text:
    Lynn v. State.
    Opinion delivered November 23, 1925.
    1. Intoxicating liquors — making mash — evidence.—In a prosecution for making mash suitable for distillation of alcoholic liquor, evidence held to sustain a finding that accused made the mash and that it was of the kind suitable for distillation of alcoholic liquor.
    2. Intoxicating liquors — making mash — alcoholic content.— The crime of making mash suitable for distillation may be committed, though the (process had not advanced to the stage where the mash was alcoholic.
    3. Intoxicating liquors — making mash — evidence.—Testimony concerning finding bottles of whiskey in defendant’s house and of his having sold whiskey about the time of the alleged offense was admissible in a prosecution for making mash suitable for distillation of alcoholic liquor.

      4. Criminal law — similar crime — evidence.—In a prosecution for making mash suitable for distillation of alcoholic liquor/ testimony of ofijeers that they found mash on a previous' search of defendant’s premises or locality was admissible.
    5. Criminal law — instruction on circumstantial evidence. — In a criminal prosecution an instruction bn circumstantial evidence was proper where the State’s case depended largely on evidence of that character.
    6. Criminal law — competency op explanatory evidence — In a prosecution for making mash suitable for distillation of alcoholic •liquor, a preliminary statement of a witness that he received information that a man was going to defendant’s house to buy whiskey, and that he went there to catch the person, made in explanation as to why he went to defendant’s house, held proper, and in any event not prejudicial.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.

      Holland, Holland do Holland and E. M. Ditmon, for appellant. ' .

      H. W. Applegate', Attorney General, and Darden Moose, Assistant, for appellee. - ’
   McCulloch, C. J.

Appellant was convicted' of the charge of making mash" suitable for distillation of alcoholic liquor, and he contends' on this appeal from the judgment of conviction that the evidence was not sufficient to sustain the verdict.

The sheriff and one of his deputies and a prohibition officer testified that on information of violations of the prohibition laws they went to appellant’s house, and, on search of the locality, found a forty-gallon barrel of fresh mash secreted about 125 steps from appellant’s back door; that they found otherbarrels of fresh mash-one about 250 yards from appellant’s house, and another about one-fourth of a. mile from his house. They testified that, when one of the deputies found the barrel about 250 yards distant from appellant’s house, he claimed that it was an old barrel that he had been plowing over. It was in a potato patch that appellant claimed to be cultivating, and the officers stated that it was fresh mash suitable for distillation of alcoholic liquor. There was a plainly marked trail, according to the testimony of these witnesses, from appellant’s back door to the place where the first barrel was found. On search of appellant’s house, the officers found three bottles in his kitchen cabinet, each containing some whiskey. The evidence was, we think, sufficient to sustain the finding that, appellant made the mash, and that it was of the kind described in the statute.

It is contended that the proof fails for the reason that it does not show that the mash contained alcohol. This is not essential to a conviction, for the purpose of the statute was to make it a criminal offense to make mash suitable for distillation of alcoholic liquors, even' though it’had not, in fact, reached, in the process of manufacture, the alcoholic or intoxicating state. Rinehart v. State, 162 Ark. 520.

It is also contended that the court erred in admitting testimony concerning the finding in appellant’s home of bottles containing whiskey and of the sale of whiskey by appellant about that time. This testimony was competent, not for the purpose of showing appellant’s guilt of the unlawful sale of whiskey, but as tending to show that he was guilty of the crime charged in the indictment.

The court admitted testimony of the officers to thfc effect that, on a search of appellant’s premises or locality on a previous occasion, they had found barrels of mash. This was competent, not to show a previous, offense, but as tending to establish- the charge in the indictment. Appellant was not arrested on the former occasion, but the fact that barrels of mash were found in his immediate locality on a previous occasion was competent to show that he was engaged in the business of making mash for the purpose of distillation of alcoholic liquor.

An instruction of the court on the subject of circumstantial evidence is assailed as error. It is not contended that the instruction is incorrect as an abstract state-meat of the law, but that it was inapplicable to this case, but we are of the opinion that the instruction was correct' and' was applicable in view of the fact that the State’s case depended largely upon circumstantial evidence.

Finally, it is contended that the court erred in permitting witness Shaw, who was sheriff of the county, to testify that he had received information that a man was going out to appellant’s house to buy whiskey, and that he went out there for the purpose of catching the person, but that.the person had not reached there when the officers arrived. This statement of the witness was a preliminary one in explanation as to why he went to appellant’s premises, and we think that it was competent for the witness to state those explanatory facts. At any rate, there was no prejudice in allowing the witness to make the statement.

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


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Hayes v. State.
    Opinion delivered November 23, 1925.
    1. Criminal law — successive sentences. — Crawford & Moses’ Dig., ■ ' § 3239, providing that, if the .defendant is convicted of two or more offenses, the punishment of which is confinement, the judgment shall be that the punishment in one case shall commence after termination of the punishment in the other, was not repealed by Acts 1923, p. 122, vesting discretion in the trial court to permit successive sentences.-
    2. Criminal law — concurrent sentences — discretion.—The discretion given by Acts 1923, p. 122, to make sentences run concurrently is vested in the trial court alone, and not in the Supreme Court.
    3. Criminal law — newly discovered evidence. — Newly, discovered evidence tending to impeach the .State’s principal witness does ■not afford ground for a new trial.
    4. Intoxicating liquors — unlawful sale — evidence.—Evidence of a witness that he purchased whiskey from the accused, though contradicted, held sufficient to sustain a conviction of unlawful sale.
    5. Criminal law — newly discovered evidence. — A motion for new trial on the ground of newly discovered evidence, which showed that the evidence was merely cumulative, ¡but failed to show that due diligence had been used, held insufficient.
    6. Witnesses — impeachment of accused. — The State may introduce testimony impeaching the credibility of the accused .after he had taken the stand as witness in his own behalf.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.

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

On July 9, 1925, the grand jury of Sebastian County (Greenwood District) returned •two indictments against the defendant, Lee Hayes, for the unlawful sale of intoxicating liquor, in one case the sale being charged to have been made on March 30,1925, and in the other case the sale being charged to have been made on July 4, 1925. He was tried separately on each indictment and convicted, and has appealed from each of the judgments of conviction. He was tried first on the indictment charging an offense on July 4, 1925, and the transcript on appeal from the judgment in that case is docketed here as case No. 3136; the other transcript is docketed here as case No. 3135, and the judgment of conviction and sentence in the last-mentioned case provides that the term of confinement in the penitentiary shall begin at the expiration of the sentence in the other case.

No brief has been filed for the appellant in either of the cases, but he has, by his counsel, presented a motion asking that the judgment in the last-mentioned case (No. 3135) be modified, so that the two sentences shall run concurrently.' It is conceded in the motion that there is no error in the proceedings in case No. 3135, and that the judgment in that case must be affirmed,, but it is stated in the motion that there is error in the proceedings in case No. 3136 which calls for a reversal, but the particular error or errors alleged to have been committed by tbe trial court are no.t mentioned. The Attorney General has filed an abstract of tbe record and a brief in each case. We will first determine whether or not there is any merit in appellant’s motion to modify the judgment in case No. 3135.

The statute (Crawford & Moses’ Digest, § 3239). reads as follows:

‘ ‘ Section 3239. If the defendant is convicted of two ox more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the others.”

The General Assembly of 1923 (Acts 1923, p. 122) enacted another statute which reads as follows:

“Hereafter when any person shall be convicted of more than one felony, the punishment for one of which begins before the expiration of the sentence imposed on the other, the court trying the cause shall have authority to direct that said sentence shall run concurrently, if it shall be deemed best for society and the person convicted.”

The statute last quoted does not repeal the former, and it is seen from a perusal of it that there is express authority for making the term of sentence in one case begin at the expiration of another term of sentence, and the trial court did not err in rendering such a judgment. The statute authorizes the trial court to make the sentences run concurrently “if it shall be deemed best for society and the person convicted.” That authority, however, is vested in the trial' court alone. The discretion is vested in the trial court and not in this court. Appellant’s motion to modify the judgment cannot, therefore, be sustained.

It is conceded, as before stated, there is no error in the.proceedings in case No. 3135, and this is made plain by an examination of the record. The testimony is supported by legally sufficient evidence. A witness testified positively and directly that he purchased whiskey from appellant and paid him for it. This testimony is corroborated by that of two other witnesses, and the accused did not introduce any .testimony at all.

One of the grounds stated in the motion for a new trial was that new evidence had been discovered, but it appears that the newly discovered evidence related only to the impeachment of the State’s principal witness, and this does not afford grounds for a new trial. Morris v. State, 145 Ark. 241.

