text:
    Holden v. State.
    Opinion delivered January 22, 1923.
    1. False pretenses — sufficiency of indictment.. — An indictment charging that defendant fraudulently made certain representations which he knew to be false, and which the person from whom money was obtained accepted and relied on, and that the money was obtained from such person by reason of such false representations, was sufficient to charge the crime of obtaining money by false pretenses, under Crawford & Moses’ Dig., § 2449.
    2. False pretenses — sufficiency of evidence. — Evidence held sufficient to sustain a conviction for obtaining money under false pretenses in the sale of oil leases.
    3. Witnesses — impeachment of accused on cross-examination. — • Where the defendant in a criminal case takes the witness stand in his own behalf, he is subject to the same rules of impeachment as any other witness, and his credibility may be impeached by cross-examination as to specific instances of immorality.

      4. Criminal law — evidence of similar acts. — In a prosecution for obtaining money under false pretenses in the sale of oil leases, testimony relating to acts of a character similar to those charged in the indictments, and which took place at about the same time, was admissible for the purpose of showing the intent of the defendant.
    5. Criminal law — general objection to evidence. — Testimony admissible for a particular purpose only is not open to a general objection.
    6. Criminal law. — matters not brought into record. — The action of the court in overruling a motion for continuance will not be considered on appeal where the motion is not brought into the record.
    7. Criminal law — amending verdict. — Where, in a prosecution under five separate indictments, the jury returned a verdict of guilty as charged, it was not error to direct the verdict to show that the jury intended to find defendant guilty on all the indictments where the foreman indicated that such was their intention, and where the verdict as amended was approved by the jury.
    8. Criminal law — authority to suspend execution of sentence. —While the court, during the term, had power to set aside a judgment of conviction in a criminal case, it had no authority, in tho absence of statute authorizing it, to suspend the execution of a sentence from term to term; the statute (Crawford & Moses’ Dig., § 3204) contemplating that the sentence shall be executed unless the verdict is set aside and a new trial granted.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      Hogue <£> Hogue, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Ha/mmock, Assistants, for appellee.
   Wood, J.

Tlie appellant and liis son, H. S. Holden,

were, in five separate indictments, jointly indicted for the crime of obtaining money under false pretenses. The charging clause of one of the indictments is as follows : ‘ ‘ The said H. I. Holden and H. S. Holden, in the county and State aforesaid, on the 1st day of August, A. D. 1922, unlawfully, fraudulently and feloniously did! obtain from A. Oliver eighteen dollars and seventy-five cents in gold, silver and paper money of the value of $18.75, the property of A. Oliver, as part payment of an oil, gas and mineral lease on a certain tract of land (describing it) in Bradley County, Arkansas-, by unlawfully and fraudulently, falsely and feloniously representing and pretending that they, the said H. I. Holden and H. S. Holden, were the owners of an oil, gas and mineral lease and had the authority to sell and negotiate the same, which statements, representations and pretenses were false and untrue, all of which the said H. I. Holden and H. S. Holden then and there well knew * * *.” The indictments further alleged that the statements, representations and pretenses were made with the felonious intent to cheat the said A. Oliver out of his money and property, and had that effect.

The five indictments, by agreement of parties, were consolidated for trial, and appellant was separately tried. The jury returned a verdict of guilty, leaving the punishment to the court. The court entered a judgment sentencing the appellant to confinement in the State Penitentiary at hard labor for a period of five years, “such confinement to begin at the expiration of the judgment this day rendered by this court in case No. 19054.” The court further ordered “that the execution of the judgment be and is suspended until further order of the court, and the court doth retain jurisdiction of this case from term to term for the purpose of doing full justice in the case. ”

1. The appellant contends that the indictments Avere fatally defective because they failed to allege that the money was paid over to the defendant by reason of the representations that he OAvned a lease. We have set forth the allegations of one of the indictments, which is typical of all, and these allegations show that learned counsel for appellant are mistaken in their contention. Tt is charged that the appellant fraudulently and feloniously made certain representations, which appellant kneAv to be false, and which Oliver, from Avhom the money was obtained, accepted and relied upon, and that the money was obtained from him by reason of such false and fraudulent representations.

The indictment .was sufficient (o charge the appellant with the crime of obtaining money by “false pretenses,” under section 2449 of Crawford & Moses’ Digest.

2. The evidence was sufficient to sustain the verdict. Elizabeth Saxton, a witness on behalf of the State, testified that appellant came to her home in Little Hock last January'and rex>resented to her that he had some oil leases in Bradley County, and was engaged in the business of selling leases. She bought a- lease from the appellant and gave him her check as part payment of (lie same. On cross-examination she was asked, “Who (old you he owned the lease?” and she answered, “He and his son.”

Another witness testified that she met the appellant at the Arch Street Baptist Church in Little Rock in January, 1922. He represented to her and her husband that he had an oil lease, was a friend to the colored people, and wanted to help them. She and her husband purchased a lease from the appellant on 2y2 acres in Bradley County and paid him thereon the sum of $18.75. The testimony of this witness further shows that appellant represented that he owned the lease. Other witnesses testified to the same effect.

There was testimony tending to prove that (he appellant represented to several colored people that he owned the, laud in Bradley County and was selling oil leases which he owned, and that by reason of these representations he obtained certain sums of money; from one negro woman and her husband he obtained $475. There was also testimony tending to prove that the appellant did not own any oil leases on land in Bradley County, and that therefore the representations were concerning a present, or then existing, fact, and that the same Were false.

Tlie appellant, in his testimony, denied that he represented that he owned oil leases in Bradley County, and denied that he made any false representations, or that he defrauded any one. But the issue presented by the testimony of witnesses for the State and the appellant was one of fact for the jury. Without further setting out the testimony in detail, it suffices to say that the evidence was sufficient to sustain the verdict.

3. Over the objection of the appellant the State was permitted to ask him, while he was on the witness stand, the following question: “You were living there with another woman at that time not your wife?” The witness answered, “No.” He was further asked, “Are you not wanted in Louisiana now for deserting your wife and children?” He answered, “No.” But to the last question and answer appellant interposed no objection. Appellant, as a witness in his own behalf, was subject to the same rules of impeachment as any other witness. “The credibility of a witness may be impeached by proof on cross-examination of specific acts of immorality.” Lockett v. State, 136 Ark. 473; Jordan v. State, 141 Ark. 505; Shinn v. State, 150 Ark. 215.

4. The appellant objected to certain remarks of the prosecuting attorney in his closing argument to the jury, and urges here that these remarks were prejudicial,1 but the court instructed the jury that these remarks were not to be considered by the jury in arriving at their verdict, and that the jury must not be influenced by such remarks. It is unnecessary to set forth the remarks of the district attorney. We have examined them, and they were not so flagrant in character that any prejudice in the minds of the jury produced by them could not be removed by the instructions of the court. The instructions of the court were abundantly sufficient to remove any possible prejudice from the minds of the jury that the remarks of the prosecuting attorney might have produced.

5. The court refused to exclude the testimony of certain witnesses with reference to sales of leases and collections of money by appellant from other parties than those specified in the indictments under which appellant was being tried. But this testimony all related to acts of a similar character as those charged in the indictments and which took place about the same time. The issue as to whether or not appellant obtained money under false pretenses, being one of good or had faith on his part, the testimony “was admissible to prove a series of similar acts done about the same time as tending to establish the particular intent of the appellant.” Howard v. State, 72 Ark. 586; Bledsoe v. State, 130 Ark. 122; Monk v. State, 130 Ark. 358.

The appellant raised only a general objection to the testimony. The testimony was admissible for the purpose of showing the intent, but for no other purpose. The appellant, however, did not ask the court to so instruct the jury. He made only a general objection to the testimony, and therefore his objection cannot avail him. Bodcaw Lumber Co. v. Ford, 82 Ark. 555.

6. The record recites that the “appellant entered his motion for a continuance of the cases to a future date for trial, which motion is overruled,” to which ruling the appellant excepted. But the motion for continuance has not been brought into the record. Therefore, there is nothing upon which to predicate error in this ruling of the court. When the jury returned its verdict the court remarked: “Just let the verdict be amended so as to number the indictments if that is the intent of the jury. Is that your intention gentlemen to find the defendant guilty on all the indictments?”

The foreman of the jury announced that it was. The court then orderd the verdict amended so as to read as follows: “We, the jury, find the defendant guilty as charged in the five indictments, and leave the punishment to the mercy of the court.” The verdict was then read as amended, and the jury was asked if that was their verdict, to which each of the twelve answered “Yes it is” in nnison. The defendant excepted to the amendment of the verdict upon the order of the court, and excepted to the verdict.

There was no error prejudicial to appellant in the above proceeding. The remarks of the court did not invade the province of the jury by indicating the court’s opinion of the facts. The obvious purpose of the court’s inquiry was to ascertain whether the jury intended, to-find the appellant guilty on all the cases that were being tried. The inquiry was proper, and the court correctly ruled in directing the verdict amended to conform to the response of the jurors. See Gilchrist v. State, 100 Ark. 330-339. The appellant did not ask to have the jury polled, which he had the right to do under § 3216, C. & M. Digest. He is therefore in no attitude to complain that the verdict as finally rendered was not the finding of the jury on all of the indictments.

7. The record shows that, after the judgment of sentence had been pronounced against the appellant, the court suspended the execution of same until further order of the court. There is no authority in law for the trial court to suspend the execution of a judgment of conviction in a criminal case from term to term. The court, during the term, to be sure, has power over its judgment and could set aside the same, but at the close of the term the conviction and judgment and sentence become final, and -any order suspending the execution of same, when the defendant is in the. presence of the court or in the custody of the sheriff, in the absence of a' statute authorizing it, is void. The law contemplates that, lipón a verdict of guilty, unless such verdict is set aside and a new trial granted, the court shall render a judgment of sentence which, in the absence of a statute duly authorizing its suspension, must be duly executed. See § 3203-4, Crawford & Moses’ Digest.

