text:
    Cohn v. Chapman.
    Opinion delivered October 24, 1921.
    1. Trial — instructions—specific objection. — Where an instruction, fairly construed, submitted an issue to the jury, if a party conceived that it, was faulty in assuming a fact not established by the pleadings or the testimony, he should have directed the court’s attention to it specifically.

      2. Evidence — varying written contract by parol — waiver of objection. — Where the pleadings raised an issue as to whether there was an oral warranty as to the soundness of a horse, in a sale witnessed by a writing, and the testimony sustaining this issue was introduced without objection, appellant will be held to have waived the objection.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Trimble & Trimble and Jóhn W. Newman, for appellant.
    Oral evidence of a warranty is inadmissible when a complete written instrument evidences a sale. 80 Ark. 508; Federal Truck Motors Co. v. Thompson, 149 Ark. 664.

      Cooper Thweatt, for appellee.
    There was no error in the instruction of the court on the subject of warranty as to the first horse that died. 124 Ark. 31. The objection to the instruction should have been specific. 134 Ark. 218; 78 Ark. 327; 110 Ark. 118; 115 Ark. 118; 111 Ark. 196; 73 Ark. 594; 87 Ark. 607; 9(8 Ark. 88; 9 Encyclopedia of Evidence, p. 366; 22 C. J. 1295. Notice of the breach was not necessary. 53 Ark. 159.
   Wood, J.

The appellant instituted this action against the appellee to recover judgment on an instrument executed February 28, 1918, and due November 1, 1918. The first part of the instrument was a regular promissory note in the sum of $200 given as the. consideration of the purchase price for a certain brown mare. The latter part reserved title in the seller to the animal until the purchase price was paid, and contained other provisions evidencing the contract of sale. The appellee answered admitting the execution of the “note” and seti up by way of counterclaim that the “note” was a part of the purchase price of $400 for two horses that the appellee had bought from the appellant; that $200 had previously been paid by check; that before any of the purchase price was paid or the “note” executed the appellee directed appellant’s attention to the fact that one of the horses appeared sick; that appellant verbally warranted that the horses were sound. ' The appellee alleged that he relied upon the warranty and accepted the horses and gave his check and note for the purchase price. He further alleged that one of the horses at the time was diseased and unsound, and died in less than twenty-four hours thereafter, to tile damage of appellee in the sum of $200. Appellee further alleged ihat in April of that same year he purchased of the appellant a horse for which he paid the sum of $15Q, and that before appellee accepted the horse appellant warranted the same to be sound in every way; that the horse was not sound and died in about seven days after the purchase; that appellee was damaged in the sum of $150 by reason of the death of this horse. He prayed judgment on his cross-complaint in the sum of $350 and asked that the judgment offset the note held by appellant in the sum of $200 and that appellee have judgment over against the appellant in the sum of $150.

The appellant answered the cross-complaint and denied all of its allegations; denied that the horse for which the note was given was' unsound or diseased; denied that he warranted the same to be in good condition. He alleged that the horse for which the “note” was given was worth $200, and that the appellee was present, examined the horse and was satisfied with same and made no complaint until after the “note” in suit became due. He also denied that he warranted the second horse purchased by appellee from appellant in April of the same year for which the appellee paid $150. He alleged that this second horse was sound, and that the appellee was present, examined the horse, and made no complaint of same until after the institution of the suit. Appellant prayed that the counterclaim of appéllee against him be dismissed, and that he have judgment as práyed in his complaint.

The testimony of the appellant was to the effect that he sold appelle horses, and that appellee was due him the sum of $200 on the purchase price as evidenced by appellee’s “note,” the instrument upon which the cause of action is based. He stated that not a word was said at the time about the unsoundness of one of the horses. Appellant guaranteed the horses to be serviceable and sound on delivery. He stated that Chapman knew as mucli about a horse as appellant; knew a good horse from a bad one; that when the horses were taken from appellant’s stables they were all right; that in.about three weeks, or maybe longer, the appellee came back end told the appellant that one of the horses had died. Appellant told, the appellee that he was sorry to hear of the loss of the horse, and then sold him another horse (worth $250) for $150, so -that he would lose $100 on the price of that horse; that the appellee agreed to .this and gave the appellant a check for $150 and seemed satisfied. Appellant heard no more from the appellee Until the note became due and the appellee refused to pay the same. The appellant stated thal he would not sell unsound horses; that he had a man paid especially to look after his barn. Appellant “had the reputation of selling the best mules and horses in the country.” The appellant did not owe the appellee anything because when he delivered the horses to him they were sound. When the appellee came back and told appellant that he had lost one of the horses, .appellant agreed to let him have a $250 horse for $150. Nothing was said at the time about this horse not looking right. The appellee gave appellant a check for $150 for the last horse, which was in settlement of the whole matter between them, and appellee said that he was satisfied. The testimony of the appellant- was corroborated by another witness who was in the employ of the appellant at the time and was present when the sales were made. The appellant guaranteed that the horses were serviceable and sound at the time they were delivered, and so far as witness knew they were sound. When appellee bought the last horse of appellant, the purchase price wa-s $250, and appellant agreed to let appellee have the same for $150 and appellee was perfectly satisfied.

The testimony of the appellee tended to sustain the allegation of his counterclaim. He stated that on the day of the first purchase he went away to St. Louis and was gone about a week, and upon his return one of the horses was dead. He notified the appellant to that effect, -and appellant stated that he would get appellee another horse. The matter drifted along for some time, and appellant called the appellee over the telephone, stating that he had a horse that would match. Appellee then went to see appellant to get another horse and reminded appellant that he was to get appellee a horse to take back in the place of the one that had died. Whereupon the appellant replied that he had to have $150 on the horse that he then proposed to let appellee have. He stated that he would make appellee a special price of $150. Appellee had to have the horse, and appellant said he would guarantee it absolutely. Appellee then took the horse home, and it died in about a week. Appellee thought that he notified appellant, but did not know-whether it was immediately after this last horse died or not. The appellant wrote the appellee when the note was due, and also called him over the telephone and asked why the note was not paid. Appellee told appellant he had guaranteed the horses, and -that they were both dead, and that appellee was willing to lose one if appellant would lose the other. Appellant replied that appellee would have to pay the note. Appellee then testified that at the time of the sales appellant'guaranteed the horses; that he told the appellee at the time he purchased the last horse that if it died it was his (appellant’s) loss, and that it was upon these representations and guaranty that appellee took the horses. Another witness on behalf of the appellee testified, tending to corroborate the testimony of the appellee to the effect that the appellant at the time of the sale of the horses in February guaranteed the same to be absolutely sound.

The court instructed the jury in part as follows: ‘ ‘ The plaintiff alleges, in rebuttal of the rights of the defendant to recover on the counterclaim, that, in the sale of the third horse, that in that transaction certain concessions of price amounting to the sum of $100 were allowed in the sale of this horse, by which all liability by reason of any differences of any liabilities that might arise in the sale of the two horses made on the 28th day of February should be eliminated; and that it was agreeable and acceptable and satisfactory to the defendant in this case. This the defendant denies, but claims that the sale was made to him in the direct course of business, and on a guaranteed price of $150. The question for you to decide here first is, what was the warranty as between these two parties? If you find from the evidence that plaintiff’s contention is true, as to his warrant}' of the horses only, as to the soundness at the time of delivery, and found the horses sound when he delivered them to him, then the defendant must fail on his cross-complaint. If you find from the evidence that plaintiff warranted the horses as to not only the.soundness of them at the time of delivery'but a reasonable time thereafter, and the horses were not sound, and died from the result of a disease they were then infected with, then the defendant would be entitled to recover on his cross-complaint.” The court told the jury that the burden was upon the appellee to establish the allegations of his cross-complaint.

The appellant objected generally to each of the instructions of the court, and he complains-here that the instructions set out above assume that the plaintiff (appellant) admitted liability on the warranty of the first horse, when in fact the plaintiff (appellant) in his reply and in his testimony denies that-there was any such warranty. No specific objection was made to the language of the instruction of which appellant here complains. The instruction, when considered as a whole, is not open to the' objection which appellant urges. When the latter part of the instruction is read, it is clear that the court did not intend by the language of the first part (to which appellant now objects) to assume that there was no issue before the jury as to the liability of the appellant on the alleged warranty of the soundness of the first horse. On the contrary, the instruction, fairly construed, submits to the jury the issue -as to whether or not the appellant was liable on any warranty as to the soundness of the horses at the time of their delivery and for a reasonable time thereafter. If appellant conceived that the instruction was faulty in assuming a fact not raised by the pleadings or the testimony, he should have specifically directed the attention of the court to it. Wright v. Midland Valley Ry. Co., 111 Ark. 196.

The appellant and his corroborating witness testified that the appellant did warrant that the horses were sound at the time of the delivery, and the appellee testified in effect that the appellant absolutely guaranteed the horse, and, if it died within a reasonable time, it was to be appellant’s loss, and not appellee’s. The jury might have found from the testimony that the horses in controversy were sold by the appellant and bought by the appellee in the ordinary course of business. The testimony of appellant himself showed that he was engaged in the business of buying and selling horses, and prided himself on the reputation he had acquired of “selling the best mules and horses in this country.” The appellee’s testimony tended to prove that he did not agree to pay appellant the sum of $250 as a purchase price of the last horse, and that he paid appellant $150 in cash, and that appellant allowed appellee $100 in settlement of his claim on the warranty of the horse that died. The appellee testified that such “was not the deal and trade.” He paid appellant $150 as the straight-out purchase price; that appellant cut down the price on account of appellee’s having purchased three horses.

