author: Smith, J.

text:
    Garrett v. State.
    Opinion delivered May 31, 1926.
    1. Homicide — self-defense—jury question. — Testimony held to make a question for the jury whether a killing was done in self-defense.
    2. Homicide — manslaughter—sufficiency of evidence. — Evidence in a murder case held sufficient to support a conviction for involuntary manslaughter.
    S.Homicide — instruction as to self-defense. — Though defendant’s evidence that he shot in necessary self-defense was uncontradicted, it was nevertheless proper to instruct that the mere fear by defendant that deceased might attack him would afford no justification to the shooting of deceased if at the time deceased was making no hostile demonstration toward defendant.
    4. Criminal law — instruction invading jury’s province. — An instruction in a murder case that if there are two equally reasonable views of the evidence, one of which leads to the conclusion of guilt and the other to the. conclusion of innocence, the latter conclusion should be adopted, held properly refused, as instructing on the inferences to be drawn from the evidence, and because the jury must not only ascertain the reasonableness of the testimony but also its truth.
    5. Homicide — instruction as to self-defense. — In a prosecution for murder, a requested instruction to acquit if there is a reasonable doubt whether defendant honestly believed that he was in danger of losing his life or receiving great bodily harm from the assault then being made upon him, held properly refused as assuming that an assault was then being made' upon him.
    6. Homicide — instruction as to self-defense. — An instruction that, in determining whether defendant shot deceased in self-defense, the jury should place themselves in the position of defendant at the time of shooting, and that defendant should not be held to the same deliberate care in ascertaining the danger and force necessary to repel it as would be used by a person in afterwards viewing the situation, held correct.
    7. Homicide — instruction as to self-defense — modification.—A-requested instruction that a person attacked by another who manifestly intends to take his life or do him great bodily harm, he may pursue his adversary until he has secured himself from all damages, and, if he kills him in so doing, it is justifiable self-defense, held properly modified to give the person attacked the right to stand his. ground and repel force with force, as the right to pursue the adversary is given only where the adversary is apparently withdrawing merely for the purpose of seeking a better position to renew the combat.
    8. Criminal law — admissibility op photographs. — Introduction of photographs of deceased after he was shot by defendant, accurately taken and clearly indicating the number and location of his wounds, though not necessary, was not prejudicial where they were not of a character to inflame the passions of the jury.
    9. Criminal law — admonition to jury. — Where a jury, in a prosecution for murder, informed the judge twice that they could not agree, sending them back with the admonition that it was their duty to use every reasonable effort to return a verdict, held not an abuse of discretion.
    Appeal from Bradley Circuit Court; Turner Butter, Judge;
    affirmed.

      Wilson S Martin, for appellant.

      II. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was indicted for the crime of murder in the first degree, alleged to have been committed by shooting and killing one Henry Y. Browne, and, upon his trial, was convicted of involuntary manslaughter and given a sentence of one year in the penitentiary.

It is insisted that the verdict is contrary to the undisputed evidence, and that there was no testimony warranting the submission of the question of involuntary manslaughter.

Upon the question of the sufficiency of the testimony to support the verdict returned, it may be said that the following is a brief summary of the testimony: The deceased operated a ferry at Moro Bay, and appellant, who was a fisherman, had a fish-dock near the ferry, from which he loaded his fish to carry them to market. Deceased objected to appellant keeping his fish-dock near’ the ferry, and the men had quarreled about the matter. Deceased habitually went armed, and, on the morning when he was killed, was armed with a 45-caliber pistol. Appellant and two companions were at the fish-dock early in the morning on the day the killing occurred, and deceased, having heard them, went down to the ferry. When he came to the ferry, he inquired if any one wanted to be ferried across the bay, and when the men who were there answered they did not, he told them to get away from the ferry. Appellant, who was armed with a shotgun, inquired if deceased owned the road. Deceased then told appellant that he would give him a minute to get away, and that if he did not leave he would kill him. Appellant testified that, when deceased made this remark, he reached into his automobile, which was standing in the road, and got his gun, and when he did so he said to deceased, “Damn you, drop it,” referring to the pistol which deceased had in his hand. He saw deceased raise the pistol as if he were going to rest it on his arm to improve his aim, when he fired, and the deceased- fell.

The two eye-witnesses besides -appellant himself were his friends and associates in the fishing business, and their testimony substantially corroborated that of appellant. The truth of their testimony was, of course, a question of fact for the jury. Appellant was armed with a shotgun with which he killed deceased, and, upon the whole case, we think the question was presented whether the accused was justified or excused in committing the homicide (§ 2342, C. & M. Digest), and we have concluded that the testimony was legally sufficient to support the verdict returned.

It is insisted for the reversal of the judgment of the court below that the court erred in giving and in refusing to give certain instructions; that error was com-' mitted in admitting certain testimony; and that the court erred in keeping the. jury together for such length of time as to practically coerce the jury to return a verdict.

Exceptions were saved to nineteen of the instructions given by the court, but we will discuss only certain objections of a specific character, as the law of the case was declared in a general way under instructions which have often been approved by this court.

An instruction numbered 8 declared the law to be that “the mere fear on the part of appellant that the deceased might attack him would afford no justification to appellant to shoot deceased if deceased at the time was making no demonstration of a hostile nature towards or against the defendant and was making no attempt to inflict upon him any great bodily harm, ’ ’ the objection being that there was no testimony from which the jury could have found that deceased was not making a demonstration of a hostile nature; and a similar objection was made to an instruction numbered 14, which told the -.jury that appellant would have had no right to fire the fatal shot if he had no reasonable apprehension of immediate and impending injury to himself.

It is not questioned that these instructions are correct declarations of law; the insistence is that there was no testimony upon which to base them, as the undisputed testimony shows the fatal shot was fired in appellant’s necessary self-defense. As we have said, the jury had the right to consider and determine the truth of the testimony offered by appellant and his associates, and we do not think the testimony and the inference legally deducible therefrom are so undisputed that there was no question for the jury, and there was therefore no error in giving instructions 8 and 14.

Appellant requested an instruction numbered 2, reading as follows: “You are instructed that the jury would not be warranted in indulging in any suppositions that would lead to the conclusion of the defendant’s guilt; it would not be sufficient if there were grave suspicions or strong probabilities that he might be guilty; moreover, it would not be sufficient if the evidence in the case should strongly preponderate against the defendant and tend to show his guilt; but the evidence must be of such a nature and so conclusive as to impress upon the minds of the jury the fact that he is guilty and beyond a reasonable doubt.; (and if there are two equally reasonable views- of the evidence which can be adopted, one of which leads to the conclusion of guilt and one of which leads to the conclusion of innocence, it is the duty of the jury to adopt that view of the evidence that leads to the conclusion of innocence and acquit him); and (or) if there should arise in the minds of the jury on the whole case, a reasonable doubt as to whether the defendant be guilty or innocent, the jury should give him the benefit of the doubt, and acquit him.”

The court struck out the sentence inclosed in the-parentheses, beginning with the word “and” and concluding with the word “him,” and struck out the word “or” included in the parentheses and inserted in lieu thereof the word “and.” Exceptions were saved to the modification of the instruction.

We think no error was committed in thus modifying the instruction. The instruction as given was a correct declaration of the law. It is not proper for the court to tell the jury what inferences should be drawn or deduced from the testimony, as this is the province of the jury. The portion of the instruction which was stricken out was calculated to mislead the jury. The jury might find that a certain view of the testimony was reasonable, but was not -true. The duty of the jury is to ascertain, not merely whether certain testimony is reasonable, but whether it is true. The jury should determine what the facts are — what the truth is — and the facts thus found should be the basis of the verdict. If the jury were unable to say that the testimony established beyond a reasonable doubt the truth of certain facts which were essential to support the finding of guilty, the defendant would be entitled to an acquittal, but, if this finding were made, then a verdict of guilty should be returned. The instruction as given conformed to this statement of the' law, and was correct.

