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

text:
    McKee v. Hendricks.
    Opinion delivered July 14, 1924.
    1. Fraudulent conveyances — right of grantor’s heirs and creditors to set aside. — Intestate’s mortgages to an innocent purchaser and conveyances of land to a friend, neither piece of property being required to pay his debts, held not subject to be set aside at suit of heirs and creditors, under Crawford & Moses’ Dig., § 70, as made to hinder and delay creditors.
    2. Fraudulent conveyances — right to set aside. — In a suit by heirs and creditors of an intestate, to set aside an alleged gift of a certificate of deposit, testimony as to intestate’s acts of dominion over the certificate after delivery thereof held to show that the transfer was intended to hinder and delay creditors and not to pass title.
    3. Evidence — statement of donor. — In a suit by heirs and creditors to set aside an alleged gift by intestate of a certificate of deposit, a prima facie showing being made of a conspiracy to hinder and delay creditors, testimony of intestate’s sister and brother as to his statements to them after the'gift was completed held admissible.
    4. Evidence — showing of conspiracy. — Evidence held to make a prima facie showing of a conspiracy in regard to a gift made to hinder and delay creditors, so as to render statements of the donor admissible against the donee.
    5. Gifts — intent to pass title. — While it is essential that possession be delivered in a gift, mere delivery without an intent to pass title is insufficient to complete a gift.
    Appeal from Howard Chancery Court; G. E. Johnson, Chancellor;
    reversed.

      DuLaney S Steel, and Will Steel, for appellants.
    1. This suit is brought under C. & M. Digest, § 70, and, as to the creditors, also under §§ 4874 and 4876, Id. The mortgage was a fraudulent conveyance, under the first named statute. The term “or otherwise” used therein, is sufficiently broad to include a fraudulent conveyance by mortgage. The court will look to the substance of the transaction rather than to 'the form, and will not permit that to be done indirectly which it would declare void if done directly. 52 Ark. 43; 106 Ark. 411; 136 Ark. 56. A subsequent grantee with notice of fraud stands in the attitude of the original grantee. 55 Ark. 116; 57 Ark. 573; 113 Ark. 101. The burden of proof is on the grantee to show sufficient property retained to pay debts. 55 Ark. 59. And a voluntary conveyance by one in debt is prima facie fraudulent. 91 Ark. 394; 124 Ark. 74. A gift to one occupying confidential relations will be scrutinized with the most jealous care (40 Ark. 28), and .the evidence to establish such a gift must be clear and convincing. 93 Ark. 548. Evidence as to subsequent possession and acts of ownership on the part of the vendor or donor is admissible on the point whether or not the gift was made. 10 Ark. 211. Likewise, prior and subsequent declarations of the donor are admissible on that issue. 14 Ark. 505; 50 Ark. 283; 15 Ark. 246; 59 Ark. 303.
    2. The delivery of the certificate of deposit, if made, was not a gift. The burden of proof was on the defendant to show that a gift in fact was made. 142 Ark. 308. As to the conveyance of the fifteen acres to Hendricks without consideration, the presumption, in the absence of evidence, is that he now holds as trustee for the heirs. And the preponderance of the evidence shows that in putting the money in the bank at Hope in the name of John B. Hendricks, it was the purpose of Lou Jones to use him merely as his bailee, and at all times thereafter to control the title and use of the money. The decision in Moore v. Waldstem, 74 Ark. 275, indicates that the purpose of the act of 1895 is to cover not only the! immediate grant, -but also those holding under the original grantee, and that, so long as one takes with notice of the fraud, the remedy is provided against such person. The mortgage was executed with intent to delay creditors, and, so long as the funds can be traced in to the hands of holders with notice, the heirs, in the name of the administrator, can recover it. Hendricks, in the beginning, was clearly the bailee for Lou Jones. That relation, once having been shown to exist, is presumed to continue. 22 Ark. 466. See also 93 Ark. 548; 13 S. W. 1101; 107 Ark. 581; 12 E. O. L. 469; Id. 470; 52 Ark. 459. Under these authorities, since the grantee in the mortgage was an innocent taker, • the loan, which was the property in a changed form, stood in substitution for the property fraudulently conveyed.
    3. 'The execution by Lou Jones of the $12,000 mortgage was the first step in conveying lands with intent to delay creditors. 12 E. C. L. 477.

      O. A. Graves and W. P. Feasel, for appellee.
    1. There was no fraud in the mortgage. There can be no fraud in the transfer of property if, at the time of the transfer, the grantor retains sufficient property to pay all his debts then existing. 8 Ark. 470 ; 29 Ark. 407. The contention that the mortgage was executed with a fraudulent design is inconsistent with the proof of the value of the farm mortgaged, which is shown by their own witnesses to be worth much less than the sum secured by Jones on the mortgage. The substitution of one asset for another as valuable by an insolvent debtor cannot prejudice or defraud the creditors, and is not a fraud upon them. 132 Ark. 268. Section 70, C. & M. Digest, relied on as authority for the administrator and heirs to bring suit, is in derogation of the common law, and should be strictly construed. It has been construed as conferring no right upon an administrator to’ bring suit for the benefit of heirs of a fraudulent grantor of personal property. 77 Ark. 60. If a creditor has not been injured or damaged by an alleged fraudulent transaction, he cannot complain. 30 Ind. App. 73, 63 N. E. 881. See also'31 Ark. 554; 20 Oye. 413; 18 Ark. 172.
    2. Under the authorities above cited, there was no fraud in the gift of the $9,500 by Lou Jones to Hendricks.
    3. - The creditors are not sincere in this case. It is apparent by the record that they have entered into an alliance with the administrator áncl heirs for the use of their names and their rights to thwart a disposition by Jones of his own property in the manner in which he desired it to go, and to divert it to uses that he tried to hedge against in his lifetime. They have no right, either in law or in equity, under the guise of enforcing their rights, to divert property to other uses than the pay-. ment of debts. 20 Cyc. 718; 19 Ha. 401.
    4. There was a completed gift to Hendricks. When Jones deposited the $9,500 in the bank at Hope in the name of John B. Hendricks, and gave him the certificate of deposit, the title to said money by that transaction passed out of Jones and vested in Hendricks. 79 Ark. 24; 43 Ark. 318; 93 Ark. 562; 59 Ark. 191; 152 Ark. 343; 155 Ark. 593.
    5. If the gifts were invalid as to creditors, they should not he disturbed except in so far as to protect them. 20 Cyc. 617, par. IY; 20 Id. 819; 59 N. W. 977; 66 S. W. 790; 74-Tex. '28; 109 Oal. 662; 118 Iowa, 238; 38 Barb. 302; 40 N. C. 47; 5 Fed. 752.
   Smith, J.

This suit was instituted in the chancery court of Howard County by the creditors and heirs of L. H. P. J ones and the administrator of his estate, for the benefit of the creditors and the heirs, to recover certain lands and the proceeds derived from the mortgage of others alleged to have been conveyed and mortgaged for the purpose of hindering and delaying his creditors in the' collection of their just demands. The suit was instituted under § 70, C. & M. Digest.

There was an amendment to the complaint alleging that there was never a completed delivery of the $9,500 hereinafter referred to, and that the possession thereof by appellee Hendricks was that of a mere bailee.

The intestate, J ones, referred to by the witnesses as Lou Jones, owned a farm of 600 acres, and he also owned a 15-acre tract of land and two lots in the town of Mineral Springs. In addition, he owned certain personal property, which the inventory of the administrator of his estate showed to be worth $1,300.

Jones had been a stockholder and director of a bank in Mineral Springs, which failed in May, 1921. He owed the bank, at the time it closed its doors, $850, evidenced by a note payable to the bank’s order. He owned $850 of the capital stock of the bank, against which a stockholder’s liability for that amount was being asserted by the State Bank Commissioner, who had taken over the bank.

There was some testimony that a suit was threatened by certain of the stockholders against the officers of the bank for mismanagement, and Jones appeared to have consulted a lawyer in regard to his possible liability on that account. This suit was never brought, however.

The bank was the depository for a large amount of public funds, consisting principally of money belonging to some road districts, but certain officers of the bank made good this deposit. This was not done, though, until after Lou Jones had mortgaged his farm.

Jones was shown to have felt resentful about the bank’s failure, and to have said that he would not pay his stockholder’s liability until he was compelled to do so, but he stated that he would pay if the court said that he must. A suit to enforce this liability and one on his note to the bank were pending at the time of his death, but judgments on these demands were not recovered until after his death.

Certain demands were probated against Jonés’ estate, and these, with the judgments in favor of the bank, totaled $2,066.28.

Jones had never been -married, and was survived by a brother, who was in impecunious circumstances, a sister, and the widow of a deceased brother, who left surviving him two infant children, and his stepmother. Jones was on the' most cordial terms with all these persons, and he spent a portion of the summer before his death in the fall with his sister-in-law, who resided in Oklahoma, and discussed with her the question of her accompanying him on his trip west for his health. - . •

Jones was suffering from consumption, and had been for about two years before his death, and he finally died from this disease. He lived principally with a Mrs. Hendricks,- whose son, a young man twenty-two years old, named John B. Hendricks, the defendant below, had been very attentive to him, and who had devoted much of his time to nursing and caring for Jones during the last two years of Jones’s life.

Jones applied for and obtained a loan on his farm amounting to $12,000, to secure which he gave a mortgage on the -farm, and he also executed a second mortgage on the farm to secure a loan of about $2,000. The testimony is very conflicting as to the value of this land. Certain witnesses testified that the mortgages on the land equaled its value, and that the equity of redemption was worth nothing. According to other witnesses, the land had not been mortgaged for more than half it value. After considering this testimony we have concluded that the equity of redemption was worth as much as $5,000.