In case No. 3136 the assignments of error are more numerous, but are equally unfounded. In that case the State introduced a witness who testified positively that he purchased whiskey from appellant on July 4, 1925, in the Greenwood District of Sebastian County. This was contradicted by the defendant in his own testimony, and he introduced other witnesses tending to show that the testimony of the State’s witness was untrue. The evidence, however, was legally sufficient, and we are not at liberty to disturb the verdict on the ground that it is not supported by the testimony.

There is an assignment in the motion for a new trial of newly discovered evidence, but it shows that the evidence is merely cumulative, and also fails to show that due diligence has been used, and for these reasons the assignment is not available. .

There is an assignment with reference to the State being permitted to introduce testimony impeaching the credibility of appellant, who testified in his own behalf. This was competent, for when the accused took the stand ■as a witness he was subject to impeachment the same as any other witness.

There is an assignment in the motion for a new trial in regard to alleged remarks of the prosecuting attorney in the closing argument, but the record, does not. show that the remarks attributed to the prosecuting attorney were in fact made.

We fail, after careful consideration of the record, to find any error in the proceedings. Therefore the judgment in each case must be affirmed, and it is so ordered.


author: Wood, J.

text:
    Cain v. CarlLee.
    Opinion delivered November 23, 1925.
    1. Trial — separate findings of law and fact — Under Crawford & Moses’ Dig., § 1309, requiring the court, in trials of questions of fact, to state in writing the conclusions of fact separately from the conclusions of law, it is not reversible error- for the court to make a general finding of law and. facts where no request is made for separate findings; and where the losing party in his motion for new trial assigns as error the failure of .the court to make separate and special findings of fact and declarations of law, the court may, if it elects, treat the motion as one for special findings, -and make the findings after the judgment has been entered.
    2. Appeal and error — failure, to make separate findings— waiver. — Where the losing party failed to object to special separate findings of law and fact, -made after he had filed a motion for new trial on ground of the court’s failure to -make such separate findings, he cannot object to ,such special findings, either because they were made out of time or were not - full enough.
    3. Elections — deduction of illegal votes. — In a primary election contest, where the parties agree to purge the ballot boxes of illegal votes which were deducted from the votes as determined . by the central committee, the votes of the opposing parties as thus ascertained must be taken as prima, fade the result of the election. ■
    4. Elections — illegal votes — effect.—In a primary election contest where illegal votes can be segregated from the rest of - the votes without assailing the integrity of the entire box, only the illegal votes should be thrown out.
    5. Elections — fraud impeaching vote of precinct. — In a primary election contest, proof that a single vote was registered in the name of a party who did not vote at such election is not sufficient to impeach the integrity of the entire vote of the •precinct.
    ■ 6. Elections — evidence of fraud. — In a primary election contest, proof that two votes in a precinct were changed from one candidate to the other, without showing when or by whom they were altered, will-not be sufficient to impeach the integrity of the entire vote, but such votes will be counted for the' candidate in whose favor they were east.
    7. Elections — object of election laws. — The object of our Constitution (art. 3, § 11) and statutes concerning elections is to guarantee that the sovereign will of the electorate as expressed by their -ballots shall not be thwarted.

      8. Elections — presumption of regularity. — Election officers are presumed to comply with the provisions of the Constitution and statutes governing elections, so that returns made by them showing the result of the election are prima facie correct, and are not to be overturned except by proof tending to show such fraud as to make it impossible to ascertain who received a majority of the votes cast.
    9. Elections — failure of officers to take oath. — Crawford & Moses’ Dig., § 3768, providing that in primary election contests the county central committee shall examine the ballots, hear testimony, cast out illegal votes, and determine the true votes, indicates that it was not contemplated that a precinct vote should be thrown out because of the failure of the election officers to take the oath required by § 3755 or make certificate as required by § 3766; especially since art. 3, § 11, of the Constitution requires the trial court to ascertain who received a majority of the legal votes cast, whether returned by the election officers or not.
    10. Elections — corrupt practice act. — -Under Crawford & Moses’ Dig., § 3772, giving a right of action to a candidate to contest the certification of nomination by the county central committee, and § 3775, providing that on a showing that a successful candidate has violated the election laws, the court may deprive the candidate of the nomination, held that there is no requirement that one contesting a nomination shall have been guiltless of violating the election laws.
    11. Elections — corrupt practice act — ouster.—The object of 5 3776, Crawford & Moses’ Dig., providing that a defendant in contest proceedings, who shall have been elected to office as the party nominee, after it has been determined that he was not entitled to the nomination on account of a violation of the corrupt practice act, shall be ousted from offiice, was to prevent one illegally nominated from holding the office, but not to entitle the contestant to the office.
    12. Elections — motion to dismiss contest. — A trial by the court in an election contest on the merits is tantamount to overruling the motion of the successful candidate to dismiss petition of contestant.
    13. Elections — when count not final. — In an election contest, where the court stated that, with certain contested precincts disregarded, there was no reason for finding the number of votes each candidate received, since it was apparent that the majority was against the contestant, held, that, since the court erred in disregarding such precincts, there was no final count, and the result of the election was not declared by the court.

      14. Elections — determination on appeal. — The Supreme Court will not try the facts on appeal unless they are undisputed, in which case it becomes a question of law as to what judgment should be rendered; so that, unless the parties to a primary election contest agree that the votes in contested precincts when counted would result in giving a majority of legal votes to one of the parties, no judgment will be rendered in the Supreme Court that either party was entitled to the nomination.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    reversed.

      Roy D. Campbell, for appellant.

      Ross Mathis, W. J. Bungan, J. F. Summers and J. F. Summers, Jr., for appellee.
   Wood, J.

W. R. Cain, hereafter called appellant, instituted an action in the Woodruff Circuit Court against E. M. CarlLee, hereafter called appellee, contesting the result of the Democratic primary election held in August, 1924, by which the appellee was declared the nominee for county judge. The pleadings and the pro: ceedings had at the first trial are set forth in the opinion of this court in Cain v. CarlLee, 168 Ark. 64. This is the secón,d appeal in the case. The judgment of the trial court was reversed on the first appeal and the- cause remanded for a new trial because of an error of the court in holding that certain names which had been added to the assessment list of poll taxpayers of Woodruff County, contrary to the requirements of § 3738, C. & M. Digest, were qualified electors. After remand of the cause the appellant filed an amendment to his original complaint in which he set out a list of voters consisting of 145 in the Augusta precinct, 9 in Revell box, Augusta precinct, 79 in Cotton Plant precinct, 64 in McClellan precinct, 43 in White River, 38 in Point, 25 in Coney, making a total of 398 names. Appellant alleged that these names had been added by the collector to the legal assessment list of poll taxpayers contrary to the provisions of § 3738, C. & M. Digest; that not less than 328 of these illegal votes were cast for the appellee. He prayed that these illegal votes be deducted from the legal votes received by the appellee, which would give the contestant a plurality of the legal votes cast; and appellant prayed that he 'be declared the nominee, and that the appellee be ousted from office, and for all proper relief.

The appellee moved to dismiss the cause. He alleged that the appellant had violated §§ 3902, 3904, and 3899 of the law designated in chapter 54 of Criawford & Moses’ Digest as, the “corrupt practice act,” and that under § 3775 appellant could not maintain the contest, and that he should be proceeded against as provided in § 3774 as for violation of the corrupt practice act. The appellant responded to the motion to dismiss and denied the allegations thereof, and among other things alleged that the. allegations of the motion constituted no defense to the election contest instituted by the appellant. The court, after hearing the evidence adduced on the motion, took the same under advisement, to which ruling the appellant and the appellee both excepted.

