author: Hart, C. J.,

text:
    Balesh v. Hot Springs.
    Opinion delivered April 18, 1927.
    1. Auctions and auctioneers — authority of city to prohibit auctions. — Crawford & Moses’ Dig'., § 7753, permitting cities of the ■first class to prohibit the sale of merchandise by auction held unconstitutional as being in conflict with Const., Bill of Rights, § 2, guaranteeing liberty and the right to acquire, possess and protect property.
    2. Auctions and auctioneers — right to regulate business.— While the Legislature has not the power to prohibit auctioneer-ing, it may require a license or make other reasonable' regulations.
    Appeal from Garland Chancery Court; W. R. Duffle, Chancellor;
    reversed.

      STATEMENT OE EAOTS.
    H. E. Balesli brought this suit in equity against the city of Hot Springs and the mayor and the chief of police thereof to enjoin them from interfering Avith him in the sale, of his merchandise at auction.
    According to the allegations, of his complaint, Avhich are sustained by the proof, the plaintiff is a resident of the city of Hot Springs, Garland County, Arkansas, and has been engaged in business in that city for several years. His merchandise consists chiefly of oriental goods, china, linen, antiques, and other art goods, which he disposes of, for the most part, by auction. He sells very little of-his merchandise at private sale, and conducts his auction sales, for the most part, in person.
    In NoA^ember, 1926, the city of Hot Springs, by its city council, passed an ordinance -making’ it' a misdemeanor to sell goods, Avares or merchandise by auction in the city of Hot Springs. This ordinance Avas passed pursuant to § 7753 of CraAvford & Moses’ Digest, Avhich reads as follows: “Cities of the first class are given authority to prohibit or permit, under such regulations as they may determine, the sale of merchandise by auction, except judicial sales and foreclosure sales held in the daytime. ’ ’
    The chancery court upheld the constitutionality of the act and the ordinance based on it, and dismissed the complaint of the plaintiff for Avant .of equity. The case is here on appeal.

      Martin, Wootton & Martin, for appellant.

      Geo. P. Whittington, A. ' T. Davies and Leo . P. McLaughlin, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the plaintiff attacks the constitutionality of the act under Avhich the ordinance ' prohibiting him from selling his goods, wares or merchandise at auction Avas passed, on the ground that it is in violation of § 2 of our Bill of Bights, which reads as follows: “All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation; and of pursuing their own happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” This section was substantially taken from the Declaration of Independence.

In Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 4 S. Ct. 652, Mr. Justice Bradley, speaking for the court, said that the right to follow any of the common occupations of life is an inalienable right. 'Mr. Justice Field, in a concurring opinion, in discussing the inherent rights of men which “have never been more happily expressed than in the Declaration of Independence, .that new evangel of liberty for the people,” said: “Among these inalienable rights, as proclaimed in that great document, is the right of men to procure their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.

“The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pur sue them, without let or hindrance, except that which is applied to all, persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.”

In Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, the court said: “The Legislature may not, under the guise of protecting the public interest, arbitrarily interfere Avith private business, or impose unusual or unnecessary regulations upon lawful occupations. In other words, its determination as to what is a proper exercise of its police poav-ers is not final or conclusive, but is subject to the supervision of the courts.” In Kusnetzky v. Security Ins. Co. (Mo.), 281 S. W. 47, 45 A. L. R.,189, it was held that it is not within the power of the Legislature to forbid a man to transact any business otherwise perfectly lawful. Such a right was held to be guaranteed-by a provision of the Constitution of the State of Missouri, declaring that ‘ ‘ all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry.”

The business of auctioneering is a lawful and useful one, and is as old as the law of sale. 2 R. C. L., § 2, pages 1116 and 1117; 6 C. J., pages 821 and 822; and 3 Am. & Eng-. Enc. of Law, pages 488 and 489. It is universally held that the Legislature has the power to prohibit auctioneering except through licensed' auctioneers, and it may also make other regulations which are reasonable and not wholly arbitrary. Dornberg v. Spokane, 125 Wash. 72, 215 Pac. 518, 31 A. L. R. 295, and case-note at 299; Biddles v. Enright, 239 N. Y. 354, 146 N. E. 629, 39 A. L. R. 766, and ease-note -at 773; and Oldsman v. Thomas, 112 Ohio St. 397, 147 N. E. 750, 39 A. L. R. 760. The Supreme Court of the State of Minnesota has also recognized that the custom of iselling goods at auction is as old as the law of sale,- and -that the occupation of auctioneering is a lawful one. Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; and Anderson v. Wis. Cent. Ry. Co., 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.), 1133. Auctioneering, rightly conducted, is a business, within the legitimate scope of trade, traffic or merchandise. People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, page 830.

The nearest case in point to which our. attention has been directed is that of Robinson v. Wood, 196 N. Y. S. 209. In that case, the Legislature of New York authorized the city to “regulate by license or prohibit auction sales,” and the city of New York attempted by ordinance to prohibit auction sales between sunset and eight o’clock in the morning. The court held the ordinance to be invalid as not a proper exercise of the police power of the State. The court said that lawful occupations could not be arbitrarily interfered with by unusual or unnecessary regulations established under the guise of protecting public interest. It is not necessary for us to approve the holding in that case in its entirety, but we do adopt the reasoning of it in so far as it applies to the principal issue raised in this case, and that is as to the power of the Legislature to pass an act giving cities the authority to prohibit the sale of merchandise by auction.

'We have no case in this court directly on the question, but the views announced above are in accord with the reasoning in Replogle v. Little Rock, 166 Ark. 617, 267 S. W. 353, 36 A. L. R. 1333.

We have not attempted to set out all the proof made in the case at bar, but there is nothing in the record even suggesting any reason for the passage of the act under consideration. We are of the opinion that the statute under consideration is an unreasonable interference with the freedom of trade, and the Legislature had no power to pass an' act prohibiting an occupation which has already been regarded as a legitimate one, although it may be made the subject of reasonable regulation under the police power of the State.

It, follows that the decree of the chancery court must be reversed, and the cause must be remanded with directions to grant a permanent injunction in favor of the plaintiff, as prayed for in his complaint. It is so ordered.


source: Caselaw Access Project

author: Hart, C. J.~

license: Public Domain

text:
    Cole v. New England Securities Company.
    Opinion delivered April 18, 1927.
    1. Mortgages — rights of purchaser at ’ foreclosure sale.— A purchaser of land at a mortgage foreclosure sale is entitled to possession and to rents and profits after notice to quit and demand therefor.
    2. Mortgages — notice to quit — jury question. — Whether a purchaser at a mortgage foreclosure sale gave the owner and ’his tenant notice to quit and made demand for rents, held for the jury on conflicting evidence.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.
    STATEMENT OE EACTS.
    The New England Securities Company instituted this action in the circuit court against Jesse T. Cole and John T. England to recover $130, alleged to be due as the rent for 1924 of sixty acres of land described in the complaint.
    The record shows that, on the 3d day of March, 1924, a decree foreclosing a mortgage on said land was entered of record in the Crawford Chancery Court in favor of the New England Securities Company and T. C. Alexander against L. A. Carnes and Jesse Cole, and, in default of the payment of the mortgage indebtedness within the time specified, it was decreed that said land be sold by a commissioner and the proceeds of sale first applied to the satisfaction of the mortgage indebtedness. T. C. Alexander'became the purchaser at the foreclosure sale for a sum less than the mortgage debt, and the commissioner duly executed to him a deed to said land, which was examined and approved by the chancery court on the 5th day of May, 1924.
    W. R. Willis, field agent of the New England Securities Company, was a witness for it. According to his testimony, he went out to the land in the summer of 1924 and stated to John T. England, who was on the laird, cultivating it as a tenant, that he was the agent of the New England Securities Company, and demanded of England that he pay the rent to him. England agreed to pay the rent as demanded, and, at that time, gave Willis some sweet potatoes as a part payment of the rent.
    Jesse' T. Cole was a witness for the defendants. According to his testimony, he occupied the land in controversy during the year 1923, and owned it at that time. For the year 1924 he rented the place to J. T. England and put him in possession of it. Cole denied that there had been any demand made upon him for the possession of the land, notice to quit, or demand for the rent for the year 1924. He admitted that England paid him the rent on the land about the first of December, 1924.
    According to the testimony of John T. England, "Willis came out to the place in the summer of 1924 and told him that it belonged to him. He gave Willis a few peaches and some sweet potatoes. England had rented the place from Jesse Cole, and heard something about a suit against Cole to foreclose a mortgage on the land. Willis did not make any demand upon him for possession of the place and did not demand, the rent for the year. 1924. Afterwards the witness was advised to pay the rent to Cole, and did pay him $130 as rent for the place for the year 1924.
    The court directed a verdict in favor of the plaintiff, and, from the judgment rendered, the defendants have duly prosecuted an appeal to this court.

