text:
    Little v. State.
    Opinion delivered November 26, 1923.
    Criminal law — new trial — recantation of testimony. — In a prosecution for aggravated assault committed on a baby, in which there was testimony, aside from that of the child’s mother, sufficient to sustain conviction, and in which it appeared, on defendant’s motion for new trial, based on the mother’s affidavit recanting her testimony that defendant had beaten the child, that the mother, since the trial, had come under the defendant’s influence, a denial of the motion for new trial was not error.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Webb Covington, John U. Holland, Chester Holland and John D. Arbuclde, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wvn. T. Hammock and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was convicted of aggravated assault, alleged to have been committed by striking and beating an eleven-months-old child with a large comb.

Cecil McAfee, the mother of the child, testified that she lived with her child at appellant’s home, and was employed by him as cook, and that one Sunday morning the child, at the breakfast table, turned over a cup of coffee, which burned appellant on the arm as it spilled out of the sup, and that in his anger appellant picked up the comb and struck'the child over the shoulder, hip and leg and on the side of its face, and that the prints of the teeth of the comb were plainly visible, and these places later turned black, and appellant said he whipped the child to break it from being stubborn. After breakfast appellant went to Fort Smith to deliver milk, as was his custom, and about an hour and a half later the witness, on the advice of the neighbors, followed with the baby, and the baby was carried to the office of the public welfare commission, where the nurse in charge saw it, and .called the doctor, who examined the baby that morning and prescribed for it, and he came again to see it that evening. She took the baby away at noon the following day. Appellant learned where the witness was, and came to the office of the welfare commission, and offered to employ a doctor, and offered witness two hundred dollars not to testify against him. Witness told appellant a doctor had seen the baby, but appellant proposed to employ another physician if witness desired this, and appellant told witness to bring the baby and come back to his house. Appellant had always previously been good to her, and to the baby also.

The nurse testified that the child was bruised, and. there were discolorations which looked like the child had been struck with something like a comb. The child had from one and a half to four degrees of fever, and was breathing hard and rapidly, and she called the doctor. Appellant came to the welfare building to see the child, and asked what was the matter with it, and offered to get another doctor if one was needed.

Doctor Parks was the physician who visited the child, and he testified that he found it 'suffering from external injuries about the chest, face and hips, and the child looked as if it had been struck with something, witness would not say with a comb, but the injuries could have been inflicted with a comb. He also stated that the injuries to the child might have been caused by its being carried by a drunken man on a mule, and by the face, chest and hips of the child coming in contact with the short stubby hair of the mule. It was the theory of the defense that the child had been injured by being carried by Jim Thompson on a mule while Thompson was drunk.

Appellant denied that the baby had spilled coffee on him, and denied that he had ever struck the baby or had been angry with it. He testified that the baby’s mother and Jim Thompson took one of his teams, without his permission, and drove it to Fort Smith, and took the baby with them, and returned without the baby, and were drunk when they returned, and that both became angry when he told them to not again take his team, and Thompson went back to Fort Smith that night and brought the baby home with him on the mule which he rode. Appellant further testified that he left home about 8 a. m. for Fort Smith, and, while at the Goldman Hotel in that city, where he was delivering milk, he met his father, who told him the officers were looking for him, and that he was charged with having whipped a baby, and that he then went to the welfare building, where he asked Mrs. McAfee what it all meant. That Mrs. McAfee did not give him any direct answer; neither did she intimate that he had beaten the child. He asked the mother if another doctor was necessary, and told her to bring the baby to his house as soon as it was well.

A Mrs. Harris testified, on behalf of the appellant, that she saw Mrs. McAfee and Thompson as they returned from Fort Smith, and that they were drunk and were singing vulgar songs, and did not then have the baby with them. Mrs. McAfee admitted leaving the baby, and that Thompson had brought it home on a mule, but denied drinking or having been drunk.

Foster Yertrees, a special policeman, testified that he arrested appellant and carried him to jail. The jailer recognized appellant and said, “Well, Jess (the appellant), I see you are in trouble again — it is pretty bad to beat up a baby like that,” and appellant answered, “Yes, and the next time I will kill it.” Appellant denied having made this statement, and testified that what he did say to the jailer was, “Yes, it is pretty had. to beat up a baby, and if I knew the man who did it I would kill him.”

The trial occurred July 7, and on July 12 Mrs. McAfee made an affidavit in which she repudiated the testimony given by herself at the trial, and this affidavit was filed with the motion for a new trial. On the hearing of this motion this affidavit was read, and Mrs. McAfee was called as a witness and orally examined, her oral testimony being substantially the same as that contained in the affidavit. This testimony was to the effect that appellant had 'always been kind to witness and to her baby, and that her testimony at the trial that appellant had struck the baby was false, and that she had not fully realized the effect of her testimony when she g*ave it, and that said testimony was made “in the belief that if I would do so my baby would be returned to me, and that I now desire to tell the whole truth, to the end that an innocent man may not suffer on account of my conduct in said trial in giving testimony against him. ’ ’ That on Tuesday, after the ■ trial on Saturday, she went to appellant’s wife and sister and told them she had sworn a lie, and why she had done so, and they talked to appellant, and he said for her to come back'to his house, and she did so, and was then living at appellant’s house. Witness was told by the doctor and the nurse and a Mr. Strozier that, if she did not swear against appellant, “they would adopt my baby clean out of the relation and that I could never get to see it any more, ’ ’ and that she gave the testimony she did because she was afraid they would take the baby away from her. Witness was in possession of the baby at the time of the trial, and three days after the trial she went back to appellant’s house, where she has since lived. The witness did not say the baby had not been whipped, but did testify that appellant had not whipped it.

The court refused to grant the motion for a new trial, hence this appeal.

The case of Bussey v. State, 69 Ark. 545, discussed the duty of the trial court in granting a new trial, where a witness whose testimony was essential to support a conviction repudiated the testimony on which the conviction was obtained. That was a rape case, and the conviction was based almost entirely on the testimony of the prosecuting witness. It was pointed out that, with the testimony of this witness eliminated or discredited, the result of another trial would be an acquittal, unless additional evidence -could be produced; and it was also pointed out that the circumstances under which the retraction was made were such as to raise the belief that the retraction, and not the testimony, was true.

A similar condition existed in the record in the case of Myers v. State, 111 Ark. 399. This was also a rape case, and it was there said that the jury would not have been warranted in convicting the defendant without the testimony of the prosecuting witness who had. repudiated her testimony.

The Bussey case was cited and followed in the case of Shropshire v. State, 86 Ark. 481. Witness Faucette repudiated testimony which he had given at the trial of the defendant, and explained that he had testified under a misapprehension as to which of two brothers was on trial on a charge of gaming. The testimony of •this witness, as the opinion says, “was of gravest moment, and doubtless largely contributed to the -conviction of the defendant.” The court held that a new trial should have been granted for newly discovered evidence, and, in doing so, said: “If any issue of fact had been made on it, or his affidavit had been in conflict with any of the established facts of the case, or had been made under circumstances throwing suspicion upon it, then the circuit judge should be sustained in disregarding it.”

In the case of Osborne v. State, 96 Ark. 400, Bradley, a witness for the State, recanted by saying that he had answered a certain highly important question adversely to the accused under a misapprehension as to its purport, and that his answer would have been favorable to the accused had he understood it. The court there said the testimony of Bradley was only cumulative, and that the changed testimony would, upon a new trial, be only • cumulative, and that such evidence was not sufficient ground for a new trial. The court then quoted from Bussey v. State, 69 Ark. 545, as follows: “In this latter case it is said: ‘And even a confession of perjury on the part of a material witness does not necessarily call for a new trial when, eliminating his evidence, there is still other evidence to support the judgment/ ”

The case of Brown v. State, 143 Ark. 523, was one in which the accused was convicted on the testimony of Simmons, his accomplice. One of the errors assigned was that the testimony of the accomplice was not corroborated; but we held otherwise. Another assignment of error was that a new trial should have been granted because of the recantation of Simmons. We there said: “In the present case Simmons was before the court when he testified at the trial of the defendant, and the court had the opportunity to examine his testimony and demeanor on the witness stand and compare them with the statements made by him in his affidavit after the trial was ended and the defendant had been convicted by the jury. Simmons’ testimony was corroborated in several important details, and it cannot be said that the trial court, under the circumstances, abused its discretion in not granting the defendant a new trial because Simmons made a written retraction of his former testimony and swore to the truth of it.”

In 16 C. J., § 2715 of the article on Criminal Law, pp. 1188-1190, it is said: “A material error or misstatement in the testimony of a witness for the prosecu-' tion may constitute ground for a new trial. Where, therefore, it appears that, on a new trial, the witness will change his testimony to snch an extent as to render probable a different verdict, the new trial will be granted. Bnt recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it -is not satisfied that such testimony is true. Especially is this true where the recantation involves a .confession of perjury. * * * But where it appears, from competent and satisfactory evidence, that a witness for the prosecution has deliberately perjured himself, and that, without his testimony, defendant would not have been convicted, a new trial will be granted. Usually a new trial will not be granted because of perjury an an immaterial issue, or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support.”

The annotator’s notes cite many cases in support of the text, among them being our own cases of Bussey, Myers and Shropshire, supra.

A very instructive case is the decision of the Court of Appeals of New York in the case of People v. Shilitano, 218 N. Y. 161, 112 N. E. 733, 1916-F, L. R. A. 1042. It was there said: “In determining the weight to be given to the statements of these witnesses affirming the guilt of the defendant and recanting their testimony, we must endeavor to discern the motives which actuated them. If, upon examination, it should appear that their testimony upon the trial was given without any motive to falsify and that their statements recanting their testimony were prompted by corrupt or unworthy motives, but little weight should be given to the recanting statements. There is no form of proof so unreliable as recanting- testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character.”

