author: Mehaffy, J. Johnson, C. J.,

text:
    LaFargue v. Waggoner.
    4-3692
    Opinion delivered October 8, 1934.

      M. F. Elms, A. G. Meehan and John W. Moncrief, for petitioner.

      G. W. Botts, Geo. E. Pike and W. A. Leach, for respondent.

      Jeta Taylor, J. E. Yates and Benson & Woolsey, amici cv,riae.

   Mehaffy, J.

The primary election was held on August 14, 1934. In Arkansas County there were several candidates for sheriff, and no one of them received a majority of all the votes cast in said primary election for sheriff and collector, and the Democratic Central Committee, on August 15, 1934, decided that C. C. Mc-Callister and Lloyd LaFargue had received the highest numbers of votes cast in said primary election for said office, and they were each declared to be eligible as candidates for the nomination to said office in the run-off primary which was held on August 28, 1934. After the run-off primary the Arkansas County Democratic Committee canvassed the returns and certified that LaFargue had received 2,102 votes and McCallister 2,037 votes, and declared LaFargue the nominee of said primary election.

On September 4, 1934, C. C. McCallister filed a complaint against Lloyd LaFargue in the Arkansas Circuit Court to contest said election and the certificate of nomination. He alleged in his complaint that the plaintiff and defendant, together with J. A. McKay, W. C. Wood-son, Eddie Hughes and Abbott Trice were candidates on August 14, 1934, for the Democratic nomination for the office of sheriff and collector of Arkansas County; that neither of the above-named persons received a majority of all the votes cast in said primary election, and, this fact having been ascertained by the Democratic Central Committee, and the committee having- ascertained that plaintiff and defendant had received the highest number of votes cast in- said primary election for said office, they were by said committee declared and certified to be eligible as candidates for the nomination to said office in the run-off primary to be held subsequently. Plaintiff and defendant were candidates in said run-off primary held on August 28, 1934. On August 31, 1934, the central committee canvassed the returns and declared that defendant had received 2,102 votes, and that the plaintiff had received 2,037 votes, and declared the defendant the nominee, and so certified him to be the nominee. Plaintiff denied that defendant was the nominee; denied that he had received 2,102 votes, and alleged that in one township 125 qualified electors each cast his ballot for the plaintiff, and that each of said ballots were counted for the defendant. The list of names of these 125 voters was attached as exhibit A to the complaint, and made part thereof. Plaintiff alleges that numbers of other persons voted for the defendant who were not qualified electors. He also alleges irregularities in the handling of the vote of Keaton Township. Irregularities are also alleged in the primary election in the town of DeWitt, and it is alleged that illegal votes were cast and counted for the defendant. It is also alleged that persons living in Prairie Township voted in DeWitt, and voted for the defendant. It is further alleged that of the total number of votes cast in said primary election, plaintiff received 2,237, and the defendant not more than 1,838, giving the plaintiff a majority of 399 legal votes, and he asked that the returns of the election be purged of all illegal votes, and that he be declared the nominee. The complaint was supported by more than ten persons, each of whom swore that he was a reputable citizen of Arkansas County, a member of the Democratic party, and qualified elector of Arkansas County.

On September 10, 1934, an amendment was filed by plaintiff, naming'the persons whom he alleges voted for the defendant who were not qualified electors. He alleges that plaintiff is a resident of, and qualified elector' in Arkansas County, and is and was at the time of the voting, qualified to hold the office of sheriff and collector.

On September 12, 1934, the defendant filed a demurrer to plaintiff’s complaint, in which, he stated, first, that the complaint fails to state facts sufficient to constitute a cause of action; second, that the complaint fails to state facts sufficient to confer jurisdiction on the court to grant any relief to plaintiff. On the same day, September 12, defendant filed a motion to dismiss, in which he set up the same grounds that he did in his demurrer, and, in addition to these, that the complaint was not verified as required by law, and that the amendment to the complaint was filed after the expiration of ten days.

Thereafter, on 'September 17, 1934, the defendant filed an amendment to his motion to dismiss, setting up numerous grounds in addition to what he had already alleged.

On September 21st the court overruled the demurrer and also overruled the motion and amendment to motion to dismiss, and held that the court had jurisdiction to proceed to a hearing and determination of the case. Thereupon the defendant announced that he would apply to this court for a writ of prohibition, and on September 21st filed his petition for a writ of prohibition against W. <7. Waggoner, circuit judge, and C. C. Mc-Callister, prohibiting the circuit court from exercising jurisdiction.

The parties have filed lengthy briefs, and we will not undertake to review all the authorities to which attention has been called by the parties.

It is earnestly contended that act No. 38 of the Acts of 1933 does not provide for any contest. It is true that it does not say anything about contesting the run-off primary, but the sole purpose of the original law authorizing a contest is to secure the certification and nomination of the person who has received the highest number of legal votes. Before the passage of act 38 the person receiving the highest number of legal votes in a primary election was declared the nominee and certified as such, 'although he might not have received a majority of all the votes. There might be so many candidates in the race for any particular office that the one getting the highest num■ber of votes would have a very small per cent, of the total vote, and it was to remedy this condition that the Legislature passed act 38, the purpose being to certify no one as the nominee of the party unless he had received a majority of all the legal votes cast. The purpose of the primary election law is to enable, a political party to hold a legal election and certify the person as nominee who receives the greatest number of legal votes. Act 38 was passed to correct the evil above-mentioned, and is a part of the system providing for primary elections, and must be construed with the original act authorizing primary elections. While the act does not say so in so many words, this is an amendment of the primary election law. Prior to the passage of this act, the law provided for contesting the election.

“In the construction of amendments to statutes, the body enacting the amendment will be presumed to have had in mind existing statutory provisions and their judicial construction, touching the subject dealt with. The amendatory and the original statute are to be read together in seeking to discover the legislative will and purpose, and, if they are fairly susceptible to two constructions, one of which gives effect to the amendatory act, while the other will defeat it, the former construction should be adopted. ” 25 E. C. L., 1067.

Statutes must have a rational interpretation to be collected, not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or liberal, depending upon the interests with which it deals.” 25 E. C. L. 1077.

It would be unreasonable to suppose that the Legislature intended to provide for a run-off primary and prohibit a contest, because, if it prohibits one at all, it prohibits, no matter how much fraud might be practiced in the run-off primary. The purpose of the primary law and the provisions for contesting is to secure fair elections, and the nomination of the candidate who receives the highest number of legal votes. Under the original law, as we have already said, one receiving a plurality, no matter how small, was declared the nominee. It was evidently the intention of the Legislature to remedy this particular evil, and to amend the general law in that respect. It provides that no person shall be declared the nominee of any political party at any primary election unless such person has received a majority of all the votes cast at such primary election, and that is the only difference between act 38 and the law as it was before.

Act 38 also provides that the second primary election shall be conducted according to the law prescribed for conducting the general primary election, and we think this means that the law prescribed for conducting the general primary election governs in every respect, except that the candidate, in order to get the certificate of nomination, must get a majority of all the votes cast.

The original act provides not only for the election to be held on a certain day, but it also provides that special primary elections may be called to fill vacancies, and that this law shall govern the same as far as applicable. There is nothing in the section providing for special primaries about a contest.

Section 12 of the initiated act provides that a right of action is conferred on any candidate to contest the certification of nomination or the certification of the vote.

There is a well-established principle of law which applies to the construction of constitutions as well as statutes, and that is that a statute extends by inference to cases not originally contemplated, when it deals with a class within which a new class is brought by later statutes. Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74; Nations v. State, 64 Ark. 467, 43 S. W. 396.

Act 165 of the Acts of 1909 makes primary elections legal elections. The initiated act of 1917 was amended by act 19 of the Acts of 1919, fixing the time to hold the general primary election. This amendment, however, provided for special primary elections to fill vacancies, but nothing was said about a contest. Yet this court has held that the law applies to special elections.

In the case of Terry v. Harris, 188 Ark. 60, 64 S. W. (2d) 80, the court said: “It is true the election here contested is a primary specially called to nominate a single candidate, and is not a general primary election; bnt this fact does not alter the law of the case. The statute must receive the same interpretation in either case.”

"We have repeatedly held that the statute providing for contesting elections should be liberally construed, the purpose of the contest being to determine which candidate received the greatest number of votes. To hold that a contest could not be had in the run-off primary would defeat the very purpose of the law providing for a contest.

