author: Smith, J.

text:
    Jett v. State.
    Opinion delivered January 23, 1922.
    1. Homicide — proof that deceased ■ had been convicted . of robbery. — In a prosecution for mtirder while it is competent to prove deceased’s general reputation as a circumstance to be considered by the jury in determining who was the aggressor in the fatal encounter, it was ^ot error to exclude a record showing that deceased had been convicted of robbery in another State.
    2 Homicide — refusal to repeat instructions. — In a prosecution for murder it was not error to refuse an instruction fully covered by another instruction given.

      3. Arrest — authority to make. — Where defendant was not an officer, the fact that officers left a warrant of arrest with him to be served on deceased did not clothe defendant with authority to arrest deceased, who was under no duty to submit to arrest and was justified in offering such force and resistance to the attempt to arrest him as was reasonably necessary.
    4. Homicide — right op officer to kill misdemeanant. — An officer clothed with the authority, of a valid warrant of arrest would have no right to kill one charged with a misdemeanor, except in self-defense.
    5. Homicide — authority of officer. — An officer does not become an aggressor in attempting to make an arrest, and is authorized to use such force as is reasonably necessary to overcome resistance, and if in doing so he kills the person resisting he is blameless.
    6. Homicide — instruction on self-defense. — Where defendant, assuming without authority to act as an officer, undertook to arrest deceased, and killed him, an instruction that if deceased at the time was making a demonstration as if to draw a weapon or to attack defendant for any purpose other than to prevent defendant from attacking him, and it so appeared to defendant under the circumstances as made it reasonable for him to entertain such belief, and, acting in good faith and without fault or carelessness on his part, defendant fired the fatal shot, he was not guilty of any crime, held sufficient to present the theory of self-defense.
    7. Homicide — instruction as to murder. — Where one, wrongfully assuming to act as an officer, killed the person he undertook to arrest, an instruction that if defendant, being armed with a deadly weapon, went to the deceased for the purpose of arresting him on a warrant charging him with a misdemeanor, and intended to make the arrest by using such.weapon, if it became necessary to subdue deceased, and deceased did no mme than refuse to submit to defendant and be arrested, and defendant shot and killed him for that purpose alone, then defendant is guilty of murder in the first or second 'degree, held correct.
    8. Homicide — malice.—Malice in its lpgal sense means a motive or purpose from which flows an act iniurious to another person, done intentionally and without lawful excuse, and is not confined to an intention to take away the other’s life.
    9. Homicide — presumption of malice. — Where defendant, without authority, undertook to arrpst another and kilW him merely because he resisted arrpst, the law implies malice, even though defendant believed he had authority to make the arrest; and his mistaken belief that he had a right to make the arrest may be considered in assessing punishment, but for no other purpose.
    Appeal from Craighead Circuit Court; Lake City District; R. E. L. Johnson, Judge;
    affirmed.

      0. H. Hurst, J. F. Johnston and E. L. Westbrook, for appellant.
    1. The authenticated copy of the record of Gibson’s indictment for and plea of guilty to the crime of robbery in the State of Missouri ought to have been admitted. It was a material issue under appellant’s plea of self-defense, as to whether he or the deceased was the aggressor, and tlie general reputation of each for peace and quietude was admissible. 147 Ark. 524.'
    2. The three instructions requested by the appellant were not covered by any instruction given and should not' have been refused. 93 Ark. 313.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The authenticated copy of the Missouri record was not admissible. He had the right to- show the general reputation of the deceased and show that he was of a violent, turbulent and dangerous character, but that can not be shown by proof of specific acts of law violations. •3 Ene. of Ev. 27; Wharton on Homicide, 3 Ed., § 271; 13 R. C. L. 919-920; 88 Ark. 261; 100 Id. 561.
    2. It was proper to instruct the jury to the effect that a private person has no authority to arrest one charged with a misdemeanor, etc.
    The instruction on the law of self-defense was also correct. If the defendant went armed with a deadly weapon to arrest the deceased on a warrant charging him with a misdemeanor, intending to make the arrest by using the weapon if it became necessary to subdue him, and if he shot and killed the deceased for the reason alone that he refused to submit to the defendant and be arrested, defendant was unquestionably guilty of murder in the first or second degree.

      Appellant’s theory of the case was thoroughly covered by the court’s instruction numbered 11, and it was not error to refuse his requested instruction 1, 2 and 3.
    Appellant entered only a general objection to instruction 14. If it was ambiguous or misleading, he should have made specific objection. 92 Ark. 237; 131 Id. 487; 59 Ark. 422.
   Smith, J.

Appellant was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.

A warrant of arrest had been issued by a justice of the peace for the arrest of Clyde Gibson on a charge of disturbing the peace. Two officers undertook the service of this warrant, but they failed to find Gibson, and left the warrant with a Mr. Allen with the request that he give it to appellant for service. When the warrant was offered appellant, he at first declined to accept it, for the reason, as stated by him, that he was unarmed, and he knew Gibson to be a dangerous man, but he agreed to make the arrest if provided with a pistol for defensive purposes. A pistol was given appellant, and he accepted the warrant and undertook to serve it. Appellant found Gibson and read the warrant to him. Gibson made the statement that he would not submit to arrest except by a “real officer.” The testimony is in conflict as to what happened after the warrant was read. According to the testimony on behalf of the State, Gibson started to walk away after the warrant had been read. Appellant told him to stop or he would kill him. Gibson continued to walk away, and appellant again told him to stop or he would kill him. Gibson continued to walk away, when appellant shot and killed him. According to appellant, he told Gibson to stop, that he had to do his duty, and that Gibson then stopped, turned suddenly around and threw his hand to his hip pocket, when, thinking Gibson was about to shoot him, he fired the fatal shot. It was shown that Gibson was unarmed at the time.

Appellant testified that lie attempted to arrest Gibson because he thought it was his duty to do so, but that he used no force to effect the arrest until Gibson— as appellant thought- — attempted to draw his pistol, when he fired to protect himself.

Appellant was permitted to offer testimony to the effect that Gibson bore the reputation of being a quarrelsome, turbulent and dangerous man. But the court refused to permit him to offer in evidence an authenticated copy of the judgment of a circuit court in Missouri sentencing Gibson to the penitentiary upon a plea of guilty to a charge of robbery. Error is also assigned in giving and in refusing to give certain instructions.

No error was committed in refusing to admit the excluded record of Gibson’s plea of guilty. Inasmuch as appellant pleaded self-defense, it was competent for him to show Gibson’s general reputation for peace and quietude as a circumstance to be considered by the jury in determining who was the aggressor in the fatal encounter. But the testimony was properly limited to proof of general reputation. It is not competent in such cases to prove specific acts of violence or bad conduct. Hardgraves v. State, 88 Ark. 261; Coulter v. State, 100 Ark. 561; Campbell v. State, 38 Ark. 498; Palmore v. State, 29 Ark. 248; Carter v. State, 108 Ark. 124; Trotter v. State, 148 Ark. 466.

Appellant requested three instructions, all of which were refused. The first of these instructions was fully covered by another instruction given by the court. ThO second and third instructions requested by appellant read as follows: ■ 1

“2. You are further instructed that, should you find the defendant acting in good faith, fully believing that he was a legal officer and had a right to serve warrant and make arrest, and in so doing killed deceased, acting upon such actions, words or demonstration of deceased as would cause a reasonable person to believe the killing of deceased necessary to protect his own life, then you will find the defendant not guilty.

“3. You-are instructed that, should'you find the defendant, acting under the belief that he was authorized to serve the warrant on defendant and make the arrest, and in the discharge of what he believed to be his duty, deceased made a demonstration as if to draw a weapon, if you find such demonstration was made by deceased, the defendant, believing he would sustain great bodily harm or loss of life, defendant, without carelessness or negligence on his part, was justified in shooting deceased to protect himself.”

Over appellant’s objections the court gave instructions to the effect that appellant had no right to serve the warrant on Gibson, which was offered in evidence, and, over appellant’s objections, gave instructions numbered 4 and 5 as follows:

“4. It is admitted in the record that the defendant was not an officer, and you are therefore instructed that he had no right or authority to serve the warrant in evidence on Clyde Gibson, deceased.

“5. You are instructed that a man cannot bring about a quarrel or encounter and then justify himself under the law of self-defense unless he in good faith endeavored to abandon the difficulty and did all within his power, consistent with his safety, to avert the necessity of the killing before the mortal im'ury was inflicted; and, if the jury believes from the evidence in the ease that the defendant, being armed with a deadly weapon, went to the deceased for the purpose of arresting him on a warrant, charging him with a misdemeanor, and intended to make the arrest by using such weapon, if it became necessary to subdue deceased, and that deceased did no more than refuse to submit to defendant and be arrested, and that defendant shot and killed him for that reason alone, then you are. instructed that defendant is guilty of murder in the first or second degree as defined to you in other instructions given in this case.”