We find no error in the proceedings calling for reversal of the judgment of conviction, and the same is therefore affirmed. The order of the court directing the suspension of the execution of the judgment is null and void, and' the sheriff; of Pulaski County is therefore hereby directed to execute the judgment of sentence the same as if it had not been suspended.


source: Caselaw Access Project

author: Hart, J. (after stating the facts).

license: Public Domain

text:
    Gibson v. Gibson.
    Opinion delivered January 22, 1923.
    1. Deeds — mental capacity. — In the absence of fraud or undue influence, mere weakness of mind resulting- from old age is no ground for setting aside a deed, provided the grantor was able to understand the nature and effect of the particular act in which he participated.
    2. Deeds — mental capacity — burden of proof. — On appeal by plaintiffs in a suit to set aside a deed on the ground of want of mental capacity in the grantor resulting from old age, the burden was on the plaintiffs in the Supreme Court as well as in the trial court to establish the grantor’s mental incapacity by a preponderance of the evidence.
    3. Deeds — mental capacity — weight op evidence. — In a suit to set aside a deed by a husband to his wife on the ground of his mental incapacity, evidence held insufficient to support a finding that the grantor did not have mental capacity to execute the deed.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellant prosecutes this appeal to reverse a decree against her setting -aside a deed made to her to certain lands by her husband on the 24th day of November, 1920. Her husband, Hugh IT. Gibson, died on January 1, 1921, -and this suit was brought by appellees, who are his heirs-at-law and children by a former wife, against appellant to set aside said deed.
    It -appears from the record that Hugh H. Gibson was a native of Ireland, but had resided in Conway County, Ark., for a -great many years prior to his death. He was seventy-three years of age at the time of his death, and left surviving him his widow, Mrs. M. A. Gibson, whom lie had married on the 25th day of November, 1915, and three children by his first wife, Wilson Gibson, Mrs. Connie O’Shea, and H. H. Gibson, Jr., as Ms sole heirs-at-law. Wilson Gibson was forty-six years old, Mrs. Connie O’Shea fifty, and H. H. Gibson, Jr., forty years old at the time their father died.
    , The property in controversy is estimated to be of the value of $2,500. Hugh H. Gibson was confined to the asylum for the insane in 1894, and his first wife made the affidavit alleging his insanity. He was subsequently discharged from the asylum as cured. His children brought Mm to the Battle Creek Sanitarium at Little Rock in 1904, and, according to their testimony, his mental condition was bad in 1904 and 1905.
    H. H. Gibson brought a suit for divorce against his first wife, and she filed an answer and cross-complaint asking for a divorce from him. - She was granted a divorce on her answer and cross-complaint in 1905. and dower was assigned her in the real and personal estate of said H. H. Gibson.
    The divorce suit caused an estrangement between H. IT. Gibson and his children. He became very -much embittered against two of them, and frequently declared that they should never have any of Iris property. He married the appellant on the 25th day of November, 1915, and lived with her until his death.
    According to her testimony, at the time they married H. H. Gibson agreed to leave her all of Lis property, and she agreed to marry him and take care of him the rest of his life. She had a farm and sufficient property to support herself at the time. She was forty-eight years old when her husband died.
    In 1916, H. H. Gibson went to Russellville, Ark., and procured Judge R. B. Wilson to write his will. He gave his children $25 each and devised the rest of his property to the appellant, whom he designated as his beloved wife. On the 24th day of November, 1920, he executed the deed in question to appellant. The deed recites the following:
    “That I, H. H. Gibson, for and in consideration of the sum of one dollar to me paid by Mrs. M. A. Gibson, and the further consideration of her agreement to live with and care for me during my natural life, and my love and affection for my wife, do hereby grant, bargain, sell, and convey .unto the said Mrs. M. A. Gibson and unto heirs and assigns forever, the following land, situated in the county of Conway and State of Arkansas, to wit: (Here follows the description of the land).
    “It is agreed and understood that H. H. Gibson shall have the land for and during his natural life.”
    In 19.14 H. II. Gibson was confined in the State insane asylum. This time the affidavit was made by Wilson. Gibson, who says he made it upon the direction of the authorities in the city of St. Louis, where his father had temporarily gone. His parole was procured by a niece, and he was in a few months discharged from the asylum.
    The record shows that H. H. Gibson was admitted to the asylum on October 22, 1914, and a diagnosis shows him to have been afflicted with mental depression with senility.
    According to the testimony of Dr. C. Arkebauer, this is an affliction of old age, and does not, in the early stages, render the patient incompetent to make and understand any ordinary contract. Such mental incompetency would depend upon the progress of the disease. Dr. Arkebauer has specialized in the treatment of mental and nervous diseases for the past twenty-one years.
    In May, 1915, after the examination of witnesses, the court made an order releasing H. H.. Gibson from the asylum on the ground that he had so far recovered from his late illness as to be capable of attending to his own business. The depositions of seventeen witnesses on each side were read before the chancellor at the hearing of the case.

      The chancellor made a finding to the effect that H. H. Gibson was mentally incompetent to execute the will prepared by Judge "Wilson in March, 1916, and the deed written by Edward. Gordon in November, 1920.
    A decree was accordingly entered in favor of appellees, the plaintiffs in the court below, setting aside said deed and will 'and quieting the title to the lands embraced therein in appellees, subject to the widow’s dower. As above stated, the case is here on appeal.

      Edward Gordon, for appellant.
    1. Hugh H. Gibson was not insane. Proof that a testator was incoherent in speech null not affect his testamentary capacity as against evidence of ability to transact business, where the will was reasonable. 16 N. Y. S. R. 983, 2 N. Y. Supp. 24. For definitions of delusions see New Standard Diet., p. 676; "Wharton & Stille, Med. Jur., vol. 1, p. 80. A delusion will not affect the validity of an instrument where it is in no way connected with the subjects or objects of the testamentary act. Wharton & Stille, Med. Jur., vol. 1, p. 84, §83; Id., p. 85, §85; Id., 117, §13; Schweitzer v. Bean, 154 Ark. 228.
    2. The deed, as a matter of law, cannot be canceled under the facts and circumstances of this ease. Non-expert witnesses must detail the facts upon which they base their opinions as to a grantor’s mental capacity, before such testimony is admissible. 119 Ark. 469; 103 Ark. 196; 97 Ark. 450, 457; Wharton & Stille, Med. Jur., vol. 1, p. 444, § 364; 22 C. J. 602. See also 29 Ark. 151; "Wharton & Stille, Med. Jur., vol. 1, p. 68, § 64; Id., p. 104. Not only is there the presumption of sanity in Gibson’s favor, but there is satisfactory and convincing proof of his mental capacity to transact business and make contracts, both in the testimony of witnesses who knew him long, associated with and had business dealings with him, and in the contents of the deed itself dictated by him. 73 Ark. 172; 15 Ark. 555. The judgment of the probate .court declaring him insane was without notice and void. 32 Ark. 674. The agreement between Mr. and Mrs. Gibson before marriage was reasonable, and the consideration valuable and sufficient. 117 Ark. 231, 232; 128 Ark. 146, 148; 78 Ark. 422, 424; 70 Ark. 166. If Gibson had failed to execute the deed, equity would have decreed specific performance of the contract, Mrs. Gibson having fully carried out its terms. 128 Ark. 1; 102 Ark. 30; 105 Ark. 494; 117 Ark. 228. See also 146 Ark. 266; 1 Wharton & Stille, Med. Jur., 5th edition, p. 8, §5; C. B. 23; 10 Allen, 59; 48 N. H. 133; 2 Am. Rep. 202; 10 Pa. 56; 49 Am. Dec. 573; 92 Pa. 428; 185 111. 618, 76 Am. St. Rep. 59, 57 N. E. 770; 145 Ind. 673, 44 N. E. 543; 107 la. 52, 77 N. W. 511; 34 Nan. 8, 55 Am. Rep. 233, 8 Pac. 584; 88 Md. 368, 42 L. R. A. 745, 71 Am. St. Rep. 418, 41 Atl. 908; 151 Mo. 431, 52 S. W. 214; 25 Nev. 261, 59 Pac. 863, 62 Pac. 705; 38 N. J. L. 536; 79 N. Y. 541; 76 App. Div. 393, 78 N. Y. Supp. 109; 80 N. C. 236, 30 Am. Rep. 77; 37 S. W. 784; 28 Wis. 272; 139 IT. S. 176, 35 L. Ed. 123.

      Strait & Strait, for appellees.
    1. We think the proof of Gibson’s insanity is overwhelming, and the chancellor’s finding to that effect is at least persuasive, and will not be overturned unless it is clearly against the preponderance of the evidence. Where the testimony is sharply conflicting, the chancellor’s finding will not be disturbed. 148 Ark. 295; 146 Ark. 99; 145 Ark. 247; 144 Ark. 50; Id., 573; 143 Ark. 319. All the physicians who testified are agreed on the proposition that his insanity was progressive, incurable and of a nature that incapacitated him from transacting business. Peterson & Haynes, Mental Diseases, vol. 1, p. 616; Church & Peterson, Nervous and Mental Diseases. 685. The testimony of appellee’s other witnesses shows that he was generally insane, incapable of transacting business and making contracts. When, by reason of age, decrepitude or mental disease, one Decomes an imbecile or unable to manage his affairs, an improvident disposition of his property will be set aside. 84 Ark. 490; 27 Ark. 166; 29 Ark. 151; 73 Ark. 170; 97 Ark. 450; 145 Ark. 247; 115 Ark. 430.
    2. If there was ever an antenuptial contract between appellant and Gibson, it was verbal merely, and therefore void. C. & M. Dig., § 7028; 30 Ark. 417; 44 Ark. 112; 67 Ark. 79.
   Hart, J. (after stating the facts).