After executing this mortgage, Jones gave John B. Hendricks a deed to the fifteen acres of land, and, shortly before his death, he also gave Hendricks $850 in cash. About the same time he conveyed one of the lots in Mineral Springs to his sister and the other to his stepmother. He also paid a small mortgage indebtedness due by his brother, Manning S. Jones, and he assigned - to his brother’s daughter a life insurance policy having a value of about $800.

After securing the $12,000 loan, Jones took a check for $11,982.41, which apparently represented the net proceeds of the $12,000 loan, to the Citizens’ Bank at Hope, Arkansas, where he had never before had any business of any kind. He there took a certificate of deposit payable to John B. Hendricks for $9,500, and deposited $500 to his own credit, and took a-cashier’s check payable to his own order for the balance.

Hendricks accompanied J ones to the bank when this was done. They returned to the home of Mrs. Hendricks, with whom her son, John B. Hendricks, lived. A sister of John B. Hendricks testified that, upon the arrival of Mr. Jones and her brother, Mr. Jones delivered the certificate of deposit to her brother, and stated at the time that he gave it to him. A number of other witnesses testified that Jones had told them that he had given the certificate of deposit to Hendricks, and there appears to be no doubt that he made this statement to a number of persons. The certificate of deposit was dated May 31, 1922. •

Judge Feazel testified that Jones’ stepmother was his wife’s aunt, and that Mrs; Jones had lived with him as a member of his family for fifteen years, and in this way he became very intimate with Lou Jones. A business matter called Judge Feazel to Mineral Springs, and, after attending to this matter, he called on Mr. Jones. This was about ten days before'Mr. Jones died. After a visit of about a half-hour’s duration, Judge Feazel started to leave, when Jones called him to .the sick-bed and said, “I have given a party some money, and I want to know whether it will stick or not.” Judge Feazel advised him that he could not tell unless he knew the manner in which it had been consummated. Jones told him that he had deposited the money in Hendricks’ name, and had given Hendricks the certificate of deposit, and that he after-wards had Hendricks convert the certificate into Liberty bonds. Judge Feazel advised Jones that he thought the transaction would be good against everybody except creditors, when J ones expressed his satisfaction by saying, “That is all I wanted to know.”

It will be observed that Judge Feazel had not called on Mr. J ones in a professional capacity, and his opinion was not sought until the visit was at an end, and no attempt was made to explain the details of the transaction to Judge Feazel; indeed, Judge Feazel testified that Jones was coughing to such an extent that Jones’ conversation was broken and was carried on with difficulty.

The testimony is conflicting as to Jones’ opinion as to his own condition. His physician had advised bim that he was in no condition to go west, as he contemplated doing, and, while Jones may have despaired of final and complete recovery, we do not think the testimony shows he was anticipating immediate death.

Jones went to Mineral Wells, Texas, and, on August 26,1922, he wrote the following letter:

“Mineral Wells, Texas, August 26, 1922.

“Hon. O. A. Graves, Hope, Arkansas.

“Dear sir: In regard to the $9,500 on time deposit at the Citizens’ National Bank of 'Hope, Arkansas. I have this, the 26th day of August, released all of my interest and claim to the above amount to John B. Hendricks.

“I want you to keep this as evidence in case anything ever comes up in court about the above.

“Witness my hand this the 26th day of August, 1922.

“(Signed) L. P. Jones.”

Jones called a notary public, before whom he subscribed and swore to the letter. After doing this, the notary suggested that the matter might be put in better form, and the notary prepared the following statement:

“First State Bank & Trust Company

“Capital One Hundred Thousand.

“Mineral Wells, Texas, August 26, 1922.

“For value received I hereby transfer and convey all right, title and interest to John B. Hendricks of Mineral Springs, Ark., in a time certificate of deposit given by the Citizens’ National Bank of Hope, Ark., for the sum of $9,500, made payable to John B. Hendricks.

“Witness my hand this the 26th day of August, 1922. By (signed) L. P. Jones.

“Subscribed and sworn to before me this the 26th day of August, 1922. (Signed) 'W. I. Smith, notary public, Palo Pinto County, Texas.” (Seal).

A Mrs. Hood was present when these instruments were signed and sworn to, and she and the notary testified that Jones stated at the time that he had given Hendricks the money referred to because Hendricks had rendered him long and faithful services.

Manning Jones, a -brother, and Ola Jones, a sister-in-law, of Lon Jones, testified to substantially the following effect: The relationship between them and their brother was intimate and affectionate. Their brother had never despaired of recovery. He talked with them frequently and freely about his business affairs, and’ told them about the mortgages on his land, but did not mention the alleged gift to Hendricks. Lou Jones expressed to them the fear that the bank failure might impoverish him, and he stated to them that he derived a fund by mortgaging his farm which would enable him to go west for his health, and by the purchase of the Liberty bonds he had provided an income upon which he could live.

The mortgages to the loan company cannot be set aside, because it is conceded that its attitude is that of an innocent purchaser, and it is the opinion of the majority that the deed to Hendricks for the fifteen-acre -tract cannot be set aside because it is not required to pay the debts of the intestate. The same thing may be said of the deeds to the town lots. It may also be said in regard to the deeds to the lots that they were not embraced in this suit, and there was no prayer that they be set aside.

The majority are of the opinion, however, that the alleged gift of the certificate of deposit should be set aside, for the reason that Jones never intended to pass title thereto.

It is, of course, conceded that Jones had the right to select the beneficiary of his bounty, and that, except as to creditors, he had the right to give his property to whom he pleased, and his heirs-at-law would have no right to complain that property had been given to a person who was not related in any degree to the donor.

It is true that Jones resided for the last two years of his life at the home of Hendricks’ mother; but he was there as a-boarder, and no contention is made that he did not pay full board. It is true also that Jones was under obligations to Hendricks, who had rendered him attentive and constant service. The relation between Jones and Hendricks was close and intimate, and Jones unquestionably regarded. Hendricks with a feeling of gratitude and affection. But it is also true that there was no estrangement between Jones and his brother and his sister and his sister-in-law, who was the mother of his deceased brother’s infant children.

It is the opinion of the majority that the conduct of Jones was as much influenced by 'the pending and threatening suits against him as by the condition of his health. The testimony shows that, long after the alleged gift of the certificate to Hendricks, Jones still entertained hope of recovery, or, at least, of prolonging his life, and, on the day of his death, spoke of going west for his health.

We have no doubt that Jones frequently stated he had given the money represented by -the certificate of deposit to Hendricks, and we doubt not that the conversation with Judge Peazel occurred just as Judge Peazel detailed it, but, as we have said, Jones did not attempt to detail the circumstances to Judge Peazel.

In the opinion of the majority of the court, Jones had given the certificate to Hendricks, but he had not done so for the purpose of passing the title. There was confidence and understanding between Jones and Hendricks, and there was compensation to Hendricks, for he was given a deed to the fifteen acres in the town of Mineral Springs and $850 in cash, and what else may have been given him the testimony does not disclose.

If there was ever a gift, it was consummated at the home of Mrs. Hendricks, in the presence of Hendricks’ sister. Jones then and there stated he had given the certificate to Hendricks and delivered it to him. If there had been an intention to pass the title, that intention became irrevocable on the delivery of the certificate, yet the testimony is that, on more than one occasion after that, Jones spoke of the government bonds, which had been purchased with the proceeds of this certificate, after it was cashed, as his own, and he stated why he bought them and the use he intended to make of the interest derived from them. It is true also that, when Jones decided to cash the certificate, he told his brother Manning that he was going to do so, and, at his request, Manning Jones went with Hendricks to Hope to cash the certificate and bring the proceeds to Mineral Springs. This was done September 20, 1922, which was, of course, subsequent to the execution of the instruments at Mineral Wells, Texas, set out above, the date of those instruments being August 26, 1922.

• Notwithstanding the circumstances -detailed, we would feel that there was such doubt about Jones’ intention in delivering the certificate to Hendricks that we would not disturb the finding of the chancellor as being clearly against the preponderance of the evidence; but there was offered in evidence a letter, which admittedly was written by Jones, which tips the scale and makes the finding of the chancellor appear to the majority to be clearly against the preponderance of .the evidence.

As we have said, the deposit was made May 31, 1922, and that night the certificate was delivered to Hendricks at the home of his mother, in the presence of his sister, yet on June 16,1922, he wrote the following letter :

“6-16-22.

“John Burton: I call Gus Graves at Hope the night I was there and told him to write you or me at M. S. about the matter we have been talking about. If he has got the kind that he thinks is best for us, I want you to go to Hope and take the slip of paper, you know, and have them to wire for the full amt. you have; and if it costs more than 100 cts. on the $1, that you draw on my act. for the dif.

“You may be sure to take this and let Gus Graves see it, and he will understand what I mean. I also want to rent a safe deposit box, and when they come you can go down to Hope and put'them in it. You be sure and understand just what I mean. I think I want the 4 and a quarter. B’s of 1936, but Gus will advise you best. (Signed) Lou.

“Don’t let anybody 'know anything.”

We think this letter is incompatible with the idea that Jones had relinquished dominion and control of the certificate, although he had parted with its possession. He knew what the certificate was, but he did not refer to it as such; it was called a slip of paper, manifesting a purpose to conceal what he had done and was intending to do. The postscript was an additional admonition to secrecy.

