author: Humphreys, J.

text:
    Newboles v. Newboles.
    Opinion delivered July 6, 1925.
    1. Wills — sufficiency of revocation. — An afiidavit of a testatrix that she had decided not to will land to her son, which did not refer to or identify a will .previously executed by her, nor purport to revoke it, is not a codicil, and does not comply with Crawford & Moses’ Dig., § 10501, providing that no will shall be revoked other than toy some other will or other writing declaring such revocation and executed with the same formalities required in the execution of wills.
    2. Wills — attestation of signature. — An instrument to which the signature of .a testatrix was affixed by a notary public without attesting it as a witness as required toy Crawford & Moses’ Dig., §'10,495, was not valid as a revocation of a prior will.
    3. Arbitration and award — void will as subject of arbitration. —An instrument which purports to revoke a prior will, tout which is void because not executed as required toy Crawford & Mioses’ Dig., § 10501, cannot be the subject of arbitration.
    Appeal from Oraigiiead Circuit Court, Lake City District; W. W. Bandy, Judge;
    reversed.

      M. P. Huddleston and Hamilton E. Little, for appellant.
    J. F. Johnston and Gautney & Dudley, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered in the circuit court of Craighead County, Lake City District, in a trial de novo on appeal from the probate court of said county, growing out of a proceeding to probate the alleged last will and testament of Sarah Newboles, deceased. On October 9, 1923, appellant, to whom the land owned by Sarah Newboles was devised, offered the will for probate and made proof of its execution in the manner provided by law. The clerk admitted the will to probate subject to the action of the probate court. Appellees, the other heirs of Sarah New-boles, to whom she had devised $10 and an interest in the residue in her personal property, filed their petition on October 11, 1923, objecting to the probate of the will for the following reasons, to wit:

1. That it was executed on Sunday and was not subsequently ratified by the testatrix.
2. That appellant procured its execution by undue influence.
3. That the will was revoked by the affidavit, or codicil, executed on July 14, 1923.
4. That the controversy had been submitted to arbitration and decided adversely to appellant.

The petition concluded with a prayer that said purported will and the alleged proof thereof be rejected; that said codicil he probated as the last will and testament of said Sarah Newboles, deceased, etc.

Appellant filed a response denying each and every material allegation contained in the petition of appellant, with a prayer that the petition be dismissed and the will admitted to probate. The trial in the probate court resulted in a judgment favorable to appellees, from which an appeal was duly prosecuted to the circuit court. The cause was submitted to the circuit court, sitting as a jury, upon the transcript of the proceedings in the probate court and a stenographic report of the testimony there adduced, and judgment was rendered affirming the decision of the probate court, from which is this appeal. As a basis of the judgment, the court made the following findings of fact and declarations of law, to wit:

BINDINGS OB BAOTS.
1. “The court finds that the codicil to the will was executed in the manner and form as required by law.
2. “The court finds that the question at issuo between the parties hereto was properly submitted and decided by arbitration in the manner and form as required by law.
3- “The court finds that each and all of the arbitrators possessed the legal qualifications required and were competent arbitrators.”
DECLARATIONS OE LAW.
1. “The court declares the law to be that the codicil to the will was executed in the manner and form as required by law, and amounted to a revocation of the will.
“The court declares the law to be that, under the undisputed evidence in this case, the question at issue was properly submitted to a board of arbitrators, each and all of whom signed the award which set aside the will, and that the signature of Johnson, the fourth arbitrator by them called in, does not render the award •invalid, but the name of Johnson should be treated as surplusage.”

After the death of Mrs. Sarah Newboles and before this litigation began, her heirs, the devisees in the will, entered into a written agreement to submit the controversy which had arisen between them to arbitration, and selected arbitrators for that purpose. The three arbitrators selected under the agreement were unable to reach a conclusion; and by consent of all parties, F. A. Johnson was called in to assist them. The arbitrators rendered the following award:

“We, the board of arbitrators, agree that the purported will of Sarah Newboles, deceased, is nullified by the affidavit of the said Sarah Newboles, deceased, of date July 14, 1923, and the following described lamí be divided equally among the heirs at law: ‘‘The northwest quarter of 'the northeast quarter of section 16, township 15 north, range 6 east.
“ A. Wineland,
“J. A. Marbey,
“W. C. Vanhook,
“F. A. Johnson.”

The will was in due form, but was attacked on the grounds that it was executed on Sunday, and that its execution was procured through the undue influence of apnellant over and upon his mother. The affidavit referred to in the award was the attempted renunciation of the will by Mrs. Sarah Newboles, and is as follows:

“Lake City, Ark. 7-14-1923.
“To Whom It May Concern:
‘ ‘ This it to certify that I have this day decided not to will my land to my son, James Newholes.
“Attest: Sarah Newholes.”
“Witness to signature:
“S. F. Overall.
“B. C. Robinson.
“Subscribed and sworn to this 14th day of July, 1923.
“Espié E. Hafer, N. P.
(Seal).
“My commission expires May 13, 1924.”

It will be observed by reference to the award, the finding’s of fact, and declarations of law by the court that both the award and the judgment of the court were based upon the purported renunciation of the will. No other issue in the case was determined by the court except that the arbitrators were duly appointed and qualified to act. This being’ the case, the correctness of the judgment of the trial court must be determined by the validity or invalidity of the instrument relied upon as a renunciation of the will. This instrument does not meet the requirements of § 10501 of Crawford & Moses’ Digest, which in part is as follows:

“No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator, declaring sucli revocation and alteration and executed with the same formalities with which the will itself was required by lav7 to be executed. ’ ’

The instrument on its face does not refer to or identify the will, nor does it purport to revoke the will. It cannot be treated on its face as a codicil to the will. Again, it was not executed in the manner required for the revocation of the will. According to the undisputed evidence, the name of the testator was signed to the instrument by Espié E. Safer, tie did not attest her signature as a witness, and for this reason, the instrument was also void as a revocation of the will in question. Section 10495, Crawford & Moses ’ Digest. This court in the case of Abraham v. Wilkins, 17 Ark. 292, said: “There is no room to doubt that where another person signs the testator’s name, by his direction, the will is invalid, unless such person shall also write his own name as a witness: in other words, the requirement of the statute that the witness in such case shall also write his own name is not merely directory to secure better evidence of the due execution of the will, but is a necessary ingredient of the attestation itself, etc. It is clear from the statute that where the testator does not himself subscribe the will the formal attestation of the person who signs his name is required. In the matter of the Will of Cornelius, 14 Ark. Rep. 682.”

The void instrument could not be a subject for arbitration. Neither the arbitrators nor the court could inject life into the instrument. It was not a revocation of the will, and such effect could not be given to it by construction.

On account of the error in doing so, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Campbell v. State.
    Opinion delivered July 6, 1925.
    1. Witness — impeachment.-—- In a prosecution for robbery, -a witness for the State may be asked on cross-examination as to whether she had not been charged with the same robbery and placed under bond for appearance before 'the grand jury, as such evidence wiou-ld be competent to show her bias.
    2. Witness — impeachment.—The general rule that -a witness may not he discredited on cross-examination by inquiry as to a mere accusation or indictment for crime has no application where the ■accusation or indictment relates to the crime for which the defendant is on trial.
    3. Criminal law — instruction as to circumstantial evidence.— Where, in a robbery case, there wias circumstantial as well1 as direct evidence, it was not error to give an instruction on circumstantial evidence.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      G. L. Grant, for appellant.

      IL. W. Applegate, Attorney General, and Dcm-den Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of the Fort Smith District of Sebastian County for the crime of robbery, and adjudged to serve a term of fifteen years in the State penitentiary as a punishment therefor. An appeal has been duly prosecuted to this court from the judgment of conviction.

A number of alleged errors in the trial of the cause are assigned as grounds for a reversal of the judgment, one of which is sound. The chief prosecuting witness in the case was Stella West, who testified, in substance, that according to appointment she met appellant and Thomas Hill at the filling station at Moffitt, Oklahoma, a small town opposite Fort Smith on the west side of the Arkansas River; that both men had been drinking, Hill being' under the influence of liquor; that they crossed the bridge and entered the city of Fort Smith, when Hill proposed that they go to a rooming house; that she refused for fear of being arrested, but agreed to ride out Cliff Drive, and when out a considerable distance, got out of the cab and went into the woods with Hill; that, after talking a while, Hill called appellant, who had remained on the roadside after getting out of the cab, and dismissed the cabman; that appellant came to them, and after a few angry words had passed between them, appellant knocked Hill down and robbed him; that appellant took Hill’s bill case containing the money out of Hill’s hip pocket, and ran away with it. On cross-examination, appellant’s attorney asked the witness if she had not been charged in the municipal court with robbing Hill on that occasion, and placed under bond for her appearance before the grand jury to answer the charge. The court refused to allow the witness to answer the question upon the ground that she could not be impeached or her credibility impugned as a witness in any other way than by showing that her character was bad, or that she had been convicted of a felony. Appellant entered an objection and properly saved an exception to the ruling of the court in this regard. The court should have permitted the question to be asked, and should have required the witness to answer it for the purpose of showing whether she had bias. While the general rule is that a witness cannot be discredited by interrogating him on cross-examination concerning a mere accusation or indictment for crime, the rule has no application if the inquiry is limited to an accusation or indictment for the particular crime for which the defendant was being tried. An affirmative answer would have tended to disclose bias, and for that reason the testimony was competent. Wray v. State, 167 Ark. 54.

