text:
    Village Creek Drainage District of Lawrence County v. Ivie.
    Opinion delivered April 13, 1925.
    1. Mandamus — JURISDICTION.—Since, by the act creating two separate judicial districts in Lawrence County (Acts 1887, No. 85), the jurisdiction of the county court sitting at Powhata'-coextensive with the county, the superintending control of iRo circuit court by mandamus over the county court may bo p — r-eised by the circuit court sitting in either district, regardless of the place of residence of the county judge.

      2. Mandamus — matter op discretion. — Mandamus will not lie to control a matter which involves an exercise of discretion.
    3. Mandamus — granting continuance. — As the matter of granting, a continuance of a hearing of complaints as to the. assessment of benefits in a drainage district is within the discretion of the county court, it will not be controlled unless' there is an obvious abuse of such discretion; and no abuse is shown where such hearing was continu'd to a definite date, in order that a cause pending in the federal court involving certain assessments in the same district might be determined.
    Appeal from Lawrence Circuit Court, Eastern District; Dene S. Golemmi, Judge;
    'affirmed.

      W. P. Smith, 0. G. Blackford, W. M. Ponder, W. A. Jackson and G. M. Gibson, for appellant.

      W. E. Beloate, J-ohn S. Gibson, and E. PL. Tharp for appellee.
   McCulloch, C. J.

Village Creek Drainage District , of. Lawrence County was created by special statute, authorizing the construction of ditches to drain certain territory in Lawrence County, and the board of commissioners of the district instituted this action in the circuit court for the Eastern-District of-Lawrence County, to compel the county court to give a hearing upon the assessment of benefits and to reject or confirm the same- - in accordance with the statute, which provides that, after the assessment of benefits has been made by the commissioners and filed with the county clerk and notice thereof' given, “the county court shall consider the assessment of benefits and hear any complaints thereof, and enter its finding thereon, either confirming such assessment or increasing, or diminishing the same, so that the several assessments shall be equitable and just.”

It is alleged in the petition for mandamus that, prior to September 1, 1924, the board of commissioners of appellant district completed the assessment of benefits, and that notice was duly published of a hearing by the county court on that date; that, on the date mentioned, the county court convened at Powhatan, the county seat of Lawrence County, and then adjourned to the courthouse at Walnut Ridge, in the Eastern District of Law rence Comity, and tliat certain foreign corporations owning lands in the district appeared and, by proper petition and bond, removed the hearing as to their lands to the federal court, and that the comity court thereupon postponed the hearings on the assessment of benefits until December 15, 1924; that, on the last-mentioned date, the county court was opened at Powhatan, and was adjourned to the courthouse at Walnut Nidge, at which place the court made an order, over the protest of the commissioners, adjourning the hearings over to January 26, 1925.

It is further alleged in the complaint that, when the county court convened on January 26, 1925, for the purpose of hearing complaints on the assessment of benefits, the court, on motion of certain remonstrants against the assessment, and over the protest of the board of commissioners, postponed the hearing until May '25, 1925. It is also alleged that the reason given by the county court for this order of continuance was to await the action of the United States District Court at Jonesboro. The order of the county court continuing the hearing is exhibited with the complaint, and it recites that the remonstrants against the assessment asked for a continuance on the ground that certain foreign corporations had removed their causes to the federal court, and that the same were to be heard at the May term of the federal court at Jonesboro. The order of the county court granting the continuance does not extend the postponement until the causes in the federal court shall be disposed of, but merely continues the case until a day certain, namely, May 25, 1925.

Appellee, as county judge, appeared in the circuit court and demurred to the petition of appellants, and the court sustained the demurrer and dismissed the complaint, from which judgment of dismissal an appeal has been prosecuted.to this court.

Counsel for appellee contend, in support of the court’s ruling, that the circuit court for the Eastern District of Lawrence County had no jurisdiction to hear and determine a petition for a mandamus or other extraordinary writ to the county court which is held at Powhatan, the county seat of Lawrence County, which is located in the Western District.

Under act No. 85 of the General Assembly of the year 1887, Lawrence County was divided into two judicial districts, the Eastern and Western, and authority was granted for holding courts, except the county court, at Walnut Ridge, in the Eastern District, and at Powhatan, the county seat, in the Western District. No mention is made in that statute of dividing the county into districts as to the county court, but, on the contrary, § 17 of act No. 85, supra, provides that “as to all matters not within the provisions of this act, the county of Lawrence shall be one entire and undivided county.”

The circuit court derives its jurisdiction to hear and determine a petition for mandamus, or other extraordinary writ, to the county court, from § 14, art. 7, of the Constitution, which provides that circuit courts “shall exercise a superintending control and appellate jurisdiction over the county, probate, court of common pleas and corporation courts.” Now, as we have already seen, the act dividing Lawrence County into judicial districts for certain purposes does not limit the jurisdiction of the county court sitting at Powhatan, and, as the jurisdiction of the county court sitting there is coextensive with the county, the superintending control of the circuit court may be exercised by that court sitting- in either district. The petit-on for mandamus is not >a suit against a ministerial officer, which must be brought in the county or district where the officer resides, as was the case in Reed v. Wilson, 163 Ark. 520, relied on by counsel for appellants, but it is one where the superintending control of the circuit court over the county court is invoked, therefore the place of residence of the county judge does not fix the jurisdiction of the circuit court. Our conclusion therefore is that the circuit court for the Eastern District of Lawrence County had jurisdiction.

If the granting of a continuance was a matter of discretion, it must be conceded that the exercise of that discretion will' not be controlled by mandamus. Nixon v. Grace, 98 Ark. 505.

Our attention is called to the fact that the statute creating the drainage district provides that the county court shall consider the assessment of benefits and héar complaints ‘ ‘ on the day fixed for the said hearing. ’ ’ This feature of the statute must be construed to be directory, otherwise the court would have no power to enter an order either rejecting or confirming assessments on any other day. We do not think that the lawmakers intended to limit the exercise of the jurisdiction of the county court to the particular day covered by the notice, and we are of the opinion that the power of the court to continue the hearings from time -to time is not restricted. In other words, we think that the matter of postponing the hearings is one of discretion with the county court, and that this discretion is not controlled unless there is an obvious abuse of the power. We are further of the opinion that there is no abuse of discretion shown, for the court continued the hearing to a definite date.

Counsel rely on our decision in Road Improvement District v. Henderson, 155 Ark. 482, as sustaining their contention that the court had no power to continue for the purpose of awaiting the decision of the federal court. There is a material difference between the facts of this case and the one cited. In that case the chancery court had granted a temporary injunction and then continued the case indefinitely, leaving the injunction in force until there could be a hearing of a cause in the federal court involving the validity of the district. There was no continuance until a definite date, as in the present case, and we held that the effect of the order of continuance was a refusal to exercise the jurisdiction of the court, and a mandamus was granted to compel the chancery court to proceed with the hearing. In the present case the order of continuance made by the county court does not make the exercise of jurisdiction depend upon the action of the federal court, but merely continues the cause to a definite date, and the fact th^t the pendency of the hearing in the federal court influenced the decision in granting tne continuance does not necessarily constitute an abuse of the court’s discretion. There is just this distinction between an indefinite continuance to await the action of another court and a definite continuance to a fixed date.

The circuit court was therefore correct in refusing to grant the mandamus, and the judgment dismissing the petition of appellants is affirmed.


source: Caselaw Access Project

author: Wood J.

license: Public Domain

text:
    Lane v. State.
    Opinion delivered April 13, 1925.
    1. JuRY — “impartial jury.— T.o be “impartial',” within Const, art. 2, § 10, and Crawford & Moses’ Dig. § 3159, a jury in a criminal case must be composed of twelve men whose impressions on the merits of the cause are determined by the testimony adduced before them at the trial, and the integrity of the trial is destroyed if one juror enters the jury box entertaining and concealing actual bias against the accused.
    2. Jury — impartiality op jury — discretion op court. — The question of the impartiality of the jury, as guaranteed 'by the Const, art. 2, § 10, is a judicial question of fact within the sound discretion of the trial court.
    3. Criminal law — finding op court — conflicting evidence.— Where evidence as to the impartiality of a juror is conflicting, the finding of the trial court will not be disturbed.
    4. Jury — disqualification by bias. — Where a juror heard the testimony of the prosecuting witness at the examining trial and pronounced it the truth, but failed to disclose such fact on voir dire, he was disqualified as a juror, notwithstanding he testified that he entered the jury box without prejudice, nor does it matter in such case that the evidence establishes defendant’s guilt.
    Appeal from Greene Circuit Court, Second Division; W. W. Bandy, Judge;
    reversed.

      A. G. Little and Huddleston & Little, for appellant.
    The Comstitution provides for a trial ‘by .an impartial jury. As to what is meant by an “impartial jury,” see Gurry v. State, 5 Neb. 413; Randle v. State, 28 S. W. 954; Smith v. Eames, 36 Am. Dee. 515; Coughlin y. People, 19 L. R. A. 57; Stephens v. People, 38 Miela. 739; Jones v. State, 52 So- 791; Sasser y State, 59 S: E. 255; State y. Lathem, 50 So. 780; Turner v State, 111 Pac. 988; Robbins v. State, 155 S. W. 52; State y. Swafford, 153 Pao. 1056; Pitchford y. Com. 125 S. E. 707; Johnson y. State, 244 S. W. 518; Com. y. McCloshy, 117 Atl. 192; Adams v. State, 243 S. W. 474; Raher y. Com., 233 S. W. 1046.

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

At the December term, 1924, of the Greene Circuit Court, John Lane was indicted, tried and convicted of the crime of grand larceny, it being charged that he stole United States Government bonds, the property of James Alexander, of the value of $20,200. He appeals.