Two other instructive cases on the subject are State v. Blanchard, 92 N. W. (Minn.) 504 and Lucia v. State, 59 Atl. (Vt.) 1016.

We have concluded that the court did hot err in refusing to grant the motion for a new trial. The court might well have refused to believe the testimony of Mrs. McAfee, offered at the hearing of the motion for a new trial. There appears to have been no reason why the doctor and the nurse and Mr. Strozier would have desired Mrs. McAfee to falsely accuse appellant. On the other hand, the testimony shows that Mrs. McAfee had gone back to the home of appellant, and was living with him as a member of his family, and consequently under his influence, and it was, of course, very much to the interest of appellant to have the witness change her testimony. Moreover, it does not appear that the conviction in this case rested entirely upon the testimony of Mrs. McAfee, nor that a verdict of conviction could not be had without her testimony. It has been pointed out that the witness did not state that the child had not been whipped, but that she only said that appellant had not whipped it, and all the 'circumstances in the case tend to indicate that, if the baby was whipped, the whipping-had been administered by appellant. Indeed, the testimony of Yertrees alone, if accepted by the jury, would sustain the conviction, and, if this be true, the.testimony of Mrs. McAfee, while itself sufficient to sustain the conviction, is cumulative of other testimony, which was also sufficient for that purpose.

• No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Brown v. State.
    Opinion delivered November 26, 1923.
    1. Intoxicating liquors — interest in sale. — Where, the intermediary between the purchaser and the seller is a necessary factor without whose assistance the sale of liquor could not have been consummated, he is interested in the sale in the sense of the law, whether he has any pecuniary interest therein or not.
    2. Criminal law — evidence—objection.—The competency of testimony not objected to will not be considered on appeal.
    3. Criminal law — competency of testimony. — In a prosecution for being interested in the sale of intoxicating liquors, testimony that defendant had stated to witness, about a year before being arrested, that he had peddled a wagonload of whiskey, was admissible.
    4. -Criminal” law — statement in defendant’s presence. — In a prosecution for being interested in the sale of intoxicating liquor, in which there was testimony tending to prove that defendant acted as an intermediary between the buyer and seller of whiskey, the buyer’s testimony that the seller told him, in defendant’s presence, to see defendant if he wanted liquor ’and could not find the seller, was admissible to show that defendant was the seller’s agent in the sale of the liquor.
    5. .Criminal law — admission of liquor in evidence. — In a prosecution for being interested in the sale of liquor, in which it was claimed that defendant had acted as agent of the seller in the sale of liquor, it was not error to admit a part of the liquor in evidence, upon its being properly identified.
    6. Criminal law — argument of prosecuting attorney — objection. —An argument of the prosecuting attorney will not be considered on appeal where the record does not show objection or exception thereto.
    7. Criminal law — objections to instructions not designated.— Assignments of error as to instructions will not be considered where defendant failed to point out, by number or otherwise, in his motion for new trial, the instructions to which he had reference.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.
    No brief for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm: T. Hammock and Darden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Sebastian County, Greenwood District, under § 6160 of Crawford & Moses ’ Digest, for the crime of being interested, in the sale of intoxicating liquor, and was adjudged to serve a term of one year in the State Penitentiary as punishment .therefor. Prom the judgment of conviction he has prosecuted an appeal to this court, but has not filed a brief in support of his assignments of error.

He assigned as error, in his motion for a new trial, that the verdict was.contrary to both the law and the evidence. There is substantial testimony in the record tending to show that, pursuant to an agreement, appellant met Walter Milam on the night of March 24, 1923, at the pool hall in the town of Hartford, and conducted him to the Bock Island depot, where he met a man by the name of Aydolette; that Milam paid Aydolette $2.50 for a quart of whiskey, whereupon appellant accompanied him to a nearby coal-shed and pointed the whiskey out to him; that Milam took the whiskey and delivered it to' the officers, who produced a part of it at the trial for the inspection of the jury. The law is that “where the intermediary between the purchaser and the'seller is a necessary factor, without whose assistance the sale of liquor could not have been consummated, he is interested in the sense of the law, whether he has pecuniary interest or not.” Condit v. State, 130 Ark. 341; Ellis v. State, 133 Ark. 540.

He also assigned as error that the jury was influenced in arriving at its verdict by outside testimony, but there is nothing in the record to this effect.

He also assigned as error that the court permitted witness White to testify that, the day before the arrest, he had followed appellant’s brother, whom he suspected of having moonshine whiskey, and who was accompanied by appellant, to a' certain mountain and through the woods. No objection was made to the introduction of this testimony, so this court cannot pass upon its competency. Yazoo & Miss. Valley Rd. Co. v. Soloman, 123 Ark. 66; Lisco v. Uhren, 130 Ark. 111.

He also assigned as error the admission of the testimony of Walter Milam, to the effect that appellant had stated to him that, about a year before being arrested, he had peddled a wagonload of whiskey around Hartford. The issue joined was whether appellant was interested in the sale of intoxicating liquor to Walter Milam, and the statement that he had been peddling whiskey tended to throw light upon the issue, and was therefore admissible in evidence. Austin v. State, 14 Ark. 555; 10 R. C. L. p. 925.

He also assigned as error the alleged refusal of the trial court to compel Walter Milam, the chief prosecuting witness, to tell for whom he purchased the liquor and who drank it. This seems to be an assertion without foundation in fact. The record does not reflect su’eh an occurrence, so it is unnecessary to discuss that assignment of error.

He also assigned as error the admission of the testimony of Walter Milam to the effect that the man Aydolette told him to see appellant when he wanted liquor, if he could not find him. The record reflects that this instruction was given Milam in appellant’s presence. It was admissible to shoyr that appellant was Aydolette’s “agent in the sale of liquor.

He also assigned as error the admission of a vial of liquor in evidence. According to the testimony of the officers, the sample of liquor introduced came out of the quart jar Walter Milam turned over to them. Walter Milam testified that he got the jar of whiskey in question, through appellant’s direction, out of the coal-shed at the Rock Island depot. We think the whiskey was sufficiently identified as a part of the liquor purchased from the man Aydolette and appellant.

He also assigned as error certain arguments made by the' prosecuting attorney, but the record does not reflect that he objected or saved any exceptions to them.

Lastly, lie assigned as error the giving and refusing of instructions by the court, but he failed to point out, in his motion for a new trial, the instructions by number, or otherwise, to which he had reference. This should have been done so as to direct the attention of the court to the errors complained of. Black v. Hogsett, 145 Ark. 178.

No error appearing, the judgment is affirmed.


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    Alford v. State.
    Opinion delivered November 26, 1923.
    1. Criminal law- — dying declarations — instruction.—Where, in a prosecution for murder, the court refused a correct instruction telling the jury that a statement by deceased, offered as a dying declaration, must have been made under a sense of impending dissolution, but instructed the jury that, in considering such statement, it “should be weighed under the same rules as the statements of the witness,” held error.
    2. Homicide — dying declarations — jury question. — Notwithstanding the admission of dying declarations in evidence by the court upon a prima facie showing that they were made in extremis, it is the province of the jury whether such declarations were made under consciousness of impending death. -
    S. Homicide — dying declarations — reputation op ' deceased. — ■ Where a witness, introduced to impeach dying declarations of deceased, testified that his reputation for truth and morality was bad, it was error to exclude a question whether, judging from deceased’s reputation, the witness would believe him on oath.
    Appeal from Nevada Circuit Court; James H. Mc-Collum, Judge;
    reversed'.

      J. O. A. Bush, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Nevada County for the .crime of murder in the first degree for killing Dee Cook. Upon trial of the charge she was convicted for manslaughter and adjudged to serve a term of four years in the State Penitentiary as punishment therefor, from which is this appeal.

Appellant insists upon a reversal of the judgment, assigning many reasons therefor. Most of the assignments of error are based upon exceptions to instructions given and refused. A careful examination of them reveals that the court erred in refusing to give appellant’s request No. 10 in the form asked, and in modifying and giving it in its modified form. Appellant’s request No. 10 is as follows:

“You are instructed that, before you consider the statements made by the deceased and offered in evidence as his dying declaration, you must believe, beyond a reasonable doubt, that such statements were -made under the belief by the deceased of impending dissolution; and that such statements are to be weighed under the same rules as the statements of other witnesses, and the evidence of the deceased «o given may be contradicted or impeached in like manner as the evidence of any other witness.”

As modified and given it is as follows: “You are instructed that, in considering the statements made by the deceased and offered in evidence as his dying declaration, such statements are to be weighed under the same rules as the statements of the other witnesses.”

The effect of the modification was to withdraw from the jury the question of whether deceased made the dying declaration introduced in evidence, relative to the manner in which he was shot, and by whom, under the belief that he was in extremis. The testimony showed that on July 4, 1923, deceased received a gunshot wound from which his body and limbs were paralyzed; that he died therefrom on July 9 following; that he had been informed he could not live; that in the declaration made by him he said: “They say I am dying as a result of that wound, and I believe that is true, and I make this statement freely and voluntarily in order that the truth may be known. ’ ’ Dying declarations are admitted in evidence by the court upon a prima faoie showing that they were made in extremis, but, notwithstanding their admission in evidence, it is still within the province of the jury trying the case to decide, from the whole evidence and all reasonable inferences therefrom, whether utterances were made under consciousness of impending death. It is error to take this question from the jury. 21 Cyc. pgs. 985-6-7; Campbell v. State, 38 Ark. 498; Evans v. State, 58 Ark. 47; Rhea v. State, 104 Ark. 162; Stewart v. State, 148 Ark. 540.