The other assignments of error likely to arise on retrial of the cause consisted in the refusal of the court to give appellant’s requested instructions Nos. 3, 5 and 9, and in giving, on his own motion, instruction No. 7 relative to circumstantial evidence. Upon examination of the instructions given and refused by the court we think appellant’s requested instruction No. 3 was covered by instruction No. 1, his requested No. 5 by instruction No. 4, and his requested No. 9 by instruction No. 8. It is argued that instruction No. 7 relative to circumstantial evidence had no place in the case for the reason that there were no circumstances in the case upon which to base a finding of guilt. There was testimony tending to show that Hill had a number of bills in his bill case when he fell in with appellant, and that, after associating with him most of the day, the money had disappeared. The jury may have disbelieved the testimony of Stella West on account of her easy way and of appellant, who denied robbing Hill, and may have inferred from the circumstances related that appellant got the money during his association with him. We think, therefore, that the instruction relative to circumstantial testimony was properly given.

The other assignments of error will not likely arise on the retrial of the cause; so we refrain from discussing them.

On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial.


text:
    Kelly v. State.
    Opinion delivered July 6, 1925.
    1. Homicide — sufficiency of evidence. — Evidence of a killing committed in the attempt to perpetrate roibbery held to sustain a conviction of murder in the first degree, under Crawford <& Moses’ Dig., § 2343, as against defendant’s contention that he slew deceased under a sudden terror aroused by the successful resistance of deceased.
    2. Criminal law — corroboration of accomplice. — Evidence held sufficient to corroborate the testimony of accomplices.
    3. Homicide — killing in attempt to rob — validity of statute.— Crawford & Moses’ Dig., §2343, providing that murder committed in the perpetration of or in the .attempt to perpetrate certain crimes shall be deemed murder in the first degree, held constitutional.
    Appeal from Pulaski Circuit Court, First Division; John W. Wacle, Judge;
    affirmed.

      Gus Fulk and Martin K. Fulk, for appellant.

      H. W. Applegate, Attorney G-eneral, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the criminal district of the circuit court of Pulaski County for murder under § 2343 of Crawford & Moses’ Digest, which, omitting immaterial parts, reads as follows:

“All murder which, shall be committed * * * in the .perpetration of or in the attempt to perpetrate robbery * * * shall be deemed murder'in the first degree.”

On the trial of the case, appellant was convicted of murder in the first degree, and, as a punishment therefor, was sentenced to death. From the judgment of conviction, an appeal has been duly prosecuted to this court.

Appellant’s first and main contention for a reversal of the judgment is that the facts reveal that appellant killed Harrod Fretwell under the influence of a sudden terror aroused 1 by the successful resistance of the deceased, and for that reason was guilty of manslaughter, a crime not included in the indictment. Counsel for the State agree with counsel for appellant that the crime of manslaughter was not embraced within the charge, and that, under the indictment, appellant must have been convicted either of murder in the first degree or acquitted, but do not agree that the record contains any evidence tending to show that appellant was guilty of manslaughter. We agree with the interpretation of the testimony by the State’s attorney. According to the testimony' appellant, Alvin Colbert, and A. B. Dean, armed themselves and went to the filling' station at Levy, which was in charge of Llarrod Fretwell for the purpose of robbing him. Fretwell was asleep in his chair when they entered the door of the filling station. Alvin Colbert, with pistol in hand,- entered first. Kelly, with pistol in hand, entered next; and Dean followed him. Colbert placed his pistol against the body of the sleeping boy, and ordered him to throw up his hands. Instead of doing so, the boy, partly aroused, grabbed the barrel of Colbert’s pistol; and, while trying to wrench it out of his hand, Kelly, the appellant, shot him. The three men then backed out of the station without committing the robbery, and returned in haste to the car in which they had driven to the station. The car was owned by Roy Colbert, who was driving it. Roy knew nothing about the plan of the three men to rob the filling station. He and his wife were out driving with the three men and Kelly’s wife. They drove out beyond the station several miles and upon their return, after passing the station two or three blocks, Roy stopped to fix one of the spark plugs. While engaged in doing this, the three men went back to the station for the purpose of robbing it. Roy Colbert heard the pistol shot and testified that the men returned to the car four or five minutes after the shot was fired. Immediately after the shooting, three men were seen running out of the filling station, and the deceased mlade his way to the house of Mr. and Mrs. D. M. Paxon, who lived across the street, where he fell upon his knees saying that he had been shot by an unknown party. Appellant’s co-conspirators testified to the plan for robbing the station and to the manner in which and by whom the deceased was killed. Homer M. Adkins, the sheriff, testified that, after arresting appellant, he asked him if he did not do the killing, and that he made the following answer to him: “You have been mighty kind to me, and I am not going to lie to you; if I could go up this afternoon and plead guilty and get life imprisonment, I would do so.” We are unable to see in this evidence any indication that Kelly fired the shot through a sense of fear suddenly aroused. It is true that, after he shot the boy, the three men ran out of the station without completing the robbery, but the only reasonable inference is that their hasty departure was due to a fear that they might be detected, in case they remained to complete the act of robbery, by some one who had heard the shot. Kelly made no effort to get away during the struggle for Colbert’s pistol, and he had ample opportunity to have done so. It is true that malice is a necessary ingredient of murder, but malice is presumed when the killing results from an attempt to commit a felony, in this case an attempt to commit robbery. There is nothing in the testimony indicating that the malicious intent terminated when the deceased grabbed Colbert’s gun. On the contrary, Kelly deliberately shot the boy before he had gotten up out of his chair.

Appellant next contends that the testimony of the accomplices was not sufficiently corroborated to justify his conviction. The testimony of Homer M. Adkins and other pieces of evidence referred to above sufficiently corroborated the testimony of his confederates to warrant the conviction.

Appellant’s next and last contention of consequence is that the statute under which appellant was indicted is unconstitutional because its effect is to deprive a defendant of his liberty without due process of law. The argument is made that this- statute dispensed with the necessity of proving deliberation, premeditation, and a specific intent to kill in order to convict one charged with murder in the first degree, and that, -under the due process clause of the State and Federal Constitutions, one charged with murder in the first degree cannot be convicted without proof of these inherent elements of the crime. We do not understand that the statute has changed or attempted to change any rule of evidence guaranteed by the Constitution as a protection to one charged with the crime of murder in the first degree. The statute does not attempt to deal with the rules of evidence at all. The purpose and intent of the statute was to make a change in the substantive law by making any one guilty of murder in the first degree if he killed another in an attempt to rob him. The Legislature had power to do this under certain limitations unnecessary to mention at this time. 2 Wigmore on Ev., § 1354, p. 1059.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Knighton v. State.
    Opinion delivered July 13, 1925.
    1. Criminal law — errors considered in absence of brief. — In a felony ease the record will be examined to determine whether any of the assignments of error in the motion for new trial were well founded, though no brief or argument on appellant’s behalf wias presented.
    2. Criminal law — matters reviewable. — An assignment of error in refusing a continuance is not reviewable where neither the motion for continuance nor any reference thereto appears in the record except in the motion for new trial.
    3. Intoxicating liquors — unlawful sale — evidence.—Evidence held to sustain a conviction of selling intoxicating liquor.
    Appeal from Union Circuit Court; L. 8. Britt, Judge;
    affirmed.

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

Appellant was convicted of the offense of selling intoxicating liquor, and appeals from the judgment, but no brief or argument has been presented here in his behalf. However, we examine the record to determine whether or not any of the assignments of error in the motion for a new trial are. well founded.

One of the assignments is that the court erred in refusing to grant a continuance. The motion for a new trial sets forth a motion for continuance, but neither the motion nor .any reference thereto appears anywhere else in the record. Hence there is nothing properly before us on that subject for review.

The only other assignment of error is that the evidence is not legally sufficient to: sustain the verdict. A witness testified that he went to the home of appellant and there purchased from appellant a bottle of whiskey, that appellant sold and delivered the whiskey and received payment therefor in money. Two other witnesses testified that they accompanied the other witness to appellaut’s. home, remained in the car about one hundred yards from the house, and saw said witness go into the house empty-handed and return in a few minutes with a bottle of whiskey. This testimony was sufficient to sustain the verdict.

Affirmed.


text:
    Standridge v. State.
    Opinion delivered July 13, 1925.
    1. Criminal law — sufficiency of confession. — Proof of confession of the accused, accompanied with proof of commission of the , offense by -some one, warrants a conviction.
    2. Intoxicating liquors' — unlawful sale — evidence.—Evidence . held to sustain a conviction of the unlawful sale of whiskey.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Joe D. Shepherd, for appellant.

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

This,is an appeal from a judgment of conviction of' the offense of selling intoxicating liquor, and the sole contention here is that the evidence is insufficient to sustain the verdict.

The officer who arrested, appellant testified that he gave a man named Freeman .a marked $5.00 bill with instructions'to purchase whiskey; that he followed Freeman in a car, about ten minutes behind; that when he got near the top -of a certain hill, Freeman returned up the road with a half-gallon of whiskey, and that when‘he went 'to the top of the hill he (witness) saw appellant and a boy down the road a short distance in the direction from which Freeman had come, and that be thereupon arrested appellant and found the marked bill in appéllánt’s possession. The witness testified that he identified the bill by the marks he had placed on it, as 'well as1 by its serial number, a memorandum of which he had kept when he turned the bill over to Freeman. ■ '

Freeman did not testify in the case. , Two witnesses testified to a voluntary confession made. by appellant.

Proof of confession of the accused, accompanied,by proof of the commission of the offense by isome person, is legally sufficient to sustain a conviction. Melton v. State, 43 Ark. 367.

The circumstances proved in this case were sufficient to warrant the inference that whiskey was sold on the occasion mentioned by the witnesses, and, even if that were not sufficient to fully connect- appellant with the sale, his own confession supplies the omission and completes the case against him as to the legal sufficiency of the evidence.

