author: Humphreys, J.

text:
    Sternberg Dredging Company v. Boyd.
    Opinion delivered July 12, 1926.
    1. Damages — breach op contract. — In a suit by a contractor ,against dredging company for anticipated profits and money earned under a contract for clearing a right-of-way for a drainage district, alleged to have been wrongfully annulled by the : ’dredging company, evidence held to sustain allowance made by the master in favor of plaintiff.
    2. Contracts — construction.—A provision" for a bond in a con- . tract to clear a right-of-way held mandatory; unless waived.
    3.' Contracts — -performance—waiver op breach. — Where a dredg- . ing company continually insisted, upon the execution by a contractor of a bond which he agreed to give for performance of his contract to clear a right-of-way, it did not waive its right thereto by permitting the contractor to work more than a year without executing it.
    Appeal from Mississippi Chancery Court, Chickasawba District; ,7. M. .Futrell, Chancellor;
    affirmed.
    ' - Go stem, & Harrison, for appellant.

      J. T. Coston, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in the chancery court of Mississippi County, Chickasawba District, to recover $15,000 for anticipated profits and- for money earned under the contract for clearing the right-of-way of a drainage district, alleged to have been wrongfully annulled by appellant. The jurisdiction of the court was not questioned, presumably for the reason that the issue between the parties involved an intricate accounting. Appellant filed an answer to the bill, denying the material allegations therein, and a cross-bill seeking to recover $4;511.08 alleged to have been advanced by appellant to appellee in excess of the contract price upon work performed by said appellee.

Appellee filed answer to the cross-bill, denying the material allegations therein, and the cause was submitted by consent to the court in vacation upon the pleadings and testimony. The court found it necessary, under his view of the law applicable to the facts in the case, to refer the matter to a special master for a statement

of account between the parties; in • accordance with declarations of law announced'by the court. Hon.-Archer Wheatley,-, an -ex-chancellor of -broad 'experience, -was appointed special master-; with directions'to consider-the -testimony already -taken'-and such additional-proof' as might.be offered .by .the parties. -In conformity; with the declarations of law, the special master carefully reviewed the evidence, which is.too voluminous ,to:.set out:even in substance in this opinion, and filed an itemized report showing a net.balance due: from, appellant-to appellee for work actually- performed under .the contract of $1,987.66.

Three specific exceptions .were filed to the ‘report of-the-master as follows:

“First: The master’s -report-shows the amount cleared May .13, 1921, as shown by-the-d'eferidant?s exhibit No. 30, to-have been 153P8 acres. - This should-have been 152.93-acres.
“Second: Therspecial master.credits the plaintiff with the difference between the work 40 per cent. complete, as shown by exhibit 30, and 50 per cent., as shown by testimony of witness Coheri to have been paid fon by the district. This finding is erroneous for the reason that the witness Cohen’s testimony relates to payments made by Sternberg Dredging Company for the construction of the muck ditch on the area of improvement No. 28, and there is no testimony upon which the Special master could base his finding as to this item."
“Third: The special master credits .plaintiff' With the sum of-four hundred thirteen dollar s'and sixty cents ($413.60.), which; he says is the amount-paid by plaintiff on what is known, as the ‘Laxon camp- - Testimony with «respect to this showed -that-, if any-payments were-made, same were made a consider able time, after the breach of contract herein, arid-defendrints would not be properly chargeable therewith.
“Wherefore defendants pray that said sums be stricken out and said Teport be restated, and for all proper and equitable relief.

On February 3, 1925, the cause was finally heard by the court on the report of the special master and exceptions, thereto, which resulted in an approval of the report and the rendition óf a decree against appellant for $2,405.50, including interest, from which is' this appeal.

Appellant contends for a reversal of the decree upon the three following grounds:

First, that appellee was overpaid by' appellant, in the sum of $3,579.59.

Second, that the special'master erroneously included the credits set forth in subdivisions B and C of paragraph 2 of his report.

And third, that the decree of the chancery court rendered in accordance with the terms of the report of the special master was erroneous.

(1). We have determined that the court.correctly declared the law relative to the work actually done under the. contract, and agree with the master and the chancellbr that appellant had not overpaid appellee.Overpayments -for work actually done were not. embraced in the exceptions to the master’s report, and, after a .very .careful examination of the evidence, we are not .able'to discover where the .advances exceeded thé estimates.

,(2). Thé objection to appellee’s allowance of* 5.75 acres.additional -between stations 202 to 226, 233 to 265, and 280 to 350, at $70 per acre, is that the master allowed and the chancellor approved it upon the misconception that witness Cohen testified that the clearing between the stations referred to had been cleared 50 per cent, instead of. 40 per cent; Appellant is. correct in his assertion that witness Cohen did not testify relative to the percentage of clearing’ between the stations, but incorrect ih its contention that the master, based his .finding on Cohen’s testimony: On the contrary, the master based his finding upon the fact that appellant’s exhibit 30 shows that the clearing of the right-of-way bétween sáid. stations had been completed between forty and. fifty per cent. The-finding of the master as to this item was therefore supported by the evidence.

The objection to appellee’s allowance of $413.60'for clearing at Laxon camp is that the work was done after the contract was terminated in August, 1921. In the first place, considerable work was done and accepted after appellant'notified appellee that the contract had been breached by failure to give bond, and, in the next place, for aught that the record discloses, the-work may have' been done, before the notice was given, and paid for by appellee in November and December, 1921. Appellee did not testify when the work was done, but said . that expenditures in that amount were made by him in November and December, 1921, for work performed at said camp. It was impossible to determine the exact acreage or percentage of' clearing done at the Laxon ¿amp, so the master only allowed appellee for the amount he was actually out. This allowance was more favorable to appellant than it was entitled to, since labor was cheaper when the work' was done than when the contract was entered into. There is testimony therefore in the record to support the finding of the master.

(3). Our construction of the testimony convinces us that the. decree is supported by the weight of the evidence.

This brings us to a consideration of whether appellee is entitled on his cross-bill to profits which he would have made had he been permitted to fulfill his contract. The contract providéd for clearing 345 acres of right-of-way. at $70 an acre. Appellee cleared 159.73 acres, when he was compelled to quit because he did not execute a bond with security.' The contract contained the following provision for a bond: •

“Second party'(appellee) hereby agrees to furnish reliable personal or - surety bond equal to the sum of thirty. (30) per cent, of the total amount of this contract, to. guarantee the faithful performance of his work.” .

This bond was never given, and not- tendered until seven days before appellee instituted his suit, which was several months after appellant notified appellee not to proceed further under the contract .on .account of his failure to give the bond. We think'the prevision for a bond' was mandatory,' and; that' appellee*Was beuiid1 to give ‘it unless waived by appellant. Appellee' contends that appellant waived its right’' to the bond ' because "it permitted Mm to-work;’furnished him 'estimates', ' and m'ade payments tinder thé c Oh.tr act:for.rnóre:than- a’year without requiring him tb'execute it'.,, "Th¿"record reflects th'át,’ althOtigh permitted to Work tinder the contract for the time mentioned, ’appellant • continually’• insisted1 -by word and letter upon appellee executing, the bond-. ’’Under these' cireunastapces, it cannot" bé' said' appellant' 'Waived its'right‘to'the bond-. - ~ ! ■** *• »•» •

No' error ' appearing," the- decree Us affirmed.’•'


source: Caselaw Access Project

license: Public Domain

text:
    Rhodes v. Hope.
    Opinion delivered July 12, 1926.
    1. Sunday&emdash;sale op GASOLiNE.-A-fJnder a ■ municipal ordinance pno- ... , hi’biting. the., sale, of goods,., wares, and. merchandise on Sunday, .... the .sale of gasoline to physicians, officers, tourists. and patrons of defendant’s garage is not within the exception "allowing Sales in cases of necessity or charity.
    2? "Sunday&emdash;Durden op proving necessity.&emdash;In a prosecution for "" selling gasoline on Sunday in violation"óf-a city’ordinance,-the burden is bn ’the .defendant to bring .-himself, within the .excep.tion in. cases of sales fpr charity, or necessity,.; : . . ¡ j-
    ' Appéáh frohi ' Hempstead "'Circuit" 'Court'; H. ' McCóllúm',ydñdge;
    affirmed.’

      'Steve 'Gafrigan, for appellant.
    Z7. A. Gentry and J. D. Montgomery, for app'ellée.' ’
   Humphreys, J.

