text:
    Harrell v. State.
    Opinion delivered June 4, 1928.

      Dudley & Dudley, for appellant.

      II. W. Applegate, Attorney G-eneral, and John L. Carter, Assistant, for appellee.
   McHaNey, J.

Appellant was indicted and convicted of the larceny of “one Remington automatic shotgun, of the value of $50, the property of Gr. W. Barker,” and sentenced to the penitentiary for one year.

It is first contended that the indictment is too indefinite and uncertain to charge the larceny of the particular gun, as there are many Remington automatic shotguns. The third subdivision of § 3013, 0. & M. Digest, provides an indictment is sufficient if it can be understood therefrom “that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case.” Section 3028, 0. & M. Digest, 2d subdivision, relating to the contents of indictments, provides that the language must contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. ’ ’

This, court has many times held that the indictment is sufficient if it states facts with sufficient certainty to charge a specific offense. State v. Bunch, 119 Ark. 219, 177 S. W. 932; State v. Scott, 114 Ark. 38, 169 S. W. 314. In State v. Haller, 119 Ark. 503, 177 S. W. 1138, the indictment charged the stealing of “one cow (bull),” and this indictment was held sufficient where the proof showed that a “bull” was the subject of the larceny. In the recent case of Bell v. State, 175 Ark. 1169, 1 S. W. (2d.) 1006, this court held that an indictment which charged the defendant with the crime of grand larceny by stealing ‘ ‘ one certain yearling, the property of Joe Allen,” was sufficient. We therefore hold that the indictment was sufficiently definite. The fact that the number of the gun was not set out in the indictment, but was proved on the trial of the case, did not render the indictment void for indefiniteness or uncertainty.

Complaint is made also of instructions 5 and 6, given by the court over appellant’s, objection. Instruction 5 told the jury that, if they found from the evidence, beyond a reasonable doubt, that appellant did “unlawfully and feloniously take, steal and carry away one Remington automatic shotgun, of a value in excess of $10, the property of G-. W. Barker,” they should find him guilty. It is said that the instruction fails to tell the jury that the felonious intent at the time the gun was taken, if taken,- was of the essence of the offense, and that it does not tell the jury that the taking must he with the intent to deprive the true owner of his property. We think the words “unlawfully” and “feloniously,” as used in the instruction, are sufficient to cover the matters complained of. If the taking was done unlawfully and feloniously, it necessarily follows that it was done with felonious intent at the time of the taking, and done with the intent to deprive the owner of his property. Instruction No. 6 is as follows:

“You are instructed that the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances in the case, to he weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the .duty of convicting, even though it be not rebutted. ”

Complaint is made of this, instruction for the reason that it tells the jury that the possession of stolen property may be used by them in determining the guilt or innocence of the defendant. It does do that-very thing, and that is the law. An instruction in the exact language as the above was approved in McDonald v. State, 165 Ark. 411, 264 S. W. 961, and it was again cited with approval in the recent case of Thomas v. State, 175 Ark. 279, 298 S. W. 1021, where we said, after quoting the above instruction verbatim:

“The court held in that case that the above instruction was not open to objection as being a charge upon the weight of the evidence, or as making it the necessary duty of the jury to convict upon proof of- unexplained possession of property recently stolen. This court has many times held that the mere possession of property stolen and unexplained by the defendant does not afford presumptive evidence of the defendant’s guilt” (Citing c^ses).

It is next urged that the court erred in overruling appellant’s motion to require the State to .elect upon which count of the indictment the State would try the defendant. The indictment was in two counts, the second charging the appellant with receiving and buying said shotgun, knowing that the same had been stolen. This count in the indictment was not submitted to the jury. The court did not submit the second count to the jury, and we fail to see where appellant was prejudiced by the action of the court in overruling his motion to require the State to elect.

It is finally insisted that the court should have peremptorily instructed a verdict of not guilty, because of the insufficiency of the indictment and the evidence to support it. - What we have already said with reference to the indictment disposes of that part of this contention. It was conclusively .proved, and it is undisputed, that somebody stole Mr. Barker’s Bemington automatic shotgun, and it is not disputed that the gun found in the possession of the appellant was Barker’s gun. He identified it, both by number and otherwise. It is said that the testimony of Bryan Burgess, to the effect that appellant brought the gun to his house in the night time, and hid it in a brush-pile near his. house, where it remained for some weeks, is unreasonable and unworthy of belief. This was a question for the consideration of the jury. The testimony of this witness, if believed by the jury, and apparently it did believe him, was sufficient to take the case to the jury. Appellant testified as to how he came into the possession of the gun, and, if believed by the jury, this was sufficient to exonerate him; but the jury refused to believe his story.

We do not think it necessary to set out the testimony in detail. We have examined it carefully, and find it sufficient to take the .case to the jury, and its verdict on a disputed question of fact, material to the issue, is binding on this court. The court correctly charged the jury with reference to the burden of proof, the weight and sufficiency of tlie evidence, credibility of the witnesses, and upon the question of reasonable doubt. We find no error, and the judgment is accordingiy affirmed.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Newcomb v. State.
    Opinion delivered June 11, 1928.

      McMillan & McMillmi,, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, C. J.

Tommie Newcomb prosecutes this appeal to reverse a judgment of conviction against Mm for making mask suitable for use in the distillation of alcoholic liquors, in violation of the statute,

The first assignment of error is that the evidence is not legally sufficient to warrant the verdict.

According to the testimony of the sheriff of Clark County, he saw the defendant putting mash into two ten-gallon crocks 'buried in the gr ound, near his residence in Clark County, Arkansas. The ingredients of the mixture were winter, sugar and meal, and it tasted like mash. The witness then went to the house of the defendant, and found a quart of moonshine whiskey there. He also saw some backings in the backyard which smellied just like backings that they pour out of a still after making mash.

Another witness for the State, who was present, stated that the defendant was pouring meal out of a bucket into the jars which had been buried in the ground, and was stirring the mixture with a paddle. The ingredients in the ja.rs consisted of water, sugar and meal. The defendant was pouring scalded meal out of a bucket into the ten-gallon jars which had been buried in the ■ ground. This witness also corroborated the testimony of the sheriff to the effect that a quart fruit-jar of moonshine whiskey was found in 'the defendant’s house. This •witness also said that the mash containing water, sugar and meal possessed by the defendant was the kind of mash that moonshine whiskey is made out of.

This testimony, if believed by the jury, was sufficient to warrant a verdict of guilty. It is true that the defendant testified that he was just simply making some home brew, and. did not intend to make any intoxicating liquor. Under the circumstances the jury was warranted in not believing his testimony. The fact that he had a quart of moonshine whiskey at his house warranted the jury in believing that he intended to manufacture the mash into moonshine whiskey. The witnesses for the 'State also testified that they found some backings in his backyard which were the land poured out of a still after making mash. It is not essential for a conviction, under the statute in question, that the mash .suitable for distillation of alcoholic liquors had not in fact reached the alco-hole stage. Lynn v. State, 169 Ark. 880, 277 S. W. 19.

The next assignment of error is that the court erred in allowing the State to prove the finding of whiskey at the defendant’s house. This testimony was competent as tending to show that the defendant intended to manufacture the mash into alcoholic liquors. Herren v. State, 169 Ark. 636, 276 S. W. 365 ; and Lynn v. State, 169 Ark. 880, 277 S. W. 19.

The next assignment of error is that the court erred in refusing to tell the jury that it was lawful for the defendant to have intoxicating liquors in his possession, and in making this contention the defendant relies upon the case of Dickerson v. State, 161 Ark. 60, 255 S. W. 873. Since the decision in 'that ease ‘the Legislature has passed an act prohibiting the possession of intoxicating liquors in a private residence for the purpose of sale as a beverage. General Acts of 1925, p. 363. Hence this assignment of error is not well taken.

Finally it is insisted that the court erred in refusing instruction No. 3 at the request of the defendant, which told the jury that, before they could convict the defendant, all the facts and circumstances, when taken together, must be inconsistent with any reasonable hypothesis except that he is guilty. This court has held that it is not error to refuse to give this instruction, where the State did not rely entirely upon circumstantial evidence. Bartlett v. State, 140 Ark. 553, 216 S. W. 33; Rogers v. State, 163 Ark. 252, 260 S. W. 23; and Adams v. State, 176 Ark. 916, 5 S. W. (2d.) 946.

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


author: Hart, C. J.,

text:
    Pace v. State.
    Opinion delivered June 11, 1928.

      Robert L. Rogers, for appellant.

      E. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Hart, C. J.,

(after stating the facts). In Ex parte Robinson, 19 Wall. 505, Mr. Justice Field, speaking for the Supreme Count of the United States, said:

“The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments', orders, and writs of the courts, amd consequently to the due administration of justice.”

This view has been adopted by this court in Turk and Wallen v. State, 123 Ark. 341, 185 S. W. 472, and Weldon v. State, 150 Ark. 407, 234 S. W. 466, 18 A. L. R. 202.

In the first case cited this court said that the power to punish for contempt is inherent in courts of justice, and the right to inflict punishment upon an offender against their dignity and authority is 'an incident of judicial power which cannot be removed by statutory enactment. It was said that preventing the appearance of a litigant in court for the prosecution of a civil suit, by intimidation and threats, was an obstruction of judicial procedure and tended to bring the administration of justice into disrepute. Hence it was held that the court did not exceed its authority in assessing the punishment inflicted on the defendants in that case.