The law provides: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee.” That necessarily means any candidate and in any primary election.

Act 38 provides that the second primary shall be conducted according to the law prescribed for conducting the general primary election, and that the candidate receiving the majority of all the votes cast shall be declared the nominee.

“Statutes in pari materia are those which relate to the same person or thing, or to the same persons or things, or which have a common purpose; and, although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting. one law, although they were enacted at different times and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the Legislature, or to discover how the policy of the Legislature with reference to the subject-matter has been changud or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the Legislature as disclosed by a general course of legislation. With this purpose in view therefore, it is proper to consider, not only acts passed at the same session of the Legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.” 59 C. J., 1042.

Manifestfy the intention of the Legislature, in enacting the primary election law, was to make the primary election legal, prevent fraud and corruption in elections, to see that the people’s choice in the election should have the office, and to provide for a contest wherever charges of fraud or mistake in elections change the result. We think there can be no doubt that it was the intention, in passing act 38, to secure the rights above mentioned, and not to prevent a contest in order to determine whom the people had elected.

It is next contended that the complaint did not state facts sufficient to constitute a cause of action or to give the court jurisdiction. As we have already said, the statute confers a right of action on any candidate. Crawford & Moses’ Digest, § 3772.

Section 3773 of Crawford & Moses’ Digest provides, among other things: “If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in session or is to convene within 30 days, call a special term,” etc.

We have set out above substantially the allegations in the complaint for contesting the election. The petitioner contends that the court has no jurisdiction, first because it is- said the complaint is not verified. The statute provides not that the plaintiff shall verify his complaint, but that the complaint shall be supported by the affidavits of ten reputable citizens. This was done.

It is argued that the complaint is not sufficient to give the court jurisdiction because the plaintiff did not set out the number of votes received by each candidate in the general primary election, but the complaint does state that plaintiff was a candidate in the general primary election held on August 14, 1934, and names the other candidates for the office of sheriff and collector in that election, and states that neither of the candidates received a majority of all the votes cast. This conld mean but one thing, and that is that neither of them were nominated in the primary election on August 14. Then he alleges that the committee found that neither of them had received a majority, and also stated and certified that plaintiff and defendant received the highest number of votes in the general primary, and certified each of them as eligible candidates in the run-off primary.

We have held that there is a presumption that the election officers performed their duty, and they therefore would not have certified plaintiff and defendant as candidates in the run-off primary if they had not been éntitled to be so certified.

It is also contended by the petitioner that McKay, Woodson,-Hughes and Trice were necessary parties to the contest. Neither of these persons were candidates in the run-off primary. It is true that in the original complaint plaintiff did not allege that he was a member of the Democratic Party, but the allegations in the complaint clearly show that he must have been, because he alleges he was a candidate in the general primary, and that the Democratic Central Committee certified him as a candidate in the run-off primary. •

There are numerous other grounds set up in defendant’s motion to dismiss plaintiff’s complaint, which we do not deem it necessary to take up and discuss separately. All the questions raised by defendant in his motion to dismiss were questions that the. trial court had a right to inquire into and determine. The trial court had a right to determine the question of its jurisdiction; and wherever the jurisdiction of the trial court depends upon facts, the question must be decided by the trial court, from which decision either party may appeal to this court.

“It is well settled that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 42; Roach v. Henry, 186 Ark. 884, 56 S. W. (2d) 577; Crow v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030.

The questions raised by defendant’s demurrer and motion to dismiss were questions for the lower court, questions where the jurisdiction of the. court depended upon contested facts. The original complaint stated facts sufficient to constitute a cause of action; and if a motion to make more definite had been filed by the defendant, it is entirely probable that the court would have required the plaintiff to make his complaint more definite and certain, and plaintiff could amend his complaint after the ten days. '

This court has several times held that the statute providing for contesting elections should be. liberally construed. The purpose of the contest is to determine what candidate received the greatest number of- votes; and if there are sufficient facts stated to give the other party reasonable information as to the grounds of contest, then the case should be tried on its merits. If the complaint was indefinite and.uncertain, the court should require amendments to make it more definite and certain.

The pleadings in an election contest case should be sufficiently specific to give reasonable information as to grounds of contest. The statute provides that the contest shall be begun within a certain number of days, and this court has repeatedly held that, after the time for filing a contest has expired, the. contestant cannot so amend his complaint so as to set forth a new cause of action. He can, however, after the time has expired, amend his complaint by making it more definite and certain, as to any charge in the original complaint, and, if a motion to make more specific is filed, it would be his duty to make the amendment. Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450.

• We have also said in Robinson v. Knowlton, 183 Ark. 1133, 40 S. W. (2d) 450: “ Since such contest is generally held not to be a civil action, subject to rules of pleading in actions at law, but to be a special statutory proceeding, varying in its. nature as well as in the sufficiency of the pleadings, according to the statutes of the different States, the same strict, technical accuracy in pleading is not usually required as in civil actions inter partes. 20 C. J., 235.”

It has been said with reference to the pleadings that the rule must not be so strict as to afford protection to fraud, by which the will of the people is set at naught, nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause. Bland v. Benton, 171 Ark. 805, 286 S. W. 976; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382.

We have also said in a recent case: “The statute does not require supporting affidavits of the citizens to these permissible amendments. These amendments may be made without the supporting affidavits and after the expiration of the original ten days, when unreasonable delay in the trial of the cause will-not result therefrom.” Robinson v. Knowlton, supra; Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319; Wilson v. Caldwell, 186 Ark. 261, 53 S. W. (2d) 438.

The court of South Dakota, in passing upon the sufficiency of pleadings in an election contest, said among other things: “While the notice does not, in so many words, allege that plaintiff had been a candidate for the disputed office and that his name appeared on the printed ballot as such candidate, it does allege that he is a duly, qualified elector of said county and duly qualified to act as county auditor of said county; that the canvassing-board had made certain mistakes in counting- and canvassing- the vote; and that, had it not been for such errors in counting the ballots and other errors and irregularities set forth in said notice of contest, the said election would have resulted in a majority vote for plaintiff, and he would have been declared county auditor of Hanson County. From these facts but one inference can be drawn, and that his name was on the ballot. Otherwise he could not have received any votes at all.” Dobson v. Lindekugel, 38 S. D. 606, 162 N. W. 391; Hadley v. Gutridge, 58 Ind. 302; Rounds v. Smart, 71 Maine 380.

The court also said in the same case: - “The statute should receive a liberal interpretation to the end that such matters may be determined on their merits.”

Our conclusion is that the complaint stated a cause of action, and that defendant’s remedy was by motion to make more definite and certain.

The writ of prohibition is a discretionary writ. It is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that will be done-by such usurpation. Pacific Mutual Life Insurance Company v. Toler, 187 Ark. 1073, 63 S. W. (2d) 839; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31; United Mine Workers v. Bourland, 169 Ark. 796, 277 S. W. 546; Metzger v. Mann. 183 Ark. 40, 34 S. W. (2d) 1069.

It follows that the writ must be denied, and it is so ordered.

Johnson, C. J.,

(concurring). I concur with the majority that act 38 of 1933 is amendatory of prior primary election laws and that the initiated act of 1917 as amended by act 19 of 1919 is applicable thereto and gives a right of contest to all defeated candidates at such runoff primary election. For this reason only the application for prohibition should be denied.

The determination by the majority that the complaint of the contestant filed in the Arkansas Circuit Court is sufficient against demurrer is unwarranted. This question is not before us and cannot be until brought here by appeal. Equitable Life Insurance Society v. Mann, ante p. 751, and cases there cited.


source: Caselaw Access Project

license: Public Domain

text:
    Caradine v. State.
    Crim. 3895
    Opinion delivered October 8, 1934.

      Kenneth G. Goffelt and Wm. J. Kirby, for appellant.

      Hal L. Norwood, Attorney General, and Pat Melt affy, Assistant, for appellee.
   Mehaffy, J.

The appellant, Hiram Caradine, was indicted, tried and convicted for robbery, and sentenced to three years in the penitentiary. To reverse the judgment of conviction he prosecutes this appeal.

