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

text:
    Bottom v. State.
    Opinion delivered October 9, 1922.
    1. Criminal law — judicial notice of county boundaries. — The courts take judicial knowledge of the boundary lines of counties as fixed by statutes.
    2. Criminal law — crime committed on boundary line — venue.— Crawford & Moses’ Dig., § 2869, providing that when any offense may be committed on the boundary of two counties the indictment may he found and conviction had in either of such counties, applies where a crime is committed on a stream which is the boundary line of two counties, though the act creating the two counties made the middle of the main channel of the stream the line between the two counties, and though the Constitution (art. 2, § 10) guarantees the accused a trial by an impartial jury of the county in which the crime shall .have been committed.
    3. Constitutional law — police power. — Crawford and Moses’ Dig., § 2869, providing that where a crime is committed on the boundary line of two counties an indictment may be returned and trial had in either county, is a valid exercise of legislative power.

      4. Criminal law — boat fastened to bank not a fixture. — A boat fastened by ropes to the bank of a stream which the boundary •• line between counties is not a permanent fixture, so that Crawford & Moses’ Dig., § 2869, providing that trial may be had in either county where a crime is committed on the boundary line would apply where a crime was committed on such boat.
    5. Criminal law — concurrent jurisdiction. — Under Crawford & Moses’ Dig., §§ 2874, 2878, providing that “where a river is the boundary line between two counties the criminal jurisdiction of each county shall embrace offenses committed on the river,” and that “whenever two or more counties have jurisdiction of the same offense, the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the others.” held that where the State procured an indictment of one accused of committing an offense on a stream between two counties bounded thereby, and subsequently procured a second indictment in the other .county, both counties being in the same judicial circuit, the finding of the second indictment will be held to constitute a relinquishment of the jurisdiction acquired by the other court.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      R. M. Mutchms, for appellant.

      J. 8. XJtley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

The grand jury of White County returned an indictment against appellant on July 17, 1922, charging him with the crime of murder in the first degree, alleged to have been committed in that county by killing one Harry Benning by shooting him with a pistol, and on the trial of the case he was convicted by the jury and his punishment was fixed at life imprisonment. An appeal has been prosecuted to this court, and the only assignment of error urged here is that the court erred in overruling the motion to quash the indictment. .

The motion which appellant filed before the commencement of the trial alleged that the killing of Benning occurred on a barge in White River at a place where it constituted the boundary between White and Woodruff counties, and that prior to the returning of the indictment by tbe grand jury in White County appellant had been arrested in Woodruff County upon a warrant issued by a justice of the peace of that county, that he had been incarcerated in jail awaiting the action of the grand jury of Woodruff County until he .was admitted to bail by an order of the chancery court of Woodruff County, and that at the time of the finding of the indictment and of the filing of the motion appellant was under bond for appearance in the Woodruff Circuit Court.

On the trial of the motion it. was admitted by the State, as well as by the accused, that the killing of Benning occurred on a barge in White River which was anchored or tied by a rope to the White County bank of the river. The court overruled the motion and proceeded to trial of the case.

Appellant relies upon the statute which provides that where a river is the boundary between two counties, “the criminal jurisdiction of each county shall embrace offenses committed on the river” (Crawford & Moses’ Digest, sec. 2874), and that when two or more counties, under the provision mentioned, have jurisdiction of the same offense, “the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other.” Crawford & Moses’ Digest, sec. 2878. The contention is that, pursuant to the terms of this statute, there was concurrent jurisdiction in the two courts, but that exclusive jurisdiction was obtained by the courts in Woodruff County upon the arrest of appellant.

The first contention of the State in avoidance of the effect of the statute is that, according to the undisputed testimony, the killing of Benning occurred on a boat attached 'to the west bank of the river, which was the White County side of the river, and that, there being no uncertainty as to the location of the place of the killing, and the boundaries of the county being certain, it would be an invasion of the constitutional 'right of an accused person to attempt to confer jurisdiction on a county which did not embrace in its territory the particular spot where the crime was committed. The Attorney General relies upon that provision of the Constitution (art. 2, sec. 10), which provides that in criminal prosecutions “the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime was committed.”

The territorial statute enacted in the year 1835 creating the counties of White and Woodruff made the middle of the main channel of White River the line between the two counties, and courts take judicial knowledge of the boundary lines of counties as fixed by statute. Bittle v. Stuart, 34 Ark. 224. Notwithstanding this statute and the constitutional provision similar to the one quoted above, this court, in the case of State v. Rhoda, 23 Ark. 156, upheld the statute which provides that when any offense may be committed on the boundary of two counties, the indictment may be found and trial and conviction had in either of such counties. Crawford & Moses’ Digest, sec. 2869. The doctrine of that case was followed in the case of Dougan v. State, 30 Ark. 41.

Now, if the Legislature could pass a statute conferring criminal jurisdiction on either county where the offense was committed on the line, it could also provide, where the line was a shifting one, such as the channel of a stream of water, that the whole of the body of water should constitute the line for the purpose of conferring criminal jurisdiction. Such is the effect of the statute now under consideration. It makes the whole of White River the boundary line for the purpose of exercising criminal jurisdiction, and an offense committed on any part of the river is, within the meaning of the statute, on the boundary line, and the courts of both counties have concurrent jurisdiction. We have held, in passing upon statutes conferring concurrent jurisdiction on the waters of streams forming the boundary line between this and other States, that such statutes are valid exercises of the legislative power. Brown v. State, 109 Ark 373; Means v. State, 118 Ark. 362; Goodman v. State, 153 Ark. 560. The same principles declared in those cases are controlling in determlining the validity of the statute now under consideration. "We cannot see any difference in principle in the power of the Legislature to fix concurrent jurisdiction' on the waters of such a stream.

The State relies on Cox v. State, 67 Ark. 462, where the court held that the jurisdiction over an offense committed on a stream which was the boundary line of two counties was vested in the county on whose side of the center of the channel the offense was committed. That decision ignored altogether the statute now under consideration. Nothing was said about the statute in the opinion. That decision, however, is in conflict with the principles announced in the later cases cited above and to which we now adhere.

It is also contended on the part of the State that the statute does not apply to cases where the offense occurred on permanent objects or structures in the channel of the stream, and it is contended that in this instance the offense was committed on a boat which constituted such a permanent structure as a fixture to the bank. The Goodman case, supra, is relied on as supporting that contention, as in that case we held that the statute had no application to an island in the channel' of the river. We do not think, however, that the boat fastened to the bank by ropes constituted a permanent fixture to the bank so as to make it a part of the shore line. We are therefore of the opinion that the statute is valid and applies in the present instance so as to confer jurisdiction upon the courts of either of the adjoining counties.

It does not follow, however, that the jurisdiction of the Woodruff court became exclusive so as to prevent the exercise of jurisdiction by the circuit court of White County. The statute provides, it is true, that “the county in which the defendant is first arrested shall proceed to try the offense, to the exclusion of the others,” but this does not confer an unending jurisdiction in the county where the arrest is first made, for when the proceedings in that county come to an end short of a final judgment, the jurisdiction again becomes concurrent instead of exclusive, and the prosecution may be made in either county. The State has the right to elect in which county the offense may be prosecuted where the jurisdiction is concurrent under the statute, and until the final judgment, which operates as a bar to further prosecution in either county, the State’s right of selection of the forum continues.

The finding of a new indictment and its acceptance by the court in White County was tantamount to an abandonment of the prosecution in Woodruff County and ended the exclusive jurisdiction of the courts in that county. This principle was clearly recognized by this court in the case of Elmore v. State, 45 Ark. 243, where there was concurrent jurisdiction between one of the counties in this State and the United States District Court which exercised jurisdiction over the Indian Territory. This would be true even if the proceedings in Woodruff County had proceeded to the return of an indictment in that court, for the statute provides that the returning of a second indictment against the same person for the same offense operates as a suspension of the first indictment. (Crawford & Moses’ Dig., sec. 3037), and the operation of this statute is not confined to indictments returned in the same court, and its necessary effect is to apply to any courts exercising concurrent jurisdiction over the same thing.

In the present instance the two counties are situated in the same judicial circuit, presided over by the same judge, and in which there is the same prosecuting attorney, and we think that the finding and acceptance of the indictment in White County necessarily implies an abandonment of the prosecution initiated in Woodruff County.

It is unnecessary to determine whether or not this rule would extend to concurrent jurisdiction exercised by two or more counties in separate circuits.

It is urged that hopeless confusion and conflict might arise in the assertion of jurisdiction- by different courts, but the question of hostile exercise of jurisdiction does not arise in the present case, and we may well wait to dispose of such a situation when it arises. It is to be presumed, however, that there will not arise any hostility or conflict in the enforcement of the criminal laws by the different courts and officers of the State charged with the duty of enforcing those laws.

Our conclusion is that there was no error of tire court in overruling the motion to quash the indictment.

There being no other errors claimed by counsel for appellant, the judgment must be affirmed, and it is so ordered.

Wood and Hart, JJ., dissent.

dissenting opinion.

Hart, J.

Judge Wood and myself think that the case of Elmore v. State, 45 Ark. 243, relied on in the majority opinion, does not sustain the ruling of the court, but on the contrary supports the view we have taken. In that case the court expressly said that in cases of concurrent jurisdiction, the tribunal which first obtains possession of a cause will not be interfered with. This was in the application of the general rule already adopted that, in cases of concurrent jurisdiction in different tribunals, the one first exercising jurisdiction rightfully acquires the control to the exclusion of the other. Bradley v. State, 32 Ark. 722, and State v. Devers, 34 Ark. 188.

