text:
    Creamery Package Manufacturing Company v. Wilhite.
    Opinion delivered July 11, 1921.
    1. Statutes — implied repeal. — Where the later of two statutes covers the whole subject-matter of the former, and it is evident ■that the Legislature intended it as a substitute, the prior act will be held to have been repealed thereby, although there may be no express words to that effect, and there be in the old act provisions not included in the new.
    2. Banks and banking — liability op bank. — Crawford & Moses’ Digest, § 683, providing that “any officer of a bank found by the (Bank) Commissioner to be dishonest, reckless or incompetent shall be reported in writing to the directors of the bank of which he is an officer; and if they neglect or refuse to remove such officer they shall be liable for any loss that may accrue to the bank bv reason of his dishonesty, recklessness or incompetency”, did not intend to absolve directors from their liability for negligent management except as therein provided.
    3. Banks and banking — insolvent bank — suit by depositor.— A complaint by some of the depositors of a bank against the directors and officers of the bank, alleging that their mismanagement had caused its insolvency, is defective in failing to allege that the Bank Commissioner had been requested to sue on behalf of the bank and had failed to do so.
    Appeal from Mississippi Chancery Court, Chicka-sawba District; Archer Wheatley, Chancellor;
    affirmed.

      J. T. Coston, for appellants.
    Bank directors cannot divest themselves of the duty of general supervision and control. 92 Ark. 327. The banking law has not changed this law. Crawford & Moses’ Digest, § 702; 141 U. S. 147. Sec. 129 Ark. 416. It is the function of the board of directors to declare dividends. They are presumed to know whether the bant is solvent. 186 S. W. 1026. They are liable to the extent that dividends were improperly declared. 29 Atl. 207 ; 85 Atl. 448. They are liable for mismanagement of the bank or theft of its fnnds by the cashier. Crawford & Moses’ Digest, § 683, instead of limiting their liability, enlarges it. See 162 S. W. 611. The cashier was required to give a bond. Crawford & Moses’ Digest, §683.

      Little, Buck & Lasley, for appellees.
    The appeal should be dismissed for failure to copy the complaint in full. Directors of a bant are not liable to creditors because they have mismanaged or wasted assets of the bank. 7 E. C. L. 482, 3 L. E. A. (N. S.) 438; 76 la. 535; 45 L. E. A. (N. S.) 421; 123 S. W. 47; 71 Am. St. 615; 67 Mo. 256; 36 N. J. Eq. 313; 13 Mo. App. 108; 96 Tenn. 98. If a receiver has been appointed, creditors cannot sue to recover from corporation officers for an injury to the corporation unless the receiver refuses to sue or is one of the alleged wrongdoers. 4 Fletcher, Corp. 2570; 56 Am. Eep. 256; 45 Fed. 13; 63 Fed. 488. It was the duty of the Bant Commissioner to sue for mismanagement of the bank’s affairs. No preference was to be secured. The complaint does not allege that a request was made upon the Bank. Commissioner to bring this suit. Directors are not liable for dividends declared in good faith. 7 E. C. L. 502.
   Smith, J.

The appellants, The Creamery Package Manufacturing Company, J. D. Johnson, and the Grassy Lake & Tyronza Drainage District No. 9, filed a complaint in the -chancery court of the Chickasawba District of Mississippi County, which contained the following allegations:

That the Bank of Blytheville, a banking corporation, was on the 10th day of March, 1920, indebted to appellants for money on deposit aggregating over $23,000.

“II. That defendant, J. C. Blaine, was a director and defendant, J. S. Wilhite, a director and president, and defendant, :B. H. Wilhite, cashier, and defendant W. 0. Anthony, assistant cashier, of said bank.
“III. That the defendants, B. II. Wilhite and W. 0. Anthony, systematically overdrew and stole from said bank for a period of many years prior to March 10, 1920, in various sums, aggregating about $100,000, and they permitted J. H. Reese and others, known to he insolvent, to overdraw in sums aggregating half a million dollars.
“IV. That the defendants, J. C. Blaine and J. S. Wilhite, knew, or by the exercise of reasonable, ordinary care as officers in said hank, could have known of the reckless, careless and criminal manner in which the affairs of said bank were being handled by defendants, B. II. Wilhite and W. O. Anthony, and plaintiffs believe and allege that defendant, J. F. Wilhite, did know of the manner in which the affairs of said bank were managed, but defendant Blaine negligently and carelessly failed to give the affairs of said bank any attention whatever, as director.
“V. Plaintiffs charge said defendants with the following specific acts of negligence:
“1. That said directors failed and refused and neglected to exercise reasonable care in the management, supervision and control of the affairs of said 'bank.
“2. In failing to remove the cashier and assistant cashier after they knew, or by the exercise of reasonable care could have known .that said cashier and assistant cashier were dishonest, reckless and incompetent.
“3. In failing to require sufficient bonds of said cashier and assistant cashier for the faithful performance of their duties.
“4. Declaring and paying dividends out of the capital of said bank when they knew, or by the exercise of reasonable care could have known, that said bank was insolvent.
“5. In declaring and paying dividends out of the capital stock of said bank at times when there were-no profits ont of which to pay such dividends.
“6. In receiving dividends from said hank when they knew, or by the exercise of reasonable care could have known, that said bank was insolvent.
“7. In receiving dividends when they knew, or by the exercise of reasonable care could have known, that there were no profits out of which to pay same.
“8. In assenting to the reception of deposits and the creation of debts by said bank when they knew, or by the exercise of reasonable care could have known, that said bank was insolvent.
“9. In lending the funds of said bank to individuals and corporations in sums greatly in excess of thirty per cent, of the capital stock of said bank.
“10. In suffering and permitting the depositors of said bank to overdraw their accounts.
“11. In failing to exercise reasonable care and diligence in the collection of overdrafts and other debts due said bank.
“12. In permitting said cashier and assistant cashier to pay out the funds of said bank upon the cheeks and orders of individuals, firms and corporations which had no deposits with the said bank.
“13. In ratifying overdrafts.
“14. In neglecting to inquire into and ascertain the condition of said bank by periodical audits of the books and accounts of said bank.
“That by reason of the reckless, careless, and unlawful manner in which the affairs of said bank were managed, it became insolvent and was taken over by the State Banking Commissioner, March 10, 1920, and will pay only á small percentage of its indebtedness.”

There were allegations that J. C. Blaine and J. F. Wilhite had fraudulently conveyed certain real estate owned by them, and there was a prayer for judgment for the amount of the deposits and for a decree uncovering the property which had been conveyed in fraud of these creditors. Blaine is a nonresident and was not served. Wilhite is a resident and was served, and there was a prayer against him for a personal judgment.

A general demurrer to this complaint was filed, which alleged a failure to state facts sufficient to constitute a cause of action. This demurrer was sustained and the complaint dismissed, and this appeal is from that order.

The action of the court in sustaining the demurrer is defended upon two grounds. First, that under act 113 of the Acts of 1913 (p. 462) entitled, “An Act for the Organization and Control of Banks, Trust Companies and Savings Banks,” commonly known as the banking act, directors and officers of banks have been absolved from the liability here sought to be enforced. Second, that appellants have not alleged sufficient facts to entitle them to maintain this suit.

Appellees concede that under the allegations of the complaint as to- the mismanagement of the bank they would have been liable for the results thereof in a proper suit brought prior to the passage of the banking act of 1913. Of this there can be no question. This court, in the cases of Bailey v. O’Neal, 92 Ark. 327, and Bank of Des Arc v. Moody, 110 Ark. 39, had occasion to consider the liability of directors and officers of banks for negligent waste and mismanagement; and in the later case of Bank of Commerce v. Goolsby, 129 Ark. 416, these and many other authorities on the subject were reviewed and the law of the subject so fully stated that no useful purpose would now be served by restating it. The insistence is that the G-eneral Assembly, in the banking act of 1913, took up the general subject of banking and there differentiated banks from other corporations and prescribed the liability of the directors and officers of banks, thereby absolving them from any liability on account of the neglect of duty except such, liaibility as the hanking act itself imposed.

This court has, in a number of cases, applied the canon of construction that “where thé later of two statutes covers the whole subject-matter of the former, and it is evident that the Legislature intended it as a substitute, the prior act will be held to have been repealed thereby, although, there may be no express words to that effect, and there be in the old act provisions not in the new.” Sanderson v. Williams, 142 Ark. 95, and cases cited.

We think, however, this canon of interpretation has no application to the facts of this case. The particular section of the banking act which appellees insist makes the canon of interpretation above stated applicable to the facts of this case is section 19, which is section 683 of Crawford & Moses’ Digest. This section provides that the affairs of incorporated banks shall 'be controlled by a board of directors of not less than three, who shall be selected from the stockholders; and that the board shall select from their number a president and such number of vice-presidents as shall be provided in the by-laws; and may elect a secretary and treasurer and a cashier, all of which may be one and the same person; and may elect assistant cashiers. It is further provided that these officers shall hold their offices for a term of one year and until their successors are elected and qualified unless sooner removed by the 'board; and that the board shall require of these officers such bonds as are deemed necessary to protect the funds of the bank. It is there further provided that “any officer of a bank found by the commissioner to be dishonest, reckless or incompetent shall be reported in writing to the directors of the bank of which he is an officer, and, if they neglect or refuse to remove such officer, they shall be liable for any loss that may accrue to the bank by reason of his dishonesty, recklessness or incompetency.”

