author: Wood, J.

text:
    Sneed v. State.
    Opinion delivered May 7, 1923.
    1. Homicide — absence of motive. — While it is competent to' prove the presence or absence of motive in determining the issue of guilt or innocence, and while such proof is always a cogent factor relative to that issue, yet, if the testimony be otherwise legally sufficient to prove 'guilt, a verdict of guilty cannot be set aside because of failure to prove a motive for the crime.
    2. Homicide — sufficiency of evidence. — Proof of the affectionate ■conduct of defendant and his wife toward each other .held not sufficient, as matter of law, to overcome the evidence of his guilt under the evidence in the record.
    3. CRIMINAL law — misconduct of judge. — Alleged remarks and misconduct of the trial judge will not be considered on appeal unless objected to at the trial.
    4. Criminal law — instruction as to former trial. — It was not error in a murder trial to instruct the jury not to consider the former trial of the case and the result thereof, and that it had no effect upon the case except that, if the jury should find the defendant guilty of murder in the first degree, they could only fix his punishment at life imprisonment, which was the punishment fixed by the jury in the former trial.
    5. Criminal law — substitute for bill of exceptions. — A motion for new trial and affidavits in support thereof cannot be used as a substitute for a bill of exceptions to bring up for review matters that occurred during the trial.
    Appeal from Craighead Circuit Court, Jonesboro District; B. E. L. Johnson, Judge;

    affirmed.

      J. H. Hawthorne, F. C. Mullinix, L. C. Going, and Gautney •& Dudley, for appellant.
    Evidence not sufficient to sustain verdict of murder in first degree. ■ The conduct of tbe trial judge and the manner of his rulings indicated to the jury that he favored the prosecution, believed defendant should be convicted. 69 N. W. (Ia.) 274. The court erred in excluding evidence offered by the State and refusing to exclude evidence of the State, in commenting oh the weight and effect of the evidence when ruling on the competency of the will of Mrs. Sneed, and the prejudicial effect was not removed by later allowing .all the will to be introduced. Court erred in refusing to give appellant’s requested instruction No. 14. It would have'tended to correct the misleading instruction on reasonable doubt. 135 Ark. 159; 149 Ark. 346. Error was committed also in refusing to instruct the jury that they' should not consider for any purpose the verdict of conviction on the former trial. 72 Ark. 138; 125 Ark. 314. The court erred in permitting improper argument by attorneys for the State and in making improper comment on the objections thereto. 58 Ark. 473; 62 Ark. 516; 95'Ark. 233; 74 Ark. 259.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee; N. F. Lamb, special counsel.
    The evidence amply sustains the verdict — leaves no room for doubt of guilt of appellant. There was no misconduct of the trial judg’e nor anything in his manner of ruling or statements' that could have indicated to the jury an opinion on the weight of testimony or guilty of appellant. No exceptions were reserved to any alleged misconduct. No error was 'committed in instruction to the jury relative to the former’s verdict. Neither was there any error in excluding. or admitting testimony. No error in refusing instruction No. 14. There is comparatively little circumstantial evidence in the record. No error committed in connection with the alleged improper argument to the jury. No exception saved on this subject. C. & M. Digest, '§ 3228, also §§ 1321, 1322; 88 Ark. 350; 119 Ark. 152'; 87 Ark. 543; 57 Ark. 1; 56 Ark.' 563.
   Wood, J.

The appellant was indicted for the crime of murder in the first degree in the alleged killing of his wife, Cora Sneed, by poison. This is the second appeal in this case. Sneed v. State, 143 Ark. 178. Both trials resulted in a verdict of murder in the first degree, fixing’ the punishment at imprisonment for life. The appellant contends that the judgment from which this appeal eomes should he reversed upon the following grounds:

• 1. That the evidence is not legally sufficient to sustain the verdict.

2. Alleged misconduct of the trial judge.

3. Errors in excluding evidence offered by appellant and in refusing to exclude evidence of the State.

4. Errors in granting and refusing prayers for instructions.

5. Errors in refusing to sustain objection to improper argument and in making improper comment on the objection.

We will dispose of these in the order mentioned.

First: Counsel for the State, after making certain additions to the abstract of appellant, begin their brief by saying: “The evidence is so complete and conclusive of Sneed’s guilt that there is no room for doubt in the mind of any impartial man.” Counsel for the appellant, after stating the effect of the evidence as contained in their abstract, say: “The more rational view of the evidence is that she (Mrs. Sneed) did not die from the effects of strychnine poisoning, but that the cause of her death, so far as her doctors are concerned, and so far as the evidence shows, was unknown.” Since there is this wide divergence of view by opposing counsel as to the effect of the evidence, we have thought it necessary to read the record of the evidence for ourselves, and, after having done so, our conclusion is that the evidence was legally sufficient to sustain the verdict. The record of the evidence covers more than six hundred pages of the transcript. Hence we can only give a synopsis of it.

The testimony adduced for the State tended to prove that about the 18th of'August, 1919, Cora L. Sneed became ill, as she supposed, from a cold contracted during her menstrual period. After doctoring herself a few days with a ‘ ‘ round of calomel, ’ ’ on Friday, the 22nd of August, she was seized with violent convulsions. The appellant sent for neighbors. When they arrived, they urged him to send for physicians, and he replied that he had sent for Dr. Bone, his family physician, who lived twelve miles distant. Other doctors lived in the city near by, and were not immediately called. Finally Dr. Walker was called early in the morning. He administered chloroform and morphine until the convulsions subsided, and left at nine o’clock. Dr. Bone arrived about 10:30 a. m. Dr. Walker returned about 11 o’clock, and they concluded that Mrs. Sneed was ill from the effects of severe constipation, and treated her for that. Among other things prescribed for her they left from twelve to seventeen thirtieth-grain .strychnine tablets, to be given every three or four hours, as needed, to quiet her nerves. On the Sunday night following she was seized with similar convulsions to those had on Friday. The family physician was not notified of this attack.

Will Jinks, a brother of Mrs. Sneed, who was not on friendly terms with appellant and Mrs. Sneed, heard of her illness, and went to her home. He suspected that Sneed might be poisoning his sister, and suggested that another doctor be called, which' was done, arid this physician, in connection with the family physician, continued the treatment for “locked bowels.” On Sunday night Dr. Lutterloh was called in. He and Dr. Bone continued the same treatment. Dr: Lutteriloh left three sixtieth-grain strychnine tablets to be taken, and some other medicine. At the suggestion of Dr. Lutterloh, Dr. Altman was also called. On Monday Mrs. Sneed had other convulsions of a lighter character, but by Wednesday she was greatly improved and considered ont of danger. After this spell she became apparently well, except that she was weakened as the result of her recent illness. During the latter part of this illness Dr. Bone had prescribed for her nervousness potassium bromide and strychnine injections when needed.

About four weeks from the time the illness just mentioned began, two little girls were at Sneed’s home. Mrs. Sneed- was looking after the laundry. Sneed came into the room where his wife was, and in a playful spirit jumped and boohed at her. She became nervous, and lay down on the bed. Sneed went out to play ball with a child, and returned in a short while. He went into the kitchen and returned with two glasses of medicine with about three-fourths of an inch of liquid in each glass, one a brown color and the other white, and gave the same to his wife. This was about eight o’clock. About an hour thereafter Mrs. Sneed was again in violent convulsions of the same type that she had had on the former occasions. Neighbors were called, and insisted on appellant calling a doctor rather than to wait for Dr. Bone, whom Sneed had already called. During this last attack Mrs. Sneed said, “Get a doctor quick, but don’t touch me.” The appellant didn’t call for a doctor in town, and refused to permit one to come until the family physician arrived. Dr. Bone came about 10:30; He called in Dr. Ratcliff. Mrs. Sneed had been in convulsions about two and a half hours when Dr. Bone came, and she died at 11 o’clock. While Mrs. Sneed was in convulsions on the night of her death, appellant administered hypodermically one-sixtieth grain of strychnine at an interval of an hour, dividing it into two doses. During the convulsions Mrs. Sneed was perfectly rational. When the convulsions would subside she would say “I am going to have another spell,” and would 'beg them not to let her have any more. She told the neighbors that she knew what was going on and knew they were sympathizing with her, but she could not speak.