It was shown on a motion for rehearing that J. B. Kirchoff, one of the trial jurors, stated before the trial that he was present at the preliminary trial of John Lane for the same offense; that he heard the evidence adduced at that trial. He stated that he heard James Alexander, the prosecuting witness, testify, and he (Kirchoff) could tell from the testimony that Alexander was telling the truth; that anybody could tell from the way Alexander swore that he was telling the truth and they could not tangle him up.” Mr. Block stated, in the presence of Kirchoff, “Of course you cannot tangle a man up when he is telling the truth.” Kirchoff kept on discussing the case at some length after Block walked away, and stated that the bonds would have to be returned, even though Lane were acquitted, because gambling for property was not a legal transaction. Kirchoff further stated in the conversation that he had just come from the courthouse where he had attended the preliminary examination.

M. P. Huddleston, one of the attorneys for the appellant, testified that ho questioned Kirchoff on his voir dire as to whether or not he had formed or expressed any opinion as to the guilt or innocence of the appellant and whether or not he was familiar with the facts, or had heard the facts stated or related by any person. Kirchoff replied to these questions in the negative. Other .jurors had been asked the same questions on their voir dire, and, upon answering that they were present at the preliminary examination and heard the facts stated, they were excused by the trial court on account of express bias. Huddleston further testified that he had no information during the progress of the trial of the facts tending to show the disqualifications of the juror Kirchoff.

Kirchoff testified that he might have entered into the conversation to which -the witnesses had testified. He was pretty confident he did. He might have said the things the witnesses testified he did say. Kirchoff was asked the following questions:

“Q. Tell the court whether or not you ever said anything with regard to Lane keeping them (the bonds) if they were won in a crap game? A. I think if Lane won them in a crap game he ought to have the bonds. I have no feeling either way. Feel as good towards Lane as I do Alexander. Just a little bit more to Lane, if anything. * * * Q. On examination qualifying you as a juror, tell the court whether or not you were asked if you had been at the preliminary hearing? A. I don’t think so. Q. If you had been asked that what would you have said? A. Yes sir.”

Kirchoff was further asked whether he was asked, on his voir dire, whether he had formed any opinion as to the guilt or innocence of John Lane, and what his answer was, 'and he replied that his answer was ‘ ‘ No sir. ” He further stated that he didn’t have any opinion at that time; that he went in the jury-box capable of giving John Lane a fair trial and the benefit of the reasonable doubt; that his feeling toward John Lane at the time he went into the jury-box was very friendly; that lie would have given him a little the best of it; that is the way he felt about it. He didn’t recall at the time of ever expressing any opinion in the case — did not remember the other conversation. He went into the jury-box without any opinion one way or the other, and the fact that he had heard the testimony at the preliminary examination did not affect or bias him in rendering his verdict as to the guilt or innocence of John Lane. He was guided in his verdict by his own judgment and by the testimony heard at the trial. No outside influence one way or the Other entered into his verdict. He was not sure whether or not he was asked on his voir dire whether he could go into the jury-box and try the case according to the law and the evidence, notwithstanding what he had previously heard, but if he was asked that question, his answer would have been, “Yes.”

Kirchoff further testified that, when the jury were deliberating on their verdict, the appellant was found guity by unanimous vote. Nine of the jurors were in favor of fixing his puniskmient at four years’ imprisonment in the penitentiary, and witness and one juror were in favor of giving him only one year. The final sentence was for three years, which was brought about by the insistence of the witness and one other juror that the punishment be fixed at one year. If this witness and the other juror had not held out for the lighter sentence, the verdict could have been reached in five or ten minutes. As it was, the jurors delayed two hours before they returned a verdict fixing the punishment at imprisonment for three years.

The testimony of Alexander, the prosecuting witness, as taken at the examining trial, was, by stipulation, brought into this record, and, without setting out the same in detail, suffice it to say it shows that, if Alexander was telling the truth, Lane was guilty of the crime with which he was charged.

Our Constitution provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury.” Article II, § LO, Constitution. Our statute provides: “Actual bias is tbe existence of sucb a state of mind on tbe part of tbe juror • in regard to tbe case, or to either party, as satisfies tbe court, in tbe exercise of a sound discretion, that be cannot try tbe case impartially and without prejudice to the substantial rights of tbe party challenging.” Section 3159, Crawford & Moses’ Digest.

Thus both tbe Constitution and statute guarantee to every accused person tbe right to an impartial jury in the trial of tbe offense with which be is charged. A trial jury in felony cases must be composed of twelve men who are indifferent between tbe prisoner and tbe commonwealth. 16 R. C. L., p. 181, § 2. To be strictly impartial, a jury should be composed of twelve men, each and all of whose minds, when they enter tbe trial jury-box, should be like a blank sheet of white paper, so to speak, with no impressions written thereon as to the merits of the cause. A jury, to be impartial, must have the impressions of the merits of the cause written or stamped on their minds by hearing the testimony adduced before them at the trial, and after they enter the trial panel — not before. To be impartial, a jury must be composed of twelve impartial men. Even if one juror enters the jury-box entertaining an actual bias against the accused and conceals such bias on his voir dire, the integrity of the trial panel is destroyed. State v. Mott, 74 Pac. (Montana), 728; Woods v. State, 41 S. W. (Tenn.), 811. Whether this constitutional and statutory guaranty of impartiality on the part of the jury has been infringed in any case is necessarily a judicial question and one of fact to be determined, in the first instance, by the court before whom the trial is had; and, where tbe impartiality of the jury is challenged, the trial .judge is vested with a large measure of discretion in determining the issue. Where there is a conflict in the evidence as to whether a juror has entered the jury-box with a preconceived impression of the merits' of the case, such as to render him unfit to'try the case impartially between tbe prisoner and the commonwealth, the judgment of the trial court on that issue, in the exercise of its sound discretion, will not be disturbed by this court. Pendergrass v. State. 157 Ark. 364, and cases there cited; Curry v. State, 5 Neb. 412-13. But where, as in the present case, a juror in advance has heard the testimony of the prosecuting witness in the preliminary hearing and pronounced that testimony to be the truth, and where a juror does not deny such fact, but, on the contrary, confesses that he might have said it, then there is no alternative but to hold that such juror entered the jury-box with an express bias which, under the Constitution and statute above, would disqualify him as a juror in the cause. Where such is the fact, the integrity of the trial is destroyed, notwithstanding the juror, on the trial of the issue of his impartiality, may testify that he really entered the jury-box without any bias or prejudice that would affect the trial, and that he could, and did, try the case according to the law and the evidence. The fact remains that Kirchoff, under the uncontroverted proof, entered the jury box with an express bias in favor of the State against the appellant, which the uncontradicted proof shows was concealed on his voir dire. Whether this was intentional or unintentional on the part of the juror is wholly immaterial. Nor does it matter in such cases if the guilt of the accused be established beyond peradventure, for, however guilty one may be, he is nevertheless, under our Constitution and statute, entitled to a trial by a jury composed of jurors each and all of whom have not prejudged his guilt, or, what is the same thing, have not determined in advance that the testimony of a witness or witnesses for the State establishes the truth of the charge. See Coy v. State, 162 Ark. 178; Shribner v. State, 108 Pac. 422-426; Glover v. State, 57 S. E. 101-104, and other eases cited in appellant’s brief.

The uncontradicted testimony shows that the juror Earchoff entered the trial panel with an express bias against the appellant. He was therefore not an impar- . tial juror, and the trial court erred in holding to the contrary. Por this error the judgment is reversed, and vhe cause will be remanded for a new trial.


author: Wood, J.

text:
    Weldon v. State.
    Opinion delivered April 13, 1925.
    1. Homicide — jury questions. — Testimony held sufficient, in a prosecution ior murder, to justify submission of questions whether defendant killed deceased and whether such killing was murder in the first degree.
    2. Homicide — premeditation.—Premeditation and deliberation will not ibe presumed from the mere fact that the killing was done with a deadly weapon. ■ i
    3. Homicidei — sufficiency of evidence. — Evidence held sufficient to sustain finding that defendant killed deceased with deliberation and premeditation. '
    4. Homicide — motive—evidence.—In a prosecution for murder, evidence that deceased was a forest ranger whose duties required him to report liquor violations, and that defendant was violating such laws, was competent and relevant on the issue of a motive for the killing.
    5. Criminal law — instruction—weight 'of evidence. — Where there was evidence that deceased’s duty was to report liquor violations and that defendant was engaged in violating the liquor laws, an instruction that the jury might consider liquor violations if they find that defendant killed deceased, as tending to shed light, if it shed any, upon the motive of the killing, held not to be on the weight of the testimony nor to invade the jury’s province.
    Appeal from Yell Circuit Court, Danville District; J. T. Bulloch, Judge;
    affirmed.

      W. P. Strait and Wilson S Majors, for appellant.

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

The appellant was indicted in the Yell Circuit Court of the crime of murder in the first degree in the killing of one W. D. Jones. The jury returned a verdict finding him guilty of murder in the first degree and fixing his punishment at life imprisonment in the State Penitentiary. From the judgment rendered in accordance with the verdict, he prosecutes this appeal.

The testimony for the State is substantially as follows : W. D. Jones was a forest ranger. His duty was to patrol the United States Government Forest Reservation for the purpose of preventing fires, trespass, etc. The forest reservation service was under the control of the Department of Agriculture. The forest rangers were under instructions of the Department of Agriculture to report “to the federal and local prohibition officers the location of illicit local stills which are noticed in the performance of their duties as rangers.”