On the issues thus joined the cause came on for la hearing on the 22d of May, 1925, and during the progress of the trial, on May '27th, the appellee moved to exclude from consideration as evidence in the cause the ballot boxes and ballots of the precincts of Pumpkin Bend, Tip and Ohapple Grove, alleging that certain ballots in these boxes were changed from the wlay they were cast. The appellant moved the court to exclude from-the evidence the ballot box and ballots therein- of Augusta, alleging that the judges and clerks permitted Mrs. John Harrelsón to vote ballot No. 440 for E.M. CarlLee, when Mrs. John Harrelson did not appear at the polls and cast a ballot. The appellant also moved the court to strike from consideration of the testimony the ballot box of. the precinct of Cotton Plant, alleging that the judges and clerks counted therein ballot No. 307 cast by Mrs. Roy B. Parnell, when Mrs. Roy B. Parnell did not in fact .cast a ballot in said'box and did not appear at the precinct of Cotton Plant to vote. The court reserved its decision on these motions of the respective parties until final determination of the cause, to which ruling both parties excepted. "When the cause was taken up for final hearing on the merits after the appellant had introduced three witnesses, the bill of exceptions shows that the following occurred: “The court would like to ask counsel what the necessity is for going over the same grounds we did in the former trial. We went through a great number of ballots. I see no necessity for going over that lagain.; Let the attorneys get together on the votes.” It was thereupon agreed by the attorneys representing both sides that they would secure the assistance of parties they might agree on and make a count of the votes in that ' manner and thereby be enabled to present the facts in a more concise way to the court; land those votes upon which they might fail to agTee they would submit the ■ facts to the court for his finding; and after several days of arduous work and the end not in sight, the court recessed until the 27th. For that reason the testimony of the witnesses Rives, Mitchell and Cain, above named, is not transcribed and because they were called at a later • time.” After several days of recess and after the inves- - ■tigation agreed upon by counsel in open court had been completed, it was announced in open court as follows: “We have by agreement eliminated the names which we desired to investigate, as to how they voted, land our lists have been checked repeatedly against each other, and we have agreed, beginning with' each township, that, out of the recount as made by the committee, the following numbers of ballots were added without the parties having been assessed and certified to the clerk as ’required by law.” Then follows the result ascertained in the various precincts, naming them, and designating the number of ballots after the elimination of the votes found to be illegal under the former ruling of this court. It was reported that of these illegal votes CarlLee had received 209 and Cain 139. After deducting these votes from the total votes of the respective candidates as reported by’ the committee appointed by the Democratic Central Committee to recount the ballots, it was found that CarlLee had 638 votes and Cain 676. The court thereupon proceeded to hear the testimony adduced by the respective parties concerning the integrity of the election in the precincts challenged as a whole and also the individual votes in precincts, where same were questioned, and lat the conclusion thereof announced as follows: “After hearing the evidence and the remarks of counsel and being sufficiently advised in the premises, it .is by the court considered, ordered and adjudged that the complaint of the plaintiff be dismissed, and that the defendant recover his costs herein. ’ ’

The appellant filed a motion for a new trial in due' time setting up in the first, second and third assignments of error that the verdict was contrary to the law and the evidence; in the fourth, fifth and sixth, twelfth and thirteenth assignments that the trial court erred in rendering a decision in the case without making any special findings of fact on the evidence or ruling upon the pleadings and motions in the cause. In the seventh and eighth assignments that the court erred in allowing testimony to be introduced on the motion to dismiss the appellant’s complaint and amended complaint; in the ninth assignment' that the court erred in failing to cast out the entire vote of the Augusta precinct; in the 10th that the court erred in .failing to cast out the entire vote in the Cotton Plant precinct; in the 11th that the court erred in permitting the records of the town council of McCrory to be introduced land particularly an instrument in writing purporting to be an agreemlent of certain members of the town council of McCrory to vote for an appropriation of Certain money of the Planters’ Mercantile Company for the purpose of paying the poll taxes; in the fourteenth, fifteenth, sixteenth and seventeenth assignments the court erred in passing upon the vote in certain precincts which were, designated, including those in the precincts of Pumpkin Bend, Tip and Chappie Grove. In the 18th assignment that the judgment of the court is erroneous because it was contrary to the evidence and because the agreement of counsel shows conclusively that the appellant received a plurality bf-the votes cast at the primary election.

The court handed down a written opinion in its order . overruling the motion for a new trial, holding that the precincts of Cotton Plant and Augusta : should not be disregarded for the reason that the alleged illegal votes in these precincts, could be segregated without assailing the integrity of the entire box. But that in each of the precincts of Pumpkin Bend,. Tip and Chappie Grove, respectively, there were two votes changed to Cain after they had been cast by the voters by a line drawn through the rúame of CarlLee or Bronte and the erasure of a line which had been drawn through the name of Cain. The court held that this fraud, having been done by the judges or some one in charge of the ballots, impugns the integrity of the box, so the entire vote of these precincts should be thrown out.

The court further found that, with these precincts disregarded there was no reason for finding the specific number each candidate received on a final count, it being apparent that the majority was against the contestant. The court disposed of the 4th, 12th and 13th paragraphs of the motion, relating to the failure of, the court to make specific findings on the evidence and the. rulings on the pleadings before or at the time of the rendition of the judgment, by saying that the contestant -filed no request or prayer for special finding or declarations of law, and only made the request- orally after the final judgment was pronounced. From the judgment rendered dismissing-the appellant’s complaint, he duly prosecutes this appeal.

We ‘find no error in the rulings of the court in failing to announce its -conclusions of fact and law lat the time or before it entered its judgment. ' The statute requires that, in trials of questions of fact by the court, it shall-state in writing the conclusions of fact separately from the conclusions of law. Section 1309, C. & M. Digest. But¡ in the absence of a specific request by the party against whom the judgment is rendered that the court make a special, instead of a general, finding of its conclusions of fact and law, there is no reversible error in the court’s making a general finding of law and facts, and where the party against whom the judgment is rendered in his motion for a new trial assigns as error the failure of the court to make separate land special findings of fact and declarations of law, the court may, if it elects, then treat the motion as one for special findings.

In Apperson v. Stuart, 27 Ark. 619, we held that the findings upon the facts by the court sitting as a jury required by law. to be reduced to writing .need not necessarily be put in writing before judgment, but the court may, ¡after the judgment, reduce the same to writing. In that case, speaking of that provision of the law, Chief Justice English said that the object of this provision was “doubtless that a memorial of them might be furnished and preserved,” and he adds, “but wé can see no particular reason why this cannot be done as well after as before the rendering of the judgment.” See also Nathan v. Sloan, 34 Ark. 524; Jewell v. Williams, 127 Ark. 58. In the last case we held,that, where a cause is tried before a circuit judge, it is the duty of the appellant to request the court to make a written finding of fiact and to object to his failure to do so. We also held that “the motion for a new trial was an assignment of the error alleged to have been.committed, and was not a request that the findings of the court be then reduced to writing and filed.” But, even if it could be said that the motion for a new trial in the case ¡at bar was tantamount to a request for special separate findings of fact and law, still the court’s written findings in overruling appellant’s motion for a new trial were a sufficient compliance with the law; for these findings fully advised the appellant of the court’s rulings and furnished and preserved the memorial which is the design of the law. After the court had made these special findings of law and f act, if appellant desired to object to them, either as to the time of the filing, or that they were not full enough, he should have drawn the attention of the trial court thereto, and, not having done so, he is certainly in no attitude to complain here. The appellant’s assignments of error therefore, as contained in the 4th, 12th and 13th grounds of the motion for a new trial, are not well taken.

The final decision of the Democratic Central Committee of Woodruff County gave 847 votes to the appellee and 915 to the appellant. This was the result by including in the count the votes of persons who had not ¡been assessed ¡according to the decision of this court on the former appeal. On remand of the cause and by agreement of the parties, as above stated, the various ■ballot boxes in Woodruff County were purged of such votes, and it was ascertained that the appellee had received 209 of these illegal votes and the appellant 139. Deducting these from the votes of the respective parties as shown by the central committee, the appellee received 638 votes and the appellant 676, which must be taken as the prima fade returns and result of the primary election as between the appellant and the appellee for county judge of Woodruff County.

Proceeding from this point, the trial court investigated the result of the primary election under the testimony adduced by the respective parties, and, as stated in his order overruling the motion for a new trial, found generally in favor of the appellee, the basis of his finding being that the precincts of Cotton Pliant and Augusta should not be thrown out, but that the entire precincts of Pumpkin Bend, Tip and Chappel 'Grove should be thrown out. The court gave as its reason for so holding that in cases where illegal votes can be segregated from the others without assailing the integrity of the box, without casting a doubt as to the legality of the others, only the illegal votes should be thrown out- The court announced the correct’ principle of law and correctly applied it as to the precincts of Cotton Plant and Augusta. The record shows that the appellant called one Minor Kittrell, who testified that he was one of the judges of the primary .election at the Augusta box in August, 1924. He was asked if he knew John Harrelson and his wife and answered in the affirmative. Thereupon one of the attorneys f or .the appellee made the following’ statement: “At the time this election was held, Mrs. Harrelson was living, and hiad been .an invalid .for about a year; she died some two or three days afterwards.; Mr. Harrelson, the husband; informed-me that one of the,judges went up to her house, she having expressed a desire to vote, on account of a relative being a candidate, and, to satisfy her, he did; she wrote her name very plainly at that, time; we consider that'that is not a legal vote, .and we ask permission now1 to withdraw that ballot, when we obtain the box.” Thereupon the attorney for the appellant stated: “I just want to show how.some things went on — that’s all.” But counsel for-appellant did not interrogate witness Kittrell any further, nor offer to do so, and must, therefore, be held, to have accepted the statement of counsel for the, appellee, as the truth, as it.doubtless was, concerning the vote of Mrs. Harrelson. It was admitted that the vote of Mrs. Harrelson was- for CarlLee.