In the Weldon case it was held that, by the common law, a 'court may punish as for contempt insults offered to the person of the judge in consequence of his judicial acts; though offered on a day when court was not in session and at a place where court could not ibe legally held.

In Brannon v. Commonwealth, 162 Ky. 350, 172 S. W. 703, L. R. A. 1915D, 569, it was held that it is a criminal contempt for one under several indictments, in one of which the jury is out, but eventually returns a verdict of guilty, with another yet to be tried, to commit a battery on a witness who testified against him in the pending case and is to be called in a subsequent one, for the purpose of punishing him for the testimony given and intimidating him for the future. The court said:

“For one to commit, as-was done by the appellant in this case, an assault and battery upon 'the witness as a punishment for giving testimony lagainsit him in an action or criminal prosecution then pending, though in part disposed of, or as a means, to intimidate him and influence Ms testimony expected to be given in the future trial of an action or criminal prosecution then pending, is a criminal contempt, because such conduct is las much an inter-' ference with the authority and dignity of the court and an obstruction of justice as would be the intimidation or ■bribery of a witness, or any contempt committed in the presence of the court. The evidence clearly proves appellant’s guilt of such a contempt; and, this, being true, it was within the power and jurisdiction of the court to proceed against him by rule and summarily to try him, as was done in this case. ’ ’

It was also insisted in that case that the court.erred in telling the jury that it might And defendant guilty if Ms motive for committing the assault and battery was to punish Cook, the person assaulted, for testifying in the case just tried. This contention rests on the ground that, if the assault was committed on this account, it would not constitute a contempt in the meaning of the law. The court held that, as the case tried must be regarded as pending in court at the time of the assault upon the witness, the assault, if committed by way of punishment for the testimony given by Cook in the case, was as much a contempt as if it had been committed for the purpose of intimidating Cook as a witness in a future trial to be had of the other indictment, wMch had been continued to the succeeding term of court.

The power of the court to punish for contempt consisting of an assault upon one of the attorneys in a pending case has 'been recognized in United States v. Barrett, 187 Fed. 378. It was there held that where, after an action had been tried before a jury in a Federal Circuit Court, and tbe jury had retired to consider the case, two persons interested in the corporation defendant made an unprovoked assault upon plaintiff’s attorney because of Ms argument’ on the street, in full view of the jury room, they were guilty of. 'contempt. Judge Speer said' that it was the constitutional privilege iof parties to have counsel, and that the occupation of counsel in the interest of his client in trying the case must he uninterfered with by violence. Continuing, the learned judge said:

“He has the right to argue his client's case. If he violates the proprieties of the courtroom, and the attention of the court is called to it, he will be immediately stopped. If he is guilty of impertinent defamation, the courts are open 'by due process of law to the party defamed, in order to recover righteous damages, and there would be no difficulty in maintaining such a case. It is not within the proper power of the parties to the litigation to take the law into their own hands, and assault the counsel when they have been offended, or imagine that they have been offended. The counsel in a case is a minister of justice. He is the counselor of the court. Without his aid the court cannot get along. 'Can it be possible that, in our country, the court must regard as trivial an unprovoked assault upon counsel, who has done his duty as he saw it, upon a controversy which necessarily involved the question of the veracity of the contending parties, to deny him the right, in a general way, to insist that his client was truthful and that the other side was not truthful? This would be to deny the plaintiff Ms day in court, and to deny him due process of law. If the attorney was offensive, or if the party thougM he was 'offensive, the means of redress is not by resorting to violence, but by appealing to the law of the land.”

We tMnk this is a full, clear and comprehensive statement of the reason for the rule. In the case at bar the verdict of the jury had been returned into court, and counsel for the plaintiffs had obtained leave for an extension of time within which to file a motion for a new trial. The court had taken a recess at the noon hlour, and the judgment in the case had not been entered of record. Counsel for the plaintiffs had a right, and indeed it was their duty, to see that a proper judgment was entered in the case. Hoskins testified that he was assaulted 'and severely beaten by Pace on bis way back to tbe oonrtnoiom, within a short time after he had left it after making the closing argument in -a damage suit in which the defendant’s wife was a witness. Hoskins stated positively that Pace told him that he was going to assault and beat him because of the remarks he had made concerning his wife in his closing argument. Under these circumstances the circuit court was .justified in finding that the assault and battery by Pace upon Hoskins was in contemplation of an argument made during the pending trial, and was calculated to obstruct the administration of justice and to degrade the authority of the court, and to contaminate the purity of its proceedings. Hence it had the power and authority to punish Pace for contempt of court. See In re Hand, 89 N. J. Eq. 469, 105 Atl. 594.

'This brings us to a consideration of whether the punishment was excessive or not. According to the testimony of Pace, he had become very much angered and excited because he had been informed that Hoskins had applied a vile epithet to his wife and some other nurses who were witnesses for the defendants in a damage suit in which Hoskins was attorney for the plaintiffs. It is true that it turned out. that Hoskins had applied no vile epithet to the wife of Pace, 'but Pace did not know this at the time he made the assault. He had been advised that he must wait until after the trial was over before seeing Hoskins about the matter. He accidentally met Hoskins during the noon hour of the court recess, after the trial was finished, and Pace was under great mental stress and excitement at the time. Under these circumstances we think a milder1 penalty will serve the ends of justice, and that the jiail penalty should he remitted. Baker v. State, ante p. 13. Therefore it will be ordered that the judgment be modified by remitting the jail sentence and allowing the fine of $50 to stand. Otherwise the judgment will be affirmed. It is so ordered.


author: Hart, O. J.,

text:
    Avery Power Machinery Company v. McAdams.
    Opinion delivered June 11, 1928.

      W. A. Leach, for appellant.

      G. W. Botts, for appellee.
   Hart, O. J.,

('after stating the facts.). Appellants seek: to reverse the decree upon the authority of Wheeler & Motter Mercantile Co. v. Knox, 136 Ark. 95, 206 S. W. 46, and Falls v. Driver, post p. 703, in which it was stated that the court adheres to the doctrine that the real estate of an intestate descends directly to the heirs upon the death of the ancestor, subject to the statutory exceptions, and that there is no statute incumbering an heir’s interest in real estate with his indebtedness to Ms ancestor. In other words, it may be stated as the settled rule in this State that, except where the indebtedness be held an advancement, the distributive share of an heir or devisee in the real property of the estate is not chargeable -with the heir’s or devisee’s indebtedness to the estate, either as against the land itself or the proceeds of the sale thereof; but the indebtedness must be collected in the same maimer as any other indebtedness due the estate. We do not think, however, that this rule is applicable under the facts presented in the case at bar.

In a case-note to 1 A. L. B., p>. 1009, it is said that, irrespective of the attitude of the courts in any particular jurisdiction, on the question where a legacy be retained in .satisfaction of a statute-barred debt owed to the testator, it is uniformly held that, where a testator directs that any debts due, or owing to him, from legatees, shall be brought into the division of the estate, or deducted from the share of the one so indebted, the debt must be deducted, though barred by the Statute of Limitations. Holt v. Libby (1888), 80 Me. 329, 14 Atl. 201; Baker v. Safe Deposit & T. Co. (1901), 93 Md. 368, 48 Atl. 920, 49 Atl. 623; Cummings v. Bramhall (1876), 120 Mass. 552; Allen v. Edwards (1883), 136 Mass. 138; and Gillingham’s Estate (1908), 220 Pa. 353, 69 Atl. 809.

The reason is that the legatee or devisee is a mere volunteer, and must take the bounty of the testator upon the terms upon which it is bestowed. In other words, where a devisee elects to take under the will of the testator, he must take subject to all conditions the testator has seen fit to impose. In this connection it may be stated that the 'Supreme Courts of the States of Maryland and of Massachusetts are among those holding that the share of an heir in the real estate of the intestate is not chargeable with a debt from the heir to the estate. The holdings of these Courts are in accordance with our own holding on the subject; and their decisions, that a testator may make his own debts, due from devisee, a charge to be satisfied out of his portion, and which must therefore be met before the devisee is entitled to the devise, would have peculiar force with us.

In Foulkes v. Foulkes, 173 Ark. 188, 293 S. W. 1, it was held that one electing to take under a will must take under the terms of the will, and, if he elects to take the property, he must do so under the conditions expressed in the will.

There would seem to be no good reason why the testator might not impose like conditions in an agreement executed between him and a devisee under his will subsequent to the execution of the will. In the case at bar, after the will had been executed, one of the devisees in the will executed a promissory note to his father, the testator, for a sum which was much more than the value of-the part of the estate devised to him. I. T. McAdams, the signer of the note, executed an agreement with his father that, in the event the note or any part of it remained unpaid at the time of the death of his father, the amount due should be taken from or set-off against any legacy or interest which might be given to him in the last will and testament of his father. If was further agreed that the executor of the will should make ¡said deduction or set-off, and that he should assign the note to I. T. McAdams in full exchange of such amount of his claim as would equal the amount due under the note. It was found that the interest which would have been received by I. T. McAdams- under -the will was less than the amount of the note which was due at the time his father died. In other words, the debt -of I. T. McAdams to- the estate of 'S-. M. McAdams, deceased, was much greater than the ¡share of the estate to- which he would have been entitled as a residuary devisee under' the will of Ms father. His agreement ¡should be considered as ¡an assignment of his devise as collateral security for the payment of his note. I. 'T. McAdams, 'being indebted to ¡S, M. McAdams at the latter’s death in ¡an ¡amount greater than his ¡share of the estate under the will, Ms agreement that ¡such indebtedness ¡should be charged to him upon final ¡distribution is valid, ¡and should be carried out.