In addition, the court gave the usual instructions given in homicide cases where the plea of self-defense is interposed, hut in these instructions made no reference to the fact that appellant claimed to have been acting as an officer. In other words, as the case was submitted to the jury appellant was stripped of any protection growing out of the fact that he believed he was discharging his duty and was within his legal rights in attempting to arrest Gibson. The correctness of this theory presents the real question in the case.

Objections were made to certain other instructions given, which we do not set out, as our discussion of the instructions which we do set out answers those objections.

It is conceded that appellant was not an officer, and that the action of the officers in leaving the warrant to be served by him clothed him with no authority to arrest Gibson; and this is, of course, the law. Appellant was a volunteer, and Gibson was under no legal duty of submitting to the. arrest. Upon the contrary, Gibson was within bis legal rights in refusing to submit to arrest, and in offering such force and resistance to the attempt to arrest him as was reasonably necessary to accomplish that end. Bruce v. State, 68 Ark. 310; Johnson v. State, 58 Ark. 57; Roberson v. State, 53 Ark. 516; Appleton v State, 61 Ark. 590; 1 Bishop’s New Criminal Law, § 868.

The charge against Gibson was a misdemeanor, and even an officer properly clothed with the authority of a valid warrant of arrest would have had no right to kill Gibson to prevent his escape. As is said in many cases, it is better that the misdemeanant be suffered to escape rather than that he be killed to prevent his escape, as he may be taken on another day. Thomas v. Kinkead, 55 Ark. 502. But there is a difference in such cases between the right to kill the misdemeanant to prevent his escape and the right to kill him to prevent him from killing the officer or inflicting great bodily harm upon the officer who is attempting to make the arrest.

If the arrest is authorized, it is the duty of the officer to make it, and it is the duty of the misdemeanant to submit to the arrest. In such cases the officer does not become the aggressor in the sense in which that term is used in designating the moving party in encounters between private citizens. The officer never becomes the aggressor in that sense, because it is always his duty to make the arrest, and in the discharge of that duty he had the right to advance and to overcome such resistance as is encountered, using no more force than is reasonably necessary for that purpose, and if, in doing this, he kills the person he thus seeks to arrest, he is blameless, for he did no more than his duty required him to do. Gillespie v. State, 69 Ark. 573; Smith v. State, 59 Ark. 132. But the person thus protected is the officer engaged in the discharge of an official duty. Appellant was not an officer, and had no duty to discharge. Gibson was under no duty to submit to the arrest. Appellant had no right to use such force as was necessary to overcome Gibson’s resistance. Upon the contrary, Gibson had the right to use such force as was reasonably necessary to protect himself from the arrest, and, to the extent that appellant sought to effect Gibson’s arrest, just to that extent was he the aggressor, because he was acting without right. Of course, the mere attempt on appellant’s part to arrest Gibson gave Gibson no right to kill appellant, and, if Gibson attempted to shoot appellant. not to protect himself from danger or injury, but only from threatened arrest, then he was about to use an excess of force, and, to the extent of this excess, became himself the aggressor, and against that aggression appellant would have had the right of self-defense. This feature of the case was covered by instruction numbered 11, which dealt with the question of the appearance of danger. In this instruction the jury, among other things, was told that “if the deceased at the time the defendant shot him was making a demonstration as if to draw a weapon or to use a weapon and to attack defendant for any purpose other than to prevent the defendant from attacking him, and it so appeared to the defendant under such circumstances as made it reasonable for him to entertain such belief, acting in good faith and without fault or carelessness on his part, defendant fired the fatal shot,” that he was not guilty of any crime. The remainder of the instruction and other instructions given enlarged upon this theme.

It is insisted that, inasmuch as malice is an essential ingredient of murder in either the first or second degree, the court was in error in giving instructions numbered 3 and 5, for the reason that these instructions excluded from the jury, in determining whether malice in fact existed on the part of appellant, any consideration of appellant’s belief that he had the right to make the arrest, if he honestly entertained that belief, even though he was in fact mistaken in his belief.

Upon this feature of the case it may be said that appellant’s misapprehension of his duty in the premises could not enlarge his own rights, nor abridge those of Gibson. His mistake — if he were honestly mistaken— might have been taken into account by the jury in assessing his punishment; but no instruction to that effect was requested, and his mistaken belief was competent for no other purpose.

There may have been here an entire absence of personal ill-will or hatred on the part of appellant toward Gibson, but it does not follow, on that account, that the killing was not malicious. The existence of such feelings, if proved by the testimony, may show the presence of express malice; but malice need not be express. It may be implied. And, in order for it to be implied, it is not essential that a showing of personal ill-will be made.

The term malice has been many times defined by this and other courts. In Michie on Homicide, § 11, many of these definitions are collected. It is there said: “Malice when attempted to be defined has been necessarily given a ■ more comprehensive meaning than enmity or ill-will or revenge, and has been extended so as include all those states of mind under which the killing of a person takes place without any cause which will in law excuse, justify or extenuate the homicide. The term in its legal sense means a motive or purpose from which flows the act injurious to another person, done intentionally and without lawful excuse. Malice, as appended to the offense of murder, need not denote, and is not restricted to, spite, malevolence , hatred or ill-will to the person killed; nor to a killing in cold blood, as with a settled design or premeditation, nor to a wicked design against the person killed. But malice as essential to the crime of murder has a more extended meaning, and is, or better say is characterized and manifested by, the intentional doing of a wrongful act towards another without legal excuse or justification, which may probably result in depriving such person of his life, and is not confined to an intention to take away the life of such person. It is said that malice includes not only anger, hatred, and revenge, ‘but every other unlawful and unjustifiable motive.’ ”

If, therefore, as was said in instruction numbered 3, appellant “shot and killed Clyde Gibson, because he would not submit to being arrested,” or, as was said in instruction numbered 5, if “deceased did no more than refuse to submit to defendant and be arrested, and (that) defendant shot and killed him for that reason alone,” then the law imputed malice, or, as is more commonly said, malice is implied, and the court did not err in so telling the jury. This is true because, if the circumstances hypothetically stated were true, appellant was doing an unlawful and wrongful act and one which infringed upon Gibson’s legal rights, and his persistence in this wrong to the point of killing Gibson was malice, and its character as such was not changed by his mistaken belief on the subject.

The following cases discuss the propositions here involved, and support, we think, the conclusions here announced. Keady v. People, 66 L. R. A. 353; Roberson v. State, 52 L. R. A. 751; State v. Durham, 5 L. R. A. (N. S.) 1016; State v. Horner, 4 Ann. Cas. 841; Coleman v. State, 49 S. E. 716; Creighton v. Commonwealth, 83 Ky. 142, 4 Am. St. Rep. 143; Hawkins v. Commonwealth, 61 Am. Dec. 147.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Smith J.

license: Public Domain

text:
    Foster-Holcomb Investment Company v. Little Rook Publishing Company.
    Opinion delivered January 23, 1922.
    1. Evidence — best and secondary evidence. — In an action on an account, plaintiff’s testimony that the sum sued for was for advertising in a newspaper, and that “every condition -and promise was lived up to by the publishing company,” without producing a copy of the newspaper, was competent if h knew that such was the fact.
    2. Limitation op actions — amendment op complaint by substituting parties. — Where a complaint alleged that the plaintiff, the Arkansas Democrat, was a corporation engaged in printing and publishing a newspaper, an amendment to the complaint alleging that “the Arkansas Democrat” was the name of a newspaper published by the Little Rock Publishing Company, a corporation, and substituting the name of the latter as plaintiff, was admissible under Crawford & Moses’ Dig., § 123rf, as it worked no change in the cause of action as respects the running of the statute of limitation.
    Appeal from Hot Spring Circuit Court; W. II. Evans, Judge;
    affirmed.

      Wm. R. Duffle, for appellant.
    The plea in abatement and motion to dismiss should have been sustained. Open account are barred in three years. C. & M. Digest, § 6950.
    The motion to strike the amendment and plea of statute of limitations should have been sustained. 97 Ark. 19; 64 Ark. 345; 157 111. 218; 51 111. App. 457; 59 Ark. 441; 67 Mo. 420; 56 Kan. 507; 65 N. W. 583; 95 Tenn. 612; 34 S. W. 381; 63 N. W. 506.

      The deposition of J.' F. Keeley as to the execution of the contrast was secondary evidence, and should have been excluded. The newspaper containing the advertisement was the best evidence. Jones on Evidence (Civil Cases) p. 244.
    Exhibits to pleadings in equity, control the pleadings. 91 Ark. 400. The contents of exhibits to a complaint in equity, will control the alleg-ations of the complaint. 94 Ark. 572; 99 Ark. 218; 104 Ark. 459.
    In an action founded upon a written instrument, the exhibits are a part of the pleadings. 85 Ark. 223.

      H. B. Means and J-ohn L. McClellan, for appellee.
    There was no error in allowing the plaintiff to amend its complaint. C. & M. Digest, § 1229. See also, 78 Ark. 350; 94 Ark. 347.
   Smith J.

