author: Humphreys, J. Mr. Justice Hart

text:
    Presson v. Vail Cooperage Company.
    Opinion delivered October 30, 1922.
    1. Master and servant — injuries to employees of carrier — defenses. — Acts 1911, No. 88, eliminating the defenses of contributory negligence and assumed risk in actions for personal injuries by employees of common carriers, did not enlarge the general definition of a “common carrier” so as to include logging railroads.
    2. Carriers — definition.—In order to constitute one a common carrier, his business must be regular and customary and of sueh a general and public nature that- a person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation; an occasional undertaking to carry goods not being sufficient.
    3. Master and servant — questions for jury. — In an employee’s action for injuries received while attempting to couple a standard flat-car to an engine, the question whether the defendant operating a logging railroad was a “common carrier,” and if so whether defendant was negligent in failing to furnish prop-, erly equipped engine and necessary appliances held for the jury.
    Appeal from Greene Circuit Court, First Division; S. V. Neely, Judge;
    reversed.

      R. E. Fuhr, J. M. Futrell and Jeff Bratton,. for appellant.
    1. As a matter of law, act 88, Acts 1911, § 4, C. & M. Digest, § 7141, appellee is a common carrier, and the court should have so declared.
    2. If it he conceded, for the sake of argument, that the definition of a common carrier remains as defined prior to the passage of that act, then it was a question for the jury, under, proper instructions, whether or not appellee is a common carrier. 100 Ark. 37; 2 Ga. 349; Angelí on Carriers, ■§ 870; Hutchinson on Carriers, § 68; 5 Rawle (Pa.) 179; 10 Ohio 145; 47 L. R. A. 383; 158 N. Y. 34.
    3. The case should have gone to the jury under Crawford & Moses’ Digest, § 8575, which is cumulative to laws existing at the time of its enactment, abolishes the fellow-servant doctrine in suits' against railroads, and makes contributory negligence no longer a bar to recovery unless greater than that of the defendant.
    4. Appellee was liable under the common law in failing to furnish appellant suitable tools and instruments for the work in which he was engaged, and this was a question of liability that should have been submitted to the jury. As to the question of assumption of risk, the evidence fails to show that, the appellant knew and appreciated the danger; at any rate there was a question for the jury on that issue. 54 Ark. 289: 67 Id. 209; 107 Id. 512; 116 Id. 284.

      Block & Kirsch, for appellee.
    1. There is nothing in § 4, act 88, Acts 1911, relied on by appellant, that changes the meaning of the term “common carrier” as defined by this court, but only makes specific the fact that one engaged in the business of common carrier, as that term is generally defined, comes within the purview of the act. For definition, see 100 Ark. 37; 123 Id. 50; 4 R. C. L. 546. Under the proof in this case appellee is not a common carrier, and the above statute is not applicable.
    2. Appellant assumed the risk. 134 Ark. 491; 135 Id. 563; 62 Id. 11; 44 Id. 293; 56 Id. 232; 161 Mass. 153.
   Humphreys, J.

This suit was instituted by appellant against A. J. Yail, doing business under the name of Yail Cooperage Company, to recover damages in the sum of $3,000 for an injury received while attempting to couple a standard flat-car to an engine, through the alleged negligence of appellee. Appellant alleged that he was an employee of appellee as fireman and brakeman, that appellee was a common carrier, and as such negligently failed to supply him with sufficient machinery to perform his duty, and negligently furnished him a defective engine and other appliances and equipment. The allegations bring the suit within act 88 of the Acts of the General Assembly of 1911, which was entitled, “An act regulating liability of employers for injuries to employees.”

The cause was submitted upon the pleadings and testimony, at the conclusion of which the court, over the objection and exception of appellant, peremptorily instructed the jury to return a verdict for appellee. The jury complied with the direction, and the judgment was rendered in accordance therewith.

From the instructed verdict and judgment an appeal has been duly prosecuted to this court. Appellants insist that the court erred in finding, as a matter of law, that appellee was not a common carrier within the meaning of act 88, Acts of the Legislature of 1911. It is argued that section 4 of the act, now section 7141 of Crawford & Moses’ Digest, changes the meaning of “common carrier ’ ’ as defined by this court, so as to make a person operating a train or log-road, upon rails or tracks, in whole or in part in this State, a “common carrier” or “common carrier by railroad,” whether he operates it as owner, contractor, lessee, mortgagee, trustee, assignee, or receiver. The majority of the court do not think the general definition of a “common carrier” or a “common carrier by railroad” was modified or changed by the act. Had the Legislature intended to enlarge the general definition of “common carrier,” so as to include logging railroads, it would not have used the words “common carrier” in the defining clause. The word cannot be defined by the use of the word itself.. The intention of the apt was to bring common carriers, as generally defined, operating railroads wholly in this State, under the terms and provisions of the act. In other words, the intention was to impose liability upon any common carrier, operating a railroad in whole or in part in this State, for personal injuries resulting to an employee occasioned through the negligence of employer or its representatives, in the various ways set out in the act, even though the employee was guilty of contributory negligence, or knew of the dangers incident to the master’s negligence. The act eliminated the defenses of contributory negligence and assumed risks in .actions brought under its. provisions. Again, appellant argues that the testimony introduced by him not only tended to show that appellee was a common carrier within the general definition, but also tended to show negligence on the part of appellee as defined by the act. A general definition of “common carrier” was correctly announced in the case of Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37. It is as follows: “ In order to constitute one a common carrier,, the business as such must be regular and customary in its character, and not casual only. An occasional undertaking to carry goods will not make one a common carrier. But the business of carrying must be conducted as a business, and must be of such a general and public nature that a' person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation thereof.” The record reflects that appellee owned and operated a railroad of standard gauge, with steel rails laid on cross-ties; that he owned and used three engines, “dollie” and flat-cars, also used standard flat-cars of a connecting line; that the railroad was about ten miles in length, including two branches; that he operated the railroad primarily to haul logs to his mill at Marmaduke, but he hauled freight for others.

Appellant testified, in substance, that the business of the railroad was to haul for people out on the line and for people in town; that they hauled logs, lumber, groceries, hay and a general routine of stuff that came to be hauled, and received pay for hauling same.

J. C. Golden testified that, as manager of the Melon Growers’ Association, he shipped twenty or thirty cars of melons over the railroad owned by Yail, for which he paid $15 a car.

Will Carpenter testified that he shipped from fifteen to twenty cars of hay and corn over the Yail railroad in one year, for which he paid $15 a car..

Alfred Moore, Henry Yanderbuilt, Walter Chaney,Nathan Cohn and Ed Franks testified that the company hauled logs for itself and logs, lumber and freight for others.

Floyd Deck, who was the engineer for the company during a period of ten months, testified that, as far as he knew, Yail did a general hauling business over his railroad.

The testimony detailed above tended to shów that the hauling was indiscriminately done, and was of a public nature. Testimony was introduced by appellee to the contrary.

Under the testimony, the question of whether the Vail Cooperage Company was a “common carrier” became a question of disputed fact, and should have been submitted to the jury for determination.

The testimony introduced by appellant tended to show that the injury was caused by the failure of appellee to furnish a properly equipped engine and necessary appliances to couple a standard flat-car to the engine. The statute made it negligence for a “common carrier,” operating a railroad upon rails or tracks, not to do this, and the question of whether the company was negligent in this regard should have been submitted to the jury along with the other question of whether it was a “common carrier.”

On account of the error indicated, the judgment is reversed and the case remanded for new trial.

Mr. Justice Hart

concurs in this opinion upon the ground that the purpose and intent of the statute was to make logging railroads, carrying freight for others, common carriers, in matters of injury to its employees, without requiring injured employees to make proof of the character of business done by them.

Mr. Justice Smith dissenting.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    McCadden v. Fambro.
    Opinion delivered October 30, 1922.
    Continuance — discretion of court. — Where depositions were taken eight days before trial, and defendant by diligence could have ascertained whether, a statement which deponent agreed to forward to the stenographer had been forwarded, the refusal of his motion for continuance till the statement could be procured was not an abuse of discretion.
    Appeal from Mississippi Chancery Court, Osceola District; 8. JR. Simpson, special chancellor;
    reversed.