The probate court properly so held. That court had jurisdiction to make settlement ¡and distribution of the testator’s estate, and, in -doing so, might ¡determine the ¡share of each devisee or distributee, ¡and to that end might inquire into and determine-the indebtedness of ¡the devisee to the estate, and ¡order a deduction ¡of the ¡same from his ¡share. Stenson v. H. S. Halvorson Co., 28 N. D. 151, 147 N. W. 800, Ann. Cas. 1916D, p. 1289, L. R. A. 1915A, 1179.

It follows that the decree of the chancery court was correct, and it will be affirmed.


author: Wood, J.

text:
    Swilley & Sons v. Goodwin.
    Opinion delivered June 11, 1928.

      John, Carroll, for appellant.

      Pope & Jerndngs, for appellee.
   Wood, J.

This action was instituted in the circuit court of Union County by the appellees against the appellants for a writ of certiorari to quash, a judgment rendered in favor of appellants against appellees by J. IJ. Lee, a justice of the peace of El Dorado Township, Union County, Arkansas. It was alleged, in substance, that the judgment .of the justice was void because no service had been had upon the defendants, against whom the judgment was rendered in the justice court. It was .alleged that the defendants in the action before the justice were not indebted to. the plaintiff in that action in any sum, and that they each had a complete and perfect defense to the action.

The writ of certiorari was issued and -the docket of •the justice judgment was brought before 'the court. Among other things it recites that a summons was issued against the defendants and delivered to the constable of the township in which the defendants resided. The justice recites that the plaintiff appeared, but that the defendants did not appear, and the judgment was rendered against them by default. The judgment of the justice does not recite that the defendants in the action before the .justice were served with process.

A demurrer to the petition for certiorari was overruled. In ¡the answer to the petition for certiorari it was set up, in .substance, that all the papers in the original action before the justice, in which judgment was rendered against the petitioners', had been lost, except the docket entries of the justice showing the .judgment that was rendered against the defendants in 'that action, petitioners herein. 'Said docket entries of the judgment are set forth, and they recite, in substance, that the plaintiff filed an action on account before the justice in the sum of $139.22; that summons was issued against the defendants', and that on the day set for hearing the defendants did not appear, and judgment was rendered ajgainst them by default. The judgment, as above stated, does not recite that summons was .served. The docket of the justice also shows that writs of garnishment were issued on the judgment against 'the 'Chicago, Eock Island & Pacific Railway Company, .and that the defendants filed their separate schedules, claiming that the amounts due them by the railway company were exempt.

'The judgment from which this appeal comes contains the following recital: “Whereupon, this cause coming on to be heard on its merits, .after hearing all the evidence introduced by the parties herein, the court finds that the judgment rendered on the 18th day of December, 1922, by J. H. Lee, justice of the peace of El Dorado Township, in Union County, .Arkansas, in the above entitled cause, is void for want of jurisdiction on the part of said justice of the peace, J. H. Lee. It is therefore ordered and adjudged by 'the court that the aforesaid judgment entered as aforesaid is null and void,” etc.

There is a bill of exceptions in the record setting out all the oral testimony upon which the cause was heard. This bill of exceptions shows that the trial court found that there was no service of process upon the petitioners, Asa Goodwin and Hugh Goodwin, and that the judgment rendered on the 18th day of December, 1922, by J.' H. Lee, a justice of the peace of El Dorado Township, Union Oounty, Arkansas, is void for want of jurisdiction on the part of said justice. The record does not show that a motion for new trial was filed.

“Where a case is heard on evidence before the court which it is necessary to bring into the record by a hill of exceptions, there must he a motion for a new trial, setting up and assigning the grounds of error upon which the motion is predicated, in order to give the court which tried the case an opportunity to review 'and correct those errors. Where the record before this court on appeal does not show that a. motion for a new trial was (filed and-passed upon by the trial court, there is nothing that this court can review.” Kromer v. Central Coal & Coke Co., 129 Ark. 86, 195 S. W. 370, and cases there cited.

The error complained of on this appeal does not appear on the face of the record itself. Burns v. Harrington, 162 Ark. 162, 257 S. W. 729. Therefore, under the doctrine of the case of Kromer v. Central Coal & Coke Co., Supra, a motion for a new trial was necessary in order to enable this court to review the judgment of the trial court for the errors of which the appellants complain. The judgment of the trial court is therefore correct, and it is affirmed.


author: ■Smith, J.

text:
    Watts v. Commercial Printing Company.
    Opinion delivered June 11, 1928.

      A. J. Johnson and Bruce H. Shaw, for appellant.

      E. W. Brockman, U. J. Gone and Jones & Hooker, for appellee.
   ■Smith, J.

Appellant brought suit to recover damages on account of an alleged libelous article published in the Pine Bluff Commercial, a daily newspaper, iby the members of the budget committee of the community chest, in the city of Pine Bluff. The article in question was an advertisement, wherein the community chest rep'orted to the public its activities for the preceding year, and made a .statement of the funds which would be required for the ensuing year. 'The community chest is a fund contributed by the people of a city and community who are interested in the charities and benevolences of the city, and whose contributions go into a common fund, which is distributed to the charitable and benevolent organizations in the proportion previously agreed upon. Representatives of these organizations ■submit a .statement of the estimated operating expenses for the ensuing year to the budget committee of the community chest, and, when it has been determined what the total requirements of .all the organizations will be, an organized and concerted campaign is conducted, whereby funds are raised at one time for all the local charities and benevolent organizations, in winch friends and .supporters of all the organizations cooperate. If the campaign for funds is completely .successful, each organization is given the sum allotted to it by the budget committee; but, if not entirely successful!, each organization is given its proportionate part. It was contemplated that contributions should be made once for all, that is, the contribution would represent the total amount which the contributor was willing to give to all the charitable and benevolent organizations, and the organizations provided for would not thereafter take separate or additional public collections.

In the fall of 1925 a campaign was put on in the city of Pine Bluff for the budget of 1925-1926, and among the organizations included in the budget was one known as the American Savings Aid, to which an allotment of $3,000 per year was. made. The community campaign did not realize the amount of money required by all the organizations', and it became necessary to reduce the allowance of each, and, as a result of this necessity, the savings aid was paid only $205 per month, instead of the $250 which would have been paid had the amount of the budget been fully subscribed.

Appellant, R. D. Watts, is the chief executive officer of the American Savings Aid, and, when he was advised that the organization which he represented would be allowed only $205 per month out of the community chest, he declined to receive anything further from the community chest, and solicited contributions to his organization, as had been done before the community chest was instituted.

When the campaign for the 1927 funds was put on, the budget committee of the community chest published a full-page advertisement in the Pine Bluff 'Commercial, wherein there was given a report of the disbursement of the funds raised during the preceding year, showing what money had been paid to each of the organizations for whose benefit the funds had been raised. On this page there appeared in large type, surrounded by heavy black lines, the following statement:

“As TO THE AMERICAN SAVINGS AlD.

“Previous to our 1926 campaign, the directors of the American Savings Aid submitted a budget to the community chest budget committee for $3,000 to cover their 1926 expenditures. After the first monthly installment was given Oaptain Watts, the American Savings Aid withdrew from the community chest of their own volition, claiming that the budget was insufficient to carry on their work. On investigation we found that $100 of this was being paid monthly on a home that was and is now in tíre mame of Captain Watts. 'Captain Watts also' failed to comply with, any agreements made with ns, and he continued to collect money from his old subscribers, and also continued his tambourine and house-to-house collections. 'Captain Watts also failed to make any accounting for any money spent.

“The community chest board believes that Captain Watts should be paid a salary, a;s every other organization secretary is paid, instead of working under the indefinite term of living expenses, which does not mean any definite amount of money.”

Following the publication of this statement, this suit was brought against the persons whose names were signed thereto as the authors thereof, and the publishers of the newspaper.

In the answer filed by the defendants', any intention to reflect upon the plaintiff was disclaimed, and the truth ■of the statements contained in the advertisement was pleaded a;s a defense to the action.

Appellant, plaintiff bellow, offered testimony tending to establish the facts above recited, which we must assume would have been found by the jury to be true, as the court directed a verdict against appellant at the conclusion of his testimony. Appellant also offered testimony to the effect that the article was false, in that he had not used any money in the payment of the purchase price of a home the title to which was in himself, and that he had not violated any agreements with the budget committee of the community chest, and that he had properly accounted for all money received for the use of his society, and that he had not improperly appropriated any of its funds to his own use.