We think the language quoted does not place a limitation upon the liability of directors and officers of hanks for negligent mismanagement. If such was the case, these officers would be liable only when the commissioner had reported in writing to the directors that an officer of the bank had been found by the commissioner to be dishonest, reckless or incompetent. We think it was not the legislative purpose to absolve directors from liability except in the isolated case mentioned in section 683 of Crawford & Moses’ Digest. We think counsel for appellants correctly interprets the act in stating that the legislative purpose was to enlarge the liability of these officers and to impose a liability which did not previously exist.

Prior to the enactment of this act, directors were held only to the exercise of ordinary care and good faith in keeping themselves informed as to the management of the bank. The Legislature was evidently of the opinion that the practiced eye of the Bank Commissioner might be able to discover some significant irregularity which might escape the observation of the less highly trained director. In such case it is the duty of the commissioner to advise the directors that the bank has in 'its employment a dishonest, a reckless or an incompetent employee, and upon receipt of this official information it becomes the duty of the directors to remove .such officer. Failing to do so, the directors are made liable for any loss that may accrue to the bank by reason of the dishonesty, recklessness or incompetency of the person reported upon. In imposing this additional duty on directors we are unwilling to .say that the Legislature has absolved them from all other duties for the negligent nonperformance of which they were liable prior to the passage of the banking act.

If such was the purpose of the Legislature, then directors have, for all purposes except to remove an officer •upon whom the commissioner has adversely reported, become mere figureheads.

In the case of Bank of Commerce v. Goolsby, supra, upon a thorough, consideration of the authorities, we accepted the dissenting views of Justice Harlan in the case of Briggs y. Spaulding, 141 U. S. 132, as correctly defining the duties of bank directors, expressed in the following language: “Again he says: ‘When one deposits money in a savings 'bank, or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects, and has the right to expect, that the trustees or directors, who are chosen to take his place in the management and control of his property, will exercise ordinary care and prudence in the trust committed to them — the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice, and public policy unite in requiring of him such degree of care and prudence.’ ”

We do not think a fair interpretation of the banking act supports the conclusion that directors have been relieved of their pre-existing responsibility and liability for negligent mismanagement and left only with the responsibility and liability which follows from the failure to remove an officer adversely reported upon by the Bank Commissioner.

This question was not raised or decided in the case of Bank of Commerce v. Goolsby, supra, yet it was necessarily presented by the record in that case if the appellees are correct in their interpretation of the 'banking act. But the eminent counsel representing the directors in that case did not even raise the question. The banking act was approved March 3, 1913, and became effective January 1, 1914. Davis v. Branch, 133 Ark. 417. The opinion in the case of Bank of Commerce v. Goolsby was delivered May 28, 1917. The mismanagement in that case commenced in 1911 and extended throughout the year 1914. The directors were held liable, and no attempt was made to distinguish their liability subsequent to the act from their liability prior to the act.

' We think, however, that appellees are correct in their second contention that appellants do not state facts in their complaint entitling them to maintain this suit. The allegations of the complaint are that appellants have lost the aggregate snm of $23,000. But they are not the only losers. The complaint further recites that insolvent persons wiere permitted to overdraw in sums aggregating $500,000, and that the cashier and assistant cashier were permitted to misappropriate $100,000, and that the hank has 'become insolvent, and was on March 10, 1920, taken over hy the State Bank Commissioner, and will pay only a small percentage of its indebtedness.

It thus appears from the allegations of the complaint that the losses sustained by these appellants constitute a comparatively small part of the losses for which the directors are said to be liable; yet it appears that the purpose of this suit by the three depositors who have brought it is to apply to the discharge and satisfaction of the bank’s indebtedness 'to them the liability of the directors for the negligent mismanagement of the bank’s affairs; and this without any allegation that the commissioner had been requested to sue and had failed to do so. This they can not do. 4 Fletcher’s Cyclopedia Corporations, section 2570, and authorities there cited.

The banking act requires the Bank Commissioner to take possession of all the property of an insolvent bank and “to collect money due it, and to do such other acts as are necessary to conserve its assets and business and shall proceed to liquidate the affairs thereof as hereinafter provided. ’ ’ The commissioner is further given authority to ‘£ collect all debts due and claims belonging to it,” his proceedings being under the direction of the chancery court. Section 719, C. & M. Digest; Aber v. Maxwell, 140 Ark. 203; Greer v. Merchants & Mechanics Bank, 114 Ark. 212.

Appellants say, however, that this rule does not apply here, for the reason that a general demurrer was filed, and he cites section 1190, C. & M. Digest, which provides that a demurrer shall distinctly specify the grounds of objection to the complaint, and that unless this is done the demurrer shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action, and the general demurrer does not therefore raise the question of defect of parties. But the trouble with that contention is that there is not a mere defect of parties within the meaning of the statute.

For the reasons stated appellants have failed to show any right on their part to maintain this suit, and for that reason the demurrer to the complaint was properly sustained. Decree affirmed.

McCulloch, C. J., concurs.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    McCabe v. State.
    Opinion delivered September 26, 1921.
    1. Homicide — Killing in attempt to commit felony. — Under an indictment alleging a killing by defendant and another “unlawfully, wilfully, feloniously and with malice aforethought and with deliberation and premeditation”, there may be a conviction for murder committed in the perpetration of, or in the attempt to perpetrate, a felony, if the killing was done with malice aforethought.
    2. Criminal law — declarations of fellow conspirator.— Where a person is charged as principal in the commission of a crime, the acts and declarations of a co-conspirator, done or made in defendant’s absence and after the consummation of the offense, are inadmissible against defendant.
    Appeal from Sebastian Circuit Court, Fort Smith District; John, Briesolara, Judge;
    reversed.

      Jno. B. Hiner, for appellant.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in the action of the trial court in permitting the State to make proof of the amount of money in the possession of deceased just prior to the commission of the offense.

      The defendant was indicted under the provisions of the first part of § 2343 of Crawford & Moses’ Digest. The indictment did not alleg’e that the murder was committed in the perpetration of or in the attempt to perpetrate a robbery.
    The defendant was convicted' of murder in the second degree; therefore, there was no error committed by the trial court, and its reference to the charge of murder in the first degree was harmless. 60 Ark. 76; 73 Ark. 280; 113 Ark. 142; 129 Ark. 324; 132 Ark. 416.
    2. The court did not err in permitting- Ross to testify as to the conversation he had with Jones relative to the killing, in the absence of the defendant. Sec. 2311, Crawford & Moses’ Digest; 104 Ark. 245; 16 Corpus Juris, p. 669; 130 Ark. Ill; 129 Ark. 316.
    3. The court did not err in refusing to give to the jury the defendant’s requested' instruction Number 1. It was not the law.
   McCulloch, C. J.

Appellant was jointly indicted with one Willard Jones for the crime of murder in the first degree, alleged to have been committed by killing Robert Couch. On a severance appellant was tried separately, and was convicted of murder in the second degree. ■ - ' 'i !

The evidence adduced by the State tended to show that, while appellant and Conch were walking through the railroad yards at Fort Smith one night about 9:30 o’clock in December, 1920, Couch was shot and killed by Willard Jones in an attempt to rob Couch. The theory of the State is that appellant and Jones had formed a conspiracy between them to kill Couch, and that appellant was present when Jones committed the homicide.

It is not charged in the indictment that the homicide was committed “in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or larceny,” but it is charged that the killing was done by Jones and appellant “unlawfully, wilfully, feloniously and with malice aforethought and with deliberation and premeditation.” The statute defines murder in the first degree to be homicides “which shall be perpetrated by means of poison, or 'by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in. the attempt to perpetrate arson, rape, burglary, robbery or larceny.” Crawford & Moses’ Digest, § 2343.

An indictment charging malicious and premeditated homicide does not include murder committed in the perpetration of or in the attempt to perpetrate one of the felonies mentioned in the statute, unless the element of malice aforethought is present in the commission of the crime; but under such an indictment there can be a conviction for homicide committed in the perpetration of or in the attempt to perpetrate a felony if the killing was done with malice aforethought. Rayburn v. State, 69 Ark. 177. Malice might exist in the commission of the homicide, even though the primary purpose of the offender was to commit another felony, and it is generally a question for the jury to determine whether or not the crime was committed with malice aforethought, even though it was done in the perpetration of or in the attempt to perpetrate another» felony of the kind mentioned in the statute.

After appellant was arrested, he pointed out Jones to the officers as the man who had shot Conch, and the court permitted the officer to testify concerning statements made by Jones in appellant’s absence and after Jones had been arrested. The statements of Jones to the officer, according to the latter’s testimony, were very damaging to appellant, and, if the testimony was inadmissible, the ruling of the court in allowing it to be introduced necessarily calls for a reversal of the judgment. We are clearly of the opinion that the testimony is inadmissible, for at most it related only to the statements of a co-conspirator in the absence of appellant after the consummation of the act, and was mere hearsay.

Appellant was indicted as a principal and not as an accessory, and it was therefore not competent for the State to prove appellant’s participation in the crime by Jones’ admissions made-in appellant’s absence. Under onr statutes persons who are present aiding and abetting in the commission of a crime are principal offenders and not accessories and must be indicted and convicted as principals. Crawford & Moses’ Digest, § 2311. Under an indictment for being an accessory to a crime, any evidence admissible upon the trial of the principal, including confessions, is admissible against the accessory, for the purpose of establishing the commission of the crime by the principal. 16 Corpus Juris, 669. But where a person is charged as principal in the commission of a crime, the acts and declarations of a co-participant in his absence and after the consummation of the offense are not admissible. The distinction is pointed out in the decision under a'similar statute in the case of State v. Bogue, 52 Kan. 79. It is a well-settled principle in the law of evidence that acts and declarations of a co-conspirator are inadmissible against another in the latter’s absence and after the consummation of the conspiratorial act.