Medical experts testified that consciousness during convulsions was never present in any other ailment except lockjaw (tetanus). Mrs. Sneed did not have lockjaw. The character of the, convulsions was described before the jury as follows: Rigid condition of the body, head drawn back and lieels drawn taut against the bed; toes turned out, extremely rigid; fingers drawn and clinched like bird-claws; eyes glassy and staring, and the corners of the mouth contracted, giving the face a meaningless grin. After death there were livid or purple splotches on her neck and face and other parts of her body, characteristic of strychnine poisoning. None of the doctors who attended Mrs. Sneed during her last illness had ever been called before to treat a case of strychnine poisoning, and those of them who witnessed her during her convulsions did not suspect at the time that she had been poisoned, but all of them testified that the convulsions described were typical of strychnine poisoning as defined by the best medical authorities; and, in answer to hypothetical questions describing the convulsions of Mrs. Sneed, several of the experts testified that, in their opinion, the death of Mrs. Sneed was the result of poisoning by strychnine. Portions of the body of Mrs. Sneed were subjected to chemical analysis, according to the most approved methods, and the chemist ascertained that the portions of. the body examined contained what he estimated to be one-tenth of a grain of strychnine, and the whole 'body would contain, according to correct standards of estimate and measurement, as much as one grain, which, the expert showed, would be sufficient to kill. The chemist and other experts testified that a grain was a deadly dose of strychnine; that where it is given in medicinal doses every three or four hours in thirtieth or sixtieth grains it was not possible, for it to accumulate in a quantity large enough to produce death; that- strychnine does not accumulate, and is rapidly eliminated from the body; that a half, and even a quarter, of a grain had been known to kill.

About seven days before the death of Mrs. Sneed the appellant asked a druggest in Jonesboro if he had thirtieth-grain hypodermic strychnine tablets. The druggist did not have the hypodermic tablets, but sold Sneed one hundred thirtieth-grain triturates — tablets to be taken internally. Sneed and his wife had no living children. There was testimony for the State tending to prove that Mrs. Sneed had inherited considerable property from her mother, Mrs. Jinks, but they had practically spent it all at the time of Mrs. Sneed’s death. Mrs. Sneed had made a will devising all of her property to her husband. At the time of her death Mrs. Sneed had life insurance policies amounting to $5,000 in which the appellant, her husband, was the beneficiary. During the night after the death of Mrs. Sneed appellant was drinking, and also on the following night. He knew, or suspected from what he had seen, that an inquest and a probable autopsy would be held on the body of his wife. He told one of the neighbors that he had had three specialists at his home to examine Mrs. Sneed, and had their certificates showing that she was afflicted with goiter. He referred to the anticipated inquest and autopsy, and drew his hand across his throat saying, “It means this for me.” On the night while the undertaker was embalming the body Sneed asked one of his neighbors to request the undertaker to save the blood of his wife, that he wanted the same for his protection in the event of trouble. He asked one of the members of the coroner’s jury to take a drink with him, and another person also, displaying two pint bottles of liquor. He exhibited a pistol, and abused one of his neighbors (who had invited Jinks, his 'brother-in-law, home for supper after the death of Mrs. Sneed), for not telling appellant about the coroner’s jury and for entertaining Jinks. He stated that if the coroner’s inquest were held and investigation made, “It will mean this for me,” drawing Ms band across Ms throat. After the coroner’s jury arrived, Sneed, while “pretty drunk,” came to the door of the room and said: “Look her over, look her over good, strip her off and look her over.”

The appellant adduced testimony which tended to prove that the most tender and affectionate relations had always existed between himself and his wife from the time of their marriage down to the hour of her death. Upon her death he manifested the grief that was usual and natural for one who had lost a beloved companion. The testimony tended to prove that Mrs. Sneed had goiter. According to his family physician, appellant, after he had been drinking, and when he had eaten certain sweets, was afflicted with indigestion, and the doctor had prescribed strychnine, and he had been taking same regularly for his ailment. Experts in appellant’s behalf, in answer to hypothetical questions, testified that it could not be stated with any degree of certainty whether the amount of strychnine found in the remains of Mrs. Sneed was due to an overdose, or to an accumulation of strychnine. One of the experts, an experienced bacteriologist, testified that in making a chemical analysis, such as was shown on behalf- of the State, unless an exceedingly large amount should be found he doubted whether one would be justified in .saying positively that death resulted from an overdose of strychnine.

The appellant, in his testimony, admitted that he had purchased strychnine from the druggist a short time before his wife’s death, but stated it was for his own use, as he was accustomed to taking it. He admitted that he had administered strychnine after she -became ill, but stated that he did so under the doctor’s directions. He denied that he had given her any strychnine otherwise. He explained that, as to the two doses given from the two glasses on the night of her death, the brown dose was potassium bromide and the white was buttermilk. He admitted that he made the statements attributed to him in regard to the coroner’s inquest, to-wit, “It will mean this for me,” drawing his hand across his throat, but stated that he meant it in a different sense from the way it had been construed. He denied the unseemly conduct attributed to him by the witnesses in regard to the examination of his wife’s body. Other witnesses also in his behalf testified that he did not say, in the presence of the coroner’s jury, “There she is, gentlemen, strip her off and take a look at her. ’ ’ Appellant and other witnesses in his behalf also denied the other unseemly conduct attributed to him, soon after the death of his wife-, by witnesses on behalf of the.State. Appellant stated that his wife had 'been ill with goiter, and that he had specialists to examine and treat her, and that she had not been a well woman for a long time before her death. He detailed fully to the jury what he did in waiting upon his wife during her last illness. Among other things, he stated that he did not give his wife anything to kill her, and would not have done so. He loved her devotedly, and nothing had ever occurred during their married life to estrange them.

While there was much more testimony, it would unduly extend this opinion to further set it forth. The above are the salient facts which the testimony for the State and the appellant tended to prove.

Now, we cannot agree’ with learned counsel for the appellant that the “more rational view of the evidence” is that Mrs. Sneed died from natural causes, brought about by disease rather than from strychnine poisoning. On the contrary, it occurs to ns that the more reasonable view is that her death was the result of being poisoned by strychnine. Mrs. Sneed died in convulsions, which, according to the undisputed- evidence, were typical of strychnine poison, and not typical of goiter or any other disease save tetanus, and she did not have tetanus. The jury might have found that the condition of her body after death indicated that she had been poisoned by strychnine, and that strychnine in a deadly quantity was found in her remains. But counsel for appellant, in oral argument, strenuously urged that, even if this were true, still there was no testimony to prove that the strychnine which whs found in her body and which caused her death was the result of an overdose administered intentionally by the appellant, rather than the effect of an accumulation from medicinal doses administered to her under the directions of the doctor during her last illness. Counsel are not correct in this contention, because the jury might have found, from the testimony of the chemist and other experts, that the amount of strych'nine found in Mrs. Sneed’s body after death could not have been the result of medicinal doses; that it would have been impossible, under the conditions that existed from the time she first became ill until her death, for medicinal doses of strychnine, given as directed by attending phyicians, to have accumulated in an amount sufficient to cause her death. If, as the jury found, the death of Mrs. Sneed was the result of strychnine poison, then the jury were justified in finding that the appellant administered same in a deadly quantity. The proof shows that the doctor had instructed him how to administer it hypodermically. Sneed therefore had the means and the opportunity of killing his wife.

But counsel insist that his coursé of conduct throughout his wife’s illness and their married life was entirely inconsistent with his guilt. In other words, the effect of the argument is that there was no motive for the killing. The State contends that the motive was to obtain life insurance money on policies insuring the life of Mrs. Sneed in which appellant was named as the beneficiary.

While it is competent to prove the presence or absence of motive in determining the issue of guilt or innocence, and while such proof always is a cogent factor relative to that issue, yet if the testimony be otherwise legally sufficient to prove guilt, a verdict of guilty cannot be set aside because of failure to prove a motive for the crime. Ince v. State, 77 Ark. 418; Scott v. State, 109 Ark. 391; 2 Wharton on Circum. Ev., 1646, § 878. This is a wise rule of law. It is sometimes impossible to penetrate the human mind and discover any motive whatever for the most enormous crimes. Motives that influence the will and impel the commission of horrible crimes may be, and often are, as unfathomable as Erebus.. Nevertheless, upon the plainest principles of reason and justice essential to the common security of society as a whole, the criminal actor, when found, must be punished, whether any motive for his act can be proved or not.

Learned counsel for appellant in their oral argument stressed the testimony proving the tender and affectionate conduct of appellant and his wife toward each other throughout their married life, and rely upon presumptions of fact which, nature and the law attach to such conduct as forbidding the possibility of appellant’s guilt under the evidence in this record 2 Wharton, Cr. Ev., p. 1653, § 881. But it cannot be said, as a matter of law, that, because of the sacred relation of husband and wife, and because witnesses testified that they manifested unusual affection for each other, therefore appellant could not and did not kill his wife under the circumstances disclosed by the evidence. For, notwithstanding the relation of husband and wife and the natural presumption of affection between them growing out of it, it is nevertheless true, as stated by Mr. Burrill, that “in particular cases, too numerous, unhappily, for the credit .of humanity, these affections have been found to interpose no sort of bar to the gratification of either the gainful or revengeful impulse to murder; or, to speak with more precision, that the affections presumed from the relations of the parties have not, in fact, existed.” Burrill on Circum. Ev., p. 322; see also Wills on Circumstantial Ev., 43-44.