      J. T. Goston, for appellant.
    1. There is no pretense even on the part of Fambro that any consideration passed to plaintiff for the alleged agreement to reduce the rent. Had appellant made such agreement, it amounted to nothing more than a gratuitous promise, and was not binding. 33 Ark. 574; 55 Ark. 373-374; 164 S. W. 767. But the evidence fails to establish any such agreement.
    2. If the plaintiff agreed to accept as rent what other landlords received, without definitely fixing the amount, as is contended by the defendant, such agreement was not only without consideration, and therefore void, but it was too indefinite and uncertain to constitute a contract. 1 Tiffany on Landlord and Tenant, § 173; 109 S. W. 1175; 55 Ñ. Y. Supp. 1074; 5 Daly (N. Y.) 313; 48 N. E. 783; 21 Atl. 37.

      A. F. Barham, for appellee.
    1. The evidence fully sustains the chancellor’s finding to the effect that the plaintiff agreed to reduce the rent, and that such agreement was supported by a sufficient consideration.
    Appellant was obligated under her contract to keep up all the houses in good repair and make all repairs for the comfort of tenants. This she did not do, nor did she pay appellee for the repairs made by. him. He had the right to treat the contract as rescinded. 88 Ark. 422. And he was entitled to damages for this breach of the contract, and to recoup the same against rents. 96 Ark. 78. The waiver of a legal right is a good consideration. -27 Ark. 407; 31 Id. 631. See also 101 Ark. 22; 64 Id. 627; 24 Cyc. 914; 164 S. W. 767.
    '2. The chancellor erred in refusing to permit appellee to complete his proof as to the amount of repairs made upon the land. A lessee is entitled to damages for breach of -covenant to make repairs, which he may recoup against rents. 96 Ark. 78.
    3. The findings of a chancellor which do not appear to be clearly against the weight of the evidence will not be disturbed. 144 Ark. 50; Id. 573 Id. 497.
   Humphreys, J.

Appellant instituted suit by attachment in the circuit court of Mississippi County, Osceola District, against appellee, William Fambro, to recover on two rent notes executed by him to her for the use of her farm during the years 1920 and 1921. One note was for $1,040, evidencing the balance due on rent for 1920, and the other for $2,360, evidencing the rent due for 1921. The latter note was signed by'W. A. Cissna. By agreement the cause was transferred to the chancery court. In that court William Fambro admitted the execution of the notes, pursuant to a rental contract, but claimed that, by mutual agreement and for a good consideration, the rent evidenced by the $2,360 note was reduced to $1,200, and that he was entitled-, by way of recoupment, to the sum of $500 on account of. repairs which it was the duty of appellant to make.

When the case was called for trial, March 11, 1922, William Fambro moved for a continuance of the cause for several days, to enable him to get a statement from W. A. Cissna’s books, which were on Dean’s Island, about 35 miles from Osceola, for labor and material furnished to make necessary repairs on the farm. His motion for continuance was supported by his affidavit to the effect that, when W. A. Cissna gave his deposition on the 3rd day of March, 1922, he agreed to forward the statement to the stenographer to be attached to his deposition, but had failed to do so; that W. A. Cissna advised him over the telephone that he had mailed the statement to affiant’s attorney, but that same had not arrived at Osceola in time for the trial. Over the objection and exception of said appellee, the court overruled the motion for a continuance.

The cause was submitted to the court upon the issues joined and the testimony of the several witnesses, which resulted in a finding in favor of appellee, William Fambro, upon the reduction of the 1921 rent to $1,200, and in favor of appellant upon the $500 counterclaim, except as to $35 allowed appellee for repairs. A decree was rendered in accordance with the findings against appellee, William Fambro, and W. A. Cissna, his surety, on the retaining bond, from which all parties appealed as to the findings and decree adverse to each.

The rental contract, omitting caption and signatures, is as follows:

“August 5, 1919.

“This article of agreement by and between Mrs. Susie McCadden of Pecan Point, Ark., and William Fambro, Dean’s Island, Ark., witnesseth that:

“Susie McCadden has this day leased to William Fambro her farm of one hundred acres, with the use of all houses, barns, etc., therein, located near Pecan Point, Ark., for three years from January 1, 1920, to January 1,1923, for $2,360 per year, as evidenced by three promissory notes due and payable as follows: December 1, 1920, $2,360, December 1, 1921, $2360; December 1, 1922, $2,360. Said notes are payable at First National Bank, Memphis, Tennessee.

“Said Fambro is to have full control and use of the entire tract of land, including wood for private use, etc.

“It is further agreed that at the expiration of this lease, if the said William Fambro desires, he is to have the option of renewing lease for period of two years from January 1, 1923. The price per year for the additional time to be the market price of the country for such lands, to be agreed to between the foregoing contracting parties.

“The said Susie McCadden is to keep up all the houses in good order and make all repairs required for the comfort of tenants.”

William Fambro paid all the rent in advance for the year 1920, except $1,040, for which amount he executed his note. He cultivated his farm and turned his cotton over to W. A. Cissna, a wealthy man who had supplied him during the year, and who was on his rent note' for 1921. He was under the impression that Mr. Cissna had paid the rent note for $1,040 until this suit was brought. Cotton greatly declined in price, however, and after paying for supplies there was nothing left to apply on the rent note. Mr. Cissna refused to supply Fambro during the year 1921, unless he- could get a material reduction on the rent. Fambro made several efforts to get appellant to reduce the rent for 1921, and, according to the testimony introduced by him, succeeded in getting her to say she would do as well by him as other landowners in the community where the farm was located. Mr. Cissna was not willing to make advances on the strength of this statement, so a meeting was arranged between the parties at the store of Perel & Lowenstein in Memphis for the purpose of making more definite arrangements with reference to a reduction of the rent.

The theory of-Fambro is that appellant agreed unconditionally at that meeting to reduce the rent for 1921 from $2,360 to $1,200, in order to induce Mr. Cissna to supply him and thereby get her farm cultivated, and to get him (Fambro) to advance money to make'repairs.

The theory of Susie McCadden is that she agreed to reduce the rent to $1,200 in case he did not raise more than twenty bales of cotton, on account of boll weevil.

Fambro, Mr. Cissna, Bob Gray, Susie McCadden, ' and Joseph Perel were present at the meeting in the store-, all or a part of the time.

Fambro testified that Susie McCadden unconditionally agreed to reduce the, rent to $1,200 in order to get him to advance money to make repairs, and to get Mr. Cissna to make advances to enable him to cultivate the land; that Perel, who was Susie’s agent, handed him the following statement written on the back of a card, in evidence of the agreement:

“Due Perel & Lowenstein about.......................................$ 450

“On $2,340 note ........................................................................... 1,200

“1920 note ............................................................................................. 1,040

“Less expenditures balance;”

that he gave the card to Mr. Cissna, who thereafter furnished him supplies and money and material to make repairs; that Wells and Chambers did most o-f the work in making the repairs; that their labor amounted to about $35; that he expended about $500 on repairs; that Mr. Cissna advanced it to him and kept a record of the items and amounts; that Mr. Cissna prepared a paper on August 4,1921, for the owners of land at Pecan Point to sign, showing thad the rental value of lands in that community decreased about one-half in 1920, due to the low price of cotton; that he (Fambro) obtained the signature of a number of landowners to it for the purpose of getting appellant to reduce the rent; that she had said she would reduce it to what other landowners were charging, and Mr. Cissna thought that such a paper would induce her to sign an agreement to reduce the rent; that Mr. Cissna said the card he had was not signed by her.

W. A. Cissna testified that the rental value of lands greatly decreased when the price of cotton went down in 1920; that he furnished Fambro in 1920 and was on his note of 1921; that he was unwilling to make advances to him in 1921 unless he could get a material reduction of the rent; that he sent Fambro to see appellant a number of times to get the rent reduced; that he met with them at Perel & Lowenstein’s store, in April or May, for that purpose; that she agreed to take what other landowners were getting, and thinks she agreed to fake $1,200; that a card was given him which showed that Fambro owed Perel $450 for an automobile, $1,200 rent on the $2,360 note, and $1,040 for the 1920 rent; that he wrote the paper for property owners to sign, stating what rents they were getting for lands, in order to get her to reduce the rent; that he was not satisfied with the card Fambro had given him, because she had not signed it and had not returned the old contract; that he had advanced about $500 to pay for improvements and had kept a record of it; that he would furnish the .stenographer with a copy of the items and amounts to be attached as a part of his deposition. This was not done. Bob Gray, who went with Fambro for the purpose of witnessing the contract, stated that Susie agreed to accept $200 a year on the old rent if Fambro did not make more than forty hales of cotton; that Fambro offered to pay $1,200 rent for 1921, but witnesses did not hear her agree to accept it or to make any reduction of the rent; that he heard nothing said about boll weevil.