      E. D. Chastain, for appellant.

      O. D, Thompson, for appellee.
   Hart, C. J.~

(after stating the facts). The court erred in directing a verdict in favor of the plaintiff. The law is that a purchaser at a foreclosure sale under a mortgage is entitled to possession and to the rents and jprofits after notice to quit and a demand for rents and profits has been made. North American Trust Co. v. Burrow, 68 Ark. 584, 60 S. W. 950, and Oliver v. Deffenbaugh, 166 Ark. 118, 265 S. W. 970. According to the evidence for the defendants, no demand for' the rents and profits ivas made upon them, and, under the. authorities cited, their testimony tends to show that they were entitled to the rents iand profits for the year 1924.

It is- true that, according to the evidence for the plaintiff, a demand for the rents and profits for the year 1924 was made, and the court should have submitted this disputed question of fact to the jury, under pro'per instructions. It could not direct a verdict in favor of the plaintiff, because there was a dispute upon the question of whether the plaintiff gave the defendants notice to quit and made a demand for rents and profits for the year 1924.

It follows that the judgment must be reversed, and the cause will be remanded for a new trial.


text:
    Fulmer v. East Arkansas Abstract & Loan Company.
    Opinion delivered April 18, 1927.
    1. Insurance — liability for penalty and attorney’s fee. — Where the insurance company offered to confess judgment for the face of the policy, less the amount of a premium due thereon in accordance with the terms of the policy, neither the insured nor his assignee would he entitled to recover the-, penalty and attorney’s fees provided by Crawford & Moses’ Dig., § 6155.
    2. Insurance — priority of agents’ claim on proceeds of policy.— Where the insured’s agent paid the premiums on a fire insurance policy and took a note in which it was stipulated that the note should be paid out of the fund recovered in case of fire, such agent’s claim was superior to the rights of an assignee of the policy.
    3. Insurance — mortgagee’s interest in policy. — Generally, a clause in a mortgage to the effect that the proceeds of an insurance policy shall be payable to the mortgagee as his interest appears is merely collateral to the principal undertaking to pay the mortgagor, and the mortgagee is merely an appointee of the fund, with no more rights than the insured had. ,

    4. Insurance — priority of agent’s claim for premiums paid.— Where insured contracted with his agent to pay premiums advanced by the agent out of any amount recovered under the policy, the agent was entitled to be paid out of the fund before payment to insured’s mortgagee. under the loss payable clause in the mortgage.

      Appeal from Cross Chancery Court; A. L. Hutchins, (.Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    The East Arkansas Abstract & Loan Company, hereinafter called the abstract company, instituted an action in the circuit court against J. E. Hollan and. J. D. Fulmer, defendants, to recover the sum of $1,164.81, and sued out a writ of garnishment against the Liverpool & London & Globe. Insurance Company, hereinafter called the insurance company.
    According to the allegations of the complaint, Hollan owned land in Cross County, Arkansas, which he had mortgaged to J. D. Frdmer to secure the sum of $26,000. Hollan obtained from the abstract company, which was engaged in writing fire insurance, policies of insurance on the improvements on said lands, including a gin. Insurance premiums, amounting to $1,164.81 and covering a period of several years, were past due, and Hollan executed his note to .the abstract company for said sum. The note was dated September 26, 1924, and recited that it was given for premiums on policies of insurance issued through the abstract company, and that Hollan assigned to said company any return premiums which might be recovered on said policies, to be applied in reduction of said .note, and also recites that, “should any of the property insured by said East Arkansas Abstract & Loan Company be destroyed or damaged by fire or otherwise and any loss be proved due and payable to me or us, it is hereby agreed and understood that this note is to be paid out of said funds due on account of said loss.” The note was payable December 15, 1924.
    Hollan had a policy for $7,400 on his gin, which he had obtained through the abstract company from said insurance company. The policy contained a loss payable clause, first to the Continental Gin Company to the amount of $2,500, and the balance to J. T). Fulmer. The premium on said policy amounted to $291.50, which was never paid. Subsequently to the execution of the note above referred to. by Hollan to the abstract company, he assigned his interest in said policy to J. D. Fulmer. The gin was destroyed by fire during the life óf the policy. Service of process in the case in the circuit court was had only upon Hollan, who filed a motion to transfer the case to the chancery court for the purpose of consolidating it with a case filed in that court by the insurance company for the purpose of depositing the amount of money due by said company upon said insurance policy in the registry of the court, to be paid to the person or corporation which the chancery court might decide was entitled to it. By consent the action in the circuit court was transferred to the chancery court and consolidated with said equity suit. By agreement between Hollan and the insurance company, the premium of $291.50 was deducted from the face of the policy of $7,400, and the balance of the insurance policy was deposited in the registry of the court by the insurance company. The abstract company was given judgment for the balance of the note due it, after deducting the premium of $291.50, and the Continental Gin Company was paid the amount due it under the terms of the policy. Fulmer claimed to be entitled to the penalty, attorney’s fee and cost provided by the statute, and also to the balance of the fund deposited in court by the insurance company after paying the amount due the Continental Gin Company.
    The chancery court found the issues in favor of the abstract company and the insurance company, and a decree was entered of record in accordance with its finding'. To reverse that decree .7. T). Fulmer has duly prosecuted an appeal to this court.

      Jas. R. McDowell and Or/an £ Shaver, for appellant.

      McMillen £ Scott, for appellee.
   Hart, C. J.,

(after stating the facts). It is first sought to reverse the decree on the ground that the chancery court erred in not allowing to Fulmer the penalty and attorney’s fee provided in § 6155 of Crawford & Moses’ Digest. It is there provided that, in all cases whore loss occurs and the fire or other insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, 12 per cent, damages upon the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of said loss. The face of the policy was $7,400, and, after the gin was destroyed by fire, the insurance company conceded that Hollan was entitled to recover that sum, and, by mutual agreement, his loss was fixed at the face of the policy, and the company was allowed to deduct an unpaid premium on the policy in the sum of $291.50. If suit had been brought by Hollan, he could not have recovered any more than the amount agreed upon in the adjustment with the company. The reason is that, under the terms of the policy, the company would have been entitled to deduct the amount of the premium for the policy sued on. In such case the company could have avoided the statutory penalty and attorney’s fees by offering to confess judgment in favor of Hollan for that amount, and thus have ended the suit. In that event Hollan would not have been entitled to recover the statutory penalty and attorney’s fees. Queen of Arkansas Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 540, and Queen of Arkansas Ins. Co. v. Bramlett, 103 Ark. 1, 145 S. W. 541. Hollan had not paid the premium, and, under the terms of the policy, he owed it to the insurance, company at the time his gin was destroyed by fire. Under the terms of the policy the insurance company had the right to deduct the unpaid premium and to pay him the remainder of the amount due under the policy. Having agreed upon an adjustment, upon this basis, Hollan would not have been entitled to recover the statutory penalty and attorney’s fees. He assigned his interest in the policy to Fulmer, and it is perfectly plain that Fulmer cordd acquire no greater rights in the premises than Hollan. The statute was passed for the benefit of the holder of the policy, and no assignee of the policy could acquire any greater rights lo tlie penalty and attorney's fees provided by the statute than it gave to the holder of the policy. Therefore the chancellor was right in holding that Fulmer was not entitled to recover the penalty and attorney’s fees provided by the statute-to the holder of the policy.

It is next insisted that the court erred in allowing the claim of the abstract company against Fulmer. The abstract company was the agent of the insurance company which issued the insurance policies to Hollan, and which advanced the money for him with which to pay the premiums on the policies. Hollan gave ■ the abstract company his note for $1,164.81, the amount of the premiums paid by it for him to obtain policies of insurance on his property. The note given by Hollan provided that any return premiums which might be recovered on said policies should be applied in reduction of the note, and also provided that, in case the insured property was destroyed by fire, the note should be paid out of the fund recovered on account of said loss. -This note was executed by Hollan to the abstract company before he assigned his interest in the policy to Fulmer. Hence the right of the abstraed company to the proceeds of the insurance recovered by Plollan was superior to that' of Fulmer until said note Avas paid.

Again, it is insisted that Fulmer Avas entitled to the proceeds of the policy in preference to the abstract company because he had Avhat is called a loss-payable clause in his mortgage. The mortgage by Hollan to Fulmer contained a clause that the proceeds of the policy should be payable to the mortgagee as his interest might appear. The general rule is that this kind of a contract as to the mortgagee is merely collateral to the principal undertaking to pa3r the mortgagor and that the mortgagee is merely an appointee of the fund. Consequently his rights are no greater than those of the insured. 14 R. O. L., 1037; ease-note to 38 L. R. A. (N. S.), 199; and Cooley on Insurance, ato1. 2, pages 1069 and 3077. Such holding seems to be approved by this court in Planters’ Mutual Insurance Association v. Southern Savings Fund & Loan Co., 68 Ark. 8, 56 S. W. 443. In that case the court said:

“If tlie transfer be made by the mortgagor to a mortgagee of the insured premises as a collateral security, without any new consideration moving from the assignee to the insurer, the assignee can only recover where his ¡assignor could have clone so had no assignment been made. ‘Such an assignment does not convert the policy into a contract of indemnity to the mortgagee. It is the interest of the mortgagor alone that is covered by it. Assignee takes it subject to all the express stipulations contained in the policy, and lie cannot recover in case of subsequent breach’ by the mortgagor of the conditions which render the policy void. ’ ’

Hence it follows that Fulmer had no greater rights in the policy than Hollan; and, Hollan having contracted with the abstract company to pay the premiums advanced by it out of the amount recovered under the policy, the abstract company was entitled to be paid before any of the fund deposited in the registry of the court by the insurance company should be paid to Fulmer.

