did not attempt to name all exceptions of that character, but merely gave illustrations of that necessity, such as the illness or death of the presiding judge or a juror. To these other exceptions might be added, to which, we think, assent would be readily given.

For instance, in Burnett v. State, 76 Ark. 295, the defendant was charged with seduction, and, after the jury was sworn, he married the prosecuting- witness, whereupon the jury was discharged and the trial suspended. The defendant later deserted his wife, and was again put on trial. His plea of former jeopardy was overruled on the ground that, by taking advantage of the statute which permits one charged with seduction to marry the female seduced, and thereby suspending the prosecution, he had consented to the discharge of the jury, and his plea of former jeopardy was not sustained.

Was there here such an overruling necessity as was referred to in the Whitmore case? We think there was.

Here was a juror who, by concealing the fact that he had served on a former jury in the trial of the same case, had been accepted to serve as a juror on the second trial, and, as verdicts must be unanimous, the second trial must necessarily have resulted as did the first, in a mistrial, unless, indeed, all of the other jurors agreed with Middlebrook. Are courts powerless to protect themselves from such imposition? Can the administration of public justice be thus mocked and thwarted? We think what was so well said by the court from which we have quoted is applicable here, and that courts do have power to protect public justice from imposition when the necessity arises, as it here arose.

Of course, it may be conceded that this is a right which courts •should only exercise when there is some overruling necessity therefor, but we think it a right which should not be denied when that necessity exists.

There is no intimation here that the court had any purpose except to submit the case to the jury standing impartially alike to the prosecution and the defense, and we think there was no denial of any right guaranteed the accused by the Constitution, nor any abuse of discretion on the part of the court in the ruling made.

No error appears, and the judgment is affirmed.

McCulloch, C.J.,

(dissenting). In Whitmore v. State, 43 Ark. 271, this court declared the law as to when jeopardy attaches in a felony case and the effect thereof to be as follows (quoting from the syllabus):

“A prisoner is in jeopardy from the time that the jury is impaneled and sworn, in a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction; and the entry of a nolle prosequi, or discharge of a juror, after that, without his consent, operates as an acquittal, except in cases of overruling necessity, as the death or illness of the judge or a juror, or inability of the jury to agree on a verdict. ’ ’

In the opinion it is further said: “This court has heretofore drawn the line where jeopardy begins at the swearing in of the jury to try the issue. And this is in accordance with the overwhelming weight of authority and with the best considered cases.”

That there has been no shifting of the weight of authority on this subject is evidenced by the recent statement in Ruling Case Law (vol. 8, p. 138), as follows:

“A person is in legal jeopardy when he is put on trial, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his dellyerance, and a jury is said to be thus charged when it is impaneled and sworn. The opinion prevails to some extent that jeopardy does not attach until a verdict is rendered. ' This doctrine, however, limits the term jeopardy to mean the same as autrefois acquit or convict. But the word means exposure to danger; and, Avhere a person is put on his trial on a charge of a crime before a jury sworn to decide the issue between the State and himself, he is then exposed to danger in that he is in peril of life or liberty.” .

In the opinion in the Whitmore case the court referred with approval to a decision of the Supreme Court of Ohio, holding that where, after the impaneling of a jury, it is discovered that one of the jurors had served on the grand jury, and the defendant objected to proceeding in the trial with the jury thus impaneled, it was within the province of the court to discharge the jury and substitute another, for the reason that the objection of the defendant created a necessity which prevented proceeding with that jury. The principle announced in the Ohio case and approved in the Whitmore case Avas the basis of pur decision in Franklin v. State, 149 Ark. 546, and Martin v. State, 161 Ark. 423. The fact must be recognized that the court has now overruled Whitmore v. State, supra, without saying so in so many words. In the present case the appellant did not object to proceeding before that jury, Avkieh had been regularly impaneled and sworn, nor did he consent, either expressly or impliedly, to the discharge of juror Middle-brook; on the contrary, he expressly objected to the .discharge of that juror.. In the Whitmore case the court said:

“The service of Blevins on the grand jury which preferred the bill did not render 1dm incompetent to sit on the petit jury which tried the case. It Ayas only cause of challenge for implied bias. The trial then might well have gone forward with the jury as originally constituted. And, since it does not appear that any objection was taken by the defendant on account of the fact disclosed by Blevins, it must be presumed that he was insisting on his constitutional right to a trial before that jury, of which Blevins was a member.”

The facts of the Whitmore case were precisely the same as in the present case, except that in one case the juror had been a member of the grand jury which returned the indictment, and in the other the juror had been a member of a former trial jury. That distinction does not alter the principle, for, in either case, the juror was not incompetent, but was subject to challenge for cause, and the action of the court in discharging the juror was merely to allow the prosecuting attorney to exercise a challenge for cause after the impaneling of the jury.

The court, in overruling the Whitmore case, has followed what was then, and is now, the minority rule, and the effect of the present decision is to hold that the court may, in its discretion, allow a, juror to be challenged for cause after the jury has been impaneled and sworn. The effect is to overturn the ancient rule that jeopardy attaches when the jury is impaneled and sworn, and the logical result of this holding is that, any time before a verdict, the jury may, in the discretion of the court, be discharged. There is no place to draw the line between the impaneling of the jury and the rendering of a verdict, and if the court may, over the objections of the accused, excuse a juror immediately after the impaneling of the jury, it may likewise do so immediately before the return of the verdict. The court intimates, in the concluding part of the opinion, that the trial court has the power to prevent an imposition upon the court by discharging a juror after the jury is impaneled and sworn. I have always understood the law to be that, after jeopardy has attached, it is too late for the State to complain of fraud or imposition in the impaneling of the jury or any other irregularity in the proceedings, for the accused is protected from then on from another trial. Whatever ill treatment the cause of the State may receive after that time is without remedy.

It seems to me that the decision in the present case introduces into the criminal law an entirely new principle, to the effect that, after an accused has been put in jeopardy, the State may be protected from injustice by discharging the jury, or a member thereof, and substituting another thought to be more impartial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Monks v. Duffle.
    Opinion delivered March 3, 1924.
    1. Insane persons — adopting letters op guardianship issued- by clerk. — While void letters of guardianship issued by the clerk of the probate co irt for the estate of an'insane person could not •be vitalized by an order of court, so as to take effect from their date, the court, when it acquires jurisdiction, may make an order appointing the same person as guardian . and adopt the letters previously issued by the clerk .to take effect from the date of the order.
    2. Courts — -special statutory jurisdiction — recitals op record. —Where the jurisdiction conferred iby statute on a court must ■be exercised in a special manner and not according to the course of the common law, facts essential to such jurisdiction must appear in the record.
    3. Insane persons — jurisdiction.—A probate court does not acquire jurisdiction to grant letters of guardianship for the estate of an alleged incompetent until the latter is brought before the court, as required by Crawford & Moses’ Dig., § 5829, and hence a judgment granting such letters was void on its face where it did not contain a recital that the alleged insane person appeared before the court.
    4. Judgment — collateral attack. — Where the question is as to whether the court rightfully acquired jurisdiction of the person and property of an alleged insane person, and not whether it committed error in the exercise of jurisdiction, the question is properly raised on collateral -attack.
    Appeal from Sebastian ’Circuit Court, Greenwood District; J.ohn E. Tatum, Judge;
    reversed.