Second: Under the head of the misconduct of the trial judge, showing his bias and prejudice against the defendant, counsel contend that the court erred in making certain comments while excluding the offered testimony of witnesses, Mr®. Hay and Cole. ■ This assignment of error is not made one of the grounds of the motions for a new trial, and we therefore oannot notice it.

Counsel 'objected also to certain comments of the court in excluding certain portions of the will of Mrs. Sneed, which appellant offered in evidence. The record shows that, when the will was offered, the State objected to certain portions of it, and in making its ruling the court sustained the objection and gave the reason for such ruling, “to which ruling- the defendant at the time excepted and asked that his exception be noted of record, which was accordingly done. ” It appears that after the above ruling, the State withdrew its objection to the introduction of the entire will, and the same was read to the jury. It does not appear that appellant objected specifically to any remarks of the court that were made in excluding a portion of the will. The objection was to the ruling of the court in excluding any portion of the will and not to the remarks made by the court. Furthermore, we find that the remarks themselves could not be construed in any way as an expression of the court’s opinion on the merits of the case, and were not prejudicial to appellant.

Under this head, as one of the grounds of the motion for a new trial, the appellant sets up that one Dr. W. F. Jinks, an uncle of the deceased, sat by the trial judge while the trial was in progress and held frequent whispered conversations with him during the taking of testimony; that the conduct of the judge could easily be observed by the jury, and was observed by various persons in the audience, who made frequent remarks concerning same. Appellant also alleged that the presiding judge held frequent conversations with Will Jinks, brother of the deceased, during the taking of the testimony in the presence of the jury. This ground was supported by the. affidavits of three persons, who stated therein that they were present during the progress of the trial and observed the conduct of the judge as above set forth.

“Impartiality,” says Justinian, “is the life of justice.” With this thought in mind, the framers of our Constitution provided “that judg*es shall not charge juries with regard to matters of fact, hut shall declare the law.” This provision was intended to prevent trial judges from expressing any opinion on the merits of the issues of fact pending. Issues of fact under our juridical system, are for the jury. It certainly violates the spirit of the Constitution, if not the letter, for a trial judge, by any conduct of his, to' indicate to the jury what his own convictions are as to the merits of the case. As the presiding genius of the proceedings, the trial judge should hold the .aegis of the law with firm and impartial hand over the rights of all litigants. He should scrupulously avoid manifesting, by act or word, any fear of, or any bias for or against, any one connected with the cause. Unless he does so, the jury will be impressed with his personal feelings or convictions in the matter they are to determine. See Tharp v. State, 51 Ark. 147, 155-6. If -it were established that the trial judge was guilty of the conduct attributed to him, we would not hesitate to reverse on account thereof, because such conduct necessarily would be fraught with great prejudice to the accused. But no exceptions were saved to the alleged misconduct of the trial judge at that time, nor at .any time before the verdict. If objection had been made and hi® attention directed to the alleged misconduct of which appellant now complains, the trial judge might have instructed the jury so as to inform them that he had no opinion whatever on the merits of the cause. He at least should have been given that opportunity. It would not do to set aside the verdicts of juries on account of the alleged misconduct of trial judges upon the mere affidavits of on-lookers, especially when such affidavits are controverted in all essential particulars, as they are here. See Pendergrass v. State, 157 Ark. 364. There is no reversible error when the trial court finds, upon conflicting affidavits, as it does here, that there is ‘‘no merit and substantially no trnth in the affidavits with reference to Dr. W. F. and W. H. Jinks and their treatment or association with the court during the trial, and that the statements contained in the affidavits of said W. F. and W. H. Jinks are true and correct.”

Third: We find no prejudicial error in the ruling and remarks of the court with reference to the introduction of the will of Mrs. Sneed.

During the cross-examination of appellant he was ■asked, over the objection of appellant, how many children he had by a former marriage, and answered, “Two.” He was then asked where they were, and answered that he did not know — that they were with their mother’s people. Their grandfather adopted them into his family. It had been developed, on cross-examination, without’ objection, that Sneed was born in Illinois, had lived in Kentucky, had been twice married before, that his first wife had died, and he had obtained a divorce from his second wife; that he had come to Arkansas from Kentucky under an indictment, and went for a time under an assumed name in this State. It was while his former history was thus being traced, as testing his credibility, that the above questions were asked. The testimony was relevant in the connection in which it was elicited. Hollingsworth v. State, 146 Ark. 387; Hunt v. State, 114 Ark. 239-243; Pearrow v. State, 146 Ark. 201-206. But, even if it could be said that the testimony was too remote to throw any lig'ht on the credibility of appellant, still there was nothing in the answers to the questions prejudicial to him.

Fourth: The court did not err in refusing to give appellant’s prayer for instruction No. 14. The instruction was argumentative in form. ¡Besides, it was fully covered in 'correct instructions which the court gave on the subjects of reasonable doubt and circumstantial evidence.

After the conclusion of the argument the court told the jury ‘ ‘ that the former trial of this case and the result of it is not to be considered by you in deliberating upon your verdict for any purpose whatever, and it has no effect upon this case, except the one which the law gives it, which was to the effect that, if the jury should, find the defendant guilty of murder in the first degree, they could only fix his punishment at imprisonment in the State Penitentiary for ¡life.” The appellant objected to the instruction on the ground that “the jury must not consider the former verdict for any purpose, as it has no weight as evidence in the case.” There was no error in the instruction, and it was a proper one to give. Eeferences to the former trial had been made throughout this trial, during the selection of the jury, the opening statement of counsel, the taking of testimony, and the arguments of counsel before the cause wás finally submitted. The instruction therefore was proper, and, if any prejudice had been lodged in the minds of the jury by these references, this instruction had the effect to remove it. The instruction was tantamount to telling the jury that they could not consider the former trial or verdict as evidence in the canse, and thus fully met appellant’s objection in this respect. The effect of the instruction was to tell the jury that, as appellant had once been put upon trial for murder in the first degree and the punishment in that case fixed at life imprisonment, if they should return a verdict of guilty they could not punish him by death. It was proper for the court to instruct the jury as to the form of its verdict and as to-the punishment, in case they should return a verdict of guilty, so that they might not be misled and possibly return a verdict in a form that would result in a mistrial because of former jeopardy. Article 2, § 8, Const.; Johnson v. State, 29 Ark. 31; Stewart v. State, 13 Ark. 720; State v. Clark, 32 Ark. 231.

Fifth: The eighth ground of appellant’s motion for a new trial is as follows: “During the closing argument in said cause, and while said closing argument was being made by Honorable N. F. Lamb, attorney for the State, said .attorney stated, in substance, that the jury should not give to the evidence of Sneed any weight; that Sneed had been convicted of this crime by one jury and sentenced to the penitentiary for life, and that the jury should not believe his testimony in preference.to that of other witnesses; to which remark counsel for defendant at the time objected as improper, and asked the court to instruct the jury not to consider the fact that said Sneed had been convicted of the crime of murder in the first degree and sentenced by a jury to the penitentiary for life in the former trial, and to exclude it from their consideration, which objection was overruled by.the court, and said request denied.”

In support of this ground appellant presented the affidavit of Judge Dudley, one of appellant’s counsel, who states therein, among other things, that he was present during the closing argument of Mr. Lamb, employed counsel for the State; that in commenting upon the testimony of the witnesses Mr. Lamb stated as follows: “He (appellant) had been convicted of this crime by one jury and sentenced to the penitentiary for life, and that this jury should not believe his testimony in preference to that of other witnesses.” Judge Dudley states that he arose and objected to the argument as improper; that he called the attention of the-court and Mr. Lamb to the fact that the stenographer was absent, and he wanted no controversy or misunderstanding about what took place, and requested them to remember what transpired in order that it might be reduced to writing and incorporated in the bill of exceptions; that he asked the court to instruct the jury not to consider Mr. Lamb’s statement for any purpose, and to exclude it from the consideration of the jury, which the court refused to do, and remarked, “Let the record show the objections and the opening statement of Judge Gautney,” to which he (Judge Dudley) at the time excepted; that on the following morning he (Dudley) reduced to writing the objectionable remark made by Mr. Lamb and his request to the court, and the court’s refusal to act. He then went immediately to the courthouse and found Judge Johnson on the bench, but court had not convened. He told Judge Johnson that he had reduced to writing what had transpired the night before with reference to Lamb’s argument, and gave him the same, and also a copy to Mr. Lamb before the jury was sent out to consider its verdict. The court took no other action with reference to it. The court did not remark, at the time the affiant 'objected to the remarks of Mr. Lamb, that “such remarks were permissible only on account of the statement and ¡remark of Judge Gautney, and that the jury would not consider said former verdict for any purpose.”

