text:
    Clarkson v. State.
    Opinion delivered June 8, 1925.
    1. CRIMINAL LAW — HEARING OP APPLICATION FOR CHANGE OF VENUE. —Upon the hearing of an application for a change o.f venue, the court’s inquiry is limited to the determination of the credibility of the affiants in the supporting affidavits.
    2. Criminal law — absence of witness — diligence.—Where appellants failed to employ diligence to secure the attendance of a material witness, who wias out of the State at the time of trial, they were not entitled to complain of being forced to trial without him.
    3. Jury — term of service. — Under Crawford & Moses’ Digest, § 6374, th€ term of service of jurors is four weeks, and jurors who have served only two weeks are not for that reason ineligible for further service.
    4. iCriminal law — instructions—weight of evidence. — An oral instruction to the jury, in response to a report of inability to agree, that better and fairer evidence could not be had, and that it was the jury’s province to decide the case, and for them to retire to consider their verdict further, held not prejudicial as expressing an opinion as to. the weight of the evidence or the credibility of this witness.
    5. Criminal law — language of court — when harmless. — Where the prosecuting attorney in argument stated that the participation of a youthful witness in the crime had ¡been induced by the accused, and that he would not prosecute the witness, the court’s remark, in overruling1 objection to the argument, that the argument was one which the prosecuting attorney had a right to make under the testimony, held not prejudicial.
    6. Criminal law — remark of prosecuting attorney. — Defendant can not complain of a remark of the prosecuting attorney that he would not prosecute a State’s witness because of his youth, although his guilt was shown.
    7. Criminal law — jury’s recommendation of mercy. — Under Acts 1923, No. 76, a circuit judge is not bound by the recommendation of the jury to suspend the sentence of a convicted person.
    Appeal .from Sebastian 'Circuit Court, Greenwood District; Jolm E. Tatum, Judge;
    affirmed.

      J-no. P. Roberts aud R. A. Rowe, for appellants.

      E. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Tbis is tbe second appeal by tbe appellants from judgments of tbe Sebastian Circuit Court, Greenwood District, sentencing them to the penitentiary. Clarkson v. State, 165 Ark. 459. The judgments on the former appeal were reversed because the court, in the application of a rule of practice of the circuit court, declined to hear a petition for a change of venue on the ground that the petition therefor had not been filed within the time prescribed by the rules of the court.

Upon the remand of the cases another petition for change of venue was filed and overruled, and this action is assigned as error, and it is now insisted that the court should have made an order changing the venue upon either the original or the second petition therefor.'

We did not determine upon the former appeal that the venue should have been changed, but decided only that the court erred in refusing to hear and determine the appellants’ right to a change of venue. Upon the remand of the causes the petition was heard on the testimony of the supporting affiants to the petition for the purpose of determining the credibility of the affiants. This is the practice which we have many times approved, but in approving that practice we have always pointed out that the inquiry of the court should be limited to a determination of the question of the credibility of the affiants.

Upon the examination of the affiants who made the supporting affidavits upon which the petition was based the court found the affiants were not credible persons within the meaning and requirements of the law, and denied the petition. This order was based upon a finding that the affiants were not familiar with the state of public sentiment in regard to appellants except in limited portions of the jurisdiction in which they were to be tried, and, without setting out the testimony, we announce our conclusion that this finding does not appear to have been arbitrarily made.

The legal sufficiency of the testimony is not Questioned, but appellants insist that they were prejudiced bv' being required to go to trial in the absence of a material witness. The testimonv of this witness would have been material to appellants’ defense, but the court found that diligence had not been employed in securing the attendance of the witness. Besides, it was shown that the witness was absent from the State at the time of the trial.

At the beginning of the trial appellants asked that six members of the panel of twenty-four jurors then present be discharged, on the ground that these six persons had been members of the regular panel which had served for the preceding two weeks, and had thus completed their term of service. Appellants are mistaken in assuming that the six jurors had become ineligible for further service after having served two weeks. By § 6374, C. & M. Digest, it is provided that “the term of service of any person summoned to serve on the petit jury in the circuit courts shall be limited to four weeks, and no person serving for such, time shall be eligible for further service during that term of the next succeeding term. Provided, nothing in this section shall be construed to' limit the time of service of any juryman who may be, at the time of expiration of his service, impaneled on a jury actually engaged in trying a cause.”

In the case of Humphrey v. State, 74 Ark. 554, the term of court commenced September 19, 1904, on which day the petit jury was excused until October 3 following, and on October 8 the .court- adjourned until' October 24, and on the 9th day of November following, when the defendant’s case was called for trial, he moved to discharge the petit jury because the members thereof were not eligible for further service under the provisions of the statute which we have quoted. It was held by this court on the appeal that under this statute four week’s actual service was necessary to render a person ineligible for further service during the term for which he was impaneled, and that the jurors in that case had not served four weeks and were eligible. In the instant case the jurors had served only two weeks.

After the causes had been submitted to the jury and had been under consideration for some time, the jury reported that they were unable to agree, whereupon the court gave certain oral instructions in regard to the duty of jurors in considering causes submitted to them. This charge was as follows: “Of course, it is of the greatest importance that this case be decided, and there is no other way under the law land the Constitution to decide the guilt or innocence of a party except by a jury. You have been duly selected by both parties, and I do not know of any better people that we could get on this jury to determine the case that I feel would be better qualified to do it than you are, or to look into it more intelligently, or that would have better or fairer evidence than you have, and, while the court don’t tell you which way to decide it, as that is entirely your province to decide it under the law and the evidence introduced, and with this admonition from the court, we hope you will be able to decide the case; and you will now retire to further consider your verdict. ’ ’

It is the opinion of the majority — in which the writer does not concur — that there was no prejudice in giving this instruction, that it did not contain any expression of opinion as to the weight of the evidence or the credibility of the witnesses, but meant simply that the case had been fully developed and that the jury was in possession of all the testimony upon both sides of the question.

It is my opinion, however, that, in view of the conflict in the testimony, the statement of the court, that better and fairer evidence could not be had, was fairly open to the construction by the jury that there was testimony which should be disregarded as not being as fair land good as other testimony, and that, if this fair and good testimony only were considered, there would be no difficulty in arriving at a verdict.

A witness named Self, who was a boy sixteen years old, gave damaging testimony against appellants, and in the argument to the jury the prosecuting attorney stated that the boy’s participation in the crime, which the witness had testified to, had been induced by the persuasion of appellants, and that the prosecuting attorney would not prosecute a boy under such circumstances. An objection was made to this argument, which was overruled, and in overruling the objection the court stated that it was an argument which the prosecuting attorney had the right to make under the testimony.

• It would have been better had the objection been overruled without comment, but we do not think the comment constituted prejudicial error calling- for the reversal of the case. We- do not understand that the court stated that the testimony sustained the argument of the prosecuting attorney, but that it was proper for the prosecuting attorney to argue that the testimony did show that appellants had induced the witness’ participation in the crime.

As to the statement of the prosecuting attorney that he'would not prosecute the witness Self on account of his youth, although witness ’ guilt was shown, this was a matter about which appellants had no right to complain.

The jury found both appellants guilty, but the verdict contained a recommendation that the sentence of appellant Viola Clarkson, the wife of her co-defendant, be suspended, but, notwithstanding this recommendation, the court pronounced sentence upon them both.

Under act 76, Acts 1923, page 40, circuit judges are authorized, under certain circumstances, to suspend the sentences of convicted persons, but the act vests this discretion in the judge, and not in the jury. It would, of course, be proper for the court to consider any recommendation the jury might make in the matter, but the jury can only recommend and cannot control the discretion vested in the judge. Kelley v. State, 133 Ark. 261.

Other errors are assigned and are discussed by learned counsel for appellants, but we do not think these assignments of error are of sufficient importance to require discussion by us.

It is the opinion of the majority that no error was committed, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Furst & Thomas v. Varner.
    Opinion delivered June 8, 1925.
    Exceptions, bill of — necessity of filing within time. — Where a ■bill of exceptions was not .filed within the time fixed by the court, a bill filed pursuant to a vacation order of the trial judge extending the .time was unavailing.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Avery ill. Blount, for appellant.

      John E. Miller and Cul L. Pearce, for appellees.
   Smith, J.

The only error assigned for the reversal of the judgment in this case is that the court below erred in giving and in refusing to give certain instructions.

The order overruling the motion for a new trial was made on January 31,1924, at which time the court allowed ninety days for preparing and filing a bill of exceptions. The court adjourned on February 16, 1924, until May 19, 1924, but on April 8 the trial judge made an order in vacation extending the time for filing the bill of exceptions for thirty days. The court was not in session at any time between February 16 and May 19. A bill of exceptions was filed with the clerk of the trial court on May 29.