The law is well settled in this State that, in the absence of fraud or undue influence, mere weakness of mind resulting from old age is no ground for setting aside a deed, provided the grantor was able to understand the nature and effect of the particular act in which he participated. McCulloch v. Campbell, 49 Ark. 367; Taylor v. McClintock, 87 Ark. 243, and Rogers v. Cunningham, 119 Ark. 466.

There is no evidence of fraud or undue influence in the record. .The deed is sought to be set aside solely on the ground of the mental incapacity of the grantor. Chancery cases are tried de novo on appeal, and the burden rested upon appellees in the court below (and rests upon them here) to establish the mental incapacity of Gibson to make the deed in question, by a preponderance of the evidence. This they have failed to do. The depositions of seventeen witnesses on each side were read before the chancellor and are- contained in the record.

Intelligent and reputable citizens and neighbors of H. H. Gibson, who had known him well for many years, testified on both sides of the case. Each side also had two or three skilled physicians who had known Gibson for a long time. The physicians who testified at the instance of appellees were of the opinion that Gibson had suffered- for many years with paranoia and was under the delusion that he was being persecuted by his children. They considered him mentally incompetent to make the deed in question. ■ The other witnesses for appellees also testified that they had known Gibson for many years, and did not consider that he was mentally capable of making the deed in question.

On the other hand, witnesses who had equal opportunities of knowing the mental condition of JI. IT. Gibson for many years prior to his death testified that he was mentally competent to execute the deed. They said that, while he had some peculiarities and possessed a quick temper, he fully understood what he was doing, and was capable of attending to his own affairs. They said that he had become estranged from his children on account of their taking their mother’s part at the time she was divorced from him. This estrangement finally led to extreme bitterness 'between Gibson and two of his children..

A physician who attended Gibson during the last year of his life several times, and who had known him well for many years, testified that he was mentally competent to make the deed.

It is fairly inferable from the testimony of Dr. Arkebauer, taken in connection with the short time that Gibson remained in the asylum during the latter part of 1914 and the first part of 1915, that Gibson had fully recovered from any mental incompetency from which he suffered when he was confined in the asylum.

A judgment of the court was rendered in May, 1915, releasing him from the asylum, and it recites that Gibson had fully recovered from his illness.

It will be remembered that Gibson was out on parole at the time the judgment was rendered, and that the court not only based its finding upon the testimony of witnesses, but on the fact that Gibson was at home on parole.

Appellant testified that, at the time she married Gibson, in November, 1915, he agreed to convey all of his property to her, and she agreed to marry him and take care of him during the rest of his life. In March the next year Gibson made a trip to Russellville, and directed Judge R. B. Wilson to prepare his will. His wife was not with him, and no one else was there to advise Judge Wilson of the disposition he wanted to make of his property. Gibson directed Judge Wilson to prepare his will bequeathing $25 each to his three children, who were named in the will, and the rest of his property was devised and bequeathed to appellant, who was called his beloved wife. So far as the -record discloses, this was done without the prompting of any one. This shows that Gibson recognized the agreement he had made with his wife at the time of their marriage to leave her all of his property, or at least tends to show’ that at that time he intended that she should have all of his property at his death, except a small sum bequeathed to each of his children. The fact that he specifically mentioned his children in the will tended to show that he recollected them and intended that they should not have any of his property.

His first wife had alreády been given one-third of all his property at the time she obtained a divorce from him. When Gibson directed the deed in question to be prepared in November, 1920, he stated to the attorney who prepared the deed that he did not intend for his children to have any of his property, and that he wanted his wife to have all of it. He stated further that he felt under obligations to his wife and wanted her to have all of his property, in recognition of their marriage agreement. He told his attorney that he had agreed to convey all of his property to her if she would marry him and take care of him.

The deed recites the consideration that appellant had agreed to live with and care for her husband during his natural life. This agreement had been made at the time of their marriage in November, 1915, and the appellant had carried out this agreement on her part for five years before the deed in question was executed. It will also be noted that the deed contains this clause: “It is agreed and understood that H. II. Gibson shall have the land for and during his natural life.” The insertion of this clause in the deed by Gibson tends to show that he understood what he was doing, and that, while he was executing the deed to carry out the agreement he made with his wife at the time of their marriage,- still lie desired to retain control, of his land until he died. This was an act of prudence on his part negativing the idea that he did not understand what he was doing when he executed the deed. His wife was not present, and it is not shown that the deed was made at her suggestion.

It is true that Gibson did not live long afterwards, but it must be remembered that he had agreed to make the deed to his wife at the time of their marriage, five years before, in consideration that she would take care of him, and this agreement she had faithfully carried out, so far as the record discloses.

No good purpose could be accomplished 'by setting out in detail the testimony of the various witnesses in the case and discussing and analyzing their testimony at length. We deem it sufficient to say that we have carefully read and considered the evidence in the record, and are of the opinion that the finding of the chancellor that Gibson ivas mentally incompetent at the time he executed the will and deed in question is against the preponderance of the evidence.

As above stated, the burden of proof was upon appellees to show this fact, and, having failed to do so, the learned chancellor erred in setting aside and annulling the will and deed.

It follows that the decree must be reversed, and the cause will be remanded, with, directions to dismiss the complaint for want of equity.


text:
    Runyan v. Richardson.
    Opinion delivered January 22, 1923.
    1. Courts — judicial sales — conclusiveness of decision of foreign COURT. — In an action against a purchaser at a judicial sale under proceedings had in a court of another State for failure to pay the purchase money, the decisions of that State must govern.

      2. Judicial sales — liability op purchaser. — In Alabama there is an implied condition in every judicial sale that, if the purchaser fails, after acceptance by the court, to carry out the terms of the contract of purchase, there may be a resale at the .expense of such purchaser, who is also liable for any deficiency between' his bid and the amount realized at such resale.
    3. Judicial sales — liability op purchaser. — In an action against the purchaser at a judicial sale in Alabama for damages for default in the payment of the purchase price, where the sale at which the defendant was the successful bidder was reported to . the court, and was thereafter set aside solely because of defendant’s failure to pay the purchase price, held that it was unnecessary to show a confirmation of the sale in order to hold defendant for deficiency caused by a resale.
    4. Judicial sales — liability op purchaser — notice op resale.— A purchaser at a judicial sale who has made a bona fide attempt to comply with the terms of the sale and failed to do so because of some irregularity, is entitled to notice of a resale before liability for a deficiency attaches; but where the purchaser made no attempt at compliance, and absolutely refused to pay for the land, he took upon himself notice of all consequences which might legally result from his failure, and is not entitled to notice of any proceedings to set aside his purchase and order a resale.
    Appeal from Clark Circuit Court; George R. Raynie, Judge;
    reversed.
    STATEMENT OE PACTS.
    This action was brought by W. L. Runyan, as register in chancery in the circuit court in equity of Clay County, in the State of Alabama., against Stephen E. Richardson, to recover of the defendant damages for his failure to comply with his bid at a sale of eighty acres of land ordered sold for the purpose of partition.
    Mary E. Cook filed her petition against James Goddard and otliers in the circuit court in equity of Clay County, Alabama, for partition, by a sale, of eighty acres of land in said county and State.
    A decree was duty entered of record directing a sale of said land for partition to the highest bidder, for cash in hand, and "W. L. Runyan, -who was the register of the court, was appointed to make the sale. After advertising the time, place, and terms of sale as directed by the court, said register on the 25th day of November, 1918, at the courthouse door at Ashland, Alabama; offered said land for sale, and Stephen E. Richardson, one of the joint owners of said land, bid for said land the sum of $1,825, and, being the highest bidder, the land was sold to him for that sum. Richardson returned to the State of Arkansas, where he lived, without paying the amount he had bid for the land.
    On the 4th day of February, 1919, the attorney in the partition proceedings wrote Stephen E. Richardson, notifying him that he had not paid for the land, and that, if the purchase money was not paid by the 15th inst., lie would ask for a resale of the property. The letter also notified Richardson that he would be liable for the costs of a resale and the amount the land lacked of bringing its former price.
    In August, 1919, Richardson wrote to the register that he had purchased the land with the understanding between himself and certain other joint owners of it that he was only to pay for a third interest in the land. The letter stated that he was readj'- to pay for the third interest, but that he was not going to pay the balance of the purchase price.
    On the 25th day of October, 1919, W. L. Runyan, register as aforesaid, reported to said court the failure of S. E. Richardson to pa}T the purchase price and thereby comply with his bid. It was then decreed by the court that the sale be set aside for noncompliance by 8. E. Richardson with the terms of sale and for his failure to pay the amount of his'bid into court.
    It was further decreed that .said register should again advertise said land for sale upon the same terms as at the first sale. Thereupon said register re-advertised and resold said land on November 29, 1919, in front of the courthouse at Ashland in Clay County, Alabama.
    J. W. Williams bid for said land the sum of $800, and, that being the highest bid, the land was sold to him for that sum, which was paid in cash. Said sale was duly reported to the court and confirmed by it on January 3, 1920. The register’s deed was duly executed and delivered to said J. W. Williams. Stephen E. Richardson failed and refused to pay to said register the difference between his bid and the bid of Williams and the cost of a resale. Hence this lawsuit.