The appellant also presented t'he affidavits of H. L. Phelps and Claude B. Brinton, who stated that they were present in court during the closing argument for the State by Mr. Lamb, and that in his argument he stated to the jurv that Sneed w>as a convict and ought not to be believed by the jury, for he had been convicted of this crime before by a jury and sentenced to the penitentiary for life; that at the time Judge Dudley arose and objected to the remark, and .asked the court to tell the jury not to consider it; that the court overruled his objection, and the argument went on. These two affi-ants stated that they were not related to the appellant or to any one connected with the lawsuit, and had no connection with the cause.

The State, in rebuttal, presented the affidavits of Mr. Lamb and Prosecuting Attorney Shane. Among other things, Mr. Lamb stated, in substance, that he did not say to the jury at any stage of the argument that they should not give any weight to the evidence of Sneed, but did say to them that the evidence given by him stood practically alone and uncorroborated, and that if the jury wanted to believe Sneed instead of numerous other disinterested witnesses who contradicted him, it was their privilege to do so, but that he had testified with the sentence of punishment for life staring him in the face, and that, if the jury should believe him instead of numerous disinterested witnesses whose evidence contradicted him, we might as well abandon our courts; that, upon objection being made to these and other remarks by Judge Dudley, the court, in ruling upon the objection, stated to the jury at the time that the remarks of counsel were permissible only on account of the statements and arguments of Judge G-aut-ney, but the jury must not consider the former verdict for any purpose.

Mr. b^ne, the prosecuting attorney, in his affidavit corroborated the statements of Mr. Lamb as to what occurred in connection with the matters mentioned in the eighth ground of the motion for a new trial. The record shows that the court, in overruling the motion for a new trial, among other things in connection with the eighth ground stated as follows: That N. P. Lamb made the closing argument in behalf of the State, and in so doing referred to said former conviction and punishment fixed, and explained to tlie jury why the State had not qualified them upon the subject oí the death penalty, said reference and explanation being ias set forth in said affidavits of Lamb and Shane; that .an objection was made by Judge Dudley to any reference by opposing counsel to said former verdict and punishment, and the court stated to the jury that such argument was only permissible on account of the statements made by Judge G-autney in both the opening and closing argument, and the purpose of such explanation, but should not be considered by the jury for any other purpose.”

Now conceding, for the purpose of the opinion, that Mr. Lamb made the remarks above set forth, which are here challenged, the record proper does not show that any objection was made to the remarks at the time, nor that any exceptions were saved to any ruling of the court concerning same. It appears that the court’s order in overruling this ground of the motion for a new trial states as follows: “That an objection was made by Judge Dudley to any reference by opposing counsel to said former verdict and punishment,” etc. Even if this recital could be considered an exception as well as an objection, it does not reach to the remarks contained in the eighth ground of appellant’s motion for a new trial. The bill of exceptions signed by the trial judge does not show that any objection was made or exception saved to the remarks at the time they were made. There is no bill of exceptions by bvstanders showing that objections were made and exceptions saved to the remarks of Mr, Lamb. In his affidavit Judge Dudley does not say that the statement nrepared and presented by him to the judge the morning after the alleged argument occurred was intended as a bill of exceptions by bystanders and presented as such for .his acceptance or allowance. On the contrary, he savs that he was taking such precaution in order that the court and Mr. Lamb might remember what transpired, that same mig’ht be reduced to writing and incorporated in the bill of exceptions. Moreover, even if it could be said that it was intended by Judge Dudley as a bill of exceptions by bystanders, that statement is not brought into the record, and it is nowhere shown, either in the affidavit of Judge Dudley or other affidavits, that the exceptions were presented to the trial judge and rejected by him. This was absolutely essential. There was nothing in the bill of exceptions signed by the presiding judge identifying any affidavits as having been presented to him as a bill of exceptions and refused by him. Therefore we are bound to hold, unless we overrule many former decisions of this court, that there is no bill of exceptions, land that the appellant has not complied with the statute by presenting for our consideration a bill of exceptions containing the matters in the eighth ground of appellant’s motion for a new trial. A motion for a new trial and affidavits in support thereof cannot be used as a substitute for -a bill of exceptions to bring up for review matters that occurred during the progress of the trial. Secs. 1317, 18, 21, 22, C. & M. Digest. See Fordyce v. Jackson, 56 Ark. 563; Vaughan v. State, 57 Ark. 1; Ayer-Lord Tie Co. v. Greer, 87 Ark. 543; Cox v. Cooley, 88 Ark. 350; Pearson v. State, 119 Ark. 152.

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

Hakt and Smith, JJ., dissenting.

       Appellant’s request No. 14 was as follows: “14. If the evidence produced 'by the State is circumstantial, or there is no direct and positive evidence that a crime has been committed, or that defendant is guilty thereof, to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by the evidence 'beyond a reasonable doubt, and all facts necessary to such conclusion must be consistent with each other and with the main facts sought to be proved, and the circumstances taken together must be of such a conclusive nature as to induce in the minds of the jury the reasonable belief that the defendant is guilty beyond a reasonable doubt and must exclude every ither reasonable hypothesis save that of defendant’s guilt” (Rep.).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Davis v. Cook.
    Opinion delivered May 7, 1923.
    1. Judgment — res judicata.' — A former decision holding that an • attack upon the validity of assessments in a road improvement district was barred by failure to perfect an appeal from a judgment upholding the assessments within 30 days held res judicata,

      i. Highways — waste by commissioners of road district. — In a ■ suit against the commissioners of a road improvement district for waste of the funds of the district, an allegation that the commissioners wrongfully selected as the depository of the district a bank of which one of the commissioners was president, director and stockholder, was demurrable, in the absence of an allegation of waste or loss of funds by the bank.
    3. Highways — waste op funds op improvement district. — In a suit against the commissioners of a road improvement’ district for waste of its funds, an allegation that the commissioners did not- allow the time-slips of the men employed in the construction of the road to be honored at any place except at a place of business owned by one of the commissioners held demurrable in the absence of an allegation that the district lost anything on that -account.
    4. Highways — waste o-p funds op improvement district. — In a suit against road commissioners for waste of the district’s funds, an allegation that the commissioners took over a gravel bed, for which a judgment was obtained against the district, and that the bed was -subsequently abandoned by the commissioners, held demurrable, in the absence of an allegation that the commissioners acted with a corrupt or malicious intent in regard thereto.
    5. Highways — waste of funds op improvement district. — In a suit against the commissioners of a road improvement district for waste of the funds of the district, an allegation that the commissioners committed waste of such funds by employing attorneys to -pass upon the validity of the bonds issued by the district held demurrable; such matter being within the power of the commissioners, the only inquiry of the court being to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.

      c> Highways — waste op funds op improvement district. — In a suit against road improvement commissioners for waste an allegation that waste was committed in employing an engineering firm at five per cent, to supervise the construction of the improvement when one per cent, would have been a reasonable fee, held not sustained by the evidence.
    7. Highways — waste op funds op improvement district. — Where an act creating a road improvement district provided that the commissioners might vary the line -of the road if they deemed it to the best interests of the district if the county court approved the change, a landowner objecting thereto should exercise his right of appeal in apt time, -and the action of the county court -approving such change cannot be questioned in a coll-at-' eral proceeding against the commissioners for waste of the district’s funds.
    Appeal from Little River Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      E. F. Friedell and Evaois & Evans, for appellant.
    The court erred in sustaining demurrer to paragraphs 10 .and 12 of the amended complaint and also to paragraph 11, except the last subparagraph, and the last subparagraph of paragraph 13. 124 Ark. 6. The fact that the contract was. made with the bank does not remedy the condition, since Cook, secretary of the 'board, was a stockholder, director and president of the bank, the inhibition is against the commissioner being* interested, “either directly or indirectly,” in any contract made by the board. “Indirectly” defined, 32 Md. 561, 3 Am. Rep.. 364; 4 Words & Phrases; 36 N. W. 868, 38 Minn. 255; 2 Gill & J. 382; 84 N. E. 737, 198 Mass. 413; 2 Words & Phrases, 2d series. Paragraph 12 is substantially the same as paragraph 25 of complaint in 147 Ark. 476. The subparagraph of paragraph 11 charges waste and mismanagement relative to a gravel bed the commissioners attempted to procure from the district. The 2d subpara-graph of said paragraph 11 charges commissioners unlawfully paid $1,500 fee to a firm of lawyers for an opinion on validity of district bonds, when the opinion was procured .at the instance and for the benefit of the bond buyers. 122 Ark. 14; 143 Ark. 446. The subpara-.graph of paragraph 15 charges that the commissioners built a mile o'f road unnecessarily in order to pass the residence of one of the commissioners and in front of the bank of which he is president. Commissioners would not permit time slips of employees cashed except .at store of which Commissioner Cook was president of company. Talbnom v. Lewis, 124 Ark. 6. The Jewell-Greenwood shoals lateral and all the laterals were built without complying with the law and making separate assessment of benefits and applying the funds arising from additional assessment of 'benefit to the construction of the particular lateral for which made. Sec. 21, act 292.