In the Elmore case there was an order of the judge of the Federal court granted at chambers directing the surrender of the prisoner to the State authorities.

Here the majority opinion proceeds upon the theory that the finding of the indictment and trial of the defendant in the White Circuit Court constituted an election on the part of the State to dismiss the proceedings in Wood-ruff County and to try the defendant in White County.

Counties are the units for the enforcement of the criminal laws, and the circuit court of each county is a separate and distinct tribunal from that in every other county. Brown v. State, 109 Ark. 373.

It follows that the circuit court of White County had no power to dismiss the proceedings in Woodruff County. That could only be done by an express order of the Woodruff Circuit Court or of the judge at chambers. This is in accordance with the general rule on the question.

In Dunbar v. Bourland, 88 Ark. 153, the court quoted the correct rule from the case of Harkrader v. Wadley, 172 U. S. 148, as follows:

“When a State court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.”

The court said that this rule prevented conflict and confusion. The court further said that whichever court of those having jurisdiction first obtains jurisdiction, or, as is sometimes said, possession of the case, will retain it throughout to the exclusion of the other, and this jurisdiction extends to the final determination of the action and to the execution of the judgment.

Therefore we respectfully dissent.

OPINION ON REHEARING.

McCulloch, C. J.

Our attention is now called to a decision of the Supreme Court of Mississippi in Coleman v. State, 83 Miss. 290, 64 L. R. A. 808, holding, under a statute conferring concurrent jurisdiction on the courts of two counties, jurisdiction acquired by one of the counties cannot be relinquished or abandoned so as to permit the assumption of jurisdiction by a court in the other county. The doctrine of that case does not-seem'to us to be sound, nor does it find support in any other authorities. In fact, the case appears to be in conflict with later decisions of the same court. In the case of Rodgers v. State, 101 Miss. 847, after, stating the rule .to be that “where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction,” it was said: “The reason of the rule is to prevent confusion and conflicts in jurisdiction and to prevent a person from being tried twice for the same offense, but no defendant has a vested right to' be tried in any particular court of concurrent jurisdiction. When one court of concurrent jurisdiction has acquired jurisdiction and vountarily relinquishes it by a nolle pros, or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding under such circumstances, there can be no confusion or conflict between the courts, for the reason that only one court has jurisdiction, or is trying to exercise it.”

See also, State v. McNeill, 10 N. C. 183; State v. Tisdale, 19 N. C. 159; 16 Corpus Juris, p. 148.

The question of real doubt in the present case is whether or not the acquired jurisdiction of the court in Woodruff County was abandoned upon -the finding of an indictment in the circuit court of White County' — -whether the finding of this indictment constituted a relinquishment by the State of the jurisdiction previously acquired in the Woodruff court.

On further reflection the views expressed by the majority of the court in the original opinion remain as before, and are now adhered to, so the rehearing will be denied.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Tiger Bros. & Levine Mercantile Company v. Griffin.
    Opinion delivered October 9, 1922.
    1. Frauds, statute of — part performance. — Where an oral contract for the sale of cotton in a warehouse- and other cotton stored elsewhere was an entire contract, the delivery and acceptance of that part of the cotton stored in the warehouse took the contract out of the statute of frauds.

      2. Appeal and error — conclusiveness op chancellor’s finding.— A finding of the chancellor that a sale of two lots of cotton constituted an entire contract held not against the preponderance of the evidence.
    3. Sales — fraud—burden of proof. — In a buyer’s action for nondelivery of cotton, in which the seller claimed that the sale was induced by false and fraudulent representations of buyer as to the grades of the cotton, which he had examined in a warehouse, the seller had the burden of proving the alleged false representation.
    4. Sales — false representations — findings.—In a buyer’s action for nondelivery of cotton, in which the seller claimed the sale to have been induced by false representations of the buyer as to the grade of the cotton, the chancellor’s finding that there were no false representations held not against the preponderance of the evidence. '
    5. Sales — finding as to date of breach. — In a buyer’s action for nondelivery of cotton, the chancellor’s finding as to the date on which the breach occurred held not against the preponderance of the evidence.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor;
    affirmed.

      Cooléy & Adams, for appellants.
    1. The agreement for sale of the cotton at Manila was induced by such fraudulent representations on the part of appellee as to entitle appellant to refuse to perform. 26 Ark. 28; 71 Id. 305, 309; 73 Id. 542, 547; 95 Id. 131, 136; 104 Id. 388, 396; 123 Id. 492; Crawford’s Digest, vol. 3, title, Fraud.
    Levine’s statement to plaintiff, where the latter pointed out the samples to him, that he did not want to see them because he could not tell anything about them after looking at them, was an express declaration of his own lack of knowledge and experience, and of his dependence upon and confiding in the knowledge of the plaintiff. 38 Ark. 334, 340; 99 Id. 438, 442; 20 Cyc. 60.
    2. The agreement was within the statute of frauds, and not enforceable. C. & M. Digest, % 4864; 20 Cvc. 238; 35 Cyc. 298; 39 Ark. 571; 25 R. C. L. 634, § 258; 35 Cyc. 117; 25 R. C. L. 607, § 215; Williston on Contracts, vol. 1, § 561; 4 A. L. R. 908; 23 R. C. L. 1346-7, § 170; 145 Ark. 475; 36 S. C. 69, 15 S. E. 344; 4 A. L. R. 914.
    3. The damages assessed by the court are excessive. Tbe vendee, when entitled to recover, may recover only the difference between the contract price and the market price of cotton of the same grade as that called for in the contract, on the day it is ascertained that the' vendee will not perform. 79 Ark. 338, 344; 117 Id. 442; 35 Cyc. 633. In this case appellee had positive notice on August 31st that the cotton would not be delivered.

      G. A. CunningJiam, for appellee.
    1. As to the question whether or not the sale of the cotton by appellants was one transaction or two, the testimony is in irreconcilable conflict, and the chancellor’s finding therefore ought not to be disturbed, unless there is a clear preponderance against it. 79 Ark. 338; 134 Id. 284; 48 Atl. 107; 80 Am. St. Rep. 410; 53 Atl. 782; 96 Am. St. Rep. 211, 220.
    2. The burden of proof was on the appellants to show fraud. 143 Ark. 580, 590. It is a firmly established principle that if the means of information are alike accessible to both, so that with ordinary prudence or vigilance the parties might respectively rely upon their own judgment, they -must be presumed to have done so; or, if they have not so informed themselves, must abide the consequences of their own inattention and carelessness. 11 Ark. 58; 19 Id. 522; 47 Id. 48; 71 Id. 91; 83 Id. 403; 87 Id. 570; 95 Id. 131; Id. 154; Id. 375; Id. 527; 101 Id. 608; 112 Id. 498; 113 Id. 81; 119 Id. 100; 129. Id. 508; 143 Id. 592.
   McCulloch, C. J.

Appellant is a domestic corporation, engaged in the general mercantile business at Manila, a town in Mississippi County, and as an incident to its business it buys cotton from its customers.

On August 25, 1921, appellant owned 104 bales of cotton, situated in its warehouse at Manila, and on that day it entered into an oral contract with appellee for the sale of said cotton at ten cents per pound, payable at tlie Blytheviile Compress at Blytheviile, Arkanasas. Appellee was a cotton 'buyer, with an office at Blytheviile. Appellant delivered the cotton to the warehouse at Blytheviile and received warehouse receipts, but refused to make delivery to appellee in consummation of the sale, and appellee instituted the jnesent action in the chancery court of Mississippi County, setting forth in its complaint the oral agreement for the sale of the cotton and the breach thereof and alleging that appellant was insolvent. The prayer of the complaint was either for specific performance of the contract' or for the recovery of damages for breach of the contract.

In the complaint it was alleged that there was a sale of 154 bales of cotton in all, fifty bales of which were situated at Blytheviile, in a warehouse, which were delivered andopaid for in part performance of the contract.

Appellee secured in the action a temporary injunction restraining appellant from disposing of the cotton, and also caused an order of specific attachment to be issued and levied on the cotton. Subsequently, appellant gave bond in discharge of the specific attachment, and there was an agreement that the case should proceed to trial in the chancery court. The trial in that court resulted in a decree in favor of appellee and against appellant for the recovery of $3,337.68, the difference found by the court between the contract price of the cotton and the market value thereof on the day on which appellant was shown to have broken the contract.

Appellant, in its answer, pleaded the statute of frauds as a defense, and also alleged, by way of defense, that appellee had falsely and fraudulently misrepresented to appellant’s agent the grades of the cotton, and that appellant was induced by such representations to enter into the contract.

It is undisputed that appellant entered into an oral p o-reement with appellee for the sale and delivery of the 104 bales of cotton which are the subject-matter of the controversy, and that appellant thereafter refused to consummate the sale, but the first and principal point in the controversy between 'the parties is whether or not the contract was within the statute of frauds.

