text:
    Arkansas Power & Light Company v. Cummins.
    Opinion delivered June 9, 1930.

      Elmer Schoggm and Rose, Hemingway, Cantrell $ Loughborough, for appellant.

      G. W. Clark and R. W. Robins, for appellee.
   Humphreys, J.

This is an appeal from a judgment of $100 for damage to appellee’s automobile and $10,000 for injury to appellee resulting from, a collision between his automobile and one of appellant’s street cars at the intersection of Broadway and Ninth Streets in the city of Little Rock, Arkansas.

Appellee alleged that the damage to his automobile and the injury to himself were caused by the failure of appellant’s motorman to stop the street car, as required by law, before entering Broadway from the east, and to keep a lookout or sound an alarm., or to stop the street car when the perilous position of appellee’s automobile was observable. Appellee also alleged that he was permanently injured about the back, chest, lungs, and other-parts of the body, rendered permanently incapable of any sort of gainful labor, and caused to suffer great pain of body and anguish of mind to his damage in the sum of $25,000. Also alleged damage to his automobile in the sum of $200.

The allegation of negligence and the extent of the injuries were controverted, and the affirmative defense of contributory negligence was interposed by appellant.

The collision occurred at 6:30 o’clock on the morning of November 27, 1928, at which time it was raining and dark. The headlight of the street car as well as the lights in the car were on and in good condition. The headlights of the automobile were on and in good condition. Appellee was traveling south on Broadway, being driven by his son, who was eighteen years of age, with a load of produce which he was taking from, his farm in Faulkner County to sell at the curb market in Little Bock. Appellant’s motorman was traveling west on said street towards the outskirts of the city, without passengers. At the intersection of the east side of Broadway and the north side of Ninth Street a brick church with high steps is located which obstructs the view to some extent in approaching the street crossing from the east or north. There were only three eye-witnesses to the collision, appellee, his son, and the motorman.

Appellee testified that as they entered Ninth Street slowly they were looking both ways, but could not see the street car approaching from the east on said street until it was near the stop block and until within about three or four feet of the street car track on account of the brick church building; that his automobile had good brakes; that the street car was approaching- at a speed of about twenty or twenty-five miles an hour, and, failing to heed the stop block, as they expected it to do, ran into them just as their front wheels crossed the first rail and knocked their car over against the west curb of Broadway ; that, had the motorman stopped at the stop signal, they would have had ample time to cross the track before the street car could start again and reach them; that they did not run into the street car, but that the street car ran into his car without slowing down after it passed the stop block; that the impact threw appellee out of the car onto the street, resulting in painful injuries to his body and particularly to his chest, shoulders, and back that produced pneumonia and confinement to his bed for one hundred and five days and permanent injuries which will prevent him from earning a livelihood; that the outer tissue of his lungs was punctured by a broken rib, causing him to expectorate much blood and matter for a long time; that the injury in the chest produced a bone growth that resulted in a stiffness in the neck and shoulders and a nervous affection in his lower limbs which produced an unsteadiness in his step; that at the time of the injury he was forty-two years old, had an expectancy of twenty-five years, and was earning on an average of $3 per day; that the left front wheel was torn down, the tire and inner tube torn up, the radiator torn up, the steering* wheel torn up, the motor knocked sidewise out of the car, a big hole knocked in the front tire, the carburetor, two spark plugs, and fan wheel torn off, the left fender torn off, the left end of the bumper torn off, and the bumper bent back toward the right or west and the frame of the car bent. He also testified, over the objection and exception of appellant, that the total damage to his automobile was about $200, and that his son was a careful driver.

There was no material difference between the testimony of appellee and his son, Velous Cummins, the driver of the car, who testified that as the street car approached there was no bell or gong sounded, and that, when he first saw same, it was within fifteen or twenty feet of the stop block, and that he was about six feet from the street railway track; that he could and would have stopped within that distance, had he known or believed the street car motorman would not have stopped at the stop block, but, when he discovered that he had' ignored the stop block and failed to check his speed of twenty or twenty-five miles an hour, he was practically upon the track, and could not stop before the street car struck him; that he continued on his way after first seeing the street car because he relied upon the motorman to obey the traffic law at the stop block before entering Broadway. He was recalled in the afternoon, and denied that in testifying during the morning he had said he could not see the street car until it got to or near the stop block, but, as a matter of fact, he did see it about twenty feet east of the stop block.