In the case of Routh v. Thorpe, 103 Ark. 46, it was said that “ * * * before a purported bill of exceptions can be considered as a part of the record on this appeal, it is necessary that the transcript brought to this court must show that the bill of exceptions was duly filed with the clerk within the time fixed by the court while in session.” Other cases to the same effect .are cited by appellee.

Here, the court while in session allowed ninety days for filing the bill of exceptions, and it was not filed within the time limited. The additional time allowed for that purpose was given in vacation and was unavailing.

The errors complained of are of such, nature as can he brought to the attention of this court only by a bill of exceptions, and, as the bill of exceptions was not filed within the time fixed by the court while in session, the one filed cannot be considered, and the judgment of the court below must therefore be affirmed, land it is so ordered.


author: Humphreys, J.

text:
    Smallen v. State.
    Opinion delivered June 8, 1925.
    1. Embezzlement — indictment—intent.—In a prosecution for embezzlement, an indictment was not demuraa/ble for failure to allege an intent to deprive the employer of its money if, when read as a whole, it clearly charged such intent.
    2. Continuance — failure to use diligence. — A continuance for an absent witness alleged to be sick wias properly denied for lack of diligence where the defendant did not procure a subpoena for the witness until the day ¡before the case was set for trial and the sheriff was unable to serve1 same, and it did not appear how sick the witness was.
    3. Embezzlement — instructions as to intent. — In a prosecution for embezzlement, instructions held to cover the question of intent.
    4. Embezzlement — fraudulent intent. — It is essential to the crime of embezzlement that there be a fraudulent intent on the part of a fiduciary to convert property of another to his own use.
    Appeal from Cross Circuit Court; G. E. Keck, Judge;
    affirmed.
    J. G. Brookfield and 8. A. Gooch, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted in the circuit court of Cross County, criminal division, for the crime of embezzlement, and adjudged to -serve a term of two years in the State Penitentiary as a punishment therefor, from which is this appeal. The indictment was entered on the 10th day of September, ■ 1924, and is as follows:

“The grand jury of Cross County, in the name and by the authority of the State of Arkansas, accuse Thomas 0. Smallen of the crime of embezzlement, committed as follows, viz: In the county aforesaid, on the 19th day of November, 1923, the said Thomas 0. Smallen, then and there being above the age of sixteen years and then and there being the clerk, servant, employee, agent, and bailee, and by virtue of his employment as such, having delivered and entrusted to his possession, care, and custody $1,864.70 in gold, silver, and paper money of the United States, of the value of $1,864.70, the property of the said Bank of Vanndale, did then and there unlawfully, fraudulently, and feloniously embezzle and convert to his own use said $1,864.70 without the consent of said owners, bailors, and employers; against the peace and dignity of the State of Arkansas.”

The cause was continued and set for trial on the 1st day of February, 1925, and, at plaintiff’s request, was passed until the 6th day of February, 1925. On the day before the trial, appellant filed a motion for a continuance, which he amended on the day of the trial. The motion, in substance, alleged that John W. Brawner, who was in attendance at court until February 4, 1925, and whom appellant expected to use as a witness, left at that time for his home in Leachville, in Mississippi County, where he was detained by illness; that, as soon as appellant heard of his absence, he obtained a subpoena for him, which the sheriff served by telephone; that the testimony of Brawner was material and necessary to his defense, setting out in detail the facts to which he would swear, if present. In support of the motion, appellant introduced the clerk of the court, the sheriff of the county, and himself.

E. L. Cooper, the clerk, testified that appellant applied to him after office hours on February 4 for a subpoena for John W. Brawner, whereupon he requested the sheriff to proceed as if he had a subpoena, promising to issue it the morning of the 5th, which he did.

H. E. Proctor, the sheriff, testified that he telephoned on the night of the 4th of February in an effort to serve the subpoena, but failed to get Brawner, and that he had talcen no further steps in the matter.

Appellant testified that he called Brawner over the telephone and received information that he was sick in bed and could not come to the phone; that he did not know Mr. Brawner was going to leave town at the time he left.

The court, after hearing the testimony detailed above, overruled appellant’s motion for continuance over his objection and exception.

Appellant then filed the following demurrer to the indictment, which was also overruled over his objection and exception, to-wit: “That the facts stated in the indictment do not constitute a public offense, nor are the statements of facts sufficient to charge the crime of embezzlement under the laws of the State of Arkansas.”

The testimony introduced by the State in the trial of the cause tended to show that appellant was interested in a gin company at Sikestown, Missouri; and, in the operation of same, embezzled $1,'864.70 of the bank’s money by drawing a draft- in that sum for the bank on November 19, 1923, on the Farmers’ Grin at Sikestown, which draft was never paid by said gin company, but was returned unpaid and found in the bank when its doors were closed.

The testimony introduced by appellant tended to show that he was not interested in said gin, but that loans were regularly made to it by the bank with the approval of the board of directors just as the other loans were made, and that the draft in question was drawn in an effort to collect part of the indebtedness the gin company owed the bank.

Appellant relies for a reversal of the judgment upon the following assignments of error; first, that the court erred in overruling appellant’s demurrer to the indictment; second, that the court erred in refusing to grant a continuance on account of the absence of witness J. W. Brawner; third, that the court erred in refusing to give instructions Nos. 1, 2, and 3, requested by appellant.

Appellant contends that the indictment is fatally defective because it does not allege intent to deprive the hank of its property. It is true the word “intent” does not appear in the indictment, but this was unnecessary as the language used, when read as a whole, clearly charges appellant with such intent. This point was settled adversely to appellant’s contention in the case of Kent v. State, 143 Ark. 439, wherein an indictment identical with this in all essentials was upheld.

The contention of appellant that the court erred in refusing to grant a continuance on account of the absence of witness J. W. Brawner is without merit, because appellant failed to show that he exercised proper diligence to procure the attendance of the witness. He did not ask for a subpoena for the witness until after office hours on February 4, and did not secure its. issuance until February 5. At that time the witness was in an adjoining county, and the sheriff was unable to get in . communication with him over the telephone. Appellant, telephoned and ascertained that the witness was sick. Just how sick is left to surmise. Appellant should have gotten out a subpoena for the witness and had it served at an earlier date. He had ample time to do so, but took a chance of using J. W. Brawner as a witness without resorting to process until it was too late to get him in time for the trial. Due diligence was not shown. The law requires that a defendant exercise proper diligence to secure the attendance of his witnesses. Sheptine v. State, 133 Ark. 239.

The three instructions requested by appellant which the court refused to give are as follows:

1. “Unless you find from the evidence that the defendant actually used or caused to be used the money charged to have been embezzled for his own benefit, your verdict should be for the defendant.”

2. “You must be convinced beyond a reasonable doubt that the defendant converted the money alleged to his own use, or to the use of some one for him with the specific intent to deprive the true owner of the benefit of such money before you can convict in this case.”

3. “If you find from the evidence that the bank, through its officers, was advised and knew of the transactions and úse of moneys alleged to have been embezzled, you will find for the defendant. ’ ’

Appellant does not seriously contend in his brief that instructions Nos. 1 and 2 were not fully covered by the instructions which the court gave. The fact is they were fully covered by the court’s instructions to the jury. Appellant strenuously insists that none of the instructions given by the court covered the point of the necessity of the intent on appellant’s part to commit the crime of embezzlement. It is true that an essential of the crime of embezzlement is a fraudulent intent on the part of a fiduciary to convert the property of another to his own use. Fleener v. State, 58 Ark. 98. We think the instructions given by the court make that plain. The statute defining embezzlement was read to the jury, which provides that the fiduciary committing the crime must do so with the intent to convert the property to his own use. Again, the court told the jury that “the essence of this crime is the taking or using the money of another person, Without his consent and against his will, fraudulently.” Again, the court told the jury that in order to convict appellant, it must be necessary for them to find that he unlawfully, fraudulently, and feloniously embezzled and converted to his own use said $1,864.70 without the consent of the owners thereof. And again, the court told the jury “that if the board of directors of the Bank of Vanndale knew about the transaction as it was going on, knew about this loan having been made, or was being ■made, and knew that this money was being paid out, and consented to the said paying out of such funds or to the making of said loan, then the defendant would not be guilty of any crime.”

We do not see how, with these instructions as a guide when the issue of fact was so clearly drawn, the jury could have convicted appellant without finding that he converted the money to his own use with an intent to deprive the bank of it.