This suit originated in the court of a justice of the peace in Hot Spring County by the filing of a complaint which alleged that “the plaintiff alleges that the Arkansas Democrat is a corporation engaged in printing and publishing a newspaper at Little Rock in the State of Arkansas, and is doing business under the laws of said State. ’ ’ It was further alleged that the defendant, a co-partnership composed of J. B. Foster and Blaine Holcomb, was indebted to the plaintiff in the sum of $50, as shown by an account attached to the complaint and marked Exhibit “A” and made a part thereof. The exhibit reads as follows:

“Little Rock, Ark., October 11, 1919.

‘ ‘ Foster-Holcomb Investment Có.

“To Little Rock Publishing Co., Publishers Arkansas Democrat, Dr.

“To balance as per statement rendered for advertising during Oct. 16, 1916, to publishing advertisement in Arkansas on Wheels edition,......$50.00. ’ ’

Summons was issued October 14, 1919, which was two days before the cause of action would have been barred by the statute of limitations.

There was a judgment in the justice court for the plaintiff, and the defendant has appealed.

On July 19, 1920, the defendant filed in the circuit court a plea in abatement and a motion to dismiss the action because the name, “Arkansas Democrat,” was not a name under which a suit could be prosecuted. On the same day the Arkansas Democrat filed an amendment; to the complaint, alleging that it was a newspaper owned and controlled by the Little Rock Publishing Company, a corporation, and the name of that corporation was substituted as plaintiff. Thereupon the defendant filed a motion to strike oiit the amendment to the complaint, because the three-years statute of limitations had run, and because the amount sued for was not within the original jurisdiction of the circuit court. This motion was overruled, as was also a demurrer to the jurisdiction of the circuit court.

There was a trial and verdict for the amount sued for, and judgment was rendered thereon, from which is this appeal.

The plaintiff’s case was made by the deposition of one J. F. Keeley, who testified that the sum sued for was due for advertising in a special issue of the Arkansas Democrat, a daily newspaper published in the city of Little Rock, and that “every condition and promise was lived up to in every way” by the publishing company. It was objected that this was secondary evidence, and should have been excluded as such. We do not think the objection is well taken. It is true the witness did not produce a copy of the paper containing the advertisement, but there could be no objection to the witness stating that the advertisement was published, if the witness knew thai such was the fact.

We think the court properly permitted the amendment to the complaint. Our statute on amendments is very broad, and has been given a very liberal construction by the courts to effectuate its. manifest purpose, that is, that litigation may be tried upon its merits. This statute is as follows: “The court may, at any time, in furtherance of justice, and on such terms as may b<* proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to tin-case; or, when the amendment does not. change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” • Crawford & Moses’ Digest, § 1239.

Among numerous other cases construing this statute is the case of Midland Valley Rd. Co. v. Ennis, 109 Ark, 206, where we said: “Under this section the court may, in its discretion, before the commencement of the trial, allow a complaint to be amended so as to chang-e the cause of action to another one which might have been joined in the same action; and at any time during the progress of the trial may permit an amendment which does not change substantially the claim, so as to conform to the facts proved. The only limitation in the statute is that, after the proof is introduced, the pleadings can not be amended so as to substantially change the cause of action. ’ ’

See also, American Bonding Co. v. Morris, 104 Ark. 276: Oak Leaf Mill Co. v. Cooper, 103 Ark. 79; Coleman v. Bercher, 94 Ark. 345; Bloom v. Home Ins. Co., 91 Ark. 367; Parry v. Woodson, 84 Am. Dec. 51.

Appellants cite and reply upon the case of Curators of Central College v. Bird, 148 Ark. 323. There suit was commenced by ‘ ‘ Curators of Central College. ’ ’ It was objected that the suit was not brought by any proper party. The names of the curators were not set out, nor was there any showing that the plaintiff was a corporation. We there said: “It g-oes wi'hout saying that suits must be instituted or defended by persons either natural or artificial. ‘Curators of Central College’ is not a designation or description of any person either natural or artificial. There being no party plaintiff or appellant, there is. no cause of action or appeal therefrom pending in this court.”

But here there was a showing that the plaintiff was a corporation. The complaint filed in the justice court alleged that the Arkansas Democrat was a corporation. Tins allegation was erroneous in that the name “Arkansas Democrat,” was not the name of the corporation, but was the name of the newspaper published by the corporation ; and the court was warranted in permitting this error to be corrected, as it worked no change in the cause of action sued on.

It follows, therefore, that the making of this amendment was not the institution of a new suit, and appellant’s pleas, that the cause of action was barred, and that the cause of action was not within the jurisdiction of the circuit court, were properly overruled. Judgment affirmed.


text:
    Warren v. Granger.
    Opinion delivered January 23, 1922.
    1. Trial — general objections to specific parts of instructions.— Where a party objected to portions of an instruction, without stating the grounds of objection, his objections will be treated as general objections to specific parts of the instruction.
    2. Trial — sufficiency of objection. — In a suit for the price of an ice-box, where the court instructed that if the box was unfit for the purpose for which it was sold the jury should find for defendant'as to that item, a general objection to the instruction was not equivalent to an objection that the question of warranty of quality should be submitted to the jury.
    3. Sales — express warranty. — An express warranty may be inferred from the affirmation of a fact on which the buyer relies and on which the seller intended that he should rely, and the use of the term “warranty” is not necessary.
    Appeal from Columbia Circuit Court; Charles W. Smith, Judge;
    affirmed.

      McKay ds Smith, for appellant.
    The court erred in instructing the jury that they should find for the defendant as to the ice-box if it was worthless, or if it was not fit for the purpose for which it was used. Appellee had used the box and knew of its condition. There was no fraud or misreprensation alleged or proved. The doctrine of caveat emptor applies. 19 L. Ed. (U. S.) 987; 45 Ark. 254; 70 Ark. 61. The jury were not permitted to consider the terms of the contract under the instruction given.
    There is no implied warranty in sales of personal property. 108 Ark. 254; 104 Ark. 573; 11 O. J. 44.
    No brief filed for appellee.
   Smith, J.

Warren sold Granger a butcher shop outfit, and has sued to recover the alleged purchase price. The parties differ as to the amount and value of certain meats included in the sale; but this difference was properly submitted to the jury.

Among other articles included in the sale was an icebox or a meat-box, and the instruction to the jury on that subject reads as follows: “Among other things was a meat-box, or ice-box, on which defendant claims there was no definite price, and plaintiff states that the price was agreed on -definitely, and that is a question that yo-u must decide; and if you find there was a definite price, you will find for the plaintiff, and if you find that the price was not agreed -on, then for its reasonable worth or its market value; and if the ice-box was not worth anything, or was not fit for the purpose for which it was used, then you will find for the defendant as to that particular item. And as to any other item that plaintiff claims he sold and delivered to defendant and defendant claims he did not buy, that is a question for you to pass on, and you must find for the plaintiff all such articles that were sold and delivered to defendant, and you will find for the defendant all such articles that were not delivered to him, and for all items that were worthless.”

The present appeal involves the correctness of this instruction, as the record rec'tes that Warren specifically excepted to that part of the instruction which instructed the jury that if the ice-box wasn’t worth anything, or wasn’t fit for the purpose for which it was used, then they should “find for the defendant as to that particular item.” And he also excepted to that part of the instruction which told the jury to find for the defendant “all items that were worthless.” The only item to which the language of the court refers is the ice-box.

It will be observed that, while the record shows that Warren specifically objected to the portions of the instruction set out above, he did not state the ground of his objections, and his objections must therefore be treated as general objections to specific parts of the instruction.

There was a verdict and judgment for Granger, and Warren has appealed.

It is now objected that the instruction was based upon the theory that there was a warranty of quality in the sale of the ice-box, and that the question whether there was an express warranty was not submitted to the jury. Warren did not ask that this question be submitted to the jury unless his objection to the instruction set out above is treated ns asking that that question be submitted to the jury; and we do not think his objection should be so treated.

Only four witnesses testified in the case, and of these only Warren testified in his own behalf. He testified in detail as to the articles sold and the prices agreed upon, andj according to his testimony, there was due him the amount sued for, and the instructions would have directed a verdict in his favor if his version of the transaction had been accepted as -correct.

Granger testified that he bought the meat-box for the specific purpose of keeping meat in it — a fact known to Warren, and that he asked Warren if it was all right, and Warren said he had never lost anything in it. Granger further testified that he asked Warren the specific question if the -box would keep meat, and that he was answered by Warren that it would, and that Warren said, “if it didn’t keep meat, I wasn’t to pay him nothing,” and that this statement induced him to buy, and that the box was worth nothing -more than a common ice-box, and upon discovering that fact he (Granger) offered to return it.

The other two witnesses who testified in the case were witnesses for Granger, but their testimony had no bearing on the question of the warranty of the quality of the box.