Dr. C. W. Jones testified in substance that on the morning of January 13, 1934, at about 2:15 o’clock, he was awakened by some one at his door, and'when he went to answer the doorbell, he found a man on the porch who informed him that he had been sent to ask the doctor to come to Haskell immediately to see one Louis Westbrook, a patient of his, who, the man said, was seriously ill. The man said he was from Little. Rock and had been sent as a messenger. Dr. Jones asked him if he was going back there, and he said, “Yes,” and that he would wait for Mm at the drug store and ride back with him. The man helped Dr. Jones clean the ice off of the windshield and they drove on highway 67 at about twenty-five miles an hour. Dr. Jones then saw a car coming out behind them, and started speeding up, going about thirty-five miles an hour. They traveled faster than the car behind, and the man, who the doctor afterwards learned, was Virgil Smith, said he was visiting some boys there, and to let him out. They were then close to the old Hot Springs Highway, and at this time the other car was some distance behind. Smith backed out of the door and pulled a gun on the doctor, and told him to raise his hands, and cursed him, and then the other car came up from behind. Some one carne running up and ordered witness to get out on the side. The doctor had driven to the side of the road at the intersection to let Smith out. The other man and Smith robbed witness. They took from him a $5 bill and $2 or $3 in silver, searched him for a gun, and Smith came around the car and got in behind the wheel and drove out on the Hot Springs highway. Brooks Brown, the other man, backed up against the windshield and kept witness covered with his gun. The other car then followed them out. They were going about thirty miles an hour. They cursed the doctor. The car behind dropped back and then picked up again, and, as they got past where 'Connie Smith lived, they turned off on a side road and ordered witness to get out and they tied him to a tree. It was cold, and Dr. Jones asked them to turn his coat collar up. He got loose before they got out of sight and ran up the road to Connie Smith’s, and Smith brought him to town. Witness never did see the party who drove the car behind, but knew there was a third party driving the car, as two of them, Smith and Brown, got in the car with him, and the other car followed them about three miles. He does not know whether the appellant was in the ear or not. It was a cold night and there was ice on the windshield. The sheriff, Mr. Rucker, got witness’ car back. The car was worth about $450. Louis Westbrook lives at Haskell, and witness was their family physician. Witness had no way of identifying the man in the rear car. He did not know Smith and Brown, but had seen Caradine, the appellant, before. It was Saturday morning, January 13th, when Smith went to witness’ house.

While Dr. Jones did not identify Caradine, Fred Newcomb, Y. L. Landers, C. H. Womack, Mary Jane Holder and Mary Westbrook all knew the appellant and saw him in Benton on Friday afternoon and Friday nig'ht, and it is shown by some of these witnesses that he left the pool hall after twelve o’clock Friday nig’ht, and he and Smith and Brown got into a car and rode away, and the same car was seen with three men in it up until two o’clock Saturday morning.

The appellant testified very positively that he had nothing to do with the robbery, and that he left Benton at ten o’clock Friday night and walked home; that he went by his uncle’s house and spoke to him, and his uncle testified to the same facts.

The evidence also shows that Smith, Brown and the appellant had been together, and that ¡Smith and Brown had stayed at appellant’s house on Thursday night before the robbery.

Appellant contends first that the evidence was not sufficient to sustain a conviction. It is true that Dr. Jones did not recognize appellant, but Fred Newcomb' knew Caradine, and testified that Caradine, Smith and Brown came into his filling station Friday night about ten o’clock, and that he spoke to appellant; that they were in a car.

C. H. Womack testified that appellant and Smith and Brown were in his pool room until after twelve o’clock Friday night.

Y. A. Rucker, the sheriff, knew the three parties, and after the robbery he was called at about 3' :20 in the morning, and afterwards went to Oklahoma and found Dr. Jones’ car and also found Smith and Brown,

Mary Jane Holder testified that she knew the appellant and Smith and Brown, and saw Smith and appellant in Benton, Friday afternoon about five o’clock. They were in a car but witness did not know whose car. She had met both Smith and Brown through appellant.

May Westbrook knew the parties and testified that she was at the appellant’s home on Thursday morning before the robbery, and that Smith and Brown were also at appellant’s home, and that they all left together.

The testimony of the witnesses for the appellant is in direct conflict with the testimony of the witnesses for the .State. The witnesses for the State show that the appellant was in Benton after twelve o’clock; their testimony shows that he got in a car with Smith and Brown at 12:20, and the same car was seen by witnesses with three men in it, and while the witnesses did not recognize all three men, they did recognize the car and Smith as the driver. But, if the State’s witnesses are telling the truth, then the testimony of the appellant’s witnesses could not be true. If appellant was in Benton after twelve o ’clock, he could not have left there at ten o ’clock, and have been at his home, eight miles from there, at twelve o’clock.

The jury evidently believed the State’s witnesses, and, if they did, they could not believe the appellant’s witnesses, and it was a question for the jury, and not for this court.

We recently said: ‘ ‘ The testimony was entirely circumstantial, but, if believed, it was sufficient to justify the jury in finding the appellant guilty. The jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty. ’ ’ O ’Neal v. State, 179 Ark. 1153, 15 S. W. (2d) 976.

We think that the testimony of the State’s witnesses that appellant and Smith and Brown got into the car after twelve o’clock and were seen to drive on the streets of Benton, and that thereafter they saw the same car with three men in it, driven by Smith, was sufficient, if the jury believed it, to warrant the finding that the appellant was with Smith and Brown at two o’clock, just before Smith went to Dr. Jones’ door.

Appellant cites and relies on Bowie v. State, 185 Ark. 834, 49 S. W. (2d) 1049. The court there was discussing circumstantial evidence, and it said, among other things: “This character of evidence, however, has certain disadvantages. A jury has not only to weigh the evidence and the credibility of the witnesses, but to draw just conclusions from the circumstances in proof, and in doing so it may, by want of due deliberation, make hasty and false deductions and be swayed in its judgment by prejudice or partiality. This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused.”

Among the circumstances relied on in this case are the following, about which there can be no dispute: the appellant was raised in Haskell community; he knew Dr. Jones and Louis Westbrook, and knew that Jones was Westbrook’s family physician; he was with Smith and Brown Thursday night at his home; he was with them in Womack’s pool hall Friday night until after twelve o’clock; he left the pool hall and got into the car with Smith and Brown; they drove away together, three of them being in the car; they were seen driving on the streets of Benton several times after that; the same car was seen with three men in it as late as two o’clock; Smith and Brown did not know Jones, and shortly after two o’clock Smith went to Jones’ door and told him that Westbrook at Haskell was seriously ill, and wanted him to go at once; he and Dr. Jones started in Dr. Jones’ car; another car followed them; when they got about one-half of the way to Haskell, Smith got out of the car and drew a gun and Brown came up from the rear car, and they robbed Dr. Jones and tied him to a tree, and then drove Jones’ car away, and the other car followed; Smith and Brown neither were in the other car; somebody was in the other car and started it and drove it, following Dr. Jones’ car.

We think the circumstances show conclusively that this driver of the other car was appellant. There can be no reasonable doubt that it was the appellant, if the witnesses for the State have told the truth, and, as to whether they have or not, the jury, and not this court, is the judge.

This court recently said: “The court correctly refused to direct a verdict for appellant, Oliver, for the reason that he was not present when the other two robbed Greren. It is true that Oliver was some distance away guarding the other victims, but it is also true that they were all three participating in the same common purpose, all being conspirators, having the common purpose of committing the crime of robbery. In such case the act of one would be the act of all.”

The appellant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the. circumstances introduced in evidence beyond a reasonable doubt that the defendant is guilty, it is the duty of the jury to find him guilty, just as it would, if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. Scott v. State, 180 Ark. 408, 21 S. W. (2d) 186; 2 Nichols’. Applied Evidence, § 4, 1065; Underhill’s Criminal Evidence, 14 and 16; Spear v. State, 184 Ark. 1047, 44 S. W. (2d) 663; Kellogg v. State, 153 Ark. 193, 240 S. W. 20; Williams v. State, 153 Ark. 289, 239 S. W. 1065.

