author: Mr. Chief Justice ENGLISH

text:
    Atkins vs. The State.
    A plea to an indictment for murder, that the defendant had once before been put in jeopardy of his life for said offence in said indictment, without showing' how or in what manner he had been put in jeopardy of his life, is bad on demurrer.
    And where such plea sets up that the defendant was before in jeopardy, upon another and different indictment, for tho same offence, it must also set out tho record of the former indictment: propose to verify the same by the record; and allego tho identity of the defendant in said plea to be the same as the one heretofore supposed to have been put in jeopardy of his life.
    It is a matter within tho sound discretion of the Circuit Judge, who is cognizant of all the circumstances, whether tho jury ought to be discharged on account of the sickness of one of the panel; and this court will not control that discretion, unless it affirmatively appear of record that it was exercised to the detriment of the prisoner.
    A person who is “opposed to capital punishments,” is not, therefor, incompetent and disqualified as a juror: and it is error in the court to reject ono of tho original venire for such cause.
    Where threats, on a trial for murder, are proved to have been made by tho defendant against the deceased, the defendant should be permitted to enquire of the witness as to any irritating or provoking remarks, made at tho time by the deceased, inducing the threats.

      A witness, in a criminal case, cannoi be interrogated as to his stalomonls mado before tho examining couri, unless such siatemonls bo different from tho evidence given on tho trial: then ho may bo interrogated as re such statements with tho view of contradicting' him.
    A defendant on a trial for murder, has no right to road in ovidcnco to tho jury, tlio stalomonl mado by him and reduced lo writing before tho examining court.
    Evidence of ducats mado by the deceased, against tho prisoner, are inadmissible in his defence, unless there be proof that they were i omnnmicated to him before the homicide.
    ■Where a witness makes a simement on tho trial, differing from dial mado by him before tlio examining mugís rare, and such testimony was reduced to writing', it should bo produced lor rite purpose of contradieUug- him, or suiieionS ground laid for Jio introduction of recomían ei idenc.o.
    It is not allowable on cn>ss-e\ummai ion to put questions to a witness, not relating to tlio matter in issue, for ho purpose of eonindicting him by oilier W'iinesses: but such quos. ions may bo put lo him for die purpose of trying' his credibility — in such case, the cross-examining parly must bo saiisiiod with Ilia answer.
    It is no', necessary .lint, the vedie,, in a criminal cause should bo written on the indictment, though it i.-, usual re do so; nor dud, it should bo returned in writing at all.
    It is error in tho court to permit dio anverso jury, when retiring, to ialco with them, for any purpose, a record containing the ovidcnco given before tho commit ling magistrate, not oiVorod in ovidcnco on the trial, though tho court instruct tho jury “that they must not read said record.”
    Tho fue; that the prisoner weir, to the house of the deceased “for tho purpose of having a difficulty with him.” and in that cliffieully hilled him, with a deadly weapon, would not, regardless of all other ciretuus.ancos attending tlio difficult}'', make tlio homicide a murder.
    Where two panics propose and accept a combat, widiout previous malice, and ono kills dm other with a deadly weapon, ho is at leas! gui'iy of manslaughter.
    If one parly asks another to st.ri' o him, ini ending lo use a deadly weapon, and upon being si ruck by ¡ho oilier with his fist or hand, kills him with such deadly weapon, ho is guilty of murder.
    If ono assail another with insulting words and blows, and wiiliout tlio use of any weapon, and the assailed party, whhouo ai tempi Log lo ovado tho fight, kill the other with a deadly weapon, ho H gniliy of manslaughter.
    Instructions should not assume .hat the fact,:upon which they aro based were proven; but should bo so framed as lo leave tho jury to determino whether or not they were proven.

      Appeal from Union Circuit Court.

    Hon. TiioMAs Iíubbaed, Circuit Judge.
    "WatkiNS &Gallaguiek, for tlio appellant.
    1. The court should bayo sustained Atkins’ motion to be discharged, for the court discharged the jury without absolute or inevitable necessity. 3 Phill. on Ev. 953, a/nd cases there cited j Commonwealth vs. Coove, 6 Serg. & Ramie 577/ 10 Yerger 536 / Stewart vs. State, 13 Arh. 747/ Sevens vs. State, 6 Eng. 455.
    2. The court erred in setting aside for cause the jurors on account of being merely opposed to capital punishment, contrary to statutory and common law. Secs. 158, 161, chap. 52, Digest / Wheaton’s Am. Grim. Law 856, and authorities cited/ 17 Serg. <& Rawle 164 / People vs. Brodine, 1 Denio 317/ 24 Wend. 549 / 4 ib. 240.
    3. Court erred in refusing Carroll to testify the whole of the .conversation that led to Atkins’ threats. Wha/rt. Am. Crim. Laxo 884, p. 287, amd cases there cited.

    4. Court erred in refusing to allow Atkins’ testimony or statements before examining court to be read. Digest, chap. 52, sec. 33, p. 392.
    5. The court erred in refusing to allow the witness to refresh his memory by reference to his former written depositions. 1 Greeml. on Ev.> sec. 436, note 3.
    6. The court allowed jury to take papers away with them, not in evidence in the cause, but relating thereto. Wha/rt. Am. Or. Law, p. 901, and authorities there cited.

    7. That the court erred in the instructions given, see State vs. Yoes, 4 Eng. 243 / Bevins vs. State, 6 Eng. 460 / Wharton’s Am. Cri/m. Law 362, 369, 372, and authorities.

    Mr. Attorney General JoedaN, contra.
    The court below did not err in overruling the motion: because, the only method by which that question could be raised,^was by plea. Brown vs. Peevey, 1 Eng. 36/ ib. 196/ Houston vs. Moore, 5 Wheat. 3/ Serg. Const. Law 278/ Moore vs. State, Walker Miss. Rep. 139 / 1 Russell on Crimes 837, note 1.
    The plea setting up the same matter, is objectionable, be■cause it sets up matter of law. As to such pleas, see 6 Serg. & Ramie 588 / 10 Yerger 537/ 2 John. Cases 275.

      As to challenges of jurors, see 13 Ark. 147/ Digest 412/ Wharton Grim. Law 856 ; 17 Serg. <& R. 155.
    As to reading the examination of the prisoner, before the examining court: Rosooe’s Grim. Eo. 60, 61, 64, 65 / 1 Haywood Rep. 112 / 3 Hill H. 0. Rep. 291.
    As to a witness refreshing his memory : 1 Greenleaf s Ho., seo. 436.
    Though the court may have erred in the instructions, yet if the verdict be right on the whole recored, it should be sustained. 14 Ark. 420 / 4 Eng. 213 / 6 Eng. 764.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court,

At the April term of the Columbia Circuit Court, 1853, No-, bert W. Atkins was indicted for the murder of Thomas "Wicker. The venue was afterwards changed to the Union Circuit Court, where the defendant was tried, convicted of manslaughter, sentenced to the Penitentiary for three years and one month, and appealed to this court.

The questions of law reserved for the decision of this court, will be taken.-up in the order in which they are presented of record, and have been argued by counsel.

1. At the term at which the indictment was found, the defen-» dant was arraigned, pleaded not guilty, and the cause was continued. During the first week of the next October term of the Columbia Circuit Court, (1853,) steps appear to have been taken to empannel a jury for the trial of the cause, but the requisite number seem not to have been obtained until Saturday of the first week of the term, when the panel was completed, and the jury sworn.

On Monday of the second week of the term, it seems that the trial commenced, a witness was examined on the part of the State, an objection by the defendant to the proof of the dying declarations of the deceased, overruled by the court, and excep--tions taken.

Then follows a record entry in these words : “During the ex-» ampliation of said Wicker, (tlie witness above referred to) and pending the trial, Janies Gault, one of the jurors to fay this cause, was reported to be sick — whereupon, the court took a recess until one o’clock, P. PL

Dr. A. J. Smith, a regular, practicing physician, being called in to see the said James Gault, the juror aforesaid, reported to the court that he considered said Gault wholly unable to sit as a juror to-day, and in the event said juror might soon recover, his sitting as a juror would produce a relapso — therefore, the court discharged the jury without day.”

Thereupon, it appears, the defendant iiled a motion to be discharged, on the ground that he had been regularly put upon his trial bo lore a jury duly oinpmnneled, and the jury discharged pending the trial, without his consent, which motion the court overruled.

The prosecuting attorney then moved for a venire de novo, and that the court proceed to try the cause at that term, but the court overruled ihe motion, and continued the case.

At 1 he next term, the cause was continued on the motion of the defendant.

At the October term, 1S54, the defendant filed the following plea:

‘‘And now on this day, comes the said Bobert Atkins, in his own proper person, and for a further plea in this behalf, by leave of the court, &e., says that the said State ought to bo barred in this behalf, and ought, not further to prosecute her said indictment against him, because he says that he lias once, before this time, been put in jeopardy of his life for said offence upon said indictment, in said Circuit Court of Columbia county aforesaid, at the term thereof, begun and held in and for said county of Columbia, on the third Monday after the fourth Monday in September, in tho year 1853, at, to wit: in the said county of Columbia, said court being then and there a court of general jurisdiction, and having then and there fall and complete jurisdiction of the issue specified and mentioned in said indictment, and of tlio person of the said Robert II. Atkins, at, to wit: in the county of Columbia, which he, the said Robert II. Atkins, is ready to verify- — -whereupon, ho prays judgment,” <fcc.

To which plea the State demurred on the following grounds:

1. “Said plea does not show how, or in what manner the said defendant has been put in jeopardy of his life.

2. It does not set out the record of the former indictment.

3. It does not propose to verily rhe same by the record.

1. It does not allege the identity of! lie defendant, in said plea, to be the same as the one heretofore supposed to hare been put in jeopardy of his life,” &u.