Appéllant’‘was convicted' in the máyor’s court of’ Hope' for’ Violating á'Sundáy1clbsing ordinance winch prohibited, tinder penalty, the sálé":óf goods, wares," and' merchandise on. the Sabbath' day, éxCept 'for Charity -or ‘necessity;''- It- wás’-stibséqtiently ' p'rovitiéd in'the- of dinanee' that'‘charity - or: necessity -on ■ 'the -part' of -the consumer might be - shown» tin < justification of such”'sales. The cause was appealed- to '.the* cirouit court, of Hempstead County; where the - jury- was instructed to return a verdict of guilty upon' the testimony adduced in the trial of the cause, which was accordingly-done. From the consequent-judgment- of- conviction an-appeal has been duly'.prosecuted to this court.

' The record reflects that appellant conducted a filling station in Hope,'which he kept open on the -Sabbath day to-.dispense gasoline' to physicians, officers of the' law, tourists, arid patrons of his garage,' which he fan in connection'with the filling station. Before selling gas'to' these persons,' he required each brie to sign a statement that it was necessary for him tp have it/and then only sóld to the ones he believed signed the 'statement in good faith. The record does not show the: particular cireúiristances under Which 'the; sales wére 'madó. • In fact, no effort was put forth' to shqW that the sales ;we're miade on ácéount of unavoidable emérgencies', 'bringing them within the fule of necessity in ' Sunday observance-statutes.

Appellant contends for’ a reversal’ of the 'judgment Pri'the theory'that, this being the motor age,-the sale of gásólíne on" Sunday is "an inherent, essential, and vital necessity. It will fió observed' that the ordinance’ does-not attempt to exempt from its provisions any particular commodity. It does not pretend to except the sale of gasoline from the penalties imposed. On the contrary, it penalizes one who sells any goods, wares, and merchandise on -Sunday. The. exception in the ordinance is that “charity or necessity on the part of the customer may be shown'in justification Pf the violation of this ordinance.” Food is as- esséntial to the life of man as gasolirie is to the activity of an automobile, yet this' court ruled, in Petty v. State, 58 Ark. 1, 22 S. W. 654, that it was unlawful to keep a butcher shop open on Sunday fof the purpose..of selling meats and vegetables. It has never been the law in. this State that one can sell gasoline on Sunday, within the meaning of Sunday, restrictive-laws, because automobile’s are generally and almost universally used for traveling upon its highways.

Appellant also contends for a reversal of the judgment upon the théory that the exemption clause in the' ordinance allowing sales of goods, wares, and merchandise in cases of necessity included sales to physicians, officers, tourists, and' persons who kept automobiles in appellant’s garage over night. This court had an exemption clause' of this character in a Sunday restrictive law before it for construction in the case of State v. Goff, 20 Ark. 290, and in construing the clause said: . “ The husbandman should look forward to the ripening of his grain as an event which must happen, and should make such timely provision for the harvest as not to violate the Sabbath. This is. a duty enjoined alike upon the poor and the rich.” The classes referred to above weré not within the exception of the necessity clause' contained in the ordinance, and no such emergency was shown by the testimony as brought them within the exception, so appellant violated the Sabbath by selling them gasoline on Sunday. The undisputed testimony disclosed a violation of the. ordinance by appellant, hence thé court did not err in peremptorily instructing a verdict of guilty. The burden was upon appellant to bring himself within the exception. The judgment is affirmed.


author: McCulloch, C. J.

text:
    Miller and Gregson v. State.
    Opinion delivered September 27, 1926.
    1. Intoxicating liquors — possession op still. — Evidence’ held sufficient to sustain a conviction for possessing an unregistered still, contrary tó Acts 1921, p. 372.
    2. Intoxicating liquors — possessing still — evidence.—In a prosecution for possessing an unregistered still, .where defendant; arrested at the still, denied-ownership or possession thereof, evidence that defendant’s son was seen on the same morning in the vicinity of the still with sacks of sugar, “shorts”, and fruit jar lids, was competent in considering whether defendant was at the still by accident or for the purpose of operating it.

      3. Criminal law — competency op evidence.op another crime.— In a prosecution for possessing a still, testimony that a witness.- . bought whiskey from one defendant, being taken to his house by • his codefendarit, held competent.
    4. Witnesses — impeachment on cross-examination. — In a prosecution for possessing a still, it was competent, as affecting his , credibility, to cross-examine defendant- as to his having heen caught at another still after his arrest: '
    Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    affirmed.

      Hawthorne, Hawthorne S Wheatley, for appellant,

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellants were separately indicted for the statutory offense of keeping in possesr sion an unregistered still (Acts 1921, p. 372), and on the trial of the two cases together, by consent of parties, both of the appellants were convicted and sentenced to the penitentiary.

The first and principal contention, is that the evidence'is not sufficient to sustain the verdict of conviction.

The sheriff of the county and two citizens who accompanied him on a raid testified that, early one morning, they found a distillery out in the woods, at which- there were ten or twelve barrels of mash ready for use in the , distillation of alcoholic spirits. They testified that they waited*, at the still, in hiding, for several hours, and that, about eight o’clock in the morning, the two appellants, George Miller and BillGrégson, came up and walked in among the barrels of mash near the distillery. The oificers commanded them to hold up their hands, which they did, and they were placed under arrest. - Miller cláimed, according to the testimony of the witnesses, that he had come there to make a run of the- distillery -for a man-named Gaither, who, with others, was operating the still, and that it was Gaither’s day to make a run. Gregsonwas standing a few feet away, and made no response to this statement of Miller, but Gregson, according to the testimony of the witnesses, made the statement that he was not worried, as it did not mean “but a year anyway, and maybe six months.”

The sheriff' testified that, shortly afterwards that morning, he arrested Miller’s son and another yonng man in:a car about half a mile from the distillery, and that the-boys had two sacks of sugar and a sack of “shorts,” or bran meal, some fruit-jar lids and rubbers.

Miller denied that he made the statement to the officers to the effect that he was there for the purpose of operating- the still. He. testified that he had arranged with a man by the name of Breeze, who owned land there,' to cut cordwood, and that, when arrested by the officers, he was merely walking down into the woods to find the boundary line of the land on which he was to-cut the wood. He testified that he did not know that the distillery was there until the officers called out to him to hold up his hands. Gregson testified to the same effect, saying that he accompanied Miller into the woods to see about the timber, as he expected to haul it when cut by Miller.

• We are of the opinion that the evidence was legally sufficient to sustain the verdict.- The presence of the accused at the distillery, which was ready for operation, together with the statements made to the officers, constituted sufficient evidence that appellants had appeared there for the purpose of taking possession of the still and operating -it.' '

Assignments of error are also made with respect to the court’s ruling in admitting testimony. It is insisted that the court erred in permitting the sheriff to testify concerning Miller’s son having the sacks of sugar and “shorts” and the fruit-jar lids in the vicinity of the distillery. The articles in possession of Miller ’s.son were such as are customarily used in the manufacture and distribution of alcoholic liquors, and the fact that those things were in the possession of Miller’s son-was competent in considering whether or not Miller was at the distillery by accident or for the purpose of operating the distillery. Appellant contended that the boy had been sent to purchase those articles for use in preserving and canning fruit, hut it was a question for the jury to determine whether the hoy, as a member of Miller’s family and under his control, had procured, the things at Miller’s request for use at the distillery.

Again, it is insisted that the court erred in permitting, witnesses Moore and Lyttel to' testify that they bought whiskey from Miller and that they had beéri carried to. Miller’s house by Gfregson to procure the liquor. This was competent for the purpose of showing that both of the appellants were engaged in the liquor traffic and as corroborative of the proof that they were interested in the operation of the distillery at which they were found by the officers.

Error is assigned in the ruling of the court permitting the prosecuting attorney to interrogate Milíer, on cross-examination, as to his being caught at ánother distillery in the neighbbrhood since he was arrested. This was competent for the purpose óf Misc.editing Millet as a'witness. The fact that he was asked'about ah occurrence’since he was arrestedMoes not lessen its competency fot the purpose of testing the credibility of 'the witness.

There are other assignments, which are not of sufficient importance to discuss.