      T. A. Pettigrew, for appellant.
    The probate court only has power to appoint a guardian of an adult person of unsound mind, and the clerk’s issuance uf letters of guardianship, without an order and adjudication of said court, was without authority, and void. 116 Ark. 220; 172 S. W. 1016; 226 S. W. 520; 32 Ark. 674; art. 7, § 34, Constitution; 154 Ark. 396. The issuance of the letters of guardianship without any judicial examination of plaintiff’s competency, and without any notice to her, was violative of the declaration- -of rights, Constitution, art. 2, and was necessarily void.-

      U. G. May and R. A. Rowe, for appellee.

      1. This is a collateral attack. Plaintiff’s remedy was by appeal. The judgment of the probate court is not subject to collateral attack. Act 263, Acts 1919, p. 193; 158 Ark. 478.
    ' 2. The incompetency in this case is more from old age'and lack of business knowledge than from insanity. The evidence shows that plaintiff instructed Duffle to go to Greenwood and take out letters of guardianship so as tó protect her person and estate, paying the expense and that of his attorney for that purpose. The clerk had authority in vacation to grant the letters of guardianship, subject to confirmation or rejection by the probate court. C. & M. Digest, § 4980 ; 53 Ark. 37; art. 7, § 34, Constitution.
   Humphreys, J.

Letters of guardianship were issued in January, 1922, by the probate clerk of Sebastian County, Greenwood District, to appellee, Prank Duffle, for the estate of Mary Monks, upon the ground that she was incompetent to manage her affairs. These letters were issued in vacation without an order of the probate court. Subsequently, in term time, the probate court rendered the following judgment:

“Sebastian Probate Court, Greenwood District, April, 1922, April 17, 1922. In the matter of the estate of Mary Monks, an incompetent person.
“On this day is presented to the court the petition and bond of Prank Duffle, for letters of guardianship of Mary Monk, an incompetent person, with bond conditioned as the law directs, in the penal sum of $1,800, with C. J. Woodson and D. W. Pobinson as sureties thereon, and it appears to the court that said bond is good and sufficient, and, the court being further advised in the premises:
“It is therefore ordered that said bond be and the same is this day in all things approved, and the clerk of this court is instructed to issue letters of guardianship to Prank Duffle, petitioner. ’ ’

On the third day of July, 1922, appellant filed a petition to set the judgment aside and revoke the letters, upon the ground that said judgment and letters were null and void. Appellee was duly served with process to appear and answer. He appeared on the 24th day of August, 1922, and denied all the material allegations in the petition. The petition was heard and dismissed. From the judgment dismissing the petition an appeal was prosecuted to the circuit court, where, upon a trial de novo, the court found the law to be that the clerk of the probate court, in vacation, had the right to issue the •letters of guardianship, subject to the approval of the probate court, and that said court approved the same. In keeping with the findings, a judgment was rendered dismissing the petition at appellant’s costs, from which is this appeal.

Appellant contends that the order of the probate court and letters of guardianship were null and void. The theory advanced is that the clerk had no right to issue the letters without an order of court to do so, and, being issued in vacation without authority, were void. It is argued by appellant that the subsequent order of the probate court could not vitalize the letters of guardianship. Hastings v. United,. States Fidelity & Guaranty Co., 116 Ark. 220, cited by appellant to support this position, does not wholly do so. It was said in that -case that: “The probate court only had the power to appoint a guardian of Sarah Elizabeth January, an adult person of unsound mind, and the clerk’s issuance of letters of guardianship, without an order and adjudication of said court, was without authority, and void. The appointment being void, the probate court did not acquire jurisdiction of the person or estate of said insane person, and the orders thereof approving and confirming the purported settlements of such guardian were void.” There is nothing in the case indicating that the probate court cannot, in the proper exercise of its jurisdiction, make an order appointing a guardian for an insane person and adopt letters theretofore issued by the clerk, to take effect from the date of the order. Void letters, of course, could not be vitalized by an order of court so as to take effect, from their date. To say that the clerk ought to have destroyed the old letters and issued new ones would he giving effect to form rather than to substance. After carving through form, however, and treating the letters as having been issued pursuant to the judgment of the probate court, and effective after the date of the order, we cannot affirm the judgment of the trial court dismissing appellant’s petition, because the judgment of the probate court appointing appellee as guardian of the estate of appellant is void on its face. The order contains no recital that appellant was before the probate court when the condition of her mind was inquired into. Under article 7, •§ 34, of the 'Constitution of 1874, exclusive ’ jurisdiction in matters relating to persons of unsound mind and their estates is conferred upon probate courts. Watson v. Banks, 154 Ark. 396. This jurisdiction can be exercised only in the special manner provided in § 5829 of Crawford & Moses’ Digest, which is as follows: “If any person shall give information in writing to such court that any person in his county is an idiot, lunatic, or of unsound mind, and pray that an inquiry thereof be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court and inquire into the facts by a jury, if the facts be doubtful.”

It will be observed that, in order to exercise its jurisdiction, it was necessary to have appellant before the court. Where the jurisdiction conferred upon a court must be exercised in a special manner, and not according to the course of the common law, it is necessary for the facts essential to the exercise of such jurisdiction to appear in the record. Oliver v. Routh, 123 Ark. 189; Massey v. Doke, Id., 211; Jones v. Aimell, Id., 532. The failure of the record to affirmatively show the presence of the appellant in court when the condition of her mind was inquired into renders the probate order void. The letters of guardianship must fall with the order.

The issue involved on this appeal is whether the court rightfully acquired jurisdiction of the person of appellant and her property, and not one of error in the exercise of jurisdiction rightfully acquired, so it was proper to raise it by collateral attack. The rule thus announced is not in conflict with the rule announced in the case of Sharum v. Meriwether, 156 Ark. 331, but, on the contrary, is in perfect accord with it. The error discussed in the Sharum case was one committed in the exercise of a jurisdiction rightfully acquired. The necessity of having a person of unsound mind before the court in order to exercise jurisdiction over him and his property was recognized in the case. The court said: ‘ ‘Jurisdiction is" acquired by the filing of the information with the court and the 'Compulsory attendance of the accused before the court.”

On account of the error indicated the judgment is reversed, and the cause is remanded with directions to cancel the order and revoke the letters of guardianship.


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

text:
    McNutt v. State.
    Opinion delivered March 3, 1924.
    1. Statutes — regulation op right op appeal. — As the right of appeal is given in all cases by the Constitution, statutes regulating such right should be construed so as to facilitate, rather than impede, its exercise.
    2. Sunday — not juridical day. — Both at common law and by statute, in this State, Sunday is not a juridical day, and the performance of labor and the transaction of business thereon is prohibited.
    3. Time — piling transcript in misdemeanor case. — When the last of the 60 days allowed by Crawford & Moses’ Dig., § 3423, for lodging the transcript on appeal in a misdemeanor case in the office of the clerk of the Supreme Court falls on Sunday, appellant may file the transcript on the following Monday.
    Motion for rule on clerk to require him to file transcript.

      Isgrig & Dillon, for appellant.