But again, if the appellant conceived that there was nothing to warrant the submission of the issue as to ■whether the last purchase was “made in the direct course of business,” he should by specific objection have called the court’s attention to this phraseology of the instruction. The pleadings raised the issue as to whether or not there was an oral warranty as to the soundness of the horses, and the testimony on behalf of the appellee sustaining this issue was introduced without objection. The appellant is, therefore, not in an attitude to complain because the court submitted such issue to the jury. Indeed, appellant himself adduced testimony and presented prayers for instructions on that issue, which prayers were modified and given. The appellant here, for the first time, urges the objection that the testimony and instructions of the court submitted the issue of an oral warranty contrary to the writing which evidenced the contract of sale between the parties. By not raising this issue in the court below, he must be held to have waived it, and the contention that an oral warranty has been engrafted on a written contract 'of sale cannot avail for a reversal of the judgment by this court. Frauenthal v. Bridgeman, 50 Ark. 348; 22 Corpus Juris, p. 1295.

There is no error in the rulings of the court. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Smith v. State.
    Opinion delivered October 24, 1921.
    Sodomy — sufficiency of indictment. — An indictment for sodomy which charges that defendant, in the county and on a day named, unlawfully, feloniously and diabolically and. by force, disregarding the laws of nature, in and upon one Dixie Smith, a female person, did make an assault upon and did then and there unlawfully, feloniously and diabolically carnally know and abuse her, etc., held sufficient.
    Appeal from Sebastian Circuit Court, ' Ft. Smith District; John Brissolara, Judge;
    affirmed.

      David Partaim and G. L. Grant, for appellant.

      The indictment was bad, and the demurrer should have been sustained. 81 Pac. 680 (Cal.); 35 Cal. 675; 127 Cal. 99; 59 Pac. 836; 29 Texas 44; 94 Am. Dec. 251.
    The motion in arrest of judgment should have been sustained.
    The court erred in admitting evidence relative to the commission of the offense by using the tongue.
    . The prosecuting witness being herself guilty, it would be necessary for her to be corroborated before defendant could be convicted. 186 Pac. 388 (Cal.); 36 Cyc. 505 C; 111 Arle. 299.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.
    Indictment charging sodomy is sufficient, without setting forth in detail the manner in which it was committed. 23 Standard Encyclopedia of Procedure, pp. 962, 963; .9 Standard Encyclopedia of Procedure, 1157; 8 E. C. L. sec. 364, p. 333.
    There was no error in admitting testimony as to the manner in which the offense was committed. Sodomy may be committed by the mouth or otherwise than per amis. 71 S. E. 135; 136 Ga. 158; 46 S. E. 876-881, 882; 1 Wharton Cr. Law, (10th Ed.), sec. 579; Clark, Criminal Law (2nd. Ed.) 367.
    There was no request of the court to give an instruction relative to whether or not the prosecuting witness was an accomplice of the defendant. 89 Ark. 300; 95 Ark.' 593; 101 Ark. 513; 102 Ark. 588.
   Wood, J.

The appellant was convicted under an indictment, which is as follows:

“The grand jury of Sebastian County, Greenwood District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, C. Y. Smith, of the crime of sodomy, committed as follows, to-wit: The said defendant, in the county, district and State aforesaid, on the 13th day of March, 1921, unlawfully, feloniously and diabolically and by force, disregarding the laws of nature, in and upon one Dixie Smith, a female person, did make an assault upon and did then and there unlawfully, feloniously and diabolically carnally know and abuse her, the said Dixie Smith, against the peace and dignity of the State of Arkansas.” Was the indictment sufficient?

Section 2746 of Crawford & Moses’ Digest provides : “Every person convicted of sodomy, or buggery, shall be imprisoned in the penitentiary for a period' not less than five nor more than twenty-one years.”

In the absence of a more specific statutory definition as to the ingredients of the offense, we must look to the common law for such particulars.

Mr. Bishop says: “Not alone to protect the public morals, but for other reasons also, sodomy — called sometimes buggery, sometimes the offense against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copulation by human beings with each other against nature, or with.a beast — is, though committed in secret, highly criminal.” 1 Bishop’s Criminal Law, page 308, § 503; also 2 Bishop’s Criminal Law, § 1191.

And in 8 R. C. L., § 364, page 333, it is said: “The crime of sodomy, broadly and comprehensively speaking, consists of unnaiural sexual relations between persons of the same sex, or with beasts, or between persons of different sex, bui in an unnatural manner.” (Citing cases.)

The Supreme Court of New York, in Lamberts on v. People, 5 Parker’s Criminal Reports^ page 200, held valid an indictment precisely similar, in essential averments, to the one now under review. The court said: “The words usual in indictments for the offense of which the defendant was. convicted and.. which , were omitted in this case are not words of this character. The indictment contains all the words -of art required. * * * jiQr ap ^haf; the pleader should have stated in charging the offense is-expressly alleged, Or, by necessary implication, included in what is alleged, in the indictment in question.” . ' ' ' •

“An indictment or information charging sodomy, or the infamous crime against nature, naming it, with a designated person or animal, is sufficient without setting forth in detail the manner in which it was committed. It is unnecessary to lay the carnaliter cognovit in the indictment, in order to specify whether defendant was agent or pathic. A charge substantially in the language of the statute is, as a rule, sufficient, even though the offense is not specifically defined by the statute. An indictment charging an attempt to commit the infamous crime against nature is sufficient without an averment of a particular act constituting the attempt.” 23 Standard Encyclopedia of Procedure, page 962. Oases are cited in a note in support of the text.

We conclude therefore that the indictment is valid.

The only other question presented is whether or not the evidence is sufficient to sustain the verdict. The evidence is revolting in detail, and it could therefore serve no good purpose to set it forth. The prosecutrix was the wife of the appellant, and, while he stoutly denies the charge and vigorously contradicts her testimony, we nevertheless find that her testimony tends to support the verdict.

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


author: Hart, J.

text:
    Gooch v. State.
    Opinion delivered October 24, 1921.
    1. Continuance — sufficiency of application. — A motion for continuance on the ground that it was necessary for the defendant to secure depositions from witnesses residing elsewhere is insufficient where it fails to disclose the names of the witnesses or what their testimony would be.
    2. Continuance — sufficiency of application. — A motion for continuance on the ground that an agreement had been reached be- ■ tween the attorney for the State and the attorney for the defendant to continue the case for the term was insufficient where it was not sworn to, and no proof was offered to show that the prosecuting attorney had agreed to continue the case.

      3. Criminal law — evidence—alibi.—Where the defendant sought to establish an alibi as a defense by proving that he was in jail in another State at the time of the alleged theft, proof that a person of another name was in such jail at the time alleged was insufficient, there being no testimony that defendant was known by the other name.
    4. Criminal law — exclusion op evidence — prejudice.—Where the trial court excluded the answer of a witness, and the record does not show what the answer of the witness would have been, the question whether the court erred in such case will not be considered on appeal.
    5. Criminal law — necessity op motion for new trial. — An exception to the exclusion of testimony or to the refusal to give an instruction will not be considered on appeal where it is not brought forward in the motion for a new trial.
    Appeal from Sebastian Circuit Court, Ft. Smith District; Jolm Brizzolara, Judge;
    affirmed.

      E. M. Ditmcm, for appellant.
    1. The denial of appellant’s motion for a continuance, after a continuance had been agreed upon between the prosecuting attorney and counsel for the defendant, to enable the defendant to obtain depositions from witnesses in Tulsa, Oklahoma, and after counsel for the State and for the defendant appeared before the court and agreed to continue the cause until the next term, was a manifest abuse of discretion.
    2. In indictments for larceny the allegation of ownership is material, and must be proved by sufficient evidence as alleged, or the conviction cannot stand. 91 Ark. 1; 99 Id. 121. Ray wholly failed to identify the car as his, and there was no other testimony identifying it as his. Ray’s testimony shows he bought his car in 1920, whereas the bill of sale introduced by tlie State shows that the car in question was a 1921 model.
    3. The refusal to grant the motion for new trial on account of new evidence, that of the city jailer at Tulsa, and of Mrs. Herring, which would have shown that defendant was in the Tulsa jail at the time,the car was stolen, was manifest error.

      4. The court erred in refusing to charge the jury at defendant’s request that a bill of sale for goods is a valid defense, if such bill of sale was obtained in good faith, and for a valuable consideration. 96 Ark. 148; 28 Id. 126.
    5. It was error to refuse to permit the prosecuting attorney to testify at the trial as to the agreement to continue the case.

      J. 8. IJtley, Attorney General, Elbert Godwin and W. T. Hammock, assistants, for appellee.
    1. There was no error in refusing the motion for continuance. There was no verification, no supporting affidavit, no showing of diligence, nor what the expected evidence would be, — in fact no compliance with the statute in any respect. C. & M. Dig. §§ 3130, 1270.
    2. The evidence sustains the verdict.
    3. The motion for new trial was properly refused. The affidavits of the city jailer of Tulsa and of Mrs. Herring in no wise sustain defendant’s claim that he was in jail at Tulsa at the time the car was stolen. No showing that Herring and Gooch, the defendant, were the same person. Moreover the motion for new trial lacks the essentials which must be set out, where the ground therefor is newly discovered evidence. 2 Ark 33; 85 Id. 179.
    4. Appellant did not in his motion for new trial assign as error the refusal to give instruction 7, the instruction with reference to a bill of sale, and he therefore cannot urge such refusal as error on appeal. 2 ft. C. L. 100, § 72.
    5. Appellant made no effort to show what the prosecuting attorney would have testified. He will not be heard now to complain. 88 Ark. 562; 87 Id. 123; 133 Id. 599. ' " .
   Hart, J.