No error appearing, the judgment is affirmed.'


text:
    Valley Planing Mill Company v. Lena Lumber Company.
    Opinion delivered June 8, 1925.
    1. VENDOR AND PURCHASER — BREACH OF CONTRACT.- — I'll a suit to enforce specific performance of a contract of sale of -land, "which provided for a cash payment and delivery of indorsed notes coincident with delivery of the deed, where the cash payment was held up on discovery of the insufficiency of the indorsements on the notes, and the vendor agreed to give further time to secure other indorsements, failure of the purchaser to make such cash payment while the indorser’s financial ability wlas being investigated did not constitute a breach of the contract by the purchaser.
    2. Frauds, statute op — modification of contract. — 'The general ■rule that a material modification, of a contract within the statute of frauds must be in writing to- be valid has no application where the charge does not affect an essential part of the contract, but merely substitutes a mode of performance thereof not within the statute.
    3. Vendor and purchaser — arbitrary forfeiture. — Where time is not made the essence of a contract for the sale of land, 'and steps toward completion of the executory contract have been continued the vendor cannot summarily and arbitrarily stop the negotiations, without reasonable notice to the vendee to perform.
    4. Vendor and purchaser — innocent purchaser. — One who purchased land with full knowledge that the vendor had contracted to sell the land to another and that a cash payment had been made, and completion was awaiting the approval of an indorsement of the purchase mfoney notes, held not an innocent purchaser, though he wias informed by his vendor that the deal had fallen through, no inquiry from the other party 'having -been made.'
    Appeal from Saline Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      Martin, Wootton & Martin, for appellant.

      Briner & Utley, W. D. Brome, Gan.naioay & Gmna-%oay and B. E. Wiley, for appellee..
   Humphreys, J.

This suit was brought on November 29, 1924, in the chancery court of Saline County by appellee against appellants to enforce the specific performance of a written contract of sale and purchase of 5,000 acres of timber land in Saline County, particularly describing same. The memoranda evidencing the agreement were in the form of a letter of acceptance and a receipt which are as follows:

“August 23, 1922.
Little Bock, Ark.
“Lena Lumber Company,
Benton, Ark.
“Gentlemen: I am this day accepting your proposition on the 5,000 acres of timber lands, more or less, in 'Saline County in fee for the price and terms below: $5,000 cash to 'bind the trade as forfeit or to he refunded in case abstract proves to be worthless. $10,000 down when title is shown to be good, $10,000 note for one year from today at 7 per cent, interest, and one note for $10,000 due two years from today at 7 per cent, interest. The interest on the second note is to ‘be paid one year from today when first note is paid, and I am to retain lien on land and timber until both notes are paid. These notes are to be secured by the Citizens’ National Bank o,f Boston, Mass. The purchase price is $35,000 on the terms mentioned above.
“Yours very truly,
“ (Signed) B. B. McIntosh.
“Accepted this August 23,1922. Lena Lumber Company, by II. Faisst, Pres.”
“To Lena Lumber Company:
• “Beceived of the Lena Lumber Company check in the sum of $5,000 as payment on account of purchase of five thousand acres more or less in Saline County, a list'' of which lands has been submitted as shown on plats. It is agreed that a further sum of ten thousand dollars is to be paid when warranty deed and abstract showing-good title are delivered. As a further consideration, you are to give two notes as balance purchase money, each in the sum of $10,000, payable one and two years after date, with interest at the rate of seven per cent, per annum, payable semi-annually, the said notes to be guaranteed by the Citizens’ National Bank, of Boston, Massachusetts, and a vendor’s lien retained on the land to sejcure the payment of said notes. You are to have a reasonable time to examine the abstract of title -after the abstracts are delivered to you for examination; and it is agreed that your failure to complete this transaction Within a reasonable time, condition that the title be good, will be sufficient cause to declare forfeiture of the five thousand dollars this day paid on account of this purchase.
“R. R. McIntosh.
“Accepted: Lena Lumber Company, by H. Faisst, President, this day August '23, 1922. ”

It was alleged that, after the abstract was approved and accepted, appellee drew its draft for $10,000 on the Citizens’ National Bank of Boston to pay the balance of the cash consideration, and executed two notes evidencing the balance of the purchase money, which papers, together with the deed of McIntosh to it and the muni-ments of title, were delivered to the People’s Bank of Little Rock under agreement that the draft should be forwarded for collection and the notes for indorsement, after which the notes should be delivered to McIntosh and the deed and other muniments of title to appellee; that it was discovered that the indorsement by the Citizens’ National Bank of Boston of notes secured by mortgage on real estate was not enforceable, whereupon McIntosh waived the bank’s indorsement, and agreed to accept such indorsement in lieu thereof as would meet the approval of W. E. Lenon, president of the People’s Bank; that it tendered the personal indorsement of Guy A. H|am, president of the Citizens’ National Bank of Boston, and while W. E. Lenon was investigating his financial condition, McIntosh, without notice to appellee, sold and conveyed said lands to the Valley Planing Mill Company with the knowledge on its part of the contract between McIntosh and appellee; that McIntosh kept the $5,000 cash payment, obtained the notes and draft from tbe People’s Bank, and returned them to appellee, claiming that appellee had forfeited its rights under the contract for the sale and purchase of said lands by failure to furnish acceptable indorsement on the twó $10‘,000 notes.

E. E. McIntosh filed an answer admitting the execution, of the contract for the sale of said lands to appellee and the receipt of, the initial payment of .$5,000, but denied every other material allegation in appellee’s bill, and alleged that appellee breached the contract to his damage in the sum of $5,000. He prayed for the dismissal of appellee’s bill for the want of equity.

The Valley Planing Mill Company filed an answer adopting the answér of McIntosh, and, by way of further defense, alleging that, it purchased said land from appel-lee for $34,500; that, in order to make the payment, it mortgaged the lands for $20,000, to the Arkansas National Bank of Hot Springs, which is a first lien thereon; that it purchased the land in good faith and without knowledge of appellee’s claim.

The Arkansas National iBank intervened, alleging that it accepted the mortgage from the Valley Planing Mill Company in good faith for $20,000 in the belief that said company was the owner of said lands, and prayed that its rights be protected by declaring its lien prior and paramount to that of all other persons.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding of the issues for appellee, and a rendition of the decree for specific performance of the contract between McIntosh and - appellee. In order to effect specific performance thereof, appellee was ordered to pay $30,000 principal and $251 interest to the commissioner of the court, who was to pay the Arkansas National Bank of Hot Springs out of the fund the amount due on the mortgage and to pay the balance to appellee, Valley Planing Mill Company; and said Arkansas National Bank was ordered to release its mortgage upon payment of same; and. the Valley Planing Mill Company to execute a deed for said lands to appellee upon pavment to it of the balance of said fund. Appellee paid the amount to the commissioner, whereupon he filed a commissioner’s deed to appellee for said lands, which was confirmed by the court and ordered to be delivered to appellee. A supersedeas bond was executed, and an appeal duly prosecuted to this court. Upon application, an injunction was issued against all parties restraining them from cutting timber on said land during the pendency of the appeal.

The facts necessary to a determination of the issues involved on tbe appeal are, in substance, as follows: B. B. McIntosh was the owner of the lands in question by purchase from the Hamlin Stave Company. The People’s Savings Bank advanced the purchase money for the lands to his vendor and held his unrecorded deeds as security for the advancement until he could sell the lands. On August 3,1922, he entered into a contract for the sale and purchase of them to appellee for $35,000, $5,000 of which amount was paid in cash, pending the consummation of the deal. The examination of the abstract by appellee’s attorneys was completed on October 18,. 1922, and accepted with a written understanding that McIntosh might procure patents for about forty pieces of the land at a later date and have them recorded. After the acceptance of the abstract, the parties met at the People’s Savings Bank to close the deal. McIntosh executed a deed for the lands to appellee, drew a draft for $10,000 on the Citizens’ National Bank of Boston, and appellee executed two notes to McIntosh for $10,000 each evidencing the balance of the purchase money; and these, together with the abstract and other muniments of title, were left in the People’s Savings Bank with directions to forward the draft for collection and the two notes for the indorsement of the Citizens’ National Bank of Boston; and when the draft was paid and the notes returned, to deliver them to McIntosh, and the deeds, abstracts, and other muniments of title, when patents were obtained, to appellee. About this time it was discovered that the national banking law prohibited a national 'bank from indorsing notes of this kind: so an attempt was made to close up the deal on the basis that Guy Ham, the president of said bank, should.personally indorse the notes in the place of the bank. This arrangement was agreed upon dependent upon the approval of Ham’s indorsement by W. E.-Lenon. While W. E. Lenon was investigating the solvency and sufficiency of Guy Ham as indorser upon the notes, McIntosh became apprehensive lest the first deal might fail, and, having an opportunity to sell the lands to the Valley Planing Mill Company, gave it a week’s option to buy same for $34,500 on condition that the deal with the Lena Lumber Company should fail. At the time he executed the option, he gave the Valley Planing Mill Company a copy of his written contract with the Lena Lumber Company. The Valley Planing Mill Company obtained information that W. E. Lenon was not satisfied with the personal indorsement of Guy Ham upon the two $10,000 notes and that the draft had been returned unpaid, whereupon'it paid McIntosh $34,500 and obtained a deed from him to the lands. This understanding was obtained through conversation with W. E. Lenon, but it is quite evident that, at the time of the conversation, Lenon had not determined whether he would approve Ham’s personal indorsement. The Valley Planing Mill Company made no inquiry of appellee concerning the matter. On November 9, W. E. Lenon went away on a hunting trip before he had completed his investigation of the financial condition of Guy Ham. The sale of the lands by McIntosh to the Valley Planing Mill Company was completed November 14 before Lenon returned from the hunting trio and before he had decided whether the individual indorsement of Guy Ham. on the notes would be sufficient. Appellee had no notice of the option which McIntosh had executed to the Valley Planing Mill Company, and the first information it received of the sale was contained in a. registered letter written to it by 'McIntosh claiming that, on account of the failure to comply -with the terms of the contract of sale and purchase, he was forfeiting the contract by taking down the deposit of $5,000 and returnina- it, the draft for $10,000 and .the two. notes for $10,000 each.