      J. S. Utley, Attorney General, for appellee.
   Hart, J.

Section 3423 of Crawford & Moses’ Digest provides that, in misdemeanor cases, the appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the condition that the record is lodged in the clerk’s office of the Supreme Court within, sixty days after the judgment.

The sole question is, if the last day of the sixty days given by the statute falls on Sunday, whether a party may file a transcript in this court on the following Monday.

The Attorney General quotes from 26 R. C. L., p. 750, that the great weight'of authority is that, in computing the time within which an act required by any statute must be done, if the last day falls on Sunday, it cannot be excluded and the act done on the Monday following, unless there is some statute providing that- the Sunday should be excluded from the computation, or the intention of the Legislature to exclude it is manifest. Many decisions bearing on the question, under varying statutes, are cited in the notes to 7 Ann. Cas. 325, and 20 Ann. Cas. 1318.

On the other hand, it is the contention of counsel for appellant that, both at common law and by statute, when the last day of a period in which an act is to be done falls on Sunday, that day is excluded, and the act may be done on the next succeeding day. See 38 Cyc. 331; 28 Am. & Eng. Earn. Law, 2d ed. 224, and Endlich on Interpretation of Statutes, § 393.

Many States have passed statutes to this effect, and it is claimed by counsel for' the appellant that these statutes are merely declaratory of the common law. Be that as it may, no rule has been adopted on the subject in this State, and the question is whether a rigorous or a liberal rule should be applied. The right of appeal is given in all cases by our Constitution, and the majority of the court' is of the opinion that statutes regulating it should be construed so as to facilitate rather than impede its exercise. The statute provides that the transcript may be lodged in the clerk’s office of the Supreme Court within sixty days after the judgment. Both at common law and by statute in this State, Sunday is not a juridical day, and the performance of labor and the transaction of business is prohibited by statute.

The Legislature will be presumed to have considered that Sunday is dies non in reg’ard to judicial proceedings, and, in fixing a short time for appealing, to have considered that, in the computation of the time when the last day for filing the transcript falls on Sunday, it may be done on the next .day. Some courts have expressly held that whenever, by rule of the court or an act of the Legislature, a given number of days is allowed to do an act, or it is said that an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. Goswiler’s Estate, 3 P. & W. (Penn.) 200; Lutz’ Appeal, 124 Pa. St. 273; Cressy v. Parks, 75 Me. 387; Estate of Rose, 63 Cal. 346; People v. Scanlon (Ill.) 107 N. E. 149; Barnes v. Eddy, 12 R. I. 25; West v. West (R. I.), 46 Atl. 44; and Monroe Cattle Co. v. Becker, 147 U. S. 47.

This rule is reasonable, and is especially so when we consider the numerous decisions of this court in which the court has sustained short statutes of limitations within which property owners may appeal to the courts, not only •against discriminations and inequalities in the assessment of benefits against their property, but even against assessments made upon illegal principles of law. Statutes of twenty days within which to file such attack on the assessments have been sustained in numerous cases, and statutes requiring the attack to be made within ten days have also been sustained. House v. Rd. Imp. List. No. 2, 158 Ark. 330, and Road Imp. Dists. 1, 2, 3 v. Crary, 151 Ark. 484.

It was known to the Legislature, in passing statutes providing that the property owner should contest the assessment of benefits against bis property within these short periods, that one or more Sundays might intervene during the period, and this fact was also known to the court in deciding whether the number of days allowed was reásonable. '

We think that it was the intention of the Legislature to allow 60 days in all cases within which to perfect the appeal. That it was their intention to exclude Sunday when the last day of the period fell on that day, and to allow the transcript to be filed on the following day.

Therefoie the clerk is directed to allow the transcript to be filed.

McCulloch, C.J.,

(dissenting). An appeal in a misdemeanor case is granted on condition that the trans-script be filed in this court within sixty days, and, if the condition is not performed, no jurisdiction is acquired by this court, and the court had no power to extend the time. Smith v. State, 48 Ark. 148; Bromley v. State, 97 Ark. 116.

In many of the States there is a statute in force which provides that, in computing the time within which an act is to be done, if the last day be Sunday, it shall be excluded, but there is no such statute in this State. In those States effect is given to the statute by decisions holding that, where the last day falls on Sunday, the act may be performed on the following day. The prevailing rule in States where there is no statute excluding Sunday from the computation is stated as follows in 26 R. C. L. 750:

“The great weight of authority is that, in computing the time within which an act required by any statute must be done, if the last day falls or a Sunday, it cannot be excluded and the act done on the Monday following, unless there is some statuté providing that the Sunday should be excluded from the computation, or the intention of the Legislature to exclude it is manifest.”

In a case-note to Simmons v. Hanne, 50 Fla. 267 (7 A. & E. Ann. Cas. 322), the rule is stated substantially the same as above:

“The decisions in the reported case, to the effect that, in computing the time within which an act required by any statute must be done, if the last day falls on a Sunday, it cannot be excluded and the act done on the Monday following, unless there is some statute providing that the Sunday shall be excluded from the computation, or unless the intention of the Legislature to exclude it appears manifest, is supported by the great weight of authority. ’ ’

There follows more than a column of cases showing the application of this rule and adhering to it. In fact, I am unable to find any case holding, as the majority of this court hold now, that, in the absence of an express provision excluding Sunday from the computation of time, an act required by statute to be done within a given time may, when the last day falls on Sunday, be done on the following day. In the case-note cited above in 7 A. & E. Ann. Cas., there is a list of decisions in the States where there are statutes expressly providing that Sunday shall be excluded.

With all respect to the judges composing the majority in the present case, I do not think that the cases they have cited support their conclusions. Most of the cases cited were in States where there is a statute excluding Sundays from the computation. I will not undertake to cite all the cases supporting the view that Sunday is not to be excluded from a statutory requirement unless the statute itself expressly excludes it, but will content myself merely by referring to some of the decisions which declare that to be the rule. The reason for the rule cannot be stated in clearer language than that employed by the United States Circuit Court of Appeals for the Ninth Circuit in the case of Meyer v. Hot Springs Imp. Co., 169 Fed. 628. The court was dealing with the Federal statute limiting the time of appeal to sixty days, and said:

“At common law, when Sunday is the last day of the time within which an act is to be performed under a contract, it is excluded, and performance on Monday is allowed. * * 'So, in construing rules of court in respect to time for pleading and other matters of mere practice, if the last day fall on Sunday, the whole of the next day is allowed within which to perform the required act. * * * . But, while courts may construe their own rules equitably and extend the time therein limited, they have no such power as to statutes, and the decided weight of authority is that, when the act is to be done within a time fixed by the statute, and the last day thereof falls upon Sunday, that day will not be excluded, unless a different rule for computing the time is also provided by statute. ’ ’

The Court of Appeals for the Eighth Circuit reached the same conclusion in the case of Johnson v. Meyers, 54 Fed. 417, the opinion being written by Judge Sanborn and concurred in by Judge Caldwell.

