text:
    Wooton v. Keaton.
    Opinion delivered May 25, 1925.
    1. Gifts — when title passes. — The title to a gift inter vivos passes at once when the property is delivered to the donee or to some one else for his benefit.
    2. Dowek in personalty — not vested right. — Although Crawford & Moses’ Big., § 3535, provides for dower in personalty, it is not a vested, right in such property, and the Legislature may increase or diminish it or wholly take it away.
    3. Descent and distribution — right of disposition of personalty. —The owner of personal property may dispose of it at will during his life as against the rights of his wife and children' under Crawford & Moses’ Dig., §,3471, relating to.the distribution of such property of which he dies.possessed. -
    4. Evidence — declarations of donor. — A donor’s declarations, made after transfer of title, in derogation of such title, is inadmissible against the donee, being mere hearsay and not admissible as part of res gestae nor as declarations against present interest.
    5. Evidence — declarations of donor. — To make the declarations of ■a donor admissible against a donee, they must have been made' during the time the interest in the property was vested in such ■ donior.
    6. Gifts — donee's title. — Title to money given to defendant ■ held not affected by her assertion that she earned it, and that it belonged to her on that account, although it might affect her credibility as a witness.
    7. Gifts — evidence.—The fact that deceased collected interest bn money which he had given to defendant with whom he' was living held not to overcome positive evidence of the depositary of the money that deceased gave it to defendant.
    8. Gifts — title.—That the donee of money lived in an ’apparent state of concubinage with her donor did not affect her title to the money.
    9. Appeal and error — conclusiveness of chancellor’s finding.— A chancellor’s finding of fact will he upheld if.not against the preponderance of th§ evidence.
    10. Trust — sufficiency of proof. — Parol evidence to establish a resulting trust must be clear, positive and satisfactory.
    Appeal from. Garland Chancery. Court; J. P. Henderson, Chancellor;
    affirmed.

      STATEMENT OE FACTS.
    Appellants brought this suit in equity against appellees to have certain real estate and personal property declared to belong to the estate of J. W. Fulton, deceased, and to establish their rights as widow and sole heirs-at-law of said decedent.
    The suit was defended on the ground that the property belonged to Ella Keaton, one of the appellees. So far as is necessary to decide the issues raised by the appeal in this case, the facts may, be briefly summarized as follows: . ,.
    In September, 1874, William J. Fulton married Martha Estes, in Clark 'County, Arkansas. The chief occupation of William J. Fulton was in constructing roadbeds for railroads under contracts with the principal contractors. While engaged in that occupation he lived in various parts of Arkansas, Oklahoma, Texas, Louisiana, and Mississippi., Three children were born as the fruits of his marriage to Martha Estes. William J. Fulton died intestate in G-arland County, Arkansas, in the month of December, 1920. At the time of his death he was known as J. W. Fulton. Several years after his marriage, J. W. Fulton sent his wife and three children to stay with some of his relatives in the State of Virginia, and he did not thereafter live with them. He continued, however, to make contributions to their support until all of his children were grown. Some time before he sent his wife and children' to Virginia, Fulton formed an attachment for Ella Kieaton, who had negro blood in her veins, and lived with her for thirty-six years and until his death. His widow and children, who are the appellants here, were plaintiffs in the chancery court, and Ella Keaton was the principal defendant. Henry Thane and the Desha Bank & Trust Company were also made defendants, on the ground that they had in their possession something over $29,000 of money which belonged to Fulton at the date of his death, and which was claimed by Ella Keaton.

      On the part of- the. bank it was shown that neither Fulton nor Ella Keaton had any money deposited in said bank at the time Fulton died. Henry Thane admitted that he had in his possession something over $29,000,-which he said belonged to Ella Keaton. He admitted that he had been paying the interest monthly, and had paid it to Fulton.
    According to the testimony of Ella Keaton, she had lived with J. W. Fulton as she knew him for thirty-six. years, and he had paid her wages during all of that time. She had dealt in real estate with her earnings, and had made the money which she had deposited with Henry Thane. She admitted that she had deposited it' with him because Fulton had advised her to do so. For several years, during the latter part of his life, Fulton was afflicted- with sores of a cancerous nature, and she not only cooked and kept house for him, but daily dressed his sores. She further testified that Fulton-lost all of his property, and that she used the income from-her property to support them both. Other facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of the appel-lees, and it was decreed that the bill of appellants should be dismissed for want of'equity. The case is here on appeal.

      Martin, Wooton & Martin and St. John'S Gore, for appellant.

      G. T. Gotham and Gibson Witt, for.appellee. ,
   Hart, J.,

(after stating the facts). It is fairly inferable from the facts as they appear -in the record that appellants are the widow and children of J. W. Fulton, deceased, who died intestate in G-arland County, Arkansas, in December, 1920, and that Fulton had not lived with them for nearly thirty-six years before his death. It also appears from the record that Ella Keaton lived with Fulton for thirty-six years before his death. ’ At the time of Fulton's death, Henry Thane, who was the president of the Desha Bank & Trust .Company, had in Ms hands over $29,000, which both he and Ella Keaton testified belonged to her. They admitted that the inter- ■ est was paid monthly to Fnlton, but say that this was done because Ella Keaton lived with Fulton, and he had always acted.as agent for her.

According to the testimony of Ella Keaton, she first earned some money by cooldng for Fulton and the hands employed, by him. in railroad construction work. She invested the money earned by her in-a farm, and sold it. for a profit. She continued to invest in farm lands, and made additional money by farming and by selling.her farms at a profit.

Evidence was adduced by appellants tending to show that the money in the hands of Henry Thane at the time of Fulton’s death had been earned by Fulton, and belonged to- him at the time it was deposited with Thane.

In this connection it may be stated that,- so far as the record discloses, a part of this money had been earned by Ella Keaton and a part of it by Fulton himself. Be that as it may, however, for.the purposes of this decision we have assumed that the money deposited with Henry Thane once belonged to Fulton. Both the testimony of Henry Thane and Ella Keaton, however, show that, when the money was deposited with Thane, it was deposited with him as the money of Ella Keaton. The first question then which presents itself is whether or not this could be done and the marital rights of the widow and cMldren' o.f decedent be . thereby divested of them. The money was deposited with Thane in 1908 and 1909, and Fulton died in 1920. Our statute provides that a widow shall be entitled, as part of her dower, absolutely and in her own right, to one-third part of the personal estate whereof the husband died seized or possessed. Crawford & Moses’ Digest, § 3535.

Under our statute of descents and distributions, whenever any person shall die having title to any personal or real estate not disposed of; and shall be intestate as to such estate, it shall descend and be distributed, subject to the payment of his debts and the widow’s dower, in the following manner; first to his children or their descendants in equal parts. Crawford & Moses’ Digest, § 3471. • •

In the case of Hatcher v. Buford, 60 Ark. 169, it was held that, under our dower statute, property conveyed by the husband by gift causa mortis is subject to the widow’s right of dower. The reason given was that, in the case of -a gift caus'a .mortis-, the donor dies seized and possessed of the property so conveyed, and 1 that, under our statute, the right of the widow .to dower attaches before the estate by gift caus'a mortis vests in the donee. In that case, however, it was expressly recognized that the rule was diíferént as to a gift inter vivos. The reason is that, in such case, the title passes at once when the property is delivered to the donee or some one else for his benefit. The court expressly said that the owner of personal property has the right to dispose of it during his life as he pleases, and that the title passes when the gift is-made. For this reason the donee’s rights are superior to those of the widow, because her right to dower does not become vested until.the husband’s death. The court adopted the view that the ques,tion of fraud could not.be predicated upon such a gift, and cited in support of its conclusion and reasoning on the question the cases of Lines v. Lines, 142 Pa. St. 149, and Pringle v. Pringle, 59 Pa. St., 281. Mr. Justice Shars-wood, who delivered the opinion in the case last cited, said that, at common law, a man who is sui juris- and compos mentis may give away all his personal property, so as to become himself and leave his wife and children penniless, and cited in support of tlie holding Blaekstone’s Commentaries and Kent’s Commentaries.

In this connection it may be stated that the text ,of both of these learned commentators sustains the proposi-ion. Of course the wife might prevent the disposition of it by asserting her marital rights by way of alimony, where the husband had deserted or failed to support her. Since the wife’s right of dower is not a vested right in property, it is upon the same.footing with the expectancy of heirs before the death of the ancestor, and the-Legislature may increase, diminish, or wholly take it away. Randall v. Kreiger, 23 Wall. (U. S.) 138; Hatcher v. Buford, 60 Ark. 169, and case note to 12 Ann. Cas. at p. 191.

The language of our statute of descents and distributions is that personal property not disposed of shall descend first to the children of the intestate. Hence, with greater reason, if the owner, of personal property should make a gift inter vivos, the title would pass during his lifetime, and his children could not set aside the gift. If the Legislature can act in the premises at its pleasure, it is manifest that the owner of property can dispose of his personal property at his own will during his life in so far as the rights of his widow and children are concerned.