Mose Price testified that he went with Fambro to see Susie McCadden early in the spring; that they went to her home; that Fambro told her the farm would not likely be cultivated unless she reduced the rent; that he said nothing about the boll weevil; that she said she would be up there in a few days and would do as well by him as other landlords were doing.

Several other witnesses testified that the boll weevil had not made an appearance at Pecan Point.

Joseph Perel and Susie McCadden testified that Fambro claimed that he would not make more than twenty bales of cotton on account of the boll weevil, and proposed to pay $1,200 for the rent of 1921; that appellant agreed to reduce the rent to that amount if he did not make more than twenty bales; that Perel wrote a card with the understanding that if he raised more than twenty bales he was to pay the rent note in full; that she agreed for him to make some minor repairs and to receive a credit for them on the 1920 rent note. They denied that appellant unconditionally agreed to reduce the rent, or to accept what other landlords were getting, in order to get her land cultivated or money advanced to make repairs. Susie testified that she was willing to credit the rent note with the cost of necessary improvements made by Fambro if he made proof of them; but said she herself made about all the improvements that were necessary. She gave the items and amounts of repairs made by her. Her husband corroborated her statement in regard to repairs made by her. He went in person and made repairs to the amount of about $75. W. S. Stephenson testified that in March, 1921, he heard Perel ask Fambro why he did not pay Susie her rent; that Fambro said he was willing to do so if she would reduce the rent to $1,200; that Perel then asked him if lie would pay lier $1,500, and lie said lie could not pay that amount; that the last talk he had with Fambro he informed him that they had never been able to come to an agreement.

It developed in the evidence that Fambro raised anywhere from 75 to 90 bales of cotton on the farm in 1921.

Appellant contends that the court erred in reducing the rent for 1921 to $1,200; and appellee, Fambro, contends that the only error committed by the court was in forcing him to trial without giving him an opportunity to include in the record the statement of the sums he expended for repairs upon the farm.

After a careful reading of the evidence, we are convinced that the court erred in finding that appellant unconditionally agreed to reduce the 1921 rent to $1,200. The rental contract and note made pursuant thereto were in writing. The burden was upon Fambro to establish an unconditional agreement to reduce the rent. Appellee attempted to do this by the testimony of Mr. Cissna and himself. The testimony of Bob Gray does not corroborate them, and the testimony of W. S. Stephenson is rather against them. The conduct of Cissna in writing the paper for the landowners to sign, and of Fambro in circulating it, as late as August, is in conflict with their statement to the effect that appellant unconditionally agreed to reduce the 1921 rent in April or May of the same year. There is another very strong circumstance against them.. Appellant’s rent note was well secured, and there was no question about its collection. There is no evidence in the record to show that her land would have lain idle during the year, except a suggestion to that effect made by Fambro. The testimony of Fambro and Mr. Cissna was disputed by that of appellant and Mr. Perel. We do not think the appellee, Fambro, successfully met the burden upon him. The finding of the court on this point was contrary to the weight of the evidence.

We do not think the court abused its discretion in not granting Fambro a continuance of several days to get the statement from Mr. Cissna’s books relative to advances for repairs. Mr. Cissna’s deposition was taken eight days before the case was called for trial, and had Fambro been diligent he could have ascertained whether the statement had been sent to the stenographer and attached to the deposition before the ease was called.

For the error indicated, the judgment will be reversed and judgment rendered here for the full amount of the rent notes with interest, less the amount of $35 and interest allowed by the trial court to Fambro for repairs.


text:
    Kittrell v. Road Improvement District No. 16.
    Opinion delivered October 30, 1922.
    1. Courts — affidavit for appeal from county court. — Under Crawford & Moses’ Dig., § 2287, an attorney or agent of an aggrieved party may make affidavit on his behalf for appeal from the county to the circuit court without assigning reasons for doing so, § 1219, Id., having no application.
    2. Highways — authority to change route. — Act No. 188 of Sp. Sess. of 1920, unpublished, confers no authority on property owners of the road district to initiate before the county court, in the absence of action by the commissioners, proceedings for change in route of a highway therein specified; § 6 thereof authorizing such change only upon the petition and request of the commissioners.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jackson, Judge;
    affirmed.

      B. M. Hutchins, Mchaffy, Donham & Mahaffy, for appellants.
    1. The appeal from the county court should have been dismissed for want of proper affidavit for appeal, the same having been made by the attorney for the road improvement district, and not in conformity with the statutes, C. & M. Digest, § 2287, § 1219. The two sections should be read together as the law governing appeals.

      2. The demurrer and motion to dismiss the petition should have been overruled. The petition set out facts sufficient to show that there was a necessity for a change in the route. The county court had jurisdiction of the ■cause, and authority to make the change, under the act creating the district, as well as under the Constitution. Act 183, Approved Feb. 18, 1920, § 3.

      Roy D. Campbell, Harry Wood and Coleman, Robinson & House, for appellee.
    1. Sections 2287 and 1219 of Crawford & Moses’ Digest are not to be construed together. The last-named section has nothing to do with appeals and was never intended to apply to appeals from the county court. It is a general statute, whereas § 2287 is special in that it applies only to appeals from county courts; therefore, in the absence of irreconcilable conflict, there is here no question of repeal by implication. 50 Ark. 132; 51 Id. 559; 53 Id. 417; 54 Id '. 237; 53 Id. 339; 60 Id. 59.
    2. The motion to dismiss the petition was properly sustained: (1) When the act is read as a whole, giving special attention to the beginning and conclusion of section 3 and the conclusion of section 6, it is evident that if the Legislature contemplated any changes in the proposed plans the commissioners should come to the county court with a request to change the route as laid out by the Legislature. (2) Nothing in the act authorizes the commissioners to extend the road or change the route so as to run the road outside of the boundaries of the district. The change proposed in the petition would violate all unity of proportion to the property benefited as laid out in the act. 133 Ark. 491.
   Humphreys, J.

Appellants, freeholders and taxpayers in Road District No. 16, in Woodruff County, created by act 183 of the Acts of the General Assembly of 1920, filed suit in the circuit court of said county, northern district, to change the route of the road specified in the act, so that it will run from the intersection of Main and Third Streets, in the town of Augusta, in an easterly direction, along the present rock public highway, to the southwest corner of section 28, township 8 north, range 3 west; thence north along the section line to the northwest corner of section 4, township 8 north, range 3 west; thence east along the section line to the northwest corner of section 1, township 8 north, range 3 west, to the Jackson County line. It was alleged in the complaint that section 3 of the act creating the district provided that, if it became necessary to lay out a new route, the same should be laid out'by the county court of the Northern District of Woodruff County; and that it was impractical to construct or maintain a road along the route designated in the act becáuse one and one-half miles of the distance was subject to overflow from White River and would be submerged for a large part of the time; that the cost of construction and maintenance of the road on the original route would be prohibitive, confiscatory, and of no benefit to the pro.perty in the district.

Appellees protested against the proposed change in route, which was heard and decided adversely to their contention by the county court. An appeal from that judgment was taken to the circuit court. The affidavit for appeal was made by the attorney for the district, without assigning any reason why it was made by him instead of by the party aggrieved.

When the case was lodged in the circuit court; appellants moved to dismiss the appeal and appellees filed a demurrer and motion to dismiss the petition for a change of route. The motion to dismiss the appeal was overruled; the motion to dismiss the petition was sustained, and a final judgment was rendered, setting aside the judgment of the county court changing the route, from which is this appeal.