Concerning the precinct of -Cotton Plant, the. appellant called Mrs. B.;B. Parnell, -who testified that she had lived at Cotton Plant for six years. She was not at the primary -election of August,, 1924; was at her home on that day; did not attend the election-and. did not vote. ■She was' asked.the following question: “Your name appears on the list of voters.in Cotton Plant box as number-311. Do you know how-your name got to be in that box?” She answered, “I do not have any idea.” She was further asked: “Did you sign a ballot or have anything to do-with the election on that day?” -She answered, “No sir.”. On cross- examination, she stated that she -didn’t know of any other Parnells in Cotton Plant. Her name was Lena Francis, and on redirect examination she. stated that her husband’s initials-were B. B. The list of voters at the .Cotton Plant precinct, registered by the clerks of the.election showed that there were 310 votes. Number 307 was the vote of Mrs. It. B. Parnell, and that ballot was oast and ■counted for CarlLee. At the Augusta box there were 411 registered votes.

The above is the only testimony in the entire record offered to impeach the integrity of the precincts of Augusta and Cotton Plant. The testimony is wholly insufficient for that purpose, and the trial court ruled correctly in so holding. In Crawford v. Harmon, 149 Ark. 343, under a precisely similar state of facts as that which occurred at the Augusta box, we said: “It does not appear that this was done with any fraudulent design, but with an honest purpose on the part of the judges to permit the sick man to cast his ballot- The -court properly threw out this ballot as having been illegally' east, but it afforded no ground for discarding the whole vote of the precinct.” The same may be said also as to the Cotton Plant precinct. The testimony of Mrs. Parnell, is not sufficient to -show any fraud upon the part of the officers conducting the election in that precinct. Fraud cannot be predicated upon the single land isolated circumstance revealed by the testimony of Mrs. Parnell that'she didn’t attend the election at that precinct, whereas a vote is registered in her name as No. 307. This was a large precinct, having more than 300 registered voters.

The realm of speculation offers too many contingencies that would account for an honest mistake in this one ballot registered in the name of Mrs. Parnell to make her testimony the basis for a charge and proof of fraud upon the part of the judges and clerks of election at that precinct such as would impeach the entire returns of that bqx. The ballot corresponding to this number was not produced. If such occurrences had been, numerous, or if there had been any other badges of fraud, this, in connection with other indicia tending to prove fraud, anight have made a different case, but the testimony in this record is wholly insufficient to justify overturning the finding of the trial -court as to these precincts.

But it occurs to us that the same doctrine which the court announced and applied in passing upon the precincts of Augusta and Cotton Plant should have lalso been followed in the precincts of. Pumpkin Bend, Tip and Chappie Grove. As to these latter boxes the court found the facts to be as follows: ‘ ‘ These, by an inspection of the ballots and the evidence of the men who cast them, the fact is established that two votes in each of these precincts were changed to Cain after they were cast by the voters, by a line drawn through the name of CarlLee or Bronte, and an erasure of the line which had been drawn through the name of Cain.” The court announced the law with reference to these to 'be that: “where fraudulent votes are found in.a box land cannot be accounted for and segregated so as to avoid impugning the integrity of the box * * * this character of fraud, having been found by the judges or some one in charge of the ballot, impugns the integrity of the box so that the entire vote of these three precincts should be thrown out.” The conclusion of law thus announced by the trial court is sound, and should be applied to the very facts which the court found concerning the precincts of Pumpkin Bend, Tip and Chappie Grove. The court, in reaching its final determination in the cause, should have taken into consideration the votes in these precincts instead of excluding them from the count. The court should have counted the votes shown to have been changed for the candidate in whose favor the ballots were actually cast, and, in the absence of proof showing that other ballots were similarly changed, the court was not justified in impugning the integrity of all the remaining ballots, but should have counted them, as they were returned by the election officers, in favor of the candidate for whom they appeared on their face to have been cast. In other words, the testimony in this record is not legally sufficient, as we view it, to justify the court in concluding that the judges and clerks of the election in the precincts of Pumpkin Bend, Tip and Chappie Grove were guilty of fraud in conducting the election, which fraud should result in the impeachment of the entire vote of those precincts. It will he observed that the court found, upon inspection of the ballots, that two of the votes in each of these precincts had been changed from the candidate for whom they really voted to Cain; that this was doné by drawing a line through the name of Cain’s opponents and erasing a line drawn through the name of Cain. The above testimony was sufficient to warrant the court in segregating these ballots and counting them - for the candidate in whose favor they were east according to the testimony of the voters who actually cast the ballots. But we cannot concur in the view of the learned circuit judge- that “this is a character of fraud that impugns the integrity of the entire precinct.” Now, all of the ballots in these precincts were under the inspection of the trial judge, and he only found two in each precinct that bore any evidence of alteration, and these were -shown by the parties casting the ballots to have been changed. Bht to declare that the remaining ballots in these precincts were likewise altered and changed is a declaration without any proof whatever to sustain it. The integrity of entire- precincts must not be destroyed upon bare suspicion and without any proof to show actual fraud in the conduct of the officers of the election. No testimony has been abstracted tending to prove that the judges and clerks -of election, or either of them, made these changes. There is nothing to show when, or by whom, such alterations were made, nor whether they were made before or after the returns were lodged in the keeping of the county central committee.

The -object -of our Constitution and laws -concerning elections is to guarantee that the sovereign will of the .electorate as expressed- by their ballots is not thwarted. It is to this end that the Constitution -provides that “if the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest arising out of said election.” Article 3, § 11, Constitution. All the duties prescribed for primary election officers and the safeguards thrown around primary elections as provided in our primary election laws contained in chap. 54, C. & M. Digest, are enacted for the same purpose. Tim presumption is that election officers hiave done their duty and obeyed the provision of the Constitution and statutes in holding an election. Hence, the returns made by- them showing the result of an election are prima facie correct, and are not to be overturned except by proof to the contrary. Thus it is that in all election contests the returns of the election officers in the various precincts -challenged Will not be set aside as a whole except upon proof tending to show a course of conduct upon the part of the election officers, or some of -them, indicating that they were guilty of such fraud in conducting the election as to make it impossible to fairly ascertain who received the majority of the votes -cast. To justify the wholesale disregard of the returns of election precincts, the testimony must be such as to prove fraud on the. part of the election officers themselves in conducting the election. But, unless such fraud is shown upon the part of the election officers,, the returns should only be purged of illegal ballots, and the remainder counted as shown by these returns. The above principles of law have often been announced by this court. Govan v. Jackson, 32 Ark. 553; Thompson v. Hinckle, 35 Ark. 456; Dickson v. Orr, 49 Ark. 238, 241; Freeman v. Lazarus, 61 Ark. 247; Saylor v. Rankin, 125 Ark. 557; Crawford v. Harmon, 149 Ark. 348, are some of our numerous cases.

Learned counsel for the appellee contend, however, that, -regardless of any question of fraud upon the part of the election officers, the -court was correct in casting out the entire returns from the precinct of Pumpkin Bend for the reason that the judges and clerks of election did not take the oath as prescribed by § 3755, C. & M. Digest, and that the returns of the election were not certified as required b}^ § 3766 of C. & M. Digest. The oath required is set forth in the record and is signed hy the judges of Pumpkin Bend precinct. The oath of the clerks of that precinct is only signed hy one of the clerks, and the certificate required is set forth, but not signed by the judges. To sustain their contention, counsel rely upon the case of Thompson v. Hinckle, 35 Ark. 450. But ah examination of that case will discover that it has no application whatever to election contests. There is no provision in the primary election law requiring the county central committee, to whom the returns are made, to refuse to receive the returns unless the statutes in regard to the oath and certificate above mentioned are complied with. There is nothing in the statute requiring the court, when a contest is instituted, to ignore those precincts where the above provisions of the statute have not been complied with.

Section 3768 of the Digest requires the county central committee to canvass the returns, and, when demanded, to examine the ballots, hear testimony, if offered, of fraudulent practices and illegal votes, and to cast out illegal votes or fraudulent returns and -find the true and legal vote cast for each candidate. This statute shows clearly that it was never contemplated that irregularities in the election such as a failure of the judges and clerks to comply with the statute in regard to the oath and certificate, should vitiate the result of the election. Moreover, under the provisions of art. 3, § 11, of the Constitution above, notwithstanding any refusal or failure of the election officers to return the vote or ballot of any qualified elector, such vote or ballot must nevertheless be counted upon any contest arising out of such election. Under our Constitution and statute, the trial court hearing the election contest must ascertain who received a majority, of the legal votes cast at the election, whether they were returned by the election officers or not. See Govan v. Jackson, and Dickson v. Orr, supra.