The Supreme Judicial Court of Massachusetts, in the case of Cunningham v. Mahan, 112 Mass. 58, said:

“When a statute fixes a limitation of time within Which a particular act may or may not be done, if the time limited exceeds a week, Sunday is included in the computation ; but if it is less than a week, Sunday is excluded. This is the established rule of interpretation in this State. ’ ’

In the later case of Haley v. Young, 134 Mass. 364, the court said:

“It is said that, at common law, when the time for the performance of a contract according to its terms expires on Sunday, a performance on the following Monday is good. * * * But this rule, whatever may be the extent of it, has not been applied to acts which, by statute, are required to be done within a time therein limited.”

In the State of Kentucky there is a statute which provides, that, where “any proceeding is directed by law to take place, or any act is directed to be done, on a particular day of a month, if that day happen to be Sunday, the proceedings shall take place or act shall be done on the next day;” but the Court of Appeals, in construing another statute, providing that a petition to contest an election should, be brought within ten days after final action .on the part of .the canvassers, held that, “when the last day falls on Sunday, a petition is not valid if filed on the following Monday. ’ ’ The court, in the opinion in that case, said: “The general rule is that, if the time within which an act may be 'done exceeds a week, Sunday is included, but if it is less than a week, Sunday is not included. ’ ’ Lowry v. Stotts, 138 Ky. 251. The rule last stated was adopted by that court in Geneva Cooperage Co. v. Brown, 124 Ky. 16.

In Alabama there is a statute like the one prevailing in most States excluding Sunday from the computation, but the Supreme Court of that State has held that, where the trial court granted time for filing the bill of exceptions, if the last day fell on Sunday it cannot be signed and filed on the following day. Allen v. Elliott, 67 Ala. 432; Anniston Elec. & Gas Co. v. Cooper, 136 Ala. 418.

It seems clear to me that this court, in holding that Sunday is to be excluded when the last day for appeal falls on that day, is deciding contrary to the almost unanimous decisions of other courts, and I think the ruling is contrary to the express language of the statute, which requires that the appeal must be perfected within sixty days. In excluding Sundays we are reading something into the statute which cannot be found there, for the manifest purpose of the lawmakers, in framing this . statute, was not to allow sixty juridical days within which to perfect an appeal, but to fix a period of time, namely, sixty calendar days, within which an appeal must be perfected. The fact that, in some instances, we have statutes requiring appeals and such other proceedings to be completed within a very short time, should be very persuasiye to the Legislature, either to lengthen,the time or to exclude Sundays, but it: affords no reason why we should read something into the statute which is not found in its language.


author: McCulloch, C. J.

text:
    Lytle v. State.
    Opinion delivered March 10, 1924.
    1. Forgery — sufficiency of evidence. — In a prosecution for forgery evidence held sufficient to sustain a conviction.
    2. Witnesses — impeachment.—It was not error in a criminal case to refuse to permit defendant to contradict a certain State’s witness by proving that the witness had told him why .he carried accounts in two banks, and that the witness associated with lewd women; such matters being collateral, so that the witness’ answers were conclusive.
    3. Witnesses — cross-examination of accused. — In a prosecution . for forgery, it was competent, for the purpose of impeaching the accused, to interrogate him on cross-examination as to the commission of certain another ■ crime, and the circumstances thereof and the association into which he was drawn in the commission of such crime.
    Appeal from Craighead Circuit Court, Jonesboro District; W. W. Bandy, Judge;
    affirmed.

      D. E. McGowan and M. P. Huddleston, for appellant.

      J. 8. Utl'ey, Attorney General, John L. Charter, W. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
   McCulloch, C. J.

Appellant was indicted for the crime of forgery, alleged to have been committed by forging the name of Curtiss Kerr to a check for the sum of twenty dollars-on the First National Bank of Jonesboro, Arkansas, and, on trial of the cause, he. w.as convicted.

■ .The check set forth in the indictment was introduced in evidence, and purported to be one drawn by-Curtiss Kerr on the First National Bank for the sum of twenty dollars, payable to the order of Harry Berry. The name of Harry Berry is indorsed on the back of the check, and it was paid by the bank on which it was drawn. .

• Kerr was introduced as a witness by the State, and he testified that the signature to the check was not his, that he had not authorized any one.to sign his name to the check, and that it had been charged to his account at the bank and delivered to him. He also testified concerning another check for a small amount, on which his name had' been indorsed without authority, and stated that appellant admitted having make the indorsement and received the money on the check, and that appellant’s mother made good the amount.

Other papers shown to have been in the handwriting of appellant, including a postal card to which Kerr’s name was signed, and which signature was shown to have been written by appellant, were introduced in evidence for comparison with the signature to the check in question.

Appellant denied that he signed or handled the check in any way, and .claimed that he was not in Jonesboro on the date that the cheek was drawn and cashed, but was in Blytheville and Paragould at that time.

It is insisted that the evidence is not sufficient to sustain the verdict, but we have the positive testimony of the prosecuting witness that the check was a forgery, and there is sufficient evidence to show that appellant committed the forgery. This with other testimony as to the similarity of the handwriting to other writings proved to have been made by appellant. McCoy v. State, 161 Ark. 658. This makes out a case for the jury, and the verdict is conclusive on the issue-

Witness Kerr stated, on cross-examination, that he carried accounts in two banks in Jonesboro, that his wife had drawn checks with his approval, but denied that he carried accounts in two different banks in order to deceive- his wife and keep her from knowing where his money was and how much he had, and denied that he had said anything to appellant about a check drawn by his wife on the account.

The court refused to permit appellant to testify that witness Kerr had told him why he carried accounts in two banks, and also refused to permit him to testify concerning Kerr associating with lewd women. The 'court was correct in this ruling, for the questions of Kerr’s reasons for keeping two bank accounts and the fact of his carrying on with lewd women were matters .collateral to the main issue and affecting only the credibility of the witness, and the answers of the witness whose credibility was sought to be impeached was conclusive. Hollingsworth v. State, 53 Ark. 387.

Error is assigned in the ruling of the court permitting the prosecuting attorney to ask appellant, on cross-examination, concerning his having been convicted of the crime of highway robbery committed in connection with two negroes. It was competent to interrogate appellant on cross-examination in order to attack his credibility as a witness, and it was competent to ask him about committing crime and the circumstances thereof and the associations into which he was drawn in the commission of the crime. Hollingsworth v. State, supra.

Our conclusion is that there was no error committed by the court, and the judgment is therefore affirmed, •


text:
    Burel v. Grand Lodge I. O. O. F.
    Opinion delivered March 10, 1924.
    Courts — stare decisis. — Where a decision, has become a rule of property, it will not be disturbed, even if the court were otherwise disposed to do so.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor.;
    affirmed.

      W. E. Beloate, for appellant.

      W. K. Ruddell, for appellee.
   McCulloch, C. J.

This suit involves certain lots in the town of Walnut Bidge, formerly owned by A. W. Shirey, who devised the same, with other property, to appellee, in trust for the purposes named in the will. Pour hundred acres of land in Lawrence County, •described generally as the Bobins Farm, were devised by Shirey to appellee as a site for an orphans’ home to be erected thereon, and the remainder of the property of said testator was devised to appellee for the purpose of establishing and maintaining at Hot Springs a sanator'ium, where the sick were to he treated without the use of drugs, medicine, or surgery. The trustees, acting by ’authority of appellee, under a resolution passed by the Grand Lodge, entered into a contract with appellant, Mrs. Burel, for the sale of these lots in Walnut Ridge, for’the purpose of raising funds to apply to the maintenance of an orphans’ home established and maintained by appellee at Batesville. Mrs. Burel refused to comply with her contract on the ground that the trustees had no authority to sell the property for that purpose, and appellee, Grand Lodge I. O. O. F., together with the trustees, instituted this action to compel appellant to specifically perform her contract of purchase.

