author: Smith, J.

text:
    Crank v. State.
    Opinion delivered September 29, 1924.
    1. Indictment and information — conviction of another offense. —Under an assault with intent to commit rape, defendant cannot be convicted of assault and battery, unless the indictment alleges a battery.
    2. Criminal law- — harmless error. — Though defendant was erroneously convicted of assault and battery under an indictment which would have sustained a conviction of a simple assault, no prejudice resulted if the fine imposed did not exceed the maximum penalty which might have been imposed for the latter offense.'
    3. Witnesses — right to ask leading questions. — It is within the discretion of the court to permit a party to ask his youthful witness leading questions if it appears proper and necessary to do so to elicit the truth.
    Appeal from Sebastian Circuit Court, Fort Smith' ■ District; Jolm E. Tatum, Judge;
    affirmed.

      John D. ArbucJcle, /or appellant.
    J. S. TJtley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was convicted of assault and battery, on a trial under an indictment the charging part of which reads as follows: ‘ ‘ The said defendant, A. W. Crank, in the county, district and State aforesaid, on the 10th day of September, 1923, did unlawfully, forcibly and feloniously make an assault upon Beatrice Mathews, with the unlawful and felonious intent to then and there forcibly, unlawfully and feloniously and against her will and consent to rape, ravish and carnally know the said Beatrice Mathews, she, the said Beatrice Mathews, being a female under the age of sixteen years, against the peace and dignity of the State of Arkansas. ’ ’

The girl alleged to have been assaulted was twelve years old, and appellant was fined $100, and it is first insisted that he could not be convicted of assault and battery because the indictment contains no allegation of a battery.

This is true. This court has uniformly held that, in cases of this kind, and in prosecutions for assault with intent to kill in which'an assault is charged, there can be no conviction of a battery unless the indictment contains allegations to that effect. In other words, a battery musí be charged to sustain a conviction for that offense. McAlister v. Gunter, 164 Ark. 611; Jones v. State, 100 Ark. 195; Bryant v. State, 41 Ark. 359.

It is true, in the case of Moreland v. State, 125 Ark. 24, the defendant was indicted-for assault with intent to rape, and a conviction for assault and battery was sustained, but no point was made that the indictment did not allege a battery, -and it does not appear from the opinion in that case that the indictment omitted that allegation.

It does not appear, however, that there was any prejudice to appellant in the verdict returned. The punishment for simple assault is a fine not exceeding $100, and the punishment for assault and battery is a fine not exceeding $200, and for either offense a fine as low as one cent might be imposed. The jury might therefore have assessed appellant’s fine at less than $100, although they found him guilty of assault and battery, if they had thought proper to do so, yet it was fixed at that sum, thus clearly evidencing a purpose to impose a fine of a hundred dollars, for a fine either lower or higher might have been imposed for that offense.

Now, as we have said, a fine of a hundred dollars is authorized by law upon a conviction for simple assault, and the jury must necessarily have found appellant guilty of simple assault to have convicted him of assault and battery, for, if he was guilty of assault and battery, he was necessarily guilty of simple assault, as the lesser-offense is embraced in the greater, and, having found that the punishment should be fixed at a hundred dollars, that finding will not- be disturbed, because it is a punishment which could have been imposed for the lesser offense as well as for the greater one.

It is next insisted that the court erred in permitting the prosecuting attorney to ask leading questions in the examination of the girl alleged'to have been assaulted. It' does appear that some of the questions were somewhat leading, but it will be remembered that the witness was only twelve years of age, and the court has a discretion to permit leading questions to be asked if it appears proper and necessary to do so to elicit the truth, and the action of the trial court in so doing will not be disturbed unless there appears to have been an abuse of this discretion, and there appears to have been no abuse of discretion here. Murray v. State, 151 Ark. 331; Bullen v. State, 156 Ark. 148.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Almond v. State.
    Opinion delivered September 29, 1924.
    Prostitution — pandering act — evidence.—Under an indictment under the pandering act (Crawford & Moses’ Dig., § 2703), for taking and detaining a female person for the purpose of sexual intercourse upon a pretense of marriage, evidence that defendant, a married man, induced a female person to leave her home and go with him upon a promise of marriage, upon his sub■sequently securing a divorce, is insufficient.
    Appeal from Washington Circuit Court.; W. A. Dickson, Judge;
    reversed.

      C. D. Atkinson, for appellant.

      J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant has prosecuted an appeal to this court ,to reverse the judgment in the circuit court of Washington County against him for violating § 2703 of Crawford & Moses’ Digest, commonly known as the “pandering act.” The body of the indictment is as follows :

“The grand jury of Washington County, in the name and by. the authority of the State of Arkansas, accuse Archie Almond of the crime of pandering, committed as follows, to-wit: The' said Archie Almond, in the said county of Washington and in the State of Arkansas, on or about the 16th day of March, 1924, being then and there a male person, did unlawfully and feloniously and hy means of promises, artifice and fraud, and upon a pretense of marriage, inveigle, induce and persuade one Delia Huber, a female person, to leave her home, and, not being the husband of the said Delia Huber, did unlawfully and feloniously take and detain her, the said Delia Huber, for the purpose of sexual intercourse, against the peace and dignity of the State of Arkansas.”

Appellant’s first assignment of error is that the indictment does not sufficiently charge an offense under said .section of the statute. There is a provision in the pandering statute making it an offense to take or detain a female person for the purpose of- sexual intercourse on the pretext of marriage, and the indictment sufficiently charged this offense.

Appellant’s next assignment of error is that the evidence was insufficient to sustain the charge, and that the court erred in refusing to direct a verdict in favor of appellant. The undisputed facts are that appellant was a married man, and so informed the prosecutrix, Delia Huber, who was staying with her grandmother, four or five miles southwest of Lincoln, in Washington County, Arkansas.

Appellant and Delia Huber became acquainted on the 9th of March, 1924, and a short courtship ensued, to which the grandmother objected when appellant informed them that he was a married man. On March 16, 1924, after the grandmother interposed an objection to the courtship, appellant wrote Delia a letter in which he stated that he wanted her, and requested that she meet him at the lane. After dark she met him at the appointed place, whereupon they agreed .-to go to Fayetteville, where he would get a divorce and marry her. They immediately set out on foot for Fayetteville, traveling most.of the night and next day. During the night they engaged in sexual intercourse. They spent the second night, under the claim of being husband and wife, at the home of Anna Striokler, where again they engaged in sexual intercourse. The following morning they were arrested, and appellant was lodged in the county jail.

We agree with appellant that the evidence was insufficient to sustain the charge. The meaning of the clause, “upon the pretense of marriage,” as employed in the statute,- contemplates the procurement of sexual intercourse by a male with a female through a fictitious, fraudulent or pretended marriage, and has no relation to a promise of marriage in the future. The undisputed facts show that appellant practiced no artifice or fraud through a pretended marriage upon the prosecutrix. He told her, before they started to Fayetteville, that he was a married man, and would not marry her until he obtained a divorce. He simply made a promise to marry her in the future upon the contingency that he secured .a divorce, and made no misrepresentations to her of any fact having a present existence. The trial court should have directed a verdict for appellant, and, on account of the error in not doing so, the cause is remanded, with directions to dismiss the indictment and discharge the defendant.


text:
    Hill v. Williams.
    Opinion delivered September 29, 1924.
    Elections — contest op primary election — sufficiency op complaint. — Where a complaint in a contest of a primary election for the nomination of sheriff alleged irregularities and fraud in general terms, and challenged the legality of certain votes, but failed to set out the number of votes received by each of the four candidates, a demurrer to the complaint was properly sustained, as it failed to show that plaintiff received a plurality of the legal votes cast at such election.
    Appeal from -Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Edward Gordon, for appellant.
    The court erred in sustaining the demurrer to the complaint. To determine whether there is a cause of action stated, the face of the complaint must alone be looked to. 123 Ark. 505. A complaint must be tested on demurrer by its own allegations. 87 Ark. 418. In determining whether or not a demurrer to a complaint should be sustained, every allegation made therein, together with every inference deducible therefrom, must ibe considered. 122 Ark. 502. Where a demurrer to a declaration is filed in which no special cause of demurrer is assigned, this court will consider it only as a general demurrer. 2 Ark. 128; 160 Ark. 273.

      J. W. Johnston,, Galvin Sellers and W. P. Strait, for appellee.
    The court did not err in sustaining the demurrer. Section 1096, 1097, C. & M. Digest; 33 Ark. 497. A necessary party to an action is one without whose presence a substantial judgment cannot be made. 58 N. T. Supp. 748; Hun. 606; 17 Pac. 751; 9 Am. St. Rep. 245; 47 Pac. 1; 75 Mass. 313; 75 N. E. 313; 988 Pac. 16. All parties having an interest adverse to the contestant should be brought in as contestees. 20 Corpus Juris 223; 77 So. 996; 42 N. W. 401; 111 N. E. 980; 90 N. E. 203.
   Humphreys, J.