For the error of the court in improperly admitting the testimony of the witness concerning statements of Jones in the absence of- appellant, the judgment is reversed and the cause remanded for a new trial.


text:
    Brown v. State.
    Opinion delivered September 26, 1921.
    1. Homicide — defense of property. — Under Crawford & Moses’ Dig., § 2369, defining justifiable homicide to be the killing of a human being in necessary self defense, or in defense of habitation, person or property against one who manifestly intends or endeavors by violence or surprise to commit a known felony, a person has no right to slay another merely to protect his property unless he is in possession, and the killing is necessary in order'to prevent the commission of a felony; the mere fact that property is being wrongfully taken or detained not being a justification of a homicide.

      2. Homicide — defense-of property — instruction.—Where the undisputed fact was that the hogs in controversy between the accused and the deceased were in the deceased’s possession, and that they were not taken by violence or surprise, but under a claim of right, it was not error to refuse an instruction on the subject of the right to kill in order to protect one’s property.
    3. Homicide — manslaughter—sudden heat of passion.— An instruction that if “defendant shot and killed the deceased while they were engaged in an altercation over the ownership of the hogs, and while the defendant was excited by the trespass on his property and in the heat of passion caused by the attempt of the deceased and his confederates to carry off the hogs which the defendant believed to belong to him, then the defendant “could not be guilty of a higher grade of offense than manslaughter,” was property modified in effect so as to state that to reduce the crime to voluntary manslaughter the killing mus.t “be upon a sudden heat of passion caused by a provocation apparently sufficient to make this passion irresistible” (Crawford & Moses’ Dig., § 2355).
    4. Criminal law — evidence of other crimes. — Where the defense sought to b.e established in a murder case was that the killing was done' in defense of defendant’s hogs running at large in the woods, it was not error to refuse to permit defendant to show that deceased and his brother had made efforts to take up hogs found running in the woods that belonged to other persons, except for the purpose of impeaching deceased’s brother as a witness.
    5. Criminal law — reputation of deceased. — It was not error to refuse to permit defendant, in a murder case, to prove the general reputation of deceased and his brother, where the testimony was remote in time and place.
    6. Witness — limits of cross-examination. — Where the court permitted defendant to cross-examine deceased’s brother concerning his efforts in connection with deceased to take up'hogs belonging to other persons, and witness denied any such activity, it was not an abuse of discretion to limit the further cross-examination of the witness on that subject.
    7. Criminal law — res gestae. — It was not error to permit a witness in a prosecution for murder growing out of a controversy over some hogs to testify that, just before the shooting occurred, defendant’s brother in defendant’s presence walked up to deceased, and patted him on the shoulder, and shoved him, saying: “You are going to turn the hogs out.”
    8. Homicide — defendant’s mental attitude.— In a prosecution for murder, it was competent to prove that after deceased was found fatally wounded his brother asked defendant’s permission to put him in the wagon, which request defendant at first denied, saying that they must first go and turn loose the other hogs tied in the woods, but later said to them: “Well, throw him in”; such evidence tending to show defendant’s mental attitude towards deceased at the time he fired the shot.
    Appeal from Independence Circnit Court; Dene H. Coleman, Judge;
    affirmed.

      W. K. Ruddell and Samuel M. Casey, for appellant.
    1. Evidence that the deceased and Ms brother bad taken up bogs belonging to other people prior to taking tbe bogs in controversy was competent for tbe purpose of showing tbe motive. 8 R. C. L. 201; 99 Ark. 604; 58 Ark. 387; 143 Ark. 419.
    2. It was error to refuse permission to prove by tbe witness Blackie Britt that be and deceased bad taken up bogs belonging to Wright, Fisher and O’Neal, claiming them to be wild, on previous occasions. It was competent to throw light on tbe bona fides of deceased and bis associates in their claim of ownership. 33 Am. St. Rep. 242-244; 53 Ark. 387.
    3. In tbe absence of proof of a conspiracy, evidence as to what Jonah Brown did and what be said before tbe shooting, was not competent. 45 Ark. 132; 59 Ark. 422; 92 Ark. 596; 133 Ark. 477.
    Likewise what was said and done by defendant’s brothers after tbe shooting was not competent evidence against tbe defendant, even if a conspiracy bad been proven. 141 Ark. 170; 120 Id. 462; 45 Id. 165; 78 Id. 284.
    Statements made' by defendant after tbe parties reached tbe place where deceased lay, were not competent. 69 Ark. 559; 66 Id. 494.
    Admission of incompetent evidence prejudicial. 69 Ark. 658; 91 Id. 555.
    A statement by tbe defendant to a witness some time prior to tbe killing to tbe effect that if be were to catch a man" stealing Ms hogs lie would shoot him, was immaterial and should have (been excluded. 73 Ark 366; I'd 152.
    4. The court’s modification of the instruction requested by defendant.on the subject of defense of himself and his property, deprived the defendant of the benefits accruing to him under §2369, Crawford & Moses’ Digest; 44 Am. Rep. 52; 51 Id. 153-154; 71 Am. St. Rep. 594; 2 Bishop’s New Crim. Law, §706, notes.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Evidence tendered by a witness to the effect that on one occasion deceased had taken up some wild hogs belonging to the witness, which he identified and deceased surrendered them to Mm, was not competent. Character or reputation cannot be proved by evidence of specific acts nor from personal knowledge of the witness. 10 R. C. L. 953.
    2. The testimony of the witness Wright as to the reputation of the witness Britt was properly excluded because of remoteness, based as it was on acquaintance several years prior to the trial. 29 Ark. 131; 22 Corpus Juris, 480. There is no ground for objecting to the exclusion of the testimony of witnesses who were not sworn and whose testimony was not tendered. 88 Ark. 571; 1 Thompson on Trials, §§703-4; 73 Ark. 407.
    3. Where specific objections are made to testimony, all other objections are waived. 58 Ark. 381; 65 Ark. 371.
    4. The evidence shows a conspiracy to commit an unlawful act, i. e., to take the hogs away from the Britt brothers by force if necessary; wherefore anything said or done by defendant, or either of his brothers at the time of the fatal encounter, was admissible. 69 Ark. 537 ; 133 Ark. 261.
    5. The plea was self defense. There was no effort to prove that the hilling was done in defense of property. The defendant was not entitled toi an instruction on that subject. Stewart v. State..

      S. M. Casey and W. K. Buddell in. reply.
    There was evidence that defendant hilled deceased because he was stealing defendant’s hogs. The court had no discretion to refuse instructions appropriate to any theory of the case sustained by the evidence. 50' Arh. 545, 549; 52 Arh. 45. See also 86 Arh. 30, 32.
   McCulloch, C. J.

Appellant was tried under an indictment charging him with murder in the first degree in the hilling of Will Britt, and was found guilty of murder in the second degree, his punishment being fixed by the jury at twenty-one years in the penitentiary.

Appellant and Britt were both, according to the evidence, residents of Independence County, and were farmers. The hilling occurred in the woods between their respective place of residence. Britt went into the woods with his brother, Elisha, and two neighbors or acquaintances named Coop, for the purpose of catching hogs running on the range. Britt claimed the right to take hogs on the range under a written assignment from one Rust, who asserted a “claim” to wild hogs. The party carried a wagon and team to haul the hogs out of the woods, and, after catching and tying them, they proceeded to load them into the wagon. Appellant came upon the scene with his two brothers, Jonah and Bill, and claimed the hogs as his own, and demanded that Britt release the hogs. At that time there were two hogs loaded on the wagon, and there were two others tied in another part of the woods. Britt refused to give up the hogs, and one of his party suggested that he be allowed to take the hogs home, and that appellant bring replevin to settle the rights of the property, but this was declined by appellant, who was armed with a Winchester rifle, and fired two shots, one of them taking effect in Britt’s chest. Britt ran away immediately after receiving the wound, and it was not known that he had been wounded until he was found lying in the weeds a short distance away when the wagon was moved, and the party proceeded to leave the woods. Appellant’s narrative on the witness stand of the circumstances immediately attending the killing was that when he demanded the release of the hogs Will Britt refused the request and proposed to “settle it there man to man,” and that his brother Elisha walked from behind the wagon and also remarked, “We will settle it here.” Appellant stated that he “stepped back and stumbled,” and that when he came up he just threw his gun up and fired and did not put it to his shoulder or take aim.

The case was defended on the ground that appellant acted in necessary self-defense.in resisting the threatened assault of Britt, and also that in killing Britt he acted in defense of his property, the hogs which were found in Britt’s possession. He invokes the application of the statute which defines justifiable homicide to be “the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony.” Crawford & Moses’ Digest, § 23fi9. The case was presented in the court below by appellant’s counsel on the theory that the facts brought the case within the application of this statute, and one of the assignments of error relates to the refusal of the court to give the following instruction:

“You are instructed that under the daws of this State a man has a right to defend his home, his person or his property against any one who intends or endeavors by violence or surprise to commit a known felony. And if you believe from the evidence in this case that the defendant, Brown, shot and killed the deceased, Will Britt, while the said Britt was attempting to take away the property of the defendant, Brown, then the killing would be what is known in the law as justifiable or excusable homicide, and you should acquit the defendant. ’ ’

This instruction is not, however, in accord either with the letter or meaning of the statute, and the court was correct in refusing to give the instruction. Nor do we think there is any evidence which would have justified a submission of appellant’s right to commit the homicide on the ground of being in the defense of his property. It will be observed that the statute does not justify the slaying of a person merely for the protection of property, but the justification arises only when there is a manifest intention or endeavor “by violence or surprise to commit a known felony. ’ A person has no right to slay another merely to protect his property unless he is in possession and the killing is necessary in order to prevent the commission of a felony. The mere fact that property is being wrongfully taken or detained would not justify a homicide. "Wharton on Homicide (3 ed.), pp. 390-91; Utterbach v. Commonwealth, 105 Ky. 723, 88 Am. St. Rep. 329; State v. Tarter, 26 Ore. 38; Hill v. State, 43 Texas Criminal Appeal, 583.