All of the facts with reference to the devise of the property under the will of Shirey, and the purposes for which the sale was to be made, are set forth in the complaint.

The court overruled a demurrer to the complaint, and defendant declined to plead further, and suffered a final decree in favor of appellees in accordance with the prayer of the complaint.

The question presented by the pleadings is whether or not the attempted sale of the property, which was devised to appellees for the purpose of using the same in establishing and maintaining a sanatorium at Hot Springs, constitutes a violation of the trust. This question was expressly decided by this court against the contention of the present appellant in the case of McCarroll v. Grand Lodge I. O. O. F., 154 Ark. 376. In that case McCarroll had contracted to purchase from the trustees of the Grand Lodge I. O. O. F. the Robins Farm, which was devised as a site for an orphans’ home, as well as portions of the land devised for the purpose of establishing a sanatorium in Hot Springs. This court decided that (quoting from syllabus), “where a testator disinherited his héirs, and devised certain lands as a site for an orphans’ home, to be under the direction of a certain benevolent order, and the rest of his property to establish and maintain a sanatorium, to be under the control of the same lodge, after a compromise of a contest of the will, by which the lodge obtained land and property insufficient to carry out the purposes of the devise, in view of the fact that the land was bringing in a small income and depreciating in value, a decree of specific performance of a contract of sale of the land and that the proceeds be applied to the upkeep of a home for widows and orphans maintained by the same order for charitable purposes, .was proper.”

It is seen that the decision in the McCarroll case involved precisely the same question presented in the case now before us. It is unnecessary to discuss the question at further length, for it was finally disposed of in the other case. The decision has become a rule of property, and should not be disturbed, even if the court was otherwise disposed to do so.

Affirmed.


author: Wood, J.

text:
    Bracy Brothers Hardware Company v. Herman-McCain Construction Company.
    Opinion delivered March 10, 1924.
    1. Evidence — parol evidence as to ambiguous contract. — Parol evidence is admissible to explain the meaning of an ambiguous contract.
    2. Contracts — construction.—Where there is doubt as to the meaning of a contract, it will be resolved against the party who prepared the contract.
    3. Evidence — ambiguous contract. — Under a contract whereby the plaintiff agreed to furnish kitchen and mess-hall equipment according to the specifications of the supervising architect, but which the plaintiff contended was not meant to include installation of the equipment, but only to set the same in place, held that there was such ambiguity in the contract as to admit parol testimony to explain the contract.
    4. Contracts — construction.—Under a contract whereby plaintiff agreed to furnish kitchen and mess-hall equipment according to the specifications of the supervising architect, which required the equipment to be furnished and installed in the kitchen and mess-hall building, the plaintiff was required to install and set . in place the equipment, notwithstanding a statement in a subsequent paragraph of the contract that the plaintiff’s offer did not include plumbing, gas fitting, and electric work other than as a part of the specified equipment.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Carmichael & Hendricks, for appellant.

      Buzbee, Pugh & Harrison and A. 8. Buzbee, for appellee.
   Wood, J.

This is an action by the appellant against the appellee. The appellant alleged that on December 3, 1921, it entered into a contract with the appellee under which appellant was to furnish certain equipment for the kitchen and mess-liall at Port Logan H. Boots for the United States Public Health Service Hospital; that the appellant was to receive as compensation for such equipment the sum of $8,250; that the appellant furnished the equipment and performed all its incidental duties under the contract, and there is now due the appellant from the appellee the sum of $737, which appellee, on demand, refused to pay, and for which sum it prayed judgment.. Appellant exhibits with its complaint, as the foundation of its action, the following:

“Little Bock, Arkansas, December 3,1921. Herman-McCain Construction Co., Beigler Building, Little Bock, Arkansas. G-entlemen: We take pleasure in making you quotation on kitchen and mess-hall equipment for the United States Public Health Service Hospital at Port Logan H. Boots, North Little Bock, Ark., as per specifications supplemented by Jas. A. Wetmore, acting supervising architect, as listed under items 780 to 821, inclusive, for the sum of eight thousand two hundred and fifty dollars ($8,250), 50 per cent, of which is to be paid on delivery of said goods to kitchen and mess-hall at Port Logan H. Boots, 40 per cent, when goods are set in place, and the balance as soon as inspected and accepted by government.

“Our quotation does not include plumbing, gas-fitting or electric work, other than that which is a part of the specified equipment. This equipment to be manufactured as per said specification and delivered by us to said kitchen and mess-hall, and each piece of equipment set in place and position, as designated by blue-print submitted by above-mentioned architect with these specifications:

“We to furnish you with blue-print showing the proper location of necessary waste and supply water, gas and steam pipe.

“Assuring you of our desire to give you good service and equipment second to none, and hoping that we will be favored with your order, we are. Above goods to be shipped March 15, 1922. Yours very truly, Bracy Bros, Hardware Co. by E. H. Krebs. Accepted. By Herman-McCain Cons. Co., by H. C. McCain, Pres., Secy, and Treas.”

Appellee, in its answer, denied that appellant performed the duties which it agreed to perform under the contract set up in its complaint. Appellee alleged that it was required and caused to expend the sum of $737 to have the balance of the work done which appellant had agreed to do under its contract and had failed to do; that appellee offered appellant the opportunity to do the work and receive the pay therefor, and appellant refused. Appellee alleged that the sum of $737 was a reasonable amount for the work it had to do because of appellant’s failure to perform its contract. Appellee therefore prayed- that appellant’s -complaint be dismissed. The cause was, by consent, tried by the court sitting as a jury.

E. jEL Krebs testified that he had been in charge of the builders-’ hardware department of appellant for nineteen years. He identified the letter which is attached to and made a part of the complaint upon which the action was founded, and which constituted the contract between the parties. This contract refers to items 780 to 821 of specifications for kitchen and mess-hall equipment for the H. S. Public Health Service Hospital at Port Logan H. Boots'. Section 780 of the specifications is as follows: “Kitchen Equipment. 780. Scope of the work — The following equipment is to be furnished complete in every detail and installed in the kitchen and mess-hall building.” The equipment called for was furnished by the appellant and accepted by the government. It was delivered by the appellant to the hospital building, and by the appellant uncrated and assembled. The range was a very large one, and came in more than fifty pieces. It was set up and bolted together — that is, assembled by the appellant. Appellant also assembled the electric dish-washer, several large boilers, and other equipment. After assembling the equipment, appellant placed it in position, as called for in the contract. Some days later appellant was notified by the appellee to get a plumber out there and connect up the equipment. Appellant replied' that it was not required to do so under the contract, and it therefore refused to do it. Appellant had stated in the contract that it was to do no plumbing, gas-fitting, or electrical work except that which was a part of the specified equipment. Appellant was not a plumber, and that is the reason it put in the offer the provision that it was not to do the plumbing, gas-fitting, or electrical work, other than what was a part of the specified equipment. Witness understood the meaning of the word “install,” and that is what witness, acting for the appellant, did not offer to do, but offered only to assemble and set in place.