The court sustained (Tie demurrer.

"Was the demurrer to the plea properly sustained ? If so, should the court 'nave discharged the defendant upon the motion first made by him ?

The substance of the jilea is, that the defendant had once before been put in jeopardy of his life for said offence upon said indictment, in said Circuit Court, &c.

This was pleadingamere conclusion oflaw, anduot issuable facts. It may be supposed that the ma'úer of jeopardy, designed to be set up by the plea, was the discharge of the jury alter the cause had been submitted to them, at a previous term. But it was not proper for the plea to leave the court to inference. If the defendant thought proper to present the matter by plea, he should have alleged the facts, so Unit the State could have taken issue to them, or admitted them lo be true, l)3 demurrer, and submitted to the court their snfliciency in law to entitle him to a discharge from further prosecution.

The plea of former acquittal consists of matter of record and matter of fact — of record, the indictment and acquittal: of fact, that the defendant is the same person, and that the oiieuce is the same. United States vs. Shoemaker, 3 McLean's Rep. 120; 1 Chitty's Crim. Law 459.

A man who has stood upon his defence on a valid indictment, before a legal jury, which has been discharged without good cause, has incurred the first peril, and shall not incur the second by a subsequent trial. A modification of the usual plea of auterfoits acquit must be the consequence of establishing this doctrine, so as to adapt the plea to the facts: or if the plea remain unaltered, the rules of evidence must so far yield as to allow an averment of an acquittal by a verdict, to be proved by a record showing a virtual acquittal by the unnecessary discharge of a jury without a verdict. Weinzorpflin vs. The State, 7 Blackf. Rep. 192; United States vs. Shoemaker ub. sup; The People vs. Barnett et al., 1 John. Rep. 66; Commonwealth vs. Cook et al., 6 Serg. & Rawle 577.

The first objection taken to the plea, upon demurrer, that it did not show how, or in what manner the defendant had been put in jeopardy of his life, was, therefore, well taken.

Had the plea intended to set up that the defendant was before in jeopardy, upon another and different indictment for the same offence, the other objections taken upon demurrer would have been good.

But the plea being to the same indictment upon which the defendant had been previously arraigned and put upon his trial, it was not necessary for him to set out the indictment to which he was still pleading, for the whole record was before the court. The allegation, that the defendant had once before been put in jeopardy of his life for said offence, upon said indictment, would have been sufficient, had the plea gone further and alleged the facts relied on as constituting the jeopardy.

Should the defendant have ■ been discharged upon his motion ? It was objected, by the Attorney General, that the defendant could only raise the question of his right to discharge by plea, and not by motion.

This objection is not well taken in this case. The defendant moved for his discharge immediately after the court discharged the jury. The facts were all known to the court, and put upon its record. It was the action of the court, in progress of the trial, that the defendant complained of, and the court being perfectly cognizant of its own proceedings in the premises, no plea was necessary to enable it to determine tlie legal effect of discharging the jury, under the circumstances. The facts being upon record,, the question of the right of the defendant to be discharged front further prosecution, could be raised by motion or in arrest of judgment. Such has been the practice, as will appear from the following cases. Nugent vs. The State, 4 Stewart & Port. 72; State vs. Garrigues, 1 Haywood 241; United States vs. Perez, 9 Wheaton 579; The State ex. rel. Battle, 7 Ala. Rep. 259; The People vs. Barrett & Ward, 2 Caines’ Cases 305; The People vs. Olcott, 2 Johnson's Cases 301; The People vs. Goodwin, 18 J. R. 187.

The question recurs, should the defendant have been discharged ’ upon the merits of the motion ? The tacts stated of record in reference to the cause of the discharge of the jury, must be taken as true, as the defendant did not propose, by bill of exceptions, to put upon record any additional or different facts.

The 12th section of our Bill of Bights declares : “That no person shall, for the same offence, be twice put in jeopardy of life or limb.”

A similar clause is contained in the 5th Article of the Amendments to the Constitution of the United States, and in, perhaps, all of the American Bills of Bights. B was likéwise a provision of the common law.

Lord CoKE seems to have been of the opinion that a jury charged in a capital case, could not be discharged without giving a verdict, even with the consent of the prisoner and the attorney general. 1 Inst. 227 5/3 Inst. 110. But the doctrine was fully discussed in the case of the Kinlocks, Foster 22, and the law settled to be that where the jury is discharged by the consent, and for the benefit of the prisoner, he cannot avail himself of such discharge as ground to be released from further prosecution.

In The King vs. Edwards, 4 Taunt. 309, whilst the prosecutor was gi ving his evidence, one of the jurors fell down in a fit, and was. pronounced by a physician on oath, incapable of proceeding in his duty as a j uryman on that day: whereupon, tlic j nry was discharged, a new jury sworn and the prisoner convicted. The point argued before all the judges of England, (except Maxsjteud and Law-RENCK,) was, whether the prisoner [could be tried after the discharge of the jury without his consent. The judges held Unit it was the settled law that he could, and gave judgment against the prisoner. Such, too, was the decision in Ann Scalbert's case, 2 Leach C. C. 706. In The King vs. Stevenson, ib. 618, the prisoner fell down in a fit, during’ the trial, and the jury was discharged, and upon his recovering, he was tried, and convicted by another jury. Nugent vs. The State, 4 Stew. & Port. 78; 1 J. R. 204.

Mr. Cnrmr says (1 Crim. Law 629,) if one of the jurymen be taken ill during the trial, though of a capital offence, so as to be incapable of agreeing in the verdict, or die, the jury must bo discharged, though the evidence of the crown is n early gone through, and the prisoner may be tried afresh by another jury. "’ * And if the prisoner himself be taken so ill during the trial, that he is incapable of remaining at the bar, the investigation must be suspended; and when he afterwards recovers, another jury must be returned to decide on the merits of the accusation. In some cases, indeed, where a juryman has taken ill, the judge, instead of discharging the jury, has asked the prisoner’s consent to swear anolher juror in the room of him, who was removed by indisposition, but the better practice seems to bo that of discharging the jury altogether, and returning another, competent to determine the issue.

Nor are we without American adjudications on this point.

In the case of Nugent vs. The State, 4 Stew. & P. 72, the prisoner was arraigned for murder, pleaded not guilty, a jury was empanneled and sworn to try the issue, and the court adjourned until the next day. The record then recited that on the next day the presiding judge was so extremely indisposed as to render it impossible for him to preside; and it was, therefore, oi’-dered that the jury be discharged. At the ensuing term, the prisoner was again put upon bis trial, and a verdict of manslaughter against him. When called to the bar for sentence, his counsel moved for his discharge, on the ground of the discharge of the first jury, but the court overruled the motion, reserving the question for the decision of the Supreme Court. The Supremo Court, after reviewing the leading’ English and American decisions on the subject, held that the prisoner was not entitled to a discharge. The-general rule is recognized to be, that where a jury has been sworn, and the prisoner put upon his trial, they cannot bo discharged until they render a verdict without his consent, and if they are so discharged, he cannot he put upon his trial again: but the court, also, held that the ends of public justice admil ted of exceptions to the rule, based upon urgent necessity.

So it lias been held that the expiration of the term of a court, operates ipso facto, to discharge a jury deliberating upon a capital case: and such discharge will not bar a second trial. Love vs. The State, 4 Ala. Rep. 173; Ned vs. The State, 7 Porter 187.

In The People vs. Olcott, 2 Johnson’s Cases 301, the power of a court to discharge a jury, in a criminal case, before they render a verdict, without the consent of the prisoner, and the effect of such discharge, weie elaborately examined by Mr. Justice Next. The rule was conceded to he more rigid in capital cases and felonies, than in misdemeanors, but the judge remarks that all the authorities admit that when a juror becomes mentally disabled by sickness, &c., the court possesses the power, to be exercised with sound discretion, and based upon necessity, of discharging the jury. See, also, The People vs. Goodwin, 18 John. Rep. 187, where the subject was discussed by Chief Justice SpeNcuu: also, People vs. Barrett & Ward, 2 Caine's Cases, 304. In these cases, as well as in Commonwealth vs. Cook et al., 6 Serg. & Rawle, 577; Commonwealth vs. Clue, 3 Rawle 501; Ned vs. The State, 7 Porter 187; State vs. Job Garrigues, 1 Haywood, 241; United Stutes vs. Perez, 9 Whart. Rep. 570, and other cases cited iu these cases, the power of the court to discharge a jury because of their being unable to agree, without the consent of the prisoner, is discussed, and there is some conflict between them, but it is generally conceded that where the court is under the clear necessity of discharging a jury in consequence of the sickness of one of them, the prisoner may be put upon his trial again in capital cases.

In The United States vs. Perez, ubi sup. (9 Wheat. 579,) Judge StoR,t, delivering the opinion of the Supreme Court of the Uni* ted States, said : “We think that in all cases of this nature, the law lias invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge, and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oath.”

In The United States vs. Shoemaker, 2 McLean’s Rep. 117, the court said: “Where the judgment is arrested for some defect in the indictment, it is admitted that the defendant may be prosecuted a second time for the same olfence. And that a discharge of the jury by the court, under sudden emergency, constitutes no bar to another trial. In the first case, the defendant could not be said to have been in jeopardy, as the indictment was radically defective; and, in the second case, from the sudden indisposition of a witness, a juror, the court, or an irreconcilable difference of opinion among jurors, having occurred, over which neither the court nor the parties could exercise any control, the discharge of the jury became indispensable. The trial could not proceed : no verdict could be rendered — and, for tbis reason, the defendant, in such a case, was not considered in jeopardy. The fault was not with the prosecuting attorney, nor with the defendant, and the circumstance was so imperious as to lead to a failure of public justice, unless the coiu’t should discharge the jury.”

