text:
    Orto v. Sweatt.
    Opinion delivered December 24, 1923.
    1. Sales — rescission and resale — jury question. — Evidence held sufficient lor submission oí issue whether the parties to a sale rescinded it and then made a new sale, with reservation of title in the seller until a mortgage on other property to be received in payment, was paid.-
    2. Sales — rescission and resale. — Parties to a sale may rescind it and make a new sale with reservation of title in this seller until a mortgage on other property, which was to be in payment, is discharged.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      Reinberger £ Reinberger, for appellant.
    The court erred in overruling the motion for new trial. A reservation of title must be contemporaneous ' with the sale. 37 S. E. 632; 61 Pac. 660; 130 Pac. 107; 45 Vt. 369. There can be no verbal mortgages. 57 Ark. 216; 12 Ark. 428; 30 Ark. 745; 34 Ark. 346.

      Rowell £ Alexander, for appellee.
    Where a verdict or judgment is correct under any theory of the case, this court will not reverse. 103 Ark. 105. A sale may be proved by circumstances as well as by affirmative evidence. 124 Ark. 585. Instruction number three was more favorable to appellant than the evidence justified. 98 Ark. 221. A contract must be interpreted in accordance with the intention of the parties. 114 Ark. 415; 104 Ark. 406. Contracts for the conditional sale of personal property with reservation of title are not required to be in writing. 149 Ark. 433.
   Smith, J.

This is a suit in replevin to recover possession of certain plate-glass showcases. The cases have marble bases, and are very heavy and valuable. There was a verdict and judgment for the defendant, and the plaintiff has appealed.

The point in issue is reflected by an instruction numbered 3, given over the objection of the plaintiff, the trustee in bankruptcy of Elkins. It reads as follows: “If you find from a preponderance of the evidence in this case that M. L. Elkins sold Doctor Collier an automobile and took the show-cases as part of the payment on the purchase money, then the court instructs you that this was an absolute sale of the property to M.. L. Elkins, and you will find for the plaintiff, unless you find that, subsequent thereto, and before the petition in bankruptcy was filed, there was a contract and agreement between the parties, mutually understood and agreed, that the title should be reserved in Doctor Collier until the show-cases were paid for and the mortgage satisfied on the automobile. In order to convey the title back in Doctor Collier, it is necessary for the proof to show that there was a positive agreement between the two that the title should he reserved in Doctor Collier until the mortgage was discharged, and this before the petition was filed. If you do not so find, you will find for the plaintiff. ’ ’

Appellant concedes that, if this instruction correctly declares the law, and that there was testimony upon which to base it, this ease will have to be affirmed; but he questions both the soundness of the legal proposition there announced and the sufficiency of the testimony upon which to base it.

Dr. Collier testified that he traded the show-cases to Elkins for an automobile, but, after doing so, he was informed that the Citizens’ Bank of Pine Bluff had a mortgage on the automobile, whereupon he saw Elkins, who admitted this was true, so he and Elkins agreed that witness “should hold the cases until the mortgage was settled.” Witness further explained the new contract about the cases, after discovering there was a mortgage on them, as follows: “I just figured the cases were mine until he paid the mortgage off. ’ ’ The mortgage was later paid, whereupon a bill of sale was executed, this being the first and only bill of sale given.

There was also testimony that, after the new eon-tract, wherein it was agreed that Collier should hold the show-cases until the mortgage was paid, Elkins assumed no authority or control over the cases, and they were not moved, and, when Elkins listed his assets at the time he filed his petition in bankruptcy, he did not include the show-cases, and they were pointed out at the time as being in the possession of Collier.

We do not undertake to review all the testimony, but we have set out enough of it to show that the instruction was not abstract. The court, in effect, told the jury to find for the plaintiff unless there was a rescission of the first sale and a second sale with a reservation of title.

We know of no legal reason why the first sale might not have been rescinded, especially after it was made known that the consideration therefor had partly failed, in that the automobile was mortgaged, and, if it was rescinded, we know of no reason why the show-cases might not have been resold with a reservation of the title, and such is the effect of Collier’s testimony. There was never an actual delivery of the show-cases at the time of either sale. After the second contract was made the show-cases were pointed out, and Elkins ' stated that they .were not his and were not in his possession, but belonged to Collier and were in Collier’s possession. Moreover, as we have said, there was never but one bill of sale, and this was not made until after the mortgage on the automobile had been paid.

We think there is no question of a lack of delivery to validate this second contract. There had been only a constructive delivery to Elkins under the first contract, and there was a constructive delivery under the second contract, and, in addition, the show-cases were pointed out as being the property of Collier after the second contract was made, and no manual delivery of the cases was ever made until the mortgage was discharged and the bill of sale was executed, until which time Collier had retained the title by virtue of the second contract whereby he retook the title conveyed by the first contract.

This second contract may have been unusual, but it was not unlawful or impossible, and if, after selling the show-cases, that sale was rescinded, we kn'ow of no reason why a second sale thereof might not.have been made with a reservation of title. The instruction set out above submits this issue, and the objection to the instruction is that it told the jury the title could be reserved in Collier by a subsequent agreement, although there had been a prior sale under which the title had passed; but, as we have said, parties competent to contract have the right to sell and to rescind and to resell, and the judgment of the court below must therefore be affirmed.


source: Caselaw Access Project

author: ■Smith, J.

license: Public Domain

text:
    Newell Contracting Company v. Elkins.
    Opinion delivered December 24, 1923.
    1. Highways — equitable garnishment. — Highway improvement districts are not subject to garnishment at the instance of a creditor of the contractor, unless the contractor is insolvent and has completed the improvement.
    2. Equity — objection to jurisdiction — waiver.—Objection to the jurisdiction of chancery to entertain an equitable garnishment • against a highway improvement district was waived by the debtor, where it was not raised until after the garnishment had been discharged, and also where the debtor asked affirmative relief in that court.
    3. Evidence — parol evidence rule. — The rule forbidding the introduction of parol evidence to contradict a written agreement is not infringed where the writing related to certain transactions while the parol evidence related to an independent agreement concerning subsequent transactions.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      L. G. Going, for appellant. •
    1. The chancery court had no jurisdiction. In failing to allege that the appellant was insolvent, the complaint on its face failed to show that there was no adequate remedy at law. 148 Ark. 181; 230 S. W. 17; 90 Ark. 236; 134 Ark. 109; 143 Ark. 446. And, before an equitable garnishment may be issued, there must be an allegation that the original debtor is insolvent. The foregoing authorities also settled the principle that, before an agency of the State, such as a road or drainage district, can have its funds tied up under an equitable garnishment, the improvement must have been completed and the district must have no claims against the contractor. See also 20 Cyc., Garnishment, p. 988; 51 Am. St. Eep. 114, note; 28 Cyc., Municipal Corp., p. 1765; 1 Shinn on Attachments, 132; 3 Abbott, Municipal Corporations, p. 2547; Cooley on Municipal Corporations, 368; 1 Dillon on Municipal Corporations, 5th edition, 467, § 248; 56 Ark. 476; 20 S. W. 402; 90 Ark. 226; 118 S. W. 1011. The contract was in writing, and, as the damages claimed were on account of an alleged breach thereof, the same was easily measurable, and the action should have been brought at law. 7 Ark. 520; 13 Ark. 630; 26 Ark. 649; 27 Ark. 77; Id. 157; 30 Ark. 579; 48 Ark. 331; 191 S. W. 220. Want of jurisdiction may be taken advantage of by answer, as well as by demurrer, and may be made at the hearing if it appears from the proof. 14 Ark. 50. See also, 0. & M. Digest, §§ 1189, 1192; 134 Ark. 337; 136 Ark. 157; 145 Ark. 604; 90 Ark. 195; 95 Ark. 618; 80 Ark. 145; 109 Ark. 250.

      Harry E. Cook and Mehaffy, Bonham $ Mehaffy, for appellee.
    1. We do not think that the statute, C. & M. Digest, § 1239, was intended to require the court, at all stages of the proceedings, to permit the introduction of new issues; and, since there was no issue raised in the original pleadings as to the jurisdiction of the court, appellant ought not to be permitted, eight months thereafter, to file an amendment attacking the jurisdiction of the ^ court and raising a new issue, viz. the solvency of the appellant. 85 Ark. 39; 104 Ark. 276; 80 Ark. 326; 68 Ark. 314. By its failure to move to transfer before filing the answer, appellant waived objection to the jurisdiction. 31 Ark. 411; 32 Ark. 562; 51 Ark. 235; 74 Ark. 81; 122 Ark. 104; 142 Ark. 609. Appellant is estopped to question the jurisdiction, not only because it executed a bond and applied to the court to approve the same, and to discharge the garnishee and order the funds restored to the appellant, all of which was done, but also because it filed a cross-complaint with prayer for affirmative relief. The authorities are ample that the funds of an improvement district are subject to garnishment in a court of equity, and that garnishment is sufficient to give jurisdiction to a court of equity in cases otherwise cognizable at lav. 143 Ark. 446; 144 Ark. 621.
    2. The contract which is the basis of this action is plain and explicit. Being in writing, it cannot be varied, added to or changed by parol testimony. 95 Ark. 131; 125 Ark. 219; 139 Ark. 53; 9 Ark. 501;’29 Ark. 544; 30 Ark. 186; 49 Ark. 285; 54 Ark. 525; 21 Ark. 69; 13 Ark. 448; 15 Ark. 543; 24 Ark. 210.
   ■Smith, J.