Finally, it is insisted that the insurance company had no right to deposit the amount due Hollan in the registry of the court and thereby escape ihe payment of the statutory, penalty and attorney’s fees and the cost of the case. As we have already seen, the insurance company and Hollan agreed upon an adjustment of the loss in accordance with the provisions of the policy. The insurance company was ready to pay the amount to whoever should be entitled to it. Fulmer and the abstract company each claimed to be entitled to the fund. Hence, in order to avoid a multiplicity of suits and in order to escape costs, the insurance company was entitled to some relief of an equitable nature concerning the fund in dispute, and should not be burdened with the cost of litigation because there were conflicting claimants for the fund. In no other way could it have protected itself except by filing- a complaint in equity in the nature of a bill of interpleader. C. R. I. & P. Ry. Co. v. Moore, 92 Ark. 447, 123 S. W. 232.

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


author: Wood, J.

text:
    Hammond v. State.
    Opinion delivered April 18, 1927.
    1. Larceny — “sundry drugs” defined. — Under an indictment for stealing- sundry drug's, the term “drugs” does not refer to any particular drug or medicine, but includes any substance used as a medicine, and the term “sundry” means separate, divers or various.
    2. Larceny — stealing sundry drugs — sufficiency.—An indictment alleging that defendant stole “sundry drugs,” the property of the prosecuting witness, was sufficiently definite for the jury to determine that the property alleged to have been stolen was the same property as that which the testimony tended to show that the defendant stole from the prosecuting witness.
    3. Indictment and information — former jeopardy. — Under an indictment charging defendant with stealing sundry drugs from the prosecuting witness, a conviction or acquittal thereof would enable the defendant to plead same if he were again charged during the same period with stealing sundry drugs from the same person.
    4. Indictment and information — allegation that nature of sundry DRUGS WAS UNKNOWN. — Under an indictment charging defendant with stealing sundry drugs from ^another without further description, it was not essential to the validity of the indictment to allege that the exact nature of the drugs was unknown to the grand jury.
    5. Larceny — sufficiency of evidence. — In a prosecution for stealing drugs, evidence tending to prove that defendant and another conspired to steal drugs, and that they jointly participated therein, held sufficient to sustain a conviction of defendant.
    6. Larceny — proof of conspiracy. — Under an indictment for stealing drugs, though a conspiracy was not alleged, testimony tending to establish a conspiracy between defendant and another to commit the alleged larceny was competent.
    7. Larceny — competency of testimony. — In a prosecution for stealing drugs, testimony that chemicals handled only hy the wholesale store from which the drugs were alleged to have been stolen were purchased by a retail drug store from defendant was competent as tending' to prove that defendant was procuring stolen drugs and .selling them.
    8. Criminal law — competency of acts of conspirator. — In a prosecution for larceny of drugs admission of testimony that ' another had pleaded guilty to grand larceny of the same drugs and admission of the indictment charging such other with the crime, was error, as the acts of a fellow conspirator, done after the conspiracy has ended, are inadmissible to show defendant’s guilt.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.

      A. T. Davies, Witt S Witt and Murphy & Wood, for appellant.

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

Omitting formal parts, tlie indictment charged that “J. C. Hammond, in the county and State aforesaid, on the.day of....:., A. 1). 1926, sundry drugs, the exact nature and character to the grand jury unknown, of the value of $100, '■ and sundry other drugs, the character and value thereof being to the grand jury unknown, the property of W. S. Sorrells, unlawfully and feloniously did steal, take and carry away,

The testimony tended to prove that W. S. Sorrells was engaged in the wholesale and retail drug business in Hot Springs, Arkansas. According to his testimony he had lost, during the last three years, as hefigured, between $15,000 and $20,000 worth of drugs. The heavy stealing occurred during the last month before Dewey Baldwin quit the employment of witness. Baldwin had been working for witness in witness’ drugstore some five or six years, and was witness’ head man. The appellant and Baldwin were on very friendly terms. Appellant came by the drugstore nearly every night to take Baldwin home. Baldwin would come down in the afternoon with boxes, perhaps eighteen or thirty boxes, patent medicine boxes, lo be filled with drugs to be delivered to various customers as their orders might come in. On several occasions witness observed that all the boxes were gone next morning. They would be in the store when witness left about 10 p. m. and would all be gone the next morning when witness returned to the drugstore at about 8:30 o’clock. Witness, at .first, did not suspect Baldwin, who was the head man in his store, of stealing drugs, but, after witness had been informed by one Braughton that lie was buying drugs from the appellant, witness finally (tame to the conclusion that Baldwin, his clerk, was assisting appellant in getting drugs from witness’ store. Witness figured that the■ appellant wouldn’t know how to get out just such drugs as Braughton would wánt to buy, and witness therefore suspected that Baldwin must be fixing the orders for drugs from witness’ store which Braughton was buying from appellant.

Mrs. Sorrells, the wife of W. S. Sorrells, testified to the effect that she was often at the drugstore, and many times would see the appellant there. During the last winter the appellant made the remark two or three times to witness as follows: “Why, I have walked around here and looked at the amount of drugs Mr. Sorrells has here, and one could carry off a load and he wouldn’t miss them.” Witness replied, “No, I don’t suppose he would miss them.”

. Witness Ernest Green testified that ho worked in the City Drugstore of Hot Springs during the year 1926, and saw appellant delivering drugs to the City Drugstore two or three times, in a Ford sedan. Appellant would usually deliver the drugs about 7 o’clock'in the morning. The drugs were in pasteboard boxes. There was nothing on the drugs to indicate where they came from; the invoice was made on small letter tablet paper. The orders totaled about $300, in lots of $75, $80, or $100 apiece. The drugs were the ordinary line of drugs. The orders were delivered publicly. McKinley Lewis Avas with witness in the City Drugstore at the time. He testified that he Avas manager of the'City Drugstore in Hot Springs, which Avas owned,by Marsh & Braughton. Witness was acquainted with the appellant, who was an • osteopath and had an office in the Arkansas National Bank Building. The appellant delivered drugs to the City Drugstore in September or October, 1925. These deliveries were the ordinary line of drugs for which witness paid the appellant, giving him a check around $90 or $100. Witness got a discount of 30 per cent, on the drugs. Appellant said something about the drugs coming from Little Bock or Pine Bluff, or somewhere, witness didn’t remember; something was said about the drugs being applied on a debt that somebody owed appellant. Witness was not positive, but believed that was what the appellant said. Appellant objected to the above testimony, and moved to exclude same. The court overruled the motion, to which ruling appellant duly excepted.

Witness Bush was engaged in the drug and jewelry business at Benton during 1925 and 1926. Appellant came into witness’ store with a list of drugs which he wished to sell the witness. .Witness bought drugs from appellant once or twice, and received a discount of 20 or 25 per cent. The goods were delivered to witness in regular packages, and were patented articles. The appellant stated that he was' helping a friend to dispose of them. This occurred in the fall or winter of 1925. It was during the regular business hours.

The witness Parker testified that he was in the drug business a-t Benton, Arkansas, and, during the quail season, between December, 1925, and January, 1926, witness bought razor blades, toothbrushes, tooth paste, milk of magnesia and syrup of pepsin two or three times. The appellant said it was a bankrupt stock of goods which came from a store in Little Bock: that he had a few items left which he .was selling at a discount of 20 or 25 per cent. Witness paid the appellant by check for the drugs purchased the sum of $115.

Hockens Smyth testified that he lived at Benton, and-was in the drug business. Appellant offered witness, on two different occasions, on Sunday, certain .goods at a discount of 20 per cent. Witness thinks that appellant stated tliat some one had gone into bankruptcy in Little Rock or some place and appellant was getting the goods • from bankrupt stock.

R. A. Moore testified that, the first of the year 3926, the appellant and his mother rented the house diagonally across from where witness lived, on Sorrells Street, and that Dewey Baldwin roomed at the house. While they were there, witness saw Sorrells’ delivery wagon, in which wore Dr. Hammond and Dewey Baldwin, unload paper and wooden boxes. Witness didn’t know what kind of goods these boxe.s contained. They might have contained household stuff, but witness didn’t, see any furniture. Appellant was moving into the house, and the truck had Sorrells’ Drug Company sign on it, and was loaded with trunks and boxes. Witness thought they, were moving in, and had no suspicion that they were storing away stolen goods.

Witness W. O. Green testified that, at the time appellant was arrested, witness .asked him what it was all about, and appellant stated that it seemed as thoügh Dewey Baldwin had been accused of stealing drugs and that appellant had delivered some drugs supposed to have been stolen by Dewey Baldwin. Appellant was endeavoring to get witness to sign his hail bond, and appellant did not think he’d have any trouble in proving his innocence.

