author: Hart, J. Hart, J.,

text:
    Sullivan v. State.
    Opinion delivered November 5, 1923.
    1. Criminal law — absence of bill of exceptions — matters reviewable. — Where no bill of exceptions is filed in a capital case, the Supreme Court can review only for errors apparent on the face of the record.
    2. Indictment and information — filing in open court.- — where the record of the proceedings of the circuit court on a certain day recited that the gránd jury came into court and presented two hills of indictment, numbered one and two, and the indictment against appellant herein contains the indorsement that it was filed on that day and numbered one, this was a sufficient showing that the grand jury was duly .selected and impaneled.
    S. Criminal law- — presumption as to regularity. — Where the record recites that the court ordered the sheriff to bring the accused into court, and that the court informed him of the nature of the indictment and of his rights thereunder, it will be presumed that all of these proceedings took place in open court.
    4. Jury — waiver of right to object. — Where the record in a capital case recites that the jury were selected and impaneled in open court, without objection as to the manner of their selection, all objections to the manner of their selection were waived.
    Appeal from Boone Circnit Court; J. M. Shinn, Judge;
    affirmed.

      A. B. Arbaugh, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Assistant, for appellee.
   Hart, J.

Eulos Sullivan was tried before a jury and convicted of murder in the first degree. The jury fixed his punishment at death by electrocution, and from the judgment and sentence of conviction against him Eulos Sullivan has prosecuted an appeal to this court.

No bill of exceptions has been filed in the case, and, under the rules of this court, we can only review for errors apparent on the face of the record. Harding v. State, 94 Ark. 65; Morris v. State, 142 Ark. 297, and cases cited; and Cegars v. State, 150 Ark. 648.

We have examined the indictment and find it to be a valid indictment. There is no error upon the face of the record. The object of a bill of exceptions is to bring the proceedings of the trial court, which are not a part of the record proper, in the record for review in this court. If no bill of exceptions was required, the defendant might make up his own assignments of error and an entirely different case from the one tried in the court below would be presented for review in this court.

We find no reversible error in the record presented to us for review, and it follows that the judgment of the circuit court must be affirmed.-

Hart, J.,

(on rehearing). -Counsel for the defendant earnestly insist that the judgment in this case should be reversed because the record does not affirmatively show that the grand jury which returned the indictment was selected and impaneled as the grand jury of Boone County, and that the record does not show that the proceedings were bad at a special term of tbe court. On tbis point we copy from tbe transcript tbe following:

“In tbe Boone Circuit Court, July term, 1923. July 19, 1923.
“Grand Jury Order.
“On tbis day comes the grand jury into open court in a body and all answered to their names when called. Thereupon said grand jury, through tbeir foreman, presented to the court two (2) true bills of indictment, which said true bill of indictment was by the court examined and banded to the cleric of this court with instruction to file and number, which was done in tbe presence of all tbe grand1 jurors, and said true bills was numbered from one (1) to two (2) inclusive. Said grand jury, having no further business before tbe court but further business before their body, retired to consider further of tbeir duties.”

Page three of the transcript contains tbe indictment which charges Eulos Sullivan with the crime of murder in the first degree committeed by shooting Walter Casey with a pistol on tbe 16th day of July, 1923, in Boone County, Ark. Tbe indictment is in proper form, and on tbe back of it is the following:

“Indorsed: No. 1. State of Arkansas against Eulos Sullivan.
“A true bill: J esse B. Guier, foreman of grand jury. Indictment for murder in tbe first degree. Piled in open court in presence of all the grand jurors, tbis tbe 19th day of July, 1923. W. J. Cotton, clerk.
“Witnesses for State: G. W. Walling, Bob Sbaddox, C. G. Richardson, J. S. Johnson, Yard Bishop, Otis Eoff.”

It will be observed that tbe order recites that the grand jury came 'into open court in a body and all answered to tbeir names when called. Then follows the recitation that tbe grand jury, through its foreman, presented to the court two true bills of indictment, which were by the court examined and banded to the clerk, with instructions to file and number them, and that this was done in the presence of all tbe grand jury.

The record does not contain any objection to the form of this order or to any statement of fact recited in it. The indictment is indorsed number 1, and contains the recitation that it was filed in open court in the presence of all the grand jurors on the 19th day of July, 1923'. This purports to be the record of the proceeding’s of the trial in the circuit court sanctioned by the approval of the presiding judge. If the recitals are true, there was. a term of the circuit court at which the grand jury was selected" and impaneled, and the' indictment upon which the defendant was tried was returned by it into open court. The record recites that the indictment was returned in open court in the presence of all the grand jurors. In the absence of a showing to the contrary, this was sufficient, under the holding of this court in Hanson v. State, 160 Ark. 329.

It is next insisted that the record contains no facts to show that the defendant was brought into open court and informed of tlié charges against him. On this point we copy from -the transcript the following: ■

“In the Boone Circuit Court, July term, 1923. July 19,1923. .
“State of Arkansas, plaintiff, v. Eulos Sullivan, defendant. — No. 1149.
“On this day the sheriff was ordered to bring Eulos Sullivan into court, and the court informed him of the nature of the indictment and his rights under said charge, and, the defendant having no counsel and no money with which to employ an attorney, the court .appointed A. B. Arbaugh to represent Mm. A copy of the indictment was served upon the defendant Thursday, July 19, 1923, at 9 o’clock, and this cause is by the court set for trial Saturday, July 21,1923, at 9 o’clock.”

It will be observed that this record recites that the sheriff was ordered to bring the defendant into court, and that the court informed him of the nature of the indictment and his rights thereunder. Counsel was then appointed by the court to defend him, and the case was set for trial. No objection was made at any stage of the proceedings to the form of this order. The recitation that the court informed the defendant of the nature of the indictment and his rights thereunder shows that he was in the presence of the court. Counsel was then appointed to defend him. The recitation of these facts shows that the proceedings occurred in open court. In the absence of a showing to the contrary, we cannot indulge the presumption that prejudicial proceedings, certified to by the clerk of the court as having been had during the progress of the trial, occurred elsewhere.

It is next insisted that the petit jury was not selected in the manner provided by the statute. On this point we copy from the record the following:

“In the Boone Circuit Court, July term, 1923. July 21, 1923.
“State of Arkansas, plaintiff, v. Eulos Sullivan, defendant. — No. 1149.
“Comes now the prosecuting attorney, who prosecutes on behalf of the State of Arkansas, and said defendant, in his proper person, as well as by his attorney, defendant being arraigned, the clerk of this court reading the indictment to him, and asked the defendant if he was guilty or not guilty, and the defendant said he was uot guilty, and this cause coming on for trial, the defendant demands a jury trial; thereupon comes a jury who have been selected, eight from the regular panel of jurors, and four from the bystanders, who appear in court as follows: B. O. Ragland, C. F. Forney, C. F. Fillingham, Luther Dozier, W. L. Johnson. A. J. Pugh, Jeff Pillow, Tobe Tennyson, Cleve Gray, Wiley Daniel, M. 0. Jones and Dave Nichols, twelve good and lawful men, citizens of Boone County, in this 'State, who, being chosen, tried, accepted and sworn to truly try this cause, and a true verdict render, according to law and evidence, and, after hearing all the evidence, and being fully instructed on the law by the court, and hearing the argument of counsel for the State, as well as for the defendant, the jury then retired to their room to consider of their verdict, and, deliberating thereon, returned into open court the following verdict, to wit: ‘We, the jury, find the defendant guilty of murder in the first degree as charged in the indictment, and fix his punishment at death by electrocution. J. P. Pillow, foreman.’ And the jury, in this cause, is by the court, in the presence of the attorney on both sides, relieved from further service herein, and this cause is continued for judgment and sentence.” ■

It will be observed that this record recites that a jury was selected and impaneled in open court. The names of the jurors are given, and the record recites that they were chosen, tried and accepted and sworn to try the cause. It recites that eight of them were selected from the regular panel and four from the bystanders. No objection was made whatever to the manner of selecting the jury. Neither does the record recite that the defendant exhausted his challenges.

In Johnson v. State, 97 Ark. 131, it was held that a defendant convicted' of a capital offense can not complain because the trial court caused the jury to be selected from a list containing twelve jurors of the regular panel and twelve others summoned from the bystanders, if he failed to exhaust his peremptory challenges in the selection of the jury.

In the recent case of Smith v. State, 160 Ark. 178, the court held that, where a defendant, on trial for'a felony, failed' to object that certain members of the jury were selected and impaneled and sworn to try the cause without having- first been sworn to answer questions touching their aualifications as jurors, he thereby waived such irregularity, and could not raise the question for the first time in his motion for a new trial.

In Bowman v. State. 93 Ark. 168, which was a cauital case, the record shows that eleven jurors were obtained before the regular panel was exhausted. At that time the State had seven and' the defendant had seventeen peremptory challenges. The defendant objected to the court having one talesman at a time summoned, and asked that as many as three he summoned, in order to permit him to draw. He based his request upon the section of the Digest that provides that, where the regular panel is exhausted, the court shall order the sheriff to summon bystanders to at least twice the necessary amount to complete the jury, whose names shall be placed in the box and drawn. The court held that there was no prejudicial error calling for a reversal of the judgment, because the defendant had failed to exhaust his peremptory challenges.