      John E. <& Dwight E. Crawford, for appellant.
    The suit was properly brought. 108 Ala. 601; 18 So. Rep. 609. The default of the purchaser rendered a confirmation of the sale legally impossible. 133 Ala. 304; 118 Ala. 215; 108 Ala. 601; 18 So. Rep. 609; 16 R. C. L. 170; 21 Nev. 291; 30 Pac. 1064; 143 Ark. 445. Failure, without excuse, to pay his bid renders the bidder liable at a resale for the difference, if any, between his bid and the amount for which the land is sold at the completed sale. 35 Ala. 503, 76 Am. Dec. 297; 108 Ala. 601, 18 So. Rep. 609; 118 Ala. 215. Richardson having failed to comply with his bid, he was not entitled to notice of a resale of the land. 131 Ala. 505; 118 Ala. 215; 108 Ala. 601; 18 So. Rep. 609. The case should have been ruled by the law of Alabama. Vol. 2 Alabama Code.

      McMillan S McMillan, for appellee.
    The decree of the Alabama court, in holding that the sale to Richardson was a nullity, released Richardson from liability on the second sale. 16 R. C. L. p. 161, § 118; 2 Freeman on Execution, 313B; 119 Ky. 401; 84 S. W. 323. The sale was not complete until confirmed by the chancery court. 2 So. Rep. 93; 73 Ala. 85; 3 So. Rep. 850. There was no showing in the decree that the second sale was to be at Richardson’s risk. 90 Fed. 622.
   Hart, J. (after stating the facts).

This was an action by the plaintiff against the defendant to recover damages for the failure of the defendant to comply with the terms of his purchase of certain land which was ordered sold for division by a decree of a circuit court in equity in the State of Alabama. The defendant became the purchaser at the sale, and, upon his failure to pay the purchase money, the land was again ordered sold upon the same terms, and was sold for a smaller amount

The issue raised by the appeal is whether or not the defendant is liable to the other tenants in common for the deficiency between his bid and that for which the land was resold. The land in question is situated in the State of Alabama, and the partition proceedings were had in a court of that State. Therefore the decisions of the Supreme Court of that State must govern. Robertson v. Robertson, 144 Ark. 556, and Williams v. Nichols, 47 Ark. 254. The Supreme Court of the State of Alabama has held that, when the 'successful bidder 'at a judicial sale fails to complete the purchase by complying with the terms thereof, the land may be resold at his risk; and that, if a less price be brought at the second sale, the first purchaser becomes liable to the person injured by his default for the difference between the amount paid at the first sale and the price brought at the second, together with the expenses of the second sale. The court said that, in every judicial sale, there is a condition implied by law, which does not depend on any expression of the condition in the order of sale, or in the terms announced at the time of sale, that, if the purchaser fails to comply with the terms of the purchase, if accepted by the court, the land may be resold at his risk, and he will pay the deficiency arising on the second sale, together with the expenses thereof. Howison v. Oakley, 118 Ala. 215.

The land being situated in the State of Alabama, and having been sold at a judicial sale under the decree of a court of that State having jurisdiction in the premises, it follows that the right to recover for a deficiency resulting from a resale is an incident attending the sale, and that the measure of damages is the difference between the amount bid b3r Richardson at the first sale and the amount Tor which the land was sold for at the second sale.

But it is contended by counsel for the defendant that this rule does not apply, because the first sale made to Richardson was not confirmed by the court.

It appears from the record that the sale at which Richardson became the successful bidder was reported to the court, and that the sale was set aside because Richardson had failed to comply with the terms of the sale by paying the purchase money. Under the authority of the case of Howison v. Oakley, supra, we are of the opinion that, under this state of'the record, the bid of Richardson was accepted by the court, and that the sale was vacated solely on the ground of Ms failure to pay the purchase money. Hence it was not necessary to show a confirmation of the' sale in order to hold Richardson for 'the deficiency caused by a resale of the land.

It also results from that decision and other decisions of the Supreme Court of Alabama that the right of resale at the purchaser’s risk is a condition of every judicial sale, implied by law, and does not depend on any expression of the condition in the order of sale, or in the terms announced at the time of sale. By reason of this implied condition, the purchaser agrees that, if he fails to comply with the terms of the purchase, the land may be resold at his risk, and he will pay the deficiency arising on the second sale. Hutton v. Williams, 35 Ala. 503; 76 Am. Dec. 297, and Howison v. Oakley, supra.

Again, it is contended that it was necessary that Richardson should have notice that a resale would be made in order to hold him liable for the deficiency. This would be true if Richardson had made a bona fide attempt to comply with the terms of the sale at which he became the purchaser and failed to do so on account of some irregularity merely. In the instant case Richardson made no attempt to comply with the terms of sale, and absolutely refused to pay the purchase money. He thereby took upon himself notice of all consequences which might legally result from Ms failure, and is not entitled to notice of any proceeding thereafter to set aside his purchase and to order a resale of the land. Griel v. Randolph, 108 Ala. 601, and Howison v. Oakley, 131 Ala. 505.

The views we have expressed will result in a reversal of the judgment, and the cause will be remanded for a new trial..


text:
    Brown v. Kirkland.
    Opinion delivered January 22, 1923.
    1. Courts — method op appeal prom common pleas to circuit court. — Acts 1915, p. 1438, establishing a court of common pleas for certain counties, provided in § 9 two modes of taking an appeal, viz., (1) by application to the court in open session during the term at which the judgment was rendered; and (2) by filing the affidavit and bond with the clerk after the term has adjourned and without any action by the court.
    2. Court — allowance of appeal by clerk. — Under Acts 1915, p. 1438, § 9, providing for appeals from the common pleas to the circuit court in certain counties by filing a bond and affidavit for appeal with the circuit clerk, who is also clerk of the court of common pleas, held, where the clerk indorsed and filed a bond and' affidavit for appeal and made and certified a transcript to the circuit court, and there docketed the case, this was sufficient to show that the clerk had granted the appeal, thereby investing the circuit court with jurisdiction.
    3. Courts — appeal prom common pleas court — necessity op notice. — Under Acts 1915, p. 1438, establishing a court of common pleas in certain counties and providing by section 9 thereof that appeals to the circuit court may be taken by making a bond approved .by the clerk and affidavit, and by serving notice on the appellee,- and, under Crawford & Moses’ Dig., § 6527, providing that no appeals shall be dismissed for appellant’s failure to give notice of his appeal, held that failure to give such notice on appeal allowed by the clerk was not ground for dismissal.
    Appeal from Asliley Circuit Court; Turner Butter, Judg’e;
    reversed.
    statement oe facts.
    Robert Kirkland brought suit against ¥m. Mark Brown, Pine.Prairie Oil Company and Louisiana-Arkansas Oil Company, in the court of common pleas of Ashley County, Ark., to recover $173 for work and labor done by the plaintiff for the defendants,
    Gr. F. Pittard brought a like suit in the same court against the same defendants for $564.
    Monroe Tramel brought a like suit in the same court against the same defendants for $183.
    An affidavit for warning order and attachment was made and a bond duly executed by the plaintiff in each case.
    Wm. Mark Brown filed a motion to require the plaintiff to strengthen his bond, and asked for three days within which to file an answer, and two weeks within which to file depositions. The defendant, Brown, specifically stated in the motion that he did not enter his appearance to the suit except for the purpose of denying the jurisdiction of the court. The co-defendants of Brown also asked time within which to prepare their answer and to file depositions.
    The plaintiff in each case objected to the motion of the defendants in which they asked time to file answers and depositions in their behalf. The court of common pleas, however, granted the motion of the defendants, and set the cases separately for trial at a laxer date.
    The court also, was of the opinion that the bonds of the plaintiff in each case should be strengthened as prayed by the defendant, Brown, and made an order to that effect.
    Oh the 5th day of December, 1921, being an adjourned day of the regular November term of the court, each of said causes was heard and determined by the court of common pleas. The court, in its judgment, recites that the return of the sheriff shows due and legal service upon the Pine Prairie Oil Company and the Louisiana-Arkansas Oil Company.
    The court further found that the defendant, Brown, by filing the various motions recited above, entered his appearance generally to the suit, although he specificallv declared in said motion that he had entered his appearance only for the purpose of contesting the service upon him in said cases. Judgment was rendered against the defendants in each of said cases.
    On the 17th day of December, 1921, the defendant, Brown, filed an affidavit for appeal from each of said judgments before the circuit clerk of Ashley County.. The affidavit for appeal was in proper form and duly subscribed and sworn to by Brown. Brown also filed before the circuit clerk in each of said cases the bond for appeal in the form required by the statute, and this bond was signed by good and sufficient sureties. The affidavit for appeal and -the appeal'bond in each case contains an indorsement as follows: “Piled this 17th day of December, 1921. George Keener, clerk.”
    George Keener was the circuit clerk of Ashley County. The circuit clerk made transcripts in the three cases and certified the same to the circuit court in due time. The circuit clerk also docketed said cases in the circuit court. The circuit court made an order consolidating the three cases for trial, and sustained a motion of the plaintiff to dismiss the appeal.
    Judgment was then entered affirming the judgment of the court of common pleas, and judgment was also rendered in favor of the plaintiff against the sureties on the appeal bonds of the defendants.
    To reverse that judgment the defendants have duly prosecuted an appeal to this court.

      George S Strangways and Cohn, Clayton é Cohn, for appellants.
    It was not essential that there be a docket entry by the clerk showing a granting of an appeal to the circuit court. 11 Ark/ 302; 12 Ark. 80; §6519, G. & M. Digest. Acceptance of the appeal bond and failure to disapprove same acted ipso facto as an approval. 25 Ala. 538; 20 Wis. 309; 9 Calif. 571; 73 111. App. 107. An appeal was actually granted, but, aside from this, the action of the clerk in preparing transcripts for appeal and filing was significant. His every action tended to show his intention of granting the appeal. Approval of the bond constitutes an allowance of an appeal. 105 U. S. 262; 180 IT. S. 536; 172 U. S. 148; 128 IT. S. 258. See also 104 Ark. 113 at p. 118 and 110 Ark. 374 at p. 377. The failure to give notice to appellees of the appeal was not fatal to the court’s jurisdiction. Sec. 6527, C. & M. Digest. Appearance of appellee was entered by asking an affirmance of the common pleas judgment, and for judgment on the bond. The circuit court could not both dismiss the appeal and render judgment of affirmance on the bond. 77 Ark. 152; 26 Ark. 315; 102 Ark. 511.