J. A. Gooch prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny charged to have been committed by stealing a Ford touring car in the city of Ft. Smith, Arkansas.

The first assignment of error is, that the trial court erred in refusing to grant the defendant’s motion for a. continuance. Tlie court did not abuse its discretion in overruling tlie motion for a continuance. One ground of the motion is that it was necessary for the defendant to secure depositions from witnesses residing in Tulsa, Oklahoma. The application failed to disclose the names of the witnesses whose testimony was desired, or what their testimony would be. There was nothing in the motion showing that the expected evidence was material.

Another ground of the motion was that an agreement had been reached between the attorney for the State and the attorney for the defendant to continue the case until the October, 1921, term of the court. The motion was not sworn to as required by the statute, and no proof was offered to show that the prosecuting attorney had agreed to continue the case for the term. Motions for a continuance are largely in the discretion of the trial court, and this court will not overrule the discretion of the trial court unless there is in the record an application coming substantially within the statute. O. & M. Dig. §1270; State Life Ins. Co. v. Ford, 101 Ark. 513; and Richie v. State, 85 Ark. 413.

It is next earnestly insisted that the evidence is not sufficient to warrant the verdict. According to the evidence for the State, a Ford touring car, worth something over $500, was stolen from O. B. Ray, about the 20th of April, 1921, in Ft. Smith, Sebastian County, Ark. Ray had parked the car in the business district of Ft. Smith, and when he came for it sometime afterwards he found that it had been stolen. He went to Ft. Worth, Texas, and identified a car which had-been taken from the possession of the defendant about the 18th day of May, 1921, as his car. The number which had originally been on the car had been chiseled off since it had been stolen, and another number had been substituted. Ray asked the defendant where he had gotten the car, and the defendant replied that he had swapped for it. Ray was not sure at first that the car .belonged to him, and told tbe defendant that he would give him some days to prove his innocence in the matter. "When Ray returned to Ft. Smith, his wife asked him if he saw a certain mark on the wheel. Ray told her that he had not thought about the mark when he examined the car. He then remembered about the mark and then went back to Ft. Worth to examine the car again. He found the mark on the wheel, and identified the car by that and by its general appearance. The officer, who arrested the defendant, said that the latter told him that he had bought the car on the streets of Ft. Worth from a party unknown to him. The officer examined the car and found that the Ford engine number had been removed and another number had been put in its place. The officer had had about nine years’ experience in matters of this kind, and knew that the number on the car had been tampered with. The Ford factory put figures on its engines that any one can tell are its figures if one studies them. The number on the car in question had been filed off and replaced by another number. The defendant said that he had paid $400 for the car. He was searched when arrested and twenty-five or thirty-five cents were found on him. The defendant exhibited a bill of sale for the car and the consideration recited in it was $475. The date of the transfer was the 16th day of May, 1921.

Another witness for the State testified that he saw a young man, who looked very much like the defendant, drive off a Ford roadster from the streets of Ft. Smith on the night that Ray’s car was stolen. He saw the young man drive, the car away from the place where it was parked on North Tenth Street in the city of Ft. Smith, on the night of the 20th of April, 1921. The witness stated further that he believed that he would be willing to go far enough to say that it was the defendant who drove the Ford roadster off on the occasion in question.

The defendant denied that he had stolen the oar, and said that he was in jail at Tnlsa, Oklahoma, on the night the car is charged to have been stolen. He testified that, as soon as he got out of jail, he went to Ft. Worth, Texas, and bought the car from an unknown man there. He denied that he had anything whatever to do with stealing the car.

The testimony on the part of the State was sufficient to warrant the jury in returning a verdict of guilty. According to the testimony of Ray, a Ford car belonging to him was stolen on the night of the 20th of April, 1921, from a street in Ft. Smith where he had parked it. About the 18th day of May, 1921, the car was found in the possession of the defendant at Ft. Worth, Texas. Ray identified the car by its general appearance and by a peculiar mark on the wheel. The defendant told Ray that he had swapped for the car. He told the officer, who arrested him, that he had bought it. He denied that he was in Ft. Smith at any time during the month of April, 1921. Other evidence showed that the engine number placed on the car by the manufacturer had been chiseled off and replaced by another.

Another witness testified that he saw him get into a Ford car in the city of Ft. Smith on the night of the 20th of April, 1921, and drive off. This evidence, if believed by the jury, warranted a verdict of guilty.

Another assignment of error is that the trial court erred in refusing to grant the defendant a new trial on account of newly discovered evidence. In support of his motion, the defendant filed what purports to be the deposition of the city jailer of Tulsa, Oklahoma, to the effect that E. W. Herring was placed in jail by him on April 10, 1921, and kept there until he was released on May 1, 1921. He also filed with it the deposition of Mrs. Alice Herring to the effect that she had a son by the name of E. W. Herring, twenty-two years of age, and that his left leg was shorter and smaller than his right leg, and that his foot was deformed; and that this son "was in jail in the city of Tulsa from April 10, 1921, to May 1, 1921. The court did.not abuse its discretion in refusing to grant a new trial on account of the evidence referred to.

The defendant was a witness for himself, and testified that his name was J. A. Gooch. When arrested, he had what purported to be a bill of sale to the Ford car in question to himself, and in that he was named as J. A. Gooch. It is true that he had a deformed foot, and testified that he had been in jail in Tulsa, Oklahoma, in April 1921. This did not, however, identify him as being the E. W. Herring testified to by Mrs. Alice Herring and the jailer at Tulsa as being in the jail there. The defendant knew whether or not he and E. W. Herring were the same person. If so, he should have informed the court of that fact in order to show the materiality of the newly discovered evidence. If the defendant and E. W. Herring were not the same person, the offered evidence had no bearing whatever on the case. If E. W. Herring and J. A. Gooch were different persons, the fact that E. W. Herring was in jail in Tulsa,- Oklahoma, during the month of April, 1921, would shed no light on the question of whether J. A. Gooch was.also there at that time.

It is true the record shows that E. W. Herring had a deformed foot in like manner as the defendant; but, as above stated, the defendant knew whether or not E. W. Herring and himself were the same person, and should have informed the court of that fact, in order to show the materiality of the admitted evidence. Not having done so, the presumption is that they were not the same person, and the court did not abuse its discretion in refusing to grant the defendant a new trial on .the ground of newly discovered evidence.

It is also insisted that the judgment should be reversed because the court refused to permit the prosecuting attorney to testify that he had made an agreement with counsel for the defendant to take depositions in the case in the city of Tulsa, Oklahoma. An objection to this question was sustained.

In the first place, it may be said that the record does not show what the answer of the witness would have been, and the question whether the court erred in such a case will not be considered on appeal, where it does not appear that any prejudice to the defendant resulted- from the refusal to allow the witness to answer the questions. Jackson v. State, 101 Ark. 473, and Jones v. State, 101 Ark. 439.

Moreover, the action of. the court in this respect was not made one of the grounds of the defendant’s motion for a new trial. An exception to the admission of the testimony which is not brought forward in the motion for a new trial will not be considered on appeal. Ince v. State, 77 Ark. 418, and Eno v. State, 91 Ark. 441, and cases cited.

Finally, it is insisted that the court erred in not giving a certain instruction asked by the defendant. The action of the court in refusing to give the instruction was not made one of the defendant’s grounds for a new trial. Alleged error in refusing to give an instruction is not before the court on appeal, if not brought in the motion for a new trial. Stallings v. Bradshaw, 137 Ark. 34.

After a careful examination of the record, we find no reversible error in it, and the judgment will be affirmed.


author: Smith, J.

text:
    Jones v. Patton.
    Opinion delivered October 24, 1921.
    1. Judgment — conclusiveness against third parties. — Where, in a controversy between the widow and the executor of a testator in the circuit court on appeal from the probate court, the court found that the widow had received more than her share of the property, and directed the executor to retain possession of and to rent the testator’s land, and so- pay the widow no further money until the heirs* had received their proportion that had been paid to the widow, the heirs, not being parties, were not bound by such judgment.
    2. Executors and administrators — right op executor to possession op land. — An executor, having no right to possession of his testator’s land under the will, has no right to retain possession as against the heirs where the testator left no debts.

      3. Partition — right op purchaser to possession. — As against an executor wrongfully in possession of his testator's land, a purchaser of the land at a sale in a partition suit brought by the testator’s heirs is entitled to possession.
    4. Partition — parties.—An executor, having under the will no right to possession of the testator’s land, is not a necessary party to a suit by the heirs for partition.
    Appeal from Van. Bnren Chancery Court; B. F. Mc-Mahan, Chancellor;
    affirmed.

      E. G. Mitchell, for appellant.

      M. P. Hatchett, for appellee.
    The powers of an executor are derived from the will. 34 Ark. 462; sec. 139, C. & M. Dig. Lands and tenements in the hands of an executor shall he assets for the payment of the debts of the testator (C. & M. Dig. § 152), but only When the personal property is insufficient to pay such debts. 114 Ark. 1. Unless for the payment of debts, the administrator cannot even take possession of the real property. 136 Ark. 95; 49 Ark. 87; 46 Ark. 373.
    The heirs of Cruse, not being parties to the suit, are not bound by the judgment affecting the title to the lands in controversy. They are, however, indispensable parties where relief is asked which will affect the title. 34 Ark. ■391; 41 Ark. 88.
    A delay of 20 years is unreasonable, and the lands can not now be claimed by the administrator for the payment of debts. 37 Ark. 155; 46 Ark. 373; 47-Ark. 470. The chancery court had power to partition the lands. C. & M. Dig. § 8090; 83 Ark. 554. .
    If it be conceded that the judgment in partition was obtained by fraud on the part of the heirs, it is good on collateral attack. 71 Ark. 480; 107 Ark. 41.
   Smith, J.