      Shaver & Shaver, A. D. Dulcuiiey, Jones & Head, and Paul Jones, Jr., for appellees.

      The opinion of the court on the motion to dismiss eliminates from the appeal all paragraphs of the complaint except those relating to the alleged waste committed and .suffered by the commissioners, by the engineers and contractors of the district. Many of these charges have been abandoned by appellant’s failure to argue them in their brief. 135 Ark. 272; 139 Ark. 283; 147 Ark. 469. No error in sustaining demurrer to paragraph 10. Tollman v. Lewis, 124 Ark. 6, not in point. The district lost no money by its employees trading with the New Rocky Grocery Co., nor by placing the funds in the depositories selected. No personal liability of commissioner unless he acted with a corrupt and malicious intent. Sec. 17, act 292, Acts 1919. Demurrer properly sustained to subparagraph 2, paragraph 11, relative to payment of fee for attorney’s opinion of validity of district bonds for benefit of bond buyers. Opinion was necessary in order to sell the bonds, and commissioners had right to make contract. 151 Ark. 47. "Word “unlawfully” does not aid paragraph. Pharr v. Knox. 145 Ark. 4. Not sufficient to plead fraud generally. 35 Ark. 555; 17 Ark. 603; 51 Ark. 1; 72 Ark. 478; 110 Ark. 416. Paragraph 12 also insufficient. Case of 147 Ark. 469 readily distinguishable from facts herein. Proof shows (Wright case) only usual price agreed to be paid engineers. Burden was on plaintiffs to show contracts unreasonable. 149 Ark. 476; Pomeroy’s Equity, par. 927. As to last paragraph of 13, commissioners had right to select route through town of Foreman, §§ 1 and 2, act 292, Acts 1919, and there is no allegation of» existence of a more feasible or less expensive route than one selected. Only conclusions of law stated. 145 Ark. 4; 35 Ark. 555; 43 Ark. 296. Assessments were properly levied and moneys used for laterals as authorized by the act. Appellants were estopped to bring these actions objecting to the construction of the primary roads or laterals and attempting to put upon the commissioners the burden of paying for the laterals.. 61 N. E. (Ill.) Ill; 50 Ark. 116-36 L. R. A. (N. S.) 39, 43 Mass. 336; 55 Ark. 148.
   Smith, J.

Appellants are landowners in Road Improvement District No. 7 of Little River County, which was created by a special act of the 1919 General Assembly.

They brought separate suits attacking the district on numerous grounds. The court below dismissed their complaints, and they appealed to this court, and we decided that so much of the appeal as involved the validity of the district, or the assessment of benefits, should be dismissed because the appeal was not taken and perfected within the thirty days required by the act creating the district. We also held that the thirty-Ray limitation on the right of appeal did not apply to the parts of the complaint which sought to recover against the commissioners, the engineers and contractors for waste, as to which allegations we held the general statute of limitations applied. Davis v. Cook, 155 Ark. 613.

The case has now been briefed upon the allegations of waste and the testimony relating thereto, the court below having found against the plaintiffs on all the questions raised.

It is first insisted that certain laterals were constructed without authority, and without assessing against the lands benefited thereby the cost thereof, as provided by the act.

Express authority was given by the act to construct these laterals; but it is insisted there was no separate assessment.of betterments, as required by the act. The testimony shows there was a separate assessment of benefits for each lateral. The lands were divided into six zones with reference to their proximity to the main thoroughfares, and a maximum assessment of $12 per acre was made against the lands lying in the first zone, the one nearest the road. Lands lying adjacent to the lateral roads were assessed on the same basis, but an assessment exceeding $12 was not made against any land, although it was within a mile of both a main thoroughfare and a lateral. Certain other objections to the assessments were also made.

We think all of these questions may be disposed of by saying that the former decision of this case is decisive of them. If proper assessments were not made, or if assessments were made upon an improper basis, an appeal therefrom should, have been taken within the time and manner provided by section 22 of the act, and that was not done.

It is next insisted that the commissioners wrongfully selected as the depository of the district a bank of which one of the commissioners was president, director and stockholder, and therefore interested in the contract between the bank and the district. This allegation of the complaint was disposed 'by demurrer thereto, which the court sustained; and we think the demurrer was properly sustained. The act does require that the directors take an oath, and, pursuant to the act, they took the oath, that they “would not be interested, directly or indirectly, in any contract made by the board.” The case of Tallman v. Lewis, 124 Ark. 6; is cited in support of appellant ’s' insistence.

We think that case has no application here. There was no allegation that the commissioners, or any .of them, paid out any funds of the district to the bank, or to anyone else, for the services of the bank in acting as a depository. The director was not the bank, and there was no contract with him in regard to the funds. We do not see just what relief could, in any event, be awarded under this paragraph of the complaint. The funds of the district have been expended in building the road, and there is no allegation of waste or of loss of funds by the bank. . ■

What we have said about this allegation of the complaint is conclusive of the allegations of another paragraph of the complaint, that the commissioners did not allow the time-slips of the men employed in the construction of the road to be honored at any place except at a place of business owned by tbe commissioner who was the bank president. A. demurrer was sustained to this paragraph of the complaint, and, we think, properly so. The contract had been let for a fixed sum to the construction contractor. This arrangement about the time-slips was between the men working on the road and the store at which they traded, and there is no allegation that they were charged a higher price for goods than was charged other people who bought for cash, and there is no allegation that the district lost anything by this arrangement, or that it was required to pay out any of its funds on that account. The arrangement, however reprehensible it may be considered, is at an end, and we know of no order we could make in regard thereto, it not being alleged that the district sustained any loss on account of this practice.

Paragraph eleven of the 'Complaint alleged that the commissioners contracted for a gravel bed, or took possession of it without contracting for it, and then abandoned it without using it in any manner for the benefit of the roads of the district, and that, as a result of their action in taking over this gravel bed, the district had been sued in the circuit court by the owner of the gravel bed, and a judgment recovered against the district in the sum of $-.

As the liability of the district was fixed by the judgment of the court, it must be assumed that the district paid only what the gravel bed was worth. It does not appear from the pleadings why the district took over the gravel bed, nor why it was abandoned, but it was not alleged that the commissioners acted with a corrupt or malicious intent in regard thereto, and, in the absence of that allegation, the demurrer to that paragraph of the complaint was properly sustained, because, by section 17 of the act, it is expressly provided that no commissioner shall be liable for any damages sustained by any one unless he has acted with a corrupt and malicious intent.

A paragraph of the complaint questions the fee paid the attorneys who passed upon the validity of the bonds issued by the district. "We do not think this constituted waste, as it may have been necessary to obtain this opinion to effect the sale of the bonds; at least, this was a question for the determination of the commissioners.

The act creating the district gave the 'commissioners the power to make contracts and to employ agents and attorneys. They were charged by the act with the performance of highly important duties, and were vested with a wide discretion, necessarily so, to carry through the enormous improvement intrusted to their management and supervision. Of their right to make contracts we said: “The commissioners have power to malee contracts, but they are trustees of the property owners, and can only make reasonable ones. The owners of the property have a right to challenge the validity of such contracts by showing that they are unreasonable. Of course, in testing the validity of such contracts, the court should not substitute its own judgment primarily for that of the commissioners, the authority to make the contract being lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.” Bowman Engineering Co. v. Ark. & Mo. Highway Dist., 151 Ark. 56.

There is an allegation that waste was committed in employing an engineering firm at five per cent, to supervise the construction- of the improvement, when a fee of one per cent, would have been reasonable for that service. Substantially this allegation appeared in the complaint ■of each landowner. In one case a demurrer was sustained to that paragraph on the ground of the insufficiency of the recitals of the allegation. 'But in the case of the other plaintiff an answer was filed denying that an excessive or improvident fee was charged, or had been paid. Testimony was heard upon this allegation, which was offered by the commissioners, and the fact is estab-fished that the engineer’s fees were nsnal and customary, and were not excessive or unreasonable.

No error was committed therefore in sustaining the demurrer to the paragraph in one complaint, even though it stated a cause of action, inasmuch as the same allegation was heard on its merits on the answer filed in the other case. There were two complaints, 'but they were consolidated and heard together, and, for all practical purposes, constituted one suit.