At the time the agreement was entered into between the parties, appellant owned fifty bales of cotton, which were stored in a warehouse in Blytheville, and also owned 104 bales of cotton, stored in its own ■ warehouse at Manila — at least the 104 bales were in appellant’s possession, some of it being cotton owned by appellant’s customers, but appellant had authority to sell it. •

A few days before the contract was entered into between the parties, appellee went out to Manila on a visit to appellant’s store, and approached the manager, Mr. Ike Levine, on the subject of purchasing the cotton. After appellee was informed that appellant desired to sell the cotton, appellee and one of appellant’s clerks went out to the warehouse and sampled the cotton at that place, and these samples were placed in a sack and taken by appellee back to Blytheville.

On the day the contract was made, appellant’s manager, Levine, went to Blytheville, and negotiations between the parties took place between Levine and appellee personally in the latter’s office. Appellee purchased the fifty bales of cotton at ten cents per pound, and that was delivered and paid for. On the bill, or account of sales, for the fifty bales, which appellee furnished to Levine showing the quantity of cotton and the total price, appellee made an unsigned pencil memorandum in the following words: “Bought 104 or 106 at Manila at 30c f. o. b. Blytheville press, to be delivered at once, or early as possible.”

It was understood between the parties, and the testimony clearly shows, that there was some uncertainty as to whether appellant had 304 or 306 bales at Manila, and the agreement was that the sale was to cover the number of bales at Manila, whether 104 or 106. It turned out that there were only 104 bales. The eontract was entirely oral, withoht any writing signed by the parties to be 'charged, and was clearly within the statute of frauds unless something else occurred between the parties to take the contract out of the operation of the statute. Crawford & Moses’ Digest, sec. 4864.

The contention of appellant is that the contract for the sale of the undelivered cotton then at Manila was separate and distinct from the contract for the sale of the fifty bales in the warehouse at Blytheville, and that sinee there was no writing, and no delivery of any of that portion of the cotton, the circumstances did not take the case out of the operation of the statute of frauds. On the other hand, the contention of appellee is that there was only one contract, which covered the purchase of 154 bales of cotton, of which fifty bales were in the warehouse at Blytheville, and the other 104 bales were stored at Manila; that there was a delivery of the fifty bales and payment therefor, which took the oral contract- out of the operation of the statute.

The law on this subject has been plainly settled in repeated decisions of this court, and the case presents merely a question of fact, whether or not.the contract was an entire one for the sale of both lots of cotton, to be delivered in installments, or whether there were separate contracts without any delivery being made under the contract for the sale of the cotton in controversy. If, as contended by appellee, the sale was entire, and there was an actual delivery and acceptance of a part of the cotton sold, the case does not fall within the statute of frauds, and appellee is entitled to recover. Brockman Com. Co. v. Pound, 77 Ark. 364; Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338; Ark. Short Leaf Lbr. Co. v. McInturf, 134 Ark. 284; Breckenridge & Brashears v. Hearne Timber Co., 135 Ark. 31.

There is a conflict in the testimony on the issue as to the entirety of the contract. It is admitted that there were four persons present when the contract was entered into in appellee’s office in Blytheville. In addition to appellee Griffin, and Ike Levine, appellant’s manager, there were present Julius Levine, a brother of Ike, and C. H. Bond, another cotton buyer. Appellee and Ike Levine both testified as witnesses, and so did Julius Levine and Bond. Appellee and Bond both testified positively that the sale was entire; that Levine stated that he wanted to sell all of the cotton that appellant had on hand, and that there was a lump trade made for the whole of the 154 or 156 bales at the round sum of ten cents per pound. Each of the other two witnesses, Ike Levine and Julius Levine, testified that there was a separate sale of the two lots of cotton.

Appellee, in his testimony, stated the substance of the negotiations with Levine in the following language: “I was trading with him and he to]d me what he had been offered for the fifty bales here in the press, and I asked him then what he would take for the whole lot. He said he would sell it all in one lot and wanted to get rid of it. He said, ‘I want to sell out and get rid of all the cotton I have, ’ and after I figured out the average I had never made him an offer. He told me he had been offered nine and a-half cents for the cotton that was here in the press. He then said he would sell it for ten cents around for the whole lot of cotton. I figured for a few minutes and told him I would take it.”

Witness Bond stated the transaction (quoting from his cross-examination) as follows:

“Q. It was all bought in one lot? A. Yes sir. Q. And all located in the same place? A. No, fifty bales here in the compress, and 104 or 106 at Manila. Q. How could it be one lot when the fifty bales were located here and paid for, while the other 104 or 106 bales were at Manila and not paid for? A. Because it was discussed as one lot, offered as one lot, sold as one lot and bought as one lot. Mr. Griffin figured on it as one lot. The fifty bales were paid for that day because it was here in the press and the receipts could be turned over. The other could not be paid for until it was placed in the press and the receipts turned over. Q. Yet he bought and paid for it separately? A. He did not. You pay for cotton as it.is delivered. He was to pay for this Manila cotton when it was delivered to the press and the recepits turned over to him.”

Appellee and Bond both testified that the samples of all the cotton were then on the table in the presence of the parties in appellee’s office, and that appellee said to Levine, “There are your samples,” and that Levine answered saying that he did not care anything about looking a.t the samples. The two Levines testified on this point that only the samples of the Manila cotton were on the table at the time.

There is the testimony of two witnesses on each side of this controversy, one of which on each side is directly interested in the result. Julius Levine is a brother of one of the interested parties, and Bond appears to be wholly unconnected with the controversy and without interest in it.

We cannot say that the testimony preponderates against the finding of the chancellor, and under those circumstances it becomes our duty not to disturb the chancellor’s finding.

Treating it as settled that there was an oral contract for the sale of the cotton, that part which was immediately delivered as well as the remaining part of the cotton, which is the subject of the controversy, the delivery of a part took the case out of the operation of the statute.

There is also a conflict in the testimony as to the charge made by appellant that the sale was induced by false and fraudulent misrepresentation of appellee as to the grades of the cotton. Ike Levine testified that he did not examine the samples of cotton to ascertain the grades, but that after appellee had examined the samples he asked appellee about the grades, and that appellee stated to him that there were about thirty bales of white cotton, which is the highest grade, and twenty-five bales of gray cotton, and-forty-nine bales of blue cotton, which is the lowest grade, and the witness stated that he subsequently ascertained that there was practically no blue cotton in tbe list at all. He said that appellee, in response to his inquiry, placed the value of the blue cotton at seven cents a pound, the gray cotton at nine cents, and the white cotton at twelve and a-half or twelve and three-quarters cents.

Appellee denied that he made any misrepresentation concerning the grade of the cotton, and stated that all that was said between the parties; when they made the trade, was that Levine said' that some of the cotton belonged to his customers, and asked for a statement of the value of the different grades, so that he would know how to settle with hiS' customers, and that he (witness) told Levine that the basis of settlement, according to - the average price of ten cents per pound, would be seven cents per pound for blue cotton, nine cents for gray, and twelve and a half or twelve and three-quarters for white.

There is some corroboration of appellee in the testimony of one of appellant’s clerks to the effect that when Levine announced that he would not deliver the cotton he stated as the only reason that the sampling of the cotton was wrong, and said nothing about misrepresentation as to the grades.

The burden was on appellant to prove the alleged false representation, and we are of the opinion that the finding of the chancellor on this issue is not against the preponderance of the testimony.

There remains to dispose of the last of appellant’s contentions, which is that the finding as to the amount of damages is excessive. This question turns on the proof as to when the breach occurred, for there is no dispute as to the market value of the cotton on the different dates mentioned in the testimony. The real'controversy arises as to when the breach of the contract occurred.

The agreement was that the cotton should be delivered as soon as convenient by hauling it in wagons from Manila to Blytheville. Appellee contends that the breach did not occur until September 2, and that the cotton was worth sixteen and a-half cents on that date. The court estimated the damages on the basis of sixteen cents per pound on that date, and awarded appellee six cents per pound as dam'ages.

Appellee testified that on August 30 he¿had a telephone conversation with Levine, in which the latter stated that he was sick, but would go to Blytheville in a few days and deliver the cotton, but that he failed to come to Blytheville, and that he (appellee) went out to Manila on September 2, and that Levine then, for the first time, refused to deliver the cotton.

Levine testified that in a telephone conversation on August 31 he distinctly and unequivocally refused to deliver the cotton, and appellant’s contention is that if there was a wrongful breach of the contract, it occurred on that day, when, according to the undisputed testimony, 14.87 was the market price of the cotton. It appears that the price of cotton began rising on the very day this contract was entered into, and that it continued to rise day by day. We think that the chancellor’s finding upon this issue, as well as upon the other issues in the case, was not against the preponderance of the testimony.