It is insisted by the counsel for the prisoner, in this case, that the juror having taken ill on Monday, and the court having the remainder of the week to sit, it should have"'waited to see if the juror would not recover from his illness in time to conclude the trial, and that the court had no right to discharge him at once, as it did. We think the matter rested in the sound discretion of the circuit judge, who was upon the spot, heard the statement of the physician, and was cognizant of all the surrounding circumstances, and unless it affirmatively appeared of record that this discretion was abused to the detriment of the prisoner, we would not feel warranted in saying that the jury was improperly and illegally discharged, and that the motion of the prisoner to be discharged from further prosecution, should have been sustained. The cases, however, cited above, abundantly show, that the power of the court to discharge the jury is a delicate one, based upon necessity, and should not be exercised except in cases of manifest and urgent necessity, and if the jury are improperly discharged, in a criminal case, after the issue is submitted to them, the accused cannot be put upon his trial again for the same offence. See Powell vs. State, 19 Ala. 581.

The remaining points reserved were made grounds of a motion for a new trial, which the court overruled, and the prisoner excepted, setting out the evidence, &c.

2. It appears that a venire facias was issued for thirty-eight jurors, and a list of the persons summoned duly served upon the prisoner. When the jurors were called to the bar for the purpose of making up the jury, it seems that the court propounded the following interrogatories to four of the regular panel: “Do you entertain any, opinion, which would preclude you from finding a prisoner guilty, where the punishment is death, if the evidence would justify tlie verdict, or in oilier words, are yov. oppomo, capital punishmani, f” And they severally answered “thatthey wove opposed to capital punishment.”

Whereupon, the counsel !bv the prisoner moved the court to limit the enquiry, and asir file jurors the questions in these or..‘mi-lar words : “Are your opinions such as to preclude you from finding any defendant guilty of an offence punishable with death?”

Which motion the court overruled, and decided that if a juror answered that, “he toas opposed io capital puniCi-nicnf, he was incompetent and disqualified as a juror, and the defendant excepted.

Thel5SiAs<3c.,c/wy?. 52, Dig., declares Unit “persons whose opinions are such as to preclude them from finding any defendant guilty of any ofteneo punishable with death, shall not be allowed or compelled to servo as jurors on the trial of an indictment for any offence punishable with death.”

The court surely erred in rejecting the jurors, because they were opposed to capital punishment, unless they had gone further and brought ¡hcm&olves within the disqualification prescribed by the statute.

Whatever may be a man's views of capita! punishment as a question of policy, the jury box is noi a proper [¡lace for him to consider such policy. There he is obliged, by his oath, to try the guilt or innocence of the accused, according to law and evidence, and not to set up his own private opinion against the policy of the law, which he is bound, as a good citizen, to abide by and administer, so long as it i^in force, and until it is repealed by the constituted authority. See the authorities collected on this subject in Wharton's Crm. Law 857, 858.

It appears that there were only six jurors obtained from the original names returned upon the venire, and the remainder of the panel was made up from talesmen.

In capital cases, the defendant is entitled to a list of the jurors sommoned, at least forty-eight hours before the trial. Dig., chap. t>2, seo. loé. This affords the prisoner and his counsel an opporfcu-nity of enquiring into tlie characters and dispositions of the ven-ire men, and of selecting such as they may tliink will give him a fair and impartial trial. It is an important right, and should not be impaired by any irregular action of the court. See Stewcut vs. The State, 13 Avk. Rep. 72 0. It is impaired to the extent that the court may erroneously reject, as incompetent, persons returned upon the original list, which has been furnished the prisoner, and put him upon talesmen to make up the jury.

It appears, also, from the bill of exceptions, that the court rejected a person summoned asa talesman, because he said he was opposed to capital punishment. But this could not be supposed to have prej udiced the prisoner.

3. Carroll, a witness for the State, testified that he had heard some --lighty remarks from Atkins about Wicker. Atkins said that Wicker had been talking about him, and if he did not quit talking about him and let him alone, ho would put "Wicker where the dogs could not find him. This was said near "Wicker. There was a wedding at Wicker’s at the time.

On cvoxs-czstibt ¿nation, the witness stated that Atkins, and a part of his family, vero at tlie wedding at Wicker’s. ''Defendant then asked tlie witness: “what circumstances, or what Wicker had said about Atkins that led to the remark of Atkins about putting Wicker where the dogs could not find him?”

The question was objected to by tlie State, and ruled out by tlie court, and defendant excepted.

The object of the State in proving the declarations of the prisoner, against the deceased, at the wedding, was doubtless to show malice. If these declarations fell from the prisoner, in consequence of any irritating or provoking remarks, the witness should have been permitted to state that fact to the jury. The jury might have attached more or less consequence to the threats made hy the prisoner, on a full understanding of the circumstances under which they were made. It was their province to determine whether the declarations of the prisoner made upon the occasion, were indicative of permanent and settled malice toward the deceased, or merely a temporary ebullition of feeling arising-upon the provocation of the moment. While it is the province of the court to exercise a sound discretion in the exclusion of irrelevant matter, it is safest to let in any competent testimony that may tend to throw light upon the motives of the accused in making such declarations.

4. The defendant asked the same witness, Carroll, if lie had not testified before the examining court in this case, that he regarded Atkins’ threats,’ made at the wedding, as of no importance or consequence ? Which, upon the objection of the State, was ruled out by the court as incompetent.

This question was properly ruled out by the court, there being no proper foundation laid for it.

The defendant had the right to enquire of the witness as to the manner or temper in which the prisoner made the declarations referred to, for the purpose of letting the jury understand whether thej were serious and deliberate: and if his response had differed from his statement before the examining court, the prisoner then might have interrogated the witness as to such statement, with the view of contradicting him.

5. After the State had closed her examination in chief, the defendant offered to read in evidence to the jury, the statement made by him, and reduced to writing, before the examining court: which, upon the objection of the attorney for the State, the court excluded, and the defendant excepted.

Section 33, cha/p. 52, Digest, %>. 392, provides that “after the examination of the complainant and the witnesses on the part of the prosecution, the magistrate shall proceed to take the examination of the prisoner, without oath, in relation to the offence charged ; but, before it is commenced, he shall distinctly inform the prisoner of the charges made against him, and that he is at liberty to refuse to answer any question put to him, and shall allow the prisoner reasonable time to advise with his counsel, jf he has any in attendance at such examination,”

Section 34, provides that “none of tbe witnesses for or against the prisoner shall be present at his examination.”

Section 35, that “the answers of the prisoner on his examination shall be reduced to writing by the magistrate, or under his direction. Such answers shall be read to the prisoner, who may correct or add to them; and, when made conformable to what he declares to be the truth, shall be certified and signed by the magistrate.”

Section 41, requires the magistrate to deliver such examination, with the statements of witnesses, to the clerk of the Circuit Court, where the offence is cognizable, on or before the next term thereof, except where the prisoner is committed, and then they are to accompany the warrant of commitment, and be delivered to the jailor.

These provisions of the statute were perhaps designed to afford the prisoner, an opportunity of making a free and voluntary confession of the crime charged against him, if he desired so to do. But whatever may have been the intention of such enactments, the right of the prisoner to read the statement made by him before the committing magistrate, upon his trial, in his own favor, is not supported by reason or authority. It would be but to permit him to manufacture testimony for himself, and in many cases, doubtless, would insure his acquittal, if received with credit.

6. The defendant offered to read in evidence the ’testimony of Bichará Harvey, taken in his behalf, before the examing court, the witness being dead. The court on the objection of the State, excluded so much of the deposition of Harvey as related to threats made by the deceased against the prisoner, and he excepted.

On looking into the statement of Harvey which is set out in the bill of exceptions, it appears that he testified befoi'e the examining court, as follows:

“I heard Wicker, the deceased, say that he had his knife ground for Atkins. He then asked if Atkins did not have some hogs at Jackson Wicker’s. I replied, I did not know, and he said he had his knife whetted or scoured, but which I do pot recollect. * * "Wicker bad a decanter of whisker, and asked me to drink. I then, told him that my business was to make up a school. lie asked me if Atkms was going to send to school? I replied, I did not know. It was then that Wicker said : ‘I have my knife ground for Atkins.’ Wicker said he believed Atkins was a Murrell man. This was some four or five days'before Wicker was killed, or it might liare been a week. This conversation occurred at Nus-sell’s old mill.” Cross-examined by the State. “Walker came to the mill with me. When we got to the mill, we found Cook and Thomas Wicker, and several other gentlemen, I did not know. I never had seen Wicker before to know him. Wicker asked me and the other gentlemen to drink. I do not know whether the conversation about the knife ivas before or after We took the drink. I do not recollect whether any one else was present at the time when we had the conversation or not. I never informed Atkins of this conversation.”

It, will he observed, that the conversation in which these threats were made, (if deemed such) occurred between the deceased and the witness. That he could not state that any one else was present when the conversation took place, and that he never communicated the threats to 1he prisoner.

In Powell vs. The Stale, 19 Ala. Rep. 577, Hr. Justice Cole-MAN, delivering the opinion of the court, said: “Wo think the court properly excluded the threat of Porter, and his declaration, concerning the field, as stated in the bill of exceptions. It appears that the admission of threats, etc., as proof, was objected to unless the defendants would prove that information thereof was communicated to them before the killing, which the prisoners failed to prove. The threats, if made known to the prisoner, would Lave been competent, testimony, as tending to show, that in the assault on tlio deceased, he may have acted under a just fear-of clangor to his own life, but we cannot see in this case how they could bo considered as proof pertinent to the issue. The eminent counsel for the prisoner have foiled to produce any authority for the admission of such proof. They insist that it ought to have been permitted to the jury to infer from the circumstances that the prisoner had knowledge of the threat. No circumstances, from which such an inference might be drawn, are disclosed by the bill of exceptions, and if such existed, it was obligatory on the defence to show them affirmatively. We will not undertake to say that no case could occur, in which such threats, although unknown to the prisoner, might be admissible, but we think there is nothing in this case to authorize their admission.”