We find no erior in the recoiM, and'the judgment is therefore affirmed.


text:
    Vincent v. State.
    Opinion delivered September 27, 1926.
    1.' Intoxicating liquors — ^possessing "still — evidence. Evidence held to sustain-conviction of possessing an unregistered still, in , violation of Acts 1921, p, 372.
    2. Intoxicating liquors — possession .op still — instruction.-An instruction asked by defendant; that the mere fact that .accused Was found asleep at .a distillery would not sustain a conviction of possessing a still, and that it was necessary for thé S’táfé; to show that defendant was'owner or in possession of the still,-Held
      properly modified by adding that defendant would be guilty if he was exercising control and dominion over the still.
    3. Criminal law — instruction as to circumstantial evidence.— An instruction that, before defendant could be convicted of possessing a still, all facts and circumstances, when taken together, must be inconsistent with any reasonable hypothesis except that he was guilty, held properly refused, where conviction did not rest on circumstantial evidence alone.
    4. Criminal law — instructions—application to case.- — Refusal of defendant’s requested instruction that his admissions to officers must have been voluntary was not error where there was no evidence that they were not voluntary.
    Appeal from Clay Circuit Court, Eastern- District; W. W. Bamdy, Judge;
    affirmed.
    ' Gautney <& Dudley, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted for the statutory offense of keeping in his possession an unregistered still (Acts 1921, p. 372), and on the'trial of the cause he wás convicted and sentenced to the penitentiary. An appeal has been duly prosecuted to this court, and' the principal contention is that the evidence adduced at. the trial was not sufficient to sustain the verdict of conviction.

Three witnesses were introduced by the State, one of whom was an officer, and the other two were citizens who accompanied the officer. These witnesses testified that they went out in search of a whiskey distillery which was reported to be in operation about eight miles distant from the town of Rector, in Clay County, and that, about eleven o’clock at night, they found the distillery, and found appellant there, alone and asleep, with his head resting on a sack of sugar. They testified that, when they awakened appellant from his sleep, he admitted that he was operating the still, and had been'doing so for five or six years, and that he had purchased the still-worm from a man named Lancaster, paying forty dollars therefor. Appellant also told the men, according to their testimony, that he had made a run of whiskey that afternoon about three or four o’clock, and showed them some of the whiskey that he had manufactured.

Appellant testified in his own behalf, and admitted that he was asleep at the distillery, as testified to by the State’s witnesses, but he claimed that he had nothing to do with the still, and merely went there to get some whiskey, and that the man in charge of the distillery gave him whiskey, which he drank, and became intoxicated. He denied that he made any statement to the officers admitting that he had operated the still or purchased the worm, or had anything to do with the operation of the still.

The evidence seems to be abundantly sufficient to sustain the verdict. The presence of appellant at the distillery and his admissions that he had purchased the worm and had been operating the distillery afforded evidence sufficient to sustain the conviction.

There are assignments of error with reference to the rulings of the court in denying some of appellant’s requests for .instructions.

Instruction No. 4, requested by appellant, was, in substance, that the mere fact that the accused was found asleep at the distillery would not be sufficient to sustain a conviction, and that it was “necessary for the State to show by the evidence, beyond a reasonable doubt, that the defendant was the owner or in possession of the still.” The court modified this instruction by an addition which stated, in substance, that the length of time the still was kept in possession was not material, but that the defendant would be guilty if it was shown that he was ‘ ‘ exercising control and dominion over the still, or stillworm, at the time testified to by the prosecuting witnesses.” The modification was not improper, and the instruction, taken as a whole, correctly stated the law on the subject.

The court refused to give requested instruction No. 5, stating, in substance, that, before there could be a conviction on the charge of possessing a still, “all of the facts and circumstances, when taken together, must be inconsistent with any reasonable hypothesis except that he is guilty.” The conviction did not rest on circumstantial evidence alone, and for. this reason, if for no other, the instruction was erroneous. Bartlett v. State, 140 Ark. 553.

In requesting instruction' No.. 6, appellant’s counsel sought to have the jury told that the admissions of appellant to the officers must have been free and voluntary in order to be admissible as evidence. There was no question about the alleged admissions being voluntary. The officers testified that appellant voluntarily made the statements,, and appellant denied that he made the statements at all. There was nothing tending to show that the admissions made, as claimed by the officers, were not voluntary.

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


author: Wood, J.,

text:
    Whittaker v. State.
    Opinion delivered September 27, 1926.
    1. . Rape — sufficiency of evidence. — Evidence held to sustain a conviction of rapé.
    -2. Criminal law — province of jury. — The jury are the judges of the evidence and of the credibility of witnesses.
    3. Witnesses — impeachment of accused on cross-examination.— In a prosecution for rape, it was proper to permit, defendant to be cross-examined as to other offenses, where such testimony was limited by the court’s rulings to the purpose of testing defendant’s credibility.
    4. Criminal law — cross-examination of defendant — harmless error.- — In a prosecution for rape, cross-examination of defendant as to other offenses held not prejudicial, where his answers entirely exonerated him from any culpability or any immoral or reprehensible conduct in connection with the particular matters about which he was examined.
    5. Criminal law — invited error. — If it was error to instruct the jury either to find the defendant guilty of rape or acquit him, instead of submitting the crime of' assault with intent to rape, defendant cannot complain where he asked an instruction to the same effect.

      6. Rape — instruction.—An instruction either to find defendant guilty of rape or not guilty of any offense was not- erroneous where the testimony of the prosecutrix tended to prove that defendant was guilty of rape and defendant’s testimony tended to prove that he was riot guilty of any offense.
    Appeal from Monroe Circnit Court; George W. Clark, Judge;
    affirmed.-

      Bogle '<& Sharp, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.,

Appellant was. convicted in the Monroe Circuit Court of the crime of rape, and sentenced by the judgment of the court to imprisonment in the State Penitentiary for life. . The. judgment was, based upon, the verdict returned by the jury finding appellant guilty and fixing the term of imprisonment in the State Penitentiary for life.

The alleged victim of appellant was one Ruth Kemnson, who testified, giving the circumstances. of the alleged assault in detail, which we deem it unnecessary to set forth, inasmuch as we are. convinced that, the, testimony of the-prosecutrix and other witnesses for the State' was amply sufficient to sustain the verdict. After detailing the facts and circumstances of the assault, the prosr ecutrix concludes her testimony by saying that he (the appellant) “grabbed me and jerked me across the road, slammed me down on the ground, and said, ‘Lay down here, or I will kill you/’ He held my arms, forced my legs open, wrestled with me until' he penetrated me, actually raped me as brutally and harshly as he could.0 Appellant,' in his testimony, denied positively thát he assaulted the woman, and there was testimony of another witness in his behalf tending to corroborate his testimony/ But the jury were the sole judges of the evidence and of the credibility of the witnesses, and it appears' from their verdict that they believed .the testimony of the prosecutrix rather than that of the appellant and his witness.

The court, over the objection of appellant, permitted the attorneys for the State to ask the appellant, on cross-examination, the following questions: “Q. What did you do to that Raymond girl about four or five years ago ? A. I didn’t do anything to the Raymond girl. ' Q. Didn’t you rape her? A. No sir. Q. Didn’t hurt her? A. No sir. Q. What about Tennessee Sawyer, what did you do to her?”

The appellant objected to the questions, and the attorney for the prosecution stated: “I want to show his immoral tendency. Court: Do you mean to ask by that question if he assaulted this party named with the intention of having intercourse with her? The attorney for the State: The Ramsey girl, yes sir. Q. What did you do to Tennessee Sawyer? A. She got shot accidentally. Q. Who got shot? A. Tennessee. Q. Yoii shot her, didn’t you? A. Yes sir.”

Here the attorney for the appellant again objected to the questions and answers, and asked the court to exclude the same from the jury. The court stated: “Any evidence establishing or connecting him with immoral crimes of a serious nature would shed light on his reputation. ’ ’

The attorney for the prosecution stated that the purpose of the questions was to test his credibility.

The court refused to exclude the testimony, to which ruling the appellant duly excepted.

The. prosecuting attorney further interrogated: the appellant, on cross-examination, as follows: “Q. You know the Ramsey girl that lived over on the Mr. Bateman place two or three years ago? A. No sir. Q. Do. you know a family named Ramsey? I will ask you if you didn’t rape a girl there, and you and your daddy paid them some money and kept it down? A. No sir.”

The court further permitted the prosecuting attorney to ask the appellant, on cross-examination, the following questions: “Q. Didn’t you shoot this girl? A. Yes sir. Q. Didn’t you shoot another negro last fall? A. Yes sir.”

The court stated that the only purpose of the testimony was to aid the jury in determining the degree of .credit to attach to appellant’s testimony, and further stated that this testimony was not evidence of his guilt of this particular charge. .

There was no error in the rulings of the court. The testimony, as shown by the statement, of the court in making its rulings, was admitted for the purpose of testing the credibility of the witness. The questions propounded to the appellant, and his answers thereto, were proper when limited, as the court ruled, to the one purpose of testing the credibility of the appellant as . a witness. ’ ; . .