The decree must therefore be affirmed, and it is so ordered.


text:
    Sease v. State.
    Opinion delivered October 9, 1922.
    1. Courts — order calling special term — necessary recitals. — Under Crawford & Moses’ Dig., § 2218, prescribing jurisdictional requirements in calling a special term of court, it is not necessary that the order calling the special term contain an affirmative recital that the holding of the special term will not interfere with any other court to be held by the same judge.
    2. Continuance — discretion op court. — Granting or refusing a continuance is discretionary, and the trial court’s action will not be disturbed unless an abuse of discretion appears.
    3. Continuance — procuring testimony op physicians. — In a murder trial it was not an abuse of discretion to deny a continuance to obtain testimony of certain physicians as to accused’s mental condition where no showing was made that defendant had made effort to have an examination by such physicians nor any reason given why the physicians could not have examined him before the trial.
    4. Continuance. — absent witnesses — cumulative testimony. — In a murder trial denial of a continuance for absent witnesses was not an abuse of discretion where a number of witnesses testified at the trial to the same effect as the absent witnesses would have testified.
    5. Jury — challenge for bias. — In a felony trial the court properly refused to sustain accused’s challenge to a juror who stated that he had an opinion, based on newspaper reports and what a certain person had told him some of the witnesses would testify, and that it would require testimony to remove this opinion, but that he would decide the case according to the law and the testimony, and would not be influenced by anything that he had heard.
    6. Homicide — instructions on insanity. — In a murder trial, instructions on the defense of insanity held sufficient, though they failed to point out that it was not essential that accused be incapable of choosing between right and wrong generally, and on all subjects other than the act on which he is being tried; there being proof merely of general insanity, and not any special delusion which caused him to commit the act in question, or was in any way connected with the commission of the act.
    7. Criminal law — instruction on mental disease. — In a murder trial, an instruction given at defendant’s request that it was immaterial that accused’s brain trouble, if otherwise a defense, was caused by alcoholism, held properly modified by adding that accused “must be suffering from organic brain trouble or a disease of the mind, and not actuated by hate, anger or jealousy or other passion. If, from evil associations and indulgence in vice, his conscience ceases to control or influence his actions, and he is otherwise capable of committing crime, he is responsible.”
    8. Criminal law — instruction as to discrepancies in testimony. —In a murder trial, an instruction “that small discrepancies in the testimony as to time and distance may be attributed to inattention or inaccuracies of memory rather than to a wilful or false swearing” was good as against a general objection.
    Appeal from Baxter Circuit Court; Walter L. Pope, Judge;
    affirmed.

      Joe George and Mehaffy, Bonham <§> Mehaffy, for appellant. . ^.

      J. 8. TJtley, Attorney General, Elbert Godwin and W'm. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

R. H. Davidson came to Ms death as the result of a rifle shot on May 2, 1922, while' he was on the farm where he resided, near the Milage of Buffalo, in Baxter County. Appellant was charged with murder in the killing of Davidson, and on the trial of the cause he was convicted of murder in the first degree and sentenced to death by electrocution.

The shot which killed Davidson was fired from ambush, and the killing was without justification or mitigation.

On the trial of the cause appellant’s attorney offered nothing in justification of the crime, but relied upon proof of an alibi and also proof tending to show the mental incapacity of the accused. The principal defense relied on was that of insanity.

Davidson was a farmer and had, only a few months before he was killed, moved from the State of Oklahoma to the farm at Buffalo on which he was living at the time he was killed.

On the day of the killing Davidson and his wife were out in the field planting onions, and appellant, accompanied by Jack Beavers and Albert Beavers, came to the field where the Davidsons were at work, and introduced himself in friendly terms, saying, “My name is Sease: I own a farm next to you,” and shook hands with both Davidson and his wife. This was in the afternoon, between two and three o’clock. The party adjourned to Davidson’s house, where “moonshine” whiskey was produced by Sease and all present took a drink. Appellant and his two companions had been drinking before they reached the house, and continued to drink. Jack Beavers became grossly intoxicated and went to sleep out on the porch. Appellant and Albert Beavers left the house, appellant saying at the time he was going to Mountain Home that night and would ride Jack’s horse. When they left the house, Jack Beavers was still asleep on the porch, and later in the afternoon the wife and son of Jack Beavers came to the Davidson house and aroused Jack from his slumber and carried him home. Davidson and his wife then went back to the field to work, and while engaged in work in the field the shot which caused his death was fired from ambush. Mrs. Davidson testified to the circumstances, and said that while she was working beside her husband she heard the sound of a shot and remarked that, “They are shooting more squirrels,” that her husband failed to answer, and she looked up and saw him fall, that she screamed, and her husband directed her to keep quiet. Davidson died in about three minutes after the shot was fired. Mrs. Davidson testified that the killing occurred shortly before six o ’clock in the evening.

Appellant resided at Cotter, Arkansas, in' Baxter County, and owned a small farm near the Davidson farm. Jack Beavers was his tenant, and on the day of the killing he was visiting at the house occupied by Jack Beavers. Albert Beavers, who lived in the neighborhood, came over to the house of Jack Beavers, and after dinner appellant proposed to the other men that they go over to Davidson’s, and they all three started up there. Appellant produced a half-gallon jar of whiskey, and the men began drinking, and, as before stated, continued drinking whiskey after they got to Davidson’s home.

Albert Beavers had his shotgun with him, and he testified that after he and appellant left Davidson’s house and separated at the lower end of the field, appellant walked back a few steps and asked to borrow witness’ gun, saying to the witness, “Let me have it; I’m going to kill Davidson,” and that appellant also stated, with an oath, that he knew where he could get a gun, and went on towards the home of Jack Beavers.

It appears from the testimony that appellant had a Winchester rifle, which he had kept at the Beavers’ home for several weeks, and, according to the testimony of the wife and son of Jack Beavers, appellant came back to Beavers’ home between four and five o’clock; qnd asked for his shells and gun, stating to Mrs. 'Beavers that Davidson was a “spotter”, and that he was mad at Davidson and was going to kill him. Appellant had been arrested for making or selling liquor. Mrs. Beavers testified that she pleaded with appellant to desist from committing the act of violence, but that appellant left with his gun, and that after she had gone up to the Davidsons’ home and gotten her drunken husband away from there, appellant returned from the direction of the place where the shot was fired, and said that he had “got Mm,” and that he had fired the shot at a distance of about 175 yards.

Jack Beavers testified that he lost consciousness when he became grossly intoxicated at the home of David-sons and did not remember anything distinctly until during the night — about two or three o’clock in the morning — when appellant returned to the home of witness and awakened him and stated that he had killed Davidson — ■ that he had shot him with a Winchester. This witness related the full statement of appellant, in which he detailed the circumstances under which he fired the shot, and stated that he did not have any cause for killing Davidson.

There was other testimony tending to prove the statements of appellant, which amounted to confessions that he had killed Davidson. The bullet extracted from Davidson’s body was the same kind and size as that used in appellant’s gun.

Appellant introduced the testimony of several witnesses tending to show that at the time Mrs. Davidson said that the shot was fired he was at another place, considerably distant from the scene of the killing.

Other witnesses were introduced tending to show that appellant had, for a number of years, been weak-minded. The lady with whom appellant roomed in Cotter testified that she had known him for about nine years, and that during recent years his mind had become affected to the extent that he could not converse intelligently or in a connected way, could not hold to the subject which he was discussing, and that he looked wild out of his eyes, and seemed to be restless.

Other witnesses who knew appellant in Cotter testified to about the same effect1 as Mrs. King. Other witnesses testified that he could not converse intelligently and that his conversation at times was silly. Others testified that he often spoke about the house being on fire, and sometimes would plead with those in the house to close the door, saying that somebody was coming in. Another witness testified that on a certain occasion he walked down the road with appellant, and that appellant was drinking to some extent, and said he saw a black cat. Witnesses testified that when in the house he would beat the walls and cry out that the house was burning.

Appellant’s father testified that, about eight years before the killing, appellant had been thrown from a wagon while driving under the platform of a gin and sustained an injury to his back or spine, and that since that time his mental faculties had been considerably impaired. He stated that appellant could not carry on a connected conversation; that he was nervous and frequently spoke of the house being on fire,- and sometimes would ask that the door be shut, saying that, “They are coming in after me.”

The testimony showed that appellant drank whiskey to a considerable extent, and that it was generally during his spells of drinking that he showed weakness of mind to a marked extent. There was testimony, however, that this condition of mind extended beyond his periods of intoxication.

It is first contended that the judgment should be reversed for the reason that the special term of the circuit court at which appellant was indicted and convicted was not called in the manner and form prescribed by the statute, in that the order did not contain an affirmative recital that the holding of the special term would not interfere with any other court to be -held by the judge of that circuit.

The jurisdictional requirements in calling a special term are, that the person to he tried is confined in jail upon a criminal charge; that the holding of the special term shall not interfere with any otlier court to be held by the same judge; that the special term shall not be held within twenty days of a regular term of the court, and that the order calling the term of court shall be made out and signed by the judge and entered on the records of the court. Crawford & Moses’ Digest, § 2218 et seq.-

The decisions of this court on this subject are conclusive of the question of the legality of the order for the special term of the court in this instance against the contention of counsel for appellant. These decisions are reviewed in the recent case of Pool v. State, 121 Ark. 17, where we held, in substance, that the words of the statute concerning interference with any other court to be held by the same judge (Crawford & Moses’ Digest, § 2222) had reference to a regular term, and that, since the court will take judicial knowledge of the time for holding the regular terms of court, it was unnecessary that the order calling a special term should contain a recital on that subject.

We are of the opinion that the order of the court sufficiently complied with the statute in form and substanee, and that there are no grounds for declaring the special term of court invalid.

The special term was called for May 22, and the trial was begun on May 25, 1922.

Appellant was arrested immediately after the killing, and was carried to the penitentiary for safekeeping, and was kept there until he was indicted.