Here, as above stated, the record does not show that any objection was made to the manner of selecting the jury. This court has held repeatedly in capital cases that there are certain constitutional 'and statutory rights guaranteed to the defendant as a personal privilege which h.e may waive at the trial, and which he does waive by not objecting to the method of procedure during the trial. Most of the cases on this point, as well as a review of them, will be found in the majority opinion, or in the dissenting opinion, in Shinn v. State, 150 Ark. 215. In that ease the dissent was based upon the ground that the error complained of was not a matter of personal privilege to the defendant, but was one which affected the, administration of justice, and therefore could not be waived by the defendant. Both the majority and the dissenting opinion recognized that rights which do not affect the State and are in the nature of a personal privilege may be waived by the defendant, and are waived by him where he does not object during the trial. See also Beard v. State, 79 Ark. 293.

It is also true that § 3414 of Crawford & Moses’ Digest provides that, in all cases appealed to this court, where the accused has been convicted of a capital offense, all errors of the trial court prejudicial to the rights of the defendant shall be heard by this court, whether exceptions were saved or not at the trial. In construing this act, however, this court has held that, while formal exceptions need not be saved at the trial, objections must be made to the proceeding in the trial court in order to obtain a review of the alleged errors in this court. Harding v. State, 94 Ark. 65; Canghron v. State, 99 Ark. 462; Morris v. State, 142 Ark. 297, and Sneed v. State, 159 Ark. 65.

Other alleged errors are urged .upon us for a reversal of the judgment which we cannot consider because, as stated in our original opinion, there was no bill of exceptions filed in the case. There is nothing in the record to show whether the alleged errors complained of actually occurred at the trial or not. We have only the power to review for errors occurring at the trial, which are preserved in the record and thereby presented for review. The alleged errors must be brought in the record in order for us to consider them. The reasons for this are so apparent and have been so repeatedly pointed out by the court in other decisions that we do not deem it necessary to repeat them.

It follows that the motion for a rehearing must be denied.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Clear Creek Oil & Gas Company v. Bushmaier.
    Opinion delivered November 5, 1923.
    Mines and minerals — oil and gas lease — duty to explore. — Where an oil and gas lease authorized the lessee to elect to pay a yearly rental instead of drilling a well, the lessors cannot recover damages for failure of the lessee to commence to' drill.
    Appeal from Franklin Circuit Court, Charleston District; James Coclvran, Judge;
    reversed.

      E. L. Matloclc and Hill $ Fitshugh, for appellant.
    1. The verdict was contrary to the law ‘and the evidence. This case grows out of a misapplication of this court’s decision in the Blair case, 148 Ark. 301. .That case recognized1 the principle that there is an implied covenant on the part of the lessee to protect the lessor against drainage, and, in default thereof, the lessor may recover damages, but only when there has been a demand made within a rental period, with notice of intention to refuse to accept further rentals, and to declare a forfeiture for noncompliance with such demand. Id. 310; 89 S. E. 12; L. B. A., 1917-A, 171. In this case the lessor continued -to accept rentals for four years, and until the cancellation of the lease, after the alleged demand for a protection well. See 177 Pac. (Oída.) 104.
    2. The action is barred by limitation. . C. & M. Digest, § 6950; 148 Ark. 301-310; 47 Ark. 317; 49 Ark. 468; 112 Ark. 6; 115 Ark. 84; 91 Ark. 162. We do not believe this action is controlled by the second paragraph of the statute, S'lupra, but, if it is, appellee’s case is not bettered. 52 Ark. 240; 92 Ark. 406; 107 Ark. 330.
    3. There was no duty to drill a protection well, if the cost of producing gas and the market condition for its sale were such, at the time the plaintiff was entitled to have a protection well, that the defendant could not .sell the gas so produced at a profit and without loss. 140 Fed. 801; 177 Pac. 104, and authorities there cited.

      Gheiv & Ford, for appellees.
    It is an implied covenant in every lease of this kind that the lessee will make diligent search and operation of the leased premises. 97 Ark. 167; 72 C. C. A. 213. The .acceptance by appellees of the yearly rentals did not estop them from insisting that the lessee should comply with the terms of its obligations to explore and develop the leased premises. 148 Ark. 301.
   Humphreys, J.

This suit was instituted by appellees against appellant in the circuit court of Crawford County, to recover damages in the sum of $2,000 for the alleged failure of appellant to explore and develop gas wells on certain lands in said county leased by appellees to .appellant. The venue was changed1 to the Charleston district of the circuit court of Franklin County, where the cause was tried upon the pleadings, evidence, and instructions of the court, resulting in a verdict and consequent judgment against appellant in the sum of $390, from which is this appeal.

The suit was based upon a written lease of the lands therein described1, which was executed in order that the oil, natural gas, and' mineral resources thereon might' be discovered and developed. The provisions of the lease necessary to a determination on the vital question involved on this appeal are as follows:

“That said first parties (appellees here) for and in consideration of the sum of one dollar, cash in hand paid, and in further consideration of the agreements and covenants hereinafter set forth to be kept and performed by said second party, have granted, demised and let, and do by these presents grant, demise and let unto the second party, its successors and assigns, the premises hereinafter described and for the terms specified herein, with the exclusive right and privilege of entering into, possessing, holding, drilling into, mining therein and prospecting for oil, natural gas and other minerals, * * * and also the further right and privilege of making such further use of said premises as it may deem necessary in developing, operating and exploring the mineral resources thereof, the following described lands, to-wit[Here follows a description of the land.]
“That if the said second party shall market any gas from any well producing gas only, then the parties of the first part shall receive therefor at the rate of two hundred dollars per annum for each well, quarterly in advance. Should any minerals of commercial value be discovered in paying quantities on the within-described premises, and the development and production of same by said second party be carried on with reasonable diligence, then the lease shall remain in full force and effect. * * *
“That if no drilling operations are begun on the premises within one year, all right and obligations secured under the lease shall cease upon notice in writing being served on the second party by the parties of the first part, unless the second party shall elect to continue the lease in force as tó any and all parts of the premises by paying to the parties of the first part an annual rental of seventy dollars for all of said premises, provided that when such well is drilled the rental shall cease. All payments to be made at the Alma Bank to the credit of the parties of the first part.
“It is hereby further agreed that the said second party, its successors and1 assigns, shall have the right at any time to surrender and terminate this lease. ’ ’

The record reveals that, about a year after the execution of the lease, wells were drilled by appellant on lands adjoining those leased from appellees, which produced large volumes of gas, and near enough to appellees’ lands to drain them; but, as this suit was not brought to recover damages for failure to drill protection or offset wells on appellee’s lands, or for the gas drained off of their land through wells on adjoining lands, it is unnecessary to set out the testimony showing the date those wells were drilled or the approximate amount of gas produced by them from time to time. Appellant made no effort whatever to drill a well or wells upon the premises leased from appellees prior to the 10th day of February, 1922, at which time it canceled the lease. Notwithstanding the fact that appellees requested ' appellant to drill protection wells after it drilled wells on adjoining lands, appellant paid and appellees accepted yearly rentals of $75 a year upon the lands for the years 1917, 1918, 1919, 1920 and 1921. •

The acceptance of the rents from year to year prevented a breach of the contract growing out of failure to drill wells upon the leased1 premises. The contract provided that, in case appellant should elect to pay $70 per annum rent upon the premises instead of drilling a well thereon, such payment should have the effect of continuing the lease in force. The correct interpretation of the contract is that the stipulated rent should remunerate appellees for delays in drilling. In construing similar provisions in an oil and gas lease this court said, in the case of Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, that “the lease expressly authorizes the lessee to elect to pay the yearly rental', instead of drilling. Hence, the lessors cannot recover damages for failure of the lessee to commence exploration for gas. If, however, the lessee commences to explore for gas, it must exercise due diligence in drilling, and there is an implied covenant on its part to do so. Mansfield Gas Co. v. Alexander, 97 Ark. 107; Lawrence v. Mahoney, 145 Ark. 310.” .The payment and acceptance of the annual rental provided for in the contract had the effect of preventing a breach for failure to develop the lease during the term covered by the rental. This interpretation of the contract does not militate against the lessor’s right to sue for damages on account of the breach of an implied covenant not to drain his land during the period of delay. In order to maintain a suit upon such an implied covenant, however, a lessor could not continue to receive the specified rents for delay. In that event it would he his .duty to declare a forfeiture of the implied covenant and refuse to receive rents for delay. That was what Mrs. Blair did in the case of Blair v. Clear Creek Oil & Gas Co., supra. In the instant case, however, damages were not claimed for the removal of gas through'wells on adjoining lands or for a failure to drill protection wells. The action was ■ grounded upon an alleged breach for failure to develop the leased premises.

For the error indicated the judgment is reversed, and the complaint of appellees is dismissed.


text:
    Jarrett v. Baird.
    Opinion delivered November 5, 1923.
    Municipal corporations — street improvement district — boundaries. — ‘Under Crawford & Moses’ Digest, § 5649, an ordinance organizing a street improvement district in a city or town is required to designate the boundaries thereof so that the district may be easily distinguished; and where the boundaries are designated by lots and blocks, instead of by metes and.bounds, the lots and blocks must be described in such manner as to notify owners that a charge is to be made against their property.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Melbourne M. Martin, for appellants.
    The description used in the petition refers to the east and west halves of the blocks lying adjacent to Pine Street, and, if there is any misdescription, it is merelv a misnomer of the addition and not of the property itself, which is harmless error, as the description used was sufficient to put property owners upon notice. 148 Ark. 629; Id. 634; 3 Ark. 18.