The undisputed facts in this case are that the hogs in controversy were not in the possession of appellant, but were in the possession of Britt and his party, who were about to haul them away, and that appellant was endeavoring to compel Britt to release the hogs. The property was not taken by Britt by violence or by surprise, but was taken up under a claim of right. If the property was wrongfully taken, appellant’s sole means of redress was an appeal to the law. He had no right to resort to force. to regain possession. Therefore the court was correct in refusing to give not only the particular instruction referred to but others on the same subject which were requested by appellants counsel.

Instruction No. 3, requested by appellant, reads as follows:

“You are instructed that the defendant had a right to defend his property against any one who attempted to carry it off, by violence or surprise; and if you believe from the evidence in this case that the defendant shot and killed the deceased, while they were engaged in an altercation over the ownership of the hogs and while the defendant was excited by the trespass on his property and in the heat of passion caused by the attempt of the deceased and his confederates to carry off the hogs which the defendant believed to belong to him, then the defendant could not be guilty of a higher grade of offense than manslaughter.”

The court modified this instruction, over appellant’s objection, by striking out the first part of it relating to the right to defend property and by inserting the words ‘ ‘ and that such provocation and passion was sufficient under other instructions given relative to manslaughter.” The court was correct in striking out the first part of the instruction for the reasons we have already stated in regard to instruction No. 1; and was also correct in adding the words so as to conform the instruction to the law in regard to reduction of the degree of a homicide from murder to manslaughter where the killing is voluntary “upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible.” Crawford & Moses’ Digest, § 2355. The homicide being unjustified, the degree was not reduced unless the facts brought it within the elements embraced in the definition of manslaughter.

The court made a similar modification in instruction No. 5, requested by appellant’s counsel on the subject of reduction of the degree of the offense from murder to manslaughter, and for the reasons stated above this modification was correct. The views we have expressed with reference to the right to kill in defense of property disposes of many of appellant’s assignments of error concerning the rulings of the court on the admissibility of testimony. For instance, it is earnestly insisted that the court erred in refusing to permit appellant to introduce proof concerning other efforts of the Britt brothers to take up hogs found running in the woods that were shown to belong to other persons. Such testimony was wholly immaterial, except in impeachment of the surviving Britt as a witness, and the court did not improperly restrict the right of appellant to impeach the witness.

Complaint is also made that the court erred in refusing to permit appellant to prove the general reputation of the deceased and his brother by a witness named Wright. The court excluded the testimonyon the ground that it was too remote in point of time and place, and in this we think the court was correct.

It is further contended that the court erred in refusing to permit appellant’s counsel to interrogate Elisha Britt on cross-examination, concerning his own efforts in connection with his brother Will to take up hogs belonging to other persons. It appears from the record that appellant was permitted to ask the witness a number of questions on this subject, and after the witness had stated that this was the first trouble that he had ever had about hogs, and that he had not on a former occasion taken up the hogs of Joe Wright, the court refused to permit counsel to ask further questions on that subject. Witness had already answered the questions by stating that he had not taken up hogs belonging to Joe Wright, and it was within the sound discretion of the court to control the cross-examination and to determine to what extent the questions should be repeated. We do not think that there was any abuse of the court’s discretion in this instance.

It is contended that the court erred in permitting witness Coop to testify that, just before the shooting occurred, appellant’s brother, Jonah, walked up to Will Britt and patted him on the shoulder and shoved him, saying, “You are going to turn the hogs out.’’ All of this occurred, according to the testimony, in the presence of appellant, and was a part of the controversy there between the two factions concerning the release of the hogs. We think it was competent to show everything that occurred there between the parties in the presence of each other.

After Britt was found fatally wounded lying in the weeds, Ms brother and one of the Coops asked appellant’s permission to put him in the wagon, which request appellant at first denied, saying that they must first go and turn loose the other hogs tied in the woods, but later said to them, “Well, throw him in,” referring to the act of putting the wounded man into the wagon. This fact was admitted in evidence, and the ruling of the court is assigned as error, but we think it was competent as a part of the transaction to show appellant’s mental attitude toward Britt at the time he fired the shot.

There are other assignments of error in regard to the introduction of evidence, which we do not find to be well founded, and are not of sufficient importance to call for a discussion.

From the viewpoint of appellant and accepting his version of the killing, there is much that can be said in the’ mitigation of his offense, but the jury has accepted the State’s theory as to the circumstances attending the Mlling and gave the defendant the extreme penalty imposed for the crime of murder in the second degree.

After careful consideration of the testimony, we are unable to say that the evidence does not justify the verdict. Finding no error in the proceedings, the judgment is affirmed.


text:
    Coppersmith v. State.
    Opinion delivered September 26, 1921.
    1. Continuance — absent witnesses — diligence.-—A motion fox continuance was properly denied where it does not appear that the applicant was diligent in procuring process for their attendance, he having waited until the case was set down for trial -before securing subpoenas, and having failed to follow up the process to the extent of ascertaining the whereabouts of the witnesses so that their attendance could be procured.
    2. Continuance — absent witnesses- — likelihood of peocueing attendance.— It was not error to refuse a continuance for the absence of witnesses who had disappeared from their usual haunts and could not be located, where there was no certainty of procuring their attendance at a future date.
    3. CRIMINAL law — INSTRUCTION-—'GENERAL OBJECTION. — Where an instruction did not expressly assume that defendant was connected with or interested in the operation of a gambling house, objection that it impliedly assumed that fact should be raised by specific objection.
    4. Gaming — gaming house — instruction.—In a prosecution for operating a gambling house, it was not error to refuse an .instruction upon the question of defendant’s guilt or innocence of the offense of unlawful gaming.
    Appeal'from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      B. H. Randolph, J. A. Stallcup and A. J. Murphy, for appellant.
    The motion for continuance should have been sustained. § 10 Art. 2, Const. 1874; 71 Ark. 182; 99 Ark 398; 21 Ark. 461.

      J. S. Utley, Attorney General, Elbert Gockvin and W. T. Eammoch, Assistants, for appellee.
    1. Instruction No. 6 given by the court did not assume that Piovia’s evidence tended to show that defendant was connected with or interested in the gambling place, such assumption having been eliminated by the qualifying clause used by the court; but, if he thought it assumed such fact, defendant should have made specific objection. 136 Ark. 272.
    2. Instruction- No. 6 requested by the defendant was erroneous in assuming that the indictment for operating a gambling house included the lesser offense of gaming. 14 R. C. L. § 53, p. 211; 22 Cyc. 481.
    Sections 2632 and 2639, Crawford & Moses’ Digest, provide punishment for two separate and distinct offenses.
    3. There was no abuse of discretion in denying the motion for continuance. 130 Ark. 245; Id. 592; 133 Ark. 239: 130 Ark. 149: 218 S. W. 170.
   McCulloch, C. J.

The indictment against appellant returned by the grand jury of Garland County is for the offense of operating a gambling house in the city of Hot Springs. It is charged in tie indictment that the gambling was conducted in a room, mentioning the number of the room, in a certain hotel in the city of Hot Springs.

When the case was called for trial, appellant presented a motion for continuance in order to procure the attendance of two absent witnesses, George Brown and Whitey Jackson, and the ruling of the court in refusing to postpone the trial is the principal assignment of error urged here for reversal of the judgment. It is stated in the motion that each of the two witnesses would testify, if present, that the room in question was rented and occupied as a bedroom by Brown, and that appellant did not occupy the room for any purpose nor operate a gambling game therein. It appears from the record and from the recitals of the motion for continuance that the indictment against appellant was returned by the grand jury on the 27th day of January, 1921, and that on March 24, 1921, the court set the case down for trial on April 5, a subpoena being issued on that date for each of said witnesses. Brown was a resident of Garland .County, and Jackson was a resident of Pulaski County, and the subpoenas were issued respectively to those counties, but were subsequently returned unserved.

Appellant alleged in his motion that the said witnesses were temporarily absent from their respective places of residence; that he had heard of their being in El Dorado, Arkansas, and had sent a subpoena to Union County, but that the same had not been returned up to the day of the trial. The motion contained a formal statement that the witnesses were temporarily absent, and that their attendance upon the trial at a later date could be procured; that their absence was without the procurement or connivance of appellant, and that he could not establish the facts recited by any other witness. The court overruled the motion, and on a trial of the cause there was a conflict in the testimony as to who operated the gambling game in the room mentioned. There was testimony adduced by the State tending to show that appellant occupied the room and operated the game, and, on.the other hand, there was testimony introduced by the appellant tending to show that he had nothing to do with the operation of the game, but that the room was occupied by Brown, and that Brown operated the game. We are of the opinion that the court was correct in finding that appellant had not exercised proper diligence entitling him to a continuance of the cause.