      Compere & Compere, for appellee.
    The question as to whether an appeal had been perfected was one for the circuit court, and, there being sufficient evidence to sustain the finding that an appeal had not been granted, the judgment of the circuit court will not be disturbed on appeal. 117 Ark. 628. A justice court is not a court of record, whereas a common pleas court is. Const, art. 7, § 32. There is no presumption that an appeal has been granted because affidavit and bond have been filed, and transcript filed in circuit court. 117 Ark. 292; 126 Ark. 211; 138 Ark. 131. The acceptance of the appeal bond and filing same did not constitute a perfected appeal. See 117 Ark. 292; 26 Ark. .414; 148 Ark. 14; 65 Ark. 419; 9 Ark. 128; 4 Ky. L. 449; 111 Ky. 890. Notice of the appeal was necessary. The appeal was properly dismissed, and no error was committed in giving judgment against the sureties: 4 C. J. 1278, note 37. The sureties did not appeal, and judgment as to them could not be reversed upon the appeal of a party as to whom there is no error. 37 Ark. 405; 57 Ark. 547; 39 Ark. 266; 44 Ark. 59; 19 Ark. 491.
   Hart, J. (after stating the facts).

The only issue raised by the appeal is whether or not the circuit court erred in dismissing the appeals of the defendants from the court of common pleas of Ashley County.

The Legislature of 1915 passed an act establishing a court of common pleas in Ashley and Drew counties. Acts of 1915, p. 1438.

Sec. 3 provides that the clerk of the circuit court shall be ex-officio clerk of the court of common pleas.

Sec. 9 provides that aggrieved persons, may appeal to the circuit court, and reads as follows:

“That any person aggrieved by any final judgment rendered by said court, except as to judgment' of dismissal for want of prosecution, may take an appeal to the circuit court within thirty days after rendition of said judgment, by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeal from justices’ courts to the circuit court. Provided, that the affidavit for appeal may be made by the party, his agent or attorney; and provided, further, that if the court has adjourned the appeal shall be allowed by the clerk, when notice of the appeal, in such case, shall be served upon the appellee, his agent or attorney of record; but if allowed by the court in open session, upon motion of the appellant, and the filing of the affidavit and bond before the final adjournment of the court, no further notice to the adverse party shall be necessary.”

Sec. 10 provides that, on all appeals to the circuit court, the clerk shall transmit all of the original papers, affidavit for appeal, the appeal bond, certificate of the amount of costs accrued, and a complete transcript of all the record entries in the case to the clerk of the circuit court, whereupon the circuit- court shall try said cause de novo.

To uphold the judgment of the circuit court in dismissing the appeal of the defendants, counsel for the plaintiffs rely upon decisions of this court with regard to appeals from the probate court, and, in certain instances, from the county courts.

The statute regulating appeals from the probate court expressly provides that the court shall make an order granting the appeal. Hence this court has held that, an order granting an appeal by the probate court is a prerequisite to the right of the circuit court to exercise jurisdiction, and cannot be waived. Speed v. Fry, 95 Ark. 148, and Thomas v. Thomas, 150 Ark. 43.

So also, under certain statutory proceedings for the creation of drainage districts, the county court and not the clerk must grant the appeal. This court has held that these statutory requirements are essential to jurisdiction, and therefore they cannot be waived. Drainage District No. 7 of Craighead County v. Stuart, 104 Ark. 113, and Drainage District No. 1 v. Rolfe, 110 Ark. 374.

This brings us to a consideration of whether or not the statute regulating appeals from the court of common pleas of Ashley County requires that the court should grant the appeal.

We have copied § 9 of the statute regulating the manner of taking appeals to the circuit court, and a careful reading of it shows that it is not necessary for the court of common pleas to grant the appeal unless the appeal is taken during the term of court at which the judgment was rendered. The section provides two modes of taking an appeal from the court of common pleas to the circuit court. One is to apply to the court in open session during the term at which tlie judgment was rendered, and the other is by filing the affidavit and bond with the clerk after the court has adjourned and without any action of the court.

In the instant case, after the adjournment of the court of common pleas, and within the time allowed by law for taking appeals, the defendant, Brown, filed an affidavit for appeal and appeal bond with the circuit clerk. It is true that the circuit clerk made no formal indorsement on these instruments that he had granted an appeal to the circuit court, but he did all that the law required of him in perfecting the appeal. He indorsed on the papers the date they were filed, and signed the indorsement as clerk of the circuit court. The circuit clerk was ex-officio clerk of the court of common pleas, and, as such, it was his duty to send in a-transcript of the proceedings to the-circuit court when an appeal was taken to that court from the court of common pleas.

The circuit clerk made and certified this transcript as required by the statute. The clerk also docketed the cases in the circuit court. Thus he performed every act essential to the granting of the appeal, and the only thing left undone was formally to indorse upon the affidavit for appeal that he had granted the appeal. The statutory affidavit for appeal and the appeal bond were duly presented to the circuit clerk, and he acted upon them by complying with all the requirements of the statute regulating appeals from the court of common pleas to the circuit court.

We are of the opinion therefore that the circuit court acquired jurisdiction of the proceedings, and erred in dismissing the appeal of the defendants.

The entering of an order upon the affidavit for appeal by the clerk of course would have been the best evidence that the appeal had been granted by him, but his act in complying with all the essential requirements of the statute regulating appeals in such cases was sufficient to show that he had granted the appeal and to invest the circuit court with jurisdiction. In recognition of this principle, see Hempstead County v. Howard County 51 Ark. 344, and Thomas v. Thomas, 150 Ark. 43.

It is also insisted that the judgment should be upheld because no notice of the appeal was given as required by the statute. Sec. 9 provides that appeals may be taken to the circuit court by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeals from justice courts to the circuit courts.

Sec. 6527 of Crawford & Moses’ Digest provides, in effect, that if the appellant failed to give notice of his appeal in a canse when snch notice is required, the canse 'may, on application of the appellee, be continued as a matter of course until the succeeding term, but that no appeal shall be dismissed for want of such notice. Hence the failure to give the notice required by the statute was not a ground for dismissing the appeal.

It follows that the court erred in dismissing the appeal of the defendants, and for that error the judgment must be reversed and the cause remanded, for further proceedings according to law.


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    Little River County Board of Education v. Ashdown Special School District.
    Opinion delivered January 22, 1923.
    1. Constitutional law — construction of statutes. — A statute will be sustained if there be ‘any reasonable doubt of its unconstitutionality.
    2. Schools and school districts — county superintendents.— The act of 1919, providing for county boards and making it their duty to elect a county superintendent of schools (Crawford & Moses’ Dig., § 8873 et seq.), is a valid exercise of legislative power.
    3. Schools and school districts — county superintendent not a STATE OFFICER. — The act of 1919 (Crawford & Moses’ Dig., § 8873 et seq.) providing for the election of county superintendents of schools by county boards of election held not a violation of art. 19, § 9, Const., prohibiting the creation of permanent State officers; county superintendents being either county officers or county employees.
    4. Schools and school districts — diversion of school funds.— The aet of 1919 (Crawford & Moses’ Dig., § 8873 et seq.) providing for the payment of county superintendents of schools and county boards of education from the common school fund, is not violative of Const., art. 14, §§ 1-4, relative to the creation and maintenance of common schools, as constituting a diversion of the school funds to other than school uses.
    5. Schools and school districts — diversion of school funds.— The act of 1919 (Crawford & Moses’ Dig., § 8873 et seq.), providing for the payment of the salaries of county superintendents of schools from the common-school fund, is not unconstitutional because part of their salaries is paid out of school funds which would otherwise go to the public schools in cities and incorporated towns having superintendents and which are expressly exempted from the supervision of county superintendents; the county superintendents having general supervision in such cities and towns by establishing uniform, grades and by other ways tending to promote the public school system.
    Appeal from Little River Chancery Court; James D. Shaver, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    The purpose of this action is to test the validity of the act passed hy the Legislature of 1919 creating a county board of education and providing for a county superintendent of schools.
    The suit was brought in equity by appellee against appellants, and the prayer of the' complaint is that the act be declared unconstitutional, and that appellants be restrained from appropriating any of the school funds of appellee towards the payment of the salary of the county superintendent, or the expenses of the county board of education.
    It appears from the record that Ashdown is a city of the second class in Little River County, Ark., and that Ashdown Special School District is a single school district created under the statutes of the State. Several districts outside of the corporate limits of the city of Ashdown have been annexed to said district. The district has both white and colored schools. Several of the colored schools are outside of the corporate limits, and one of them is fifteen miles from the city. The district employs a superintendent of schools at a salary of $200 per month, and his duty is to look after the schools of the district. He assigns the teachers to their positions and looks after the school work of the district generally.
    The colored schools are carried on for about three months in the year in Ashdown, and the superintendent does not look after these schools. He does not go to any of tlie schools outside of Ashdown. These colored schools are supervised by the county superintendent.
    The white schools of Ashdown are run nine months during the year. The superintendent of the district is regarded as the executive officer of the school board, and has the management of the pupils and school teachers, under the direction of the board. The county superintendent has never undertaken to exercise any authority over the high schools of Ashdown Special School District, except as to reports. He also indorses the school warrants.
    According to the testimony of the county superintendent, the superintendent of the Ashdown Special School District makes the course of study and has general jurisdiction over the entire system of the schools of the Ashdown Special District. The county superintendent has general supervision of all the schools in the county, and provides a uniform system of preparing questions and grading papers for all the schools in the county. The State Superintendent furnishes certificates of promotion from the grade schools to .the high schools, and the county superintendent in his own way supervises these promotions.
    The chancellor found that the city of Ashdown was a city of the second class, and that the schools within the incorporate limits fall within the exception to the statute creating the office of county board of education and county superintendent.
    The chancellor-further found that the county superintendent and county board of education had no right of supervision over the schools within the incorporated city of Ashdown, and that the schools within such corporate limits should not be charged with any expenses of tho county superintendent or county board of education.
    A decree was entered in accordance with the findings of the chancellor. The county board of education of Little River County, Ark., was specifically enjoined from making any deduction from any funds apportioned to the city of Ashdown, and such board was required to apportion all such funds to the schools within the incorporated city of Ashdown, free of all expenses incident to the office of count1- superintendent or of the county board of education.
    To reverse that decree this appeal has been prosecuted by the members of the county board of education and the county superintendent.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants; George R. Steele and Seth G. Reynolds, for appellant.
    Act 234 of Acts of 1919 is not violative .of Const, art. 19, § 9, in that it creates a permanent State office. This is a legislative and not a judicial question. 114 Ark. 217; 40 Ark. 100; 125 Ark. 350.
    The act does not violate sec. 28, art. 7 of the Constitution by depriving the county court of its exclusive original jurisdiction in all matters relating to county taxes. School funds are not county taxes as the term is used in the above section. The Legislature certainly has the power to distribute the 3-mill State levy as it sees fit, so long as the money is used for school purposes, and there is no allegation that the sum reserved out of appellant’s funds exceeded the apportionment of this fund to appellant. See 76 Ark. 23; 103 Ark. 529. Any dou'bt about the constitutionality of a statute must' be resolved in favor of its validity, if it is reasonably susceptible of such a construction. 138 Ark. 549; 139 Ark. 153; Id. 595; 215 S. "W. 709. The act is not in violation of sec. 11, art. 16, Const., since the school affairs of this State are governed entirely by art. 14, Const. 120 Ark. 85.
    The Constitution, art. 14, sec. 4, vests in the Legislature the supervision of public schools, and it may provide for proper officers for such purpose. The Legislature was but exercising this function in creating the office of county superintendent and the county board. A grant of power carries with it, by implication, authority to do whatever is reasonably necessary to make that power effective. Cooley, Const. Lira., 7th ed., p. 98. In construing a constitutional provision, the test is not whether certain power is given, but whether, in express terms or necessary implication, it is forbidden. 60 Ark. 343; 99 Ark. 100; 112 Ark. 342. The act is not violative of sec. 3, art. 14, Const. The local tax levy goes to the respective districts from which collected; the funds from which the board is supported come from the State tax, hence there can be no question of nonuniformity.
    While not directly on the point at issue, the following cases are illuminating: Mitchell v. School Dist., 153 Ark. 50, and Aeree v. Patterson, 153 Ark. 188.