Witness Hoben testified that he was employed at the Ozark Drugstore in the fall of 1925 and spring of 1926. During that time drugs were delivered at the store, and witness investigated the source whence the drugs came, and ascertained they were delivered to the City Drugstore by the appellant, and in turn were relayed to Ozark Drugstore. Witness noticed that practically all the chemicals in that delivery were made by N. T. Quinine and Chemical Works, which caused witness to think they came from Sorrells ’ Drugstore, ¡because the Ozark Drugstore had never received- such merchandise from any other wholesale house, as far as witness knew. Tn the delivery of drugs was a five-pound can of iodide of potassium made by the N. Y. Chemical House, and that brand was liaudled exclusively by tlie Sorrells Drug Company. Witness did not know whether the wholesale company in Little Bock handled the same kind .of drugs, but the Ozark Company never received such merchandise from any drug house except from Sorrells. That was the only reasonable place it could have come from.

W. S. Sorrells was recalled, and testified that he did not know of any other wholesale drug house in Hot Springs that handled the N. Y. Chemical drugs. Witness was acquainted with the class of manufacture of drugs handled by the other "wholesale houses in the city. Witness usually bought iodide of potassium put up by the N. Y. Chemical Company in five-pound cans and some in one-pound cans — usually ten or twenty-five pounds at a time in five-pound cans. The appellant had no authority to sell drugs from witness’ house.

Several witnesses testified, on the part of the appellant; that appellant was a man whose general-reputation for honesty, fair dealing, truth and morality was good in the community where he had formerly lived in the State of Iowa. Also witnesses testified that his general reputation for honesty and fair dealing was good in the city of Hot Springs, where he then lived.

There was other testimony adduced by appellant tending to prove that, when appellant moved into the house on Sorrells Street, the boxes unloaded from the truck contained household.goods and not drugs. One of the witnesses testified for appellant that he represented the Ellis Drug Company, wholesale druggist, of Little Bock, Arkansas, which made sales to various drugstores in Hot Springs of drugs and chemicals manufactured by the N. Y. Chemical Company, in January, 1926.

The court, in its instructions to the jury numbered three and six, in effect told the jury that, if they believed beyond a reasonable doubt that appellant and Dewey Baldwin entered into a conspiracy for the purpose of unlawfully and feloniously taking the drugs of W. S. Sorrells, and, in pursuance of such conspiracy, did steal the drugs of W. S. Sorrells as charged in the indictment, then the defendant would be guilty, and the jury should so find; and in its instruction numbered four the court, in effect, told the jury that the unexplained possession of property recently stolen is a circumstance which the jury may take into consideration in determining the innocence or guilt of the defendant, and, if the jury found that drugs of the value of more than $10 had been recently stolen from W. S. Sorrells, as charged in the indictment, and that such drugs were found in the possession of the defendant, and that such possession had been unexplained, the .jury might consider this as a circumstance to establish the guilt or innocence of the appellant.

The above are substantially the facts upon which the jury returned the verdict finding the defendant guilty and fixing his punishment at imprisonment in the State Penitentiary for a period of two years. Judgment of sentence was pronounced in accordance with the verdict, from which is this appeal.

1. Appellant contends that the indictment was too indefinite and uncertain to identify the property and to inform the defendant of the offense with which he is charged. The term “drug,” as defined by the lexicographers, is ‘‘any substance used as a medicine, or in the composition of medicine for internal or external use.” See Webster and Punk & Wagnall’s dictionaries.

Section 6 of the United States Pood and Drug Act, June 30, 1906, reads: “The term ‘drug,’ as used in this act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal ór external use, and any substance or mixture of substances intended to be used for the cure or mitigation or prevention of disease of man or other animals.”

The term “sundry” means separate, divers; several, divers; more than one or two, various. See Web. Int. Diet. This term “drug,” as defined by lexicographers, does not refer to any particular drug or medicine, and it is a term commonly understood and accepted as -above defined.

In Dunbar v. U. S., 150 U. S. 185, it is said: “It is not a valid objection to an indictment that the description of the property in respect to which the offense is charged to have been' committed is broad enough to include more than one specific article.” See also Commonwealth v. Butt, 124 Mass. 449; State v. Brinn, 30 Minn. 522, 16 N. W. 406. Our statute only requires that the act or omission charged as the offense be stated with such a degree of certainty as to enrabie the court to pronounce judgment of conviction according to the right of the case. Section 3013, C. & M. Digest. Any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits is to be disregarded. Sections 3013 and 3014, C. & M. Digest. Our statute only requires a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended. Section 3028, C. & M. Digest, subdiv. 2. In Jones v. State, 64 Fla. 92, 59 So. 892, L. R. A. 1915B, p. 71, it is said: “If a sufficiently certain description cannot be given because unknown, such fact, if alleged in the indictment or information, will generally cure the otherwise insufficiency, for the law is not inclined to require a greater certainty than the nature of the case'affords; and consequently, to avoid what Avould in many cases result in a failure of justice were the rule requiring a definite description enforced, the courts make an exception in case the ordinarily essential descriptive facts cannot be stated because neither knoAvn nor obtainable.”

In the case at bar it is obvious that it would have been impracticable, if not impossible, for the pleader to have specifically described a sundry lot of drugs of the value of $100. The indictment, we believe, meets every requirement of good pleading. It is sufficiently definite for the jury to have determined that the property alleged to have been stolen was the same property as that which the testimony tended to show the defendant stole from W. S. Sorrells. Osborne v. State, 96 Ark. 400, 132 S. W. 210; Atchinson v. State, 90 Ark. 457, 119 S. W. 651. A (‘•onviction or acquittal on this indictment would enable the appellant to successfully interpoise the plea of autre-fois con-vict or acquit, if he were again charged with stealing, during the same period, of “sundry drugs from W. S. Sorrells of the value of $100.” It follows also from the above that the court did not err in refusing appellant’s prayer for instruction telling the jury that there had been no evidence to show that the exact nature and character of the drugs that had been stolen were unknown to the grand jury, and the jury therefore should find the defendant not guilty. . Since the term “drugs” includes any substance used as medicine, and since there are divers and 'sundry kinds of medicines, all included within the word drug, it was not essential to the validity of the indictment to allege that the exact nature and character of the drugs were unknown to the grand jury. This allegation was immaterial, and should be treated as surplusage.

2. We have set forth in substance the material tes timony upon which the verdict was based, and it could serve no useful purpose to comment upon it. We are convinced that the evidence was legally sufficient to sustain the verdict. It tended to prove that the appellant and one Dewey Baldwin were in a conspiracy to steal drug's from W. S. Sorrells and that they jointly took part in the larceny. While the indictment does not charge a conspiracy to commit larceny and does not charge the appellant and Baldwin jointly with the commission of the larceny, nevertheless testimony tending to show that they were conspirators and particepes criminis in the commission of the offense was not incompetent. See Monk v. State, 330 Ark. 358, 197 S. W. 580; Davidson v. State, 132 Ark. 116, 200 S, W. 137. The court therefore did not err in refusing to grant appellant’s prayer for a directed verdict. Paxton v. State, 114 Ark. 393, 170 S. W. 80, Ann. Cas. 1916A 1239.

3. Bob iioben testified, in substance, that a bill of drugs was received at the Ozark Drugstore, and that in this bill were chemicals and iodide of potassium put up by the New York .Chemical Company; that he had never known of any of this particular brand of chemicals being received at the Ozark Drugstore except from Sorrells. He further testified that the boys at the City Drugstore told him that the defendant had delivered this bill of drugs to the City Drugstore and that this bill of drugs had been relayed from the City Drugstore to the Ozark Drugstore. Witness, as a rule, checked the bills that came into the Ozark Drugstore when they received merchandise from W. S. Sorrells. There were some, chemicals in the order that were generally made by the N. Y. Chemical Works, which naturally made witness think they came from Sor-rells’ Drugstore, because the Ozark Drugstore had never received such merchandise from an}r other wholesale house, to his knowledge. Witness stated that there was a five-pound can of potash in the order, and that brand of drug was exclusively handled by the Sorrells Drug Company. While the testimony of Iioben was being given, upon objection by the appellant, the court excluded that part of his testimony in which he stated that the boys in the store told him that the defendant had-delivered certain drugs. At the conclusion of the taking of the testimony, the counsel for appellant moved to. exclude the entire testimony of Iioben. The court, in ruling upon the motion, said: “As to the testimony of Iioben, his testimony will be excluded; there is none of his testimony that would bo competent for the jury to consider, except his testimony as to where a certain quantity of the drugs there shipped to the City Drugstore came from, and explained his reasons; it would be for the .jury to say 'whether ornot. he had sufficient reasons for knowing that those goods came from the Sorrells Drugstore.”