Appellant was not justified in waiting until the case was set for trial in preparing his cause and in having his witnesses summoned. The indictment was returned and appellant was arrested on January 27, but, according to his own statement, he did not set about the procurement of the attendance of the witnesses until March 24, and, even after that date, it does not appear that he was diligent in following the matter up to extent of ascertaining the whereabouts of the witnesses so that their attendance could be procured. Moreover, the fact that the witnesses suddenly disappeared from their usual haunts and could not be located justified the court in concluding that they were evading the service of process, and that there was no certainty of procuring their attendance at a future date. We think that the ruling of the court can be sustained on either of these grounds, and there should be no reversal of the judgment on account of the refusal to postpone the trial.

Another assignment of error relates to the giving of the following instruction:

“You could not convict on the testimony of the witness, Piovia, alone, but if you believe that his testimony which tends to show that defendant was connected with and interested in the place, if it does tend to show that he was. connected with it, is corroborated by other evi-deuce tending to prove that defendant was interested in it and yon believe from all of the evidence in the casé, including that of Piovia, that defendant was interested in the operation of a gambling house or room, you should find the defendant guilty.”

The contention is that the court assumed in this instruction that appellant was connected with or interested in the operation of the gambling house: The instruction ' does not, we think, contain such an assumption of facts— certainly not in express terms; and if it could be construed by implication to contain such an assumption, it was the duty of appellant to call the court’s attention to it by a specific objection. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325; Burnett v. State, 80 Ark. 225; St. L., I. M. & S. Ry. Co. v. Evans, 96 Ark. 547; Hogue v. State, 93 Ark. 316; Miller v. Fort Smith L. & T. Co., 136 Ark. 272.

It is also contended that the court erred in refusing to give an instruction submitting to the jury the question of defendant’s guilt or innocence of the offense of unlawful gaming. It is sufficient to say in response to this contention that an indictment for operating a gambling house does not include thfe offense of gaming and appellant could not properly have been convicted of the latter offense under that indictment. The court was therefore correct in refusing to submit to the jury the question of appellant’s guilt or innocence of the offense of gaining.

Finding no error in the record, the judgment must be affirmed. It is so ordered.


author: Wood, J.

text:
    Williams v. State.
    Opinion delivered September 26, 1921.
    1. Homicide — -self defense — instruction as to burden of proof. —It was not error, in a murder case, to instruct upon the burden of proving circumstances of mitigation that justify or excuse the homicide, etc., in the language of Crawford & Moses’ Dig., § 2342, where the court, in another instruction, told the jury that “it is a sufficient defense if the circumstances of mitigation or justification are such as would raise in your minds a reasonable doubt as to the defendant’s guilt.”
    2. Homicide — defense of habitation oe property.— An instruction upon the right to kill in defense of habitation or property was properly refused as being abstract where there was no testimony to warrant an inference that the killing was done in defense of either home or property.
    Appeal from Ouachita Circuit Court; George B. Eaynie, Judge;
    affirmed.

      Powell & Smead, for appellant.
    1. Instruction No. 5 given by the court erred in that it ignored the rule that on the whole case the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt.
    2. Instruction,’ No. 7 requested by the defendant was correct, and such an instruction as he was entitled to on the theory of self defense, even though the killing was not committed in defendant’s home or place where he was visiting. As a guest in the house where the killing occurred, he had the same right to protect himself and the house as if he had been in his own home. He was entitled to an instruction on his theory of defense. 55 Ark. 593; Id. 604; 113 Ark. 454.
    3. Requested instruction numbered 9 was based on the statutes, §§ 2372 and 2373, Crawford & Moses’ Digest, and should have been given. Cases supra.

      J. S. Utley, Attorney General, Elbert Goduñn and W. T. Eamvinoch, Assistants, for appellee.
    1. Since appellant in his brief urges error only in respect to the giving of instruction No. 5 and refusing to give instructions numbered 7 and 9 requested by him, all other assignments of error in the motion for new trial will be deemed to have been waived. 147 S. W. 76; 150 S. W. 125.

      2. Instruction No. 5 given by the court is the law of the case. Section 2342 Crawford & Moses’ Digest; 71 Ark. 459; 120 Ark. 193. It is admitted to be the law by appellant himself in his requested instruction No. 8 which the court gave.
    3. Appellant’s plea was not that he killed deceased in defense of habitation or property but self defense. There was no error in refusing his requested instructions 7 and 9. Moreover the court fully covered defendant’s theory of defense in instructions 3, 4, 5, 6 and 8, given at his request.
   Wood, J.

The appellant was indicted for the crime of murder in the first degree in the killing of one Burl Beard. He was convicted of voluntary manslaughter. Burl Beard lived at his father’s home, which was about two hundred yards from the home of Dorsey Warrent. In the early morning of October 15, 1920, Beard was out on the porch at his father’s house when Warrent called to him, saying, “Come up here, Burl; I want to see you.” Burl replied, “I can’t; I have to help papa.” Warrent called him again and Burl put on his shoes but didn’t lace them and went to Warrent’s. Warrent accused Beard of being around his house the night before, which Beard denied. The appellant, who had spent the night at Warrent’s house, accused Beard of being around the house the preceding night. According to the testimony for the appellant, Beard became enraged at the appellant. because he had accused him of being around the house of Warrent the night before, told the appellant that he lied about it, went back to his home and returned to Warrent’s. The mother of appellant went over to Warrent’s home, and while she was there Beard returned and asked his mother for a key, and started to go in the yard, and his mother and Warrent tried to prevent him. He continued on to the steps of the house when appellant told him not to come any further. Beard made the next step, and the appellant shot him. Beard had his hand behind him and stepped on the porch, and the appellant fired again. Beard bad nothing in his hand. No weapon was found on his person.

Among others, the court on its own motion gave the following instuction:

“No. 5. The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”

• The court refused the following prayers of appellant for instructions:

“No. 7. You are instructed that justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony; and if the jury believe from the evidence in this case that the defendant shot and killed the deceased while in the defendant’s home or place of habitation, or where the defendant was visiting, and that the deceased at the time he was shot by the defendant was manifestly endeavoring to assault the defendant for the purpose of taking his life or doing him great bodily harm, then the defendant was not required to retreat, but had the right to stand his ground, and, if it appeared to him, acting as a reasonably prudent person, to be necessary to shoot deceased to prevent such assault, then he is justified in so doing, and your verdict will acquit him therefor. ’ ’
“No. 9. You are instructed that every man’s house or place of residence shall be deemed and adjudged, in law, his castle. And a manifest attempt and endeavor in a violent, riotous or tumultuous manner to enter the habitation of another for the purpose of assaulting or . offering personal violence to any person dwelling or being therein, shall be a justification for homicide. So, in this case,, if you believe from the evidence that the house in which deceased was shot by defendant was the place of residence of defendant, whether he owned the house or not, and that the deceased, in a violent or threatening manner, entered said house, for the purpose of assaulting or offering personal violence to the defendant, then the defendant would be justified in shooting deceased, and you will find him not guilty. ’ ’

1. Error is predicated on the ruling of the court in giving instruction No. 5, the contention being that the instruction was erroneous because it ignored the well known rule of law that in criminal prosecutions the burden of proof upon the whole case is on the State. The instruction was a literal copy of section 2342 of Crawford & Moses’ Digest. It must be read in connection with another instruction which the court gave, and which' appellant fails to abstract, and which reads as follows :

“You are instructed that, while it is true that, the ■ killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the .accused, unless by proof on the part of the prosecution it is sufficiently manifest that the .offense only amounted to manslaughter, or that the accused was justified, or excused in committing the homicide, yet you are told that it is a sufficient defense if the circumstances of mitigation or justification are such as would raise in your minds a reasonable doubt as to the defendant’s guilt.”

The instructions when read together do not conflict and conform to the decisions of this court in Johnson v. State, 120 Ark. 193; Brock v. State, 101 Ark. 147; Cogburn v. State, 76 Ark. 110-112; Tignor v. State, 76 Ark. 489; Petty v. State, 76 Ark. 515. The court did not err in gjving the above instruction No. 5.

2. The court did not err in refusing appellant’s prayers for instructions Nos. 7 and 9. These instructions, under the evidence, were abstract as appertaining to the home or property of appellant. Although Williams was temporarily at the home of Warrent, there is nothing in the testimony that would warrant an inference that the appellant shot Beard because he was attempting to invade the home of Warrent, or that he shot him to protect his property. The testimony on behalf of appellant tended to prove that he killed Beard because the latter had threatened and was at the time seeking to take the appellant’s life. There was therefore no testimony to warrant the court in submitting to the jury the issue as to whether or not the appellant killed Beard in the defense of his habitation or property. The only defense that appellant was justified in making under the evidence was that the killing was done in defense of his person, and this theory of the defense was fully and correctly covered in instructions which the court gave.