In the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, this court, through Mr. Justice Hemingway, approved the general doctrine announced by the Supreme Court of Michigan in Wilbur v. Flood, as follows: “It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon Ms character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or. should prevent any needless or wanton abuse of the power..; But, within this discretion, we think a witness may be asked concerning all antecedents which are really sigMficant, and which will explain his credibility.”

The "court also cited and quoted with approval from Real v. People, 42 N. Y. 270, as follows: “A witness, upon cross-examination, may be asked whether he has 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.”

Our own court, has steadily adhered to the rule announced in Hollingsworth v. State, supra, and the following cases may be examined as authority on this subject: McAlister v. State, 99 Ark. 604, 139. S. W. 684; Turner v. State, 128 Ark. 565, 195 S. W. 5; Webb v. State, 138 Ark. 465-469, 212 S. W. 567; Turner v. State, 155 Ark. 443-448, 195 S. W. 5; Tong v. State, 169 Ark. 708-712, 276 S. W. 1004; Mays v. State, 169 Ark. 332-334, 275 S. W. 659; Ogburn v. State, 168 Ark. 396-400, 270 S. W. 945; Wray v. State, 167 Ark. 54-57, 266 S. W. 939; Lytle v. 163 Ark. 129-131, 259 S. W. 394; Middleton v. State, 162 Ark. 530-539, 258 S. W. 995; Sweeney V. State, 161 Ark. 278-286, 256 S. W. 73; Bank of Hatfield v. Chatham, 160 Ark. 531-541, 255 S. W. 31; Turner v. State, 153 Ark. 40-46, 239 S. W. 373; Shinn v. State, 150 Ark. 215-220, 234 S. W. 636; Pearrow v. State, 146 Ark. 201-206, 225 S. W. 308; Paxton v. State, 114 Ark. 393-396, 170 S. W. 80.

It follows, from the doctrine of the above- cases, that the court did not err in permitting the attorneys for the State, in the cross-examination of the appellant, to propound the questions set forth above, and did not err in permitting the answears thereto. The State was bound by the answers of the appellant :to the questions, and these answers entirely exonerated the appellant from any culpability or any immoral or reprehensible conduct in connection'with the particular instances designated by the attorneys for the .State. ‘ ‘ Therefore no prejudice could have resulted to appellant from the cross-examination to which objection is urged.

The court instructed the jury'as follows: “1. The defendant in this case,'gentlemen of the jury, is charged.with the crime of rape. Rape is defined by the statute as the carnal knowledge of a female, forcibly and against her will. In order to constitute guilt, under the indictment laid here against the' defendant, it is incumbent' upon the' State to prove beyond a reasonable doubt the following allegations in this indictment: first, that this defendant, some time prior to the return of-this indictment, and in Monroe County, Arkansas, unlawfully, feloniously and forcibly, and against the will of the prosecuting witness, had carnal knowledge of. her person by penetrating her privates. - It must be done, as stated, forcibly and against her will and without her consent. If these allegations are proved, and that beyond a reasonable doubt, there is but one form of verdict that would be-responsive, 'that -is, guilty as charged in the indictment,- the punishment of which is death in the electric chairs or life- imprisonmerit. Under the evidence in this, case you .would .have to find, the defendant either guilty of-rape or-not guilty of. any offense; there is no evidence, here ¡that'would .authorize .this court in submitting any other. offense whatever than that laid in the indictment, whichiis rape.

The appellant objected generally to the giving of this-instruction, and also specifically, “for the reason that’ the' court should not have told the jury that they could only find defendant guilty of rape; but should have told it that he could be ’guilty of assault- with intent to rape.”

Among other prayers for instruction by the appellant was the following, which the court gave: “The jury are instructed that, although you may believe from the evidence that the defendant has bee'n guilty of assault and battery, or. assault with intent- to-commit, rape, or any other offense, still you cannot convict defendant unless you believe that he is guilty, and that beyond a reasonable doubt, of the, crime with .which he is charged, in the indictment.”

The "court did not' err in instructing the jury that, under the evidence in the'cáse, they would have to find the defendant' either .guilty Of" rape or not guilty of'any offéis^J. The appellant did not' present any prayer (except the. aboye), for instruction on the.offense of an assault with intent to commit rape, which offense is embraced.,in an-¡indictment for rape. On the contrary, the prayer for-the instruction supra, on the part of appellant,'.which the -court gave, was to the efféct that the appellant could not be convicted' under this indictment', although ’ the jury.’mightbelieve, finder the evidence,'that he was guilty .of an assault with intent to commit rape.- Therefore appellantis certainly, in no attitude to- complain of dhe- ruling of the .courffin giving instruction No. 1 supra. If-the ruling was error, the appellant waived it by the prayer for the instruction which he asked, and which the court gave. Moreover, there was no testimony to justify the court in giving an instruction allowing the jury to return a verdict for an assault with intent to' commit rape. The testimony of the prosecutrix-certainly tended to prove that the appellant was guilty of the crime of rape, and nothing less. On the other hand, the testimony of the appellant-himself tended to prove that the appellant was not guilty of any offense. Therefore the court correctly instructed the jury that, under the testimony in the case, they should either find appellant guilty of the crime of rape as charged, or they should acquit him altogether.

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


author: Wood, J.-

text:
    Sullivan v. State.
    Opinion delivered September 27, 1926.
    I. _ Homicide — evidence—motive for killing, — In a prosecution for murder, testimony of deceased’s children that, about a week before the killing, their father told defendant that he was liable to get in trouble about having forged deceased’s name to a note, was relevant to prove the State’s theory that the defendant’s motive was fear -of prosecution for forgery. .
    2.. Homicide — motive for killing. — Where the purpose of evidence is to disclose a motive for the killing, the courts are very liberal in permitting its introduction, and anything and everything that might have influenced the prisoner to act may, as a rule, be shown.
    3. Criminal law — res gestae. — In a prosecution for murder, testimony that deceased told witness, when he started from home on the day that he was killed, that he was going to see defendant about a bill of lumber was competent as part of res -gestae.

    4. Witnesses — impeachment on cross-examination. — In a prosecution for murder, it was not error to permit defendant to be cross-examined as to how many men he had shot at, if he was permitted to explain the circumstances of the shooting.
    5. Homicide — instruction as to self-defense. — An instruction that, to justify homicide, it must appear that the circumstances were sufficient to excite the fear of a reasonable .person, acting without fault or carelessness, and that the party killing really acted on their influence and not in a spirit of revenge, held- correct, arid a requested modification that “it must appear that the circumstances were sufficient to -excite the fears of the defendant acting as a reasonable person” was properly refused.
    6: Homicide — self-defense.—Whether defendant acted as a reasonable man and without fault, or. carelessless must be determined by the jury from the facts and circumstances in the case from the viewpoint of the defendant, or as they might have appeared to the defendant.
    7. Homicide — self-defense—instruction.—An instruction that, if ,, defendant, armed with a deadly weapon, sought or brought on, or voluntarily entered into, a difficulty with deceased with felonious intent to take his life, he could not invoke the law of self-defense, no matter how imminent the peril in which he found himself placed, unless he abandoned or attempted to abandon the coriflict before the mortal shot was fired, held applicable to the facts proved - by the State.
    8. - Criminal law — repetition of instructions. — It -was not error to refuse a requested instruction which was covered by other instructions given.
    Appeal from Miller Circuit Court; . James, H. McCollum, Judge;
    affirmed.

      Pratt P. Bacon, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, f.or appellee.
   Wood, J.-

Appellant was convicted .in the .'Miller .Circuit Court ón an- indictment which correctly charged him with the crime of murder in- the first degree in the -killing of one John Gibson. He was found guilty- by the jury of the crime of murder in the first degree, and-his punishment fixed- at life imprisonment in the- State Penitentiary.

Prom a'judgment sentencing the appellant according to the verdict, he prosecutes this appeal.