In the case of Cooper v. State, 145 Ark. 403, the accused requested an instruction which, if given, would have told the .jury that, if there were two reasonable constructions which might be placed on the testimony, one tending to establish the defendant’s guilt and the other his innocence, the jury should adopt the construction tending to establish innocence. This instruction was refused, and we held that no error was committed in doing so, for the reason, as was there said, that the question was which witnesses should be believed, and, as the court had given appropriate instructions on weighing-testimony, -and also on the question of- reasonable doubt, the instruction was properly refused. See also Cummins v. State, 163 Ark. 24; Baker v. State, 135 Ark. 404.

' Appellant requested an instruction numbered 6, which reads as follows: “The jury are instructed that, in passing upon the question of whether the defendant, at the time of firing the shot that killed the deceased, acted in self-defense, as defined by other instructions given by the court, it is your duty to place yourselve's as nearly as possible in the position of the defendant at the time of the shooting, taking- into" consideration all the facts and circumstances that then and there surrounded the defendant, and, when so considered, if there arises a reasonable doubt in your minds as to whether the defendant honestly believed, without fault or carelessness on his part, that he was then in danger of losing his life, or of receiving- great bodily harm at the hands of deceased from the assault then being made upon him, then in that event you will find the defendant not guilty. ’ ’ •

The court refused to give the instruction as requested, and appellant saved exception to that action.

- The court then modified the instruction and gave it as modified. The modified 'instruction reads as f ollows:

“The jury are instructed that, in passing- upon the question of whether the defendant, at the time of firing the shot that killed the deceased, acted in self-defense, as defined by other instructions given by the court, it is your duty to place yourselves as nearly as possible in the position of the defendant at the time of the shooting, taking- into consideration all the facts and circumstances that then and there surrounded the defendant, taking into consideration the excitement and confusion surrounding the' situation, and the defendant should not be held to the same deliberate care in ascertaining the danger and the force necessary to repel it as would be used by a person in afterward viewing the situation from a place of safety uninfluenced by excitement or danger.”

The instruction as given declared the law correctly, and' was as favorable to appellant as he had the right to ask it to be. Besides, the instruction as requested was erroneous, in that it appears to assume as a fact that an assault was being made upon appellant when he fired the fatal shot.

Appellant requested an instruction numbered 8, which reads as follows: “The court instructs the jury that, when a person is attacked by another who manifestly intends to take his life, or to do him great bodily harm, the person attacked is not obliged to retire, but may pursue his adversary until he has secured himself from all danger, and, if he kills him in so doing, it is justifiable self-defense.”

The court refused to give the instruction- as requested, but modified it so that it read as follows: ‘ ‘ The court instructs the jury that, when one person is attacked by another who manifestly intends to take his life, or to do him great bodily harm, the person attacked is not obliged to retire, but may stand his ground and repel force with force, and, if he kill him, his adversary, in so doing it is justifiable self-defense.”

As thus modified the instruction was given, and appellant excepted both to the refusal of the court to give the instruction as requested and to the action of the court in giving it as modified.'

In the case of Carpenter v. State, 62 Ark. 286, the court considered thoroughly the right of one who was murderously assaulted to slay his adversary. There was a review of the statute declaring this right and of the common law -of which the statute was declaratory, and it would serve no useful purpose to review a subject which was there so well considered. In that case Mr. Justice Battle said: “But the rule is different where a man is assaulted with a' murderous intent. He is then under no obligation to retreat, but may stand his ground, and, if need be, kill his adversary.”

In that case Mr. Justice Battle quoted from East’s Pleas of the Crown, page 271, the statement that o.ne who has been murderously assaulted “is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing it is called justifiable self-defense; as, on the other hand, the killing by such felon of any person so lawfully defending himself will be murder. ’ ’

The circumstances under which one may pursue an adversary are explained in the case of McDonald v. State, 104 Ark. 317, in which case it was said that, where a person makes a violent and felonious assault on another, the latter, if free from fault, need not retreat, but may stand his ground, and may even pursue his assailant if the appellant is apparently withdrawing merely for the purpose- of seeking a better position to renew the combat.

The original instruction numbered 8 took no account of the question whether deceased was retreating in order to renew the combat more advantageously; indeed, the testimony presents no such issue, and the instruction was therefore properly modified to conform to the issues presented by the testimony, and, as modified, it correctly declared the law.

Other instructions were asked which were refused, but it may be said that, in so far as the refused instructions correctly declared the law, they were covered by other instructions which were given.

The court permitted the introduction of certain photographs taken of the body of deceased after he had been killed, which showed the character and number of gunshot wounds on the body. The undisputed testimony showed that appellant shot the deceased with a shotgun, loaded with squirrel shot, and,- as the shooting occurred at close range, many of the shot found lodgment in deceased’s body.

In the case of Sellers v. State, 91 Ark. 175, the court, quoting from 1 Wigmore on Evidence, §§ 790-792, said that, “as a general rule, photographs are admissible in evidénce when they are shown to have been accurately taken and to be correct representations of the subject in controversy, and are of such a nature as to throw light upon, it,” and it was further said that “photographs- are admissible as primary evidence upon the samé grounds and for the same purposes as diagrams, maps and plats.”

But it does not appear that there was any necessity for the introduction of the photographs in question, as there was nothing about the location or character of the wounds which was difficult' to understand or which the photographs tended to elucidate. We think, however, there was no prejudicial error in admitting them in evidence, for they were shown to have been accurately taken and to have correctly indicated the number and location of the wounds. There was nothing about the photographs of a nature so gruesome as to inflame the passions of the jury, this being shown by the fact that appellant was convicted of ' the lowest degree of homicide. Besides, no proper objection appears to have been made to the introduction of the photographs.

It is finally insisted that the jury was kept together for such a length of time, and under such circumstances, after it had been announced to- the court that they were unable- to agree, as to coerce the verdict which was returned. We do not think this assignment of error is well taken. It is recited in the transcript that the case was given to the .jury on the night of the 13th of January, and that “the jury retired to consider further of their verdict, and after awhile returned into court.” The judge inquired if the jury had arrived at a verdict, and the foreman answered that “We are unable to reach a verdict, judge.” Thereupon the court adjourned until the following morning, and upon reconvening the court gave to the jury the following instruction: “Gentlemen of the jury, I would not have any body on that jury to violate his conscience, but some jury must decide this case, and you are just as good men as there are in Bradley County. The majority ought to listen carefully to the minority to see if perchance they might not be right, and the minority ought to listen carefully to the majority to see if perchance they are not right. Now, gentlemen, you have had a good night’s sleep, and your minds are in better condition than they were last night when I sent you out, and I hope yon will he able to return & verdict in a short time. Yon may retire now to consider of your verdict, under the charge of the sheriff. ’ ’

Later in the morning the.jury again returned into» court and reported that they had been unable to arrive; at a verdict, whereupon the court further charged the jury as follows: “I hate though, gentlemen, in a case of 'this gravity, I hate to discharge the jury without giving them every reasonable chance for them to agree. I have seen cases where the jury appeared to be hopelessly divided and yet, after awhile, they would come in and bring a verdict, and a verdict that seemed to satisfy them alb We have spoiled the day any way, and I feel like I ought to give you another opportunity, I .just hate to discharge you until I have done that. I am g’oing* to say to you that I will excuse you until one o’clock, and then I will hold you a reasonable time this afternoon to see if you £an’t get together. Now, gentlemen, remember the admonition that I gave you when I first allowed you to separate; don’t talk about this case to each other or suffer any one to speak of it in your presence or hearing. There is only one lawful way that you can discuss this case, and that is in your jury room and when you are all in there together; so, gentlemen, remember that, and return at one o’clock. I will excuse you now until one o ’clock. ’ ’ The verdict was returned about 3 o ’clock that afternoon.