Affirmed.


text:
    Garner v. Hallum
    Opinion delivered July 13, 1925.
    1. Partnership — debt of partner. — .The borrowing of money by a partner, -which was used in the purchase of .an interest in the partnership, did not create an obligation of the co-partnership to pay the debt.'
    2. Partnership — loan—evidence.—In the ' case of a- loan'' to a partner, the .preponderance of the evidence helé to show that the loan was not made to the partnership, nor for partnership .uses.
    3. Partnership — burden of proof. — In the ease of a loan made to a partner, for which he gave his individual note, the burden is on the holder of the note to show that it was a partnership ■ liability.
    4. - Partnership — silence as ratification. — .Where a loan was made to a partner for which he gave his individual.note, mere silence on the part of his copartner could not operate as a ratification so as to bind the firm.
    Appeal from Donoke Chancery Court,. John E-. Martineau, Chancellor;
    reversed.

      Gray & Morris, for appellant.

      W. J. Waggoner and Chas. A. Walls, for appellee.
   McCulloch, C. J.

Appellant J. H. Garner and His wife were formerly in the mercantile business, as copartners, in the village of Coy, in Lonoke County, and in November or December, 1919, Mrs. Garner sold her interest in the business to her son, George, and thereafter the business was conducted by J. H. Garner and son, George, under the firm name of J. H. Garner & Son until November 15, 1923, when they executed a deed of general assignment for the benefit of creditors.

The consideration for the sale by Mrs.'Garner to George Garner was the sum of $1000, paid in cash, and three notes for the sum of $787 each, due, one, two and three years from date.

In August, 1923, George Garner applied to his father-in-law, one of the appellees, C. B. Hallum, for help, and the latter procured a loan of $1000 from appellee England National Bank. The note for the amount borrowed was executed by George Garner and C. B. Hallum to the bank. The amount received was turned over to George Garner, and the loan has never been repaid. This action was instituted by the appellees, C. B. Hallum and England National Bank, against J. H. Garner and George Garner to recover the amount of the note and interest as a copartnership liability and to have the partnership assets subjected to a lien for the payment of the debt. The .action was originally instituted by appellee Hallum, but afterwards the bank was joined on its own motion as an intervener.

It was alleged in the complaint that the proceeds of the note were used in carrying on the partnership business of J. H. Garner & Son, and that there was an agreement ¡at the time of the loan that, as the goods in the store were sold, the note to the bank was to be paid off. In the answer there was a denial that the debt was a partnership obligation, and it was also alleged that it was a personal obligation of George Garner alone. The court appointed ia receiver to italce charge of the property, and the final decree was in favor of the two appellees for the recovery of the debt, and the receiver was ordered to sell the partnership property and use the proceeds, first, in payment of the debt to appellees, and next in distribution to other creditors. J. H. Garner alone has appealed.

J. H. Garner and George Garner both testified that the note of George Garner to the bank was a personal transaction of his own, and that the money borrowed was used by George Garner in paying off a debt to his mother as the purchase price of her interest in the stock of goods. They testified that none of the proceeds of the note was used in the business. On the other hand, appellee Hallum testified that George Gamer, when he borrowed the money, represented to him that the copartnership business had not been successful, and that the money would 'be used in the business. He did not testify that J. H. Garner had anything to do with the borrowing of the money. The only way in which he attempts to bring J. H. Garner into the transaction is that the latter told him some time after the money was borrowed that he was aware of the fact that his son had borrowed the money.

The law applicable to the case is plain. The borrowing of money by one of the partners, used in the purchase of an interest in the partnership, does not create an obligation of the copartnership to pay the debt. Dixie Cotton Oil Co. v. Morris, 79 Ark. 113. The application of this principle to the facts of the case calls for a reversal of the decree. According to the preponderance of the evidence, the money was borrowed by George Garner individually and used in paying his debt to his mother. There is no testimony at all to the effect that J. H. Garner, the other partner, had anything to do with borrowing the money. The evidence of Hallum himself does not show that J. H. Garner was a party to the transaction or that the money was loaned to the -firm. The most that can be said about it is that George Garner told him that the business was in bad condition, and that he would use the money for the purpose of tiding the firm over. If the loan was made individually to George Garner, the mere fact that he used -the money in the business, had that fact been proved, would not create liability on the part of the other partner or the firm to repay the debt. The use of the money in the firm’s business by George Garner after he had borrowed it would merely create an equity in the latter’s favor on the dissolution of the partnership and the winding up of the affairs. We do not think that according to the preponderance of the evidence, the money was loaned either to the partnership or for; partnership uses. The note given for the loan, which is primd facie evidence of the character of the transaction, was executed by George Garner, and the burden is upon the holder of the note to show that it was a partnership liability, and that the note was executed for the benefit of the firm. Jacks v. Greenhaw, 105 Ark. 615.

There was no question of ratification in this case. So far, as the testimony shows, it was an individual loan to George Garner, whose individual note was executed, and, as the transaction did not purport to be in the name of the firm, mere silence on the part of the other partner could not operate as a ratification so as to bind, the firm.

... The conclusion reached by the chancellor was erroneous, so the decree is reversed, and the cause remanded with, directions to. dismiss the complaint for want of equity.


author: "Wood, J.

text:
    Murphy v. Steel.
    Opinion delivered July 13, 1925.
    1. Cancellation op insteuments^mistake. — In an action by grantors to cancel a deed, of gift of oil'and gas'royalty in certain land, evidence held to show that the scrivener made a mistake in describing the land.
    2. Cancellation of instruments — mistake in description— relief granted.- — -In an action by grantors to cancel a deed of gift of oil and gas royalty, on .the ground that the scrivener made a mistake in -describing the land in which the grantors' intended to convey the royalty, relief will be granted, though the mistake wias unilateral, on the theory that there was ■ no contract because there was no meeting of minds.
    3. Vendor and purchaser — bona pide purchaser. — In an action against a trustee to cancel a deed 'of gift of oil and gas royalty for a mistake of the scrivener in describing the land, the fact that one of the beneficiaries purchased the ‘ interests of the other beneficiaries would not affect the grantor’s right to relief against the trustee, since the beneficiaries under the trust can have .no greater rights under the trust as against the grantors than the trustee who holds the legal title.
    4. Vendor and purchaser — bona fide purchaser. — The doctrine of bona fide purchaser without notice does not apply where there is a total absence o-f title i-n the vendor, as’the go-o-d faith of a purchaser cannot create a title where none exists.
    5. Cancellation op instruments — unilateral mistake — relief.— Where grantors seek to cancel a deed of gift of oil and gas royalty in certain land for a mistake o-f the scrivener in describing the land, and offer to convey the royalty in the land which was intended, the court may require the execution of a correct deed as a condition of granting the relief sought. ., .:
    ■ Appeal from Ouachita Chancery Court, • Second Division; George M. LeCroy, Chancellor;
    reversed.

      Gcmghcm & Gifford, for appellant.'

      Mahony, Yocum & Gaye, L. B. Gmead and Harry Meek, for appellee.
   "Wood, J.

This is an action by the appellant's against the appellee to cancel a certain deed which the appellants alleged was executed to the appellee through .mistake. The appellants alleged in suhstancd that they intended to execute to appellee a deed conveying to him a one-fourth royalty interest in the SE^ of the NW14 of section 28, township 15 south, range 15 west, Ouachita County, Arkansas, in which ithe appellants had executed an oil and gas lease to one T. J. Murphy; that by mutual mistake, instead of describing the lands as above, the scrivener described it ás. follows: The NE% of the SWhL section 28, T. 15 S., R. 15 W., Ouachita County, Arkansas; that the lands thus described through error by the scrivener had not been leased to T. J. Mujphy, but had been leased to the Roxana Oil & Petroleum Company. Appellants alleged that they had prepared and tendered to' the appellee a mineral deed conveying a one-fourth royalty in the oil, gas and minerals in the lands, which it was intended should be conveyed, and they tendered in court such deed containing the correct description. Appellants prayed that the deed containing the alleged incorrect description be cancelled, and that the same be corrected so as to describe the lands as intended by the parties, and that the appellee be required to accept such deed and release all rights under the deed executed to him through mistake.

The appellee answered, denying the allegations of the complaint to the effect that the deed executed by the appellants to him contained an incorrect description. He alleged on the contrary that the deed correctly described the land which the parties intended should be deeded to him.

The facts which the testimony tended to prove are substantially as follows: That the appellants are the owners of certain lands situated in the vicinity of a well designated as “V K F”, which was being drilled in the southern part of Ouachita County, Arkansas. The appellants, with other landowners in the neighborhood who were interested in finding oil in that territory, in order to encourage the crew of drillers in their efforts to bring in an oil well, entered into an agreement to give the drillers a royalty interest on a forty-acre tract of appellants ’ land. It was the intention of the appellant Murphy at the time he executed a deed conveying to the appellee, who was bne of tlie drillers and named as trustee, to convey a one-fourth royalty in the SE%. of the NW]4 of section 28, township 15 south, range 15 west. After the Y. K. E. well was drilled in and was a producer of oil, the appellant, pursuant to his agreement, went to the office of Gaughan & Sifford, attorneys at Camden, and requested them to prepare a deed to the appellee to the lands as described above. A Miss Maude Robinsonian employee of Gaughan & Sifford and the scrivener who drafted the deed, was given the memorandum showing the description of'the land to be embraced in the deed as above indicated. In drawing the deed, Miss Robinson, instead of describing the land according to the memorandum left with her as the SE% of the NWYt, section 28, township 15 south, range 15 west, described it, through mistake, as the NE14 of the SW^ of section 28, township 15 south, range 15 west. Miss Robinson and appellant J. E. Murphy both testified that the memorandum which was left with Miss Robinson described the lands as the SE]4 of the NW]4 of section 28, township 15 south, range 15 west, and that Miss Robinson (inserted the erroneous description describing the. lands as the NE'14 of the SWYl, section '28, etc., through mistake. J. E. Murphy testified that the agreement was written the day the Y. K. F. well came in in section 29 which was thé discovery well of the Smackover field. Dave Reynolds, Sid Umpsted, Guy Campbell, and witness and others were parties to the agreement. The memorandum showing the description of the land which each landowner agreed to convey to the appellee was furnished to the 'BeaconITerald, a newspaper published in Camden, Arkansas, for publication, and it appeared in the issue of that paper of August 3,1922. The original memorandum itself was burned in Dave Reynolds’ office. The published memorandum sets out the names of the donors and the names of the appellee as trustee and twelve others who were members of the crew designated as the crew of the Discovery Well, and it was recited that, in consideration of $1.00 and their faithful work and diligence by way of showing appreciation for the hard work and honesty of the drillers, the donors agreed, to deed to them the following described property: 113. E. Murphy 1/32 royalty in the Í3E/4 of the NW% of section 28, township 15 south, range 15 west, forty acres. ’ ’ The memorandum bore date' of July 24, 1922.