Warren did not deny that he had warranted the box, and the testimony of Granger stood undisputed that there was a warranty. Warren was asked this question: “There is a contention made that the ice-box, or meat-box, was not fit for the purpose for which it was sold, that is, it would not preserve meat. What was the condition of that ice-box?” And he was further asked if it would preserve meat. Warren answered that he did not know there was anything wrong with the box, and that it would preserve meat. The answer filed in the case alleged that the box “was warranted fit for the use to which defendant was to put same, and that said meat-box was not fit for the preserving of meats, and that upon discovery defendant tendered the said meat-box to plaintiff. ’ ’

It is obvious that the court was under the apprehension that the issue was, whether the meat-box had the quality warranted, and, if so, what was the contract price. Warren did not deny the warranty, and the effect of his testimony was that the meat-box was such a box as Granger said it was warranted to be. The instruction given was evidently intended to submit what the court obviously thought the issue was, and the objection made to the instruction was not, in our opinion, sufficient to call to the attention of the court the fact that no admission had been made that there was a warranty, and that the proof thereof depended on the testimony of a party litigant and could not therefore be treated as undisputed.

It is true Granger did not testify that Warren had used the term “warrant” in stating the quality of the icebox; but it was not essential that he should have done so to establish a warranty, because such was the purport and necessary effect of what he did say. On this subject the law is stated in 24 R. C. L. sec. 437 of the article on Sales, as follows:

“To constitute an express warranty the term ‘warrant-’ need not be used; no technical set of words are required, and it may be inferred from the affirmation of a fact that which induces the purchase and on which the buyer relies and on which the seller intended that he should rio so, but it has been said that the words used must be tantamount to a warranty, and not dubious or equivocal. ’ ’

In section 442 of the same article it is said:

“While the soundness or policy of the rule permitting warranties to be based on affirmations by the seller as to the quality or condition of the chattel sold has been vigorously protested, it is generally recognized, especially in the more modern cases, that such affirmations may constitute a warranty, if so intended by the parties and relied on by the buyer as such; and it has been held that the same principle applies where the affirmation relied on is contained in a writing, such as a bill of sale, and where it is made orally in a sale so effected, as the language means the same whether written or spoken.”

A number of cases — many of which are annotated— are cited in the notes to the text quoted and which support the text quoted.

No error appearing, the judgment is affirmed.


text:
    McIntire v. State.
    Opinion delivered January 23, 1922.
    1. Intoxicating liquors — possessing and setting up still — evidence. — Under an indictment for possessing and for setting up a still, evidence held sufficient to sustain a conviction for either offense.
    2. Indictment and information — sufficiency.—In the case of a general verdict of guilty under an indictment containing several counts, one good count is sufficient to warrant an affirmance.
    3. Criminal law — defective indictment — question not raised below. — Objection to an indictment for having possession of a still that it does not allege a failure to register the still with a proper United States officer, as required by Acts 1921, p. 373, § 2, may be raised on appeal for the first time.
    4. Criminal laws — former jeopardy. — Where an indictment alleged two counts, first for having possession of a still, and second for setting up a still, and the jury found defendant guilty under the first count, the verdict was an acquittal under the second count; but where the first count was insufficient to allege an offense, he may be tried for the offense attempted to be charged in such count upon a properly drawn indictment.
    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    reversed.

      R. W. Wilson, for appellant.
    The verdict is contrary to law. § 2 of the act makes it a crime to have in one’s possession a still “without registering same with the proper United States officer,” which fact should have been negatived in the indictment. 18 Ark. 109; 33 Ark. 557; 77 Ark. 139. The burden was on the State to prove that the still had not been properly registered. 83 Ark. 27; 84 Ark. 332.
    The record does not show that the indictment was returned by the grand jury, either by name or number. Art. 11, sec. 8, Const.; sec. 3011, C. & M. Digest; 37 Ark. 242; 33 Ark. 815.
    The indictment contains two charges in a single count, and, there being no election by the State, the verdict of the jury operated as an acquittal of the second offense charged.

      Instructions Nos. 1, 2, 3, 4 and 5 were erroneous because they made no mention of tlie phrase in the act with regard to registering the still. No. 12 requested by defendant on the question of reasonable doubt should have been given. 71 Ark. 465; 139 Ark. 385.
    It was error to admit the testimony of witnesses Smith and Fish relative to finding mash, as there was nothing to connect defendant with such mash. 54 Ark. 489; 54 Ark. 626; 36 Am. St. Rep. 887; 72 Ark. 598.
    It was error for the court to call the jury from their room and instruct them on the necessity for rendering a verdict. 58 Ark. 282; 177 Ark. 602; 111 Ark. 273.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    There is no bill of exceptions in this case that can be considered by the court, same never having been filed by the clerk. 34 Ark. 627; 133 Ark. 617; 216 S. W. 294; 103 Ark. 46; 118 Ark. 6.
    The defectiveness of an indictment can not be raised for the first time on appeal. 99 Ark. 134; 105 Ark. 82; 215 S. W. 130. The alleged error was not set out in the ¡motion for new trial. 117 Ark. 198; 106 Ark. 138.
    The indictment shows on its face that it was regularly returned. However, this objection can not be made for the first time on appeal. 93 Ark. 290.
    The objection that the indictment contains two - charges cannot be sustained, because raised here for the first time.
    Appellant’s objection to instructions 1, 2, 3, 4 and 5 were general, and the alleged defect was not called specifically to the attention of the court. 101 Ark. 95. He requested no correct instruction and is now in no attitude to complain. 89 Ark. 300; 110 Ark. 567; 129 Ark. 324.
    Appellant’s requested instruction, refused, was covered by others given. 13 Ark. 705; 15 Ark. 624; 34 Ark. 650; 101 Ark. 120.

      The evidence of witnesses complained of by appellant was competent, as it covered another crime so linked with the one of which appellant was accused as to be •inseparable. 8 R. C. L. sec. 195, p. 199; 37 Ark. 261; 84 Ark. 14; 130 Ark. 358.
    Appellant failed to object to the court’s instruction about reaching a verdict. 135 Ark. 499.
   Smith, J.

Appellant was convicted under an indictment the charging part of which is as follows:

“The said E. R. McIntire in the county and .State aforesaid, on the 20th day of July, A. D. 1921, did then and there wilfully, unlawfully and feloniously have and keep in his possession a still-worm, a still and distillery for the purpose of using the same for the production of distilled spirits, and feloniously set said still up for the use and purpose of the production of distilled spirits.”

The jury returned the following verdict: “We, the jury, find the defendant -guilty of having a still in his possession as charged in the indictment, and fix his punishment at confinement in the penitentiary for three years.”

There was neither a demurrer to this indictment nor motion filed in arrest of judgment; and it is insisted by the State that it is now too late for appellant to question the sufficiency of the indictment.

A number of errors are assigned as having occurred at the trial; but the objection is made that these alleged errors are not presented for decision for the reason that there is no bill of exceptions in the case, Our view of the case renders it unnecessary for us to pass on these questions. ' 1- ':-'R]

The indictment in this case is based upon section 2 of act 324 of the Acts of 1921 (General Acts of Arkansas 1921, p. 372) entitled, “An Act to make it an offense to set up or operate- a distillery in the State of Arkansas, to provide a penalty therefor, and for other purposes.” Section 2 of this act reads as follows':

“Section 2. No person shall keep in his possession any still-worm or still, without registering the same with the proper United States officer, ami no person shall set up, to be used as a distillery, any still-worm or substitute therefor, and a still or substitute therefor, such as a kettle, waslipot, metal tank, or any other vessel of any kind for the purpose of using same, or which, after being so set up, may be used -for the production of distilled spirits.”

It is obvious that section 2 of the act creates two offenses. The first, is that of keeping in one’s possession a still-worm or still without registering-it with the proper officer of the United States; and the second offense is that of setting up to be used as a distillery any still-worm or substitute therefor. It is also obvious that the first offense there created is not merely the keeping of a still-worm or still in one’s possession, but to do so without registering the same with the proper United States officer. Such is the express language of the statute, and, as the Legislature had the right to circumscribe the offense in any way it saw proper to do, we need not stop to inquire what the legislative purpose was in making it an offense to keep in one’s possession any still-worm or still in the event only that he had not registered the still-worm or still with the proper United States officer. Having made the failure to register with the United States officer an essential element of the offense, the Legislature, in the same act, provided a means by which this essential element of the crime might be proved. This was done in section 5 of the act, which is as follows:

“Section 5. The certificate of the proper collector of internal revenue with respect to any particular still or distillery found in this State shall be accepted in any court of the State as evidence of the status of such still or distilling apparatus.”

The testimony in the case is legally sufficient to sustain a conviction for either of the offenses created by section 2, as it is shown that appellant and his associates carried the still to a place in the woods, where they were seen busily engaged in setting it up; but the verdict shows that he was convicted for the commission of the crime of having a still-worm or suil in his possession.