Boh Weldon lived in Yell County, Arkansas, on his homestead, at the foot of one of the mountains adjoining the reservation. On the night of the 28th of August, 1924, Jones was killed at the home of Weldon. The body was found at a woodpile where there were a few chips and a pine knot or two. It was ten or twelve steps from the body to the gate of the yard fence around. Jones’ house. The body was near a trail running a little north of east from Weldon’s to the Me Gough place. Jones’ head was near one of the washpots. His hat was near by, and also a carbide light. The body was lying on its right side, face on the ground, in the chips, ashes and dirt.. There was quite a lot of Mood, when the body was turned over, on the clothes, and the blood had spread something like two feet along the ground by the side of the body. This blood had apparently run from the body. There was so much blood it made a kind of mud on the ground, which came up over the soles of one’s shoes. There was blood on sticks of wood that lay away from the body a couple of feet. Some of the blood had fun under the wash-kettle. There were three bullet wounds in the body — two about four inches apart, and one almost in the center of the back, a little lower than the other two. There was very little difference between the holes in the 'back and in the front. It could not be ascertained whether the bullets entered from the back or front. Besides the bullet wounds, there were also knife wounds. Jones was cut from the backbone almost around to the front on the left side and one cut about two or three inches long on the right side. There was also a stab on one side, and one also under the shoulder-blade, and several other cuts on the body, bands and arms. On tbe body of Jones were a watch, a pocket-knife and a handkerchief. The knife was closed. There was no weapon of any kind around the body or on it. On an examination of the premises a rifle was found, and on the window-sill óf the east room of Weldon’s house there was a scabbard for a large pistol, but no pistol in it. Weldon had a large Luger pistol.

The government had planned the erection of an observation tower on wliat was called Powell’s Mountain, close to Weldon’s homestead, and Jones had been instructed, on the day preceding the night of the killing, to survey a route over which to move material for the tower to the top of the mountain. Jones was directed to look over the route by Weldon’s place first, as it was contemplated that they would probably have to go through Weldon’s pasture, as that would be a cheaper and better route than the other way. A man by the name of Yates lived about a quarter of a mile from Weldon’s. There was a road leading from his house to Weldon’s and beyond Weldon’s was a trail — kind of old road across Powell Mountain. Jones, Weldon and Yates' were at the home of Yates on Thursday morning, and, while there, Jones said something about looking out the best way to get to move the tower to Powell Mountain, and Weldon said he thought the government trail that turned off at Stokes’ would be the best route, and Jones replied that it didn’t make any difference, just so he didn’t have too many logs to cut out of the road, and stated that he would look out the way leading by Weldon’s and come back the other way. Jones and Weldon left Yates’ house about twelve o’clock, and that was the last time Yates saw Jones alive. About eight or nine o’clock Thursday night Yates heard hollering and shooting in the direction of Weldon’s. There were four or five shots. The hollering was like some one trying to holler and couldn’t. It was a weird kind of noise. Yates was sleeping’ on his front porch. The shooting and hollering was going on whqn he awoke. He heard the hollering and shooting, and started to Weldon’s house after he heard the second shot. Pie got about half-way there. The hollering had hushed, and Yates went to within eighty or one hundred yards of Weldon’s house. He heard a horse trot around out there, and started back home. When Yates got near Weldon’s house, he heard some one say something, but didn’t know who it was — sounded like Weldon. There was some shooting while witness was standing up there, and the horse trotted around, and two guns fired. These two shots seemed like they were on the far side of the house from where Yates was standing. Yates then returned home, and heard a gun fire about half-way between his house and Weldon’s. Not long, after, Weldon came to Yates’ house, and Yates asked him what all the shooting was about up there. Weldon replied, “Just shooting into the air.” He asked Yates to get up and go home with him, saying that he had had a little trouble up there, and Yates might help him. Weldon had a shotgun in his hand, and fired the same, demanding, with an oath, that Yates get up and go where the children could not hear him talk. Yates finally started up the road with Weldon, but told him that he could not go to his house, and asked Weldon what kind of trouble he had had up there, and Weldon replied, “I think there was two or three Ku Klux run in on me. They called me out to the gate, and some one struck me across the head. We had it around and around there, and I left my troubles laying in the chip-yard.” When Yates refused to proceed further with Weldon, Weldon said, “If I have got to stay by myself, I want to get off the road, ’ ’ and he did go off to the side of the road, twenty-five or thirty steps, and lay down and put his gun beside him. Next morning about sun-up Yates went to where he had left Weldon the night before, and found him there. Weldon asked Yates to go home with him. Weldon had blood on his arms and fingers and finger-nails and on his body — looked like right smart blood. Yates had noticed the blood the night before, and Weldon had said that night, “I can’t hardly stand to smell this damned blood.” Yates went with Weldon to Weldon’s honse. Weldon walked straight to Jones and pnlled his shirt bosom open, and then walked back between the gate and Yates, and said, “By G- — , I wish I knew some way to get out of this.” Yates said, “I could not tell you.” Weldon asked Yates what he was going to do, and Yates said he was going after somebody. Yates left Weldon standing there, and, when Yates got back with help, Weldon was gone, and the- body of Jones was still lying there.

It was shown that Weldon went to the home of Ed Odom, in Montgomery County, about fifteen miles away. Odom; had been his friend for many years, and was still his friend. He arrived at Odom’s house on Friday, and went to the field where Odom was working, about three o’clock of that day, and said to Odom, “I am in trouble, or somebody is in trouble to my credit. There was a man found at my gate, one of my best friends — one among my best friends was found at my wash place, dead, this morning. I thought I would dodge out two or three days. I didn’t know but what they would take me up and mob me or do something. I thought I would dodge out two or three days until the excitement was over, and go in and give up and make bond.” Weldon wanted Odom and Weldon’s father-in-law, Stacey, who also lived in Montgomery County, to go over to Weldon’s and stay with his wife until he returned home. Odom went and got Stacey, and returned to Odom’s house, and Weldon wanted Odom to get him a pair of shoes and a pair of overalls, and gave Odom the money to buy the same. Odom went for these articles, and, when he returned, Weldon was down in Odom’s field. Odom gave Weldon the shoes, and told him that he couldn’t get the overalls. In the meantime Stacey had come to Odom’s house, and that night, while Odom and Stacey were having a conversation, Weldon would sit there and whistle and kind of hum a little, and then he asked this question: “How could you commit cold-blood murder?” Odom told him that he didn’t understand the question, and Weldon again asked, “What can you commit cold-blooded murder with — with a knife?” Odom answered, “Yes,” and asked Weldon how the man was killed — whether he fell dead or was shot, or killed with a knife, and Weldon replied that he thought that he was cut with a knife. Later Odom expressed to Weldon his regret, saying, “Bob, this sure has hurt me, and hurts me worse than anything that has ever occurred,” and Weldon replied, “Yes, it has hurt me, Mr. Odom; it has hurt me or ruined me,” or something to that effect. The next night Odom told Weldon that the officers had been there looking for him. Weldon asked Odom if he thought they would electrocute him (Weldon). This conversation occurred at Odom’s barn on Saturday night. Weldon did not say anything about getting away, but Odom told Weldon that it would be a hard matter for him to get away, and it was during this conversation, and after he started to give up, that Weldon asked if Odom thought they would electrocute him. In a further conversation, on Saturday night, at Odom’s barn, Weldon said, “I haven’t told anything yet,” and then commenced to tell Odom about when the man came to his house and when he left. Weldon said it was about eight o’clock when the man came to his house, the best he could remember. Somebody came there and hollered him out, and he went out in the yard, and some fellow said, “Oh, yes, 0— d— you, we got you right where we want you now,” and hit him. with something and knocked him down, and Weldon said a fight then commenced. They went around and around, and when he (Weldon) came to himself, or got away, he made for the kitchen door, and there was one man running west of the house and one running east, the one north of the house running east and the one on the west going south, and he (Weldon) got in his "house, grabbed his gun, and through excitement and scare, cocked it, pulled the trigger, and it went off in the house. Then he went out of the door and out in the yard and shot it. It was farther shown that Weldon had no land in cultivation on the place on which he had lived for - the last ten or twelve years.

Weldon testified that on Thursday, when he and Jones left the home of Yates together and went to Weldon’s house, Jones had some whiskey, which they drank on the way to Weldon’s house. Weldon had whiskey at his home, and, after he and Jones got to Weldon’s, they continued their drinking until late in the afternoon, when Jones left, taking a trail in a westerly direction across the mountain. Weldon’s testimony shows that, after Jones left his home late in the afternoon, he (Weldon) became very drunk, and lay down across his bed and went to sleep about five or six o’clock in the afternoon; that, about eight or nine o’clock, some one aroused him, calling him from his west yard gate, from which the trail leads that Jones had taken in the late afternoon. He was in a drunken stupor, but got up and went to the gate. He went through this gate and approached a man who was standing there, but whom he didn’t know; that the man struck him across the head and knocked him down, rendering him completely insensible. The next thing he knew he was getting up off of a man; that, as he arose, he saw two other persons, one in his yard and the other to the east and on the outside of his yard. He faintly remembered that he went into the northwest door of his home to get his shotgun, thinking that he was being mobbed and that his home was being assaulted. He heard some noise in his house as he went in. He got his shotgun, and went out to his south door, and, as he started out of the room, both barrels of his gun were discharged, shooting holes in the wall. He reloaded his gun and went out of the house and around the east end of it, and, as he approached the northwest corner, he saw some' one dodging behind his smokehouse; that he fired at the person thus dodging, and struck the corner of the smokehouse with a large number of squirrel-shot. He faintly remembered that, after firing the shot at the corner of his smokehouse, the thought came to him that he would have to get help. He then began hollering, left his home, and went to Albert Yates,’ about a mile away.