The testimony of H. L. Burton, for the State, was substantially as follows:

The witness was with Gibson, the deceased, on December 25, -1925, from about 12 o’clock noon until he was killed. The witness met Gibson at his home. They went to Havana in witness’ car. Gibson- asked.the witness to’stop at Sullivan’s house, and-witness drove' by Sullivan’s house and stopped his car. Gibson got out of the car,' and went into the’ house. The witness' heard the.report of a.gun. The witness sat in the car, and saw Sullivan come out of the.south end of his house, which was the back part. The house faces the road- north. Sullivan met his wife, 20 or 30 steps-from the house, and said to her, “I killed him. I shot him through the heart. ’’ The witness then went in the house and found Gibson in the. room, .dead. He was leaning against the bed,.shot through the heart. His hands were down by his. .side. The witness’ car was about 50 steps from where -Sullivan met his wife. Sullivan did not have a gun when the witness saw him. The witness described the house where Sullivan and his family lived. The house faced the road, and there were two rooms 16x16, with a hall between: The killing occurred in Miller County, Arkansas.

Over the objection of appellant the court permitted Jasper, Eva, Addie and Effle Gibson, children, of- the deceased, to testify to remarks made by their father in a conversation with Sullivan on the 19th day of December, 1925, which is-as follows:

“Well, Mr. Sullivan, I want to see you about that feed bill you owe up there at Mr. John Simmons’ that I stood for. It’s about time it was being paid off. I owe a bill up there myself, and I would love for you-to see if you can’t dig me up some money on that. I thought I would drop down and see- if you could dig me up some money on that feed bill. - It’s about time it -was being paid; While I think about it, Willis jumped me about that note you forged my name on up there. You ought to -see something about- that. You áre liable to get in trouble about it. I'ain’t got nothing to do with it myself; that; is left up to you and Willis.”

The defendant duly excepted to the ruling of the court in admitting the above testimony.

Over the objection of appellant, the court permitted Jasper Gibson to testify that, on the day of the killing, his father went to appellant’s house to see him about some lumber. The witness stated that he knew this from what his father told him.

The appellant duly excepted to the ruling of the court.

The witness, Fred Brimmer, over the objection of appellant, was permittee! to testify that he was, at the home of John Gibson, the deceased, on the morning that he left for Havana, the day that he was killed. Gibson had started to Havana to see Sullivan, the appellant, about a bill of lumber. The witness was asked, “How do you know that?” and answered, “He told me.”

The appellant duly excepted to the ruling of the court in admitting this testimony.

Over the.objection of the appellant he was asked, on cross-examination, “How many different men have you shot or shot at? ” The court ruled that the appellant might answer the question, and that the jury might consider that “only in passing on this man’s credibility as a witness.”

The appellant duly excepted to the ruling of the court.

Over the objection of appellant the court, among other instructions, gave the following:

6. The bare fear óf those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fear of a reasonable person, acting without’ fault or carelessness on his part, and that the party killing really acted on their influence and not in a spirit of revenge.”

The appellant asked the court to amend the above instruction by adding the following: “It must appear that the circumstances were sufficient to excite the fears of the defendant, acting as a reasonable person.”

The appellant duly excepted to the ruling of the court in giving the instruction, and in refusing to add the qualification.

Over the objection of appellant the court gave the following instruction, to which'appellant duly excepted:

“11. If you believe from the evidence'in this casé, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought, or brought on or voluntarily entered into the difficulty with deceased, with felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in'which he found himself placed, unless he abandoned or attempted to abandon the conflict before the mortal shot was fired. ”

The .appellant’s prayer for instruction No.-14 is as follows:

“If you believe from the evidence that the defendant was in his home, and in good faith,, and as a reasonable man, believed that. deceased intended to kill him or do him some great bodily harm, and, while so in his home, deceased-came there and entered the house in a violent and threatening manner, thrust his hand into his pocket, and if defendant, as a reasonable man, believed that deceased intended £o kill him, or do him some great bodily harm, and, acting under, the influence of. such belief, defendant fired the fatal shot, the killing would be justifiable, in viewing the circumstances from defendant’s standpoint, if it appeared to him, as, a reasonably prudent man, acting without fault or carelessness, he believed that it was necessary to kill deceased in order to save his own life or prevent great bodily harm -beingr done him.” ' . .

The court refused his prayer, to which ruling the appellant duly excepted.

We will consider the above assignments of error in the order urged by-appellant’s counsel in their -brief.

It was not error to permit, the Gibson children to testify that, on the 19th of December, 1925, in a conversation between their father, the deceased, ánd appellant, -they heard their father use the language to the appellant as already set forth.

One of the witnesses for the defendant ‘testified that, just as Gibson came along in the car, the witness saw the defendant, Sullivan, come through his house with what looked like a shotgun in his hand.

One of the witnesses for the State testified that-Sullivan told the witness, on the morning before the killing occurred, that “they thought that they had him in their boat, but, before he would go to the penitentiary-over anything, he would kill the whole bunch.”

Another witness for the State testified that; on Christmas Eve night, Sullivan told the witness to tell John Gibson, the deceased, “to come down-to his house tomorrow, that he wanted to see him on.some particular business.” The witness further testified that he- went by John Gibsou ’s home that night and delivered the message.

It was the theory of the State that the motive of appellant in killing the deceased was because he feared he would be prosecuted for the crime of forgery, and, if so, the- deceased would be a material witness against him.

It appears from .the testimony of the witnesses just quoted, that this theory of the State was -.justified, .and therefore the testimony of the children of Gibson as to the conversation between him and the defendant, Sullivan, a few days before the killing as above detailed, was relevant to the issue. The appellant himself, on cross-examination, was asked the following question, “And you killed him because he came to .your house, did you, that night?” He answered, “I reckon I did. I told him not to come to my home. He came there. What else was I going to do — go off and leave her in the house?”

It was the contention of appellant, as shown' by his testimony, that he killed Gibson because he feared that illicit relations existed between him and appellant’s wife, and because he had told the deceased to stay away from his home, and because the deceased came to appéllant’s home and was making a demonstration at the time appellant shot him, as though he was going to draw a weapon from his pocket.

In Sneed v. State, 159 Ark. 65-74, 255 S. W. 895, we said: “While it is competent to prove the presence or absence of motive in determining the issue of guilt or innocence, and while such proof always is a cogent factor relative to that issue, yet, if the testimony be otherwise legally sufficient to prove guilt, a verdict of guilty cannot be set aside because of failure to prove a motive for the crime. ”

It will be observed that there was a sharp conflict between the appellant and the State as to the motive actuating appellant in the killing of Gibson. The testimony of Gibson’s children, as above detailed, was relevant testimony tending to prove that the motive of the appellant in the killing of Gibson was as contended by the State, and the court therefore did not err in admitting the same.

In 13 R. C. L., 910, § 214, it is correctly declared that: “Where, the purpose of evidence is to disclose a motive for the killing, the courts are very liberal in permitting its introduction, and anything and everything that might have influenced the prisoner to commit the act may, as a rule, be shown. ” Many cases are cited in the note to sustain the text.

See also 30 C. J. 179, § 406, and Stokes v. State, 71 Ark. 113, and at p. 117, 71 S. W. 248, where we quoted from Mr. Wills on Circumstantial Evidence as follows: “It is indispensable, in the investigation of imputed guilt, to look at all the surrounding circumstances which connect the actor with other persons and things, and may have operated as motives and influenced his actions.”

The testimony of Fred Brimmer to the effect that the deceased, Gibson, told him, when he started from his home on the day that he was killed, that he was going to Ravana to see Sullivan about a bill of lumber, was relevant testimony, and the court did not err in admitting the same under the doctrine announced by this court in Spivey and Lynch v. State, 114 Ark. 267-175-276, 169 S. W. 949.

In the above case, at p. 275, we cited cases holding “that statements of.one starting on a journey-as to-where he came from and where he was going, are. ordinarily admissible in evidence as a part of the res gestae;" and we said, on p. 276, under the cases relied upon by the Attorney General, “it was permissible-to prove the declarations of the deceased tó the effect that he was going to the home of the defendant, Lillie L. Lynch, to visit her. ”

In addition to the authorities cited in Spivey and Lynch v. State, supra, see State v. Pearce, 87 Kan. 457, 124 P. 814, 30 Ann. Cas. 1913E, p. 358, and numerous cases cited in note; Kilgore v. Stanley, 90 Ala. 523, 8 So. 130; and Harris v. State, 96 Ala. 24, 11 So. 255.

In Harris v. State, supra, it is held, quoting from', syllabus: “In a trial for homicide, declarations of the deceased, made just before he started to the place where he was 'killed, of his 'object in going there, are admissible as part of the res gestae.”

The court did not err in-permitting the prosecuting' attorney to ask the appellant, on cross-examination-, the following question: “How many different men have you shot at?” nor in permitting the appellant to answer the question.