There was no prejudicial error to appellant in the court’s ruling. The court excluded the hearsay part of Iioben’s testimony. That part of his testimony which tended to prove that the Ozark Drugstore received a certain bill of drugs containing some chemicals and iodide of potassium from Sorrells Drug Company was competent. This testimony, when taken in connection with the testimony of Sorrells, that his drugstore was the only one that handled drugs of that character in Hot Springs, and the testimony of Braughton, who operated the Ozark Drugstore, to the effect' that he bought such drugs from the appellant, rendered the testimony of Hoben competent, because this testimony .tended to prove that appellant was procuring drugs from the Sorrells Drug Company and selling the same to the City Drugstore. The testimony tended to throw light upon the issues involved, and the court did not err in refusing to exclude it. See Brown v. State, 161 Ark. 253-255, 255 S. W. 78.

4. Witness Jones testified that he was the deputy circuit clerk, and was Availing on the court the time Baldwin entered a plea of guilty of grand larceny. Counsel for appellant objected to that testimony, stating that the record is the best evidence. Counsel for appellant then asked the witness: “Has that record been written up yet? A. No sir. Q. All you know is that he pleaded guilty to grand larceny, wasn’t it? A. That is all.” Later Jones was recalled by the State, and, over'the objection of appellant, testified that he had.copied the indictment and had same in his hands, and stated that the defendant pleaded guilty to the offense charged in the indictment. The district attorney offered the indictment in evidence. The attorney for appellant objected, and the court stated, “This is for the purpose of showing that he entered a plea of guilty to .the larceny of property which this defendant is also charged Avith taking.” The court thereupon overruled the objection, and permitted the indictment charging Dewey Baldwin with the' crime, of grand larceny in the stealing of sundry drugs, etc., the property of Sorrells, to be read to the jury. At the conclusion of the testimony counsel for appellant moved to exclude the testimony of Jones with reference to the indictment and the plea of guilty of Dewey Baldwin, and moved to exclude the indictment in that case from the jury. The court overruled the motion, saying, “I explained to the jury the only purpose for which the indictment against Dewey Baldwin could be considered was for the purpose of showing that the crime to which he pleaded guilty was the larceny of the drugs from W. S'. Sorrells, and told them, at the time, that the indictment against Dewey Baldwin should not he considered as a circumstance against the defendant here.”

The court erred in admitting the above testimony. As we have already observed, the appellant was not jointly indicted with Baldwin for the stealing of the drugs of Sorrells, nor was the appellant charged with entering into a conspiracy with Baldwin to steal the drugs of Sorrells. These were separate prosecutions; there was nothing in the indictment against appellant to indicate that he was charged with stealing the same drugs that Baldwin was charged with stealing, and, if there had been, the plea of guilty of Baldwin could not be used as substantive evidence of appellant’is guilt. See Kirby v. U. S., 174 U. S. 890, 43 L. ed. 47, 19 S. Ct. 574. ' To. be sure, as already stated, any testimony tending to prove that appellant and Baldwin entered into a conspiracy to steal the drugs of Sorrells, -or that they jointly committed the offense, would be' relevant evidence, because such testimony would tend to prove the guilt of appellant. But, after the conspiracy is ended and the offense committed, the declaration of a co-conspirator or joint- actor in crime cannot be used as evidence against a co-conspirator or co-actor. The many cases of our court announcing- this rule are collated in Counts v. State, 120 Ark. 462, 179 S. W. 662; where we said: “It is thoroughly established that, when a deed is done and the criminal enterprise of the conspirators is ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirator.” See also. Housley v. State, 143 Ark. 315, 220 S. W. 40; W. D. Stroud v. State, 167 Ark. 502, 268 S. W. 850.

For the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    State ex rel. Greene County Bar v. Huddleston.
    Opinion delivered April 18, 1927.

    1. Attorney and client — disbarment proceedings — right of appeal. — In proceedings by the State on relation of a county bar association to disbar an attorney, both the State, by her prosecuting attorney, and members of the bar association, could appeal from a judgment merely suspending the attorney from.practice.
    2. Attorney and client — misconduct of attorney — suspension.— In disbarment proceedings, evidence held to sustain findings that the attorney, in selling bonds for theft of which his client was being prosecuted, was guilty of misconduct warranting suspension from practice for one year.
    3. Attorney and client — misconduct of attorney — discretion of court. — Crawford & Moses’ Dig., § 621, directing the trial court in case of conviction in disbarment proceedings to pronounce judgment of removal or suspension according to the facts found, vests the trial court with discretion either to remove or suspend, which discretion will not be disturbed on appeal save for abuse.
    4. Attorney and client — misconduct of attorney — suspension.— Where an attorney sold bonds of his client, for theft of which the client was at the time being prosecuted, the action of the court in suspending the attorney from practice for one year, instead of disbarring him, was not an abuse of discretion, in view of his previous good conduct and professed intention to apply the proceeds on the judgment against his client.
    Appeal from Greene Circuit Court, First Division; G. E. Keck, Judge;
    affirmed.

      Zal B. Harrison, Jeff Bratton and B. P. Taylor, for appellant.

      Gautncy £ Dudley, for appellee.
   Wood, J.

On the 17th of August, 1925, certain mem- ' bers of the Bar Association of Greene County, Arkansas, exhibited charges of such association against M. P. Huddleston. It was charged, in substance, that Huddle: ston was a member of the association; that one John Lane was indicted in the Greene County Circuit Court for the larceny of $20,200 of United States Liberty bonds, the property of one Jaméis W. Alexander; that he was tried at the December term, 1924, of the court, and convicted, and thereafter appealed to the Supreme Court, where the judgment of conviction was reversed, and the cause. remanded for a new trial. On the day Lane was arrested for the larceny of the bonds, Alexander instituted a civil action against him to replevy the 'bonds, and caused a capias to be issued with the summons. The trial of the civil action resulted in a judgment in favor of Alexander for the return of the bonds. Lane admitted in open court that he had the bonds, but refused to surrender them, and was adjudged guilty of contempt in refusing to return them. An appeal was lodged by Lane in the civil action for recovery of the bonds, and also from the judgment against Lane imprisoning him for contempt. These judgments were affirmed by the Supreme Court on April 127, 1925. On June 6,1925, the kw firm of Gautney & Dudley were employed by Lane to petition the circuit court of Greene County asking that he be purged of contempt. Lane set forth in his petition that he had buried the bonds in controversy upon his father’s farm, and that same had been stolen from the place where he had buried them. He stated that $17,600 of the bonds were buried by him in a glass jar in November, 1924, and that, so far as he knew, no one else knew where the bonds were buried; that he sent certain parties to the place where the bonds Avere buried, and they reported that they did not find the bonds in the place indicated, but found the place, which looked as if something had been buried and very recently removed. In the action to recover the bonds and in the contempt proceedings against Lane, Huddleston was one of his attorneys. He Avas not Lane’s attorney in the petition of Lane asking that he be purged of contempt..

On July 30, 1925, Block & Kirsch, a firm of lawyers at Paragould, Greene County, Arkansas, xvho Avere attorneys for Alexander in his action to recover the bonds, received information that the bonds had been sold in St. Louis, Missouri, on the 30th of April, 1925. These attorneys went to St- Louis and ascertained that Huddleston had sold and delivered $17,100 of the bonds through a friend of his in St. Louis, and had directed his friend to receive the proceeds in cash; that Huddleston had rented a safety-deposit, box in St. Louis in the name of Ixis friend, and stated that he would call for the money later. Huddleston, through his friend, drew out of the proceeds of the sale of the bonds the sum of $6,850, leaving ..the sum of $10,000 in the safety-deposit box, from which his friend afterwards used the sum of ■ $1,250, which latter sum was later replaced. It was charged that Huddleston, on the first day of August, 1925, was confronted with the above facts, and that he admitted that he had delivered the bonds to his friend in St. Louis for sale three days after the Supreme Court determined that the bonds belonged to Alexander. He admitted that he had used $6,850 of the proceeds of the bond sale, and that he was liable for their conversion, and that he also had in his possession a bond for $500 which Lane had placed with him in October, 1924-. On the 3d of August, 1925, Huddleston paid to the attorneys for Alexander the sum of $1,680 and delivered also'the bond for $500, and gave an order to the agent of the United States Government releasing his friend in St. Louis from liability and directing.the said agent to deliver the $11,250, proceeds of the bonds in his possession, to J. W. Alexander, or his attorneys.

At a meeting of the Greene County Bar Association to consider these charges on August 28,1925, Huddleston appeared, and, after reading the written charges preferred against him, declared said charges to be correct, and that he only wished to add'that the $500 bond which Lane placed with him in October, 1924, was taken as collateral securit}r for a loan which he bad made to Lane. Huddleston asked the bar association to defer the charges against him until after the December term, 1925, of the circuit court of Greene County, in order to give him an opportunity to try the case of State against Lane et al. Huddleston further declared before the bar association that it was his intention, as soon as he could borrow the money, to repay Alexander the amount due for the bonds, and was assured by the chairman of the meeting of the bar association that that was a matter with which the association was not concerned. A motion was made and unanimously adopted by the bar association expressing it to be the sense of the association that the conduct of Huddleston was so reprehensible and unbecoming as to warrant immediate disbarment proceedings.