There was testimony corroborating the testimony of appellant as to the showing that there were squirrel-shots through the corner of the smokehouse and that a hole was blown through the wall of the house at the door and in the ceiling of the porch, where the shot had lodged. It was shown on cross-examination of Yates that, when Weldon came to his house on Thursday night after the shooting, he was drinking. Yates was asked if Weldon was practically a wild man at the time, and answered, “Yes, he was drinking.” The witness, in answer to further questions, stated that he gave down and went to sleep on the side of the road. On cross-examination of appellant, he stated, among other things, that he didn’t get a light that night to see who the man was on whom he was lying when he came to himself. The shock came over him, and he left. He didn’t know that the man was hurt. He could feel the blood on himself later. He changed his clothes over in the hills about two miles from his home, a couple of miles from where he left the gun. He threw his clothes under a brush-pile — they were bloody. He got a change of clothing before he left home. He knew that he had not cut the man or shot him. He could not have done anything to him. There was no chance for him to do anything.

Mrs. Jones testified for the State, in rebuttal, that she never knew of her husband drinking whiskey — never smelled it on his breath. Yates also testified that he never knew of Jones drinking. It was shown that them was a distillery within a mile and a quarter or a mile and a half of Bob Weldon’s house. His house was the nearest house to the still.

The above are the salient facts developed at the trial of the cause.

The appellant prayed the court to instruct the jury to the effect that the mere pi-oof of malicious killing of the deceased by the appellant would not of itself constitute murder in the first degree; that it must appear from the evidence, beyond a reasonable doubt, that the slaying was done by the appellant of malice aforethought and after deliberation and premeditation; that, although the jury might find that appellant slew the deceased with a deadly weapon, still, that would not justify the jury in returning a verdict of guilty of mturder in the first degree, unless they believed from the testimony, beyond a reasonable doubt, that the appellant possessed sufficient mind at the time to, and did, deliberate and premeditate upon such act, and thereafter maliciously slew the deceased. The court refused these prayers, to which appellant duly excepted.

Among other instructions the court gave instruction No. 30, in part, as follows: “You may consider the testimony of liquor law violations also, if you find the defendant killed the deceased, as tending to shed whatever light it may shed, if it sheds any, upon the motive that prompted the defendant to kill the deceased, but consider this testimony for no other purpose.” The appellant duly objected and excepted to the giving of this instruction.

The appellant testified that he did not Mil Jones; that, on the night of the killing, he was aroused by some one calling him; that he was stupidly drunk, but, in response to the voice, he went to the northeast gate, and, when he got out of it, “some one cracked him over the head,” rendering him insensible. When he came to himself he was getting up off of a man. He saw two men leaving, ran into the house and got his shotgun, and, in his excitement and for his protection, fired the same. There was testimony corroborating the testimony of appellant to the effect that a shotgun was fired in appellant’s house and into the corner of his smokehouse, and there was also testimony to the effect that there were no evidences of a struggle where Jones’ body was found. Therq was testimony also that there was some human hair found on the gate-post which corresponded to the color of appellant’s hair, and there was blood on the gatepost.

The appellant’s contention therefore is that Jones was killed by other parties and placed in the position in which he was found on appellant’s premises, and that appellant was knocked senseless, and placed on Jones’ dead body. The appellant further contends that, even if the evidence were sufficient to prove that he killed Jones, there is no testimony to justify a verdict against him of murder in the first degree. On the other hand, it is the contention of the State that the circumstances established by the testimony are sufficient to prove that the appellant killed Jones by shooting him with a rifle or pistol and by cutting him with a knife, and that the jury was justified from the circumstances in finding that the killing of Jones by appellant was murder in the first degree.

The testimony was sufficient to justify the court in submitting to the jury the issue as to whether or not the appellant killed Jones and whether such killing was murder in the first degree. The court, in its instructions, correctly and clearly defined all the degrees of criminal homicide, and also correctly declared the law on justifi-ble homicide. The court also fully and 'accurately instructed the jury on the issue as to whether or not the appellant, by reason of his intoxication, had sufficient mental capacity to deliberate and premeditate upon the act of killing- Jones. The charge of the court on the law of criminal homicide, self-defense, presumption of innocence, reasonable doubt, credibility of witnesses, circumstantial evidence, and the effect of intoxication as a defense, was exceedingly comprehensive and accurate, and in conformity with many decisions of this court. Such of appellant’s prayers for instructions as were correct were fully covered by instructions given by the court.

Learned counsel for appellant contends that the testimony for the State, at most, could only justify the jury in finding the -appellant -guilty of omurdex in the second degree; that the testimony showed nothing more than that the killing was done with a deadly weapon, from which the jury might infer malice, but that there was nothing in the testimony to warrant the jury in finding that the killing was done with premeditation and deliberation. When nothing more is shown than the mere fact that the killing was done with a deadly weapon, premeditation and deliberation will not be inferred or presumed from such fact alone. McAdams v. State, 25 Ark. 405; Fitzpatrick v. State, 37 Ark. 238; Burris v. State, 38 Ark. 221; Greene v. State, 51 Ark. 189; Howard v. State, 82 Ark. 102; Ferguson v. State, 92 Ark. 124. But there was far more shown here than the mere naked fact ' of the killing of Jones with a deadly weapon. The very manner in which the deadly weapons were used was sufficient to justify the jury in finding that whoever killed Jones used the weapons with a deliberate purpose to kill. Jones ’ body was perforated three times through the center with bullets from a pistol or rifle, and was also horribly mutilated with a knife. The manner, therefore, in which these deadly weapons were used tended to show that the death of Jones was the result of premeditation and deliberation.

In the case of Howard v. State, supra, Judge Riddick, speaking for the court, said: “But, though malice may be presumed, premeditation and deliberation are not presumed from the mere fact of a killing by the use of a deadly weapon, but must be shown by the manner of the killing and the circumstances under which it was done, or from other facts in evidence.”

In 2 Brill’s Encyclopedia, Criminal Law, ch. 19, § 644, it is said: ‘ ‘ Premeditation and deliberation may be inferred as a matter of fact from the circumstances of the case, -su-oh -as the character of the weapons used, the nature of the wounds inflicted, the acts, conduct and language of the accused, and the like.” See the many authorities cited in the note.

Now, the manner of the killing of Jones and the circumstances under which it was done, as disclosed by this record, fully warranted the jury in finding that the killing of Jones was. murder in the first degree. The .jury scouted, as well they might, the testimony and theory of appellant to the effect that Jones was killed by some one else and his dead body brought and placed where it was found, and that appellant, after being knocked insensible, was placed upon Jones’ dead body. For it is reasonably certain, from the nature of the wounds on, and the great quantity of blood under and around, the body of Jones, that he was killed on or near the spot where his body was found. Not only the nature of the wounds inflicted, but likewise the acts and declarations of the appellant on the night of, and immediately after, the killing, and on the day following, as set forth in detail above, tended strongly to prove that he was the victim of those inescapable torments that usually come to one who is guilty of deliberate murder. Appellant told Tates that night that he had “left his troubles in the chip-yard,” but it seems that they haunted him still, for, the next morning, when Yates returned with him to the spot, he pulled Jones’ shirt bosom open and said, “By G — , I wish I knowed some way to get out of this.” Appellant, as the jury might have found, lost his knife, and hid the gun with which the bloody deed was done; he feared the mob, and fled to the home of his friend Odom, and, while there, asked Odom, “How could you commit cold-blooded murder — with a knife?” On the night of, and immediately after, the killing, with blood still on his hands, arms and clothes, he exclaimed to Yates, “I can’t hardly stand to smell this damn blood,” and the next day he hid the bloody clothes under a brush-pile. The jury might have found that these circumstances were the manifestations and outcry of conscious guilt. This is a tendency not uncommon in those who Rave deliberately committed murder, as shown by the greatest delineator of human character when he has Lady Macbeth to say:

“Out, damned spot! out I say! * * *Here’s the smell of the blood still; all the perfumes of Arabia will not sweeten this little hand. Oh, oh, oh!”

Act fifth, sc. 1, Macbeth.

The jury were fully warranted in finding, from the circumstances above detailed, not only that appellant killed Jones, but that he did so with premeditation and deliberation.

The appellant also contends that the court erred in giving that part of instruction No. 30, set out above, tell- • ing the jury, in effect, that they might consider the testimony of liquor law violations as tending to shed whatever light it might shed, if any, on the motive that prompted the appellant to kill the deceased.

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

The testimony on the part of the State tending to show that Jones was a forest ranger whose duties required him to report violations of the liquor laws, and that the appellant was violating these laws, was competent and relevant on the issue as to whether or not appellant had. a motive to kill Jones. The instruction complained of was predicated upon this testimony, and was so phrased as to leave the jurv free to determine what weight they would give to it in considering whether or not appellant had a motive for the crime charged. The instruction was not on the weight of the evidence, and therefore did not invade the province of the jurv. The instruction did not, as appellant’s counsel contends, suggest that there was a motive for the killing, but only told tlie jury that they might consider the testimony as tending to shed whatever light it might shed, if any, in determining whether there was a motive for the crime, and that it could be considered for no other purpose. The instruction in this form was not prejudicial.