In directing a verdict against appellant, the court charged the jury as follows:

‘ ‘'Gentlemen of the jury, under the view that the court takes of the law of this case, you are instructed by the court to return a. verdict for 'the defendants. Your verdict will be, ‘We, the jury, find for the defendants/ The court wants to make this, explanation, so you won’t go home ■ wondering why. The complaint in this case charges that the American ‘Savings Aid is a corporation. That it, as a corporation, purchased certain property in the city of Pine 'Bluff which is used by it as a home. Not as a private home by Captain Watts, but as- a building — he lives in it all right — but as a building that is used by the American Savingis Aid to .carry on its purpose of attempting to help people out who are in trouble for various causes; and then the complaint alleges, that is, at least that part of it which the court would otherwise hold is libelous per se, that is, words libelous in themselves, you wouldn’t have to make any proof of .damages as to those kind of words; all you have got to show is that they were printed. Those words in this particular case are set out as being that, ‘ after this money was turned over1 to Captain Watts, he withdrew voluntarily from the Pine Bluff Community Chest, and upon investigation we found out that a hundred dollars a month of it was paid on a home which was and is now in his name.’ Now the proof in this case, 'because the plaintiff introduced What purported to be his articles of incorporation, that the American Savings Aid was not incorporated, for the reason that for some reason or other the court never did make an order incorporating the American Savings Aid. Somebody somewhere along the line fell down on that. The record shows that the clerk merely spread upon the records of the circuit court only the petition for incorporation, .the articles of association, and that is all. There is nothing in the record showing that the petition was ever granted by the court, and that is necessary. The. clerk of the court cannot incorporate anything. The petition has to be addressed to the court for the attention of the court, and the judge of the court cannot incorporate anything either; that is not the act of the judge; it is the act of the court, and in this instance the record clearly shows that the American Savings Aid was never legally incorporated. . .

“Therefore it is left in this shape: the property, so the court thinks, at least, is legally in those persons who attempted to incorporate the American Savings Aid. That is R. D. Watts, his wife, and J. M. Shaw. So, when yon get down to the bottom of it, the proof on the part of the plaintiff shows that the property is in the name of R. D. Watts legally, not solely in his name, but so much so that the court thinks there cannot be any libel in the statement published.

“Now, gentlemen, the court directs you to return this verdict: ‘We, the jury, find for the defendants. ’ It doesn’t make any difference which one of you sign the verdict; just any of you sign it.”

As appears from the statement of. the court in directing a verdict for the defendants, an attempt was made, pursuant to chapter 38, paragraph 7 thereof, §§ 1788 et seq. C. & M. Digest, to incorporate the American Savings Aid as a benevolent association, and a petition addressed to the circuit court was filed with the clerk thereof, praying that a certificate of incorporation be issued. Accompanying this petition were the articles of association, or constitution, which contained the names ■of the persons “desirous of becoming incorporated under the provisions of this act, ’ ’ and a statement of the purposes of the society, which were recited to be as follows: ‘ The object and purpose of this association is for the dispensation of aid and assistance to the needy and unfortunate, to house, clothe and nurture them; to provide and care for the widows and orphans in need, and to procure suitable employment for men and women in need of work; to propagate the Christian religion, and engage in rescue and relief work among girls and women who have been abandoned by society, and assist them to reform into useful Christian women, and to that end they may do any and all things reasonable and consistent therewith. ’ ’

The constitution or articles of association further provided that: “The American 'Savings Aid shall have an advisory board, composed of five citizens of Pine Bluff, the first two of whom shall be chosen by the incorpora-tors, and the remainder by themselves, and which board shall also be known as a board of publicity, and who shall formulate a set of by-lawis for the government of the American Savings Aid, not inconsistent with the purposes and intent of the corporation.”

The articles provided for the election or appointment of a commander-in-chief, who became the executive officer of the society, whose tenure of office should be during good behavior, but who might be removed 'by the incorporators or their successors for cause, and his successor appointed by them, with the advice and consent of the advisory-publicity board.

The constitution or articles of association also provided that: “The American Savings Aid shall adopt and use a seal, crests, and uniform; and no property shall be bought or sold by the American Savings Aid, except with the advice and majority consent of the advisory-publicity board; and the signature of the oommander-in-chief, under the seal of the association, shall be sufficient to pass title, or receipt for money and property. The regular meetings of the advisory-publicity board shall be not less than twice a year, six months apart, but special meetings may be held at any such time as the commander-in-chief and two members of the advisory-publicity board may deem necessary, upon four hours ’ notice to the other members of the advisory-publicity board.”

Upon filing the above petition and the constitution or articles of association with the clerk of the circuit court, that officer, without calling the attention of the circuit court to the petition for action, and without any action on the part of the court having been taiken, proceeded to enter of record, under § 1790, U. & M. Digest, the “said constitution or articles of association and accompanying petition,” and issued a certificate showing that he had done so.

The incorporators, assuming that they had complied with the law and had become a benevolent association, under the sections of the statute referred to, proceeded to1 function as such, and, pursuant to the constitution or articles of association, elected or appointed appellant Watts as commander-in-ehief, and selected a publicity board of five members.. Under the supposed authority of the constitution, the publicity 'board and its commander-imchief proceeded to raise funds by public contributions to carry out the purposes of the association. In furtherance of this purpose the association contracted to purchase a home in the city of Pine Bluff, for which it agreed to pay the sum of $4,500, of which $1,000 was paid in cash, the balance to be paid within four years, and in 'discharge of this obligation payments of $100 per month were made to the association’s grantor. A deed to the home was made to the .American Savings Aid and its successors and assigns, and this deed was duly recorded.

The court below was correct in holding that the statute had not been .sufficiently complied with to make the association a corporation de jure, the .statute giving the clerk of the circuit court no authority to incorporate the petitioners as a 'benevolent association. 'The approval of the circuit court was required, and this was not obtained.

The court was in error, however, in holding that appellant was the owner of the property purchased in the name of the American Savings Aid because of the failure to comply with the law in the matter of its incorporation. There was an attempt to incorporate, and representations were made to the public that there was a corpora-' tion, on the faith of which solicitations were made to and contributions were received from the public, with portions of which payments were made on the purchase price of the home used by the association for its professed corporate purposes.

Under plainest principles of equity, appellant Watts and his associates would have been estopped to question the corporate existence of the American Savings Aid as a benevolent association or to assert title to the property in themselves individually.

It may be true that appellant, as commander-in-chief of the association, had the authority, under the .seal of the association, to. convey title to its property, ¡but, if so, this could not he done “except -with the advice and majority consent of the advisory-publicity board.”

In the case of Whipple v. Tuxworth, 81 Ark. 391, 99 S. W. 86, Mr. Justice Battle discussed the difference between corporations de jure and de facto, and, after stating that a substantial compliance with the statute in .regard to incorporating was sufficient to create a corporation de jure, he proceeded to say: “The requisites to constitute a corporation de facto are three: (1) a charter or general law under which such a corporation as it purports to be might lawfully fee organized; (2) an attempt to organize thereunder ; and (3) actual user of the corporate franchise. ’ ’

These essentials are all present here. There is a statute under which such a corporation as the American Savings Aid purports to be might have been organized; there was an attempt to organize thereunder, and there has ¡been an actual user of the supposed corporate franchise. ■

The American Savings Aid is such a corporation de facto as might be alleged, in an indictment, to fee the owner of property which one was charged with having stolen from it. The crime of larceny or embezzlement could be committed by taking its property with a felonious intent, although it was only a de facto corporation. Meadors v. State, 171 Ark. 705, 285 S. W. 380; Pearrow v. State, 146 Ark. 182, 225 S. W. 311.

The humiliating and 'degrading effect of a libelous accusation would be as great in the case of a de facto corporation as in the case of one de jure, the essence of the action for libel in either case being the charge that one had wrongfully converted funds contributed to a charity. We conclude therefore that the court was in error in directing a verdict in defendant’s favor.

■ Moreover, the charge that appellant had misapplied funds of the American Savings .Aid to his- private use is not the -only charge declared upon. There are other charges declared upon fey appellant in his complaint which a jury might find to be libelous, -and which, according to appellant’s1 testimony, -were shown to be false, these being that appellant had failed to comply with his agreements or account for money spent. Skaggs v. Johnson, 105 Ark. 254, 150 S. W. 1036 ; Murray v. Galbraith, 95 Ark. 199, 128 S. W. 1047.

'The judgment of .the court below must therefore be reversed, and it is so ordered.


author: Smith, J.

text:
    Robinson v. State.
    Opinion delivered June 11, 1928.

      Stewart & Oliver, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Smith, J.

Appellant was tried upon an indictment charging him with the crime of murder in the first degree, which was alleged to have been committed by striking and beating J. H. Brock with a certain blunt instrument, the true nature of which was to the grand jury unknown, and he was found guilty of the crime charged, and from the judgment of the court imposing the death penalty is this appeal.

For the reversal of the judgment it is first insisted. that the indictment was demurrable, because it was not signed by the prosecuting attorney.

It is customary for the prosecuting attorney to sign indictments, and it is certainly the- better practice that he should do so, but, in the case of Watkins v. State, 37 Ark. 370, it was held that “an indictment need not be signed by the prosecuting attorney. It is sufficient if found by the grand jury and indorsed by their foreman” (Citing authorities).

It is next objected that the indictment does not allege that Brock was dead. The indictment does charge, however, that defendant “did kill and murder one J. H. Brock,” and this allegation sufficiently alleges the death of the person charged to have been killed. Fisher v. State, 109 Ark. 456, 160 S. W. 210.