E. P. Chastain, the motorman, testified that he was running the street car at a speed of ten or twelve miles an hour as he approached Broadway, and that he stopped the car at the stop block on the east side of Broadway, and, after looking north and south for autos or pedestrians, and seeing neither, he proceeded at an ordinary speed west, and was almost across Broadway ydien he observed appellee’s automobile traveling south at a rate of ten or twelve miles an hour; that it ran head end into the street car, striking it with full force; that he immediately applied his emergency brakes, and, as soon as the car stopped, he went back and assisted in pushing the automobile away from the car and around to the west; that appellee, his wife, and son were sitting in the front seat, and a little girl in the back seat; that they explained to him that the collision was due to the worn condition of the brakes on appellee’s automobile.

Appellee’s wife and son denied making the statement, and said they charged the motorman with failing to stop at the stop block and that he walked away without denying the charge.

Dr. A. G-. McGill testified, over the objection and exception of appellant, that the injuries to appellee’s back resulted in the disturbance of the reflexes in the lower limbs causing an unsteadiness when on his feet, and also resulted in a disturbance in his bladder and rectum.

Appellant first'contends for a reversal of the judgment, upon the alleged ground that there is such a variance between the testimony of Velous Cummins given in the morning and that given in the afternoon that he is wholly discredited and his testimony worthless, hence the court should have disregarded it and instructed a verdict for appellant upon the theory that the motorman’s evidence relative to the collision was true and undisputed. We have read the testimony of Velous Cummins very carefully and find no material conflict in it, but, even if there were, appellee adhered to his own statement throughout the trial, and his testimony contradicts that of the motorman.

It is also insisted that the testimony introduced by appellee relative to the collision is contrary to the physical facts that the spring under the middle of the car was displaced and found on the ground after the collision. There is some testimony tending to show that the only way the spring could have been displaced was by a heavy jar in the center of the car opposite the spring; that, had the front end of the car been raised by a collision, the effect would have been to cause the body of the car to press down the tighter on the spring and hold it in place instead of disconnecting and loosening same so as to cause it to fall out on the ground. The testimony of the motorman is out of harmony with the physical facts that no indentation was found upon the side of the street car where the automobile is supposed to have struck it, and that the lights on the auto were not injured, but that the bumper thereon was knocked loose on the left side and bent around toward the right, and that the left front wheel was knocked down and the right one uninjured except for a hole in the tire. In fact, the injury to the automobile from the physical appearances indicated that it was struck on the left front end, which could not have been true had the automobile run squarely into the side of the street car. Again, there is nothing in the testimony of appellant to indicate that the front end of the car was lifted up in the collision so as to press the center of the car down on the spring and hold it in place. It was not conclusively shown that a jar at the front end of the car could not have displaced the spring and caused it to fall out. The testimony is in conflict as to the point of contact in the collision as well as the cause thereof, so the court correctly refused to direct a verdict for appellant.

The appellant next contends for a reversal of the judgment because the court allowed Dr. A. G. McGill to testify to nerve disturbances in the lower limbs and in the bladder and rectum resulting from the injuries to appellee’s back, upon the ground that nerve disturbances were not specifically alleged in the complaint. The complaint alleged injuries to the back. Dr. McGill testified that the nerve disturbances originated in the spinal injury, the injury to the fourth lumbar vertebrae. The rule is that the symptomatic conditions resulting from an alleged injury are relevant and competent. Arkansas Power & Light Co. v. Toliver, 181 Ark. 770, 27 S. W. (2d) 985, decided by this court on March 12, 1930.

Under this rule the nerve conditions testified to by Dr. McGill were admissible, although not specifically alleged in the complaint.

Appellant next contends for a reversal of the judgment because appellee was permitted to introduce a pamphlet of the traffic ordinances of the city of Little Rock, certified to by the city clerk, making Broadway from Markham to Twenty-fourth Street a boulevard, and requiring street car drivers to bring their street cars to a full stop when appoaching boulevards. The complaint alleged, and the answer admitted, that the law required appellant to stop its street cars on the east line of Broadway, so no prejudice resulted to appellant, even though the ordinances were not properly proved. Under these circumstances, it is unnecessary to decide whether the ordinances were properly proved or not.