      Steel, Johnson & Shaver, for appellee.
    The trial court held the act constitutional and thereby sustained the demurrer to all paragraphs in the complaint except number 10, and granted relief to appellee under this paragraph. No appeal was taken by appellee, and therefore all question as to the constitutionality of the act passes out of the case. Appellee falls within the exception noted in paragraph 10, and relief was properly granted it under that section.
   Hart, J. (after stating the facts).

The general rule is that a statute will always be sustained by the courts if there be any reasonable doubt of its unconstitutionality. The Legislature of 1919 passed an act providing for county boards of education and making it their duty to elect a county superintendent of schools. Crawford & Moses’ Dig., §§ 8873 et seq. We are -of the opinion that the constitutionality of the statute is settled by the principles decided in Mitchell v. Directors School District No. 15, 153 Ark. 50, and Acree v. Patterson, 153 Ark. 188.

In the first-mentioned case the court held that the act of the Legislature creating .county boards of education and conferring on them power to form new school districts or alter the boundary lines of existing ones, thus substituting the county board of education for the county court, was a valid and constitutional act, and did not violate the provisions of art. 7, § 28, of the Constitution, which, provides, among other things, that county courts shall have exclusive original jurisdiction over the. local concerns of their respective counties. In that case it was said that our earlier decisions on the subject show that the court did not consider the jurisdiction to form school districts or to change the boundaries was conferred upon county courts under the provisions of the Constitution referred to, but that it had always been considered a purely statutory power.

This holding was reaffirmed in Acree v. Patterson, supra, where the power of the county board of education to create a new school district was upheld. If the Legislature could create a county board of education, with power to create school districts, change the boundaries thereof, and to have general direction and supervision of the public schools of the county, there would seem to be no good reason why it could not provide for the election of a county superintendent by the county board of education, if it saw fit to do so.

The additional argument in the present case is made that the act violates § 9 of art. 19 of the Constitution, which provides that the General Assembly shall have no power to create a permanent State office not expressly provided for by the Constitution. It clearly appears from the language of the act that he is either a county officer or an employee of the county. The county superintendent is elected by the county board of education and is subject to removal by the said board. His general duties are to execute the orders of the county board of education and perform such other duties as may be prescribed by law. Thus it will be seen that be is not a State officer within the meaning of the provisions of the Constitution just referred to, and it is not necessary to decide whether he is a county officer or merely an agent employed by the county to superintend the common schools.

Again, it is insisted that the act in question is in violation of the provision of our Constitution relative to the creation and maintenance of common schools. See art. 14 of the Constitution of 1874.

Sec. 1 provides that the State shall maintain free schools for all persons between the ages of six and twenty-one years.

Sec. 2 provides that no money or property belonging to the public school fund or to this State for the benefit of schools and universities shall ever be used for any other than for the respective purposes to which it belongs.

•Sec. 3 provides for the levy of taxes to support the common schools of the State.

Sec. 4 provides that the supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the G-eneral Assembly.

In the construction of the act as a whole this court has held that the Legislature may designate the agencies through which the common school fund may be distributed and ascertain the basis on which such distribution may be made. It has held, however, that no specific appropriation by the Legislature is necessary for each year, because, the Constitution having* set aside the school fund for school purposes only, there is what is usually termed a constitutional appropriation. Dickinson v. Edmondson, 120 Ark. 80. In that case the court further held that the Constitution, having provided for the establishment of free schools for the education of persons between certain prescribed ages, the common school fund could not be expended for the instruction of persons without those ages.

The court further held that, while there was no ex- • •press provision in the Constitution for uniformity, the distribution of the common school fund must be uniform, and that therefore the school board could not be authorized by the Legislature to select particular high schools to be aided by the common school fund.

' ' There is nothing in the act under consideration which violates the article of - the Constitution providing for the establishment and maintenance of common schools, nor is there anything which conflicts with the principles of law laid down in Dickinson v. Edmondson, 120 Ark. 80. The Constitution does prohibit the Legislature from applying the common school fund to, any other branch of State expenditures except that immediately and directly connected with the establishment and maintenance of a common school system.

The Legislature deemed it expedient to create county boards of education and to provide for county superintendents for public schools. It also provided for the payment of these officers out of the common school fund. This did not constitute a diversion of the school fund to other than school uses. The Constitution provides that the supervision of such schools and the execution of the laws regulating the same shall be vested in such officers as may be provided for by the Legislature.

The offices in question were created by the Legislature solely for the benefit of the common schools. The county superintendent is the chief officer of the schools in the county, and the statute makes it liis duty to execute the orders of the county board and to perform such other duties as may be prescribed by law. Thus it will be seen that his official duties are directly connected with the supervision and regulation of the common schools, and the expenditure for his salary is directly and immediately connected with the common school system.

The Court of Appeals of Kentucky has held that a constitutional provision prohibiting the Legislature from appropriating school funds for any purpose than in aid of the public schools does not prohibit an appropriation from the school funds to meet the expenses of the department of education. Superintendent of Public Instruction v. Auditor of Public Accounts (Ky.), 30 S. W. 404.

The Supreme Court of Nevada has held that, the Superintendent of Public Instruction being immediately connected with the public schools, an act appropriating money from the general school fund for the payment of Ms salary is not contrary to a provision of the Constitution prohibiting the appropriation of the school fund for other than school purposes. State v. Westerfield (Nev.) 49 Pac. 554.

The chancellor was of the opinion that schools in incorporated cities and towns were exempted from the provisions of the act. ■

Sec. 8873 of Crawford & Moses’ Digest, which provides for the county board of education, reads as follows: “Prom and after the third Saturday in May, 1920, the public schools of each of the several counties of the State, except those schools in incorporated cities and towns that have superintendents devoting their time to school supervision, shall be under the general direction and supervision of a county board of education, consisting of five members. The county board of education of each county shall be elected by the qualified electors of each county at the annual school election. All members of the county board of education of any county shall be persons of good moral character, with at least a fair elementary education, of good standing in their respective communities, and known for their honesty, business ability, public spirit, and interest in the good of public education. ’ ’

The language of the statute is plain,' and there is an express declaration by the Legislature excepting schools in cities and incorporated towns from the supervision of the county board of education. It does not follow, however, that the act is void because a part of the salary of the county superintendent is paid for out of the school funds which would go to the common schools in cities and incorporated towns. "While the school fund cannot be diverted from the use for school purposes, as provided in the Constitution, the manner of the use is subject to legislative regulation, and the Legislature may direct and control the use. If the original beneficiary enjoys it anyway, there is neither diversion nor confiscation which the Constitution prohibits. Pearson v. State, 56 Ark. 148.

In that case the court upheld an act of the Legislature releasing the county treasurer from liability for school funds stolen by burglars without fault on his part. The court said that if the Legislature uses the funds or property as the beneficiary ought to have done, the law deems it as devoted to the use of the beneficiary; and this, though the particular application be made to satisfy a demand not enforceable in law or equity, but sanctioned only by established principles of right and fair-dealing.