In the recent case of Stanley v. State, ante, p. 536, the appellant was asked, on cross-examination, the following questions: “How many men did you shoot before that? Tell the jury how many men you shot before that.” Answer: “I have shot two men before this.” In'that case the májority of the court said:' “These questions were asked for the purpose of affecting the credibility of appellant, upon the theory that his testimony might, be discredited or impeached by specific acts committed by' him in the past which may have been crimes, but not necessarily s-o. This court has adopted the rule that witnesses, including the accused, may be impeached on cross-' examination by drawing out the fact that they have committed other crimes and immoralities of various kinds. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41: Shinn v. State, 150 Ark. 215, 234 S. W. 636; Bullen v. State, 156 Ark. 148, 245 S. W. 493; Lytle v. State, 163 Ark. 129, 259 S. W. 394. Although committed to this liberal rule for impeaching witnesses, including the accused, this court has said that the rule has its limitations, one being that the witness cannot be asked about a mere accusation or an indictment preferred against him for the purpose of attacking his credibility, because a mere accusation or indictment raises no legal presumption of guilt. Jordan v. State, 165 Ark. 502, 265 S. W. 71. We think the same reason should apply to questions touching specific acts of a witness which are not necessarily crimes. A homicide is not necessarily a crime. The.killing may have been an accident or entirely justifiable. The court erred in requiring appellant to answer the questions propounded by the prosecuting attorney relative to shooting other men prior to shooting the deceased. ”

In so holding we inadvertently, and without express mention, overruled the case of Turner v. State, 128 Ark. 565-568, where, upon a precisely similar, question, we said: “The next assignment of error is that the court erred in permitting the State to prove by defendant, on his cross-examination, that he had once killed another man in that county. The defendant objected to that testimony, but the court admitted it, with the privilege to the defendant of stating circumstances under which the former killing occurred, which he did, showing that-he was justified and that he had been acquitted. We think the testimony was competent as affecting* the credibility of the witness in his own behalf. ’ ’

Now, in the case of Stanley v. State, above, our attention was not drawn to the case of Turner v. State, supra. It was not our purpose, in the case of Stanley v. State, supra, to overrule, either expressly or by implication, the case of Turner v. State, supra. It is manifest that the two cases are in irreconcilable conflict. If we adhere to the holding in Stanley v. State, supra, then we necessarily, by implication, overrule the case of Turner v. State, supra. We therefore return to the doctrine announced in Turner v. State, supra, and expressly overrule the doctrine anounced in Stanley v. State, supra.

In the case at bar the appellant, after stating, in answer to the questions asked him on cross-examination, that he had shot at three different men, was permitted to give full explanation of the shots he had fired, and in doing so he fully exonerated himself.

The majority of the court, in the case of Stanley v. State, above, was of the opinion that it was improper to permit the defendant, on cross-examination, and for the purpose of testing his credibility, to be asked any questions the answer to which might not involve any moral turpitude on the part of the witness. But we are now convinced, upon a more careful consideration, that it is proper to ask the appellant, on cross-examination, for the purpose of testing his credibility, any questions the answer .to which may, or may not, connote a lack of moral character, and to allow the witness to answer such questions.

This holding we now believe to be in accord with Turner v. State, supra, and many previous decisions of this court, which we have today collated in the case of Whittaker v. State, ante, p. 762, just handed down. See the cases were cited.

It follows, as already stated,-that the court did not err in permitting the prosecuting attorney to ask, and the appellant to answer, the questions above set forth.

The court did not err in giving instruction No. 6, nor in refusing to modify the same as requested by the appellant. The instruction, without the modification, in legal effect was the same as it would have been if modified and given as requested by the appellant. The instruction as given was substantially in the language of the statute, and in conformity with the many previous decisions of this court.

As to whether or not the defendant has acted as a reasonable man, and without fault or carelessness on his part,-under the statute, must be determined by the jury from the facts and circumstances in the case, from the viewpoint of the defendant, or as they might have appeared to the defendant. Smith v. State, 59 Ark. 132, 26 S. W. 712; Magness v. State, 67 Ark. 594, 50 S. W. 554, 59 S. W. 529. The instruction, as we interpret it, was in accord with this view.

Instruction No. 11 given by the court was a correct interpretation of the law, and applicable to the facts which the testimony for the . State tended to prove.

It was not error to refuse appellant’s prayer for instruction No. 14, for the reason that the subject-matter of that instruction was fully and correctly covered b.y other instructions given by the court.

Since there is no'reversible error in the rulings of the court, the judgment is affirmed.


author: Hart, J.

text:
    Edwards v. State.
    Opinion delivered September 27, 1926.
    1. Criminal law — objection not raised below. — Objection that the name of a member of the grand jury was indorsed on an indictment for burglary as a State witness, and that he was cashier of the bank which was burglarized, cannot be raised for the first time on appeal by one who, being held to answer a criminal charge, was in the courtroom when the grand jury was impaneled and was afforded an opportunity to challenge any member of the panel.
    2. Burglary — indictment—intent to commit grand larceny.— An indictment which charged that defendant unlawfully and feloniously entered a bank with unlawful intent to commit grand larceny by stealing and carrying away the personal property of the bank held sufficient .without describing the particular goods which defendant intended to steal or alleging their value.
    3. Indictment and information — bill of particulars. — In a prosecution for burglary and grand larceny, refusal to require the prosecuting attorney to furnish defendant with a bill of particulars held not error.
    4. Continuance — absence of witnesses. — It was} not error to refuse a postponement of the trial for a few hours until some of defendant’s witnesses should arrive, where defendant announced ready for trial without such witnesses being present.

      5. Continuance — surprise.—Defendant was not'surprised, so as'to be entitled to- a continuance until some of his witnesses should arrive, by an accomplice testifying for the State and implicating him in the robbery, where the indictment served on defendant apprised him that the accomplice was jointly indicted with him, thereby putting him on notice that the accomplice might testify that .defendant was present and assisting in the burglary.
    6. Burglary — sufficiency of evidence. — Evidence held to sustain a conviction of the offenses of burglary and grand larceny.
    7. Criminal law — confession.-—-A voluntary statement of defendant, while incarcerated in jail, to his wife to- borrow móney because, when he got out, he would rob another bank and have plenty of money, made in presence of a deputy sheriff, held admissible as in the nature of a confession. . .
    8. Criminal law — proof of corporate existence. — In a prosecution for burglary and grand larceny from a bank, testimony of the cashier is admissible to prove the. existence of the corporation.
    Appeal from Hempstead Circuit Court; James. E. McCollum, Judge;
    affirmed.

      W. K. Oldham, Jr., for appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

Ray Edwards prosecutes this appeal to reverse the judgment of -conviction against him for the crime of burglary and grand larceny.

The first assignment of error is that the court erred in not sustaining the defendant’s motion to quash the indictment. The ground upon which this motion is predicated is that J. W. Butler, who was a member of the grand jury which indicted him, was indorsed on the indictment as a witness for the State, and was cashier of the bank which was charged to have been burglarized. The record shows that the defendant was in the 'courtroom when the grand .jury was impaneled, and was afforded an opportunity to challenge any member of the panel, but did not do so. Section 3005 of Crawford & Moses’ Digest provides, in effect, that every person held to answer a criminal charge may object to the competency of any one summoned as a grand juror for certain specified causes; and this court has held that, upon his failure to do so, lie cannot raise the objection upon appeal. Hudspeth v. State, 50 Ark. 534, 9 S. W. 1; Baker v. State, 58 Ark. 513, 25 S. W. 603; and Fox v. State, 122 Ark. 197, 182 S. W. 906.

It is next contended by counsel for the defendant that the court erred in overruling the demurrer to the indictment. Two counts are contained in the indictment — one for burglary, and the other for grand larceny. The count for burglary charges that the defendant unlawfully and feloniously did break and enter the house of the Washington State Bank, with the unlawful intent to commit a felony, namely, grand larceny, by stealing and carrying away the personal property of said bank. It is contended that the indictment is defective because it does not describe the particular goods which the defendant intended to steal nor allege their value. This court has expressly held that, in indictments for burglary with the intent to commit larceny, it is not necessary to specify the particular goods which the defendant intended to steal,.and said that such want of specification would not prevent a plea of former acquittal or conviction. Davis and Thomas v. State, 117 Ark. 296. For like reason, it is sufficient to allege that the defendant intended to commit grand larceny, which is a felony under our statute; and the indictment need not allege the value of the goods intended to be stolen.