The indictment was not drawn in counts, nor is the conviction, as reflected by the jury’s verdict, a general one. It is the law that where the conviction is a general one upon an indictment containing several counts, one good count is sufficient to warrant an affirmance of the conviction. Powers v. United States, 223 U. S. 303. So here, if the verdict was a general one we might affirm the •conviction upon the theory that the indictment sufficiently charged the offense of setting up a still for the use and purpose of the production of distilled spirits, for the indictment does charge that offense.

We have here an indictment which attempts to charge both offenses, but is insufficient to charge the first offense, for the reason that it does not allege a failure to register the still with the proper United States officer. Yet the court, notwitlisLanding the failure of the indictment to properly charge both offenses, submitted the question of appellant’s guilt upon each of these charges. This was done in an instruction numbered 3, which reads as follows:

“3. To warrant conviction it is not necessary for the State to show that the defendant actually manufactured intoxicating liquor, but it shall be sufficient if you believe from all the evidence beyond a reasonable doubt that the defendant had a still or any vessel of any kind for the production of distilled spirits in his possession or set up such still or have in his possession a still-worm to be used in the production of distilled spirits.”

Here the jury was told that a conviction might be had if the “defendant had a still or any vessel of any kind for the production of distilled spirits in his possession,” or set np said still or still-worm to be used in the production of distilled spirits.

Responsive to this instruction the jury found the defendant guilty, “of having a still in his possession,” but, as we have shown, the indictment does not sufficiently charge that offense.

It is insisted, however, that, inasmuch as appellant did not demur to the indictment nor file a motion in arrest of judgment, he cannot raise here for the first time the question of the sufficiency of the indictment. In support of this position the case of Farr v. State, 99 Ark. 134, among others, is cited. In the case of Farr v. State, supra, we said: “The defendant did not demur to it (the indictment), or file a motion in arrest of judgment. Without passing upon the sufficiency of the indictment, it is only necessary to state that it is good in substance, and that judgment could have been rendered thereon against the defendant. Younger v. State, 37 Ark. 116, and cases cited.”

The case of Younger v. State followed the case of State v. Keith, 37 Ark. 96, in which case the appellee was charged in the indictment against him with having sold intoxicating liquors without the owner or owners thereof having previously procured a license authorizing such sale. The court said of this indictment that all of its allegations might be true and yet the defendant be guilty of no offense, as it was not alleged that he had sold liquor without license, for if he had license it would have been unimportant whether the owner of the liquor had license or not, for under the law as it then was any licensed dealer could sell his own liquor or the liquor of another without offense.

This question was very thoroughly considered in the case of Beard v. State, 79 Ark. 293, where we said: “It is next contended that the indictment does not charge an offense, and that the conviction thereon can not be sustained because it fails to allege that the act of carnal knowledge was committed by tbe accused against tbe will of tbe female. If the sufficiency of the indictment had been questioned by demurrer, we are not prepared to say that the demurrer should not have been sustained. We do not decide that question. The indictment was not queslioned. either by demurrer or by motion in arrest of judgment, and we are confronted only with the proposition whether or not the alleged defect can be taken advantage of for the first time after the trial and verdict and in this court on appeal or writ of error. Where an indictment omits an allegation of some essential element of the crime — in other words, if it fails to charge a public offense, it is void, and can be questioned for the first time on appeal, without a demurrer or motion in arrest of judgment having been interposed. 12 Cyc. of Law and Proc. pp. 811, 812, and cases cited. But when the defect is one of form or of imperfect expression merely, it can not be taken advantage of on appeal or writ of error for the first time. In other Words, if the indictment imperfectly charges a public offense, the defect must be taken advantage of by demurrer or motion to quash; but if it omits entirely an allegation of some essential element of the crime charged, so that it can be said that no offense is charged, then it can be taken advantage of at any time. 1 Bishop, Crim. Proc., § 707a; Clark, Crim. Proc., § 118; Reymann v. Reg., 8 L. R. Q. B. 102; Bradlaugh v. Reg., 8 Q. B. Div. 607; Brennan v. People, 110 Ill. 535; People v. Swenson, 49 Cal. 388; State v. Knowles, 34 Kan. 393; People v. Schultz, 85 Mich. 114.”

In the Beard case, supra, tbe court reached tbe conclusion that, under tbe test there laid down, the offense (that of rape) for which Beard had been convicted was sufficiently charged in the indictment, and his conviction was sustained.

But the indictment here is not sufficient to meet that test, at least the part of it upon which the conviction was had does not meet that test, for the reason, as stated by Chief Justice English in the case of State v. Keith, supra, the allegations of the indictment might be proved and yet appellant be guilty of no offense; and such is the case, if appellant merely kept a still in his possession without registering it with the proper officer of the United States.

The verdict of the jury in this case must no doubt be treated as a verdict of not guilty upon what is, in effect, the second count of the indictment; but the acquittal does not affect the right to try appellant under an indictment properly charging him with keeping in his possession a still-worm or still without registering the same with the proper United States officer.

The judgment will therefore be reversed, and the cause remanded for further proceedings if the State so elects. .


author: Humphreys, J.

text:
    Columbia County v. England.
    Opinion delivered January 23, 1922.
    1. Judgment — setting aside default judgment for unavoidable casualty. — Where defendant’s attorney died a few days before judgment by default was rendered against him, and defendant was unable to employ new counsel, and a letter addressed to the circuit judge requesting a continuance went astray, defendant was entitled to have the judgment set aside as for an “unavoidable casualty,” within Crawford & Moses’ Dig., § 6290.
    2. Judgment — vacating—meritorious defense. — Where defendant, acting as treasurer of a State reform school, received a fund from a county in good faith and expended it for the purpose for which it was appropriated before an appeal from the order appropriating it was taken, these facts constituted a meritorious defense, in an action by the county to recover such fund, on an application by defendant to set aside a judgment in favor of the county.
    Appeal from Columbia Circuit Court; G W. Smith. Judge;
    affirmed.

      McKay £ Smith, for appellant.
    Appellee was not prevented from appearing or defending on account of unavoidable casualty, within the meaning of C. & M. Digest, sec. 6290. He took no interest in the ease, and under the rule announced in 108 Ark. 47, and 128 Ark. 269, the judgment against Mm should not have been set aside.
    Appellee failed to show that he had a valid defense or cause of action, which he must do under sec. 6293, C. & M. Digest, to entitle him to have the judgment set aside. 104 Ark. 449; 112 Ark. 159; 123 Ark. 447.
    The act creating the reformatory made it a State institution, and the appropriation by the county court was invalid under the decision in 114 Ark. 278, as being against art. 7, secs. 27 and 28 of the Constitution.
    The default judgment rendered was a proper one, notwithstanding appellee was acting as agent in collecting the claim. Tn filing the claim he became a party to a judicial proceeding, and the only remedy left the county or the citizens was by appeal from the order of allowance. 118 Ark. 524; 129 Ark. 413; 22 Ark. 595; 37 Ark. 532.

      R. E. Wiley, for appellee.
    Unavoidable casualty prevented appearance and defense, within the rule announced in 59 Ark. 162; 85 Ark. 385; 328 Ark. 269.
    Appellee showed a valid defense or cause of action. At the time the appropriation was made the institution was a prospective one. True, it was taken over by the State at a later date, but at the time it was within the discretion of the county court to make the appropriation, to take care of women lawbreakers, either in that county or to join with other counties or persons to build such an institution.
    The appropriation was made for the Grirls’ Industrial School as well as the Women’s Reformatory, and an appropriation for the Grirls’ Industrial School was certainly for a countv purpose within the rule announced in 343 Ark. 213.

      There was n.o lawful appeal from the order of allowance in the county court, (1) in that no bond for costs was filed. Sec. 2288, C. & M. Dig.; ID Ark. 509,- (2) transcript was not filed within six months, C. & M. Dig., sec. 2289; 123 Ark. 320; 131 Ark. 389, and (3) no summons issued or served on appellee. Sec. 2291, C. & M. Dig. Summons must be served within a reasonable time and failure to do so is fatal to the appeal. 90 Ark. 306; 72 Ark. 475.
    Judgment was against appellee personally, instead of in his representative capacity. 25 Ark. 52; 35 Ark. 176; 39 Cvc. p. 460.
    The judgment was one against the State and is unauthorized and void. 106 Ark. 175.
   Humphreys, J.

Two questions are presented by this appeal for determination. The first is, whether appellee was prevented by unavoidable casualty from appearing and defending the suit against him in the Columbia Circuit Court. The second is, whether he had a meritorious defense to the cause of action.

This is an appeal from a judgment setting aside and vacating a judgment rendered against appellee in favor of the county of Columbia for $1,500, rendered at the August, 1920, term of the Columbia Circuit Court. The judgment vacated was rendered in a proceeding commenced in the county court of Columbia County upon a claim for $1,500 presented to the county court by the appellee as treasurer of the Girls’ Industrial School and Young Women’s Reformatory, which claim was presented, allowed and paid on November 21, 1918, by the county court. A. W. Davies, a citizen and taxpayer of Columbia County, Arkansas, filed the necessary affidavit and prayed an appeal to the circuit court from the judgment of allowance, and was granted an appeal therefrom on the 18th day of February, 1919. No bond for appeal was filed, and no notice thereof was given to appellee. A transcript of the proceedings in the county court was certified to and filed in the circuit court on the 2nd day of August, 1919. The case was passed at both the August, 1939, and February, 1920, terms of the Columbia Circuit Court, and the judgment which was vacated and from which this appeal was prosecuted Was rendered by default against appellee at the August, 1920, term of said court. The application to vacate the judgment was presented at the February, 1921, term of said court.