Under the act in question, while the county superintendent does not have the particular direction and supervision of schools in cities and incorporated towns, he does in a sense have general supervision over them by establishing uniform grades, and in various other ways which tend to promote the common school system.

Therefore we are of the opinion that the chancery court erred in enjoining the county board of education from applying the proportion of the school taxes of appellees towards the payment of the salary of the county superintendent.

For that error the decree must be reversed and the cause remanded, with directions to the chancery court to enter a decree in accordance with this opinion.


author: Smith, J.

text:
    Newell Contracting Company v. McConnell.
    Opinion delivered January 22, 1923.
    1; Appeal and error — waiver of objection. — Objection that a suit in equity should have been brought at law is waived where no motion was made to transfer the cause to the law court.
    2. Receivers — testimony as to authority. — Testimony of the "president-of a bank that the bank had failed and that plaintiff ■ • had' been appointed receiver and -had taken charge of its af- ■ - fairs and was now administering its assets, which was -admitted without objection, shows that the receiver was authorized to maintain a suit upon a note held by the bank,
    3. Bills and notes — holder for value. — One who takes negotiable paper before maturity as security for -a debt, without notice of any defect therein or defense thereto, is a bona fide holder in due course for value, within Crawford & Moses’ Dig., § 7818.
    4. Bills and notes — holder for value. — The fact that the debt for which a note was given as collateral security was not due at the time the collateral was given does not affect the . question of value given for the collateral note.
    5. Bills and notes — good faith in taking note. — The good faith of a bank in taking the note in suit as collateral security is not impeached by the failure of the bank’s president to explain in detail the transaction in which he received the note, where he fully answered all questions asked him, nor by the failure of the principal note to recite the existence of the collateral where the principal note was executed before the collateral note, nor by failure to produce records of the bank showing ownership of the notes as collateral where no request for such records was made.
    Appeal from Cross Chanecry Court; A. L. Hutchins, Chancellor;
    affirmed.

      L. G. Going, for appellant.
    The chancery court was without jurisdiction. 56 Ark. 476; 20 S. W. 402. Where the remedy at law is complete, a party is not entitled to come into equity for relief. 7 Ark. 520; 13 Ark. 630; 26 Ark. 649; 27 Ark. 77; 48 Ark. 331; 30 Ark. 579; 14 Ark. 50; 141 Ark. 649. The cause should have been transferred to the circuit court. 27 Ark. 585.
    The proof is wholly insufficient to show that the bank was a holder of the note for value. In order to constitute one a bona fide holder, he must be a purchaser for value. 8 Cyc. 470, § 687; C. & M. Digest, § 7818; 131 Ark. 514.

      Gary & Vorder Bruegge and Hughes é Hughes, for appellee.
    The appellant having failed to move a transfer of this cause in the trial below, that question cannot be raised here for -the first time. C. & M. Digest, § 1041; 57 Ark. 589; 122 Ark. 104; 141 Ark. 155.
    One who takes negotiable paper before maturity as security for a debt, without notice of any defect, is a
      bona fide bolder. 94 Ark. 387; 102 Ark. 45; 102 Ark. 422; 109 Ark. 107; 126 Ark. 420.
    A preexisting debt constitutes -value. C. & M. Digest, § 7791. Tbe debt exists until thé note is paid. 17 C. J.; 53 N. J. L. 200.
   Smith, J.

On September 25, 1920, appellant company executed its negotiable promissory note of that -date, dua December 10th after date, for $2,500, to tbe order of H. A. Morrison; and this is a suit to collect it. Tbe note was dated at' Earle, Arkansas, and was payable at tbe Bank of Commerce in that city. Tbe plaintiff is tbe receiver of the People’s Bank & Trust Company, a defunct banking- corporation of Memphis, Tennessee. Tbe execution of tbe note by appellant is admitted, but a failure of consideration is alleged, and the answer further recites that tbe bank was not an innocent bolder of tbe note.

Two preliminary questions are raised which will be disposed of before considering the case on its merits.

Tbe first is, that tbe suit should have been brought at law. This objection is fully answered by saying- that no motion was made to transfer. the case. Secs. 1041, 1043, C. & M. Digest; Hayes v. Bishop, 141 Ark. 155.

Tbe second proposition is that the receiver shows no right to maintain this suit. In answer it may be said that Portlock, tbe president of tbe bank, testified without objection that the bank failed and closed its doors, and appellee McConnell was appointed receiver and took charge of its affairs and is now administering its assets.

Upon the merit of the case it may be said the note was without consideration. No contention to the contrary is made by the receiver. But it is also insisted that the bank was not an innocent purchaser of the note. The insistence is that the bank received the note for collection for Morrison’s account, and not as a purchaser.

The testimony of Portlock is unequivocal to the effect that the bank took the note as collateral to the note of Morrison, which it then held, without notice of any defense to it. Morrison liad been indebted to the bank for some time, and on September 12, 1920, renewed his note for $2,750, the same being made payable four months after date. At that time the bank advanced no. additional consideration.

■ It is urged that Portlock was an uncandid witness and that he should have explained the transaction in greater detail. He appears to have answered all the questions fully which were asked him, both on his direct and cross-examinations.

This court is fully committed to the doctrine that one who takes negotiable paper, before maturity, as security for a debt, without notice of any defect therein or defense thereto, receives it in due course of business and is a bona fide holder. The following cases have so held: Exchange Natl. Bk. v. Coe, 94 Ark. 387; Haldiman v. Taft, 102 Ark. 45; Miles v. Dodson, 102 Ark. 422; Exchange Nat. Bank v. Steele, 109 Ark. 107; Beard v. Bank of Osceola, 126 Ark. 420.

Appellant says the cases cited were all decided or arose before the enactment of the negotiable instruments law (secs. 7760 et seq., C. & M. Digest; act Feb. 21, 1913), and that sec. 52 of this act (which is sec. 7818, C. & M. Digest) lias changed the rule as announced in the cases just cited. This sec. 7818 of the Digest defines a holder in due course, and the third paragraph of the section requires that he shall have taken the paper in good faith and for value. The argument is that, under the negotiable instruments law, value must be paid at the time the note is taken, and that the giving or security for a preexisting debt is not value within the meaning of the law. We do not so interpret the statute. Sec. 25 of this act (which is sec. 7791, C. & M. Digest) defines value as follows: “Sec. 7791. Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value, and is deemed such, whether the instrument is payable on demand or at a future time.”

This definition accords with onr cases cited above.

In the case of Exchange Nat. Bank v. Coe, supra, this court first had occasion to determine whether one who receives a negotiable note, before maturity, as collateral security for a preexisting debt, was a holder.for value in due course of business. The authorities were examined and were found to be in hopeless conflict, as stated in the opinion. Without attempting to determine where the weight of authority was, it was said that the trend of modern decisions was in favor of the rule adopted in the Federal courts as tending to promote uniformity in the different jurisdictions. This was said to be important, in view of the increased dealings between the citizens of the different States, and because the courts of the National Government did not follow the decisions of the State courts on the question. Upon consideration of the facts stated, this court decided that the indorsee of negotiable paper, taken before maturity, as collateral security for an antecedent indebtedness, in good faith and without notice of defenses which might have been available as between the original parties, holds the same free from such defenses; and the- rule there announced has been adhered to consistently since.

We think- it certain that there is nothing in the negotiable instruments law which has been enacted in this State which requires us to modify that rule. Upon the contrary, it appears that several of the States which had not adopted the Federal rule changed their decisions to conform thereto after the enactment of the negotiable instruments law, and assigned the enactment of this law as the reason for so doing. See cases cited in note 25, page 490, to 8 C. J. The text to which this note appears reads as follows: “This general rule (the Federal rule) is the one adopted by the negotiable instruments law.”

We think it unimportant that Morrison’s note was hot due at the time the bank took the collateral. The point was not discussed in Exchange Nat. Bank v. Coc, supra, nor in any of tlie cases which have followed it. Counsel have examined the original transcripts in those cases, and find that in two of them the collateral note was taken after the execution of the principal note and before the maturity of the principal note. But the point was not regarded as important in those cases, and we do not regard it'as important now.

It is finally urged that the testimony impeaches the good faith of the transaction and shows the bank held the note only for the purpose of collection for Morrison’s account. It is said that Portlock should have explained in detail the circumstances under which the bank acquired the note. He was not asked to do so, although he was cross-examined by appellant’s counsel. He answered all the questions which were asked him fully, and we find nothing in any of his answers which warrants us in discrediting the witness’ statement that the bank received the collateral note for value, in the usual course of business, without knowledge of any defect therein or defense thereto.

It is pointed out that Morrison’s note does not recite the existence of this collateral note, and it is urged that this fact discredits the testimony of the witness Portlock. The witness was not asked to make an ex-‘ planation of this fact, and we cannot know what his answer would have been. We do know, however, that Morrison’s note to the bank was executed on September 12th, and the collateral note was not then in existence, as it was not executed until September 25th thereafter.

Counsel says there is nothing in the records of the People’s Bank &' Trust Company to indicate that the bank owned the note sued on or held it as collateral. We find nothing in the record before us to support this assertion. It is true Portlock did not produce any record of the bank showing that the bank owned the note or held it as collateral, but it is also true that he was not asked to produce such records.