The other instructions requested by appellant, which correctly declare the law applicable in the case, were sufficiently covered by correct instructions given by the court.

Appellant sought to impeach the dying declaration of deceased, introduced in evidence, by showing that the declarant conld not be believed under oath. “Dying declarations are substituted for sworn testimony” (21 Cyc. p. 987), and may, of course, be impeached in the same manner that other testimony is impeached. Booker Johnson was introduced as a witness by appellant, who testified that the reputation of deceased for truth and morality was bad in the community in which he lived. The appellant then asked him whether, judging from that reputation, he would believe him on oath. The court ruled out the question, and in doing so committed reversible error. This court said, in the case of Cole v. State, 59 Ark. 50: “Another question arises on the objection of the defendant to the manner in which questions are propounded to and answered by witnesses called to impeach another on the ground of bad reputation for truth and morality, and also to sustain the reputation of a witness thus sdught to be impeached. The plain, simple formula in the first instance is essential. The impeaching witness should be interrogated as to his knowledge of the general character and reputation, among his neighbors, for truth and morality, of the witness sought to he impeached, and from that knowledge, if sufficient to support an opinion, whether or not he should believe the person on oath. "Where a witness is introduced to sustain the character of the witness sought to be impeached, similar interrogatories should be propounded to him.” To the same effect see Pleasants v. State, 15 Ark. 624; Snow v. Grace, 29 Ark. 131; Hudspeth v. State, 50 Ark. 534; 28 R. C. L., §. 215; Lodge v. State, 82 A. S. R., p. 28.

We deem it unnecessary to discuss any other assignments of error, as the matters complained of will not likely recur in a new trial of the case.

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


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    First National Bank of Broken Bow v. Bank of Horatio.
    Opinion delivered November 26, 1923.
    1. Venue — action to cancel certificates of deposit. — An action to cancel a bank’s certificates of deposit was properly brought in the county in which the bank holding the funds represented thereby was situated, though defendant assignee was a nonresident, and constructive service was sufficient to bring the nonresident into court, the action being quasi in rent.

    2. Bills and notes — certificates of deposit. — Under Crawford & Moses’ Dig., § 475, certificates of deposit, though assignable, are not negotiable paper, and the purchaser acquires title subject to defenses which might have been made against them in the hands of the original payee.
    3. Process — motion to quash — abandonment.—A defendant constructively summoned, who appeared specially to move to quash the service, will be held to have abandoned the motion by not requesting a ruling thereon before or at the time the cause was submitted.
    4. Judgment — reversal of, on constructive service. — In an action against a bank which had issued certificates of deposit and against the assignee thereof, to set aside the assignment, in which judgment was rendered for the plaintiff, a reversal of the judgment as to the plaintiff, on retrial of the cause, on motion of assignee, constructively served, did not affect the original decree in so far as it ordered the bank to pay the funds to plaintiff; the only relief accorded to the assignee being an order against plaintiff and her bondsmen for restitution of money wrongfully received by her.
    -Appeal from Sevier Chancery Court; James D. Shaver, Chancellor;
    affirmed.
    ' Abe Collins and John C. Head, for appellant.
    1. There was no venue in Sevier County in this case, as against appellant. The proceeding’ must of necessity be in rem where there is.no jurisdiction of the person, and, in order to bind the property, it is necessary that it be found in the jurisdiction of the court. C. & M. Dig., § 6269; Id. § 502; Id. § 1164-1174; 72 Ark. 322.
    2. It was error to permit appellant to appear specially and file the motion to quash the -service, and then, without disposing -of the motion, render1 judgment by default against it. 4 Ark. 526; 5 Ark. 193; 17 Ark. 454; 6 Ark. 552. It is error to render judgment by default where issues remain undisposed of. 23 Ark. 18; 42 Ark. 268; 8 Ark. 502; 25 Ark. 622; 24 Ark. 569; 25 Ark. 105.
    The situs of the property involved was in Oklahoma. The action was m personam, and therefore the chancery court had no jurisdiction either of the person of appellant or of the subject matter of the action. 60 S. ~W. 485; 36 S. W. 16; 133 N. Y. S. 482; 66 S. E. 567; U. S.’Adv. Opinions, 1921-22, p. 280. The sitios of the action was at the domicile of the appellant. 71 N. E. Ill; 104 Am. St. Rep. 560. As to the lack of jurisdiction in the chancery court here, see 95 U. S. 727; 169 U. S. 243, 42 L. ed. 733; 11 Sup. Ct. 960; 21 C. J. 150;' 9 How. 336, 13 L. ed. 164; 40 Am. Dec. Ill; 19 Am. Dec. 755; 97 Atl. 337; 8 N. W. 804; 50 Am. Dec. 666; 6 Am. Dec. 83; 31 N. W. 210; 8 S. W. 295; 150 N. W. 476; 158 Pac. 587. The statutes of Arkansas do not confer jurisdiction in rem in actions of cancellation or rescission, but provide to the contrary. C. & M. Digest, § 6269; Id. 6270; 90 Ark. 44, 117 S. W. 754; 143 Ark. 539, 220 S. W. 819; 34 Ark. 399; 26 Ark. 124; 4 Ark. 197; 6 C. J. 33; 15 C. J. § 90; 215 U. S. 1; 30 Sup. Ct. 3, 54 L. ed. 65; 25 Am. Rep. 416; 12 Am. Rep. 291; 14 Am. Dec. 543; 177 S. W. 66; 21 O. J. 149, § 130; 95 U. S. 727; 119 U. S. 185, 30 L. ed. 372. Jurisdiction to render a judgment in rem inheres only in the courts of the State which is the situs of the res. 16 Pet. 25, 10 L. ed. 873; 22 N. J. Eq. 115; 27 Ark. 482; 47 Ark. 254; 16 So. 606; 43 L. R. A 403; 166 Pac. 176; 150 Pac. 1070; 169 Pac. 727.

      E. K. Edwards, for appellee.
    Í. The decree was regular on its face, and recites jurisdictional facts, among others, that appellant had been constructively summoned. So, the- question as to giving judgment without disposing of the motion to quash passes out, for the recitals of the decree must be taken as true. 77 Ark. 497; C. & M. Digest, § 6239; 63 Ark. 513; 106 Ark. 95. Moreover, appellant abandoned or waived the motion by failure to insist upon a ruling by the court.
    2. It was the fund of which the certificates of deposit were the evidence that was involved in the litig’ation and not the certificates, and that fund was on deposit in the appellee bank. The jurisdiction was therefore in the chancery court here, and not in the Oklahoma court. 22 Ark. 391; 133 Ark. 289; 55 Ark. 445; C. & M. Digest, % 6297. This was not an action purely in personam. Plaintiff sued -out a writ of injunction and had it served upon appellee, impounding the money or deposits in its hands. This constituted an action quasi in rem, i. e., a proceeding-against a person in respect to the property. 146 Ark. 417; 1 R. C. L. § 13; 1 C. J. 1041, § 17; ION. E. 160J164; 1 C. J. § 171.
    3. Under the statute, C. & M. Dig., § 6266, under which appellant has elected to proceed, appellant was not entitled to a judgment over against appellee. When the court rendered judgment in favor of the plaintiff below, it had the power to enforce its decree and. order appellee to pay over the fund involved to plaintiff. 128 Ark. 353; 131 Ark. 144. And afterwards, proceeding under the statute, swpra, it could, as it did, adjudge the plaintiff and her bond, to make restitution, but it had no power to extend that judgment against a third party, or -that the appellant should have restitution from a co-defendant in the original action. C. & M. Dig., § 6261; 123 Ark. 523.
   Humphreys, J.

This suit was instituted in the chancery court of Sevier County on March 12, 1921, by Zilphie Gilmore against appellant, appellee and. G. S. Gilmore, her husband, to cancel an assignment of two certificates of deposit to the First National Bank of Broken Bow, an Oklahoma corporation, one of which had been issued to her and the other to her husband by ■the Bank of Horatio, an Arkansas corporation, and to collect the deposit. She alleged that she deposited $300 in the Bank of Horatio for which the certificates were issued1, and that she was induced to sign them to the First National Bank of Broken Bow, in, payment of her husband’s indebtedness to it, through the false representation that her husband had committed a felony by trading certain property which he had mortgaged to it, when, in truth-and fact, said bank had consented for. him to trade the property. Ancillary to this suit, an injunction was obtained impounding the fund evidenced by the certificates in the Bank of Horatio. S. G. Gilmore and the Bank of Ploratio were personally served with summons, and the First National Bank of Broken Bow was constructively served by delivering a-.copy of the complaint, with summons attached to it, in the manner provided by § 1157 of Crawford & Moses’ Digest.

The Bank of Horatio answered, admitting the deposit of the fund and the issuance of the certificates, offering to pay the fund to the party adjudged to be lawfully entitled thereto.