This suit was filed in the circuit court of Conway County by appellant against appellee, under authority of § 3772 of Crawford & Moses’ Digest, for the purpose of contesting.the election of appellee as sheriff and collector of said county and the certificate of nomination issued (to him by the Democratic Central Committee in the primary election of August 12, 1924. The-complaint is quite lengthy, and it could serve no useful purpose tó set it out in full. Suffice it to say that it contained many allegations of irregularities and fraud in general terms, partaking of the nature of conclusions. It specifically challenged the legality of certain votes, and charged that, if all illegal votes were thrown out, appellant was, and should be declared, the nominee of the Democratic party for sheriff and collector of said county. It alleged that there were four candidates for the office of sheriff and collector, including appellant and appellee, but failed to set out the number of votes received by each.

A demurrer was interposed to the complaint, which, upon hearing, was sustained by the court, and, upon failure to plead further, the complaint was dismissed, from which judgment of dismissal an appeal has been duly prosecuted to this court.

Appellant contends that the trial court erred in ruling that no recoverable cause of action was alleged in the complaint and in sustaining the demurrer thereto. We cannot agree with appellant in this contention. It was incumbent upon appellant to allege facts, and not conclusions, which would disclose, if true, that he received a plurality of all the votes cast for sheriff and collector in said county. The allegation that certain votes were cast for and accredited to one of his three opponents would not of itself show that he received the highest number of votes in the election for said office. There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.

The demurrer to the complaint was properly sustained, as the general allegations therein of irregularities and fraud were mere conclusions, and the specific allegation failed to show that appellant received a plurality of all the legal votes cast for sheriff and collector at said election.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Evans v. State.
    Opinion delivered September 29, 1924.
    Criminal law — admonition to jury to agree upon verdict. — Where the jury appeared in court room to report their inability to reach a verdict, and the court asked how they stood numerically, to which the foreman replied that the jury stood ten to two for conviction, whereupon the court admonished the jury as to their duty to make every reasonable effort to agree upon a verdict, held no error.
    Appeal from Mississippi Circuit Court, Ohickasawba District; G. E. Keck, Judge;
    affirmed.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted on tbe trial below under an indictment charging him with the offense of selling alcoholic liquor. He perfected his appeal, but there has been no appearance by counsel, and we must look to the motion for a new trial to determine the assignments of error. The first relates to the sufficiency of the evidence.

It is not difficult to determine that the evidence is legally sufficient, for one of the witnesses testified positively and unequivocally that she was present when appellant made a sale of whiskey to another person. There was a conflict in the testimony, but, as there was testimony of a substantial nature to support the verdict, we will not disturb the finding of the jury.

The other assignment of error relates to an incident in the proceedings when the jurors appeared in court to report their inability to reach a verdict. The court asked how the jurors stood numerically, but did not ask for a statement as to the side on which the majority stood. The foreman, however, responded that the jury stood ten to two for conviction. The court thereupon, on its own •motion, delivered to the jury an admonition as to their duty to make every reasonable effort to agree upon a verdict. We have held that it does not constitute reversible error for the court to elicit a statement as to how the jury stood numerically. Murchison v. State, 153 Ark. 300; Phares v. State, 158 Ark. 156. In neither of those cases was there a statement made as to the side on which the majority was arrayed, hut we think the fact that the information is made public on that subject does not constitute prejudicial error. There was nothing in the remarks of the court calculated to operate as an invasion of the province of the jury or to unduly influence the jury. The court admonished the jurors that it was their duty not to yield their convictions, but to endeavor, in conference with each other, to reconcile their conflicting views and reach a verdict consistent with their conviction as to the law and testimony in the case.

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


text:
    Jones v. Smith.
    Opinion delivered September 29, 1924.
    1. Elections — right op absentee electors to vote. — Crawford & Moses’ Dig., § 3810 et seq., providing that electors unavoidably absent on the day of a general or primary election may east their votes in any other county and have their ballots forwarded to the county of their residence, to be there counted, does not violate § 1 of art. 3 of the Constitution, which prescribes the qualifications of electors.
    2. Statutes — rule op ejusdem generis. — Where a detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated.
    3. Elections — construction op absentee voters statute. — Under Crawford & Moses’ Dig., § 3810, authorizing “any employee of any railroad company, traveling salesman, student of any college of this State, or other person,” who may be unavoidably absent from the county in which he resides, to deposit his vote at any voting' precinct within the State, the words “or other person” are general and not limited to the classes of persons specifically named.
    4. Elections — voters unavoidably absent. — In authorizing electors “unavoidably” absent from the county of their residence to vote at any voting precinct in the State, the statute has reference to unavoidability on account of ordinary duties, occupation or business.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.

      W. G. Rodgers, for appellant.
    1. The absentee voters in this case do not come within the statute, C. & M. Digest, § 3810, allowing absentees to vote in certain instances. The object to be attained and purpose of the Legislature must be kept in mind in construing the statute. 109 Ark. 556, 563; 132 Ark. 1, 7. Tinder the well established rule of construction which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong, the words “or other person,” clearly belong to the class of persons coming within the the terms “employee of any railroad company, traveling salesman, student of any college in this State.” 73 Ark. 600, 602; 95 Ark. 114, 116.
    2. The statute itself is unconstitutional. Art. 1, § 3, Const. 1874. We are necessarily dealing with a legal election, since primary elections are made such by statute, C. & M. Digest, § 3780. That the statute in question, C. & M., § 3810, is unconstitutional, is shown, we think, by the opinion in Jones v. Floyd, 129 Ark. 185, 191. See also 50 Ark. 85.

      George R. Steel and W. P. Feasel, for appellee.
    1. If it had been the intention of the Legislature to limit the right to vote under the absentee law, to the three classes named, railroad employees, traveling salesmen and students, it would certainly have omitted the words “or other person.” Appellant’s contention would render that phrase meaningless and superfluous. The Legislature clearly had in mind persons other than those specified. • 133 Ark. 587; 136 Ark. 533; Century Diet., “Other”; 106 Ark. 376. We do not think the statute is susceptible of the construction that it refers to persons who are far away from their homes on election day, as is contended by appellant. Absence from his county because of bis duties and employment brings the voter within the purview of the statute, without reference to the distance.
    2. The statute is not unconstitutional. Jones v. Floyd, 129 Ark. 185, cited by appellant, bears no analogy to this ease. The procedure prescribed by this statute does not, where complied with, constitute voting in the county where the absent voter happens to be on the day ■of the election, but merely furnishes the voter, who is unavoidably absent, a method of voting in his own county and precinct, notwithstanding his physical absence. Moreover, constitutional provisions do not apply to primary elections. 159 Ark. 207; 160 Ark. 274.
   McCulloch, C. J.

Appellant and appellee were rival candidates at the primary election of the Democratic party on August 12, 1924, for the office of circuit clerk of Howard County, and appellee was, by the canvassing board of that county, returned as the party’si nominee for that office by a majority of six votes. Appellant instituted a contest against appellee for the nomination in the circuit court of Howard County, and a final judgment was rendered, after hearing testimony, in favor of appellee, upon a finding by the court that appellee had received a majority of nine votes.

Under the statute authorizing absentee residents of a county to vote (Crawford & Moses’ Digest, § 3810 et seq.), there were forty votes cast, most of them for appellee, and the result of this contest turns upon the question of the validity of those votes. The facts with reference to the casting of each of these votes were the same, and, if the ballots are valid, appellee has won the nomination; but, on the other hand, if the ballots are invalid, appellant has won the nomination.

' The absentee voters were severally residents of various townships in Howard County, but, on the day of the election, they were in Pike County, which adjoins Howard, and were engaged as laborers in the harvesting of peaches in a large orchard in Pike County. It has been shown that this orchard where the voters in question worked was located about four miles from the Howard County line.

It is contended that the statute, in attempting to confer the right on absentees to vote in elections, is violative of that clause of the Constitution (art. 3, § 1) which prescribes, among the qualifications of an elector, that he must have ‘ ‘ resided in the State twelve months, and in the county six months, and in the voting precinct or ward one month next preceding any election where he may propose to vote.” The statute authorizing absentees' to vote at elections applied both to general and primary elections. It provides that “any employee of any railroad company, traveling salesman, student of any college of this State, or other person, being a qualified elector of the State of Arkansas, who may, on the occurrence of any general or primary election, be unavoidably absent from the county in which he resides and is a qualified elector therein, because his duties, occupation or business require him to be elsewhere within the State on the day of any general or primary election,” may vote for any township, county, district or State officer, etc. The statute further provides a method whereby an absentee from his county may vote. It provides that the voter shall present himself to the election officers of any precinct where he may be on the day of the election, and tender his ballot, together with an affidavit in prescribed form, and that the ballot shall be received by the election officers, sealed in an envelope and delivered to the county clerk of that county, who is to forward the same to the county clerk of the voter’s residence, and that the latter shall preserve the ballot and deliver it to the canvassing board of the county when the same is convened1 for the purpose of canvassing the returns. The statute further provides that the ballot, if found to be legal, shall be returned among the ballots of the township in which the absent voter resides.