It is next objected that the indictment did not allege that deceased died within a year and a day after the infliction of the wound, -but in the case of Fisher v. State, supra, it was said: “Neither was it defective in failing to specifically allege that the deceased died within a year and a day after the infliction of the wound. It is true our statute (Kirby’s Digest, § 1774) provides that, in order to make the killing murder or manslaughter, it is requisite that the person injured die within a year and a day after the wound was given, but, under other statutes, stating what indictments shall contain and providing that none is insufficient for ‘any defect which does not tend to prejudice the substantial rights of the defendant on the merits,’ it is immaterial that no specific allegation is made of the death resulting within such time after the mortal wound, since murder has a technical meaning, and, when it is sufficiently alleged in the indictment, the defendant is put upon notice that death resulted within the time specified by law to make the -offense of that grade” ('Citing authorities).

Error is assigned in the admission of certain testimony of witness Carl Burley. This witness testified that he was the night fireman at a sawmill at which he and deceased were employed; that deceased was a clock puncher, or night watchman, and was required, as such, to punch twelve clocks, one each hour; that, after making his rounds punching- the clocks, deceased was accustomed to return to the boiler room, where witness was employed. Deceased made one of these rounds shortly after ten o’clock p. m., and failed to return. "Witness knew that deceased, usually carried considerable money with him, and, a night or two before the killing, witness saw deceased count his money, which amounted to $310. After waiting awhile for deceased’s return, witness took a lantern and went in search of him. He found on the tram a pool of blood, and about sixteen feet away he found deceased’s body. Deceased was not then dead, but was groaning in agony, as he had been struck twice over the head with some blunt instrument. Deceased was not conscious, and did not regain consciousness before his death, which occurred at the hospital, where he was taken after an alarm was given. Witness testified that the appearance of the tram indicated that deceased’s body had been dragged along the tram about sixteen feet to an opening between two piles of lumber, where the body was thrown-off the tram.

There was no error in the admission of this testimony. The statement that the body had been dragged from the place where the pool of blood was discovered was not the expression of an opinion, but the statement of a physical fact; bnt, if it were a mere opinion, there conld be no prejudice in it. Deceased was struck and killed. Some one murdered and robbed him. The pool of blood was at one place and the body was sixteen feet away, and it could not be material whether .the body was dragged'from one place to the other. The witness Burley naturally suspected that robbery was the motive of the crime, and a search of the body by him disclosed that the roll of money which deceased was known to carry was missing.

Error is assigned in admitting a confession which appellant is said to have voluntarily made. In this confession the details of the revolting crime were told. Shortly after the killing, appellant was seen spending money freely, and, when arrested, he gave a false explanation of his possession of .the money he had on his person. In his confession appellant told where he had hid the balance of the money, which was found at the place named by him, and among other bills there were found two twenty-dollar gold certificates of the kind-deceased was known to have had on his person.

The testimony on the part of the State was to- the effect that the confession was freely and voluntarily made, and there was no testimony to the contrary, except that o,f another negro, who had been arrested along with appellant, but who was later released. This witness testified that he and appellant were separately questioned by the officers at the jail, but he did not testify that he or appellant had been threatened or coerced, or otherwise intimidated, or that a promise of any kind was made to him or appellant. Appellant himself did not testify.

In regard to this confession the court charged the jury as follows:

“1. The court instructs the jury that, before any admission or statements made by the defendant can be used against him as evidence, snch statements or admissions must have been freely and voluntarily made, and where snch statements, if any, are induced by threats of harm, promises of favor, or show of violence, or inquisitorial methods are used to extort a confession, then the same is attributed to such influence, and cannot be used against the defendant; and if the jury shall believe that any snch threats or promises were made, or violence shown or manifested, or methods used, the jury will not consider or give any weight to such admissions or statements of the defendant. ’ ’

This was a proper instruction, and conforms to the correct practice in such cases. Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.

This confession, in connection with the other testimony in the case, is sufficient to sustain the conviction. Section 3182, C. & M. Digest.

It is finally insisted that the court erred in refusing to give an instruction defining the crime of manslaughter. No error was committed in refusing this instruction, as there was no testimony upon which to base it. In the case of Clark v. State, 169 Ark. 717, 276 S. W. 849, it was said that this court has repeatedly held that, where an indictment charges murder in the first degree, and the undisputed evidence shows that the accused, if guilty at all, is guilty of that crime, it is not error to refuse to give an instruction authorizing the jury to return a ver: diet of guilty of any of the lower degrees of homicide, and the reason there stated was that, “if there is no evidence to establish a lower degree of homicide than murder in the first degree, the court, in properly giving the law, must of necessity determine whether there is any evidence at all to justify a particular instruction, and it is the duty of the jury to take the court’s exposition of the law” ('Citing authorities).

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Gate City Building & Loan Association v. Crowell.
    Opinion delivered June 11, 1928.

      Arnold & Arnold, for appellant.

      John D. Arbuclde, J. M. Carter and B. E. Carter, for appellee.
   Humphreys, J.

This is a proceeding instituted in the -chancery court of Miller County by appellants against appellees to foreclose a deed of trust executed by “Walter E. Crowell and wife to it on May 21, 1921, on lots 1 and 2, in block 67, in Kirby’s Addition to the city of Tex-arkana, Arkansas, to secure money borrowed by them from the Gate City Building & Loan Association, evidenced by note of even date therewith. It was alleged that the lien created by the deed of trust was prior and paramount to a lien claimed against said property under a deed of trust subsequently executed by the Crowells on said property to the Home Building & Savings Association of Fort Smith, Arkansas. It was also alleged that a balance of $838.28 was due on the note under the terms of the contract.

The issues joined by the pleadings and proof presented questions of whether appellants were estopped to collect a balance due upon the note from the Crowells and to foreclose the deed of trust against their property, and, if so, what amount was due under the terms of the contract; and, if not estopped, whether the lien to the Gate City Building & Loan .Association was prior and paramount to the lien of the Home Building & Savings Association; and whether the amount due the Home Building & Savings Association by the Crowells should be abated by the amount, if any, of the amount of the recovery by the Gate City Building & Loan Association.

The cause was submitted upon the issues joined by • the pleadings and testimony introduced by the parties, which resulted in a judgment and decree of foreclosure in favor of appellants against the Crowells for $670'.63, from which appellants appealed, because less than claimed, and from which the Crowells and the Home Building & Savings Association took a cross-appeal; and a judgment and decree of foreclosure against the Crowells in favor of the Home Building & Savings Association, but abated the judgment by the amount of the judgment in favor of the Gate City Building & Loan Association. The Home Building & Savings Association took an appeal from the order abating its judgment in the amount from the recovery in favor of the Gate City Building & Loan Association.

Briefly stated, the facts reflected by the record are as follows: On May'21, 1921, the Crowells borrowed $1,200 from the Gate City Building & Loan Association on the usual building and loan plan, executing a note for the amount and a deed of trust on the property hereto-

fore described, to secure the payment of same. The note and deed of trust provided the plan for ascertaining the amount due in case of default. The instrument contained practically the same provisions relative thereto as the instruments did in the case of Roberts v. American Building & Loan Association, 62 Ark. 572, 36 S. W. 1085, 33 L. R. A. 744, 54 A. S. R. 309; and the Gate City Building & Loan Association v. Frisby. Dan Dewberry was the local agent of the Home Building & Savings Association at Texarkana, Arkansas, and solicited the Crowells to transfer the loan they had from the Gate City Building & Loan Association to the Home Building & Savings Association. Crowell procured his abstract to the property from the Gate City Building & Loan Association, telling its secretary at the time that he was going to transfer the loan to Dan Dewberry. Application was then made to the Home Building & Savings Association for a loan of $1,500, which was made in May, 1926. The money was sent to Dan Dewberry by the Home Building & Savings. Association in the form of a cheek payable to the Crowells and to “Dan Dewberry, agent,” with instructions to him, as its agent, to see that the deed of trust to the Gate City Building & Loan Association was satisfied and to turn the balance of the pror ceeds of the check over to the Crowells. "When the check arrived, the Crowells indorsed it, and Dewberry gave them his personal check for the amount coming to them. He then indorsed and collected the check himself, but did not pay the Gate City Building & Loan Association or procure the satisfaction of its deed of trust, as per instructions and in accordance with his promise to the Crowells. Instead, he notified the Gate City Building & Loan Association that he had taken over the Crowell loan personally, and continued making monthly payments thereon under the contract until November, 1926. After that time he failed to make the monthly payments, and fled the country in the spring of 1927, without paying off the loan. It was then discovered that he had handled quite a number of loans in the same manner as he had the Crowell loan. Between November, 1926, and the time he fled, no delinquent notices of failure to pay monthly installments on the loan were sent to the Crowells by the Gate City Building & Loan Association. The secretary of the Gate City Building & Loan Association testified that he did not know that Dewberry was getting the money from the Home Building & Savings Association with which to pay the Crowell loan and other loans to his company and appropriating the money to his own use; that he accepted the statement of Dewberry that he had taken the loan over personally, and allowed him to continue to pay the monthly installments under the provisions of the. Crowell contract. Evidence was introduced tending to show that the secretary and office force of the Gate City Building & Loan Association knew how Dewberry was handling this and other loans. The chancellor found the Gate City Building & Loan Association did not know that Dewberry had got the money from the Home Building & Saving’s Association to pay the Crowell loan, and we cannot say that the finding is contrary to a clear preponderance of the testimony.