The First National Bank of Broken Bow entered its appearance specially for the purpose of filing a motion to quash the service, but never obtained a ruling thereon. At the October term, 1921, of the court, the cause was submitted upon the pleadings and testimony, from which the court found that the Bank of Horatio and G-. S. Gilmore had been personally served, and that the First National Bank of Broken Bow had been constructively served; that the assignment of the certificates had been induced through fraud, and for that reason the title thereto had not passed, and that the plaintiff, Zilphie Gilmore, was the owner of them, and ordered the payment of the fund evidenced by the certificates to said plaintiff, upon execution of the bond to the nonresident defendant, the First National Bank of Broken Bow, in the manner provided and for the purpose specified in § 6266 of Crawford & Moses’ Digest. The bond was executed and the money paid to plaintiff in accordance with the decree of the court.

On the fifth day of April, 1922, appellant presented its motion, answer, and cross-bill under the authority of § 6266 of Crawford & Moses’ Digest, to obtain a retrial of the cause upon its merits. The pleading filed by the appellant denied the material allegations in the complaint of Zilphie Gilmore, and alleged that the assignment of the certificates was voluntary on her part; “that the decree entered October 25, 1921, was void and constituted no authority to the Bank of Horatio to pay this money to plaintiff; that personal service had not been obtained upon this bank; that this court had no jurisdiction over the certificates of deposit, said certificates being outstanding negotiable instruments out of the jurisdiction of this court, the situs thereof being in Oklahoma; that said certificates were not impounded and held under any writ of garnishment or attáehment of this court, and that plaintiff and the First National Bank of Broken Bow were at all times during the progress of this suit residents of Oklahoma.” The prayer was that the judgment be set aside, and that it have judgment over against the Bank of Horatio.

The Bank of Horatio answered, in substance, that® the First National Bank of Broken Bow was constructively summoned; that the decree ordering it to pay the fund over to Zilphie Gilmore was not void, but, on the contrary, was regular and valid.

The cause was again heard upon the pleadings and testimony, which resulted in a finding that the assignment of the certificates was not induced through misrepresentations, but was voluntarily made, and a decree against Zilphie Gilmore and her bondsmen for the amount of the deposit, from which no appeal was prosecuted; also a finding that the First National Bank of Broken Bow was not entitled to recover from the Bank of Horatio, and a consequent decree dismissing its cross-complaint against said bank. Appellant has appealed from the decree dismissing its cross-complaint against appellee, and that branch of the case is before us for trial de novo.

Appellant contends for a reversal of the decree upon the ground that the situs of the action was at Broken Bow, Oklahoma, the place of appellant’s residence. In other words, it contends that the action was strictly in personam, and that the chancery court of Sevier County, Arkansas, had no jurisdiction to render a judgment affecting a fund for which it held certificates of deposit, upon constructive service. We cannot agree with appellant that this proceeding was one strictly in personam. The fund evidenced by the certificates was the real subject of litigation. It was in the Bank of Horatio. In form the certificates are not negotiable. They are assignable under the statute of this State (§ 475 of Crawford & Moses’ Digest), but not in the sense of commercial paper. The purchaser of such certificates only acquires title by assignment, subject to all defenses which might have been made to them in . the hands of the original payee. It is true this suit was against appellant, but it concerned the ownership of a fund not evidenced by negotiable paper in a commercial sense, which fund was within the jurisdiction of the court and which had been impounded by ancillary injunction issued out of the court. It was an action quasi in rem, or in the nature of a suit in rem. 1 R. C. L., Actions, § 13. For this reason the situs of the action was where the fund was located. It follows that constructive service in respect to ownership and disposition of the particular fund was sufficient to bring appellant, who was a nonresident, and who claimed an interest in the property, into court. While no personal decree could have been rendered against appellant upon constructive service, any decree rendered with respect to the disposition of the property was binding upon it, unless after-wards modified or set aside. The fact that the court rendered a decree ordering the Bank of Horatio to pay the fund to Zilphie Gilmore, before passing upon the motion to quash the service, made no difference. Appellant abandoned the motion by not requesting a ruling thereon before or at the time the cause was submitted. The judgment was not void. The reversal of its former finding and decree by the trial court as to the plaintiff, Zilphie Gilmore, upon the merits, did not automatically work a reversal of the decree ordering the Bank of Horatio to pay the fund to said plaintiff. Appellant obtained a reversal of the cause under § 6266 of Crawford & Moses’ Digest, which is as follows:

“When a judgment has been rendered against'a defendant or defendants constructively summoned, and who did not appear, such defendants or any one or more of them may, at any time within two - years, and not thereafter, after the rendition of the judgment, appear in open court and move to have the action retried; and, security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and, upon the new trial, the court may 'Confirm, modify or set aside the former judgment, and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession, and pay to the defendant the value of any property which may have been taken under an attachment in this action or under the judgment and not restored; provided, the provisions of this action shall not apply to judgments granting a divorce, except so far as relates to alimony.”

It will be observed that the only relief accorded a defendant constructively served under that section, if the judgment is modified or set aside, is for an order against the plaintiff and his bondsmen for a restitution of money wrongfully received by him, or the restoration of property wrongfully received which is still in his possession. Appellant received a judgment for the restoration of the fund against appellant and her bondsmen, and this was all it was entitled to under the statute.

No error appearing, the judgment is affirmed.

McCulloch, C. J., and Smith, J., dissent.


author: McCulloch, C. J.

text:
    Goodwin v. State.
    Opinion delivered December 3, 1923.
    1. Intoxicating liquors — possession op still. — In a prosecution for keeping an unregistered still, proof that the still was found in a smokehouse on defendant’s premises, and that defendant kept the smokehouse locked, warranted a finding that the still was in his possession.
    2. Criminal law — oral proof op search warrant. — Where a deputy sheriff testified that he found a still in a smokehouse under defendant’s control, his oral testimony that he had a search war- . • rant was admissible to explain his presence at the premises.
    3. 'Criminal law — declarations op third person. — While defendant could prove that a third person was in control of the smokehouse where a still was found, such fact could not be proved by the declarations or admissions of such person.

      4. Witnesses — impeachment.—In a prosecution for keeping an unregistered', still, a witness for the defense, who testified that a third person had possession of the still, could be impeached by proof of statements made by such witness, in defendant’s absence, that defendant had the key to the door of the building in which the still was kept.
    Appeal from Randolph. Circuit Court; John G. Ashley, Judge;
    affirmed.

      Schoonover & Jackson, for appellant.

      J. S. Utley, Attorney General; John L. Garter, Wm. T. Hammock and Harden Moose, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted under an indictment charging him with the crime of keeping in his possession a still without registering the same.

Testimony adduced by the State established the fact that a still and a lot of mash were found in a house on appellant’s premises — in the side-room of a smokehouse near the residence occupied by appellant. The State’s proof was also sufficient to establish the fact that appellant controlled and used the room in which the still and mash were found. The contention of appellant was that he did not use or occupy the room, but that it was in the possession and under the control of one Roberts.

It appears from the testimony that the farm on which the house was situated was originally owned by appellant, but that he sold the farm to Roberts, and then rented a portion of it. The conflict in the testimony relates to the question whether or not this particular house was used and controlled by Roberts or by appellant. The evidence warranted a finding that the room was under the control of appellant, that he kept it locked and carried the key, and that the still and mash were thus kept in his possession.

Hunter Perrin, a deputy sheriff, and another man who accompanied him on the trip, procured a search warrant and went out to appellant’s premises, and, on making a search, they found the still and mash, as before stated. Appellant objected to the State’s proving by oral testimony of the witnesses that they had a search warrant, and the first assignment of error relates to the ruling of the court' admitting the testimony. There was no objection made to the testimony of Perrin and his associates, to the effect that they found a still in the smokehouse, but the objection simply went to the proof of the issuance of the search warrant. This was a collateral matter, and no rule of evidence'was violated by permitting the officer and his associate to testify that they had a search warrant when they made the search and found the still and mash. The testimony on this subject was merely in explanation of the presence of the officers at the premises and the search made by them.

The next assignment of error relates to the refusal of the court to admit proof of declarations of Roberts to the effect that he used and controlled the room in which the still and mash were found. The ruling of the .court on this subject was correct. Appellant had the right to prove, as a defense to the charge, that the room was not in his control but was in the control of some other person, but he could not prove this by declarations of admissions of the other party. Tillman v. State, 112 Ark. 236.

Finally, it is insisted that the court erred in permitting the State to prove a statement of one Thompson, in the absence of appellant, to the effect that appellant had the key to the door of the room in which the still -and mash were found. This proof was admitted by the court for the sole purpose of contradicting Thompson, who had been introduced by appellant as a witness, and a foundation for the contradiction was laid by asking Thompson if he had not made the statement, at the time and place named, that appellant had the key to the door, to which inquiry Thompson answered in the negative. The State had the right to impeach Thompson, for the reason that the testimony given by Thompson was to the effect that Roberts owned the land and had control of the building in question.

There is no error in the record, and,' the evidence being sufficient to sustain the verdict, the judgment is affirmed.


text:
    Rayder v. McGehee East and West Highway District.
    Opinion delivered December 3, 1923.
    1. Highways — validity op statute creating district. — Special Acts 1923, p. 1721, creating a road improvement district to include “any quarter section lying wholly or in part within three miles of the road,” held not invalid as discriminatory on its face or otherwise.
    2. Highways — uncertainty as to boundaries. — Special Acts 1923, p. 1721, creating road improvement district and providing for the selection by resident landowners between two routes, held not void because of indefiniteness of description of boundaries, since the statute tentatively adopts both routes for the purpose .of the election, and makes the selected route the boundary after the election.
    3. Constitutional law — construction op statute. — A statute should be construed so -as to render it Valid, if it can be done under any reasonable interpretation of the language used.
    4. Highways — construction op act. — “General Highway Bill,” Acts Ex. Sess. 1923, No. 5, providing for an election in certain classes of road districts, held inapplicable to a road improvement district created by Sp. Acts 1923, p. 1721, which provided for an election as to the route.
    Appeal from Desha Chancery Court; E. G. Ham-mode, Chancellor;
    affirmed.