Appellants’.first insistence for reversal is that the court erred in overruling their motion to dismiss the appeal. They contend that sections 1219 and 2287 of Crawford & Moses’ Digest govern appeals from the county court and, when-read together, require an attorney making an affidavit for appeal to state that the aggrieved party., whom he represents, is absent from the county, or is mentally incapable of taking an oath, or is physically unable to attend before the court or officer for the purpose of making the affidavit. Section 1219 has no relation to appeals from county courts. Section 2287 governs and allows the attorney or agent of an aggrieved party to make affidavit for appeal in behalf of his client, without assigning any reasons for doing so. This construction was given a similar statute in the case of Perrin v. Liner, 129 Ark. 242.

Appellants’ second and last insistence for reversal is that the court erred in sustaining the demurrer and motion to dismiss the petition to change the route of the road. They contend their petition set out the necessity for a change ixi the route, and that, under section 3 of the act creating the district, the county court was authorized to determine the necessity for and to order the change. The section referred to does say that, if it becomes necessary to lay out and designate a new route, same shall be laid oxxt by the county court. Construing this section without reference to section 6 of the act, it might well be said that the intent of the Legislature was for the county court to make an independent investigation upon which to base an order changing the route, or to make the investigation for the necessity of the change at the request of any property owner in the district, When section 3, however, is read in connection with section 6 of the act, it is apparent that the Legislature intended for the county court to act, in making any change in the route, upon the report and request of the commissioners. Section 6, in part, is as follows: “If said commissioners deem it to the best interests of the district to vary the line of the road as hereinbefore laid out, they may report that fact to the county court of the northern district of Woodruff County, and in that event, if the county court approves of the report, it may make an.order changing the route of the road, and if necessary it shall, in that event, lay out the new road in the manner provided in act No. 422 of the Acts of the -General Assembly of the State of Arkansas for the year 1911.” We think, in order to arrive at the true intent of the Legislature, the two sections should be construed, one in the light of the other. When thus interpreted, the sections provide an exclusive method of procedure for changing the original route of the road, that is to say, for the county court to change the route upon the petition and request of the commissioners, if the necessity for the change existed. Authority was not conferred by the act upon the property owners or thé taxpayers in the district to initiate such a proceeding.

The motion to dismiss the petition was properly sustained, and the judgment is therefore affirmed.


author: McCulloch, C. J.

text:
    Sexton v. State.
    Opinion delivered November 6, 1922.
    1. Intoxicating liquors — evidence.—In a prosecution for selling liquor, testimony of the sheriff as to finding whiskey at the home of defendant’s father was admissible where defendant lived with his father.
    2. Criminal law — evidence.—In a -prosecution for selling liquor, . -a statement by the sheriff that he had received information that whiskey was being sold at defendant’s house was competent in explanation of the reason for the sheriff’s presence at that place.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Patterson & Ragon, for appellant.

      J. 8. Utley, Attorney General, Elbert Godmn and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted in the Johnson 'Circuit Court under an indictment charging him with selling alcoholic liquors, and proof adduced by the State tended to establish the fact that appellant sold a quart of whiskey to one Bailey.

Appellant has not filed a brief in the case, and we can only search the motion for a new trial to ascertain what grounds are relied on for a reversal of the judgment.

The motion for a new trial contains no assignments of error with reference to the rulings of the court in giving or refusing to give instructions. The evidence is sufficient to sustain the verdict of conviction.

The only remaining assignments to consider relate to rulings of the court in admitting testimony.

Appellant, with his two brothers, lived with their father, and the sale of liquor in question to Bailey was, according to the testimony, made at the home place. Bailey went to appellant’s place of residence in company with Bartlett, the sheriff of the county, and a man named Wise, and the two latter secreted themselves near the premises. Bailey went up to the house, at the request of the sheriff, and purchased whiskey. Appellant was not there at the time, and Bailey purchased a quart of whiskey from appellant’s brother, and, as he left the place, he met appellant returning home. At the request of the sheriff he again went to the house, and there purchased another quart of whiskey from appellant, and made arrangements with appellant to deliver several gallons of whiskey to witness at a dance to be held that night in the neighborhood.

According to the testimony of Bailey, he went to the dance that night, and appellant reported to him that he had the, whiskey for delivery in a fence corner near the place where they were having the dance, but that when appellant and the witness started to get the whiskey the sheriff attempted to arrest appellant, who ran away and made his escape.

The sheriff testified that he went back to the home of appellant, or rather to the home of the latter’s father, and searched the premises, and found whiskey secreted there.

Error of the court is assigned in permitting the sheriff to testify, over appellant’s objection, about finding the whiskey at the home of appellant’s father. This assignment, however, overlooks the important fact that this was also the home of appellant, and the State was entitled to prove, as a circumstance in the case, the fact that whiskey was kept there on the premises. The whiskey was found in the smokehouse at the home of appellant’s father, and the proof shows that appellant lived there and was making a crop with his father at the time this occurred.

Next there is an assignment in the motion for a new trial that the court erred in permitting Sheriff Bartlett to testify that he had been informed that appellant and his people were selling whiskey. The assignment is broader than the record justifies, for the court did not permit the sheriff to testify to that effect, but merely allowed him to state, as a reason why he went out to appellant’s home, that he had received information that whiskey was being sold there. This was competent in explanation of the reason for the presence of the sheriff at that place.

There are other objections to the admission of testimony, but the rulings of the court were so clearly correct that they do not call for a discussion in this opinion. Suffice it to say that there was evidence to sustain the verdict, and there is no error found in the proceedings, so the judgment must be affirmed, and it is so ordered.


text:
    Turner v. State.
    Opinion delivered November 6, 1922.
    1. Arson — burning one’s own house. — Under Crawford & Moses’ Dig., § 2417, making it a felony wilfully and maliciously to burn one’s own house, the offense is committed where one burns his own house maliciously in the sense of an intention, with bad motive, of violating the law.
    2. Arson — burning one’s own house. — Crawford & Moses’ Dig., § 2417, making it a felony wilfully and maliciously to burn one’s own house, does not conflict with any natural right of one to dc what he will with his own.

      3. Arson- — sufficiency of evidence. — Evidence held sufficient to warrant a jury in finding that a fire was of incendiary origin, and that defendant set the house on fire.
    4. Witnesses — impeachment of accused on cross-examination.— It was not error to permit the State, on cross-examination, to cross-examine defendant concerning the finding of stolen property in his house where the inquiry was limited to the question as to his credibility as a witness.
    5. Witness — cross-examination.—Where, in a prosecution for arson, defendant testified that his act in removing bedclothes from the burned -house before the fire was done pursuant to a demand by a committee of citizens that he clean up his premises, it was proper to permit the State to cross-examine him as to whether the admonition of the citizens did not refer to his stopping unlawful and immoral practices, including the unlawful sale of whiskey.
    6. Criminal law- — conduct of trial. — It was not error in a felony trial for the court, over defendant’s objections and on denial of his request that the jury retire, to suspend the trial to instruct the jury commissioners for the next term as to their duties in selecting jurors who would enforce the criminal laws, no reference being made to the -trial or the merits of the pending case.
    Appeal from Little Biver Circuit Court; James S. Steel, Judge;
    affirmed.

      Jwie B. Morrell, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was -convicted under an indictment charging him with the crime of arson, committed by burning his own house, which was situated in the town of Ashdown.

Under the former statutes of this State it was decided by this court in State v. Hanna, 131 Ark. 129, that the burning of one’s own house did not constitute the crime of arson, but subsequently the Legislature enacted a new statute on the subject (Acts of 1919, p. 66, Crawford & Moses’ Digest, § 2417), which reads as follows:

“Every person who shall wilfully and maliciously burn or cause to be burned any dwelling-house or other house, although not herein specifically named, the property of himself or of another person, shall he deemed guilty of a' felony, and upon conviction shall be imprisoned in the -State Penitentiary for a period of not less than two nor more than ten years.”

It did not constitute arson at common law for a person to burn his own house (2nd iWharton on Crim. Law, § 1051), but our statute, quoted above, undoubtedly enlarges the definition so as to make it arson for a person to burn his own house. There can be no doubt about the meaning of the language used in the statute, and we perceive no reason why a statute to that effect should be held to be invalid. Of course, the burning must be maliciously done — that is to say, malicious in the sense of an intention, with bad motive, of violating the law. Shotwell v. State, 43 Ark. 345. Similar statutes -have been upheld as valid in other States. State v. Rohfrischt, 12 La. Ann. 382; Shepherd v. People, 19 N. Y. 537; State v. Hurd, 51 N. H. 176; State v. Cohn, 9 Nev. 179.