Counsel filed a motion for continuance, stating that appellant had for a long time been addicted to the use of intoxicants to the extent that he was suffering from alcoholism and delirium tremens, and that his mental faculties were affected, on that account, to the extent that he was incapable of knowing the difference between right and wrong, and was unable to control his actions; tha/t he desired the attendance, as witnesses, of two physicians, Doctors Murphy and Kirk, residing in Little Rock; that on account of the short lapse of time between appellant’s arrest and the date of the trial, the two physicians mentioned had not had sufficient opportunity to examine him in order to testify concerning his mental condition, and further time was asked to give the physicians an opportunity to examine appellant with reference to his mental condition. Continuance was also asked to enable appellant to procure the attendance of certain witnesses who would testify concerning his weakened condition. The court overruled this motion, and this ruling of the court is pressed upon us as grounds for reversal.

We have often said that the matter of granting or refusing a continuance is one within the discretion of the court, which will not be disturbed unless abuse is shown.

So far as concerns the procurement of the testimony of the physicians, who were wanted to testify in regard to appellant’s mental condition, it is sufficient'to say that there was no abuse of discretion by the court, for it is not shown that appellant had made any effort to have an examination by the physicians, nor is ■ any reason given why the two physicians could not have examined appellant during the time he was confined in the penitentiary at Little Rock.

All that appellant proposed to prove by the other absent witnesses was appellant’s mental condition, the same character of testimony that was adduced at the trial by other witnesses. In other words, appellant sought to procure the same character of testimony which was produced in abundance at the trial, and there was no reason why it was necessary to await the attendance of the absent witnesses when there were plenty of other witnesses who were well acquainted with appellant’s mental condition, and who could, and did, testify to the same effect as the absent witnesses would have testified if present.

Our conclusion is that there was no error in overruling the motion for continuance.

The next assignment of error is in regard to the ruling of the court in refusing to sustain appellant’s challenge to juror Minor, who stated, in substance, on his examination as to qualification, that he had an opinion, based upon newspaper reports and what a certain person had told him what some of the witnesses wlould testify, and that it would require testimony to remove this opinion, but that he would decide the case according to the law and the testimony and would not be influenced in his verdict by anything that he had heard. In other words, the statement of the juror was that he had an opinion based upon newspaper reports and hearsay, which could be removed by testimony, and that he would be controlled by the testimony in the case and not by previous reports which he had heard and read. Gibson v. State, 135 Ark. 520; West v. State, 150 Ark. 555.

The court gave, among others, the following instructions, to which exceptions were saved:

“No. 7. You are instructed that, if you find beyond a reasonable, doubt that defendant committed the crime charged, and as charged in' the indictment, the defense of insanity cannot avail the defendant, unless you believe from a preponderance of the evidence that at the time of the killing he was under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong, or if he knew the nature and quality of his act and knew that it was wrong, that he was under such duress of mental wrong, and unable, because of the disease, to resist doing the wrong act which was the result of his mental disease.

“No. 8. And you are instructed that, although you may believe beyond a reasonable doubt that defendant committed the crime charged in the indictment, yet if you believe from a preponderance of the evidence that at the time of the killing he was under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong, or if he knew the nature and quality of his act and did know that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong and unable, because of the disease, to resist doing the wrong act, which was the result solely of his mental disease, then it will be your duty to acquit him.”

The objection urged against these instructions is that they failed to incorporate the principle of law on the subject of insanity as a defense to crime that it is not essential that the accused be incapable of choosing between right and wrong generally and on all subjects other than the act which is the charge on which he is being tried. Counsel cite, in support of their contention, several recent decisions of this court. Bell v. State, 120 Ark. 530; Hankins v. State, 133 Ark. 38; Woodall v. State, 119 Ark. 33.

We do not think that either of the instructions ignored the principle stated by counsel, but that, on the contrary, the language of each of the instructions complained of sufficiently stated the principles of law, including the one referred to by counsel. Each of the instructions states the law to 'be, in substance, that if the killing occurred while the accused was under such defect of reason from disease of the mind that he did not knovi the nature and quality of the act that was being done; or, if he did know it, that he did not know that what he was doing was wrong; or, if he knew the nature and quality of the act and did know that it was wrong, that he was under such stress of mental disease as to be incapable of choosing between right and wrong and unable to resist doing the act of which he was accused, he would not be responsible.

In addition, we are of the opinion that the proof in this case did not really call for an instruction pointing out the distinction between the capacity of knowing the ■difference between right and wrong generally and with, •respect to the particular act under investigation. The •reason is that there was no proof in the present case tending to show that appellant labored under any delusion which caused him to commit the act in question. The pioof adduced tended merely to show general insanity as manifested by different acts and conduct of appellant from time to time. If there was no delusion which caused appellant to commit the act or that was in any way connected with the commission of the act, then there was no place in the case for an instruction which directed the attention of the jury particularly to the question of the capacity of.knowing the difference between right and wrong with reference to a particular act. It was sufficient to state the general principle that if the accused was incapable of choosing between right and wrong, it constituted a defense.

We are of the opinion, therefore, that the court did not err in giving the instructions, nor did it err in refusing to give the one requested by appellant on that subject, which was sufficiently covered by those that the court gave.

The giving of instruction No. 9 is assigned as error, and that instruction reads as follows:

“You are instructed that, if you find from a preponderance of the testimony that the defendant was suffering from organic brain trouble and mental diseases as defined in the foregoing instruction, then, no matter if you should conclude that such condition was produced by alcoholism, for such condition of mind is as much a defense when produced by drink as when produced by any other cause, and if you find that he was suffering from such condition to the extent set forth in said instruction, whether such condition was produced by drink or otherwise, it is your duty to acquit him. The defendant must be suffering from organic brain trouble, or a disease of the mind, and not actuated by hate, anger, or jealousy, or other passion. If, from evil associations and indulgence in vice, his conscience ceases to control or influence his actions, and he is otherwise capable of committing crime, he is responsible.”

The first paragraph of the instruction was given at the request of appellant, but the court modified the instruction by adding the last paragraph, and the objection is to that paragraph. The contention is that, according to this instruction, no matter if appellant was suffering from organic brain trouble and it had progressed to the extent that appellant could not realize the nature and quality of his act and did not know that it was wrong, this would not be a defense if there was an element of hate, anger, jealousy or other passion entering into the killing. Such is not, we think, the effect of the instruction, for, if he was actuated in committing the homicide by hate, anger, jealousy or other passion, it could not be a result of a' diseased condition of the mind. These different states of mind do not exist together, for, if a given act is committed under stress of a diseased mind, it is not actuated by the emotions of hate, anger, or jealousy. This instruction correctly told the jury, in effect, that if the act was committed as the result of suffering from organic brain trouble or disease of the mind, this would constitute a defense, but that it would not be a defense if the act was 'prompted by hate, anger, jealousy, or other passion.

Again, it is contended that the’ latter part of the instruction in effect told the jury that if, from evil associations and indulgence in vice, the accused had ceased to control or influence his actions, he would be responsible if otherwise capable of committing the crime, and that this ignores the element of incapacity of knowing the nature and quality of the act committed. The language does not ignore this element, for this instruction follows others which call attention to these elements of defense and refers to these elements by adding, “if otherwise capable of committing crime.”

Finally, it is contended that the court erred in giving instruction No. 19, which reads as follows:

“You are instructed that small discrepancies in the testimony as to time and distances may be attributed to inattention or inaccuracies of memory rather than to a wilful or false swearing.”

There was only a general objection to this instruction, which was not sufficient to call attention to the particular language thought to be misleading. What the court evidently meant by the instruction was that the jury might reconcile small discrepancies by attributing the same to inattention or inaccuracy of memory,' rather than to false swearing. The court did not say that the jury should do so, but tjiat it might do so. If it was thought that the jury might understand the language of this instruction to mean that it was the duty of the jury to so attribute small inaccuracies, the attention of the court should have been called to this particular language, rather than a general objection to the whole instruction.

Upon the whole, we are convinced, after a careful examination of the record, that there was no error committed. The offense committed by appellant was one of peculiar atrocity, and the testimony is abundant to sustain the verdict.

Judgment affirmed.


author: Wood, J.