In Hudgins vs. The State of Georgia, 2 Kelly Rep. 181, Lump-KiN, Judge, said: “ Was the judge below right in ruling out the evidence of Anderson Hudgins, who testified that he said to the prisoner: 'Yonder comes John Anderson, (the deceased,) and he will hill you.’

Tiie witness -was permitted to state that he notified the defendant that the deceased was approaching, and it was only his opinion as to the quo cmimo or intention for which he was advancing: that was adjudged to be inadmissible. The doctrine on this subject is this: where the question is, whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. And that portion of the proof which was received, comes strictly within the rule, but the part excluded was the ojpinion only of the -witness. “To justify a homicide, the defendant must depend upon the circumstances by which he was at the time surrounded, and under the influence of which he perpetrated the act. Were they sufficient to excite the fears of a reasonable man ? And is it evident'that the slayer acted under the influence of these fears, and not in the spirit of revenge ? Was the danger so urgent and pressing, at the time of the killing, that, in order to save his own life, the killing of Anderson was absolutely necessary ? Does it appear, also, that the person killed was the assailant ?

“Now all these pregnant inquiries must be solved by the facts which transpired, and not by the opinion of a by-stander, wdie-ther that opinion was communicated to the accused or not.

“Had young Hudgins informed his father that Anderson was advancing in great haste, apparently much enraged, that he was using threats of personal violence, armed with a weapon, and the like, all this would he admissible to satisfy the jury that the homicide was in self defence. The opinion of the witness is a very different thing. It would be dangerous, in the extreme, to permit the belief of any one, whether sincere or feigned, much'more the offspring of the accused, to afford a pretext for taking human life.”

See, on the same subject, State vs. Goodrich, 19 Vermont 117.

The court below did not err in excluding the deposition of Richard Harvy.

7. The defendant proposed to prove by the witness Morehead, that Wicker, the deceased, had threatened Atkins, without offering to prove that Atkins ever heard it. Objected to by the State, and overruled by the court as incompetent. In this, the court did not err.

8. On the examination in chief, Tilford Powell, a witness for the State, testified, in substance, that he was at the house of the deceased on the evening he was killed. That a little after dark, some gentleman came to Wicker’s and hallooed, “halloo!” Wicker went out, and asked what he wanted ? He said he wanted to talk to him, and Wicker said he would be G-d-d if he could not talk to any one. Witness heard them talking, but could not tell what they were saying, Wicker having gone to the fence. Witness went out to the fence, and Atkins said he wanted Wicker to go out to the wagon "and see the marks of some hogs, “you have been accusing me of killing hogs, and you are a G-d-d liar, and a G-d-d rascal.” Wicker then replied, “you have, and I can prove it.” They then cursed and used short words, and Atkins challenged him to fight him. Wicker at first did not appear to want to go, but soon started out and opened the gate, but witness pulled him back. Then he saw Atkins about that time pull out of his pocket a knife, as he thought, and open it. A son of the deceased then came out, walked through the gate, and asked Atkins what was the matter; and he said, not much, only your father has been talking something about some bogs, and made very light of it. Wicker then spoke to Atkins, and told him to come up to the fence, that he wanted to get a lick at him, and he would knock him down. Atkins went up to the fence, held out his head, and told Wicker to strike, and Wicker struck him, and knocked him down. Atkins arose immediately and struck over the fence— witness thought with a knife — he struck but one lick. Witness went to Wicker, and asked him if he was cut, and he said he was.

The remaining testimony of this witness, and that of others, conduces to show that Wicker was stabbed with a knife, and died shortly afterwards of the wound.

On eross-exammalion, witness Powell stated, “that he did not know who the person was who called at the fence. Does not believe that he stated on the former trial of this cause, that he knew the man, who called at the fence, by his voice. Did say on said trial, that Atkins called in a friendly manner.”

Hobson, a witness for the prisoner, stated that he was present before the examining court, and at the former trial in the Columbia Circuit Court, and that Powell testified in behalf of the State, on both trials, “that we did know the voice of Atkins, when he called at the fence of Wicker on the night of the death of Wicker, and that it was Atkins, and in a friendly voice.”

On the motion of the State, this testimony was excluded as incompetent, and the prisoner excepted.

The object of Hobson’s testimony seems to have been to discredit Powell, by showing that he had made contradictory statements. The’ precise point of contradiction appears to be this: Powell seems to have stated, on his cross-examination by the prisoner, on the final trial, that when Atkins first called at the fence of Wicker, he did not know the voice; and that he did not believe that he had stated on the former trial that he knew the voice to be that of Atkins. Hobson testified, that Powell had stated on the former trials, that he knew the voice of Atkins.

It could not be very material to the issue, whether Powell knew file voice of Atkins, when he first hallooed at the fence of Wicker or not. It seems that he afterwards went to the fence, and found Atkins there altercating with Wicker. The presence of Atkins, and the purpose for which he came, as indicated by what he said and did, and the character of the difficulty that ensued between him and Wicker, were the material matters to be considered by the jury.

It may be remarked that if Powell made a statement upon the final trial, differing from that made by him before the examining magistrate, and his testimony before the examining court was reduced to writing, it should have been produced for the purpose of contradicting him, as it would be the best evidence for that purpose. The prisoner could not introduce secondary evidence, without showing that it was not in his power to produce the statement of the witness as reduced to writing by the magistrate. Roscoe’s Crim. Ev. 236.

As to the testimony of Powell, on the former trial in the Columbia Circuit Court, the rule is that although it is not allowable on cross-examination to put questions to a witness not relating to the matter in issue, for the purpose, if he answers them against the cross-examining party, of contradicting him by other witnesses, yet it is a well settled rule that questions not relevant may be put to a witness for the purpose of trying his credibility, but in such case the party cross-examining must be satisfied with his answer. Roscoe’s Crim. Ev. 181, 182.

Had it been a question before the jury, whether in point of fact it was Atkins who hallooed at the gate, or some one else, then the statement of Powell, that he knew or did not know the voice, would have been material to the issue; but the witness going to-the gate, and finding Atkins there, put aside any question as to the identity of the voice, and the only matter was, whether the witness did or did not recognize the voice when he first heard it, which could not have been material to the issue.

The manner and tone of the voice of Atkins, when he first came up and hallooed, might have been material for the purpose of showing the temper of mind he was in, but as to this, it does not appear that the witness made contradictory statements.

We cannot conclude, therefore, that the court committed any error, prejudicial to the prisoner, in excluding the testimony of Ilobson.

9th. The defendant proposed to prove by the witness Franks, that he saw the prisoner’s head the next day after the death of "Wicker, and that there was a deep cut in his head, and that the witness examined the wound, which the court excluded upon the objection of the State, and the defendant excepted.

It seems to have been a matter of controversy on the trial, whether Wicker struck the prisoner with his fist, when he put his head over the fence, or had something in his hand.

We think it is very clear that the proposed proof, that there was found a deep cut or wound upon the prisoner’s head, on the next day, was material and relevant to the issue, and should have gone to the jury for what it was worth. We can perceive no good reason why it should have been excluded. It is but natural that the prisoner would have been more or less excited and provoked in proportion to the force and aggravating character of the blow which he may have received from the deceased. It is usual for the jury to enquire into the nature of any wounds that may be found upon both the deceased and prisoner, after the conflict between them, and to draw such conclusions from them as they may deem legitimate.

10. Walker, a witness for defendant, testified that Harvey, a deceased witness, stated to him “that Wicker had made threats about Atkins, but what they were was not said. lie never told Atkins, as he recollects. He mentioned it in Atkin’s family. Does not know that he ever heard any threats made by Wicker against Atkins, which he informed Atkins of before Wicker’s death.

The defendant then proposed that the witness should refresh his recollection by referring to his own deposition given before the committing court, to which the State objected, the court sustained the objection, and defendant excepted.

The examination before the magistrate occurred in January, 1853, the final trial in December, 1854.

At the time the witness was examined before the magistrate, incidents previously occurring within his knowledge, may have been fresher in his memory, than at the time of the trial; and, in such case, the law is well established that Be may refresh his memory by referring to his former deposition. 1 Greenleaf’s Ev., section 556, and cases cited in note; Roscoe’s Criminal Evidence 65, 171.

The court should have permitted the witness to refer to his former deposition to refresh his memory, and if it called to mind any fact that had escaped his recollection, the court then could have determined upon its competency or relevancy.

11. It appears from the bill of exceptions, that when the jury were about to retire to consider of their verdict, the prosecuting attorney moved that they should be permitted to take with them the transcripts of the record of the cause sent to the Union Circuit Court on the change of venue from Columbia, which contained all the evidence given before the committing magistrate, and certified to the Columbia Circuit Court. To this the defendant objected, but the court overruled the objection, and permitted the jury to take with them the transcript, “but instructed them that they must not read said record, but that it contained the indictment, and they should endorse their verdict on said record.”

And the jury were permitted to retain said transcript in their possession until they returned their verdict. To all of which the defendant excepted. The bill of exceptions sets out the entire transcript.

The practice usually prevails in this State, for the jury to return their verdict in writing, endorsed upon the indictment, and it was perhaps to conform to this practice that the court permitted the jury to take with them the transcript containing the indictment, charging them not to read its contents. But there was no necessity for this, because we have no statute requiring the jury to return their verdict in writing, nor was it required by the common law. The foreman announced their verdict orally, and the clerk entered it in proper form upon the record. See 1 Chitty Crim. Law 635.