It was within the power of the Legislature to define the crime of arson and declare what elements should constitute that offense, and it does not conflict with any natural right of man to “do what he will with his own” by making it an offense to wilfully and maliciously burn his own property. We entertain no' doubt therefore as to the validity of the statute.

It is next contended that the evidence is not sufficient to sustain the verdict.

Appellant owned two adjoining buildings in the town of Ashdown, one of which he occupied himself, the first floor as a grocery store and the second floor as a rooming-house. The other building was occupied by appellant’s tenant, a colored woman by the name- of Susie Hart. Appellant is a neg-ro himself.

The fire broke out in the early hours of the morning, before daybreak, and the alarm was given by appellant, who, according to the testimony of some of the witnesses, was fully dressed in the same clothes that he had worn the day before and during the early hours of the night. The fire was first discovered to be in the part of the building which was occupied by appellant. The origin of the fire was not proved, and appellant did not undertake to show how it started.

The proof adduced by the State tended to show that appellant had a very small stock of goods in his store, and that he carried an excessive amount of insurance on the buildings. There was proof to the effect that the buildings were not worth more than six or seven hundred dollars and that he carried about $2,700 insurance.

Susie Hart and her daughter both testified that shortly before the fire appellant repeatedly approached Susie on the subject of taking out insurance on her household goods in the building, and they testified that he said the houses were “compelled to burn.” He made an offer to Susie Hart, according to the testimony, to take out insurance in the sum of $2,000, and that if she would agree to give him half of it in case of loss by fire he would pay the premium. Two of the witnesses testified that appellant stated that he knew he was going to the penitentiary and that he was “not going to leave anything here for nobody to enjoy.”

A man named Marsh owned a livery stable, or barn, which was located immediately back of appellant’s buildings. Marsh was a farmer, living in the country, and he testified that, shortly before the fire, appellant approached him on the subject of taking out insurance, and came to see him two or three times on the subject, informing him (witness) that he was in touch with some insurance companies that would give him insurance on his building.

Another circumstance shown by the iState as tending to show bad intention on the part of appellant was that the day before the fire he sent out all the bedelothing in his rooming-house to be washed, and it was not in the building on the night of the fire. Appellant undertook to explain this by saying that a committee had visited his place and told him that he must “clean up” the premises, that he understood this admonition literally and acted upon it. The State undertook to draw out from him the statement that the admonition by the citizens was not meant literally, but that he must put a stop to immoral and unlawful practices in his house.

We are of the opinion that the evidence was sufficient to warrant the jury in finding that the fire which destroyed appellant’s house was of incendiary origin, and that appellant was the one who set it on fire.

The State introduced a witness, Roberta Brown by name, who testified about the alarm of fire being given, and also testified concerning the statements alleged to have been made by appellant to Susie Hart with reference to insurance on the building. This witness testified that, after the fire occurred, appellant came to see her and asked her “not to tell any more than she had to.” This testimony was- elicited by questions repeatedly propounded by the prosecuting attorney, and after calling her attention to her testimony before the grand jury. The witness first appeared not to be able to remember very well, but after attention was called to her testimony before the grand jury, for the purpose of refreshing her memory, she stated that she had had such a conversation with appellant as that mentioned above. There was no objection interposed by appellant’s counsel to the course of examination by the prosecuting attorney, but on cross-examination counsel interrogated the witness as to why she had not, before her memory was refreshed by the questions of the prosecuting attorney, remembered this conversation with appellant. The reply of the witness was that she had forgotten about it. Counsel then asked the witness the question whether or- not she had made that statement before the grand jury, and the prosecuting attorney objected. Appellant’s counsel insisted that he had a right to go into the question of the witnesses’ testimony before the grand jury, for the reason that the prosecuting attorney had refreshed the memory of the witness on that subject. The statement of the court in ruling on the objection was that the witness had admitted that she made the statement before the grand jury, and that that should be the end of the examination on that subject. Counsel then made this statement, apparently to the court, “I will ask her that,” and then asked the witness, “Did you or not?” The question appeared not to be clear to the witness, and the court interposed by propounding the question: “The written statement read there, did you make that statement before the grand jury?” Answer: “Yes sir.” She was further questioned by counsel for appellant as follows: “How long did it take you to tell the grand jury about that conversation you and Jess had ? ’ ’ Answer: “ I don’t know. ’ ’

This ended the cross-examination, and there were no exceptions saved to any ruling- of the court.

It is insisted here, for the first time, that the court erred in not permitting counsel to interrogate the witness concerning the testimony before the grand jury, but, as before stated, it does not appear from the record that the court denied appellant the privilege of asking any question on the subject that his counsel saw fit to propound. •

Again, it is urged that the court erred in permitting the State to interrogate appellant, on cross-examination, concerning the finding of stolen property in Ms house. That inquiry was limited, of course, to the question of appellant’s credibility as a witness, and the State undertook to go no further than Ms own answers on that subject. There was no error in this ruling, for the finding of property in appellant’s house known to have been stolen might or might not affect his credibility, and the State had the right to place the circumstance before the jury by interrogating appellant Mmself concerning it.

It is also insisted that the court erred in permitting the State to prove that appellant’s house 'had bee® searched by a deputy sheriff for whiskey. The record does not sustain appellant in this contention, and a further discussion is therefore unnecessary.

Another contention is that the court erred in permitting the prosecuting attorney to interrogate appellant on cross-examination concerning a visit to appellant of certain white citizens of the town, and the admonition given to him by them to the effect that he must “clean up” his premises and quit selling whiskey. The record does not show that any direct; specific questions was propounded about selling whiskey, but, even if the questions propounded did embrace that* inquiry, it was invited by appellant’s statement that he had sent out his bedclothing to be washed, pursuant to this admonition, and the prosecuting attorney, as we have already shown, had the right to show that the admonition by the citizens did not have reference literally to washing the premises and its contents, but to clean it up by stopping unlawful and immoral practices, including the unlawful sale of whiskey. There was no error committed by the court in permitting the prosecuting attorney to draw out from appellant just what he had been directed to do by the committee of white' people, inasmuch as appellant had already testified on that subject, and thus invited the inquiry concerning it.

Finally, it "is insisted that the court erred in delivering its instructions to the jury commissioners in the presence of the trial jury in this case.

It is shown by the record that, after the completion of the testimony in this case and the attorneys were to begin the arguments, the court suspended proceedings in this case until it could appoint'and charge the jury corqmissioners who were to select the jury for the next term of court. This was done over objection of appellant, and the record shows that he requested that the jury retire during the court’s instructions to the commissioners. This request was denied, and the court proceeded to instruct the jury commissioners concerning their duties, among other things admonishing them as to their duty to select good men who would enforce the law. The record recites that the court, in its instructions to the commissioners, in the presence of the trial jury in this case, directed their attention to the increase in various crimes and “instructed them that so long as people do not enforce the law the courts could not expect to check the crime wave that is now sweeping the country.”

If does not appear that the court, in its charge to the jury commissioners, made any reference, either directly or indirectly, concerning the trial of this case or the merits of the case. There was nothing said or done by the court which could reasonably be construed by the members of the trial jury as having reference to this case. It was a matter of discretion with the trial court as to when he should suspend other proceedings to appoint and instruct the jury commissioners, and, unless it be shown that the court said or did something that was calculated to prejudice-appellant’s right before the trial jury, there is nothing which calls for a reversal of the judgment.