text:
    McDonald v. State.
    Opinion delivered October 9, 1922.
    1. Indictment and information — sufficiency of evidence before grand jury. — In a prosecution for carnal abuse, in which defendant moved to quash the indictment on the ground that the grand jury had no legal evidence before it, evidence held sufficient to sustain an indictment.
    2. Grand jury — evidence admissible on investigation op carnal abuse. — On investigation before the grand jury of a charge of carnal abuse of a girl under the age of consent, it was competent to- prove that accused and prosecutrix had associated together and had opportunities for sexual intercourse, and that .a child was born to her.
    3. Grand jury — investigation op carnal abuse — evidence.—On investigation before the grand jury of the charge of carnal knowledge of a girl under age of consent, during which the prosecutrix refused to answer whether defendant had had intercourse with her, it was competent to ask her whether she had not testified before the examining magistrate that defendant had had intercourse with her, and, upon her answering in the affirmative, to further ask her whether or not she was telling the truth, and on her refusal to answer it was for the grand jury to determine whether she had testified to the' truth before the examining magistrate, though she afterwards changed her story.
    4. Indictment and information — sufficiency of evidence.. — If there was any legal evidence before the grand jury to sustain the finding of an'indictment, the court cannot inquire into the sufficiency of the evidence or set it aside because some illegal evidence was received.
    5. Indictment and information — grounds for quashing indictment. — Under Crawford & Moses’ Dig., § 3057, specifying the only grounds on which an indictment may be quashed, it is not permissible to quash an indictment because of the introduction before the grand jury of the illegal evidence or of the want of any testimony at all to support the return of an indictment.
    6. Indictment and information — admission of illegal evidence. —Crawford & Moses’ Dig., § 2988, providing that the grand jury can receive none but, legal evidence, is directory only.
    7. Rape — admissibility of evidence. — In a prosecution for carnal abuse of a girl under the age of consent, in which the prosecutrix exhibited to the jury a child to which she claimed to have given birth, as result of intercourse with defendant, and was allowed to testify as to the particular occasion and time of the intercourse with the defendant when the conception took place, exclusion of testimony that about the same time she was associating with others in a manner warranting a conclusion that they had opportunities for, and might have had, intercourse, held reversible error.
    8. Rape — intercourse of prosecutrix with others. — In a prosecution for carnal abuse of a girl under the age of consent, her illicit relations with other men are immaterial unless the State undertakes on direct examination to corroborate her testimony by introducing a child which she testifies" was the result of the sexual intercourse with the accused, in which case testimony tending to prove that another might have been father of the child is competent and relevant.
    9. Witnesses — contradictory statements of prosecutrix. — In a prosecution for carnal abuse of a girl under the age of consent, in which the defendant did not ask prosecutrix on cross-examination questions concerning her testimony before the grand jury, testimony tending to elicit contradictory statements made by her before that body was inadmissible, for want of a proper foundation therefor.
    10. Witnesses — impeachment as to collateral matters. — Where a prosecutrix in a prosecution for carnal abuse is asked as to specific acts of alleged intercourse with others, and she answers in the negative, the defendant is bound by her answers, and cannot impeach her with reference thereto.
    11. Depositions — quashing.—^Depositions in a criminal case, not taken by consent nor pursuant to an order of court under Crawford & Moses’ Dig., § 3112, were properly quashed.
    Appeal from Greene Circuit Court, Second Division; R. E. L. Jolmson, Judge;
    reversed.

      M. P. Huddleston 'for appellant.

      J. 8. Utley, Attorney General, Elbert Godivin and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

Appellant appeals from a judgment of conviction on an indictment charging' him, in good form, of the crime of carnal abuse of one Rebecca George. The indictment was returned by the grand jury of Greene County on the 7th day of December, 1921.

1. The appellant moved to quash the indictment at the May term of the Greene Circuit Court, 1922, upon the sole ground that there was no legal evidence before the grand jury upon which to base the indictment. Appellant relies upon section 298S, Crawford & Moses’ Digest, which reads as follows: “The grand jury can receive none but legal evidence. ’ ’ At the hearing on the motion the court permitted the appellant to introduce as a witness the stenographer who took down the testimony of the witnesses before the grand jury that returned the indictment against the appellant, and permitted the stenographer to read the testimony of the witness, Rebecca George, taken before the grand jury in the investigation of the alleged crime of carnal abuse of Rebecca George by appellant.

In her testimony before -the grand jury Rebecca George stated that she had been acquainted with the appellant some four or five years. She was asked whether he had ever had any improper relations with her, and refused to answer. She was asked whether or not she had testified in Squire Hayes’ court that Tony McDonald had sexual intercourse with her, and she stated that she remembered testifying, but was not going to inform the grand jury whether she was telling the truth then or not. She was then asked whether she remembered saying that she did tell it, and answered, “Yes.” She was asked whether the things she told there were the truth and answered, “I am not going to tell you anything.” She admitted that her baby was there. The grand jury asked who was the father of her baby, and she refused to tell. She stated that she remembered telling the prosecuting attorney about it, but refused to tell the grand jury anything about it. Further along in her examination she was asked this question: “Do you rsemember telling us that Tony McDonald was the father of the child?” Answer. “I told you, but you didn’t know if I told you the truth.” She was further asked, “You told us that Tony McDonald was the father of the child, and that Tony got you to sign a-letter saying that he was not the father of the child, but that he was the father of the child?” Answer, “Yes sir.” Question, “Was that the truth?” Answer, “I am not going to tell you.” She was recalled later before the grand jury, and in afisAver to questions stated that her baby was not Tony’s baby; that it was Hughie Warren’s baby, and further stated that Tony had not had at any time sexual intercourse with her, and that her prior statements to the effect that Tony had sexual intercourse with her were false.

The' witness next read the testimony of Mrs. Wilcv George, the mother of Rebecca George, taken before the grand jury. Mrs. George stated that upon ascertaining that her daughter was enceinte, she asked her daughter who -was the father of the child, and Rebecca stated that it was Tony’s. She then interviewed appellant in regard to the matter, and he admitted taking Rebecca to places, but denied having intercourse with her. Also "Wiley George, father of Rebecca George, testified before the grand jury that the appellant was the father of the child. He stated that Tony denied it, and said that if he had done it he knew a half dozen other men who had been with her beside himself, and further, that he could get by with anything he did in Paragould.

The testimony of Mrs. Hancock, taken before the grand jury, was to the effect that she and Mrs. Bob McDonald talked about the trouble that Tony McDonald and Rebecca George were in, and Mrs. McDonald stated that it was Tony’s child; that they had been together in her house. She stated that Rebecca had intercourse with Tony right in her own house — she heard them, and accused Rebecca of it, and Rebecca admitted it, and told witness about it. This witness further stated that after Hughde Warren was killed she heard Mrs. Bob McDonald say that they were going to get Rebecca to swear it on Hughie Warren — they were going to do that to save Tony. There was further testimony heard before the grand jury in the investigation of the charge upon which it returned the indictment, but the above is sufficient to show that the grand jury did have before it some legal evidence. It was competent upon the investigation of such a charge to prove that the appellant and Rebecca George had associated together and had opportunities for sexual intercourse, and that a child was born to Rebecca George. It was also competent to ask Rebecca George if she had not testified before the examining magistrate that the appellant had sexual intercourse with her, and, upon her answering in the affirmative, to further ask her whether or not she was then telling the truth. After refusing to answer whether she had told the truth or not, it was for the grand jury to determine whether she had testified to the truth before the examining magistrate, and it was still within the province of the grand jury to determine whether her testimony before the examining magistrate was the truth, notwithstanding .she afterward changed her story.

Therefore, it will be readily seen that the case before us is not one where the grand jury returned an indictment without having any legal evidence whatever upon which to ground its charge. The facts clearly differentiate this case from those cases set out in appellant’s brief, and upon which appellant relies, to the effect that where no evidence at all has been heard by the grand jury, or where an indictment has been returned upon wholly incompetent testimony, the indictment may be quashed upon motion before plea. As was said in State v. Logan, 1 Nevada 509: “But the reason of the rule will not authorize the setting aside the indictment, merely because evidence not of the best legal character is received and considered. If there be nothing to support the bill but evidence clearly incompetent, and which would not be admissible at the trial, as the sole testimony of a person rendered incompetent by conviction of an infamous crime, the indictment may be quashed before plea (1 Wharton’s American Criminal Law, sec. 493), but where there is the slightest legal evidence, the court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it.”

Therefore, appellant was not entitled to have the indictment quashed under the above statute, even if the doctrine of our court were in harmony with the doctrine of the cases upon which appellant relies in his brief. But our own court, in State v. Fox, 122 Ark. 197, has definitely ruled that a motion to quash an indictment can only be made upon one of the following grounds: (1) A substantial error in the summoning or formation of the grand jury. (2) That some person other than the grand jurors was present before the grand jury when they finally acted upon the indictment. (3) That the indictment was not found and presented as required 'by law. The above grounds are those contained in sec. 3057, C. & M. Digest.

Construing this statute in State v. Fox, supra, we said: “The grounds above specified exclude any right to make such motion for any other than one of the specified causes. The motion to quash the indictment for want of legal and sufficient evidence adduced before the grand jury to warrant the finding thereof certainly does not come within the first and second subdivisions of said section, and we do not think it can be said to be included within the third subdivision that the indictment was not found and presented as required by law. * * * * It was never the purpose of the law, as clearly indicated by the statute designating the only grounds upon which a motion to quash, or set aside, an indictment can be made, that such motion could be made because of the introduction of illegal testimony or want of any testimony at all to support the return of an indictment, and thus bring the testimony and proceedings before the grand jury for review by the trial court before a plea to the charge by the accused. The grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for causes specified in the statute.”

Section 2988, C. & M. Digest, which provides that “the grand jury can receive none but legal evidence,” in view of the holding of this court in State v. Fox, supra, is directory to the grand jury only, and its failure to observe the statute does not give the accused the right to set aside or quash an indictment on account of such failure. Under our Constitution (art. 2, § 8) and statutes (§§ 2977, 3006, C. & M. Digest) the grand jury is an inquisitorial and accusatory body. Such being the case, when it has returned into court an indictment accusing a person of crime, such ! £ an indictment is only an accusation and does not even raise a presumption of guilt, and in itself can do nothing except to serve as an accusation. ’ ’ Any irregularity in the finding and return of it by the grand jury does not deprive the accused of any substantial right. Worthen v. State, 82 Ark. 321; Latourette v. State, 91 Ark. 65. When the grand jury has returned an indictment accusing a person of crime without hearing any legal evidence, such a proceeding upon the part of the grand jury does not deprive the accused of any right guaranteed to him under the Constitution. Therefore, the accused cannot have such an indictment or accusation quashed or set aside except for some cause designated by the statute and in the manner therein provided. In the absence of a statute authorizing it, it is the general rule that the court will not inquire whether there was sufficient evidence before the grand jury on which to find an indictment. 14 R. C. L. 49; 28 L. R. A. 324, note 3; note to In re William B. Kennedy, 1 A. & E. Ann. Cases, p. 842; 12 Standard Ency. Proc. 620, and cases cited in note; Lee v. State, 148 S. W. 567, 40 L. R. A. (N. S.) 1132, note.