It is next contended by appellant that instruction No. 2 should not have been given. It reads as follows: “You are instructed that if you should find from the evidence in this case beyond a reasonable doubt that the defendant, Hiram Caradine, in Saline County, Arkansas, and within three years next before the filing of the indictment of the case, did, as alleged in said indictment, by force or intimidation steal, take and carry away feloniously and violently the said automobile and seven dollars lawful money of the United States, the personal property of one Dr. €. W. Jones, you will find the defendant guilty and fix Ms punishment in the State penitentiary at a period of not less than three years nor more than twenty-one years. ’ ’

No error was committed in giving this instruction. Maxwell v. State, supra.

This court does not pass on the credibility of the witnesses nor the weight of their testimony. These are questions for the jury.

We find no error, and the judgment is affirmed.

Johnson, C. J.,

(dissenting). I cannot give my assent to the affirmance of this case. Human rights and liberties should not be taken upon mere conjecture and speculation. Until recently human rights to life, liberty and property were thought to be sacred, but such inroads have recently been made upon these sacred rights that they now appear to be forgotten. The Declaration of Rights provides in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial * * * and be confronted with the witness against him. When jury verdicts are permitted to stand which rest solely upon conjecture and speculation, this wholesome constitutional guarantee is violated.

Moreover, § 3184, Crawford & Moses’ Digest, provides, where there is a reasonable doubt of the defendant’s guilt upon the testimony in the whole case, he is entitled to an acquittal.

Since statehood, and long prior thereto, it has been the rule in this State that in all criminal cases dependent upon circumstantial testimony the guilt of the accused must be established to the exclusion of every other reasonable hypothesis. Cohen v. State, 32 Ark. 226; Benton v. State, 30 Ark. 328.

In the instant case, giving the testimony upon behalf of the State full credence, it falls far short of the established law. No witness saw the accused after about 12 o’clock prior to the robbery, and the victim does not insinuate that the accused had anything to do with the crime. True, accused was seen in Benton on the night before the robbery, but, even so, the robbery was committed some eight miles from Benton. It is true that accused was born and reared near Benton, but, even so, thousands of other law-abiding citizens were likewise so born and reared, including the learned Justice who has written the majority opinion. It is also true that appellant knew both Brown and Smith immediately prior to the commission of the crime, but just why he should be convicted of this crime because of this is not reflected in the opinion. If appellant is to suffer because of his acquaintance with Brown and Smith prior to the commission of the alleged crime, then of necessity the fathers and mothers, brothers and sisters, and all acquaintances of Brown and Smith should likewise be indicted, tried and convicted.

In the majority opinion.much stress is laid upon appellant’s testimony in reference to his whereabouts on the night of the robbery. It may be that appellant committed perjury while testifying, but just why this should be considered on this appeal is not pointed out in the opinion. I have always understood that the burden was upon the State to establish the guilt of an accused beyond a reasonable doubt, and this is the only legitimate question before us on this appeal. The weakness of the State’s case should not be bolstered up by the falsity of the accused’s defense. The question and only question presented here for consideration is, was appellant present, aiding, abetting or assisting in the robbery of Dr. Jones? If he was, he should be convicted. If not, he should be acquitted. No witness testified as a fact or detailed any circumstances tending to show that appellant was present or that he aided, abetted or assisted Brown and Smith in the commission of this crime.- No witness by testimony got appellant nearer the scene of this crime than Benton or saw him, for that matter, within three hours of the commission of the crime. The illogic of the situation is apparent. The mere fact that appellant knew Brown and Smith prior to the commission of the alleged crime is not even a circumstance tending to establish his guilt. The mere fact that appellant was in Benton the night preceding the commission of the crime does not prove or tend to prove his connection therewith. The mere fact that appellant was seen in company with Brown and Smith some hours prior to the commission of the robbery is a mere circumstance tending to show his lack of discretion in selecting his associates and is no evidence of his guilty knowledge of the alleged crime. Neither should appellant be convicted merely because he was reared in Saline County or happened to be in Benton the night preceding the robbeiy. Human liberty is now jeopardized by a verdict which rests solely upon conjecture, surmise and caprice.

When Fox v. State, 156 Ark. 428, 246 S. W. 863, was affirmed in this court, and human liberty was taken upon the testimony of a rabbit hound, corroborated however by finding stolen merchandise upon the premises of the accused, it was generally thought by the profession that the limit had been reached. Subsequently in Jones v. State, post p. 825, when this court affirmed a judgment and verdict which rested solely upon the smell of whiskey corroborated by the discovery of some broken glass in the appellant’s car, I thought assuredly the limit had been reached, but alas, these cases are merely the beginning of a crusade against human liberty.

If the doctrine now announced is adhered to by this court, no citizen’s liberty is secure, but rests wholly and solely upon the prejudices and passions of juries, actuated by good or bad motives and limited only by fear of reprisals. Indeed, the time has come when we should re-dedicate the Declaration of Rights and give to constitutional government its paramount purpose, and only justification — the protection of human liberty, the right to own property and the pursuit of happiness.

This case should be reversed and dismissed.


author: McHaney, J.

text:
    Arkansas Foundry Company v. American Portland Cement Company.
    4-3526
    Opinion delivered October 8, 1934.

      Barber & Henry and J. A. Tellier, for appellant..

      Shaver, Shaver & Williams, for appellee.
   McHaney, J.

This is an action by appellant to enforce a mechanic’s lien on the buildings and improvements constituting the plant of appellee, American Portland Cement Company, and on one acre of land on which a portion of said plant is located, on an account for $33,-908.90 for labor and material furnished and sold by appellant to said appellee. The account with affidavit for lien was filed with the circuit clerk of Little River County July 11, 1930, and showed that material and labor were furnished between February 28, 1929, and May 23, 1930, the last material sold being on the latter date. The affidavit for lien stated that the materials furnished were used in the construction of the buildings and improvements located on seven forty-acre tracts, describing them by legal descriptions in sections 16, 21 and 28 in township 12 south, range-32 west, which together made a tract of land one-fourth mile wide and one and three-fourths miles long running north and south. Within fifteen months thereafter, on June 15, 1931, appellant brought suit to foreclose its lien and for judgment against said appellee, and in apt time an answer of general denial was filed. Thereafter appellant on November 7, 1932, amended its complaint giving a detailed description by metes and bounds of the exterior boundary of the land on which the plant was constructed consisting of 3.34 acres actually covered by the improvements constituting the plant. It then described in detail the exterior boundary line of a strip of ground one foot wide surrounding the 3.34-acre tract above mentioned containing .99 of an acre. A second paragraph in said amend-. ment describes by metes and bounds a one-acre tract on which a large portion of the cement plant is located, stating that the plant covers more than one acre. It prayed, first, that it be decreed a lien on the buildings and improvements and on the actual land covered by the' plant and the .99 of an acre surrounding it; or, second, in the alternative, that it have a lien on the plant consisting of various connected buildings and plant equipment and upon the one-acre tract last above mentioned. Thereafter on November 21,193'2, a consent decree was entéred giving appellant judgment against said appellee for $32,-309.04, with interest at 6 per cent, from February 1,1930, and a lien was fixed “upon the buildings, erection, improvements and plant of the American Portland Cement Company located upon the following described land, to-wit”; (describing the same seven forty-acre tracts as originally described in the complaint). The decree then continues: “And it is agreed between the plaintiff and defendant, in addition to the lien upon the said plant, that the plaintiff is to have a lien upon the following described land upon which a portion of the plant is located, i. e., upon one acre surveyed and described as follows: ’ ’ describing a tract of land lying nearly north and south, 726 feet long by 60 feet wide, and being the acre described in paragraph 2 of the amendment to the complaint. The decree further recites an agreement to stay execution for six months during which time the cement company might satisfy said judgment by paying appellant 50 per cent, thereof in cash and '50 per cent, in first mortgage real estate bonds, “of the present issue,” which should be a first lien against its properties after satisfaction of the judgment then rendered. Decree was entered accordingly.

The bonds mentioned “of the present issue” referred to bonds secured by a deed of trust dated October 6, 1931, and recorded October 13, 1931, in which appellee Duke was named trustee.