Appellee claimed that it had the plumbing done, after the appellant refused to do it, and the controversy is over $737, which amount the appellee holds out of the contract price. Witness wrote the contract, and included in it §■§ 780 to 821, inclusive. He had these specifications before him when he wrote the contract. Appellant does not dispute the amount in controversy. The appellee has the right to retain it if it is a proper charge. Appellant’s factory submitted blue-prints showing where it would be necessary for the plumbers to bring up pipes for the openings. Witness saw a good many pipes there, but didn’t put them there. The object of the blue-prints was to show the height the plumbing should be so as to correspond with the height of the connection of the equipment.

Henry C. McCain testified that he was the secretary and treasurer of the appellee. When appellee received specifications for the hospital equipment it asked for bids from the subcontractors. Appellee is not a builder, plumber, or furnisher of kitchen material, and it does not do electrical work. Bach item of the specifications appellee submitted to appellant was just as appellee received it from the government. After appellant had assembled the equipment, the appellee demanded that it connect it, which appellant refused to do. Appellee then had the work done, and retained the amount out of the contract price. In the contract of the appellee with the government there was a whole section devoted to plumbing, and it is appellee’s understanding of that contract that the' one who furnished the equipment was to connect it. The appellant was required to furnish a blue-print showing where the plumbing should be brought up, so that it would connect with the equipment. The plumbers did the roughing-in and brought the connections up to where the equipment' could be connected with it. Witness had had four years’ experience in building, and it was his understanding that, if appellant had agreed to install this kitchen equipment, without reference to plumbing, it would be appellant’s duty to do what the plumber did— that is, run all pipes up to make connections, unless that part had been provided for under the specification of plumbing. It was necessary to have the blue-prints to' show how high the connections would be to correspond with the equipment. Witness read the contract carefully, and understood the meaning of the words, “install,” “plumbing, gas-fitting and electrical work.” The contract states that it does not include plumbing, gas-fitting or electrical work “except of the specified equipment.” Appellee’s construction of the contract is that appellant was required to install the equipment.

The appellee offered to prove by several witnesses that the word “install,” as used by men trained in plumbing, engineering and 'architecture, means “set in place — to connect up and fix ready for use.” The appellant admitted that these witnesses would so testify.

The appellant asked the court to declare the law to be that appellant had performed the contract' when it assembled and placed the equipment in the place and position it was to occupy, and it was not required, under the contract, to connect the same with the mains; that the appellant, having performed its duty and obligation under the contract, was entitled to recover of the appellee the sum of $737. The court refused to so declare the law.

The court, at the request of the appellee, declared the law to be that it was the duty of the appellant, under the contract, to install the equipment ready for service, and that the appellant, having failed to perform this duty, could not recover in the action. The appellant duly excepted to the rulings of the court. The court thereupon entered judgment in favor of the appellee, from which is this appeal.

. The contract which is the foundation of appellant’s action ■was written by the appellant, and therefore, under 'a familiar rule of law, if any of its terms are ambiguous so'that'it becomes necessary to construe it, parol evidéneé may be admitted to throw light upon the meaning óf the contract. Where there is doubt as to the meaning of the contract, such doubt must be resolved against the 'party who prepared the contract. Wisconsin & Arkansas Lumber Co. v. Fitzhugh, 151 Ark. 81, and eases there cited.

The letter of the appellant to the appellee, which was accepted by the latter, evidenced the contract between the parties, and there was such ambiguity in its terms as to justify the court' in hearing parol testimony to determine the' intention of the parties to the contract. In the light of this evidence and the rules of law above announced, we are convinced that the trial court correctly construed the contract. Under the first paragraph of the letter there can be no doubt that the appellant, for', the price named ¿herein, agreed to furnish the kitchen and mess-hall equipment as per specifications of the supervising architect listed under items 780 to .821, inclusive. Item 780 called for the kitchen equipment, and under the title, “Scope of the work,” specified that “the equipment is to be furnished complete in every detail and installed in the kitchen and mess-hall buildingThe first paragraph of the letter, or contract, therefore, should read as though item 780 were a part of that paragraph, and, when so read, it in effect declares that, for the price therein named, the appellant will furnish the equipment complete in every detail and install same in the kitchen and mess-hall building, and, when the equipment is delivered to the kitchen and mess-hall at Fort Logan H. Boots, fifty per cent, of the contract price is to be paid, and when the equipment is set in place, forty per cent, more is to be paid, and the balance of ten per cent, is to be paid when the government has inspected and accepted the work done under the contract. When the first paragraph of the letter is read in this manner, as it must be, there is no ambiguity in' the meaning of the contract, and it clearly contemplates, not only that the kitchen and mess-hall equipment was to be delivered at said kitchen and mess-hall at Fort Logan H. Boots, but also that same was to be set in place and installed.

Now, the word “install,” in builders’ terminology, according to the undisputed evidence, means “to set in place, to connect up, and fix ready for use.” Therefore if the first paragraph of the letter were the whole contract, there would be no ambiguity whatsoever about it, and, under it, the appellant would- be bound to deliver and install the equipment — that is, to set the same in place, connect it up, and fix it ready for use.

But appellant’s agent, who prepared the contract and conducted the negotiations for the appellant, testified that he knew the meaning -of the word “install,” and that, in writing the contract, he had the specifications before him, and that appellant did not mean to install the equipment, but only to set the same in place, and that such is • the meaning of the contract when the first paragraph is considered in connection with the subsequent paragraphs. Appellant contends that the second paragraph of the contract, in which appellant says its offer does not include plumbing, gas-fitting or electrical work other than that which is a part of the specified equipment, and that each piece of equipment was to be set in place and position as designated by the blue-print submitted with the specifications by the architect, shows that it was the intention of the appellant only to set the equipment in place, but not to do the plumbing, gas-fitting or electrical work necessary to connect the same and fix it ready for use; in other words, that the contract does not bind the appellant to install the equipment ready for use, but only to deliver same and set it in place.

We cannot concur in this view of the contract. If such be the meaning of the paragraphs of the contract subsequent to the first paragraph, they are in conflict with the meaning clearly expressed in the first paragraph. It occurs to us that the subsequent paragraphs of the contract can be and should be construed as harmonizing with the meaning as clearly expressed in the first paragraph. When so construed, the second paragraph includes such plumbing, gas-fitting and electrical work as was necessary to install the specified equipment. Undoubtedly, the blue -print- furnished by the supervising architect of the government would show a-fully installed job —that is, with the equipment delivered, set in place, connected up, and ready for use. Otherwise the work when inspected would not have been accepted by the government. The contract specified that ten per cent, of the contract price might be held out by the appellee until the government inspected and accepted the work, which tends to show that the appellant contemplated that the equipment was to be installed by it -according. to the meaning of that term as set forth in the record. . . -

The concluding paragraph of the letter, in which the appellant assures the appellee of its desire to give the latter “good 'service and equipment,” tends to prove that the appellant was not only to furnish the equipment, but also the service necessary for its installation. Certainly, the contract, when taken as a whole, is susceptible of the meaning which the trial court- gave it, and if it can be. said, from the language of the contract as a whole, that such meaning is doubtful, the doubt must be resolved in favor of the appellee and against the appellant.