It is further urged by counsel for the appellee that the'appellant violated the Corrupt Practices Act, and that therefore appellee’s motion to dismiss appellant’s cause of action should have been sustained on that ground, and that the judgment of the trial court should now be affirmed here for that reason. The procedure for contesting the-results of primary- elections is prescribed by statute. Section 3772 of the Digest provides in part, “A right of action is hereby conferred on a candidate to contest the certification of nomination or the certification of vote as made by the county central committee. * * * The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty:days if against the certification in more than one county. The complaint shall be answered within ten days.”

•Section 3773 prescribes the method of procedure after the complaint is filed. Section 3774 provides for criminal procedure to be'instituted against those who may have violated the Corrupt Practices Act.

Section 3775 provides in substance that, should it be proved to the satisfaction of the trial judge in a case instituted under’any of the above sections “that a successful candidate has been guilty of violating any provision of the Corrupt Practices Act or any other violation of the law regulating primary elections, the circuit court shall enter such finding as a part of the judgment, irrespective of the determination of the issues in the suit instituted under §§ 3772, 3773, or the verdict of the jury in a criminal prosecution; and the judgment to that effect shall operate to deprive the candidate of the nomination and right to have his name on the ballot, .and the vacancy shall be filled by a special primary or otherwise, as may be determined by the party organization.”

■ It will be noted that “a right of action is conferred upon any candidate to contest the certification of nomination -or the certification of vote as made by the county central committee,” and there is no proviso or condition precedent- attached thereto' to the effect that snch candidate in order to -prosecute and maintain his action must not himself have been guilty of violating the Corrupt Practices Act.

Section 3776 of the Digest provides in' substance that a defendant in contest of election proceedings under the primary election law, or one who has been prosecuted for a violation of the Corrupt Practices Act and who shall have been elected to office as the nominee, of the party, after it is determined that he was not entitled to the nomination, or judgment entered contains a finding that he violated the Corrupt Practices Act, shallibe ousted from ' office, and the vacancy shall be filled as provided by law for filling vacancies in such office in case of death or resignation. In Ferguson v. Montgomery, 148 Ark. 83, at page 101, this court, in construing this section, said: “The object was to prevent one illegally nominated, and thereby securing an election at the general election, from holding the office during the term provided by law ór a material portion thereof, -and thereby rendering abortive the contest proceeding.” Even though appellant should finally succeed in this action in having a judgment of ouster entered against the -appellee, nevertheless appellant could not be a direct beneficiary of such judgment.

We are convinced, therefore, that § 3772 expressly confers upon the appellant the right to maintain this action, and certainly there is no inhibition upon that right contained in, the ’Corrupt Practices Act as construed in Ferguson v. Montgomery, supra. To construe the Corrupt Practices Act, as contended by the appellee, as inhibiting a candidate who had violated the Corrupt Practices Act from maintaining an action contesting the result of the election and nomination of the successful candidate for the same office at the primary election would be nothing more nor less than judicial legislation. If the law be defective in this particular, it is not the province of this court to correct it. A. trial by the court upon the merits of the cause w<as tantamount to overruling appellee’s motion to dismiss, and the court did not err in such ruling.

It is conceded in the brief of counsel for the appellée that Cain received 23 votes in the precinct of Tip, and CarlLee 3; in Chappie Grove precinct Cain received thirteen votes and CarlLee two, and in Pumpkin Bend precinct Cain received forty-nine votes and CarlLee one, making a total of 85 votes for Cain and six votes for CarlLee in the three precincts that were cast out by the trial court. “With these precincts disregarded,” declares the trial court, “there was no reason for finding .the specific number each candidate received on a final count, it being apparent that the majority was against the contestant.” The court does not indicate by this finding that it would have found the majority in favor of the contestant if the votes of the entire precincts of Tip, Chappie Grove and Pumpkin Bend had not been cast out. So we take it there has been no final count and result of the primary election declared by the trial court including the returns from all the precincts in that county.

Counsel for appellant concludes his original brief by saying that if “this court does not feel .justified in rendering a judgment for the appellant here so that this case may not again have to be remanded, we then ask this court to affirm this case. ’ ’ But it is not the province of this court to try the facts unless they are undisputed. It then becomes a question of law as to what judgment should be rendered, and this court may then render such judgment as should have been rendered by the trial court. Therefore, unless the,parties should agree here that the votes in the precincts of Tip, Chappel Grove and Pumpkin Bend, when counted in favor of Cain, would result in giving him a majority of the legal votes in the primary election, we cannot render a judgment here in appellant’s favor and a judgment of ouster against the appellee. Therefore, for the error indicated, the judgment is reversed and the cause is remanded for a new trial.


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

text:
    Wallace v. Kansas City Southern Railway Company.
    Opinion delivered November 23, 1925.
    1. "Elections — notice of election. — The time of holding an election, whether general or special, must be authoritatively designated in advance, either by law or by some means which the law has prescribed, and in the absence of such notice the election is ineffectual for any purpose.
    2. Elections — failure to give notice of election. — Where both the time and place of an election are prescribed by law, every voter has the right to take notice of the law and to vote at the election, notwithstanding the officer whose duty it is to give notice of the election has failed in that duty.
    3. Elections — mandatory and directory provisions. — All provi-' sions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all- should be held directory, only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that" the particular , act is essential to the validity- of an - election, or that its omission shall render it void.
    4. Elections — time to hold election as to road tax. — Since the Constitution has expressly designated the time for holding the election for road taxes to be the general election, the provision is exclusive and must be followed.
    5. Elections — road tax election. — Under Crawford ' & Moses’ Dig., § 3787, providing that it shall be the duty of the county election commissioners in the several counties to place on the ticket to be voted at the election for county officers “For road tax” and “Against road tax,” held that the right to vote on the question of road taxes will not be lost because of the failure of the election commissioners to print the required words upon the ballots, nor will the election be void because only a few electors voted on the question.
    Appeal from Sevier Chancery- Court; G. E. Johmon, Chancellor;

    reversed.
    STATEMENT OF FACTS.
    The Kansas City Southern Railway Company and Texarkana &Fort Smith Railway Company brought this suit in equity aigainst Wm. B. Wallace, as collector of Sevier County, Arkansas, to restrain him from collecting" a three mill road tax for the years 1922 and 1293, which was levied by the quorum court of said county on October 25, 1922.
    The record shows that the quorum court of Sevier County, Arkansas, on the 25th day of October, 1922, levied a three mill tax for the purposes of maintaining and establishing public roads in Sevier 'County, Arkansas.
    ■ According to the testimony of the county clerk of Sevier County, the certificate of election commissioners showing the vote . for all State, county and township officers, and the-various questions submitted at the general election held in October, 1922, was filed in his office as required by law,- but has been lost. He did not recollect whether the certificate of the election comimissioners showed whether a majority of the votes cast at said general election were in favor of a. three mill tax. The certificate did show, however, that some votes were cast for the three-mill road tax, and it did not show that any votes were cast against it.
    The record also shows that the ballots furnished by.the election commissioners to be used at said general election did not have printed on them the words, “For road tax,” or “Against road tax.”
    The chancellor made a general finding in favor of the plaintiff, and the defendant was perpetually enjoined from collecting from them all road taxes for the years 1922 and 1923.
    The defendant has duly prosecuted an appeal to this court.

      Lake, Lake & Carlton, for appellant.

      James B. McDonough, for appellee.
   Hart, J.

(after stating the facts). There is some confusion in the record as to whether or not the election commissioners posted the printed instructions to the voters as required by law, and whether or not they complied with the law in some other respects. We may group these objections to the election under one heading. We all agree that these alleged irregularities did. not invalidate the election, hut come within the principles decided in Wheat v. Smith, 50 Ark. 266, and Hogins v. Bullock, 92 Ark. 67.

' In the case first cited the court recognized that the time of holding an election, whether general or special, must be authoritatively designated in advance, either by law, or by some means which the law has prescribed, and that, in the absence of such notice, the election is ineffectual for any purposé.

The court also recognized that, where both the time and place of an election are prescribed by law, every voter has the right to take notice of the law and to vote at the election, notwithstanding the officer whose duty it was to give notice of the election has failed in that duty. Because the time and place of holding general elections are fixed ’by law, the electors may take notice of them, and the public notice by 'advertisement required to he made by certain officers may be regarded as directory only. The requirements as to notice in the case of special elections are absolutely essential to the validity of the election and are mandatory; otherwise the voter would’ have no means of knowing the time,, place and purpose of the special election.

Again, in the case last cited, the. court quoted with approval the following:

“All provisions of the’election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the. statute that the particular act is essential to the validity of an election, or that its omission shall render it void.” ''

The decision of the court, however, was based upon the alleged fact that there was no election held for road taxes at the general election in October, 1922.

Amendment No. 3 to the Constitution provides that the county courts of the State, together with a majority of the justices of the peace of the various counties, shall have the power to levy a road tax not exceeding three mills on the dollar, if a majority of the qualified electors of said county shall have voted a public road tax at the general election for State and county officers preceding-such levy at such election.