Appellant next contends for a reversal of the judgment because appellee was allowed to state that his son was a careful driver. Where negligence is charged, the care and caution of the one charged therewith is relevant as a circumstance tending* to disprove negligence. Likewise, it would be admissible to show that a person charged with negligence was a reckless driver as a circumstance tending to prove the fact.

Appellant next contends for a reversal of the judgment because appellee testified that his automobile was damaged to the extent of $200. Before he testified to this estimate of his damages, he described the injuries to the automobile in detail, and, after doing so, based his opinion as to the amount of the damage upon his observation of the car. A man of ordinary intelligence could form an opinion of the amount of damage done to' a car by inspecting same. His opinion in this regard is not such an opinion as must be reached by one from expert knowledge before admissible as evidence.

Appellant next contends for a reversal of the judgment because the verdict and judgment are excessive. The suffering resulting* from the injury was acute and intense, and the injuries are permanent. They destroyed his earning* capacity entirely. Considering his expectancy, the intense suffering he endured, and his earning capacity, we do not think the verdict is excessive.

Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 7. The instruction is as follows:

“You are instructed that street cars, from the necessities of the case, must have and do have the right-of-way on their tracks, where they alone can travel, and this right-of-way is superior to that of ordinary vehicles and travelers. This paramount or better right to the use of their tracks does not give them the right to exclude travelers, and these may move along or across the tracks at any time and place where such traveling does not interfere with the progress of the street cars. Where there is conflict between a street car and an automobile, the automobile must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation and it is your duty to bear these reciprocal rights in mind in determining the care required of the respective parties at the crossing.”

It is only when the tracks of the street railway company are in actual use that the street ear company has a paramount and preferential right of way over the tracks. The instruction ignores the duty of appellant to have stopped his car at the stop block on the east side of Broadway. Travelers passing up and down Broadway had a right to rely upon a compliance of the traffic law by the street car company and to pass up and down Broadway during the stop. The street railway had no paramount or preferential right to the use of the track when violating the traffic law, so the instruction is erroneous, in that it states that an automobile must yield the right of way where there is a conflict between it and the street car absolutely and in any event. It can only be true when the street railway is using the particular portion of its track in question lawfully and not when it is violating the law in the use thereof.

Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 8, which is as follows: “If the driver of the plaintiff’s automobile approaching a street car crossing in the exercise of ordinary care could see that a collision with an approaching car was inevitable, or highly probable, unless the motorman stopped the car, then it was the duty of the driver to stop and let the street car pass before endeavoring to cross, so as not to delay or impede its passage.”

This instruction was also erroneous because it ignored the fact that appellee was traveling a boulevard or preferred street under the traffic ordinance which required appellant to stop its street car before entering Broadway. Appellee’s duty to look and listen for approaching street cars was correctly submitted to the jury in other instructions.

Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 22, which is as follows: “The court instructs you that if you find from the evidence that the infirmity of the plaintiff was due to -one of two causes, one of which could involve negligence on the part of the defendant, the other only an accident for which the defendant is not liable, then, under the law, it would be your duty to adopt a theory which would relieve the defendant from any charge of negligence, and therefore it would be your duty under such circumstances to return a verdict for the defendant.”

This instruction was sufficiently covered by instruction No. 10 given by the court and other instructions of like tenor and effect.

Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. B, which contained section 43 of the Acts of the General Assembly of Arkansas of 1927 (page 753), specifying’ the kind of brakes with which motor vehicles operated upon highways shall be equipped, and telling the jury that, if appellee’s automobile was not thus equipped, and his failure to so equip it contributed to bring about the collision that caused the injury, appellee would not be entitled to recover.

Appellant requested, and the court gave, instruction No. A upon the subject of contributory negligence which told the jury appellee could not recover if his car was being’ operated without proper brakes such as would enable him to control the car, and that, if the collision was caused entirely or in part by such negligence, appellee could not recover. Instruction A was a correct instruction on contributory negligence, and was responsive-to the evidence in the case. The evidence pro, and eon upon whether the automobile had brakes by which it could be controlled was general in its nature. The evidence of appellee was to the effect that it had such brakes and. that of appellant to the effect that the brakes were worn out. No attempt was made to show that the automobile was not equipped with the kind of brakes required by the act referred to, and so- its requested instruction. No. B was abstract in part, and should not have been given. It should not have been modified and given because the parts thereof not abstracted were fully covered by appellant’s instruction No. A, which was given by the court.