      Schoggen <& Shepherd and J. F. Clifford, for appellees.
    The description of the property to be included in the district as contained in the first petition does not comply with § 5649, C. & M. Digest. ' The purpose óf complying with statutory provisions in forming improvement' districts is to notify property owners that a charge is proposed to be made against their property. 116 Ark. 167; 13Q Ark. 161; 103 Ark. 269; 108 Ark. 141; 104 Ark. 298; 115 Ark. 163. A variance between the notice and plat filed is fatal. 113 Ark. 556. The case relied upon by appellant at 148 Ark. 629 is not in point. There a description was made by metes and bounds. The error in description in the first petition rendered all subsequent proceedings void. 71 Ark. 556; 115 Ark. 163; 116 Árk. 167; 104 Ark. 298.
   Humphreys, J.

Appellees, property owners in Street Improvement District No. 326 of the city of Lit-tie Bock, instituted suit in the chancery court of Pulaski County against appellants, commissioners, collector, treasurer and attorney of said district, attacking the validity thereof and seeking to enjoin all proceedings therein. The attack was upon the alleged ground that their property, consisting of seventeen lots in Wayman’s Addition to the city of Little Bock, abutting upon the street to be improved, and assessed to pay for said improvement, was not included in the district by sufficient description to apprise them that a' charge was proposed to be ■ made against their property. In the organization of the district the lots in question were attempted to be described in the first petition as the "east half ,(%) blocks 5, 6, 7, 8 and the west one-half (%) of blocks 9, 10, 11 and 12, Neimeyer’s Addition; all of said property herein mentioned lying situate in the city of Little Bock, Arkansas.”

The lots were described in substantially the same way in the ordinance creating the district as well as the publication thereof in the Little Bock Daily News. In assessing the benefits against the several lots' embraced in the district, the lots in question were described as being in Wayman’s Addition to the City of Little Bock, Arkansas.

The record reflects the following facts: The owner of the NEB/4, SW1^,- section 8, tp. 1, N. B. 12 W., Pulaski County, Arkansas, platted it into lots and blocks in the year 1904 and designated it as Wayman’s Addition to the City of Little Bock, Arkansas. He sold a number of the lots to individuals, and in 1907 sold the remainder of the addition to the Mercantile Trust Company. The Mercantile Trust Company replatted the addition and designated it as the Neimeyer Addition to the City of Little Bock, Arkansas. In replatting same the block numbers, streets and alleys were not changed. The only change made was to cut the lots purchased by it in two, making them twenty-five feet instead of fifty feet wide. According to the petition and ordinance, Pine Street was to be improved between the'south side of Thirteenth Street and the north side of Asher Avenue. Pine Street .is the center street running north and1 south through the Way-man & Neimeyer Addition. The organizers of the district intended to embrace in the district all lots adjacent to and on both sides of Pine Street between said points. Appellees owned lots 11 and 12, block 5; lots 9, 10,11 and 12, block 6; east half (%) of block 8, and the west half (%) of block 11, all being in Wayman’s Addition to the City of Little Bock, adjacent to Pine Street and lying between the points to be improved.

The vital question to be determined on this appeal is whether the attempted description in the original petition, ordinance and publication thereof properly described appellees’ lots. In organizing an improvement district in an incorporated town or city the statute law requires that the boundaries thereof be designated so that the district may be easily distinguished. Section 5649, Crawford & Moses’ Digest. Where the boundaries are designated by lots and blocks, instead of by metes and bounds, it follows, as a matter of course, that the lots and blocks must be described in such manner as to notify owners that a charge is to be made against their property. Kraft v. Smothers, 103 Ark. 269; McRaven v. Clancy, 115 Ark. 163; Riddle v. Ballew, 130 Ark. 161. The description employed in the organization of this district conformed to the rule announced and met the requirements of the statute. It is true, the lots belonging to appellees adjacent to Pine Street, between the points to be improved, were described as being in Neimeyer’s Addition to the City of Little Bock, Arkansas, and did not mention Wayman’s Addition to said city, but, according to the testimony, the same forty-acre tract was embraced in the two plats when filed for record. The alleys, streets, and block numbers are identical in each plat. The Neimeyer survey and plat adopted the Wayman survey and plat, with the one exception of cutting the lots owned by the Mercantile Trust Company in two so as to make them twenty-five instead of fifty feet wide. The Neimeyer plat overlapped the Wayman plat and covered the entire forty-acre tract covered by the Wayman plat. It is true that the “bill of assurance” attached to the Neimeyer plat only purports to be a re-plat of certain lots' and blocks of Wayman’s Addition, owned at the time by the Mercantile Trust Company, but the plat filed by it embraced all the property embraced in the Wayman plat and “bill of assurance” attached thereto. Since both plats described the identical property by thé same plat numbers, and since the alleys and streets are identical in both, the effect was to furnish two methods by which to identify and describe the blocks therein. The lots owned by appellees adjacent to Pine Street, between the points to be improved, appear on the recorded plat of each addition, hence a description of them by blocks, or parts of blocks, in either addition, was sufficient to put appellees on notice that their lots were included in the district. The decree therefore, invalidating the district and enjoining proceedings therein, is reversed, and appellees’ bill is dismissed for want of equity.

Justice Hart dissents.


author: McCulloch, C. J.

text:
    Shackleford v. State.
    Opinion delivered November 12, 1923.
    Homicide — erroneous instruction — harmless error. — While an instruction in a murder case that “if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought, or brought on, or voluntarily entered into, the difficulty with the deceased, with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed,” was incorrect in omitting to add the qualifications, unless defendant first endeavored, in good faith, to retire from the conflict, such error was harmless where there was no evidence that defendant attempted, in good faith, to retire from the conflict.

      Appeal from Nevada Circuit Court; James if. McCollum, Judge;
    affirmed.

      J. 8. Utley, Attorney General, and John, L. Carter, Assistant, for appellee.
   McCulloch, C. J.

The crime charged against appellant in the indictment was murder in the first degree, alleged to have been committed by killing J. D. Phillips, and, on the trial of the case, appellant was convicted of voluntary manslaughter, and his punishment was fixed at two years in the penitentiary.

No brief has been filed on behalf of the appellant, and it is only by an. examination of the motion for a new trial that we can determine the questions raised on the appeal. There is an assignment in the motion relating to the insufficiency of the evidence, and numerous assignments with respect to the-court’s charge to the jury; some of them are not of sufficient importance to discuss in this opinion. The evidence is sufficient to sustain the verdict.

Phillips lived at the village of Glenville, in the southeast part of Nevada County. He was a merchant, and was also postmaster at tliat place. Appellant also lived at Glenville, about one-fourth of a mile distant from Phillips’ store, and the killing occurred at appellant’s home, out in front of the gate, on the morning of May 21, 1923. There were no eye-witnesses -to the killing, but appellant admits that he fired the shot which killed Phillips, and he claims that he did so in necessary self-defense.

"When Phillips arose on the morning in question, he complained of feeling ill, and walked across the road to the store in his shirt-sleeves and opened up the store. Shortly afterwards two little girls, daughters of appellant, came to the store, and stated to Phillips that their father had requested him to come up to the latter’s house, and Phillips sent word by the -children that he could not, at that time, comply with the request. About ten minutes afterwards appellant -drove down to the store in a wagon and called Phillips out, and appellant asked Phillips to go with him up to his (appellant’s) house, saying at' the time that he had a proposition to make to Phillips. Phillips got into the wagon with appellant, and they drove off to appellant’s house, and in a few minutes the noise of a gunshot was heard. The persons who went up to the house found Phillips’ dead body lying on the ground. Pie had been shot through the neck. The body was about twenty feet from the gate, and the team of mules was standing near by, headed towards a large tree. One of the witnesses testified that at the foot of this tree there was a print on the ground of a gun-stock.

Phillips was, according to the testimony adduced by the State, unarmed at the time the killing occurred, and was in his shirt-sleeves.

Appellant testified as a witness on his own behalf, and stated that, about three weeks before the killing occurred, he was .informed by his wife that Phillips had made an indecent proposal to her, and that he accosted Phillips concerning the matter, and that the latter denied the charge. He stated that on the morning in question, a few minutes before he left home with his wagon, his wife told him that Phillips had repeated the proposals to her, and he testified that he went down to Phillips’ store and, after calling him out, stated to Phillips that he wanted the latter to accompany him to his home, as he had a proposition to submit to him concerning his wife, meaning that he wanted Phillips to confront his wife in regard to the charge against him of having made an indecent proposal to her. He stated that Phillips replied that he did not care to discuss the matter in the presence of his family, but would get into the wagon and drive up to the house with him. Appellant stated that, after they had got up to his house and they both got out of the wagon, he saw the print of a pistol in Phillips’ bosom, and that when he proposed to Phillips that they go into the house, Phillips replied, “No, we can settle it here,” and started to draw Ms pistol, whereupon appellant fired the shot that killed Phillips. He stated that, when,- he got out of the wagon, he took the gun into his ‘hand, as it was lying in the wagon, partially covered by a blanket, or robe. Appellant carried the mail between Grlenville and Stephens, and he testified that' he usually carried his shotgun on the trip. • '

The evidence warranted the jury in finding that Phillips was unarmed at the timé he' was killed, and that the killing was unjustified. It is unnecessary to discuss the testimony in further detail, or to attempt an analysis of it in demonstrating its probative force.