      Percy L. Neville, for appellant.
    The district is invalid for the reason that any quarter section which lies wholly or in part within three miles of the road is included, which results in including the entire quarter section if any part falls within the radius described, and other lands equidistant from the road will not be included, which is arbitrary and discriminatory and renders the district invalid. 146 Ark. 287. The description of the district as set out in § 27 of the act is too vague and uncertain. The election held pursuant to the act creating the district was invalid, since the general road law, passed at the special session of the Legislature of 1923, supersedes and controls in the manner of holding elections. The last act provides for nonresident landowners and corporations having a vote, which privilege was denied under the special act. 120 Ark. 230.

      Abner McGehee, for appellee.
    A legislative finding as to what lands will be benefited is binding on courts, except for arbitrary discrimination or obvious and demonstrable mistakes appearing on the face of the act. 155 Ark. 176. See also 139 Ark. 524; 135 Ark. 325; 131 Ark. 59; 133 Ark. 380; 145 Ark. 49. 'Cases holding the validity of a statute which provides for an election by the landowners to select the route are: See 145 Ark. 143; 156 Ark. 507. The district in question falls within the exception contained in the • general road law, and the election held was valid..
   McCulloch, C. J.

Appellee is a road improvement district created by a statute enacted at the regular ses-.sion of the General Assembly of 1923 (Special Acts 1923, p. 1721), the road to be improved starting a short distance west of the town of McGehee, in Arkansas County, thence running to McGehee and through the town, and thence northeasterly parallel with the line of the Missouri Pacific Railroad, to the town of Watson, and from the town of Watson two routes running north, .one to Toncapin and the other to a point designated as Moore’s Bridge across Red Fork Bayou, in section 15, The statute provided for a referendum election for the majority of landowners to vote to determine whether or not there should be operations under the statute, and it provided that at said election, -in addition to the question of adoption of the statute, the voters should select which of the two routes from Watson to Toncapin or to Moore’s Bridge shall be adopted.

The statute describes the boundaries of the district ■as including all lands in Desha County “south of the Arkansas River and west of the Mississippi River, and situated within three miles of any part of the road hereinafter described to he improved, laid out and maintained.” The section in which the description of the territory is given 'Concludes as follows: “Any quarter section lying wholly or in part within three miles of the road is included within the district.” The statute also prescribed how the election should be held to determine the question of adoption of the statute, and the selection of the route north of "Watson.

Appellant is the owner of property in the district, and he instituted this action to enjoin the commissioners from proceeding, alleging that the statute is void. The complaint alleges that an election was held pursuant to the terms of the statute, and that a majority voted in favor of adopting the statute and selecting the route from Watson to Toncapin. The chancery court rendered a decree declaring the statute valid, and an appeal has been prosecuted to this court.

The first contention of counsel for appellant is that the statute is void by reason of the provision that, where any part of a quarter section lies within three miles of the road, the whole should be included in the district. The argument is that this makes the taxes discriminatory and arbitrary and might result in including an entire quarter section and excluding other lands equidistant from the road to be improved. It cannot be seen, from the face of the statute, that this rule could result in any discrimination in favor of or against any lands, and no reason is given in the pleadings why it is discriminatory. No case is presented now where lands are included, with other intervening lands "excluded. The statute itself does not fix the assessments of land, but provides for assessments of benefits to be made by the commissioners. We see no reason why this provision of the statute should result in any unjust discrimination, so as to afford grounds for declaring the statute, void. House v. Road Improvement District No. 5, 158 Ark. 357.

It is next contended that the act is void because the description of the boundaries of the territory to be included is so vague and indefinite that it cannot be determined what lands are to be included, or what owners shall be permitted to vote in the election. Attention is called to the fast that the boundaries are not definitely fixed until the voters have decided, at the election, upon the route to be adopted north of Watson, either to Yoncapin or to Moore’s Bridge, and it is argued that, since the boundaries of the district are extended three miles from the road to be improved, it cannot be known until after the route is selected where the boundaries are. The situation with respect to the creation of this district is indeed unusual and presents a different question from anything heretofore presented on this subject. It is our duty, however, to give such construction to the statute as will render it valid, if it can be done under any reasonable interpretation of the language used.

It is clearly and unmistakably declared in the statute that the district shall be created and that the boundaries shall extend three miles from the road, and yet there is a provision for the selection of the route north of Watson. It will be remembered, from the recitals heretofore made, that the principal part of the road is the long stem running parallel with the railroad between McGehee and Watson, and there are two comparatively short prongs of the road, one running from Watson to Yoncapin and the other from Watson to Moore’s Bridge, and it is left to the choice of the resident landowners to determine which of those prongs should be adopted. We think that a fair interpretation of the statute is that it was intended to include the lands within three miles of each -of these roads north of Watson for the purpose of determining who should vote in the election. Both routes are tentatively selected by the statute, but the final selection is left with the voters, and it was the purpose of the framers of the statute to permit resident owners of land within three miles, of each of the two routes to vote in the election, but, after the selection of the route by a majority of the voters, then the route selected becomes the final one, and the boundaries of the district reach only to points on each side of the road three miles distant, which would exclude all lands within those boundaries. Thus interpreting the statute, it is a valid one, and it appears, from the face of the pleadings, that an election was held, and that the route to Yoncapin was adopted.

Since the decision of this case in the court below, act No. 5 of the extraordinary session of 1923, commonly designated as the general highway bill, has been enacted, containing a provision to the effect that, in all road districts created since the session of 1915, where no construction work has been done, nor contract let, nor bonds issued, before proceeding there shall be a reference to a vote of the owners, in number or in value, of lands in the district. The section .containing that provision also contains the following exemption:

“This section of this .act shall not apply to improvement districts where the act creating the improvement district or amendments to it provide for petitions of any maj-ority of property owners, or an election to ascertain their will, or to those districts where actual construction work has been begun, or contracts theref or have been made, or bonds sold .and delivered and are outstanding, before the passage of this act.”

It is contended that this provision of the late statute nullifies the organization of appellee road district under the prior statute, for the reason that the election provided for and held under the statute creating this district was .at variance with the provisions in the general highway bill for an election by all the landowners in the district, regardless of residence, either in number or in value. The general highway bill was passed since the decision below, but we take notice of its passage, and if its effect is to repeal the former act, it' is our duty to so declare, even though the new statute was passed while the appeal was pending here. We are of the opinion, however, that this 'district falls within the exemption specified in the general highway hill. It is true that the statute creating this district provided for an election to be participated in by only the resident landowners, whereas the general highway bill provides for an election by cwners of land, regardless of residence. There is no constitutional restriction, however, upon the lawmakers in providing how an improvement district shall be put into operation; the ascertained will of the majority is not required, but is only a privilege extended by the Legislature, or a condition upon which the act goes into effect. It was within the power of the lawmakers to leave it to the will of the resident property owners. The exemption in the general highway bill does not specify what kind of an election must have been held in order to come within its terms. The only specification is that districts formed under previous statutes, where there was a provision for a majority of property cwners to petition or to vote at an election, should fall within the exemption. This only meant that, where there had been a reference of the statute, in such mode and upon such terms and regulations as the Legislature saw fit to provide, and the election was held in accordance therewith, there was to be no requirement under the later statute for another election.

We conclude therefore that no election under the general statute was required, and that there had been a valid adoption of the statute by the voters.

This covers all the points raised in the case, and, as we find the decree to be correct, it is in all things affirmed.


author: Wood, J.

text:
    Kotchtitzky v. Magnolia Petroleum Company.
    Opinion delivered December 3, 1923.
    Drains — liability op contractor. — One who undertakes to construct a drainage ditch impliedly contracts to pay for ají labor done and materials furnished for that purpose, either to himself or to a subcontractor.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, Judge;
    affirmed.

      R. E. Fuhr and J. M. Futrell, for appellant.
    . W. F. Cochrane and R. P. Taylor, for appellee.
   Wood, J.

The appellant,- as the principal contractor, entered into a contract with the Cache River Drainage District No. 2, of Greene County, Arkansas, to construct a drainage ditch. Appellant sublet a portion of the contract to the Northwestern Drainage Company. .To enable the latter company to perform the portion of the work so sublet to it, the appellee furnished it certain materials of the value of $605.30, which was evidenced by a promissory note of February 3, 1921, with interest at the rate of eight per cent, .per annum from that date until paid. No part -of this note was paid, and the appellee obtained judgment against the Northwestern Drainage Company for the amount of the note in October, 1921.

This action was brought against the appellant to recover the amount of that judgment. The appellant, in its answer, admitted the facts above set forth, but alleged that the drainage district was organized under the provisions of act No. 279 -of the Acts of 1909 and the acts amendatory thereof, and pleaded that he was not liable under the provisions of that act. The appellee demurred to the answer. The court sustained the demurrer. The appellant stood on its answer, and the -court rendered judgment in favor of the appellee for the amount of its claim with interest, from which judgment is this appeal.

The appellant contends that it is not liable because the complaint does .not show that appellant’s contract with the district contained .any promise or obligation to pay for the material furnished in the construction of the improvement, and because the complaint does not show that the appellant executed a bond containing any promise or obligation to pay for the material furnished in making the improvement.