We find no error in the court’s rulings, and its judgment is therefore affirmed.


text:
    Winston v. State.
    Opinion delivered September 26, 1921.
    Intoxicating liquoRS — manufacture of whisKey — instruction. — Under an indictment for manufacturing “whiskey”, it was error to instruct the jury to find the defendant guilty if he manufactured any intoxicating liquor.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    reversed.
    The indictment charges the manufacture of' whiskey. Proof of making choc beer is not sufficient. The words “commonly called whiskey” used in the indictment are descriptive of the offense charged. 129 Ark. 362, 364; 62 Ark. 459; 84 Ark. 285; 71 Ark. 415; 64 Ark. 188; 37 Ark. 408; 141 Ark. 276. One offense cannot be proved by evidence of another, unless the two are so related as to form a part of the same transaction. 91 Ark. 555; 88 Ark. 579; 39 Ark. 278; 100 Ark. 321; 62 Ark. 126.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Evidence of other offenses or acts similar to the one charged in an indictment is competent for the purpose of showing knowledge, intent or design. - 87 Ark. 17.
    Where the defendant, testifying in his own ¡behalf, is asked on cross-examination improper and incompetent questions to' which he returns negative answers, no prejudice results to him. Garrison v. State, Ms. Op.
    2. A general objection to several instructions will not be considered an appeal, if any of them was good. 105 Ark. 15; 73 Ark. 315; 75 Ark. 182; 76 Ark. 41; Id. 482; 78 Ark. 7; 86 Ark. 103.
    3. Appellants request for peremptory instruction was properly refused. The facts and circumstances prove the defendant guilty as charged. 135 Ark. 117; 136 Ark. 385.
   Wood, J.

This is an appeal from a judgment of conviction on an indictment which charged that the appellant “unlawfully and feloniously did manufacture and unlawfully and feloniously was interested in the manufacturing of one pint .of alcoholic, ardent, vinous and intoxicating spirits commonly called “whiskey.” The appellant denied that he had manufactured any whiskey. There was testimony from which the jury might have found that the appellant had manufactured whiskey. There was also testimony from which the jury might have found that the appellant was engaged in the manufacture of “choc beer,” and not whiskey.

The court gave one instruction which contained several independent propositions of law in separate paragraphs, but the paragraphs were not numbered. In one of the paragraphs the court instructed the jury in part as follows: ‘ ‘ The material allegations in the indictment are, that the accused, within three years and in Faulkner County, Arkansas, before the return of this indictment, unlawfully and feloniously manufactured alcoholic, ardent, vinous and intoxicating liquors. To tbis indictment, defendant pleads not guilty, and that casts the burden upon the State of proving same beyond a reasonable doubt. If you find from the evidence in this case that the defendant did manufacture any intoxicating liquor used and drunk as a beverage whether it contained one hundred per cent.- or one per cent, is immaterial under this statute; he would be guilty of violating this law. ’ ’

The appellant objected “to each and every instruction given by the court on its own motion.” The court overruled the objection, to which ruling the appellant excepted. The objection was not en grosse, but was to “each” instruction or declaration of law that the court gave. Although the several declarations of law were not separately numbered, yet each one of these declarations, which were independent and different in meaning, must be treated as a separate instruction. The term “whiskey” in the indictment was descriptive of the offense, and it was incumbent on the State to prove the charge of manufacturing “whiskey” as alleged. Carleton v. State, 129 Ark. 361, and cases there cited. See, also, Sheffield, v. State, 141 Ark. 276. But, under the instruction given by the court, the jury was authorized to find the appellant guilty if they found that he “unlawfully and feloniously manufactured alcoholic, ardent, vinous and intoxicating liquors used and drunk as a beverage, ’ ’ whether such liquor was whiskey or not. In other words, the jury was authorized to find, and under the testimony may have found, that the appellant manufactured intoxicating liquor called “choc beer” to be used and drunk as a beverage. The instruction was erroneous.

We do not discuss other assignments of error because they may not arise on another trial. For the error of the court as indicated, the judgment is reversed and the cause remanded for a new trial.


text:
    Simon v. State.
    Opinion delivered September 26, 1921.
    1. Gaming — conducting gambling house — accomplices.—Under Crawford & M'oses’ Dig., § 2632, imposing a penalty on every person “who shall be interested, directly or indirectly, in running any gambling house,” the penalty is leveled only at the person who keeps or rather operates, or is “interested in the keeping or operating of a gambling house or place where gambling is carried on,” and not against the patrons of such an establishment or the persons who pay for the privilege of gambling therein and participate in card games played therein for money.
    2. CRIMINAL law — accomplices — corroboration ■— Under the statute requiring an accomplice to be corroborated, the test to determine whether or not one is an accomplice is, could the person so charged be convicted upon the evidence as a principal or accessory before the fact, or an aider and abetter?
    3. Criminal law — accomplices.—In a prosecution for conducting a gambling house,. persons who merely participated in games therein are not to be regarded as accomplices of the defendant.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      Martin, Wootton & Martin and G. Floytf, Huff, for appellant.
    Players in a card game are accomplices. Crawford & Moses’ Digest, § 2308; 16 C. J. 670 to 672; 36 Ark. 126: 90 Ark. 460; 130 Ark: 353; 141 Ark. 421; 129 Pac. 78; 43 L. B. A. (N. S.) 546 and cases cited. . .
    A conviction in a felony case cannot be had upon the uncorroborated testimony of an accomplice. Crawford & Moses’ Digest, § 3181.
    Whether or not a witness is an accomplice of the accused is a mixed question of law and fact. 51 Ark. 115; 63 Ark. 462; 111 Ark. 299. And defendant was entitled to have the question submitted to the jury under proper instructions. Appellant’s requested instruction No. 3 on the subject was refused by the court, which was error under the following decisions: 50 Ark. 526; 64 Ark. 247; 130 Ark. 353; 128 Ark. 452.

      In the.actions of the State’s witnesses there were all the necessary elements of standing by, aiding, abetting, assisting, advising and encouraging the appellant in the perpetration of the crime, .to make them accomplices under § 2308, C. & M. Digest, and the necessary “affirmative act” suggested in 141 Ark. 421.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Appellant’s requested instruction No. 3 was properly refused. Participants in a card game are not accomplices. The test of whether or not a witness is an accomplice is, could he himself have been indicted for the offense, either as principal or accessory? 1 E. C. L. § 3, p. 157; Cyc. 445-6; 16 C. J. p. 671. The State’s witnesses, by participating in the gambling being conducted, violated § 2639, C. & M. Digest, thereby committing a misdemeanor only. Sec. 3181, C. & M. Digest, requiring corroboration of testimony of accomplices, applies only in felony cases.
    Mere knowledge that a crime is being committed cannot constitute one an accomplice, nor can the concealment of such knowledge. 1 E. C. L., Sec. 3, pgs. 157-8.
    Where the facts are not disputed, and the acts and conduct of the witnesses admitted, the question then becomes one of law for the court to say whether or not those acts-and facts make the witness an accomplice, and is not a jury question. 1 E. C. L., § 3, p. 158.
    One who is permitted to play a game of chance upon the premises of another is not an accomplice, where the owner is prosecuted for permitting gambling.. 6 Ky. L. Eep. 517; 6 Ky. L. Eep. 217; 43 Mont. 427; 117 Pac. 95. By analogy see 16 C. J. § 1388, p. 681; 41 Tex Or. 358, 57 S. W. 850; 165 N. Y. S. 386; 16 O. J. note 24, p. 680; 155 Mass. 287, 29 N. E. 512; 203 N. Y. 73, 96 N. E. 362.
   Wood, J.

The appellant was convicted under an indictment which charged that he “unlawfully and felo-niously did keep, conduct and operate, and was interested directly and indirectly in keeping, conducting and operating a gambling house or place where gambling was carried on in a certain building on Central Avenue in the city of Hot Springs, Arkansas, and known as the Arkansas Cigar Store, and was interested directly and indirectly in keeping, conducting and operating said' gambling house by furnishing money and other articles for the purpose of carrying on said gambling house, against the peace and dignity of the State of Arkansas.”

The facts are substantially as. follows: The appellant rented a building in the city of Hot Springs from A: B. G-aines, paying as rent therefore the sum of $200 per month. The first floor was occupied as a cigar store, and its rental value was estimated at $125 per month. The proportion of the rental value of the upper rooms was estimated at $75 per month. The upper rooms had in them sixty or seventy chairs, pool tables, billiard tables, two or three round tables, desk, lounge, a kitchenette and a place with periodicals where one could sit down and read.

Among the witnesses who testified for the State were L. D. Cooper, Leon Binkelspiel, Matt Picchi, Mose Klyman and E. N. Roth. Their testimony does not differ in essential particulars, and is to the effect that they had frequently been in appellant’s place of business and had participated in card games played there for money. Each participant in the game of cards paid the sum of $6 for his seat at the table. Players did not pay for their checks when received. It was the custom of the place to have a settlement at periods more or less indefinite. No one was permitted to the rooms except invited guests. The company was select and the participants high-class business men. The $6 paid for the seat and the privilege of participating in the game also entitled the participant to refreshments such as sandwiches, soft drinks and other things to eat and drink. Usually the players would buy $100 worth of checks from which the appellant would deduct $6, which was the charge for the privilege of participating in the games, and there was no additional charge for the other accessories mentioned above. These were furnished by the appellant free of charge. There was a charge of $1 a deck for the cards to those who participated in the game of poker. No charges were made for the cards used in bridge or whist. There were sometimes as many as eight people seated at a table participating in the game of poker and at different tables as many as twenty people playing poker at .one time in separate games. The poker games were played for money. The largest loss that the witnesses had ever known any of the participants to sustain was from $100 to $150. The witnesses participating in the poker games testified that the $6 paid for the “seats” was for the purpose of enabling appellant to conduct the business there and to “keep it open and going.”