The record presents no reversible error, and' the judgment is therefore affirmed.


author: Hart, J.,

text:
    Brown v. Southern Grocery Company.
    Opinion delivered April 13, 1925.
    1. Account stated — definition.—An account stated is an account balanced and rendered, with the debtor’s assent to the balance, express or implied.
    2. Account stated — facts stated. — Where a cotton grower shipped 10 bales of cotton to his factor and received an advance thereon, separate statements from the factor showing the price received for each bale of cotton, the storage, insurance, commission and net proceeds of sale, not being intended as a final settlement, did not constitute an account stated.
    3. FACTORS^-RIGHT TO SELL ON OWNER'S FAILURE To - PUT UP MARGINS. — Where the market declined, and the owner of cotton on which a factor had made advances failed to put up sufficient margin to cover the decline in price, the factor had the right, acting in good faith and with reasonable discretion with regard to the reimbursement of himself and the interest of his principal, to sell the property .after reasonable notice to the owner.
    4. Factors — good faith — evidence.—A chancellor’s finding that a factor acted in good faith in selling his principal’s cotton after the latter bad failed to put up margin to cover advances, held not against the preponderance of the evidence.
    Appeal from Monroe Chancery Court; John M. 'Elliott, Chancellor;
    affirmed.
    statement or facts.
    This action was ¡brought in the circuit court 'by the Southern Grocery Company against W.. S. Brown to recover $702.35. alleged to be the balance of an account due the plaintiff by the defendant.

      The suit was defended on the ground that the plaintiff was a cotton factor and had been guilty of bad faith in selling the cotton shipped to it by the defendant, and that it had also charged him an excessive amount for storage and insurance.
    The record shows that the plaintiff was a cotton factor and wholesale grocer at Pine Bluff, Arkansas, and the defendant was engaged in farming in Monroe County, Arkansas. On December 13, 1919, Brown wrote to the Southern Grocery Company as follows:
    ‘ ‘ Gentlemen:
    “Inclosed find B/L for 9 bales cotton which I shipped you on 12/11/19. Please send me check for $1,125, as I want to draw $125 a bale on it. As soon as this cotton arrives, please let me know what you can get for it, and let me know, and I will advise you whether to hold or sell it.”
    The cotton was duly received by the Southern Grocery Company, and, on December 16, 1919, it wrote to W. S. Brown at Brinkley, Arkansas, the followinig: “Dear sir:
    “We inclose check of $1,125 advance on nine bales of cotton which we have for your account.”
    On March 11, 1920, Brown shipped to the Southern Grocery Company another bale of cotton, and wrote the following:
    ‘ ‘ Gentlemen :
    “Inclosed you will find B/L for one bale of,nice white cotton. If you can get a good offer on this bale, let me know what it is, and I will tell you whether to sell it or hold a while longer.”
    On June 21, 1920, the Southern Grocery Company sold one of the bales of cotton for $238.36, and, after deducting commission and other charges, there was left a- balance of $225:06. An account of sale was sent to Brown when it was made. In the fall of 1920 the Southern Grocery Company wrote to Brown that, on account of the serious decline in the cotton market, the banks were calling on it for margins, and this forced it to call in turn on its customers. Brown was requested to send in $300 on the nine bales of cotton which he had previously shipped to it. On December 29, 1920, Brown wrote the Southern Grocery Company that he had had several letters from it in regard to his cotton, and that he had been trying to sell some new cotton in order to send the $300 to cover margin as requested. The letter also contained the following: “In the last letter you talked of selling it and applying to my account. About what can you get for it now?” The letter concluded by promising to remit the margin as requested as soon as he could make some collections.
    Attached to the deposition of a bookkeeper of the plaintiff is a statement of account, showing a balance due on February 8, 1923, of $687.60. In it the Southern Grocery Company charged Brown with $1,125 and interest for three years, amounting to $212.25. Brown is-given credit as follows: June 21, 1920, net proceeds of sale of one bale of cotton in the sum of $225.06; July ’24,1921, net proceeds of sale of one bale of cotton $26.62; July 30,1921, net proceeds of sale of three bales of cotton $111.70; August 21; 1921, net proceeds of sale of one bale of cotton $24.54; September 9, 1921, net proceeds of sale of one bale of cotton $39.20, and January 31, 1922, net proceeds of sale of three bales of cotton, $158.58.
    , According to the evidence for the plaintiff, as each bale of cotton Was sold an account of. sale was sent to the defendant, showing the price for which it was sold and the insurance, storage, and commission charged.
    J. W. Wilkins, president and general manager of the Southern Grocery Company, was a witness for it. According to his testimony, the first he knew that Brown was going to ship any cotton to his company was when the letter inclosing the bill of lading for the nine bales of cotton was received. On receipt of the cotton the plaintiff advanced to Brown the sum of $1,125 on December 16, 1919. The amount charged for insurance, storage, and commission was the usual sum charged at that time by cotton factors. In 1920 there was a serious decline in the price of cotton, and the Southern Grocery Company had on hand three or four thousand bales of cotton of about the same staple as that shipped to it by Brown. The company suffered a considerable loss in selling the cotton, and, during the year 1920, tried to make the best sale of it possible in the principal markets of the United States. It also tried to sell some of it in Canada. The cotton of Brown was finally sold in good faith for the best price obtainable, after Brown refused to put up any more margin on it. No one anticipated the heavy decline in the price of cotton which occurred in 3920 and 1921.
    The testimony of J. W. Wilkins was corroborated by that of his son, W. J. Wilkins, who was the treasurer of the company. According to his testimony, the account of sales accurately showed the weight of each bale, the price received, the charges for storing, insurance, and commission, and the net proceeds. The charges were the usual charges made at that time by cotton factors, and the sales were made in good faith after Brown had refused to put up any more margin on the cotton, and because cotton kept steadily declining. No one anticipated that the price of cotton would go as low as it did in 1920. There was no market for this class of cotton in 1920 and 1921.
    W. H. Kennedy, another cotton factor, corroborated their testimony as to the reasonableness of the storage, insurance and commission charges of the plaintiff, and to the further fact that there was a serious and unexpected decline in the price of cotton during the year 1920. He further stated that there was no market for the class of cotton in controversy during the year 1920. ,
    W. S. Brown was a witness for himself. ’ According to his testimony, when he shipped the nine bales of cotton to the Southern Grocery Company, his instructions were as follows: “As soon as this cotton arrives, let me know what yon can get for it, and I will advise whether to hold or sell it.” At that time Brown could have got forty-five cents per pound for his cotton at Brinkley, Arkansas. After that he called the plaintiff over the telephone and told it to let him know what it could get for his cotton. Some one in the office of the plaintiff answered the telephone, and told him that the cotton would not be sold until he was advised what he could get for the cotton and would authorize them to sell it. Brown told them he would instruct them whether or not he wanted to sell it for the price reported. On January 23,1920, Brown wrote to the plaintiff the following:
    “I called you over the telephone on 16th and asked you what you could get for mv nine bales of cotton which I shipped you on December 11, 1919, and you promised me you would let me know sure not later than January 19, and up to date I have not heard a word from you. I want to know, because I have about 15 bales more and have had an offer on them here, and I wanted to see if it would pay me to ship them to you or sell them here. Please let me know what you can get for it at once.”
    Brown admitted that he wa*s to pay 6 per cent, interest on the advance made to him by the plaintiff, but said that they chose the date at which cotton was selling for the lowest price to sell his cotton. :
    The case was transferred to the chancery court on the motion of the defendant, and tried there by consent of parties. The chancellor found the issues in favor of the plaintiff, and, from a decree in its favor, the defendant, has duly prosecuted an appeal to this court.

      Br-gie (ft Sharp, for appellant.

      W. T. Wooldridge, and Lee & Moore, for appellee.
   Hart, J.,

(after stating the facts). It is first sought to uphold the decree on the theorv that the account of sales sent by the plaintiff to the defendant had become an account stated.

On this point the record shows that an account of sale for each bale of cotton was sent by the plaintiff to the defendant, and the statement showed the price received for the cotton, the storage, insurance, and commission of .the plaintiff, and the net proceeds of sale. These facts did not constitute a cause of action on an account stated. An account stated is an account balanced and rendered, with an assent to the balance, express or implied. Ten hales of cotton were shipped by Brown to the Southern Grocery Company to he sold by it for him, and an advance of $1,125 was made to him on the cotton. The account does not appear to have been intended as a final adjustment and settlement between the parties, and the facts do not show an agreement, express or implied, that it should be so regarded. Glasscock v. Rosengrant, 55 Ark. 376.

• When Brown shipped the nine bales of cotton to the Southern Grocery Company on the 11th day of December, 1919, he told it that he wanted to draw $125 a bale on it. The letter also advised the plaintiff to let him know what it could get for the cotton, and he would advise it whether to hold or sell it. On the 23rd day of January, 1920, Brown wrote the plaintiff that he had called it over the telephone on December -16, 1919, and asked it what he could get for his nine bales of cotton, and that the plaintiff promised to let Mm know not later than January 19, 1920. He reminded the plaintiff that he had not heard from it, and wanted to know, because he had fifteen bales more that he wanted to sell. The plaintiff sold one bale of cotton for $228.36, and, on June ’21, 1920, it sent the defendant an account of sales showing the net proceeds, $225.06. No objection was made to this sale. During the fall of 1920 there was a great decline in the price of cotton, and the plaintiff wrote several letters to the defendant demanding that he put up an additional margin of $300 to cover the advance made by the plaintiff to him. On December 29, 1920, Brown wrote the plaintiff that he would send the $300 as soon as he could sell some of his new cotton. In the letter he asked plaintiff what it could get for his cotton, and referred to the fact that, in its last letter, the plaintiff liad talked of selling Ms cotton and applying the proceeds to Ms account because he had failed, to put up the additional margin requested by it. The plaintiff, in several letters, notified the defendant that it would sell the cotton unless an additional margin was put up to cover the fall in the price of cotton.

Under these circumstances the plaintiff had a right to sell the cotton in the usual course 'of trade to reimburse it for the advance already made by it, and was only bound to exercise good faith towards the defendant in selling the cotton.