It is next contended by counsel for the defendant that the trial court erred in not requiring the prosecuting attorney to furnish the defendant with a bill of particulars. There is no statutory provision requiring the prosecuting attorney to furnish the defendant with a bill of particulars, and such practice does not obtain in this State. Under our criminal code, the proceedings of the grand jury are required to be kept secret, but the minutes of the proceedings and the evidence kept by the grand jury may be delivered to the prosecuting attorney, but he is not required to disclose the same to the defendant.

.The next assignment of error is that the court :erred in refusing to postpone the trial for a few hours until some of the defendant’s witnesses arrived.- The- record shows that one of the parties engaged in the burglary was a witness for the State, and testified that'the bank was burglarized by himself, the defendant, and two other persons, acting together! The defendant interposed the defense .of an alibi. ' Joe Mayfield had testified for the State that he was wounded whiíe escaping after the bank robbery, and that the defendant had accompanied him to Little 'Bock and was present when he was treated by two physicians. The defendant claimed that he could prove by these physicians that he was not present on the occasion in question. The defendant claimed that he could also prove by the. other absent witness that he was iñ Port Smith, Arkansas, at the time of the burglary. The bank was entered on December 16, .1925, and the defendant was arrested.in a few days, charged with having committed the burglary." An indictment was returned against- him and Joe Mayfield, jointly, on the 8th day of April, 1926. The trial was commenced on the 14th day of April, 1926. The defendant announced ready for trial without the presence of the witnesses above named. If he intended to interpose the defense of an alibi,' he should not have announced ready for trial until his witr nesses to. establish such defense were . present. The defendant claims that he wás surprised at Joe Mayfield testifying for the State and implicating, him in the robbery. The indictment which was served upon the defendant informed him that Joe Mayfield was jointly indicted with him, and this put him upon notice that Joe Mayfield might testify that he was present and assisting in the burglary, if such was the fact. Under these, circumstances, the trial court did not err in refusing to postpone the trial of the case.

The next assignment of error is that the evidence is not legally sufficient to support the verdict. The jury returned a verdict of guilty on both counts.

’ ‘ J. W. Butler was a witness for the-State. According to- his testimony, the Washington State Bank was a banking corporation situated in Hempstead County, Arkansas, and he was the cashier of it.- The Washington State Bank was burglarized :on the 16th day of December, 1925, and $7,000 in money and about $3,000 worth of Liberty bonds were stolen.

\Joe Mayfield was also a-witness-for the State, and he testified that the defendant,, two other persons, and himself committed the burglary and - grand la.rceny charged in the indictment. He testified in detail,about .the commission of the crimes. It is earnestly insisted by counsel for the defendant that Joe Mayfield was an accomplice,-and that his,testimony.was not corroborated as required by the statute.

Robert Evans, constable for the township in. which .Hope, Hempstead. County, Arkansas, ,is situated, was also a-witness for the State. According to his testimony, he, saw the defendant and Joe Mayfield in Hope on the 15th day of December, 1925. This was on the day before the burglary, which occurred in th.e town of Washington, Hempstead County, Arkansas. The defendant and Mayfield, stayed around the railroad,station a, good deal that afternoon. The witness recognized the defendant as being -one.-of the parties he had seen in Hope, as soon •as he went to the jail after the defendant, had. been arrested for the bank robbery.

R. A- Carrigan, a deputy sheriff, of Hempstead County, was also a witness for the State. After the defendant had been arrested and placed in jail, charged with the burglary: of the Washington State Bank, his wife visited him in jail several times,. On .one occasion she told the defendant she was tired of coming to see him, because she was having to borrow money to make the trips! The defendant replied, “Just go ahead and borrow some more money. 'When I -get out' of here, I’ll rob another bank, and we will have plenty of money.” This statement of the defendant to his wife was voluntarily made in the presence and hearing of the deputy sheriff, and was in the nature of a confession. Sutton v. State, 162 Ark. 438, 258 S. W. 632.

The testimony of the deputy sheriff and of the constable tended to connect the defendant with the commission of the crime, and sufficiently corroborated the testimony of Joe Mayfield. Brewer v. State, 137 Ark. 243, 208 S. W. 290; Middleton v. State, 162 Ark. 530, 258 S. W. 995; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Stout v. State, 164 Ark. 553, 262 S. W. 649; Brooks and Gregory v. State, 169 Ark. 770, 276 S. W. 858; and Kelley v. State, 169 Ark. 289, 273 S. W. 11.

It is also insisted that the evidence is' ncit legally sufficient to support the, verdict because the-indictment alleges that the Washington State Bank is a banking corporation, and there is no testimony to establish that fact. J. W. Butler, who was cashier of, the Washington State .Bank, testified that ib was a banking corporation, and this court has held that parol evidence' is admissible to prove the existence of a- corporation. Sturdevant v. Ka-Deene Medicine Co., 169 Ark. 535, 275 S. W. 921; American Trust Co. v. Netherlands-American Bank, 169 Ark. 867, 276 S. W. 1010; and Kelley v. Stern Publishing and Novelty Co., 147 Ark. 383, 227 S. W. 609.

, . The court told the jury that Joe Mayfield was an accomplice of the defendant,, and gave the usual instructions .with regard to the corroboration of the testimony of an accomplice required by our statute, as repeatedly construed- ;by this court. The respective theories of the State and of the defendant were fully and fairly covered in the. instructions given by the court. ...

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


author: Smith, J.

text:
    Ketchum v. Vansickle.
    Opinion delivered September 27, 1926.
    Criminal .law — authority to suspend sentence. — Where .the circuit court without authority suspended the execution of a sentence for one year in the penitentiary, to which suspension the defendant consented, the court had authority, more than a year later, to direct that the suspended sentence he enforced.
    Appeal from Garland Chancery Court; Earl Witt, Special Chancellor;
    affirmed.

      Cobb -& Cobb, for appellant.

      H. W. Applegate, Attorney General, and DardenMoose, Assistant, for appellee.
   Smith, J.

On the 10th day of December, 1924, appellant entered a plea of guilty in the Garland Circuit Court to the crime of manufacturing whiskey, and the court entered a judgment sentencing him to a term of one year-in the penitentiary. After directing that appellant be remanded to the custody of the sheriff of the county, to be delivered to the keeper of the penitentiary, the judgment concluded with the following recital: “It is further considered, ordered and adjudged by the court that this judgment and sentence be suspended upon the condition that said defendant does not violate any of the prohibition or gambling laws, nor carry concealed weapons; he shall remain in some useful employment, and shall pay all the costs of this action.”

. On the 14th day of May, 1926, appellant was again brought before the Garland Circuit Court, and, in a proceeding then had, it adjudged that appellant had violated-the condition recited under which the sentence had been suspended, and the court revoked the suspension of the sentence and directed that appellant be confined iii the penitentiary in discharge of the original judgment, and appellant sought by habeas corpus to obtain his release, upon the alleged ground that the circuit court did not have the jurisdiction to make this order, for the reason that more than a year had expired since the original sentence was pronounced. The chancellor heard the petition for habeas corpus, and denied the relief prayed, and remanded appellant into the custody of the sheriff of Garland County, to be carried to and confined in the penitentiary, and we treat this appeal as a proceeding by certiorari to review these orders of court.

As' appears from what we have said, the chief insistence is that the circuit court had no jurisdiction to revoke the suspension of the sentence after the expiration of the year from the time of the rendition of the original judgment sentencing appellant to one year’s imprisonment.

Appellant says the proceeding wherein the sentence was pronounced, from which he has appealed, was- not had under act 76 of the Acts of 1923 (General Acts 1923, pages 40 et seq.). Section 1 of this act gives the circuit judges, when it is deemed best for a defendant who has pleaded guilty or been convicted, and not harmful to society, the right “to postpone the pronouncement of final sentence,” upon such conditions as shall be deemed proper; and § 2 of the act confers the authority upon a circuit judge, at any time the court may be in sessiqn, “to revoke the suspension and postponement” of sentence authorized by § 1 of the act, whenever that course shall be deemed for the best interest of society and such convicted prisoner.

We think counsel is correct in saying that the proceeding was not had pursuant to the provisions of this act, for the reason that the sentence was not postponed. Sentence was pronounced and a final judgment rendered, after which the pronounced sentence and judgment was suspended.