Fearing that he might not be able to buy $9,500 in bonds for the $9,500 certificate, he proposed to pay out of his own funds the “dif.,” which manifestly meant difference. He g*ave detailed directions as to the kind of bonds he desired to buy, and, recognizing their value, he gave directions about renting a safe deposit box, obviously for the purpose of keeping them securely, and this box was to be rented for himself, and not for Hendricks. It is true the bonds, when purchased, were registered in the name of Hendricks, but the majority think this was done pursuant to the understanding that Hendricks should hold them as bailee for Jones.

The transaction was to be explained, s°o the letter directed, to Jones’ friend and attorney, who would understand the transaction between the parties. No reflection of any kind is implied in this statement, as the attorney referred to was serving his client in a legitimate and proper manner. This attorney, who is also an attorney of record in the case, but not a party to the litigation, did not testify, as he might have done, and have refuted the testimony of other witnesses that Jones was seeking to provide a fund which creditors could not reach, and which would enable him to go west for his health. If Jones had in fact given the certificate to Hendricks on the day he delivered it to him, the instruments signed and sworn to by Jones in Mineral Wells on August 26, 1922, were unavailing. Those instruments recite that he that day — August 26 —gave the certificate to Hendricks, whereas, if there was a gift at all, the gift had been consummated four months before. And while it is true that the notary who took the affidavits to the instruments executed in Mineral Wells, Texas, as well as Mrs. Hood, who was present at the time, both testified that Jones stated he was giving the money to a friend who had rendered him invaluable service, Jones also stated to the notary that he had a friend who was a lawyer who would understand the letter and transfer.

Another circumstance in the case which shows that Jones was contemplating putting his property beyond the reach of his creditors, if judgments were recovered against him, which he was not willing to pay, is that he took his leases and other contracts with his tenants on his farm for the year 1922 in the name of Hendricks, and no contention is made that Hendricks was given any interest in the farm itself.

It is urged that the testimony of Manning Jones and that of Mrs. Ola Jones, as to statements made to them by Jones after the alleged gift, was inadmissible, and should not be considered; but we are of the opinion, however, that these statements are admissible upon the theory that a prima facie showing of a conspiracy between Lou Jones and Hendricks had been made, and that this conspiracy was to cover up assets of Lou Jones until the pending and threatening suits were disposed of, and this conspiracy had not been consummated at the time of Lou Jones’s death.

The case of Cox v. Vise, 50 Ark. 283, was an action by the assignee of an insolvent merchant against an officer to recover a stock of goods assigned for the benefit of creditors, and subsequently seized by the officer under an order of attachment obtained against the assignor by one of his creditors on the ground of fraud in disposing of his property. There, was evidence having a tendency to show that the assignor and the plaintiff confederated together to defraud the former’s creditors. Certain declarations of the assignor tending to show fraudulent intent, made after the assignment but while the assignor was engaged in the prosecution of the conspiracy, were objected to; but the court held these declarations were admissible, although made after the execution and delivery of the deed of assignment. The court there said: ‘‘ The statements made by Hamilton (the assignor) testified to by Childs, were made after the execution and delivery of the deed of assignment. It is well settled that the declarations of a party to a sale, transfer, or assignment, going to impair the vested rights of one claiming under him, and made after the sale, transfer, or assignment, are inadmissible. The reason of the rule is: ‘After a vendor has parted with his property he has no more power to impress the title, by either his acts or his declarations, than a mere stranger.’ But there is an exception to this rule. It is ‘that when a fraudulent combination is established, the acts and declarations of any one of the parties thereto, while engaged in the prosecution of the common design, may be proved against the others. ’ They are competent evidence to show the intention of the parties. Before such declarations are admissible under the exception to the rule, ‘a foundation must be first laid, by proof, sufficient, in the opinion of the judge, to establish, prima facie, the fact of a conspiracy between the parties, or proper to be laid before the jury as tending to establish' such fact.’ Evidence of ‘a very slight degree of concert or collusion’ will be sufficient. Mr. G-reenleaf, in treating of this subject, lays down the rule as we have stated it, and adds: ‘ Sometimes, for the sake of convenience, the acts .or declarations of one alleged conspirator are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this rests in the discretion of the judge, and is not permitted, except under particular an'd urgent circumstances, lest the jury should be misled to infer the fact itself of the conspiracy from the declarations of strangers.’ It is obvious, from the rule 'and exception, as stated, that no reversible error, or error prejudicial to an appellant, can be committed, if, subsequent to the admission of the evidence of the declarations, evidence tending to establish the conspiracy or confederacy were afterwards introduced. If evidence of the declarations was admissible in any order, as shown by the evidence, no injury could have been done by not having observed the order. But, as said by Mr. G-reenleaf, the ordinary practice should not be departed from, ‘ except under particular and urgent circumstances.’ (Numerous cases cited).”

It is the opinion of the majority that, when the testimony is considered in its entirety, a valid gift, was not shown. While it is essential that possession be delivered, mere delivery is not sufficient. There must be an existing intention accompanying the act of delivery to pass the title, and, if this does not exist, the gift is not complete. Carter v. Greenway, 152 Ark. 339; Ammon v. Martin, 59 Ark. 191; Hatcher v. Buford, 60 Ark. 169; Lowe v. Hart, 93 Ark. 548; Harmon v. Harmon, 131 Ark. 501; Gordon v. Clark, 149 Ark. 173; Lehman v. Broyles, 155 Ark. 593.

The majority do not think that Lou Jones ever surrendered or intended to surrender dominion and control of this certificate or of the bonds into which it was converted, and the gift was therefore never consummated, and the court below erred in holding to the contrary.

The court below, after deciding there was a valid gift, directed Hendricks to deposit in the registry of the court the sum of $2,000 in cash to insure the payment of the debts. This was done, and that sum is available for that purpose. In addition, the administrator in his inventory shows assets of the value of $1,300.

Thus there is available a sum more than sufficient to pay all the debts, and, this being true, the creditors are not concerned about the deeds or the mortgages, and the heirs have no right to complain about the deeds or the mortgages. This is true now because the $2,000 refunded by Hendricks, which was a part of the alleged gift of $9,500, together with the assets in the hands of the administrator and the value of the equity of redemption in the lands, suffices to pay the debts. In other words, Jones was in fact a solvent man, and, as such, had the right to dispose of his property in the manner herein stated. But his apprehensions about the suits, which were never brought, to enforce a possible contingent liability, caused him to conspire with appellee Hendricks to conceal the certificate of deposit and the proceeds thereof, and, in the opinion of the majority, there was never any intention to vest in Hendricks the title to the $9,500.

The decree upholding the gift to Hendricks of the certificate is reversed, but, in all other respects, it is affirmed, and the cause will be remanded with directions to set aside the finding that there had been a gift of the $9,500 to Hendricks, and. to enter a decree directing’ Hendricks to pay the $9,500 over to the administrator of the estate of Jones.

The relief here awarded is not granted under the provisions of § 70, C. & M. Digest, but under the allegations of the amended complaint (which the majority thinks the testimony sustains) that there was never in fact a gift of the $9,500, and that such possession thereof as Hendricks had was that- of a mere bailee.

McCulloch, C. J.,

(dissenting). I am unable to agree with the conclusions of law announced by the majority, that the testimony of certain witnesses introduced by appellants tending to prove the statements of the donor, Jones, after the consummation of the alleged gift, was admissible. It is elemental in the law of evidence that the declarations of a party to a sale or gift or other transfer of property, made after its consummation, tending to impair vested rights under such transfer, are, with certain exceptions which I do not think apply to the present case, inadmissible. It is unnecessary to cite authorities in support of that proposition, for the principle is clearly announced in the very decision on which the majority rely. Cox v. Vise, 50 Ark. 283. The exception to the rule found in that case does not apply to the present one, for that was a contest between the assignee and the creditors of an alleged frandnlent grantor concerning the validity of the assignment. Creditors of a fraudulent grantor do not, after the grant, stand in privity with the grantor, but their relation is a hostile one, and they have the right to prove, as long as there exists a conspiracy between the fraudulent grantor and his grantee, declarations of the former tending to impeach the good faith of the transaction.

In the present case, however, appellants are heirs of the donor, Jones, and do not stand in- any such relation, for they can assert only such rights as Jones himself could have asserted if alive. If Jones were alive and was suing for the recovery of the personal property involved in this controversy on the ground that it wias a bailment and not a gift, it would scarcely be contended that proof of his own declaration after the consummation of the gift would be competent evidence against his alleged donee. Since it is seen that appellant stands in no better attitude that Jones himself would have stood* it necessarily follows that this testimony was not competent.

This testimony is conceded to be important, and is considered by the court as turning the scales in favor of appellants. Without this testimony in the case, I am clearly of the . opinion that the weight of the evidence is not against the finding of the chancellor on the issues of fact, but that the preponderance is clearly in favor of the chancellor’s finding.

The letter of Jones to appellee, dated June 16, is not without some force as tending to show that the money was turned over to appellee pursuant to a plan to defraud Jones ’ creditors, but whatever appears froin the recitals of that letter tending in that direction is entirely overcome by the other testimony as to subsequent declarations of Jones, clearly manifesting his intention to make a gift to appellee, rather than a mere bailment for the purpose of hiding the property from creditors. Whatever may have occurred theretofore, the written declarations of Jones in his sworn statement, dated August 26, 1922, evidences in the most solemn manner his intention to make an absolute gift to appellee of the property in controversy.