Appellant’s first contention for a reversal of the decree is appellee’s failure to pay the $10,000 draft. The insistence is made that this constituted a breach of the contract, thereby preventing appellee from demanding its specific performance. We do not think the failure to pay the draft under the circumstances in this case constituted a breach of the contract. As we read the contract, its payment was to be coincident 'with the indorsement of the notes and concurrent with the delivery of the deed as contended by appellee. Payment thereof was not refused but withheld pending the acceptance of the personal indorsement of the two notes by Ham, which indorsement had been offered and was being considered as a substitute for the indorsement of the Citizens National Bank of Boston. The validity of the indorsement of the Citizens National Bank of Boston had arisen when the parties came to close the contract. All the parties recognized that the contract had provided for an indorsement of the two $10,000 notes, which could not be enforced. When this discovery was made, appellee offered to substitute the individual indorsement of Huy A. Ham for that of the bank, which was satisfactory to McIntosh if it should meet with the approval of W. E. Lenon whose bank had advanced the money to McIntosh with which to purchase the land. Pending the investigation and decision of W. E. Lenon relative to the sufficiency of Ham’s personal indorsement, the matter was left in statu quo. The failure to pay the $10,000 draft during the time W. E. Lenon was considering the acceptance of Ham’s personal indorsement in lieu of that of the bank, could not, in good conscience, be treated as a refusal to pay same in the sense of breaching the contract.

Appellant’s next contention for a reversal of the decree is that appellee’s offer of Ham’s in-dorsement in the place of the indorsement of the bank, provided for in the contract, and the agreement of McIntosh to accept Ham’s indorsement subject to the approval of W. E. Lenon constituted a material change in the original contract and was void because not in writ* ing. The contract in question related to the sale and purchase of real.estate; and, in order to be enforced, must have been in writing to meet the requirements of the statute of frauds. St. L. I. M. & S. R. Co. v. Beidler, 45 Ark. 1. The general rule is that a material modification of a contract within the statuté of frauds must be in writing in order to be valid and binding. Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the statute of frauds. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445. There is a marked difference, however, between a modification of a written contract in the essentials required to meet the statute of frauds and an agreement for a substituted method of performance not within the statute. The former is required to be in writing in order to be enforceable as against a plea of the statute of frauds, whereas the latter is valid if in parol. The reason of the distinction is that the purpose of the statute of frauds is to require contracts to be certain and definite which it attempts to regulate, but does not attempt to regulate a substituted mode of performance thereof not within the statute. Cummins v. Arnold (Mass)., 37 Am. Dec. 155; Lowe v. Freadwell, 12 Me. 441; Conroy v. Toomay, 234 Mass. 384; Long v. Hartwell, 34 N. J. L. 116; Moore v. McAllister, 34 Miss. 500; Sharpe v. Wichoff, 39 N. J. Eq. 346; Warden v. Christ, 106 Ill. 326; Welsh v. McIntosh, 130 Penn. 641. It is true that the written contract provided that the two $10,000 notes evidencing the deferred payments should be indorsed 'by the Citizens National Bank of Boston, Mass. Neither party knew at the time that such an indorsement was not enforceable. It was discovered that the national banking law prohibited national banks from making such in-dorsements, whereupon it was orally agreed that Guy A. Ham should indorse them if W. E. Lenon would accept him as the indorser in lieu of the bank. This arrangement had relation solely to the performance of the contract and not to an essential thereof necessary to meet the requirement of the statute of frauds. It was not necessary, therefore, under the rule announced in the authorities last cited, for the agreement for a substituted indorsement to he in writing.

The facts in the instant case bring; it within the doctrine announced in the case of Adams v. Rhodes, 143 Ark. 172, to the effect that where time is not made the essence of a contract in a memorandum for the sale of land, and steps toward a completion of the executory contract have been continued, the vendor cannot summarily and arbitrarily, without reasonable notice to the vendee to perform, stop negotiations. Under such circumstances, reasonable notice must be given a vendee to pay the consideration and accept the deed so that he might have an opportunity to comply and protect himself. 39 Cyc. 1370. The vendor will not be permitted to .spring a surprise upon the vendee by abruptly announcing a forfeiture without extending a reasonable time to the vendee to perform. In the instant case, while negotiations were pending for the substitution of the indorser, McIntosh declared a forfeiture without giving appellee notice that the tendered indorsement was. not sufficient, and without extending appellee a reasonable opportunity to furnish an indorsement which would be acceptable to W. E. Lenon.

The next and last contention of appellants for a reversal of the decree is that the Valley Planing Mill Company is an innocent purchaser of the lands for value. The Valley Planing Mill Company took its option on the lands with full knowledge of the executory contract for the sale of same by McIntosh to appellee. In fact, it was furnished with a copy of the contract between McIntosh and appellee. It exercised its option to buy without making any inquiry whatever of appellee as to whether it had forfeited its rights under the contract. It was known to the Valley Planing Mill Company that appellee had made a $5,000 cash payment to McIntosh and that the matter was pending, awaiting the approval of the abstract of title by the attorneys. Instead, of inquiring from appellee, it relied solely upon the statement of McIntosh that appellee had refused to comply with its part of the contract, and a statement of W. E. Lenon that the personal indorsement of Guy A. Ham on the two $10,000 notes was not satisfactory to him. Had inquiry been made of .appellee, the Valiey Planing Mill Company would have received information that the matter was in abeyance, awaiting the decision of W. E. Lenon as to whether the indorsement of Ham would be sufficient after getting further information as to his financial condition. At the time Lenon made the statement to appellee’s representative that he was not satisfied with Ham’s personal indorsement,. Lenon had not completed his investigation of Ham’s financial condition. He had the matter under advisement, and had agreed to' get a report from Bradstreet, and then make his decision and report to appellee, and give appellee an opportunity to furnish other secu-lity if Ham’s indorsement was hot sufficient. The rule is: '“Notice of facts putting a man of ordinary prudence on inquiry is tantamount to knowledge of the facts to which the inquiry might lead: ’ ’ Halloway v. Eagle, 135 Ark. 205, and cases cited therein. Had the Valley Planing Mill Company prosecuted the inquiry, it could have easily ascertained the real situation. We think, under the circumstances, that it should have made inquiry from some representative of appellee before exercising an option which it took from McIntosh, subject to the rights of appellee under a written contract with him for sale and purchase of the lands, a copy of which had theretofore been furnished to it.

No error appearing, the decree is affirmed.


author: HumphReys, J.

text:
    Davis v. Lawson.
    Opinion delivered June 8, 1925.
    Municipal corporation — void improvement district — contracts.— A special improvement district -within a city, declared on direct attack to be void ab initio■ for failure of a majority of taxpayers to sign the petition for the improvement, held not to he a de facto ■district, and all obligations entered into by it were nullities.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Melbourne M. Martin, for appellant.
    J. C. Marshall, for appellee.
   HumphReys, J.

This suit was brought hy appellants against appellees in the circuit court of Pulaski County, third division, for mandamus to enforce a levee and collection of assessments on property in Street District No. 350 in Little Rock, to pay fees for services rendered the district under employment of its commissioners, evi-cleneéd by certificates of indebtedness issued to them by said commissioners. Payment of the certificates was resisted on account of the invalidity of the district ab initio. The complaint alleged that after the organization of the district and within the thirty day limitation prescribed by law, a suit was filed in the Pulaski Chancery Court by certain property owners challenging the validity of the district, which was sustained on the ground that a majority in value of the owners of real property within the district had not signed the second petition, praying that the improvement be made; that, until the filing of said suit, no one had questioned the validity of the district nor the authority of the commissioners to employ appellants; that said commissioners in good faith employed appellants, and appellants in good faith performed the necessary services for said district before the institution of the suit attacking the validity thereof, for which certificates of indebtedness were issued to them.