But it is insisted by counsel for appellants that the evidence shows that the money in the hands of Henry Thane 'belonged to J. W. Fulton. Both Henry Thane and Ella Keaton testified that the money was given to him as the property of Ella Keaton. Ella Keaton was present when the money at the various times was turned over to Thane. These witnesses were introduced by appellants; but counsel for appellants claim that they were both hostile'witnesses, and insist that their evidence was contradicted by the declarations of J. W. Fulton to other parties. The declarations referred to were made by Fulton after the money had been deposited with Henry Thane as the money of Ella Keaton.

"This court is committed to the doctrine that the declarations of one from whom a party obtains title to property, made after the transfer of title and in derogation of that title, is inadmissible in evidence against the latter; To make a declaration of one from whom a party obtains’ title -to property admissible in evidence against the latter, it must have been made during the time an interest in the property was vested in the person making the. declaration. Bispham v. Turner, 83 Ark. 331; Brown v. Brown, 134 Ark. 380; and Jefferson v. Souter, 150 Ark. 55.

Statements made by the donor of real- or personal property are not receivable in evidence as admissions against the donee. The reason is that the. declarations of a donor in disparagement of the title made subsequent to the full execution of a deed or gift are mere hearsay.Thy are neither a part of the res gestae nor declarations against the present interest. See case-note-to 1 A. L. R. at p. 1240. In the same case-note it is said that statements derogatory of title, made-subsequent to a complete gift of personal property, are inadmissible as against the donee, and numerous cases are cited to support the rule. Among those sustaining the rule we cite the follow-. ing: Tierney v. Fitzpatrick, 195 N. Y. 433, 88 N. E. 750; Bennett v. Cook, 28 S. C. 353, 6 S. E. 28; Brock v. Brock, 92 Va. 173, 23 S. E. 224; First Nat. Bank v. Yoeman, 17 Okla. 613, 90 Pac. 412; Hicks v. Forrest, 41 N. C. 528; Hilton v. Rahr, 161 Wis. 619, 155 N. W. 116: Dixon v. Labry (Ky.), 29 S. W. 21; Echols v. Barrett, 6 Ga. 443; Cornett v. Fain, 33 Ga. 219; Francoeur v. Beatty, 170 Cal. 740, 151 Pac. 123; and Walden v. Purvis, 73 Cal. 518, 15 Pac. 91.

In the latter ease it was held that declarations made by a donor of personal property, after he had parted with the property, are inadmissible in evidence against the donee, either to prove fraud or any other fact in avoidance of the gift. In some of these cases it may be stated that the courts sav that an exception to the general rule may be made in cases where the main evidence of the donee to support his title to the property are' the declarations of the donor.

The evidence for appellees in- the present case does not in any sense make this exception applicable, even if' it could be said to be the law, and- ivpon this point we express no opinion, for the evidence of the donee to support her title to the money is evidence of facts of which-the witnesses had personal knowledge, and are riot the declarations of the donor that he had given the money • to the donee. In short, both Henry Thane and - Ella Keaton testified in positive terms that the money in question was deposited with Henry Thane as her money. '

It is insisted, however, that, inasmuch as Ella Keaton claimed that she had earned the money, it would he inconsistent with this theory to allow her to hold it as a gift from Fulton. This fact, however, could not affect her title to the moiiey, but would only go to her credibility as a witness. As we have already seen, under the law she ■ would be as much entitled to the money as a coriipleted gift from Fulton during his lifetime as if she had earned the money herself. Even if her testimony ' should be wholly diserédited, there remains the testimony of Henry Thane to support her title to the money. He is wholly disinterested in the matter, and simply holds the money as a depositary for its owner. He testified in positive language that the money was delivered to him as the property of Ella Keaton. There is nothing to contradict his testimony in this behalf, except the fact that Fulton , collected the interest. "We do not think this fact is sufficient to overcome his positive testimony that the money was deposited with him as the money of Ella Keatoh.

It appears that Fulton became afflicted with sores of a cancerous nature and became entirely dependent upon Ella Keaton to take care of him and to support him for several years before his death. Of course this is no ' justification or excuse for the long continued state of concubinage between Fulton and Ella Keaton, which is inferable from the record; but this could not affect her legal rights in the premises. Their relationship prompted her to make him her agent for the collection of the interest bn her money from Henry Thane. Therefore the finding of the chancellor in her.favor on this point is not against the preponderance of the evidence, and, under the settled rules of this court, must be upheld on appeal.

It is next insisted that there is ■ a resulting trust in favor of appellants to a piece of property conveyed to Ella Keaton by Jás.. Housley in 1912., According to the testimony of Housley, Fulton made the trade for the property and agreed to pay him $4,000 for it. Fulton directed Housley to make the deed to Ella Keaton, and this was done. The sum of $4,000 was paid’ to Housley in the presence of Ella. Keaton. She testified that the money belonged to her, and told how she obtained it by the sale of other property, which she had paid for by wages which she had received from Fulton before he became afflicted and before he lost his property.

Thus it will be seen that the undisputed evidence shows that the title to the property was placed in Ella Keaton at the time of its purchase by the express direction of Fulton, and there is nothing in the record which tends to show that he intended a resulting trust in his own favor. It is well settled that a resulting trust in land may be established by parol evidence, but the evidence must be clear, positive and satisfactory. Greer v. Greer, 155 Ark. 235, and cases, cited,

, The decision of the- chancellor was correct, and the decree will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J. HumphReys, J., Smith, J.,

license: Public Domain

text:
    Russell v. Cone.
    Opinion delivered May 25, 1925.
    1. States^-appointment op legislative committee. — Amendment 8, to the Constitution, fixing the per diem of members of the Legislature, does not deprive the Legislature of the power to appoint committees to serve after expiration of the session to complete its records. - '•
    2. States — validity op stamp allowancé to, coMMiTTEE.^Acts. 1925, No. 167, allowing members of. a coipmittee appointed to complete the work of the Legislature after adjournment $1 per day in stamps in addition to $6 per day in money, was not invalid; the compensation for' services on "sufch' committee not being prescribed or limited by the Constitution. I

      3.- ¡Constitutional law — legislative question. — Whether a committee of ^unnecessary size was appointed by. Acts 1925, No. 167, to complete the work of the Legislature after adjournment is a political question to be decided by the Legislature in enacting and by the Governor in approving the bill, not by the court, which ■ cannot review questions involving only legislative discretion.
    4. Officers — appointment of legislators. — Acts 1925, No. 167, appointing a legislative cqmmittee to complete, the records after expiration of the session, held not in conflict with Const., art. 5, § 10, as ’ creating new offices and appointing members of the Legislature thereto; the act merely imposing'additional duties' upon the members of the committee.
    Appeal from Pulaski Chancery Court; John E. Martin,eau, Chancellor;
    affirmed.

      Emerson é Donham, for ¡appellant.

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

Appellant filed a complaint in the Pulaski Chancery Court, alleging that he was a citizen and taxpayer of the State, and.that the defendants, Cone and Sloan, were respectively the Auditor and the. Treasurer of the State. That the General Assembly, at its regular 1925 session, had, by act No. Í67, entitled “An act for. the completion of the records of the work of the Forty-Fifth General Assembly,” provided and required that seventeen members of the Senate of the said Assembly and seventeen members of tbe House of Representatives of the Assembly should remain on duty as members of such Assembly after adjourning on March 12, 1925, for a period of time expiring not later than April 23, 1925, for the purpose of completing the work of the Assembly, and that, for sncb services, sixteen of said ¡senators and sixteen of the representatives should receive the sum of $6 each per day, and that the president of the Senate and the Speaker of the House of Representatives, who were made members of said committee, should receive $8 each per day, and ¡all of said senators and representatives should receive, in addition, the sum of. $1 per day for .stamps during the time of their said service

It was further alleged that vouchers covering such services had been presented to the Auditor, who- would issue warrants thereon, which the Treasurer of the State would cash, unless they were enjoined from so- doing, and there was a prayer that the Auditor and .Treasurer be enjoined from so doing.

By an amendment to the complaint it was alleged that none of said senators and representatives who-were named in said -act 167 had, in fact, performed any services whatever, and that there was no occasion or necessity for the appointment of said committee, and that the act was a mere subterfuge wihereby the said senators and representatives might draAV money from the State treasury, in violation of the Constitution of the State.

To this complaint and amendment thereto an answer was filed, denying, in genera.1 terms, the 'allegations thereof, and a demurrer was also filed, alleging that the complaint did not state a cause of action.

The complaint also contained allegations to the effect that the bill was not properly passed, to which an answer was filed denying that allegation, but, at the hearing, it was stipulated that the journals of both the Senate and the House of Representatives disclosed that act 167 was properly passed and had been duly signed and approved by the G-overnor, and this allegation has therefore been abandoned.

Testimony was offered and was heard by the chancellor at the trial as to the services performed by said committee, .and the court found the fact to be that said act was not a subterfuge, and that services were performed by the members of the committee named in said- act,- and the complaint was dismissed as being without equity, and the plaintiff has appealed.