Under the facts reflected by the record, the Gate City Building & Loan Association is not estopped to enforce payment of its note for the balance due against the Crowells and to foreclose its lien under the deed of trust to pay same as against the Crowells and the Home Building & Savings Association. Its lien against the property was prior and paramount to the lien of the Home Building & Savings Association. Under the finding of the chancellor, which is not contrary to a clear preponderance of the testimony, the Gate City Building & Loan Association did not know or have reasonable 'grounds to believe that Dan Dewberry had obtained money from the Home Building & Savings Association with which to pay the Crowell loan, and that it allowed him to appropriate same to his own use in case he would make monthly payments in accordance with the Crowell contract. On the contrary, the chancellor found that the Gate City Building & Loan Association allowed him to keep up the monthly payments on the Ciowell loan, upon his statement that he had taken over the loan personally, meaning, of course, that he had bought Crowell’s equity in the property, subject to or by the assumption of the payment of the Crowell indebtedness and lien. The assumption of the mortgage would not release the Crowells from their liability for the indebtedness.

Another question arising on the appeal is whether the Home Building & Savings Association judgment against the 'Crowells should .be abated by the amount of the recovery of the Gate City Building & Loan Association against the Crowells. The manner in which the Home Building & Savings Association sent the money to the parties put it in the power of Dewberry to perpetrate the fraud. He was instructed to pay the Crowells their part of the proceeds out of the check and to satisfy the indebtedness due by the Crowells to the Gate City Building & Loan Association. The Home Building & Savings Association by this act constituted Dan Dewberry its special agent for handling the proceeds of the check, and, having put it in his power to perpetrate the fraud, must bear the loss. This particular question was involved in the case of Midland Savings & Loan Company v. Home Building & Savings Association. It was ruled in that case that Dan Dewberry was the agent of the Midland Savings & Loan Company, and it must bear the loss. The check was made payable to the Shields and Dan Dewberry, agent, with instructions to Dan Dewberry to see that the mortgage lien upon the property in favor of the Home Building & Savings Association was paid and satisfied.

The next and last question arising on the appeal is whether the court adopted the correct formula in ascertaining the amount due under the contract. The formula or rule adopted by the trial court was the formula or rule adopted by it in the cases of the Gate City Building & Loan Association v. Frisby, recently decided by this court. It was decided in that case that the rule in Roberts v. American Building & Loan Association, 62 Ark. 572, 36 S. W. 1085, was the correct rule by which the amount due should be determined, and, in reiterating the rule that should govern, this court said that the chancellor “seems to have proceeded upon a wrong conception of what was decided in the "Roberts case. ’ ’ The court then reiterated and interpreted the rule which should govern in cases of this kind.

On account of the court’s failure to adopt and correctly apply the rule in ascertaining the amount due, the decree must be and is reversed, and the cause is remanded with directions to ascertain the amount due under the rule in the Roberts case, as interpreted by this court in the ease of Gate City Building & Loan Association v. Frisby. In all other respects the decree is affirmed.


text:
    McClain v. Patterson.
    Opinion delivered June 11, 1928.

      Rice & Dickson and Blansett & Combs, for appellant.

      Duty & Duty, for appellee.
   Humphreys, J.

Appellee brought separate suits upon notes in the circuit court of Benton County, against each of the appellants, upon a note which each had executed to J. W. Baker for amounts representing balances due Baker for automobiles which he had sold each of them, and which notes J. W. Baker had assigned and transferred, before maturity, for a valuable consideration, to him. J. W. Baker was made a party to each suit. The notes bore interest at the rate of 8 per cent, per annum from maturity until paid. The notes were payable in monthly installments, and each was credited with certain payments. The suit against Johnson was numbered 1202 in the trial court, the one against Baker 1205, and the one against -Cowan. 1206. There is no dispute about the amount due upon each note at the time of the trial, the only issue joined being whether appellants were liable upon the respective notes executed by each. The amount due upon the R. C. Johnson note was $456.18, including interest, the amount due upon the McClain note $254.79, and the amount due upon the Cowan note $393.0-3.

Appellants filed separate answers, and interposed the defense that the respective automobiles were'taken from them by order of the United States Court for the Western District of Arkansas upon the claim that they had been stolen- from their rightful owners, and that Baker acquired no title thereto, and that no title passed from him to either of the appellants for the automobile bought by him, and that there was no consideration for the execution of said notes. Appellants denied that appel-lee was the owner and holder of the notes for value before maturity, and without notice of the infirmity in each, and charged the-fact to be that appellee ought to have known, from all the facts and circumstances, that Baker had no title to said automobiles.

The suits were consolidated for the purposes of trial in the circuit court, and the consolidated cause proceeded to a hearing upon the issue joined and the testimony adduced. At the conclusion of the testimony the court instructed a verdict in favor of appellee against each of the appellants upon the respective notes, and rendered a judgment in accordance with the verdicts against R. Gh Johnson and J. W. Baker, in case numbered 1202, -for the sum of $456.18; and against J. P. McClain and J. W. Baker, in case numbered 1205, for $254.79; and against J. W. Baker and Clarence Cowan, in case 1206, for the sum of $393.03; from which an appeal has been duly prosecuted to this court.

The notes were introduced in evidence, and their execution admitted. Appellee testified that he 'bought each note for a small discount, before maturity, and that he paid cash for them; that he had no knowledge whatever that they were, given for stolen automobiles, or no information from which he could draw such an inference; that he had been buying notes of that kind for five or six months, having handled over $27,000 worth of such paper; that his arrangement with Baker was for Baker to collect one-third of the purchase price of the automobiles in cash and to take notes and chattel mortgages for the 'balance of the purchase price; that he furnished Baker with blank notes and mortgages for that purpose; that he did not file the chattel mortgages, but just took chances on collecting the money; that he made no investigation of the financial standing of the respective purchasers; that occasionally he turned down Baker’s proffered paper when he did not think the automobile was worth what it was represented to be, and sometimes when the proper initial payment had not been’ made on it; that, if everything was regular and right, he accepted the paper, and did so without investigation; that the notes and chattel mortgages were executed to Baker and indorsed by Baker on a printed form on the back of the notes and mortgages; that, several months after he had purchased the notes in question and upon which he had brought suit, he received a notice through the mail from a Mr. John Boyd, advising him not to buy a note which he had given for a stolen automobile, and that he complied with his request, and turned the note back to the Farmers ’ Bank, which had advanced the money to Baker on it; that the bank afterwards collected the note from B'oyd.

In the course of the trial appellants offered to prove that the automobiles which they bought from Baker and for which they executed their notes were stolen. The court refused to admit the testimony unless they would introduce proof tending to show that appellee actually knew that the automobiles had been stolen, or was in possession of facts and circumstances tending to show that such was the case, at the time he purchased the notes, and ruled that up to that time they had not introduced any such testimony. Appellants claimed that the business between appellee and Baker was out of the ordinary and sufficient under all the circumstances to justify the submission of the issue of good or bad faith on the part of appellee in buying the notes, and entitled them to prove that- the automobiles had been stolen. The court ruled that the business between them was not out of the ordinary, and that no facts or circumstances had been introduced which tended to show that appellee was not an innocent purchaser of the notes. Appellants objected, and excepted to the ruling of the court, and preserved their objection and exception in their motion for a new trial.

At the conclusion of the testimony, appellants requested the court to submit the issue to the jury whether, under all the facts and circumstances in evidence, appellee was an innocent holder of the note before maturity, for value, in the usual course of business, without notice of infirmities therein. The court refused to submit the issue to the jury, but, on the contrary, instructed a verdict for appellee against each of the appellants, as heretofore stated. Proper objections were made and exceptions saved to the action of the court.

The sole question presented by this appeal is whether the trial court erred in excluding testimony showing that the automobiles sold by Baker to appellants had 'been stolen, and returned by them to the true owners under order of the Federal 'Court for the Western District of Arkansas, and in peremptorily instructing a verdict.

The rule of evidence is that, before the fraudulent character of a transaction may be shown in an effort to defeat negotiable paper executed in consideration thereof, which had been transferred to third parties for yalue before maturity, evidence must first be introduced tending to show that the purchaser of the paper was not an innocent purchaser. The evidence first offered must tend to show that the purchaser either had actual knowledge of the infirmity or defect, or tend to show that he had knowledge of such facts that his action in purchasing the paper amounted to bad faith. Bothell v. Fletcher, 94 Ark. 100, 125 S. W. 645. When such evidence has been introduced, then it would be proper to admit proof of the fraudulent transaction and send the issue to the jury upon all the evidence for determination. Holland Banking Co. v. Booth, 121 Ark. 183, 180 S. W. 978. Appellants contend that the failure to investigate the value of the security and to file the chattel mortgages were transactions out of the ordinary and circumstances tending to show a knowledge on the part of appellee of 'the infirmity and defect in the paper, and justified the introduction of proof showing that the automobiles had been stolen and recovered by the true owners, thereby destroying the supposed consideration for the notes. Appellee required Baker to collect one-third of the sales price of the automobiles in cash and to take notes and chattel mortgages for' the balance of the purchase money, payable in substantial monthly installments. The cash payment and substantial monthly installment payments obviated any real necessity of personally investigating the value of the security and financial responsibility of the purchaser. It is a common thing for banks and individual investors to handle automobile paper without personal investigation of'the value of the automobile securing’ same or the financial responsibility of the purchaser. It will be remembered that the automobile is always described in the mortgage, and, of course, its value may be determined from the description. It perhaps would have been better business to have filed the mortgages, but the filing would not have protected or strengthened the title to a stolen automobile. Appellee testified that he never filed any of his mortgages, but just took chances on making collections. We do not think this circumstance rendered the proof of the fraudulent transaetion admissible, or that the evidence introduced, when considered in connection ■with the fact that the automobiles were stolen, was sufficient to carry the issue of good or bad faith of appellee in purchasing the notes to the jury for determination. In other words, the undisputed evidence introduced, if reinforced by proof that the automobiles had been stolen, would not have tended to show that appellee purchased the notes in bad faith.