Appellee was the plaintiff below, and sued in equity to recover on the following writing:

“Birmingham, Ala., May 23, 1921.
“M. W. Elkins & Co., Little Rock, Ark.
“jRe Tyronza-St. Francis Road District, Cross County, Ark.
“Gentlemen: I am today in receipt of bonds Nos. 76, 77, 78, 79, 80, 81, 87 and 88 issued by the above district. I agree to return these to you within sixty (60) days from this date, as you have merely loaned me the bonds to assist me in taking care of my payroll on the above work, and it is thoroughly understood that I am to return to you the above bonds within 60 days without any payment on your part.
“If I should fail to return the bonds to you within sixty days from the above date, I agree to pay you at the rate of 85c on the dollar and accrued interest for the above bonds.
“Tours truly,
“Newell Contracting Company,
“By A. T. Newell.”

He alleged the failure to return the bonds, and prayed for judgment for $6,800. As an incident to this suit appellee alleged that the appellant company (hereinafter referred to as the company), was engaged in construction work under a contract with a road improvement district in Chicot County, and a garnishment issued against the district for the sum due the company under that contract.

The company filed an answer and a cross-complaint. It admitted execution of the writing set out above, and, by way of cross-complaint, alleged that it had entered into a contract to construct the roads in the Parkin & Tyronza Road Improvement District in Cross County and that, prior to the execution of this contract, appellee had contracted with that district to purchase the bonds of the district and to pay therefor 87.75 cents on the dollar, the bonds to be taken np and' paid for in such amounts as was necessary to pay the estimates given to the company on its work under its construction contract. That on December 13, 1920, after, the company had done a considerable amount of work, and had received from the engineer estimates thereon which entitled it to be paid the proceeds of bonds in discharge thereof, appellee made default in his contract with the district to take up the bonds. Whereupon appellee called a meeting of the commissioners of the district and the president of the company to confer with him on the subject of his contract to buy the bonds. At this meeting appellee admitted his inability to take the bonds, and asked the commissioners of the district to hold down the work during the remainder of December and during the months of January and February, and proposed that, if this was done, he would be prepared, after March 1, to pay for enough bonds to pay the company for the work covered by the engineer’s estimates, and would thereafter take up enough of the bonds each month to pay for such work as the company was able to do. It was then agreed that estimates for not exceeding $7,500 should be given by ■ the engineer for work done during the months of January and February, respectively. On the date on which this agreement was reached the parties executed the following writings:

“Little Rock, Ark., Dec. 13, 1920.
“Mr. M. W. Elkins, Little Rock, Arkansas.
“Be: Tyronza & St. Francis Road Improvement District, Cross County, Arkansas.
“Dear sir: On the thirty-six thousand ($36,000) dollars of bonds I am to receive from the Mercantile Trust Company, on a basis of 87.75 cents on the dollar, maturing in the years 1924, 1925 and 1926, I agree to deliver these bonds to the Mercantile Trust Company at any time you request, by having the bonds' shipped to the Mercantile Trust Company. St. Louis, Missouri, and to be paid for when received there at the rate of 87.75 cents on the dollar and accrued interest from December 17, 1920, to date the bonds are taken up and paid for at the Mercantile Trust Company.
“Very truly yours,
“Newell Contracting Cpmpany.
“By A. T. Newell, Pres.”
“December 13,1920.
“Mr. A. T. Newell, 1531 First Ave., Birmingham, Ala.
“Re: Tyronza & St. Francis Boad Improvement
District, Cross County, Arkansas.
“Dear sir: In reply to your letter of this date, I agree to take up the thirty-six thousand ($36,000) dollars of bonds named in your letter, on March 1,1921, and I agree to take up on April 4, 1921, the estimate due January 4, 1921, not to exceed $7,500. On May 4, 1921, I agree to take up the estimate due on February 4, not to exceed $7,500.
“Very truly yours,
“MWE: W M. W. Elkins.”

The cross-complaint further alleged that appellee defaulted in his agreement to redeem bonds, but, when called upon to do so, proposed to furnish either $2,500 in money or eight bonds for a thousand dollars each, to be used by the company as collateral, and the writing herein sued on was executed. That the writings dated December 13 related to bonds to cover estimates then outstanding and the estimates for January and February, which were not to exceed $7,500 for each of those months, and that an oral agreement was made which covered the other estimates to be received from the district’s engineer in the construction of the improvement. This oral agreement was to the effect that the trustee named in the contract for the sale of the bonds by the district to appellee should, on the order of the district, issue to the company bonds at 87.75 in payment of these additional estimates, and that, after March, appellee should redeem the bonds so issued to the company at the contract price for the sale of the bonds to appellee; and it was alleged that, pursuant to this agreement, the company took bonds in payment of estimates to the extent of $100,000, in addition to the $36,000 in bonds covered by the letters of December 13, but appellee failed to redeem the $100,000 of bonds at the contract price as agreed, and the company was compelled to sell them at the best price then obtainable, which was eighty cents on the dollar and accrued interest, and judgment was prayed for the loss thus sustained.. Appellee filed an answer denying the allegations of the cross-complaint.

Upon the issue thus joined the parties proceeded to take testimony, and the company executed, with the perfuission of the court, a bond which secured the release of the funds of the Chicot County Eoad Improvement District.

On January 19, 1922, after most of the testimony had been taken, the company filed an amendment to its answer, in which the jurisdiction of the chancery court was challenged, upon the grounds that the complaint contained no allegation of the company’s insolvency, and did not allege that the Chicot County district had completed its improvements, and the same had not, in fact, been completed, and its funds were not therefore subject to garnishment.

The court sustained a motion to strike this amendment to the answer from the files, on the grounds that it was filed out of time and without permission, and that the company had invoked the aid of the court to secure affirmative relief.

Upon the final hearing the court dismissed the cross-complaint as being without equity, and rendered judgment against the company in the sum of $6,800, and this appeal is from that decree. Other facts will be stated in the opinion.

We agree with counsel for the company that the chancery court was originally without jurisdiction, because there was no allegation of the company’s insolvency, and there should have been no garnishment in this case, because the Chicot County district, the garnishee, had not completed its improvement. .These governmental agencies are not subject to garnishment prior to the completion of the improvement to construct which they are .created. Bayou Meto Drain. Dist. v. Chapline, 143 Ark. 466; Henslee v. Hobley, 148 Ark. 181; Road Imp. Dist. No. 4 v. Southern Trust Co., 152 Ark. 438; Greening v. Planters’ Bank & Trust Co., 147 Ark. 477. See also numerous other authorities to the same effect cited in the appellant’s brief.

However, this question was not raised in apt time; indeed, it was not raised at all until the discharge of the garnishment had been secured; and, by asking affirmative relief, the company waived the failure of the complaint to contain the allegations essential to confer jurisdiction on the chancery court.

The action of the court in dismissing the cross-complaint and in rendering judgment on the writing sued on is defended on the grounds, first, that the testimony supports that finding, and, second, that the testimony offered in the company’s behalf tended to contradict and vary this writing, and was therefore inadmissible.

"We do not concur in either view, and' we discuss these propositions in reverse order.

It is the contention of the company that the writings set out were intended to cover bonds to be issued and redeemed in payment of outstanding estimates and the estimates for January and February, the estimates for those months not to exceed $7,500 for either month, regardless of the amount of work done by the company during those months, and that an additional parol contract was made to cover other estimates.

We recognize, of course,' the legal propositions pressed by appellee, that a contemporaneous or antecedent verbal agreement is not admissible to contradict a written contract, and that prior negotiations are merged when the parties set down the terms upon which they finally agree in writing. But those rules of evidence are not infringed here if the company’s version of what happened -on December 13 is accepted', that is, that the writings covered the payment of the outstanding estimates and those for January and February, not exceeding $7,500, and the parol agreement-related to subsequent estimates.

Appellee was entitled to have judgment rendered in his favor for the price stipulated for the bonds in the writing, which is $6,800; but it does not follow that the company cannot prove there was another agreement. In other words, parties may malee more than one contract, and we have concluded, from a consideration of all the testimony, that the writing was not intended to evidence the only contract.made. It is true that appellee’s testimony is to the effect that on December 13 he made no contract except that set out in the writings executed on that date; but there was much other testimony in the case, and we give a summary of it.

Appellee proved the execution and the delivery of the writing sued on, a fact admitted by the pleadings, and he testified, in effect, that no other contract was made on December 13, and that the company agreed to accept from the district the bonds of the district at the price at which he agreed to purchase them (87.75c on the dollar), and that he made no agreement to redeem the bonds so delivered to the company by the district, and that he only agreed to sell the bonds for the district as fast as,he could, and to account at once for the proceeds of such bonds as he was able to sell.