Without reviewing the testimony heard by the court below, it may be summarized by saying that it was to the effect that only a few of the senators -or representatives could or did work at any one time, and that a number of them, had done no work at vany time, yet all of them had received vouchers, entitling them -to warrants from the Auditor of State, which would he paid ¡by the Treasurer of the State out of the appropriation made by-the General Assembly for .that purpose. •

. In this-connection it may also be.said'that the act under review provided that, in- addition .to the senators :and. .representatives -who-were named, in ,the act, the Secretary of -the Senate, with two assistant secretaries, the journal clerk, with two assistants, the bill clerk, the enrolling clerk, and one assistant, and nineteen extra clerical'helpers who had been named by the president of the Senate, should likewise be employed, and that a like number of employees on the part of the House were also provided for. A grand total of forty-six persons on the part of the Senate and a like number on the part, of the House were thus provided for by the act.

The testimony shows that- only .fifteen’ days were required to enrqlh.the bills for presentation ito the Governor, and that a comparatively, small number of persons could have, performed this service within that tim'e. No injunction was prayed in regard to paying these clerks, and the court.made no order ini, regard to-them.

It is insisted, for the -reversal of the decree of the court-below, that the act is unconstitutional and void, for the reason that there is no authority in law for the appointment of members of the General Assembly after the adjournment of the session thereof, and further, that it is apparent, from the very number of members appointed in comparison with the amount of work which they-might perform, that the act was a mere subterfuge to increase, the compensation of the members named in the act beyond that allowed by the Constitution,- and that the act is therefore unconstitutional -and void: : > -

We think'the-'controlling question in the-case-, so far as’this appeal is concerned, is the power of the Legislature to appoint the committee at-all. : •

This question was first considered in the case of Dow v. Beidelman, 49 Ark. 325, where the court had occasion to construe article 6, § 15, of the 'Constitution, which, reads as follows: “Every hill which shall have passed both houses of the General Assembly shall be presented to the Governor; if lie approves it, he shall sign it; but, if he shall not approve it, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal, and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered; and, if approved by a majority of the whole number elected to that house, it shall be a law; but, in such cases, the vote of both houses shall be determined by ‘yeas’ and ‘nays,’ and the names of the members voting for or against the bill shall be .entered on the journals. If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State, and give notice thereof by public proclamation within twenty days after such adjournment.”

In construing this section of the Constitution the court there said: “Nothing in this language implies that all bills must be transmitted to the Governor before the adjournment of the Assembly. He is prevented by the adjournment from returning the bill, whether the bill is in his hands before it adjourns or reaches his hands afterwards. The term of members does not expire when it adjourns, nor do all the functions and powers of its officers then cease. It may often happen, in the case of bills passed in the closing hours of a session, that there is not sufficient time to enroll them properly and present them to the executive before an adjournment takes place. The effect is not that, under the circumstances, the bill fails to become a law. Our constitutional provision differs materially in this respect from § 7 of article 1 of the Constitution of the United States.”

This question was next considered in the case of Tipton v. Parker, 71 Ark. 193, in which case the validity of a warrant issued to a member of the Senate for services performed on a committee after the adjournment of the session of the General Assembly was involved. The committee had been appointed under a resolution which directed that the members thereof should receive the same pay as when the Legislature was in session. The warrant was held invalid, but this was done only because the committee was provided for by resolution, and not by a bill regularly passed and which had been approved and had become a law. The court there said: “The committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law; and it is not within the power of either house of the General Assembly to separately enact a law, or pass á resolution having the force and effect of a law. To do this requires a majority of each house voting in its favor. Const. 1874, art. 5, § 23. The only legitimate office, power or duty of a committee of the Senate, in the absence of a law prescribing other functions and duties, is to furnish the Senate which appointed it with information, and to aid it in the discharge of its duties. The Senate alone has no power to appoint a committee to make an investigation after its adjournment and to make a report to another department of the government or to another session of the Senate or General Assembly. Ordronaux, Cons. Leg. p. 375.”

In the case of Monroe v. Green, 71 Ark. 527, § 15 of article 6 of the Constitution was again considered. The case involved the time and manner within which bills must be presented to the Governor for his consideration after the adjournment of the Legislature. The joint rules of the House and Senate relating to the enrollment and presentation of bills to the Governor were set out in extenso in the majority opinion, which was written by Mr. Justice Hughes. These rules are identical, or substantially so, with the ones in force during the 1925 session of the General Assembly.

The right and duty of the Legislature to have bills enrolled for presentation to the Governor, and to do this with the aid of clerical assistance, was expressly recognized, although the right of the Governor to waive this requirement was also recognized.

There were four opinions in this case, two of which were concurring opinions. The fourth and last was a dissenting opinion by Chief Justice Bunn, but, in all four of the opinions, the right of committees of the General Assembly to serve and to perform the functions for which they were constituted after the adjournment of the Legislature appointing them was expressly recognized.

Chief Justice Bunn took occasion to say that, if the question were open for decision, he would hold otherwise, but he stated that it had been so held in the case of Dow v. Beidelmam, supra, and that this decision had so long been acquiesced in that great confusion and injustice would prevail if that decision were not followed.

As pointed out by Chief Justice Bunn, the case of Dow v. Beidelman was then sixteen years old, and twenty-two additional years of acquiescence have since elapsed, so that the confusion and injustice to which he referred would, at this date, be much augmented if Dow v. Beidelman were not followed as correctly declaring the power of the General Assembly in the matter of enrolling bills and of presenting them to the Governor for his action thereon.

It is insisted, however, that, since the adoption of Amendment No. 8 to our 'Constitution, members of the General Assembly cannot serve on committees of the Legislature after the adjournment thereof, and that, if they do so serve, they can receive no pay for such services. This amendment reads as follows: “Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any regular session of the General Assembly, and, if any regular session shall be extended, such members shall serve without further per diem. Each member of the General Assembly shall also receive ten cents per mile for each mile traveled in going to and returning from the seat of government, over the most direct and practicable route. • When convened in extraordinary session by the Governor, they shall each receive three dollars per day for their services during the first 'fifteen days, and, if such extraordinary session shall extend beyond fifteen days, they shall receive no further per diem. They shall be entitled to the same mileage for any extraordinary session, as herein provided for regular sessions. The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as herein provided. ” ■ : ,

It is insisted that the necessary effect and the purpose of act 167 was to increase the compensation of the members of the committee, and that the act is void as offending against Amendment No. 8, set out above. It is insisted- that this results from the decision of this court in the case of Ashton v. Ferguson, 164 Ark. 254.

In the case last mentioned each house had passed a resolution directing its chief clerical officer to issue warrants to all the members in the sum of a hundred dollars, covering stamps, telegrams and other incidental expenses incurred while attending the session of the Legislature. We held that those resolutions provided for an allowance or perquisite or additional compensation within the fhean-ing of Amendment No. 8, and that the resolutions were therefore void. ¡But the resolutions so held void related to the compensation of the members during a session of the General Assembly, while act 167 relates to the compensation of members of the Legislature serving as committees of the Legislature after the adjournment thereof.

Amendment No. 8 limits the terms of regular sessions to sixty days, and ^provides that, if a regular session is extended beyond that time, the members shall serve without further per diem. It likewise provides mileage which shall be paid each member who attends a regular session.

The amendment next deals with extraordinary sessions of the General Assembly, and provides that the members, when so convened, shall receive $3 per day for the first fifteen days of such a session, and that, if the extraordinary session is extended beyond fifteen days, the members shall receive no further per diem. The same mileage is allowed members who attend an extraordinary session as is allowed at a regular session.

•Amendment No. 8 did not attempt to deal with any subject whatever except the length of the regular session and the per diem and mileage of the members during such regular session and the mileage and per diem of the members for any extraordinary session which might be called by the Governor.

In the case of Hodges v. Dawdy, 104 Ark. 583, in construing an amendment which had been adopted to the Constitution, the court said: “The amendment being the last expression of the popular will in shaping the organic laws of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a ‘fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.’ State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation.”

"We find nothing in this amendment which deprived the Legislature of the power which the decisions rendered prior to its adoption declared the Legislature possessed, of appointing committees which, might serve after the expiration- of a session.

The case of Ashton v. Ferguson, supra, which is relied upon by counsel for appellant, dealt with compensation of members serving as snch during a session of the Legislature, and, as the resolutions under review in'that case increased the compensation for such services, they were declared void as conflicting with Amendment No. 8.

The case- of Dickinson v. Johnson, 117 Ark. 582, was decided April 19, 1915, which was, of course, subsequent to the adoption of Amendment No. 8. In that case the Legislature, at its 1915 -session, passed a concurrent resolution which provided that certain members of the House and Senate should constitute a committee to audit the several departments and the different institutions of the State. The resolution further -provided-“that the said committee shall for their work receive the same per diem allowed to members of the General Assembly, and the expenses of the said committee and the expert accountants, auditors, stenographers, employed by them, and printing and postage, shall be paid out of the contingent expenses of the General Assemblv. upon vouchers issued by the secretary of Senate directed to the Auditor, who shall draw his warrant on the Treasurer, wlio shall pay the same. ’ ’

We there affirmed the decree of the chancery court enjoining the Auditor from issuing and the Treasurer from paying any warrants for expenses incurred under this concurrent resolution, but this was done because the committee was provided for by a resolution, and not by a bill for that purpose, regularly passed and approved by the Governor. . .