This cause was heard in the court below on an agreed statement of facts, the essential provisions of which are as follows: S. A. Cruse died testate in January, 1899, seized of the land in controversy. He left surviving a woman to whom he had been married in due form of law in this State, and several children by a former wife. Letters testamentary issued to J. E. Scanlan, who had been named executor in.the will. Scanlan collected the rents from the lands until 1904, and turned them over to Mary Cruse as widow. It is reflected in the agreed statement of facts that the executor suspected that Cruse had a living wife at the time of his marriage to Mary Cruse; but this suspicion proved to be groundless. A controversy arose between the widow and the executor over one of the settlements of the executor, and there was an appeal from the order and judgment of the probate court thereon. This appeal was heard at the September term, 1904, of the circuit court, when a judgment to the following effect was entered. The court found that the widow had received all personal property of the estate and the proceeds of all the rents up to and including the year 1903; that the widow owned a separate homestead at- the time of the death of her husband, and was not therefore entitled to the rents on the homestead of her husband. The court directed the executor to retain possession of the land and to loan all rents thereafter collected until legal demand therefor was made upon him by the heirs of Cruse, and that “no further money shall be paid to the s'aid widow until the heirs receive their proportion that has been paid to the widow, it being ordered by the court that the widow in this ease is entitled only to her dower of one-third of the proceeds of said estate from the death of the said S. A. Cruse.” The agreed statement of facts further recites that said lands were never needed to pay debts of the said S. A. Cruse, and that the said executor claims only the right to control said lands in so far as he may legally do so by virtue of his executorship and said order of the circuit court. That the lands were sold to S. K. Patton June 28, 1919, for partition under the decree of the court in a suit between the heirs of Cruse brought for that purpose. This partition suit was brought in the chancery court, the sale was regularly confirmed, and the commissioner, under the orders of the court, executed a deed to Patton. It was further stipulated that the partition proceedings were regular, except that Scanlan was not made a party. The widow was dead at the time of the partition suit, and there was no widow or minor heirs in possession of said lands when partitioned, and the proceeds of the sale of said lands for partition were distributed to the heirs of S. A. Cruse, who were parties to the partition suit.

Patton brought this suit at law to recover the lands against the executor, who defended his right of possession by setting up the judgment of the circuit court set out in the agreed statement of facts. On the defendant’s motion the cause was transferred to equity, where there was a decree in favor of plaintiff for the lands, from which is this appeal.

There was no decree for the rents, the cause being continued for the taking of testimony on that issue.

Appellant insists, for the reversal of the decree of the court below, that there was a final binding judgment of the circuit court rendered upon the appeal from the judgment of the probate court, which judgment he was and is bound to obey; yet he cannot obey that judgment if he is required to surrender possession as directed by the decree of the chancery court.

In answer to this contention, it may be said that there were no debts, and the law gave tire executor no right to control the possession of the land. The executor was not a party to the partition proceeding; but there was no reason why he should have been. Neither under the will nor under the statute did the executor have a right to the possession of the land.

There was nothing in the judgment of the circuit court which could postpone the heirs from taking possession of the land. They were not parties to the litigation between the widow and the executor, and were therefore not bound by it. Moreover, we find nothing in the judgment itself which would have postponed the right of entry of the heirs. Evidently the names and addresses of the heirs were not known when the circuit court rendered its judgment, and because of the lack of this knowledge the executor had paid to the, widow all the rents and had delivered to her all the personal property. To make amends for this,, the circuit court directed the executor to collect rents thereafter for the account of the heirs until a sum had been collected sufficient to equalize them under the law with the widow. The judgment recognized the rights of the heirs to the rents from the lands and the executor was ordered to retain .possession for the purpose of collecting the rents for the benefit of these heirs.

Since then the widow has died, and the land was sold for partition in a suit brought by the heirs for that purpose; and we perceive no reason why the purchaser at that sale should not be awarded possession of the land. This was the decree of the court below, and it is therefore affirmed.


author: Smith, J. McCulloch, C. J.,

text:
    Prewitt v. State.
    Opinion delivered October 24, 1921.
    1. Criminal law — -failure to define reasonable doubt.- — A defendant who has not asked a correct instruction defining reasonable doubt is in no position to ask for a reversal for a failure to define that term.
    2. Criminal law — credibility of witness — instruction.—An instruction in a criminal case that if the jury believe that any witness has wilfully sworn falsely to any material fact in the case they may reject his whole testimony, or may reject that which they find to be false and accept the remainder, is erroneous in so far as it authorizes the jury to reject any testimony which they believe to be true.
    3. Criminal law — evidence—conversation between third persons. — Where the defendant in a prosecution for murder sought to establish the plea of self defense, and testified to the effect that an altercation grew out of a misunderstanding on deceased’s part - as to what the defendant had said to his wife about deceased’s mother, which was repeated by his wife to deceased’s mother, it was competent to prove what defendant’s wife said to deceased’s mother as tending to corroborate defendant’s testimony in regard to his conversation with deceased; no one else having heard the latter conversation.
    4. Criminal law — evidence—appearance op accused.— Where, after the killing, defendant went to a physician’s office and requested him to go to deceased’s relief, testimony of the physician as to the defendant’s appearance at that time was incompetent.
    5. Criminal law — evidence.—It was error in a murder case, to exclude testimony of a witness, who saw defendant immediately after the killing, that the expression on defendant’s face at that time indicated no anger or resentment, but only fright and fear.
    6. Homicide — argumentative instruction — singling out pacts.— An instruction in a murder ease that, in deciding the situation of the parties, the jury should take into account “their threats, if any, and their relative strength and power, because, in a contest between a powerful individual and a weaker, the necessity of taking life in self defense will be more apparent and easily discoverable,” was properly refused as being argumentative and as singling out the particular circumstances named.
    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    reversed.

      Arthur Johnson and Williamson é Williamson, for appellant.
    1. The verdict is not supported by the evidence. This court is committed against the scintilla rule, and the rule calling for a.refusal of a new trial where there was any evidence whatever, however weak, to support the verdict. 34 Ark. 632; 85 Id. 360-362; 97 Id. 156, 159; 56 Id. 8, 17; 49 Id. 364.
    2. Any declaration of law which will permit a conviction of murder in'the second degree without proof of malice is reversible error. 141 Ark. 57; 82 Id. 545. No killing can be murder unless done with malice. 35 Ark. 585; 141 Id. 63. It must be proved by substantial evidence and beyond a reasonable doubt. The State cannot' rely upon inferences or conclusions to establish malice. 100 Ark. 354; 71 Id. 460; 49 Id. 364; 96 Id. 52; 119 Id. 85; 69 Id. 189; 76 Id. 515; 141 Id. 57; Id. 11, 12; 38 Id. 221. Implied malice can only arise where no considerable provocation appears, or where all the circumstances of the killing manifest an abandoned and wicked disposition. C. So M. Dig. §' 2341; 34 Ark. 640; 17 Cyc, 754; Id. 817; 100 Ark. 354. Express malice, see C. So. M. Dig. § 2340. Mnst be proved. 66 Ark. 646; 9 Am. So Eng. Enc. of L. 587; 1 Bishop, Crim. Law § 868 ; 1 McClain, Crim. Law § 340; 73 Ark. 315, 319’; 110 Id. 402; 75 Id. 142; 74 Id. 262.
    3. The absence of any motive for the killing save that of self defense alone, is a strong circumstance in favor of innocence which must be considered if justice is to be done. 93 Ark. 323; 109 Id. 391; 138 Id. 517; 71 Id. 117.'
    4. Proof of what the conversation was between appellant’s wife and the mother of deceased, which led to the difficulty between appellant and deceased, was relevant and material to appellant’s defense, and it was reversible error to exclude Mrs. Harding’s testimony. 1 Wharton on Evidence, §§ 20, 21; 49 Ark. 542; 58Id. 233; 241; 71 Id. 112, 117; 43 Id. 99; 114 Id. 275; 109 Id. 391; 29 Id. 262; 14 Id. 555, 561; 43 Id. 99, 104.
    It was likewise error to exclude the testimony of the witness Spyker concerning the appearance of the appellant immediately following the shooting, and also the testimony of Dr. Hutchinson on that point.
    5. The court erred in excluding testimony offered to show the actual character and disposition of the deceased. Wigmore on Evidence, §§ 52, 53,1908-1986; 3 Id. pp. 2627, 2629, 2630, 2644, 2645-46; 29 Ark. 262-263; 34 Id. 372; 47 Id. 187; 69 Id. 149; 72 Id. 439; 79 Id. 601; 82 Id. 597; 85 Id. 381; 108 Id. 129; 100 Id. 564; 115 Id. 501; 98 Id. 430; 95 Id. 241; Carr v. State, 147 Ark. 524; 132 Id. 504.
    6. Instructions 1 and 3, to the effect that the burden was on the State to prove every material allegation of the indictment beyond a reasonable doubt, etc., undoubtedly stated the law, and should have been given. 109 Ark. 516. It constitutes reversible error to omit a definition of reasonable doubt, in charging the jury. 69 Ark. 449. Instructions 10 and 17 on the issue of self defense is in accordance with the law as declared by this court in Patmore v. State, 29 Ark. 267. Also instruction 12, to the effect that if the fatal shot was fired under the belief, although a mistaken belief, that it was necessary in order to protect himself from serious bodily harm, defendant should be acquitted, was the law as declared by this court. 131 Ark. 538. Instruction 16 as to the purpose for which proof was admitted as to the reputation of deceased, should have been given. 85 Ark. 380.
    7. The court erred in its charge to the jury in giving § 2374, C. & M. Digest, in part only. 85 Ark. 48; 13 Id 360; 54 Id. 588; 55 Id. 397.
    Instructions on the subject of justifiable homicide which are not qualified so as to show the right of the accused to act upon the circumstances as they appeared to him, as a reasonable person, are erroneous. 67 Ark. 594, 599. Instruction No. 9, given by the court, amounted to a peremptory instruction to convict, the effect of it being to tell the jury to disregard all the evidence save the actual fact of the shooting. 85 Ark. 52; 67 Id. 599. Correct instructions given at appellant’s request, did not cure the error. 55 Ark. 393; 57 Id. 203; 59 Id. 52; 85 Id. 52; Id. 214, 217; 93 Id. 564, 573.
    8. No definition of murder in the second degree, with instruction thereon, was given. 38 Ark. 221.
    On appeal from the order, nunc fro tunc, correcting the record:
    The proceeding to correct the record was material to the appellant, and he was entitled to be present at the time in person. The court ought to have continued the hearing on the motion on account of his illness, and to proceed in his absence was reversible error. 143 Ark. 543; 103 Id. 4; 21 Id. 226; 35 Id. 118; Id. 588; 50 Id. 499.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The evidence supports the verdict. Malice, an essential element of murder in the second degree, may be either express or implied. C. & M. Digest, § 2340. Actual intent to take life is not a necessary element in the crime. 55 Ark. 556. There was no legal provocation for the killing. Abusive words will nevef justify taking human life. 70 Ark. 272; 77 Id. 464; 131 Id. 487. Motive for the killing was clearly shown.
    2. Mrs. Harding’s testimony was not admissible. The alleged conversation between Mrs. Hastings and appellant’s wife was not in his presence, and. it is not claimed that any threats by either deceased or appellant towards the other were communicated by that conversation.
    3. The testimony as to appellant’s appearance after the shooting was not competent.
    4. There was no error in refusing to permit witnesses to testify as to their personal knowledge relative to the character of the deceased. Reputation was the proper inquiry, and whether it was known to the accused. 1 Greenleaf on Ev. § 14, p. 42; Underhill oh Ev. §§ 324, 325; 1 Wharton, Crim. Ev., 246; 29 Ark. 248; 100 Id. 561; Trotter v. State, 148 Ark. 466.
    5. We do not think the instructions 4 and 20, to the refusal of which the appellant objects, gave a clear definition of a reasonable doubt. The court is not required to instruct as to reasonable doubt on its own motion. 86 Ark. 456.
    It is not obligatory upon the court to instruct upon the credibility of witnesses. 109 Ark. 383.
    Instructions 10 and 17 were properly refused, as they omitted the necessary element that the accused must have thought the killing necessary in order to protect his own life or to save himself from great bodily harm. 93 Ark. 409. Moreover instruction 17 was not applicable to the testimony in the case. Appellant’s objections to instructions were general. He should have made specific objections. 101 Ark. 95.
   Smith, J.

Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting one Morris Hastings. He was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.

The facts in regard to the killing are substantially as follows: The appellant, who will hereinafter be referred to as the defendant, and Hastings, who will be referred to as the deceased, had always been on friendly terms and had frequently hunted together. Defendant was thirty-eight years old, and at the time of the killing was under treatment by a physician for hernia, and was a much smaller man than deceased, who was twenty-three years old, six feet tall, and of athletic build. The killing occurred about nine o’clock Thursday morning, February 17, 1921, in the little town of Grady, in Lincoln County, where both parties had lived for a number of years.

According to defendant, he had bought a bird dog the day before, in payment of which he had given a check on his local bank, and, not being certain that he had enough money in the bank to pay the check, he had gotten $25 from his bookkeeper that morning and was hurrying to reach the bank before the check was presented for payment. On the way to the bank and while near the depot, he met deceased and told him that he had just bought a stud pup, whereupon deceased said, “I have been looking for you, you son-of-a-bitch; you had better be thinking about your neck instead of dogs.” Defendant asked, “What is the matter, Morris?” when, according to defendant, deceased “said something about whát my wife told his mother.” According to defendant, he assured deceased there was some mistake, that he had said nothing desrespectful .about his mother, and that if she had taken offense at anything he had said he would be glad to explain or apologize. The deceased did not accept the explanation and grew more angry as the discussion progressed, and, after frequently cursing defendant in angry'.tones and with violent/ language, finally said, “I am going to stamp your God damn guts through your eyes,” and as he said this deceased lunged at defendant and put his hand in his pocket; whereupon defendant jumped back a step or two, drew his pistol and fired twice in rapid succession. Deceased fell between the rails of the railway track with a bullet through his heart, from which he died in a very short time.

Witnesses saw the parties standing together and knew that a violent quarrel was in progress, but the testimony shows that defendant made only one gesture — • that with his hands — during the conversation; while deceased was seen to shake his 'finger in defendant’s face. A witness named Bittinger, who saw the beginning of the occurrence, heard deceased apply indecent epithets and threats to defendant, and supposed defendant would slap deceased, but when defendant failed to resent what was said, witness passed on and left the parties to their discussion. During all this time defendant had in one hand the bills which he had started to deposit in the bank. Immediately upon .firing the shots, defendant went to the bank and deposited his money. He then went directly to the office of Dr. Hutchinson, whom he requested to go at once to the relief of deceased, making the statement at the time that he had been compelled to shoot him.

Defendant undertook to account for the possession of the pistol by stating that his store had been recently burglarized and a large quantity of' goods stolen. He admitted that he had a pistol in his store and another in his residence. There was testimony on the part of the State that deceased fell at the place where he had been standing, thus indicating that he had not advanced on defendant; and it was shown that deceased’s clothing was not powder burned, and that he was unarmed when he ’was killed.

. It was shown that the evening before the killing deceased was talking about what defendant had said about his mother, something defendant’s wife had told his mother. Deceased told Dr. Hutchinson that he had been compelled to call a doctor to see his mother on account of her excitement over what defendant’s wife had told her, and that he would see defendant the following morning, and that if he did not apologize he would beat him up so that the whole town would know he had been whipped. Dr. Hutchinson undertook to pacify deceased, but met with no success in his attempt. Dr. Hutchinson communicated this fact to defendant that night, and defendant said he thought he could adjust the matter.

The court allowed defendant to state fully everything deceased said when they met in regard to the insulting language used by defendant towards deceased’s mother, but excluded the testimony of a Mrs. Harding, who was present when the conversation between Mrs. Prewitt and Mrs. Hastings occurred and by whom they offered to prove what the conversation was. Mrs. Harding would have testified, had she been permitted to do so, that she heard the conversation, and that Mrs, Prewitt repeated to Mrs. Hastings a remark of defendant about how often he saw Mrs. Hastings on the street and how spry and youthful she appeared to be, and that the remark was a facetious compliment on Mrs'. Easting’s youthful appearance, and that there was nothing in the remark susceptible of a construction derogatory to Mrs. Hastings’ character. Upon reflection, Mrs. Hastings gave the remark a sinister interpretation, and became excited and ill over it, and repeated the remark to her son, giving, m its repetition, the interpretation she then placed on it.

Defendant was not allowed to show by Dr. Hutchinson what his personal appearance and demeanor was when he arrived at the doctor’s office; and exceptions were saved to that ruling.

The State called L. P. Spyker as a 'witness, who testified that he was the station agent at Grady, and was about ten feet inside his office and about twenty feet from the scene of the killing when the firing commenced, and that he immediately went to a window looking out on the scene of the killing. He described the relative situation of the parties, and, on Ms cross-examination, was asked this question: “When you looked out and saw Mr. Prewitt standing there, please describe to the jury what kind of éxpression was on Ms face at that time, as best you can.” The prosecuting attorney objected to the question as being a mere conclusion of the witness, and the court sustained the objection and remarked at the time that “nothing could be determined from that testimony.” Counsel for defendant then said: “We want to show from the expression on his face that there was no anger shown on his face at that time.” The court remarked: “I don’t think that is admissible, and it will be denied.” Thereupon counsel stated that “the defendant offers to prove by this witness, on cross-examination, that there was nothing whatever in the expression on the face of the defendant immediately after the shooting to indicate the slighest anger or resentment, and that defendant’s expression at that -time reflected only fright and fear.”

Numerous errors are assigned for the reversal of the judgment, the first of which is that the jury was not sworn to try the cause. After the adjournment of the term at which the trial was had the record was amended by a nunc pro time order to show that the jury was sworn; and it is now insisted that -this order was made upon an insufficient showing. As the judgment is to be reversed, we do not stop to consider this question.

A great many other assignments of error are dismissed in the briefs relating to alleged errors in the admission and exclusion of testimony and in giving and refusing instructions. We dispose of these questions generally by saying that we find no error in the record now before us except as hereinafter pointed out.

It does appear that the court gave no instruction defining reasonable doubt, although, in instruction numbered 7 given by the court, the jury was told to acquit the defendant if, upon the whole case, they had a reasonable doubt of his guilt.