Mr. WhajjtoN says, (American Criminal Lcm,p. 901,) “if the jury receive papers not submitted in evidence, or conditionally, or imperfectly submitted, the verdict will be set aside, in civil cases, if resulting for the party concerned in the irregularity, and in criminal cases, it would seein in all cases whatever, if there be a conviction, unless it appear that the error was the result of the misconduct of the defendant himself. "VYhere the solicitor for the plaintiffs, after the evidence was concluded, delivered a bundle of depositions to the jury, a .portion of which were not in evidence, the verdict for the plaintiff was set aside, though the jury swore they had not opened the bundle; (2 Hale P. C. 308,) and in Massachusetts, where through mistake, a similar paper, containing material evidence for the party ultimately prevailing, found its way to the jury box, the same result took place, (Whitney vs. Whiteman, 5 Mass. 405). Subsequently, however, in a case of the same character, this opinion was reviewed, and it was held that where the paper was taken out by the jury through accident, and it was shown that it was not opened, this of itself did not vitiate the verdict, but where it was delivered by design, or where being opened, it made for the prevailing party, the case was otherwise. Hix vs. Drury, 5 Pick. 296. In New York Hackley vs. Hastie, 3 John. 252, and Pennsylvania Sheaff vs. Gray, 2 Yeates 273, the same distinction has been followed, and such may be considered the settled law.” See the authorities cited by Wharton in the margin.

Here the transcript was delivered to the jury at the instance of the State, in whose favor the verdict was returned. The depositions taken before the examining court, contained irrelevant and incompetent matter on both sides, and no showing appears to have been made that they were not read by the jury. The prisoner, perhaps, would not have been permitted to introduce affida-Tits of the jurors to impeach, tlieir verdict by showing that they read the contents of the transcript against the express charge of the court. See Stanton vs. The State, 13 Ark. R. 317; Pleasants vs. Heard, 15 Ark.

We think the court erred in permitting the jury to take with them, and retain'in their possession, the transcript.

12. The eleventh ground assigned in the motion for a new trial, is that the verdict of the jury was contrary to law and the testimony in the case.

If this were the only ground assigned for setting aside the verdict, we should not hesitate to affirm the judgment of the court below refusing a new trial, it being the province of the jury to determine upon the sufficiency of the evidence to warrant the verdict rendered by them.

13. The last ground, upon -which the motion for a new trial was based, is, that the court erred in the instructions given to the jury, on the part of the State, &c.

"Without stating the substance of the evidence introduced by the parties upon the trial, it is deemed sufficient to remark that none of the instructions were abstract, if unobj ectionable in other respects. They are as follows :

1st. That if the jury believe, from the testimony, that Atkins, the prisoner, went to Wicker’s house, on the night of the homicide, for the purpose of a difficulty with Wicker, and in that difficulty killed him with a deadly weapon, he is guilty of murder.”

This instruction seems to make the' guilt or innocence of the accused turn exclusively upon the purpose for which he may have gone to the house of the deceased, and the use of a deadly weapon, regardless of the facts attending the difficulty which ensued — the conduct of the parties in bringing it on — and the circumstances under which the weapon was used.

If the prisoner went to the house of Wicker with a hostile purpose, or for the purpose of getting into a difficulty with him, and if he used a deadly weapon in the fight, these were facts to be considered by the jury, in passing upon his guilt or innocence, or in determining the grade of his offence, but these alone, regardless of all other circumstances attending the difficulty, would not necessarily make him guilty of murder. See Yoes vs. The State, 4 eng. R. 42.

This instruction was, therefore, erroneous in the form in which it was giren.

2d. -That if the jury believe, from, the testimony, that prisoner went to the house of Wicker, for a lawful and friendly purpose, but that after getting there, he got into a guarrel with Wicker, and without any previous malice, proposed or accepted a combat with Wicker, and that in that combat killed him with a deadly weapon: that then the offence is at least manslaughter, and they can so find.

3d. That if the jury believe, from the testimony, that Atkins asked Wicker to strike him, intending to use a deadly weapon, that Wicker did strike him with his fist or hand, and that Atkins tlien killed Wicker, with such deadly weapon, that he is guilty of murder, and they should so find.

4th. That if the jury believe that Wicker assailed Atkins with insulting words and blows, and without the use of any weapon, and that Atkins, without attempting to evade the fight, killed him with a deadly w’eapon, he is guilty of manslaughter.

No substantial objection to these instructions is perceived, when considered in reference to all the evidence before the jury. See Roscoe’s Crim. Evidence, Titles, Manslaughter, Murder.

5th. That no threats made by the deceased before the homicide will extenuate the offence or reduce it to manslaughter, if the combat were sought, or willingly entered into by the defendant, the deceased being unarrhed, and the defendant using a deadly weapon, Week/ to produce deathP

This instruction would seem to assume that the deceased was unarmed, and that the defendant did use a deadly weapon, likely to produce death. It should have been so framed as to leave to the jury the fact whether or not the deceased was unarmed, and whether the prisoner used a deadly weapon. In others respects, the instruction is unobjectionable.

Upon tbe whole record, considering all the errors of the court above specified together, we think the verdict should be set aside.

The judgment of the court below is, therefore, reversed, and the cause remanded with instructions to grant a new trial, and that the cause progress according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Raigauel & Co., use of Lindauer vs. Aylife.
    An instrument of -writing, directing the payment of a certain sum “from proceeds of drafts,” is not a hill of exchange according to the law merchant; nor can the payee maintain an action thereon, on non-payment, against the maker. (Owen vs. Zavine, 14 Arh. 389, reviewing previous decisions).
    A draft, drawn upon a particular fund, is not admissible in evidence under the common counts for money, &c., without proof of its execution by the defendant.
    An instrument drawn upon a particular fund, and not purporting upon its face to have been executed upon any consideration, is not, of itself, evidence of indebtedness by tho defendant under the money counts.

      Appeal from the Circuit "Court of JPulashi County.

    Hon. "War. II. Feild, Circuit Judge.
    S. H. IIeMpstead, for the appellants.
    That the bill was evidence of consideration, and a right of action existed in the payee, see the case of Owen vs. Lamine, 14 Arh. 390.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of assumpsit, brought in the Pulaski Circuit Court, by William Raigauel, Augustus Raigauel, and John Eckel, partners, under the style of Raigauel & Co., suing for the use of Lindauer, against Charles Ayliff.

There were five counts in the declaration. The first four upon the following instrument:

$650. Little RooK, ARKANSAS, 1
March 23<f, 1853. [
From proceeds of drafts of Messrs. Adams & Timms, in my favor, filed in your office, pay to the order of Messrs. Raigauel & Co., of Philadelphia, six hundred and fifty dollars, acceptance waived, and charge, without further advice, to account of
Tour ob’t serv’t.,
C. AYLIEE.
To the Auditor Post Oebtoe AooouNts,
Washington Oity, I). O.

The first count described the instrument as a bill of exchange, averred its execution and delivery to plaintiffs, by defendant, its presentment for payment to the Auditor of Post Office Accounts, non-payment, and notice thereof to defendant.

The second count described the instrument as an order, with like averments.

The third, as an order, with like averments, and that defendant had no effects or moneys in the hands of the Auditor of Post Office Accounts, at the time the instrument was drawn, &c., for the payment thereof; and was, therefore, not entitled to notice of non - payment.

The fourth count described the instrument as a “ contract in writing,” with averments of its execution, delivery to plaintiffs, presentment, and non-payment by the drawee.

The fifth count alleged that defendant was indebted to plaintiffs in the sum of $1000, for goods, &c. A like sum for money lent, &c. A like sum for money paid by the plaintiffs for the use of defendant: and in a like sum for money received by tbe defendant for the use of the plaintiff.

The defendant obtained oyer of the instrument sued on, and demurred to the first four counts in the declaration, on the grounds that the instrument declared on was not a bill of exchange, and could not be made the basis of an action.

The court sustained the demurrer.

The defendant pleaded non- assumpsit to the fifth count, issue was taken thereto by the plaintiffs, the cause submitted to the court sitting as a jury, and finding and judgment for the defendant.

Upon the trial of this issue, it appears from a bill of exceptions taken by the plaintiffs, that to sustain the issue on their part, they read in evidence the instrument above copied; and then proved that it was presented by the plaintiffs on the 13th September, 1853, to the Auditor of Post Office Accounts at Washington, for payment, and payment thereof refused. And that neither at the time of drawing the draft, nor at any time after-wards to the time of the presentation thereof for payment, had the defendant any funds in the hands of the Auditor, or in his office, to pay the draft. Which was all the evidence introduced by the plaintiffs, the defendant objecting to its introduction, and the count overruling the objection.

That the plaintiffs insisted upon the court to hold, as matter of law : first, that the draft was sufficient evidence of money had, and received by the defendant, from the plaintiffs, to entitle them to judgment on the money counts: and second, that it was not necessary to enable the plaintiffs to recover, that any proof should be offered of the original consideration, other than as contained and evidenced in and by the said draft, and the proof connected therewith: third, that on the law of the case, the plaintiffs were entitled to judgment.

But the court refused so to hold, and decided : first, that without further proof of the original consideration, other than that offered, the plaintiffs were not entitled to judgment: and second, that the draft was not, of itself, evidence of the right of the plaintiffs to recover.

The plaintiffs appealed to this court :

1. It is well settled by the decisions of this court, that the instrument sued on being drawn upon a particular fund, is not a bill of exchange according to the law merchant. Hamilton vs. Myrick & Williams, 3 Ark. Rep. 541; Gwin vs. Roberts, ib. 72; Wilamowicz vs. Adams, 13 Ark. 12; Owen vs. Lavine, 14 Ark. 389.