The appellant requested the court to instruct the jury as follows:

“You are instructed that an accessory is one who stands by, aids, abets, assists, or who, not being present, hath advised and encouraged the perpetration of the crime. And if you find from the evidence in the case that the witnesses L. D. Cooper, Leon Dinkelspiel, Matt Cicchi, Mose Klyman and E. N. Roth, who have testified, contributed money to the defendant, in order to induce or enable him to conduct a gambling house, then each of them so contributing thereby became and was an accessory. And if you find that they are accessories or accomplices as above defined, then you are further instructed that the defendant can not be convicted on their testimony alone. Before one can be convicted on the testimony of an accomplice, there must be corroboration by other evidence, tending to connect the defendant with the commission of the offense. Nor can one accomplice corroborate another; but before the testimony of an accomplice can be considered by you at all as evidence of guilt, there must be other evidence before you, not given by an accomplice, which tends to connect the defendant with, the commission of the offense charged. And unless there he other evidence independent and apart- from any given by one or more accomplices, tending independently of any matters testified to by snch accomplices, one or more, to connect the defendant with the offense charged, yon should find him not gniltv. ’ ’

The court refused the appellant’s prayer, to which ruling the appellant duly excepted.

The only error .of which the appellant complains here is predicated upon the ruling of the court in refusing the above prayer. There was no error in the ruling of the court. Section 2632, C. & M. Digest, provides as follows: “Every person who shall keep, conduct .or operate, or who'shall he interested directly or indirectly in keeping, conducting or operating a gambling house or place where gambling is carried on, * * * or who shall be interested directly or indirectly in running any gambling house, * * * either by furnishing money or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof shall be confined in the State penitentiary for not less than one nor more than three years.” Act March 11, 1913.

There is no testimony tending to prove that the witnesses for the State, named in the prayer for instruction, supra, were interested directly or indirectly in the gambling house kept, conducted or operated by the appellant, nor is there any testimony tending to prove that they furnished any money or other articles for the purpose of carrying on any gambling house. It occurs to us that the penalty of this statute is leveled only at the person who “keeps” or “operates,” or is “interested'in the keeping or operating of a gambling house or place where gambling is carried on,”.and not against the mere patrons of such an establishment, or the persons who paid for the privilege of gambling therein and who were participants in any card games that were played therein for money. Giving the testimony of all or any of the witnesses for the State named in the above instruction its strongest probative force in favor of the appellant, it does not warrant the inference that any of these witnesses had any control over, or management of, or interest in, the house or place where the gambling was carried on. In the sense of the statute, they had no interest directly or indirectly in the running of the gambling house. While some of the witnesses say that the $6 paid by the participants in the poker' games was for the purpose of enabling the appellant to “keep the place and run it,” yet, when this language of the witness is taken in connection with their previous language, it is manifest that the meaning of the witnesses, and the only meaning of which their testimony is susceptible, is that they were paying $6 a seat whenever they desired to sit at the card tables and participate in the game of poker carried on in the gambling house or place maintained by the appellant; that this sum was paid for the privilege of indulging in the poker games and for the refreshments and other accessories mentioned by them incident thereto which the appellant furnished them in consideration of the charge specified.

“The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence ? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice. ” Levering v. Commonwealth, 132 Ky. 666-678, and other cases there cited. State v. Gordon, 105 Minn. 217-2191; State v. Durham, 73 Minn. 150-165, 1 R. C. L. 157, and cases cited in note; 12 Cyc. 445-446. “In order for a witness to be an accomplice, he must not only be implicated in the crime itself, but the evidence must tend to show that he acted in concert with the party on trial and against whom he testified.” 16 Corpus Juris 671. Now, when we lay the uncontroverted facts as set forth above alongside these legal tests for determining who is an accomplice, the conclusion is irresistible that tbe witnesses for the State named in appellant’s prayer for instruction were not the accomplices of the appellant in the crime of which he was convicted. If these witnesses had been indicted jointly or separately for maintaining a gambling house under the above statute, could they have been convicted under the undisputed evidence in this record? Cenrtainly not. They had no control, either directly or indirectly, over the house or place which the appellant maintained as a gambling house. They did not furnish him any money with which to run this house and only paid the fee or tax which he charged for the privilege of gambling and the services incident thereto, which appellant furnished them in consideration of such charge or fee. Appellant was not the agent or partner of these witnesses in the conduct or operation of the gambling house, and there was no concert of action among themselves or between any of them and appellant with reference to this matter.

As we view the record, the testimony is uncontro-verted and susceptible to only one conclusion. Therefore there was no room for the submission of the issue to the jury as to whether or not the witnesses named were accomplices of the appellant. These witnesses, of course, under their own testimony, were guilty of the separate and independent offense of gaming under section 2639 of C. & M. Digest, and, as their testimony shows, they paid the appellant for the privilege of participating in games of cards at the gambling house kept and maintained by appellant. These witnesses were no more accomplices of the appellant in the crime of keeping and operating a gambling house than was the appellant their accomplice in the games of poker which they played when he was not a participant.

“The term ‘accomplice’ can not be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. To constitute one an accomplice, be must take some part, perform some act, or owe some duty to tbe person in danger that makes it incumbent on him to prevent the commission .of tbe crime. Mere presence, acquiescence or silence, in tbe absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an ac- . complice. Tbe knowledge that a crime is being or is about to be committed can not be said to constitute one an accomplice. Nor can tbe concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission .of a crime. ” 1 E. C. L., § 3, pp. 157,158.

“Under the rule that an accomplice must unite in the commission of the crime and must be an associate therein, one participating in a gambling game operated by another in violation of a statute punishing one operating gambling games, is not an accomplice.” State v. Wakely, 43 Mont. 427, 117 Pa. 95-99.

“In a prosecution for conducting a gambling game or place of business, persons who merely play in the game or at such place are not regarded as accomplices of the defendant.” 16 Cor. Jur. 680.

The above excerpts from the texts are supported by the cases cited in the notes thereto. It follows that there is no error in the record, and the judgment must therefore be affirmed.


author: Hart, J.

text:
    Cain v. State.
    Opinion delivered September 26, 1921.
    1. Gaming — conducting a gambling house — evidence.—Evidence held to justify a finding that defendant was interested in conducting a gaming house.
    2. CRIMINAL LAW — MULTIPLICATION OP INSTRUCTIONS. — It is not error to refuse instructions fully covered by those given by the court.
    3. Gaming — conducting a gaming house — evidence.— Evidence that defendant had discharged an employee who was operating a crooked game in the basement of a pool hall which defendant was operating and that defendant was interested in gaming houses at other places in the same city was competent as tending to show that defendant was interested in a gaming luouse which was being operated in the basement of such pool hall.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.
    ' Geo. P. Whittington and B. M. Ryan, for appellant.
    The testimony introduced.was wholly insufficient to support the verdict of the jury.
    Proof of other crimes, distinct and separate, is inadmissible to establish the guilt of defendant. 37 Ark. 261; 39 Ark. 278; 54 Ark. 621; 80’ Ark. 495; 818 Ark. 579; 91 Ark. 555; 110 Ark. 226; 120 Ark. 462.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee. •
    1. The evidence was sufficient to sustain the allegation in the indictment that the defendant did unlawfully and feloniously keep, conduct and operate and was interested directly and indirectly in keeping, conducting and operating a gambling house and place of business where gambling is parried on.
    2. The court did not err in permitting the State to prove that gambling was carried on at other places which were owned and controlled by the defendant. 130 Ark. Ill; 129 Ark. 316; 130 Ark. 358; 130 Ark. 122; 131 Ark. 445.
    It was not error for the State to prove by witness Page, on cross examination, that he had been convicted of a crime and attack his credibility as a witness. 136 Ark. 473.
   Hart, J.

Timothy Cain was indicted for conducting and operating, and being interested in conducting and operating, a gaming house in the city of Hot Springs, Arkansas. The defendant was indicted under the provisions of section 2632 of. Crawford & Moses ’ Digest, and pros-ecntes this appeal to reverse a judgment of conviction against Mm after a trial before a jury.

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to sustain a conviction.

The evidence on the part of the State tended to show that a gaming house was operated at No. 422 Malvern Avenue in the city of Hot Springs in Garland County, Arkansas. The evidence tended to show that a crap game was run in the basement of the building, and that • forty or fifty people were found to be engaged in the game when a raid was made. There were buzzers in the basement, placed there for the purpose of warning the players that a raid was about to be made. The evidence tended to show that the place was run as a common gaming house.

The evidence on the part of the defendant tended to show that the place in question was known as the Pastime Pool Hall, and that it was operated by a man named Page, and that the defendant had nothing nothing whatever to do with its operation.

It is the contention of counsel for the defendant that the evidence on the part of the State is not sufficient to show that the defendant was interested in operating and conducting the gaming house.

We can not agree with counsel in this contention. One witness testified that the defendant was frequently seen in the building where the gaming* house was operated, and that, when any squabble or unusual noise occurred in the basement where the gaming was carried on, the defendant would come back to see about it. Another witness testified that on one occasion complaint was made to the defendant that the man who was conducting the game was doing so in a crooked manner and the defendant discharged the employee complained of. Another witness testified that- the defendant ran a gaming house at No. 424, Malvern Avenue, in which he had installed new gaming devices, and that he had moved his old gaming devices from a place in Hot Springs known as the Eollins place to the Pastime place located at 422, Malvern Avenue.

It is fairly inferable from this testimony that the defendant was interested in the Pastime place, and that it was being conducted as a gaming house. The evidence for the State, if believed by the jury, was legally sufficient to show that the Pastime place was operated as a gaming house within three years before the finding of the indictment, and that the defendant was interested in conducting the gaming house.