■ • We there.said that it was peculiarly appropriate, in the interest of economy and honesty in all the departments of government, that such an investigation should be made as the resolution provided for.

It was there further said: “The committees were the agencies of the General Assembly which created them, and, so long as the Legislature was in session, it had full control over them. When it became apparent, near the close of the session, that the committees would not have time to make the investigation and procure the information contemplated for the purposes of any present legislation, it was not only within the power of the Legislature, but was a proper exercise of that power, for it to continue the work of the investigation for the information of the Governor and the public generally, and as a guide for any future legislation that might be necessary. Rut this continuation or reappointment of the committees for the important work outlined for them after the adjournment of the Legislature was not a proper subject-matter for concurrent resolution. It could only be done by a bill enacting a law to that effect. * * *

“In the instant case the Legislature attempted to do by concurrent resolution that which they had no power to do, but which they did have the power to do by an act, as was done In re Duvis, 49 Pac. 160 (Kan.).”

There was involved in that case not only the power of the General Assembly to appoint committees which might serve after the adjournment of a session of the General Assembly by concurrent resolution, but also the power to pay for such services out of the fund provided to meet the contingent expenses of the Legislature.

In disposing of this last question we said that the decision that such’ committees could be appointed by a bill, but not by a resolution, made it unnecessary to decide the second question, but, in view of the public importance of the question, we proceeded to do so. In the decision of this question it rvas said: “When the Legislature of 1915 adjourned sine die, there could be no future contingent expenses of that Legislature except those that were necessary to enroll and put in shape for publication the laws that had been already enacted. It would be a contradiction in terms to say that there could be contingent expenses of a Legislature after that Legislature had ceased to exist.”

“The act making appropriations lor contingent expenses of the Legislature nowhere makes appropriation, as was said In re Davis, supra, for the payment of expenses of committees that had been continued for the purpose of making investigations: Article 5, § 29, of the Constitution provides: ‘No money shall he drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill. ’

“Even if the Legislature, by concurrent resolution, could have continued its committees after final adjournment, it could not by resolution, under the above provision of the Constitution, appropriate the money necessary for the payment of the expenses of such committees out of the funds appropriated to pay the contingent expenses of the Legislature. To do this would have required a bill making the specific appropriation (citing cases).”

It thus appears that the case of Dickson v. Johnson, supra, decided that committees might be appointed to serve after the adjournment of the session which appointed them, and that the members of the •committee may be compensated for such services, but that this could be done only by a bill, and not by a resolution.

It is pointed out that act 167 allowed the members of the committee a dollar each per day in stamps, and that the testimony taken at the trial shows that they were required to perform no duty which made these stamps necessary, and that, as the act allowed six dollars per day in money, which is the compensation allowed by Amendment No. 8 for members during a regular session, the act is void because of this additional allowance of a dollar per day.

The answer to this contention is, however, that the members were serving, not as members of the Legislature in session, but as a committee of the Legislature after the adjournment of the session, and the compensation for such services not having been prescribed and limited by the Constitution, might be fixed at such sum as the General Assembly saw proper.

The point has been raised in our consultation that the undisputed testimony shows that a committee of unnecessary size was appointed, and that the. right to appoint clerks was grossly abused, and that a reasonable number only could be appointed. Appellant does not raise this question, but, in view of its public importance and the fact that it forms the basis of the dissent of two of the judges, we proceed to discuss it. Dickson v. Johnson, supra.

We do not consider whether a committee of unnecessary size was appointed, as this court can determine only the power of the Legislature to appoint the 'committee at all. This is the judicial question which we have a right to decide, and have answered affirmatively. But, once this right is conceded, the size of the committee becomes a political question which we have no right to review. This is ¡a question to be decided by the General Assembly in enacting, and the Governor in approving, the bill which creates the committee.

We recognized this limitation upon our jurisdiction in the case of Ashton v. Ferguson, supra, where we said that we could only review the power of the Legislature to pass the resolutions there under review, and that, if no more was involved than the exercise of the power, “the determination of the case would be easy,” that is, there would be nothing for us to decide, as the courts cannot review questions involving, only legislative discretion.

No authorities were there cited to sustain the proposition that courts are without jurisdiction to review the discretion of the Legislature in the exercise of a power it possesses. If authority were necessary, an endless number might be cited, but the ease of Little Rock v. North Little Rock, 72 Ark. 195, will suffice. Mr. Justice RronicK, speaking for the court, there said: “It is equally clear that we cannot inquire into the motives of the Legislature in passing the act nor into the means by which they were induced to enact it. Tire- allegation in the complaint that the passage of the act was obtained in a frauds ulent and surreptitious manner cannot be considered, for we have no right to inquire into or consider such matters. If courts should enter upon such inquiries, and annul laws because they seem to be unwise or impolitic, or because improper influence was brought to bear upon the Legislature' to secure their passage, no one could rely upon any law until it had been submitted to the. courts for their approval. The adoption of such a rule would invest the courts with legislative as well as judicial powers, and would be dearly in violation of the provision of our Constitution which declares that one department of- the government shall not exercise the powers conferred upon another and different department. ” In. other cases it has been said that, if courts should usurp the function of reviewing matters of legislative discre-, tion, the laws of the land would become as uncertain as the terms of horse trade's.

The decree of the court below is correct, and is therefore affirmed.

HumphReys, J.,

(dissenting). The majority opinion announces jfche rule that the Legislature has power by bill to appoint holdover committees to complete the .journals and enroll the 'bills and present them to the Governor for his approval, or disapproval, without limitation as to number, clerical help, or compensation. It is conceded by the majority that obviously a much larger number of committeemen and 'helpers were provided for in the bill than necessary. If it had not been conceded, it is a demonstrable physical fact that it. did not require between ninety and one hundred persons to wind up the business of the Legislature. The history of the -State has revealed that the President of Senate, Speaker of the Hoxise, clerk -of the House and his regular assistants, secretary of the Senate and his regular assistants, the journal clerks and their regular assistants, the regular enrolling -committees of the two house-s and their clerks or stenographers have been sufficient in number to prepare the journals for filing and the bills for presentation to the Governor. None of the cases cited in the majority opinion lay down the rule that the Legislature has unlimited authority to create by bill unnecessary holdover committees, or to provide the committees with unnecessary employees, or to provide unreasonable compensation for them. The majority has laid down this rule in the instant case under the conviction that the Legislature has unlimited power, if it has power at all, to do a thing. It is 'believed by the majority that a legislative power may be exercised by that body in an unreasonable manner. In other words, that the Legislature has unlimited discretion to exercise any one of its powers in any manner it may please. In the opinion of the minority, this court in the past committed itself to an exactly contrary rule or doctrine. This court said in the case of Louisiana & Arkansas Railway Company v. State, 82 Ark. 12, “That the Legislature has the general power of supervision of railroads, and the power to require them to establish and maintain stations at points designated by the legislature, cannot 'be doubted. It is equally true, however, that such power must be exercised reasonably and with due regard to the rights of corporations, for they have rights Which the Legislatures as well as courts must respect. But who is to be the judge whether or not the power has been exercised reasonably or unreasonably and arbitrarily? * * * We think the

power of the Legislature in this respect, and the decree ef eonclusiveness to be accorded to its determination of the necessity and propriety of its action, are the same as in other instances where the Legislature is to determine the facts which call for direct legislation. The greatest latitude should be given to the law-making’ body in determining the necessity for its acting; but the power must not be exercised arbitrarily and without reason.” The third syllabus of the case is as follows:

“A legislative determination that a station should be erected and maintained at a certain point is conclusive unless the counts can declare, as a matter of law, that such determination is arbitrary and unreasonable.” The syBabus is taken almost bodily from an opinion of the United .States 'Supreme 'Court in the case of Norwood v. Baker, 172 U. S. 269, cited by this court in the case of Louisiana & Arkansas Railroad Company v. State, supra.

Again, this court said in the case of Coffman v. St. Francis Drainage District, 83 Ark. 54, that (quoting syllabus No. 1), “While the Legislature, in creating a drainage district, may provide what lands shall be assessed for the improvement, and the extent of such assessment, the courts will interfere where the act of the Legislature is such an arbitrary abuse of the taxing power as would .amount to-a confiscation of the property without benefit.” The same rule applies where a legislative assessment of benefits is on its face discriminatory between the different tracts of land included in the district.

Again, it has been held by this court that the Legislature has the power to determine whether the required notice was given for the passage of a local bill, and that when exercising the authority Within the power, it was a legislative question and not a judicial one; but, notwithstanding this ruling, when it became apparent or obvious that the notice could not have been given between the calling and convening of the special session of the Legislature, the court did not hesitate to say that the Legislature exceeded its authority. Booe v. Road Improvement District, 141 Ark. 140.