We do not think there was anything in the language quoted which indicated any intention on the part of the court to keep the jury together until a verdict had been returned. In fact, we think the contrary appears. We have held that it is within the province of the trial judge to admonish the jurors as to their duty to make every reasonable effort to agree upon a verdict, and we think no abuse of the discretion of the court was shown in this respect, Evans v. State, 165 Ark. 424; Benson v. State, 149 Ark. 633; Murchison v. State, 153 Ark. 300; Franklin v. State, 153 Ark. 536; Outler v. State, 154 Ark. 598.

Upon a consideration. of the whole case we find no prejudicial error, and the judgment of the court below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Black v. State.
    Opinion delivered May 31, 1926.
    1. Homicide — self-defense—instruction as to burden of proof.— In a prosecution for murder, where the killing by defendant was admitted, a charge to the jury that the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, “unless the proof on the part of the State shows that the offense committed only amounted to manslaughter,” was defective in omitting the further qualification, “or that the accused was justified or excused in committing the homicide,” contained in Crawford & Moses’ Dig., § 2342.
    2. Homicide — instructions as to self-defense. — In a murder case where the court instructed that, when the killing is proved, the burden of showing justification is on the defendant unless the State’s proof shows that the killing was manslaughter, the error of omitting to state the other qualification as to self-defense was not prejudicial where other instructions covered the doctrine of self-defense and the verdict was merely voluntary manslaughter.
    3. Criminal law — repetition of instructions. — It was not error to refuse instructions covered by others given by the court.
    4. Criminal law — instruction—presumption of innocence. — An instruction that the presumption of innocence attends the accused throughout the trial until overcome by evidence establishing his guilt beyond a reasonable doubt held not erroneous.
    5. Homicide — instructions as to involuntary manslaughter.— Where, in a murder case, the defense was based upon the theory that accused was defending himself against a murderous assault, •and proper instructions were given as to the law of self-defense, it was not error to refuse to give an instruction as to involuntary manslaughter, as the jury would have acquitted him, had they believed his testimony, instead of convicting him of voluntary manslaughter.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Botts & 0’Daniel, for appellant.

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

Appellant was tried under an indictment which charged him with the crime of murder in the first degree, alleged to have been committed by slashing, stabbing, striking and cutting one Frank Jenkins with a knife. He was found guilty of voluntary manslaughter and given a sentence of two years in the penitentiary.

It is insisted for the reversal of the judgment of the court below that the undisputed testimony shows that appellant killed the deceased in necessary self-defense, and it may be said that the testimony of the persons present when the killing occurred and who saw the killing does tend strongly to show that the killing was done in self-defense, but there were contradictions in the testimony of these witnesses which warranted the jury in disregarding much of it.

The testimony on the part of the State showed the killing of deceased by appellant and the condition of deceased’s body after he was killed. There were knife wounds in deceased’s neck, breast, right leg, three in the back, two in the neck, and knife cuts inside of both hands, and a bruise on the left side of the head, which indicated that deceased had been hit with a club of some kind. A doctor who examined the body testified that at least two of the wounds were mortal. Other testimony on the part of the State would -indicate that both appellant and deceased and the other persons present were all more or less intoxicated when the killing occurred.

On the part of appellant testimony to the following effect was offered: Jenkins, the deceased, had been drinking, and became .angry with appellant, and said he was going to kill appellant, who was a much smaller man than Jenkins. Jenkins picked up a piece of post and struck appellant with it, and ran appellant under a ladder which was leaning against a house near which the parties were standing when the quarrel began. When appellant ran under the ladder, Jenkins threw down the post and picked np a piece of 1 x 4 slab, 'which was of .oak, and ran around the ladder after appellant, and then turned and ran the other way, and grabbed appellant’s right hand and pulled him from under the ladder, and struck him with the slab, and knocked appellant to his knees, whereupon appellant opened his knife with his teeth and commenced cutting Jenkins, and continued cutting him until he fell.

The court gave, over appellant’s objection, instruction numbered 2, which reads as follows:

“The killing being proved, the burden of proving justification or excusable homicide shall devolve upon the accused, unless the proof upon the part of the State shows that the killing only amounted to manslaughter. If the evidence shows that the killing only amounted to manslaughter, which I will more fully explain to you later on, then the burden continues upon the State during the entire investigation, but, if the evidence shows that the killing was unlawful, willful, and done with malice on the part of the party doing the killing, then the burden shifts from the State to the defendant, and the burden is upon him to show that it was done justifiably or excusably.
“The killing being proved and'done with a deadly or dangerous weapon, the law implies malice, and the State is not required to establish the crime of murder-in the second degree. If the killing was unlawful and done with malice, then there can be no conviction in this case for less than murder in the second degree.
“Malice shall be implied when no considerable provocation appears, or when all of the circumstances of the killing imply an abandoned and wicked disposition upon the part of the slayer. Express malice is that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
“I have previously told you that manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation. Manslaughter must be voluntary upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible.
“The killing of a human being in the heat of passion by or with a deadly or dangerous weapon in auy case except where, the killing is herein declared to be excusable or justifiable, shall be adjudged manslaughter.”

It is very earnestly insisted that this instruction was erroneous and prejudicial in that it placed upon appellant the burden of proving his innocence, inasmuch as it was admitted that appellant had-killed the deceased. The case of Cogburn v. State, 76 Ark. 110, is cited in support of this insistence.

■ Section 2342, C. & M. Digest, reads as follows: ‘ ‘The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on-the part of the prosecution, .it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”

Cogburn v. State, supra, is one of the first cases to construe this section of the statute. Mr. Justice Riddick, speaking for the court, there said that it was a rule of law to be applied when the’killing had been proved and there is nothing shown to justify or excuse said act, as in such case it may well be presumed that there was no justification or the accused would have shown it. But it was there also pointed out that, while the burden of showing circumstances that mitigate or excuse the killing devolves upon defendant, if there is nothing in the evidence on the part of the -State which tends to mitigate, justify or excuse it, still the burden on the whole case is on the State, and where evidence is introduced, either on the part of the State or that of the accused, which tends to justify or excuse the killing, the jury must acquit if, -upon the whole case, they had a reasonable doubt as to the accused’s guilt.

In giving* the instruction numbered 2 the court n-o doubt had in mind the statute quoted above, and, after telling the jury that the burden of proving mitigating circumstances was on the defendant, unless, by the proof on the part of the prosecution, it was manifest that the offense committed amounted only to manslaughter, omitted to add the additional qualification found in the statute, “or that the accused was justified or excused in committing the homicide. ’ ’

The court should have given the entire section after giving a part of it; but we think no prejudicial error was committed in giving the instruction as set out above, for the following reasons:

(a).' The instruction as given did contain the qualification that the burden of proving mitigating •circumstances was not on the defendant when the proof on the part of the State showed that the killing amounted only to manslaughter, and this is the offense of which appellant was convicted, and he was given the lowest sentence fixed by law .as punishment for that crime — that of two years in the penitentiary — so that the jury must have applied the exception found in the. statute and in the charge of the court in fixing appellant’s punishment.

('b). Another reason for holding the instruction, was not prejudicial is that, in other instructions, the court correctly declared the law upon the subject of the burden of proof. The jury was told that all the instructions should be read together, and in other instructions the jury was fully charged that if, upon a consideration of all the testimony in the case, there was a reasonable doubt of the guilt of the accused, he should be acquitted.

In the case of Williams v. State, 149 Ark. 601, the court gave § 2342, C. & M. Digest, as an instruction in the case, but, after doing so, the jury was instructed to acquit the accused “if the circumstances of mitigation or justification are such as would raise in your minds a reasonable doubt as to the defendant’s guilt.” After calling attention to the instruction containing this decíaration, it was said that the instructions, when read together, did not conflict, but conformed to the law as announced in the Cogburn case and the later cases there cited.

So here, when all the instructions are read together, we do not think the instruction is open to the objection that it permitted the jury to convict appellant without finding beyond a reasonable doubt. that he was guilty of some degree of homicide. Only a general objection was made to the instruction, and we think, in view of all the instructions given in the case, that a specific objection should have been made, if counsel thought at the time that the instruction relieved the State of the burden of showing beyond a reasonable doubt that appellant was guilty of committing an unjustifiable homicide.