My conclusion therefore is that the decree should be affirmed, and I am authorized by Mr. Justice Hart to say that he shares the views here expressed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Lomax v. State.
    Opinion delivered July 14, 1924.
    1. Criminal law — motion for new trial — indefiniteness.—A motion for new trial upon the ground of testimony “which was incompetent, irrevelant and immaterial to the issues involved,” not naming witnesses nor pointing out evidence, was too indefinite to present any question for review on appeal.
    2. Homicide — instruction as to burden of proof. — In a prosecution for murder, an instruction that, if defendant killed deceased, the burden was upon him to establish self-defense, unless the State’s evidence showed it, was not erroneous, in the absence of a specific objection.
    3. Homicide — -abstract instruction. — In a murder prosecution refusal of defendant’s instruction that, if deceased fell against his knife, causing his death, defendant would not be guilty, was not erroneous where there was no evidence on which to base such instruction.
    4. Homicide — self-defense¡—instruction..—In a prosecution for murder, an instruction that, if defendant voluntarily entered into a combat and killed deceased, he could not take advantage of a necessity brought about by his own unlawful act, was not objectionable as assuming that defendant unlawfully and wrongfully killed deceased.
    5. Homicide — instruction as to self-defense. — In a murder case, an instruction that, if defendant was the aggressor, he could not plead self-defense unless he first, in good faith, undertook to withdraw from the combat and avoid the danger and avert the necessity of the killing, was not erroneous, where the evidence would have sustained -a finding that either one of the parties was the aggressor.
    Appeal from Mississippi 'Circuit Court, Blytheville District; George E. Keck, Judge;
    affirmed..

      E. E. Alexander and Orville Zimmerman, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
   Hart, J.

Walter Lomax prosecutes this appeal to reverse a judgment and sentence of conviction against him for voluntary manslaughter. His punishment was fixed by the jury trying him at six years in the State Penitentiary.

It is first insisted by counsel for the defendant that the court erred in allowing certain questions to be aslced and answered by the defendant on cross-examination.

We need not set out this testimony, because the assignment of error with regard to it is too indefinite. The only ground in the defendant’s motion for a new trial upon which an assignment of error with regard to the admission of testimony could be based is the following: “Because the court erred in admitting testimony which was incompetent, irrelevant, and immaterial to the issues involved in said cause.”

This court has frequently held that a motion for a new trial on the ground that the court erred in admitting evidence on the part of the defendant, without naming the witnesses or pointing out the evidence, is too general, and does not present any question for review on appeal. Edmonds v. State, 34 Ark. 720; Western Union Tel. Co. v. Duke, 108 Ark. 8, and cases cited; and Black v. Hogsett, 145 Ark. 178.

The next assignment of error is that the court erred in giving instruction No. 21, which reads as follows:

“You are instructed that, the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the defendant, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

No specific objection was made to this instruction. The instruction follows the language of the statute, and, in the absence of a specific objection, it only amounts to telling the jury that, if it should find that the defendant killed the deceased, then the burden of proof was upon him to establish self-defense, unless the evidence for the State showed it. Wilson v. State, 126 Ark. 354, and Sheppard v. State, 160 Ark. 315.

The next assignment of error is that the court erred in refusing to give instruction No. 7 requested by the defendant. The first part of the instruction deals with the subject -of drunkenness as a defense to crime, and there is no objection to the instruction in this respect. The instruction, however, concludes with the following:

“Or, should you find from the evidence that, while defendant so held his open knife in his hand as aforesaid, if you so find, that deceased, in fighting the defendant, rushed or fell against said knife, causing his injury and death, as shown by the evidence, you will then acquit the defendant.”.

There was no testimony upon which to predicate such an instruction. To have given it to the jury would only, have served to confuse and mislead them. The proof on the part of the State, briefly stated, is that the defendant, the deceased, and two companions took an extensive automobile ride in Mississippi County, Arkansas, on the night of the 8th of March, 1924. They all drank freely of moonshine whiskey, and the defendant and the deceased both became very drunk. The defendant was thirty-five and the deceased twenty-two years of age. They were warm friends, and the defendant had lived for a time at the home of the deceased’s mother. One of them, it does not appear from the evidence which one, demanded that the car should stop so that they might fight. The car was stopped, and the deceased got out of it first. The defendant immediately followed him, and in a short time came around and thrust his hand through the curtain on the front seat of the automobile. He had an open knife in his hand, and the occupants of the front seat took it away from him. The driver then got out, and called the deceased a few times. He failed to answer, and they drove on without him. On the next morning the body of the deceased was found where he had got out of the car, and it was discovered that the deceased’s throat had been cut in the fray, and that he died as the result of it a few minutes afterwards. A great quantity of blood was found on his clothes and body, and it seems that he must have bled to death a short time after he was cut in the neck.

According to the testimony of the defendant, he was so drunk that he did not remember having cut the deceased, or even of having a fight with him. In fact, he says that he did not remember anything after he got out of the ear. When he returned to the car, there was a bruise on his lips, which had evidently been inflicted by the deceased. This brief summary of the evidence shows that the question of the deceased’s falling on an open knife in the hands of the defendant was not in the case. The parties engaged in a mutual combat, and the jury, by returning a verdict of manslaughter, evidently thought that the fight was the result of their drunken quarrel, and not on account of any previous ill-will or malice towards each other. This view is strengthened by the fact that the deceased and the defendant had been warm friends and associates. There was room for dispute about which one was the aggressor, but there was no testimony from which a fair legal inference could have been drawn that the deceased was killed as the result of accidentally falling upon the knife in the hands of the defendant. The place where he was cut, the severity of the blow, and all the attending circumstances show that this view of the matter could not be supported by any fair legal inference from the evidence.

It is well settled in this State that courts are not required to give instructions upon questions about which there is no evidence, and thus divert the minds of the jury from the real issues in the case. In this connection it may be stated that the court gave the jury 'proper instructions on the question of drunkenness as a defense to crime.

It is next insisted that the court erred in giving instruction No. 26, which reads as follows:

‘ ‘ Gentlemen, this instruction that I gave you a few minutes ago, which had in it, ‘if the defendant sought out the deceased for the purpose of bringing on the difficulty,’ I am withdrawing from you about ‘seeking out the deceased for the purpose of bringing on the difficulty,’ for there is no testimony to that, that he sought out the deceased, and that part of the instruction would be abstract. The instruction would read, ‘if you find from the evidence in this case, beyond a reasonable doubt, that the defendant provoked or brought on, or voluntarily entered into, the difficulty, and, when he did so, killed his assailant, he cannot shield himself on the plea of self-defense; he cannot take advantage of the necessity produced by his own unlawful or wrongful act, ’ ’

It is contended by counsel for the defendant that the clause “he cannot take advantage of the necessity produced by his own unlawful or wrongful act,” unqualifiedly tells the jury that the defendant acted unlawfully and wrongfully in killing the deceased.

We cannot agree with counsel in this contention. The instruction, when considered as a whole, does not assume any fact, but it leaves it to the jury to find whether the defendant voluntarily entered into the difficulty, and also whether or not he killed the deceased. The instruction simply -tells the jury that, if he voluntarily entered into the difficulty and killed the deceased, he cannot avail himself of the plea of self-defense, and cannot take advantage of the necessity brought about by his own unlawful act. In other words, it tells the jury that, if the killing resulted from a voluntary quarrel and mutual combat entered into by the parties, this would be a wrongful act, and the defendant could not avail himself of the plea of self-defense.

The next assignment of error is that the court erred in giving instruction No. 20, which reads as follows:

“You. are further instructed, that, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant was the aggressor, then you are told that he cannot shield himself on the plea of self-defense unless he first, in good faith, undertook to withdraw from the combat and avoid the danger and avert the necessity of the killing.”

It is claimed that this instruction is erroneous because there is no evidence that the defendant was the aggressor. We cannot agree with counsel in this contention. The deceased and the defendant were on the back seat of the automobile. Their companions on the front seat testified that they began quarreling, and that one of them told the driver of the car to stop it; that they were going to fight. The deceased got out first, and then the defendant got out. The driver then saw the defendant reel back in the light, as if he had received a blow. They both disappeared from his sight, and then the defendant came around to the side of the car and said, “Where is the son of a bitch?” At the same time he thrust his hand through the curtains of the car, and had an open knife in it. The knife was taken away from him.

Under this state of the record the jury might have inferred that either one of the parties was the aggressor. Hence there was no error in submitting this question to the jury. The court gave proper instructions on the various degrees of homicide and on the question of reasonable doubt. As above stated, it also gave proper instructions on the question of drunkenness as a defense to homicide.

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


author: McCulloch, C. J.

text:
    Fly v. Fort Smith.
    Opinion delivered July 14, 1924.
    1. Criminal law — conviction of two offenses. — Where appellant was convicted in municipal court on a dual charge of being drunk and transporting whiskey, the amount of the fine indicating that it was imposed for the latter offense, he could not, on appeal to the circuit court, be convicted of transporting whiskey and also for drunkenness.
    2. Criminal law — misdemeanor—necessity of written charge.— In a prosecution for .transporting whiskey, in which appellant was arrested for an act committed in an officer’s presence, and the charge in the municipal court was for being drunk and for transporting whiskey, on appeal to the circuit court, demurrer on the ground that the charge was indefinite was properly overruled, as an information setting forth the facts in detail was unnecessary.
    3. ■ Intoxicating liquors — transportation—evidence.—E vidence held sufficient to warrant a finding of illegal transportation of whiskey.
    4. Criminal law — failure to introduce city ordinance in evidence. — Where appellant was convicted in municipal court of transporting whiskey, failure of the prosecution on appeal in the circuit court to prove a municipal ordinance was immaterial, since a conviction could he sustained under Crawford & Moses’ Dig., § 6165.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed in part.

      T. 8. Osborne and E. M. Ditmcm, for appellant.

      George W. Dodd, for appellee.
   McCulloch, C. J.