On behalf of the company the testimony was to the effect that appellee was at all times in default in his contract to take up the bonds of the Cross County Improvement District, and, as a result of this default, the district was unable to pay the engineer’s estimates to the company, less the retained percentage, pursuant to the construction contract, and suit against'-the district was threatened by the company. The district recognized its contractual obligations to the company, and constantly urged appellee to take up bonds in sufficient amounts to meet the engineer’s estimates. Estimates amounting to something less than $36,000 were outstanding and unpaid on December 13, when the meeting was held. This meeting was called by appellee, and was held for his benefit. As appellee was then unable to buy enough bonds to pay the past due estimates, the company agreed to accept bonds for that amount, and the writings bearing that date, which are set out above, were then executed. Pursuant to this agreement, the trustee was directed, with the consent of the commissioners of the district, to release to the company bonds amounting to $36,000. This the trustee did, and bonds for that amount were delivered to the company, and appellee redeemed these bonds on March 8, 1921.

The company commenced the construction of the Cross County improvement in September, 1920, and thereafter was receiving gravel and structural material, but had no funds with which to pay the freight, and the company had on the job an expensive outfit, and appellee was unable to pay for bonds fast enough to take care of the engineer’s estimates to the company. It was appellee who was in default, and it was against him that suit was threatened by the district. He had not been employed as a mere broker to sell the bonds for the district, but he had purchased the bonds, and his contract of purchase required him to take up the bonds in sufficient amounts to meet the engineer’s estimates, and this he had not been doing. There was no reason why appellee should have been released from his contract of purchase, and the preponderance of the testimony is that he did not ask to be released, but only asked indulgence in the way of an extension of time to dispose of the bonds which he had previously obligated himself to take, and testimony on the nart of the comnany is to the effect that, in consideration of this forbearance, appellee agreed, after March 1, to turn the district and the company loose and to allow the work to progress as rapidly as possible, and to take up the bonds, which were to be released to the company by the trustee, at the contract price of sale of those bonds.

It appears, from the writing signed by appellee on December 13, that he agreed to take up the $36,000 of bonds on March 1, and further to take up, on April 4, the estimate due January 4, not to exceed $7,500, and to take up, on May 4, the estimate due February 4, not to exceed $7,500. As has been said, appellee took up the $36,000 in bonds, but failed to take up the estimate for January and February. Thus the matter stood when the writing sued on was executed.

Acting with appellee in the matter was Mr. Duhme, of the firm of Friedman, D’Oenche & Duhme, bond dealers, with their place of business in St. Louis. Mr. Duhme attended the meeting of December 13, but his deposition was not taken, and there is no corroboration of appellee’s version of the transaction. Appellee’s testimony is that he made no agreement to take up the bonds after March 1, and that he agreed only to allow the company to use the eight bonds delivered it, and which were to be returned or paid for within sixty days.

Opposed to the testimony of appellee is the testimony of the president of the company, the secretary of the Cross County district, the president of the district, another commissioner of the district, and the engineer of the district. These five witnesses were all present at the meeting on December 13, and their testimony is substantially the same. In addition to the facts recited above, they testified that -appellee admitted his default in taking up the bonds, but sought to excuse it on the ground that he was unable to make satisfactory sale of the bonds which he had contracted to buy; that he represented the market would improve after March 1, after which time he would ask no further indulgence, and that the commissioners agreed that the trustee might release to the company the $36,000 in bonds covered by the writing then executed, in consideration of appellee’s agreement to redeem them on March 1, and that it was also agreed that, after March 1, the trustee should release bonds to the company in amounts equivalent to the engineer’s estimates, and that appellee would redeem all the bonds so delivered by.the trustee after March 1.

We conclude the testimony showing there was an independent parol contract is admissible, and that the preponderance of the testimony sustains the company’s contention. This being true, appellee should have judgment for the $6,800 sued for; and the company should have credit for the loss which it sustained on the bonds which appellee failed to redeem.

It appears there were $100,000 of these bond's, and that the best price obtainable, and the one which the company obtained, was eighty cents on the dollar, with accrued interest amounting to $850; so that the company received for these bonds $80,850. Appellee should have redeemed these bonds at $87,750, and', as the company received only $80,850 for them, appellee must sustain this loss of $6,900. The difference in the respective liabilities is $100, and, as the difference is in favor of the company, the judgment will be in its favor for that amount.


author: Humphreys, J.

text:
    Duncan v. Smith.
    Opinion delivered December 24, 1923.
    Evidence — parol evidence to contradict writing. — Parol evidence that appellant signed the note in suit upon condition that he should be released when another signed the note, was inadmissible, as it would contradict the writing.
    Appeal from' Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      E. F. Duncan, pro se.

    The demurrer admits the allegation that appellant signed the note upon the agreement that he was to be released from liability when Ellison signed it, and that the latter did sign it. The court erred therefore in sustaining the demurrer. 24 Ark. 358; 150 Ark. 39; Id. 138 ; 133 Ark. 567; 39 S. W. 509; 125 Ark. 6.

      W. E. Beloate, for appellee.
    The authorities cited by the appellant are not applicable in this case. This is an attempt to set up an agreement between joint makers of a note that one of them should be released when another of them should sign, and not an agreement by the holder of the note to accept a novation in makers upon a consideration passing. The plea was frivolous, and was properly disregarded.
   Humphreys, J.

Appellee brought suit in the circuit court of Jackson County against F. M. Silom, George Loyd, C. E. Ellison and E. F. Duncan upon the,following promissory note:

“Newport, Arkansas, 9-19-1919.
“On or before October 15, 1920, after date, we or either of us promise to pay to the order of W. P. Smith, at the banking house of the Arkansas Bank & Trust Company, in the city of Newport, Arkansas, the sum of three hundred and fifty and no/100 dollars, for value received, with interest from date until paid at the .rate of ten per cent, per annum. Interest payable annually, and, if interest be not so paid when due, then such unpaid interest shall become as principal and bear like interest until paid. The makers and indorsers of this note waive presentment, notice of nonpayment and protest.
“F. M. Silom,
“Geo. Loyd,
“C. E. Eilison,
“E. F: Duncan.
“P. 0. 8 cents stamps canceled.
“Date due.”

Credits to the amount of $43 were indorsed' on the back of the note. Service was obtained upon all the defendants except C. E. Ellison. In apt time E. F. Duncan filed a separate answer, admitting that lie signed the note for the accommodation of F. M. Silom and George Loyd, but denying liability thereon for the reason assigned in the second paragraph of his answer, which is as follows:

“That the defendant, E. F. Duncan, indorsed said note only on condition that, when the defendant, O. E. Ellison, should sign said note, the signature of defendant, E. F. Duncan, would be canceled from said note and said defendant released from all obligations expressed in said note; that said condition was agreed upon by and between the said E. F. Duncan on his part and by the said W. P. Smith, F. M. Silom and George Loyd on their parts. ’ ’

A demurrer was interposed and sustained to the answer. Appellant refused to plead further, electing to stand on his separate answer, whereupon judgment was rendered against him and1 his co-defendants who were served, and made default, for $417.10, the amount of principal and interest due upon the note. From the judgment an appeal has been duly prosecuted to this court.

Appellant contends for a reversal of the judgment under the principle of law that a surety may be discharged from his obligation by the novation or substitution of another in his place, by consent of the makers and payee of a note. The principle invoked is not applicable to the facts alleged and admitted to be true by the demurrer. Our construction of the allegation is that Duncan signed and delivered the note to appellee as a binding obligation, with the understanding that he should be released whenever C. E. Ellison signed the note. In other words, that he should be bound upon the note until the signature of C. E. Ellison was obtained. Proof responsive to this allegation would have contradicted the writing, and for that reason could not have been, introduced. It was proper therefore to sustain the demurrer to the answer. Had the agreement for the substitution of Ellison as a debtor in the place of Duncan been subsequent to the first agreement, or bad the agreement been for the note not to become a binding obligation" until signed by Ellison, either allegation would have been impervious to attack by demurrer, for proof of the allegations would have in no wise contradicted the written instrument.

No error appearing, the judgment is affirmed.


text:
    Coal District Power Company v. Booneville.
    Opinion delivered December 24, 1923.
    1. Electricity — review of rates fixed by ordinance. — On appeal to the circuit court by a public utility to review r’ates of charges for electrical energy as fixed by a municipal ordinance, under Acts 1921, No. 124, § 17, which provides for a judicial review, the circuit court was authorized, not only to determine whether the ordinance rates are confiscatory, but, upon finding them to be such, to ascertain 'and fix fair and just rates.
    2. Constitutional law — rate fixing not legislative power.— Where rates for electricity, established by a city ordinance under Acts 1921, No. 124, are set aside by the circuit court, such court, in fixing a proper rate, is not exercising a legislative function, and the statute is not unconstitutional in authorizing it to do so.
    3. Electricity — rule for fixing rates. — Under Acts 1921, No. 124, a rate for electricity must be fixed which will give the public utility a fair and just return upon the market value of its property as of the time of the rate inquiry.
    4. Electricity. — now value’ of plant determined. — Treating the reproduction cost of an electric plant as a proper element in arriving at the present market value of the property, it would not be proper to average the cost of labor and material entering into the reproduction of the plant during any given period, and the price for labor and material prevailing as of the time of the rate inquiry necessarily controls.
    5. Electricity — rates—evidence.—In proceeding under Acts 1921, No. 124, the weight of evidence held to support the rates for electricity fixed by the circuit court.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Jnclge;
    affirmed.