We are of the opinion that the evidence is sufficient in this case to sustain the verdict, and that there is no prejudicial error in the record. The judgment is therefore affirmed.


text:
    Home Mutual Benefit Association v. Rowland.
    Opinion delivered November 6, 1922.
    1. Insurance — fraternal benefit societies — application of act. —Acts 1917, p. 2087 (Crawford & Moses’ Dig., § 6068 et seq.) restricting the age of those who may join fraternal societies, does not apply in the case of benefit certificates issued prior to the enactment of the- statute.
    2. Insurance — -waiver of by-laws. — A by-law of a fraternal benefit society restricting the age at which a benefit certificate may he issued is waived where the society’s agent, with knowledge that an applicant’s age is misstated, issues a certificate and receives premiums in payment.
    3. Fraud — presumption.—-Fraud is not presumed, but must be proved, though an inference of fraud may be drawn from proved facts.
    4. Insurance — instruction as to fraud. — Where, in an action on a benefit certificate, there was no direct proof of fraud on the part of insurer’s agent, though the agent was a son-in-law of insured, and there was a misstatement -of insured’s age in the application, when a correct statement of her age would have caused her application to he rejected, it was not error to refuse an instruction that if the agent. was acting fraudulently or collusively, insured would not be hound by his knowledge.
    5. Appeal and error- — conglusiveness of verdict. — Where the evidence was sufficient to support a finding either way on the issue as to the age of insured at the time of the application for a benefit certificate, the verdict is conclusive on'that issue.
    6. Insurance — benefit insurance — by-laws.—Where the by-laws of a benefit association fix the maximum amount of recovery at $1*000, but provide that in no event shall the certificate- have a greater value than the amount paid in “on the last assessment preceding the death of insured, after deducting the- cost of collecting said assessment,” the amount so named constitutes the limit of recovery.
    Appeal from Hemps-tead Circuit Court; George R. Haynie, Judge;
    reversed.

      Longstreth ■& Bohlinger, for appellant.
    The court erred in refusing to permit the introduction, in evidence, of the certificates under the seal of the State Register of Vital Statistics. C. & M. Dig., § 5151. Where an agent of an insurance company, in collusion with an applicant, even though acting within the scope of his authority, perpetrates a fraud upon the company by making false and fraudulent representations upon which the insurance is obtained, such fraud will vititate the policy. 129 Ark. 450, One wishing to become a member of a mutual benefit society is supposed to have made himself acquainted With thfe constitution and bylaws. 104 Ark. 536. Parties competent to contract may enter into such agreements as they see fit and it is the purpose of the law carry out the agreements. 108 S. W. 206. The court erred in refusing to construe the contract. 112 Ark. 165; 125 S. W. 428; 169 S. W. 796.

      Bush & Bush, for appellee.
   McCulloch, C. J.

Appellant' is a fraternal benefit society, organized under the laws of the State of Arkansas. It does business on what the attorneys in the case designate as the pro rata assessment plan, no surplus funds being accumulated, but the members are grouped together in “circles,” according to age,' and when a death occurs an assessment is levied on the members of the particular circle to which the deceased belonged.

• The policy, or benefit certificate, as well as the bylaws, specify the maximum amount of the benefit to be the sum of $1,000, but the certificate refers to the by-laws, which provide that the association “shall not be liable for the full face value of the certificate unless full and prompt payment of all assessments shall have been made by all members of the group to which the deceased member belonged, and in no event shall said certificate have a- greater value than the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured, after deducting the cost of collecting said assessment. ’ ’

Appellant accepted as a-member Ellen S. Fox and issued a certificate of membership to her, dated July 18, 1916, payable to appellee, who was Mrs. Fox’s granddaughter. Mrs. Fox died in July, 1920, and this action was instituted on February 23, 1921, to recover the full amount ($1,000) mentioned in the benefit certificate.

Appellant pleaded, among other things which are insisted on here as grounds for reversal, that Mrs. Fox misrepresented her age in the application which was made for membership in the society; that-the by-laws did not authorize the issuance of a certificate to persons over sixty years of age, and that Mrs. Fox’s age was above.sixty at the time she joined.

The answer also contained-a denial that the indebtedness amounted to $1,000, if anything at all.

The case was tried before a jury, and the trial resulted in a verdict and judgment in appellee’s favor, for the maximum amount stated in the policy.

It appears from the undisputed evidence adduced in the case that the application of Mrs. Fox was solicited and accepted by J. W. Boyd, who was her son-in-law, and who was appellee’s father. In the application Mrs. Fox’s age was stated at fifty-nine, and there is proof to show that she was about ten years older than that. The testimony is, however, conflicting, and the jury might have found either way as to the question of her age being above sixty.

Mrs. Fox lived with her daughter, Mrs. Boyd, and there is testimony tending to show that she was an invalid at the time she made application for insurance in appellant society.

No testimony was introduced by either party as to what occurred between Boyd and Mrs. Fox at the time the application was made out, appellant contenting itself with attempting to prove that there was a misrepresentation as to Mrs. Fox’s age and that Boyd, her son-in-law, must, in collusion with Mrs. Fox, have participated in the fraudulent misrepresentations.

The court instructed the jury that, if there was a misrepresentation made concerning the age of Mrs. Fox, and if Boyd accepted the application with knowledge of such misrepresentation, appellant would be bound by that knowledge and could not plead the misstatement of age in bar of appellee’s right to recover on the policy. Appellant asked the court to give an instruction stating that if Boyd, as agent, ivas acting fraudulently or collusively, appellant would not be bound by his knowledge and would not be barred from pleading a misstatement as to age.

Appellant, so far as affects the present litigation, does not come within the terms of the statute regulating fraternal benefit societies (Acts of 1917, p.. 2087, Crawford & Moses’ Digest, sec. 6068, et seq.), for the reason that the benefit certificate involved in this case was issued to Mrs. Fox prior to the enactment of the statute, there being no statute at the time expressly restricting the powers of appellant in regard to age of members. The by-laws of the society on that subject could be waived, and were waived, if appellant, with knowledge of the misstatement, accepted the application and issued the certificate to Mrs. Fox and received payment of dues and assessment's. It is unnecessary to determine whether or not appellant falls within the terms of the statute in other réspects, inasmuch as the statute could have no effect on the question of the age of the applicant in this instance.

Appellant invokes the rule laid down by this court in Mutual Aid Union v. Blacknall, 129 Ark. 450, that (quoting from the syllabus) if an agent of an insurance company “in collusion with the applicant, even though acting within the apparent scope of his authority, perpetrates a fraud upon the insurance company by making false and fraudulent representations upon which the insurance is obtained, such fraud will vitiate the policy. ’ ’ There is, we think, no evidence in this case that would justify a submission of the question of fraud on the part of Boyd, the agent. No effort was made to prove what occurred at the time the application was written, and there is no direct proof of fraud, either on the part of Mrs. Fox or Boyd. The most that the testimony tends to establish is ihat there was a misstatement of age. Fraud is not presumed, but must be proved. An inference of fraud may be drawn from proved facts, but here we have no proof that Boyd participated in any intentional misrepresentation as to Mrs. Fox’s age. We think the court was correct in refusing to charge the jury on that subject.

The court also submitted to the jury the issue as to Mrs. Fox’s age, and, as there was testimony sufficient to support a finding either way, the verdict of the jury is conclusive on that issue.

We are of the opinion, however, that the judgment is excessive, and that, according to the undisputed evidence, appellee is only entitled to recover $124.40, “the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured.”

Mr. Judd, who was president of the appellant society at the time of the trial, testified that this was the amount of the last assessment preceding Mrs. Fox’s death, and there is no other testimony on that subject. The by-laws fix the limit of the amount of recovery, and that constitutes the contract between the parties. The by-laws and the benefit certificate fix the maximum amount of the benefit at $1,000, but there is nothing, either in the certificate or the by-laws, which permits the -payment of any benefit in excess of the amount realized under the last assessment preceding the death of the insured.

Counsel for appellant urge that there is no -proof that this was the effect of the by-laws at the time Mrs. Fox’s certificate was in force, but we think the testimony of Judd on that subject is undisputed, and shows that there was always a by-law to that effect.