The complaint alleges, and the answer admits, that the district entered into a contract with appellant for the construction of the improvement. Even though the contract contained no express provision to pay for any or all work or labor performed or material furnished for the construction of said improvement, as alleged in the answer, nevertheless the contract for the construction of the improvement by the appellant carries with it an obligation, by necessary implication, upon the part of the appellant to furnish the labor and material necessary to make the. improvement which the appellant expressly contracted to construct. How would it be possible for appellant to fulfill the obligations of his contract to construct the improvement unless he furnished the labor and material necessary to make the improvements? This was his obligation, under the contract, and it is wholly immaterial, under the statute, so far as his liability is concerned, whether lie furnished the material and did the work himself or whether lie sublet it.to another. In either event he is liable, under the implied obligations of his contract, to furnish and pay for the labor and material necessary for the construction of the improvement. These implied obligations of his contract, under the statute, are equally as binding upon him as if the contract in express terms had contained the provision that “the contractor shall pay promptly, when due, for all work and l,abor done and material, machinery, appliances and supplies of every nature and kind and used in and about the work contemplated in this contract.” Therefore the doctrine of the case of Oliver Construction Co. v. Williams, 152 Ark. 444, is controlling here.

In that case, speaking of § 6913, Crawford & Moses’ Dig., we said: “Such statutes and contracts made under them should receive a liberal interpretation in order to effectuate the beneficent object intended. The obligation of the bond, when construed in the light of the statute requiring its execution, is for the protection of laborers and material-men, and, under the statute, is conditioned that the contractor shall pay all the indebtedness for labor and materials furnished in the construction of said public building or in making said public improvement.' The language is broad enough to include laborers who have performed work for a subcontractor who furnished labor or materials which the original contractor had obligated himself to furnish. * * * Such statutes are enacted in the exercise of a sound public policy. The contractor gets the benefit of the work done and materials furnished, and the statute requires him to pay for them. The contractor had supervision of the work, and it is easy for him to see what labor and materials are used in the work. * * # Of course, the giving of the bond under the statute adds nothing to the obligation of the contractor. It only has the effect to add sureties to Ms obligation, and thus, more effectively protect those furnishing labor and materials which are used in the construction of the public building or in maHng the public improvement.”

It follows that the ruling of the court in sustaining the demurrer to appellant’s answer and in rendering judgment in favor of the appellee is correct. The judgment is therefore affirmed.


author: Wood, J. Hart, J.,

text:
    Sweeney v. State.
    Opinion delivered December 3, 1923.
    1. Criminal law — evidence op declaration op accused. — Where there was testimony that accused and another were on trial before a committing magistrate for alleged robbery, testimony that accused, after the .examining trial, stated to the other, who was discharged, that it was not fair for accused to be committed to jail and the other to get out, that the other ought to go to jail too, was competent as a circumstance tending to prove a conspiracy between the two to commit robbery.
    2. Criminal law — harmless error. — In a prosecution for robbery, testimony that accused stated to one tried with him in examining court and discharged, that the latter ought to be committed to jail also, if erroneously admitted, was not prejudicial.
    3. Robbery. — evidence.—In a prosecution for robbery, evidence that defendant was seen, two weeks before the alleged robbery, near the scene of the robbery, was admissible to show his familiarity with the surroundings.
    4. Criminal law — hypothetical questions. — It was not error to refuse to permit a witness to answer a hypothetical question which assumed facts to Lexist when there was no testimony tending to establish such facts.
    5. Witnesses — impeachment.—Statements of a witness inconsistent with his testimony cannot be shown where no proper foundation has been laid.
    6. Witnesses — impeachment.—In a prosecution for robbery, it was not error to permit the prosecution to ask accused on cross-examination if he was a gambler, and whether he had been in jail, in the absence of a specific objection.
    Appeal from Randolph. Circuit Court; John C. Ashley, Judge;
    affirmed.

      Schoonover & Jackson, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee.
   Wood, J.

The appellant was convicted of the crime of robbing Eli Hufstedler of certain moneys in June, 1922. The testimony of Hufstedler was to the effect that, in June, 1922, in Randolph County, Arkansas,- the appellant crawled up behind him and one McMullen, with his gun drawn, and commanded witness to put up his hands and give up his money. The testimony tended to prove that appellant obtained from the witness and his companion about $172. The witness testified that he had been in the habit of carrying money in a belt on his person. Appellant remarked to witness as follows: “You have more money on you. Where is that belt?” Appellant tore witness’ pants open to see if witness had the belt on. Witness was asked to state who knew that he carried money in Ms belt, and answered, “Clarence Estes knew I carried money in a belt.” The appellant objected to the answer to the question and to the refusal-of the court to withdraw same from the jury. Witness, over the objection of appellant, was permitted to state that Clarence Estes had known for six months that witness carried money in a belt, and that he had known it up to three weeks before the robbery. The witness said he saw Clarence Estes on the day of the robbery, just before and just after the robbery. Estes lived at Imboden, Randolph County, near Sloan’s, on Third Street. Appellant requested the court to exclude the above testimony, which the court refused to do, to which ruling the appellant excepted. Witness had seen appellant and Sam McCoy the Sunday before, but didn’t know appellant then. Witness described in detail the manner in which appellant attempted to disguise himself, his dress and certain marks, a scar on his cheek, and positively identified the appellant as the man who robbed witness of his money. Witness stated that he and other parties sometimes went to the place where the robbery occurred for the purpose of gambling. Witness stated that the robbery occurred between nine and eleven o’clock. The witness was asked, on cross-examination, if he had not stated before that it was twenty minutes to twelve o’clock, and answered, “No sir, I said I got home at twenty minutes to twelve.” Witness stated that he didn’t remember that he -stated before that the robber? took place twenty minutes before twelve o’clock. It happened before that time.

Witness McMullen testified that lie and. Hufstedler were robbed on the day alleged, about twelve o’clock. He could not say positively that appellant was the man, but lie looked like the man who robbed them. Another witness stated that he saw the appellant, on the day of the alleg’ed robbery, coming from Cedar Brake, about half bent over, with a blue handkerchief over his face; that he spoke to appellant, and asked him what he wanted. Appellant replied that it was none of his business. Witness followed appellant, and he got faster as witness approached him. Witness positively identified appellant as being the man that he saw. It was some time between eight and nine o’clock in the morning.

Witness Andy Holcroft said that, on the day of the robbery, he saw appellant or a man that looked like him from his eyes up, at Cedar Brake, at Imboden. Witness had started to town, and heard Hufstedler hollering, and ran up to see what was wrong, and there was a fellow standing behind Hufstedler with a gun on him,’ taking his money. Witness, after describing the appearance of the man he saw, stated that he could not identify the appellant as the man, except his eyes looked natural. Witness stated that the robbery occurred between ten and twelve o’clock. His best judgment was about eleven-thirty. Witness was asked the following question: “If he had not heard Eli Hufstedler say, in private conversation with witness, after the case had been disposed of in the examining court, that the robbery took place within twenty minutes of twelve o’clock?” The State objected to the Question, and the court sustained the objection, to which the appellant excepted.

Witness J. A. Baker testified that he saw the appellant two weeks before, near the scene of the robbery, through the cedars, and that when witness and others got up and left he followed them up the creek. Appellant objected to the above testimony of the witness Baker. The court overruled the objection, to which rulipg the appellant duly excepted.

Witness Crabtree testified that he was at the examining trial of the appellant and Clarence Estes for the robbery. The trial was had just across the river from Imboden. ITe saw the appellant that day, and also Clarence Estes. Witness was permitted to testify, over the objection’ of appellant, that he heard a conversation between Clarence Estes and appellant, on the day of the examining trial, as follows: Appellant said, ‘‘Clarence, it is not fair for me to go down there by myself and you get out of this; you ought to go with me. ’ ’ The examining court had just bound appellant over to await 'the action of the grand jury and had turned Clarence Estes loose. The appellant made the remark in a jocular way. Witness didn’t know why he said it. He spoke so every one around could hear him. The appellant duly excepted to the ruling of the court in admitting the above testimony.

J. IT. Turner was a witness for the appellant. He testified that he saw the appellant on the streets on the day of the alleged robbery, at Hoxie, between nine and ten o’clock, and saw him again on the streets at Hoxie about 11:40 o’clock. Witness testified that he didn’t know how far it was from Hoxie to Imboden. He had gone over the route a .number of times. He had driven it in two hours. He didn’t know where the cedar brake was — thé alleged place of the robbery. Witness, at the time of the alleged robbery, was marshal of the town of Hoxie. Witness was asked the following question: “Basing your answer upon your experience as an officer, and knowing the country as you do, and basing your answer upon your knowledge of the distance- from Imboden to Hoxie, and basing your answer upon your knowledge as to the time it would necessarily require to travel over the usual route of travel, .by the method of travel known at the time of the alleged commission.of this offense, could this defendant have been in the town of Imboden, or at a point from a quarter to a-half mile north of Imboden, in that cedar brake, and committed the crime charged against him in this indictment, and been .in Hoxie, at the time you saw him there that day?” The court refused to permit the witness to answer the question, to which ruling the appellant duly excepted.

Several 'witnesses testified on behalf of the appellant, and their testimony tended to establish an alibi. The appellant was a witness in his own behalf, and, among other-things, he stated that he didn’t know anything about the robbery, and had never heard of it until he was arrested at Jonesboro, Arkansas.’ He testified as to his whereabouts on the day of the robbery and also where he stayed the night before. On cross-examination he was asked where he lived, and answered that he lived at Truman. He was asked how long he had been at Hoxie, and stated that he had been there for two or three years, off and on, a week or so at a time. Then he would go home to help his father with his crop.