On the 3d day of September, 1925, thereafter, a complaint was filed in the circuit court of Greene County by the prosecuting attorney of the Second Judicial Circuit, joined in by nine members of the bar association of Greene County. The complaint alleged,.in substance, the above facts, and, further, that these facts proved a scheme-on the part of Huddleston and Lane to defraud Alexander and to prevent the recovery of the bonds, which both the Circuit and Supreme courts had adjudged to belong to him. The complaint alleged that such conduct on the part of Huddleston was an attempt to put at naught the judgments rendered by both the circuit and Supreme courts, and was a fraud on both of such courts, and grossly unprofessional. The prayer was that a citation issue to be served upon Huddleston, and that, upon a hearing, his license to practice hiw be revoked, and that he be hereafter debarred from practicing the profession of an attorney at law in the State of Arkansas. A citation ivas issued on the above complaint and served on Huddleston September 25,1925. No answer was filed by Huddleston to the complaint. A jury was impaneled to try the issues of fact, and testimony was adduced by the plaintiff which tended to prove the allegations of the complaint. It was proved that, in the civil action by Alexander to recover the bonds, the sheriff returned that he was unable to get possession of the property. The testimony of botín Block and Kirsch ivas to the effect that they were the attorneys for Alexander in the civil proceedings to recover possession of the bonds, and that the facts were as set forth in the exhibit of the charges before the bar association of Greene County and in the complaint of the plaintiffs. In addition to the facts there stated, their testimony was to the effect that Huddleston, in their office, stated that he had some additional testimony in the' criminal case against Lane, and that he did not believe that Lane stole the bonds. He also stated that he sold the bonds as the agent of Lane, and did not think he had done anything wrong. These attorneys also stated that they and Huddleston agreed on the balances to be paid by,him, $5,611.45, as of August 1, 1925; that Huddleston agreed to enter his appearance for the balance 'due, and that judgment might go against him. Huddleston was given permission to read the charges preferred against him before the bar association, and he stated that these charges were correct, except that the $500 bond had come to him as an innocent purchaser, with the understanding that Lane had won it in a game of dice. No criminal charge at that time had been preferred against Lane. Huddleston said that M. A. Barr delivered the bonds to him in the Statler Hotel, in St. Louis. One of the witnesses stated that Huddleston’s reputation prior to the transaction complained of had been good. The other one stated that he had never heard him accused of anything that would call for disbarment, but witness would not call his reputation good — neither would he call it bad. Huddleston did not admit that the bonds had been stolen, but, on the contrary, said he thought that Lane had won them at gaming.

, In addition to the above testimony, three other attorneys who were present at the meeting of the Greene County Bar Association corroborated the testimony to the effect that Huddleston' admitted that the charges were correct, except as to the $500 bond. One of these witnesses stated that Huddleston mumbled a bit in what he said, but admitted that, in all probabilit3r, he would be disbarred. Another one of these witnesses stated that Huddleston said he had done nothing to cause him to be disbarred, but afterwards modified the statement b37' sa3r-ing, if he had done anything, the publicity he was getting ■would be sufficient. And another witness stated that he wished the charges deferred until after the December term of the court, as he had some evidence that he thought would clear Lane, and he wanted to defend him. Witness’ impression was that Huddleston said perhaps he ought io be disbarred, for what lie had done, or that it was sufficient to disbar him. Two of these witnesses stated that, aside from the matter with which he was charged, Hud-dleston’s previous reputation had been good.

Huddleston testified in his own behalf to the effect that he had been practicing law since 1897. The first information he had about the bonds came from Lane himself, on October 2, 1924. As he was sorting out and packing some papers in a lawsuit preparatory to leaving on a trip for Europe, Lane came to his office and asked him whether, if a fellow had won some bonds in a crap game, they could take them away from him. Witness told him “No.” Lane then said he had won $20,000 worth of bonds from Jimmie Alexander, and proceeded io tell where the game was, and how many times he had gambled with Alexander. Witness did not believe, until then, that he meant it at all. Witness asked where the bonds were, and Lane said, “In a box at the National Bank of Commerce.” Witness said to Lane, “You go get them — I want to see them — you have got to cite me.” Lane went out and was gone for a minute or two, and came back with the bonds in an envelope in his hand, and handed it to witness. Witness asked Lane what he wished to do, and Lane said that he wanted witness to sell the bonds for him. Witness told Lane to sell them himself, but Lane stated that that would give publicity io the crap game, which would ruin his reputation and would kill his mother and embarrass Alexander. Witness then told Lane to get on the train and go with witness that night to St. Louis, stating that witness would not he in St. Louis long enough to sell them, but in Chicago he would sell them. Lane then said that he could, not do that, because he had a written agreement-with Alexander to allow him sixty days in which Io redeem the bonds, and showed the contract to witness. Witness then told Lane if he wished witness to sell the bonds he would have to wait until the witness returned from Europe. Lane then asked witness for a loan of $50, and gave him one of the bonds as collateral. Lane then went out of witness ’ office, and, after witness liad ‘thought of the strangeness of the thing awhile, it occurred to him that the bonds were registered, and, if so, they would not pass by delivery. Witness afterwards saw Lane passing the office, and called him in, and told him, if the bonds were registered, he could not sell them without a written instrument. Lane went out and returned with the bonds, and witness examined them, and there was nothing on the bonds to indicate that they had been registered. Witness then informed Lane that they would pass by delivery. Witness heard nothing more about the case until he received a letter from his wife while he was in London, informing him that Lane had been arrested for stealing the bonds. As witness came through St. Louis on his way home he met one Harry Reid, whom he had known quite intimately for twenty years. Reid was at that time working for a firm of brokers in St. Louis. Witness was telling Reid about what a strange lawsuit it was about the bonds in controversy, and Reid said, "Why don’t you sell them?” Witness said that he had not seen them since he left Arkansas. Reid said, "When you get ready to sell them, bring them to me and I’ll sell them for you.”

Witness then detailed the trial and conviction of Lane for larceny of the bonds, the appeal to the Supreme Court, and the'reversal of the judgment and. remand of the cause to the circuit court for a new trial, which had not yet occurred, and also about the result of the trial in the civil action, in which Alexander got judgment for the bonds, which judgment was affirmed by the Supreme Court on April 27, 1925. Witness received information, when he got home, that the bonds had been carried to Missouri and put in a safety-deposit box. Witness knew that, such being the fact, the court had no jurisdiction over the bonds and could not determine any title thereto, as the bonds had been taken out of the State on the 14th of October, and the replevin suit was brought October 24, ten days after they had left the State. Witness knew that the court.had no power to determine title to the bonds, and all that it could do was render personal judgment against John Lane for their value. Witness went-to St. Louis to see an expert witness in Lane’s case, who was in thé employ of the Government. He learned from this witness that the bonds would be delivered to witness at the Statler Hotel in St. Louis, and was told who would deliver them. Witness went to the hotel, and the bonds were delivered to him by M. A. Darr. Witness delivered the bonds to Reid, who sold them, and placed the money in a safety-deposit box that Reid himself rented. Witness never saw the key to the box in which the money was placed. The bonds were sold for the aggregate sum of $17,100, and Reid paid witness at different times, out of the proceeds of the bonds, the sum of $6,800. Witness explained his action in authorizing the sale of the bonds as follows: “My connection with the civil case (the replevin suit against Lane for recovery of the bonds) had'ceased entirely when the bonds were sold in St. Louis. That case had been tried in the circuit court and decided, and then appealed and tried and decided in the Supreme Court three or four days before the bonds were ever sold. T couldn’t therefore have been acting-as his attorney iu a professional way in the selling of the bonds, because there was no longer any lawsuit pending for me to represent him in. The reason why I thought I was civilly liable to Alexander for the value of the bonds was this: Alexander had a valid judgment against Lane for the value of the bonds, and I thought the law was that, that being true, the fact that he had property in another State and that I knew about it, if I assisted him in selling that property, would render me liable civilly for the value of the property. I may be wrong about that, but that idea was what I had in. mind, and that was the reason I said I would pay Alexander’s judgment and have it assigned to me, and then I could turn John out of jail, because I was still representing him in the criminal case. I was not his attorney in any civil case and had not represented him in the cause to purge him of contempt.” After the sale of the bonds had been discovered, witness was called by Block to his office, where Alexander and Kirsch Avere also present.. They told, witness that they had found out that he had sold the bonds. Witness informed them that he had not sold them, but that he had had it done, and askéd what they wanted. Block stated to witness, “All we are interested in is getting our money for the bonds.” Witness then told Block that he Avohld pay them, and asked what he intended to do with-witness. Block said, “Nothing — we are not concerned about that at all.” Witness knew'that he had not committed any crime, and was not particularly afraid of being convicted of any crime, but did not Avant to be arrested and charged with it. Such a thing as disbarment proceedings had not entered into Avitness’ head at that time. Witness paid $16,800. Witness explained that he had a theory that he might be civilly liable for the value of Alexander’s property because he had helped to sell it in another State. That avus witness’ opinion. He was still representing' Lane in the criminal case at the time of the sale of the bonds. Witness was informed of the charges that had been filed against him before the bar association of Greene County, and, upon reading the charges, saAV that they contained nothing except a history of the litigation and-the fact, that Avitness had caused the bonds to be sold in St. Louis. Witness stated that the statement of the charges was practically correct except as to the $500 bond assigned to witness as collateral for the loan to Lane. He further stated that the question of his moral guilt and reputation depended upon whether or not the bonds were stolen in a gambling game. He wanted the opportunity to try John Lane again before he avus embarrassed with this bond proceeding. Witness stated that he had acquired a lot of evidence since the first trial which had convinced him, to a moral certainty, that Lane did not steal the bonds, but that he had Avon them in a crap game, and he wanted an opportunity to try that. He wanted also an opportunity to attend to his other litigations before any procéedings were instituted for his disbarment. Witness stated that he had said absolutely nothing about going away and about having done anything to be disbarred for. Witness did not think he had done anything to be disbarred for. Witness sold the bonds merely as a friend of Lane’s, and not in the capacity of broker or attorney. In making the sale he did nothing that required the services of a lawyer. He was not acting as-Lane’s attorney, and could not have been. Witness, on cross-examination, stated that, after he left'the bonds with Reid to be sold, he went to Poplar Bluff, Missouri, where he received a telegram. Reid and witness had arranged that, if Reid succeeded in selling the bonds, Reid should telegraph witness in these words, “Pishing is good,” or something io that effect. That is the way the telegram read. Afte^ discovery of the sale, witness received another telegram from Reid stating that “fishing was bad,” and for witness to come to St. Louis at once. Witness then went to St. Louis, and learned that Reid had disclosed witness’ connection with the matter, or was going to do so. At the time the bonds were disposed of Lane was in jail for contempt for refusing to deliver the bonds, and was still in jail.