      James. B. McDonough, for appellant.
    1. • The court had no jurisdiction to render the judgment. Its attempt to fix a reasonable rate was wholly invalid, notwithstanding 'section 19 of the act (Acts 1921, p. 202). It is the exercise of legislative power by a court. Const. Ark., art. 4, §§ 1, 2; Id. art. 5; art. 6; art. 7, § 1; 24 Ark. 91; 5 Ark. 710 ; 14 Ark. 568; 49 Ark. 160; 44 Ark. 273; 2 Ark. 294; 14 Ark. 698; 156 Ark. 259, and eases cited; 134 Ark. 292; 76 Ark. 191; 277 Fed. 66; 98 Fed. 335; 43 S. Ct. 445; 135 N. E. 655; 191 N. Y. Sup. 430; 189 Id. 929; 227 S. W. 804; 122 N. E. 144; 91 S. E. 993.
    2. The evidence is wholly insufficient to warrant the court in fixing the Huntington rate, a town thirty miles away, as the rate for Booneville. There is no evidence that the Huntington rates are compensatory. Moreover, not only does the evidence show, but the court judicially knows, that there is a grreat loss of electricity in transporting it over Avire that distance. It 'is well settled that there must be a reasonable return, and to allow this return there must be a reasonable rate. 43 Sup. Ct. Rep. 544; 212 H. S. 19 ; 230 U. S. 352; 246 H. S. 178; 258 H. S. 165; Id. 388.
    3. The rate fixed by the city ordinance is confiscatory and void. It deprives appellant of its property without due process of law, contrary to § 1 of the 14th Amendment to the Constitution, U. S.; 255 U. S. §39 and cases cited; 43 Sup. Ct. Rep. 544; 134 U. S. 418; Í69 IT. S. 466: 212 H. S. 19; 184 Fed. 765; 230 U. S. and cases cited; 212 U. S. 1; 196 Fed. 800; 197 Fed. 954; 161 Fed. 925.

      Evms $ Evans, for appellee.
    1. The court was authorized by the statute to hear evidence and determine what rates would afford the appellant valid and reasonable compensation for the services performed, and to enter the order and judgment that was rendered. Act 124, Acts 1921, § 19; 150 Ark. 586; Id. 260 ; 152 Ark. 276; 152 Ark. 83.

      2. The city council had authority to fix the rates. Act 124, Acts 1921, § 17; 152 Ark. 286.
    3. Section 24 of act 124, Acts 1921, in so far as it provides that, on appeal to the Supreme Court, any finding of fact by the circuit court shall not be binding on the Supreme Court, but the latter court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable, is clearly an attempted invasion of the court’s constitutional prerogative, and is invalid. Art. 4, Const. Ark.; 24 Ark. 91; 5 Ark. 710; 6 Ark. 71; 14 Ark. 568; 49 Ark. 160; 11 Ark. 598; 13 Ark. 384; 14 Ark. 678; 44 Ark. 273; 16 Ark. 384; 188 S. W. (Ark.) 564. In any -event the finding of the trial court is not against the preponderance of the evidence.
    4. The appellant did not allege facts sufficient to entitle it to an appeal to the circuit court, and it therefore had no jurisdiction of the cause. Act 124, Acts 1921, §§ 17, 19 and 23; 152 Ark. 276.
   Humphreys, J.

This is an appeal by the public utility from a judgment of the circuit court of Logan County, Southern District, which, in effect, abrogated the rates under which said public utility was distributing electrical energy in the city of Booneville. The utility had surrendered its franchise under act 571 of the General Assembly of 1919, and prior to July-18, 1921, was operating under an indeterminate permit issued by the Corporation Commission, and had in force a schedule of rates which had been approved by the Commission pursuant to the authority vested in it by said act. On the 18th day of July, 1922, the council of the city of Booneville passed an ordinance reducing the rates, pursuant to the provisions of § 17, act 124, of the General Assembly of 1921. The later act abolished the Corporation Commission and, by § 17 thereof, authorized the municipalities to “fix, promulgate, modify, amend, adjust, readjust or otherwise make and determine fair and reasonable rates to be charged by all public utilities in furnishing utility service within such municipalities.” Within the time and in the manner provided by the act appellant prosecuted an appeal from the rates fixed by the city council to the circuit court. In petition for appeal appellant conformed its prayer for relief to the statute, asking that the court, in reviewing the action of the council, hear evidence and determine what rates would afford the appellant valid and reasonable compensation for the services rendered, and to enter an order setting out such rates, and to certify same to the council, with directions to fix rates in keeping therewith.

The cause was submitted to the circuit court, without the intervention of a jury, upon the pleadings and testimony, which resulted in a judgment setting aside the rates established by the city council as being confiscatory, and finding fifteen cents per kilowatt hour a fair and just maximum rate for domestic power, and six cents per kilowatt hour a fair and just rate for commercial power. The rates fixed were graded downward to a minimum according to the amount-of power used by the customer. No complaint is made that the grading was out of proportion to the maximum rate, so it is unnecessary to set out the graduated rates.

In accordance with the provisions of the statute, the case is pending before us for trial de novo upon the law and testimony as brought into the record of the trial below.

Appellant’s first contention for a reversal of the judgment is that the circuit court was without power to fix a rate other than the rate fixed by the ordinance. In other words, the contention of appellant is that the court exhausted its judicial power in setting aside the ordinance rate, and that it exercised legislative power authorized by the statute but inhibited by the Constitution in attempting to fix and certify a new rate. The validity of the statute in this respect is assailed as being unconstitutional. We cannot agree with learned counsel in this contention. The statute authorizes a judicial review of the rates fixed by the agency of the Legislature, and, if it had not, it would be void for that reason. A judicial review necessarily involves a correction of the erroneous judgment, else complete justice would not be accomplished. The ascertainment of a confiscatory rate, from a practical standpoint, involves the ascertainment of a fair and just rate. In order to confidently assert a rate is confiscatory, one should know what a fair and just return on the present market value of the property would be. The same method must be adopted to ascertain whether the rate is confiscatory or fair and reasonable, and when one is ascertained the other is implied, therefore a declaration of the conclusion reached is the result of the judicial review, and not the ascertainment of the rate growing out of the exercise of a legislative function. This exact point was decided adversely to appellant’s contention in the case of Van Buren Water Co. v. Van Buren, 152 Ark. 83. In deciding the question the court used the following language: “The fact that the new rates were unreasonable did not justify the court’s order in compelling the company to restore the old rates, which were confiscatory. It was within the power and duty of the circuit court to fix such a rate, according to the testimony in the record, as was reasonable, and which would afford a just return upon the investment.” The fixing and certification of the new rate to the council was not an attempt to exercise legislative authority.

Appellant’s next and last contention for a reversal of the judgment is that, under the law and the evidence, the rates fixed and certified to the council by the court are confiscatory and void.

The rule of law governing is that the rate must be fixed which will give the public utility a fair and just return upon the market value of its property as of the time the inquiry is made regarding the rates.

After a careful analysis of the testimony we have concluded that the evidence introduced by appellant fails to properly reach the issue. The method adopted by appellant’s witnesses to ascertain the present value of property was to estimate the reproduction value of the plant, based upon the cost of labor and material covering the period from 1917 to 1922, and deducting therefrom depreciation of the property occasioned by the use thereof. Treating the reproduction cost as a proper element in arriving at the present market value of the property, it would not be proper to average the cost of labor and material entering into the reproduction of the plant during any given period. In the instant case the period selected embraced the high peak prices of the war. The prices for labor and material prevailing as of the time the inquiry was made regarding the rates would necessarily control. The present market value of the property having been ascertained by appellant’s witnesses upon an incorrect assumption, this renders their conclusion unreliable. When their testimony is eliminated the only testimony of consequence remaining is that introduced by appellee, tending to support the finding of the court. The record reflects that the original cost of the property was about $25,000, and that the certified value thereof by the officers for taxation purposes was about $70,000. The evidence was conflicting as to the value of the real estate, ranging from a few hundred dollars to $5,000. The exhibits covering the utility income and expenses show that for the yeaT ending February 28, 1922, the net income from the Booneville division was $8,815.08, and for the year ending July 31, 1923, was $5,787.70. The exhibits also reflect disproportionate increases of 'expenses compared with the income for operation in the years 1922 and 1923. The plant was an old one, having been in operation for a number of years. We are of opinion that the rate fixed and certified by the court is supported by the weight of the evidence. .