The defendant asked instructions numbered 4 and 20 on the subject of reasonable doubt; but neither of those instructions undertoook to define that term,- and, the court having told the jury to acquit if there was a reasonable doubt of defendant’s guilt, no error was committed in refusing to multiply instructions to that effect. The defendant should have asked a correct instruction defining reasonable doubt, in which event only would he be in position to ask a reversal for a failure to define that term. Lackey v. State, 67 Ark. 416, 421; Mabry v. State, 80 Ark. 345, 349; Hobbs v. State, 86 Ark. 360, 361; Horton v. Jackson, 87 Ark. 528, 530; Bradsham v. State, 95 Ark. 409, 411; Holmes v. Bluff City Lumber Co., 97 Ark. 180, 188; Hays v. State, 129 Ark. 325; Gunter v. Williams, 137 Ark. 530, 537.

It also appears that the court gave no instruction on the question of the credibility of the witnesses. The defendant did ask an instruction on this subject, but the one asked was not a correct declaration of the law. It concluded with the statement that “and, if you believe that any witness has wilfully given false testimony as to any material fact in the case, you may reject the entire testimony of said witness, or you may reject that which you find to be false and accept the remainder. ’ ’

In the case of Taylor v. State, 82 Ark. 540, an in struction of identical purport and of similar phraseology was reviewed and condemned by the court. Mr. Justice Riddick, speaking for the court, said: “This in effect tells the jury that if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony; and, if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply because the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told 1he truth, they should not reject it. * * *” Other later cases to the same effect are: Griffin v. State, 141 Ark. 46; Johnson v. State, 127 Ark. 524; Johnson v. State, 120 Ark. 202.

As the defendant did not ask a correct instruction on this subject, he is in no position to complain of the failure of the court to charge on that subject.

We are of the opinion that the court should have admitted the testimony of Mrs. Harding. The conversation which she would have detailed occurred only eighteen hours before rhe killing and was, without question, the cause of it; and we are of the opinion that the jury should have been allowed to know what the trouble was all about. It is true neither defendant nor deceased was then present, but the conversation was repeated to deceased by his mother shortly after it occurred, and the truth in regard to it as each party understood it may have probative value in ascertaining the motives of the respective parties. Testimony went to the jury, and properly so, that deceased was much incensed at what he thought was an offensivé statement reflecting, on his mother’s virtue. Defendant was permitted to testify that he told deceased he had cast no reflection on his mother, that he would he glad to explain and to apologize if deceased desired an apology. There was no witness to corroborate defendant, as no one heard the conversation between him and deceased.

The jury may not have believed defendant’s statement. Had they believed his statement, it would have tended to show that defendant had no desire to kill deceased nor motive for doing so.

In the very recent ease of Avey v. State, 149 Ark. 642, we held that proof of a motive for the killing was not a collateral matter. We there said: “This court las many times held that the State is not required to prove a motive to establish the guilt of one accused of homicide; but the court has also held that, as the absence of a motive is a circumstance tending to show innocence, the State may show the existence of a motive for taking the life of a decedent, to be considered with other facts and circumstances in determining the guilt or innocence of the accused.” See also Appleton State, 61 Ark. 590; Carr v. State, 43 Ark. 99; Scott v. State, 109 Ark. 391; Phillips v. State, 62 Ark. 119; Carroll v. State, 45 Ark. 539; Chapline v. State, 79 Ark. 444.

Had the testimony of Mrs. Harding been admitted, the testimony of defendant concerning his explanation to deceased and his attempt to conciliate him might have appeared more probable to the jury, and, if believed, might have led the jury h: the conclusion that defendant was doing everything in bis power, consistent with his safety, to avoid the difficulty. At least it had probative value tending to that effect.

We think the court properly excluded the testimony of Dr. Hutchinson about defendant’s appearance when he appeared at the office of the witness. Too much time had intervened between the time of the killing and that conversation. Opportunity had then been afforded for reflection and dissimulation.

But we think the testimony of.Spyker should have been admitted. He was asked about defendant’s appearance at the very time of the killing — while the smoking pistol was in defendant’s hand. The witness should have been allowed to describe to the jury the expression on the face of defendant at the time as best he could as he was requested to do in the question which the court refused to permit him to answer.

In Yol. 3 of Wigmore on Evidence, § 1974, that learned writer says: ‘£ The Opinion rule is often sought to be applied to forbid compendious descriptions of the appearances externally indicating internal states — for example, whether a person ‘looked’ sick or sad or angry. There is no more reason in this class of cases than in the preceding one for the Opinion rule to exclude the testimony. The exclusionary rulings perhaps here abound particularly in absurdities and quibbles— highly fit for cynical amusement, were not the names of Justice and Truth involved in their consideration.' One may wonder how long these solemn farces will be perpetuated in our law. '

In the note to the text quoted many cases are cited in which various courts have held that it is competent for a witness to describe one’s personal appearance, as, for instance, that he was angry, sick, excited, etc. See also Vol. 2 Wharton’s Criminal Evidence, § 922; 3 Chamberlayne, Modern Law of Evidence, § 1934; 16 C. J. p. 753, § 1545; Miller v. State, 94 Ark. 538; Decker v. State, 85 Ark. 64; Fort v. State, 52 Ark. 180.

The defendant’s right to kill depended on the necessity so to do as the circumstances then appeared to him, and proper instructions on that subject were given to the jury. Did the defendant believe that the threats of great bodily harm which had just been angrily made were about to be executed? Was the threatened injury impending and about to fall? And did defendant fire the fatal shots because of this fear and to save himself from the threatened fate: or did he fire the shots maliciously? In the one case, he had the right to-fire; in the other, he did not. We think the testimony as to defendant’s appearance at the time he fired the shots has probative value in passing on that question.

Appellant requested an instruction numbered 17, which told the jury that, in deciding the trim situation of the parties at the time their respective feelings and intentions, the jury should take into account “their threats, if any, and their relative strength and power, because, in a contest between a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discoverable.” It is very earnestly insisted that this instruction was proper, and that prejudicial error was committed in refusing it.

We do not agree with counsel in this contention. The instruction was argumentative in form. It was, of course, proper for the jury to consider the circumstances there recited; but this court has said in many cases that it is not good practice to single out and specially direct the attention of the jury to particular circumstances, thereby appearing to emphasize the circumstances named. The jury should be directed to consider all the circumstances established by the testimony, and this was fully and clearly done in a number of instructions given by the court, several of which were given at the request of the defendant.

We think there is no other error in the record; but the judgment must be reversed for the errors indicated. It is so ordered.

McCulloch, C. J.,

(dissenting). It is undisputed that up to the fatal encounter between appellant and Hastings they had been good friends, and that the cause of the ill feeling between them which resulted in the encounter was the anger and resentment aroused in the mind of Hastings by the report that appellant had made an insulting remark about his mother. It appears from the testimony that this report was unfounded, and that appellant had not, in fact, made an insulting remark about Mrs. Hastings. It is also undisputed that Hastings was the aggressor in the encounter, but there is a conflict as to the extent of his conduct, whether it was sufficient to justify appellant in firing the fatal shot.

It was competent to show, and the court permitted the greatest latitude in proving, all of the previous conduct of both parties, for the purpose of showing their state of mind. Appellant was allowed to show that he had not made any unfavorable remark about Mrs. Hastings, and he was allowed to show by the statements and alleged threats of Hastings that the latter was intensely angry and resentful about what he had heard was appellant’s remark about his mother. I am wholly unable to understand upon what theory it is admissible to prove the conversation between Mrs. Prewitt and Mrs. Hastings. It was a conversation wholly between third parties, neither of the parties to the fatal encounter being present, and it could only have presented a matter entirely collateral to the main issue. It had no bearing whatever on the conduct, or motives, or state of mind, of either of the parties to the encounter. Moreover, it could have had no beneficial effect upon plaintiff’s defense, unless the jury had seen fit to try the case on the issue as to whether or not Mrs. Prewitt or Mrs. Hastings was at fault. It was unimportant whether the report to Hastings about what appellant had said about his mother was true or false, for, as before stated, it is undisputed that Hastings had been aroused to a high pitch of anger1 toward appellant by the report of the remark made by Prewitt about Mrs. Hastings. It could not have helped appellant’s case to show that Hastings’ anger was without cause, and it certainly was not competent to show this by a conversation between two other persons, even though these person's were the mother and wife, respectively, of Hastings and appellant.’

The other ground of the reversal is that the court erred in refusing to allow appellant to prove by witness Spyker that immediately after the shooting the witness saw nothing about appellant to “indicate the slightest anger or resentment, and that the defendant’s expression at that time reflected only fright and fear.” It seems to me that this is merely an attempt to prove a conclusion by the witness, and not to prove facts upon which the jury mig’ht draw an inference or conclusion. The authorities holding such testimony as competent put it on the ground that the witness should be permitted to state his conclusion after stating the facts upon which the conclusion is based; that is to say, where the witness states that the face of the party was flushed or pallid or that the eye-balls were inflamed, or. any other fact that would indicate the state of mind of the party, the witness may then state his own conclusion, based upon those facts, but it seems to me to be a mere conclusion for a witness, without giving the facts, to state what the expression on the face of the party indicated. Anger and fright are emotions which generally manifest themselves on the human countenance by physical evidences, about which any witness may testify, but it is purely an opinion or conclusion for a witness to state that these emotions existed without stating the facts constituting physical evidence of those emotions. I 'believe that none of the authorities, save Professor Wigmore, go to the extent that the court has gone in this case, and the intemperate statement of that learned author in the opinion of the majority is, to my mind, not at all convincing.