The original sentence was a suspended sentence, and, this being true, the case of Davis v. State, 169 Ark. 932, affords full authority for the action taken by the circuit judge in directing that the sentence be executed. In this case, as in that, the postponement of the imprisonment was done with the consent of the accused, and it may be said here, as it was said there, that the accused cannot object to being called upon to serve the sentence. It was there further said: “It does not make any difference that more than a year has elapsed since the sentence of one year’s imprisonment in the penitentiary was imposed. While at large under the void orders of the circuit court, to which he assented, the defendant was in the same situation that he would have been had he escaped from custody. A sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by actual suffering of the imprisonment imposed by it. The reason is that the time at which a sentence shall be "carried into, execution is not provided by statute and forms ho part of the judgment of the court. Massey v. Cunningham, ante, 410.”

Appellant also insists that He is entitled to -his discharge under the authority of the case of Williams' v. Breñt, ante, p. 367.

That case, however, has ho application here. The facts in that case were that Brents had been sentenced ' to three years ih the penitentiary, and, by due process- of law, was committed as a prisoner in the Státe Penitentiary to serve said sentence, and thereafter, by 'a series of commutations, which had been termed- furloughs, 'respites were granted by the Governor for periods of lime sufficient to cover the entire sentence, .and we held, in effect, that, by these commutations of sentence, Brents’ term of imprisonment had been expiated.. In the instant case there was no attempt to commute any' portion of appellant’s term of imprisonment. Indeed, the circuit judge possesses nó such authority^ and'the case presented is'that'of the right of a circuit judge to' direct that a suspended sentence be served by the person against whom it ' wás pronounced.

As we have seen, the Davis case confers authority upon the circuit judge to so direct, and the certiorari will therefore be quashed and the judgment affirmed.


text:
    Hall v. State.
    Opinion delivered September 27, 1926.
    1. Automobiles — serial number of tire — mutilation.—rln a prosecution for possessing an automobile tire, on which the. serial i numbers had been mutilated, under Crawford & Moses’ Digest, § 7437, it was not error to instruct that, if defendant kept such tire in his possession after he knew that the serial number had ' been mutilated,- he would be guilty.
    2. Criminal law — comparison of handwriting. — Where defendant admitted that .he had signed a writing before the grand jury, the > - court properly allowed it to be introduced for purpose of comparison with an unsigned writing of incriminating character claimed to be in defendant’s handwriting.
    .Appeal from Miller Circuit .Court; James H. ■McCollum, Judge.;
    affirmed.

      Pratt P. Bacon, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

J. T. Hall prosecutes; this appeal to reverse a. judgment of conviction against.him for the crime of possessing an automobile tire upon, which the numbers had been mutilated.

It is .insisted by counsel for- the defendant that the : court erred- in instructing the jury that, if the defendant kept the automobile tire in his possession .after-he knew that the serial number had been mutilated so that.it could not be read, he would be guilty. The indictment was returned under § 7437. of Crawford & Moses’ Digest, which reads as follows: “It shall be unlawful for any person, firm or corporation to have in its.possession an automobile, automobile tires or gasoline engine, the motor and serial number of.-which- .have been mutilated to the extent that same cannot be read.. Where any automobile, automobile tires, or gasoline engine has been stolen and recovered, and serial numbers found mutilated, the court where such case may be tried shall have power ta authorize the rightful owner of such automobile tires or* accessories to continue the use of same. The court shall also direct that the owner of such car have the original serial numbers restenciled on the engine or motor car. ’ ’

The section of the statute in question was passed in exercise of the police power of the State for the protection of the public. In People v. Fernow, 286 Ill. 627, 122 N. E. 155, the Supreme Court of Illinois, in giving the reason for the passage of acts of this sort, said“The purpose of the act is to prevent the defacing, covering, or destruction of the manufacturer’s serial number or distinguishing mark, so as to preserve the identity of motor vehicles and thereby protect the public against violations of law. The motor vehicle has become the most common and efficient agency f.or the commission of crime and the chief instrumentality employed by criminals to avoid detection and escape punishment, and one of the methods employed is to destroy the evidence of identity. Motor vehicles have also become very frequent subjects of larceny, and the removal or change of the serial number is a convenient method for preventing identification and recovery. One committing a crime, even the most serious, and escaping in an automobile, would be more difficult of apprehension if the serial number or identification mark should be removed. The section is a legitimate and proper exercise of the police power. ’ ’

It was also pointed out in the opinion that, where a specific intent is not an element, of a crime, it is not always necessary that a criminal intent should exist. In discussing this phase of the case, the court said: “In the exercise of the police power for the protection of the public, the performance of a specific act may constitute the crime, regardless of either knowledge or intent, both of which are immaterial on the question of guilt. For the effective protection of the public, the burden is placed upon the individual of ascertaining at his peril whether his act is prohibited by criminal statute. The law in that regard has most frequently arisen in police regulations of the liquor traffic, but it has been applied in precisely the same way in other cases coming within the same rule and reason, such as a sale of imitation' butter, a sale of milk below a prescribed quality, tbe obstruction of a public highway by a railroad corporation for longer than a specified time, the admission of a minor to a pool-room, driving an unregistered automobile, killing for sale an animal under a designated age, carriage by an express company for transportation beyond the State line of fish or game, and in prosecutions for bigamy. ’ ’ Several decisions are cited, and the case has been followed in this court in Ogburn v. State, 168 Ark. 396, 270 S. W. 945. Hence we hold this assignment of error not to be well taken.

The next assignment of error relates to the admission of evidence. The defendant testified as a witness in his own behalf, and said that he bought the.casings in question from a young man who was not known to Mm, and that he paid ten dollars for them. A note was found in a bottle upon a house-roof, fifteen or sixteen feet from the cell in the jail where the defendant was confined after being arrested. The note was not signed, .and reads as follows: “'Say Gordon if King or any of them ask you about them casings tell them you don’t no who the man was and tell Red to do the same, for they said they aimed to make him make a sworn statement about it. Tell Mm to stay away from them if he man. If you all don’t do that it will sure mess me up, for we have done, told the court that we didn’t no who the other man was.”

. The defendant was a witness in his own behalf, and, over the objection of his counsel, the prosecuting attomey was allowed to ask the defendant, on cross-examination, if he had not signed, as’ his testimony before the grand jury, the following: “I bought these casings from a man claiming to live near New Boston. Red Henderson, Verme Norton, J. T. Hall.” The defendant admitted that he had signed the writing, and the court allowed it to be introduced in evidence for the purpose of comparing it with the unsigned letter copied above, which the prosecuting attorney claimed was in the defendant’s handwriting. It is claimed by counsel for the defendant that the signature to his testimony before the grand jury was not a paper in the case, and that a comparison with a writing- not already in the case, bnt which is proved for the purpose of such comparison is not admissible, under Miller v. Jones, 32 Ark. 337.

In this, connection it may be stated that, by the act of 'Congress-approved February 26,1913, it was provided that, in any proceeding before a court or judicial officer of the United States, where the genuineness of the handwriting of any person may be involved, any admitted or pro.ved handwriting of such person shall be competent .evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceedings, to prove or to disprove such genuineness.

.Our more recent decisions have followed this rule without any statute on the subject, and any admitted or proved handwriting of the person, the g-enuineness of whose handwriting is involved, is now made competent as a basis for comparison. Caldwell v. State, 69 Ark. 322, and Walker v. State, ante, p. 375.

The general rule in'the United States has always been that, where there are other writings, admitted to be genuine- or already in evidence for other purposes in the case, comparison may be made between such writings and the instrument in question.' If such a comparison is conducive to the ends of truth and is allowable, there wordd seem to be but little reason for' refusing to allow a comparison with other writings admitted to be genuine,' although not in evidence' for other purposes. Morrison v. Porter, 35 Minn. 425, 29 N. W. 54.

Whatever may be’ the rule elsewhere, it is now the practice in this State to give in evidence other signatures- of the same person, admitted or proved to be genuine, to writings not otherwise competent evidence in'the case, to enable the court or jury, by an examination and comparison of the genuine writings with the one which is controverted, to form an opinion whether the latter be or be not genuine.

The defendant was a witness in his own behalf, and, upon cross-examination, denied writing the unsigned paper copied above. The admission of writings for the purpose of comparison is tbe same in criminal as in civil cases, and, where a defendant, who has taken the stand in his own behalf, denied writing the paper which is offered in evidence against him, he may be called upon, on cross-examination, to write in open court, in order that the jury may compare such writing with the writing controverted. Wharton’s Crim. Ev. (10th ed.) § 550; 3 Jones’ Com. on Ev., § 550 (563); Bradford v. People, 22 Col. 157, 43 Pac. 1013; and State v. David (Mo.), 33 S. W. 28.

No other assignments of error are relied upon for reversal of the judgment, and the judgment will therefore be affirmed.