Appellant next contends for a reversal of the judgment because the court erred in refusing to give its requested instruction No. 14, which is as follows: “You are instructed that the motorman in the operation of defendant’s ear was not required to anticipate negligence, if any, on the part of the driver, in the operation of the plaintiff’s automobile. If you find from the evidence that the defendant’s street car reached and entered the intersection before the automobile of the plaintiff, the motorman had a right to assume that the driver of plaintiff’s automobile would allow him to cross the intersection in safety, and that the driver would not afterwards enter the'intersection with his car beyond control, so as to bring about a collision.”

This instruction is inherently erroneous because it assumes the motorman entered Broadway in a lawful manner and at. a reasonable rate of speed. ’ It wholly ignored the testimony tending to show that he himself ran over the stop signal and entered Broadway at a speed of twenty or twenty-five miles an hour. If, as a matter of fact, the motorman ran over the signal and entered Broadway at a reckless and dangerous rate of speed, he had no right to assume that pedestrians or automobiles could or would yield him right-of-way. Under such circumstances, they likely would not have had time to do so.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give its requested instruction No. 5, which is as follows: “Failure of the motorman to sound his gong, if you find from the evidence that he did fail to sound it, is not negligence of itself so as to make the defendant company liable, if you further find from the evidence that the driver of plaintiff’s car had knowledge of the approach of the car before reaching the street car tracks.”

Appellee did not request and the court did not instruct the jury that the failure of the motorman to sound the gong as the street car approached Broadway would constitute negligence on his part, so appellant is in error in arguing that the jury was left to infer that, if the gong was not rung, appellee was entitled to recover. Even though such an inference might be drawn from the evidence, the instruction, in the form requested, was erroneous.

To have observed the street car approaching before it reached Broadway would not have been notice to appellee that the motorman would disregard the stop block. The instruction wholly ignored the duty imposed upon the motorman to stop the street car at the stop block as he entered Broadway. For this reason it was proper to refuse to give it.

No' error appearing, the judgment is affirmed.

The 'Chief Justice and Mehaffy, McHaney and Butler, JJ.., concur.

Smith and Kirby, JJ., dissent.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Exchange National Bank v. Barron.
    Opinion delivered February 10, 1930.

      Chas. A. Walls, for appellant.

      Trimble, Trimble & MoCrary, G. E. Morris and J. W. Barron, for appellee.
   Kirby, J.,

(after stating’ the facts). Appellants insist that the court erred in decreeing a reformation of the guaranty contract, which it contends was clear and free from ambiguities and a continuing guaranty binding each of the signers to the payment of the sum of $7,000 in accordance with its terms.

Appellees seek no construction of the contract and attempt.no explanation of its meaning varying from its terms or contradictory thereof by the production by parol testimony, but only a reformation of it in accordance with the agreement of the parties. In Phoenix Assur. Co. v. Boyette, 77 Ark. 41, 90 S. W. 284, the court said:

“Whatever be the effect of a mistake, pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of. the transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accomplished by inequitable conduct of the other parties. It is not necessary that such inequitable conduct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accompanied by, incorrect or misleading statements or acts of the other party.” See also Stewart v. Fleming, 96 Ark. 371, 131 Ark. 955 ; Graham v. Thompson, 55 Ark. 296, 18 S. W. 58 ; Conn. Fire Ins. Co. v. Wiggington, 134 Ark. 152, 203 S. W. 844 ; Adcox v. James, 168 Ark. 842, 271 S. W. 980 ; Galloway v. Russ, 175 Ark. 659, 300 S. W. 390 ; Nicholson v. Hayes, 166 Ark. 112, 265 S. W. 640 ; see also Griswold v. Hazzard, 141 U. S. 260, 11 S. Ct. 972, 31 L. ed. 378 ; Philipine Sugar Estate Development Co., Ltd., v. Gov’t of Philipine Island, 274 U. S. 385, 38 Sup. Ct. 513, 62 L. ed. 513.