The facts reflected by the record are, in substance, as follows: The county levying court of said county appropriated $1,500 out of its general fund for the purpose of erecting a girls’ industrial school and a reformatory for fallen women, which girls’ industrial school was at the time a State institution, and which reformatory for fallen women became a State institution, under the name of the “Arkansas State Farm for "Women,” on Marcli 28, 1919. Appellee was treasurer for the boards of these institutions, and resided in Little Eock. He was informed by the county judge of said county that the appropriation had been made and would be paid to him as treasurer of the institutions upon presentation of a claim for the amount. He thereupon presented his claim as treasurer, upon which a judgment of allowance was rendered and immediately paid. Appellee paid the money out for the purposes for which it was appropriated upon vouchers issued by the boards of the institutions. It is fairly inferable from the evidence that the money was expended for the purposes for which it was appropriated before an appeal was prosecuted from the judgment of allowance. Appellee and the board obtained information that an appeal had been prosecuted from the judgment of allowance a short time after the transcript had been filed in the circuit court on the 2nd day of August, 1919. They immediately employed an attorney, A. S. Kilgore, who resided in that county. Appellee and the members of the board resided in Pulaski County, and depended entirely upon their attorney to represent them in the suit. A short time before the terra convened at which a judgment was rendered against appellee, their attorney, A. S. Kilgore, died. Neither the appellee nor the hoards, as such bodies, obtained information of the death of their attorney until after the expiration of the term at which the judgment was rendered. R. E. Wiley, a member of the board, was notified of the death of A. S. Kilgore by Judge A. D. Pope. At the time appellee and the other members of the board had gone away on vacations. Mr. Wiley had been sick for a number of months, and was at home for a few days where he was looking after matters preparatory to returning to St. Louis for treatment. He had a personal acquaintance with Judge 'Butler, who, by agreement, was to hold the August, 1920, term of the Columbia Circuit Court, and wrote him a letter just before leaving for St. Louis explaining the situation and requesting a continuance of the case. The letter was addressed to Judge Butler at Hamburg, Ark., and was deposited in the mails. It miscarried, and did not reach Judge Butler. J udge Butler testified that, had he received the letter, ho would most likely have continued the case. No one appeared for appellee, and personal judgment was rendered against him in favor of the county for the full amount of the claim and interest.

It is provided by statute in this State that judgments may be vacated after the expiration of the term at which rendered for unavoidable casualty or misfortune preventing a party from appearing and defending. Appellant contends that the failure of appellee to appear was not due to an unavoidable casualty within the meaning of the statute. Appellee’s attorney, A. S. Kilgore, died only a short time before the term at which the judgment was rendered convened. Appellee was absent from the State at the time and received no information to this effect. The real parties in interest, however, were the boards of the two institutions. As boards they received no information of the death of their attorney until after the expiration of the term at which the judgment was rendered. One member of the board, R. E. Wiley, received information only a few days before court convened of the death of the attorney. He was sick at the time, and in the State temporarily to attend to a few matters preparatory to returning to St. Louis for treatment. He had been sick for a number of months. The other members of the boards of the institutions were away on vacations. He had no opportunity to see them, communicate with them or meet them for the purpose of employing another attorney. He was acquainted with the judge who was to hold the Columbia Circuit Court, and wrote him a letter fully explaining the situation. It was stated in the letter that it was impossible for the boards to substitute counsel in the place of Mr. Kilgore to represent them at the August term of court, which was to convene the following week after Mr. Wiley received notice of the death of Mr. Kilgore. The letter was written on the 19th day of August, 1920, and regularly posted. It miscarried, else the case would have most likely been continued.

We think by the death of appellee’s attorney and the inability of the parties on such short notice to employ new counsel, when considered in connection with the illness of Mr. Wiley, appellee was prevented from appearing and defending by unavoidable casualty within the meaning of the statute. Appellee and the boards of the institutions were guilty of no negligence. They had employed counsel and received no information whatever of his death. Mr. Wiley was a sick man, and on the eve of going to St. Louis for treatment. Having received individually information of the death of their employed attorney, he immediately wrote a letter explaining the situation and requesting a continuance. We do not think any negligence can be attributed to him individually or in his capacity as a member of the boards.

The remaining question is whether appellee had a meritorious defense to the cause of action. We think, under the undisputed facts in the case, a meritorious defense was established. In reaching this conclusion wo assume that the appropriation was unauthorized by law. It was voluntarily made, paid and expended before an appeal was taken from the judgment of allowance.

This court has ruled that the payment, under protest, of an illegal tax to a sheriff or collector cannot be recovered from him unless it be shown that he still has the illegal taxes in his hands. Sanders v. Simmons, 30 Ark. 274; First National Bank v. Norris, 113 Ark. 138. By analogy the rule is applicable to the instant case. Appellee was acting in a representative capacity. He received the fund in good faith and expended it for the purposes for which it had been appropriated before an appeal had been prosecuted from the judgment awarding it.

No error appearing, the judgment is affirmed.


author: . Humphreys, J.

text:
    Roy v. State.
    Opinion delivered January 23, 1922.
    Larceny — variance between indictment and proof. — To convict one of grand larceny when charged as a principal, the proof must show either that he committed the crime in person or that he was present, aiding and abetting, or ready and consenting to aid and abet, and it is insufficient where it tends only to show that he was an accessory before or after the fact.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    reversed.

      Norwood & Alley, for Appellant.
    One not present when an offense is committed cannot properly be indicted as principal. 109 Ark. 498; 37 Ark. 274; 41 Ark. 173; 96 Ark. 58; 109 Ark. 389.
    Defendant’s objection to the opening statements of the prosecuting attorney should have been sustained. 62 Ark. 516; 71 Ark. 415.
    The testimony of J. A. Thornton and Jim Murray as to an unlawful organization should have been excluded.

      It was error to permit Jim Murray to testify that the defendant had been convicted of stealing- chickens. One theft cannot be proved by another unless the two are so connected as to form parts of the same transaction. 39 Ark. 278; 91 Ark. 555; 120 Ark. 492; 110 Ark. 226.
    It is error for the trial judge, either directly or indirectly, to express to the jury his opinion as to the weight of the evidence. 107 Ark. 469.
    An instruction based on a state of facts not in evidence is erroneous. 54 A Nr. 336: 8° Ark. 324.
    Instruction No. 3 should not have been given. There was no evidence to show a conspiracy. 74 Ark. 554. Corroboration must be by other evidence tending’ to connect the defendant with the commission of the crime. 43 Ark. 367; 50 Ark. 534.

      J. 8. Utlev, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    An aceessorv before the fact is punishable as principal, but must be indicted as an aceessorv. 104 Ark. 245; 108 Ark. 447.
    An accessory after the fact is one who, after full kmwledge that' a crime has been committed, conceals it or protects the one found guilty. C. & M. Digest, sec. 210.
    One who advises or encourages the commission of a felony, but not present when committed, cannot be convicted under an indictment charging him as principal. 37 Ark. 274; 94 Ark. 548; 96 Ark. 62; 50 Ark. 313; 41 Ark. 17.
    Where the record fails to show that the jury in a felonv case was sworn, a judgment of conviction will not stand. 37 Ark. 61 ; 34 Ark. 357; 25 Ark. 83.
    Under the foregoing authorities we confess err--
   . Humphreys, J.

Appellant was indicted in the Polk Circuit Court, as principal, for the crime of grand larceny, by unlawfully and feloniously stealing a cow, the property of Ira McCown, in Polk County, Arkansas, on the 10th day of September, 1921. At the same term of the court he was tried and convicted of the charge, and as punishment therefor sentenced to serve a term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.

The evidence adduced on behalf of the State tended to show that appellant was a member of an organization in Polk County, Arkansas, banded together for the purpose of stealing generally; that, pursuant to the intent and purpose of said organization, Jim Murray, Charlie, Jess and Allen Nichols did steal and drive out of said county into Oklahoma a cow belonging to Ira McCown; that after the cow was driven across the line into Oklahoma appellant appeared and assisted the others in butchering her.

In order to convict one of the crime of grand larceny when charged as a principal in the crime, the proof must either show that he committed the crime in person or that he was present, aiding and abetting, or ready and consenting to aid and abet in the crime. The proof, at most, only tends to show that appellant was an accessory before or after the fact of the crime. Before he could have been convicted of the larceny under the evidence adduced by the State, it would have been necessary to charge him as an accessory either before or after the fact of the crime. Roberts v. State, 96 Ark. 58; Hunter v. State, 104 Ark. 245; Jones v. State, 108 Ark. 447. There was a fatal variance between the proof and the crime charged in the indictment.