A demurrer was filed to the complaint by appellees upon the ground that the facts stated in the complaint were insufficient to constitute a canse of action, which demurrer was sustained by the court.

There being no dispute as to the facts, the complaint was dismissed, from which dismissal an appeal has been duly prosecuted to this court.

The only question arising out of the pleadings for determination by this court is whether a special improvement district within the limits of a city, declared, on direct attack, void ab initio, had a de facto existence before the suit was brought so as to enter into binding obligations. Under our Constitution, no power or authority is- vested in municipal councils to make assessments for local improvements without the consent of a majority in value of the owners of real property in the improvement district. This .court said in the case of Improvement District No. 1 of Clarendon v. St. Louis Southwestern Ry. Co., 99 Ark. 508 that “The fact that the requisite number of property owners has consented to the formation of a local improvement district is jurisdictional, and is in the nature of a condition precedent to the exercise of such power by the municipal council, and without such consent first obtained all proceedings therefor are null and void.” This court has also said in two cases, quoting from Schumm v. Seymour, 24 N. J. Eq. 144: “It is a general and fundamental principle of law that all persons contracting with a municipal corporation must at their peril inquire into the power of the corporation or its officers to make the contract. Newport v. Railway Company, 58 Ark. 275; Watkins v. Griffith, 59 Ark. 357.

Appellant relies upon the cases of Whipple v. Tuxworth, 81 Ark. 391 and Street Grading District No. 60 v. Hagadorn, 186 Fed. 456, in support of his contention that the district in question had a de facto existence, so that it might enter into binding contracts. Neither case is in point. In the Whipple case, the chancery court ruled that it was valid, from which no appeal was taken. The court ruled that it was a de facto district from that date until it was declared to be a void district by the Supreme Court. In tlie Hagadorn case, the only question passed upon was whether the court had jurisdiction to appoint a receiver.

The district in question never was a de facto district, and all proceedings had and done with reference thereto were nullities.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Burris v. State.
    Opinion delivered June 15, 1925.
    1. Homicide — relevancy op eividence. — In a prosecution for murder when the killing occurred during a dispute over an account which deceased alleged was owing by defendant, evidence that deceased improperly failed to give credit on another man’s account was incompetent.
    2. Criminal law — statement of fact. — In a prosecution for murder1, where a witness was asked what, if anything, deceased did toward making an attack on defendant, his reply that he made no attack was the statement of a fact, not of a mere conclusion.
    3. Homicide — threats.—In a prosecution for mlurder, testimony that deceased told M. that Mi. ought to go’ and give defendant a whipping wlas properly excluded, as it was not a threat of violence on deceased’s part, and defendant was not entitled to prove it as material or to contradict M. in regard to his statement concerning it.
    4. Criminal law-court’s misunderstanding of question.— Where the trial court, in refusing to permit a propounded question to toe answered, misunderstood the question, it was counsel’s duty to remove such misunderstanding.
    5. Criminal law — self-serving statements of accused. — Where insanity was one of the defenses in a murder case, oral and written statements made by defendant to others that he believed himself to be insane were self-serving declarations and incompetent.
    6. Criminal law — exclusion of evidence — harmless error.— In a murder trial, where one of the defenses was insanity, refusal to permit an expert to testify whether defendant would be capable of determining the difference between right and wrong was harmless where he had already testified that defendant would not be capable of deliberation and premeditation with reference to his acts under excitement, since the answer of the witness to the excluded question would have been a mere repetition.
    7. Criminal law — self-serving declaration. — In a murder trial, testimony of a witness that, immediately after the killing, defendant stated to him that deceased forced him to do- what he had done to protect himself was incompetent as part of res gestae.

    8. Witness — testimony of family physician. — I-n a murder trial, the testimony of physicians as 'to defendant’s mental condition, based on mere observation of defendant during their attendance as family physician and by observing him on the witness stand, but not from any information received for the purpose of treating him, held admissible, as Crawford & Moses’ Digest, § 4149, only excludes testimony of a physician received while attending the patient in a .professional character, and which was necessary to enable him to prescribe.as a physician.
    9. Criminal lawi — -repetition of instructions. — Defendant’s requested instruction on the subject of reasonable doubt was properly refused when covered by the charge given.
    Appeal from1 Sevier Circuit Court; B.. E. Isbell, Judge;
    affirmed.

      E. K. Edwards, James 8. Steel, Abe Collins and DuLaney & Steel, for appellant.

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

Appellant was indicted by the grand jury of Little River County for the crime of murder in the first, degree, alleged to have been committed by killing Lillard Johnston. The case was transferred to Sevier County on appellant’s petition for change of venue, and the trial resulted in appellant’s conviction of murder in the second degree.

It is undisputed that appellant shot and killed Lil-lard Johnston — it was so conceded on the trial — but it was contended on behalf of appellant that he acted on what appeared to him to be imminent danger of death or great bodily harm about to be inflicted by the deceased,, so as to justify appellant in firing the fatal shot in necessary self defense. It is also contended that appellant was insane at the time of the encounter which resulted in Johnston’s death.

The killing occurred on January 2,1925, in the town, or village, of Ogden, in Little River County, at a garage and gasoline filling station formerly operated by appellant. Johnston lived at Ashdown and was the district agent of the Magnolia Petroleum Company, a corporation selling and distributing motor oils and' gasoline. Appellant had been purchasing oil and gasoline from Johnston, but 'had recently gone into bankruptcy, and the business had been purchased and was being operated by a man named Wood.

Johnston, accompanied by J. J. Matthews, the State’s principal witness, drove over from Ashdown on the morning that the killing occurred, for the purpose of collecting from appellant an account of $409, claimed to be unpaid and due from appellant to the oil company. Appellant claims that he made a settlement with Johnston nrior to that time, and that he owed the company very little, if anything. Witness Matthews, who, as bef pre stated, was the State’s principal witness, testified that he and Johnston drove over from Ashdown that morning to see appellant about paying the balance of his account; that they first drove to appellant’s residence and were informed by the latter’s wife that he was at the garage, but that when they reached the garage they were told that appellant was across the railroad track at the store of Hull & Furlow, and they then proceeded to that store, where they found appellant and left there with him to walk back to the garage, which was situated on the west side of the railroad, facing south on the street or road which crossed the railroad at right angles east and west. Matthews’ narrative of the incidents thereafter occurring is as follows: After remaining in Hull & Furlow’s store a few minutes, appellant started out of the door, with Johnston and witness following, and as they went out of the door appellant inquired of Matthews if they wanted to see him, and Matthews replied that he did, and appellant said, “Make it snappy, for I am in a hurry.” The three men started walking across the railroad, in the direction of the garag*e, and appellant stated that he had filed a petition in 'bankruptcy, that he had heard that Johnston was personally responsible for all of the account except $100, and he felt like they (Matthews and Johnston) ought to have advised him before that; that Johnston replied, “I have told you two or three times that I only had an authorized credit- for $100, ’ ’ and appellant disputed that statement. They continued walking towards the garage with appellant doing most of the talking, and he offered to pay $59 that had been charged to Johnston on commission account. Witness asked appellant whether he had sold the gasoline 'and oil on hand, and appellant replied that he had not. In the conversation it was mentioned that appellant’s mother had sold the garage building to Mr. Wood, and that the oil and gas on hand were listed in the bankruptcy proceedings as assets. Witness stated that just ¡as he was on the point of turning to leave them Johnston said to appellant, “I am deceived in you, and don’t appreciate a bit the way you have done about it,” whereupon appellant replied “I am not going to take any abuse;” then Johnston said, “I have said it, and am not going to take it back, and do not appreciate it a damn bit.” The two men were from four to six feet apart at that time, and appellant then remarked that he did not intend to- take any rough talk, and Johnston said that he ‘‘ staid by his statement and did not appreciate it a damn bit, ’ ’ adding’ the remark to appellant, “Burris, you are a low-down dirty crook.”- Appellant had his hand in his overcoat pocket all the time, and at this point he drew his pistol and fired immediately, two shots being fired in quick succession. At the first shot Jlohnston .said, '“Why, Burris!” and then began to crumple and stagger or fall for a distance of four or six feet, and that when the second shot was fired he cried ‘ ‘ Oh! ’ ’ and fell to the ground. He died almost immediately. Witness then asked.-for a telephone so that he could call a doctor, and appellant said, “Bun over to the store and call the doctor quick; I have played hell; he is as good a friend as I had.” Witness testified that Johnston had on an overcoat, and gloves on both hands, and that his hands were held down but were not in his pockets.

There is a conflict in the testimony, appellant giving a different account of what happened, though he agreed with witness Matthews as to some of the things that were said.