There was a paragraph of the complaint attacking the construction contracts, and issue was joined thereon by answer filed, and we think the testimony warranted the action of the court in dismissing this paragraph as being without equity. This is true because the testimony does not show that those contracts were unreasonable or arbitrary.

There was a paragraph of the complaint which charged wilful waste in the construction of a lateral road of unnecessary length in order to reach the home of one of the 'commissioners. The act required the commissioners to submit their plans for approval both to the State Highway Department and the county court, and provided that, “if the commissioners deem it to the best interests of the district to vary the line of the road, as hereinbefore laid out, they may report that fact to the county court of Little River County, and, in that event, if the county court approves of the report, it may make an order changing the route of the road, and, if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided.” See section 4 of act 292, vol. 1, Road Acts 1919, p. 1205.

Any landowner had the right to.be heard on the approval of the plans of the district, and, if there was cause for complaint, should have exercised this right in apt time. We cannot review here in this collateral proceeding the action of the county court in approving the location of a particular road.

Certain, paragraphs of the complaint alleged that the assessment is discriminatory, excessive and 'confiscatory, being made so by the constrnction of the lateral roads. We have said, however, that these are questions con-' clnded by the former opinion in this case.

The defendants in each of these cases, by their separate answers, plead an estoppel in pais to each of these actions. The insistence is that the plaintiffs stood idly by for two years without objection and allowed the expenditures to be made of which they now complain.

There appears to be much merit in this contention, in view of what this court said was the duty of the property owners in the cases of Rector v. Board of Improvement, 50 Ark. 116, and Fitzgerald v. Walker, 55 Ark. 148; but we have considered the case upon its merits as an original proposition, as did the court below, and have concluded that the complaints were properly dismissed as being without equity, and that decree is affirmed. •


text:
    Casteel v. White River Grocery Co.
    Opinion delivered May 14, 1923.
    1. Trusts — liability of trustee. — If a trustee violates the rights of a beneficiary by neglect or misconduct, the beneficiary may hold the trustee liable for the damage caused.
    2. Evidence — preponderance.—In determining the preponderance of evidence in an equity case, although it is proper to consider the number of witnesses testifying, the number of witnesses is not the test of the weight of the evidence, but the court must consider the interest of the parties, the. relationship of witnesses to them, the reasonableness or unreasonableness of' their testimony, and all the circumstances detailed in, evidence.
    Appeal from Baxter Chancery Court; Lyman B\ Reeder, Chancellor;
    affirmed.

      Allyn Smithy for appellant.

      S. M. Casey, for appellee.
   Wood, J.

On the 14th of October, 1916, W. H. Casteel, a merchant at Buffalo, Arkansas, entered into a verbal contract with the White River Grocer Company (hereafter called company) by which he turned over to the company his stock of goods and accounts due him for merchandise. Casteel at that time owed about $2,750, which he was unable to pay. He owed to the company about $400. His stock of goods invoiced $1,525. It was the understanding between- Casteel and the company that the latter should account to the creditors of Casteel for the amount of the invoice, less ten per cent.

This action was instituted by Casteel against the company. He set up in his original complaint the contract, as above stated, and alleged that the company was to collect the accounts promptly, without cost to Casteel, and, after paying the debt to itself and the other debts, was to turn all uncollected accounts back to Casteel; that the company had settled all the debts owing by Casteel for about fifty cents on the dollar, and had collected a large sum of money on the accounts for merchandise due him, for which it had refused to account; that it had suffered such of the notes and accounts as were due but not collected to become outlawed — barred by the statute of limitation. He prayed for an accounting, and judgment for the amount of the notes and accounts which the company had negligently permitted to become barred by limitation. By an amendment to his complaint, Casteel alleged that the contract was that both Casteel and the company were to collect the notes ,and accounts due Casteel without cost to Casteel; that he, in good faith, was proceeding to collect the accounts, when the company, without right, notified his debtors not to pay him, and that’ therefore he was unable to make collections; that the company negligently failed to make collections, and this conduct of th,e company amounted to a conversion by the company of Casteel’s notes and accounts, and that it was liable to him, on an accounting, for the whole amount of the uncollected accounts.

The company answered the complaint, and admitted that the stock of goods, notes and accounts of Casteel were turned over to it, as alleged, but it denied that the notes and accounts were to be collected without cost to Casteel. On the contrary, it alleged that the notes and accounts were to be collected by the company as far as possible. It alleged that it took charge of the goods, the notes and accounts, under the contract, and sold the goods for the best price obtainable, eighty cents on the dollar, and turned the notes and accounts over to one S. E. Denton for collection, who collected wliat was possible, and the company applied the entire proceeds on the debts of Casteel, including its own deíbt, pro rata. But the sum realized was not sufficient to pay the creditors of Casteel, and that he was still due the company the sum of $227.50. It alleged that Casteel, after he had turned over his notes and accounts to the company to be applied on this indebtedness to his creditors, continued to collect same himself and to apply the proceeds so collected to his own use, in violation of his contract with the company. It alleged, among other things, that many of the notes and accounts were denied by the parties who Casteel claimed were thus indebted to him; that many produced proof that they had paid'same to Casteel. It alleged that the notes and accounts were largely worthless, and that the company realized only a small per cent, in the collection of the same, and that such amount, after paying a reasonable fee for collection, together with the proceeds from the sale of the stock of goods, was applied to the payment of Casteel’s debts, and the entire sum was sufficient to pay only slightly over fifty cents on the dollar of those debts. The company, by way of cross-complaint, set up that Casteel was indebted to it in the sum of $227.50, as above stated, for which it prayed judgment.

The prayer of the complaint for an accounting to be had before a master was granted. While the record is silent as to whether the master to be named was agreed upon by the parties, the master’s report shows that Z. M. Horton was named as special master, and that the cause was referred to him to state an account. His report shows that he took the depositions of Casteel and two of his brothers and of Harrison Gaines and James Carter, for Casteel, and the depositions of Seth Matthews and S. E. Denton for the company, and, after considering these depositions, with all the exhibits and pleading's in the cause, he made certain findings of fact to the effect that the stock of goods and books and accounts, etc., which Casteel had on hand at 'his store in Buffalo, Arkansas, were turned over to the company, which undertook to collect in the matter of winding up the business of Casteel, according to the contract between them. The master found that the company had used due diligence in its effort to collect these accounts, and that, after calling to its assistance S. E. Denton of Cotter, one of the best of collectors, it realized the sum of $178.92, which, added to the sum of $1,372.68 realized from the stock of goods, it applied to Casteel’s debts; that the amount paid only about fifty-five per cent, of the principal of those debts. The master found that the company had acted in good faith in carrying out the contract; that many of the accounts turned over to the company had not been collected; that many of these accounts were against near relatives of Casteel, and that some of them were denied by the alleged debtors-; that the company, having accounted to the creditors for all sums that had come into its hands, was not liable to Casteel in any sum.

The report of the master recites that the attorneys for the respective parties argued the case before him by brief. His report was made at the April term of the court, 1921. After the report of the master was filed, the depositions of the two brothers of Casteel were retaken, and also Casteel took tlie deposition of one Bonner. In their original depositions the brothers of Cas-teel testified that they were present during the conversation between Will Casteel and Seth Matthews, the representative of the company, in which conversation they entered into the verbal contract out of which this action arose. They were called as witnesses to the agreement, and testified as to what was said. The testimony was elicited by question and answer. They stated, in substance, that the contract was that the company was to take the stock at ten per cent, discount and take tlhe accounts, and each one was to collect on the accounts to cover the indebtedness, and the balance of the accounts were to he turned hack to their brother, Will Casteel.

In the depositions of James and Elbert Caste'el that were retaken after the filing of the master’s report, both stated that Will Casteel and the company were to collect on the accounts, and there was to he no expense to the collections: that neither he nor any one else was to have any pay for making the collections.

The testimony of Bonner was to the effect that the accounts due Casteel were turned over to the company for joint collection. The company was to hold the hooks,' and the amount collected, without any discount of fees for collection, was to he credited on Casteel’s debt. Casteel stated at. the time that the accounts were all g'ood, and that he could collect them all.