Mr. Justice Wood and the writer are of the opinion that the extent of or limitation upon any power which the Legislature may possess is as much a judicial question as whether it has power to do the thing; and further, whether a power possessed by the Legislature has been exercised in a reasonable manner or in an arbitrary, unreasonable manner, is also a judicial and not a political question. In the instant case we think the power was exercised in an unreasonable manner and that the act, in so far as same is unreasonable, should be declared to be void. For the reason assigned, we most respectfully dissent from the majority opinion.

Smith, J.,

(on rehearing) It is insisted in the petition for rehearing that, inasmuch as we held in the original opinion that the members of the General Assembly were serving, not as members of the Legislature in session, but as a committee of the Legislature after the adjournment of the session, the act of the Legislature is in conflict with § 10 of article 6 of the 'Constitution, which provides that “No Senator or representative shall, during the time for which he shall have been elected, be appointed or elected to any cival office under this State. ’ ’

We do not agree With counsel in this contention. The act does not create or confer an office. It was not required that the members of the General Assembly who were named as members of the committees should take an oath of office before entering upon the perform¡ance of the duties imposed upon them by the act. Certain duties were imposed upon these committee members which were not incumbent upon members of the General Assembly who were not members of the committee, but these were duties which were to be performed by the committee members as members of the General Assembly. These duties related to the work of the General Assembly of which the committee were members and were incident to their membership in the General Assembly, and there was therefore no creation of new offices.

The petition for rehearing is therefore'denied.


author: Smith, J.

text:
    Mills v. State.
    Opinion delivered May 25, 1925.
    1. CRIMINAL law — changb of vbnue. — Where persons who signed affidavits supporting a motion for change of venue testified that there was a general belief in the county that, 'because deceased was a brother of the sheriff, who was the most influential man in the county and actively interested in the prosecution, accused would not have a fair trial, it was error to refuse a change of venue, án the absence of a showing that affiants lacked information on which they based (bheir opinion, so as to warrant a finding that the affiants were not credible persons.
    2. Criminal law- — petition for change of venue — examination of affiants. — Persons making -affidavits in -support of a petition for change of venue may be examined orally before-the court, not fox the purpose of trying an -issue a-s to the truth of the allegations, but solely for the purpose of determining the credibility of the affiants.
    3. Homicide — -instruction as to. self-defense. — An instruction -that, even if accused fired the first shot in -self-defense, still if he fired the second shot when it was not necessary to defend himself, then he would he guilty of murder in the second degree or manslaughter if the second shot contributed to deceased’s death, held erroneous as making the necessity to- depend upon the viewpoint of the jury, instead of that of the accused.
    4. Criminal law — statement by accused. — Where accused, in testifying in his own behalf, denied -having made a statement sworn to by a State’s witness, it w-as error to refuse to permit him to state what he did say to the witness.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    reversed.

      J.. M. Garter, W. 11. Arnold and B. E. Garter, for appellant.

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

Appellant was indicted for" the crime of murder in the second degree, alleged to have 'been committed by shooting one Will Barber. He was found guilty of manslaughter and given a sentence of three years in the penitentiary, and has appealed.

The deceased Barber and the appellant Mills lived . near the B-ed Biver levee, and an act had been passed by the General Assembly of the State authorizing the levee directors to shoot hogs found running at large upon the levee. Dr. Barber’s hogs ran on the levee, and several of them were killed, and he suspected defendant of having killed them. Deceased became embittered against Mills, and on one occasion, .about a month before the killing, announced his intention of whipping Mills, and, after inviting several bystanders to witness the whipping, lie assaulted Mills and struck Mm over the head with a club, and.inflicted a serious wound. Mills, who was a deputy sheriff, was armed with a pistol at the time, but made no attempt to shoot Barber. Subsequent to tMs incident more of Dr. Barber’s hogs were killed, and he was shown to have made violent threats against Mills.

On the morning of the killing Mills went to a sawmill on the levee to see about some lumber. He carried his rifle with him, but explained that he was doing so for a lawful and peaceable purpose. After finishing his business he started home, and was walking in the road which ran along the banquette of the levee. As he was proceeding homeward he met Barber, who was walking on the top of the levee. Barber had recently broken his arm and had it in a sling, but, as he saw Mills, he started walking towards him down the levee, and as he walked up to Mills he was seen to be talking to him angrily.

These facts are established by the witnesses for the State, all of whom appeared to realize that a difficulty was about to OQCur, as they knew the feeling between the parties, and one of the State’s witnesses remarked that “Dr. Barber was looking for Jesus.”

There is a conflict in the testimony as to just what occurred thereafter. No witness was close enough to hear just what occurred between. the parties, but the undisputed testimony shows that Dr. Barber was seen gesticulating with his sound arm.

Mills testified that, when Dr. Barber approached, it was apparent that Dr. Barber was very angry, and he accused Mills of having shot more of his hogs. Mills testified that he denied having done so, when Dr. Barber told him he was a liar, and that he was going to kill him, and that Barber put his hand in his pocket, and he, believing Barber was about to execute his threat, raised his rifle, and, without putting it to his shoulder, commenced firing, and fired two «hots in rapid succession.. He further testified that Barber was armed, and that he saw his pistol and believed Barber was about to shoot him.

It 'was shown that Dr. Barber smoked a pipe incessantly, and the testimony on the part of the State was to the effect that Barber was unarmed at the time he was killed, that he was smoking his pipe at the time he-met Mills, and that, while talking to Mills, Barber put his pipe in his pocket, and that, as he was doing so, Mills commenced to shoot.

There was testimony on behalf of Mills that Barber was not smoking at the time the shots were fired, and that he did not have his pipe in his hand when he reached for his pocket.

Barber was a brother of the sheriff of the county where the killing occurred, and the sheriff was shown to be a man of predominant influence in the county; he employed special counsel to assist in the prosecution, and the killing appears to have been much discussed throughout the county.

. Before the trial, Mills filed a petition for a change of venue, which was in proper form. This petition was supported by the affidavits of ten persons, one of whom proved not to be a qualified elector. The remaining affiants were summoned to appear before the court for examination as to the basis of their opinion that Mills could not obtain a fair and impartial trial. One of these affiants was ill and could not attend court, but the remaining eight appeared and were examined. The first of these affiants testified that he had heard probably a hundred men who lived throughout the county discuss the case, and he had concluded, from what he had heard these men say, that Mills could not obtain a fair trial in the county. He testified that there were two factions in the county, one of which favored the sheriff, and the other opposed him, but the sheriff’s faction was overwhelmingly in the majority, and that, if one of the sheriff’s friends got on the jury, Mills would not get a fair trial, and, if one of the sheriff’s enemies got on the jury, he would not give the State á fair, trial.

Other affiants who were examined do' not appear to have beard so much about the killing, but they all testified that the killing fiad been widely discussed, and the effect of the sheriff’s participation was frequently conjectured, and the opinion was common that the sheriff’s influence and prestige would militate against Mills securing a fair and impartial trial.

These witnesses testified that they had heard the killing discussed in various townships of the county, which were named, and from which an experienced attorney, who was not shown to he connected with the trial, testified that ninety-five per cent, of the jurors were selected for the various terms of court.

, The court denied the petition for a change of venue, and this action is 'assigned as error.

'We think a showing was made upon which the venue of the case should have been changed. The witnesses .were shown to have heard discussion of the case by electors residing in various parts of the county, and it was generally known that deceased was a brother of the sheriff, who was the most influential man in the county, ¡and actively interested in the prosecution. Under this testimony a ¡change of venue should have been granted. The affiants were not shown' to have sworn with that lack of information upon which to base the opinion they expressed which would warrant the court in finding that the affiants were not credible persons.

The rule by which the trial court should be governed in passing upon an application for a change of venue in a criminal case was restated by this court in the recent ease of Spurgeon v. State, 160 Ark. 112, where we quoted from the case of Whitehead v. State, 121 Ark. 390, as follows: “ ‘The trial court exercises a judicial discretion in passing upon the credibility of the affiants, but its discretion is limited to that question. When the petition for change of venue is properly made and supported, the court has no discretion about granting the prayer thereof, whatever the opinion of the court may be as to its truthfulness. The statute provides no method by which the court may determine the credibility of the affiants, but leaves the question to the court. A number of oases, however, have approved the practice of calling the affiants and examining them as to the source and extent of their information, for the purpose of ascertaining whether or not they have sworn falsely or recklessly without sufficient information as to the state of mind of the inhabitants of the county as to the accused. But the cases also hold that the statute on this subject does not contemplate that the truth or falsity of the affidavits shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to.that question.’ ”

The testimony shows that the first shot fired inflicted only a slight flesh wound, while the second shot was almost immediately fatal, and, upon this phase of the case, the court gave, .over objection of Mills, an instruction numbered 15, which reads as follows: “Although you may believe that the defendant fired the first shot in necessary self-defense, still, if you believe the second shot was fired at a time when it was not necessary to further defend himself, then the defendant .would be guilty of murder in the second degree, or manslaughter, provided you believe the second shot contributed in any manner to the death of the deceased.”

This instruction was objected to generally at the time it was given, and the. specific objection was made that it permitted the jury, rather than the defendant, acting without fault or carelessness, to determine whether it was necessary for the defendant to fire the second shot. The instruction was erroneous in the particular indicated, and should have been modified as requested.'