Appellant was arrested on a street-car in tbe city of Fort Smith by one of the police officers of the city, and, after being lodged in jail, he was taken into municipal court by the officer, and the charge preferred against him of “being drunk, and transporting whiskey.” The record of the municipal court recites the above facts, and also recites that appellant “pleaded not guilty, whereupon he was tried, convicted and fined $110, and the further sum of $7.50 as cost in the said case.” Appellant filed his affidavit and bond for appeal, and prosecuted an appeal to the circuit court. When the cause came on for hearing in the circuit court, the attorney for the city put appellant on trial on the -charge of transporting whiskey. The trial was before a jury, and the jury found appellant guilty and imposed a fine of $125. Appellant was, over his objection, then put on trial on the further charge of drunkenness, and that trial resulted -in appellant’s conviction and the imposition of a fine of $25. He has prosecuted an appeal from both judgments.

We think that the court was without jurisdiction to put appellant on trial in the circuit court for two offenses, inasmuch as there had been only one judgment of. conviction in the municipal court. The city might have preferred two charges against appellant, one for drunkenness and the other for transporting whiskey, but there was only one trial and one conviction, hence the circuit court acquired jurisdiction to hear and determine but one charge. This was necessarily the charge of transporting whiskey, because the fine imposed in the municipal court was in excess of the authorized fine for drunkenness.

There was a demurrer filed in the circuit court on the ground that the charge was indefinite, but the court overruled the demurrer, and that ruling is assigned as error. The ruling was correct because, the arrest having been made by an officer for an offense committed in his presence, it was unnecessary to file any information setting forth in detail the facts constituting the offense.

At the commencement of the trial the city attorney announced that appellant was on trial on the charge of transporting whiskey, and proceeded to introduce testimony .to support that charge. The officer who madé the arrest testified that he found appellant on a street-car in an intoxicated condition, and that he had a bottle of whiskey in his pocket. Appellant denied that he was intoxicated at the time he was arrested, and undertook to explain the presence of the bottle of whiskey in his pocket by saying that he found the bottle under a seat in the street-car, and put it in his pocket, and that he had no knowledge of the contents of the bottle. We think that the evidence was sufficient to warrant the jury in finding that appellant was transporting whiskey in violation of law.

It is also contended that the record does not sustain the conviction in that the city ordinance was not introduced in evidence. It is sufficient answer to that contention to call attention to the fact that the charge against appellant constituted a violation of the statutes of the State (Crawford & Moses’ Digest, § 6165) against transporting liquor, and, even if there was no ordinance of the city, the conviction could he sustained under authority of the statute. Marianna v. Vincent, 68 Ark. 244.

It is also insisted that the evidence falls short of being sufficient to sustain a conviction for the reason that it fails to show that appellant was transporting the liquor from one place to another. In other words, the contention is that he merely picked up the liquor and was carrying it along with him without any intention of transporting it to any definite point. Counsel rely on the case of Locke v. Fort Smith, 155 Ark. 158, as sustaining their contention. In the Locke case the proof showed only that the accused was in an automobile with a friend, and picked up a bottle of whiskey and put it in his pocket, and there was nothing to show that he intended to transport it to any given place, the inference being that he was merely carrying it around to drink as he rode about with his friends. We held that, under the statute, there must be a transportation of the intoxicant from place to place. The facts in the present case are different. Appellant was in a street-car, presumably destined to some point, and he had the whiskey in his pocket, so the jury had the right to infer that he was transporting the whiskey to his place of destination from some other point. The inference might have been drawn, in other words, that the transportation of the liquor was from place to place, and not merely for the purpose of carrying it along with him to drink as he pursued his journey.

We find no error in the record with respect to the charge of transporting liquor, and the judgment of the court on that charge is affirmed.

The judgment of the court on the charge of drunkenness is, however, reversed, and the cause dismissed as to that charge.


author: W'ood, J.

text:
    Ætna Life Insurance Company of Hartford Conn., v. Duncan.
    Opinion delivered July 14, 1924.
    1. Pleading — motion to make more specific properly denied. — In an action on a life insurance policy, the court did not err in denying insurer’s motion to make the complaint more specific where it alleged the issuance of the policy, payment of premiums, insured’s death, and beneficiary’s compliance with the policy as to notice of death and demand of payment, which was refused.
    2. Insurance — mode of proving death.' — Where a life insurance policy did not require that proof of death should be made in any particular manner or at any particular time, any method is sufficient which serves to furnish insurer with notice and proof of insured’s death.
    3. Insurance — proof of death — sufficiency.—Evidence that beneficiary’s attorney had written to insurer at its home office, notifying it of insured’s death, together with a telegram of insurer to its general manager, held to show that insurer had notice of insured’s death.
    4. Insurance — waiver of proof of death of insured. — Where an insurer had aetual notice of insured’s death, its denial of liability, not predicated on a failure to furnish proof of loss, and its failure upon request to indicate that further proof would be required, waived any right to other or further proof of death.
    5. Insurance — reinstatement of policy. — Where insured had permitted a life insurance policy to lapse because of nonpayment of premium, his offer to pay part of premium in cash and to sign a note for the balance if insurer would reinstate his policy, when accepted by the insurer and executed by him, reinstated the note.
    6. Insurance — waiver of provisions of policy. — Provisions in a policy made for the benefit of the Insurer may be waived by it.
    7. Insurance — death of insured before delivery of note.— Where insured was killed after he had executed a note in part payment of a premium of life insurance but before he had delivered it, such fact was immaterial, since, in signing the note pursuant to the agreement to reinstate it, he bound his estate for its payment as if he had delivered it to insurer before his death.

      Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      J. A. Sherrill, for appellant.
    The court erred in giving a peremptory instruction in favor of the plaintiff. Where the insurer and the insured, by their acts, indicated that they considered a policy of insurance as having lapsed, the court will follow the construction of the contract adopted by the parties themselves. 109 Ark. 17; 6 E. C. L. 616. Authority to solicit insurance, receive and write applications, forward them to insurer’s general -office, receive and deliver policies and collect premiums, would not empower an agent to continue in force a policy which, by its terms, had become null and void because of nonpayment of premium when due, nor to waive proof of loss within the time and manner prescribed by the policy. 85 Ark. 337; 14 E. C. L. 986. Death of a party before acceptance of an offer is communicated to offerer is invalidated by lapse. 9 Cyc. 293. If payment of premium has not been made before the death of the assured, the policy is forfeited, and no tender to or acceptance' by an agent authorized only to receive premiums will defeat the forfeiture. 90 111. App. 576. If check is given as conditional payment only and is not in fact paid-until after the death of the insured, there can be no recovery. 7 Ont. A. M. 171. There can be no reinstatement after the death of the insured, while the policy is suspended on account of default. 90 111. App. 576; 86 S. W. 618; 93 S. E/60; 95 Va. 579; 29 S. E. 328-, 83 Fed. 631. An offer to restore on receipt of a premium in default, if sent at once, is not a continuing offer, and delay in taking-advantage of the offer defeats the privilege. 24 N. W. 604. Intention to deliver, not carried out, will not constitute a delivery. 54 S. W. 414. Delivery is necessary to divest the title of the legal owner of a note. 7 Ark. 376; 17 Ark. 96. ' Though a contract is signed by a party, it is not executed -until delivered. 122 -S. W. 384. The theory that the premium as it becomes due is a debt is a fallacious one and leads to erroneous conclusions. A debtor is under obligation to pay. Here no obligation exists. Payment of premium is entirely optional with bim who is to pay. 41 Conn. 372; 73 N. Y. 480.

      Gray & Morris and Emerson é Bonham, for appellee.
    Tbe court will not explore tbe record to discover an error of the trial court where the appellant neglects to set it out in his abstract. 88 Ark. 449; 100 Ark. 328. No matter what the form of the notice of loss may be, if it operates to bring the attention of the insurer to the loss it is sufficient, and, where the nature of the notice is not prescribed, it may be oral. 14 R. C. L. 1338; 33 C. J. 16; 195 S. W. 535; 5 Joyce on Insurance, § 3277, p. 5470. A denial of liability, not predicated upon the failure to furnish the proof of loss, is a waiver of a defense upon that ground. 94 Ark. 21; 79 Ark. 266; 121 Ark. 422; 58 So. 345. Where the minds of the insured and insurer, for a valuable consideration, have met upon all terms of the contract, the contract is complete and enforceable. 66 Ark. 612; 149 Ark. 257; 149 Ark. 517; The general agents did not exceed their authority. 76 Ark. 328; 126 Ark. 360; 94 Ark. 578.
   W'ood, J.

This is an action by Mrs. Rozell Duncan against the ¿Etna Life Insurance Company (hereafter called company), on a policy of life insurance issued by the company on November 11, 1920, insuring the life of her husband, Jerry C. Duncan, in the sum of $6,000, in which policy she was named as the beneficiary. She alleged the death of her husband on June 17, 1922, set up the policy, and alleged that the premiums had been paid; that the company had due notice and proof of death, and had refused to pay the amount due on the policy. The company moved to make the complaint more definite and certain by stating the date on which the last premium was due and the date upon which it was paid, if paid, and the date and manner of delivery of said payment, and whether the consideration was other than cash, and moved to require the plaintiff to exhibit all original letters from the company, or to state their substance, or to state the substance of the agreement, if verbal, to accept the consideration for the premium. The court overruled the motion.