One of the assignments. of error set forth'in the motion for a new trial relates to the ruling of the court in permitting’the State to prove by witnesses that appellant’s girl's came down to the store on the morning in question with a message to Phillips from their father. Appellant Mmself testified that he sent the children down there with the message, so there could have been no prejudice to defendant in admitting the" testimony of other witnesses concerning the message delivered by the children to Phillips.. •

The court’s charge to the jury was very full, and covered the different grades of homicide, ■ the law of self-defense, and appropriate declarations on the subject of reasonable doubt. . ■ , ■

Many of the instructions requested by appellant’s counsel were given, some of them with slight modification, and the refused ones were mere repetitions of other instructions the court had given.

The court gave the following,' over appellant’s objection: . ■ • ■ . • •

“11. ' If you believe' from the evidence in this case, beyond a reasonable, doubt, that the .defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought or brought on or voluntarily entered into the difficulty with the deceased with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.”

This instruction was not a correct declaration of the law, in that it omitted the qualification that appellant must first have' endeavored in good faith to retire from the conflict; but this omission was not prejudicial, for the reason that there was no proof which justified a submission of that issue. Appellant’s sole contention was that Phillips assaulted him with a pistol, and that he fired the shot in necessary self-defense, and there was no phase of the evidence which would have warranted a finding that appellant, though the aggressor in the difficulty, attempted in good faith to retire.

Several of the instructions requested by appellant’s counsel on the subject of appearances of danger were modified by amendments incorporating the statement that appellant must have been acting without fault or carelessness. This modification was proper in order to make the instructions complete, and there was no error in this respect.

Several instructions were requested by appellant on the subject of reasonable doubt, but, as this subject was fully covered in the court’s charge, there was no error in refusing to give those asked.

Finding no error in the record, the judgment is affirmed.


text:
    Graham v. Drainage District No. 11.
    Opinion delivered November 12, 1923.
    1. Drains — appeal prom county court- — -filing transcript. — Under Crawford & Moses’ Digest, §§ 3583-4, regulating appeals from the county to the circuit court in drainage proceedings, the transcript should be filed in the latter court on or before the first day of the next term of court, and, if not filed by that time, it becomes a matter of discretion whether permission will be granted for it to be filed later.
    2. Courts — appeal from county court — filing transcript.— Where the county clerk fails to prepare a transcript on appeal to the circuit court, it is the duty of the party appealing to apply to the court, on the first day of the succeeding term, for an order to compel the clerk to prepare the transcript, and, upon his failure to make such application, he becomes liable for the additional delay.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      0. W. Scarborough and Gustave Jones, for appellant.
    The discretion of the court in dismissing an- appeal is not absolute, as the right of appeal is a constitutional right, and should not be lightly taken away. There is no statutory provision governing appeals in such cases. [Where there is a delay, after the first day of the term, in filing the transcript, it becomes a matter of discretion of the trial court whether or not the appeal can be prosecuted, and it should be dismissed, in the absence of satisfactory explanation of the delay. 115 Ark. 213. A satisfactory explanation was made of the delay here, and, further, the counsel for appellee allayed the fears of remonstrants as to lodging the appeal in time.

      Geo. A. Hillhouse and C. M. Erwin, for appellees.
    The court did not abuse its discretion in dismissing the appeal. The facts are strikingly similar to those in 115 Ark. 213. See also 110 Ark. 284.
   McCulloch, C. J.

Appellee is a drainage district organized by the county court of Jackson County, and appellants are owners of real property in the district. When the assessments of benefits were made and the list filed with the county court fo.r approval, appellants appeared and protested against the assessments. The cause was heard on the protest of appellants on May 22, 1922, by the county court, and judgment was rendered approving the assessments. This judgment was entered of record on June 5, 1922, whereupon appellants filed their-petition and affidavit for appeal, and an order was made on June 9 granting the appeal.' Appellants filed their bond on June 16, 1922, which was approved by the court.

The circuit court convened on September 11, 1922, and on October 2, 1922, which was the nineteenth day of the term, attorneys for appellee caused the transcript of the record in the county court to be filed, and moved to dismiss-the appeal' on account of the failure of appellants to file the transcript in due time. No transcript was filed until it’was-done by appellee at the time and for the purpose mentioned above. The court heard .the' motion,on oral testimony,'and-rendered a judgment dismissing the appeal,'from which am appeal has been prosecuted to this court, the testimony adduced at the hearing having been preserved by a bill of. exceptions. The statute under which the proceedings were conducted provides that the clerk of the county court£ £ shall make a complete transcript of the proceedings had before the county court and certify the same,-with all the original papers filed in his office, and file them in the office of the clerk of the circuit court within thirty days from the day of filing said bond1.” Crawford & Moses’ Digest, §3583. The statute further provides that the cause shall be docketed by the clerk of the circuit court, ££and said cause shall stand -for trial, and be-tried, as other-appeal cases are tried.in the circuit court.-”- Crawford & Moses’ Digest, § 3584. - .....

Without determining whether or not the statute regulating the time for filing a transcript is mandatory and constitutes a condition upon which the appeal may be prosecuted, -it is -necessarily implied that the transcript must at least'be filed-on or before the first day of the next'term of the circuit court, and, if not filed by that time, it becomes a matter of discretion with the circuit court whether or not permission will be granted for the transcript to be filed later. Briner v. Holleman, 115 Ark. 213. The exercise of the court’s discretion depends upon the circumstances of each case,' which might, or might not, afford excuse for delay, and, unless there is an abuse of discretion by the trial court, its decision will not be disturbed. Appellants undertook to prove circumstances and conduct on the part of the county clerk and his deputy and on the part of one of the attorneys for appellee which were sufficient to afford reasonable excuse for the delay. But there was a conflict in the testimony upon every issue presented.

According to 'the testimony of the clerk and his deputy, and the testimony of one of the attorneys for appellee, the fault was not with the clerk or his deputy or with the attorneys for appellee, but the delay was caused by the negligence of appellant’s attorneys.; The finding of the trial court upon an issue of fact is binding upon us, and we are not at liberty to disturb it.

Aside from any conflict in the testimony, and1 conceding that the clerk or his deputy was at fault in failing to prepare and file the transcript in apt time, it is apparent that counsel ‘for appellants haye, by failing to apply to the court in apt time to compel the clerk to file the transcript, put themselves in an attitude'where they were responsible for additional delay. Appellants could at least have applied to the court on the first day of the term for an order to compel the‘clerk to‘prepare the transcript, and, having failed to do so, they become responsible themselves for the additional delay. In re Barstow, 54 Ark. 551. Instead of applying to the court, they acquiesced in the further delay of nineteen days, and never filed any transcript at all.

It was contended in the trial below that one of the attorneys for -appellee expressly consented to the delay, and stated to appellant’s attorneys that any delay in filing the transcript on or before the first day would be waived1, hut there .is a conflict in* the. testimony on that point, and wé feelbbund by the finding of the trial court.

According to the facts which the court might have found from the evidence, and which we must assume were the basis of the court’s decision, there was no abuse of discretion in dismissing the appeal, so the judgment is affirmed.

Wood and Hart, JJ., dissented.


text:
    State v. Tyson.
    Opinion delivered November 12, 1923.
    1. Municipal corporations — town marshal — test op authority.— Under Crawford & Mcises’ Digest, § 10325, an action to test the right of an incumbent to hold the office of town marshal must be brought by the Attorney General, and not by the prosecuting attorney.
    2. Municipal corporations — town marshal — usurpation statute —parties.-—One whose right to the office of town marshal is challenged by the prosecuting attorney may question his right to bring such action, even though he acted in the name of the State.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    affirmed.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Harden Moose, Assistants, for -appellant; J. 8. Totvnsend, of counsel.
    The trial court improperly treated this action as -one under the usurpation act. Chap. 178, C. & M. Digest. Quo warranto is the proper remedy and the one consistently followed by this court. 1 Ark. 279; 3 Ark. 570; 44 Ark. 221; 81 Ark. 39; 94 Ark. 65. These decisions, based on the Constitution of 1836, are applicable now, since there is- no change in the present Constitution in the section applicable to this case. Quo warranto is the proper remedy to try the right to a public office of which there is a de facto incumbent. 22 R. C. L. 661, and cases cited. Section 10325, C. & M. Digest, is merely cumulative of the remedy under quo warranto. The logical conclusion is that the Legislature, in prescribing the duties of-a prosecuting attorney (§ 10327, C. & M. Digest) intended to fix all those less than district and State, since counties are merely civil subdivisions -of the State for political and judicial purposes, and it was not intended that the Attorney General be burdened with such matters. 32 Art. 15; 33 Ark. 497; 42 Ark. 54. The prosecuting attorney is required to commence and prosecute all actions within his district in which the State is a party. O. & M. Digest, § 8312; 85 Ark. 89. Officers must be qualified electors to hold office. 97 Ark. 225; 107 Ark. 274; 141 Ark. 115. The marshal of an incorporated town is an officer within the meaning of the law. 141 Ark. 115; note to 72 Am. Dec. 183-188.

      John H. Crawford and Dwight H. Crawford, for appellee.
    The prosecuting attorney proceeded without right. A town marshal is no more a county officer than is a director of a levee district, and the latter was expressly held not a county officer, in 84 Ark. 537. The test of who is a county officer was laid down in-3 Wall. 93, as one by whom the county performs its usual functions of government. Appellee was at least a rite facto officer (22 E. O..L. 593-597), and is not subject to be ousted by this sort of proceeding. 133 Ark. 516.
   McCulloch, C. J.