The judgment of the trial court is correct, and it is therefore affirmed.


text:
    North Arkansas Highway Improvement District No. 1 v. Greer.
    Opinion delivered March 10, 1924.
    1. Highways — damage to land by borrow-pits — jury questions. —In an action against a road improvement district created by Acts 1917, No. 213, and against road contractors for damages to ■ ■ plaintiff’s land sustained by reason of borrow-pits dug thereon by the contractors, the questions whether the land had been .- damaged ;by the digging of the borrow-pits, and- as -to the -amount of such damage, held for the jury.
    2. Highways — measure of damage to land. — The owner of land on which road contractors dug borrow-pits was entitled, as damages, to the difference betwieen the market value of the land before -the excavations were made and the market value thereafter, in view of its availability for any use to which it was plainly adapted, as well as the most favorable purpose for which it could be used to bring the highest market price.
    3.. .Highways — damage to land — benefits.—In an action, for damage to plaintiff’s la .id caused by borrow-pits dug by road contractors, the jury were properly instructed not to consider the benefits accruing to the land -by reáson of the building of the road, in fixing the amount of the damages.
    4. Highways — district’s liability for damage by contractor.— Under Acts 1917, No. 213, authorizing a road improvement district to build a road and providing for assessments and for furnishing borrow-pits to the contractors, the district was liable for damage to land by reason of the contractors digging borrow-pits thereon, where the taking of the land for that purpose was authorized by the district.

      Appeal from White Circuit Court;.E. D. Robertson, Judge;
    affirmed.

      W. D. Davenport, for appellant.
    The' damages were excessive. The measure of the damages was the value thereof at the time of the taking, not after the- road wfas completed. 103 Ark. 412. The district is a quasi-corporation, and is not liable for a tort, and the commissioners are limited to the payment of such claims as they are authorized under the law to pay. While the district can levy assessments, it cannot do so to satisfy judgments for torts against it, but only for the purpose for which it was organized. 110 Ark. 416; 94 Ark. 380; 95 ,Ark. 345.

      Brundidge é Neellg, for appellee.
    The dirt excavated was used in the construction of the' road, and the district is as much liable therefor as for gravel purchased. 140 Ark. 348, and cases cited.
   Wood, J.

This action was instituted by the appellee as executor of the estate of J. H. Greer, deceased, against the appellants, North Arkansas Highway Improvement District (hereafter called district) and Booth Brothers and Brown, contractors. The appellee alleged that the appellant unlawfully entered upon the lands of J. H. Greer, deceased, which are described, for the purpose of securing dirt to build the roadbed of the district, and dug four borrow-pits from fifty to -sixty feet wide and three feet deep; that the lands on which these borrow-pits were dug were valuable for building sites; that the ¡appellants negligently failed and refused to provide suitable drainage for the -surface water that would be dammed up on said lands by reason of the construction of the roadbed, and thereby caused the lands of the decedent to be flooded with water to such an extent as to render the same unfit for cultivation, to .the damage of his estate in the sum of $2,000,, for which appellee prayed judgment.

The appellants, in separate answers, denied the material ¡allegations of the complaint.

The appellee testified that he was the executor of the estate of J. H. Greer, deceased, and that the contractors constructing the road for the district went upon •the lands described in the complaint and dug four holes. The witness gives the dimensions of the holes or pits that were dug. He stated that the lands where the pits were dug were good building sites along the highway before the pits were dug; that the estate had been damaged in the sum of $1,050; that, if the contractors had taken the dirt out of the right-of-way ditch, where it should.have been taken from, and made the ditches of sufficient width and depth, the drainage would have been sufficient; that there was plenty of dirt on the right-of-way of the district to have made the fills without going upon the appellee’s land; that the borrow-pits and ditches as left by the contractors hold water the year round. Witness made complaints to the commissioners of the district, and they agreed to have the condition remedied. Two of the commissioners stated that the conditions in the contract had not been complied with in the digging of the ditches and borrowrpits, and that they would see that thé conditions complained of were remedied before they paid the contractors.

On cross-examination the appellee stated that he claimed damages only for the borrow-pits and the stagnant water. Witness told the contractors they might get .dirt off of the knoll of some other lands, but did hot authorize them to get the dirt off of the land in question. Appellee’s land would be worth $10 per acre more if the borrow-pits were not there. Witness did not know the difference between the value of the land before and after the digging of the pits, eliminating the building of the road, or before the road was completed.

Several witnesses testified to the effect that the digging of the borrow-pits rendered the land practically valueless for sale on account of the standing water in front; that the amount of damage done to the land was the amount it would take to haul dirt and fill up the pits. One witness testified that the water could have been drained off if the ditches had been properly constructed; that the pits were originally dug on high ground. There were between two and three -acres of ground taken.

One of the witnesses testified for the appellee to the effect that he had seen the borrow-pits on the Greer land, and that these pits rendered the land unsuitable for habitation because of the danger of malarial fever from'bites of mosquitoes bred from the pools of stagnant water -standing along the road.

The chairman of the board of commissioners of the district testified that the commissioners built the road under certain plans and specifications prepared by the engineers of the district, and that Booth Brothers were the contractors. They gave notice of the filing of the plans and specifications in the county clerk’s office, and also notice of the assessment of benefits and damages; that the commissioners of the district did not authorize the contractors to enter upon any land not belonging to the district without first making a settlement with the party before commencing the work. He exhibited the form of the contract upon which the work was done. There is a provision in this contract which allows the district to offset any damages it has sustained, by reason of the failure of the contractors to do the work according to the plans and specifications, against the compensation due the contractors for their work under the contract. This commissioner testified that the construction of the road caused the Greer land to be drier and more valuable than it was before the improvement was made; that the assessment of benefits was made before the ditches' and road had been built. This witness, on cross-examination, testified that the land in controversy would be more valuable if the borrow-pits had not been dug and if the ditches had been properly constructed.

• Booth, ia member of the firm of contractors, testified, among other things, that Greer told him to get all the dirt he wanted, and didn’t specify the place where to stop getting it. The land was worth ten or twelve dollars. anv acre before and about twenty dollars' an' -acre since the construction of the road. On cross-examination, witness stated that he did not directly ask Greer about getting dirt off of'the land in controversy; that the pits were some damage to the property. The engineer- of the road told the contractors to get the dirt from appellee’s land to save the overhaul.