Appellant’s narrative was that he had had a settlement with Johnston previous to that day, and that when he went into bankruptcy he owed nothing to Johnston or to the oil company except the sum of $13.50 for two barrels of oil; that he had heard that Johnston had said that he was coming over there to have a settlement with him or have trouble, and that he knew that Johnston always carried a pistol; that after he and Johnston and Matthews got to the garage .and the conversation was continuing concerning Johnston’s claim of indebtedness and the bankruptcy, and appellant not owning the building, Matthews said, “I have information that you sold out for $4,100 in cash,” and added, with an oath, that he (appellant) had put Johnston “in a hell of a bad light,” and that Johnston was going to have to pay the account to his company; that Johnston then said, “Yes, Burris, as much as I have done for you, you have acted a low-down son of a (bitch from start to finish,” and appellant replied, “Lillard, I do not feel like being talked to like that,” and that Johnston said, “Well, I have not said a God damn word to take 'back, you God damned low-browed son of a bitch, I am going to stamp your head off.” Johnston, according to appellant’s narrative, then lunged forward and grabbed appellant with his left hand and grabbed for the pistol and attempted to wrench it from appellant’s hand, and appellant fired the pistol, but was unable to state how many shots he fired. He said that when he fired the pistol, Johnston stopped and hacked off and leaned over and fell. The undisputed testimony is that Johnston was unarmed.

Appellant testified on cross-examination that when Johnston grabbed his hand, he (Johnston) threw one of his hands into his pocket and tried to get appellant by the collar and struck him in the breast. He stated that Johnston grabbed the gun with his left hand. Appellant’s testimony is not very clear as to whether he shot because Johnston threw his hand in his pocket' or because he was trying to wrench the pistol out of his hand, but dt any rate his claim was that Johnston was engaged in an assault upon him, either to get the pistol away from him or to draw one from his pocket, and lie thought his life was in danger and fired the shot. Hiere was enough to justify the submission of the question whether or not appellant fired the shot under the apprehension of danger or violence from Johnston, and the court did in fact submit that issue in sufficient instructions.

Another witness for the State testified that he was standing on the front porch of a store on the east side of the railroad, and something attracted his attention to the parties over in front of the garage, whereupon he walked out a few steps and witnessed the encounter from a distance of about ninety steps; that he heard the report of the pistol shots and saw Johnston fall to the ground, and that at the time this occurred the two men were six or seven feet apart. He further testified that he vent over to the place where the body was lying and found that Johnston had on his overcoat and gloves and had nothing in his hand, that the gloves were either canvas or knit gloves. He said that there was no scuffling at the time or before the shooting; that appellant was standing'with his back to the garage and that Johnston’s hands were not in his pockets.

There was another eye-witness, introduced by appellant — a man named Crouch — who was working at the garage at the time, and he corroborated the statement of appellant, that Johnston had hold of appellant’s hand and that the two men were scuffling, and that Johnston was following up appellant, who was attempting to retire, when the latter fired the fatal shot. There was other testimony introduced in the case, hut there were only three witnesses who claimed to have seen what occurred at the time of the killing.

The assignments of error are very numerous, there being fifty-eight assignments in all, relating to all phases of the evidence and to the court’s charge and in refusing to give instructions requested by appellant.

It is first contended that the court erred in refusing to permit appellant to prove by witness Matthews that Johnston had failed to credit the account of one O’Con-nell, a customer of the oil company, with certain amounts that had been paid. Counsel contend that this evidence was competent as shedding lig*ht on the contention that Johnston was presenting a false account against appellant and was endeavoring to force the latter to pay it. It was competent, of course, to prove the claims made 'by both Johnston and appellant at the time of the encounter with respect to the state of the account, which appears to have been the cause of the rupture between the two men, but the fact that Johnston had improperly failed to give credit on another man’s account had no bearing upon the question involved in this trial. The only effect it could have had would have been to impeach the character of the dead man for honesty, and we know of no rule of law which would permit that to be done.

It is next contended that the court erred in admitting the following question and answer in the cross-examination of witness Matthews: “Q. What, if anything, did Johnston do toward making an attack upon Burris? A. There was no attack made.” The contention is that this was merely the statement of a conclusion., and that the witness should not have been permitted to do that. We do not think that this was a statement of a conclusion* but one of fact, namely, that Johnston made no attack. The word “attack’’ defines itself, and. when the witness said that no attack was: made he stated a fact, not a conclusion.

- In the testimony of witness Wood, who was introduced by the appellant, the following question was sought to be propounded: “Q. Did J. J. Matthews at' that time tell you that Mr. Johnston said that he extended more credit to Burris than was allowed, and that Johnston told him that he ought to g-o down there and give Burris a whipping?” This question had been propounded by appellant’s counsel to Matthews on cross-examination, and Matthews had replied in the negative. The court refused to permit the witness Wood to answer the question.' There is a long colloquy in the record between the trial judge and counsel with respect to the form of the question and the effect of it. The court stated to counsel that they were entitled to prove threats on the part of Johnston against appellant, and also were entitled to show contradictory statements of witness Matthews on material matters in order to impeach his credibility, but that this question would not elicit proof of a threat on the part of Johnston or a contradictory statement of Matthews on material matters. We think that the court was correct in its ruling. The question related to an alleged statément of Johnston to the effect that witness Matthews — not Johnston himself — “ought to go down there and give Burris a whipping.” That is the way we understand the question, and evidently the trial court understood it that way. Now, it would have been competent to prove a threat of Johnston and also to impeach witness Matthews as to a contradictory statement concerning this threat, for proof of the threat was a material matter, but Johnston’s statement that Matthews ought to whip appellant was not a threat of violence on Johnston’s part; therefore appellant was not entitled to prove it as a material matter or to contradict witness Matthews in regard to his statement concerning it. If the trial judge misunderstood the question propounded to the witness, it was the duty of 'counsel to remove that misunderstanding, as it is evident from the colloquy between court and counsel that the court had a correct conception of the law and was willing to admit competent evidence of threats and also impeaching evidence.

In bringing forward proof of appellant’s mental condition, his counsel introduced numerous witnesses, both expert and non-expert. The non-expert witnesses related their experience and observation of appellant and stated that they considered appellant to be mentally unbalanced. Appellant’s mother testified in the case concerning his condition from childhood up to the date of the trial, and her testimony tended to show appellant was insane. .

There are assignments of error with respect to the court’s refusal to permit two of the witnesses — appellant’s mother and a witness named Hull — to testify concerning statements made by appellant to them orally and also in writing. These statements were in substance to the effect that appellant was insane. Witness Hull would have testified that he received a letter from appellant stating that physicians had advised him that he (appellant) was bordering upon insanity. Appellant’s mother testified that at one time appellant, while working on some machinery, had said to her “Don’t bother me; you can’t realize the condition I am in; I don’t know a thing.” These were statements of self-serving declarations of the appellant himself and were not competent. Of course, the non-expert witnesses should have been permitted to tell of their observations of appellant and of any unusual conduct of his which tended to show.that his mind was unbalanced, but a mere statement, whether made orally or in writing, that he believed himself to be insane, was not such a statement as could properly form the basis of an opinion as to his mental condition. These witnesses were allowed to testify as to other facts which influenced them in concluding that appellant was mentally imbalanced. His mother testified as to his condition from infancy, giving' an account of diseases which had begun in early childhood and relating many instances upon which she based her conclusion that he was not of sound mind. We think there was no error committed by the court in excluding the testimony concerning appellant’s statement of his own mental condition.

Dr. Kitchens was introduced by appellant as an expert witness and testified fully as to his observation of appellant and his opinion concerning the latter’s mental condition. Error is assigned on the court’s refusal to permit the following question to be asked: “Under his condition as you have observed it, and the history of the case, do you think that under excitement he would be capable of determining the difference between the right and the wrong thing to do with reference to any specific -act?” Of course, appellant was entitled to prove the substance of the matter which this question would have elicited, namely, as to whether or -not appellant was capable of knowing' the difference between right and wrong with reference to the specific act under investigation (Bell v. State, 120 Ark. 530), but the witness was'permitted to cover the same ground in another statement. After giving the full his-torjr of the case as derived from his own observation, and even, as to what other physicians bad told him, Dr. Kitchens stated his opinion to be that appellant was insane and had been so for about two years. He made the following- statement: “I don’t think that he would be capable of deliberation and premeditation with reference to his acts under excitement.” Now, this latter-statement was a sufficient answer to the inquiry which the court afterwards excluded, and the answer of the witness would have been a mere repetition of what he had already said. Therefore, there was no error in the court’s refusal to permit the question to be in substance repeated.