Our lawmakers, as we have seen, in § 3057, C. & M. Digest, have expressed the grounds upon which an indictment can be quashed. The expression of these grounds excludes all others, and the fact that the grand jury has not heard any legal evidence, or has heard evidence that is hot legal and competent, is not made one of the grounds for the quashing of an indictment. The trial court, therefore, did not err in overruling appellant’s motion to quash.

2. The prosecutrix, Rebecca George, testified that she was under sixteen years of age when the appellant had sexual intercourse with her; that as a result of such intercourse she became pregnant and later gave birth to a child. Over the objection of appellant, she exhibited the child to the jury, and she was allowed to testify that the appellant was the father of the child, and she was allowed to testify to the particular occasion and time of the sexual intercourse with the appellant when the conception took place. The appellant offered to show by a certain witness that the prosecutrix had admitted to her that the child belonged to Hughie Warren, and also offered to show by certain witnesses that about the time the conception took place, according to her testimony, she was associating with one Hugkie Warren and one Bob McDonald, on certain occasions, in a manner that would warrant the conclusion that they had opportunities for, and might have had, sexual intercourse with her also about the time that she alleged the conception took place. The court, over the objection of the appellant, rejected such testimony.

In Fuller v. State, 205 Pacific 324, the charge was the crime of rape on a negro girl under the age of consent. The accused offered to show that the child, which was produced by the prosecutrix and referred to by her as the result of an act of intercourse with the accused on a certain day, was the child of another. The court said: “Stated shortly and simply, he (the accused) had a right to account for the result, i. e., the child, by showing that it was due to another cause, that is, the sexual intercourse of another. His right to 'do this was coequal with the right of the State to support the allegation of rape by showing the outcome of the act. If appellant could show that he was not the father of the child directly charged to be his, it was most material to his defense, and he should be allowed to prove it by all relevant evidence. There is no dissent in the authorities from these propositions.”

To support its holding, the court cites the following cases: State v. Mobley, 87 Pac. 815; State v. Apley, 141 N. W. 740; 48 L. R. A. (N. S.) 269, and note at page 276; People v. Flaherty, 29 N. Y. Supp. 641: Bice v. State, 38 S. W. (Tex.) 803; State v. Height, 91 N. W. (Iowa) 935-940; 59 L. R. A. 437; People v. Currie, 111 Pac. (Cal.) 108; Parker v. State, 136 S. W. (Tex.) 453; 22 R. C. L., sec. 45, page 1211. We have examined the oases cited and find that they support the court’s holdings.

It is a well established doctrine that in prosecutions for carnal abuse, the prosecutrix being under the age of consent, her illicit relations with other men, showing want of chastity, are immaterial, because in such a proseeution the chastity of the prosecutrix is not in issue, and testimony tending to prove specific acts of sexual intercourse with others than the accused is not relevant. Pleasant v. State, 15 Ark. 627; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119; Davis v. State, 150 Ark. 500. But the doctrine seems to be equally well established, as shown by the above authorities, that where the State undertakes on direct examination, as was done here, to corroborate the testimony of the prosecutrix by introducing a child which she testified was the result of the sexual intercourse with the accused, then testimony introduced by him in rebuttal, tending to prove that another might have been the father of the child, is competent and relevant. The logical tendency of such testimony would be to break down the credibility of the prosecuting witness on an issue which the State has elected to bring forward as material to the cause. Before such testimony becomes relevant, however, it devolves upon the appellant to show that the alleged acts tending to prove sexual intercourse with another occurred about the time conception took place. The testimony, in other words, to be competent must tend to contradict 'and rebut the testimony elicited by the State on the direct examination of the prosecutrix.

Without discussing the ruling of the court upon the offered testimony of each particular witness, which the court rejected, the above will be a sufficient guide to the court in determining what testimony of the character indicated will be competent on a new trial. The court erred in excluding the testimony tending to prove that the prosecutrix admitted that the child was the child of Hughie Warren and tending to show that others had sexual intercourse with the prosecutrix about the time the child was begotten.

3. The appellant offered testimony tending to contradict the testimony of the prosecutrix given before the magistrate in the preliminary trial of the appellant. The appellant did not ask the prosecutrix on cross-examinafcion any questions concerning her testimony before the examining magistrate, and did not ask her concerning specific acts of immorality or illicit intercourse with others. No proper foundation, therefore, was laid for the introduction of testimony showing that the prosecutrix had made statements contradictory to her testimony on the trial. If the appellant had asked the prosecutrix concerning the specific acts of alleged intercourse with others, and she had answered in the negative, appellant would have been bound by her answers. The offered testimony in the form presented was wholly collateral to the issue being tried, and the court, therefore, did not err in not allowing same. See Davis v. State, supra; Brust v. State, 153 Ark. 348.

4. The court quashed the depositions of certain witnesses taken by the appellant at Caruthersville, Missouri. Due and proper notice was given to the prosecuting attorney for the taking of such depositions. The depositions were not taken 'by consent, and appellant did not apply to the court, or a judge in vacation, etc., for an order authorizing him to take the depositions. Sec. 3112, C. & M. Digest, requires this be done. The above section is a part of the Criminal Code, and has never been repealed. Section 118 of the Revised Statutes, digested as sec. 130, ch. 52 of Gould’s Digest, provides as follows: “When any issue of fact is joined in any criminal ease, and any witness for the defendant resides out of the State, or residing within this State, is ancient, sick, infirm, or is about to leave the State, such defendant may apply to the court in which the cause is pending, for a commission to examine such witness upon interrogatories thereto annexed; and such court shall grant the same on the same terms as are provided by law in civil cases.”

In Gibbony v. Rogers, 32 Ark. 462, the court held that the above provision of the criminal code, which was then digested as sec. 1819 of Gannt’s Digest, and which is the same as section 3112, Crawford & Moses’ Digest, was not intended “to so alter or amend the law as it then stood in Gould’s Digest, supra, to prohibit the taking of depositions ont of the State in criminal cases and to make a distinction in that regard between them and civil cases.” But it was not there held that the depositions of witnesses residing out of the State could be taken in a criminal case without an order of the court or judge for that purpose. That was not the question before the court in Gibbony v. Rogers, supra. In that case there was an application for an order authorizing the taking of depositions of witnesses residing out of the State, and this court held that the order was necessary. So, as the law now stands, the depositions of witnesses residing out of the State may be taken in criminal eases, but such depositions can only be taken upon order of the court, etc., authorizing the same, as provided in sec. 3112 of Crawford & Moses’ Digest. The trial court therefore did not err in suppressing the depositions.

For the error indicated, the judgment is reversed and the cause remanded for a new trial.


author: Hart, J.

text:
    Wray Brothers v. H. A. White Auto Company.
    Opinion delivered October 9, 1922.
    1. Mortgages — removal op mortgaged chattel to state. — Where mortgagor, without the mortgagee’s consent, removed a mortgaged automobile into this State from another State, where the mortgage was recorded, the mortgage lien was superior to the attachment lien of plaintiffs levying in actions against the mortgagor within this State.
    2. Justices op the peace — waiver op written interplea. — Where a claimant of attached property in a justice’s court was allowed to intervene orally, and by consent plaintiffs and the claimant proceeded to try the issue between them, there was a waiver of a written interplea or a verification thereof required by Crawford & Moses’ Dig., § 544.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      STATEMENT OE EACTS.
    Wray Bros, and Emmet Vaughan brought separate suits by attachment against J. G. Galloway, before a justice of the peace, and attachments were levied upon a Buick automobile belonging to the defendant.
    The White Auto Company was allowed to intervene orally, and, by consent of the parties, the cases were consolidated and proceeded to trial between the plaintiffs, Wray Bros, and Emmet Vaughan and the interpleader, White Auto Co. The justice found for the plaintiffs and sustained the attachment. The White Auto Co: duly prosecuted an appeal to the circuit court. There the claim of Wray Bros, against J. G. Galloway for supplies and repairs on the automobile was established to the amount of $97.50. Emmet Vaughan proved that Galloway was indebted to him in the sum of $300 for legal services.
    According to the testimony of A. B. Clapp, he was the general manager of the White Auto Co.', and sold the automobile to J. G. Galloway in the State of Tennessee. Galloway paid part of the purchase money and gave his notes for the balance of it. A mortgage was given on the automobile to secure the balance of its purchase price. $1300 was the amount due on the purchase price of the automobile at the time the White Auto Co. was allowed to become a party to the present suit. The mortgage for the purchase price was duly recorded, as required by statute, in the State of Tennessee. Galloway brought the automobile to Arkansas without the consent of the mortgagee. The latter used every means to locate Galloway, and failed to do so until he was located at Cotton Plant, Ark., about three years after the automobile was sold to him and the mortgage given for the balance of the purchase price.
    According to the testimony of the plaintiffs, they did not know that Galloway had given a mortgage on the car to secure the balance of the purchase price, and they also introduced evidence tending to show that the White Auto Co. knew that the automobile in question had been brought into the State of Arkansas by Galloway.
    The court found the issues in favor of the White Auto Co., and judgment was rendered accordingly.