The company answered, admitting the issuance of the policy, but denied due notice and proof of death, and denied that the premium necessary to keep the policy in force had been paid before the death of Duncan, and averred that the policy therefore had lapsed, and had never been reinstated, and denied liability on the policy. The policy was introduced by the plaintiff.- Without setting forth all of its provisions in haec verba, those material to this controversy are in substance as follows:

In consideration of an annual premium of $134.76 to be paid in advance, at its home office or to its agent, on the 11th day of November in each year, during the life of the assured, it insures the life of Duncan in favor of his wife in the sum of $6,000, payable upon receipt at the home office of due proof of the death of Duncan. If any subsequent premium was not paid when due, then, after the grace period of thirty-one days, the policy lapsed. The policy provided that, within five years after default in any premium payment, it could be reinstated upon evidence of insurability satisfactory to the company and the payment of arrears of premiums, with interest at the rate of six per cent, per annum.

The policy contained these further provisions: “No renewal premium shall be considered paid unless a receipt shall be given therefor, bearing the original or lithographed signature of the secretary or assistant secretary of the company, and countersigned by the agent.”

“All agreements made by the company are signed by its president, vice president, secretary, assistant secretary, treasurer, or assistant treasurer. No other person can alter or waive' any of the conditions of this policy or malee any agreement which shall be binding upon the company.” There was a provision making the application for insurance and the policy the entire contract between the parties. In the application is a statement by the assured acknowledging that all policies and agreements made by the company are signed by one or more of its executive officers, and that “no agent or other person not an executive officer can grant or waive any condition of its policies, or make any agreement which shall be binding upon said company.”

The undisputed facts are as follows: The first premium was paid, and the policy was in force from November 11,1920, to November 11,1921. The premium was not paid on the latter date. On April 20, 1922, Dunoan wrote Campbell & Hart, State agents and managers of the company, a letter in which he acknowledged receipt of their letter of April 18 in regard to the reinstatement of his policy. In this letter he stated that the soliciting agent, Harmon, had told him that he could renew by making a note, and he requested the managers, if this were satisfactory, to send him a note due November 15, 1922. In reply to this letter Campbell & Hart wrote: “Beg to advise that your policy was reinstated on April 11. We inclose herewith extension note, which, if you will sign and return to us with partial payment of $25, will extend the balance of your premium to June 11. When this note falls due, by making another partial payment of $25 we can extend the final balance to August 11.”

On April 24, 1922, Duncan wrote in reply to this letter, stating that he could not send the money, and if the company would not take his note he would let his insurance drop. In reply to this, the managers wrote on April 26, telling Duncan that, if he was unable to make the payments as outlined in the previous letter, that was the only way they could handle the matter, and it would be best for him to wait until fall and then advise if he could make the payments, and they would give the matter' prompt attention. On May 20, 1922, the managers wrote Duncan that his policy, which had been recently reinstated, had again lapsed for the nonpayment of the reinstatement premium, and inclosing a form for reinstatement for Duncan to fill out and return, if he was ready to pay the premium and reinstate the policy, and ■ (concluded by saying, “We will make an effort to get the company to reinstate it.” On May 23, 1922, Duncan answered, acknowledging receipt of letter and blank form, and stated, “Am sending you check for $25, dated June 1,” and requesting the managers to send him a note to sign for the balance. The application for reinstatement referred to in the letter of May 20, above, was introduced, and is as follows:

. “Approved..............................

“Brief Reinstatement Application No. 266970 S

Jerry C. Duncan.

/Etna Life Insurance Company, Hartford, Conn.

Lapsed November 11, 1921.

Canceled Lap. May, 1922.

Date reinstatement June 7, 1922.

Unpaid premiums due (See margin) $134.76.

Premium Int. $1.35.

Net payment $136.11.

Agent, Campbell & Hart, managers.

Examined by Pearl.

Application received, record made June 1, 1922.

No record — L. B., June 1, 1922, A. Gr. P.”

Then follow questions with reference to the health of the assured and his occupation, and various other questions, on which no issue is based in the case, and then the following recital: “I further agree that said contract shall not be considered reinstated by reason of any cash paid or settlement made in connection with this application unless this application is approved for reinstatement by an executive officer of the company at its home office, and the payment of the full amount of all unpaid premiums and interest made within thirty-one days from the date of the company’s reinstatement receipt, and before said receipt, properly signed by an executive officer, is actually delivered to me, and then on the express condition that I am in sound health on the date of said delivery, which I expressly represent myself to be by accepting said receipt. It is hereby understood and agreed that, if this application is declined, or if the company’s reinstatement receipt is delivered to me while I am not in sound health, any payment made on account of this application is to be returned to me upon demand, and the said receipt shall be surrendered to the company.

“(Signed) J. C. Duncan.

“P. O. Address, England, Ark. Dated May 23, 1922.”

On June 10, 1922, the managers wrote Duncan the following: “The company has agreed to reinstate your policy No. 266970, the amount due being $136.11. We will hold your check for $25 to apply on this amount, as soon as we have received the remittance for the balance, when receipt will be forwarded and your policy will be put in full force and effect.”

In answer to this letter, Duncan wrote, June 12, 1922, saying: “Your letter of the 10th just received, and will say you wrote me if I would send $'25 you would take a note for the balance, and you have not sent the note. Now if you can’t take a note, just return my $25, as I have no more money to pay out now.” The agents answered this letter on June 16 as follows: “In reply to yoúr letter, we inclose herewith extension note covering the balance of your reinstatement premium, which, if you will sign and return to us, will extend this balance to August 7. When this note falls due, by making a partial payment of $25 we can extend the balance to October 7.”

Mrs. Duncan testified that her husband was killed instantly on June 17, 1922, between 12:30 and 1 o’clock. She identified a note which her husband had signed on that day about 12 o’clock, which note is as follows:

“Form No. 71A.

Must be signed by same person who signs the form No. 71.

Net premium..................$136.11 Number of policy S-266970.

Cash pay’t. (if any) 25.00 Premium fell due 6/7/1922.

Balance .......................-..... 111.11 Ext’sion matures 8/7/1922.

Interest added............... 1.11 1 have this day 6/15/1922

Amount due..................... 112.22 signed form as described hereon.

‘ ‘ General Insured or

“Attest.............................. Agent................!............................... Beneficiary

(Sign here)

(Indorsed on face in red ink “Beinstatement”).

“Important — This form must be signed on or before the days of grace expire. Interest is added for extension of time hereby authorized.

“Form No. 71 Edition Feb. 1922.

“$112.22.

“In consideration of an extension of time for payment of reinstatement premium due 6/7/1922 under policy No. S-266970, I agree to pay said premium and interest, amounting to one hundred twelve and 22/100 dollars, to Campbell & Hart, agent of the /Etna Life Insurance Company of Hartford, Conn., at its office in Little Bock, Ark., on or before August 7, 1922.

‘ ‘ This agreement, with a cash payment of $25, being given to extend time for payment of said renewal premium, it is understood that, if the sum named is not paid when due, said policy shall then cease and determine, except for the nonforfeiting provisions (if any) to which said policy was entitled when the premium fell due, and this agreement shall be canceled;- and it is also understood that this extension shall not exceed -sixty days from the date when said premium fell due, anything to the contrary herein notwithstanding.

“ x J. C. Duncan Insured or Beneficiary.

“ x Must be signed on both lines marked x

(Indorsed on face in red ink) “Beinstatement.”

(Indorsed on back in red ink).

“Insured (or beneficiary) must sign his name in two places.”

She identified her husband’s signature to the note, and testified that she delivered the same to Harmon, the local agent of the company, the day her husband was killed. Her husband had intended to mail the note. She further testified that Mr. Hart, one of the managers of the company, came down to her home about a month or six weeks after her husband’s death to get the details, and she told him all about it.

Harmon testified in substance that he was agent of the company, and that he solicited Duncan’s application for the insurance in controversy; that he went to Duncan’s on the day he was killed, shortly after the killing, and received the note above mentioned from Mrs. Duncan, which he forwarded to the general managers, explaining the circumstances of Duncan’s death, and requesting them to forward the necessary blanks, and that he would attend to the matter to the best of his ability. He identified the telegram which was sent by the company from Hartford on September '22 to Campbell & Hart. The telegram stated, “Will advise you fully Duncan case in few days.” The witness made the contents of the telegram known to Mrs. Duncan. Witness testified, on cross-examination, that he'accepted the note mentioned from Mrs. Duncan, and sent the same to the managers, because of his friendship for the Duncan family and at Mrs. Duncan’s request. He was a soliciting agent, and had no authority to act as an agent for the company in settling the claim. It was not his duty to collect premiums, though sometimes, as an accommodation to his friends, he did so, and remitted same to the company. All the business of the company in the State was handled through Campbell & Hart, by whom witness was employed.

■Witness Morris testified that he was employed as an attorney for Mrs. Duncan to collect her insurance. He wro+e two letters to the comoanv at'its home office, concerning the policy in controversy, and stating that he understood that proof of death had been furnished, and that the beneficiary desired to know if the claim would be paid without litigation. . He testified that he offered to make any proof of death demanded, and requested the company to send him a form so that he might make the proof in the usual course. He did not get a reply to his letters.