The argument of counsel for appellant is that the statute attempts, in violation of the Constitution, to permit a person to vote outside of the county of his residence, but we are of the opinion that this argument is unsound. A. ballot cast pursuant to this statute is, in effect, one. cast in the county, township and voting precinct of the _abs,ent voter, even though the voting process begins in another county. The Constitution does not specify the method of conducting an election, except that the election shall be by ballot, that the election officers shall be sworn not to disclose how any elector shall have voted, except when required to do so in a judicial proceeding, and that each ballot ‘ ‘ shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters opposite the name of the elector who presents the ballot.”- Art. 3, § 3. Aside from those constitutional restrictions, the Legislature has power to devise the method for conducting an election, and to provide for election officers charged with the duty of complying with the constitutional requirements, so this statute does not violate those limitations mentioned above by allowing absent voters to deliver their ballots to election officers in other counties, to be forwarded tó the county of the voters’ residence and there returned as a part of the ballots in that county. We have nothing to do with the question of the wisdom -or policy of granting this privilege to absent voters, but we find nothing in the Constitution which prohibits the Legislature from authorizing ballots to be cast in that manner, for the effect is to allow the -ballot to be cast in the voting precinct where the absent voter resides, and all of the requirements of the Constitution are thus complied with with respect to the election being by ballot and each ballot numbered and recorded. This is all done by the machinery provided in the- statute which authorizes absentees to vote.

Counsel relies on the case of Jones v. Floyd, 129 Ark. 185, as a decision in favor of his contention, but we find nothing in that case which has any bearing on the question involved in the present one. In that case we dealt with a -statute which provided that, where any person was transferred by order of the county court from one school district to a school district in another county, lie. should have the right to .vote in the-district-to Which he had ¡been transferred, and we held that the statute was iñ conflict with the constitutional provision hereinbefore referred to. The Constitution prescribes residence as a qualification, and the statute under consideration in that case attempted,to grant the elective franchise to a person who was not a resident of the county or district, and we decided that the statute was void. , The statuté under consideration in the present case does not attempt to permit a voter to cast his ballot outside of the county or precinct of his residence. On the contrary, the statute merely permits him, in case of absence from the coutffy, to deposit his ballot, to be forwarded to'the'cofinty of'his residence and there to be treated as one of the- ¡ballots cast in the township where the voter resides.

It is also contended that these voters did not come within the class of persons mentioned in the statute who may take advantage of the privilege of voting when absent from the county. It is not shown that the voters in question were employees of “any railroad company, traveling salesmen, student of any college-of this-State,’” and it is insisted-that the words “or -other person” should be construed, under the rule of ejusdem generis, to - apply only to the same class of persons specifically ■mentioned. We have often held that the rule referred to should be employed only to aid in construing- a statute rather than to control the construction in the face of thé expressed meaning- of the lawmakers, -and that, “where the detailed enumeration -embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated.” Wallis v. State, 54 Ark. 611; American B. & L. Assn. v. State, 147 Ark. 80; Mason v. Inter-City Terminal Ry. Co., 158 Ark. 542. In the- present instance, if the words “or other person.”'be construed to have reference alone to persons of the class specifically enumerated, then no meaning - whatever, .is given to them, and they, are entirely eliminated, from the effect to be given to the statute. .

It is further contended that the voters in the present instance were not entitled1 to the privilege of Casting their ballots as absentees, for the reason that they were only a short distance away from the county line, and are not shown to have been in fact unavoidably absent from the county. It is unnecessary to decide in this case to what extent there may be a judicial determination of the question of unavoidability of the absence of such a voter from his county, for the evidence shows that these voters were in fact absent on account of being laborers in an orchard where peaches were being harvested, and their duties as such laborers brought them within the terms of the statute. The language of the statute has reference to unavoidability on account of ordinary duties, occupation or business. It is a' relative term when thus employed, and its extent cannot be accurately measured or defined, therefore in any judicial review much latitude must at least be allowed the voter in determining whether or not his absence is unavoidable.

Our conclusion upon the whole case is that the decision of the trial court was correct in allowing the ballots of the absent voters to be counted, and the judgment is therefore affirmed.


text:
    McFarland v. State.
    Opinion delivered September 29, 1924.
    l; Criminal law — burden of proof. — Where accused objected to. a witness testifying on the ground that she was his wife, it devolved' upon him to prove such fact.
    2. ' • Criminal law — failure to submit question to jury. — Failure of the trial court to submit the question of the competency Of a witness to the- jury was not reviewable in the absence of a request therefor,- •
    3. . Criminal law-t-harmless error in excluding evidence. — While it was error to exclfide.testimony of accused in a murder case that". 'a witness who testified in the case against him was his wife, such -" error was harmless where the jury, by their-verdict, gave him the - • ' benefit of the sentimental' reason that his home had been invaded by deceased in his absence by finding him guilty of manslaughter only.
    4. Homicide — instruction as to right to defend habitation. — An instruction as to accused’s right to kill in self-defense, or in defense of his habitation, was properly refused where, at the time of the killing, accused was neither defending his habitation nor resisting an assault.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    affirmed.

      R. D. Smith and Mann <& McCulloch, for appellant.

      J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

The grand jury of Lee County returned an indictment against appellant for the crime of murder in the first degree, alleged to have been committed by shooting and killing Theodore Williams. On the trial of the cause appellant was convicted of manslaughter, and his punishment fixed at four years in the penitentiary.

The killing occurred at night, in a house in MJarianna, where appellant lived with a women named Velma, whom he claimed to have married. They had lived together for about seven years, but Velma testified that she had never been married to appellant. They were all negroes, and the shooting occurred in a room that had been rented to another woman named Annie Taylor, adjoining the room occupied by appellant and Velma.

At the beginning of the trial the State offered to introduce Velma as a witness, and appellant objected on the ground that she was his wife. The court permitted testimony to be introduced on the preliminary question as to the competency of the witness, but ruled1 that the burden was on appellant to show that the woman was his wife, and therefore incompetent. This ruling is assigned as error, but we are of the opinion that the court was correct. Appellant interposed an objection to the competency of the witness on the ground of his alleged intermarriage with her, and it devolved upon him to establish the grounds of incompetency. This required affirmative testimony, and the State was not bound to prove the negative. The court overruled the objection, and,; as before stated, permitted Velma to testify. She gave an account of the killing, and her testimony coincided with the testimony of the other woman, Annie Taylor, who lived in the adjoining room.

It appears from the testimony that appellant and Velma had rented the house in question and had been living there for nearly a year. Appellant worked on a farm and lumber camp several miles from town, and usually came to town on Saturday and stayed .over until Monday with Velma. They shared the expenses of the house jointly, and, according to witnesses, they appeared to be living together as husband and wife, and Velma bore appellant’s name of McFarland.

On the night that the killing occurred, according, to the testimony of Velma, appellant came home about ten o ’clock and knocked on the door, and, on being admitted, had a pistol in his hand, and stated that some one was in the room with her. She testified that Theodore Williams had been in the room a short time before, but had not been in bed with her, and that he had been accustomed to coming there when appellant was at home. Williams had, a short time before, gone into the adjoining room occupied by Annie Taylor. Appellant went into one of the rooms occupied by Annie, and, not finding Williams there, he went to the door of the other room and tried to push it open, but it was propped, and he fired through the door, and the shot took effect in Williams’ body. Williams got out of the house through a window and fled from the premises, but died from the effects of the wound.

Appellant himself gave a different account of the-story. He testified that, when he knocked on the door, he had to do so repeatedly, and finally his wife, as he called Velma, answered and told him to wait a minute, and when she finally opened the door he saw that something was wrong. He said that he did not have a pistol, but that he found a pistol lying on the center-table' in the room, and he discovered that some one had recently left the room. He testified that he went into the room of Annie Taylor, and that ¡Williams, who was in another one of Annie’s rooms, threatened to shoot if he entered, and that he fired a shot through the door. •

During the examination of appellant as a 'witness he was asked to state whether or not he was marriéd to Velma, but the court sustained the objection of the prossecuting attorney to this question. Throughout his testimony, however, appellant referred to Velma as his wife, and no further objection was made.

The court properly decided, as a preliminary, the question of the competency of Velma as a witness. It is unnecessary to determine whether or not appellant, notwithstanding the court’s decision, had the right to have that question submitted to the jury, for no request was made for the submission of that question. Counsel for appellant were content with saving an exception to the court’s refusal to allow appellant to testify that Velma was his wife. This was after she had been permitted to testify and give her version of the circumstances attending the killirig. We are of the opinion! that appellant was entitled to make the statement to the jury that'the woman was his wife, for it had a bearing on the issues-in the case as to the rights of the parties -in enjoying the premises', and the motive of appellant in attempting to expel- Williams from the house. Our conclusion, however, is that no'prejudice resulted from this ruling of the court. The verdict of the jury found appellant "guilty only of the crime of manslaughter, though the punishment was fixed at more than the minimum. The jury evidently gave appellant the benefit of the established fact - that the killing occurred at the home of appellant, where he and1 Velina were living apparently in the relation of husband and -wife, even though they were not legally-married, and-the jury evidently gave appellant' the benefit of the sentimental reason that his home had-been invaded in his .absence.' The .jury evidently took ;thése facts into consideration in finding appellant .guilty of á lower offense -of homicide and fixing the punishment at a .period of imprisonment not np to- the maximum allowed by law. Appellant’s own testimony is hardly sufficient to show a legal justification for the killing, for it was not done in necessary .self-defense. It is true he states that Williams cried out in the back room of Annie Taylor’s part of the premises that he would1 shoot if appellant went into the room, but there was no effort made! to shoot, and it is not shown that Williams was armed. The room where Williams was at the time he was shot was not one over which appellant had any control, for it had been rented to Annie Taylor, and appellant had no legal right to go into that room to' expel Williams therefrom, even though the latter had previously violated appellant’s rights by being in the room with the woman whom he claims to be his wife. Considering all of these 'circumstances, our conclusion is .that there was no prejudice in the court’s refusal to allow appellant-to testify directly that the woman was his wife.