It is supposed by the counsel for the appellants, that the case of Owen vs. Lavine, in which the previous decisions of this court, on the subject of the negotiability of such instruments, were reviewed, some of them approved, and others overruled, settles the question that the payees, in the instrument now before us, could maintain an action upon it against the drawer, on non-payment by the drawee, they being the immediate parties to the instrument.

In that case, Foster drew an order upon Owen, in favor of La-wine, payable out of Foster’s cotton crop, which was accepted by Owen, and the suit was brought by Lavine against Owen, upon the acceptance. And this court held that the contract being complete by the acceptance, was, in effect, the same as if Owen had made his promissory note payable to Foster in property or upon a contingency, and .Foster had assigned it to Lavine; and that Lavine could maintain, the action upon the acceptance, overruling Hawkins vs. Watkins, 5 Ark. 481, and Henry vs. Hazen, ib. 501; but approving Hamilton vs. Myrick & Williams, 3 Ark. 541, and Gwin vs. Roberts, ib. 72.

And the court said: “It does not follow, that upon such a contract the payee or endorsee could hold the drawer, or any intermediate assignor primarily liable upon notice of non-payment by the acceptor.”

In the case at bar, the suit was brought by the payees against the drawer of the instrument, on failure of payment by the drawee, and falls fully, upon principle, within the rule established in Hamilton vs. Myrick & Williams, and Gwin vs. Roberts.

The court below, therefore, did not err in sustaining the demurrer to the first four counts of the declaration, which were upon the instrument.

2. The fifth count, we may suppose, was intended to recover the original consideration upon which the draft was drawn, but not being upon the draft, it could be introduced as evidence, for no purpose, without proof of its execution by the defendant, which, it appears, was not done; and, on that account, should have been excluded by the court. 2 Greenleaf’s Ev., sec. 158, 159, 162; Digest, chap. 126, sec. 103.

3. The instrument not purporting upon its face to have been executed upon any consideration, and not being a bill of exchange, note, order, draft, or check, within the law merchant, imported no consideration; and was, of itself, no evidence of indebtedness by the defendant to the plaintiffs, under the money counts, and the plaintiffs were not entitled to recover without other proof. Owen vs. Lavine, ubi. sup.; Chitty on Bills 144; 2 Greenleafs Ev., secs. 105, 112, 172.

The judgment of the court below is affirmed.


author: Mr. Justice Scott

text:
    Smiser et al. vs. Robertson et al.
    A writ of error will not lie to the statutory judgment upon a forfeited forthcoming bond.

      Writ of Error to the Gi/rcuit Court of Phillips Qov/nty.

    Eowleb & Stillwell, for tbe plaintiffs.
    After making points and citing authorities to show that the original judgment was erroneous, contended that the original proceeding and first judgment, being erroneous, the second and dependant statutory judgment is necessarily erroneous also. Fowler vs. Gibson et al., 4 Arrie. 11. 427/ Barton vs. Petit <& Bayard, 2 Oond. B. 494/ 8. G. 7 Oranoh. 288.
   Mr. Justice Scott

delivered the opinion of the Court.

In response to the writ of error in this case, there has been certified into this court, a transcript of the entire record and proceedings from its inception in the Phillips Circuit Court to a return of a forfeited forthcoming bond, regular upon its face, executed upon the levy of an execution issued upon the original judgment.

The statutory judgment, thus shown, extinguished the original judgment, to which a writ of error will no longer lie, as has been heretofore settled in this court. (Phillips et al. vs. Wills, Pease, & Co., 14 Ark. Rep. 595; Dougherty vs. McDonald, ib. 597.) And the question presented is whether or not that writ will now lie to this statutory judgment.

Writs of error lie only for the revision of the mistakes of courts of record, proceeding in the course of the common law. In the case of Ruddell vs. Magruder, 6 Eng. R. 579, it was belcl that tbe forfeited fortbcoming bond bas, by operation of law, tbe force and effect of a judgment; and that tbe sheriff’s return of forfeiture was conclusive record evidence of that fact, and tbat tbe execution does not issue upon tbe fortbcoming bond, but upon tbe statutory judgment, wbicb, by operation of law, springs into being upon tbe forfeiture.

Sncb,'then, is tbe legal effect of tbe forfeiture, without any order or judgment of tbe court thereon. Hence, there is no order or judgment of a court of record to complain of, through a writ of error. And such was tbe opinion of tbe Supreme Court of Alabama in a like case. (Taylor et al. vs. Powers, use, &c., 3 Ala. R. 285. See, also, McNutt et al. vs. Wilcox & Farn, 3 How. Mis. R. 421.)

Tbe cases cited to 'the contrary by tbe counsel for tbe plaintiffs in error, where tbe court entertaining tbe writ of error, looked to tbe original proceedings and final judgment, and finding them erroneous, held tbe second judgment also erroneous, as a dependant one, are all cases where tbe second was in fact tbe judgment of a court of record obtained after notice to tbe obligors in tbe fortbcoming bond and motion against them in court. Those cases, therefore,, have no bearing upon the question we have been considering.

In tbe view we have thus taken, we are of opinion tbat.tbe writ of error improvidently issued in this case, and it must therefore be dismissed.


text:
    Wilson vs. The State.
    The case of Atkins vs. The State, ante, referred to for the principles of law governing pleas of auterfoits acgwit.

    Our statute having made no provisions for trials by consent in criminal cases, other than a trial by jury, nothing short of the confessifti of the facts, or the finding of them by the verdict of a jury, can regularly authorize the judgment of the court against the accused, on an indictment for a felony, where the plea of not guilty is filed by himself or entered for him — even though the accused may waive a trial by jury and consent that the judge may try the issue:

      Writ of Error to Arleanscts Circuit Cowrt.

    Hon. Theodoeic F. Sobbblls, Circuit Judge.
    Williams & Williams, for plaintiff.
    Mr. Attorney General JobdaN, contra.
   Mr. Justice Scott

delivered the opinion of the Court.

The plaintiff in error was indicted for larceny in the Arkansas Circuit Court. In the first count, he was charged with stealing a lot of bacon, of the value of ten dollars, the property of one Friend, whose given name was to the jurors unknown.

In the second the only variation was, that the bacon was the property of one Mary A. Friend. This was quashed on motion of the prosecuting attorney.

The accused being in custody of the sheriff, was brought into court where the indictment was read to him in proper person, his counsel being also present; and upon demand, whether or not lie was guilty, put in a plea of which the following is a copy, to wit:

«STATE OE ARKANSAS, ) vs. > La/roony. GILBERT M. WlLSON. j
IN THE ARKANSAS OlRCuiT CoüRT, APRIL TERM, A. D. 1855.
Comes said defendant in proper person and defends, &c., and prays judgment of the indictment, and that the same be quashed, because he says, that at tigs present term of this court, the grand 'jury found a bill of indictment for the same offence charged in this indictment, and he was put upon his trial before the court, sitting as a jury, when after hearing the evidence and argument of counsel the court directed anon-suit, against the objection of de- ■ fendant, and this he is ready to verify; wherefore, he prays judgment of the said indictment, and that the same be quashed.
G. M. WILSON.
“I, Gilbert M. Wilson, do solemnly swear that the matters set forth in the foregoing plea,, are true,, so help me God.
G. M. WILSON.
Sworn to before me, this 25th day of April, A. D. 1855.
J. G. Quateraious, Clerk.”

To this plea the State interposed a demurrer which the court sustained and the accused excepted.

The record then proceeds, as follows, to wit: “And the defendant refused to plead further, but stands mute, and the court enters a plea of not guilty, to which theState joins issue; and, by consent, this cause is submitted to the court sitting as a jury, and the court, after hearing the evidence, and hearing the argument of counsel, found the defendant guilty of larceny; whereupon, it is considered by the court, that the said Gilbert M. Wilson, be taken from lionce to the City of Little Sock, in the State of Arkansas, there to be confined in the jail and penitentiary house of the State of Arkansas, there to be confined at labor for the time and term of two years from this date.

To all of which finding and judgment of the court, the defendant at the time excepted, and filed his bill of exceptions,” &c.

This bill of exceptions, after setting out that upon this “case coming on, and the defendant’s plea in abatement having been held bad, on demurrer, and the plea of not guilty having been entered by the court, sitting as a jury, Oaldy was introduced as a witness on the part of the State, testified,” &c.

The substance of this testimony was, that about the 1st of March, 1855, in Arkansas county, Mrs. Friend, whose, reputed husband had been absent some two months, came to the witness crying, and said her meat had been stolen; whereupon, he went to her house, and finding that the hinges of her smoke-house had been cut, he took the trail of some persons, and after following it about two hundred yards, found some salt and meat strings on a pile of cord wood, and from thence pursued the trail to a camp, where he found the defendant, apparently asleep, and another person, who was awake and attempted to run out by the witness. In this camp the witness found, covered with some boards, two or three hundred pounds of bacon, and some venison hams, worth $10. The two men had a jug of liquor, and appeared to be intoxicated. The witness took them in custody, and conveyed them to the Post of Arkansas, having first induced them to send the meat to Mrs. Friend, by a man named Robertson, Witness did not know the Christian name of the plaintiff in error.

The only additional testimony introduced, was that of a Mr. Haller, who was one of the grand jury who found the bill. lie simply testified that the Christian name of Friend, was unknown to the grand jury.