Appellee cement company failed to pay the judgment above mentioned within .the six months as provided in said decree, and on May 22, 1933, appellant had a special fieri facias issued against the lands and improvements described in the decree of November 21, 1932, and, upon the motion of the cement company to recall same, the court made an order granting* another stay of execution of three months from May 22, 1933, upon the payment to appellant of $500 in cash which was then made in open court, and if it should pay $5,000 at the end of three months, then another stay of three months should be granted, or six months from May 22, at which time it should pay appellant the balance of its judgment, interest and costs, else execution should issue therefor. Before the expiration of the time for payment of the $’5,000, certain persons intervened, claiming title to certain machinery sold the cement company under title retaining notes and praying appellant be enjoined from levying execution on the property to which they claimed title. The court enjoined appellant from levying on the property claimed by interveners. Appellee Duke was made a party by interveners, and it developed on the hearing of appellant’s motion to dissolve the .temporary restraining orders that he was claiming title superior to the lien of appellant. Thereafter issue was joined hy appropriate pleadings between appellant and appellee Duke, the latter contending that he was a necessary party to all the proceedings had, and that, since he had not been made a -party until October, 1933, he was not bound thereby; that no lis pendens notice was filed of the materialman’s lien, and that he had no notice of appellant’s claim of lien at the time of the execution and recording of the deed of trust to him; that the affidavit for lien filed by appellant on July 11, 1930, did not properly describe any particular one acre of land on which appellant sought to establish a lien and was void for that reason; that he was not a party to the suit to foreclose said lien and was not bound; that the. complaint in said action did not describe the land sought to be charged with said lien, and that the amendment describing one acre was not filed until more than fifteen months after the affidavit for lien was filed and the proceedings thereunder were void; and other grounds to defeat the lien were set up. He alleged the mortgage to him is a prior and paramount lien on the plant and lands of the cement company because a valid mechanic’s lien was not established.

On the issues thus joined between appellant and Duke, hereinafter referred to as appellee, the court found, on evidence in which there is very little if any dispute on the vital questions, that appellee’s deed of trust is a valid and subsisting lien on the property of the cement company, subject to the title of certain interveners in certain specific personal property, and that it is prior and paramount to the lien and judgment of appellant as theretofore, decreed by the court on November 21, 1932. It further held that appellant did not have a mechanic’s or materialman’s lien against said lands, premises, improvements or property of the cement company, and that its petition and action against appellee should be dismissed for want of equity. This appeal followed.

We have stated, the case rather fully in order to give a history of the litigation. The questions involved are principally, if not entirely, questions of law which have frequently been decided by this court. One of the contentions by counsel for appellee is that the description of the land in the affidavit for lien and in the original complaint was too indefinite and uncertain, did not describe any particular acre of land and, therefore, no valid mechanic’s lien could be predicated thereon. Section 6906, Crawford & Moses’ Digest, provides that persons furnishing labor or material for any building, erection or improvement upon land, “upon complying with the provisions of-this act, shall have for his work or labor done or materials * * * furnished, a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor, on which the same are situated to the extent of one acre.” Section 6922, Crawford & Moses’ Digest, provides that the lien claimant shall file with the circuit clerk “a just and true account of the demand due and owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.” The affidavit for lien filed states that the materials furnished, as shown by the itemized statement and duplicate invoices, “were furnished for and were used in the construction of the plant and buildings” of the cement company located on seven forty-acre tracts described, and a lien was claimed on said property, on both improvements and land. We are of the opinion that the affidavit for lien sufficiently described the improvements of the cement company as to afford information concerning the situation of the property to be charged with the lien, and that it is sufficient to enable any one familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. This is the test many times announced and followed by this court. Barnett Bros. v. Wright, 116 Ark. 44, 172 S. W. 254; Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; Georgia State Savings Ass’n v. Marrs, 178 Ark. 18, 9 S. W. (2d) 785; Brown v. Turnage Hardware Co., 181 Ark. 606, 26 S. W. (2d) 1114. In the case last cited 360 acres were described in tbe affidavit and complaint by governmental subdivisions, and tbe decree adjudged “a lien upon one acre of the 360 acres * * * being that part upon which bis homestead was situated.” Tbis court held tbe lien good against a charge of insufficient description. In that case, tbe late Chief Justice Hart, speaking for tbe court, after quoting from Arkmo Lumber Co. v. Cantrell, supra, said: “In tbe application of tbis principle (relating to sufficiency of description as above announced), tbe fact that tbe claim filed under tbe statute described more land than is subject to tbe lien does not defeat tbe lien as to tbe amount of land subject thereto under the statute where tbe claim and tbe account filed with it, duly verified as required by statute, indicate tbe improvement so that it can be identified by persons of ordinary intelligence. To bold otherwise would subject substance to form, and deny tbe lien to persons clearly entitled thereto under tbe statute.” If tbe improvements are sufficiently described, then tbe law fixes the. amount of land to be covered by tbe lien, and it is a mere matter of surveying to determine tbe correct description.

Nor was it necessary to file a lis pendens notice. Tbe lien statute provides what shall be done to preserve tbe materialman’s lien, and, when tbe statute is complied with, all persons dealing with tbe property subject to such lien must take notice thereof. In this case, the mortgage was not executed until long after tbe lien was filed, and was not recorded until two days after tbe 15 months time in which to bring a suit to foreclose bad expired. A subsequent purchaser must take notice of the right to file a lien within 90 days after any work or labor has been performed or material furnished, even though the record fails to show such lien. Owen v. Continental Supply Co., 175 Ark. 741, 300 S. W. 398; Bell v. Koontz, 172 Ark. 870, 290 S. W. 597.

It is also insisted by appellee in support of tbe judgment of the trial court that appellant did not file its claim for lien within 90 days after tbe last material was furnished, and it is argued that tbe last materials furnished under tbe contract were in January or February, 1930, and that the two items furnished on April 29, and May 23, were not furnished under the original contract and were but “extras,” and that since the affidavit for lien was filed on July 11, thereafter, the material furnished up to January or February, 1930, was not within the lien. The law in this State in this regard has been well settled since the case of Kizer Lbr. Co. v. Mosely, 56 Ark. 516, 20 S. W. 409, where the court said: “If the materials were furnished under one contract, he should file the account within ninety days after the last was delivered; but if the materials were furnished under separate and distinct contracts, it should be filed under each contract within the time limited. Livermore v. Wright, 33 Mo. 31; 2 Jones on Liens, paragraphs 1431-1434, and cases cited. If, however, he began to furnish ‘without any specific agreement as to the amount to be furnished ’ or the time within which they were to be furnished, and there was a ‘reasonable expectation that further material’ would ‘be required of him,’ and he was ‘afterwards called upon from time to time to furnish the same,’ he should file it within ninety days after the last item was delivered. In such a case, if the materials were ‘furnished at short intervals, and were appropriate to the condition and progress of the building, a presumption would arise that it was understood from the beginning that the ‘materialman was to furnish the same’ for the construction of the building as the same should be required ; and the account therefor should be considered as one continuous account and one demand; and the last item thereof would be ‘the date from which the limitation of the time of filing’ should be taken.” Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245, 154 S. W. 952; Van Houten Lumber Co. v. Planters’ National Bank, 159 Ark. 535, 252 S. W. 614; Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999. The undisputed proof shows that there was no contract for any definite amount of material, but on January 19, 1929, appellant submitted a proposal to the cement company to furnish it a lot of steel, consisting of an approximate, number of tons for different purposes at a unit price of a specified amount per cwt. No written or oral contract to furnish any particular quantity of material was entered inlo. The cement company accepted the proposal, and thereafter it began ordering out the material as the construction of its plant progressed. The fact that the word “extras” appeared on the invoices for the items shipped in April and May, 1930, is explained by the fact, as were a number of other invoices for items shipped in 1929 and prior to February, 1930, that they were less than carload lots and under such conditions the cement company was required to pay the freight thereon. The testimony shows that the items in the whole account constituted a continuing and running account up until May 23, 1930, and that there was reasonable expectation that these latter items would be required and would be ordered. We therefore hold that the affidavit for lien was filed in ample time, the ninety days running from the date of the last item on the account.

Another argument made to uphold the decree of the trial court is that “no sufficient action was brought within the statute of limitations.” It is conceded that the suit was filed within fifteen months after filing the lien as required by § 6926, Crawford & Moses’ Digest, but it is insisted that neither the affidavit for the lien nor the complaint disclosed any particular one acre of land or any particular building, erection or improvement upon which a claim for lien was made. We cannot agree with appellant in this contention. As we have already pointed out, the affidavit for a lien and the complaint sufficiently identified the improvements located upon the land, on both of which a lien was sought, on the land to the extent of one acre given it by law. The amendment to the complaint which did describe the one acre of land by metes and bounds was not the commencement of a new action, but only more particularly described the land upon which a lien was sought.