Appellant offered to prove by witness Crouch, who claims to have been standing in front of the garage door at the time the killing occurred, that immediately after the shooting appellant walked into the garage and made this statement to him, “Frank, I would not have done it for anything in the world, but he forced me to do it to protect myself.” The contention is that this testimony was competent as part of the res gestae. If the alleged statement had been one concerning a fact, and not a mere conclusion, it would, we think, have been competent under the rules stated by this court in Combs v. State, 163 Ark. 550; but we think that the statement was nothing more than a conclusion to the effect that appellant liad been forced to fire the shot in order to protect himself, which was no more than a statement that he had acted in self-defense. If he had made a statement at that-time and under those circumstances concerning a specific act of Johnson which led appellant to believe that he was in danger, the statement would have been competent. The court was correct in refusing to allow this statement of a conclusion to go to the jury as part of the res gestae.

It is contended tliat the court erred in permitting the State to introduce in rebuttal two physicians, Dr. York and Dr. Phillips, concerning appellant’s mental condition. These physicians both testified that they had been acquainted with appellant for a number of years, had practiced in his family, and had treated him for disease on different occasions. Over the objection of appellant they were permitted to testify as to his mental condition. The statute on this subject reads as follows:

“Section 4149. No person authorized to practice physic or surgery, and no trained nurse shall he compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and -which information was necessary to enable him to prescribe as a physician or do any act'for Mm as a surgeon or trained nurse.” Crawford & Moses’ Digest.

It will toe observed that the statute only excludes the testimony of a physician as to information “necessary to enable him to prescribe as a physician. ’ ’ The statute does not exclude all of the testimony of a physician because he had attended the person in a professional capacity, but the exclusion is limited to information which was necessary to enable the physician to prescribe. Neither of these witnesses had ever examined appellant as to his mental condition or treated him for mental disease, and they both testified that they were basing their opinions upon mere observations of the appellant during their acquaintance with him as family physician and by observing him while he was on the witness stand, but not from any information received for the purpose of treating him. It is true that one of the physicians said that on one occasion he gave appellant medicine for a nervous trouble, but he did not examine him with a view of ascertaining his mental condition, or treat him for any mental disease.

Counsel rely mainly upon the announcement of the law on the subject made by this court in the case of Triangle Lumber Co. v. Acree, 112 Ark. 534, but we find nothing on examination of the opinion in that case which would .justify us in holding that this testimony was incompetent. There is nothing in the opinion to justify the conclusion' that we meant to ignore the distinction that under the statute the testimony of a physician is not to be excluded except such as related to information essential to the treatment of the patient. Both of these physicians were cross-examined by counsel and by the court with reference to the basis of their opinions, and the answers of the physicians justified the court in holding that the opinions were not based upon information received which was necessary for the physicians to prescribe.

This covers all the assignments of error with respect to the introduction of testimony.

The assignments of error with regard to the court’s charge are too numerous to discuss in detail. We have examined them all, and find that every phase of the case was properly submitted to the jury. The court gave twenty-four instructions at the instance of the State and fifteen at the instance of the appellant, covering all questions relating to the law of self-defense and insanity, and the law as to the burden of proof and reasonable doubt. Many of the assignments relate to refused instructions which we find were fully covered by other instructions given by the court at the instance of the State as well as the appellant. This is particularly true as to the iustruetions on the subject of reasonable doubt, which was very fully covered by the court charge.

Upon the whole, we find that the record is free from prejudicial error, and the judgment is therefore affirmed.


author: McCulloch, O. J.

text:
    Bayou Meto Drainage District No. 1 v. Kochtitzky.
    Opinion delivered June 15, 1925.
    1. DRAINS — EXTRA EXPENSE IN CLEARING RIGHT-OP-WAY. — Under a contract for construction of a drainage ditch, requiring trees and shrubs to be cut off the right-of-way, the contractor was not entitled to extra compensation for the expense of clearing this right-of-way by the use of teams for removing debris, though, in making the contract he expeeted to be able to effect such clearing with a dredge boat; such expense not falling within a clause providing for payment for extra work not specified in the contract.
    2. Drains — extra expense — liability op district. — Under a contract for the construction of a drainage district which obligated the contractor to remove logs and stumps from the right-of-way, though, in making the contract, the contractor contemplated removing them with a dredge boat, the fact that the commissioners knew that he would not be able to do so without the use of teams did not render the district liable to pay the contractor extra for doing the work in that way.

      3. Drains — guaranty op yardage construed. — -A contract for the -construction of -a drain-age ditch, by which -the district guaranteed the contractor all excavations of 90 per -cent, of the total yardage in the district on the total mileage -as estimated by its engineer, held to mean -tha-t the guaranty applied to- the- total yardage, and not to each -item in the specifications.
    4. Interest on retained percentage. — -Under a contract for the construction of a drainage ditch, with provisions for a retained percentage by the district, the contractor was entitled to interest on the percentage retained ¡by the district from the date of the completion of the work -to the date of the -decree, notwithstanding that he had .agreed th-at any floating timber should be removed at his expense, where it does not appear that the district incurred -any -expense on this account.
    5. Drains — damages for uncompleted work. — Under the contract for the construction of a drainage ditch, the district was no-t entitled to damage for failure to complete the work.
    6. Drains — damages for delay in completing ditch. — Under a contract for constructing a drainage- ditch, .providing that unavoidable delays or extension -of time with the consent of the district’s engineers -should not be charged against the contractor, the drainage district was not entitled to damages for delay in completing the wo-rk and for extra engineering charges during -alleged overtime, where such delays were unavoidable, and the -commissioners -acquiesced therein, -and did not intimate an intention to make charge therefor.
    Appeal from Lonoke Olían eery Court; John E. Mar-tineau, Chancellor;
    modified.

      Wallace Townsend, for appellant.

      Gray & Morris and Chas. A. Walls, for appellee.
   McCulloch, O. J.

Appellant is a -drainage district, organized for the purpose of 'constructing a drainage system in a large area in Lonoke County. The plans contemplated 69.8 miles of -ditches, including Bayou Meto for a distance- of twenty-five miles, the main ditch, 22 miles in length, and eleven lateral ditches, and a cut-off ditch, in addition to cleaning and dredging Bayou Meto for a distance of 25 miles to make it part of the system. Appellee was the successful bidder for the work, and entered into a written contract with appellant. The work was begun in the year 1920, and most of the work was completed in the year 1922, and there was a final completion, according to th^. finding-, by the chancery court, on May 1, 1923. This is an action instituted by appellee to recover the balance alleged to be due for work clone under the contract. Appellant answered denying the amount of earned compensation claimed by appellee, and also filed a counterclaim for damages on account of alleged defective work and for delay in completing the improvement.

Tiie contract called for payment for the work on estimates of the engineer, with the retention of twenty per cent, of each item, to 'be held back until completion of the contract. It is agreed by both parties that the aggregate retained percentage was $71,763.17, the controversy arising over additional items for which appellee made claim and over items of damage claimed by appellant in reduction of the amount due from retained percentage. There was a reference made to a master, who was to take testimony and state the account, which was done, and the court, on hearing the exceptions to the master’s report, rendered a decree in favor of appellee for the sum of $96,102.17, and dismissed appellant’s cross complaint for want of equity. There is a small item of $69.48 to be added to the retained percentage, about which there is no controversy except as to allowance of interest thereon. The interest item on that amount is very small, but we see no reason why appellee is not entitled to it.

The first item of any importance claimed by the appellee, in addition to the amount of retained percentage, and which was allowed by the chancery court, is the sum of $9,097.59 for work done on what is termed force account. Section 25 of the specifications reads as follows:

"Force Account. All -work not contemplated or set out in. these plans or specifications, which will be later found necessary to be done, will be done !by the contractor at the actual cost to him, as determined by the engineer, plus 15 per cent. Under this head would come such items as removing and replacing fences, bridges, removing houses, and all other work that cannot he foreseen at this time. Extra work will be paid for only on the written order from the engineer, and should not he undertaken without the engineer’s written order to do so.”

The claim is based on work done in clearing the right of way. The controversy relates to certain sections of the work along Bayou Meto, which is-a deep and wide stream of water with high hanks in some places and low banks in other places. The specifications in regard to clearing reads, originally, as follows:

“Right-of-Way Clearing. The right-of-way should be a minimum of eighty feet, and in general should be equal to the bottom width of the ditch, plus seventy feet. Widths above that at the discretion of the board and the engineer. Right-of-way for team ditches should not be less than enough to leave a clear ten-foot berm on each side and room for the waste banks.
“All trees and shrubs are to be cut off the entire right-of-way and burned or otherwise removed, to the end that the right-of-way may have a clean, neat appearance. Clearing will be paid for per acre per price bid.”