      Emmet Vaughan, for appellants.
    We concede that the rule of comity between States is recognized and given effect in this State, and that it is supported by the weight of authority; but we do not understand that it is a rule which should be given effect without limitation, and we do not believe that where, as in this case, the owner of property mortgaged in another State used the same as his own property in this State for three years without objection or assertion of any claim by the mortgagee in the other State, and without his making any effort to establish his rights 'here under past due notes secured by the mortgage, the mortgagee ought to be given any preference over bona fide lien holders in this State. The court should hold that the rule of comity between States is available only to those who are prompt in asserting their rights. This is a Tennessee contract. There is no proof that .the lien of a chattel mortgage there extends over a period of three years, yet it was incumbent on the appellee to prove that his lien was in existence under the laws of that State. 52 Ark. 387, 388.
    2. The motion to dismiss for want of jurisdiction should have been sustained. C. & M. Digest, § 544. There was no intervention filed at all, and nothing beforé the court to answer or controvert. The requirements of the statute are jurisdictional. 28 Ark. 362.

      E. L. Westbroohe, for appellee.
    1. Written pleadings are not required in a court of a justice of the peace. 87 Ark. 424; 115 Id. 423. Moreover, everything leading up to the trial in the justice of the peace court was by consent of parties.
    Before the trial in the circuit court appellee intervened in .writing under oath, and appellant’s motion to dismiss was made after the intervention was filed. They should have answered. 58 Ark. 446.

      2. The court properly took judicial knowledge of the fact that the lien of a chattel mortgage in Tennessee extends over a period of three years, and appellants’ reference to 52 Ark. 387 is unavailing.
    A chattel mortgage duly executed and recorded in another State upon property there situate, which was subsequently removed to this State by the mortgagor, will, by comity, be enforced in this State, if it does not appear that the removal was made with the mortgagee’s consent. 73 Ark. 16; 120 Ark. 490.
   Hart, J.

(after stating the facts). The undisputed evidence in the record shows that J. G. Galloway executed a valid mortgage on a Buick automobile to the H. A. White Auto Co. of Memphis, Tenn., to secure the balance of the purchase price thereof in the sum of $1,300, and that that sum was due and unpaid at the time the White Auto Co. was allowed to intervene in the present action.

There was also evidence to sustain the finding of the circuit court that Galloway had removed the mortgaged automobile from the State of Tennessee to the State of Arkansas, without the consent of the mortgagee. Under this state of the record the circuit court was right in holding that the mortgage lien of the White Auto Co. was superior to the attachment liens of the plaintiffs.

In F. E. Creelman Lbr. Co. v. Lesh, 73 Ark. 16, it is said that the authorities generally hold that a chattel mortgage given and duly recorded in one State will, by comity, be enforced in another State to which the mortgaged chattel lias been subsequently removed, even as against an innocent purchaser for value, where the mortgagee did not consent to its removal. This rule was reaffirmed in Vehicle Supply Co. v. McInturff, 120 Ark. 487.

In Snider v. Yates, 112 Tenn. 309, 64 L. R. A. 353, the Supreme Court of Tennessee held that a chattel mortgage given in another State on the property there situated, and recorded according to its laws, would not be enforced in Tennessee, as against an innocent purchaser for value, where the property was removed to Tennessee without the consent of the mortgagee and not recorded in Tennessee. But subsequently, in Newsum v. Hoffman, 137 S. W. 490, the Supreme Court of Tennessee receded from the views just expressed, and held that whether or not such mortgage would be enforced in Tennessee depended on whether it was removed there without the consent of the mortgagee.

The change in the holding was made to conform to what the court announced to be the weight -of authority on the question, and it will be noted that the holding in the latter case is in conformity with our own decisions on the question.

It is also insisted that the court should have sustained the motion of the plaintiffs, filed in the circuit court, to dismiss the intervention of the White Auto Co. for want of jurisdiction. This motion is based on the ground that the interplea of the White Auto Co. was not verified, as required by Crawford & Moses’ Digest, sec. 544.

The record shows that the White Auto Co. was allowed to intervene orally in the justice court, and that by consent of the parties, the plaintiffs and the White Auto Co. proceeded to try the issue of law and fact between them. This amounted to a waiver of a written interpl'ea or a verification of it under the statute. The court had jurisdiction of the parties and of the subject-matter of the lawsuit. -Their consent to try the case and their appearance in court for that purpose dispensed with the requirement of the statute both in regard to a written interplea and the verification of it. See Hill v. Imboden, 146 Ark. 99, and Burke v. Sharp, 88 Ark. 433.

It follows that the judgment must be affirmed.


text:
    Locke v. Fort Smith.
    Opinion delivered October 9, 1922.
    Intoxicating liquors — transportation.—Where defendant, at the solicitation of a friend, got in an automobile for a ride and then found that his friend had been drinking and decided to take him home as soon as he could get him to go, and, seeing a bottle of liquor on the seat, put it in his pocket during the ride, he did not violate a city ordinance against transporting liquors substantially in the language of Crawford & Moses’ Dig., § 6165; to constitute the offense, the liquor must be in the act of being conveyed from one objective point to another.
    Appeal from Sebastian Circuit Court, Fort Smith District; Johm Brissolara, Judge;
    reversed.
    STATEMENT OF FACTS.
    Ed Locke was convicted in the municipal court of the city of Fort Smith of the crime of transporting intoxicating liquor in said city. He appealed to the circuit court and was tried upon substantially the following testimony:
    Walter Blair drove up to the house of Ed Locke and asked him to go riding with him. After some persuasion, Locke got in the car with Blair and drove around the streets of the city of Fort Smith with him for a short time. When Locke got in the car there were two pint bottles of whiskey lying on the seat. Locke and Blair each put one of the bottles of whiskey in his pocket. After driving around the streets for a short time, Locke and Blair were arrested and placed in jail.
    According to the testimony for the city, both Locke and Blair were drunk at the time they were arrested. According to the testimony of Locke, he was not drunk at the time he was arrested, and had only taken one drink of whiskey with Blair. His testimony was corroborated by that of other witnesses. The officers testified that the whiskey in the bottles found in the possession of Locke and Blair was moonshine corn whiskey.

      The case was tried before a jury, which returned a verdict of guilty, and from the judgment of conviction Locke has duly prosecuted an appeal to this court.

      T. 8. Osborne for appellant.
    The charge is transporting liquor into the city, or from one place in the city to another place in the city. This charge is not supported by evidence that the accused merely rode around in the city with a friend in the latter’s automobile, without other purpose. 102 Pac. 57; 2 Okla. Or. 362; 103 Pac. 538; 2 Okla. Cr. 519; 111 Pac. 947; Id. 1023; 115 Id. 603; 4 Okla. Or. 376; Id. 654.
   Hart, J.

(after stating the facts). Locke was charged with a violation of ordinance 1203 of the city of Fort Smith. Section one of the ordinance reads as follows : ‘ ‘ That it shall be unlawful for any person, firm or corporation or association in any manner to transport into the city, or from one place to another place in the city, or for any railroad company, or express company or other common carrier, or any officer, ag’ent or employee of any of them, or any other person, to ship or transport into, or deliver in the city in any manner, or by any means whatsoever, any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, medicated liquors, except as provided for in section sixteen.”

The ordinance is substantially a copy of see. 6165 of Crawford & Moses’ Digest made applicable to a city. The dictionary meaning of the word “transport” is to carry or convey from one place or station to another. The language of the statute makes it unlawful to transport intoxicating liquors from one place to another place in this State. '

The language of the ordinance makes it unlawful for any person to transport into or from one place to another place in the city intoxicating liquors.

From the language used the court is of the opinion that the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in a city or county, to another locality in the State, or city or county. These places must he separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense the liquor must he in the act of being conveyed from one objective point to another. The name of one or even both of the places might be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one place or locality to another in order to render him guilty under the statute, or under an ordinance based upon the statute. We think this holding is in accord with Hager v. State, 141 Ark. 419.

Tested by this rule, the evidence introduced by the city is not legally sufficient to warrant a verdict of guilty. When considered in its strongest light, the evidence only shows that the defendant, at the earnest solicitation of a friend, got into the latter’s automobile for the purpose of riding about the streets of Fort Smith. The defendant ascertained that his friend was drinking, and formed the intention of getting him to go home as soon as he could. He also pul one of the bottles of whiskey he found on the seat of the automobile in his pocket, while the owner of the automobile put the other one in his pocket. The' evidence falls short of showing, however, that the defendant got into the automobile for the purpose of carrying or assisting his friend in conveying the liquor from that place to the home of the defendant’s friend. The main purpose of getting in the automobile by the defendant was to take a ride over the streets of the city with his friend, and the design of taking his friend home, as soon as he could get him to go, was formed because his friend was drunk, and not for the purpose of assisting him in carrying home the two bottles of whiskey.

It follows that the judgment must be reversed, and, inasmuch as the facts seem to have been fully developed, the cause will be remanded, with directions to dismiss the charge against the defendant.