This is a proceeding instituted in the name of the State in the Clark Circuit Court by the prosecuting attorney of that district against appellee, challenging the right of appellee to exercise the duties of the office of marshal of the incorporated town of Gurdon, to which office appellee had been elected by the town council.

It is alleged in the petition that- appellee was not a resident of Clark County at the time of his election to said office nor since that time, but was, and is, á resident of Ouachita County, in this State.

The court sustained a demurrer to the complaint, and rendered judgment dismissing the action, from which judgment an appeal has been prosecuted to this court.

The court'based its decision-on the ground that the proceeding was necessarily one under the statute of this ■State ■ known - as the-.'usurpation-statute (Crawford) & Moses’ Digest, § 10325 et seq.)',-which provides, in substance, that, whenever a person usurps an office to which •he is hot entitled by law, “an áctioii by proceedings at ■law may be instituted against him,' either by the State or the party entitled to the office * * * to prevent the usurper from exercising the office.” The statute further-imposes upon the prosecuting attorney the duty of instituting the action “against all persons who have or shall usurp county offices' * * * where there is no other person entitled thereto, or the'person entitled fails to •institute-the same for thrée months -after the usurpation;” and that for. usurpation other than of county offices “the'action -by the State shall be instituted and prosecuted by the Attorney G-eneral. ”

It is earnestly contended by counsel for the State on this appeal that the trial court was in error in its theory that this case .must be classed as one within the usurpation'statute, and it is argued that the common-law remedy of'information in the nature of quo warranto is independent of the statute and may be pursued, notwithstanding the statute. This court has decided to the contrary. _ In Wheat v. Smith, 50 Ark. 266, the court, speaking through Chief Justice Cooi-auim, concerning the usurpation statute, said: “It is necessary to recur to the object of' the act to determine by and against whom an action under it may be maintained. The remedy being 'a substitute for and a modification of the proceeding by information in the nature of quo warranto, we may look to that proceeding to determine its character.” The ■decision'in that case was to the effect that the common-law remedy had been displaced by the usurpation-statute to the extent' that it applied, but that the later provisions tof ’the- -Constitution of this State-fixing-the-jurisdiction lO.f do.urts in contested election cases repealed the usurpation nstatu-fe Jo; that extent. In-later cases (Payne v. Rittman, 66 Ark. 201; Whittaker v. Watson, 68 Ark. 555) it was decided that contests over municipal offices were within the usurpation statute, for the reason that they were not county offices within the meaning of the Constitution. It results therefore that this action challenging the right of appellee to hold the office of town marshal comes within the usurpation statute and must be governed by its terms.

The remaining question in the case is whether or not the action may be, instituted by the prosecuting attorney. The statute quoted above provides that the prosecuting attorney may only bring such actions against persons who usurp county offices. We held in State v. Higginbotham, 84 Ark. 537, that such an action could not be brought by the prosecuting attorney against any officer except a county officer, adopting the definition given by the Supreme Court of the United States in Sheboygan County v. Parker, 3 Wall. 93, that “an officer of the county is an officer by whom the county performs its usual functions; its functions of government.” 'The decisions .cited, supra (Payne v. Rittman; Whittaker v. Watson), are décisive that municipal officers -are not county officers within the meaning of the usurpation statute, so the action could not be brought- by the prosecuting attorney. The circuit -court has jurisdiction in, such actions (State v. Sams, 81 Ark. 39), but, except in the casé of county officers, suit must be instituted by the Attorney General. Appellee had the right to challenge the authority of the prosecuting attorney, even though he acted in the name of the -State. And since it appears that the- action was instituted without legal authority, the circuit court was -correct in dismissing the complaint.

• Affirmed. . -


author: Wood, J.

text:
    Anderson v. State.
    Opinion delivered November 12, 1923.
    1. Intoxicating liquors — evidence.—Evidence held to warrant a finding that defendant was guilty of procuring intoxicating liquor for another.
    2. Intoxicating liquors — instruction.—Where defendant was accused of selling intoxicating liquor and also of procuring same for another, it was not error to refuse an instruction that defendant would not be guilty if he merely aided the purchaser in buying the liquor, as the instruction ignored the charge of procuring liquor for another.
    3. Criminal law — harmless error. — Where, in a prosecution for selling liquor and for procuring liquor for another, the verdict eliminated the charge of a sale, the rulings of the court must be tested solely in the light of the testimony and instructions of the court on the latter charge.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      John, A. Kibbler and W. R. F. Paine, for appellant. J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

The appellant was indicted for the crime of selling intoxicating liquor, and also for the crime of procuring intoxicating liquor. He was tried for both offenses and convicted of the crime of procuring intoxicating liquor, and was fined in the sum of $500.

The testimony adduced by the State was to the effect that O. D. Knapp, a prohibition agent, had received information that appellant was selling whiskey. Knapp and another agent went over to appellant’s barber shop in North Little Rock. Knapp went in and asked appellant if he could get some whiskey. Appellant said he didn’t have any. Appellant and another negro were playing poker at a nickel ante. Knapp thought if he ■ could get in the game with them he would gain appellant’s confidence and get him to sell him some whiskey. Knapp got in the game and played two or three minutes, when the appellant asked him how much whiskey he wanted. Knapp told him that he wanted a pint. Appellant told another negro to go somewhere and get the whiskey. Appellant asked Knapp about the money, and Knapp asked to whom he should give the money, and appellant replied that he was responsible for everything that happened in the shop. Knapp gave him a five-dollar bill. The negro he had told to get the whiskey went out and was gone a few minutes, and came back and said that he could not get any. Appellant then told another negro to get it. That negro went out and came back without it. Appellant took that negro and walked out, was gone about a minute, and came back with another negro right behind him, who set the whiskey down on the table. At first the appellant got mad when they didn’t bring it in. "When it was brought in one of the negroes took a drink. Appellant gave Knapp $2.50 out of the five-dollar bill. Knapp didn’t see appellant give any of the negroes any of the money when they went out after the whiskey. Knapp gave the appellant the money, and appellant didn’t give it to any of the negroes. Knapp had the whiskey analyzed by some of the government chemists, and it was moonshine whiskey. Knapp and some other officers made a search of appellant’s premises that afternoon, and found sixteen empty pint bottles and a gallon jug that had contained whiskey, in drawers and other places. The large tall negro who brought in the whiskey was not there. Knapp asked the appellant the name of the negro, and appellant refused to tell, stating that it was his business; told Knapp that, if he wanted to know, to find out. They thereupon arrested the appellant.

Appellant testified in his own behalf, and his testimony as to the circumstances did not differ materially from the testimony of witnesses for the State, except that appellant stated that he told Knapp that he would send and get him some whiskey if he would tell appellant where to get it. Knapp put down a five-dollar bill and asked for change. Appellant put four one-dollar bills and two halves on the table, and the other negro reached for it and went out. When the whiskey came back that Knapp had sent for, they took a drink. Appellant told Knapp that he would give him $1 for what he had left in the bottle. Knapp came back that afternoon and asked appellant for “Big Boy.” Appellant told him he didn’t know where he was, and they then arrested appellant for selling whiskey. Knapp admitted there that he sent the fellow himself for the whiskey. Appellant stated that he did not .see any empty bottles in his place. They stated that they had found empty bottles in the back. “Big Boy” brought in the whiskey. Appellant was not interested in him. Appellant wanted a drink, and “Big Boy” volunteered to go for it, after the first man couldn’t get it.

The court instructed the jury on both counts of the indictment. The appellant excepted to the instructions of the court based on the charge of selling liquor, but, as the jury acquitted appellant of that charge, it is unnecessary to set out and comment on the instructions.

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

“No. 1. The jury are instructed that one who assists in buying intoxicating liquors, and confines his participation in the transaction exclusively to the buying, and not to the selling, is not guilty of any offense. And if you find that the defendant acted solely as the agent or messenger of the purchaser, and did not in any manner assist the seller, if you find there was a sale, and that he had no pecuniary or other interest in the sale, he would not be guilty under the law, or, in other words, if the defendant’s interest, if any, was solely in the purchase, and his efforts, if any, were directed solely to the buying or aiding in tlie purchase, if you find there was a purchase, then you will find him not guilty.”

The court refused the above prayer, and the appellant duly excepted to the ruling of the court..

The court, among other instructions, gave the following : - '

“No. 2. Defendant is charged in the second count of the indictment with the offense of procuring liquor for another, which is a misdemeanor, the punishment for which is a fine of not less than one hundred dollars nor more than five hundred dollars. If you find in this case that the defendant had nothing to do with the sale of liquor as principal or as agent, and got none of the proceeds of the sale, if any, and was not interested in the same except as a matter of accommodation for the purchaser, and acted solely and entirely for the purchaser, the witness Knapp, and did not in any way, either directly or indirectly, act as principal or agent of the seller, and was not interested in the sale of it, if you find this beyond a reasonable doubt, then convict him of the misdemeanor and fix the punishment as indicated.”

The appellant did not except to the giving of this instruction.

1. The appellant contends that there was no evidence to sustain the verdict, but we are convinced that the testimony, as above set forth, was sufficient to warrant the jury in finding that appellant procured liquor for another.