For the error indicated, and confessed by the Attorney General, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.


text:
    Waddell v. Bowdre.
    Opinion delivered January 23, 1922.
    1. Reformation of instruments — sufficiency of evidence. — The rule for the reformation of written instruments on account of fraud or mistake is that the mistake or fraud must be clearly and satisfactorily proved.
    2. Reformation of instruments. — A decree reforming a deed for mistake will be set aside where the proof of mistake was so equally balanced that it was impossible to say that the alleged mistake was established by a clear, convincing and satisfactory preponderance of the evidence.
    Appeal from Ashley Chancery Court; E. G. Hammock, 'Chancellor;
    reversed.

      G. P. George and Compere S Compere, for appellant.
    The whole case is based upon mutual mistake. If the plaintiff is to prevail, he must do so not only by a preponderance of the evidence, but the proof of the mistake must be clear, unequivocal and decisive, free from reasonable doubt. 101 Ark. 461, 466; 108 Id. 503, 506; 132 Id. 227. The authority of Ross to include the land in section 27 in the deed must be proved. 23 R. C. L. 328. It was Cagle’s duty to know Ross’ authority. 139 Ark. 16; 2 C. J. 565, note nine (b); 34 Cyc. 920. Equity will not relieve against mistake where the party complaining had within his reach the means of ascertaining the true state of facts and, without inducement by the other party, neglected to avail himself of the opportunities for information. 23 R. C. L. 349; 104 Ark. 475; 34 Cyc. 948, note 56.
    ¡i B. W. Wilson, for appellee.
    Appellant admitted that Ross was his agent with written authority to sell the land. He is bound by the acts of his agent. 21 R. C. L. 904 (81); Id. 907 (84).
    It is clear from the evidence that the land in controversy was sold and bought in each transaction, was omitted from the deed from Waddell to Cagle, and unintentionally omitted from the deed from Cagle to Bowdre and Nesbitt. The ease calls for reformation. 23 R. C. L. 335 (37); Id. 329 (21); 98 Ark. 10; 132 Ark. 227; 143 Id. 581.
    Conceding that the proof of mistake must be clear, unequivocal and decisive, 'the rule does not call for proof beyond a reasonable doubt. If it is clear, it is sufficient if it only preponderates. 144 Ark. 23; 146 Id. 36.
    The decree should not be reversed unless it is contrary to a clear preponderance of the evidence. 106 Ark. 569; 129 Id. 197; 130 Id. 178.
   Humphreys, J.

Appellees instituted suit against appellants in the Ashley Chancery Court to reform a deed executed by appellants to appellee, T. L. Cagle, of date March 2, 1918, so as to include the fractional east half of northeast quarter of northeast quarter of section 27, township 15 south, range 4 west, containing about ten acres, upon the allegation that the land in question was sold by appellants to said appellee along with other lands and was omitted from the deed conveying same through a mutual mistake of the parties. Appellants filed an answer, denying the material allegations of the bill. The case was submitted to the court upon the pleadings and evidence, which resulted in a decree reforming the deed so as to include said ten-acre tract. From the decree of reformation an appeal has been duly prosecuted to this court.

The land in question is a narrow strip, between a quarter and a half mile long, fronting on the public road and Bayou Bartholomew. It was in section 27, and the other lands conveyed in the deed were in sections 22, 23, 24, 25 and 26, in the same township. The strip in question adjoined lands described in the deed and was immediately north of the incorporated town of Morrell. On the date the conveyance was made about four acres of the ten-acre strip was enclosed in a large fieid, and the balance in a pasture. About 980 acres of land was described in the deed, and was conveyed for the recited consideration of $71,500. The land conveyed in section 22 fronted on the bayou, and that frontage, together with the ten acres, would have made an entire frontage on the bayou of about two and a-half miles. The lands weré sold through an agent, W. C. Ross.

W. C. Ross testified, in substance, that he sold the plantation to T. L. Cagle as agent for appellants; that after his employment to sell the lands appellant, J. M. Waddell, pointed out the lines to him, including the ten acres in question, in the presence of a Mr. Kerr who accompanied them, and as a favorable feature to be used in selling the land stated that it had a solid bayou front of about two and á-half miles by dirt road; that when he sold the plantation to T. L. Cagle he pointed out the boundary lines so as to include the ten acres in question, and used as an argument to effect the sale that the plantation had a frontage on the. bayou of about two and a-half miles; that later he effected a sale of the lands, as agent of T. L. Cagle, to A. R. Bowdre and A. J. Nesbitt, and in doing so pointed out the same boundary lines which he had shown Cagle at the time he purchased same, and used the same argument in order to effect the sale to them that he had used to Cagle with reference to the long frontage on the bayou; that his agency for the sale of the lands for appellants was in writing.

T. L. Cagle testified, in substance, that ho bought and sold the plantation through W. C. Ross, first acting as agent for appellants and then for himself, believing that he was buying and selling the ten-acre strip in question ; that the boundary lines were pointed out to him by W. C. Ross so as to include the ten-acre strip, and the argument was made to him to induce the purchase that the plantation had a' frontage of two and a-half miles on the bayou; that three or four acres of the ten-acre strip was enclosed in the main part of the farm, a portion of it fenced as a .pasture, and the balance outside lying along the bayou front; that he took possession of it and collected rents on it in 1918 when he purchased same; that he later sold it through his agent, W. C. Boss, to A. B. Bowdre and A. J. Nesbitt, and delivered them possession of the plantation, including the ten acres, in January, 1919. .

A. R. Bowdre and A, J. Nesbitt testified, in subsi anee, that they purchased the plantation from T. L. Cagle in 1918, including the ten-acre tract in question, and obtained possession thereof in January, 1919; that at the time of the purchase the boundary lines were pointed out to them by W. C. Ross, Cagle’s agent, so as to embrace the ten-acre tract in question, and that at the lime the agent, as an inducement for the sale, represented that the plantation had a frontage on the bayou of about two and a-half miles; that, unless the ten acres was included, the frontasre on tlm bayou would fall short of that distance; that after taking possession in January, 1919, appellant, J. M. Waddell, claimed the right to the possession and ordered their tenants to remove; that thereafter the suit for reformation was commenced: that they did not obtain information from J. M. Waddell at his home that he had not intended to convey and would not convey the ten acres in controversy to T. L. Caale; that they did not go to the home of J. M. Waddell for the purpose of obtaining information about the land, but to settle certain notes which they had assumed to pay.

.Bernard Johnson testified that his father, brother and himself cultivated that part of the land in dispute in 1918; that they entered upon it in 1916 under a rental contract with J. M. Waddell; that Mr. Waddell demanded the rent for the year 1918, but they paid it to Mr. Cagle.

J. M. Waddell testified, in substance, that he did not own the entire ten-acre tract when he made the deed to T. L. Cagle to the plantation: that he bad sold and conveyed several lots off of the tract to other parties prior to the sale to Cagle; that he did not sell or intend to sell any part of the ten-acre strip to CaeM; that he only intended to sell him what was described in the deed; that lie did not point the ten-aere tract out to Ross and Kerr as a part of the plantation he had listed with’ Ross for sale; that he did not make any representation to Ross that he was selling the tract in controversy; that.Ross was his agent to sell the land actually conveyed by him to Cagle, and that the only authority given Ross was conferred in writing; that before Bowdre and Nesbitt bought the land from Cagle they came to his home and inquired whether he had deeded the ten acres to Cagle, and were informed that he had not and did not intend to do so; that he owned other property adjacent to the property sold besides the ten-acre tract in controversy; that he did not deliver possession of said tract to appellees, but retained possession and control thereof until February, 1919, when appellees took possession without his consent.

Olivia Waddell, wife of J. M. Waddell, testified that she and her husband did not sell or intend to sell the ten-acre tract to Cagle; that it was their home where all their children were born, and where they had spent the happiest years of their lives; that it would have been hard for her to sign, and she did not think she would have signed, the deed if the ten-acre tract had been included in the sale; that'she heard her husband tell Bowdre and Nesbitt, before they purchased from Cagle, that he had not made and would not, make a deed to the tract in controversy.

W. E. Waddell, son of J. M. Waddell, testified that W. C. Ross asked him if his father intended for the land sold to go to the bayou on the west side, and he told him his father had said he did not list or intend to sell the ten-acre strip in section 27 fronting on the bayou.

Ben Johnson testified that he went upon the ten-acre tract in 1916 under rental contract with Mr. Waddell, and remained on the place until the contract with Mr. Waddell during the year 1918; that Mr. Waddell furnished him during the year 1918, and that he settled for the supplies in full; that he paid the rent on the land in controversy to Mr. Cagle for the year 1918, but that Mr. Waddell demanded the rent, claiming to be the owner of the land; that in January, 1919, Mr. Waddell demanded possession of the land, but that Mr. Bowdre told him to remain upon it until he was ousted by law.