It is also contended that appellee Duke was a necessary party, and, not having been made a party by appellant, the proceedings as to him were void. We cannot agree. At the time appellant’s affidavit for lien was filed, and at the time the suit to foreclose the lien was filed no' mortgage had been executed, and, of course, none recorded. The decree foreclosing said lien was entered thereafter. But the decree itself recognizes the fact that there was a mortgage at that time, but that it was inferior to the lien of appellant. Said decree speaks of “bonds of the present issue” and provides that the cement company might pay its debt partly with such bonds. The lien of the deed of trust or mortgage being inferior to that of appellant, appellee Duke’s rights are not affected because he was not made a party, for he still had his equity of redemption, just as any other junior lienor had who was not made a party to the foreclosure of the prior lien.

Other incidental questions are argued in support of the decree, all of which we have carefully considered and find them without merit. We have reached the conclusion that appellant is entitled to a lien upon all the improvements into which any of its material or labor entered and into the one acre of land described and upon which a lien was fixed in the original consent decree set aside by the subsequent decree and that appellant is also entitled to a judgment against the American Portland Cement Company for the full amount of its debt, less the $500 payment made as above mentioned to obtain a stay of execution, with interest from the first day of February, 1930, at 6 per cent, per annum as decreed by consent in the original decree.

The decree of the chancery court will be reversed, and the cause remanded with instructions to enter a judgment for the amount above indicated, such judgment to bear interest from that date at 6 per cent., and to fix a lien upon all the plant, buildings, erections, improvements of the appellee cement company and for a lien upon the one acre of land as described and decreed in the said original decree which shall be superior and paramount to the lien of appellee Duke under his deed of trust, or any others claiming any interest under him or under said American Portland Cement Company since the accrual of the lien herein established, and that appellant shall recover all its costs herein expended. It is so ordered.

J ohnson, C. J., disqualified and not participating.


author: Johnson, C. J.

text:
    Newton v. State.
    Crim. 3903
    Opinion delivered October 15, 1934.

      W. E. Haynie and M. Rountree, for appellant.

      Hal L. Norwood, Attorney General, and John II. Caldwell, Assistant, for appellee.
   Johnson, C. J.

Appellant was indicted by the Clark County Grand Jury for the crime of first degree murder for the killing of one Barefield. Upon trial he was convicted as charged in the indictment and his punishment assessed at life imprisonment in the State penitentiary, and this appeal follows.

The evidence upon behalf of the State tended to show, and the jury was warranted in finding, the following :

On March 8, 1933, appellant and his wife were together in the business section of the town of Gfurdon, and visited in the law office of Ed Haney about 3 or 4 o ’clock in the. afternoon. Leaving this place, which was upstairs on the east side of the railroad tracks, they traveled in a westerly direction across the railroad tracks to the business section on the west side. Barefield, the deceased, likewise was in Gurdon on this date, and both appellant and Barefield evidently contemplated trouble. About 5 o’clock appellant and his wife passed Barefield while all parties were traversing a walkway — appellant and his wife proceeding in a westerly direction and Bare-field in the opposite direction. From this point the evidence is in irreconcilable conflict. That upon behalf of the State tended to show that Barefield endeavored to pass around Mrs. Newton when appellant drew his gun and began firing upon Barefield, and, after he had fallen prostrate to the ground, appellant again fired into his body. The testimony upon behalf of appellant tended to show a persistent and aggravated interference by Bare-field with the domestic relations between appellant and his wife covering a long period of time, which, if believed by the jury, would have certainly warranted a much milder verdict than the one returned. It would serve no useful purpose to set out in detail the testimony of witnesses, and the above statement will suffice to show the outstanding facts and circumstances surrounding the killing.

Appellant’s first contention for reversal is that the trial court erred in overruling his application for change of venue. The testimony heard by the trial court upon this application is not preserved in the bill of exceptions, therefore, under a long line of decisions of this court, we can not review his findings of fact. In other words, in the absence of the testimony heard by the trial court, we must presume the evidence heard warranted the conclusion reached. Jackson v. State, 54 Ark. 243, 15 S. W. 607; Strong v. State, 85 Ark. 536, 109 S. W. 536; Duckworth v. State, 86 Ark. 357, 111 S. W. 268; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.

The next assignment of error relates to the action of the trial court in continuing the cause and setting it for trial in the absence of appellant. When the cause was continued and set for trial, appellant was at liberty upon bond, and was therefore voluntarily absent. The record discloses that the court set the case for trial in the absence of the defendant, but in the presence of his attorneys. In Darden v. State, 73 Ark. 315, 84 S. W. 507, we stated the rule, reading from the second headnote, as follows:

“A defendant who was out on bail cannot complain that the examination in chief of a witness for the State was conducted in his absence if he was voluntarily absent, and his attorney was present, and if defendant never asked that the examination in chief of such witness be retaken.”

The rule as stated in the case, supra, has been consistently followed by us since its rendition. No error is made to appear because of this assignment.

Next, it is urged that the trial court erred in qualifying the jurors, Ed Williams, Otis Francis, C. W. Cypert and Carrnie Cox because they had served upon a regular panel of either the grand or petit jury within the past two years. This assignment of error is made to appear by the affidavit of one of the attorneys for appellant filed after the verdict of the jury was returned. The bill of exceptions does not disclose that the named jurors were interrogated in reference to their services as jurors within two years prior to their acceptance in this case, therefore their disqualification, if any, does not appear. It is the established doctrine in this court that it must appear from the bill of exceptions that the juror imposed himself upon the court and defendant by misrepresenting the facts, and this question can not be raised after the trial, when the defendant did not avail himself of the opportunity, on the examination of the jurors on their voir dire, to ascertain if they possessed the necessary qualifications. Doyle v. State, 166 Ark. 506, 266 S. W. 459; James v. State, 68 Ark. 464, 60 S. W. 29; Tell v. State, 129 Ark. 180, 195 S. W. 32; Patton v. State, ante p. 133, 70 S. W. (2d) 1034. It does not appear from the bill of exceptions that the named jurors imposed themselves upon the court or appellant, therefore no prejudicial error is made to appear.

Appellant next urges that the trial court erred in permitting the jury to separate after final submission of the cause. We have construed § 3187, Crawford & Moses’ Digest, as vesting in the trial courts discretionary power in reference to the enforcement of the rule against the separation of the jury prior to or after submission of the cause to the jury. Johnson v. State, 32 Ark. 310. In the later case of Reeves v. State, 84 Ark. 569, 106 S. W. 945, we stated the rule as follows:

“The rule announced in the cases above referred to, which were cases where the court had ordered the jury kept together, is that in criminal cases, where evidence is adduced tending to show that the jurors have been exposed to improper influences, the burden is upon the State to show that they were not in any way influenced, biased or prejudiced by such exposure, and that, in the absence of such showing* by the State, the verdict will be set aside. The rule is otherwise where the. court exercises its discretion in permitting the jurors to separate. In such eases the burden is upon the defendant to show that they were improperly influenced by the exposure.”

Appellant makes no showing that the jurors while separated were exposed to improper influences; therefore no prejudicial error is made to appear by this assignment.

Finally, it is insisted that the trial court erred in giving and refusing to give certain instructions. We have carefully considered all requested, granted and refused instructions and have concluded that the issues presented were properly submitted, and no error was committed in this regard.

It follows that the judgment must be. affirmed.


author: Smith, J. Smith, J.,

text:
    Home Life Insurance Company v. Ward.
    4-3551
    Opinion delivered October 15, 1934.

      A. D. DuLaney, for appellants.

      Ovid T. Sivitzer and Y. W. Etheridge, for appellee.
   Smith, J.