Appellant requested a number of instructions on the right of one assaulted with a weapon or instrument capable of inflicting “great bodily harm” to slay his assailant, all of which were refused by the court. We do not set out these instructions because they deal with a subject which has been thoroughly settled by numerous decisions of this court. It suffices to say that the court gave on its own motion instructions correctly declaring •the law as to when and the circumstances under which one assaulted may slay his assailant, and no useful purpose would be subserved by reviewing the numerous cases on this subject.

Appellant also requested instructions upon the question of one’s right to slay his assailant when a murderous assault was made upon him; but this question appears to have been fully covered by other instructions which were given.

It is insisted that the court erred in giving an instruction on the presumption of innocence which attends one accused of crime, the objection being that “the instruction told the jury that this presumption followed to a certain period of the trial, and from that time on there was no presumption in favor of the accused.” The relevant portion of the instruction objected to reads as follows: “The return of the indictment, gentlemen of the jury, raises no presumption of guilt against the accused. In other words, you are not authorized, when you reach your jury room, that because men composing the grand jury of the Southern District of this county have indicted the accused, that that constitutes guilt or any evidence of guilt. That is not the rule of the law in. this State. Every man is presumed to be innocent until the State proves him guilty. This is a humane principle of the law that is intended to shield and protect the innocent from unmerited, unwarranted and unjustifiable punishment at the hands of courts and juries. This presumption of innocence goes with and attends him throughout the entire trial until overcome by evidence establishing his guilt beyond a reasonable doubt, but, where guilt is established, such presumption of innocence by the establishment of guilt beyond a reasonable doubt is eliminated, and, if the evidence does establish guilt, such presumption of innocence cannot be used or urged as a means by which guilty men can escape the just consequences of their own unlawful acts. ’ ’

We think there was no error in this instruction. If the testimony showed that the accused was in fact guilty, he would not then be protected from punishment by the presumption of innocence, for the reason that the presumption had been overcome. In other words, there Would be no presumption of innocence when the testimony showed the guilt of the accused beyond a reasonable doubt. The instruction told the jury that the presumption of innocence “goes with and attends him (appellant) throughout the entire trial, until overcome by evidence establishing his guilt beyond a reasonable doubt”, and if this were done there could then be no presumption to the contrary.

It is finally insisted that the court erred in refusing to give instructions defining the offense of involuntary manslaughter, it being insisted that the undisputed testimony shows that appellant, in cutting deceased, was exercising the legal right of defending himself from a murderous assault, and the jury might have found that, in exercising this legal right, appellant had only acted hastily or without due caution or circumspection, and had therefore committed no greater offense than that of involuntary manslaughter.

We think no error was committed in refusing to submit the question of appellant’s guilt of the crime of involuntary manslaughter. As we regard the testimony, it is not an undisputed fact that appellant inflicted the fatal wounds while repelling a murderous assault in his necessary self-defense. As we have said, there were such contradictions in the testimony of the eye-witnesses that it would not have been arbitrary, had the jury disregarded that testimony. In addition to the contradictory statements which these witnesses were shown to have made in regard to the circumstances of the killing, the number and character of the wounds found on the body of the deceased tend strongly to contradict the testimony of these witnesses. There were cuts in the hands of the deceased which indicated that he was trying to seize and hold the knife with which he was being stabbed and with which he was killed.

Moreover, the instructions given directed the jury to acquit appellant if the jury found that a murderous assault had been made on him, and that he struck deceased in his necessary self-defense, under the circumstances as they appeared to him, so that there could have been no error in refusing to submit the question whether he had acted hastily or without due caution or circumspection, as the jury would have acquitted him, had the testimony in his behalf been accepted as true.

. Upon the whole case we find no error prejudicial to appellant, and, as we think the testimony is legally sufficient to support the verdict returned, the judgment will be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    J. T. Fargason Company v. Driver.
    Opinion delivered May 31, 1926.
    1. Appeal and error — harmless error — admission op evidence.— The admission of improper evidence is not ground for reversal where the verdict of the jury shows that they disregarded it.
    2. Factors — evidence as to quality op consignment. — Where a factor sued his shipper of cotton for the difference between the amount advanced and the sale price of the cotton, and the shipper filed a cross-complaint to recover damages caused by the broker’s failure to sell the cotton advantageously, there being a dispute as to the quality of the cotton, it was admissible for the’ shipper to prove that it was dry, clean and white.
    3. Appeal and error — remark of court — cure by instruction.— In an action involving the loss to a shipper by his factor’s failure to sell cotton, a remark of the court during the shipper’s examination that the market value of the cotton at the point of shipment and place of sale was immaterial, if prejudicial, was cured by an instruction that the measure of the shipper’s damages is the difference between the market price of the cotton at the place of sale within a reasonable time after its arrival and the price for which it was sold.
    4. Appeal and error — remark of court — who may complain. — In an action involving loss incurred by a shipper through the failure of a factor to sell cotton, remarks of the court that testimony as to what was paid for other cotton at the point of shipment, based on the market value at the point of sale .of the cotton in question, does not show what the latter market price was, was prejudicial to the shipper, but not to the factor. .
    5. Trial — instruction singling out particular circumstances.— In an action involving the loss incurred by a shipper through failure of a factor to sell his cotton for the best price, a requested instruction that evidence of the effect of excessive rains, winds and cold weather may be considered in determining the quality of the cotton was properly refused as singling out particular circumstances to the exclusion of other circumstances.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      A. F. Barham, for appellant.

      J. T. Goston, for appellee.
   Humphreys, J.

This suit was instituted on April 21, 1924, in the circuit court of Mississippi County, Osceola District, by appellant against appellee, to recover an alleged balance of $1,956.28 due for money advanced by appellant, a cotton factor, to appellee on 29 bales of cotton of tbe 1919 crop, shipped by appellee to appellant to be sold on commission. It was alleged that the advances, including interest, to the 22d day of February, 1924, amounted to $5,340.70, and that the total amount received from the sales of cotton and credited upon the account amounted to $3,384.40, leaving an indebtedness of $1,956.28 as of said date.

On April 26,1924, appellee filed an answer and cross-bill, admitting in the answer that appellant advanced him at divers times moneys, goods, and merchandise amounting to $5,340.70, but alleging in the cross-bill that appellant failed to use sufficient care, skill and diligence in the sale of the cotton, and that it disregarded his instruction to sell same, to his damage in the sum of-$5,000.

On the same date appellant filed an answer to the cross-bill, denying that it received instructions from appellee to sell the cotton, or that it waited an unreasonable time to make disposition of same, to appellee’s damage in the sum of $5,000 or any other sum.

The cause was submitted to a jury upon the pleadings, testimony introduced by the respective parties, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee on the cross-bill in the sum of $1,209, including interest, from which is this appeal.