However, before the. contract was let to appellee, the last paragraph of § 24 was changed to read as follows:

“That all trees and shrubs are to be cut off the entire right-of-way and removed back or under the spoil-banks, to the end that the right-of-way have a clean, neat appearance. ’ ’

Other parts of the contract provided that the Bayou Meto excavation should be a width of fifty feet at the bottom, with sloping banks, and the evidence shows that the excavation work was intended to be done, and was done, with a large dredge boat fifty-four feet in width with a boom of sufficient length to deposit the waste seventy-five feet on each side from the center of the stream or ditch. The evidence also shows that it was the intention of appellant to cut the trees, and then remove the stumps and trunks and debris with the dipper of the dredge. All of the parties connected with the work, including- the commissioners, doubtless ha.d in mind that the clearing would be done in that way at the time the contract was made, but there is no specification in the contract with reference to that part of the work except those provisions quoted above. That method was pursued in doing- the clearing- from the beginning- of the work on Bayou Meto at station 3 up to station 429 when it was found that on account of the low banks and the depth of the stream there was not enough waste material to cover the logs, stumps and other debris so as to prevent it floating- back into the stream in times of high water and the same could not be handled and deposited by the dredge boat outside of the limits of the right-of-way; hence it was found necessary to clear the right-of-way by use of teams so that the debris could be hauled outside the limits of the right-of-way. Appellee claims that this constituted a change in the contract for which he is entitled to extra pay on force account, as provided in § 25 of the specifications. The chancery court took this view of the matter and allowed appellee the item of $9,097.59, which included the cost of clearing and the fifteen per cent, additional provided by the contract for payment on force account. Our conclusion is that the allowance was improper, and that the item did not fall within the clause providing for payment for extra work. Section 25 -was not intended to cover extra cost of different methods of doing the work unless it constituted a change in the plans and specifications. The intention of the parties, as gathered from a fair interpretation of the language used, is that it was to provide compensation for work which was not specified in the contract. There could be no claim on account of change in the method of doing the clearing, for there was no method specified. All that the contract provided on that subject was that the “ trees and shrubs are to be ■cut off the entire right-of-way and removed back or under the spoil-banks, to the end that the right-of-way may have a clean, neat appearance.” The effect of this provision was to require that all of the debris be placed either under the spoil-banks or removed from the right-of-way back of the spoil-banks; otherwisethe right-of-way could not “have a clean, neat appearance.” Under those terms of the contract, the debris could not be left exposed on the right-of-way, and if there was not sufficient deposit of waste dirt to constitute a spoil-bank to cover the debris, then, under the contract, it was appellee’s duty to remove it off of the right-of-way. The contract did not bind appellee to any particular method of doing the work, and he took his chances on doing it in any way that was necessary to accomplish the results specified in the contract. Notwithstanding the. fact that he expected to be able to do it with the dredge boat and it turned out that another and more expensive method of work was necessary, it was his loss and not that of the district.

There is much testimony concerning the correspondence and dealing’s between the parties with reference to this work, and it is contended that the conduct of the commissioners constituted an acquiescence in appellee’s doing the work on force account, but we are of the opinion that there was no waiver of the right of the district as to the method in which this work was to be done. It is true that the evidence shows that the commissioners knew that the clearing would have to be done with teams after thev passed station 429. but the recognition of this fact bv the commissioners did not commit them to an agreement to pay appellee extra for doing the work in that way.

The next item claimed by appellee and allowed bv the chancellor, in addition to the retained percentage,- is $10.623.72 on account of there being less than the guaranteed amount of excavation. In the specifications prepared by the engineer, which became part of the contract, there was set forth an itemized statement of the mileage of each ditch and the amount of cubic yards of dredging.-’ The aggregate mileage in this statement was 69.8 miles, and 3,046,850 cubic yards of dredging. The contract contains the following provision with reference to guaranty of total yardage: ‘ ‘ The party of the first part (district) further agrees that it will guarantee to said party of the second part (contractor) an excavation of 90 per cent, of the total yardage in said district upon the total mileage as estimated by the engineer of said district.” According to the undisputed proof, appellant has been allowed for 3,227,127 cubic yards of dredging. This is 287,277 cubic yards in excess of the total yardage estimated for the whole project. But the. contention of appellee is that the language of the guaranty should be interpreted to mean that each item in the specification should be considered separately, so as to entitle him to an allowance of ninety per cent, of each item, regardless of the total. The contention is that the words, “as estimated by the engineer of said district,” confirm that interpretation. We do not so interpret the contract, for it appears to us that the language meant that the guaranty applied to the total yardage and not to a separate guaranty on each item. The court was therefore in error in allowing this item.

It is next contended that the court erred in allowing interest on the retained percentage from the date of the completion of the work on May 1, 1923, up to the date of the decree. We perceive no reason why appellee is not entitled to interest on the amount due him from the time it should have been paid to him on the completion of the contract. The funds were not to be retained any longer and the failure to pay at that time -started the period for which interest should be allowed. It is the contention of appellant that there should be no allowance of interest for the reason that appellee accepted payment on an estimate pursuant to the resolution of the board of commissioners to the effect thgt the payment should be'made “with the understanding that any floating timber that may enter the stream in the work now performed, shall be removed at the cost of the contractor.” There is no evidence that the expense of removing- floating timber would amount to any considerable sum, but, even if it did, this would not prolong the period of payment beyond the completion of the contract in other respects. If there was any expense to the district on this account, there should be a deduction for the cost, but none is shown. There is a slight discrepancy of one month as to the date of the completion of the contract, it being claimed by one party that it was completed on June 1, and by the other that it was completed on May 1. ¥e accept the finding of the trial court as correct, that the contract was completed on May 1, and interest should run from that date.

This brings us to a consideration of the items of damage claimed by appellant in its cross-complaint.

There is a claim of damages in the sum of $24,160.23 for alleged defective work and for delay in completion of the work, and also the additional sum of $4,040 for extra engineering charges during the alleged overtime. We are of the opinion that the chancellor was correct in refusing to allow any part of these amounts. There appears to have been no complaint in regard to the work from station No. 3 up to station No. 340, but when the work reached station 429, estimate No. 34 was made by the engineer, dated June 6, 1921, with the following indorsement thereon: “I recommend that $537.23 be retained to cover the expense of removing logs from the right-of-way from station 340 to 429.” Pursuant to the recommendation, this amount was withheld by the board to cover the expense of doing that work, and the indorsement of the engineer must be taken as an estimate that this sum would be sufficient to remove the logs so as to complete the work. The clearing thereafter was satisfactorily done, and the only controversy arose over appellee’s claim for extra payment on force account. It is claimed that there were other defects for which damage should be allowed. There is a sharp conflict in the testimony as to the extent of those defects. The evidence is very voluminous. There is an enormous record before ns, but, after having carefully considered it, we can do no more than state our conclusions from this testimony. We are of the opinion that appellant has not shown its right to recover any amount of damage in excess of the $537.23 retained for that purpose, and the retention of that item is not involved in the present controversy. The contract contained the following provision with respect to liquidated damages for delay in completion of the work.

“It is further agreed that if the party of the second part fails or refuses to complete said work in the manner and within the time specified herein, plus allowances made, then and in such event the party of the second part shall pay, in addition to the engineering and inspection charges made in the specifications, an amount equal to 6 per cent, a year on the total contract price to the commissioners of the said drainage district, as liquidated damages of said district for the entire time of such extension beyond the time allowed for completion as outlined in the specifications. ’ ’

Another provision on the subject of extension of time is as follows:

“No extension of time on account of lack of water, or for other causes, shall be made, unless the engineer shall be notified in writing of the necessity for delay, and shall decide that such necessity exists.”

And still another provision of the contract on that subject is as follows :

“But an unavoidable delay shall entitle him to an extension of time allowed for the completion of the work sufficient to cover the time lost by such delay.”

Another provision of the contract fixed thirty-eight months as the period within which the work should be completed.

The substance of these provisions, when read together, is that unavoidable delays or extensions of time with consent of the engineer are not chargeable against the contractor as delays for which damages are to be allowed. There is proof that there were unavoidable delays, especially with reference to the change in the method of clearing the right-of-way below station 429. Communications between the parties show at least that the commissioners acquiesced in this method of doing the work, and there was no intimation of an intention to charge for the necessary delay in doing the work according' to the changed method. There is also proof of excessive rains and the overflow of a large part of the area to be drained, which necessarily delayed the work. We are of the opinion 'that the chancellor was correct in holding that no charge should be made on this account.

Adding to the amount of retained percentage, the item of $69.48 for error in computation, and the item of $3,985.73 .for interest from the date of the decree, makes a total of $75,818.38.

The decree dismissing the cross-complaint of appellant is therefore affirmed, and the decree in favor of appellee is modified so as to reduce the sum to be recovered to the amount last named above. It is so ordered.