This appeal presents no question which has not already been decided adversely to the contentions here made. The suit is based upon the identical group policy of life insurance No. 26,595 which was sued on in the case of Home Life Insurance Company v. Keys, 187 Ark. 796, 62 S. W. (2d) 950. The present appeal is from a judgment on the same policy. The only difference is in the name of the employee, the date of disability, and the time of bringing suit. The policy, which had been kept in force,by the Crossett Lumber Company for the benefit of its employees, expired on December 31, 1930. Keys, the plaintiff in the case just cited, who was disabled from and after October 12, 1929, died March 9, 1931, and proof in support of his claim was not submitted to the insurer until May 5, 193'2. In the instant case the insured became disabled in June, 1929, but furnished the insurer no proof of the disability until August 17, 1933. The only difference is that in the instant case a somewhat longer period of time elapsed than in the Keys case, but this is immaterial under former decisions of this court, as the proof was furnished and the suit was commenced before the bar of the statute of limitations had fallen. In the very recent case of Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869, it was said: “In addition to what we have just said, we are definitely committed to the doctrine under policies of insurance wherein the provision for notice is not made a condition precedent to the right of recovery that it is immaterial how and when the proof of disability is made, if within the statutory period of limitations. Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912.”

Other questions discussed in appellants’ brief relating to the liability of the insurer in the instant case are disposed of in the Keys case, supra, in which case the headnote reads as follows: “Under a policy of group insurance providing that, upon proof that an employee insured thereunder has become wholly and permanently disabled and thereby prevented from pursuing any gainful occupation, he will be regarded as a claimant, and the company waives payment of premiums thereafter, held that the insurance company became liable when an employee became totally and permanently disabled during the life of the policy, though proof of such disability was not furnished until after the policy had been canceled.”

There were questions of fact in the instant .case as to when the insured became totally and permanently disabled, and as to the continuance of the disability, but these questions were submitted under correct instructions, and are concluded by the. verdict of the jury, inasmuch as the testimony is legally sufficient to support the finding that the insured became permanently disabled while the policy was in full force and effect, and was shown to be permanently and totally disabled at the time of the trial.

The testimony on the insured’s behalf was to the effect that he was an ignorant and illiterate negro, who had no means of earning a livelihood except by his manual labor, and that he had become unable to work. It is insisted that instruction numbered 3 submitting this issue is erroneous. This instruction reads as follows: “The jury are instructed that total disability does not mean absolute physical disability on the part of the insured to transact any kind of business or work pertaining to his occupation. It is sufficient to prove, that the disability wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his work or the execution of them in the usual or customary way or when common care and prudence would require a man in his condition to stop doing the kind of labor he had performed before he became disabled. ’ ’

The objection now made to the instruction is that it permits a recovery upon the showing that the insured is unable to perform “the kind of labor he had performed before he became disabled,” without requiring the showing that he is unable to perform other kinds of gainful labor. There was no specific objection to the instruction, and, in the absence of such an objection, we do not think the instruction is defective in the respect stated. The testimony was to the effect that the only kind of labor the insured had performed, or knew how to perform, was manual labor, and the testimony as to his disability related to his ability to perform such labor generally, and not merely the kind of labor he was performing when he became disabled. If, therefore, it had been believed that the instruction construed the policy as if it were one of occupational insurance, that objection should have been specifically made.

It is finally insisted that the court erred in refusing to give appellants’ instruction numbered"5, which was to the effect that the recovery could in no event exceed “the aggregate, sum of the monthly payments provided for in the policy after August 15, 1933 (the date upon which proof was furnished)-, to date,” and for this reason the statutory penalty of 12 per cent, should not have been imposed, and no attorney’s fee should have been allowed. It appears, however, from what has already been said, that the right of recovery begins, not on the date the proof was furnished, but, as was said in the Foster case, supra, “upon causation of the injury (or disability).” This being a case! in which the insurer has denied any and all liability under the policy, the rigid existed to sue, not merely for installments of benefits, but for the total indemnity for which the policy provides. Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912.

The penalty was therefore properly imposed, and the attorney’s fee was properly allowed.

The judgment must therefore be affirmed, and it is so ordered.

Smith, J.,

(on rehearing). We are asked to modify the judgment in this case to the extent of allowing only the present value of the installments to be paid under the policy of insurance, rather than the total amount thereof, as was done under the original opinion. This request is made upon the authority of the case of Metropolitan Life Ins. Co. v. Harper, ante p. 170, where it was held that the present value — and not the total value— of the installments should be paid. In that case, however, the insured, who had become disabled, was alive, and, under his policy, was entitled to -benefits to be paid weekly for a given period. But in the brief which raises the question here stated, it is conceded that: “If Ward had died while his policy was in force, he would have been entitled to $1,800 (the amount recovered).” This admission is based upon the provision of-the policy of insurance to that effect reading as follows: “In the event of the death of the insured during the period of total permanent disability, any installments remaining unpaid shall be payable to the designated beneficiary.”

The original opinion affirmed the finding that the insured did die while the policy was in effect, and there is no occasion, therefore, to modify the original opinion, and the motion for rehearing is therefore overruled.


author: Baker, J.

text:
    RCA Photophone, Inc., v. Sharum.
    4-3560
    Opinion delivered October 15, 1934.

      Cunningham & Cunningham, for appellant.

      Mamie McKenzie Crump and Beloate £ B.eloate, for appellee.
   Baker, J.

This is a replevin suit brought by appellant against appellee to recover possession of certain electric sound reproducing motion picture equipment, used by the appellee, in his theater at Walnut Ridge. A description of the property is unnecessary. The plaintiff alleged in its complaint that the value of the property is $800, and that it is entitled to the immediate, possession of the same, and prayed for the recovery and $250 damages. It set up its title in the equipment under a lease, copy of which was made an exhibit to the complaint. It pleaded also that the appellee executed two notes, one for the payment of $25 weekly on each consecutive Saturday for a period of twelve weeks, commencing on the 12th day of June, 1931, and the second note for the payment of $52 weekly on each consecutive Saturday for a period of 74 weeks commencing on Saturday, the. 9th day of September, 1931, and that the appellee was in default in the payments, the first default being for a balance of $7 on the 19th day of September, 1931, and $52 each Saturday from that date until March 12, 1932, making a total default of $1,307. As we understand appellant’s presentation of the case, these notes were set up, and the defaults shown in order to show the breach of the contract by which the property was leased to the appellee, and that appellant, on account of the said defaults, was entitled to retake the property, in accordance with the lease contract signed by appellee.

Appellee answered the complaint and denied that the appellant was entitled to the possession of the equipment or for judgment for damages and costs; denied that the. equipment was leased or that he executed the promissory notes; and pleaded further that, if there was a contract, it was a contract of sale and not a lease, the title being retained until the purchase money was paid. He alleged further, by way of cross-complaint, that on the 8th of March, 1932, the equipment mentioned in the complaint was in the Sharum Theater, owned and operated by him, and that, among other things, the property was equipped with certain sound equipment, without which the theater could not operate, and that on that date the appellant by its agent, Hughes, had taken from the theater a certain part of this sound equipment, disabling the sound system to such an extent that it could not be used, and that, on account of the removal of such, part, the optical sound system, he was unable to operate his theater; that he had pictures booked and paid for until March 8, 1932, and for each evening thereafter for two pr three weeks; that he was playing to a large house, making a profit of $75 per week and would have continued to make such profit, except for the fact that he was compelled to close the theater by reason of the taking away of the sound system part so removed. He pleaded that, by the removal of this part of the equipment, he lost $225 profit; that he was required to pay for pictures he did not use during said period, in the sum of $450; that on account of being unable to operate for a period of three weeks his business was almost ruined; that for a period of four months thereafter he lost $50 a week on account of poor attendance caused by the closing of his theater, and finally that he had been damaged in the sum of $125 per week to the total of $2,000, and profits, which he should recover, in the amount of $600, and other items totalling finally the aggregate amount of $6,275, for which he prayed judgment.

As an amendment to the cross-complaint, the appellee set up the fact that the plaintiff had no right to the property, and that he was not in arrears; that the plaintiff had promised to refinance defendant’s account and to reduce the price of the equipment mentioned in the complaint, and that the terms had been agreed upon, and that it was in violation of this agreement that the plaintiff, the appellant herein, took possession of the property. Answer filed to the cross-complaint denied the material allegations.

Upon trial of the ease verdict was for defendant, Sharum, and his damages fixed at $225, and judgment, for appellee for said sum. If this judgment be sustained, appellee would be entitled, upon proper motion, to the return of the sound equipment taken from his theater.

This is a sufficient statement of the case, except as to the matter of the contract which will be discussed in the opinion.