In the year 1919 appellee cultivated between 85 and 100 acres of land and produced 41 bales of cotton thereon. He sold the first eight bales he picked at Osceola. He then picked and shipped the next 29 bales to appellant, 24 bales being shipped in November, 1919, and the remainder in December, 1919, and perhaps one bale as late as March, 1920. Appellant sold one bale of the cotton on January 12, 1920, for 60 cents a pound; one bale February 3, 1920, for 70 cents, one bale Marcia 11, 1920, for 60 cents; five bales June 15, 1920, for 65 cents; and the remainder between March 30, 1921, and September 2, 1924, at a price ranging from 3 cents to 10 cents per pound. The testimony is conflicting as to the grade of the cotton. ,Appellee J. T. MoGarrity, the man who ginned it, and J. H. Hook, who examined a part of the cotton while lying on the platform awaiting shipment to appellant, and who offered 40 cents a pound for what he examined, all testified that the cotton was clean and white. Appellee also testified that it was dry. Appellant testified that^ nearly all of the 29 bales were of a very inferior quality, wet, and discolored. Appellee testified that he sold the last four bales he picked in 1920, which was not so good as the cotton he shipped to appellant, to-Bragg in Osceola, for 40 cents a pound early in the year 1920. J. H. Hook testified that he bought three bales of cotton from Sam Ware on January 3, 1920, for 37% cents a pound, and that Meyers Bros, sold him two bales for 42 cents a pound on the 25th day of November, 1919. Appellee and W. P. Hale testified that, some time in February, 1920, appellee called on appellant in Memphis and asked what it could get for his cotton, and was informed that it could be sold for 50 cents a pound; whereupon appellee instructed appellant to sell it at once. Dave Fargason, to whom appellee claimed to have given this instruction, denied that he was requested to sell it, and stated that he made every effort to sell it after receiving it, but could not do so on account of the congested market and the inferior quality of the cotton. He also stated that it was sold as rapidly as the market would absorb it and at the best price obtainable when sold. Appellant introduced testimony tending to show that weather conditions in the fall of 1919 damaged a great deal of the cotton, and that only about one-fourth of the cotton brought to the Memphis market was of a high grade, and that 75 per cent, was of a very low grade, some being even below government classification. Henry Hotter, secretary of the Memphis Cotton Exchange, filed a statement showing how many bales of cotton were sold in Memphis each month from October 1, 1919, to December 21, 1921, with the average price of various grades of cotton that were sold. This statement disclosed that, on or about June 12, 1920, various grades of white cotton sold from 26 cents to 45 cents per pound, and disclosed also what the lower, grades sold for per pound.

During the cross-examination of appellee the question arose between the counsel for the respective parties relative to the character of evidence admissible to establish appellee’s damage by reason of a failure to sell his cotton, and the court remarked, over the objection and exception of appellant, that it made no difference as to the market value of the cotton in Memphis or Osceola, for, if the jury found that the cotton was worth 50 cents per pound, that would be evidence for them to consider in arriving at the amount of damages, and in explanation said, “Here is the theory this case will be tried on. If the court finds that these people told this man, when he was talking to them about this cotton, that it was worth 50 cents a pound, this is evidence they may consider in reaching a conclusion as to what was the market value of the cotton in Memphis at that time. ’ ’ In the course of the examination of J. H. Hook the court, over the objection and exception of appellant, said, “The witness has testified that what he paid here was based on the Memphis market. It was introduced on the theory that it was based on the Memphis market. But it doesn’t show what the Memphis market was, and can be used for that purpose only.”

The main contention made by appellant for a reversal of the judgment is that the court erred in permitting appellee to testify to the offer that he received for the cotton at Osceola before he shipped same to appellant and the price he had received for the balance of the cotton before he made the shipment to appellant, and in permitting J. H. Hook to testify that he had offered appellee 40 cents a pound for a portion of the cotton which he examined on the platform in Osceola the latter part of November, and his testimony to the effect that, on January 3, 1920, he paid Sam Ware 37% cents a pound for three bales of cotton and Meyers Bros. 42 cents a pound for two bales of cotton on November 25, 1919. We do not think any prejudice resulted to appellant on account of this testimony, for the reason that it is apparent from the amount of the verdict that the jury did not consider their testimony in this particular in determining the case. The verdict is as follows: “We, the jury, find in favor of H. L. Driver against J. T. Fargason Company for the sum of $944.76, with interest thereon at the rate of 6 per cent, per annum from June 15, 1920, down to this date. L. D. Fast, foreman.”

The verdict points unerringly to the fact that the jury determined that the cotton could have been sold by appellant in the exercise of proper care and diligence on the 15th day of June, 1920. The amount of the verdict also points unerringly to the fact that it figured the amount of damages sustained by appellee upon the basis of about 26 cents a pound for the cotton which was sold subsequent to June 15, 1920. The evidence objected to tended to show that the cotton was worth about 40 cents or 50 cents a pound, so the jury must have reached its conclusion from the testimony of Henry Hotter, as he was the only witness who testified that the average price of white cotton ranged from 26 cents to 40 cents a pound on and about that date. It seems that the jury took the lowest price fixed by him for that character of cotton in arriving at the verdict. St. L. I. M. & S. R. Co. v. Brady, 83 Ark. 489; St. L. I. M. & S. R. Co. v. Caldwell, 89 Ark. 218; St. L. I. M. & S. R. Co. v. Lamb, 95 Ark. 209. We think the testimony of appellee J. H. Hook and J. T. McGarrity was clearly admissible in so far as it reflected the kind and character of cotton which was shipped to appellant.

Appellant also contends that the judgment should be reversed on account of the remarks made by the court during the cross-examination of appellee. These remarks are set out in the statement of facts herein. If they were prejudicial to appellant, the prejudice was entirely removed by instruction No. 2-A given at the request of counsel for appellant, which is as follows:

“The measure of defendant’s damages, if you find that he is entitled to any, would be the difference between the fair market price of his cotton at Memphis, Tennessee, within a reasonable time after its arrival there, and the actual price for which it was sold.”

This instruction was followed by two other instructions, Nos.' 5 and 6, which clearly indicated to the jury that it must not render a verdict for damages in favor of appellee on any other basis than under the rule announced in instruction No. 2-A aforesaid.

Appellant also contends for a reversal of' the judgment on account of the remark made by the court during the examination of J. H. Hook. The remark of the court called in question is set out verbatim in the statement of facts. The testimony which elicited this statement was introduced by appellee, and the statement of the court to the effect that “it does not show what the Memphis market was,” was detrimental to appellee, and could not have prejudiced the cause of appellant.

The last contention of appellant for a reversal of the judgment is the refusal of the trial court to give appellant’s requested instruction No. 9, which is as follows :

‘ ‘ In determining the grade and character of defendant’s cotton you may consider the evidence, if any, as to weather conditions during the picking season of defendant’s crop, and the probable effect of excessive raiiis, winds and cold weather upon such parts of defendant’s cotton as you may believe, from the evidence, was exposed to such weather.”

This instruction ignores the testimony of appellee J. H. Hook and J. T. McHarrity as to the character of cotton which was shipped to appellant. It singles out the weather conditions as the sole criterion to guide the jury in arriving at the grade and character of the cotton. While such an instruction would not have constituted prejudicial error if given, yet this court has condemned the practice of singling opt and emphasizing any particular circumstance in a case and directing the jury’s attention thereon, to the exclusion of other facts and circumstances therein. Railway Co. v. Lyman, 57 Ark. 520; Carpenter v. State, 62 Ark. 312; Hogue v. State, 93 Ark. 316; Quertermous v. State, 95 Ark. 48.

No error appearing, the judgment is affirmed.


text:
    Waldrum v. Wilbanks.
    Opinion delivered May 31, 1926.
    Municipal corporations — inquisitorial ordinance. — A city has no authority to adopt an ordinance providing that the mayor or chief of police may summon any person before such officer to answer whether he knows of any violations of the criminal laws of the city and to impose a fine for refusal to answer the question.
    Appeal from Greene Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Jeff Bratton, for appellant.
   Humphreys, J.

Appellee filed a petition in the circuit court of Greene County for a writ of habeas corpus to obtain his liberty, alleging that he was unlawfully detained by appellant, the chief of police of the city of Paragould, under a judgment for contempt predicated upon §§ 283, 284 and 285 of Bandy’s Digest of the Ordinances of the city of Paragould, which were unconstitutional and void. The ordinance referred to provided that the mayor or chief of police of said city might summon any person before such officer or court to answer whether he knew of any violations of the criminal laws of the city and to impose a fine upon him for a refusal to answer the question.

The response admitted that appellee was being held in custody by appellant pending the payment of a $25 fine imposed by the police judge of said city for a refusal to answer questions propounded to him by said officer as to whether he knew of any violations of the ordinance of’ said city against gambling, but denied the invalidity of §§ 283, 284 and 285 of said digest, under which the fine was imposed.

The cause was submitted upon the pleadings and an agreed statement of facts, which resulted in a finding that the ordinance under which appellant had been fined was void, and a consequent judgment dismissing* him from custody.