Over the objection of appellant he was also asked the following question: “Q. You are a gambler — you gamble?” Witness answered, “I gamble some, but I am not a gambler. Q. You have been in jail? A. Yes sir, I have been in jail at Walnut Ridge and here.” Appellant, over his objection, was then asked, “Anywhere else?” and answered, “Yes sir; at Harrisburg.” On redirect examination appellant testified as follows: “Q. The time you were in jail here was when you were charged for this offense? A. Yes sir. Q. And also when you were in jail in Walnut Ridge?” and -answered, “Yes sir.” Appellant was then asked this question: “What were you in jail for at Harrisburg?” and answered, “I was charged with robbery'.” He was-asked, “Were you acquitted on that charge?” and answered, “Yes sir.”

The jury returned a verdict of guilty. The court overruled appellant’s motion for a new trial, and entered a judgment sentencing him to the State Penitentiary for a period of three years, from which is this appeal.

The first assignment of error is that the court erred in permitting the prosecuting witness to state that Clarence Estes knew that he had money, and that he carried money in a belt, and that he saw Clarence Estes on the morning of the day of the robbery — just before the robbery and just after — and that Estes lived at Imboden. The appellant also contends that the court erred in permitting the witness Crabtree to testify that, after the examining trial' of appellant and Estes, he heard appelant say to Estes, in effect, that it was not fair for appellant to be committed to jail and for Estes to get out; that Estes ought to go too.

There was testimony in the record to the effect that appellant and Estes were on trial before the committing magistrate for this alleged robbery and that the above remarks of the appellant were concerning the result of that trial, the appellant haying been bound over to await the action of the grand jury and Estes having been discharged. This testimony was in the nature of a confession by the appellant that Estes was with him in the charge of alleged robbery, and that, if it were fair to bind the appellant to await the action of the grand jury, Estes, under like circumstances, should also be bound. The testimony was competent as a circumstance tending to prove a conspiracy between appellant and Estes to commit the alleged robbery. The testimony was competent as a circumstance because it tended to prove that the appellant and Estes had knowledge of the fact that Hufstedler had money, which he carried on his person in a. belt. If we are correct in oiir conclusion that the effect of the above testimony tended to prove a conspiracy between appellant and Estes to rob Hufstedler, then it was clearly competent.

But, if we are mistaken, and if the testimony did not tend to prove a conspiracy between the appellant and Estes to rob Hufstedler, and if, as appellant contends, it only tended to prove that Estes, and not the appellant, had knowledge of the fact that Hufstedler carried money on his person in a belt, then the testimony could not possibly have been prejudicial to the appellant. Qn the contrary, it would rather tend to show that Estes, and not the appellant, was tlie one who had the guilty knowledge, and was most likely tire one who perpetrated the crime. Certainly there was no error prejudicial to the appellant in the admission of this testimony.

The court did not err in permitting the witness Baker to testify that he saw the appellant about two weeks before the date of the robbery, near the scene of the robbery, and that, when witness and others got up and left, he followed them up the creek. The testimony of this witness further disclosed that at Cedar Creek, the locus of the robbery, there was a thicket which was a resort or rendezvous, where the witness Baker and others went to play cards and shoot craps every Sunday. The testimony was competent. It tended to identify the appellant and to prove that he had, a very short time previous to the robbery, visited the scene thereof and obtained knowledge of the surroundings. The State had the right to prove that the appellant visited the scene of the robbery and obtained knowledge of the surroundings, and also the fact that parties were assembled there to gamble. This knowledge would better enable him to carry out his purpose, if such was his purpose, to commit the crime, which was soon thereafter committed and of which he was accused.

There was no error in refusing to permit-the witness Turner to answer the hypothetical question which appellant’s counsel propounded to him. This question assumed some facts to exist which there .was no testimony tending to establish, and the question was not responsive to any undisputed facts in evidence. Besides, the facts to which the witness had testified were not of a character to call for an opinion -on the part of the witness. It was not expert testimony, nor was it testimony in which it was proper to elicit the opinion of the witness. The witness stated the facts within his knowledge, and the conclusion to he drawn from these facts was for the jury. The question propounded to witness Andy Holcroft, to which appellant objected, was not proper. No proper foundation had been laid for such question. The court did not err in refusing to allow the question to be answered.

The court did not err in refusing to permit counsel for the State, on cross-examination, to ask the appellant if he were a gambler, and whether he had been in jail. The appellant, in answer to these questions, stated that he had gambled some, and that he had been in jail at Walnut Ridge, at Pocahontas, and at Harrisburg. The connection in which these questions were asked shows that the prosecuting attorney was attempting to prove the recent residence, occupation and history of the accused as affecting his credibility. To be sure, it would not be proper to ask an accused, who becomes a witness in his own behalf, whether he had recently been in jail on account of the crime for which he was then being tried, or for other crimes, merely for the purpose of showing that he had been previously accused of crime. Such questions, on cross-examination, would be like asking the accused if he had not been accused or indicted for crime. We have frequently held that it was not proper to ask a defendant, on cross-examination, whether he had been previously indicted for crime. Bates v. State, 60 Ark. 450; Hunt v. State, 114 Ark. 239; Johnson v. State, ante, p. 111; Youngblood v. State, ante, p. 144. An indictment is a mere accusation, and, of itself, does not carry any implication or warrant any inference either of guilt or of immoral or bad character. Likewise, the mere fact that a defendant had recently been in jail would not of itself justify the inference that the accused was a man of bad morals, or guilty of any crime that would affect his credibility as a witness. But where such questions are asked, not for the purpose of showing merely that the witness has been accused or indicted for a crime, or incarcerated merely upon a charge of criminal conduct, but for the purpose of showing that the witness’ habits are vicious, his character immoral, his occupation disgraceful or disreputable, his associations and surroundings with criminal classes, and that the imprisonment might have been the result of, or as punishment for, a felony of which the accused had been convicted, such questions may be asked, for they tend to impair the credibility of the witness.

As is said by Judge Hemingway, speaking for the court, in the well-considered case of Hollingsworth v. State, 53 Ark. 387: “It is always competent to interrogate a witness, on cross-examination, touching his present or recent residence, occupation and associations; and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility.” And again, quoting from the case of Real v. People, 42 N. Y. 270: “A witness, upon cross-examination, may be asked whether he had been in jail, the penitentiary or State prison, or'any other place that would tend to impair his credibility, and how much of his life he has passed in such places. ’ ’

In this case it is manifest, from the connection in which the questions were propounded, that the State was endeavoring to ascertain what was the present, the recent, and past history and antecedents of the accused, his occupation and associations, as ¡affecting his credibility. If counsel for the appellant conceived that the questions were propounded merely for the purpose of showing that the appellant had been accused of crime, he should have asked the court specifically to rule that such questions were not proper for that purpose. As these questions were asked just following the previous questions as to appellant’s residence, and whether or not appellant gambled, and after his affirmative answer that he did gamble, it occurs to us that a general objection was not sufficient to warrant the court in excluding the questions. They come well within the rule that such questions are proper for the purpose above stated, as announced in Hollingsworth v. State, supra. See also Clayton v. State, and cases there cited.

We find no prejudicial error in any of the rulings of the court, and the judgment is therefore affirmed

Hart, J.,

(dissenting). Judge Humphreys and myself think that the trial court committed prejudicial error in allowing the prosecuting attorney to ask the defendant if he had not been in jail, and requiring’ the defendant to answer the question. In answering the question of whether or not he had been in jail the defendant said that he had been in jail at Walnut Ridge and here (meaning, by the latter, the place where he was being tried). Further questioning elicited the response from the defendant that he was in jail at Walnut Ridge and at the county seat, where he was being tried, charged with the offense of which he was convicted.

Again, he was asked if he had been in jail anywhere else, and he answered, £iYes sir, at Harrisburg.” In response to further questioning he answered that he was in jail at Harrisburg, charged with robbery. He stated, further on, that he had been acquitted of that charge.

While we recognize that there is a distinction between independent evidence introduced for the purpose of impeaching a witness, under § 4187 of Crawford & Moses ’ Digest, and the questions which are permitted, in the discretion of the court, to be put to a witness tending to affect his credibility, within the rule laid down in case of Hollingsworth v. State, 53 Ark. 387, we are of the opinion that the questions asked do not fall within the rule laid down - in the case last cited. Judging by the context of the decisions from New York, there cited, it is evident that the court meant that the defendant could be questioned as to being in jail as a punishment for crime. This is shown by the later decision of Bates v. State, 60 Ark. 450. In that case it was held that it was error to permit the defendant in a criminal case to be asked, on cross-examination, whether he had hot been previously indicted for a felony, and that his answer was that he was indicted, but acquitted, did not remove the prejudice that may have resulted.

The court again quoted from a New York case, with approval, the following: “The single fact that he (the defendant) had been complained of and held for trial for the commission of a crime did not affect his moral character.” This was upon the ground that the witness was presumed to be innocent until convicted. This rule of evidence follows the defendant throughout the trial, and it is plain to us that it is violated if his credibility can be affected by the fact that he has been in jail on account of the crime for which he is being -tried or on account of another crime for which he was acquitted.