In Nicholson v. Hayes, supra, the rule is laid down as follows:

‘ ‘ The rule in this State is that, to justify a reformation of a written instrument, there must have been a mutual mistake on the part of one party coupled with the fraud on the part of the other, and that, if parol evidence is relied upon to establish the ground of reformation, it must be clear, unequivocal and decisive. Welch v. Welch, 132 Ark. 227, 200 S. W. 139, and Cain v. Collier, 135 Ark. 293, 205 S. W. 651.”

Appellees showed the circumstances and explained their reason for not reading the guaranty when presented for their signature because of the assurance-of their kinsman, in whom they had the utmost confidence, that it expressed the agreement as already made between them, and, being’ lulled into security in such belief, were not barred from relief by any negligence in failing to carefully read the instrument. St. Louis, I. M. & S. Ry. Co. v. McConnell, 110 Ark. 306, 161 S. W. 496. See also Stewart v. Fleming, supra.

Laches cannot be imputed to appellees for not sooner moving- to reform the contract of guaranty since they had no knowledge or information that it had not been drawn in accordance with their understanding of the agreement, in which Mr. Lloyd England, who presented it for their signatures, appeared to concur, as shown by his letters relative thereto, until the Exchange National Bank presented its claim for probate under said guaranty against the estate of one of the guarantors in September, 1927. This suit -was instituted in October thereafter. Rozelle v. Chicago Mill & Lumber Co., 76 Ark. 525, 89 S. W. 469 ; 23 R. C. L. 516.

The finding of the chancellor is not against the preponderance of the testimony, which established' the ground relied on for reformation of the guaranty, in accordance with the rule requiring it to be established by clear, unequivocal and decisive evidence.

It follows that the judgment of the court is correct, and it will be affirmed. It is so ordered.


text:
    Arkansas Power & Light Company v. Nuckols.
    Opinion delivered June 9, 1930.

      Elmer Schoggen and Bose, Hemingiuay, Cantrell S Loughborough, for appellant.

      B. E. Bison, John B. Gulley, Bobt. Bagsdale and fjewis Bhoton, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court should have directed a verdict in its favor and urges especially that it erred in giving said instruction No. 2, which ignores and leaves out the question of contributory negligence of appellee pleaded as a defense, directing the jury to find for appellee in case it found appellant was negligent in the operation of its street car. The instruction was objected to generally and specifically, and it is also true that in instruction No. 3 the court defined contributory negligence and told the jury that the burden was upon the defendant to prove such negligence by a preponderance of the testimony, and that, if it found from the testimony that plaintiff was guilty of contributory negligence, he could not recover “however negligent the defendant may have been in causing the accident,” which instruction was also generally and specifically objected to. Although the negligence of the driver of a motor vehicle cannot be imputed to an occupant oif the car, riding as a guest, such guest is not relieved of the duty to exercise ordinary care for his own safety, failure to do which, contributing to the injury, constitutes contributory negligence barring the recovery. Carter v. Brown, 136 Ark. 32, 206 S. W. 71 ; Itzkowitz v. Ruebel, 158 Ark. 460, 250 S. W. 535 ; Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 974. This instruction is necessarily conflicting’ with instruction No. 2, which directs the jury to find for the plaintiff if it found appellant guilty of the negligence that caused the collision and injury without regard to whether the injured person was guilty of contributory negligence at the time. It has long been well settled that an instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue is misleading and prejudicial, notwithstanding, another instruction which correctly presents that issue is found in other parts of the charge. In Railway v. Rogers, 93 Ark. 564, 126 S. W. 375, it was said: “Where the instructions are thus conflicting, it is impossible for an appellate court to tell which of them the jury followed, and such an error calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” 'See also Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676. The instruction is incomplete, ignoring and leaving out, as it does, the question or defense of contributory negligence, and the fact that contributory negligence is defined in the next instruction does not remedy the defect, since it leaves out of consideration altogether the contributory negligence of plaintiff and leaves for determination appellant’s conduct, the alleged negligence, as the sole issue for the jury’s verdict, telling them “then your verdict shall be for the plaintiff.” This instruction does not come within the apparent exceptions to the rule in those cases where it may be readily seen that the instructions may be read together without conflicting and as a harmonious whole, and, when they can be so read, it is the duty of the court to treat them accordingly. In Railway v. Rogers, supra, the instruction relative to contributory negligence followed the one defining negligence and allowed a recovery for the plaintiff if the jury so found, but it told the jury that the defendant company relied upon the plaintiff’s contributory negligence as a defense. There is nothing in this instruction complained of indicating that contributory negligence was an issue in the case, nor in the following- instruction defining- it, requiring- the jury to consider the alleged contributory negligence of the plaintiff as a defense to the suit in determining the question of liability of appellant under the said instruction No. 2.