After Mills had killed Dr. Barber, he went to Walter Oden, who was also a deputy sheriff, and surrendered, and Oden was asked to state what Mills said when he surrendered, and the witness answered: “A. Well, to the best of my recollection, ho said he wanted to kill him, he didn’t want to cripple him.” On his cross-examination the witness admitted that his hearing was defective, and that he might be mistaken as to what Mills had said. Oden was then asked this question: “Q. Didn’t he tell you he was crippled and he didn’t want to have any trouble with him, and he had to kill him, and isn’t that what he told you? The witness answered: “A. Well, something to that amount, that is, it was all in line there; he said something else, I disremember what it-was, but I think that’s the contention — he had to shoot him because he was afraid of him. I asked him the .particulars of it. He said he had to kill him to keep from getting killed. ’ ’

When called as a witness on his own behalf, Mills denied making the statement which the witness Oden had first attributed to him. He was then asked what he did say to Oden, and the court sustained an objection to the question, and refused Mills permission to answer. Had witness been permitted to answer the question he would have testified that what he did say to Oden at the time he surrendered was that he didn’t want to kill Barber, as he was crippled already, but he had to do so to save his own life.

We think the exclusion of this testimony was error. If is true the witness* Oden did qualify his first statement, but he did not withdraw it, and his apparent candor in admitting that he might be mistaken may have given added weight to his testimony by making it appear that he had no prejudice against Mills and no desire to do his case an injustice. The court should have permitted Mills to relate what he did say, and thus afford the jury the opportunity to consider Mills’ version of the conversation.

The rule governing such cases was stated in the case of King v. State, 117 Ark. 82, where we said: “In the case before us, the record shows that, on the former trial of the case, the defendant had testified as a witness, and admitted the killing, but the admission was accompanied bv an explanation of the circumstances attending the killing, and it is an elementary rule of law that, when admissions of a defendant in the nature of a confession are allowed in evidence against him, all that he said in that connection must also be permitted to go before the jury. That is to say, whatever explanation he may make in regard to the killing* or in regard to the circumstances attending it, are to be admitted in evidence just as much as the admission of the killing itself. The jury are the sole judges of the weight of the testimony and the credibility of the witnesses, and it was the duty of the jury to consider not only the testimony of the State to the effect that the defendant, on the former trial, had admitted the killing, hut also the explanation he made at the time as to the circumstances attending it. The jury were not required to accept or reject such testimony in its entirety, but it was their duty to accept such portions of the testimony in the whole case as it believed to be true, and to reject that which they believed to be false. Pickett v. State, 91 Ark. 570; Allison v. State, 74 Ark. 444.”

Other assignments of error are discussed, but they relate either to matters which are not likely to recur upon the retrial of the cause, or are not deemed of sufficient importance to require discussion.

But, for the errors indicated, the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial.


author: Humphreys, J.

text:
    Strum v. State.
    Opinion delivered May 25, 1925.
    1. Sodomy — distinction between sodomy and buggery. — The common-law distinction between sodomy and buggery has been practically eliminated by Crawford & Mo-ses’ Digest, § 2745, 2746, prescribing the evidence to convict and fixing the punishment.
    2. Sodomy — definition.—The crime of sodomy consists of unnatural relations between persons of the same sex, or with beasts, or between persons of different sex, but in an unnatural manner.
    3. Indictment and information — sufficiency.—An indictment is sufficient if the particular facts necessary to constitute the offense are specifically and accurately described, although erroneously named.
    4. iSodomy — persons guilty. — Under Crawford & Moses’ Dig. § 2745, the pathic as well as the agent may be convicted of buggery, on proof of actual penetration.
    5. CRIMINAL LAW — corroboration op accomplice. — The corroboration of an accomplice necessary, under Crawford & Moses’ Dig., § 3181, to sustain a conviction of felony must 'be substantial.
    6. Sodomy — corroboration of accomplice. — Testimony held insufficient to corroborate the testimony of accomplices.
    Appeal from. Clark Circuit Court; James H. McCol-lum. Judge;
    reversed.

      G. W. Matthews and J. S. Townsend, for appellant.

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

Appellant was indicted, tried and convicted in the circuit court of Clark County upon the following indictment:

“The grand jury of Clark County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, John Strum; of the crime of buggery, committed as follows, to wit: the said défendant, on the first day of January, 1925, in Clark County, Arkansas, did unlawfully and feloniously have sexual intercourse with A1 Jones, both said defendant and A1 Jones being male persons, against the peace and dignity of the State of Arkansas. ’ ’ From the judgment of conviction he has duly prosecuted an appeal to this court, insisting upon a reversal thereof on account of the alleged insufficiency of the indictment to charge a crime, and the alleged insufficiency of the evidence to support the verdict. The indictment is assailed because the crime of buggery is based upon alleged sexual intercourse between appellant and A1 Jones, both being male persons, whereas, it is claimed that said crime can only be committed by copulation between a person and a beast, and that an unnatural crime between persons is sodomy. The common-law distinction between the crimes of sodomy and buggery has been practically eliminated in this State by our statutes against such crimes, which are as follows: :

“Proof of actual penetration of the body shall be sufficient to sustain an indictment for the crime against nature.” Crawford & Moses’ Digest, § 2745.
“Every person convicted of sodomy, or buggery, shall be imprisoned in the penitentiary for a period not less than five nor more than twenty-one years. ’ ’ Crawford & Moses’ Digest, § 2746.

It will be observed that evidence necessary-to convict as well as the punishment is made the same by our statutes. In passing upon the sufficiency of an indictment for sodomy in the case of Smith v. State, 150 Ark. 265, this court quoted approvingly from Bishop’s Criminal Law and Ruling Case Law in the use of the offenses interchangeably, as follows:

“Not alone to protect the public morals, but for other reasons also, -sodomy — called sometimes buggery, sometimes the offense against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copulation by human beings with each other against nature, or with a beast — -is, though committed in secret, highly criminal. ” 1 Bishop’s Criminal Law, 1191.
“The crime of sodomy, broadly and comprehensively ■ speaking, consists of unnatural sexual relations between persons of the same sex, or with beasts, or between persons of different sex, but in an unnatural manner.” 8 R. C. L. 364, page 333.

The indictment is not only sufficient under the rule that the offenses are interchangeable, but also under the well-established rule in this State that an indictment is sufficient if the particular facts necessary to constitute the offense are specifically and accurately described, although erroneously named. Harrington v. State, 90 Ark. 596; Kelley v. State, 102 Ark. 657; Speer v. State, 130 Ark. 457; Harris v. State, 140 Ark. 46. The indictment in the case specifically charges appellant with having had sexual intercourse with A1 Jones, both of them being male persons, and it is immaterial that it is named buggery, since the name will follow the particular facts set forth in the indictment.

The evidence is attacked as being insufficient to support the verdict upon the alleged grounds, first, that there was no penetration by appellant, and second, that there was no substantial corroboration of the testimony of the accomplices in the crime who testified against appellant.

It is true that our statutes provide that actual penetration of the body shall be sufficient to convict, but this does not mean, as contended by appellant, that the pathic cannot be convicted of the crime against- nature. It means that both the agent and pathic may be convicted upon proof of actual penetration. The testimony of the accomplices was to the effect that they were the agents and appellant was the pathic in the commission of the crime.

It is provided by § 3181 of Crawford & Moses’ Digest that “a, conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.” The corroboration must be substantial. Earnest v. State, 120 Ark. 148. In the instant case the only evidence offered in corroboration of the testimony of the alleged accomplices was that B. C. Tyson, the marshal who arrested appellant. The alleged accomplices were boys sixteen and seventeen years of age, who lived at Prescott. They had been to Graysonia, and, upon their return, they had to stop over in Gurdon about an hour to make connection with their train. While waiting at the depot one of them had to attend to a call of nature, so they went into an alley in search of a water-closet. In returning to the depot by a different route they came upon the house of appellant, a stranger to them. According to their testimony, he invited them in, and, after a few moments, pnt one of them ont and induced the other to join him in the crime. Then he pnt the first one ont, and induced the second boy to do likewise. The boys testified that, after thinking the matter over, they became angry and pulled appellant out of the house for the purpose of flogging him, but that he ran, and they were chasing him down the alley, which attracted the attention of third parties, who interfered and notified the marshal. When the marshal arrived, appellant claimed the hoys had attempted to rob him, and that they were chasing him for that purpose. The boys, on being interrogated, told the story related above. While being interrogated, each claimed the old man had spit near the bed upon which each was lying immediately after the commission of each offense. The officer went to the house, and could find no sputum upon the floor, but found a little wooden box containing sawdust under the edge of the bed, in which there was something resembling semen. The marshal did not see appellant spit in the box after the occurrence, and neither did the boys. The boys testified 'that he spit over in the dark near the bed. Ño analysis was made of the liquid in the box. It is entirely conjectural as to whether appellant spit in the box immediately after the alleged occurrences, and whether the liquid was phlegm or semen. We do not think this bit of evidence amounts to substantial corroboration tending to connect appellant with the alleged crime. The story told by the boys is unreasonable to begin with, and we think the testimony of Tyson is too weak to be characterized as substantial corroboration thereof. Smith v. State, supra, is not an authority to the effect that there may be a conviction in cases of this kind on the uncorroborated testimony of accomplices. In the Smith case there was no request of the court to give an instruction relative to whether or not the prosecuting witness was an accomplice of Smith.