It is conceded that the levy in the present case was properly made by the quorum court, if there was an election for road taxes at the general election held just previous to the meeting of the quorum court. It will be noted that the three-mill road tax is a voluntary self imposed tax by the electors of the respective counties in the State, and the electors themselves are made the exclusive judges of the necessity for levying the tax and as to the amount to be assessed not exceeding three mills on the dollar. The amendment in question has fixed the conditions which must be complied with before a valid levy of the road tax may be made. It must be voted at the general election for State and county officers preceding such levy, and the time of holding- that election is fixed by law. Hence the time of holding such election is one of the essential ingredients in the premises, and is a mandatory requirement.

Inasmuch as the Constitution has in express terms designated the time for holding the election for road taxes, the provision is exclusive and must be followed. Therefore, the road tax must be voted for by the electors at the general election preceding- the levy. Merwin v. Fussell, 93 Ark. 336.

Our statute provides that the county election commissioners shall print the ballots .to be used at the general election and deliver' them to the judges of the election, and that the expense shall be borne by the various counties in which they are used. Our statute also provides that the county election commissioners shall prepare the form of the ballots, and that no ballots shall be received except it be provided by the county election commissioners. Crawford & Moses’ Digest, 3783, 3784, 3785 and 3788.

In addition to these sections, § 3787 provides that it is the duty of the election commissioners in the several counties of the State of Arkansas to place on the ticket to be voted at the election held for the election of county officers, “For road tax,” and “Against road tax,” and that said commissioners shall canvass said vote and declare the same as they do other returns.

Section 3787 of the Digest is mandatory in the sense that it makes it the duty and requires the election commissioners to place on the ballots to be voted at each general election for county officers the words, “For road tax,” and “Against road tax,” but not in the sense that the right to vote on the question of road taxes or not will be lost because the election commissioners fail to print the required words upon the ballots. Such a construction of the law would not only render the election on the road tax question invalid on account of an honest, oversight of the election commissioners, but might open the door to fraud. In any event it might place the power in the hands of election commissioners to prevent a vote upon a question where .the right is given to the electors under the- Constitution. The power to vote a road tax or not is expressly given by the Constitution, and the time ■and place of voting on the question is prescribed by the Constitution to be at the general election held for State and county officers. We have held that this provision of the Constitution is exclusive, and that the right to vote upon the question can only be exercised at the election provided for in the Constitution. The framers of the statute in question seem to have recognized this fact and did not even attempt to provide that a noncompliance with the statute would invalidate the election on the question of levying a road tax. It simply made it the duty of the election commissioners to prepare the ballot so that the attention of the qualified electors would be called to their right to vote on the question, and to enable them to do so without having to write anything on the ballot.

Hence we are of the opinion that the statute only directs the mode of procedure in the matter by the election commissioners.

It is true that only a few electors voted on the question ; but this no doubt was due to the fact that they overlooked it, just as the election commissioners overlooked calling their attention to the matter by not printing the words embraced in the statute on the ballots. This fact, however, should have no more effect in invalidating the election than if all the voters except two or three had voted on the question. The Constitution gave the qualified electors the right to vote on the question at a time and place fixed by law, and this right should not be taken away because of any failure or omission on the part of the election commissioners in discharging their duties in the preparation of the ballots.

It follows that the chancellor erred in restraining the collection of the road taxes in question, and the decree will be reversed, and the cause remanded with directions to the chancellor to set aside its decree of injunction, and to dismiss the complaint for want of equity.

McCulloch, C. J.,

(dissenting). The Constitution provides that, as a condition precedent to the levying of road tax in a county, there must be a favorable vote of a majority of the qualified electors voting on the question at the preceding general election. I do not think that the failure of the election officers to give notice rendered the election void. But in this instance there was no. election held on the question of road tax; there was no place prepared on the ballot for a vote on that question, and the most that the evidence shows in this case, indulging every possible inference from the statements of the witnesses, is 'that a few voters in the county wrote on the ticket a vote favoring the road tax. My opinion is that this was not.an election on the question, and that the few votes cast on that question do not amount to a compliance with the constitutional prerequisites.

Our statutes provide that the county election commissioners shall provide the official ballots for each election, which shall be uniform and printed in plain type; that they shall “place on the ticket to be voted at the-election held for the election of county officers, ‘For road tax,’ and ‘Against road tax,’ ” and that “no ballot shall be received or counted in' any election to which this act applies except it be provided by the county election commissioners as herein prescribed.” Crawford & Moses’ Digest, §§ 3785, 3786, 3787.

The failure to make a place on the ballot for a vote on the question of road tax is tantamount to failing to furnish a ballot at all on that question, hence the statute in express terms prohibits the counting of such a ballot. It does not avoid the election as to other matters, but as to this particular matter the election is void because there were no ballots which the law permits to be counted. There is some conflict on the question, but I believe that the weight of authority sustains the view that such -a provision as this must be held mandatory. Coleman v. Eutaw, 157 Ala. 327; Horsfall v. School District, 143 Mo. App. 541; People v. Reinhart, 61 Mich. 585; Gomez v. Turner, (Texas), 128 S. W. 656; Catlett v. Knoxville, etc., R. Co. 120 Tenn. 699; People v. Meyers, 256 Ill. 529; Currant v. Luther, 164 Ind. 252.

In Hogins v. Bullock, 92 Ark. 67, we quoted with approval the following statement of the law from the decision of the Supreme 'Court of Indiana in Jones v. State, 153 Ind. 440:

“All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. ’ ’ •

Applying this rule to the present case, there is no escape from the conclusion that the statute is mandatory for several reasons. First, that the omission to provide a place on the ballot for a vote on the question of road tax'operated as “an obstruction to the free and intelligent casting of the vote;” second, that the requirement for providing a place on the ballot is ‘/an essential element of the election,” and, third, that the statute itself declares that the validity of an election on that question depends upon compliance with the statute — in other words, that no ballot shall be received and counted unless it is one furnished by the election commissioners, and, if none is furnished by the election commissioners providing for a vote on this question, there can be no valid vote cast.

It seems to me a very dangerous doctrine to lay down that a mere handful of voters can write on their ballots a vote in favor of road tax and thereby impose the burden on the taxpayers of-the county, when the general voters have had no opportunity to vote on the question.

My conclusion therefore is that the tax is void, and that the decision of the chancery court was correct in so holding.


author: Hart, J.

text:
    Smith v. State.
    Opinion delivered November 23, 1925.
    1. Criminal law — sufficiency of evidence to support verdict.— On appeal, a verdict of guilty must be tested by the strength of the State’s evidence.

      2. Receiving stolen goods — evidence.—Evidence held' sufficient to sustain conviction of receiving stolen goods and having- then in possession. '
    3. Criminal law — jurisdiction.—Local jurisdiction of all statutory offenses is in the county where the offense was committed.
    4. Criminal law — possession of stolen goods — venue.—Under Crawford & Moses’ Dig., § 2871, providing that any person liable to be prosecuted as receiver of stolen -personal property may be tried in any county where he' “had or received” such property, it was intended to allow the trial in any county where the accused either received the property at first or at any time after-, wards had it.
    Appeal from Sebastian Circuit Court, Ft. Smith District \-John E. Tatum, J udge;
    affirmed.

      John P. Roberts and Evans S.Evans, for appellant;

      H. W. Applegate, Attorney General, and John L. ■ Garter, Assistant, for appellee.
   Hart, J.

Hubert Smith was indicted and found guilty of feloniously receiving and having in the city of Fort Smith, Arkansas, an automobile, .knowing it to be stolen. ... : . , , , : ,.

According to the testimony of E. B. Brown, a Ford touring car of the value of $400 was stolen from his garage in the city of - Fort Smith, Sebastian: County, Arkansas, on Monday night about the 13th or 14th of April, 1924. The witness received information that :a car of the same description was im the possession , of Hubert Smith at his residence in the southern part of Logan County, Arkansas. The witness first, went to Bonneville in. Logan County-and-secured-a. warrant for the arrest of Hubert Smith. He then went to a school house where Hubert Smith was teaching .school in Logan County. Brown told him that he believed, from the description of the car that Smith had, that it was his car, and asked him what he had done with it. Smith said that he had sold it to a ¡mían named Oarl at Spiro, Oklahoma, who was a stranger to him. Brown asked him if he knew where the car was at that time, and Smith replied that he did not. Brown then told Smith that he was accused of being mixed up in the matter. Smith proposed to dismiss his school and help hunt the car. Brown told Smith that he believed that he knew where the car was, and told him that he had a warrant for him ’and believed that he was lying to him about not knowing where the car was. Smith then told Brown that he had sold the car in Wichita, Kansas. Brown then proposed to him that, if he would go with him to get the car and they found it all right, he would not arrest Smith. They agreed to this and went to Wichita, Kansas, and got the ear. Brown had to pay $200 before he could get the car. We quote further from the testimony of Brown as follows: <;Q. What reply did he make? A. I told him I knew who he got the car from. Q. Who? A. From Neal Fuller. Q. Did he make a. reply to that? A. No, sir; he did.not make any reply. I asked him if he was not with Neal Fuller, the Saturday before the car was stolen Monday night, and he said he was. I said you and him met at Booneville, and you waited for Fuller to bring you this car, and you knew it was going to be stolen before it was stolen, and you were at Booneville waiting for it? Q. Did he make a reply to that? 'A. No sir; he just hung his head.” Brown also testified that he had nothing to do with the arrest and prosecution of the defendant except as compelled to testify after being subpoenaed in the case.