If the issues involved on this appeal were determinable under the rule of a mere preponderance or weight of the evidence, we would be inclined to sustain the decree of the chancellor, as the evidence is so nearly in equipoise. It is so evenly balanced that it is hard to tell where the weight of the evidence is. On the one hand, the agent, Boss, testified that the grantor, J. M. Waddell, pointed out the ten-acre tract in controversy as a part of the plantation listed with him for sale, and suggested that the ten acres would make a frontage on the bayou for the plantation of about two and a-half miles. His subsequent conduct in making the sale corroborated his statement. On the other hand, J. M. Waddell flatly denied that he authorized Boss to sell the ten-acre tract or that he pointed it out as a part of the plantation listed with Boss for sale. He is supported by the fact that he did not at the time own all of the ten-acre tract, having theretofore sold several lots off of it to other parties. Also, by the testimony of his wife, who says she thinks she would not have signed the deed, had it been included, on sentimental grounds. Also, by the fact that the tract was not included in the deed conveying the plantation. The possession and collection of the rents is of little corroborative value, because the possession thereof was in dispute and the rent claimed by both.

The rule for the reformation of written instruments on account of fraud or mistake is that the mistake or fraud must be clearly and satisfactorily proved. This court, in the case of Welch v. Welch, 132 Ark. 227, quoted with approval from the case of Duecker v. Goeres, 80 N. W. 91 (Wis.), as follows: “Testing- the findings under consideration by the familiar rule that to warrant the reformation of a written instrument because of fraud upon the one side and mistake upon the other, or of mutual mistake, the facts in that regard must be made to appear by the most clear and satisfactory evidence, so as to leave no room for reasonable controversy on the subject, they cannot be sustained.” The same rule, in substance, was announced by this court in Wales-Riggs Plantations v. Banks, 101 Ark. 461, and Tedford Auto Co. v. Thomas, 108 Ark. 503.

The proof is so equally balanced in the instant case that it is impossible for us to say that the alleged mistake not to include the ten-acre tract in section 27 in the deed was established by a clear, convincing and satisfactory preponderance of the evidence. The evidence does not meet the requirement of this wholesome rule. The solemnity of written obligations or -contracts forbids reformation upon' any other theory than the clear-proof rule.

For the error indicated, the decree is reversed, and the cause remanded with directions to dismiss • the bill for want of equity.


author: McCulloch, C. J.

text:
    Southern Surety Company v. Puryear-Meyer Grocer Company.
    Opinion delivered January 30, 1922.
    Insurance — indemnity policy — defenses.—A default judgment for personal injury was obtained against insured without notice to insurer, and was subsequently abandoned for want of service. A second suit was brought by the same plaintiff against insurer, of which the insurer was notified. Judgment was had in the common pleas court and appeal taken to the circuit court, where the insurer interposed no defense except res judicata, which was sustained, and judgment entered thereon. Subsequently, on request of insured, the order sustaining the plea wi.s s"t aside, whereupon insured paid the judgment. Held that there was o merit to the defense that insured failed to notify insurer of the first suit, which was abandoned, nor was there merit to the defense that insured interfered with the defense in the circuit court, since insurer’s plea of res judicata was obviously interposed, not to defeat liability, but to absolve insurer while holding insured liable.

      Appeal from Greene Circuit Court, First Division; li. H. Dudley, Judge;
    affirmed.

      D. G. Beauchamp, for appellant.
    Appellant did not waive its right to avail itself of tlie covenants of the policy with reference to notice of claim and notice of suit, by its appearance and defense of the second suit instituted by Scott. A waiver is the intentional relinquishment of a known right. 82 Fed. 406, 47 L. E. A. 450; 32 Conn. 21, 85 Am. Dec. 240; 66 Conn. 227, 50 A. S. E. 80; 127 111. 364; 11 A. S. E. 121.
    Under the contract appellant was bound to appear and defend the action, and by doing so cannot be held to have waived any right.
    Appellee breached every condition of the policy he was in duty bound to perform.
    Appellant had the right to plead res judicata and secure the dismissal of the suit it was called on to defend. The original judgment recited service of summons upon appellee, and is therefore valid and binding. 72 Ar'k. 265; 105 Ark. 5.
    Appellee interfered with the conduct of the suit, and failed to cooperate with the appellant, as required by the policy.
    The execution sued out and paid was upon the second judgment, while there was a prior valid judgment outstanding.
    Instructions 1, 2 and 3 are bad in that they ignore the defenses of appellant with respect to the compliance by appellee with the terms of the contract.

      M. P. Huddleston, Fwhr $ Futrell, for appellee.
    Appellant took charge ofthe second suit with full knowledge of the prior suit and judgment, without any notice to the assured that it did not intend to waive any of its rights as to any matter of defense and non-liability, and is therefore estopped to plead in this suit that it did not waive any of its rights. Joyce on Ins. vol. 4, p. 4812 and 4813; 143 8. W. 438; 109 N. W. 410; 81 Pac. 826; 210 N. Y. 235; L. E. A. 1915-A 629.

      By pleading res judicata appellant assumed inconsistent positions, in that while pretending to represent appellee it was taking advantage of the plea to fasten on the appellee the validity of the first judgment. 235 L. R. A. 1915-A 629; 143 S. W. 438.
    Appellee did not interfere with the litigation.
   McCulloch, C. J.

Appellee, a doméstic corporation, is engaged in the mercantile business in the city of Paragould, and operates one or more automobile trucks in connection with its business. One of these trucks collided with and damaged an automobile owned by G. W. Scott, and the latter made claim against appellee for reimbursement for the injury thus inflicted. Appellee carried with appellant a policy of indemnity insurance covering liability of the kind which includes Scott’s claim against appellee.

Scott obtained a default judgment in the common pleas court of Greene Count}'- for the amount of his claim, and then demanded payment of the judgment, but appellee refused to pay the judgment on the ground that it had not been served with process in the action. The record in that case does not show that any process had been issued or served. Scott then abandoned the judgment and caused another summons to be issued and served on appellee, who notified appellant of the pendency of the suit and forwarded to appellant a copy of the summons. Appellant, through its attorneys, took charge of the litigation and appealed to the circuit court from the second judgment rendered against appellee, and after the cause reached the circuit court on appeal, those attorneys interposed a defense of res judicata, based on the former judgment rendered in the common pleas court. No other defense wast interposed. The court sustained his plea, and entered a judgment accordingly, but the next day, at the request of one of the managing officers of appellee company, set aside the order sustaining the plea and continued the case until the next term of the court. Subsequently appellee paid the judgment, and the appeal from the common pleas court was dismissed by consent. Appellee then instituted the present action against appellant to recover on the policy of indemnity insurance.

According to the stipulations of the policy, appellee, as the assured thereunder, undertook to perform the condition upon which liability against appellant should be asserted as follows:

“(a) Upon the occurrence of an accident covered by this policy, the assured shall give immediate written notice thereof with the fullest information obtainable at the time to the company, or its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof, with full particulars. If suit is brought to enforce such claim, the assured shall immediately forward to the company every summons, or other process, as soon as same shall have been served upon him. The assured shall at all times render to the company all co-operation and assistance, except in a pecuniary way, within his power.

“(b) The assured * * * shall not interfere in any negotiations for settlement, or in any legal proceeding conducted by the company on account of any claim *

The defense relied on in the present action is that appellee failed to notify appellant of the first suit instituted by Scott gnd failed to forward a copy of the summons, and that appellee interfered with the efforts of appellant to defend against the Scott suit in the circuit court.

The material facts in the case are undisputed, and it is unnecessary to consider the assignments of error with respect to the charge of the court to the jury.

The failure of appellee to notify appellant prior to the first judgment entered in the common pleas court affords no defense to the present action, for that judgment was abandoned. The purpose of the stipulation in the policy was to afford the company an opportunity to control the litigation and interpose a defense against tlie claim on the merits of the case. The first judgment obtained by Scott against appellee was abandoned, and no payment was made thereunder, and no liability against appellant is sought by virtue of an enforced payment of that judgment, hence it is clear that there was no breach of the conditions of the policy by failure of appellee to give notice of the first suit. Nor do we think, under the undisputed evidence, that there was any interference with appellant in defending against the suit in the circuit court. It offered no defense on the merits, but merely interposed a plea of res judicata, which was obviously done for the purpose, not of defeating the claim of Scott, but to establish the liability under the first .judgment so as to afford appellant a defense against appellee’s claim for indemnity. Appellant was let in to defend against the original litigation, not,for the purpose of absolving itself from liability to appellee, but to defend against the claim of Scott, and appellee was not bound to sit by and permit appellant’s attorneys to conduct the litigation solely for the purpose of enabling appellant to escape liability, and at the same time to fasten upon appellee the liability for Scott’s claim.

"VVe are of the opinion, therefore, that the judgment was correct upon the undisputed evidence, and no error in the instructions could have been prejudicial. .

Affirmed.