It was the duty of the court to instruct verdicts against appellant under the undisputed evidence. The judgments will therefore be affirmed.


text:
    Dye v. State.
    Opinion delivered June 11, 1928.

      Virgil D. Willis, for appellant.

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

Appellant was indicted, jointly with others, at the September term, 1926, of the Cleburne County Circuit 'Court, in an indictment containing two counts, one for possessing a still and one for making mash. At the February term, 1927, he was tried and convicted on both counts, and adjudged to serve a term of one year in the State Penitentiary on each count, from which is this appeal.

His first assignment of error for a reversal of the judgments is that the verdicts upon which same were based were contrary to the evidence. The testimony introduced by the State was, in substance, to the effect that, in the Wolf Bayou community, several miles from the town of Drasco, it was impossible to conduct Sunday-school and church without disturbances, due to' the illicit manufacture and sale of whiskey; that this condition induced certain citizens to search the neighborhood for stills, and that, in making the search, they found two stills running in the neighborhood, one hack of Paul Elms’ and one back of W. A. Tatum’s field, who were jointly indicted with appellant; that large quantities of mash and whiskey were found at each still; that, as they approached the last still, they recognized ¡appellant and two of his associates, who immediately ran away; that some of them remained at the still while others went to notify the sheriff to come to the scene; that, while waiting at the still for the sheriff to come, appellant and five companions, jointly indicted with him, returned, cursed them and told them that what was in the woods belonged to them; that thereupon they withdrew some 200 yards, and were foHowed fey appellant, who had a gun.

Appellant interposed an alibi as a defense, and introduced six witnesses, who testified that he was at Drasco, working upon his oar, at the time the citizens made the search, for illicit stills. Appellant argues that he established an alibi by six -witnesses-, which necessarily destroys -the integrity of the theory of the State that he was present at the still when discovered 'by the searching party. The conflicting testimony made an issue for the jury. The credibility of the witnesses and the weight to be attached to their testimony was purely a question for determination by the jury. The verdict indicates that the jury believed the witnesses introduced by the State and disbelieved .those introduced by appellant -to establish an alibi, and, as there is sufficient substantial evidence in the testimony introduced by the -State to sustain the finding of the jury, the verdict will not be disturbed by this court on appeal.

The second assignment of error ¡for a revérs-al of the judgments is the admission of testimony to the effect that' the community could not have Sunday school and church without disturbances. This testimony, -as we understand the record, was detailed by the several witnesses in explanation of their action in making the investigation for illicit stills in the community, and was merely a preliminary statement as to the cause of ‘their search, and did not in any way prejudice the rights of appellant. The explanation was admissible for that purpose.

The next and last assignment of error for -a reversal of the judgments is that the court erred in refusing to give appellant’s requested -instructions numbered 4, 5 and 6. Appellant’s requested instruction number 4 is as follows:

“You are instructed that, if you believe there were stills being’ operated in the section -and about which the witnesses have testified, it is no evidence against this defendant, unless he was aiding, assisting, abetting in the operation of same, or aiding; assisting or abetting in the making of mash, as charged in -the indictment.”

This instruction was fully covered by appellant’s requested instruction number 2, which the court gave. The court is not required to multiply instructions- covering the -same point.

Appellant’s requested instruction numlber 5 is as follows:

“You are instructed that the burden is on the iState of Arkansas to convince you, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, and if you find that there are two lines of evidence equally strong, one leading to conviction and the other to acquittal, then, under the law, you must adopt the one favorable to the defendant.”

The jury was told in other instructions to acquit appellant unless convinced of his .guilt beyond reasonable doubt. It was unnecessary therefore to give appellant’s requested instruction number 5. Martin v. State, 163 Ark. 103, 259 S. W. 6, 33 A. L. R. 133.

Requested instruction number 6 related to the character of 'circumstantial evidence necessary to convict one charged with crime. This instruction was not appropriate, because the State did not rely upon circumstantial evidence alone for conviction. The testimony relied upon by the State for a conviction was positive and direct to the effect that appellant was one of the men who was discovered at the still and ran away, and who later returned and claimed to be the owner of the .still, mash and whiskey.

No error appearing, the judgments are affirmed.


author: Mehaeey, J.

text:
    Tebbetts v. Tune.
    Opinion delivered June 11, 1928.

      Morris & Barron, for appellant.

      R. E, Wiley, for appellee.
   Mehaeey, J.

Louise E. Tebbetts, the appellant, brought suit in the Pulaski Circuit 'Court against Howard A. Time and Fred J. Reutelhuber, representing the members of the widows’ and orphans’ fund, alleging that the fund had insured the life of Tebbetts in the sum of $1,000 and that the members thereof had jointly and severally bound themselves to appellant, as beneficiary of Tebbetts, for the payment of such sum.

This suit was based on the membership of George S. Tebbetts in the widows’ and orphans’ fund, the plaintiff alleging that Tebbetts was a member of the fund, 'and that he had died. Notice of proof and loss and payment of all accrued assessments were alleged. It was also alleged that demand for payment had been made, and that appellee denied liability.

The appellee filed answer, together with a motion to transfer to equity; denied the allegations of the complaint; alleged that Reutelhuber and Tune were trustees of the money raised by voluntary contributions of members; that the imperial council governs the shrine and the members thereof, and that, under the by-laws of the council, a member who was suspended in a consistory was automatically suspended in his temple, said by-law being made part of the appellee’s answer.

Appellees further stated that Tebbetts became suspended in the Arkansas Consistory No. 1 because of nonpayment of dues- thereto, and on December 31, 1925, by virtue of being suspended from the consistory, became suspended in the shrine, remaining delinquent therein until the time •o'f his death, which was in July, 1926. It was further alleged that being suspended from the shrine tainted his membership in the fund, and that he thereby became suspended in the fund from and after December 30, 1935.

The case was transferred to equity, and the chancellor, on January 13,1928, rendered a decree dismissing the complaint for want of equity, and appellant prosecutes this appeal to reverse said decree.

The facts are substantially as follows: No one can become a member of the Shrine Temple unless he is either a member in good standing either in a oommandery of the Order of Knights Templar, or a consistory of the Ancient and Accepted Scottish Bite. Tebbetts was a Scottish Bite Mason, and therefore eligible to membership in the shrine. Under the laws of the organization, any one suspended or expelled from the Scottish Bite body stands suspended or expelled in the Shrine Temple.

On the 31st day of December, 1925, Tebbetts was suspended from the Scottish Bite body, and thereby became suspended in the Shrine Temple. The widows' and orphans’ fund was composed of members of the temple. As a member of 'the temple, in good standing and in good health, Tebbetts was entitled to subscribe to the widows’ and orhans’ fund, and the application signed by him, addressed to the widows’ and orphans’ fund, states that he is a member in good standing of A1 Amin Temple, and in general good health. The by-laws provide that, in order to be eligible to membership in the widows’ and orphans’ fund, one must be a member of the temple in good standing, and in general good health.

Section one of the by-laws of the fund is as follows: “All members of A1 Amin Temple in general good health and in good standing are eligible to membership in the fund, on the conditions herein named. ’ ’

The agreed statement of facts covers several pages of the transcript, and is too lengthy to be set out in full. ■But it is agreed that Tebbetts was a member of the fund, •and 'that the appellant is bis widow and beneficiary; that on December 31, 1925, 'Tebbetts was delinquent in his dues to the Arkansas 'Consistory No. 1, and suspended in accordance with its by-laws; that he had received notice that he was suspended on account of nonpayment of dues 'amounting1 to $18; .that he was suspended from the consistory, and that such suspension automatically suspended him from the shrine. The suspension continued until his death. He was never reinstated in the consistory, and did not pay his dues in At Amin Temple for 1926. That he died from an injury received in an accident on July 18, 1926. That the widows’ and orphans’ fund-was notified, of Ms death, and payment demanded. The widows’ and orphans’ fund, through its officers, refused to recognize the validity of the claim. That, at the time of (Ms death, he had on deposit with Fred J. Beutelhuber, secretary of the widows’ and orphans’ fund, the sum of $8.80, the balance of the amount deposited with the secretary (by Tebbetts, with the direction that it be drawn on from time to time in paying regular assessments or death contributions; that the constitution of the imperial council provided that a noble can hold active membership in but one temple, and, to retain membership in a temple, he must be in good standing in one or the other prerequisite Masonic bodies; that, in case he holds membership in but one and is suspended or expelled, he stands suspended or expelled in the temple until restored to good standing by the prerequisite body suspending or expelling him.