According to the testimony of George L. Hays, along about the 18th or 19th of April, 1924, he saw the defendant in Booneville, and told him. and his brother that they could go honie with him that night if they wanted to. The defendant told him that Neal Fuller had called him from Fort Smith that day and told him that he had a car he'thought would suit him, and a price that would suit him, and that it would be there for him to look at that evening. The defendant said that Neal knew that he was on the market for a-ear if he could get one that suited him.

According to the testimony of John Roberts, he asked the defendant where he got the car, and he told him that he had bought it from a glass blower at Boone-ville named Allen.'

Acóording to the testimony of Clyde Brownfield, he agreed to purchase the car from the -defendant at Bonanza, Arkansas, in June, 1924, and came to Fort Smith in Sebastian County, Arkansas,' in the car with the defendant. The witness drove the ear, and the defendant came with him to Fort Smith in it. After they arrived in Fort Smith, the-witness paid the defendant for the car. The witness then took the car to Wichita, Kansas, and sold it to a dealer there. The witness paid the defendant altogether $225 for the car.

On cross-examination, the witness answered that he had been tried on the day before on the charge of selling stolen, property. He was referring to the car in 'question, and was acquitted of the charge by the jury trying him.

According to the testimony of Bob Williamson, the constable of Upper Township, Sebastian County, Arkansas,' he knew the defendant, Hubert Smith, and went to see him about the 11th of June, 1924, at lone in Logan County, Arkansas, and told him what his business was. The witness asked Smith what he had done with the car, referring.to the one which Smith had recently come into possession of, and Smith said that he had sold it. The witness then asked him who he had got it from, and Smith replied that he had got it from John Allen, a glass blower at Fort Smith. The witness then asked Smith if he had not gotten his car from Neal Fuller, and he said, “Well, no. What makes you think so?” Smith stated further that he had sold the car to a man named Carl at Spiro, Oklahoma. The witness asked him how Allen, the glass blower, knew that he wanted a car, and Smith replied that lie did not get it from,Neal Fuller; but that Neal Fuller knew that he was in the market for a bargain in a car and sent Allen down with the car.

According to the testimony of the defendant and the witnesses .in his behalf, he,bought the car in good faith, not knowing that it had.'been stolen.

It is.not necessary to abstract the defendant’s testimony, for the reason that the verdict of guilty must be tested by the strength of the evidence for the State. The defendant was. indicted, under § 2493 of Crawford & Moses’ Digest, which .provides that whoever shall receive or buy any .stolen chattels knowing them to-be stolen, with'the intent to deprive the true owner thereof, shall, upon conviction, be punished as in oases of larceny. Thus it. will be seen that the evil: to be guarded against by the passage of the statute was to prevent persons from rendering efficient aid to the one stealing the property with intent to deprive the true owner thereof.

In the case at bar,, the evidence shows that the automobile -had been recently stolen, and was in the possession of the defendant. He sold it soon afterwards to one who in -turn sold it to an automobile dealer in another State. These facts, together with the declaration of the defendant that he received it from another person, may be taken ,as sufficient evidence that he received it from the thief, instead; of stealing it himself. His contradictory statements as to how he came into the possession of the automobile and where he disposed of it may also be considered, in determining his guilt or innocence., His silence and evasive -answers when questioned with regard to .his guilty knowledge of the theft of the automobile were all proper matters for the consideration of the jury. All the facts and circumstances together were sufficient to warrant the jury in finding the defendant guilty. See Sons v. State, 116 Ark. 357.

•. The record, shows that the automobile was stolen in the city of Fort Smith in Sebastian County and carried to. Logan County, Arkansas, and received bv the defendant there. The defendant then contracted, to sell the automobile-to another person, and went with that person to the city of Fort Smith and received his pay for it in that city. The automobile was then taken by the person who bought it from the defendant into the State of Kansas and sold there.

The circuit court was requested to charge the jury that, if they believed that the defendant first bought or in any way received the automobile in Logan.County and afterwards brought it to Fort Smith and there, sold it, he could not be convicted of the crime of receiving stolen property. The court refused to give this instruction, and gave other instructions which allowed the jury,to convict the defendant upon proof that. he. knowingly had the stolen automobile in Sebastian County with the intent to deprive the owner of it. .

The defendant was indicted under § 2493 of Crawford & Moses’ Digest, which reads as follows:

“Whoever shall receive or buy any .stolen goods, money or chattels, knowing them to be stolen, with intent to deprive the true owner thereof, shall, upon conviction, be punished as is, or may be, by law prescribed for the larceny of such goods or chattels in cases of larceny..” In this connection we must also consider § 2871 of the Digest, which reads as follows:
“When any person shall be liable to be prosecuted as the receiver of any personal property that may have been feloniously stolen, taken or embezzled, he may be indicted, tried and convicted in any 'County where he received or had such property, notwithstanding such larceny may have been committed in another county.”

Counsel for the defendant call our attention to the fact that, while at common law larceny was regarded as a felony committed where the goods were feloniously taken, vet for the purpose of jurisdiction the crime was treated as having been committed within any .jurisdiction into which the property was afterwards carried. This rule proceeds on the legal assumption that, -where the property has been feloniously taken, every act of removal may foe regarded -as a new taking and asportation. Hence ■it is contended that § 2871 was passed for the purpose of restricting the jurisdiction of courts in cases of receiving stolen property to the county in which the property was received.

■ ' If such was the purpose of the statute, it need not have been passed. The crime of receiving stolen property is purely- statutory, and undór our Constitution, which follows the common law, the local jurisdiction of all statutory offenses is in the county where the offense was committed. So, the offense having been created by statute, the jurisdiction would necessarily foe confined to the county where it was committed, unless the Legislature otherwise provided. In other words, the crime being purely statutory, if § 2193 stood alone, the jurisdiction would foe -fixed in the county where the stolen property was received. The evident purpose of the Legislature in passing § 2871 was to prevent trade and commerce in stolen chattels in this ’State. The Legislature had the right to make it a erime to receive chattels knowing they were stoleii with the intent to defraud the owner, and this is the gist of the offense.

We can perceive no reason why the Legislature could not make it a crime to have in possession stolen property with the intent to deprive the owner of it in any county -into which the property was carried as well as the county in which it was originally received.

But it is insisted that the language of § 2871 is‘not sufficiently comprehensive for that purpose. We cannot agree with this contention. The language -of the statute is that when -any person is liable to foe prosecuted as the receiver of stolen property, he may foe indicted in any county where he received or had such property.

It is claimed that the-words, “or had,” have no meaning of their own, -but are synonym-ous with the word “receive. ” The dictionary meaning of “have” is to hold in possession or control, and'we think that jurisdiction is conferred to try the accused in any county where he receives the stolen property or has possession of the stolen property as receiver. This view is in accord with Wills v. People, 3 Parker’s Cr. Rep. (N. Y.), p. 473.

In that case in construing a similar statute it was held that a person may he tried and convicted of the offense, of feloniously receiving and having stolen goods, either in the county where the accused originally received the stolen property, or in any county in which he after-wards had it. In discussing the question the court said:

“The statute is that the receiver of stolen goods ‘may he indicted,, tried and convicted where he received or had such property, notwithstanding such theft was committed in another county.’ (2. R. S. 726, par. 43). The reviser’s note to this section is: ‘New. In analogy' to the rule which allows a prosecution for theft in any county where the stolen goods shall he carried. - There is a similar English- statute.’ (3 R. S. 844, 845, 2d ed.) The English statute is that the receiver may he prosecuted ‘in any county cr place in which he shall have, or shall have had, any such property ifPhis possession’ (2 Russ. on Cr. 238), not using the word-‘received’-as our statute does. This shows that the natural meaning of our statute is its true meaning, and that it was intended to allow the trial in any county where the prisoner either received the property at first, or at any time afterwards had it. The words, ‘or had,’ are unmeaning without this interpretation.”