Error is assigned in the refusal of the court to give the following instruction:

. “1. You are instructed that, if defendant had reason to believe that he would probably be attacked by the deceased in defendant’s own home, then, as a matter of law, he had a perfect right to arm himself and prepare for his defense; and if the defendant, situated as he was, viewing the facts and circumstances as they appeared to him and from his viewpoint, and had reason to believe and did believe that he was in imminent and immediate danger of losing his life or receiving some great bodily harm .at the hands of the deceased, and in good faith, without negligence on his part, he shot and killed deceased, then such killing would in law be justified, and you should acquit the -defendant.”

.'This instruction is based, it will be observed, upon the 'hypothesis that the killing was done in defense of habitation, but the instruction is not applicable, for such are not the facts of the case. According to the undisputed evidence, when appellant went into his own part of the premises, Williams had retired from the room and was .then in a room occupied and' controlled by Annie Taylor, over which appellant had no control. Appellant was therefore not engaged in the defense of his home at the time he attempted to follow Williams into another part of the premises. Nor is it claimed that he was resisting an attack at the time he fired the shot at Williams. All that he claims is that, while he was attempting to get into the room where Williams was, the latter threatened to .kill him if he came in. This did not give,him’the right to fire the shot, for, as before stated, he was neither defending his habitation nor resisting an assault.

• ;The court gave another instruction at the request of appellant, telling the jury that.it was not essential, to justify the killing, that it should appear to the jury to have been necessary, but that, if it appeared to the accused, without fault or carelessness on his' part, that the danger was so urgent and pressing as to make the killing necessary, to save his own life, then he would be justified. This instruction was sufficient.

These are the only assignments of error that are argued in the brief, and we assume that there are no other assignments relied on.

There is no error in the record, and the judgment is affirmed.


text:
    Warren v. McRae.
    Opinion delivered September 29, 1924.
    1. Officers — election commissioners. — County election commissioners are public officers, with definite term, duties and emolu- . ments prescribed by the statutes.
    2. ' Elections — removal of county commissioners. — The position of county election commissioners being a public office with a fixed term, and there being no power of removal conferred by statute, the State Board of Election Commissioners had no authority to remove county election commissioners after their appointment and qualification.
    3. Certiorari — review of acts of state election board. — Where the State Board of Election Commissioners, without authority, attempted to remove a county board of election commissioners, their act, being gwasi-judicial, may be quashed on certiorari.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      J. G. Marshall, for appellants.
    The lower court did not dispute the proposition that a removal from an office like this is a judicial act, but said that the only way the board could remove was by a new appointment, and that an appointment being a ministerial act, the removal was also. This position is erroneous, first, because the complaint alleges a positive order of removal, which the demurrer necessarily admits; second, if the appointment is relied on as a removal, it is as much a removal as one made by positive order; and third, the board has no power to remove.The removal of these appellants being a judicial act, it becomes a question of law, reviewable on certiorari, 126 Ark. 125; 11 C. J. 108. And the order of removal may be quashed for want of jurisdiction on the part of the State Board of Election Commissioners to make such order. 61 Ark. 605; 165 S. W. 746; 109 Ark. 100; 86 Ark. 55-5. The claim that, because the State board appointed the county board, the latter held at the will of the former, and were, and are, removable at pleasure, etc., overlooks the fact that the county election commissioners are regular officers of the county; that they have judicial powers such as fixing precinct boundaries, removing election judges, etc; that it is an office of honor, with fixed term, duties imposed, and some emoluments. All these .are characteristics of an office, as has frequently been held by this court. 134 Ark. 514, and cases cited. The decision in Bruce v. Mattock, 86 Ark. 555, is controlling here on the question of removal, for, while the statute, C. & M. Digest, § 3711, does not in words state that the appointment shall be made biennially, it is impossible to escape the conclusion that this statute limits the appointment of county boards to the time stated, and creates an office for two years. A vacancy is never created by appointment of a successor except where there is no term attached to the office. 21 L. E. A., 545. There is no vacancy if there be an incumbent, even a de facto incumbent. Id; 72 Ark. 99. A judgment void on its face may be quashed on certiorari. 82 Ark. 330, and cases cited. The remedy suggested by the appellees as the proper course to pursue in lieu of certiorari, an action for usurpation of office, would not lie. It could not be brought by the Attorney General, because he is a party to the suit, and a suit by the plaintiffs themselves would not lie because, even if the new appointees had taken over the office, it would be under color of title, and not usurpation. 133 Ark. 516. That action would not lie also because the new board allowed its rights or claims to lapse by failing to take the oath of office within the time prescribed by the statute, C. & M. Digest, § 3712, which provides that the county board shall meet and organize at least twenty days before the election. 42 Ark. 93.

      J. S. Utley, Attorney General, and Emerson S Don-.ham, for appellees.
    The statute, O. M. Digest, § 2237, does not enlarge the scope of the writ of certiorari at common law, and under it certiorari is limited.to the review of judicial or gwusLjudicial proceedings. 62 Ark. 196. It is the office of certiorari to quash irregular proceedings, but only for ¡errors apparent on the record. It will not go beyond the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding upon facts. 20 Ark. 523. • -The action of the appellees in appointing ‘new commissioners to succeed appellants, was a ministerial act, and not judicial or gMasi-judicial. Nothing in the statute, O. & M. Dig. § 3712, indicates the length of time the commissioners should hold, and it was apparently ■the intention of the Legislature to leave that optional with the State Board of Election Commissioners. There is no provision anywhere for removal for misconduct in office, or hearing upon a removal, before . any board or body. The action of the appellees in appointing successors to the appellants, being solely a ministerial act and not judicial or quasi-judicial, their action is not reviewable on certiorari. 2 Ark. 494; 70 Ark. 568; 109 Ark. 100. In the case of Hall v. Bledsoe, 126 Ark. 125, the board acted as a tribunal, pursuant to charges preferred in accordance with the statute, and their action was therefore gwasi-judicial; but in this case there was no hearing, and no authority upon which a hearing could have been based, so that this board could have acted in a qu-asi,judicial capacity. 152 N. Y. Supp. 113; 11 C. J. 1108; 5 R. C. L. 263; 37 Atl. 725; 42 Atl. 837; 157 Ark. 186. The statute in providing that the State board shall appoint county boards of election commissioners not more than ninety, nor less than thirty, days before the general election, is not mandatory, as is contended by appellants. It clearly provides that the commissioners shall hold office until their successors are appointed and qualified. • It nowhere intimates that an election will be invalid, or that an appointment within thirty days before the election shall be invalid, because the statute is not strictly complied with. Statutes regulating the manner of conducting elections are directory, unless a non-compliance is declared fatal. 43 Ark. 63; Id. '257; 30 Ark. 31; 34 Ark. 491; 42 Ark. 46; 159 Ark. 199.
   McCulloch, C. J.

Appellants instituted this proceeding in the circuit court of Pulaski County by filing a petition praying for a writ of certiorari, directed to the State Board of Election Commissioners, to quash an order made by that board attempting to remove appellants as members of the board of election commissioners for St. Francis County. The members of -the‘State Beard of Election Commissioners appeared in court and filed a demurrer to the complaint of appellants, which the court sustained, and a final judgment was rendered dismissing the complaint, from which an appeal has been prosecuted to this court.

It appears from the allegations of the complaint— which must be accepted as true in testing the sufficiency of the complaint on demurrer — that, within the time prescribed by law (not more than ninety days, and not less than thirty days prior to the regular biennial election to be held on the 7th day of October, 1924), the State Board of Election Commissioners, composed, of the Governor, Secretary of State and the Attorney General, held the regular biennial meeting for the appointment of county election commissioners, and, at that meeting, appellants were appointed as the election commissioners of St. Francis County. ¡Written evidence of the appointments, in the form of notices required by statute (Crawford & Moses’ Digest, § 3711), was delivered to appellants, and a certificate of their appointments was forwarded to the clerk of that county. Appellants appeared before the clerk of the county and took the oath of office, and proceeded to organize the board by electing one of their number as chairman and another as clerk. The commissioners also, according to the allegations of the complaint, proceeded to the discharge of their duties by the appointment of election officers, judges and clerks, to hold the election at the approaching biennial election. The State Board of Election Commissioners held another meeting on September 13, 1924, and, without charges or proof, made an order purporting to remove appellants as commissioners and attempted to appoint three other persons as election commissioners for St. Francis County.

The question presented on this appeal is therefore whether or not the State Board of Election Commissioners was authorized, under the statute, to remove county election commissioners.

The first question presented, and the point upon which the decision of the case really turns, is whether or not the position of county election commissioner is a public office, and, upon consideration of the legal tests prescribed in various decisions of this court and by text-writers for the determination of the question whether a public functionary is an employee or an officer, we have reached the conclusion that county election commissioners are public officers. Vincenheller v. Reagan, 69 Ark. 460; Lucas v. Futrall, 84 Ark. 540; Bruce v. Matlock, 86 Ark. 555; Middleton v. Miller County, 134 Ark. 514; McClendon v. Board of Health, 141 Ark. 114.