The amount named above being the limit of appellee’s right of recovery, according to the undisputed evidence, the judgment will be reversed and judgment will be entered here for the amount of $124.40 as of the date of the judgment below. It is so ordered.


author: Wood, J .

text:
    Gilcoat v. State.
    Opinion delivered November 13, 1922.
    1, Larceny — instruction as to felonious intent. — The word “felonious,” as used in the larceny statute (Crawford & Moses’ Dig., § 2483), means that at the time of the taking and asportation there must exist in the mind of the taker the intent to convert or appropriate permanently to his own use the property ' of another person; and an instruction defining “feloniously” as referring to a crime charged amounting to a felony, and that a felony is any crime that incarcerates the wrongdoer in the penitentiary was incorrect and calculated to confuse and mislead the jury.
    2. Larceny — instruction as to felonious intent. — It would be proper in a larceny case to tell the jury that if the defendant took and carried away another’s hogs with the intent at the time of appropriating them to defendant’s own use and permanently depriving the owner of the use and benefit thereof, then such taking and carrying away would be felonious.
    3. Larceny — instruction as to intent. — In a prosecution for the theft of hogs, an instruction that the State was not required to establish by parol testimony the intent of the accused, and that a man is presumed under the law to mean the things that he does, and to intend th"e things that he did, was abstract and improper, where there was some evidence that defendant drove the hogs to his home and put them in his pen, believing them to be the property of a neighbor, and that he had been requested to do so.
    4. Larcency — presumption as to intent. — -No presumption can be indulged from the mere fact of the taking of property that it was done with felonious intent, 'and thus put on the defendant the burden to prove otherwise.
    6. Larceny — instruction—possession op stolen property. — While the unexplained possession of recently stolen property is a fact from which the jury is justified in drawing an inference of guilt, it is improper for the court to fell 'the jury that such a fact is prima, facie evidence of guilt, and that the jury should or must draw such an inference from such fact, as ’ it is exclusively within the province of the jury whether they will make such inference.
    6. Criminal law — instruction as to reasonable doubt. — An instruction in a felony case that a reasonable doubt is not an imaginary, speculative, captious or fanciful doubt, but simply a doubt for which as reasonable men the jury can give a reason was inherently erroneous, and therefore subject to a general objection.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    reversed.

      John W. Monerief, for appellant.
    J. 8. Utley, Attorney G-eneral, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J .

This is an appeal from a judgment of conviction of grand larceny on an indictment which charged the appellant, in two counts,' of the crimes of grand larceny and receiving stolen property. The testimony for the State tended to prove that Wade Langham lived about four miles southwest of Dewitt, Arkansas, in Arkansas County. He owned a number of hogs which ranged about four miles from ] bis borne across Mill Bayou. His hogs were marked with a crop off the left ear and a swallow-fork in the right. Langham received information that some hogs that were marked with his mark were in a pen of an old chicken-house in the possession of the appellant. Appellant lived ten miles from Langham and about six miles from where the hogs had usually ranged. Langham, in company with some of his neighbors, went to appellant’s home and identified the hogs as his property. Appellant was not at home when Langham first identified the hogs, nor on the day when he went and got them. Appellant lived in the edge of the timber. There was prairie between appellant’s house and Langham’s. Langham had not seen his hogs for about a month and a half before the appellant put them up. Langham had forty-seven head on the range and lost twenty-six. He got nine head of his hogs from the appellant on the 5th of November. If the hogs had gone straight, they would have gone over some prairie. Part of appellant’s pen was walled up on three sides and the other side was wire. The hogs could not be seen from the highway. The appellant did not make any claim for the hogs. The hogs were not fresh marked, and they had not been in any way disfigured. One of the hogs was not marked at all.

The testimony for the appellant tended to prove that on one Sunday, while appellant and his brother were hunting, on returning home they noticed some hogs. Appellant thought the hogs belonged to one Mr. Brewer, and they drove them home and put them in the pen Sunday evening. Appellant killed two hogs on Monday, but they were his own hogs and marked with his own mark.

Brewer testified that he had some hogs to stray away, and that he met the appellant and told him about these hogs and about the mark. It was only a few months afterward that he heard about the appellant getting into this trouble. Witness told the appellant about this mark, but didn’t know whether appellant remembered what he said the mark was or not.

Another witness testified that he met appellant in the fall of 1919 and the appellant inquired of him in regard to a mark that he was certain about and asked witness if witness knew Brewer’s mark. Appellant said to witness, “I believe I have got a bunch of his (Brewer’s) hogs in the pen,” and described the mark, and asked witness if that'was Brewer’s mark, and witness told him that he didn’t know, but it was something like that.

The court, in instruction No. 3, defined the word “feloniously” as follows: “ * * feloniously, that is, the crime charged amounts to a felony, and the theft of one hog or six hogs is a felony under the laws of the State of Arkansas. A felony is any crime that incarcerates the wrongdoer in the penitentiary for some period of time; eight hogs, the personal property of this man, did steal, take and carry away. * * # To this indictment the defendant pleads not guilty; that casts upon the State the burden of proving the material allegations in the indictment, and that beyond a reasonable doubt. The material allegations in this indictment and in both counts of it is that the property was stolen in the first charge; that it was stolen-by Wes Gilcoat; that the theft committed was felonious, and, if he stole them, that it was felonious, because there can be no theft of hogs under the laws of this State without it being a felony, and that the crime charged was committed within three years before the return of this indictment, which was returned upon the 18th day of January, 1922.”

Instructions No. 6 and No. 7 are as follows:

“6. I have told you that, before you can convict this defendant, the State is required to prove his guilt beyond a reasonable doubt. A reasonable doubt is not an imaginary doubt, it is not a speculative doubt, it is not a captious doubt, it is not a fanciful doubt. A reasonable doubt means no more and no less than the words, simply a doubt for which as reasonable men you can give a reason.”

“7. The State is not required to prove the guilt of any man to a mathematical certainty; everything depending upon human testimony is subject to some species of a doubt. To be convinced, within the meaning of the law, beyond a reasonable doubt, is that state of mind of the jurors, after a fair, impartial, unbiased consideration of all the testimony in the case, you have an abiding conviction to a moral certainty of .the truth of the charge. If the evidence in this case convinces you that this property has been stolen and that this defendant received the property that was found in his possession, that makes a prima facie case of guilt where property has been recently stolen and possession is unexplained.”

“10. The mere taking of property, whatever it is, where the indictment charges that the same constitutes a felony, that is grand larceny, is not sufficient to warrant the jury in returning a verdict of guilty. There must be an unlawful taking, there must be a felonious taking upon the part of the accused. Now, the State is not required to establish by parol testimony the intent of the accused in any case. A man is presumed under the law to mean the things that he does. He is presumed under the law to intend to do the things that he did do. You determine the intent of the individual by his acts and the proof in the particular case on trial. You cannot look down into a man’s mind and say just with actual certainty what his purpose, intent and motives are in the doing of a thing, but you determine these things from the facts and circumstances in the case. ’ ’

“11. I have previously told you what felonious intent meant as used in these instructions, and before you would be warranted in convicting the defendant you must further find, if he took the hogs, -that he did so with the felonious intent of appropriating the same to his own use, and if he did that, that would constitute grand larceny, and that he intended to appropriate to his own use, that would constitute the depriving of the true owner of his property; one cannot be committed without the other.”

The appellant presented the following prayers for instructions:

“1. The mere taking np of the property of another person without the consent of the owner does not constitute larceny. And before you could convict the defendant in this case it would be and is incumbent upon the prosecution to show beyond a reasonable doubt that the defendant unlawfully took the hogs with the felonious intent of depriving the owner thereof and of converting same to his own use. And if the prosecution fails to show the felonious intent beyond a reasonable doubt, it is your duty to acquit the defendant. Or if, upon the whole case, you have a reasonable doubt as to the intent of the defendant, you will not find him guilty.”

“2. The defendant is presumed to be innocent of taking property with the felonious intent to convert to his own use, and this presumption attends and protects him throughout the trial, unless overcome by evidence proving guilt beyond a reasonable doubt. ’ ’

1. Under the evidence the issue as to whether or not appellant was guilty of the larceny of Langham’s hogs, as charged in the indictment, was- one of fact for the jury, but this issue was not submitted upon correct instructions. The indictment in the first count charged the appellant with the crime of grand larceny committed as follows: “Eight hogs, the personal property of Wade Langham, unlawfully and feloniously did take, steal, and drive away.” The court, in its third instruction, defined the word “feloniously” used in the indictment as follows: “* * * feloniously, that is, the crime charged amounts to a felony, and the theft of one hog or six hogs is a felony under the laws of the State of Arkansas. A felony is any crime that incarcerates the wrongdoer in the penitentiary for some period of time.” Under our statute larceny “is the felonious stealing, taking, and carrying, riding or driving away, the personal property of another.” Sec. 2483, C. & M. Digest. The word “felonious,” as used in the statute, means that at the time of the taking and asportation there must exist in the mind of the taker the intent to convert or appropriate permanently to Ms own use the property of the other person. In other words, to constitute larceny the taking and asportation must be animo furandi.