This is the whole case, as it appears in the record. There was no motion in arrest of judgment, or for a new trial, no exceptions to any ruling of tbe court in admitting or rejecting testimony, and nothing to show any opinion or ruling of the court, as to any point of law, otherwise than as we have already stated. And, therefore, it cannot be known whether or hot, in arriving at the verdict in this case, the court found according to the weight of evidence, without any misconception as to any point of law; and, hence, in the absence of any means, whereby the plaintiff in error could have, by exceptions, put his finger upon any error of law, not now upon the face of this record, all proper presumptions are in favor of the verdict and judgment. Irrespeotive of any such supposed errors, however,°the plaintiff in error assigns, as upon the face of this record; 1st. That the court below erred in sustaining the demurrer to his plea. 2d. In proceeding to hear evidence and to try the issue upon the plea of not guilty, put in by the court for the defendant below, upon his standing mute ; and in rendering judgment against him upon the supposed verdict of guilty, so found against him, he excepting thereto at the time.

With regard to the question raised by the first assignment, the plea was clearly bad, according to the principles of law governing such pleas, so fully expounded in the case of Atkins vs. The State, just decided, that it is unnecessary to do more than refer to the opinion in that case as to this point, keeping in mind, that the jeopardy, attempted to be set up in this case, was incurred on another record, while in the case of Atkins it was upon the same record on which he was still held to answer.

The other assignment presents a new question in this court, which is not without difficulty ; mainly, however, because a practice has grown up in this State, to what extent we are not accurately informed, to submit by consent, issues of not guilty, in cases of misdemeanors at least, to the trial and judgment of the Circuit Court, sitting as a jury, as is expressly authorized by our statute in cases on the civil side of the court.

In the cases of Guess vs. The State, 1 Eng. R. 147; Rector vs. The State, ib. 187; Robinson vs. The State, 2 Eng. R. 122; McBride vs. The State, 2 Eng. 374, tins practice seems to have been tacitly allowed by this court, and may possibly have been in other cases not developed in our printed reports. We have not, however, found any such case, in some examination of these volumes, on a charge of felony, at-the common law,, or for that grado of crime since the passage of our statute defining felony in this State. But, whatever may be the difficulties on this score, the party in this case demands his legal rights, and although it may not be improbable that he is a drunken thief, and would be better off in the penitentiary than out of it, nevertheless his legal rights are as emphatically secured to him by our constitution and laws, as those of the best of our citizens. And besides, the face of this record, which we have pretty fully set out, manifests a degree of haste and carelessness, unless very great aid could be claimed for it at the expense of the clerk, not compatible with that sedate and careful administration of the criminal law, upon which much of the safety and security of the citizen depend.

No one will suppose that we have any other law in this State, providing for the trial of public offenders, than the common law, and such as has been enacted by the legislation of this country.

By the common law, when one was put to answer to a criminal charge by indictment, he either stood mute, or confessed the facts, or pleaded to the indictment. The two former were incidents to the arraignment, the latter was considered as the next stage of the proceedings.

If he stood mute, the court empanneled a jury to enquire whether he so stood obstinately, or by visitation of God. If the verdict was the former, judgment of guilty was rendered; and in the case of Rex. vs. Lemercier alias LeBatt, Leach 218, where the charge was murder, sentence of death was immediately passed, and the prisoner was executed accordingly. If the latter, and it appeared to the court that the accused could receive intelligence by signs, the accused was held to answer through that medium. If not so capable of receiving intelligence, the plea of not guilty was entered for Mm by the clerk, and the trial proceeded, as if he himself had entered the plea; in which case it was the duty of the court to inquire touching all those points, of which the prisoner might take advantage himself, to examine all the proceedings against him with a cautious eye, and to render him every possible service consistent with the rules of law. Rex vs. Jones, Leach, 120; Rex vs. Steel, Leach, 520.

All this, however, is dispensed with under the provisions of our statute, which requires that if the accused “deny the charge in any form, or requires a trial, or if he refuses to plead or answer,, and in all cases, where he does not confess the indictment to be true, the plea of not guilty shall be entered, and the same proceedings had as if he bad formally pleaded not guilty to such indictment. Chap. 52, Digest, page 404, sec. 123.

Hence, the only incident of arraignment left, is that of the confession of the facts, which, if the accused does not make, the plea of not guilty is either put in by himself, or entered for him by the court. Upon a simple and plain confession, the court had nothing to do but to award judgment; but, in the language of Judge BlaoKstoNk, “it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment.” 4 Blacks. Com., p. 329.

lienee, it follows, that in this country, by the common law, as modified by our statute, if the accused does not confess the facts the plea of not guilty is put in for him, either by his own act, or by the act of the court, and the issue upon this plea has to be tried.

By the common law, Judge BlaoKstoNe remarks (4 Black. Com., p. 312,) “the several methods of trial and conviction, established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors. who, like other northern nations, were extremely addicted to divination, a character which Tacitus observes of the ancient Germans. They, therefore, invented a considerable number of methods of purgation, or trial, to preserve innocence from tbe clanger of false witnesses, and in consequence of a notion, that God would always interpose, miraculously, to vindicate the guiltless.” Ib. p. 342.

He then proceeds to enumerate:

1st. Trial by Ordeal, which he says was abolished by 3 Hen. 3 d.

2d. By a species of purgation, somewhat similar to the ordeal called the Oorsneda or morsel of execration,” which, long before his day, was antiquated and disused.

3d. Trial by Hattie, which although disused from the 7th year of Charles 1st, was not actually abolished in England, until by act of Parliament, in 1819 ; and 4th. A method of trial used in criminal cases, by the peers of Great Britain alone. Neither of which two latter have ever been supposed to have been in force in the United States by any court or judge. And finally in the last place : 5th. The trial by jury, or the country, per patriam. And at page 341, lie remarks: “But upon indictments, since the abolition of Ordeal (and by battle under the act of parliament of 1819, neither of which were ever in force in the United St'atés,) there can be no other trial but by jury, per pads, or by the country; and, therefore, if the prisoner refuses to put himself upon the inquest in the usual form: that is, to answer that he will be tried by God and the country, if a commoner : and if a peer, by God and his peers; the indictment, if in treason, is taken pro confesso; and the prisoner in cases of felony is adjudged to stand mute, and if he perseveres in his obstinacy, shall now be'convicted of felony.”

Unless, therefore, the Legislature has provided some other mode of trial, that by jury remains the only mode known to our laws upon such a plea, whether interposed by the accused by his own act, or in his behalf, by the act of the court, when he stands mute. By our statute of “Criminal Proceedings,” (Digest, chap. 52, p. 410,) it is provided in section 149 : “ All issues of fact, in any criminal or penal cause, shall be tried by a jury, to be selected, summoned, and returned, in tbe manner prescribed by law;” and, in section 166, “The proceedings prescribed by law in civil cases, in respect to empanneling jurors, the keeping of them together, and the manner of rendering their verdict, shall be had upon trials of indictments, and prosecutions for criminal offences, except in cases otherwise provided by this act.”

The provisions are but declaratory of, and in affirmance of the common law, as we have already seen. The only other provisions of our statute, which relate to trials, are those of the 99th and following sections of chap. 126, Digest, p. 812, proscribing regulations for practice on the civil side of the court: those in chqp. 28, sec. 62, Digest, p: 234, relating to chancery proceedings, and those in chap. 95, p. 654, and p. 674, relating to civil and criminal proceedings before a justice of the peace.

The first are the only provisions that, in terms, have any approach to regulations for criminal trials, and if they apply, then it would seem that the provisions that we have already copied above, under the head of criminal proceedings, were quite unnecessary. These are: “Section 99. All issues of fact joined'in any suit at law, in any court of record, shall be tried, either by the court, by jury, or by arbitration. First. The trial shall be by the court, wffien neither party shall demand a trial by jury. Second, The trial shall bo by a jury, when either party shall demand such trial. Third. It shall be tried by arbitrators, on the agreement of the parties to refer the matter in dispute to arbitrators.” Digest., p. 812.

No one would suppose that it was the intention of the Legislature to refer prosecutions for public offences to arbitrators; besides, *the term “ suits at law,” to say nothing of the context, plainly indicates that these provisions relate solely to proceedings on the civil side of the court, and have no reference to criminal trials.

Hence, there would seem to be no other mode for the trial of a criminal issue, than that by jury. The difficulty is not obviated by any waiver of this mode of trial, because the Legislature has provided no other mode, in lieu of it, in such an event, as it has in civil cases.

Nothing 'short of a confession of the facts, or the finding of them by the verdict of the jury, can regularly authorize the judgment of the court. If the accused would not only waive his right to a trial by jury, but go further, and withdraw his plea, and then confess the facts charged against him in the indictment, the court would be authorized to render a judgment against him; but so long as his plea of not guilty is in, there is no mode by which the court can dispose of it, although the accused may waive a trial by jury, with all its attendant privileges, and desire, ever so much, that the issue may be disposed of by a reference of it to the judge, or any other referee or arbitrator, and the prosecuting attorney may desire the same, and act in concert with the accused; for the simple reason, that the law makes no provision for any such referee or arbitrator, in criminal cases. The only provision is for a confession of the facts, or a trial by jury to determine them. If a judgment upon the finding of the judge, upon such an issue submitted to him, by consent, in a criminal case, can be upheld at all, it can only be so upon the principle, that this extra-judicial mode of finding the facts, amounts to a simple and plain confession of them, as charged in the indictment ; and that the party is forever afterwards estopped from denying it to be such. But can a party be estopped by a record, which the law does not authorize to bejmade? And especially shall he be estopped by a record, which, in that view, is to legally import Ms confession, and which, nevertheless, upon its face, shows that at the very time the clerk was making it, the accused was taking exceptions to it ;_and, instead of submitting, was doing all he could to retract ?

The law does not so move upon confessions. On the contrary, as we have seen, it is “backward, and generally advises the prisoner to retract and plead to the indictment.”