Hart testified for the company that he was a manager, and that he made a personal investigation of the case in controversy; that he was informed by Mrs. Duncan as to all the facts with reference to the death of her hus-' band. He received the note signed by Duncan which had been introduced in evidence, and also received a cheek for $25, dated June 1, and inclosed in Duncan’s letter of May 23. He retained the note and check until after the suit was brought. He was authorized to and did solicit Duncan to reinstate his lapsed policy. The application for reinstatement had to be submitted to the company for its decision. The general managers are authorized to reinstate when the company sends down a reinstatement receipt. The managers then advise the policyholder to send in his premium and that the reinstatement will then be sent him. The application for reinstatement of Duncan went to the home office of the company, and they sent witness a reinstatement receipt, with instructions that, upon collecting the premium, he could then send the reinstatement receipt to Duncan, at which time the policy would be reinstated. The only agreement witness ever made with Duncan was that, if he would pay the premium, either by note or cash, the policy would be reinstated. Witness had to hold the check until he could tell whether the company would approve the application or not, and, when the company approved the application for reinstatement, he demanded the remainder of the premium, and never cashed the cheek because the balance of the premium was never paid. Witness identified and introduced in evidence the reinstatement receipt which was sent witness, to be delivered to Duncan when the premium was paid, which is as follows: “Reinstatement receipt. ¿Etna Life Insurance Company, Hartford, Conn., June 7, 1922. In consideration of the application for the reinstatement of Contract No. S-266970 on the life of J. C. Duncan, England (herein called the insured), which reinstatement application is dated May 23, 1922, and is hereby referred to and made a part of this contract, and of $136.11 to be paid within thirty-one days from this date, and before the delivery of this reinstatement receipt, the JEtna Life Insurance Company reinstates said contract from the date this receipt is actually delivered to the insured, on the express condition, and the representation by the insured, that the insured is then in sound health, otherwise this reinstatement to be null and void. Not binding without date of payment and signature of agent here. Received payment this -day of-, 192 — , subject to the above terms.

“Agent. Payment for November 11, 1921. L. R.”

Upon the above facts the plaintiff prayed the court to instruct the jury to return a verdict in her favor, which prayer the court granted. The court instructed the jury to return a verdict in favor of the plaintiff in the sum of $6,000, with interest at the rate of 6 per cent, per annum from October 31,1922, and twelve per cent, of the $6,000, less the sum of $136.11, with interest from November 11,1921, at the rate of 6 per cent, per annum. The defendant also prayed the court to instruct a verdict in its favor, which prayer the court refused, to which ruling the defendant duly excepted. The defendant also prayed for other instructions, which the court refused, and to which rulings the defendant duly excepted. The jury returned a verdict in favor of the plaintiff as directed. Judgment was entered in accordance with the verdict, from which is this appeal.

1. The court did not err in overruling the appellant’s motion to require the appellee to make her complaint more specific The allegations of the complaint, showing the policy issued, the premiums paid, the death of the assured, and a compliance of the appellee with the requirements of the policy as to notice,of the death and demand of payment, which was refused, definitely state a cause of action against the appellant, and its answer admitting the issuance of the policy and denying the other allegations of the complaint raised the issue upon which the testimony was adduced covering all the grounds of appellant’s motion. The complaint was sufficiently specific to call for the proof which was adduced to support the appellee’s contention, and it was unnecessary and improper to set forth in the complaint the proof or evidence to be adduced.

2. The policy required the appellant to pay the amount named therein “upon receipt at its home office of due proof of death of Jerry C. Duncan.” The policy does not require that proof of death shall be made in any particular manner, or at any particular time. No method is specified for making the proof. In the absence of a specific requirement of the policy as to a particular method to be pursued, any method is sufficient which serves to bring home to the insurer notice and proof of the death of the assured. The testimony of the appellee’s attorney to the effect that he had written the appellant at its home office, notifying it of the death of Duncan and offering to make proof of death in any way demanded, and asking the company if it intended to resist the payment to the beneficiary of amount claimed under the policy, together with the telegram of the company to its general managers stating that it would advise them fully within a few days what to do with the Duncan case, show conclusively that the company had notice of the death of Duncan at its home office. “No matter what the form of the notice may be, if it operates to bring the attention of the insurer to the loss, it is sufficient, and, where the nature of the notice is not prescribed, it may be oral.” 14 R. O. L. 1338, § 507; 33 C. J. 16, § 664; see also Jackson v. Life & Annuity Assn., 195 S. W. 535; 5 Joyce on Insurance, p. 5470, § 3277. The appellant having notice of the death of Duncan, its denial of liability, not predicated upon a failure to furnish proof of loss, and its failure, upon request, to indicate that further proof of loss would be required, constituted a waiver of any right to any other or further proof of loss. Dodge v. Thomasson, 94 Ark. 621. See also Security Mut. Ins. Co. v. Woodson, 79 Ark. 266; Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422.

3. The real crux of this lawsuit is involved in' the contention of the appellant that, at the time of the death of Duncan, the contract of insurance had lapsed because of the nonpayment of the premium due November 11, 1921, and that the policy had not been reinstated, and was not in force, on the 17th day of June, 1922, when Duncan was killed, and therefore that appellant was not liable. The undisputed testimony shows that the premium due November 11, 1921, was not paid, and therefore the policy, by its express terms, lapsed after the thirty-one days of grace period. The policy provides that, after default in premium payment, it may be reinstated upon evidence of insurability satisfactory to the company, and by payment of arrears of premium, with interest at the rate of six per cent, per annum. "We are convinced that the undisputed testimony shows that there was a completed contract for reinstatement of the policy, according to its terms, before Duncan was killed. Learned counsel for appellant contends that there was no receipt of the. renewal premium signed by the secretary of the company and countersigned by the agent; that there was no agreement signed by the president, vice president, secretary, assistant secretary, treasurer or assistant treasurer, showing the reinstatement of the policy; that no one of the executive officers of the company signed or approved any application or agreement for a reinstatement of the policy, and that therefore the requirements of the contract of insurance in these respects were not complied with. But all of the above provisions were made for the benefit of the appellant company, and they could be waived by the company. The undisputed testimony shows that these provisions were waived. The testimony of Hart, of Campbell & Hart, appellant’s general agents and managers for the State of Arkansas, shows that they were authorized to solicit the reinstatement of policies, and to reinstate the same when the company sent down a reinstatement receipt showing that the application for reinstatement had been approved by the company. The correspondence in the record between the appellant’s general agents and Dnncan, set out above, shows that, prior to May 20, 1922, Campbell & Hart had solicited Duncan to reinstate the policy, and had reinstated the same on April 11 until June 11, on condition that he pay $25 in cash and sign a note for the balance of the unpaid premium. But Duncan wrote them that he could not send the money, and that, if they could not take his note, he would let his insurance drop. The result of these negotiations was that Duncan permitted the reinstatement of April 11 to lapse because he failed to comply with the conditions prescribed for the payment of the premium. On May 20 the general agents renewed their solicitation to Duncan to again reinstate, and inclosed him a blank for that purpose, stating that they would endeavor to get the company to reinstate the policy. Duncan, in answer to this letter, wrote the agents, on May 23, acknowledging receipt of the letter and blank, and inclosed a check for $25, dated June 1, and requesting them to send him a'note to sign for the balance. While the letter does not so state, the indisputable inference is that he also returned the application duly filled out and signed. This letter of May 23 contained a definite offer on the part of Duncan to pay the company $25 in cash and to sign a note for the balance of the premium if they would reinstate his policy. The subsequent correspondence and the record made on this application in the office of the company shows that the company accepted Duncan’s offer and reinstated the policy. This record shows that the policy had lapsed on November 11 and was canceled, and the clear inference was that it had been reinstated, and again lapsed in May, 1922; that an application was received for reinstatement and a record made thereon June 1, 1922; that the application was examined and the policy reinstated June 7, 1922. The correspondence and testimony of Hart show clearly that the company had accepted Duncan’s offer and reinstated the policy on condition that he pay the balance of the premium, and it sent its general agents a reinstatement receipt; that the general agents were authorized, after getting this receipt, to further negotiate with Duncan as to when and to whom he should pay the balance of the premium. This they did, as shown by their letters of June 10 and 16, 192'2, in which they told him that they would hold his check for $25 and take his note for the balance. The last act of Duncan immediately before his death was to comply with the request of the general agents of the appellant to evidence his indebtedness to the company for the balance of the premium by signing a note therefor to Campbell & Hart. True, this note was not delivered to the company or its general agents until after Duncan’s death, but, when he signed it, he evidenced his obligation to pay the balance of the premium in that form, and there was no revocation of this note prior to his death. After his death it was delivered to the general agents of the company, who retained both the note and the check for $25 without offer to return same until after this action was instituted.

Now, the above undisputed testimony shows that Duncan’s offer to the company was to pay $25 in cash and to sign a note for the balance of the premium if the company would reinstate his policy. The company accepted the $25 and reinstated the policy, and Duncan signed the note for the balance of the unpaid premium. Thus the minds of the parties had fully met on the terms of the contract of reinstatement, and this contract had been consummated before Duncan’s death. The company, on its part, had reinstated the policy, and, in consideration of this reinstatement, Duncan, on his part, had paid $25 in cash and executed his note for the balance. But, even if he had not executed the note, he would have been bound for the balance of the premium. The signing of the note simply evidenced his indebtedness for the amount which he was due, even before he signed the note. Because the company, as the record shows, had carried out its part of the contract in reinstating his policy, and he was due, in consideration therefor, the balance of the premium to be evidenced by the note. The death of Duncan before the note was actually delivered was wholly immaterial, because his act in agreeing to sign the note and in signing same as effectually bound his estate for the payment of the unpaid premium as if the same had been delivered to the company before, and not after, his death.