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Thomas v. State.
    Opinion delivered January 14, 1924.
    ■ 1. Homicide — dying declaration.- — -A dying declaration by the deceased to the effect that the shooting by defendant was not accidental, though a matter of opinion merely, was admissible where it was made in defendant’s presence, and defendant made no response thereto.
    2. Indictment and information — indorsement of 'witnesses.— Crawford & Moses’ Dig., § 3010, requiring the names of witnesses examined by the grand jury to be indorsed on indictments, does not contemplate that the names of State’s witnesses who did not appear before the grand jury should be indorsed on the indictment.
    3. Criminal law — indorsement of witnesses on indictment.— Crawford & Moses’ Dig., § 3010, requiring the names of witnesses examined by the grand jury to be indorsed on indictments is directory merely, and the failure to indorse them was not reversible error, in the absence of a showing -of prejudice.
    4. Criminal law — -evidence.—Testimony in a murder case tending to prove illicit relations between defendant and deceased’s wife held competent where the defense was that the killing was accidental.
    Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    affirmed.

      E.■ AT. Edwards and Abe Collins, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Assistant, -for appellee.
   McCulloch, C. J.

Appellant, Alton Thomas, was convicted of murder in the first degree and sentenced to life imprisonment under an indictment charging him with the crime of killing his brother, Hall Thomas. The killing occurred at the home of the deceased. The evidence shows that appellant was staying there at the time with deceased and the latter’s wife. The wife of deceased was the principal witness in the case. It was' shown by her testimony that the relations between her and her husband had been unpleasant for several years on account -of gossip in the neighborhood as to improper relations between her and appellant. She testified that her husband, on account of the rumor or gossip in the. neighborhood, was constantly in a jealous state of mind, and that she and her husband frequently had quarrels. They quarreled on the day of the shooting, and she decided to leave and go over to her sister’s home, a mile or two distant. Appellant’s car was in the garage back of the dwelling house, and she obtained the car key from appellant and went into the garage for the purpose of securing the .car to drive over to her fsister’s. The deceased came into the garage, and they (witness and her husband, the deceased), began quarreling, and actually commenced fighting each other; that is to say, they were tussling, as the witness expressed it, and fell down on the floor. Appellant was sitting or standing out in front of the garage, leaning against a tree, and the pistol shot was fired at this time, which struck deceased and inflicted a mortal wound, from which he died in two or three days.

It appears from the testimony that, just before the killing occurred, both appellant and deceased and the latter’s wife and her mother were out in the yard in front of the garage, when deceased was called into the house for some purpose, and it was at this time that deceased’s wife asked appellant for the car key so that she could use the car and drive over to her sister’s place, and, as before stated, while the wife was in the garage, deceased returned from the house and the fight occurred between them, and the shooting resulted.

Appellant admitted that he had the pistol in his hand at the time the shot was fired, but claims that he did not intend to fire the pistol, and that the shot was purely accidental.

The deceased was carried to the town of Horatio immediately after the shooting, and surgical treatment was administered there, and he was then taken -to a hospital in DeQueen for surgical treatment, and died in the hospital there. Appellant accompanied his brother, the deceased, to Horatio and thence to DeQueen, and remained there until the death of his brother.

The appellant stated, when asked, that the shooting occurred while he had the pistol in his hand, but stated that it was accidental.

Witnesses testified that, while deceased was in the hospital, he made a statement, in the nature of a dying declaration, ,and the testimony is sufficient to show that the statement was made in contemplation of immediate death. He stated that he was shot by his brother, Alton, and, when asked whether it was intentionally or accidentally done, he stated that it was not accidentally done, but was purposely done. Counsel for appellant objected to this statement on the ground that it was the statement merely of a conclusion, and was not competent. The prosecuting attorney asked that the statement be considered as tending to show an admission on the part of appellant that the shooting was not accidental, by reason of the fact that the statement was made in his presence, and that he made no denial. The court admitted the testimony, but instructed1 the jury that they should only consider the statement as an admission by silence, and that it could not be considered for that purpose unless the jury found that appellant was present and heard the statement of deceased. The ruling of the court in admitting this testimony has been assigned as error. We are of the opinion that the ruling of the court was correct. Of course, it must be conceded that the statement of the deceased as to the shooting being’ intentional, and not accidental, was a mere conclusion, and was not admissible as substantive proof of the nature of the act, but the testimony shows that this statement was made in the immediate presence of appellant himself. and that the latter made no response. Appellant testified that he was partly deaf, and did not hear the statement of his brother, but the testimonv was sufficient to warrant the jury in findinp* that he did hear the statement and failed to deny it. This rendered the testimony competent, and left it to the jury to determine its probative force, after finding that the deceased made the statement and that appellant made no response to it. Sheptine v. State, 133 Ark. 239; Davis v. State, 141 Ark. 170.

Another witness introduced by the State, Dr. Hopkins, who was one of the surgeons called on to attend the deceased, testified that, on the occasion when the deceased was brought to the hospital and was accompanied by appellant, he (witness) asked appellant who did the shooting, and that appellant replied that he did the shooting, and upon asking him further whether or not it was accidental, appellant replied in the negative. Counsel for appellant objected to the introduction of this witness for the reason that his name was not indorsed on the indictment. The statute (Crawford & Moses’ Digest, §3010) provides that the names of all witnesses who were examined by the grand jury must be written on the indictment, and it is insisted here that the court violated that statute in permitting the testimony of this witness to be introduced without his name appearing on the indictment. It is sufficient answer to this to say that it does not appear from the record that Dr. Hopkins was a witness before the grand jury, and for this reason the incident does not fall within the directions of the statute. In addition to that, we have held-that the statute is only directory (Cole v. State, 156 Ark. 9), and that a failure to comply with the statute does not constitute error which affects the validity of the trial, unless it is shown that prejudice resulted. In other words, the statute being only directory, it does not affect the validity of the trial unless the accused can show that he has been in some way misled to his prejudice and had no 'Opportunity to meet the testimony given by the witness. There is no prejudice shown in the present case. Ón the contrary, the witnesses who were present at the hospital at the time of the alleged conversation between appellant and Dr. Hopkins were present at the trial and testified, so there was no opportunity lost to obtain testimony to contradict that of this witness. In making the objection, counsel for appellant merely stated that they were surprised by the testimony, but did not ask for an opportunity to obtain further testimony on that account. We think there was no prejudicial error calling for a reversal of the judgment.

The next assignment relates to the ruling of the court in permitting witness Knox to testify that, about two years before the killing, he was constable, and served a notice on appellant and the wife of the deceased, who were living on a fruit farm which they had1 rented from a man named Patterson, to remove from the place. The court admitted this testimony, along with other testimony on the same subject, to show the relations between the parties, which continued from that time up to the time of the killing. It appears that there had been constant trouble between deceased and his wife about the relations between her and appellant, dating back more than two years before the killing occurred1, when appellant came to Arkansas from Missouri and took up his residence at the house of his brother. It appears from the testimony that at one time the deceased left home, and that appellant and the wife of the deceased remained on the place together, and at one time occupied the same room, but they both stated that there were no improper relations between them, and that appellant stayed in the room with his brother’s wife because she was sick and the children were sick. At any rate, the proof shows that there were rumors and gossip about the relations between appellant and his brother’s wife, and that there was frequent trouble between deceased and his 'wife on account of this gossip, which kept deceased in a jealous state of mind; that deceased and his wife had frequent quarrels, and were engaged in such a quarrel at the time the shooting occurred.

It was, as before stated, undisputed that deceased fired the shot, and the only issue was whether it was intentional or accidental. Any testimony which tended to show the relations between appellant and deceased, or appellant and the wife of deceased, was competent for the purpose of throwing light on the issue as to whether the shooting was accidental or intentional. The testimony shows that, at the time the witness Knox served the notice, appellant and Mrs. Thomas were living on the frnit farm together, and the proof about the •witness serving the notice on them was merely for the purpose of showing the relationship between them at' that time, which appears, from other testimony in the case, to have continued down to the time of the shooting. The mere serving of the notice itself had no bearing upon the controversy, but the point in the testimony of the witness in regard to the service of the notice was that his testimony tended to show the relationship which existed between the parties at that time. We think there was no prejudice in allowing the witness to state the fact that he served the notice for them to leave the place.

There were objections made to certain instructions on the' ground that they permitted the jury to find the accused guilty of murder in the first degree without finding that there was a specific intent to kill, but we do not think that the instructions are open to that objection.

The evidence is sufficient to sustain the conviction of murder in the first degree, and we find no prejudicial error in the record. The judgment is therefore affirmed.


text:
    Hart v. State.
    Opinion delivered January 14, 1924.
    1. Homicide — self-defense—instruction.—Where, in a murder case, defendant testified that, on the night of the hilling, after deceased had abused and threatened to kill him, he left his home with his wife and baby, and afterwards came hack, when the killing took place, instructions that, if defendant “went back home for the purpose of having trouble or provoking the difficulty which brought on the trouble that resulted in the killing, then he cannot claim self-defense,” held inherently erroneous and open to a general objection, as he had a right to return to his home, regardless of his motives, unless he did some act which provoked the difficulty.