2. Appellant contends that the court erred in refusing his prayer for instruction No. 1, supra, and in granting instruction No. 2, supra. The court did not err in refusing to grant appellant’s prayer. It was based on the theory that the transaction was the purchase and sale of liquor, and that, if appellant’s efforts were directed solely to aiding the purchaser in buying, then the jury should find appellant not guilty. The vice of the instruction is that it confined the inquiry to. the first count of the indictment. It ignored entirely the charge in the second count and the testimony which warranted a finding that the appellant procured whiskey for another. Besides, the court covered the theory advanced by the appellant in instruction No. 2. While this instruction was a peremptory instruction to find appellant guilty on the second count in the indictment, if the jury found that he had nothing to do with the sale and did not in any way, either directly or indirectly, act as principal or agent of the seller, and was not interested in the sale, nevertheless appellant did not object to the instruction in this form. Appellant seemed to have grounded his defense solely on the notion that what he did was only as an accommodation or friendly assistance to Knapp as the purchaser, and not in any manner to aid the seller, and that therefore he was not guilty, relying on those cases wherein we hold that where one is-charged with the crime of selling intoxicating liquor, he cannot he convicted where the proof only shows that he did not participate, and was not interested, in the sale, and took no part therein except to purchase for himself or to act solely for the buyer. Foster v. State, 45 Ark. 361; Whitmore v. State, 72 Ark. 14; Dale v. State, 90 Ark. 579; Phoenix v. State, 90 Ark. 589; Wood v. State, 114 Ark. 391; Payne v. State, 124 Ark. 20; Ellis v. State, 133 Ark. 542; Sneed v. State, 134 Ark. 303. But the doctrine of those cases has no application whatever in a case like this, where the appellant is charged and convicted of the crime of unlawfully procuring and purchasing intoxicating liquor, under § 6163 of Crawford & Moses’ Digest. The verdict of the jury has eliminated the charge of selling intoxicating liquor. Therefore the rulings of the court must he tested solely in the liglit of the testimony adduced and the instructions of the court on the charge of unlawfully procuring intoxicating liquor. When viewed in this light, we find no reversible error in any of the rulings of the trial court.

Tlie judgment is affirmed.


author: Hart, J.,

text:
    Federal Grain Company v. Hayes Grain & Commission Company.
    Opinion delivered November 12, 1923.
    Sales — fraud in grading oats.- — Where. seller sold No. 3 oats, “Kansas City grades and weights,” to buyer, and they were graded at Kansas City by a licensed State grain inspector as No. 3 oats, hut were graded as No. 4 oats by a Federal grain inspector at destination, and seller’s testimony showed that the Kansas City inspection was honestly and correctly made, and no bad faith could be imputed to it, it was error to instruct that, if the grade fixed at Kansas City upon the oats involved in this lawsuit was so erroneous or so far from the true grade as to be the result of a gross mistake, the verdict should be for the buyer; as the Kansas City grading could not he questioned unless the mistake amounted to fraud or bad faith.
    Appeal from Pulasld Circuit Court, Second Division; R. M. Mawm, Judge;
    reversed.
    STATEMENT OF FACTS. ’
    Tbe Iiayes Grain & Commission Company brought suit against the Federal Grain Company for damages for the breach of a written contract of -sale of three cars of oats by the defendant to the plaintiff.
    The plaintiff is a domestic corporation engaged' in selling grain in Little Rock, Ark., and the defendant is a corporation engaged in selling grain at wholesale in Kansas City, Mo. The plaintiffs purchased from the defendant three cars of oats, which were shipped to it from Kansas City, Mo., by the defendant, and received by it at Little Rock, Ark. The oats were -shipped with sight draft attached to the bill of lading. The plaintiff paid the draft, and says that it discovered later that the oats were of a grade inferior to the oats purchased, and, in aid of a suit for damages for breach of contract, it attached a car of oats belonging to the defendant at Little Rock, Ark.
    The defendant denied liability, and claimed that the oats were of the grade that the contract called for. The contract is as follows:

      “Federal Grain Company No. S539.
    “Kansas City, Mo., March. 29, 1921.
    “To Hayes Grain and Commission Co.,
    “Little Boot, Ark.
    “We confirm sale to yon by Farmer Wilson Company of three 60 cap. cars No. 3 white oats at 48% cents per bn. C. A. F. Little Bock, Kansas City grades and weights, loaded shipment Omaha, Mo. Pac. tonnage, bill to Little Bock. Demand draft. Js: I. M.
    “This contract is subject in all respects to the customs, rules and regulations of the Kansas City Board of Trade. Also subject to delay on account of strikes, riots, civil commotion, the elements, embargoes, inability to secure cars or shipping permits, and any other cause over which we have no control.
    “Margin agreement as set forth on the back of this confirmation (or contract) is made a part hereof.
    “Federal Grain Company, “E. & O. E. By (Signed).”
    According to the testimony for the plaintiff, one of its representatives discovered that the oats were not of the grade contracted for, and immediately wired the Federal Grain Company to that effect. The plaintiff then had the oats inspected by the Little Bock official Federal inspector, and he graded them No. 4 white. Oats of this grade were not worth more than 43. cents per bushel, which caused1 a loss to the plaintiff of 5% cents per bushel on the cars of oats.
    The plaintiff also testified as to the number of bushels of oats in the three cars. The oats were inspected at Little Bock for the plaintiff by John F. Miller, licensed grain inspector, and working under the regulations of the Secretary of Agriculture of the United’ States. He said that he was' an experienced grader, and had carefully graded-the three cars of oats by taking samples from them in the usual way. The oats were not Nó. 3 white oats, but only graded No. 4 white oats, which is an inferior grade.
    John Starlc was a witness for the defendant. According to his testimony, he was employed by the Federal Grain Company, and bought the three cgrs of oats in controversy on the floor of the Kansas City Board of Trade and sold them to the plaintiff. They were No. 3 white oats. They were graded by Edward H. Correll, who was a licensed grain inspector at Kansas City, Mo., and was paid1 by the Missouri State Grain Inspection Department. According to the testimony of this inspector, he graded the oats .at Kansas City, Mo., in the usual and customary manner. All three cars were correctly graded by him as No. 3 white oats. The grading was done just before the oats were shipped from Kansas City, Mo., by the defendant, to the plaintiff at Little Bock, Ark.
    The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has appealed.

      Gray, Burrow & MóBovmell, for appellant.
    An agreement by contracting parties to abide by the decision of a third person is binding upon the parties, except by showing fraud or gross mistake. 83 Ark. 136; 88 Ark. 213; 88 Ark. 567; 114 U. S. 549; 48 Ark. 522; 68 Ark. 185; 79 Ark. 506; 156 Pac. 443; 155 Pac. 1044; 221 Fed. 612; 139 Pac. 671; 167 Cal. 274; 106 Mass. 373; 71 Mo. 149; 101 Pac. 308; 155 Cal. 419; 108 111. App. 248; 66 S. E. 294; 147 N. W. 456; 106 S. W. 930; 68 S. ¡W. 581; 79 Mo. App. 465. The court erred in permitting witnesses Cameron and Miller to testify concerning the inspection and grade of grain at. Little Bock. 83 Ark. 136; 88 Ark. 213; 48 Ark. 522; 68 Ark. 185; 79 Ark. 506; 114 U. S. 549. The court erred in giving plaintiff’s instruction No. 1, which permitted a recovery on the mere fiilding of a mistake. 48 Ark. 522. It also erred in modifying and giving instruction No. 2, which permitted the jury to disregard the question of good faith. The evidence was not sufficient to support a verdict for dam-

      Price Shofner, for appellee.
   Hart, J.,

(after stating the facts). The main reliance for a reversal of the judgment by counsel for the defendant is that the court erred in giving instruction No. 1 at the request of the plaintiff. The instruction is as follows:

“No. 1. If you believe from the evidence that the grade fixed at Kansas City upon the oats involved in this lawsuit was so erroneous or so far from the true grade as to be the result of a gross mistake, your verdict will be for the plaintiff.”

It will be noted by reading the contract, which we have copied in our statement of facts, that the parties have agreed upon an inspection at Kansas City, Mo., on the grades and the weights. According to the terms of the contract, when that inspection determined that the oats were of the quality ordered, the plaintiff became bound by its agreement to áceept and pay for them at Little Bock, Ark.

Counsel for the defendant claimed that the instruction was erroneous because the mistake which will justify an impeachment of the grain inspector’s decision is not mere error of judgment, but is the kind of mistake which amounts to fraud. They rely upon the-principles of law decided by this court in the following cases: Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Carlile v. Corrigan, 83 Ark. 136, and Lanier v. Little Rock Cooperage Co., 88 Ark. 557, and other cases of like character.

In the first cited ease it was held that, where parties agree that all questions relating to the quality, quantity or manner of construction of work to be done shall be decided by an engineer in charge of the work, and that his decision shall be final and conclusive, his decision cannot be questioned by either party except for fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. The court said that the instructions were misleading and prejudicial because they did not tell the jury that the errors or mistakes which would avoid the decisions or estimates of the engineer must have been so gross or of such nature as necessarily implied bad faith upon the part of the engineer.

In the application of this principle in the second case cited, the court said that the same rule would apply in case of an agreement for scaling lumber, and held that the correctness of the scaling may be impeached by cor-. rect scaling elsewhere, but that evidence must be sufficient to show fraud or such gross mistake as would1 necessarily imply bad faith or a failure to exercise an honest judgment.