The testimony of Matthews, who conducted the negotiations for the company, was to the effect that the company was to take over the notes and accounts, collect what it could, and apply the same on the indebtedness of Casteel. The creditors found out that the company-was to settle up the accounts, and he took it up with the creditors and got their permission to act as trustee and collect the accounts. ' Nothing was mentioned about Casteel’s collecting or about the company’s collecting. The company was to take them and try to collect what they could to apply on his indebtedness, after tlxe books and the accounts were taken over, Casteel never made any effort to assist the company in collecting the accounts, and never inquired about what success it had. The collector, Denton, reported that the parties from, time to time would say that they had paid Casteel, or that they didn’t owe the debt, or something- to that effect. Witness wrote all the debtors on the list furnished by Casteel, and half of them denied the debts, and others would not pay. He used all the means he knew, consistent with good business policy, to collect them. It was shown on behalf of the company, and Casteel himself testified, that, after he had turned over the books and accounts to the company, lie collected some money from his creditors, and, instead of turning fhe money over to Matthews, he applied the same to a personal debt on which he was surety. Casteel testified, as to this transaction, that, while he was in business in Buffalo, he had signed a note with some person as surety, and before the note came due the principal brought the money to him to pay the note. He put the money in the drawer, and when he made the deal with the company he forgot about the money to pay the note being in the. drawer, and he took the first money he'collected from the accounts that had been turned over to the company and paid off the note. The company, after that transaction, notified the list of debtors not to pay him the amounts of the accounts.

Denton testified that he was a justice of the peace, and also a licensed lawyer, and made a business of collecting-claims; that he had had a good deal of experience along this line. He charged for collecting accounts of the kind turned over to him the sum of 25 per cent, commission on the amount collected. The Casteel accounts were turned over to him by Matthews for collection. He- stated that he did all that he could do to collect-the same, and out of the entire list he collected only $528.40. Two-thirds of them denied that they owed anything. . After the accounts were placed in his hands, Casteel never made any request to turn any of - them over to him to collect.. He testified as to tlie efforts that he made to collect the accounts. He stated that, in going over the' accounts with Casteel, when he came to his mother’s account, Casteel said to let that alone, and witness wrote Elbert Casteel ten or fifteen letters concerning his account, and never heard from him. After doing all he could to collect the accounts at 25 per cent, commission, and finding that he could not make expenses, he told the company he would keep them a while longer and do the best he could at 50 per cent, commission. After deducting his commission, he turned over to the company the sum of $178.92.

The above are substantially the facts upon which the court rendered a decree in favor of the appellee, from which is this appeal.

It is well settled that, if a trustee violates the rights of a beneficiary by neglect or misconduct, the beneficiary may hold the trustee liable for the damage caused. Clark v. Spanley, 122 Ark. 366.

The issues presented by this record are purely issues of fact. Appellant contends that, under the contract, he and the company were each to have the right to collect the accounts due him, and, after the debts were paid, the amounts uncollected were to be turned back to appellant. He further contends that, after the accounts had been turned over to the company, he proceeded, in good faith, to make all the collections he could, until the company made it impossible for him to proceed further by notifying his debtors not to pay him, but to pay the company, and that thereafter the company negligently failed to collect the accounts, ninety per cent, of which lie could have collected.

The appellant contends that the preponderance on these issues is decidedly in his favor. If numbers alone were the criterion in determining whether the preponderance is in appellant’s favor, we could agree with learned counsel. But, wdiile it is proper to consider numbers, yet that is not the test. The court must- take into consideration' the interest of the parties, the relationship' of witnesses to them, the reasonableness or unreasonableness of the testimony, and all the circumstances detailed in evidence. When this is done, we are convinced that the findings of the chancellor, to say the least, are not clearly against the preponderance of the evidence. The undisputed testimony shows that the company had the consent of the other creditors of appellant to act as trustee in winding up the affairs of the appellant, that is, collecting the accounts due him and using all assets available in the 'liquidation of his debts. It is unreasonable to conclude that the company would have entered upon a trust of this kind for the creditors, as tvell as the appellant, if the understanding was that appellant, the bankrupt, was to have the same control over the books and accounts that the company had. Doubtless the other creditors of appellant would not have consented to any such arrangement.

We do not discover any testimony to warrant the conclusion that the company did not exercise all the diligence required of it to collect the accounts in its hands. A decided preponderance of the evidence shows that it exercised all the diligence that any reasonable person under the circumstances would exercise to make the collections. We do not find any neglect or misconduct whatever on the part of the company that will render it liable to the appellant.

The trial court was correct in so holding. Its decree is therefore affirmed.


author: Hart, J.,

text:
    Hays v. Missouri Pacific Railroad Company (1) State v. Chicago, Rock Island & Pacific Railway Company (2).
    Opinion delivered May 14, 1923.
    1. Taxation — uniformity in assessment. — Const, art. 16, § 6, requires uniformity, not only in the rate of taxation, but also in the mode of assessment on the taxable valuation.
    2. Taxation — uniformity.—Under Const, art. 16, § 5, a State tax must be uniform over the whole State, and a county, city, town or other subordinate district tax must be uniform throughout the territory to which it is applicable.
    3. Taxation — school tax — uniformity.—Certain special acts providing a method of assessment of property for school purposes in certain school districts held to violate Const., art. 16, § 5, in fixing the value of the same property at a given per cent, for taxation for school purposes and at a different valuation for other general taxes.
    (1) Appeal from Jackson Chancery Court; Lyman F. Reeder, Judge;
    affirmed.
    (2) Appeal from Prairie Chancery Court, Southern District; John E. Martineau, Chancellor;
    affirmed:
    STATEMENT OF FACTS.
    These are companion cases, involving the construction of statutes which are claimed to violate art. 16, § 5, of our Constitution, requiring uniformity of taxation, and may be disposed of in one opinion.
    The Legislature of 1921 passed an act to provide a method of assessment of property for school purposes in the school district of Newport, Swifton Special School District and Tuckerman Special School District, Jackson County, Ark. Special Acts of 1921, p. 899.
    Sec. 1 of the act provides that it shall be the duty of the county assessor, at the time of making any assessment of property for taxation in the school districts enumerated above, to assess the same at seventy-five per cent, of its true market value, notwithstanding any other basis of valuation then being used, and on which valúa-tions are being entered in a column in said assessor’s boobs.
    Sec. 2 provides that the extension of said taxes for said school districts shall be made on the basis of seventy-five per cent, of the true market value of said property.
    Sec. 3 makes it the duty of the collector of taxes of Jackson County to collect the taxes for school purposes in said school district on the basis of the assessments fixed by the act.
    Sec. 5 provides' that the act shall apply only to the school districts above named.
    The terms of the act were complied with by the assessor, and the taxes for school purposes in the' dis-iricts mentioned were duty extended at seventy-five per cent, of the valuation of the property situated in said districts.
    The Missouri Pacific Railroad Company and others filed separate complaints against Geo. R. Hays, as tax collector of Jaekson County, and J. P. Parish, as county clerk of said county. The complaint in each case is practically the same, and sets out the facts above recited.
    It is also alleged that, for the year 1921, the Arkansas Tax Commission, pursuant to the statutes of the State, assessed the property of the plaintiffs, which are railroads, for all State, county, and school purposes; that said Commission made said assessments on the basis of fifty per cent, of the true market value of said property, and certified such assessment on the property of said plaintiffs located in Jackson County to the assessor of said county; that the assessor of said county set down in a separate column the value of the property of the plaintiffs,, situated in the special school districts above named, for school purposes on the basis of seventy-five per cent, of the true market value, and that Geo. R. Hays, as tax collector of said county, was proceeding to collect said school taxes in sáid school district on the basis of the assessment and extension of taxes under and by authority of the special act approved March 25, 1921, and referred to above. Similar suits were filed by owners of private property against said collector and said county clerk. Their complaints also alleged that their property in said school districts was assessed at a different valuation for other general taxes than is required by the statute for school purposes,
    By agreement of all the parties, the chancery court consolidated the cases for trial, and heard them together. The chancery, court found that the special act in question was unconstitutional because it was in violation of art. 16, § 5 of our Constitution, requiring uniformity of taxation throughout the State.
    The Legislature of 1921 also passed a special act to provide a method of assessment, of property for taxation for school purposes in DeValls Bluff Special District No. 1, Prairie County, Ark. Special Acts of 1921, p. 1259.
    Sec. 1 provides for a hundred per cent, assessment of all property for school purposes in said school district.
    Sec. 2 provides for the extension of said taxes, and § 3 provides for their collection on the basis of the assessment fixed by the act by the collector of taxes of said county.
    The State of Arkansas, on the relation, of the Attorney General for the benefit of said special school district, brought a suit in the Prairie Chancery Court against the Chicago, Rock Island & Pacific Railwav Company to collect the taxes overdue and unpaid under said act, and to declare the same a lien upon the property of said railroads.
    The complaint alleges a compliance with the act by the officers whose duty it is to levy and collect the taxes under its terms, and the refusal of the railroad companies to pay the same.
    In addition to the facts above set forth-, it appears from the record in this case that the Arkansas Tax Commission assessed the property of said railroad companies in said special district at fifty per cent, of its true market value, and certified the same to the proper officers, as required by law.
    The chancellor was of the opinion that the special act in question was contrary to the provisions of art. 16, § 5 of the Constitution of 1874, and it was decreed that the complaint should be dismissed for want of equity.
    All the cases are here on appeal.