In the ease of Lucas v. Futrall, supra, we approved the test laid down by the Supreme Court of the United States, which details the elements of an office as distinguished from mere employment, depending on the question of “tenure, duration, emoluments, and duties” of the position as fixed by the law creating it. United States v. Hartwell, 6 Wall. 385. Applying this test, it is clear that the position of county election commissioners is a public office, for the tenure of office and the duties and emoluments thereof are fixed by statute, which provides in substance that, at a meeting of the State Board of Election Commissioners, held not more than ninety days nor less than thirty days before any general election for State and county officers, the said board shall “appoint three qualified electors as commissioners in each county to select election judges for each voting precinct,” and perform the other duties prescribed by law; that the appointment of county commissioners “shall be in writing, under the hands of the State Board, and the said board shall immediately mail to each county commissioner, at the county seat, a notice of his appointment, and, in addition thereto, shall mail to the clerk of the circuit court in such county a certificate of the appointment of such commissioners.” Crawford & Moses’ Digest, § 3711. It is also provided by the statute that county commissioners “shall hold office until their successors are appointed and qualified,” and that the commissioners shall meet at the courthouse at least twenty days prior to the general election and take the oath of office prescribed by the Constitution, and organize themselves into a board by electing one member chairman and another clerk. Section 3714 of the Digest provides that any vacancy in the county board of commissioners shall be filled by appointment by the State Board of Commissioners. The statute also imposes certain other duties upon the county election commissioners with respect to holding elections and canvassing the vote, and the statute also fixes the compensation of the commissioners on a per diem basis.

It is contended by counsel for appellees that there is no definite terna of office fixed by the statute, but we are of the opinion that this contention is unfounded. It is true the statute does not in so many words specify the term of office of county election commissioners, but the effect of the statute is to prescribe the duration of the term, for it specifies that appointments shall be made biennially, not more than ninety days nor less than thirty days prior to the election. Our decision in Bruce v. Matlock, supra, is, we think, decisive of the question. There was involved in that case the question whether or not membership' on the board of trustees for the charitable institutions of the State was a public office, and whether or not the Governor, who appointed the members, had the power to remove them. The statute authorizing the appointment of the trustees did not in so many words prescribe the duration of the term, but merely specified that the Governor should “biennially” appoint the board. We held that the use of that word necessarily implied a term of office of two years. We held that the position constituted a public office, with durative term, duties and emoluments specified, and that the Governor had no power of removal.

The position of county election commissioner, being a public office with a fixed term, and there being no power of removal conferred by statute, it follows from our decision in Bruce v. Matlock, supra, that the State Board of Election Commissioners has no authority to remove election commissioners after their appointment and qualification. There are other' decisions of this court to the effect that, where the duration of an office is prescribed by law, the appointing power has no authority to remove at pleasure an incumbent of the office. Patton v. Vaughan, 39 Ark. 211; Lucas v. Futrall, supra.

The order of the State Board of Election Commissioners attempting to remove appellants from office was void. It is contended, however, that certiorari is not the appropriate remedy to review the acts of the board. The decision in Hall v. Bledsoe, 126 Ark. 125, is conclusive of that question. The void act of the State Board of Election Commissioners was a gwwi-judicial one, and we held that, under the statute, certiorari was the proper remedy. It is true in that case there was a special statute authorizing that remedy, but the result would have been the same under general statutes. Pine Bluff Water & Light Co. v. Pine Bluff, 62 Ark. 196; State v. Railroad Commission, 109 Ark. 100. Other decisions of this court bearing directly upon the question are: Mitchell v. Directors School Dist. No. 13, 153 Ark. 50; Acree v. Patterson, 153 Ark. 188; Mitchell v. School Dist., 162 Ark. 277; Clardy v. Winn, 163 Ark. 320.

The order of the State Board of Election Commissioners being void, the -circuit court should have granted the writ of -certiorari for the purpose of quashing the same, and it erred in sustaining the demurrer to the complaint.

The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


author: Wood, J.

text:
    Woodson v. Fort Smith.
    Opinion delivered September 29, 1924.
    1. Criminal law — former acquittal — separate offenses. — -An acquittal of the common-law offense of “running a disorderly house” is not a defense to a charge against a female under a city ordinance providing that “every person who shall in said city suffer or permit any room or tenement in his or her possession or control to be kept, used or occupied for any such purpose (prostitution) shall be deemed guilty of a misdemeanor,” etc., as the two offenses are separate and distinct.
    2. Prostitution — sufficiency of evidence. — Proof that defendant used a room on one or more occasions for the purpose of illicit sexual intercourse does not establish that she was keeping a room for the purpose of prostitution or assignation. . -
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      Holland, Holland <& Hollcmd and Roy Gean, for appellant.

      Geo. W. Dodd, for appellee.
   Wood, J.

The appellant was convicted under an ordinance of the city of Fort Smith which provides as follows:

“Every-bawd, prostitute, or loose woman who shall, in said city, occupy or use any room or tenement for the purpose of prostitution or assignation, and every person who shall in said city suffer or permit any room or tenement in his or her possession or control to be kept, used or occupied for any such purpose, and every male person who shall frequent or visit any room or tenement so kept, used or occupied for the purpose of illicit intercourse, shall be deemed guilty of a misdemeanor and a violation of this ordinance.”

1. The appellant had been formerly tried and acquitted on a charge of “running a disorderly house” in the city of Fort 'Smith, and she pleaded former acquittal. “In order to support a plea of former conviction or acquittal it is essential to show that the two offenses are identical.” Johnson v. State, 101 Ark. 159. The common-law offense of keeping a disorderly house is entirely separate and distinct from the specific offenses enumerated in the ordinance under which the appellant was convicted. The keeping of a disorderly house “may consist in its drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or immoral practices, thereby endangering the public peace and promoting immorality.” Thatcher v. State, 48 Ark. 60-64. One might be convicted of the common-law offense of running a disorderly house without any testimony whatever as to the specific acts necessary to constitute the offenses embraced in the ordinance, and one might be acquitted of the offense of running a disorderly house and yet be convicted on the same proof of some one of the specific offenses named in the ordinance. “The safest general rule,” says Corpus Juris, “is that the two offenses must be in substance precisely the same, or of the same nature, or of the same species, so that the evidence which proves the one would prove the other. Or, if this is not the case, then the one crime must be an ingredient of the other.” 16 C. J., p. 264, § 444. The court did not err in overruling appellant’s plea of former acquittal.

2. The testimony for the city on which the appellant was convicted tended to prove that the prosecuting witness and the sheriff went to the house where the appellant lived, on June 15, 1923, and found her at home. She had on a slip, and did not have on her shoes. Leo Bercher, a married man, was also in the front room of the house, with his shoes off. He had on his trousers. He was 'Sitting on the side of the bed. It was seven or eight o ’clock at night. The blinds were down in the front room. Bercher was in the farthest room from the landing of the stairway. The appellant came out of that room. This was not the first time that the witness went with the officer to visit the house. The first time he went there some one was sick in bed. Witness supposed it was Leo Bercher. Bercher at that time told the witness to come in. Witness never saw anything wrong in the conduct of Mrs. Woodson up there, only she was in the house with Bercher. Bercher claimed to own the house. He saw nothing wrong in the conduct of Bercher, only he and appellant were there, and they had their shoes off. The immoral purpose which witness saw was that she was barefooted and wearing a house-dress with short sleeves and low neck, made straight all the way down. The bed in the room where Bercher was sitting looked as though some one had been sitting down or wallowing on it. Bercher claimed that he was boarding there. In entering the house the witness had to go up the back stairway. The parties were in the room at the end of a hall. The room Bercher was in was not locked, but the door that barred his room from the hallway was locked before they got there. It was three minutes after they knocked before they were admitted. The appellant said that Bercher had supper there. The dining-table was in the same room, and the table had not been cleared. The appellant testified to the effect that, on the occasion mentioned, .she had called Bencher to see about some plumbing; that when he came, she had supper ready,' and he ate with her. She denied that' she was in the room with Bercher at all, and stated that she was guilty of no immoral act with him.

The appellant asked the court to instruct the jury in effect that, ¡before the defendant could be convicted upon the charge, they must believe beyond a reasonable doubt, from the evidence, that the defendant is a bawd, prostitute, or loose woman; that one act of sexual intercourse in the room mentioned would not be sufficient to sustain the charge. The court refused to so instruct the jury, to which the appellant duly excepted. ■ ■

The warrant upon which the appellant was arrested is not set out in the record, but the record recites that appellant was “brought before municipal court, charged with the offense of using a room for immoral purposes.” It will thus be seen that the appellant was not charged with the offense of occupying and using the ’room as a bawd, prostitute, or loose woman, for the purpose of prostitution or assignation, and there was no' testimony to sustain such a charge, if it had been made. There1 fore the court did not err in refusing to grant appellant’s prayers for instructions above mentioned.