We find no prejudicial error in the record, and the judgment must therefore he affirmed.


author: Habt, J.

text:
    McGehee & Company v. Fuller.
    Opinion delivered November 23, 1925.
    1. Appeal and error — conclusiveness of verdict. — In testing the sufficiency of evidence to support the verdict, the testimony must toe viewed in the light most favorable to the party obtaining the verdict.
    2. Master and servant — breach of employment — damages.—Evidence held to sustain verdict in favor of defendant on his counterclaim for damages for plaintiffs’ breach of contract of employment to touy cotton for plaintiffs on a commission 'basis.
    3. Master and servant — breach of employment — expenses incurred. — Evidence held to justify an instruction upon the theory that, in employing defendant to buy cotton on a commission , basis, plaintiffs also agreed to pay all expense connected with the buying of the cotton.
    4. Appeal and error — instruction advising minority of jury to yield TO majority. — An instruction that, if a majority of. the jury should be for the defendant, the minority ought to doubt the correctness of their judgment and distrust the weight of the evidence which fails to carry conviction to the minds of their " fellows, was erroneous and prejudicial, as authorizing the minor-' ity to yield to the majority.
    Appeal from Sfeastian Circuit Court, Ft. Smith District; John E. Tatum, Judge;
    reversed.
    STATEMENT OP PACTS.
    J. F. MleGeh.ee & Company sued G. N. Fuller, to recover the sum of $1,138.97, and the accrued interest alleged to be due them by the defendant upon a promissory note.
    Fuller filed an answer, in which he admitted' the execution of the note, and as a defense to the action alleged that the plaintiffs had broken a contract with him whereby he was damaged in a sum largely in excess of the amount of the note.
    - By way of cross-complaint, Fuller alleged that he had been employed by the plaintiffs, J. F. McGehee & Company, who were engaged in the cotton business in Fort 'Smith, Arkansas, to buy cotton for them in the town of Mansfield, Arkansas, upon a commission of one dollar per bale; that the plaintiffs broke said contract by refusing to accept 152 bales of cotton bought for them by the defendant, and that the price of cotton, declined bo such an extent that he lost $3,569.44 upon the price of the cotton, and in addition certain items of expenses which are.itemized. ' . .
    The case was tried before a jury, which returned a verdict in favor of the defendant, and from the. judgment rendered the' plaintiffs have duly prosecuted an appeal to this court.,

      A. A. McDonald and Warner, Hardin & Warner, for appellant.

      Holland, Holland S Holland, for appellee.
   Habt, J.

(after stating the facts). The first assignment of error is that the evidence is not legally sufficient to sustain the verdict.

In testing the sufficiency of the evidence to support the verdict, the testimony must be viewed in the light most favorable to the party obtaining the verdict. Hence it is not necessary to abstract the evidence for the plaintiffs. It is sufficient to say that they introduced the note sued on in evidence, and that their own testimony contradicted in every material respect the evidence for the defendant.

According to the testimony of the defendant, he-was engaged in the mercantile business at Mansfield, Arkansas, and entered into a contract with the plaintiffs to buy cotton for them for a commission of one dollar per bale. Under the contract the plaintiffs each day gave him a price to be paid for the cotton, and at night the defendant reported the number- of bales bought and the price paid. He bought altogether for the. plaintiffs under the contract something like 375 bales of cotton, and the plaintiffs received all of it, except 152 bales. The defendant testified that he bought this cotton for the plaintiffs in compliance with their contract,- .and: that without any reason therefor the plaintiffs refused to receive it. The price of cotton declined. The defendant testified in detail as to the damages suffered by him on this account, and according to his testimony his damages amounted to - considerably more than $3,000. The evidence, if believed by the jury, warranted it in returning a verdict in favor of the defendant.

The second assignment of error is that the court erred in instructing the jury that, in arriving at the damages, it might consider whether or not the plaintiff had agreed to pay alb expenses connected with the buying of the cotton. The objection made to this part of the instruction is that there was no testimony upon which to base it, and that on this account it was calculated to mislead and confuse the jury.

We can not agree with counsel in this contention. On this point we quote from the testimony of the defendant the following: “ Q. He was to pay you a dollar abale? A. Yes, for all the cotton I bought and any other expenses, and he was to get all the cotton I bought down there and pay me a dollar a bale commission, and I was to guarantee the weights. Q. He was to furnish you a limit and pay you $1.00 a bale? A. Yes, sir. Q. And give you a limit every day? A. Yes, sir. Q. Did you invoice-the cotton to him at the limit, did you invoice it to him at the price iat which you bought it? A. I invoiced it at his limit.” In addition to this the defendant testified as to the expenses incurred by him. Therefore, the contention of plaintiffs that the instruction is .abstract is not.well taken.

The next assignment of error is that the 'court erred in giving the jury the- following’instruction:.

“Cautionary instruction. The court instructs the jury that the only mode provided by our Constitution and • laws for deciding questions of facts is by the verdict of the jury. .In ,a large proportion of cases, and perhaps, strictly speaking in all cases, absolute certainty can not be attained Or expected. Although the-verdict to which a juror agrees must, of course, be his own verdict, the result of his'own conviction, and not a mere acquiescence in the opinion of his fellows, yet, in order to bring twelve minds to a unanimous result, -you must examine the questions submitted to you with, candor and ¡a proper regard and deference to the opinions of each other. You should consider that you are selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more clearer evidence will be produced on the one side than on the other. And, with this view, it is your duty to decide the case, if you can conscientiously do so. To conferring together, you ought to pay proper respect to each other’s opinions, and listen with an imposition to be convinced to each other’s arguments. And, on the other hand, if much the larger number of-your panel are for the plaintiff, a dissenting juror should' consider whether doubts in his mind as to the correctness of their conclusions are reasonable in view of the fact that doubts which you have make no impression upon the minds of the other men, equally honest, equally intelligent with yourselves, and who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the sanction of the same oath,- and, on the other hand, if a majority are for the defendant,-the minority ought-to doubt the correctness of their judgment which is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence "which fails to carry conviction to the minds of their fellows.”

An approval of the instruction is asked on ■ the ground that the concrete part of it is substantially a copy of an instruction upheld in Commonwealth v. Tuey, 8 Cush. (Mass.) 1, which has been generally recognized as a leading case on the subject.

It is well settled that a jury should examine a question submitted to them with due regard to the opinions of each other and should try to reach a harmonious result if they can do so, under the laws and the evidence hi the case. After all each juror must form his opinion according to his best judgment without any attempt on the part of the court to influence him to render a verdict which'is contrary to his conscience under the law and the evidence. Newport v. Railway Co. 58 Ark. 270; St. L. I. M. & So. Ry. Co. v. Carter, 111 Ark. 272; and Simonson v. Lovewell, 118 Ark. 81.

Now, it must he remembered that an opinion of the court must he construed in accordance with the question of ‘law and fact presented in each particular cáse. It is also well settled that appellate courts only reverse judgments for errors prejudicial to the. party appealing.

The Massachusetts court was considering a criminal ease, and the precise question for the court to determine was whether or not the defendant was prejudiced by the giving of the instruction under consideration. ■ In this view of the matter, the court held that he was u.ot prejudiced because the instruction, in so far as it might affect the rights of the defendant, went n'o further than to say that, if any of the jury differed, in their views of the evidence, from a large number of their fellows, such difference of opinion should induce the minority to doubt the correctness of their own .judgment and to lead them to re-examine the .facts for the purpose of revising their preconceived opinions. -In short, it was said that the trial court did nothing more than to present to the minds of the dissenting jurors a strong motive to unanimity. The concluding part of the instruction was not necessary to he considered, so far as the rights of the accused were concerned. Hence it is apparent that the concluding part of the instruction was not in the' minds of the court in reaching its conclusion, and its effect in a case where it would he an issue was not decided.

- The appeal was -taken by the plaintiffs in this case, and the concluding part of the instruction was the part, which affected their rights. That part of the instruction which they corn-plain of is as follows:

“On the other hand, if a majority are for-the defendant, the minority ought to doubt the correctness' of'their judgment which is not concurred in by must of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. ’ ’

Now, it is evident that this part of the instruction is materially different from that which just precedes it. It specifically tells the jury that, if a majority is for the defendant, the minority ought to doubt the. correctness of its judgment, which is not concurred in by its associates and distrust the weight of the evidence which fails to carry conviction to the minds of their fellows'. This constitutes advice by the court for the minority to yield to the majority, if the majority is for the defendant, and this, without considering whether.iheir-own conclusions are reasonable in the view of the fact that the majority believes the other way.

In other words,, that part of the instruction complained of advises the minority to yield to the majority if it is for the defendant. Such, is not the law, and we are of the opinion that the instruction was inherently wrong and necessarily prejudicial to the rights of the plaintiffs. ' '

For the error in giving the cautionary'instruction, as indicated, the judgment must be reversed, and the cause remanded for a new trial.