The agreed statement of facts showed that the city of Paragould had passed ordinances for the purpose of suppressing gambling, drunkenness, breaches of peace, and divers other misdemeanors, in accordance with authority vested in it by the Legislature, and also that appellant was summoned before the police judge to answer whether he knew of any violations of the ordinance of said city against gambling, and, upon his refusal to answer, was fined $25 and committed to the custody of the chief of police, to be confined in the county .jail, which was also used as a city jail, until the fine was paid.

The sole question therefore presented by this appeal for determination is whether the city of Paragould had authority to pass an inquisitorial ordinance i» aid of the enforcement of its ordinances against crime. We have examined the sections of Crawford & Moses’ Digest conferring authority upon municipal corporations to adopt ordinances of various kinds, and find nothing in any of them conferring power to adopt ordinances of an inquisitorial nature, and nothing in the statutes from which such authority might be inferred. It is unnecessary to determine whether such power could be delegated to municipal corporations by the Legislature. That question is not before us, so we refrain from expressing any opinion upon that point.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Clark v. Wilson.
    Opinion delivered June 7, 1926.
    1. Logs and logging — laborer's lien — waiver.—A lien for wages on lumber, under Crawford & Moses’ Dig., § 6848 et seq., may be . waived by consent to or acquiescence in the sale of the lumber.
    2. Logs and logging — waiver of lien. — In an action to enforce a laborer’s lien on lumber under Crawford & Moses’ Dig., § 6848 et seq., where there was evidence to warrant a finding that - plaintiffs knew that the lumber was being hauled away and sold, it was error to refuse to submit the issue as to whether plaintiffs waived the lien.
    3. Logs and logging — notice of lien. — One who purchases lumber for a valuable consideration in good faith and without knowledge of liens existing thereon for wages under Crawford & Moses’ Dig., § 6848, will be protected.
    Appeal from Clark Circuit Court; James "if. McCollum, Judge;
    reversed.

      McMillan McMillan, for appellant.
   McCulloch, C. J.

Appellees worked at a country sawmill in Clark County, operated by H. A. Freeman, and they instituted this action against Freeman, claiming a lien on a small amount of lumber manufactured at the mill and sold by Freeman to appellant. An attachment was duly issued in accordance with the statute (Crawford & Moses’ Digest, § 6848 et seq.), and levied on the lumber at appellant’s yard in Arkadelphia. Appellant intervened, claiming the lumber free from the lien asserted by appellees. The cause was begun before a justice of the peace, and was tried on appeal in the circuit court, resulting in a verdict for each of the appellees for a small amount. Judgment was rendered declaring a lien on the attached lumber.

On the trial of the cause, appellees testified that they worked at Freeman’s mill, and that their labor contributed to the production of lumber which Freeman hauled to Arkadelphia and sold to appellant. The testimony was sufficient to warrant the conclusion that appellees knew that Freeman was hauling the lumber to Arkadelphia and selling it to appellant. Mr. Boss, appellant’s agent at Arkadelphia, testified that he bought the lumber in controversy from Freeman, and had been regularly buying lumber from Freeman in small lots, and had no knowledge of there being a laborer’s lien on the lumber.

The court submitted the cause to the jury on the sole questions whether or not appellees performed labor in the production of the lumber in controversy and whether they had been paid for that particular labor. The court refused to submit to the jury, on appellant’s request, the issue whether appellees waived their lien by consenting for Freeman to sell the lumber in the market, and whether appellant bought and .paid for the lumber without notice of the lien. We are of the opinion that the court erred in refusing to submit those issues to the jury, for there was sufficient evidence to warrant a finding that appellees knew that Freeman was hauling the lumber to Arkadelphia and selling it, and this constituted a waiver of the lien.

With respect to the question of waiver, the lien was the same as that of a landlord, and we have held that it may be waived by the lienor consenting to, or acquiescing in, a sale to a third person. May v. McCaughey, 60 Ark. 357.

The evidence was also sufficient to warrant a finding that appellant bought the lumber from Freeman without any notice of the existence of a lien or without information as to facts which, if inquired about, would lead to knowledge of the lien. The statutory lien is absolute, as declared in express terms, but a purchaser for a valuable consideration, in good faith, without any knowledge of a lien, will be protected. Harkrider v. Howard, 134 Ark. 575.

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


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    Western Union Telegraph Company v. Pope.
    Opinion delivered June 7, 1926.
    1. Telegraphs and telephones — negligence—jury question. — In an action for damages for failing to deliver a telegram promptly, it was held a jury question, under the evidence, whether defendant accepted the message with agreement to deliver it outside of the free delivery limits, and whether defendant was negligent in failing to notify the sender of nondelivery.
    2. Telegraphs and telephones — delivery outside of free limits.— A telegraph company’s acceptance of a telegram without notice that the addressee is outside of the free delivery limits does not constitute an agreement to deliver outside of such limits.
    S. Telegraphs and telephones — mental anguish — damages.—An award of $1,500 for negligence in delivery of a telegram whereby plaintiff was deprived of the privilege of being with his wife a short time before her death held excessive to the extent of $500.
    Appeal from Clark 'Circuit Court; James H. McCollum, Judge;
    modified and affirmed.

      Francis R. St arle, J. H. <é D. H. Crawford, and Rose, Hemingway, Cantrell & Loughborough, for appellant.
    J. O. A. Bush, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover compensation for damages sustained by reason of alleged negligence in failing to promptly deliver a telegraphic message informing appellee of the serious illness of his wife. There was a former appeal of the case to this court (166 Ark. 122), and the judgment was reversed, and the cause remanded for a new trial. The facts are set forth with accuracy and in detail in the former opinion, and it is unnecessary to narrate them again. The court, in the last trial, gave the particular instruction to the jury that was refused on the former trial, and for which refusal the judgment was reversed.

Appellant requested twenty-seven separate instructions, most of which were given as requested, and assignments of error are made with respect to each of the refused instructions. We find, however, that in the instructions given every phase of the case was covered, and it is ’ unnecessary to discuss the assignments in detail.

The court, in an instruction given at the instance of appellee, submitted two phases of the alleged failure to deliver the messáge: whether or not appellant accepted the message with an agreement to deliver it outside of the free delivery limits, and whether or not appellant was guilty of negligence in failing to notify the sender of nondelivery. It is insisted that the instruction was erroneous for the reason that there was no evidence tending to show that appellant’s agent accepted the message with the agreement to deliver outside of the free delivery limits. It will be seen "from a perusal of the narrative of facts in the case, as set forth in the original opinion, that there were two messages, one sent on December 7 by Dr. Alford, and the other by Jesse Pope, appellee’s son, on December 9. There was direct evidence in the testimony of Jesse Pope that, when he sent the message, he informed appellant’s agent that his father, the addressee, lived outside of the free delivery limits at Smaokover, and that there was an agreement to deliver the. message outside of those limits. Appellant’s objection to this feature of the instruction was general, and the instruction related to the two messages and not to' any particular one. If counsel desired to raise the question as to one of the messages, it should have done so by pointing out the distinction in a specific objection. The direct testimony as to the agreement concerning the message sent by Jesse Pope was sufficient to warrant a submission of that issue to the jury. We are also of the opinion that the evidence warranted a submission of that issue concerning the message sent by Dr. Alford. It is true that Dr. Alford did not testify to any specific agreement in regard to the delivery of the message outside of the free delivery limits, but his testimony shows that the agent knew, at the time of the conversation, that Smackover was in an extensive oil field, that Pope was working somewhere in the field, either inside or outside of the free delivery limits, and, with knowledge that the message might have to be delivered outside of the free delivery limits, the agent agreed to make the delivery. If appellant had not been advised that the sendee was outside of the free delivery limits, the acceptance of the message would hot have constituted an agreement to deliver outside of those limits, but here the facts warranted the belief on the part of appellant’s agent that the sendee could only be found outside of the limits, and an express and unqualified agreement to deliver under those circumstances was tantamount to an agreement to deliver outside of the free delivery limits, if necessary.