The judgment is therefore reversed, and the cause is dismissed.


text:
    Mutual Aid Union v. Whedbee.
    Opinion delivered May 25, 1925.
    Insurance — conclusiveness of settlement. — Where defendant company’s adjuster had -represented that the company was not liable on a benefit certificate and offered a small settlement, but plaintiff did not accept it until he had made a full independent investigation, the settlement was binding, though plaintiff thereby surrendered rights which the law would have sustained.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.

      J. V. Walker and Duty & Duty, for appellant.'

      Kin-cannon & Kinoannon, -for appellee.
   Humphreys, J.

Appellee instituted this suit against appellant in the circuit court of Sebastian County, Greenwood District, to recover an alleged balance of $854.91 on an insurance certificate issued by appellant to Mrs. Mary Cotton, in which the appellee was named as the beneficiary.

A number of defenses were interposed to the suit, one of which was an alleged settlement and release of the claim.

Appellee filed an answer denying that he compromised and settled the claim, in which it was stated that, if he executed a release, it was induced by fraud and misrepresentations of appellant’s agent.

At the conclusion of the testimony, appellant moved for an instructed verdict, which the court refused to give, over its objection and exception. On the contrary,’ lie submitted the cause to the jury upon the pleadings, testimony, and declarations of law that he regarded applicable to the facts in the case, .resulting in a verdict and consequent judgment in favor of appellee, from which is this appeal.

The undisputed facts relative to the issue of a settlement of the claim are, in substance, as follows: After the death of the insured and proof thereof, which was made for appellee by H. L. Holbrook, cashier of the Huntington State Bank, W. A. Mundell, agent and adjuster of appellant, called on Mr. Holbrook and convinced Mm that appellee could not recover on the certificate of insurance because he (appellee) was not related to the insured by consanguinity. He had the case of Home Mutual Benefit Association v. Keller, reported in 148 Ark. at page 361, with him, and interpreted it to mean that, if an insured should take out an insurance policy on the life of his son-in-law, it would be a wagering contract and void, whereas the opinion was to the effect that a son-in-law had no insurable interest in a father-in-law by reason of the relationship. The Huntington State Bank had loaned appellee $200 on the policy with which to bring his mother-in-law back from Tennessee, where she had died, for burial. Mundell said that appellant would pay the premiums with 6 per cent, interest back to appellee if he would accept same in full settlement of the claim. They thereupon went to see appellee, and Mundell stated to him that they were not liable upon the.policy under the ruling made by the Supreme Court in the Keller case. He then proposed a settlement with appellee on the basis which he had suggested to Holbrook. Appellee became abusive to Mundell, and angrily declined the offer. Holbrook had no connection whatever with appellant. . He was appellee’s friend and banker. Appel-lee and Holbrook discussed the matter on several occasions, and Holbrook, by and with the consent of appellee, sought the advice of the bank’s attorneys. The attorneys advised that appellee could not recover, whereupon appellee requested Holbrook to write to Mundell that he would accept a return of the premiums and interest, amounting to $145.09, in full settlement of the claim. This information was conveyed to Mundell about two months after his unpleasant interview with appellee. Appellant paid the amount, and received a written release of the claim.

It will be observed that, according to the undisputed facts thus detailed, appellee refused to rely upon the representations made by Mundell, but made an independent investigation and was governed by the results thereof in making the settlement. This record reflects that the parties settled the disputed claim, each relying upon his own judgment, after ample opportunity on the part of appellee to acquire a knowledge of every fact bearing upon the question of the claim. Having made an investigation to his entire satisfaction, he will not be heard to say that he was deceived. It is immaterial, under these circumstances, whether he surrendered rights that the law, if applied to, would have sustained. Mason v. Wilson, 43 Ark. 172; Gammill v. Johnson, 47 Ark. 335; Willingham v. Jordan, 75 Ark. 266; Fender v. Helterbrandt, 101 Ark. 335; Hennessy v. Baker, 137 U. S. 78.

The trial court should have instructed a verdict for appellant on the undisputed facts, and, on account of his refusal to do so, the judgment is reversed, and the cause is dismissed.


author: Humphebys, J. Hart, J. Humpi-iReys, J., Hart, J.,

text:
    Pine Bluff Company v. Bobbitt.
    Opinion delivered May 25, 1925.
    1. Electricity — failure to discover condition op wire. — Where a child was injured fey coming in contact with an electric company’s guy wire, which had become charged because a wire not 'belonging to the company was fastened to the guy wire and ■thrown across an uninsulated high-tension wire, the only issues for the jury were as to the length of time the condition had existed, and whether the company was negligent in not discovering and removing the foreign wire.
    2. Electricity — dangerous condition op wire — liability.—A requested instruction that if the wire which caused injury was placed over defendant’s electric wire and connected with its guy wire by some unknown person, so as to charge .the guy wire, thereby injuring plaintiff, and if the company did not know of such connection and could not have known of it by the exercise of ordinary care, it would not be liable, held correct.
    3. Electricity — rule as to care op wires. — The rule that electrical companies must use a high degree of care with reference to wires carrying a dangerous current of electricity to keep them .properly insulated not only applies to its own wires, but extends to prevention of the escape of dangerous current through any wires brought in contact with their own.
    4. Electricity — reasonable care — burden op proof. — Proof that a child was injured by coming in contact with an electrical company’s guy wire mlade out a prima, fade case of the company’s negligence, and the burden was bn it to show that it used ordú nary care to discover and remove a foreign wire which caused the guy wire to become charged, and could not excuse itself by simply showing- that the current was connected to the guy wire from its • tension wire through a foreign wire attached to the two by some third party.
    5. Electricity — foreign wiee-^-evidence. — In an action for injuries from contact with an electrical company’s guy wire, where the undisputed evidence exonerated the defendant company from liability for placing a wire which connected its high-tension wire with a guy wire, evidence as to how the foreign wire was placed by a third person, and the motive of placing it was properly excluded as immaterial.
    6. Evidence — acts of defendant’s agent. — In ah action for injuries from contact with an electrical company’s guy wire, evidence that an employee of the company attempted to induce a witness to admit that he had attached a foreign wire to defendant’s guy and high-tension wires on promise that the company would pay his fine held inadmissible, in absence of a showing that the employee had authority to make such agreement.
    7. Witnesses — impeachment as to collateral matter. — In an action for injuries from contact with an electrical company’s guy wire, evidence that the company’s employee attempted to induce witness to admit that he had attached a foreign wire to defendant’s guy and high-tension wires, on promise that the company would pay his fine, was not admissible to impeach the company’s witness, who-, on cross-examination, denied that such offer had been miade, and plaintiff was bound by the negative answer of such witness.
    8. Trial — waiver of objection to evidence. — Appellant did not waive bis objection to incompetent testimony objected to by him by subsequently introducing contradictory testimony.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    reversed.

      P. G. Bridges, for appellant.

      Rowell & Alexander, for appellee.
   Humphebys, J.

L. W. Bobbitt, father of Lawson W. B'obbitt, brought suit on. Ms own account and as guardian of his child to recover damages for permanent injuries received by his child from coming in contact with a guy wire of appellant company which was carrying a heavy voltage of electricity, through the negligent operation of the plant. The alleged negligence consisted in the failure of appellant’s servants to discover and remove a wire, one end of which was securely wrapped around one of its guy wires near the ground and the other hanging across an uninsulated section of its high-tension wire, carrying 2,300 volts of electricity, thereby permitting a heavy current of electricity to pass from said high-tension wire through the lower part of the guy wire where the child, while playing and gathering flowers along the side of the road, came in contact with it.

Appellant filed an answer denying that the wire connecting this highdension wire with its guy wire was a part of its system, and that its servants negligently failed to discover and remove same.

The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment in favor of each appellee, from which is this appeal.

There is no dispute in the evidence that the injury was caused by current of electricity passing through one of appellant’s guy wires, with which the child came in contact while playing near the roadside. The purpose of the guy wire was to hold the post in place where the line changed its course, and not for the purpose of conveying a current of electricity. It is also undisputed that the wire connecting the high-tension wire with the guy wire was foreign to and no part of the system. One end of it was securely attached to the guy wire and tbe other end, which was tied to a rock, was hanging over an uninsulated section of the high-tension wire attached to the top arm of the post.

The testimony is in conflict as to how long this condition in the wire, had existed, and as to whether appellant was negligent in not discovering and removing the foreign wire before the injury. Tbe conflict in tlie evidence in these particulars presents the only real issues in the case, and the cause should have been sent to the jury upon these issues only. We think instruction No. 14, presented by appellant and refused by the trial court, was a correct, accurate declaration of the law applicable to the disputed issues of fact in the case, and should have been given, for the rule therein announced was not clearly covered in the instructions given by the court to guide the jury. Said instruction is as follows:

“If you find from the evidence that the wire causing the injury was placed by some unknown third party over the defendant’s electric wire and connected with the guy wire so as to charge said guy wire, thereby injuring the plaintiff, Lawson Bobbitt, and if you further believe that the defendant company did not know of such connection or danger, and could not have known of same by the exercise of ordinary care, then the defendant would not be liable, and you should so find.”