Murphy testified thatja few days after that agreement was executed he had the mineral deed prepared by Miss Robinson in the office of G-aughan & Sifford. At the time the deed was drawn he had not executed the oil and gas lease on the SE1/^ of the NW% of -section 28, township 15 south, range 15 west. But appellant Murphy and wife joined in the execution of a lease to his cousin, T. J. Murphy, so that he could give the boys of the crew a royalty deed in the lands he had leased to his cousin. Murphy introduced a copy of this lease to his cousin, T. J Murphy, bearing date of September 17,1922, and describing the lands a-s the SE}4 of the NW% of section 28, township 15 south, range 15 west, which lease was duly recorded. Afterwards the deed conveying the royalty to the appellee was prepared as stated and -signed by the appellants. It described the lands as already mentioned, and/the witness did not discover that a mistake had been made until the fall of 1922. When he learned of the mistake, he went to Camden, and had a correct deed drawn and also a release deed for the appellee and the beneficiaries to-sign. v Witness testified that he was willing to execute a mineral deed to.the land which he intended to convey to- appellee as trustee f-or himself and other members of the drilling crew, which deed he had prepared and tendered and which, they refused to accept. On cros-s-examination witness, among other things, stated that he did not read the deed that was prepared by Miss Robinson after she had written it, and did not compare the description in the deed with the- memorandum that -had been left in the office before he executed the deed. Before witness knew of any error he told the members of the drilling crew that the laud in which he had conveyed the royalty was east of the well across one forty. He never pointed out the Roxana lease to any of the boys as being the ground covered by the mineral deed. ■ Reynolds, one of the beneficiaries, said something to witness about buying out the interest of some of the others. He bought such interest before witness found out there had been a mistake in the deed. Witness pointed out to Reynolds the forty acres which he had leased to J. T. Murphy, which was east of the discovery wel'1, and the Roxana forty was south of this well. Witness remembered when the well came in on the Roxana lease. ( He didn’t remember that he had discussed that well with any of the V. K. F. drilling crew.

Van Cleve was the field manager for that company, and he informed witness that there must be some mistake. Witness denied that he had told Christy, one of the beneficiaries, that a big well had come in on the lease on which the boys owned some royalty. ¡Witness filed the complaint just as soon as he discovered a mistake had been made in the deed, and soon after appellee and the beneficiaries under it refused to allow the same to be corrected, t A dry hole was drilled about three quarters of a mile from the Murphy lease. The SE}4 of the NW]4> section 28, township 15 south, range 15 west, and the NE*4 of the SW]4 of the same section are about the same distance from the Discovery WelLuAt the time witness made the deed to the appellee, he didn’t know that there was any difference in the value of the royalty under the two leases. It made a difference with witness as to which land he would give them h royalty in because he had already sold a one-sixteenth iii -the Roxana forty. That was the reason witness intended to execute the mineral deed to the appellee and the other members of the crew on the SE% of the NW1^ section 28. f Witness had already sold some of the other •stuff. The Roxana lease is producing the most, and is a great deal better forty. \

Miss Robinson testified, and her testimony in every essential detail corroborates the testimony of J.' E. Murphy. She states that the appellant Murphy told her the description to put in the mineral deed to the appellee and to write it subject to the T. J. Murphy lease. She wrote down the memorandum of the description Murphy gave her. It was the SE*4 of the NW14 of section 28, township 15 south, range 15 west. She knew that a mistake was made. The Mhirphy lease is correct. She made the mistake in putting in the description of the land. She confused the descriptions and wrote in the deed to the appellee the description that had been used in the Roxana deed, but described the Murphy lease. She was the only stenographer and had a great deal to do. The description she wrote in that mineral deed on that occasion was merely a clerical error. She concludes her testimony substantially as follows: “I know now I made a mistake 'because Mr. Murphy told me to write the deed on one of the Murphy lease forty'acres. The deed was written on the Roxana lease. * * * I ascertained that I made the error as soon as I saw the deed I wrote. Mr. Mjurphy came in and said there was an error made, so I fixed up a deed so he and his wife could convey to the young men the SE% of the NW14, and prepared a deed for them to sign back to him the forty which was described through mistake.”

J. D. Reynolds testified that Murphy agreed to give the royalty on a piece of land, and that he sent the agreement that was written up to the Camden paper to publish. In his best judgment the copy appearing in the paper was the agreement as it was prepared and read down at the well to the members of the crew that day.

; The appellee testified and introduced the original deed executed to him by the appellants as the trustee describing the land as the NE'% of the SW1^, section 28, township 15 south, range 15 west, subject to a certain oil and gas lease executed'by J. E. Murphy and wife^n July 27, 1922,[to T. J. Murphy which lease was filed for record July 28,1922. / He testified that this was the same description as was contained in the memorandum contract^that was drawn up there and signed by himself, the appellant Mnrphy and' others. ^Witness could not ¡Be positive about it, however. A It seemed like it was the NE1/^ of the SW^i, hut he was not -sure about it. Witness never talked with Miurphy about the deed before it was 'signed and before Murphy made the complaint as to the mistake. | At the time he made the complaint there was a dry hole close to the north forty, and there was a good well off-setting the other forty. There wias no production near the north forty.] ^Witness told Murphy when he’made the complaint of the mistake that he could not sign the deed Murphy wanted him to 'sign releasing the interests and acknowledging the mistake because some of the hoys had spent some money, and there was a dry hole near the forty that appellants wanted them to take and a well off-setting the other forty. Witness told appellant Murphy when he spoke to him about the mistake that witness thought he was wrong and the deed was right.

There was testimony :by Reynolds to the effect that, since the deed of appellants to the appellee had been executed, he had bought the interest of three of the other beneficiaries which had cost him $1350. He stated that after the deed in eontroyersy was executed^ he and Murphy talked about the land. Witness had an ownership map in his pocket, and Murphy , said they had made a location on the acreage. Murphy pointed out on the map the Roxana forty. Witness had bought some of the boys’ interests before that, and was figuring’ on buying some more. Witness wished to get the location of the land. At that time witness had bought only one interest and was trying to locate it all. Murphy pointed out the Roxana lease, that is the NE% of the SW14. Witness then bought the other interests and he introduced the deeds to the interests which he had purchased. Witness, on final cross-examination, stated that he didn’t know what forty Murphy intended to give them. The beneficiaries didn’t have the option or privilege of picking the forty. After the deed was made witness wanted what the deed called for. He didn’t know whether there was a mistake in drawing the deed or not._J

Witness Christy testified to the effect 'that he was one of the crew who drilled the Vi. K. F. Well. The first big well came in on the Roxana forty. Witness came up to see it. He saw the appellant Mnrphy, who asked witness if he had come np to see their well. Witness replied, “I don’t know whether we had one or not,” and Murphy replied, “Yes, the biggest one of the field on the forty I gave you; when you go back you can tell them you. have the best well in the field.” Witness further stated that Murphy told him and two ór three others of the crew that it was on the Roxana forty. He said that was the land described in his deed to the appellee. He agreed to give forty acres, and it could easily have been either of the forties in question.

f’ in rebuttal Murphy testified that he did not have any conversation with Reynolds in which he located on the map the forty on which the Roxana- had a lease. He denied that he had ever said to any of the boys that he had given them the Roxana forty. ( He did not know at the time of these alleged conversations that a mistake had been made in the deed, and that the Roxana forty was described in that deed.

The editor of the Beacon Herald testified that he checked the copy of the memorandum published in his paper with the original. The description in the land first published in the paper opposite the name of J. E. Murphy was the same as that appearing in the original memorandum. ;

1 The above are substantially the facts upon which the trial courtjdround the issues in favor of the appellee, and rendered a decree dismissing the appellants’ complaint for want of' equity, from which is this appeal.

The undisputed testimony shows that none of the beneficiaries in' the deed executed by the appellants to the appellee had any option or choice in the matter of selecting the land in which the appellants agreed to convey to them a royalty. The selection of this land rested solely with the appellant Murphy. If a mistake was made in the description of the land, it was not a mistake of both parties to the deed, hut a mistake solely of the appellants. It occurs to us that^the undisputed testimony shows that the scrivener did make a mistake in describing the land in which the appellants intended to convey a royalty to the appellee. * f The lands were described in the deed 'as the NE14 of the SW14, section 28, township-15 south, range 15 west, when-they should have ¡been described as the SE14 of -the etc. - The testimony of appellant Murphy and of Miss Robinson, the scrivener, as well as the testimony showing the publication of the original agreement in which the lands were correctly described as the SE% of the 'NW^i, etc., make it clear beyond peradventure that the land in which the appellants intended to convey the royalty was the SEi% of the NAViA, section 28, township 15 south, range 15 west, instead -of the NEAt of the SW14, -section 28, etc., and that the scrivener who prepared the deed, through -clerical error, inserted the erroneous description.