The charge against the appellant comes under that provision of the ordinance which provides that “every person who shall, in said city, suffer or permit any room' or tenement in his or her possession or control to be kept, used or occupied for any such purpose (prostitution) shall be deemed guilty of a misdemeanor,” etc. To sustain this charge, it was necessary for the State-to show that the ¿ppellant suffered or permitted the room in her possession or control to be used or occupied for the purpose of prostitution or assignation. -

In the case of Batesville v. Smithey, 138 Ark. 276, we had under consideration a precisely similar ordinance. In that case, construing the ordinance, we said:. “It is thus seen that there are two elements constituting' the offense; one, the character of the woman as a prostitute or loose woman, and the use or occupancy of the room for the purpose of prostitution. It was therefore not sufficient to show merely that the room was used in a ■single 'instance for illicit • sexual intercourse, without further proof that the woman using the room was a .prostitute, and that she was using the room for the purpose of prostitution or place of assignation.” And further: “.The word ‘prostitute’ means a woman .given to indiscriminate lewdness, and the word-‘prostitution’ means a state of existence for that purpose, and does not include merely the act of a woman occupying the relation of concubinage with one man.” Citing Sisemore v. State, 135 Ark. 179.

Under the doctrine announced in these cases the testimony was not sufficient to sustain the verdict, because it does not tend to prove that the appellant was using the room or house designated for the purpose of prostitution as that term is defined in Sisemore v. State, supra. There is nothing in -the testimony to establish the fact that, the appellant used, suffered, or permitted any room in her possession or control to be kept, used or' occupied for the purpose of prostitution or assignation. Giving the evidence its strongest probative force in favor of the city, the most that can be said of it is that it tended to show .that the appellant might, have occupied, the room one or more times with Bereher for the purpose of illicit intercourse, but this was not enough to meet the requirements of .the law, and does .not constitute the offense against which the ordinance is leveled. The judgment is therefore reversed, and, inasmuch as the testimony seems to have been fully developed, the cause is dismissed.


text:
    Melton v. State.
    Opinion delivered September 29, 1924.
    1. Criminal law — weight of testimony. — The credibility of witnesses and the weight to be given their testimony are entirely within the province of the jury.
    2. Intoxicating liquor — evidence of sale by defendant’s wife and SON. — In a prosecution for selling whiskey, where a witness testified that she saw defendant sell whiskey at his home, testi- . mony of the witness that she saw defendant’s wife and son at the same place, and near the same time, sell whiskey, was competent as tending to show that defendant was engaged in the business of selling liquor at his home, and an instruction that ' the testimony was admitted for that purpose only was proper.
    3. • Criminal law — instruction as to effect of testimony. — In a prosecution for selling liquor, an instruction not to consider testimony as to sales by defendant’s wife and son at his home, unless made with his knowledge and consent, and then only in so far as it shed light on the business he was engaged in, held correct and not prejudicial to defendant.
    4. Intoxicating liquors — unlawful sale — evidence.—Evidence, in a prosecution for selling whiskey, that officers searching defendant’s wagon after the indictment was found discovered a gallon of whiskey therein was competent to shed light on the business defendant was engaged in.
    Appeal from Greene Circuit Court, Second Division; G. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. Utley, Attorney General, and John Tj. Garter, Assistant, for appellee.
   Wood, J.

This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of one year for the crime of selling liquor. Mrs. Ollie Waters, a witness for the State, testified that, in the spring of 1922, she saw the appellant sell liquor to one Dink McCullough. The sale was in the presence of appellant’s wife and daughter. She stated that it was white mule whiskey. The sale took place at appellant’s meat-house, and appellant got the whiskey out of a jar which he kept in the meat-house. Witness saw McCullough pay the appellant for the whiskey. She thought it was whiskey because she smelled it.

Over the objection of the appellant, Mrs. Waters testified that, close to the same time and at the same place, she saw Mrs.-Melton, appellant’s wife, sell some liquor to -one Dalton Hardy. On cross-examination the witness stated that the meat-house was the place where Dink McCullough delivered the bills to appellant and received whatever he did receive from the appellant. Whether it was whiskey or not witness did not know. She had smelled it there before when she was at appellant’s house.

■ Over the objection of appellant, deputy sheriffs testified that they got a search warrant to search appellant’s wagon, and made a search of the same,’in the summer of 1923, and found a gallon of whiskey in a glass jug. Appellant was on his way from home to town. Witness Joe Waters testified for the State, over the objection of appellant, that he bought liquor from Edward Melton, son of appellant, at the same place where appellant was accused of selling liquor to Dink McCullough. This sale was in the summer of 1922.

Dink McCullough and Dalton Hardy, witnesses for the defendant, testified and denied that they bought liquor, as testified to by Mrs. Waters, a witness for the State. Mrs. Melton and Jewell Melton, wife and daughter of appellant, testified denying the sale as testified to by witnesses for the State. The appellant also testified that he did not sell any whiskey.

Over the objection of appellant, the court, among others, gave the following instruction:

“No. 3. There is certain evidence that has been offered with reference to an alleged sale of liquor by the defendant’s wife and also by his son. You are instructed again that this testimony should not be and will not be considered by you for any purpose, unless you find that the alleged sales made by the wife and son, if made, were made at the residence of the defendant and with his knowledge and consent, and, unless you so find, you will not consider that testimony for any purpose, and if you find that it was made with his knowledge and consent by them, then you will consider it only for the purpose of shedding light, if you find that it does shed light, upon the kind and character of business that the defendant' might have been engaged in, and not as evidence .against hhp. in-this ease of the sale which he is charged. with here.”,- . ■ , .

1. The appellant contends that the judgment .should be reversed because the jury, in crediting the testimony of Mrs. Waters, arbitrarily disregarded the testimony of the appellant and his witnesses, four in number, all of whom flatly contradicted the testimony of Mrs. Waters. .The credibility of witnesses and the weight to be given their testimony was entirely within the province of the. jury. The testimony of the .witness for the State did not have to be corroborated, and it was for the jury to determine whether the same was overcome by the testimony of the witnesses for. the appellant. Meeks v. State, 161 Ark. 489. The testimony of Mrs. Waters to the- effect that she saw the .appellant sell whiskey was sufficient to sustain the verdict. . ,

2. The. appellant next contends that the court erred in allowing the testimony of Mrs. Waters, to the .effect that'she saw the wife of appellant, at the same place and close to that time, sell liquor to Dalton Hardy, and also erred in allowing Joe Waters to testify that, in the summer. of 192.2, .he bought liquor from the son of .appellant at appellant’s home.. The testimony tending to-prove the. sale- of liquor.made by appellant’s wife and son at appellant’s home, and near to the time .when appellant is alleged to have made the sale, was relevant, as it tended to prove that appellant, who was the head of the house, képt liquor therein, and was-a circumstance-proper to be considered- in connection • with the testimony of Mrs.. Wafers, as tending to prove that appellant was engaged in the-business of selling liquor at his-home. Ketchum v. State, 125 Ark. 275; Larkin v. State, 131 Ark. 445; Murchison v. State, 153 Ark. 300; Miller v. State, 162 Ark. 45; see also Blakemore on Prohibition, p. 148.

3. The court did not err to .t-he prejudice of appellant in giving instruction No. 3, set .out above. In that instruction the court told the jury that ■ they could- not consider the testimony concerning the sales made-by-, the . appellant’s • wife and son for any purpose, unless they were made with his knowledge and consent, and, if. made with his knowledge and consent, the jury could then only consider the testimony-in so-far as it tended to shed light upon the kind and character of business that the appellant might have been engaged in. The instruction was in harmony with the law announced in the above cases, and was certainly not prejudicial to the appellant. “.‘The husband'is the head of the family, and,' as .'such, has the general right, at common law, to regulate the household, its expenses and its visitors, and to exercise the • general • control of the family management.” '21 Cyc. ,1147. If sales were being made by appellant’s wife and son at appellant’s .home, this certainly .tended to prove the character of the business which appellant was allowing to be conducted there. See Blakemore on Prohibition, p. 148; People v. Sybisloo, 184 N. W. 410, 19 A. L. R. 123.

4. The appellant urges, in the last place,.that the .court erred dn admitting testimony of . the officers to the effect that, in the summer of 1923, they searched appellant’s wagon and found a gallon of whiskey. In admitting this testimony the court told the jury that it was admitted .solely for the purpose of shedding light, if it does, shed light, on the kind of business appellant was engaged in, and.for .no other .purpose. The testimony was-relevant .to the-issue as to whether the appellant was engaged in the business of illegally 'Selling whiskey, as charged in the indictment.. . , '

In Casteel v. State, 151 Ark. 270, we said: “On.the trial, of manufacturing intoxicating liquors it was admissible to. prove- that whiskey was found in defendant’s possession, and that he was convicted- of- transporting liquor after the-indictment herein was returned.” -. The -court-told the jury that they, could consider such testimony only as tending to show that defendant was engaged in . the business of illegally manufacturing intoxicating liquors. The same principle applies here.

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


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    Morris v. State.
    Opinion delivered September 29, 1924.
    1. Criminal law — evidence op another crime. — In a prosecution for assault with intent to kill certain officers it was competent,to prove by a, witness that defendant criminally assaulted her just before he shot at the officers, as 'her testimony tended to explain how she recognized defendant as the man who shot at the officers.
    2. Criminal law — proof op another crime. — Guilt of an assault with intent to kill cannot be established by proof that defendant committed other and disconnected crimes at different times and places.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    reversed.

      Ray E. GrUffin, Geo. W. Ellis, and Roht. E. McClintock,.iot appellant.

      J. 8. Utley, Attorney General, and John L. Garter,, Assistant, for appellee.
   Smith, J.

Appellant was convicted of,.the. crime, of assault with, intent to kill, and his punishment fixed at a term of. eight years in the penitentiary, and he has appealed. For the reversal of the judgment it is insisted that the court admitted certain incompetent testimony.