Mr. Justice GeieR says, in the case of Weems vs. George et al., 13 How. United States Rep., p. 191: “When the case is submitted to tbe judge, to find tbe facts without the intervention of a jury, lie acts as a referee by consent of tbe parties.” This is unquestionably so, strictly, when be is not authorized by law to sit and find as a jury, as be is, in such case of consent, by our statute, in civil cases. And in cases, whether “civil or criminal,” in Indiana, and some of the other States. Rev. Code of Indiania, 1831, p. 408; The State vs. Mead, 4 Blackf. Rep. 309.

Supposing, however, in cases where the accused and the State consented that the judge should hear the testimony, and find the facts, without the intervention of a jury, and the judgment of the court should be rendered accordingly, and it was done, and neither party took any exceptions at the time, that this should be properly held to be a mode of nol. pros, or of confession of the facts, as charged in the indictment, as the finding might happen to be one way or the other by the judge, and that in all such cases, the parties should be estopped from setting up any thing to the contrary; this would not be such a case, because the accused, in this case, excepted at the time, both to the finding and judgment, and placed his exceptions upon the record by bill of exceptions.

There is still another objection upon the face of this record, which, in view of the principle frequently recognized in this court, as applicable to criminal cases in general, and especially to those where life is involved, that “the convicted is to be considered as standing upon all his legal rights that he has not expressly waived of record;” (Bivens vs. The State, 6 Eng. Rep. 457,) would, of itself, be worthy of examination, if that we have already considered was not sufficient to reverse this judgment. We mean that which might be taken to the record entry of the supposed consent of the convicted. It does not explicitely appear that he consented in proper person, or even that he consented at all. The entry shows that he was present in proper person, and that he had counsel also present, and that the State was represented by her counsel, and that he stood mute, when called on to plead. “In criminal cases, an express relinquishment of a right should appear before the party can be deprived of it. ” Commonwealth vs. Andrews, 3 Mass. Rep., p. 132; People vs. McKay, 18 John. Rep., p. 218. To make the record good, it should show, substantially, that all was done at the trial, which the law requires to be done; and this must be set down in fit and expressive words. All that is written, from the beginning of the trial to the judgment, is to be regarded as one entry, although it may spread through many days; and therefore, the whole must be looked to in order to ascertain its sufficiency in any one respect. Crist vs. The State, 21 Ala. Rep. 148. But it is unnecessary to go at large into this objection, because, in the view that we have already taken of the irregularity of the trial in this case, the judgment would have been equally erroneous, even had the record shown, in the most explicit terms, that the accused, in proper person, had consented for the judge to try the issue, in ■the stead of a jury.

The judgment will be reversed, and the cause remanded, with instructions to the court below to proceed to a trial of the cause, in accordance with law, and not inconsistent with this opinion. And the consequent order must be made for taking the prisoner from the penitentiary, and conveying him to the custody of the sheriff of Arkansas county, to wait his trial.


text:
    Brown as ad. vs. Merrick & Fenno.
    ■When the statute of limitations has commenced running in the life time of the creditor, it does not stop upon his death until administration be granted on his estate— (the cases of Ailtin vs. Bailey, 5 Eng. 583; Elter vs. Finn, 1 ib. 632, and WaV her el at. vs. Byers, 14 Aria. 259, explained as to this point).

      Writ of Error to the Cwouit Court of PulaSlci County.

    Hon. ¥k. H. Feild, Circuit Judge.
    BertraND, for tbe plaintiff.
    This court has decided that the statute of limitations does not run against the creditor of an estate, from the period of the death until administration is had.: that when the statute has commenced to run, it will stop At the death, and will not commence running again until there is administration. We contend that the same rule applies in favor of deceased persons’ estates, as has been decided to apply against them in favor of creditors.
    An administrator or executor only can sue for personal assets, on the death of the party. Lemon’s heirs m. JFoland et al., 15 ArJc. 4-36.
    Where there is a want of persons to sue and be sued, the statute will not run. Angelí on Li/m. 61.
    Fowler, contra.
    Three years is the limitation on the action in this case — see section 7, chap. 99, Digest; and the plaintiff has not brought himself within the exception in section 23.
    The general rule is, that when the statute begins to run, it runs on, regardless of death or other disability. 13 Wend. 269/ 1 John. Rep. 176; 1 Bibb Rep. 261; 1 IIow. United States Rep. 62; 10 Smedes <& Marsh. 101; 3 Ark. 413; Angelí on Lim. 206.
   Mr. Justice Scott

delivered the opinion of the Court.

The plaintiff in error, as administrator of ~Wm. H. Bump, commenced this suit on the 4th day of November, 1863. It was an action of assumpsit on the common counts. The bill of particulars disclosed a demand for services rendered by Bump, as a clerk on a steam-boat, ending on the 16th of April, 1848. The plea of the statute of limitations of three years, was interposed. To this, the plaintiff replied that the intestate died in April, 1848, before the bar attached, and that no administration was taken or granted on his .estate until the 18th of May, 1853, when they were granted to the complainant, who commenced this suit within one year thereafter. To which replication, a demurrer was interposed, which the court sustained, and the plaintiff refusing to reply further, final judgment was rendered against him, and he brought error.

By the 7th section of the statute, (chap. 99, p. 696, Digest,) three years is the limitation for such actions: and, ■ by the 23d section, (id., p. 699,) it is provided, that “If any person entitled to bring any action in the preceding provisions of this act specified, die before the expiration of the time herein limited for the commencement of such suit, and such cause of action shall survive to his representatives, his executor or administrator may, after the expiration of such time, and within one year after such death, commence such suit, but not after that period.”

This section is but the enactment by our Legislature, of the equitable construction that the English courts’gave to the fourth section of the statute; (21si James 1st,) which was, that when the action was not barred at the death of the testatoz’, his executor should be allowed twelve months, from the time of his death, to commence suit, although the bar would have attached before that year would have elapsed. Grice vs. Jones, 1 Steward’s R. 254. It has, therefore, no material bearing upon the real question raised by tlie demurrer in tbis case; which is, whether or not, when the statute commenced running in the life time of the deceased, it was stopped by his death until administration was granted upon his estate. That it did commence running in this case, in the life time of the deceased, is manifest from the pleadings and the bill of particulars; because, it was for personal services rendered by the deceased, which is claimed as due at the end of the services.

In discussing this point, in the case Aikin vs. Bailey, 5 Eng. Rep. 583, after stating the rule to be, that when the statute begins to run, it will continue to run, notwithstanding any subsequent disability, and whether that disability be voluntary or involuntary, and citing Judge Kent as saying, in Peach vs. Randall, 1 J. R. 176, “that he knew of nothing that could arrest the progress of the statute,” certain, cases were cited as showing some qualification or explanation of the rule, upon which it was re.marked: “Host of these cases resting upon the principle, that to authorize a just application of the statute, there should be an existing cause of action, a party to sue, and one liable to suit.”

If the substance of these cases had been stated, instead of merely citing them, this remark would have been calculated to lead no one into error, as it would have been seen that it was to be limited, in its application, to cases like those cited, both as to the time when the statute would begin to run, and as to when its progress would be arrested, either by some positive statutory provision, or by some equally potent operating principle of law.

Thus, in the case of Jackson ad. vs. Wren, 3 Steward’s Rep. 172, where the defendant took the negro from the estate of the deceased, after his death and before the grant of administration, it was held that the statute did not begin to run until the grant of administration.

So, in the case of McKinder vs. Littlejohn, 1 Iredell’s R. 66, upon the statute of North Carolina, which requires creditors to present their claims within seven years after the death of the debtor, or they will be forever barred, it was held that this time did not begin to run until administration was granted upon the estate. These two classes of cases having been cited more for explanation of the rule than as showing qualifications of it.

The third class cited, however, did qualify the rule' — as the Mississippi and South Carolina cases — where, although the statute did begin to run in the life time of the deceased; yet, inasmuch as upon his death the statute prohibits suit against his representative until after nine months from the date of the grant of administration, these nine months are excluded from the computation; because, during that time, the statute arrests the remedy. And of this class, also, are the cases of Montgomery vs. Hernandes, &c., 12 Wheaton Rep. 129, and Trecothic vs. Austin, 4 Mason C. C. R. 16, where the appeal arrests the cause of action, and holds it in a state of suspended animation.

And it is in reference to these latter cases, that Mr. ANG-ell, in his work on Limitations, chap. 7, sec. 9, p. 60, lays down the rule, that “There must not only be a person to sue, but a person to be sued;” which is equally calculated to lead one into error, unless regard is had to the cases he cites to sustain it, whereby it is to be limited in its scope, to that class of cases.

In the subsequent case of Etter vs. Finn, 7 Eng. Rep. 632, the incautious remark referred to in the case of Aikin vs. Bailey, drew this court into the error of holding, in the latter case, that the death of a party arrested the running of the statute, which had commenced to run in his life time. And although that case was afterwards overruled in the case of Walker et al. vs. Byers, 14 Ark. 259, so far as it applied the general statute of limitations, to claims against the estates of deceased persons, the error, as to the death of a party arresting the running of the statute, was incautiously retained, in the incidental remark, not called for by the case before the court, “ that the principle for which the case of Aikin vs. Bailey was cited in Etter vs. Finn, was undoubtedly sound, and was applicable to the general statute of limitation.

Thus, we have now but to correct this dáctum in the.case of Walker et al. vs. Byers as to the general statute of limitations, in order to make all the authoritative cases in this court harmonize with the law, as we still find it, and now hold it, as we did in Aikin vs. Bailey, as above explained.

And thus holding the law, it is clear, as the death of the plaintiff below did not stop the running of the statute against him, which, under the general rule, had begun to run in his life time, the cause of action was barred; and hence, the demurrer was properly sustained by the court below.

The judgment must, therefore, be affirmed.