Our conclusion is that the issues in the case were properly submitted to the jury, and that there was no error. It is contended that the instructions were conflicting, but, after careful consideration, we do not think so. The instructions could be harmonized, and we must assume that the jury understood them.

The jury awarded damages in the sum of $1,500, and we are of the opinion that this amount is an excessive award. It is a matter of great difficulty and one of extreme delicacy to attempt to measure an award for damages resulting from mental anguish and no other element, and yet it is the duty of courts and juries to discharge that duty the best they can. Appellee was, on account of the negligence of appellant, deprived of the privilege of being with his wife only for a short time before her death. If the first message had been delivered promptly, he could have reached her bedside probably twenty-four hours before her death, but a prompt delivery of the second message would only have given him an opportunity, with the most strenuous effort, to reach his wife’s bedside an hour or two before her death. We have no means of knowing on which alleged act of negligence the jury based the verdict. The jury may have found that appellant made diligent effort, and was guilty of no negligence in regard to the first message, but was negligent in regard to the second one; but we must assume, for the purpose of testing the sufficiency of the verdict, that the negligence occurred in regard to the nondelivery of the first message. We are convinced that the verdict is excessive, hut it can he cured by allowing the judgment to stand for an amount which we would have affirmed if the jury had limited the award to that amount. The case of Western Union Telegraph Co. v. Bickerstaff, 100 Ark. 1, is quite similar to the one now before us, and in that case we reduced the verdict for $2,000 down to the sum of $1,000, and affirmed the judgment for that amount. Of course, each case, with respect to the amount of damages, must stand upon its own peculiar facts, but the similarity of the two cases inclines us to accept the Bickerstaff case as a guide in awarding the damages in the present case.

The judgment of the circuit court will therefore be modified by reducing the amount of the recovery to the sum of one thousand dollars, as of the date of the judgment below. It is so ordered.


author: McCulloch, O. J.

text:
    Bonds v. Wilson.
    Opinion delivered June 7, 1926.
    1. Highways — variation from route of state highway. — A variation of eight or ten miles from the original route of a State highway, as shown on the map referred to' in Acts of Extraordinary Session of 1923, No. 5, § 3, held a material variation.
    2. Highways — authority to depart from original route. — Under Acts Ex. Ses. 1923, No. 5, §§ 3, 20, the State Highway Commission is authorized to depart materially from the original route of a highway between towns designated on the map referred to in such act, so long as the towns are not eliminated from the route so changed.
    Appeal from Van Burén Chancery Court; 8am Williams, Chancellor;
    affirmed.

      Opie Rogers and Strait & Strait, for appellant.

      H. W. Applegate, Attorney General, and J. S. Abercrombie, Assistant, J. F. Koone, W. II. Cooper, and Garner Fraser, for appellee.
   McCulloch, O. J.

Section 3 of act No. 5 of the Extraordinary Session of the General Assembly, approved October 10, 1923, outlines the system of State highways, and reads as follows:

“The State highways are hereby declared to be those primary roads and secondary roads connecting State roads heretofore designated by the Highway Commission, approved by the Governor, and . tentatively approved by the Federal authorities, as shown by a map on file in the office of the State Highway Commission, entitled, ‘Map of the State of- Arkansas Showing Proposed System of Primary and Secondary Federal Aid Roads and Connecting State Roads,’ and marked ‘Revised December 1, 1922,’ except that portion of said roads traversing incorporated towns of twenty-five hundred and over inhabitants. The State Highway Commission is hereby required to preserve said map as a permanent record.

“The State Highway Commission is hereby empowered, with any necessary consent of the proper Federal authorities, to make, from time to time, such necessary changes and additions to the roads designated as -State highways as it may deem proper, and such changes or additions shall become effective immediately upon the filing of a new map, as a permanent and official record in the office of the State Highway Commission. Provided, however, the State Highway Commission shall not have the authority to eliminate any part of contemplated highway system as shown on map now filed with the Highway Department.”

.Section 20 of the same statute declares it to be the duty of the State Highway Commission -to maintain and keep in repair the State highways, and to pay for same out of the public funds accruing from the gasoline, oil and automobile tax. That section reads, in part, as follows:

“It shall be the duty of the State Highway Commission to begin as soon- as practicable and continue the maintenance of all roads that are now or hereafter may be-properly designated as State highways, to the end that every part of the State highways shall be properly, fairly and equitably maintained and’kept in repair.”

Other sections of the statute provide for the collection of the gasoline, oil and automobile taxes and for the. distribution and application thereof in the improvement and maintenance of highways.

There is brought to our attention in the present record the highway map referred to in § 3 of the statute, and one of the primary roads designated on that map runs from Little Rock in a northwesterly direction to the Missouri line,- running through Cotnway, Clinton, Leslie, Marshall, Harrison, Berryville and Eureka Springs. No other towns or villages are indicated on the original map of that route. County lines are designated on the map, and the contour and direction of the roads are indicated, without specifying the distances or objects, except the municipalities mentioned above and the county lines. It appears from this map that there is a detour of-the route eastward from the town of Clinton, which turns westward again to the direct line south of the town of Leslie, in Searcy County. It is shown in the present record that the distance around this detour is about twenty-one miles, and that the adoption of the direct route along the highway from Clinton to Leslie would shorten the road a little over seven miles. The State Highway Commission is about to change the route from, the detour indicated on the original map to the direct route mentioned above, and this action was instituted by appellants, who are citizens and owners of property along tlje original route, to restrain the Commission from making this change. The contention of appellants is that the change in the route is a material one, and that the Commission has no authority under the statute to make the change. The chancery court decided the question against appellants, and dismissed their complaint, from which decree an appeal has been prosecuted to this court.

The question of authority of the .State Highway Commission to lay out and establish public roads is not involved in this case. The Legislature has not attempted to confer such authority upon the State Highway Commission, and could not do so, for that would constitute an invasion of the constitutional jurisdiction of the county court. All that the statute attempts to do is to authorize the State Highway Commission to adopt routes for what are termed “State highways” — routes along roads which are already public highways or' which may be thereafter laid out under proper authority. It is assumed that the change about to be made by.the State Highway Commission is along an established highway. There is no allegation or proof to the contrary in this record, hence we determine the only question presented — whether or not the State Highway Commission is authorized to make this change.

It is conceded that the change is material, and that is necessarily true from the distance which the original route is departed from. The exact distance is not proved, but an inspection of the map indicates that there is a variation of about eight or ten miles.

The language of § 3 is to some extent conflicting, and it becomes our duty in interpreting the statute to reconcile this apparent conflict, if possible, so as to give effect to the legislative will. The Commission is, in express terms, empowered to “make, from time to time, such necessary changes and additions to the roads designated as .State highways as it may deem proper.” It is evident that this language means to confer authority to make substantial changes, for slight and immaterial changes could be made even without express authority. The difficulty in interpreting the statute arises entirely from the language used in the last sentence, which declares that the Commission “shall not have authority to eliminate any part of contemplated highway system as shown on map now filed with the Highway Department.” We interpret this language to mean, not that the route may not be changed by the Commission, but that no part of the system shall he eliminated. The system is made np of different roads between termini, and the prohibition is against the elimination of any of those units of the system. There might be such a complete and radical change in the route of a road from one terminus to another as to amount to a complete elimination of that unit, but a change of route, however substantial, would not be an elimination of the unit if it ran from one of the specified termini to the other and ran in the same general direction as the route specified on the map.

It is significant that the original map, as adopted in the statute, did not specify all the towns along the indicated route, nor did it specify any objects which marked the points where county lines were crossed. Only important towns are indicated on the map. If we give any effect at all to the preceding language of the statute with reference to the authority of the Commission to make changes, it must be held that changes, however substantial, may be made if they do not constitute an elimination of the unit as a whole.