The instruction under consideration is erroneous and prejudicial because it fails to tell the piry that the mistake must be of such a character as to show fraud or bad faith in the inspection of the grain. The omission of the court in this respect is emphasized by instruction No. 2, which was asked by the defendant and given as modified by the court. The instruction as modified is as follows:

“You are instructed that the burden of proof is upon the plaintiff in this case; that is to say, it must establish the allegations of its complaint by a preponderance of the evidence; and that, even though you may find that the oats in question were by mistake graded by the inspector at Kansas City as No. 3 white oats, nevertheless, unless you further find from a preponderance of the evidence that said oats were No. 4 white oats, and that the said inspector by mistake misgrad'ed said oats as No. 3 white oats, then your verdict must be for the defendant.”

The modification of the instruction by the court consisted in eliminating from it the submission of fraud or bad faith of the inspector at Kansas City in grading the oats. The error thus committed was material and must be considered as ground for reversal because, under the testimony for the defendant, the inspection at Kansas City was honestly and correctly made. According to the testimony of the defendant, the inspection was correctly made under the contract, and no bad faith could be imputed to it in any respect whatever.

In view of another trial, we do not pass upon the legal, sufficiency of the evidence to support a verdict for the plaintiff.

For the error in giving instruction No. 1 for the plaintiff and in giving instruction No. 2, as modified, the judgment will be reversed, and1 the cause remanded for a new trial.


author: Hart, J. J.

text:
    State v. Townsend.
    Opinion delivered November 12, 1923.
    1. Forcible entry and detainer — possession op dwelling without authority. — In a prosecution for taking and holding possession of a dwelling house without the owner’s authority, in violation of Crawford & Moses’ Digest, § 4836, the question whether the defendant took possession of the house on behalf of his son, against whom a judgment in unlawful detainer had been rendered, for the purpose of obstructing process against the son, or had taken possession in his own right as tenant of the owner, with the owner’s acquiescence, subsequent to the rendition of such judgment, held for the jury.
    2. Forcible entry and detainer — obstructing process. — One who takes possession of land after rendition of judgment against tenant in unlawful detainer action, for the purpose of obstructing 1 process against such tenant, is guilty of violating Crawford & Moses’ Digest, § 4836, making it a misdemeanor to take possession of land without the owner’s authority.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    affirmed.
    • J. 8. TJtley, Attorney General, Jno. L. Carter, Wm. T. Hammock and Darden Moose, Assistants, and John H. Crawford, for appellant.

      J. 8. Townsend, for appellee.
   Hart, J. J.

S. Townsend was tried before a jury and acquitted1 of a misdemeanor, charged to have been committed by taking and holding possession of a dwelling-house of Mrs. Mae Anderson in G-urdon, Ark., without the authority of herself or her agent. The penalty for a violation of the statute is a fine or not less than ten nor more than one hundred dollars. Crawford & Moses’ Digest, § 4836.

Among other instructions the court gave the following: “Unless you do find from the evidence beyond a reasonable doubt that the defendant did forcibly take possession of this dwelling-house without authority from the owner or agent of same, then you will give him the benefit of the doubt .and acquit him. ’ ’

No objection was made to the form of this instruction, and this appeal is prosecuted by the State on the theory that there was no evidence in the court below upon which to base the instruction, and that, inasmuch as no punishment by imprisonment is provided by - the statute, the undisputed testimony warranted a peremptory instruction in favor of the State.

We do not agree with counsel for the State that the undisputed facts justified an instructed verdict for the State. Of course, the evidence adduced by the State warranted a verdict in its favor. It appears from the evidence for the State that Fleming Townsend first rented the -dwelling-house in question from Mrs. Mae Anderson and occupied it with his family. The dwelling-house is situated in Gurdon, Clark County, Ark. Some time after Fleming Townsend moved into the hoq.se his father, J. S. Townsend, came to live with him. The rental value of the house was $20 per month. Fleming Townsend failed or refused to pay the rent, and a suit of unlawful detainer was brought against him, after notice was given to vacate the premises. There was a judgment in this suit in the circuit court against him in favor of Mrs. Mae Anderson. A writ of possession was duly issued and served by the sheriff of Clark County by removing certain household1 goods from the dwelling-house, there being no person in actual possession at the time. After the household' goods had been removed from the dwelling-house, J. S. Townsend, the father of Fleming Townsend, unlawfully took possession of the dwelling-house and replaced the household goods which the sheriff had removed therefrom. The sheriff demanded possession of the house from J. S. Townsend, and he refused to give possession, and threatened to hold possession by force. Later in the day, however, he surrendered possession of the premises to the sheriff.

J. S. Townsend was a witness for himself. According to his testimony, Fleming Townsend got behind with the rent for one month, and Mrs. Mae Anderson claimed that he owed for another month. J. S. Townsend paid $20 on the rent for his son, and said that he would look the .matter up and pay the other month claimed if it was due. At the time this dispute arose Fleming Townsend had not been in possession of the house for four months. All the furniture in the house belonged to J. S. Townsend. Mrs. Anderson knew that J. S. Townsend was renting the house and paying the rent at this time.

Again, J. S. Townsend testified that he had the keys to the house, and unlocked it and placed his household effects back in the house, because they had been put out in the street in his absence, and everything that he had. was in the street. Townsend knew that there was a suit by Mrs. Anderson against his son for unlawful detainer, and represented his son in that case. J. S. Townsend was asked the -direct question if he was representing himself when he went into possession of the house after the judgment was obtained against his son for the possession of the same, and testified that he was representing himself. He was asked again if he did not move in in order to hold possession for Fleming Townsend, and' replied “No.” He testified that he had got possession of the house some time before the suit in unlawful detainer had been brought against his son by Mrs. Anderson, and that his son boarded with him thereafter. He specifically testified that he took possession with the acquiescence of Mrs. Mae Anderson, six months before the suit in unlawful detainer against his son was filed.

The testimony of J. S. Townsend is very lengthy and somewhat rambling, but it is fairly and legally inferable from the substance of it, which we have set out above, that he took possession of the house in question, with the acquiescence of Mrs. Mae Anderson, before she brought the suit of unlawful detainer against his son.

It is also legally inferable from his testimony that he did not place his household goods back in the house for the purpose of obstructing the officers in the service of the writ of possession against his son, or for the purpose of aiding his son in holding possession of the premises. He stated that he was representing himself in the matter. The household goods belonged to him, and he put them back in an endeavor to hold possession of the dwelling-house for himself.

It is true that the jury might have inferred that he was acting for his son in the premises, but the testimony is not conclusive to that effect. If J. S. Townsend had acted in the matter in the interest of his' son, the circumstances as shown by the State would have warranted the jury in finding that he was a privy to the judgment in unlawful detainer against his son in favor of Mrs. Anderson, within the rule announced in Souffront v. Compagnie des Sucreries, 217 U. S. 475.

On the other hand, his testimony that he had been in possession of the house before the judgment in the unlawful detainer case was rendered, with the acquiescence of .Mrs. Anderson, and that he placed his household goods back in the house as representing himself and not his son, would warrant the jury in acquitting him, under the rule announced’ in Boykin v. Jones, 67 Ark. 571.

In that case it was held that, where the land owned by a husband was sold for taxes, and purchased by his wife from the assignee of the tax title, she was not affected by the pendency of a suit to recover the land from the husband, since her title was in opposition to his. Under the rule announced in that case, if the defendant had taken possession of the house for the purpose of obstructing the process against his son, he would have been guilty.

On the other hand1, as above stated, his evidence as to his possession warranted the jury in finding that he took possession of the house under his own claim, and not for the purpose of aiding his son to recover possession of it.

The jury acquitted the defendant, and was warranted in doing so, on the theory that J. S. Townsend was not a party to the- unlawful detainer suit against his -son, and took possession of the house, after the judgment in that case was rendered, in his own right as a tenant of Mrs. Anderson.

It follows that the judgment of the circuit court must be affirmed.


author: Smith, J.

text:
    Dickerson v. State.
    Opinion delivered November 12, 1923.
    1. Intoxicating liquors — allegation of intent. — -An indictment charging that defendant “unlawfully, maliciously and feloniously did make mash, wort and wash fit for distillation and manufacture of alcoholic liquor,” sufficiently alleges the intent with which the mash, wort or wash was made, under General Acts 1921, p. 372, § 1; “fit for” meaning intended for.
    2. Indictment and information — meaning of statutory language. —Language of an indictment for a statutory offense will be construed as having been used in the sense in which the statute has been defined by the Supreme Court.
    3. Grand jury — qualifications of jurors. — Under Crawford & Moses’ Digest, § 3030, providing that “no indictment shall be void or voidable because any of the grand jury failed to possess any of the qualifications required by law,” held that an indictment will not be quashed because two women were members of the grand jury, even if there was any doubt as to the eligibility of women to serve on juries.

      4. Jury — right to full panel. — Accused’s right to a full panel of 24 jurors to select from is waived where he did not request a drawn jury.
    5. Criminal law — sufficiency of evidence to support verdict.— In determining the sufficiency of evidence to support a verdict, that tending to support it must be given its highest probative value.
    6. Intoxicating liquors — making mash — evidence.—Evidence held to sustain conviction for making mash fit for distillation.