But, even if this testimony of witness Spyker was competent, it only tended to show the mental attitude of appellant at the time of the shooting, and could only have been considered by the jury in determining whether or not there was malice. The jury found on sufficient evidence and upon proper instructions that the killing was unnecessary,. and if this testimony had been ad-' mitted, and the jury had accepted it as a true indication of appellant’s feelings at the time, it could only have had a ligitimate tendency to alter the verdict with respect to the degree of the homicide. It seems to me, therefore, that, even if the testimony is competent, it ought only to call for a reduction of the degree of the judgment to a conviction for manslaughter. I am unwilling, however, to say that the court erred in either particular in its ruling on the admissibility of testimony.


author: Humphreys, J.

text:
    Guerin v. State.
    Opinion delivered October 24, 1921.
    1. Intoxicating liquors — manufacture.—Evidence held to sustain a conviction of manufacturing or being interested in the manufacture of intoxicating liquors.
    2. Intoxicating liquors — instruction as to being interested in manufacture.— An objection to an instruction as inaptly defining what it would take to constitute an interest in the manufacture of intoxicating liquors should be specific.
    S. Criminal law — proof op venue. — Proof of the venue of a crime alleged to have been committed within seven miles east of Hot Springs, the county seat of Garland County, was sufficient, as the court knows judicially that the east boundary of that county is more than seven miles from Hot Springs.
    4. Criminal law — new trial — newly discovered evidence. — It was not error to refuse a new trial for newly discovered evidence that was either incompetent as being hearsay, or was cumulative.
    Appeal from Garland Circuit Court; Scott Wood,' Judge;
    affirmed.

      Geo. P. Whittington, for appellant.
    The evidence was not sufficient to warrant the submission of the question of guilt or innocence to the jury. 57 Ark. 461.
    The venue of the crime was not proved. 54 Ark. 371.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The proof was amply sufficient to sustain the verdict. 135 Ark. 117; 136 Ark. 385.
    Instruction No. 6 was correct, it was based on section 6160, C. & M. Digest.
    The evidence was sufficient to prove the venue. 62 Ark. 497; 68 Ark. 336; 73 Ark. 484.

      The motion for new trial on account of newly discovered evidence was properly overruled; sufficient diligence not being shown. 85 Ark. 33; 103 Ark. 589; 133 Ark. 169; 78 Ark. 324; 130 Ark. 365.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Garland Circuit Court for the crime of manufacturing and being interested in the manufacture of intoxicating liquors, and as a punishment therefor was adjudged to serve a term of one year in the State penitentiary. An appeal from the judgment has been duly prosecuted to this court, and a reversal is sought upon the grounds:

First: That the evidence is insufficient to support the verdict;

Second: That instruction No. 6 given by the court was erroneous;

Third: That the venue was not established; and,

Fourth: That a new trial should have been granted upon newly discovered evidence.

(1). Appellant owned a farm known as the Guerin place, not over seven miles east of Hot Springs, and perhaps nearer. He also owned a place on the Pleasant Valley road, known as the Nichols place, back of the Essex Park.

Appellant and his wife separated and he went to Atlantic City to visit his sister. He returned to Hot Springs in October, 1920, and while there conveyed the farm on Pleasant Valley'road to his wife. He testified that he also gave her the Guerin place, east of Hot Springs, but made no deed to her. Mrs. Guerin and her children resided a part of the time on the mountain place and a part of the time on the Guerin place, and when there had a young man and a Miss Baldwin living with he.r. These young people subsequently married and remained most of the time on the Guerin place. Appellant and his father resided on the Nichols place. While at or near Hot Springs, appellant made occasional visits to the Guerin place to see his family. He made another trip to Atlantic City, returning* about December 21st. From that time until his arrest, in January, 1921, he visited his family about once a week, going late in the afternoon and returning about 9 o’clock p. m. on these occasions. He contributed towards the support of his family during the time. Near about Christmas Roy Ste-gall, Federal prohibition enforcement officer, searched the Guerin place, found a small amount of red whiskey, but no still, on the farm. Appellant was there at the time. On Sunday towards the latter part of January the sheriff and his deputies, with Stegall, made a search of the Guerin house - and farm and found a still in a hollow or ravine 150 yards from, and in sight of, the house. They found ten or fifteen gallons of whiskey and a dozen barrels of mash at the still; also several hundred pounds of sugar, kegs, etc., in the barn, about one hundred yards from the still. Mrs. Guerin and family left the house soon after the arrival of the officers, presumably in company with Will Smith.

Mrs. Harris, who lived across the creek from the Guerin place, testified that two or three weeks before the seizure and confiscation of the still twelve of her pigs had died from drinking the slop and eating the mash at the still; that she sent appellant word by Will Smith that the pigs had died from the effect of drinking the slop and eating the mash, and demanded pay for them; that after insistence on her part appellant paid her $8 for them and promised to put a fence around the still.

On the night of January 22nd appellant and a companion by the name of Wilcox were arrested in Hot Springs, and a bottle of whiskey and two hundred pounds of sugar were found in appellant’s car.

Appellant testified that when he made the second trip to Atlantic City Will Smith applied to bim to rent the Guerin place; that he told bim to see his wife, and supposed that she had rented it to him. He denied any knowledge of or connection with the still or the manufacturing of liquor. He admitted making frequent visits to see his family, and that he was in the barn at times, but denied seeing any kegs or sugar in the barn. He testified that he paid Mrs. Harris for the pigs to keep down any trouble, and told Will Smith that if whiskey was being manufactured on the place he wanted him to quit, that he didn’t care to get into trouble. He further testified that the whiskey and sugar found in his automobile on the night of his arrest belonged to Wilcox; that he had loaned the automobile to Wilcox several hours before, his arrest.

We think there is substantial evidence in this record tending to show that appellant was manufacturing or interested in the manufacture of intoxicating liquors on the Guerin farm.

' (2) Instruction No. -6, of which appellant complains, is as pollows-

“There „s an additional instruction that I overlooked instructing the jury; that part of the indictment that charges him with being interested in the manufacture and making or being interested in it, if he was interested in it, that is if it was on his property and he knew it or got some profit out of it he would be guilty under the indictment, regardless of whether he was present at the time of its being made; but, on the other hand, if the place was in charge of his wife and he had nothing to do with it and had no interest in the manufacture of whiskey, then he would not be guilty.”

This instruction was given orally, and inaptly explained “an interest in the manufacture of whiskey.” But when read as a whole it is quite clear that the court meant to tell the jury that before appellant could be convicted the evidence must show that he was interested in the manufacture of whiskey. The latter part of the instruction makes it clear, because the jury are distinctly told that “if the place was in charge of his wife, and he had nothing to do with it, and had no interest in the manufacture of whiskey, then he would not be guilty.’

The inapt expression defining what it would take to constitute an interest in the manufacture of intoxicating liquor is the character of error that should have been taken advantage of by a specific objection. If the court’s attention had been called to the fact that the meaning of the instruction was beclouded by the language used, it is quite apparent the court would have corrected the language so as to clearly express the intended meaning. Prejudicial error was not committed in giving the instruction.

(3). The venue was sufficiently established by the evidence. The farm was located by the witnesses as from four and a half to seven miles east of Hot Springs. The jury were warranted therefore in finding that the farm upon which the still was located was within seven miles of Hot Springs, and the court will take judicial knowledge that the east line of Garland county is more than seven miles from Hot Springs. Forehand v. State, 53 Ark. 46.

. (4). Newly discovered evidence was made the ground of appellant’s motion for a new trial, and the evidence, in substance, was that appellant was seldom seen upon the Guerin farm from October, 1920, until the time of his arrest in January; that the still was set on the farm in October, 1920, during the absence of appellant in the east; that Will Smith had stated to the witnesses named in the motion that the. still belonged to him, and that appellant was not interested in it or in the manufacture of intoxicating liquors.

We cannot agree with learned counsel that it clearly appears -that the trial court abused its discretion in refusing to grant a new trial on account of newly discovered evidence. The facts set out in the motion for a new trial consist largely in hearsay evidence of Will Smith. This evidence was inadmissible had a new trial been granted. The other facts set ont in the motion are largely cumulative.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J. McCulloch, C. J.

text:
    Skiles v. State.
    Opinion delivered October 31, 1921.
    1. Animals-stock law district — election.—Where a special act creating a stock-law district provided that the act should not be in force until approved by a majority of the electors, and that the election commissioners should file with the county clerk a certificate showing the result of the election, in a prosecution for permitting stock to run at large in violation of the act, it was not competent for defendant to prove, by parol evidence that the election was not held as prescribed by the statute, as the certificate of the election commissioners is the best evidence of the adoption of the law by the voter, an'd is not subject to collateral attack.
    2. Animals — stock law district — boundary fence. — Under special act No. 657 of 1919 creating a stock-law district in Randolph County, the operation of the district is not made to depend upon the construction of a boundary fence.
    3. Evidence — judicial notice of special statute. — The adoption of the terms of a special statute by an election of the people is a matter of which the court takes judicial notice.
    4. Evidence — judicial notice of municipal ordinance. — The court cannot take judicial notice of the ordinances of a municipal corporation.
    Appeal from Randolph Circuit Court; D. II. Golemcm, Judge;
    affirmed.