There was other testimony to the effect that the land of the estate of Greer was drier and had been enhanced in value by reason of the construction of the improvement. One of the -members of the firm of engineers for the -district testified to the effect that the ditches were cut under the direction of his firm. The plans called for ditches to drain the highway, and not the people’s land along the highway. The land was drained better after the ditches were dug than before. Greer told witness that he had given the contractors permission to get dirt off the high places to make the fills. Witness knew that the contractors were getting the dirt off of Greer’s land. Witness identified § 77 of the contract between the -district and the contractors, which provided that, if there was not enough material within the right-of way to complete the grading, the contractor should furnish the additional material, and the land for borrow-pits was to be furnished by the district. “Where material is borrowed the contractor shall not excavate the borrow-pits below the general drainage level so as to form pockets or holes, nor shall he leave the -banks from which he has taken the material rough or uneven in line. All borrow-pits' shall be connected up with the general drainage scheme of the improvement so as to insure their being properly drained. ’ ’

Another one of the commissioners testified that there was an objection to the borrow-pits, and the board did not authorize the digging of them. It knew nothing of it until Greer complained about it, and he told them it was no fault of the board. The appellee didn’t complain about the land in question. The commissioners invariably settled with all parties for dirt before they took the dirt. ■ •

The court instructed the jury, in substance, that, if the appellants entered upon the lands -of Greer without right, .and made excavations thereon which damaged the lands, the appellee would be entitled to recover the difference between the market value of the land before the excavations were made and the market value thereafter ; that, in assessing the. damages, the jury would not take into consideration the benefits accruing to the lands by reason of the building of the road; that, before the .appellee could recover against the district, the jury must find that the district, through its duly authorized agent, .acting within the scope .of his authority, had authorized the contractors to go upon the land and'take the dirt therefrom; that, if the appellee authorized the contractors to go upon the land in controversy and remove the dirt, they would find in favor of the district as to damages from digging the borrow-pits.

The court refused to grant the district’s prayer for a directed verdict, and also refused a prayer to the effect that, before the appellee could recover, he must show by a preponderance of the evidence that the highway was not constructed according to plans and specifications .adopted by the district and approved by the Highway Department; and also to the effect that, if the commissioners gave notice for two weeks, in a bona fide newspaper, that they would hear any complaints filed with them, and that the appellee failed to file eomplaint for damages, he could not recover unless the jury should find that the road was not constructed according to plans .and specifications, which resulted in overflow and damage to the lands in controversy.

The jury returned a verdict in favor of the appellee in the sum of $400. Judgment was entered in favor of the appellee against the district and the contractors for that .sum, from which is this appeal.

1. ■ The appellant concedes that the appellee has been damaged by the digging of the borrow-pits upon the lands in controversy, but contends that the judgment is excessive. The issues as to whether or not the lands In controversy had been damaged by the digging of the borrow-pits and the amount of such damage, if any, were, under the evidence, issues for the jury. The jury might have found from the testimony of the appellee and his witnesses that the lands were damaged by the digging of the borrow-pits in the amount of the verdict. The appellee testified that the borrow-pits were dug on knolls that were good building sites along the highway and that the damages by reason of destroying these building sites would amount to $1,250. Other witnesses for the appellee testified to the effect that these borrow-pits rendered, the lands unsuitable for habitation because of the pools of stagnant water left standing along the highway; that, before the borrow-pits were dug, the water from the land dried up in the summer, but the holes caused by the borrow-pits did not dry up, and were consequently breeding places for mosquitoes all through the summer. There was substantial testimony to sustain the verdict of the jury, that the digging of the borrow-pits caused the damage to the lands in controversy, and also as to the amount of such damage.

These issues were submitted to th e jury under correct declarations of law.. The jury had the right to consider the value of the land taken or damaged for building purposes. “The measure of the owner’s compensation for the land taken or damaged is the market value thereof at the time of the taking for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be- used and will bring most in the market.” Fort Smith & Van Buren Dist. v. Scott, 103 Ark. 405-412, and cases there cited.

2. The district next contends that it is not liable because, under the terms of the act creating it, it is a gimsi-corporation, and is not liable for the torts -of the contractor, and that the taking or damage of Greer’s land for the.building of the road is a tort committed by the contractors, for which they are liable, and not the .district. -We do not concur with learned counsel for the district in this contention. The act under which the district was created contemplated that the owners of land taken, or damaged for the purpose of the improvement should be paid by the district. See act No. 213 of the Acts of 1917. The act is too long to set forth, but an examination of its various provisions will show that the commissioners had authority to make the improvement. For instance, § 17 provides that “there shall be assessed on the real property within the entire district such proportion of the assessment of benefits against the land in the entire district as will be sufficient to complete the improvements and pay all expenses of the district, with ten per cent, added for unforeseen contingencies; * * *. If the proportion of the assessment of benefits first levied is not sufficient to complete the improvement, the commissioners may make additional levies of such amounts as shall be sufficient to complete the improvement and pay all indebtedness of the district.”

The taking or damaging' of lands in the district for the necessary and proper construction of the improvement is not a tort. Section 77 of the contract between •the district and the 'contractors provides, among other things, “the land for borrow-pits shall be furnished-by the district.” Now, when notice was given,-.under •§ 10 ■of the act, of the filing of the' plans in the office of the ■county clerk of White County, and when notice was given of the assessment of benefits under § 12 of the act, the plans did not contemplate the taking of the land in controversy for borrow-pits. The necessity - for takingappellee’s land for borrow-pits, if there was such a necessity, developed after the benefits were assessed and after the improvement contemplated was begun.

The .district contends that the taking of appellee’s land for borrow-pits was a tort which the undisputed testimony proved was committed by the contractors, and for which they, but not the district, were liable. To sup.port this contention counsel for the district relies upon the authority of Board of Imp. of Sewer Dist. No. 2 v. Moreland, 94 Ark. 380; McCoy v. Board of Directors of Plum Bayou Dist., 95 Ark. 345; Wood v. Drainage Dist. No. 2, 110 Ark. 416. But appellant’s contention cannot be sustained, because the district, as we have seen, was authorized under the act to take appellee’s land for borrow-pits, if the necessity therefor existed, and it was an issue for the jury to determine, under the evidence, whether such necessity existed, and whether the district authorized the contractors to take the land in controversy for borrow-pits. These issues the court submitted to the jury under correct instructions. There was testimony to warrant the jury in finding that the district authorized the contractors to take the appellee’s land for borrow-pits. The undisputed testimony' shows that appellee’s land was taken for the improvement contemplated in thé’ creation of the district. While the district had the right to take it, it could not do so without just compensation to the appellee for the taking 'or for any damage sustained by him by reason of the building of the highway. Section 22, art. 2, Const. 1874. The law applicable to the facts as they might have been.found by the jury is announced by this court in Road Dist. No. 6 v. Hall, 140 Ark. 241-250, where, among other things, we said: “In the case at bar the land was taken after the assessment of benefits had been made, and pursuant to a section of the statute which gave the commissioners and the county court the right to change, or alter the width of the road. The road was widened and the land in question was taken for that purpose; It was used in the construction of the road, and the road district was liable for the damages sustained by the landowner by reason of such taking, and, under the statute,' the damages should be paid out of the funds of the district. ’ ’

• True, this action, as. we have stated, was instituted both against the district and the contractors. The appellees obtained judgment .against both, and' an appeal was prayed for and granted as.to both, but the contractors have not prosecuted their appeal to this court; at-least, have not favored us with a brief setting forth their contentions, and we take it they have abandoned their appeal; therefore the only question we are called on to decide is whether or not there is any error in the judgment in favor of the appellee against the appellant district, and we find there is none. The same is therefore ■ affirmed.