The prosecuting attorney may ask the defendant, on cross-examination, if he has not committed another crime, for this is asking him if he had not committed the act. But this court has repeatedly held that a defendant could not be asked whether or not he had been indicted for a particular offense, on the ground that an indictment does not prove guilt. To ask him if he has not been accused of another crime and confined in jail pending a trial is to allow that to be done indirectly which we have said cannot fie done directly. Such a course is equivalent to asking a defendant if he has not been indicted or charged with another crime. Again, to allow his credibility to be affected by the fact that he was so unfortunate as not to be able to give bail, upon being arrested for the crime for which he is being tried, is, in effect, to destroy the rule of evidence that the defendant is presumed to be innocent until proved to be guilty.

Again, in a capital case, where the defendant was not entitled to bail, his credibility as a witness would be affected by the fact that he had been confined in jail, if he should elect to take the stand in his own behalf, and thus the presumption of innocence would be effectually destroyed. Courts should not suffer prosecuting' attor- • neys to -do anything indirectly which could not be done directly. The fact that a defendant has been in jail, charged with the crime for which he is then being tried, or for an independent crime, should not be allowed to affect his credibility as a witness, and thus effectually overcome the presumption of innocence in his favor.


author: Hart, J.,

text:
    Chicago, Rock Island & Pacific Railway Company v. Sims.
    Opinion delivered December 3, 1923.
    1. Carriers — demand for cars. — In an action by a shipper against a railroad company for discrimination and failure to furnish cars, whether or not the demand for cars was so great that the company could not have anticipated the demand, or, by the exercise of reasonable care, have supplied the cars, held for the jury, under the evidence.
    3. Carriers — shippers on branch lines. — Shippers on branch or lateral lines of a railroad are entitled to the same kind of treatment, in the distribution of cars for shipment, as accorded to those on the main line.
    3. Carriers — discrimination in furnishing cars. — In an action by a shipper against a railroad company for discrimination and failure to furnish cars during a certain period, evidence held to warrant a verdict for a shipper who failed to receive the cars demanded by him, where local shippers and shippers on the main line received sufficient cars of the same class required by plaintiff for their needs during the same period.
    Appeal from Prairie Circuit Court, Southern District ; George W. Ciarle, Judge;
    affirmed.
    STATEMENT OF FACTS.
    J. F. Sims, under the firm name of J. F. Sims Hay Company, sued the Chicago, Rock Island & Pacific Ry. Co., to recover damages for discrimination and the failure to furnish cars in which to ship his hay.
    According to the testimony of J. F. Sims, in the year 1920 he was engaged in selling hay, under the firm name of J. F. Sims Hay Company, at Des Arc, Ark. He made a contract with the Hazen Hay Company to deliver to it 1,500 tons of hay at $15 a ton. This would amount to about 100 cars. The hay was purchased by the Hazen Hay Company, to be shipped to the United States Government at Camp Taylor, in Kentucky. The plaintiff was to begin shipping the hay about the 15th of July, 1920. The plaintiff put in a requisition for cars, and got nine cars during the month of July. He was furnished 12 cars during the month of August. Des Arc is situated on branch line of the Chicago, Bock Island & Pacific By. Co., which runs from Searcy to Stuttgart, Ark., and crosses the main line at Mesa, Ark. Hazen is situated on the main line about 25 miles from Des Arc, and is the greatest center in the State for the shipment of hay. After the railroad company failed to furnish the plaintiff cars for the shipment of his hay.under his contract with the Hazen Hay Company, he was obliged to sell part of his hay locally and to sell the balance at a reduced price. The difference between what he got for it and what he would have received for it under the contract price, if the railroad company had furnished him cars for shipping the hay under his contract, was $3,612.51. Other shippers were getting cars at Des- Arc for shipping their products during this same period of time. The plaintiff had sufficient hay with which to fill his contract if the railroad company had furnished him cars.
    S. C. Sims was also a witness for the plaintiff. According to Ms testimony, he was a brother of J. F. Sims, and the owner of the Hazen Hay Company. He agreed to pay his brother $15 a ton for 1,500 tons of hay, and would have taken the hay if the plaintiff had furnished it to him. During the months of July, August and September, in 1920, S. C. Sims did not get all the cars that he needed, but he got a sufficient number to handle his business.

      J. A. Hale was also a witness for the plaintiff. He lived at Hazen, Ark., and was engaged in shipping hay, in 1920, from points on the Chicago, Rock Island & Pacific Ry. Co. During the months of July, August, and September, 1920, this railway company furnished him a total of 107 cars.
    On his direct examination he stated that these were all the cars he needed. On his cross-examination he stated that he might have needed a few more cars, but that he does not remember that there was any serious car shortage on this railroad during that year. Further along in his cross-examination he repeated that, while the car situation was somewhat acute, he did not have any car shortage during the period of time referred to. On indirect examination he again stated that, during this same period of time, he got all the cars he needed, both on the main line and on the branch line on which Des Arc is situated.
    According to the testimony of I. T. Sims, he lived at Jtiazen, and shipped hay in July, August and September, 1.920, on both the Rock Island and Cotton Belt railroads. During this period of time he got all the cars he needed from both railroads. He was asked the direct question if, in shipping hay from Hazen during the months of July, August and September, 1920, over the Rock Island and Cotton Belt railroads, he got all the cars that he ordered and needed for his shipments, and replied, “Yes sir.” He stated that Hazen was the largest shipping point for hay in that section of the country.
    R. W. Bowen was also a witness for the plaintiff. According to his testimony, he was engaged in the hoop and lumber business at Des Arc in July, August and September, 1920. He shipped his products in box-cars, which are also used for the shipment of hay. During this period of time he had no trouble in getting cars in which to ship his products. His stenographer also testified that during the same period of time they practically got all the cars they needed.

      Chas-. Franz was engaged in the stave and heading business during the year 1920, at Des Arc, and shipped his products in box-cars of the same sort that were used in shipping hay. He had practically no trouble in getting sufficient oars for his business.
    According to the testimony of the superintendent of transportation of the Chicago, Rock Island & Pacific Ry. Co., there was a car shortage during the months of July, August and September, 1920, and this car shortage was general throughout the United States. The United States- Government was operating the railroads at this time and this railway company could not have provided itself with additional box-cars, except through the car service section of the government at Washington. When the- shortage of box-cars became acute in 1920, an effort was made, through the proper authorities at Washingr ton,, to remedy the matter. The testimony of the superintendent was corroborated to an extent by 'the station agent at Hazen.
    On. cross-examination the station agent stated that the car shortage in July and September was not acute. There would simply be a delay of a few days when -cars were ordered for shipping hay at Hazen.
    The jury returned a verdict for the plaintiff,' and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Buzbee, Pugh & Harrison, for appellant.
    The court erred in not directing a verdict for the defendant. There was no discrimination. 77 Ark. 362.

      Gregory & Holtzendorff, for appellee.
    The verdict of the jury was supported by the testimony. 102 Ark. 200: 101 Árk. 90; 97 Ark. 486; 87 Ark. 109; 97 Ark. 438. The case was properly submitted to the jury. 144 Ark. 515.
   Hart, J.,

(after stating the facts). The only assignment of error is that the undisputed testimony shows that there was unprecedented demand for cars, which the railway company was unable to supply. Wo are convinced, from reading the testimony, that it was a question for the jury as to whether or nqt the demand upon the railway company for cars was so sudden and so great that the railway company could not reasonably have anticipated it, and could not, by the exercise of ordinary care, have supplied the demand.

In the case of St. L. I. M. & S. R. Co. v. Keefe, 113 Ark. 215, it was held that the fact that the defendant was short of stock-cars on a certain division of its railway system is no defense to an action for damages for failure to furnish stock-cars, and does not show that the carrier exercised ordinary care to supply the demand of the shipper.

It was further held that, in an action for damages for failure to furnish freight-cars, the railway company miist show, to relieve itself from liability, that it could not, by the exercise of ordinary care, have supplied the cars demanded by the shipper.

Shippers located on branch or lateral lines of a railroad are entitled to the same kind of treatment as accorded to those whose business is situated on the main line of the railroad. The shipper located on the branch line is entitled to be furnished cars without discrimination ag*ainst him, for the reason that the railroad company has control over the branch lines as well as the main line of its railroad, and can send cars anywhere over its system. In Dickinson v. Robertson, 144 Ark. 515, it was held: “Where the evidence established that, owing to the exigencies of war, a carrier was unable, during certain months, to furnish the usual amount of cars to its shippers, but that it was able to fill from forty to seventy-five per cent, of the orders received for ears, proof that the carrier only furnished twenty-two per cent, of the ears ordered by the plaintiff during those months justified the submission to the jury of the issue whether the carrier had discriminated against plaintiff.”

Tested by the principles of law laid down in those cases, it cannot be said that there is no evidence óf a substantial character to warrant a verdict for the plaintiff.

Two shippers of hoops and headings located at Des Arc testified that they shipped their products in boxcars which were also used for the shipment of hay, and that during the months of July, August and September, 1920, they got practically all the cars that they needed.

Other shippers of hay at Hazen, Ark., on the main line, testified that they practically got all the ears that they needed during these same months. Notwithstanding the testimony of the defendant’s witnesses to the contrary, the jury had a right to accept as true the testimony of the witnesses for the plaintiff, and it is fairly inferable from their testimony that there was no unusual ear shortage during the summer and early fall of 1920. If they secured practically all the cars necessary for the shipment of hay at Hazen, the jury might have found that there was a discrimination against the plaintiff in not sending cars over the branch line, 25 miles distant, for the purpose of shipping his hay. This view is strengthened when we consider that shippers of heading and hoops, who also used box-cars in the shipment of their products, obtained all the cars they needed during this same period of time.

It follows that the evidence for the plaintiff warranted a verdict in his favor, and the judgment will therefore be affirmed.