      2. Homicide — self-defense.—If defendant, by act or conduct, 'brought on the difficulty at the house which he and deceased rightfully occupied, he could not claim self-defense unless he endeavored in good faith to retire from the difficulty.
    3. Homicide — self-defense—instruction.—In a murder case' defendant testified that there had been an altercation between deceased and himself, in which deceased, while intoxicated, made threats of killing him; that, after carrying his wife and baby to a neighbor’s house, a half mile distant, he returned, whereupon deceased renewed the controversy, resulting in his killing deceased. Defendant requested an instruction that, if deceased, “after the return of defendant, attempted in a violent and turbulent manner to enter the room of defendant, the defendant had a right to withdraw therefrom, the better to protect himself from the attempted or apparent assault of deceased, and if, in doing so, defendant honestly believed that it was necessary to shoot deceased to prevent being killed or seriously injured in body, you will acquit defendant.” The court modified the instruction by adding: “if he reached such conclusion based upon the actions, demonstrations or conduct of deceased at the time or just prior to the shooting.” Held that the modification' erred in excluding from consideration the previous conduct of the deceased.
    Appeal from. Prairie Circuit Court, Northern District; George W. Clark, Judge;
    reversed.

      F. E. Brown and Cooper Thweatt, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted for murder in the first degree by shooting and killing J. H. Tallent, in Prairie County, Arkansas. On the trial of the case appellant admitted the killing of Tallent, as charged, but claimed that he acted in necessary self-defense. The trial jury returned a verdict finding appellant guilty of manslaughter, and he was sentenced to the penitentiary for a term of three years.

The killing occurred .about midnight, or a little later, on March 24, 1922, at a house occupied by appellant on a farm owned by Tallent, in Prairie County. Tallent rented the farm to appellant, but reserved two rooms in the dwelling-house for his own use. Appellant had been living on the place about two months at the time of the killing, and Tallent had' occupied his room in the house only on two or three occasions, but he visited the farm two or three times a week. Tallent lived with his family on another farm about six miles distant from the place where the killing occurred.

There were no eye-witnesses to the killing, and no persons were at that house at the time the killing occurred save Tallent and appellant himself. Immediately after the shooting, appellant went over to the home of his father and mother, about a mile distant, and sent his brother and another person back to the house, and those persons found the dead body of Tallent lying on the floor. They went over, a few miles distant, and notified a justice of the peace, who came to the house and found the dead body of Tallent lying on the floor.

The house faced north, and there was a hallway running through the center, and a narrow porch in front, extending about the width of the hall. Appellant, with his wife and baby, lived on the east side of the house, and Tallent’s rooms were on the west side of the house. The doors to the rooms opened into the hall. Tallent’s body, when found, was lying in his own room, almost •face downward, with his head extending under the edge of the bed and his feet back towards the door. Some of the witnesses say his feet extended back to the doorway so that the door could not be closed. A lamp was burning in the room, and there was also a lamp burning in appellant’s room across the hall.

There was only one wound in the body, and that was a pistol-shot wound entering just below the cheek bone and ranging downward along the jaw and neck into the heart. There were four other shots fired, which took effect in the walls, and the witnesses testified concerning the location of the marks on the walls and doors. Appellant admitted that he emptied his pistol, and he testified that he was standing on the ground in front of the porch when he fired the shots, and that Tallent was standing in the hall, having just come out of the door of the room occupied by appellant.

The State’s theory in the trial of the case was that Tallent was «hot while he was lying down, or at least that appellant was standing above Tallent when he fired the shots, and the evidence adduced by the State as to the location and range of the bullet which entered Tallent’s face, as well as the location of the bullets which struck the walls of the hall, tended to show that the State’s theory was correct, and that appellant was not standing on the ground, as he claimed, when he fired the shots.

Tallent’s body, when found, was fully dressed, with his' coat unbuttoned, vest partially unbuttoned, top shirt buttoned up to the neck, and with a pistol in a holster under his left arm, between his top shirt and undershirt.

Appellant took the witness stand on his own behalf, and gave his account of the circumstances attending the shooting. His narrative of the events is about as follows : On the night of the killing, Tallent rode up to the house, about eight o’clock or eight-thirty, and went into his room, and a few moments later called to appellant to bring him a lamp, which appellant did, carrying the lamp from his own room over to Tallent’s room. Tallent was obviously intoxicated, and had whiskey with him. He had a half-gallon fruit jar with a small amount' of whiskey in that, and also a half-gallon of whiskey in a fruit jar in his saddlebags. When appellant went into the room with the lamp, Tallent was sitting in a chair, and 'offered appellant a drink, which was refused, .and Tallent then took a drink himself. Appellant returned to his room, and in a. few minutes Tallent called for water, and appellant went back into the room, carrying a bucket of water and a dipper. Appellant sat down on the side of Tallent’s bed and they engaged in a conversation, which was started by Tallent demanding that appellant procure wire and posts for the purpose of rebuilding a fence on the place to keep out stock. Appellant declined to do this, claiming that it was not a part of his contract, whereupon Tallent became angry and abusive, and threatened to kill appellant and have intercourse with appellant’s wife, who was then in a room across the hall. Tallent made no effort to carry out his threat at that time, and appellant did not in any way resent-the epithets and insults offered by Tallent. After further conversation, appellant got up and started, with the water bucket in his hand, to his own room, when Tallent again stated that he would kill appellant and have intercourse with his wife, using a vulgar term in describing the act of sexual intercourse. Appellant returned to his room, and he and his wife went to bed. In a little while, according to the narrative, Tallent came across the hall to the door, which was fastened by a thumb-bolt, and began knocking on the door and calling out that he was going to kill appellant and have intercourse with his wife. Appellant and his wife then got up and dressed and took the baby and went quietly out of the back door and out through the back part of the premises to the home of appellant’s cousin, about half a mile distant. After staying there a few minutes, appellant went back to his home and reentered the house in the manner in which he had left it. He testified that the reason he went back to the house was that the fire-place and hearth were defective and out of repair, that he had left a. fire burning there, and was afraid that the fire would roll down and burn the house, and that he went back for the purpose of smothering out the fire. After fixing the fire so that it would not roll down, he went to bed again and dozed off, as he said, and he was awakened by Tallent knocking on his door, and again repeating the threats which he had formerly made that night with respect to killing him and having intercourse with his wife. When appellant laid down on the bed he blew out the light, but he said that when he got up again he lighted the lamp, and immediately went out the back door while Tallent was still knocking on the door which opened out into the hall. After going out of the house he walked around the house to the front, and. while standing on the ground in front of the porch, Tallent came out of appellant’s room, and, looking out from the hall door, saw appellant, and again repeated his threat to hill appellant, and made a demonstration as if to draw his pistol from his bosom. Thereupon appellant began firing, and' emptied his pistol. Appellant testified that, after emptying his pistol, he turned .and ran around the house again, without knowing whether any of his shots had taken effect or not, and that he hurried on over to the house of his parents to get some one to go back over there and see whether he had killed or wounded Tallent. Appellant testified that his pistol was lying on the top of the dresser in his room, and that he never took it into his hand until .lie left the house the last time. He stated that he left the pistol lying on the dresser when he accompanied his wife to the home of his kinsman.

Appellant also introduced a witness who testified that he lived about a mile from the place where the killing occurred; that, about sundown on the evening before the killing, Tallent passed his home, riding a horse, and was intoxicated,, and, after offering the witness a drink of whiskey, asked the witness if he knew what sort of a woman appellant’s wife was, and stated that he was going over there to the house, and intended to kill appellant and have intercourse with Ms wife.

It is not contended that the evidence is insufficient to sustain the verdict finding appellant guilty of manslaughter. The evidence was, we think, sufficient to sustain the verdict, and all of the assignments of error argued here relate to the court’s charge to the jury.

The first ground urged for reversal of the judgment is that the court erred' in giving each of the two instructions, which were separate, unnumbered paragraphs of instruction No. 2, and which were separately objected to by aupellant. The two paragraphs read as follows:

“You are instructed that it was the duty of the defendant to do all within his power, consistent with his safety, to avoid the difficulty with the deceased, and, if ■you believe from the evidence in this case that the defendant went back to his home for the purpose, of having trouble or provoking the difficulty which brought on the trouble that resulted in the killing, then he cannot claim, self-defense, and that plea would be of no avail. There are two contentions with reference to that. The defendant says that he went back there for the purpose of ascertaining the condition of the fire and to protect his property against fire, that was on account of the condition of the fire-place. If that is true, he would have had a lawful right to have gone back there for that purpose, or for any other purpose, or in the absence of any purpose. It being his home, he had a right to return if, on returning, he went there upon lawful mission and means. If he went there for an unlawful purpose, then, before he can plead the law of self-defense, he must have, in good faith, endeavored to withdraw from the difficulty, if one arose, before firing the shot that took the life of his fellow-man. That is true because the law provides that the party killing must have exercised and used all means within his power, consistent with his safety, to avoid the danger and avert the necessity of taking human life.
“You are instructed that, while it is true that the home of the defendant was his castle, and he had a right to protect it, but if you believe he left there voluntarily and then returned, then he could not plead the law of self-defense till he had endeavored honestly and in good faith to withdraw from that difficulty; but you are not to understand, gentlemen of the jury, that the mere fact that the defendant returned to his home imputes to him any negligence or carelessness or unlawful act upon his part. As stated to you, he had an absolute right to return to his home, notwithstanding he had taken his wife away from it, at any time he saw fit, but he wouldn’t have a right to return there for an unlawful purpose, but it must be for a lawful purpose. It would be for a lawful purpose if he went there to protect his home against any injuries, either from the deceased in this case or any other cause.”