1 In Frazer v. State Bank of Decatur, 101 Ark. 135, at page 140, we -said:,; “One of the parties to a contract cannot have it reformed on account of mistake which is 'not mutual, for to do so would be to enforce the reformed contract which the other party had not intended to make. But a different question is presented where one of the parties to a contract seeks to have it rescinded because of .a" mistake on his part, for that makes only a case of there being no contract between the parties on account of the fact that there has not been a meeting of the minds of the contracting parties.”

' The rule was again announced by us in Fleischer v. McGehee, 111 Ark. 626, at page 629, where we quoted from the Supreme Court of New Jersey in Greene v. Stone, 54 N. J. Equity, 387, as follows:, “In granting the relief on the ground of mistake, there is a distinction between the rescission and the reformation of a written contract. A court of equity may rescind a contract for a mistake which is unilateral — that is, a mistake on the part of one of the parties only. In such case the whole contract is set aside, and the parties restored to their original position. * * * To warrant reformation, there must be a mutual mistake, that is, a mistake shared in by both parties.”

It is contended by the appellee that Reynolds was an innocent purchaser of the interests of others in the royalty after the deed of appellants was executed to the appellee, and that therefore his rights must be considered in the adjudication of this controversy, and likewise the interests of those from whom he 'bought, ‘and who will be liable to Reynolds for the purchase money received by him from them, should his title fail. But, ihe beneficiaries under a deed conveying the legal title to a trustee can have no greater rights or equities against the grantor than their trustee who holds the legal title. If the trustee acquires no title to the property conveyed, then necessarily the beneficiaries ¡acquired none. There was no title upon which they could bottom any rights or equities in the lands described. Where there is a total absence of title in the vendor, a purchase from him in good faith for a valuable consideration and without notice could not create a title where none exists. The doctrine applicable here, is stated in 39 Cyc, p. 1691, as follows: “The doctrine of bona fide purchaser without notice does not apply where there is a total absence of title in the vendor. The good faith of a purchaser cannot create a title where none exists.” See numerous cases cited in note; also page 1692, sub. div. (c), and cases there cited. 8 C. J. 1149; Hawley v. Diller, 178 U. S. 476; Deskins v. Big Sandy Co. 121 Ky. 601, 607; Buck v. Martin, 27 Ark. 6.

In Deskins v. Big Sandy Co., supra, it is held that the doctrine does not apply in favor of a bare equity, for the reason that when the vendor has only a bare equity such fact is notice to the purchaser from him that secret trusts may be outstanding. Reynolds is not a party to this action. This is an action against the trustee to cancel the deed. If the trustee cannot successfully defend that action, and he cannot, then of course the beneficiaries have no defense. Their status is determined by _the status of the trustee, j

1 The appellants offered as a condition of the cancellation of the deed to execute a deed to the appellee as trustee for the ibenefiiciaries named therein to a royalty in the land which he intended to convey, and the trial court should see that this condition is performed. It was within the jurisdiction of the trial court to impose such terms as a condition precedent to the equitable relief which appellants seek and to which they are entitled.

The decree is therefore'reversed, and the cause will be remanded with directions to enter a decree in favor of the appellants cancelling the deed in controversy upon the execution by the appellants of a deed to the appellee, as trustee for the parties named, to the SE14 of the NW% of section 28, township 15 south, range 15 west, Ouachita County, Arkánsas, in accordance with the stipulations of the contract of July '24, 1922, and for such other and further proceedings as may be necessary, according to law, and not inconsistent with this opinion. 1


author: Wood, J.

text:
    Reed Oil Company v. Cain.
    Opinion delivered July 13, 1925.
    1. Frauds, statute op — contract not to re performed within year.- — An oral contract which fixed no definite date for its performance and which could be entered upon and performed before the expiration of one year from the date when the contract was entered upon was not within the statute of frauds, although the benefit derived from such performance did not come to the other party until after the expiration of the year.
    2. Frauds, statute of — contract not to be performed within year. — An oral contract to secure a reduction in freight rates for a shipper was not rendered void because the consideration for the appellee’s services was fixed at an amount equal to one-half of the sum saved toy the shipper for a period of three years after the reduction.
    3. Frauds, statute of — contract not to be performed within year. — Oral contracts which can he performed within a year, -although there is a possibility, and even a probability, that it may require a longer time, do not come within the statute of frauds, which applies only to agreements that appear from their terms to be incapable of performance, or such as the parties never contemplated should be performed within a year.
    4. Appeal and- error — harmless error. — -Error of the court in finding that plaintiff was entitled to recover on a quantum meruit, instead of on an express contract, was not prejudicial to defendant where the evidence would have justified a finding that a larger sum was due under the contract.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      W. N. Ivie and Nance do Seamster, for appellant.
   Wood, J.

The appellee instituted this action against the appellant in the Benton Circuit Court on the first of February, 19'24. Appellee alleged in substance that the appellant is an association operating in the State of Arkansas under a business trust agreement which authorizes the appellant to be sued in the name of Reed Oil Company. Appellee alleged that he owned the Northwestern Arkansas Traffic Bureau, which is engaged in the business -of handling rates and tariffs on shipments of various products over various lines of railways; that prior to August 1, 1922, the St. Louis San .Francisco Railway Company bad in effect rates on oil and gasoline from Tulsa and other points in Oklahoma to- Jonesboro and other eastern points in Arkansas, the rate being 38^5 per 100 pounds, while the rate from the same points in Oklahoma to the city of Memphis, Tennessee, a distance beyond the Arkansas points mentioned, was 28%^ per 100 pounds; that the appellant employed the appellee to secure from the railroad company a reduction in the freight rates on the products mentioned from the Oklahoma cities to the Arkansas cities which would make that rate the same as the rate from the same cities to Memphis, Tennessee. Appellee alleged that the appellant agreed to pay him for his services a sum equal to the difference between the rate from the Oklahoma cities to Jonesboro, Arkansas, and the rate from the Oklahoma cities to Memphis, Tennessee, in case said reduction was made. The amount appellants would save by this reduction on shipments during a period of three years was to be ascertained by an average of the shipments of appellant from said cities in Oklahoma to points in Arkansas during and over a period of three years. The appellee alleged that he instituted proper proceedings with various traffic managers and traffic bureaus and with the Southwestern Freight Bureau, and that, as a result of his efforts, on or about the first of September, 1923, he secured a reduction of the freight rates on the products named from the cities in Oklahoma to Jonesboro and other eastern Arkansas cities of 27^/2‡ per 100 pounds; that the amount which the appellant would have saved as a result of such reduction on shipments during a period of three years was $3461; that appellant agreed to pay appellee fifty per cent, of this amount, or the sum of $1730.52, which sum was a reasonable fee for the services performed by the appellee on behalf of the appellant. Appellee prayed judgment in the sum of $1730.52.

The appellant denied categorically all the material allegations of the complaint. By consent of parties the cause was submitted to the trial court sitting as a jury.

The appellee testified in substance that he was engaged in the business of rate adjustments, claims for over-charges, and general traffic work. He was employed by two or three firms under a salary as their traffic manager and operated under the name of Northwestern Arkansas Traffic Bureau. He was employed by the appellant to secure, if possible, a reduction in rates on refined oils from Oklahoma producing points to Jonesboro, Arkansas, a city located on the Frisco railroad between the Oklahoma cities and Memphis, Tennessee. He made several trips to St. Louis and other points to get the rate to Jonesboro equalized with the rate to Memphis. The rate to Jonesboro from the Oklahoma cities was six cents -higher' per hundred pounds than the rate to Memphis on the same products. He was first employed in August, 1922, and he details efforts he made to secure a reduction of the freight rates from that time on until some time in September, 1923, at which time the rate was reduced to become effective October 1, 1923, making the rate from the Oklahoma cities to Arkansas cities the same as that of the rate from the Oklahoma cities to Memphis, Tennessee. At the time the contract was entered into between the appellee and the appellant, appellee was to receive an amount equal to fifty per cent, of what he saved the appellant covering a three-year period. After the reduction was effected by the appellee, he procured the freight bills for the previous year and figured what the amount would be for the following three years, and the appellant, on that basis, would owe him the sum of $1730.52, provided the rates remained the same and the appellant moved the same number of ears each year. Appellee demanded of appellant a settlement, and it declined to pay appellee, claiming that it had -sold its business - and would receive no benefit from the reduced rate. Appellee introduced considerable correspondence with the freight traffic commissioner of the Frisco showing the work performed by him, and he testified that the service was for a period of a year or more before he obtained the reduction. He detailed the expenses that he had incurred in performing the services under his contract with the appellant and stated that a fair estimate of the same would be $250. On cross-examination he stated that the agreement with the appellant was oral.

Witness H. P. Hoyen testified that he was chief clerk to the -assistant freight traffic manager of the Frisco railroad. The appellee filed with him an oral complaint, asking for a reduction of the freight rate to Jonseboro during the early part of August, 1922. At that time the railroad company liad a rate of 28%^; per hundred pounds to Memphis, Tennessee, from the Oklahoma cities mentioned and 34%^ per hundred from the same cities in Oklahoma to Jonesboro and other intermediate points in Arkansas. The proposal for the reductions was turned down, but the rate was finally reduced from the Oklahoma cities to Arkansas cities to 27%^ per hundred, the same as the rate from the Oklahoma cities to Memphis, Tennessee, and it was through the efforts of the appellee that the reduction was made. Appellee was notified about April 4,1923, tliat his claim for reduction was denied, but afterwards the reduction was made and put into effect October 1, 1923. Appellee explained at the time he filed the complaint that the appellant was a shipper to Jonesboro and Marked Tree, Arkansas.