The term “felonious,” as employed in our larceny statute, is not used with reference to the kind and value of the property taken, nor to designate the punishment therefor. It is not for the purpose of distinguishing crimes that are punishable in the State Penitentiary and those not so punished, but it is used here to characterize the intent that must exist in the mind of the taker at the time of the taking and asportation. It must be a felonious intent as above defined. See Mason v. State, 32 Ark. 238; Douglas v. State, 91 Ark. 121; Gooch v. State, 60 Ark. 5—9; Fulton v. State, 13 Ark. 168; James v. State, 85 Ark. 360; Bailey v. State, 92 Ark. 216; Littlle v. State, 119 Ark. 430; Ridgell v. State, 110 Ark. 606.

The definition of “feloniously,” as given by the court in its third instruction, was therefore not correct. It was calculated to confuse and mislead the jury.

Instruction No. 11 refers to the definition of “felonious intent” as used in instruction No. 3, which instruction, as we have seen, does not correctly define “felonious intent.” Instruction No. 11 would have been correct if the court had told the jury that if the appellant took and carried away Langham’s hogs with the intent, at the time, of appropriating the hogs to appellant’s own use and permanently depriving Langham of the use and benefit thereof, then such taking and carrying away would be felonious, and the jury, if they so found, would be warranted in returning a verdict of guilty against the appellant. But such is not the effect of the instruction. It is argumentative, and, when taken in connection with the definition of “felonious intent” in previous instructions, it was calculated to mislead the jury. The appellant did not deny that he took and carried away' hogs claimed by Langham, but he did, deny that he took the hogs with the felonious intent of appropriating them to his own use and permanently depriving the owner of his property. His sole defense was that he drove the hogs to his home and put them in his pen believing them to be the property of one Brewer, and that he had been requested to do so by Brewer. In view of this testimony, the court erred in telling the jury, in instruction No. 10, that the State was not required to establish by parol testimony the intent of the accused in any case, and that a man is presumed under the law to mean the things that he does; that he is presumed under the law to intend the things that he did do, etc. Instruction No. 10 is argumentative in form and erroneous in substance. Such an instruction has no application in a trial of grand larceny, and was especially abstract and misleading when applied to the facts of this record.

In this case no presumption could be indulged to the effect that .when the appellant put the hogs in his pen he intended by so doing to convert them to his own use and to permanently deprive Langham, the owner, of the use and benefit thereof. As is said by Mr. Underhill: “The law will not countenance any presumption which, by overcoming the presumption of innocence, will cast the burden of proving his innocence upon the defendant. Hence, where presumptions apparently conflict, the law will recognize the presumption of innocence alone and will impose no restriction on its operation, but will apply it to the whole scope of the charge against the accused and to every fact essential to the crime.” Sec. 19,,p. 35, Underhill on Criminal Evidence. See also 1 Elliott on Evidence, % 94.

To constitute larceny, as we have shown, it was essential that the State prove the lucri causa; that is, that the appellant took and carried away the hogs with a felonious intent, at the time of the taking and asportation, to convert the same to his own use and permanently deprive the owner of the use and benefit of his property. Of course, it was proper for the jury to take into consideration, in determining whether such felonious- intent existed, the fact and manner of the taking and all the-circumstances thereof, but no presumption could be indulged from the mere fact of the taking that it was felonious, and thus put the burden on the defendant to prove otherwise.

In Mason v. State, supra, we said: “The mere fact of the taking and carrying away.does not raise a presumption of guilt, or that the taking was to steal, or lucri causa, for the sake of profit or gain, but such felonious or criminal intent must be shown by circumstances connected with the taking!” See also Underhill on Criminal Evidence, § 292; Martin v. State, 97 Ark. 212-216, and cases there cited.

In its instruction No. 7 the court told the jury “that, if the evidence in this case convinces you that this property had been stolen and that this defendant received the property that was found in his possession, that makes a prima facie case of guilt, where property has been recently stolen and possession .is unexplained.” The appellant was on trial for grand larceny, the offense charged in the first count of the indictment, and also for the crime of receiving stolen goods, as contained in the second count of the indictment. The language of the instruction just quoted was not by express terms made applicable only to the offense of receiving stolen property, of which offense the appellant, by the verdict of the jury, was acquitted. The instruction did not distinguish between the two offenses. It was as applicable to one as to the other, and therefore it cannot be said that the appellant was not prejudiced by the giving of the instruction, if it were erroneous. The instruction invaded the province of the jury, inasmuch as the language quoted was an instruction on the weight of the evidence. While the unexplained possession of recently stolen property is a fact from which a jury would be justified in drawing an inference of guilt, yet it is improper for the court to tell the jury that such a fact is prima facie evidence of guilt, and that the jury should or mtlst draw such an inference from such fact. It is exclusively within the province of the jury to draw or not to draw such an inférence. The language of the instruction quoted was tantamount to telling the jury that, if the appellant was found in the possession of property that had been recently stolen, which possession was unexplained, they should find him guilty. Such testimony is relevant because it tends to prove guilt, and is proper for the jury to consider in determining guilt or innocence of the accused, but the court must not tell the jury that such testimony is prima facie evidence of guilt. Nor can the court tell the jury that from such evidence they should draw an inference of guilt. Because, to tell the jury that such fact makes a prima facie case of guilt, is equivalent to telling the jury that it is sufficient to convict. This the court could not do. Shepherd v. State, 44 Ark. 37; Blankenship v. State, 55 Ark. 244; Duckworth v. State, 83 Ark. 192; Reeder v. State, 86 Ark. 341.

Instruction No. 6 is an instruction on reasonable doubt. This instruction' does not correctly declare the law, and it is also objectionable as being argumentative in form. In Darden v. State, 73 Ark. 315, the court gave an instruction consisting of four paragraphs, at least one of which was not on the subject of reasonable doubt. In one of the paragraphs the court, among other things, told the jury that a “reasonable doubt does not mean every doubt that may flit through your mind in a consideration of this case, but a doubt for which you could give a reason if called upon to do so.” This court, speaking through Judge Battle, condemned the language as defective, which told the jury that a reasonable doubt is one for which a juror could give a reason if called upon to do so.

The instruction under review here contains the defect which we expressly disapproved in Darden v. State, supra. The instruction here embodies but a single proposition of law defining reasonable doubt. It was inherently erroneous and therefore subject to a general objection. Bennett v. State, 95 Ark. 100-107; Teel v. State, 129 Ark. 180. Judge Riddick, speaking for this court in Bell v. State, 81 Ark. 16, in an illuminating opinion ón the subject of a reasonable doubt, shows how any effort to define it in any other than substantially the simple form that has been so often approved by this court, is wholly unnecessary and may prove, as it did in that case, erroneous. We could not hope, and will not assay, to. improve upon what was there said. The instruction of the court in this case-does not follow any precedent which we have heretofore approved, and contains the error of defining a reasonable doubt as a doubt “for which, as reasonable men, jurors can give a reason.” This language is not only condemned by our own court, but also has been expressly disapproved in other jurisdictions. State v. Cohn, 108 Ia. 208; Siberry v. State, 33 N. E. 681; Morgan v. State, 27 N. E. 710; Abbott v. Territory, 20 Okla. 119; Klyce v. State, 78 Miss. 450. See case note State v. Grant, 11 A. & E. Ann. Cases, p. 1020. As is well said in Klyce v. State, supra, a juror “should not be under any legal compulsion to have to give or be able to formulate and state the reason which may raise a reasonable doubt in his mind and conscience.” We are aware that there are authorities to the contrary. See State v. Grant, supra, case note, p. 1019-20. But the view of our own court is in accord with the better reason, if not the weight of authority.

Other assignments are urged for reversal, but it is believed what we have already said will furnish a correct guide for another trial, and that other errors complained of will not. occur again.

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