It is also contended that the language of § 30 has some bearing and leads to the conclusion that substantial variations of a route are not authorized. That section reads as follows:

“The State Highway Commission is hereby authorized to construct, reconstruct and improve every link in the State highways for which road improvement district funds have not been furnished, where the Commission finds that such project is of sufficient importance as a State highway as to demand it. The expense of such work shall be paid for out of the State highway fund and Federal aid, where Federal aid has been ormaybe allotted to such improvement, and may be paid in part or all out of funds appropriated for maintenance, if, in the opinion of the Commission, such amounts may be spared from the maintenance appropriation without impairing the patrol system of maintenance of State highways that is hereby declared to be one of the principal features of this act.”

We do not think that § 30 has any bearing on the question of change of route. This section was enacted for another purpose, namely, to give authority to the Commission to construct and improve links in State highways in cases where improvement district funds are not available. The general purpose of the whole statute was to furnish aid from State taxation for the construction of roads improved by counties or by improvement districts, but this section is, as before stated, intended to authorize the use of State funds in the matter of links in the State highway system which are not otherwise improved by the use of other funds. It will be observed that in the State highway system there are three kinds of routes designated — primary and secondary Federal aid roads, and connecting roads. To illustrate the purpose of § 30, there may be instances of disconnected improvement by local districts along the route of a State highway, leaving unimproved links between the separate improvements. This section of the statute provides for such instances and gives authority to the Highway Commission to improve those omitted links and afford a continuous improvement along the route. It has no bearing, however, on the question of authority to change routes.

Our conclusion upon the whole case is that the chancery court was correct in upholding the authority of the Commission to make the contemplated change of route.

Decree affirmed.

Hart, J., dissents.


text:
    Cain v. CarlLee.
    Opinion delivered June 7, 1926.
    Elections — payment of poll-tax. — ‘Where voters, in good faith and for their own convenience, requested a mercantile company, by which they were employed or with which they regularly did business, to pay their poll-tax, and they reimbursed the company therefor, exclusion of their votes was error.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson-, Judge;
    reversed.

      Roy D. Campbell, for appellant.
   McCulloch, C. J.

This appeal involves a contest between appellant and appellee over the nomination of the Democratic Party for the office of county judge of Woodruff County at the election held in August, 1924. The official returns showed that appellee received the nomination, and appellant instituted a contest. The case has been here on two former appeals from judgments in favor of appellee. 168 Ark. 64; 169 Ark. 887. On each appeal the judgment of the circuit court was reversed, and the cause remanded for a new trial.

According to the original returns of the election officers, appellee received 925 votes and appellant. 910 — a majority of 15 for appellee. On a recount of the ballots by the canvassing board, on demand of appellant, it was found that the ballots showed 847 for appellee and 815 for appellant — a majority of 32 for appellee.

On the second trial of the cause the principal questions of fact related to the number of votes east for the respective parties by persons who had not been legally assessed for the payment of poll-tax, and during the progress of the trial the attorneys, by agreement, made a canvass of the ballots and reached an agreement as to most of the alleged illegal ballots. They reported to the court an agreement that, after deducting certain ballots, there were left 676 for appellant and 638 for appellee. A certain number of ballots about which there was no agreement was left to a decision of the court, upon hearing the facts and all other disputed issues, which were to be left to tbe court, and on final hearing the judgment was, as before stated, in favor of appellee, which judgment was reversed on the last appeal. 169 Ark. 887.'

In the last trial- below, the court, after hearing the evidence, made a finding that appellee received 613 legal votes and appellant 612 — a majority of one vote in favor of appellee, and judgment was rendered accordingly. The court in making its findings excluded from the count 32 ballots cast in favor of appellant by voters whose poll-tax had been paid by Planters’ Mercantile Company, a corporation engaged in business at McCrory. It is undisputed that all of those ballots were in favor of appellant, and if the trial court was in error in excluding them, a reversal of the judgment must necessarily follow.

The evidence shows that the officers and manager of the Planters’ Mercantile Company were partisans of appellant in the election, and that, some time prior to the election, a printed card was circulated in the following form:

“ Order to pay poll-tax. Date............................................................1924.
“To Planters’ Mercantile Co.:
“Please pay my poll-tax and charge same to me. It is understood and agreed that for you to do so shall in no way have any bearing or influence on my voting for or against any question submitted to the people, or any candidate for any office.
‘ ‘ Signed............................■:......................
“Postoffice address.......................................i....... Township.....................
‘ ‘ School district......................................................... Voting Precinct. ’ ’

Some of these cards were signed by voters and handed in or sent to the Planters’ Mercantile Company, and poll-taxes were paid by the company pursuant to the request expressed on the card. It does not appear from the testimony how many of these were signed and handed in. It does appear, however, that the Planters’ Mercantile Company paid poll taxes on request of voters expressed in the card. The company paid in all 89 poll taxes and was reimbursed — in some instances by the voters themselves and the remainder from the treasury of the incorporated town of McCrory. The proof tended to show that appellant vias a party to the circulation of these cards among voters and also in the distribution of tax receipts paid in that way. It is undisputed,' however, that 17 of the voters whose poll taxes were paid by the Planters’ Mercantile Company and whose ballots, in favor of appellant, were excluded by the court, procured the Planters’ Mercantile Company, in good faith, to pay the poll taxes for them, without solicitation on the part of the agents of the company, or other inducement. Some of these persons, were employees of the Planters’ Mercantile Company, and many others were regular customers for whom the company had paid taxes in previous years, and in all of these instances the amount paid was refunded to the company. In many instances the money was paid to the company in advance. In other words, the undisputed proof is that in each of the 17 instances mentioned the payment of poll taxes by the Planters’ Mercantile Company was made at the request of the voter and merely as a matter of convenience, without any regard to any influence upon the then approaching election. This being true, it was error for the court to exclude them from the count. The learned trial judge based his conclusion upon the decision of this court in Whittaker v. Watson, 68 Ark. 555, hut we are of the opinion that he placed the wrong interpretation upon the effect of that decision in holding that the payment of poll taxes by the Planters’ Mercantile Company invalidated all of the ballots cast by persons whose poll taxes were paid under any circumstances by the company. In the case cited the court said:

“He (the voter), however, need not pay the tax in person, but may in good faith authorize another to pay it for him, or, if another has done so without' having been previously authorized, he may adopt or ratify the act, but he must do so with a bona fide intent and promise to reimburse him. In this way only can the voter be secured in the free and untrammeled exercise of his right of suffrage. The acceptance of the payment of a poll tax as a gift tends to induce him to so vote as to please the partisan, candidate or other person, who paid the same for him. This is contrary to the spirit of the requirements of the Constitution.”

The evidence in this case shows affirmatively and beyond dispute that there was no element of gift involved in the payment of the poll taxes of the seventeen persons hereinbefore referred to; therefore the payment made for them does not fall within the condemnation expressed in Whittaker v. Watson, supra. The fact that other voters may have been induced by this procedure to accept a gratuity, or the fact that the circulation of the printed card couched in carefully selected language was intended as an improper inducement to voters, cannot invalidate the ballot of a voter who in good faith procured the payment of his poll tax by the Planters’ Mercantile Company. The court should therefore hav,e excluded from the count only those who accepted payment as a gift, either expressly or impliedly.

The judgment must be reversed, as the inclusion of these 17 votes gives appellant a majority of 16, which entitled him to the nomination.

There are a few other excluded ballots which appellant contends should have been counted for him, but.it is unnecessary to discuss them.

Every issue of fact in the case has been settled in the trials, and no ' useful purpose would be' served in remanding the cause for another trial. Appellee was elected county judge as the Democratic nominee at the ensuing election, but, since the transcript on the present-appeal was lodged in this court, it has been brought to our attention by counsel for appellee, on motion to abate the contest, that appellee had resigned the office. The court overruled the motion to abate, but nothing remains of the contest, according to that decision, except the costs of the proceedings.

The judgment of the circuit court is therefore reversed, and judgment will be entered here in favor of appellant for all of the costs of the proceedings, including the costs in each trial in the court below and the costs of the appeal. It is so ordered.