"W. B. Redding testified that he had been a traffic or freight expert for about fifteen years, and was familiar with the fees paid to experts in such capacities. He had heard the testimony of the appellee and of the witness, Noyen, as to the services rendered by the appellee to the appellant and a reasonable fee for such services would be fifty per cent, of whatever amount was involved. That was the usual fee. Witness considered that $1730 would be reasonable compensation for the work appellee did.

It was agreed by counsel for the parties that the appellant was authorized to do business in Arkansas and could sue and be sued in this State.

Jack Reed was called as a witness by the appellant, and testified that he was president of the appellant during the month of August, 1922. Appellee worked for the appellant from June 1, 1922, five or six months until appellant sold its Arkansas properties. The witness had a conversation with the appellee in March, 1922, about the rate to Jonesboro. He was president of the appellant at that time. He stated that he agreed with the appellee to give him one-half of what he saved the appellant over a period of three years, if he secured a reduction in the freight rates from Oklahoma cities to Jonesboro and other Arkansas cities. Witness never heard anything more about the reduction in rates until after the appellant had sold out about the 25th of August, 1923. After appellant sold out, appellee came over to -witness’ office and informed appellant that the freight rates had been reduced, and witness then told appellee that it would not be of any benefit to appellant. Witness told appellee that whatever expenses he had incurred, witness would be glad to make it right with him. Appellant never received any benefit whatever from the reduced rates, as it had sold out before the date the rate was issued and before it went into effect. Appellant never shipped any oil after the new rate went into effect. Witness told appellee at the time the contract was entered into that he would only give appellee half of the savings to the appellant. There was nothing said at the time about estimating it or when appellant was to pay it. Witness was never convinced that appellee had rendered any services to appellant. Witness was not convinced that the reduction was not a general freight reduction over the entire territory.

Appellee in rebuttal testified that he had frequently discussed the matter with Jack Reed after the contract was entered into and had advised him as to the progress he was making.

The appellant moved the court to declare the law to be that the appellee could not recover upon the contract alleged because of the statute of frauds, and also that the appellee was not entitled to recover upon a quantum. meruit for the reason that the appellant received no benefit from appellee’s 'services under the oral contract. Appellant asked the court to declare the law generally in favor of the appellant. The court refused these prayers, to which ruling the appellant objected and duly excepted.

The court found that the appellee was employed by the appellant upon an oral agreement on or about August 1,3 922, to secure a reduction in freight rates from points in Oklahoma on petroleum products to be shipped to Jonesboro, and that the appellee was to receive for his services the sum of one-half the amount saved by the appellant by reason qf the reduction in said freight rates for a period of three years following the reduction; that as a result of the appellee’s efforts the freight rates were reduced on petroleum products from points in Oklahoma to Jonesboro, Arkansas, to the extent of six cents per hundred pounds, to be made effective October 1, 1923, and that appellant had sold its interests at Jonesboro, Arkansas, previous to the date said reduction in rates went into effect and thereby prevented the full carrying- out of the contract. The court declared the law to be that the appellee was entitled to recover from' the appellant on a quantum mendt in the sum of $750'. The appellant duly excepted. The court rendered a judgment in favor of the appellee in the sum of $750, from which is this appeal.

Section 4862 of Crawford & Moses’ Digest provides :

“No action shall be brought: * * *
(6) To charge any person upon any contract, promise or agreement that is not to be performed within one year from the making thereof, unless the agreement,, promise or contract upon which -such action shall be brought, or some memorandum or note thereof, .shall be made in writing, -and signed by the party to be charged therewith,.or signed by some other person by him thereunto properly authorized.”

The appellant contends that the -contract proved by the appellee comes within the above statute, and cites to sustain his contention the cases of Meyer v. Roberts, 46 Ark. 80; Henry v. Wells, 48 Ark. 485; Oakleaf Mill Co. v. Cooper, 103 Ark. 79; Izard v. Ins. Co., 128 Ark. 433. Unquestionably, under the plain terms of the statute and these authorities, if the contract in evidence was not to be performed within one year from the making, as was the case in the authorities above mentioned, then the contract would be witliin the statute of frauds, and the judgment of the court would be erroneous because the appellee is suing on an alleged contract, and, if not to be performed within a year, the appellant was entitled to have the cause tried on the issue raised by the pleadings and was entitled to the declaration of law for which it prayed.

We cannot concur, however, in the view of learned counsel for the appellant that the contract proved by the appellee was one not to be performed within a year. On the contrary, the testimony of the appellee and of his witness, Noyen, shows that the contract was one that fixed no definite date for its performance. It was one that could be entered upon and performed at the earliest date possible after the making and before the expiration of one year from the date the contract was entered into. The appellee did enter upon the performance of his contract immediately and rendered the services which he was engaged to render long before the expiration of one year from the date of the making of the contract. It is true the fruition of appellee’s labors did not come to the appellant until after the expiration of a year from the date of the contract, but the appellee actually performed the services called for under his contract before that time. Undoubtedly, the testimony of the appellee tends strongly to prove that the reduction of the freight rates which was made effective October 1, 1923, was the direct result of the services of the appellee under his contract with the appellant. The contract was not rendered void within the statute of frauds because the consideration for the appellee’s services was fixed at an amount equal to one-half the sum saved by the appellant for a period of three years after the reduction. That was simply a method adopted by the parties for valuing the services rendered by the appellee under his contract.

Here the undisputed testimony shows that the contract was one which could be performed by the appellee within a year, although there was a possibility, and even a probability, that it might require a longer time. Such contracts do not come within the statute of frauds. The statute applies only to agreements which appear from their terms to be incapable of performance, or such as the parties never contemplated should be performed, within a year. Meyer v. Roberts, 46 Ark. 80; Ry. Co. v. Whitley, 54 Ark. 199; Sweet v. Desha Lbr. Co., 56 Ark. 629; Sullivan v. Winters, 91 Ark. 149; Valley Planting Co. v. Wise, 93 Ark. 1; Hampton v. Caldwell, 95 Ark. 387; Thomas v. Croom, 102 Ark. 108; Graham v. Jonesboro, L. C. & E. R. Co., 111 Ark. 598; Johnson v. Cheek, 163 Ark. 176. See also 25 R. C. L. p. 454, §§ 29 and 30; Wood on Statute of Frauds, § 275, p. 479; case note to White v. Fitts, 15 L. R. A. (N. S.) 313, 102 Me. 240.

It follows that, even though the court erred in declaring that the appellant was entitled to the value of his services on a quantum meruit basis, nevertheless the appellant is not in an attitude to complain of such error because, under the law as above announced, the judgment of the court should have been bottomed on the contract, and the court under the testimony of the appellee might have found for him the entire consideration of the contract which appellee’s testimony tended to prove. The court found for the appellee in .less than half that sum. Therefore, the appellant has no cause to complain, as the error in the court’s ruling was not prejudicial to it. The judgment is affirmed.


author: Hart, J.,

text:
    Beckler v. Snerly.
    Opinion delivered July 13, 1925.
    Mortgages — description of property. — The record of a mortgage which described the property conveyed as the mortgagor’s interest in a rice crop to be produced on a certain farm during the year 1923, held sufficient to put third persons upon inquiry.
    Appeal from Prairie Chancery Court, Southern District; JobnE. Martineau, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    R. D. Snerly brought this -suit in equity against Peter Beckler and others to recover judgment in the sum of $1484, and to have the proceeds of a certain rice crop applied to the payment of said indebtedness upon the ground that he had a valid mortgage upon said rice.
    Peter Beckler admitted having the rice crop in his possession, and the suit was defended on- the ground that he had a mortgage which was a prior lien on the rice crop.
    It appears from the record that Peter Beckler owned 320 acres of land in Prairie County, Ark., and on the 1st day of January, 1920, conveyed it to E. N. Ahlfeldt. Notes were given for the purchase money, and a mortgage was executed on the land to secure their payment. After making part payment of the purchase money, E. N. Ahlfeldt conveyed said land to C. S. Beck, who assumed to pay the purchase money notes executed by E. N. Ahlfeldt. On the 10th day of July, 1922, C. S. Beck executed and delivered to R. D. Snerly a mortgage on his one-half interest in the rice crop to be grown on the land for the year 1923. This mortgage was duly acknowledged and filed for record on the 26th day of August, 1922. Neither C. S. Beck nor E. N. Ahlfeldt was able to pay the purchase money notes on the land in question held by Peter Beckler. It was agreed between them that the land should be leased for the year 1923 to make a rice crop, and that Beckler should malee the necessary advances of money and supplies to be used in making the crop. Subsequent to.this agreement, C. S. Beck leased the land for the year 1922 to one E. H. Whitehouse for the purpose of raising a rice crop, and each was to have an undivided one-half interest in the crop.
    On the 15th day of February, 1923, C. S. Beck executed a chattel mortgage on his one-half interest in the rice crop to be grown on the land in 1923 to Peter Beckler to secure him for advances made in the sum of $27'55.19. After the crop was grown Beck turned the rice over to Beckler, who claimed it under his mortgage. His contention was that the mortgage executed 'by Beck to Snerly on the same crop, although given first, was void as to him on account of uncertainty in the description of the rice crop.
    The mortgage recites that C. S. Beck had bargained, granted, and sold to R. D. Snerly “a sufficient portion of his right, title and interest in 200 acres (more or less) of rice (landlord’s one-half interest) which he is to cultivate and produce during the year 1923, on what is known as the 0. S. Beck farm, located in Prairie County, Arkansas, and more accurately described as follows: (Here follows a description of the land by metes and bounds).
    “To have and to hold all the above described property unto the said party of the second part, his heirs, executors, administrators or assigns, forever.”
    The mortgage is conditioned that Beck shall pay to Snerly $1484 not later than November 10, 1923. No part of the indebtedness secured by either mortgage was paid by Beck. Hence this lawsuit.
    The chancellor found that the mortgage of Beck to Snerly on the rice crop was a valid one, and that it was prior to the lien of the mortgage executed by Beck to Beckler.
    A decree was entered of record in favor of R. D. Snerly against Peter Beckler in accordance with the findings of the chancellor, and from that decree comes this appeal.
    , Pettit & Leach, for appellant.