The court below found that the bank was an inno■cent holder of the note sued on and rendered judgment in favor of its receiver for the amount thereof, and that decree is affirmed.


text:
    Venable v. State.
    Opinion delivered January 22, 1923.
    1. Criminal law — conclusiveness op verdict. — In determining whether the facts and circumstances admittted in evidence will support the verdict, the Supreme Court is required to give to such facts and circumstances their highest probative value.
    2: Conspiracy — circumstantial evidence. — In order to establish a conspiracy, it is not necessary to prove the unlawful agreement between the parties by direct and positive evidence, but the unlawful concert of action may be shown by circumstances.
    3. Conspiracy — sufficiency of evidence. — Evidence held sufficient to warrant a jury in finding that defendant was party to an unlawful conspiracy to commit a felony.
    4. Criminal law- — evidence secured by search warrant. — Evidence procured through the means of a search warrant is admissible in a criminal case, regardless of the validity of the warrant.
    5. Criminal law — argument of prosecuting attorney. — Remarks of the prosecuting attorney in a criminal -case held not erroneous where intended as mere expression of his opinion as to the effect of a failure properly to enforce the law.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Mitchell é Williams and Oscar W. Hudgins,- for appellant.

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

Appellant was indicted for having conspired with certain other persons named in the indictment to commit a felony, to wit, to murder, the present employees of the Missouri & North Arkansas Railroad, and that in furtherance of said conspiracy he did trails-. port, and cause to be transported, into Boone County, Arkansas, large and unusual amounts of ammunition and firearms with which to carry said unlawful conspiracy into effect. Appellant was convicted, fined $100, and has appealed.

The first assignment of error is that the evidence is insufficient to support the verdict. The prosecution grew out of appellant’s alleged connection with a strike which had been called against the M. & N. A. Railroad Company by its employees, who were members of different labor unions. Appellant had been employed as a conductor, and was a member and the secretary of the Order of Railway Conductors, which was one of the organizations whose members were out on the strike. It is insisted that there was no evidence of any trouble between the present employees of the railroad company and any of the strikers, and that there was no evidence of any attempt on the part of any striker to molest the present employees, and no proof of any agreement on the part of the strikers to kill any one.

It may be said that most of the proof offered which was admitted in evidence was admitted over the persistent objections of appellant. For instance, there was an objection, both general and special, on his part to the admission of testimony to show that there was a strike at all, or that he was a striker; and many of his objections to the admission of testimony were sustained, and but little testimony was admitted except over Ids objection.

Appellant was within his legal right in objecting to testimony, and the question of its sufficiency to support the verdict must, of course, be determined by a consideration of the testimony which was in fact admitted. But it is obvious that the significance and import of the circumstances which were admitted in evidence were fully appreciated, 'and cannot now be dismissed here as -having been treated at the trial as trifles too unimportant to explain. Do the facts and circumstances admitted in evidence, with, the inferences legally cleducible therefrom, support the verdict? In the decision of that question we are required, of course, to give to these facts and circumstances their highest probative value in support of the jury’s verdict.

The testimony may be summarized as follows: A strike on the M. & N. A. Railroad had been called on February 26, 1921, by certain unions of railroad employees. The Order of Railway Conductors, of which appellant was a member, was one of the laibor unions participating in the strike. The strike was being conducted continuously and systematically, and the unions to which the strikers belonged were aiding them in promoting the strike. The strike centered around the city of Harrison, and quarters were rented in that city, ■ where the strikers gathered for the exchange of views and for conference. This room was first in the O’Neal building, and the strikers repaired there to receive the strike benefits, which were paid at regular intervals bi1- the labor unions. Appellant was in charge of this room for some months, but later moved his office to his home, where the strikers continued to visit him regularly.

On the night of June 26, 1922, Selby, Stevens and Barnett, who were indicted with appellant as co-conspirators, left Harrison and drove to Springfield, Missouri, where they arrived about sunup. After arriving in Springfield they went to a wholesale hardware store, where Selby represented himself as being engaged in the retail hardware business in Harrison. The salesman made out the bill, consisting principally of cartridges of different calibers, and amounting, at wholesale prices, to $3.7.62. After filling this order, Stevens directed the shipping' clerk to add to the bill a thousand 12-guage shells,, loaded with nitro power and No. 2 chilled shot. The wholesaler had.only 750 shells of that kind in stock, and they were included in the bill. The price of the shotgun shells was $28.96, making the total bill $66.58. Stevens and Barnett were former employees of the railroad, and Selby ran in Harrison a small grocery'store and “short-order” eating house. An offer was made to prove that he was a sympathizer of the striker's, but the court sustained an objection to that question.

It transpired that the salesman-manager of the wholesale store in Spring-field was a stockholder in a hardware store in Harrison, and was advised of the tension there. His suspicions were aroused by the size and character of the order, as he knew that no game could be lawfully hunted at that season of the year which required shot of the size of those ordered. He also recognized Stevens as one of the strikers; so he called the sheriff at Harrison over the telephone and advised that officer of the purchase. The sheriff swore out a warrant for the parties, and went out upon the Springfield and Harrison road to a point which he knew the parties would have to pass on their return to Harrison, and he arrested them late in the afternoon at that place. The sheriff found two boxes of ammunition in the automobile, weighing about 150 pounds. The purchasers made no explanation of their possession of the ammunition; nor did they protest against it being taken from their possession.

No testimony was offered on behalf of appellant, but the State called Stevens as a witness. The hostility of this witness was obvious, but he offered the explanation that the party was going to 'Springfield to get some parts for a Ford car, and he went along because lie was invited to go. He did not know whether the parts had been purchased for the car or not, but they were not found in the car by the officers.

On the afternoon of the day on which appellant’s alleged co-conspirators were arrested, an unusually large number of strikers visited appellant’s residence. A Mrs. Woodruff, who lived directly across the street, testified that her attention was attracted by the number of persons she saw going into and leaving appellant’s residence, and their conduct. About four or five o’clock in the afternoon four men came to appellant’s house in a car, and when they left one or two of them had guns, and the men drove away towards the north, In the direction where Selby, Stevens and Barnett were later arrested with the ammunition. On the same afternoon three strikers were seen in a Ford car driving very rapidly in the direction of Bear Creek Springs, where Selby and his companions had been arrested by the officers a short time before:

On Saturday before appellant’s case was called for trial the circuit court issued an order directing that appellant’s house be searched for firearms and ammunition. The search was made, and the sheriff who served the search warrant testified that he found no arms or ammunition, but that he did find, buried in appellant’s garden, a box containing two boxes of dynamite caps and a large roll of dynamite fuse and a quantity of emery dust. The court excluded testimony in regard to finding the emery dust, but permitted the officer to tell about finding the dynamite caps and the dynamite fuse, and exceptions were duly saved to the admission of this testimony.

The prosecution was had under section 2845, C. & JVI. Digest, which reads as follows: “Sec. 2845. If-two or more persons shall agree and conspire to commit any felony, and make some advance thereto, without committing the felony, they shall be deemed guilty of a misdemeanor.”

It is, of course, settled by law that, in order to establish a conspiracy, it is not necessary to prove the unlawful agreement between the parties by direct and positive evidence, but the unlawful concert of action may be shown by circumstances. Sims v. State, 131 Ark. 185.

In the case of Chapline v. State, 77 Ark. 444, the court said that “the existence of the assent of minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by the jury from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.”

Under this test we think a ease -was made which we cannot overturn as being unsupported by legally sufficient evidence. There was concert of action for some purpose; but for what purpose? What meant all this ammunition under the 'circumstances under which it was purchased? For whom was it intended? What inference more reasonable than it was intended for the persons whose employment by the railroad company, notwithstanding the strike, prevented the strike from being successful? Did appellant participate in the unlawful purpose? We think the jury was warranted in finding that, if there was an unlawful purpose, appellant was a party to it. He appears to have been the custodian. of instrumentalities adapted to sabotage; and something besides sabotage must have been contemplated -in the purchase of the ammunition, otherwise the dynamite would have sufficed. We know, without proof, that cartridges and shells are not as well adapted to sabotage as dynamite. Then why have both, if only sabotage was contemplated?

We think the jury did not exceed its prerogative, under the law, in finding, from this testimony, that the conspirators, of whom appellant was one, intended to use the ammunition for the purpose stated in the indictment.

It is alleged that the warrant to search appellant's premises was issued without legal authority, and that the testimony in regard to the articles found on his premises was improperly admitted. We do not stop to inquire whether the search warrant was properly issued or not, as we have held, in a case where there was no search warrant of any kind, that evidence showing what was found was admissible if it was relevant to the issues joined. There is a conflict in the authorities on this subject, and there are courts which hold that if ihe searfh was wrongfully made evidence will not be received showing what the searchers found. But, upon a review of the authorities, we decided otherwise, and in a later case reaffirmed that holding, and we are not disposed to overrule those cases.

We hold therefore that the court did not err in admitting the testimony as to the articles found on appellant’s premises, 'although the search warrant may not have been properly issued (which we do not decide); and we are also of opinion that the testimony was competent and relevant as tending to show appellant’s connection with the conspiracy, and the purpose of the conspirators as well. Benson v. State, 149 Ark. 633; Briscoe v. State. 149 Ark. 648.

In his closing argument the prosecuting attorney referred to the trouble growing out of a coal strike at Herrin, Illinois, and referred to it as a massacre, and in that connection said: “When that terrible thing occurred, because the men, who were working in the mines ■and trying to support their families with honest labor, had taken the places of those strikers, the people of Illinois did not know those fellows intended to commit murder, and we do not know what these men intended to do, but you have all the facts and circumstances connected with it, and the officers tried to prevent a Herrin tragedy here.”

The court was asked to exclude this argument and to reprimand the prosecuting attorney for having made it, but declined to do so, and exceptions were duly saved.

We think no error was committed. This was but a mere expression of the opinion of the prosecuting attorney as to the effect of a failure to properly enforce the law; and if the State’s case was established by the testimony, it was not an improper argument to have made, for the allegation of the indictment was that the parties intended to commit murder with the ammunition which liad been transported into Boone County.

No error appearing, the judgment is affirmed. ,