The case is controlled on the facts by the doctrine of our cases to the effect that, where the minds of the insured and the insurer, for a valuable consideration, have met upon all the terms of the contract, the contract is complete and enforceable, even though it was intended by the parties to be evidenced by a writing, which writing, because of some fortuity, was not delivered before the death of the insured. Mutual Life Ins. Co. v. Parrish, 66 Ark. 612; Jenkins v. International Life Ins. Co., 149 Ark. 257. To be sure, if the appellant had not accepted the insured’s application for reinstatement on the terms offered by him, and had not actually reinstated his policy on June 7,1922, the case would be entirely different. But the record shows that the company did accept his terms, and that the policy was actually reinstated on June 7, 1922. The very last letter written by the general agents to Duncan on June 16,1922, the day before he died, shows that they considered that the policy had already been reinstated. They speak of the note which Duncan was to sign <as the note “ covering the balance of your reinstatement premium,” all of which shows conclusively that the general agents themselves, who were authorized to accept the note for the balance of the unpaid premium on reinstatement, considered the contract for reinstatement as already consummated.

There are no errors in the rulings of the trial court, and its judgment is therefore affirmed.


text:
    McDonald v. State.
    Opinion delivered September 29, 1924.
    1. Larceny — sufficiency of evidence. — Evidence held to sustain a conviction of having stolen cattle.
    2. Larceny — recent possession1 of stolen property. — Recent possession of stolen property by the accused, unexplained, is sufficient to warrant the jury in returning a verdict of guilty.
    3. Larceny — instruction-—weight of evidence. — An instruction that “the posséssion of property recently stolen without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted,” is not objectionable as an instruction upon the weight of evidence or as- making it the imperative duty of the jury to convict upon proof of unexplained possession of recently stolen property.
    4. Criminal law — invited error. — The accused will be deemed to •have waived any error from the State going into a collateral matter where he had already gone into proof of the same matter with great particularity.
    Appeal from Greene Circuit Court; G. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. TJtley, Attorney General, and John L. Charter, Assistant, for appellee.
   Hart, J.

Sandy McDonald prosecutes this appeal to reverse a judgment of conviction against him for the crime of stealing cattle, in violation of the provisions of § 2490 of Crawford & Moses’ Digest.

The first assignment of error is that the evidence is not legally .sufficient to support a verdict of guilty. On the part of the State it was proved that M. G. Garmoth delivered a -carload of cattle at the stock-pens of the Missouri Pacific Railroad Company in Paragould, Arkansas, to be shipped to St. Louis, Missouri. The cattle were delivered in the stock-pens on July 23, 1923, and on that night six head of the cattle were stolen. The owner of the cattle described them to the jury, and none of the stolen cattle had horns except a brindle steer. About four days afterwards the owner found four head of the stolen cattle in the slaughter-pen of Bay Hester in Paragould. He also found the hides' of the other, two in the slaughter-pen.

Several witnesses for the State saw the defendant, Sandy McDonald, and Bay Hester driving some cattle in a westerly direction in the city of Paragould about 5:30 •or 6 o’clock on the morning of July 28,1923. There were five or six head of the cattle, and there had been a rain the night before. Most of the witnesses who saw the defendant and Hester driving the cattle, on the morning in question were unable to describe the cattle. One of the witnesses stated that they were mostly red, but, that there was one black one. Another witness stated that she did not remember the color of the cattle, but that some of them were dark, and that one of them was of a Jersey color.

Another witness testified that he helped deliver some cattle at the slaughter-pen of Bay Hester on the morning that the cattle in question were found there. When the witness got to the slaughter-pen with the cattle, there were already six head of cattle there. He did not remember the color of the cattle, but there were possibly one or two black- ones in the bunch.

Two other witnesses testified that they went with the owner of the cattle when he found four of them and the hides of two others in the slaughter-pen of Hester.

The above is a summary of the testimony introduced by the State and relied upon for a conviction in this case. When it is considered in the light most favorable to the State, together with all legal inferences that may be drawn from it, we think that the evidence is legally sufficient to warrant a conviction.

It clearly appears that six head of cattle belonging to M. G. Garmoth were stolen from the cattle-pens of the Missouri Pacific Bailroad Company at Paragould, Arkansas, on the night of July 23,1923. Some time during the morning of July 28,1923, four head of these cattle and the hides of two others were found at the slaughter-pen of Ray Hester in Paragould, Arkansas. Between five and six o’clock on the same morning the defendant and Ray Hester were seen- driving five or six head of cattle along the streets of the city of Paragould. ■

Another person testified that he delivered some cattle at the slaughter-pen later in the morning, and traveled along the same route as that said to have been traveled by the defendant and Hester. There were already six head of cattle in Hester’s slaughter-pen when he got there with his bunch.

This testimony shows that Hester in some way got possession of the stolen cattle. The uncontradicted evidence also shows that the defendant and Hester were seen driving five or six head of cattle through the streets of Paragould. It is fairly inferable that the cattle they were driving were stolen cattle. It is true that the witnesses who saw them driving the cattle were not able to describe them accurately. One of the witnesses, however, said that he thought that there was one or two black ones in the bunch. Another witness said that -some of them were dark and one of them was a Jersey color. The owner described the stolen cattle as being one black white-faced steer, one black white-faced heifer with white streaks, one roan speckled cow, one red cow, one brindle steer, and one whose description he did not remember.

It had rained the night before, and the witnesses who delivered the second bunch of cattle on the morning that the stolen cattle were -found in Hester’s slaughter-pen testified that they had traveled over the same route that the defendant and Hester had traveled the same morning. Six head of cattle were in the slaughter-pen when they brought in the second bunch. It is not claimed that any of the second bunch were the stolen cattle. The only other bunch of cattle in the slaughter-pen on that morning were the stolen cattle. Hence it is fairly inferable, when all the facts and circumstances of the case are considered together, that the cattle that the defendant and Hester drove in the direction of the slaughter-pen early in the morning of the 28th day of July, 1923, were the stolen cattle. This was only four days after the cattle had been stolen. No attempt whatever was made by the defendant to explain his possession of the cattle.

¥e have repeatedly held that the recent possession of stolen property by the defendant unexplained, when taken in connection with the other circumstances similar to those proved in this case, is sufficient to warrant the jury in returning a verdict of guilty. Spivey v. State, 133 Ark. 314; Johnson v. State, 161 Ark. 111, and Papan v. Nahay, 106 Ark. 232.

The next assignment of error is that the court erred in giving instruction No. 3, which reads as follows: “You are instructed that the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted. ’ ’

It is insisted that the use of the words, “evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt” of the defendant, was an instruction on the weight of the evidence.

This court has held that similar language in an instruction means no more than telling the jury that such evidence may be considered for the purpose of determining the guilt or innocence of the defendant. Hogue v. State, 93 Ark. 316.

The next objection to the instruction is that it is upon the weight of the evidence because it instructs the jury that the possession of property recently stolen, without explanation of the possession, makes it the imperative duty of the jury to convict, and thus becomes a charge upon the weight of the evidence.- We do not think so. A fair interpretation of the instruction would warrant the jury in convicting the defendant, but does not tell it as a matter of law that it must convict if it should find that the stolen cattle had been recently found in the possession of the defendant, without explanation on his part. In fact, the instruction tells the jury that the finding of such fact does not make it the imperative duty of the jury to find the defendant guilty.' The court has no right to tell the jury what effect it should give the evidence, and it did not do so in this ease.

On the other hand, instead of pointing out what inferences the jury should draw from particular facts or circumstances, it left the whole matter of the guilt or innocence of the defendant to the jury, and left the jury free to draw whatever inference it should see fit from the fact that it might find that the stolen cattle were found in the possession of the defendant soon after the larceny was committed, without explanation on his part. Spivey v. State, 133 Ark. 314, and Pearrow v. State, 146 Ark. 182.

It is next insisted that the court erred in not giving certain instructions asked by the defendant. We do not deem it necessary to set out these instructions. The matters embraced were either covered by instructions given by the court, or the instructions as drawn were argumentative in form and calculated to mislead the jury. The court gave full and fair instructions upon the question of reasonable doubt and the weight and credibility to be given to the witnesses. It also gave an instruction on circumstantial evidence, and read to the jury § 2490 of Crawford & Moses’ Digest relating to the stealing of cattle.

The jury was specifically told that it must find from the evidence, beyond a reasonable doubt, that the defendant, on the night in question, unlawfully and feloniously stole and carried away the cattle in question, before it could find him guilty.

Finally it is insisted that the court erred, in allowing the State to prove that Eay Hester was charged with grand larceny, and on that account had fled the State. Under the circumstances of this case, this amounted to no more than what is generally called invited error. The defendant bad already shown by one witness that he had seen Ray Hester buy some cattle from a stranger about the.time of the transaction in question. He was allowed to tell how much Hester paid the stranger for the cattle, and everything that he knew about the transaction. Then T. C. Hester was put upon the stand by the defendant and was allowed to describe in detail the movements of Ray Hester during the whole of the early morning, of July 28, 1923. He testified that Ray Hester had bought some cattle on that morning.

On cross-examination the prosecuting attorney asked this witness if Ray Hester did not leave immediately after his trial in the examining court and had not been back in the State since. The witness stated that Ray Hester was in the State of California at the time of the trial, and had been there ever since; that he left the State on the same day that he had been discharged in the examining court.

Thus it will be seen that the testimony in question was first elicited on cross-examination, after the defendant had introduced testimony describing wjith particularity the movements of Ray Hester on the morning that he was seen with the defendant driving cattle in the streets of Paragould in the direction of his slaughter-pen.

He was also permitted to testify that Hester had bought some cattle from a stranger on that morning. It will be remembered that this was the same morning that the stolen cattle were found in Hester’s slaughter-pen. Under these circumstances the defendant will be deemed to have waived any error which resulted from going into collateral matters, because he had already gone into proof of these same matters with great particularity. Mitchell v. State, 86 Ark. 486, and Tarkington v. State, 154 Ark. 365.

We have carefully examined the record, and find no prejudicial errors in it. Therefore the judgment will be affirmed.