Seven witnesses, reputable practicing attorneys of long standing, testified that they ware acquainted with Huddleston, and had been for many years, and that his general reputation as a lawyer in the communffy where he lived was good.

The above presents the facts which.the testimony fended to prove on behalf of the plaintiff and the defendant. At the close of the taking of the testimony the trial court announced that the evidence in the cause was undisputed; that there was no question of fact for a jury to decide, and discharged the jury. Huddleston excepted to the ruling of the court. The court found as follows:

“In this case there was a lawful order of this court that was ignored and intentionally disobeyed. In addition to that, property of a man was taken-and disposed of with the intent to clepi'ive him of his property. Two defenses were offered, both technical; one was that your services as attorney had terminated at the time the act was committed, and the other was that it was done in the State of Missouri. No effort was made by the defense to justify the acts or conduct upon a question of right and wrong.

“My view of it is that no greater wrong would have been committed if a man had gone into another man’s place of business and picked up his property and carried it out. At that time you knew that this was the- property of Alexander and you knew that you had no right to it, but you disposed of the property and took a part of the proceeds and converted it to your own use and benefit. This offense involved moral turpitude.

“This is true. Your reputation in the past has been good and your conduct in this court at all times has been, respectful, courteous and obedient. Those things should be considered and weighed, and I have been considering to a great extent the punishment which should be inflicted in this case.

“Taking everything into consideration,T am inclined to- think that the proper punishment should not be abso- • Jute disbarment. That would prevent your ever practicing law again, but I am going to' suspend you from the practice for a period of one year. That will be the judgment of the court in this case. ’ ’

Both the plaintiff and the defendant excepted to the above findings and judgment of the court. Both filed motions for a new trial, which were overruled, and both prayed and were granted an appeal. The plaintiff perfected his appeal, but the defendant has not perfected any appeal.

1. The appellee in his brief moves this court to dismiss the appeal on the ground that our statute does not authorize the-State nor'the Greene County Bar Association to prosecute an appeal from the judgment of the trial court. The procedure concerning the suspension and disbarment of attorneys is found in* chapter 12, § § 610-626 inclusive, of C. & M. Digest. Section 610 prescribes the causes for which an attorney may be removed or suspended from practice when charg-es are exhibited against him. Section 622 provides:

“All eha.rg’es exhibited under this act shall be verified by affidavit, and shall be prosecuted iby the-prosecuting attorney of the circuit in which the charges are pending. ’ ’

Section 623. provides:

“In all cases of a trial of charges, the accused may except to any decision of the court, and may prosecute an appeal to the Supreme Court, or writ of error, in all respects as in actions at law.”

The same practice was adopted in this case in preferring charges against the appellee as was pursued in the case of Wernimont v. State, ex rel. Little Rock Bar Assn., 101 Ark. 210, 142 S. W. 194, Ann. Cas. 193 3B 1156. In that case Wernimont was found guilty of malpractice and declared to be an unfit person to continue the practice of law, and judgment was rendered disbarring him, from which judgment, he appealed. While therefore the question of the right of the prosecuting attorney to prosecute an appeal in such cases was not involved in that case, nevertheless it was there decided that the proceedings for the suspension or disbarment of attorneys for professional misconduct are not criminal, but civil in their nature, and are governed by rules applicable to all civil actions. In the absence of a statute specifically conferring upon the prosecuting attorney the right of appeal in such cases, we doubt not that the right of appeal by the State exists from a judgment of suspension in such cases. The right to prosecute such appeal is conferred upon the prosecuting attorney under § 2142, C. & M. Digest, which is as follows:

“Appeals and writs of error may be brought by the prosecuting- attorneys for the State, in the name and on behalf of the State, in like manner as by individuals, except when it may be otherwise provided by law.”

In Wernimont v. State, supra, it is said;■ “The purpose of the proceeding’s for suspension and disbarment is to protect the cojirt and the public from attorneys wlio, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court.” The right to practice law is a privilege conferred by statute. Section 596, C. & M. Digest. The prosecuting attorney is an officer of the State, and, since the statute designates him as the one to prosecute the charges that may be exhibited against an attorney, in doing so he represents the State. The action is, in effect, an action by the State either to revoke and cancel the license evidencing the privilege which the State has conferred, or to suspend for a time the exercise of the privilege, according as the proof might, warrant. If the prosecuting attorney conceives that the State is aggrieved by the judgment rendered by the court, he unquestionably has the right, under the general statute above, to bring an appeal to this court. The statute (§ 6223 C. & M. Digest) conferring upon the accused attorney the right to prosecute an appeal as defendant in the action from the judgment of the court suspending or disbarring him from the right, to practice his profession certainly does not expressly repeal the right of the prosecuting attorney, on behalf of the State, as the plaintiff in the action, to prosecute an appeal under the general statute conferring upon him the right to do so. Of course there is no repeal by implication, because the statute conferring the riglit of appeal upon the defendant, the accused attorney, has no reference whatever to, and was not intended to affect, the right of the prosecuting attorney representing the State to appeal. That right is conferred upon him, acting for the State, by the general statute above in all cases, both civil and criminal, except as otherwise provided by law.

In addition to the above our Constitution (article 7, § 4), and § § 2130 and 2131, C. & M. Digest, recognize the right of all persons to appeal from judgments or final orders of inferior courts to the Supreme Court. The State of Washington has provisions of precisely similar purport, and, on the issue under review, a similar case arose in State ex rel. Murphy v. Snook, 78 Washington Reports 671, 139 Pac. 764, where the Supreme Court of Washington said:

“It seemis, plain to us that the provision of the general statute quoted above, touching the right of appeal, is sufficiently comprehensive to give that right to the State in disbarment proceedings, in the absence of some subsequently enacted statute evidencing a legislative intent to withhold such right from the State. We can conceive of no argument to be made against this view, except the possible one that the word ‘proceeding’ as used in the general appeal statute, does not include a disbarment proceeding, upon the theory that it is criminal in its nature. Such a contention, howeyer, has been answered in the negative by this court in State ex rel. Mackintosh v. Rossman, 53 Wash. 1, 101 Pac. 357, 21 L. R. A. (N. S.) 821, holding that ‘the proceeding is in the nature of a civil action.’ This is in harmony with the decided weight of authority. The rule and the reason iherefor is tersely stated by Justice Bradley, speaking for the Supreme Court of the United States in Ex parte Wall, 107 U. S. 265-288, as follows: ‘The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of pen-sons unfit to practice in them.’.” This view is similarly expressed in Wernimont v. State ex rel. Little Rock Bar Assn., 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156. The only decision coming to our notice seeming to hold to the contrary is in State v. Tunstall, 51 Tex. 81, which decision seems to be rested upon the theory that disbarment proceedings are, in their nature, criminal.” Then, after further discussion and argument, the Supreme Court of Washington concludes its opinion as follows:

“We conclude that the absence of an express provision in the disbarment statute, as amended, touching the State’s right of appeal, in connection with the express provision therein touching the defendant’s right of appeal, docs, not give rise to ,an inference of sufficient strength, to take from the State its right of appeal so plainly given by the general appeal statute.”