The first testimony objected to is that of Pensacola Jones, who testified that appellant broke into her room and assaulted her on the night of the shooting. She was heard to scream, and the police were called to see about the disturbance. When the officers entered and spoke to appellant, he fired twice at them, and ran out of the door. The witness was permitted, over the objection of appellant, to detail the circumstances of the assault upon her.

The appellant sought to prove an alibi, and the testimony of Pensacola Jones was competent as it tended to show the identity of the witness’ assailant. Her testimony about the assault showed her opportunity for recognizing and identifying appellant. She testified that the man who assaulted her was the same man who fired at the officers, and it was competent for her to show how she recognized him as the man who had fired the shots, and, the testimony being competent for this purpose, it could not have been excluded because it also tended to show that appellant was guilty of another offense. Davis v. State, 117 Ark. 296.

The shooting and .the assault on Pensacola Jones occurred about May 1, 1924. In addition to this testimony, Fannie "Wells was permitted, over appellant’s objection, to testify that, at another time and place, appellant entered her ,room and, with a pistol in his hand, robbed her of twenty-five cents which she had on a dresser.

Reetha Pig’gee, another witness for the State, was permitted to testify, over appellant’s objection, that, at still another time and place, appellant entered her room, and, with a pistol in his hand, assaulted her.

The testimony of these last two named witnesses was objected to when offered, and a motion to exclude it was overruled and exceptions saved. In overruling the motion the court in each instance stated: ‘ ‘ The jury will understand that the defendant is not- on trial for anything that was done to the witness. You may consider her evidence for what you may think it is worth, if anything, for considering the motive of the defendant in shooting at the officers, if you find he did shoot at them.” An exception was saved in each instance to the ruling of the court.

The testimony of Fannie Wells and Reetha Piggee was erroneous and necessarily prejudicial. There was no question about the motive of appellant in shooting at the -officers. He denied that he was the man who had fired the shots, and the man who did fire them did so for the purpose of effecting his escape.

The testimony of Fannie Wells and Reetha ,Piggee is defended upon the grounds that it tended to show motive upon the part of appellant, the motive being' a desire to avoid, arrest, and that it was proper for the purpose of identifying appellant as the man who had shot at the officers.

The testimony was not admissible for either purpose. The offenses testified about by the three women were entirely separate and distinct offenses, committed at different times and different places, and neither witness was present at more than one time or place, and no one of the witnesses knew anything about the offenses except the one committed in her presence. Neither Fannie Wells nor Reetha Pig’gee were present at the time appellant is alleged to have assaulted Pensacola Jones and to have shot at the officers, and they could not, of course, testify, and did not offer to testify, that appellant was the man who fired the shots at the officers.

The admission of this incompetent testimony was therefore erroneous and prejudicial, and for that reason the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered. Mays v. State, 163 Ark. 232; Middleton v. State, 162 Ark. 530; Wood v. State, 157 Ark. 503; Williams v. State, 156 Ark. 205; Cain v. State, 149 Ark. 616; Sneed v. State, 143 Ark. 178; Beck v. State, 141 Ark. 102; Murphy v. State, 130 Ark. 353; Davis v. State, 117 Ark. 296; Billings v. State, 52 Ark. 303; McGuffin v. State, 156 Ark. 392; Cole v. State, 156 Ark. 9; Cook v. State, 155 Ark. 106; Spier v. State, 130 Ark. 457; Johnson v. State, 152 Ark. 218; Nichols v. State, 153 Ark. 467; Casteel v. State, 151 Ark. 69; Powell v. State, 149 Ark. 311; Blumensteil v. State, 148 Ark. 421; Hettle v. State, 144 Ark. 564; Parks v. State, 136 Ark. 562.


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    Storey v. Looney.
    Opinion delivered October 1, 1924.
    Elections — contest op primary election. — As the right to contest a primary election does not exist independently of statute, Crawford & Moses’ Dig., § 3772, providing that “a right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee,” confines the right of contest to a candidate at the primary election who claims to be the rightful nominee, and a contestant who fails to show that he is the nominee, instead of the contestee, fails to show a cause of action.
    Appeal from Stone Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      Ben B. Williamson and Casey & Pate, for appellant.
    The failure of the county collector to file with the county clerk on the first Monday in July a certified list of all persons who paid poll tax up to and including’ that day, rendered the entire vote illegal and void. C. & M. Digest, § 3740. The name of the voter must either be on the certified and published list or the evidence of his qualifications must be filed with the election officers, to entitle him to vote legally. 159 Ark. 199. It is a fundamental rule that no man. shall profit by his own negligence. 53 Ark. 161. The county collector had no power to assess a poll tax. 160 Ark. 275.

      Samuel M. Casey and Ben F. Williamson, for appellee.
    The agreed statement of facts was not properly brought into record. 46 Ark. 17; 82 Ark. 242 ; 64 Ark. 483. Where the statute expressly declares a particular act to be essential to the validity of the election or that its omission will render the election void, the courts must enforce the provisions of such statute, but, where the statute simply declares- that certain things shall be done within a particular time or in a particular manner, and does not declare their performance essential to the validity of the election, they will be regarded as mandatory if they affect the actual merits of the case, but they wiil be considered directory only, and not vital to the election, -unless they are such, in themselves, as to change or render doubtful the result. McCrary on Elections, 4th ed. §§ 221 et seq.; Ann. Cas. 1916A, p. 707; 265 111. 39; 106 N. E. 504. While the legal safeguards which are thrown around the ballot must be faithfully observed, the will of the people as expressed at the polls is not to be defeated by mere technicalities. 99 111. 553; 91 111..525; McCrary on Elections; 4th. ed., § 243.
   McCulloch, C. J.

This case involves an election contest concerning the nomination of the Democratic party for the office of sheriff of Stone County. Appellant and appellee were the opposing candidates, and appellee was returned as being the successful candidate by a majority of 157 votes, and a certificate of nomination was awarded to him by the party committee, which constituted the canvassing board. Appellant instituted a contest in the circuit court. His complaint contains numerous charges of fraud and illegal voting, but all of those charges have been abandoned, and appellant rests his contest solely on the ground that appellee, who was the sheriff and tax collector of the county at the time of the election, failed to comply with the duty imposed on him by statute (Crawford & Moses’ Digest, § 3740), of filing with the county clerk a list of the names of all persons who had paid a poll tax, so that the list could be published as required by the statute. Appellant alleged in his complaint that the sheriff wilfully and wrongfully failed to file the list, and that, as a result, there was no publication of the list of voters in the county, and also alleged that none of the persons who voted at the election were required by the election officers to present any evidence of their legal qualifications as electors.

The statute referred to above provides that the collector shall file a list, verified by affidavit, on the first Monday in July, that the county clerk shall record the list and deliver the record to the election commissioners on or before July 15, and that the election commissioners shall cause the list to be printed and furnished to the judges of election, at any election to be held thereafter.

The case was tried on an ag’reed statement of facts, which recited that appellee did not, prior to July 14, 1924, file the list of persons who had paid a poll tax, but that his deputy filed an unverified list with the clerk on that day, and immediately withdrew the same and did not return it to the clerk’s office until August 21, 1924, after the primary election; and that the clerk did not at any time deliver to the county election commissioners a certified copy of the list as required by law, nor did the commissioners. publish such a list. The court decided in favor of appellee, and rendered judgment accordingly.

The statute (Crawford & Moses’ Digest, § 3777) provides that no person shall be allowed to vote at any primary election in this State who shall not exhibit a poll-tax receipt, or other evidence that he has paid his poll tax within the time prescribed by law, and that such other evidence shall consist of a copy of the receipt, certified by the clerk of the county, or that such person’s name shall appear upon the list of persons certified by the collector and printed by the election commissioners. The statute further provides as follows: “In any contest arising upon any election held under this act, it shall be a ground of rejection of any ballot cast by an elector whose name (a) does not appear upon the certified list of poll-tax payers; or (b) who has not filed with the judges of election his original or certified copy of poll-tax receipt, or written affidavit of the attainment of his majority; or (c) if such original or certified copy of such poll-tax receipt or written affidavit has not been returned by the judges of election; or (d) the name of such person listed separately and certified as required by this act.”

We decided in the case of McLain v. Fish, 159 Ark. 199, that the provisions of the statute quoted above are mandatory, and that, in the contest of an election, where a list was published as required by' statute, the qualification of voters not on the list must be proved in accordance with the statute or be excluded.

It is the contention of appellant that, since there was no published list of the persons who paid poll tax furnished to the election officers, and as none of the persons who voted at the election furnished to the election officers other evidence of their qualifications as electors, the election was totally void, and that there was no legal nomination made.

The question necessarily presents itself in the beginning, whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee. Appellant’s contention being that there was no valid nomination at all, he is not a claimant himself for the nomination, and all that can be done by the court is to cancel the certificate of nomination awarded to appellee. This is therefore not really a contest for a nomination as contemplated and authorized by the statute. In order to make a contest for the nomination, appellant must show that he is entitled to the nomination himself, which he fails to do. The statute (Crawford & Moses’ Digest, § 3772) declares that a right of action is conferred on any candidate to contest the certificate of nomination or the certification of vote as- made by the county central committee. ’ ’ This confines the right of contest to a candidate at -the primary election, and to one who claims to be the rightful nominee. He must show that he is the nominee instead of the contestee, and he fails to show a cause of action unless he so states in his complaint. Hill v. Williams, ante, p. 421.