      7. Criminal law — instruction on circumstantial evidence. — -In a prosecution for making mash, an instruction given by the court which stated that such evidence, when sufficient to “satisfy the mind of the jury, beyond a reasonable doubt, is legal and competent evidence on which to base a conviction, regardless of the nature of the crime or the extent of the punishment,” but that, to justify conviction on circumstantial evidence above, “the circumstances must be consistent with each other and inconsistent with any other reasonable hypothesis, except that the defendant is guilty,” held not argumentative or a charge on the facts.
    8. Criminal law — abstract instruction — -harmless error. — In a ’ prosecution for making mash fit for distillation, an instruction that “if some one else made the mash alleged in the indictment for” defendant “by his direction or consent,” then defendant would- he held to haye made it, though erroneous as being abstract, held not prejudicial where defendant was not charged as an accessory, and where it was undisputed that no one else had anything to do with making the mash. »
    9. Intoxicating liquors — refusal of instruction defining “mash, WASH OR WORT.” — In a prosecution for manufacturing “mash, wash or wort fit for distillation,” where all the witnesses -referred to the concoction as “mash,” and no testimony related to “wash” or “wort,” it was not error to refuse to instruct the jury as to the meaning of the three words, “mash, wash or wort.”
    Appeal from -Sebastián Circuit -Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.
    P. H. Dickerson, for appellant.

      J. 8. TJtley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was tried and convicted under an indictment which charged that he “unlawfully, wilfully and feloniously did make mash, wort and wash fit for the distillation and manufacture of alcoholic liquor, the said P. H. Dickerson not being a person authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic or spirits for other than beverage purposes.”

It is first insisted that the demurrer to the indictment should have been sustained because the indictment does not allege the intent with which the mash, wort or wash was made. It will be observed1 that the indictment substantially follows the language of .the statute, and it sufficiently apprised the accused of the offense with which he was charged. The indictment charges that the mash, wort or wash was fit for the distillation and the manufacture of alcoholic liquor, and this is made a . crime by § 1 of act 324 of the Acts of 1921 (General Acts 1921, p. 372).

The phrase, “fit for,” which is copied in the indictment from the statute, has been defined as meaning “intended for,” in the cases of Logan v. State, 150 Ark. 486 and Milliner v. State, 154 Ark. 608, and the indictment will, of course, be construed as using the phrase as we have defined it.

A motion to quash the indictment was filed upon the ground that it was returned by an illegally constituted grand jury, in that two women were members thereof. It is by statute expressly provided that “no indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law.” Section 3030, C. & M. Digest.

In the very recent case of St. Clair v. State, 160 Ark. 170, we said: ‘ There was a motion in each case to quash the indictment on the ground that one of the grand jurors failed to possess the necessary qualifications in that he was not a citizen and elector of the State. The statute precludes an inquiry into that question for the purpose of quashing an indictment. Crawford & Moses’ Digest, § 3030; Calloway v. State, 120 Ark. 204; Borland v. State, 158 Ark. 37.”

The statute precludes any consideration of the question of- the competency of the grand jurors, if there was In fact any doubt about tbe eligibility of women to serve on juries.

It is assigned as error tbat appellant was denied a full panel of jurors from wbicb to select tbe jury. As a matter of fact, as is reflected by tbe record, there were twenty-four jurors in tbe box when tbe trial began, but, before tbe examination of the jurors on their voir dire began, the court excused one of them on tbe ground that be bad been a member of the grand jury which returned tbe indictment. However, a drawn jury was not requested, and tbe right thereto must therefore be held to have been waived, and, in the very recent case of Bohannon v. State, 160 Ark. 431, we held tbat tbe accused’s right to be confronted with a full panel of twenty-four jurors is only accorded when a drawn jury is not waived.

It is earnestly insisted tbat tbe testimony is insufficient to support tbe verdict, and tbat such circumstances as tended to incriminate tbe accused Were so fully explained that it was arbitrary for tbe jury to disr regard tbe explanation.

It may be said tbat tbe. defendant offered explanations of tbe State’s testimony, which, if accepted as true, did show tbat he was not guilty of tbe crime charged; but it was tbe province of tbe jury to pass upon this testimony and to discard such portions of it as were not credited. In passing upon tbe question of tbe legal sufficiency of the testimony to support tbe jury’s verdict we must, of course, give to the evidence wbicb tends to support tbe verdict its highest probative value.

The testimony offered by tbe State was to tbe effect that, when the appellant was arrested, be bad three pint bottles of whiskey on bis person. That a search of bis house was made, and a ten or fifteen-gallon keg' was found, about two-thirds full of fermented1 mash, which, upon being analyzed by a chemist, was found to contain, by volume, 14.75 per cent, alcohol, and tbe officers who made the search testified tbat they were familiar with the mash used in mailing whiskey, and tbat the mash found at appellant’s home could have been so used, and that it had gone through a process of fermentation which precedes the distillation of the mash into whiskey. That the mash was composed of corn, raisins, sugar, yeast and water. This keg was found in an unfinished part of the house upstairs that was dark, and the officers found a coil in another room in appellant’s house upstairs, and some grain in a pan which had soured. They also found some barley and a couple of boilers and a small bottle, which the officers took to be coloring matter.

Appellant, as a witness' in his own behalf, testified1 that he knew how whiskey was made, and that whiskey could not have been made with the utensils found at his house, for the reason that they could not confine the vapor or steam generated by boiling the mash, thereby compelling its condensation.

The articles found by the officers were not all found in the same place, and we do not know whether, when put together, they would have made a still with which whiskey could be manufactured; but this was a question for the jury. We cannot say that 'the jury might not have believed that the officers failed1 to find some part of the mechanism, or that it would have been arbitrary for the jury to have so found.

It will be remembered that appellant was not indicted for possessing a still, and the purpose of this testimony was to show the intended use of the mash; and we have concluded that the testimony is legally sufficient to support the finding that appellant had made a mash fit for distillation and the manufacture' of alcoholic liquor, as charged in the indictment.

Over appellant’s objection the court gave an instruction numbered 2, reading as follows: “2. A part of the evidence upon which the State relies for a conviction is what is called circumstantial evidence. Circumstantial evidence is evidence not of the main facts in issue, for instance, not evidence that a man was seen to shoot another, but evidence of circumstances from which the main facts may be inferred. Circumstantial evidence, when it is sufficient to satisfy the rules of law governing its use, and to satisfy the mind of the jury beyond a reasonable doubt, is legal and competent evidence upon which to base a conviction, regardless of the nature of the crime or the extent of the punishment. To justify a conviction upon circumstantial evidence alone, the circumstances must be consistent with each other, and inconsistent with any other reasonable hypothesis, except that the defendant is guilty.”

It is objected that this instruction is argumentative and was a charge on the facts, in that the jury was told that the production of the different bits of evidence had probative value tending to prove appellant was guilty. We think, however, the instruction is not open to either objection. On the contrary, it contained a definition of circumstantial evidence through an illustration, and when the jury was told, as was done here, that, to justify a conviction upon circumstantial evidence alone, the circumstances must be consistent with each other and inconsistent with any other reasonable theory or hypothesis except that the defendant is guilty, we think, no prejudice could have arisen.

Over appellant’s objection the court gave an instruction numbered 3, reading’ as follows: “3. The court tells you as a matter of law, if some one else made the mash alleged in the indictment for P. H. Dickerson, by his direction or consent, if such mash was made, then defendant Dickerson would be held to have made it.”

Appellant says in his brief that the instruction is not questioned as a proposition of law, but that it is abstract and misleading, as there is no testimony that any other person had anything to do with making the mash, so-called, except himself.

We think the instruction is not correct as an abstract proposition of law, because appellant is indicted as a principal and not as an accessory, yet, under this instruction, he might have been convicted, although he neither made the mash himself nor stood by and aided, abetted or assisted some one else to make it. Wood v. State, 157 Ark. 503.

But we think no prejudice arose from this instruction because, as appellant says, the testimony is undisputed that no one else had anything to do with making the mash, whatever it was. The keg containing the mash was found in an unfinished room in appellant’s house, and he did testify that his wife’s niece and her husband! had rooms upstairs in his house for a short time, but the time during which they were at his house extended, as he testified, from about the 20th of April until the last of May, and the mash was not found until June 8, and thereafter no one else lived with appellant, and the officers testified that the mash had been made for only a few days; so that it stands undisputed, if not admitted, that no one except appellant put the ingredients in the keg which were found therein. As has been said, appellant denied there were any raisins in the keg; but this was one of the disputed questions of fact in the case.

Appellant asked the court to define the words “mash, wash and wort,” but the court declined to do so, and appellant thereafter presented instructions defining those words, and the court refused to give them. Thereupon counsel for appellant said: “I want to save a specific objection to the submission to the jury the question whether the defendant made wort or wash fit for distillation, as there is no testimony in this case upon which a verdict could be returned that the defendant made wort or wash, as neither one of these was mentioned in the testimony of any of the witnesses, the only thing mentioned in the testimony being that he made mash. ’ ’

It does appear that no witness testified that appellant made wort or wash, andthat all the witnesses referred to the concoction found as “mash,” and, there being no testimony that wort or wash had been made, it was not proper to submit that question to the jury. The court, however, sent the case to the jury on an instruction which told the jury to acquit appellant unless they found beyond a reasonable doubt that he had made mash fit for distillation. This instruction is as follows:

“2. The jury are instructed as a matter of law that the defendant had a right to have intoxicating liquor in his private residence, and, if you find that he did have such liquors in his private residence, you will acquit the defendant, unless you find beyond a reasonable doubt that the defendant made mash intended for.the distillation of intoxicating liquors; and mere possession of mash would not authorize the jury to convict the defendant on this charge.”

A number of other errors are assigned and! are referred to in the brief of appellant, but they relate to matters which have heretofore been decided adversely to appellant’s contention.

No error appearing, the judgment is affirmed.