It is next insisted that the judgment should be reversed because, under one of the instructions given for the State, the jury might have found the defendant guilty of operating a gaming house at any place in Hot Springs, wjiile the State had elected to prosecute the defendant for conducting a gaming house at the Pastime place, or being interested therein.

The instruction in question, together with other instructions, had been given by the court before the State elected to prosecute the defendant for operating a gaming house at the Pastime place at No. 422, Malvern Avenue. After the State had made its election, the court specifically told the jury that it could not convict the defendant for. conducting a gaming house.other than the one at the Pastime place on which the State had elected to rely, and that proof of similar offenses about the same time at other places in the city of Hot Springs could only be considered as evidence in determining whether .or not the defendant was guilty of operating a gaming house at the Pastime place. Thus the jury was told that it could not consider evidence of running a gaming house at other places without restriction; but that such evidence could only be considered for the purpose for which it was admitted.

The instruction, as a whole, properly guarded the rights of the defendant, and, if the defendant thought that the instruction complained of was misleading, he should have specifically objected to it on tbe ground that it was necessary to find that tbe defendant was interested in running a gaming bouse at tbe Pastime place in order to convict bim; for tbe jury must be credited with having common sense, and, wben tbe instructions are read as a whole, it is perfectly plain that tbe jury was restricted to tbe Pastime place, and that evidence of running a gaming bouse at other places was only admitted for tbe purpose of showing that tbe defendant was guilty of being interested in operating a gaming bouse at tbe Pastime place.

It is next insisted that tbe court erred in refusing to give instruction No. 3 asked by tbe defendant. This instruction told tbe jury, in effect, that unless tbe State bad proved, beyond a reasonable doubt, that tbe defendant bad some interest, in the Pastime place, and that gaming was carried on therein with bis consent and knowledge, it should not convict bim. Tbe matters embraced in tbe refused instruction were fully covered by tbe instructions given by tbe court. Tbe jury was specifically told that, in order to convict, it was necessary to find that be operated tbe gaming bouse in question and bad direction and supervision over it. Tbe court was not required to multiply instructions on tbe same point.

It is next insisted that tbe court erred in admitting evidence tending to show that the defendant operated 'gaming bouses at other places in Hot Springs than tbe Pastime place. There was no error in admitting this testimony to go to tbe jury. It is true tbe general rule is that evidence of tbe commission of other crimes is admissible only wben such evidence tends directly or indirectly to establish the defendant’s guilt of tbe crime charged in tbe indictment or some essential ingredient thereof. Tbe evidence of tbe commission of other crimes of a similar nature about tbe same time, however, tends to show tbe guilt of tbe defendant of tbe crime charged wben it discloses a criminal intent, guilty knowledge, identifies tbe defendant, or is part of common scheme or plan • embracing two or more crimes so related to each other that the proof of one tends to establish the other. Larkin v. State, 131 Ark. 445.

Here the evidence shows that the defendant on one occasion discharged an employee who was operating a crooked game in the basement of the Pastime place and evidence that the defendant was interested in running gaming houses at other places in the city of Hot Springs about this time tended to show that he was operating a gaming house in the Pastime place and was not merely running a game on some particular occasion. Such evidence also tended to show that he had knowledge that a gaming house was being operated in the basement of the Pastime place, which other evidence tends to show that he was interested in and operating.

We find no prejudicial errors in the record, and the judgment will be affirmed.


author: Hast, J.

text:
    Leake v. State.
    Opinion delivered September 26, 1921.
    1. CRIMINAL law — LOST INSTRUMENT — SECONDARY EVIDENCE. — In a prosecution for forgery, secondary evidence of the contents of the instrument alleged to have been forged was admissible where all sources of information and means of discovery which the nature of the. case would naturally suggest were in good faith exhausted by the prosecuting attorney in -trying to find the alleged forged instrument.
    2. Criminal law — lost instrument — evidence.—In a prosecution for forgery it was competent for the prosecuting attorney to testify, in regard to the loss of the instrument alleged to have been forged, that he had made inquiry of the outgoing prosecuting attorney as to the whereabouts of the instrument.
    Appeal from Ouachita Circuit Court; George R. Haynie, Judge;
    affirmed.

      Powell & Smead, for appellant.
    Production of the original order was material. No sufficient foundation was laid for the production of secondary evidence. The testimony of A. D. Pope, the prosecuting attorney, was pure hearsay. 60 Ark. 141.

      J. 8. TJtley, Attorney General, Elbert Godwm and W. T. Hammock, Assistants, for appellee.
    As to whether or not the loss of the order was sufficiently accounted for to warrant the admission of secondary evidence of its contents was a question for the court, and its holding will not he disturbed unless there was a manifest abuse of discretion. 1 Greenleaf on Evidence, § 558; 60 Ark. 141. Diligent search was made ¡by the clerk, the keeper of the records, and by the State’s attorney. 10 R. C. L. §76, pp. 917-918; Id. §77, p. 919; 136 Ark. 175.
   Hast, J.

Huby Leake prosecutes this appeal to reverse a judgment of conviction against him for the crime of uttering a forged instrument.

The indictment charges the defendant with the crime of uttering a forged order drawn on George Gordon, a merchant of Camden, Arkansas, purporting to be signed by Will Blakely. At the time of the trial the State did not produce the instrument, but proved its contents by George Gordon and Will Blakely, and also proved by them that the defendant uttered the forged order in Ouachita County, Arkansas, within three years prior to the finding of the indictment.

As a foundation for the admission of the testimony of George Gordon and Will Blakely as to the contents of the alleged forged order, the State proved by the clerk of Ouachita Circuit Court that it was the custom of the prosecuting attorney in office at the time the indictment in the present case was returned to pin orders such as the one in the instant case in the grand jury book and that the grand jury book was kept in the office of the circuit clerk; that the circuit clerk made a diligent search in his office for the grand jury book and the order in question, and has not been able to find it.

The present prosecuting attorney testified that, to-' gether with the circuit clerk, he made a diligent search for the grand jury book and the alleged forged order; that he made a special trip to El Dorado to see the prosecuting attorney who drew the indictment and was unable to locate the grand jury book, or the alleged forged order after having made a diligent search for the same. On cross-examination, the prosecuting attorney testified that he searched fairly thoroughly through a plunder room of the office of the attorneys for the defendant, and was unable to find anything that looked like the grand jury hook or the alleged forged order in question. The prosecuting attorney testified that he had gone to considerable expense, and had made a diligent search for the alleged forged order and had been unable to find the same.

At the trial the defendant made objections to the admission of the testimony of Gordon and Blakely as to the contents of the alleged forged order on the ground that there was no proof of diligent search or of the loss or destruction of the original. The proof of loss of the alleged forged order being a matter preliminary to the admission of the oral testimony of Geoge Gordon and Will Blakely as to its contents, the question of the sufficiency of the evidence was for the trial court, and of course the testimony offered on that question is subject to review on appeal. In order to show loss of the alleged instrument, it was necessary to prove that a diligent search had been made for it where it was most likely to he found. There is no general rule as to the degree of diligence in making the search; hut the prosecuting attorney who alleged the loss was expected to show “that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest/and which were accessible to him.” Wilburn v. State, 60 Ark. 141, and Simpson & Co. v. DalL, 3 Wall. (U. S.) 460.

In the Wilburn cash the court said that the diligence exercised did not measure up to the standard laid down above. In that case the indictment- charged the defendant with falsely pretending that he was the owner of a certain growing crop of cotton and corn. The defendant claimed that the court erred in allowing proof of the contents of a rent note executed to him, on the ground that the loss of the note had not been sufficiently established. On this point, it was shown that the prosecuting attorney had, about an hour before the trial, gone to the persons supposed to have the rent note in their possession and asked them to make a search for it. As thorough search as could be made in the limited time was made, but the witness could not say that a thorough search had been made. In fact, he stated that the note must be among the papers of the firm, and that by further search they might possibly find it.

In the present case a thorough search was made for the instrument in the clerk’s office where papers of that kind were usually kept. The prosecuting attorney also made a special trip to consult with the outgoing prosecuting attorney as to the place where the instrument might be found. He testified that he made a diligent search and went to considerable expense to find the instrument, but could not do so. As we have already seen, reasonable search is sufficient, although it does not appear that every possible search has been made. There are no circumstances tending to show in the remotest degree that the instrument has been designedly withheld. All sources of information and means of discovery which the nature of the case would naturally suggest were, in good faith, exhausted by the prosecuting attorney in trying to find the alleged forged instrument.

Under the facts disclosed by the record, we do not think the circuit court abused its discretion in finding that the instrument in question had been lost, and that secondary evidence of its contents was admissible. Hence the assignment of error that the judgment should be reversed on account of the admis°sion of the evidence of G-ordon and Blakely as to the contents of the alleged forged order is not well taken.

It is also insisted that the court erred in permitting the prosecuting attorney to testify that he had made inquiry of the outgoing prosecuting attorney as to the whereabouts of -the instrument. There was no- error in the action of the court in this respect. The prosecuting attorney was not permitted to testify what the former prosecuting attorney said to him about the instrument. The paper had been in the hands of the former prosecuting attorney, and it was perfectly proper for the prosecuting attorney to go to him, state the loss, and ask him where he should look for it. It was his duty to make a reasonable search for the paper in all places where it was likely to be found, and, in order to do this, it was perfectly proper for the present prosecuting attorney to go to the former prosecuting attorney and ask him about the paper and where he would be likely to find it.

No other assignments of error are urged to reverse the judgment, and, finding no error in the record, the judgment will be affirmed.