‘ The general rule is that, under circumstances of this kind, the factor has a right, acting in good faith, and with reasonable discretion, with regard both to the reimbursement of himself and the interest of his principal, to sell the property after reasonable notice to the owner. Davis v. Kobe, 36 Minn. 214; 1 Am. St. Rep. 663; Phillips v. Scott, 43 Mo. 86; 97 Am. Dec. 369; M. M. Walker Co. v. Dubuque Fruit & Produce Co., 113 Iowa 428; 53 L. R. A. 775; Blot v. Boiceau, 3 N. Y. 78; Am. Dec., 345, and case-note in 58 Am. Dec., p. 160; 11 R. C. L. § 19, p. 767, and 25 C. J., p. 360. See also Burke v. Napoleon Hill Cotton Co., 134 Ark. 580, and Wynne, Love & Co. v. Bunch, 157 Ark. 395.

If the defendant wished to prevent the plaintiff from selling the cotton to discharge the amounts advanced by it, he should have put up the margin demanded by the plaintiff, and, having failed, it would only be required to exercise good faith in the sale of the cotton. According to the testimony of the defendant, the plaintiff sold the cotton on the dates on which the price was the lowest. According to the evidence for the plaintiff, there was no market at all in the latter part of 1920 for the class of cotton in controversy. The plaintiff lost a considerable amount of money on this class of cotton because it was unable to sell it. While the account of sales^does not constitute an account stated, for the reason given above, still it is a fact which tends to prove the good faith of the plaintiff in selling the cotton. The cotton was sold on various dates in the years 1920 and 1921, and the last three hales were sold in the first part of 1922. On each date on which the cotton was sold the plaintiff sent a statement to the defendant showing the price for which it was sold, and the commission, storage and insurance charges. The defendant was thus advised of the price for which the cotton was sold and the net proceeds which he was to receive.- He made no objection to any sale reported to him, and good faith on his part would seem to require that he should have objected to the sale of the cotton.

In any event, the sending of the statement by the plaintiff tended to show its good faith in the matter. The extreme decline in the price of the cotton seems to have resulted disastrously to every one, and certainly was not anticipated by the plaintiff. The record shows that it had three or four thousand bales of cotton of this same class or grade which it was unable to sell, and on which it suffered considerable loss. While the low price for which the cotton was sold is evidence of bad faith on the part of the plaintiff in selling the cotton, still it cannot be said that, when all the surrounding circumstances are considered along with the evidence for the plaintiff, the finding of the chancellor in favor of the plaintiff is against the weight of the evidence.

Under the settled rules of this court the finding of facts made by a chancellor will not be disturbed on appeal, unless it is against the preponderance of the evidence.

It follows that the decree will be affirmed.


author: Hast, J.,

text:
    Desha v. Erwin.
    Opinion delivered April 13, 1925.
    1. Navigable waters — effect of accretion. — A riparian owner oí land bounded by a navigable stream, the banks of which are changed by gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary.
    2. Navigable waters — avulsion.—Where a navigable stream suddenly and perceptibly abandons its old channel, the boundary line of a riparian owner is not changed, but remains at the former line. '
    3. Deeds — description with reference to public surveys. — Deeds ■conveying land by sections and quarter sections jare to be construed with reference to the public surveys.
    4. Deeds — construction.—In the construction of deeds, the common law rule is that effect will be given to the intention of the parties as drawn from the language of the deed, if consistent with the rules of law.
    5. Deeds — general and particular description. — A general description of the land intended to ibe conveyed, held not inconsistent with a particular description given where it appears that the general description was inserted to aid in the location of the land conveyed toy the particular description.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    reversed.
    STATEMENT OE EAOTS.
    Ben Desha instituted this action in the circuit court against Ida L. Erwin and R. L. Flinn to recover a tract of land in Independence County, Arkansas, of which he claims to he the owner.
    The suit was defended on the ground that the land in question was an accretion to land owned by the defendants, and on the further ground that the plaintiff had no title to said land.
    The record shows that originally two islands were formed south of the main channel of White River, and south and southwest of the town of Batesville, in Independence County, Arkansas. Both of these islands were formed by the waters of White River, and were separated from each other by a slough which ran into White River. One of these islands was known as Little Island and tlie other as Big Island. Big Island was south of,the city of Batesville and east and southeast of Little Island. In 1868 or 1869 the main channel of White River changed and cut through the center of Little Island and the northern part of Big Island. The land in controversy comprised 23.68 acres in the southeast fractional quarter of section 17 and four acres in lot 3 in section 20, and immediately south of the tract first described. Both of these tracts are in* township 13 north, range 6 west, -and in the northern part of Big Island as it was before the change in the main channel of White River in 186t8 and 1869, as above described.
    Ben Desha acquired title to the land in' Big Island immediately south of 'the main channel of White River as it now runs, and also claims to have acquired title to the land in controversy, which is north of the river, by the same deed.
    It is the claim of the defendants that the land in controversy was formed as an accretion to their land after the change of the channel in White River in 1868 or 1869. They also claim that the plaintiff acquired no title to the land in controversy, and therefore cannot maintain this action.
    The evidence on this branch of the case will be set out and discussed under an appropriate heading’ in the opinion.
    The circuit court directed a verdict in favor of the defendants, and from the. judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      MeCaleb é MeCaleb and Cole Poindexter, for appellant.

      Samuel M. Casey and Ernest Neill, for appellees.
   Hast, J.,

(after stating the facts). It is sought to uphold the judgment on the ground that the land in controversy formed as an accretion to the land belonging to the defendants and their grantors, and that the plaintiff, having no title to it, should not be allowed to maintain this action.

On the part of tlie plaintiff, it is contended that the land was originally a part of Big Island, and was cut off from the other land on Big Island by a sndden change in the main channel of White River in 1868 or I860. White River is a navigable stream, and it is the established rule that a riparian owner of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased, he is not accountable for the gain, and, if it is diminished, he has no recourse for the loss. But, where a stream suddenly and perceptibly abandons its old channel, the title is not affected, and the boundary remains at the former line. Philadelphia Co. v. Stimson, 223 U. S. 605, and cases cited; Wallace v. Driver, 61 Ark. 429; and Yutterman v. Grier, 112 Ark. 366.

The undisputed evidence shows that the northern part of both Little Island and Big Island was south of the main channel-of White River. It also shows that a sudden and unexpected overflow of White River caused 'its main channel to cut through the central mart of Little Island and also the northwestern part of Big Island. Since that time the main channel of White River has flowed through this cutoff. The witnesses arc not certain whether the change occurred in 1868 or 1869, but they are certain that the change was sudden, and resulted from an unprecedented overflow of White River. They sav that a part of the northwest part of Big Island was left north of the river when the sudden chance in its channel occurred, and that the land in question is either that part of Big Island which was left after the sudden change in the. channel of White River, or that it is this land together with the accretion formed on its southern boundary. The northern part of this land comprises 23.68 acres, and is situated in the southeast fractional quarter of section 17, and immediatelv south and contiguous to this is the four-acre tract, which is situated south of the first-mentioned tract and immediately north of White River, in section 20.

As we have already seen, when the change in the stream is sudden and at once a new channel is formed, the title to the land remains the same. This sudden and rapid change of channel is termed in law an avulsion. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the main channel. On the other hand, an avulsion has no effect on the boundary, but leaves it in the center of the old channel. If we are correct in saying that the undisputed evidence shows that the land in question was formed by avulsion, the title to it remains the same as if no avulsion had occurred.

• The circuit court seems to have had this view of the land and the law, but directed a verdict for the defendants on the theory that the land in controversy was not embraced within the description of the land in the deed under which the plaintiff claims title. In other words, in his opinion the whole case turned upon the construction of the deed from Theodore Maxfield and Sallie A. Max-field to Ben Desha, executed on the 13th day of January, 1903. That part of the description in the deed just referred to which is material,to this case is as follows:

“The southeast fractional quarter section seventeen (17) (in island) containing 42.72 acres, more or less; lot three (3) of the northeast quarter of section twenty (20), in island, containing 31.49 acres, more or less.” * * * “All of said lands being in township thirteen (13) north, range six (6) west, it being the intention of the grantors herein to convey all of the lands on what is known as the Big Island devised to the said Sallie A. Maxfield by her father, John F. Allen, by last will and testament.”

The will of John F. Allen was signed by him on the 23rd day of'December, 1898. The will recites that the testator wills and bequeaths to Sarah, wife of Theodore Maxfield, the following described lands, to-wit:

“Also to Sarah, S. F. fraction of section 17, 13, 6; lots 3 and 4 of N. E. section 20, 13, 6, and the west part of N. W. fraction 21, 13, 6, on Big Island, Ind. Co.”

Other land is given to Sarah A. Maxfield, a daughter of the testator, by the will, the description of which is omitted because it has no bearing on this snit.

The record also shows that John F. Allen acquired title by deed from Edwin T. Burr on the 23rd day of September, 1860, to the following land:

“The northwest fra’l quarter of section twenty, in township thirteen north, of range six west, containing one hundred and one 36/100 acres, more or less; and the-southeast fr’l. part of the southeast fractional quarter of fractional section seventeen, of township thirteen north, of range six west, all on the Big Island, in White Biver, west of Batesville; and also the lots No. one, two and ten and eleven, of block No. four of the town of Batesville.”

Thus it will be seen that John F. Allen had title to all the land comprising Big Island at the time of the sudden and visible change in the channel of White Biver in 1868 or 1869. The will of John F. Allen was not executed until after the avulsion in 1868 or 1869. Allen gave to his daughter, Sarah A. or Sallie A. Maxfield, the southeast fractional part of 17 and lots 3 and 4 of the northeast section of 20 on Big Island, in Independence County. This description embraced the land in controversy. Now in the deed from Sarah A. Maxfield and Theodore Max-field, her husband, to Ben Desha the description is as follows: Southeast fractional quarter of section 17 (in island), and lot 3 of the northeast quarter of section 20 in island. . ..