Learned counsel for the appellee, in support of their motion to dismiss the appeal, cite 2 Thornton on Attorneys at Law, § 901, p. 1331, as follows: “As the right of appeal is usually given by statute only to a party who is aggrieved or prejudiced, or whose substantial rights are affected by the determination of the court, it is generally held that the accuser or the petitioner cannot appeal from an order or judgment dismissing disbarment proceedings. It has .also been held that such a proceeding prosecuted by the State is a quas¿-criminal case in which no appeal can be taken by the State from a judgment for defendant. On the other hand, it has been held that a county bar association, instituting a special proceeding to recall a license to practice law, is aggrieved by an order dismissing the petition, and may appeal therefrom.” They cite the following cases to support the text: In re Thompson (Cal.), 45 Pac. 1034; Byington v. Moore, 70 Ia. 206, 30 N. W. 485; Brooks v. Fleming, 6 Baxt. (Tenn.) 331; In re Ault, 15 Wash. 417, 46 Pac. 644. To support their contention, counsel also cite the following cases: Fairchild County Bank v. Taylor, 60 Conn. 11, 22 Atl. 441, 13 L. R. A. 767; Matter of Peck, 88 Conn. 447, 91 Atl. 274; Boston Bar Assn. v. Casey, 211 Mass. 187, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cases, 1913A, 1226; Matter of Randall, 11 Allen 473; Brooks v. Fleming, 6 Baxt. (Tenn.), 331; Vernon County Bar Assn. v. McKibbin, 153 Wis. 350, 141 N. W. 283.

It would unduly extend this opinion to review these cases seriatim. We have examined them, and find that they may all be differentiated from the case at bar on the facts, and none of them, when considered with reference to the facts upon which the opinions are predicated, are out of harmony with the construction which we place upon our own statutes concerning appeals in such cases. Some of-them affirmatively and clearly sustain the views which we have expressed. Eor instance, in Vernon County Bar Assn. v. McKibbin, 153 Wis. 350, 141 N. W. 283, the court concludes its opinion as follows:

“It is needless, perhaps, to say that, since appellant had sufficient interest in the subject of the litigation to possess competency to be heard on the petition in the court below, it is a party aggrieved by the order appealed from within the meaning of the appeal statute, and so, entitled to bring such order to this court for review.” So it may be said here.

The members of the Greene County Bar Association who joined with the prosecuting .attorney, representing (he State, in bringing this action against the appellee, had the right to institute-such action for the protection of the courts and the public from a ípember of the bar whose alleged immoral conduct and practice they deemed so disreputable and reprehensible as to render him unworthy longer to hold a license to practice law. In the procedure-prescribed by our statute for the suspension and disbarment of attorneys, it will be observed that the charges may be exhibited against them by any one who shall verify such charges by affidavit. While the statute is silent, and perhaps defective, in not designating that such charges should be exhibited by a member or members only of the local bar association to which the accused belongs, nevertheless the propriety of a member or members of such local association exhibiting charges against one of their fellows, when cognizant of facts justifying such charges, is most obvious. Of all the persons they are, or should be, the most keenlv sensitive to and interested in protecting their local -courts and the public and their own association from any immoral conduct or corrupt practices on the part of any of their members calculated to bring injury to individuals, disrespect for courts of justice, and reproach upon the profession of law. The true lawyer, be it said, will never forget that his license to practice law confers upon him the exalted privilege of being not only an officer of the court in which he appears, but also a minister of justice as well. His love for the lofty ideals and reverence for the noble traditions of the'ancient and honorable profession to which he belongs will make him ever anxious to preserve these. Therefore, when members of the Greene County Bar Association exhibited charges seeking to disbar one of their members, it cannot be assumed that they were actuated by any sinister motive. In the absence of any showing to the contrary, it must be presumed that they were prompted by the purest and best of motives in lodging their complaint against the appellee. When, after reading their complaint and hearing the evidence adduced by appellants to sustain their charges', the trial court rendered a judgment adverse to their contention, they are certainly parties aggrieved and are clearly within their statutory rights in prosecuting an appeal to this court from such judgment. Moreover, they deserve to be commended for such course rather than criticised or cen-- ■ sured, as has been done in brief of counsel for appellee. The motion to dismiss the appeal is therefore without merit, and it is denied.

2. This brings us to a consideration and decision of the issue on the merits. Instead of rendering a judgment suspending the appellee from the practice of law in the courts of the State for a period of one year, should the court have rendered a judgment revoking and canceling his license and thereby permanently disbarring him from the practice of law? In the first place, it should be stated that the appellee filed no answer to the complaint, and therefore raised no issue of fact on its allegations, because, under our civil procedure, “an issue of fact arises upon a material allegation of the complaint denied by the answer.” Section 1265, C. & M. Digest. Notwithstanding the appellee failed to answer, the court sent the cause to the jury as if every issue of fact in the complaint had been controverted by the appellee, and gave the widest scope in the production of evidence, admitting testimony’' of every character which either tended to inculpate or exculpate the appellee. It could serve no useful purpose as a precedent and is therefore unnecessary to comment upon this testimony. We have set forth the material parts of appellee’s testimony, in which apparently he stated fully and frankly his entire connection with the transaction. We have also set forth the explanation of various phases of his conduct which the court allowed him to make, in which he insisted that he had committed no crime; also his opinion that he was not acting in a professional capacity in selling the bonds, as the lawsuit involving the title and possession thereof was ended, and that he was only liable civilly for the value of the property, which he had assisted Lane in selling, and which value he said he had completely restored or made arrangements to restore to the owner of the property as adjudged by the court.

After a careful consideration of the entire record, we are convinced that the findings of fact by the trial court are correct. The statute (§ 621, C. & M. Digest) requires the trial court, in all cases of conviction, to pronounce judgment of removal or suspension according to the facts found, and necessarily vests the trial court with discretion either to remove or suspend according to the facts found. Where the trial court is vested with judicial discretion, it has always been the rule of this court not to reverse the trial court in the exercise of such discretion, unless, in the judgment of this court, under the facts presented, the trial court in its ruling has abused its discretion.

Counsel for the appellee say in their brief: “In this cause it must be conceded bv all parties that the trial was before a fair and impartial judge. He did not allow spleen or venom, professional jealousy or professed righteous indignation to arouse him and cause him to do violence by way of judgment. His words show that he calmly considered the entire matter and that, after a careful consideration of all the evidence, it -was his judgment that the defendant should be suspended for one year.” From a survey of the entire record we are convinced that the above correctly characterizes the conduct and attitude of the trial judge throughout the progress of the tidal. Counsel for the appellant do not challenge tlie accuracy of: the above statement as to the trial judge and the manner in which he conducted the trial, but they present a most- forceful and lawyer-like argument to prove that he abused his discretion and therefore erred, upon the facts as found, in not pronouncing judgment of disbarment instead of suspension. Since the case is one of first impression on both issues presented, we realize that the decision is one of vast importance, especially to the legal profession, as well as the appellee. Undoubtedly, on the merits, the facts of this record bring the charges exhibited against the appellee well within the category of delinquencies described by the great Webster in one of his matchless orations, where, speaking of the legal profession, he said: “Our profession is good if practiced in the spirit .of it; it is damnable fraud and iniquity when its true spirit is supplied b3r a spirit of mischief-making and money-getting. The love of fame is extinguished, eveiy ardent wish for knowledge repressed, conscience put. in jeopardy, and the best feelings of the heart indurated by the mean, money-catching abominable practices which cover with disgrace some of the modern practitioners of law.” Even the most stringent safeguards that ma3^ he erected by law, or the rules of the profession, cannot uIaauws keep out those who pervert the high standards, duties, and responsibilities of the profession to their own selfish ends ami preferments, as described by Mr. Webster. If, perchance, the condign disbarment of the appellee could result in purging the temple of justice of those unwortliAr devotees AAdio, in the language of Scripture, “have run greedily after the . error of Balaam for mvard,” the immolation of the appellee to appease the wrath of the blind goddess might be fully .justified. But avc verity believe that the suspension of the appellee from the practice of his profession for a Arear will have as salutary effect to protect the courts, the public and the profession of the Iuav, as Avould the more austere decree of banishment foreAmr from the legal fold. An occasional harsh .judgment of banishment against those Avho have alrearty come into the profession ' cannot have the effect, to purify it entirely and bring it to that ideal status of perfection which every true lawyer contemplates with admiration and pride. A judgment of disbarment against the appellee would deprive him and his family of the livelihood to be gained from the practice of his profession, for which he is so well equipped and to which he has already devoted the best years of his life, and would bring upon him further and irretrievable disgrace, and shame, and upon them much suffering and sorrow. This is his first offense, and, from his good bearing and deportment, except in this single instance, through all the years of his professional career, as testified to by witnesses and found by the trial court, we have every reason to hope that it will be his last. Punishment of the recusant, as we have seen, is not the end to be attained by disbarment proceedings. Therefore it occurs to us that the trial court, under all the circumstances, has not abused its discretion, and that its judgment of suspension has been, and will be, a sufficient warning to the appellee and to all who have been, or may be, like disposed, to refrain from similar derelictions in the future.

The judgment is affirmed.