The right to contest a party primary election does not exist independent of statute, and the right is confined to the authority found in the statute. A court of equity will not afford relief in such a contest (Walls v. Brundidge, 109 Ark. 250), and, as before stated, the right to contest is limited by the statute which confers that right. Ferguson v. Montgomery, 148 Ark. 83.

If a certificate of nomination is wrongfully awarded to a person, and there is no person with the right of contest under the statute, then the only remedy to correct the error is the political remedy of correcting it at the polls. Such is the case here, since appellant himself does not claim to be the nominee, and is therefore in no position to object to the certificate of nomination awarded to appellee. It is unnecessary therefore to consider anything else in the case.

Judgment affirmed.

Hart and Humphreys, JJ., concur on the ground that the failure to file the certified list of voters by the sheriff as recited in the agreed statement of facts did not invalidate the primary election, and appellee, having received the plurality of votes cast at said election, was properly declared the nominee.


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    Clarkson v. State.
    Opinion delivered October 6, 1924.
    Criminal law — right to change op venue. — As an accused has the right, at any time before the commencement of a trial, to obtain a change of venue by complying with the requirements of the statute, a rule of the trial court which attempted to restrict the exercise of that right to the presentation of an application at least one day in advance of the time set for trial is invalid, even though it leaves it to the court’s discretion to determine whether or not the petition may be filed and presented later.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.

      John P. Roberts and Robert A. Rowe, for appellants.

      J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

One of the appellants was convicted in six consolidated cases, and the other appellant was convicted in one case. All of the appeals are heard together, as they involve the same question, and will be disposed of in one opinion.

All of the cases had been set down for trial on January 31,1924, and on the morning of that day each of the appellants filed a petition for change of venue. The cases were not taken up during that day, for the reason that other cases ahead of them were on trial, bnt, on the morning of the next day, February 1, 1924, the cases were called, and, on presentation to the court of the motions for a change of venue, the court overruled the motions, for the reason that they had been filed too late, under a rule of the trial court, which reads as follows:

“In all cases set for a day certain, any motion for continuance, change of venue or other cause must be filed at the motion hour of the court next day preceding the day set for trial, and not thereafter, and no motion will be considered by the court if presented thereafter, unless good reason be shown for such default.”

We decided in the case of Maxey v. State, 76 Ark. 276, that a rule of court requiring a notice of three days before the presentation of an application for change of venue was void, and that it was error to refuse such an application on the ground that the rule had not been complied with. The right to obtain a change of venue is one conferred not only by the statute but by the Constitution of the State (art. 2, § 10; Crawford & Moses’ Digest, § 3088 et seq.), and the court has no power to restrict that right by rules.

Under the statute an accused has the right, at any time before the commencement of a trial, to obtain a change of venue by complying with the requirements of the statute. The rule in question established by the court attempted to restrict the exercise of that right to the presentation of an application at least one day in advance of the time set for the trial, though the rule leaves it to the discretion of the court to determine whether or not the petition may be filed and presented later. The right to obtain a change of venue is not dependent upon the discretion of the court further than in determining the credibility of the persons who give their affidavits in support of the application, and the court has no power to establish a rule which makes the right to present a petition for change of venue at any time dependent upon the court’s discretion. ■

Our conclusion therefore is that the court erred in refusing to consider and pass upon the sufficiency of the application for change of venue.

The judgment is therefore reversed, and the cause is remanded for a new trial and for other proceedings in accordance with this opinion.


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    Hawkins v. Simmons.
    Opinion delivered October 6, 1924.
    1. Judgment — parties—mode op raising objection. — Objection to a judgment in favor of G. G. S. & Company that it fails to show whether G. G. S. & Company constitutes a partnership or a corporation is waived where no objection was raised in the proceedings in which the judgment was rendered, either by demurrer or answer.
    2. . Judgment — parties—validity.—A judgment in favor of G. G. S. & Company, where G. G. S. & Company is a corporation, is a valid judgment in favor of such corporation; but if G. G. S. & Company is a partnership, the judgment is a valid judgment in favor of G. G. S., the partner named in the judgment.
    Appeal from Union Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Wilson £ McGough, for appellants.
    Certiorari was the proper remedy for appellant to pursue. 68 Ark. 207; 44 Ark. 509; 54.Ark. 375. Appellant did not sign the note, nor was she properly served with summons. The evidence shows collusion between the justice of the peace and the plaintiff,, such as would entitle appellant to the relief asked. 30 Ark. 17; 82 Ark. 415. The justice had no jurisdiction over the appellant since she was not properly summoned as a party, but only as a witness. 43 Ark. 232. Plaintiffs were not entitled to maintain the suit, since they failed to show whether they constituted a partnership or a corporation. 150 Ark. 398; 148 Ark. 323; 94 Ark. 55.

      8. E. Gilliam, for appellee.
    Certiorari was not the proper remedy. 20 Ark. 573; '21 Ark. 475; 47 Ark. 511; 55 Ark. 200. The defect complained of by .appellant, -that it was not shown whether or not appellee was a corporation ora partnership, conld only be reached by appeal. 92 Ark. 63; 66 Ark.'582; 96-Ark. .344; 17 Ark. 580; 114 Ark. 304. A plaintiff may sue for a less sum than his debt, thereby remitting the- excess, to bring the case within the jurisdiction of' the. justice court. 7 Ark. 260; 10 Ark. 328; 60 Ark. 146. The granting of writs of certiorari by the circuit court directed to justices of the peace are matters within the sound discretion of the court. 52 Ark. 213; 192 S. W. 887,
   McCulloch, C. J.

Appellees instituted - an action for debt against appellant, Mrs. F. W. Hawkins,., and also against her husband, before a justice of the -peac.e in Union County, .and on January 20, 1923, the return day'of the summons, all the parties appeared in person, the case was heard by the justice of the peace, and judgment rendered against both of the defendants. After the expiration of ten days from the date of said judgment, execution was issued on the judgment and returned by the- officer nulla bona, and thereafter, on February 21, 1923, a copy of the judgment was filed in the office' of the circuit clerk and execution issued thereon. Mrs. Hawkins, the appellant, thereupon brought the record before the circuit court of Union County on certiorari . and sought to- quash the judgment on the ground that it was rendered after the action had been dismissed as to her and without any further notice -to her. The case .was tried before the circuit court upon oral testimony, and there, .was . a finding and judgment against appellant. Each .party introduced several witnesses in, support of their .respective contentions as to the course of the proceedings before the justice of the peace.

It is conceded that appellant and her husband, who. were both defendants in the action, appeared before the justice of the peace on the return day of the summons, and -that appellant’s husband moved for a continuance of the case or account of the absence of his attorney, and that, upon the overruling of the motion for a continuance, he left the room where the court was being -held. -Appellant remained in the room, and, at the trial, took the witness stand1 in her own behalf, and testified as -a .witness. > ' ■■-.>_

Appellant contends, and so - testified in the trial below, that, after -she had testified in the case, the; justice of the peace announced that the action against- flier was .dismissed, that there .was-no further notice -to her of an attempt to- hold her-liable in the case, and that the judgment-rendered on- that day by the justice of the- peace was solely against her husband. The testimony of .other witnesses-introduced by her tended to support her .contention ' that the action against her-' was dismissed, or rather, that she was “discharged,” as-some-of the witnesses expressed it. . r

- • ■ The justice of the peace and several other witnesses introduced by appellees testified that the action against appellant was not dismissed, but that the trial of the cause proceeded to a final -judgment in her presence, and that judgment was rendered in her presence against her as well as against her husband.

-Some of the witnesses testified that appellant, after ,she had completed her testimony, remained in the witness :chair until the justice of the peace told her that she was discharged, meaning that she was discharged from the witness stand. Bit it was a question for the decision of the trial court whether or not, under the circumstances, appellant was led to believe that the action against her was dismissed1. There was a sharp conflict in the testimony, and we are not at liberty to disturb the finding of the trial court, on an issue of fact about which there was .a conflict in the testimony. There being sufficient testimony to sustain the finding of the trial court, we must treat the issue as settled-against appellant’s contention that 'the action agai-nst her was dismissed, or that she was so led to believe, to her- prejudice.

It is further urged that the judgment is void because it -does not affirmatively show -whether appellees, G. G. -.Simmons & Company, constitute a partnership -or a-‘corporation. ■ Such a defect in the judgment -is.-, not ayailable unless raised directly by demurrer or answer in tbe proceedings in which the judgment was rendered, for the judgment is not void. Spaulding Mfg. Co. v. Godbold, 92 Ark. 63. In addition to that principle, which is conclusive against the contention of appellant, it may be said that the fact that the initials of one of the copartners, if there exists a copartnership and not a corporation, is sufficient to obviate any defect in the judgment. If there is a corporation, the judgment is valid, and if there is a copartnership, there is a valid judgment in favor of the partner named in the proceedings. Percifull v. Platt, 36 Ark. 456; Cooper v. Newton, 68 Ark. 150.

It appearing that the findings of the trial court on the issues of fact are supported by sufficient evidence, and there being no error in the proceeding, the judgment must be affirmed, and it is so ordered.