Instruction No. 14 is criticised by appellee because it required the exercise by appellant of only ordinary care to discover the dangerous condition caused by the connecting’ wire. This requirement was correct, and conformed to the rule announced by Joyce on Electrical Law, quoted approvingly by this court in the case of Texarkana Company v. Pemberton, 86 Ark. 329, as follows:

“Electrical companies, in the maintenance of their wires, owe to their employees, as well as to others who may of right, either for pleasure or work, be in the vicinity of such wires, the duty of exercising reasonable care, that is, such care as a reasonably prudent man would exercise under the same circumstances. We have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of each case, and which, in the case of electrical wires carrying a dangerous current of electricity, requires the exercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives,”

The rule not only applies to wires owned and used by an electric company “but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and its transmission thereby to any one using the streets. Electric Street Ry. Co. v. Coney, 64 Ark. 381; Southwestern Tel. & Tel. Co. v. Myane, 86 Ark. 588.

Appellant contends that the instructions given by the trial court as a guide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmit-tingithe current of electricity through its guy wire which burned the child. Under the circumstances of the injury a prima facie case of negligence on the part of appellant was made, which entitled appellee to go to the jury, and placed the burden on appellant to justify or excuse its negligence. The undisputed evidence revealed that the child received the injury from coming in contact with appellant’s guy wires, while playing near the roadside, which should not have been carrying electricity in the proper operation of the plant. This guy wire was under the control and management of appellant. Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283; Arkansas Light & Power Co. v. Jackson, 166 Ark. 633. It was appellant’s current of electricity which burned the child, and it could not excuse itself by simply showing that the current was connected to the guy wire from its tension wire through a foreign wire attached to the two by some third party. It was required to do more than that to exculpate itself from the prima facie case of negligence made by proof of the injury and the manner thereof. It must be shown, in addition, that it used ordinary care to discover and remove the foreign wire. 9 R. C. L., pp. 1215, 1217 and 1218. In the case of City Electric Street Ry. Co. v. Conery, 61 Ark. 381, this court, in comparing that case with the ease of Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215, said: “The main difference between the case last cited and this is, the electricity was communicated to the party injured in the former by the electric company’s own wire, and in the latter by the wire of another, but the principle upon which the liability is based is the same in both cases. All persons have the right to use the streets, in or over which the wires were suspended, as public highways. Subjecting the dangerous element of electricity to their control, and using it for their own purposes, by means of wires suspended over the streets, it is their duty to maintain it in such a manner as to protect such .persons against injury by it to the extent they can do soT>y the exercise of reasonable care and diligence. This duty is not limited to keeping their own wires out of the streets or other public highways, but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising’ its rights' in the highways in or over which electric wires are suspended. ’ ’

While the burden in the whole case rested upon appellee after a prima facie case wlas made, the instructions given by the court correctly ■ placed the burden upon appellant to justify or excuse its negligence. The instructions given by the court, in so far as they covered the issues involved, were substantially correct and impervious to attack by general objections.

Appellant next contends that the court erred in excluding testimony relative to. experiments which might indicate how the end of the wire with the rock attached might have been thrown over the tension wire, and opinion evidence as to what motive might have inspired the third party to commit the act. We regard this testimony as wholly immaterial, after it was shown by the undisputed testimony that such wire was not a part of the construction of the plant, and could serve no useful purpose, or, in other words, that it was a foreign wire. It is immaterial bow it was placed there or what motive inspired it to be done, if appellant’s linemen did not do it. We do not see how the exclusion of these pieces of evidence conld have prejudiced appellant’s cause. .

Appellant’s next and last contention for a reversal of the judgment was the admission of the testimony of Max Pry to the effect that Clint Green, who was working for appellant, attempted to induce him to admit that he had attached the foreign wire to the two wires in question upon a promise that appellant would pay his fine. Such an agreement on the part of Clint Green was not within the scope of his apparent authority, and it was not shown that he had actual authority to make such an agreement, hence inadmissible to bind appellant company. The court erred in admitting it.

On account of the errors indicated the judgments are reversed, and the causes are remanded for a new trial.

Hart, J.

My dissent is based on the ground that the matters embraced in instruction No. 14 asked by the defendant and refused by the court is substantially covered by instruction No. 5, which was given and reads as follows:

“The defendant, Pine Bluff Company, is claiming that the connection between its high tension wire and its guy wire was made by a connecting wire which was placed between the two wires by some third person. The burden is upon the Pine Bluff Company to show by a preponderance of the evidence that the said connecting wire was actually placed there by some third person, and even this would be no defense against its liability in this case unless it has also shown by a preponderance of the evidence that the dangerous condition of its guy wire could not have been detected and corrected by the exercise on its part of ordinary and reasonable care in time-to have prevented the injuries sustained by Lawson Bobbitt.”

Instruction No.-14 is set out in the majority opinion and need not be repeated here. I believe a comparison of tlie two instructions sliows that the instruction given fully and fairly covers the matters embraced in the refused instruction, and it is well settled that the trial court need not repeat instructions on the same phase of the case. Neither do I think that any prejudice resulted from the admission of evidence as indicated in the opinion.

Humpi-iReys, J.,

(on rehearing). Ota. motion for rehearing, learned counsel for appellee strenuously insist that this court erred in admitting the testimony of Max Pry to the effect that Flint Green who was working for appellant, attempted to induce him to admit that he had attached the foreign wire to the two wires in question, upon a promise that appellant would pay his fine. It is urged that this testimony was admissible for the pui’pose of impeaching P. C. Tucker, one of appellant’s witnesses, who testified that Clint Green did not tell Max Pry that if he wordd admit attaching the foreign wire to the other two wires, the company would pay his fine. Appellant did not ask Tucker anything about this matter on direct examination. Appellee propounded the question to Thicker on cross-examination. Tucker denied that any such conversation occurred. The purported subject-matter of the conversation was incompetent and entirely collateral. Appellee wias hound by the negative answer of Thicker and had no right to impeach his statement, same being’ collateral and incompetent as original testimony. Furlow v. United Oil Mills, 104 Ark. 489. Appellant 'Objected and excepted to the introduction of Max Pry’s testimony in this particular, and did not waive the error committed by the court in admitting it by afterwards introducing the testimony of Basham in contradiction of Pry’s statement. It was the privilege of appellant, after saving its exception to the inadmissible and prejudicial testimony of Pry, to remove the damaging effect thereof, if possible, by the introduction of testimony in contradiction of his statement.

As the reversal of the judgment must stand on account of the error of the trial court in admitting Pry’s testimony, we deem it unnecessary to decide whether instruction No. 14 requested by appellant and refused by the court was fully covered by instructions Nos. 5 and 6 requested by appellee and given by the court. We think, on a retrial of the cause, instruction No. 14 should be given as an alternative instruction affirmatively presenting appellant’s theory of the case.

The motion for rehearing is overruled.

Hart, J.,

I dissent from the additional opinion of Judge Humphreys on rehearing’ to the effect that the testimony of Max Pry was collateral. Max Pry testified that, after the accident to Lawson B'obbitt, Clint Green in the presence of P. C. Tucker told the witness that if he would admit that he put the foreign wire there which caused the accident and pay a small fine, the appellant would pay the fine for him.

It seems to me that this testimony was admissible as tending to be an admission on the part of appellant that it or one of its servants, had been guilty of negligence and was endeavoring* to shift that negligence to another person who was not in its employment and for whose acts it wtas not responsible. P. C. Tucker was the regular claim agent of appellant, and as such made an investigation- -of the accident. When he went to examine the boys of the Industrial School, he took Clint Green with him. He testified that the latter was tailing and acting for the company on that occasion. This to my mind made the company responsible for what Clint Green did in the premises. It is true that Tucker was asked if he did not hear Clint Green tell Max Pry that, if he would admit that he had put the wire there and pay a small fine for it, the company would pay the fine, and he answered no. If the testimony was admissible, the fact that Tucker answered “No” to the question would not make it collateral.

I do not think it is sound to say that if a party to an action, attempts to prove a fact 'which is competent by a witness, he is concluded from proving that fact because the first witness asked with reference to that fact or alleged fact answered in the negative. «It is admitted that Tucker was the regular claim agent of the company, and as such it was made his duty to investigate the accident. According to his testimony Clint Green was his assistant, and on the occasion in question was talking and acting for the company. Then he had as much apparent authority in the premises as Tucker. I do not think it is in any sense a sound proposition of law to say that a claim agent of a corporation can attempt to induce a witness to testify that he was responsible for a certain act of negligence, instead of the company or its servants, and then allow the company to escape the responsibility of such act or conduct.

In this connection it may be stated that the. majority' opinion virtually concedes that I was correct in my dissenting opinion of the analysis of the instructions and I repeat that a simple comparison of the instructions in question shows this to be true.