      Boyce & Mack} for appellants.
    Act is not objectionable as attempt by Legislature to value certain classes of property. Neither does it modify or change the duties of the assessor, county boards or State Tax Commission. 49 Ark. 518. No requirement of the 'Constitution that the levying court shall levy school taxes, the duty being imposed by statute. Secs. 8956-57, Crawford & Moses’ Digest. Failure to provide for appeal does not affect validity of act. 57 Ark. 529. The only question in the case is whether or not the act is in conflict with § 5, art. 16, of the Constitution. The Legislature may require that, for school purposes alone, in all or any of the school districts of the State, all property be valued at 100 per cent, of its actual value, and then apply a different rule or basis for the valuation for State and county purposes without violation of. the equality and uniformity clause. 37 Cyc. 735, 742, 26 R. C. L. 245; 101 IT. S.'l53, 25 L. ed. 903; 49 Ark. 336; 25 Ark. 289. A school district is a taxing district. 57 Ark. 554. A statute is presumed to be constitutional, and all doubts must be resolved in favor of its constitutionality. 60 Ark. 343; 99 Ark. 14. The Constitution does not expressly forbid the adoption of different bases, of valuation in different districts of the State. Case of 62 Ark. 461 and others following it. are not controlling here. The Constitution does not prohibit the Legislature from fixing-a basis of valuation. 127 Ark. 353. The fact that the Legislature might make laws fixing a different basis of valuation in different counties, different school districts and different municipalities for local purposes is no argument against the validity of this act. 117 Ark. 622.

      Thos. B. Pryor, Ponder & Gibson} W. J. Orr, Jno. W. & Jos. M. Stayton, O. W. Scarborough, Gustave Jones, Thos. S. Btosbee, George B. Pugh and PL. T. Harrison, for appellees.
    The act fixing the different bases of valuation of property for taxation of property for taxation for school purposes in this district mentioned conflicts with § 5, art. 16, Constitution. 2 Ark. 365; 25 Ark. 295 (Const. 1868); 57 Ark. 557; 48 Ark. 370; 127 Ark. 349; 139 Ark. 41; 62 Ark. 461; 32 Ark. 31; 46 Ark. 312; 63 Ark. 592; 90 Ark. 416. Due process of law feature. 26 R. C. L. 340-1, 53 L. R. A. 454; 34 L. R. A. 725; 221 IT. S. 358. The right to a hearing. 118 U. S. 394; 164 U. S. 112; 203 IT. S. 323; 207 IT. S. 127; 210 IT. S. 373; 2 L. R. A. 655, 1916-E, L. R. A. 5 (note); 30 Amer. Rep. 289; 31 L. R. A. 382. Mode of assessment of railroad property fixed as entirety and tax apportioned among different counties, etc. 26 R. C. L. 188-191; 13 Arrr St. Rep. 482; 69 L. R. A. 447; 191&-E, L. R. A. 1186. State Tax Commission only has authority to assess property of railroads. Sec. 9788, C. & M. Digest; 94 Ark. 219; 52 Ark. 535; 64 Ark. 437; 130 Ark. 261; 127 Ark. 353. ■

      J. S. Utley, Attorney G-eneral, and Chas. B. Thweatt, special counsel, for appellants.
    The only question presented is whether or not act 627, Acts 1921, is valid. This act requires the property in DeYalls Bluff Special School' District to be assessed at one hundred per cent, of its true market valué for school purposes. The Legislature has plenary power to pass any law not forbidden by the' Constitution of •the State or of the United 'States. Sutherland, Statu- . tory Construction, 132. Its power of taxation has no limit except in the express provisions of the Constitution and the declared ends of government. 49 Ark. 349.
      Davies v. Sot Springs, 141 Ark. 525; 37 Cyc. 728. The act is valid unless it violates some express provision of either the State or Federal Constitution. Does not violate Amendment 9 to § 3, art. 14, Const. Neither does it conflict with the due process and equal protection clause of the Federal Constitution. Sec. 9790, C. & M. Digest; Taylor on Due Process of Law, 365; 52 Ark. 538; 90 Ark. 417; 26 R. C. L. 345; 138 Ark. 488; 141 Aide. 600; 191 U. S. 310. The chancellor erred in holding the act void as in conflict with § 5, art. 16, Constitution 1874. Taxing' by a uniform rule (Const. 1868). 25 Ark. 295; 27 Ark. 210. Board v. Missouri, 61 Pac. (Kan.) 693. Uniformity throughout the State, § 12, art. 3, Const. Construction of identical provision in Constitution 1836. 105 U. S. 278; 64 Ark. 570; 96 Ark. 419; 125 Ark. 167. Equality and uniformity rule frequently applied to a single county. 138 Ark. 452; 124 Ark. 569; 92 Ark. 492. Uniformity requirement relates only to taxing district. Williamson v. Mimms, 49 Ark. 349; 111 Ark. 118; 57 Ark. 557. State uniformity not required for local tax rate, 26 R. C. L. 247-8; 4 Dillon, Municipal Corporations, 1366; 10Í Tenn. 188. Cooley on Taxation, 333; 26 La. Ann. 493; Cooley on Taxation, 297; 37 Cyc. 733-4; 62 Ark. 461. 127 Ark. 353 not controlling herein. The statute expressly authorizes a separate assessment for school purposes, and it relates only to the district, and is used only for schools. The act is valid, and in this' suit, under 10204,. C. & M.. Digest, a decree shoulcl.be entered enforcing the lien for taxes due .as claimed.
   Hart, J.,

(after stating the facts). Art. 16, § 5, of the Constitution of 1874, among other things, provides that all propertjr subject to taxation shall be taxed according to its value, that value to be ..ascertained in such manner as the Q-eneral Assembly shall direct, making the same equal and uniform throughout the State. The object of this provision of the Constitution is to secure equality and uniformity in the imposition of the public burdens. The tax must be laid according to some rule of apportionment which is not arbitrary, but is such that the burden may be made to fall with something like impartiality upon the property sought to be taxed. The settled construction placed upon constitutional provisions similar to the one in question is that uniform taxation requires uniformity not only in the rate of taxation but in the mode of assessment upon the taxable valuation.

Counsel for appellants concede the general ride that, if a State tax is imposed, it must be uniform over ihe whole State; if by a county, city, town or other subordinate district, the tax must be uniform throughout the territory to which it is applicable. They claim, however, that the constitutional requirement of uniformity is not violated by the fact that, outside of the school dis-' triets in question, or within the school districts as regards other than school taxes, a different method of valuation prevails. In other words, they contend that the school taxes fall equally on all property in the special school districts, and that the State, county, and municipal taxes are in no wise disturbed thereby. We cannot agree with counsel in this contention. The manifest purpose of the provision of the Constitution above referred to is to secure uniformity and equality of burden upon all the property in the State with regard to general taxes of every kind' and description, whether they be levied for State,. county, municipal, school district, or road purposes. The imposition of the burden of general taxation in disregard of any rule of uniformity is always held unwarranted. The property owners of the school districts in question owe the State, county, and school districts the same duty, and are tinder the same obligations with every other property owner-in the State, and no more.

It is true that property such as railroads may be classified for taxation and assessed by different methods and by different officers from those assessing other property. But the object is nevertheless the same, and that is to arrive at the value of the property and tax it according to its value, making- the same equal and uniform throughout the State. While exact equality in taxation cannot be achieved, intentional inequality of assessments violates the mandate of the Constitution in question and invalidates the tax. The statutes under consideration intentionally provide a different valuation for the property in the school districts for taxation for school purposes than for other general taxation. The statute thus requires a mode or system of valuation by the assessor which is designed to operate unequally on the property in the school districts, in that it places a greater burden of taxation for school purposes than it does for State, county, and road purposes, and thereby disregards the plain mandate of the Constitution requiring the value of the property to be ascertained in a manner making the same equal and uniform throughout the State. The property owners in the school districts in question had a right to insist that all the property be valued on the same basis for general taxation, and had just grounds of complaint,because the statute in question violates the principles of the constitutional mandate in fixing the value of the same property at a given per cent, for taxation for school purposes and at a different valuation for other general taxes. While the Constitution does not require a full valuation, it does guarantee that the property shall be taxed according to its value, and that value shall be ascertained by laws making the same equal and uniform throughout the State. Ex parte Fort Smith & Van Buren Bridge Co., 62 Ark. 461: Bank of Jonesboro v. Hampton, 92 Ark. 492; and State ex rel. Nelson v. Meek, 127 Ark. 349.

It follows that the decree of the chancery court in each case will be affirmed.