      Pope & Bowers, for appellant.
    Act 657 of 1919 is not in effect, and the penal provisions thereof could not be violated for two reasons: first, the fence required to be built before the taking effect of the act has never been built; second, no election was ever held as provided by sec. 44 of the act.
    The burden was on the State to allege and prove that the fence had been built. A proviso in the enacting clause of a statute must be negatived in the indictment, and snob, negative allegation sustained by proof. 77 Ark. 139. Must also be construed in connection with tbe section of which it is made a part. Lewis & Sutherland Stat. Con., sec. 352. Tbe provision in this case, relating to tbe building of tbe fence, means that tbe creation of tbe district is held in abeyance until such fence is built.
    Tbe order of tbe county judge calling tbe election and tbe election itself were void. Such order is subject to collateral attack. 143 Ark. 465.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Appellant is in no position to complain that certain documents desired by him were not produced in evidence, since bis motion therefor was never presented to tbe court, and no ruling bad thereon; neither was it assigned as error in tbe motion for new trial. 138 Ark. 613. The record proper and what purports to be tbe bill of exceptions are in conflict. Where such conflict appears tbe presumption is in favor of tbe record. 1 Ark. 349; 9 Ark. 133; 17 Ark. 332; 23 Ark. 131; 24 Ark. 499; 83 Ark. 517; 108 Ark. 191. Defendant did not offer any testimoney in bis behalf, and a verdict was properly directed against him.
   McCulloch, C. J.

'The appellant was indicted and convicted of tbe offense of allowing stock to run at large in a stock-law district in Randolph County.

Tbe statute creating tbe district (Act No. 657 of tbe Session of 1919) is a special act creating tbe district in Randolph County, but providing that tbe district shall not be put into operation unless approved by a majority of tbe legal voters in tbe territory at a special election ordered by tbe county court upon petition of 125 voters in tbe district. The statute provides that, if a petition signed by 125 electors of tbe district be filed in tbe office of tbe county clerk of Randolph County, tbe judge shall call an election in tbe district to determine whether “a majority of the legal voters in said district are in favor of this act,” and that tbe election shall be held at the place or places in the district named in the petition and on the date fixed in the order made by the county judge. The details and method of conducting the election are prescribed in the statute. The election commissioners of the county are required to canvass the returns, and, within ten days after the election, to file in the office of the county clerk a certificate showing the result of the election. It is provided that “if a majority of the legal voters of said district voting in said election shall vote for no fence or stock law, as hereinbefore set forth, then this act shall be in force.”

It was conceded by appellant in the trial of the case that be had permitted his stock to run at large inside the boundaries of the district, but he sought to prove, as a defense, that the election was not held as prescribed by the statute, and that the boundary fence had not been constructed in accordance with the terms of the statute. The court excluded the offered testimony, and, nothing else being offered in defense, the court charged the jury peremptorily to return a verdict finding appellant guilty.

The court was correct in refusing to admit testimony concerning the election to be held putting the law into operation in the territory mentioned. The certificate of the election commissioners is the best evidence of the adoption of the law by the voters of the district, and, if regular on its face, is not subject- to collateral attack in a prosecution for violation of the terms of the statute. Any other view of the matter would prevent an enforcement of the’ law, and the guilt or innocence of the accused would depend upon the degree of proof as to the validity of the election. l'A criminal prosecution under the statute could, in other words, be converted into a contest over the election. There was no offer to, prove that no certificate was filed by the election commissioners nor that the election, according to the certificate, was irregular.

The other defense offered by appellant is equally untenable. The statute does not make the operation of the district depend, as a condition precedent, upon the construction of a boundary fence. In„ this respect the statute is quite different from the general statute authorizing the creation of stock-law districts, as construed by this court in Hill v. Gibson, 107 Ark. 130. The general statute provides that it shall be unlawful for any owner to permit stock to run at large in a district formed thereunder “after any fencing district has been enclosed by a good and lawful fence.” Crawford & Moses’ Digest, § 4684. The special statute now under consideration contains no such condition, but it declares unconditionally that it shall be unlawful for any owner of stock or cattle to permit such animals to run at large beyond the limits of his own land in the district, and that any person, firm or corporation who shall knowingly permit any such animal to run at large within said territory shall be guilty of a misdemeanor.

Our conclusion is therefore that there was no valid defense offered, and, according to the undisputed evidence, appellant was guilty of a violation of the statute..

The court was correct in its ruling, and the judgment is affirmed.

OPINION ON REHEARING.

McCulloch, C. J.

Counsel for appellant contend now, as they did on the original hearing here, that the judgment is unsupported by sufficient testimony, in that the State failed to prove that the stock law enacted by the Legislature had been put into operation 'by vote of the people as prescribed by that statute. We overlooked that contention and failed to discuss it in the original opinion.

Our conclusion on this subject is that the adoption of the terms of the statute by an election of the people is a matter of which the court should take notice judicially. It is a law in operation in a locality which was within the, jurisdiction of the court, and the court should take cognizance of it without the necessity of it being brought to the attention of the court by proof. Kansas City Southern Ry. Co. v. State, 90 Ark. 343; Cazort v. State, 130 Ark. 453. This is unlike the ordinances of a municipal1 eoropration, which must be proved, and of which the court cannot take judicial notice. Strickland v. Little Rock, 68 Ark. 483.

Such ordinances are enacted by sub-agencies of government, and are unlike the adoption or putting into operation of enactments of the Legislature. The matter of the adoption of the statute was one of public record, of which all persons were compelled to take notice, and the court should likewise know judicially whether or not the statute is in operation. Of course, the trial court could, and we assume that it did, make its knowledge real by an ascertainment through proper channels whether or not there had been an election. It is not contended here that there is no certificate of the election commissioners on file evidencing the fact that an election, was held. This view of the matter gives certainty to the enforcement of the law, and does not leave to mere chance the proof of the facts to show whether or not the law .is in force. The court should determine from its knowledge acquired from taking notice of the certificate of the election commissioners that there had been an election, and that the district was de facto in operation. On the other hand, it was the right of the accused to show to the court that no such certificate had been filed. But, as we stated in the original opinion, it was not proper to permit the appellant to attack the validity of the district collaterally.

For these reasons rehearing will be denied.


author: McCulloch, C. J.

text:
    Hickey v. State.
    Opinion delivered October 31, 1921.
    Bail — belief from forfeiture. — Under Crawford & Moses’ Digest § 2974, providing that “if, before judgment is entered against the hail, the defendant is surrendered or arrested, the court may, at. its discretion, remit the whole or part of the sum specified in the bail bond,” a discretion is lodged in the trial court to determine whether or not the sum mentioned in the bond, or any part thereof, shall be remitted, and, while this discretion should be fair- - ly exercised upon the facts of a given case, the mere fact that the principal in the bond has been surrendered into custody by the bail does not entitle the bail, as matter of right, to a remission of the penalty of the bond.
    Appeal from Sebastian Circuit Court, Ft.' Smith District; J ohm Brissolara, Judge;
    affirmed.

      James Seaborn Holt, for appellant.
    The court erred in refusing to set aside the forfeiture on the bond, and thereby abused its discretion granted under the act. Crawford & Moses’ Digest, Sec. 2974; 3 Amer. & Eng. Ency. of Law, (2nd Ed.) p. 724; 176 Fed. 672; 20 A. & E. Ann. Cas. p. 1255; 9 A. & E. Ency. of Law, (2nd Ed.) p. 473.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The decision of the trial court upon the facts is, in legal effect, the equivalent of the verdict of a jury and is not subject to review upon this appeal. 48 S. E. 604; 59 Southern 718.
    The forfeiture of the bail bond was strictly within the provisions of the statute; and there was no abuse of discretion. Crawford & Moses’ Digest, § 2974; 25 Ark. 315; 3 R. C. L. p. 65.
    The power of the court to declare a forfeiture is not questioned.
   McCulloch, C. J.

Appellant became bail for one Hagan, who was under indictment in the circuit court of Sebastian County, Fort Smith District, on the charge of felony, and when the principal failed to appear the court declared a forfeiture on the bond. Thereafter, during the term, the principal was taken into custody through the efforts of appellant and lodged in jail awaiting trial under the indictment.

This is a summary proceeding on the bond, and appellant pleads the right of discharge from liability on the ground that he was not at fault and was instrumental in returning the principal to custody after the forfeiture. A statute on this subject reads as follows:

“If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.” Crawford & Moses’ Digest, § 2974.

The answer of appellant contains the following:

“That, immediately upon learning that the defendant, Verda Hagan, had not appeared at the date set for her trial, this defendant immediately endeavored to locate her, and finally did locate her in the city of San Antonio, in the State of Texas, at a cost to himself : of $175, and returned her from said city to the city of Fort Smith, where he delivered and surrendered her to the jailer of Sebastian County for the Fort Smith District, on the 31st day of March, 1920, and during the same term of court at which her case was set for trial, and that she has remained in jail ever since said date; that two terms of this court have intervened since March, 1920, and that no trial has been had.”

The matter was heard by the court upon the pleadings, without introduction of testimony, and the court proceeded to render judgment against appellant for the amount of the bond.

It is conceded that under the statute it is a matter of discretion with the court whether or not the penalty of the bond, or'any part thereof, shall be remitted, but the contention is that, on the facts recited in the answer, the refusal of the court to remit any part of the bond constituted an abuse of discretion. The statute plainly lodges a discretion in the trial court to determine whether or not the sum mentioned in the bond, or any part thereof, shall be remitted, and this discretion should be fairly exercised upon the facts of a given case. The mere fact that the principal in the bond has been surrendered into custody by the bail does not entitle the bail, as a matter of right, to a remission of the penalty of the bond. 6 Corpus Juris 1053.

The substance of the answer is nothing more than that appellant, at his own expense, returned the principal in the bond to custody, and, as before stated, this does not necessarily call for a remission of the penalty. It devolved upon appellant to establish facts to justify favorable action in the exercise of the discretion authorized by the statute, and, even if the facts set forth in the answer are accepted as true, that does not necessarily show an abuse of the court’s discretion.

The judgment is affirmed.