Bach of these instructions was, we think, erroneous in declaring the law to be that merely because appellant “went back to Ms home for the purpose of having trouble or provoking the difficulty which brought on the trouble that resulted in the killing, then he cannot claim self-defense, and that plea would be of no avail.” It is true that the court coupled this declaration with the further statement that appellant had the right to go back to his home, but this did not lessen the harmful effect of telling the jury that, merely because he went back for the purpose of provoking the difficulty, he could not claim self-defense. Appellant did not, under his contract, have exclusive occupancy of the house, but it was his home, and he had the legal right to return to it, regardless of his motives, unless he did some act which provoked the difficulty. Even though it was his home, Tallent also had reserved the right to occupy a part of the premises, and if appellant, by act or conduct, brought on the difficulty at the house which they both rightfully occupied, he could not claim self-defense unless he endeavored in good faith to retire from the difficulty. Strong v. State, 85 Ark. 536. But these instructions now under consideration in effect declared the law to be that, if appellant went back to the house for the purpose of bringing on a difficulty, whether he did anything or not to bring about the difficulty, he forfeited his right of self-defense, unless he endeavored to retire from the difficulty. This was clearly erroneous, and may have been prejudicial, because the jury might have found that appellant went back to the place expecting to bring on a difficulty with Tallent and kill him on account of the insults offered,' but that he did nothing to bring on the difficulty, and merely resisted the threatened assault of Tallent. This part of the instruction, notwithstanding the court’s additional statement that appellant had the right to go back, to his home, ignored the principle that the house in question was appellant’s home, and that he had a right to return to it, regardless of his motives, unless he did some act to bring on a difficulty. The Attorney General contends that the error in these instructions does not call for a reversal, for the reason that there was no specific objection made. There was, as before stated, a separate objection made to each of these paragraphs, but further than that there was no specific objection made. We think that each of these paragraphs was inherently erroneous, and that a specific objection was not necessary in order to call the court’s attention to the error. The paragraphs were, in effect, separate instructions, and of course it was necessary to make a separate objection to each, which was done, for an objection in gross to instructions is not sufficient to call for a review.

Another of appellant’s assignments of error relates to the modification by the court of instruction No. 6, which reads as follows:

“You are instructed that defendant had a right to return to his home after having once left it, and, after his return, had a right to prevent a forcible entry thereto by deceased, and if you believe from the evidence that deceased, after the return of defendant, attempted in a violent or turbulent manner to enter the room of defendant, the defendant had a right to withdraw therefrom, the better to protect himself from the attempted or apparent assault of deceased, and if, in so doing, defendant honestly believed that it was necessary to shoot deceased to prevent being killed,, or seriously injured in body, you will acquit defendant.”

The court.modified the instruction, over appellant’s objection, by adding the following:

. “If he reached such conclusion based upon the actions, demonstration and conduct of the deceased at the time or just prior to the shooting.”

The modification was erroneous in narrowing the consideration of Tallent’s acts and conduct to the time of the killing in determining whether or not appellant honestly believed that it was necessary to shoot in his own defense. The learned judge doubtless had in mind the principle that the necessity for .self-defense must exist at the time of the killing in order to afford an excuse for the killing, but this is not the effect- of the language used, for it told the jury, not that the necessity itself must exist at the time, but that appellant's belief as to the necessity must be based upon “the actions, demonstrations and conduct of the deceased at the time, or just prior to, the shooting.” This modification cut off all consideration of the previous conduct of deceased, and this was very material matter for the .consideration of the jury, as it showed the persistence of the deceased in continuing his threats on the life of appellant and the chastity of his wife. Appellant was entitled to have the jury consider all of the conduct of deceased, from the time he began his threats against appellant down to the moment of the shooting, in order to determine whether there was a real necessity for self-defense, or whether the appellant honestly believed that such a necessity existed.

There are other assignments, but those discussed are sufficient to call for a reversal of the cause, and we deem it unnecessary to discuss the others.

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


author: Wood, J.

text:
    McCoy v. State.
    Opinion delivered January 14, 1924.
    1. Forgery — variance.—An indorsement on a check is no part of the cheek itself, and need not he set up in an indictment alleging forgery of the check.
    2. Criminal law — opinion op expert. — A handwriting expert in a forgery case may testify that he has compared the check alleged to have been forged with defendant’s signature, and that, in his opinion, such check and another check were forged by defendant.
    3. Criminal law — proof op another crime. — Evidence in a forgery case tending to prove that, about a month after defendant cashed the check in controversy, he attempted to cash a second forged check, was competent as bearing on the question of intent.
    4. Criminal law — proof op venue. — Proof of venue in a forgery case is sufficiently established to entitle the State to go to the jury if nothing further appears than that the person charged with the offense is shown to have uttered the forged instrument in the county where the indictment is found.

      Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Joe Joiner, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   Wood, J.

The appellant was convicted on an indictment which charged him, in the first count, with the crime of forging ‘ ‘ a certain writing on a paper purporting to be a check drawn on the People’s Bank of Magnolia, a corporation, which said writing on paper is in words and figures as follows, to-wits ‘Magnolia, Arkansas, 11/22/1922. No.............. The People’s Bank of Mag- . nolia: Pay to Tom Williams or bearer $42.75, fo(u)rtytwo 75/100 dollars. (Signed) Roy Nipper.’ ” It was charged that he forged Roy Nipper’s name with the felonious intent of defrauding him and depriving him of his property. In the second count he was charged with the crime of uttering such instrument. He was convicted on the first count, and acquitted on the second.

Nipper testified that he did business with the People’s Bank of Magnolia, and did not make the check for $42.75 in favor of Tom Williams, which was introduced in evidence. He examined the alleged forged check and read the same as follows:

“Magnolia, Arkansas, 11-22-1922. No................
“The People’s Bank oe Magnolia 81-162
“Pay to Tom Williams or bearer $42.75
Fourty-two 75/100 Dollars.
“Rov Nipper.”

Lyle testified that he was cashier of the People’s Bank of Magnolia; that the alleged forged check was cashed at that bank. He did not see Nipper sign> the check. The first check, or the Roy Nipper check, was presented in November, and the Saunders check was presented by McCoy in December. Witness saw the Saunders check presented, and saw that it was not his signature, and the negro, McCoy, said he was buying something for Mr. Saunders. Witness went back to see if Saunders had enough to pay the $85.75. The party presenting the check came hack to .where witness was, and witness told him that Saunders did not sign the check, and! the defendant, McCoy, said that he did. Witness refused to pay the check. McCoy said that he was going to the oil-mili and buy something, and that he was driving Saunders’ mules; that Mr. Saunders had sent him there. The negro went out, and, after examining the check very closely, witness concluded that the negro was not coming back, and witness went out to find him, but could not. Witness never saw McCoy again until after he was arrested, and witness then identified him. The negro that presented the Saunders check is the defendant, McCoy.

Miss Julia Stevens testified that she was bookkeeper at the People’s Bank, and her testimony substantially corroborated that of Lyle. She identified the defendant as being the negro who presented the Saunders check, which the bank refused to pay. She didn’t know anything about who presented the Nipper check.

Saunders testified that he didn’t sign the check to Williams or McCoy; that the check presented by McCoy, signed with his name, was a forgery. He never authorized any one to sign it.

John B. Lee testified substantially as follows: He was connected with the Farmers’ Bank & Trust Company, and had seen the defendant before. He identified a letter and contract, and testified that these documents were written by the defendant. Witness had been working in a bank since 1915, and had to examine signatures, and would have a better idea of signatures than the average man, but he had not become an expert. He had been working in the bank at Emerson as cashier. He examined • the alleged forged check and the Saunders check, and compared them with the documents which he testified were signed by McCoy, and stated that he considered that there was a similarity. The body of the checks was not written by the same party who signed the signatures. Witness was asked if he considered the signatures to the checks similar to McCoy’s handwriting and answered, over the objection of appellant, “Yes sir; it is identical.”

The defendant, McCoy, testified that he had nothing to do with forging the check signed by Roy Nipper, and did not present the check for payment. He did not forge the Saunders-check, nor present that for payment. His testimony and the testimony of witnesses in his behalf tended to show that, at the time the alleged forged check was cashed on the 22d of November, he was working on a house five, and a half miles from town. . McCoy testified that he had nothing whatever to do with either of the forged checks; had never forged a check in his life.