The land in controversy is' included in this description, and, when land is described in this manner, by sections and quarter sections, we understand the language is to be construed with reference to the public surveys' of the United States. As a general thing, lands in this State are described in deeds according to the subdivisions of the government surveys. The general rule is that the parties intend that these surveys shall be resorted to for the purpose of determining the location and quantity of the lands conveyed. It is also true that tlie descriptions according to the government surveys are to ascertain the boundaries, and are the usual means resorted to to find the location and quantity of the land conveyed.

The circuit court proceeded upon the theory that the description was changed by the concluding part of the grafting clause of the deed as follows:

“It being the intention of the grantors herein to convey all of the lands- on what is known as the Big Island devised to the said Sallie A. Maxfield by her father, John F. Allen, by last will and testament.”

We cannot agree with the circuit court in this conclusion. It is well settled in this State that the intention of a written instrument, gathered from all that is within its four corners, ordinarily controls, and, in the construction of deeds, the common-law rule is that effect will be given to the intention of the parties as drawn from the language of the deed, if consistent with the rules of law. Doe v. Porter, 3 Ark 18; Beardsley v. Nashville, 64 Ark. 240; Abbott v. Parker, 103 Ark. 425; and Cummins Bros. v. Subiaco Coal Co., 150 Ark. 187.

Tested by this rule, we do not think the two descriptions of the land conveyed are inconsistent with each other, and we are of the opinion that the general description quoted ab.ove in the granting clause of the deed was intended as an aid in locating the land, and did not intend to restrict the quantity of land conveyed to' a lesser quantity than that contained in the particular description according to the subdivisions of the government survey. The description according to the government survey could alone be resorted to to determine the quantity and location of the land. The general description was not intended to restrict the quantity of land conveyed, but was rather explanatory of the situation of the land and of the parties in relation to it and to each other. The description according to the subdivisions of the government survey showed the precise location and bounds of the land, and reflects the real intention of the parties. There is nothing in the language of the deed whatever which would carry with it the idea that the general description was inserted for the purpose of curtailing and. controlling the particular and definite description of the land.

Therefore we are of the opinion that the court erred in directing a verdict for the defendants.

The views we have expressed call for a reversal of the judgment, and the cause will he remanded for a new trial.


author: Haet, J.,

text:
    Wisconsin & Arkansas Lumber Company v. Smith.
    Opinion delivered April 13, 1925.
    1. MASTER AND SERVANT — SERVANT’S KNOWLEDGE OF RISK. — Where a servant was properly shown how to unclog ripsaws by using a stick, he will be deemed to have known of the dangers arising therefrom.
    2. Master and servant — negligence of servant. — Where a foreman showed a servant how to unclog ripsaws by using a stick, an injury to the servant arising from unclogging was .necessarily the result of his own carelessness.
    Appeal from Saline Circuit Court; T. E. Toler, Judge;
    reversed.
    STATEMENT OP PACTS. •
    This action was brought by F. W. Smith against the Wisconsin & Arkansas Lumber Company to recover damages for injuries sustained by him while engaged in feeding and operating a ripsaw machine in the defendant’s mill.
    F. W. Smith was a witness for himself. According to his testimony, he was twenty-one years of age on the 5th day of September, 1923, the day on which he was injured. He was injured on the third day after he commenced to work for the company, and was hurt while unclogging a ripsaw which he had been feeding. He was engaged in feeding ceiling about 18 inches long through the ripsaws, and it would cut the tongue and groove off of the piece of ceiling so that it conld be used for crates. The two saws in question were spaced three inches apart on the same shaft or axle, so that, when the pieces of ceiling were pushed through the space between the saws, the tongue and groove of the ceiling were cut off at the same time. The shaft on which the saws were fastened was underneath the top of a table, and the saws came up through a hole or groove in the top of the table. The section of the table through which the saws came up was a piece of timber bolted to the other part of the table top. The part of the table through which the saws ran was a piece of timber eight or ten inches wide, twelve or fifteen inches long, and was fastened to the table with bolts. While operating the ripsaws, the plaintiff stood in front of the saws, and there was a guard between him and the saws, made of pieces of 2 x 4 oak timber. The whole top of the table could be raised up, but it would take two men to raise it. When the section of the top of the table through which the saws came up was raised and let down while the saws were in motion, there was a tendency to cut off some of the board and enlarge the hole through which the savi came. When the saws were engaged in cutting the tongue and the groove off of the pieces of ceiling, the splinters and cut-off pieces would fasten or wedge themselves in the space between the saws and the board, so that the space would become clogged every twenty minutes. The foreman of the plaintiff told him to unclog the ripsaws by pushing out the splinters and pieces of wood with a stick. The foreman took a stick and showed him how to push out the splinters, before the plaintiff commenced to operate the ripsaws. He had seen the foreman take a stick and push out the splinters two or three times on the day that he was hurt, and he had punched them out himself for about twenty-five or thirty times before he was hurt. It usually took him two or three minutes to push or punch out the splinters. He was hurt about 11:25 o’clock in the morning, and at the time was engaged in pushing out the splinters with a pine stick about twelve or fourteen inches long. He described tbe way the accident happened as follows:
    “Q. What were you doing and what was it that caused your finger to be pulled into the saw? A. I was punching those splinters out with a stick, and the stick caught in the saw and it jerked my hand- in there. Q. How long a stick did you have? A. About ten or twelve inches. Q. Did they have one that they kept there all the time? A. No sir, you just picked up one.”
    Again he stated that the left-hand saw choked with splinters, and that he was standing to the left of it while it was running, engaged in pushing out the splinters, when the stick that he was using got caught in the saw and jerked his hand down to it. When his hand came in contact with the running saw, the middle finger of his left hand was cut off at the second joint. His little finger and the one next to it were not cut.
    The evidence for the defendant shows that the plaintiff was engaged in pulling the splinters out from the saw with his fingers at the time he was injured. That is, another servant of the defendant testified that he was . working near the plaintiff, and, just about the fraction of a minute before he got hurt, he saw him pulling splinters out of the saw with his fingers, and that he did not have a stick in his hand. This servant walked about fifteen feet away, and did not see the plaintiff at the precise moment he was injured. .
    From a verdict and judgment in favor of the plaintiff the defendant has duly prosecuted an appeal to this court.

      Buzbee, Pugh & Harrison-, for appellant.
    D. D. Glover and W. B. Bonham*, for appellee.
   Haet, J.,

(after stating the facts). The main question in the case is, was the defendant guilty of any negligence which caused the injury to the plaintiff?

The plaintiff’s claim is that he was young and inexperienced, and that the machine was dangerous. He was injured on the third day after he commenced to work, and claims that he was doing the work as he had been directed to do by bis foreman. He was feeding pieces of ceiling tbrongb two ripsaws placed three inches apart. As the pieces of ceiling were pushed through the spaces between the ripsaws, the saws would cut off the tongue and groove of the piece of ceiling at the same time. The saws came up through holes in the top of the table, and the splinters which were cut off of the pieces of ceiling would accumulate and clog the saws about every twenty minutes. The foreman showed the plaintiff how to push the accumulated splinters away while the saws were run-ing, and thereby unclog them. He said that, while doing this with a piece of pine stick about twelve inches long, the stick caught in the saw and jerked his hand down to the saw and cut off a piece of his middle finger.

Thus it will be seen that, by the plaintiff’s own testimony, he was shown how to do the work in question, and it is difficult to see what additional warning the defendant could have given which would in any manner have helped the plaintiff to avoid being hurt while unclogging the ripsaws. The plaintiff had just arrived at full age, and his testimony shows him to be a young man of fair intelligence. It is unnecessary to discuss the point made as to the groove having been cut larger than necessary by letting the table top up and down. The size of the groove had nothing whatever to do with the injury. The proximate cause of the plaintiff’s injury was allowing his hand to be drawn against the revolving saw while engaged .in pushing the accumulated splinters through the groove so that the saw would become unclogged. The plaintiff’s own testimony shows that his injury was the result of an accident which could have been avoided by ordinary care on his part. As we have just seen, his foreman had shown him how to take a stick and push away the accumulated splinters. While he does say that no particular kind of stick was furnished him for that purpose, he testified that the stick he was using was ten or twelve inches long, and was not even broken while he was pushing the splinters away. It is difficult to see how the stick that he was using could have become fastened in the saws and have jerked his finger down to the saw, if he had been exercising ordinary care in doing his work. After his foreman had shown him how to unclog the ripsaws by the use of a stick, he must be deemed to have known and to have fully appreciated the danger arising therefrom, and we fail to discover any testimony tending to show any negligence on the part of the defendant. The cáse is within the principles of law decided in Fordyce Lumber Co. v. Lynn, 108 Ark. 377. His foreman having shown him how to unclog the ripsaws, by pushing away with a stick the particles of wood which accumulated, it must be said that the method of doing the work was under the plaintiff’s own control and that the accident was the result of his own carelessness.

It follows that the court erred in submitting the negligence of the defendant to the jury, and, for that error, the judgment will be reversed, and, inasmuch as the'cause of action appears to htive been fully developed, it will be dismissed here.


author: Smith, J.

text:
    State v. Cissna.
    Opinion delivered April 13, 1925.
    1. Courts — effect of decision of federal court on land titles.— A decision of the federal courts on a question involving the title to land claimed by the State, while not binding on this court in a similar ease, is highly presuasive,
    2. Evidence — judicial notice. — It is a matter of common knowledge that islands-in the Mississippi River are subject to overflow.
    3. Levees — title to lands of state within levee district.— Acts 1893, pp. 24, 172, donating all lands of the State within the limits of the. St. Francis Levee District to that district, held to extend to the middle of the Mississipi River, and to include all islands within such territory.
    Appeal from Crittenden Chancery Court; J. M. Fu-trell, Chancellor;
    affirmed.