The plaintiff, appellant herein, asked for certain instructions. Number one is as follows: “The contract in this case calls for a forfeiture and the right to repossess the property by the plaintiff at aim time when the defendant was in arrears, and the undisputed evidence shows that he was in arrears at the time the property was taken, and you should therefore find for the plaintiff.”

The. court refused to give this instruction, but gave other instructions upon which the case went to the jury.

There are certain undisputed matters of fact, asserted by the appellant and admitted by the appellee, which, taken in consideration with the contract, settle each controversy presented to this court.

The contract provides, among other things, for rights and remedies on behalf of the lessor or appellant. The parties to the contract anticipated, among other things, that there might be defaults, and that, in the event of such defaults, indulgencies might be granted, and the effect of such defaults and indulgencies and the rights and remedies of each party are set out in the contract, should any of these, conditions arise.

We quote from the provisions of the contract: Section 5. “Exhibitor (Sharum) accepts the terms, covenants, and conditions in this agreement set forth and agrees to perform the same in the time, and manner provided. Exhibitor hereby agrees to pay for the rental and license to use the equipment, premium for insurance (all of which shall be considered as rental), and for service, the total of the amounts payable under the following selected plan, and exhibitor also agrees that said amounts except service charges shall be due and payable to ECA Photophone without set-off or counterclaim on the execution and delivery of this agreement, but for the convenience of exhibitor ECA Photophone hereby agrees to permit exhibitor to pay said sums in accordance with the terms of plan three hereby selected by exhibitor, which permission may be terminated at the option of ECA Photophone in the event of failure by exhibitor to make any of the payments when and as provided by said plan. ’ ’ Plan three provides for rental of standard and additional equipment, if any, premium for insurance required by ECA Photophone for the period of the agreement, and services charges for the first two years. Exhibitor will make the following payments which, subject to the provision of this section, may he made as follows: down payment of $44.60 herewith, receipt of which is hereby acknowledged; weekly payments of $43'.85 payable on Saturday of each week for 104 consecutive weeks commencing’ on the first Saturday following the installation date.

Section 18 provides that, upon the expiration or termination of the agreement, exhibitor will deliver the equipment to RCA Photophone free from all claims and demands, and pay transportation to a point not more distant than the point from which the equipment was shipped, and, “upon default of exhibitor under any provision of this agreement and/or the expiration or termination of this agreement, RCA Photophone may repossess the equipment or any part thereof and shall have the irrevocable right to enter the theater or any other premises where the equipment shall then be, and, without notice or legal proceedings, repossess, and remove the equipment or any part thereof, and exhibitor will cooperate in such repossession and removal and pay any and all expenses of RCA Photophone in connection therewith. ’ ’

A part of § 20 provides: “No agreement altering, modifying or extending the terms of this agreement shall be valid unless in writing duly signed by the parties by their duly authorized officers.”

The original contract provided for the payment, at the end of each week, of a larger amount than the $25 per week, as set out in one note, and the $52 per week, as set out in the other note. The testimony of the parties is fairly clear, but Sharum had defaulted in his payments, and rather persistent efforts had' been made for collection; that the potes set out in the complaint and affidavit were given by Sharum as the new method of making payment upon the original contract, which was in no sense otherwise changed or altered. This was done for the accommodation of Sharum to enable him, for a time at least, to pay his indebtedness already in- default, and to save himself from the loss of the use of the property. These facts, as they appear from the record, considered most favorably for the benefit of Sharum, show that he was in default, though the time had long since elapsed within which some of these installments were to be paid.

Appellee says that the only contract he signed was the one exhibited by the plaintiff, appellant herein,' and also that the testimony of Iley], as to the amount of his indebtedness was substantially correct. Iieyl says that on March 8, 1932, the date Hughes got possession of a part of the machinery, Sharum was in default $1,307; that on August 7, 1931, the payment of $25 was made, and this left the defaults of July 18, July 25, and August 1. On the 24th of August, Sharum was in default five payments, and on August 31 Sharum sent in $100, still leaving him in default for August-22, 29 and for September 5, and on October 13,1931, in arrears $439. That was prior to the time that the last or final series of $25 notes were to be paid. The new notes called for $25 for fifteen weeks from January 23, 1932, and $42 for ninety-four weeks from April 30, 1932, but no payments were ever made on these notes. The other payments above mentioned had been credited on the indebtedness that had been existing, and which was evidenced by former notes and the contract.

Sexton, witness for Sharum, and Archer, the sheriff, also witness for Sharum, testified that Sharum admitted the arrearages in payments. Sharum says he doesn’t know how much he was in arrears. He asserted that the negotiations were going on in which he was insisting that he was entitled to a 40 per cent, reduction in the original contract price, but he had not secured any contract or agreement allowing that reduction.

Upon the record, as presented here, there was such default in the payments as to entitle the plaintiff, appellant herein, to retake the propertjn Under the contract it ha.d the right to do so, or to take any part of it.

There had been no action or conduct on the part of the plaintiff, such as to fix the course of dealing contrary to the express terms of the contract. There had been persistent efforts on the part of the appellant to collect its debt, and equally insistent demands on the part of the appellee that he was entitled to a change of the original contract, a modification thereof, which is admitted had never been made.

Although appellant had the right granted to it under the terms of the contract to enter upon the premises and take therefrom the machinery or any part thereof, we disapprove the surreptitious and deceitful manner of appellant’s agent in gaining entrance to the theater and taking therefrom a part of this machinery then in the possession of Sharum. But no damage resulted from this entry in itself. If there was any loss suffered by Sharum, it did not arise out] of the manner of obtaining entrance to the building. Whatever loss Sharum may have suffered, if any, arose out of the fact that the appellant took from the machine a part of it so as to disable it completely. It had a right to do that. It is inconceivable that damages can be predicated upon the enforcement of the right, when the enforcement is done in accordance with the agreement of the parties.

It follows, therefore, that the court should have instructed a verdict for the appellant, and, under the case as developed at the time, instruction No. 1, as asked for by appellant, or one to the same legal effect, should have been given, and a judgment should have been rendered for the property sought to be recovered in the action of replevin. .

So much of the contract sued on as has been presented to this court is enforceable, and there is no evidence of change or modification, except as to installments to be paid, and we have sought only to declare the rights and remedies of the parties as they have themselves expressed them. The appellee, no doubt, honestly feels that he is entitled to some reduction, but that is not evidenced by his contract, nor by any amendment to it, and the parties have expressly contracted that “no agreement, modifying or extending the terms of the contract, or agreement, shall be valid unless in writing and duly signed by the parties, or by their duly authorized officers.” That part of the contract just quoted would, at least, exclude evidence of any other agreement or understanding had as between Sharum and the agent of appellant at the time this contract was reduced to writing and signed. As the case is presented here, Sharum is only contending that negotiations were under way, hut not completed, for some modification or change.

We have carefully considered the case cited by appellee, General Motors Acceptance Corporation v. Hicks, ante p. 62. That case is easily distinguishable from the instant case. Mrs. Hicks, in that case, was in default of her payments one month. This default had occurred many months prior to the time of the taking of the Frigidaire sold her, and upon which she was making regular monthly payments. It was a course of conduct that had been pursued for such a length of time that she had a reasonable right to believe, that the default would not be taken advantage of, so long as she kept up, with reasonable regularity, the payments falling due each month. In fact, she was assured, by the seller of the Frigidaire, to whom the original contract had been delivered, that this method of payment was satisfactory. This dealer still had an interest in the paper, because he was a guarantor of her payments by his indorsement and transfer of it to the General Motors Acceptance. Corporation. Without reasonable notice to her of an intention to do so, the General Motors Acceptance Corporation procured entrance to the building, by breaking in, where the Frigidaire was stored, seized upon it and took it away. Mrs. Hicks was permitted to recover for the conversion of this property and also for other property lost by her on account of the fact that the agent of the General Motors Acceptance Corporation negligently left the doors open and other of her property was left unprotected, and it was stolen while so exposed. There was a performance in this ease, except as to the one payment, which was in default some months previous.

In the case now under consideration, there is persistent and continuous default, with equally persistent efforts on the part of the plaintiff to make collection; the distinction being that in the Hicks case, there was a waiver and in the instant case there was not.

This case is reversed and remanded for a new trial.