      George G. Lewis, for appellee.
   Hart, J.,

(after stating the facts). The record shows that the mortgage given on the rice crop by Beck to Snerly was filed for record prior to the mortgage on the same crop given by Beck to Beckler, and that no part of the mortgage indebtedness of either of said mortgages has been paid. This is conceded by counsel for appellant, B.eckler, but they contend that the description , of the mortgaged property in the mortgage to 'Snerly is void for uncertainty, and that for that reason the mortgage to 'appellant is a prior lien on the rice crop in question. Thus it will be seen that the sole question presented on this appeal is whether • or not the description of the mortgaged property contained in appellee Snerly’s mortgage is sufficient to create a lien upon the property sought to be embraced in the mortgage against a subsequent mortgagee.

It will be seen from our statement of facts that Beck gave a mortgage to Snerly upon a sufficient portion of his undivided one-half interest in 200 acres of rice to be grown on his farm during the year 1923 to comply with the condition in the mortgage, and that the condition in the mortgage is that Beck shall pay to Snerly $1484 not later than November 10, 1923. In other words, this was a mortgage on a sufficient portion of the undivided one-half interest of C. S. Beck in a rice crop of 200 acres more or less to be grown on his farm during the year 1923 to pay an indebtedness of $1484 which Beck owed Snerly.

The textwriters lay down the general rule to be that any description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates and directs, is sufficient. A second rule is that any description which can be made certain by such inquiries is good. In short, if the description of the property in a chattel mortgage is sufficient to put third persons on inquiry, from' which inquiry they can ascertain what the property is which is attempted to be described in the mortgage, such description would be sufficient. Dodds v. Neel, 41 Ark. 70; Johnson v. Grissard, 51 Ark. 410, and Eades v. Simpson, 127 Ark. 162.

In the application of this general rule, the Supreme Court of Alabama in Truss v. Harvey, 24 So. 927, held that a mortgage on a crop for a stated year, and for every year thereafter until the debt is fully paid, was not void for uncertainty as to crops raised subsequent to the year named.

In that case, the property described in the mortgage was all of the crops of corn, cotton and other produce which the mortgagor might* raise or cause to be raised during the year 1893, and every year thereafter until the mortgage debt was fully satisfied. The court said that the description, although general and somewhat uncertain, was sufficient to put on inquiry; and that the purchaser of the cotton from the mortgagor was bound to ascertain whether the cotton he purchased was subject to the mortgage. The court also said that the mortgage was not void for uncertainty as to the debt secured, since parol evidence was admissible to show that it was still unpaid. The court cited with approval Varnum v. State, 78 Ala. p. 28.

In that case the defendant was convicted of the statutory offense of selling cotton for the purpose of defrauding a named person having a lien created by a mortgage. The instrument in that case recited, “my entire crop of every description, raised by me, or caused to be raised by me annually, till this debt is paid. ’ ’ The defendant objected to the admission in evidence of the mortgage on the ground that it was void for uncertainty in the description of the crops intended to be included in it. The court said that, whatever force there might be in this objection to the instrument on its face, this alleged uncertainty was capable of being removed when read in the light of the circumstances surrounding the contracting parties at the time of its execution, by extraneous parol identification. Hence the judgment of conviction was affirmed.

In First Natl. Bank v. Rogers, 103 Pac. 582, the Supreme Court of Oklahoma held that a description in a chattel mortgage, which is sufficient to put a third person upon inquiry which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good. In that case the words of description of the crop contained in the mortgage are as follows: “the product and proceeds of all my 1907 cotton and all my future crops until tlie above note is paid.” Tlie court said that the contents of the mortgage furnished the defendant information, which,, aided by extrinsic evidence at his command, would have enabled him to ascertain that the cotton in controversy was the product of the crop described in the mortgage, and that he was not an innocent purchaser for value.

In the case of Smith v. Lafayette & Bro., 119 Pac. 979, the description in the mortgage was, all crops to bo produced by the mortgagor during the years 1906, 1907 and each succeeding year until the indebtedness described in the mortgage shall have been paid in full. There as here it was claimed that the description was too vague and indefinite to put a second mortgagee upon notice. The Supreme Court of Oklahoma was of the opinion that the description was sufficient, aided by extrinsic evidence, to put the second mortgagee on his guard, and to enable him to ascertain at the time he took his mortgage that the property in controversy was covered by the prior mortgage.

In the case before us we are convinced that the description is sufficient, and that it comes within the general principles announced in the decisions above cited which we regard as sound and of controlling force.

Reliance is placed by counsel for appellant upon the case of Williamson v. Steele, 3 Lea (Tenn.) 527, 31 Am. Rep. 652. In that case the description in the mortgage was so much of the cotton crop raised on a certain farm, describing it, as would be sufficient to make two bales of lint cotton, each weighing not less than 500 pounds. The description was properly held to be too indefinite, because it did not convey any aliquot part of the crop, and a mortgagee could have no right to select any particular part of the cotton raised to the extent of the quantity necessary to malee two bales. This description is more like the one referred to in Dodd v. Neel, 41 Ark. 70, where it was held that a mortgage of a specified number of articles out of a larger number will not be good against creditors of the mortgagor and others acquiring adverse rights, unless it furnishes the data for separating the mortgaged part from the mass.

This rule was recognized in Watson v. Pugh, 51 Ark. 218, but it was there said that where the number specified is more than the whole number of such articles, there' is no other property of the same kind from which a selection is to be made, and therefore no uncertainty in the description.

The description in the mortgage was “all my crop of corn, cotton or other produce that I may raise, or in which I may in any manner have an interest, for the year 1884, in Faulkner County, Arkansas.” The court held that the description could be macle certain by extrinsic evidence 'and was not void for uncertainty. In this connection it may be stated that the court cited with approval in the principles announced in Varnum v. State, 78 Ala. 28.

The record of the mortgage by Beck to Snerly was constructive notice to all persons acquiring rights in the rice crop subsequent to its execution, and, having held that the description in that mortgage was sufficient to put third parties upon inquiry, they were bound to inquire whether the rice in question was covered by the mortgage of Beck to Snerly.

The result of our views is that the decree of the chancery court is correct, and it will therefore be affirmed.


author: Hart, J.

text:
    Brown v. State.
    Opinion delivered July 13, 1925.
    1. Intoxicating liquors — m a k i n g mash — evidence.—Evidence held to sustain a conviction of making- mash in violation of the statute.
    2. Criminal law — cross-examination-—objection.—Error in the cross-examination of a witness will not he considered on appeal where the bill of exceptions fails to show objection thereto.
    3. Criminal law— province op motion for new trial. — -A motion for new trial -cannot be used to incorporate anything into the record or any exceptions to anything occurring at the trial.
    Appeal from Union Circuit Court; L. 8. Britt, .Judge;
    affirmed.

      II. W. A.pplegabe, Attorney General, and John L. Carter, .Assistant, for appellee.
   Hart, J.

E. W. Brown prosecuted this appeal to reverse a judgment of conviction against him for making mash in violation of our statute.

According to the evidence for the State, three deputy -sheriffs went to the defendant’s home in Union County, Ark., and searched it. There were two rooms to the house, and the hoards which made -the floor in one of the rooms showed that -nails had been driven in them recently. The officer prized them up, and found a five-gallon jug of whiskey in a place in the ground which had been dug out for that purpose. The whiskey was still warm as if it had been recently run through a still. In one of the rooms the officers found two sacks of sugar containing' one hundred pounds each. . They also found a small amount of whiskey in the kitchen and in a crib behind the house. About fifty steps from thp house they found a still and some mash. The coil to the still was gone, hut there was a gas pipe under the heater. The still was found in a little clump of woods, which extended about two-thirds of the way to the house of the defendant, and it was in Union ‘County, Ark. There was at least one barrel -of mash found, and the still was hot when they found it. The surrounding conditions indicated that the still had been recently used, and that mash had been buried in the ground in barrels near it. One of the witnesses said that there were four or five barrels there in the ground, and that they were covered with dirt and leaves. The still was across the public road from the defendant’s house, but the road was next to his house, and there was a path leading from the point in the road directly in front of the defendant’s house to the still which the officers found.

This evidence, if believed by the jury, was sufficient to warrant a verdict of guilty, and no useful purpose could be served by setting out the evidence for the defendant which tended to show that he was not guilty.

The next assignment of error in the defendant’s motion for a new trial is that the court erred in allowing the prosecuting attorney to improperly cross-examine Mrs. Henry Freeman, a witness for the defendant.

The record shows that the prosecuting attorney cross-examined Mrs. Freeman at length, but it does not show that any objection whatever was made to such cross-examination. We cannot consider this alleged assignment of error because the bill of exceptions does not show that any objection was made to the cross-examination of the witness, and a motion for a new trial cannot be used to incorporate anything into the record or any exceptions to anything occurring at the trial. Its sole use is to assign errors already committed by the court, except for newly discovered evidence, as provided by statute. Cravens v. State, 95 Ark. 321, and Adkisson v. State, 142 Ark. 15.