It is further agreed that membership in the widows ’ and orphans’ fund is confined to members of A1 Amin Temple. Before one can join the fund he must be in good standing in A1 Amin Temple, and in general good health. The by-laws of the widows ’ and orphansr fund, together with the 'certificate, are made a part of the agreed statement of facts. It- is not compulsory on members of the temple to become members of the •widows’ and orphans’ fund. Some of the members of A1 Amin Temple are not members of the widows’ and orphans’ fund. Tebbetts did not pay bis death contributions in the usual way. He would mail his check for $15 or $20 to Reutelhuber, secretary, who would cash same and deduct amount of current assessment, and deposit the balance to the credit .of Tebbetts in the widows’ and orphans’ fund. When another assessment became due to the widows’ and orphans’ fund, the secretary would draw from that account. When there was not enough money, he would notify Tebbetts, and Tebbets would again send him a cheek for $15 or $25. After Tebbetts had been suspended from the consistory and the temple, on December 31, 1925, he had to his account in the widows’ and orphans’ fund department $8.80, being a balance of $22 previously deposited. This sum was not refunded, but was retained in the account of Tebbetts in the widows’ and orphans’ fund, and the name of Tebbetts was carried on the books of the widows’ and orphans’ fund. The secretary, Reutelhuber, did not return the $8.80 'because he thought Tebbetts would reinstate himself in good standing in the .temple, which he could do by paying his delinquent dues. Between the date of Tebbetts’ suspension and the date of his. death there occurred eight deaths of the members of the widows’ and orphans’ fund, and several assessments were collected from the membership, but Tebbetts was not called on to pay any of them. On July 29 the secretary of the widows’ and orphans’ fund sent a check for $8.80 to appellant, which she has not cashed or returned.

The agreement further .states about the organization of the temple and the widows’ and orphans’ fund, but we deem it unnecessary to copy that in this statement.

It is also agreed that the constitution and by-laws of the national body show that the imperial potentate is the executive officer, and that he has authority to suspend, until the next .session of the imperial council, any officer of any temple for certain things. It is- also provided in the constitution that no applications shall be received unless the applicant is a regular Knight Templar in good standing in the commandery, or a regular 32 degree Mason in good standing in a consistory of the Ancient Accepted Scottish Bite. It is also provided in the by-laws that no appeal from the decision of the illustrious potentate shall lie to the temple, but an appeal may (be taken to the imperial potentate', whose decision shall stand until the same shall be revoked or approved 'by the imperial council.

Parties also make the by-laws of A1 Amin Temple a part of their agreement. Article nine of the by-laws of the temple provides that all questions, other than those provided for the edicts and regulations of the imperial council, shall be decided by a vote of those present at any regular meeting of the council.

The agreed statement of • facts further shows the organization of the widows’ and orphans’ fund. And the minutes of the meeting of the temple, among other things, contains the statement: “All members of A1 Amin Temple A. A. O. N. M. S. in good standing and in good general health are eligible and may become members of the order.”

It is further, provided in the by-laws that assessments shall be made and that the amount due beneficiaries shall be paid upon satisfactory evidence, etc., and provides for the application to become members of the- fund.

. The agreed statement of facts is quite' lengthy, as also is the testimony, but the above is a substantial statement of the material facts.

. Appellant’s first contention is that the agreement between the widows’ and orphans’ fund and Tebbetts rests upon the basis of a contract, and stamps it as an ordinary insurance policy, and calls attention to many authorities, but we deem it unnecessary to discuss the authorities at length. The authorities as to what constitutes an insurance contract are in hopeless conflict, but it is immaterial whether we call this an insurance contract or simply call it a contract, because the only question necessary to be considered and which is decisive of this case is the question whether the subscriber to the widows’ and orphans’ fnnd must remain in good standing in the temple, or whether being suspended or expelled from the temple disentitles the member to the privileges and benefits of the widows’ and orphans’ fund while so suspended or expelled. If a suspension for nonpayment of dues in the Scottish Kite body, which operates as a suspension in the .temple, does not suspend him as a member of the fund, then appellant is entitled to recover. If, on the other hand, he must remain in good standing in the temple to be entitled to the privileges and benefits of the widows’ and orphans’ fund, appellant is not entitled to recover. It is expressly provided in the 'by-laws that, in order to become a member of the widows’ and orphans’ fund, one must be a member of the temple in good standing.

The Massachusetts court, in deciding the case of Burbank v. Boston Police Relief Association, where there was a change of beneficiary, and the instrument designating the change was under seal, attested by two witnesses and the treasurer of the corporation, the court said:

“It is to be assumed that this was done at a meeting of the directors. But it does not appear that any action was tafeen by the directors upon it. There is no ground for the contention that the defendant is bound by these acts of its officers or is estopped to deny that Morey was a member. Neither the treasurer nor the directors had authority to continue Morey a member. The by-laws declared that he was not a member, and the corporation itself could not vote to give him the rights of a member. ’ ’ Burbank v. Boston Police Relief Assn., 144 Mass. 434, 11 N. E. 691.

‘ ‘ This is a corporation which does not make contracts of life insurance with strangers, but arranges a system of payments for the benefit of the relatives of its deceased members. It adopts by-laws to determine the relations of members to one another and' also their rights against the corporation. The principles which apply to ordinary mutual insurance companies in regard to the waiver of by-laws (by officers are equally applicable to this corporation. # * * It is well settled that the officers of a mutual insurance company have no authority to waive its by-laws which relate to the substance of the contract between an individual and Ins associates in their corporate capacity. * * * The officers of the defendant were agents with a limited authority. 'The corporation, by the law which it laid down for the government, received into association with its members and to participate in its benefits all persons of a particular class. John 0. McCoy did not belong to that class, and he could not become a member of the corporation without appropriate action by the corporation itself.” McCoy v. Roman Catholic Mutual Insurance Co., 152 Mass. 272, 25 N. E. 289.

The widows’ and orphans’ fund, by its by-laws, received into its membership only persons of a particular class. That class was members of the temple in good standing. Membership in the temple in good standing is a prerequisite to. membership in the widows’ and orphans’ fund. And only persons who are members in good standing, both in the temple and in the consistory, can become members- of the widows ’ and orphans ’ fund. Counsel for appellant, however, insist that, while membership in good standing is a prerequisite to becoming a member, there is nothing in the by-laws that requires one to remain in good standing in the temple in order to retain his membership in the widows’ and orphans’ fund, and that this is a contract which is binding on both parties.

The cardinal rule in the interpretation of contracts is to ascertain the meaning and intent of the parties and give effect to that intent if it can be done consistently with legal principles. And it is the duty of one construing a contract to ascertain the meaning and intent of the parties, and, if it can be done, to find out this intent as expressed by the language used by the parties. It was evidently the intention of the parties that beneficiaries in the widows’ and orphans’ fund should be confined to those persons who are members of the temple in good standing. It is true there is nothing in the by-laws or the application that states in so many words that a member must remain in good standing in the temple. It is also true that there is nothing in the by-laws or application that states that he must remain a member of the temple. If Tebbetts had been expelled instead of suspended, the argument that the law did not require him to remain a member, but only required him to be a member when he joined, would be as applicable and as plausible as the argument that he is not required to remain in good standing. Tebbetts could have been reinstated by paying- his dues; not by paying his dues or assessments to the fund, but by paying his dues to the consistory. The situation is very different from that of a person owing dues to a lodge and the lodge having money on hand .sufficient to pay said dues. It has been many times held that, under such circumstances, the lodge cannot forfeit the rights of the party while it has money in its possession that it could apply to the payment of his dues-. But, in the instant case, the widows’ and orphans’ fund could not have applied the money that it had on hand to the payment of Mr. Tebbetts ’ dues in the consistory. It had no authority to do this. Moreover, there was not sufficient funds to pay his dues..

The agreed statement of facts in this case is that the suspension of Tebbetts continued until his death; that he was never reinstated in the Arkansas 'Consistory, and did not pay his dues to the temple for 1926 which became due and payable January 1 of that year.

If appellant’s contention was. correct, a member could be expelled from the consistory and the- temple and still be a member of the widows.’ and orphans, fund, although this fund is organized for the benefit of persons who are members of these orders in .good standing.

.Section one of the bydaws of .the fund provides that all members of A1 Amin Temple in general good health and in good standing are eligible to membership in the fund.

■Section ten of the by-laws provides that they may be changed or amended at any lawful meeting of the temple. But it also provides that, at the request of any memiber of the fund present, the voting may 'be confined to' the members of the fund. Therefore, if' a person could remain a member of the fund after having been expelled from the temple, he could still vote on the by-laws of the fund and could, 'by his own request, prohibit any member of the temple, other than members of the fund, from voting. Any member of the fund can, by keeping his dues paid in the consistory and temple, remain a member; or, if he has been suspended, can be reinstated by the payment of his dues. . .

Appellant says that the fund is self-governing in its own sphere, for, according to its by-laws, it makes its own rules and regulations exclusively through its own membership. And we think that this strengthens the position that the member must remain in good standing in the consistory and temple. If the fund is self-governing and makes its own by-laws, then it is conceivable that the persons expelled from the consistory and the temple could make the laws of the fund, if appellant’s contention is correct.

Our conclusion is that the suspension of a member by the consistory suspends him from the fund, and that the only way he can be reinstated is to pay his dues in the consistory.

The decree of the court is affirmed.