1. On this appeal appellant contends, first, that the court erred in permitting the State to introduce in evidence the alleged forged check, which was precisely the same as that described in the first count of the indictment, except that the check introduced contained the following notation: “Indorsement as follows: People’s Bank, Magnolia, Ark., Tom "Williams. ’ ’ The appellant contends that, inasmuch as these words are not contained in the copy of the check set forth in words and figures in the indictment, there was a fatal variance between the indictment and the proof. This was an indictment for forging a check. Our statute makes it a felony to forge any check or draft upon a bank, or any indorsement thereon. Section 2463, C. & M. Digest. But the indictment in this case was for forgery of the check. It is not a charge for forging an indorsement on the check. “An indorsement on a check is no cart of the check itself, and need not be set up in an indictment alleging forgery of the check.” U. S. v. Peacock, 1 Cranch 215; Commonwealth v. Ward, 2 Mass. 397; State v. Carrigan, 210 Mo. 351, 16 L. R. A. (N. S.), 561, 109 S. W. 553 and other cases cited in case-note to People v. Tilden, 31 L. R. A. (N. S.), 217, “Indorsements.” See also Beer v. State, 42 Tex. Crim. 505, 60 S. W. 962, 96 A. S. R. 810; State v. Tutt 2 Bailey Law (S C.), 44, 21 Am. Decisions, 508; 12 R. C. L. 158, § 21; Hess v. State, 5 Ohio 5, 22 Am. Decisions, 766. The cases of McDonnell v. State, 58 Ark. 242; Bennett v. State, 62 Ark. 516; Zachary v. State, 97 Ark. 176, are all oases where the crime charged was the forgery, or the forged alteration, of the instrument itself, and in those cases there was material variance between the instrument alleged to be forged and the instrument offered as proof of such forgery. Such is not the case here. The cheek alleged to be forged and the check adduced in evidence to sustain the charge were, in the body, precisely the same.

2. The appellant next contends that the court erred in permitting the witness, Lee, to testify that he had examined a letter and contract which bore the. genuine signature of the appellant, and also had examined the check purporting to have been signed by Roy Nipper, and also the check adduced in evidence, over the objection of appellant, purporting to have been signed by Saunders, and that, from such comparison, the check alleged to have, been forged in this case and signed by Nipper, as well as the check alleged to have been signed by Saunders, were, in the opinion of the witness, both forged by appellant. This testimony was competent as a circumstance to go to the jury to prove guilty intent on the part of the appellant. Lee stated facts which warranted the court in permitting his testimony to be considered by the jury as an expert. It was proved that the Saunders check was forged and that the appellant had such check in his possession, and attempted to utter the same, about a month after the Nipper check had been presented and cashed. It was proved that the Nipper check was .also forged, and the proof tended to show that it was written by the same man who wrote the Saunders check.

This testimony of Lee was not collateral, but was a circumstance to prove that the appellant was forging and attemnting to utter forged instruments. It is generally held that “proof of similar acts of forgery or of uttering is admissible as bearing on the question of the intent with which the forgery or uttering of forged paper for which the defendant has been informed against was forged or uttered. And the fact that the defendant was under indictment for the forgery of some of the instruments so admitted in evidence does not affect their admissibility in evidence. Such evidence is never admitted, however, as proof of the commission of the criminal act for which the defendant is on trial.” 12 E. C. L., p. 167, § 30. See cases. It is competent only when the alleged forged papers are shown to have been forged or uttered under similar circumstances as tending to show system and intent. Moreover, the court, in this particular case, allowed the testimony to be introduced only for the purpose of identification.

3. The appellant next contends that the State failed to prove venue. Proof of venue is sufficiently established to entitle the State to go to the jury if nothing further appears than that the person charged with the offense is shown to have uttered the forged instrument in the county where the indictment is found. 12 E. C. L. 153,§ 17.

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


text:
    Spore v. State.
    Opinion delivered January 14, 1924.
    1. Criminal law — judgment op justice — validity.—Where a judgment of conviction by a justice of the peace recited the essential jurisdictional facts and that defendant appeared and pleaded guilty to the charges, and there was nothing on the face of the record showing that items of cost assessed were illegal, the circuit court did not err in refusing to quash it on certiorari.
    2. Criminal law — necessity for motion for new trial. — In the absence of a motion for a new trial, the Supreme Court • cannot review issues of fact that were determined on the evidence in the trial court.
    3. Costs — remedy for illegal exactions. — Where illegal costs are charged, the proper remedy is to move to retax.
    Appeal from Crittenden Circuit Court; W. W. Bandy, Judge;
    affirmed.

      B. G. Broum, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   Wood, J.

The judgment of the circuit court, from Which this appeal comes, recites as follows: “This case came on to be heard on the 26th day of September, 1923, one of the days of the September term, upon the appeal prosecuted by the defendant from a'judgment rendered against him by H. A. McGee, a justice of the peace for Crittenden County, on the 2d day of August, 1923, imposing on the defendant in one judgment a fine of $25 and court costs for malicious mischief; $25 and court costs for running a car without lights; $100 and court costs for speeding; and $100 and court costs for assault; and also upon the certiorari proceeding filed in this court on September 24, 1923.

“And thereupon the district attorney moved in open court that the appeal be dismissed upon the ground that the defendant had pleaded guilty in the lower court, and could not thereafter prosecute an appeal, which motion was by the court granted, to which action of the court the defendant at the time excepted and asked that his exceptions be noted of record, which is done.
“And thereupon the matter came on to be heard upon the writ of certiorari granted this day to the defendant, upon his petition for same, the defendant being represented by his counsel, R. G. Brown, Esq., and the respondent, H. A. McGee, and tne State of Arkansas being represented by Hon. Cecil Shane, district attorney. The petitioner testified in his own behalf, and introduced1 in evidence the oral testimony of H. M. Burnett, Esq., and the affidavits of J. M. Glancy and J. Y. Britton. H. A. McGee, Esq., and Si Bond, Esq., testified as State’s witnesses, and the original information w.as introduced in evidence.
“From all of the evidence the court finds that there was no duress or deceit practiced upon the defendant at the hearing before the justice of the peace, and that the plea of guilty was made by him freely and voluntarily, after being advised by the assistant district attorney of the maximum fines which could be imposed under a plea of guilty. The court further finds that the court costs adjudged as in four cases and1 the allowance of $10 fee to the assistant district attorney on each case was legal.
“It is therefore adjudged that the petitioner in the certiorari proceeding is not entitled to any relief, and that the State of Arkansas have judgment for the costs of this court. To all of which the defendant excepts, and, his exceptions are ordered noted of record.
“And thereupon the defendant prays and is granted an appeal to the Supreme Court of Arkansas, and the issuance of execution upon the judgment is stayed upon defendant giving an appeal and supersedeas bond in the sum of $600, with security to be approved by the clerk.
“Fifty-five days are allowed the defendant to prepare and present to the conrt a hill of exceptions and perfect his -appeal. All of which is ordered, adjudged and decreed this 26th day of September, 1923.”

It appears from these recitals of the judgment that the trial court treated the cause as if the appellant had appealed from the judgment of conviction in the justice court, and sustained a motion of the prosecuting attorney to dismiss the appeal from the judgment of the justice court, on the ground that the appellant had pleaded guilty in the justice court and was thereby precluded from taking an appeal to the circuit court. The recitals of the judgment show that the court did not take this action until after hearing the testimony that was introduced in evidence, and after finding from the evidence that there was no duress or deceit practiced upon the defendant at the hearing before the justice of peace, and after finding that the plea of guilty was made by him freely and voluntarily. The court found that the allowance of $10 attorney’s fee adjudged in each of the four cases was legal, and that the petitioner, the appellant here, was not entitled to any relief in certiorari proceedings.'

The judgment of the justice court does not show on its face any lack of jurisdiction in that court to render judgment. It recites the essential facts, showing that that court had jurisdiction and that the defendant, appellant here, “appeared and pleaded guilty to the charges of malicious mischief, speeding on the highway, driving without lights, and assault.” There is nothing on the face of the record itself showing that the items of cost were illegal. Therefore, on the face of the judgment of the justice itself, it cannot be said that the court erred in refusing to quash it on certiorari.

The recitals of the judgment of the trial court show that the court also inquired into the facts, treating the cause as if it were on appeal de novo from the judgment of the justice court, and determined, after hearing this evidence on the State’s motion to dismiss, that the judgment of the justice was correct.' The record does not show, upon these findings of fact by the trial court, that the appellant moved for a new trial. There is no motion for a new trial in the record. In the absence of a motion for a new trial, this court cannot review issues of fact that were determined on the evidence in the court below. Kromer v. Central Coal & Coke Co., 129 Ark. 86; Smith v. Wallace-McKinney Coal Co., 140 Ark. 218; Free v. Adams, 148 Ark. 654, and other cases cited and collated in Cumulative Supp. to Crawford’s Digest, 1924, “Appeal & Error,” § 116.

The Attorney General has called our attention to the fact that the record contains no motion for a new trial, and, upon examination, we find that he is correct.

It is contended by counsel for appellant that illegal costs were adjudged. If so, the proper remedy is to move to retax.

No error is made to appear in the rulings of the trial court. The judgment is therefore affirmed.