No other assignment of error is urged for a reversal of the judgment, and it will therefore be affirmed.


text:
    Scott v. State.
    Opinion delivered September 28, 1925.
    1. Continuance — absence op witness. — -A motion for continuance on account of the absence of a material witness is insufficient in stating that the witness is physically unable to be present at the trial, without stating the nature of the physical disability.
    2. Criminal law — evidence procured by duress. — Where a witness refused to testify at all, it was not improper for the court to send the recalcitrant witness to jail until she would testify, and her testimony so procured was not incompetent as procured by duress'.
    3., Criminal law — instruction as to dependant’s right to testify. — An instruction that the defendant had a right 'to testify, and that the fact that he did not avail himself of this right Was not to be considered against him, was not prejudicial to ' defendant.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      O. D. Thompson and Robert L. Rogers, for appellant.

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

Appellant was convicted of carnal abuse of a girl about fourteen years of age. Tbe girl testified tbat on a certain nigbt sbe was returning home alone from a religious service in tbe neighborhood, and tbat .appellant accosted her and forcibly bad sexual intercourse with her. Tbe parents of the girl, and other witnesses introduced by tbe State, testified tbat sbe was fourteen years of age at tbe time.

Tbe first assignment of error relates to tbe ruling of the court in refusing to grant appellant’s motion for a continuance on account of tbe absence of a witness, who would have testified, according to tbe allegations of the motion, tbat tbe girl was more than eighteen years of age at the time of tbe alleged, commission of tbe crime. In tbe motion for a continuance it was stated tbat tbe absent witness would testify that she was acquainted with tbe girl and knew her to be more than eighteen years of age; that tbe witness bad been summoned and was not absent by the connivance or procurement of appellant, and that the witness was physically unable to be present at the trial, but that her attendance or deposition could be procured if the cause Was continued. The motion contained no details as to the character of the physical disability of the witness and no evidence was offered of such disability. The motion merely. stated that the witness “is physically unable to be present at this date.” The1 allegations in the motion were therefore insufficient to justify the court in granting a continuance. Wood v. State, 159 Ark. 671.

It is next contended that the testimony of the injured girl was extorted from her by duress exercised by the' trial judge and the prosecuting attorney, and that the court erred in permitting the witness under those circumstances to testify against appellant. The testimony of the'girl is set forth in full in the record, and it appears that she was called by the State as the first witness, and,' after a few preliminary questions concerning her age and acquaintance with appellant, she was informed by the prosecuting attorney of the charge against appellant and requested to “go ahead and tell the jury all about it and just what happened.” To this question the witness made no answer, and, after being* urged by the prosecuting attorney to “go ahead and tell where you had been and all about it, ’ ’ the girl began crying, whereupon the trial judge said, ‘ ‘ Gro ahead, young lady, and tell the truth; nobody is going to hurt you. Just tell what occurred out there.” The girl made no answer either to the trial judge or to the prosecuting attorney, and, after repeated urging without results, the court suggested to the prosecuting attorney that he call another witness and that “maybe the witness can collect herself and answer your questions by that time.” The girl was then temporarily excused from the witness stand, and her father was put on the stand to testify concerning her age and certain other matters. The girl was then recalled to the witness stand, and made no answer to any of the questions propounded to her. Her attitude was manifestly one of unqualified refusal to' answer questions, and finally the ¡court said to her, “Young lady, I axn getting out of patience with you. I think it is as much stubbornness as anything else. Take your hands down from your face and answer the question. ’ ’ The court then directed the girl’s father to take her into the jury room and “see if you can ¡do 'anything with her, ’ ’ ¡and directed the prosecuting attorney and one of the attorneys for appellant to accompany them. After a short absence all of the persons named returned to the court room, and the attorney for appellant made objections to the introduction of the witness on the ground that duress was being used to force the witness to testify. This occurred during the afternoon, and the court announced that there would be an adjournment over until next morning, and stated to the Witness that she Would be expected to answer questions the next morning and tell the truth. On the next day the girl was recalled to the witness stand, and when the first question was propounded to her she announced that she was not going to prosecute appellant ¡and gave the same answer to repeated questions. There was ¡one question, however, which she answered in the negative, and that was the one propounded by the prosecuting ¡attorney as to whether or not she had ever had sexual intercourse with appellant. She answered, “No, sir.” The prosecuting attorney then asked her if her testimony before the grand jury was false, and she made no answer to that question. The court then directed the sheriff to take the witness to jail, and the jury was allowed to separate with the usual admonition not to have any conversation about the case. In the afternoon the girl was again called to the witness stand and answered the questions of the prosecuting attorney, narrating the circumstances under which the alleged crime was committed. ■She was ¡cross-examined at length by appellant’s counsel, and other witnesses were introduced tending to show contradictory statements made by the girl to other persons.

Appellant insists that the record shows that coercion was used to compel the girl, not merely to testify in. the case, but to testify to particular facts against the appellant, and counsel contend that this rendered the testimony of the witness incompetent. We do not agree with counsel that they are correct in their contention as to what the record shows. It is true that one answer given by the witness exonerated appellant from guilt, and that was the only question which was answered by the witness until she finally concluded to testify in full. It is manifest, however, from a consideration of the whole record that both the trial judge and the prosecuting attorney were merely endeavoring to induce the witness to testify — -not to compel her to testify to any given state of facts. She was repeatedly admonished that all she was expected to do was to tell the truth and to narrate what had happened, if anything, between her and appellant on. the occasion mentioned in the indictment. Certainly it was the duty of the court to compel a recalcitrant witness to testify. We find it unnecessary to determine what would have been the effect if the recital of the record was sufficient to show that any other effort was made than to merely compel the witness to testify.

Finally, it is insisted that the court erred in giving the following instruction on its own motion:

“4. The defendant had the right to testify, and the fact that he did not avail himself of this right is not t’o be considered against him. This right is a privilege and not a duty, and the fact that he did not avail himself of this right cannot be considered by you in determining his guilt or innocence of this charge.”

The contention is that this instruction amounted to a comment by the court on the fact that the appellant has not testified in the case, and was in violation.of the statute conferring upon an' accused person the right to testify. Crawford & Moses’ Digest, § 3123. The instruction of the court was for appellant’s own benefit, and it Was an instruction which it was the duty of the court to give, if requested to do so by appellant. The fact that the court gave the instruction on its own motion-, as an admonition to the jury, does not render it harmful or prejudicial.

We find no error in the record, and the judgment is therefore affirmed.


text:
    Green v. State.
    Opinion delivered September 28, 1925.
    1. Larceny — unexplained possession op stolen property. — The unexplained possession of recently stolen property constitutes legally sufficient evidence of guilt of larceny.
    2. Larceny — sufficiency op evidence. — Evidence in a larceny case held sufficient to sustain a finding that defendant’s explanation of his possession of property recently stolen was insufficient ■ to establish his innocence.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      Booker & Booker, for appellant.

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

Appellant was indicted for the crimes of burglary and grand larceny, the indictment in tw-o counts alleging that he broke and entered the store house'of Geyer & Adams, a corporation, with the intent to commit the crime of grand larceny, and that he committed the last-mentioned crime- by stealing a case of cigarettes, containing 22,000, and a lot of tobacco, -all the property of said corporation. On -the trial the jury returned a verdict of not guilty as to the charge -of bur- ' glary, but convicted appellant of the crime -of grand lar- ■ eeny. The instructions submitting the issues to -the jury were not objected to, and the only question raised on the appeal is that of the legal sufficiency of the evidence.

The -evidence establishes the fact that the store house of Geyer & Adams was broken into on the night of March 6, 1925. and that a case of cigarettes and a lot of tobacco were stolen. The only evidence connecting appellant with the theft w¡as proof of his possession of a part of the stolen property on the night of the burglary. A police officer testified that shortly,after twelve o’clock on the night 'in question he arrested appellant with the stolen cigarettes in this possession. The officer testified that he wias walking along his beat, within two 'blocks of the store of Geyer & Adams, and observed appelant taking the cigarettes out of .a pasteboard box or carton, in which they had been originally received, and putting them in a sack, that appellant tore the box into two. parts and,' after putting the cigarettes into the sack, threw them across his shoulder and walked away, whereupon he followed appellant and stopped him, and asked him what he had, and ■appellant replied that he had cigarettes. Tlhe officer testified that he picked up one-half of the 'box, which had the name of Geyer & Adams stamped on it.

It is conceded that the lot of cigarettes found in appellant’s possession was stolen from the store of Geyer & Adams, but appellant contends that he found them in the .street, and put them in the sack in order to 'take care of them for the owner. He testified that he found the ■box of cigarettes on the street under an arc light, and that the box was torn in two parts; that he saw á flashlight in or about the O’Leary store, a short distance away, and went there for the purpose of informing the person of the finding of the cigarettes, but when he got there the person had disappeared, and that thereupon he found a sack and put the cigarettes into it and started home, when the officer overtook him aiid arrested him.

It will be noted that there is a sharp conflict between the testimony of appellant and that of the officer in one respect, that is in regard to the box being torn. Appellant testified that he found the box torn in two parts, but ■the officer testified that appellant tore it apart himself. Appellant testified that he had been to a picture show that night, and was returning home and found the cigarettes on the street.

It has been decided 'by this court that unexplained possession of recently stolen property constitutes legally sufficient evidence of guilt of the larceny. The trial jury is warranted in drawing the inference of guilt or innocence .according to the reasonableness of the explanation of the possession, weighed in the light of the particular circumstances of the case. Tested by this rule, we are of the opinion that the evidence in the case is legally sufficient to support the verdict of the jury. The jury were warranted in reaching the conclusion that appellant’s explanation of his conduct was not consistent with innocent possession of the stolen property.

Judgment affirmed.