      J. S. Utley, Attorney General; Coleman, Robinson d House and R. G. Brown, of counsel for appellant.

      Ewing, King £ King, and S. V. Neely, for appellee.
   Smith, J.

It was alleged in the complaint filed on behalf of the State of Arkansas that the State owned certain lands described as fractional parts of sections 28, 32, 33, and 34, township 10 north, range 10 east, and of fractional sections 4 and 5, township 9 north, range 10 east, lying partly in Mississippi County and partly in Crittenden County. These lands collectively are referred to in the complaint as comprising Dean’s Island, and, for convenience in referring to them, that description will be employed in this opinion.

It was alleged that defendant had, without right, entered upon these lands and cut a large quantity of valuable timber, and was about to cut more. There was a prayer that defendant be enjoined from cutting timber and that he be required to account and. pay for the timber already cut.

A demurrer to this complaint was filed and sustained, it being adjudged by the court below that the State had previously granted the lands described to the St. Francis Levee District, and this appeal is from that decree.

There is quite an interesting' discussion in the briefs of counsel as to the meaning and effect of the allegations of the complaint. On behalf of the State the insistence is that the complaint alleges that the land described was an island in place in the Mississippi Diver at the time of the admission of the State into the Union and of the adoption of our present Constitution, and that the land continued to be and was in fact an island at the time of the formation of the St. Francis Levee District by the special act of the General Assembly of 1893. On behalf of appellee it is insisted that the complaint alleges that the lands involved in this litigation were not an island, but were in fact lands forming the right bank of the Mississippi River at the time the St. Francis Levee District was created. We pretermit a discussion of this question, and treat the complaint as alleging that the land in question was an island in the Mississippi River, situated partly in Crittenden County and partly in Mississippi County, at the time of the creation Of the St. Francis Levee District by the General Assembly of 1893.

Giving the complaint this construction, it becomes necessary to construe two special acts passed by the General Assembly of 1893. The first of these acts, which became a law February 15, 1893, created the levee district and defined its boundaries. Section 1 of this act, which defined the boundaries of the levee district, was amended by the act of the same session of the General Assembly, approved March 28, 1893, but the amendment is unimportant in the consideration of the question presented for decision. The second act became a law March 29,1893 (Acts 1893, p. 172), and, by its provisions, certain lands were granted by the State to the levee district.

What were the boundaries of the district and what lands were granted to it? The answer to this question is decisive of the question presented on this appeal.

Section 1 of the act of February 15,1893 (Acts 1893, p. 24), defines the boundaries of the levee district as follows: ‘ ‘ That all that part of area of this State known as a part of the St. Francis basin, and more particularly described as follows, to-wit: Beginning on the left bank of the St. Francis River, at its confluence with the Mississippi River, thence in a northwesterly direction along said left hank of the St. Francis River to the southern boundary line of Lee County, thence west with said boundary line of Lee County to extreme high-water line on the base or slope of the highlands, thence in a northerly direction with the meanderings of the said highlands to the north boundary line of Craighead County, thence east along said north boundary line to the north line of Mississippi County, thence along said line to the Mississippi River, thence in a southerly* direction along said right bank of the Mississippi River to the place of beginning, containing all that area which has heretofore at any time, either directlv or indirectly, overflowed by water from the Mississippi River.”

The second act was entitled “An act to donate to the St. Francis Levee District all the lands of this State within the limits of said levee district, and for other purposes. ’ ’ By this act it was provided that, for the purpose of assisting the citizens of the State to build and maintain a levee along the St. Francis front, and in consideration of the general good of the State, “that all the lands of this State lying within said levee district, except the 16th section school lands, and all the right or interest the State has or may have within the next five years, by reason of forfeiture for taxes or to any lands within said levee district, except said 16th section school lands, is hereby conveyed to said levee district,” under certain restrictions and limitations, which related to the 'classification and disposition thereof.

It thus appears that, after creating the levee district, the State granted to it, in aid of the proposed improvement, all of the lands in the district belonging to the State except 16th section school lands.

The grant was in the broadest terms, and operated as a present grant by the State of all State lands lying in the levee district except only 16th section school lands. This grant would, of course, include islands in the Mississippi River belonging to the State, if such lands were within the boundaries of the levee district and were not school lands. It therefore remains only to determine whether Dean’s Island lies within the St. Francis Levee District.

The question now under consideration was expressly decided by the District Court of the United States for the Eastern District of Arkansas, and by the Circuit Court of Appeals for the Eighth Circuit, upon an appeal from the decision of the district court, in the case of Lightfoot v. Williamson, 282 Fed. 592. The parties to that litigation claimed an island in the Mississippi River opposite Mississippi County. The plaintiff claimed under a deed from the State made pursuant to the act of March 21, 1917 (Acts 1917, p. 1468), which appears as §§ 6796 to 6802, both inclusive, C. & M. Digest. By these sections it was declared that islands which had formed in the navigable rivers of the State subsequent to the admission of the State were the property of the State, and were subject to sale and disposition in the manner provided by the act. The plaintiff in that case had obtained a deed from the State Land Commissioner pursuant to this act. The defendant claimed under a quitclaim deed from the St. Francis Levee District, and it was alleged that the levee district had acquired the title under the acts of 1893, above referred to.

After finding that the boundaries of the levee district was the decisive question in the case, the court said: “The east meander line of the levee district is ‘along said right bank of the Mississippi River.’ With this as the meander line, how far did the grant extend ? The act of March 21,1893, said the grant should contain ‘all that area which has heretofore at any time, either directly or indirectly, overflowed by water from the Mississippi River.’ The grant from the State to the levee district, iceording to all the authorities, extended to the middle of the Mississippi River, the eastern boundary of Mississippi County, the levee district, and the State of Arkansas. ’ ’

Upon this construction the court held that the State had .parted with its title by its grant to the levee district.

This adjudication is not, of course, binding on us, but it is highly persuasive, as the exact question presented here was decided there.

It is a matter of common knowledge that the islands in the Mississippi River are subject to overflow. The Gfeneral Assembly defined the northern and southern boundaries of the levee district, and made the Mississippi River the eastern boundary of the levee district, 'and, by doing this, we think it was the purpose of the General Assembly to make the eastern boundary of the State coincident with that of the levee district between the. southern point, where the boundary of the levee district begins, and the point where the northern boundary line ended, and, if this be true, the State’s, title to islands in the Mississippi River which were not 16th section school lands lying between the southern and the northern boundaries of the levee district passed to the levee district by the donation act of 1893, supra.

The demurrer to the complaint was therefore properly sustained, and the decree of the chancery court is affirmed.


text:
    United Order of Good Samaritans v. Brooks.
    Opinion delivered April 13, 1925.
    1. Judgment — validity op default judgment. — A judgment by-default rendered after the time fixed by statute (Crawford & Moses’ Dig., §6092) for answer held not void ¡because the summons stated that the complaint would be taken -as confessed unless answered within 20 days (instead of 30 days) from service of summons, where defendant failed to plead within 30 days.
    2. Judgment — default judgment — mekitorious defense. — A motion to vacate a judgment 'by default must allege a meritorious defense to the cause of action.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      J. E. Booker, for appellant.

      T. J. Moher, for appellee.
   Smith, J.

Appellant is a fraternal benefit society, organized and doing business under the laws of this State, and was the defendant in a suit brought by appellee to recover on a benefit certificate which it had issued. ,

The suit was filed on October 12,1923, and summons was served on the following day. This summons re.ad that an answer was required of the defendant “ within twenty days from the service of the summons,” or the complaint will be taken as confessed.

The suit was brought to the January, 1924, term of the Arkansas Circuit Court, Southern District, and, on the 21st day of January, the cause was heard before a jury, and a verdict was rendered in favor of the plaintiff for the face of the benefit certificate, and judgment was pronounced accordingly. On the following day the defendant appeared and filed a motion to set aside the judgment and to quash the service. This motion was overruled, and the defendant society has appealed.

There is no bill of exceptions in the case, and the sole question presented is whether the court should have vacated the judgment and quashed the summons.

Section 6092, 0. & M. Digest, provides the method of service of process on fraternal benefit societies such as the appellant company is, and, by this section, it is provided that “no such service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading or defense in less than thirty days from the date of mailing the copy of such service to such society.”

We think there was no violation of this statute in the rendition of the judgment appealed from. The recitals of the summons were not effective to abridge the length of time given to plead, but it could and did apprise the defendant of the pendency of the action, and could not be ignored because of the erroneous recital that the allegations of the complaint would be taken as confessed after twenty days. The law gave the defendant thirty days in which to plead, and it was not in default until the expiration of that time. But the law gave only thirty days for that purpose, and this time was not extended by the erroneous recital contained in the summons.

The defendant knew, when the summons was served, that its time could not be shortened to twenty days, because the statute required a service of thirty days, but the defendant must also have known that the service would be complete after thirty days, because the statute so provides.

The defendant had full thirty days in which to plead, but failed to avail itself of this right. As a matter of fact, the judgment was not rendered until the 88th day after the service of the summons. Moreover, the defendant did not allege that it had a meritorious defense to plaintiff’s cause of action. Sovereign Camp Woodmen of the World v. Wilson, 136 Ark. 546.

The present appeal is planted on the proposition that, inasmuch as the summons required that defendant plead within twenty days, it was not served at all, and the court acquired no jurisdiction to render judgment at anytime.

Such was not the purpose of the statute. The summons advised the defendant where it was sued and the term of court in which it would be required to answer, and the law gave it thirty days in which to file such pleading as was thought appropriate. That time, and more, was afforded, and defendant was in default when the judgment was rendered, and the court committed no error in refusing to vacate the judgment, and it is therefore affirmed.