We do not pass upon other assignments of error, since the cause must be reversed for the giving of said erroneous instruction No. 2. Neither can it be said under the circumstances of this case that appellee was guilty of contributory negligence as a matter of law, and appellant entitled to a directed verdict. The testimony is conflicting to some extent, leaving the question properly for the determination of the jury.

For the error designated, the judgment is reversed, and the cause remanded for a new trial.


author: Mehaeey, J.

text:
    Dodd v. Hopper.
    Opinion delivered June 16, 1930.

      J. Paul Ward, for appellant.

      Williamson & Williamson, for appellee.
   Mehaeey, J.

The appellant inherited from her father an undivided one-eighth interest in 267 acres of land in Stone County, Arkansas. The father with appellant and other children of his lived on the land at the time of and prior to his death, which occurred in 1919. One hundred and sixty acres of said land was occupied as a homestead. Appellant was a minor when her father died and L. G. Hopper was appointed her guardian, and, as such guardian, made application to the Stone County probate court for an order to sell the undivided interest of appellant and also the undivided interest of her sister, Ruth Hopper, who was also a minor. The application of the guardian for an order to sell the interests of the minors stated that other heirs had already sold their interest. Ruth Hopper, one of the minors, was the wife of L. G. Hopper, the guardian. The guardian stated in his application to the probate court, that the lands were going down by the fencing being bad, the bushes growing up, and that the two minor heirs were not financially able to keep them in repair and pay taxes on same, and that the rents of the same will not make the repairs and pay taxes; that Ruth Hopper is a married woman and needs her small interest to help make a start for herself; that Laman Dodd cannot alone rent the lands nor keep same up together with taxes, and that the money she would obtain from, her interest would be worth more to her upon interest than being in said lands. The guardian prayed in his application that interests of the minors be sold for reinvestment and for said Laman Dodd’s maintenance and education. The court made an order to sell and the guardian sold said minor’s interest which included the homestead. This action was begun by appellant in the Stone Chancery Court to set aside the order of sale, the sale, and the deeds made and prayed that all these be declared void, and asked for an accounting and that she be given judgment and for other relief.

The chancery court rendered a decree dismissing plaintiff’s complaint and declaring all proceedings of the probate court legal.

This appeal is prosecuted by the minor to reverse said decree. Neither the application nor any order of the court shows that the land was the homestead of the minor. There is nothing to show that there were no debts. There is no reason shown either in the application or elsewhere of any necessity for selling the homestead. There were 107 acres besides the homestead, and so far as the record shows there may have been personal property. The petition for an order to sell states that Laman Dodd cannot alone rent said lands nor keep same up together with taxes, and that the money she would obtain for her interest would be worth more to her upon interest than being in said lands. Of course Laman Dodd could not alone rent the lands and keep' them up. This was the business of the guardian and not of the ward who was only 16 years of age. The sale of the minor’s homestead made in the manner shown by the record in this case is void. However, appellee relies on § 5028 of Crawford & Moses’ Digest, and contends that the judgment of the probate court is conclusive save upon direct appeal.

This court has said: “But we do hold that an essential requirement of the statute in regard to sale of a minor’s land cannot be entirely omitted and disregarded.” Mobbs v. Millard, 106 Ark. 563, 153 S. W. 821.

“As to the other ground of attack that it nowhere appeared from the order of the court that there were no debts due and unpaid by S. H. Collins at the time the order of sale was made, it may be said that this omission would be fatal to the validity of the sale upon the authority of the cases of Beakley v. Ford, 123 Ark. 383, 185 S. W. 796 ; Ex parte Tipton; 123 Ark. 389, 185 S. W. 798, and Rushing v. Horner, 130 Ark. 21, 196 S. W. 468. But subsequent to the rendition of those opinions the General Assembly at its 1919 session, passed an act No. 263 entitled an act to render conclusive judgments and decrees of the probate court in guardian’s and administrator’s sales.” Collins v. Harris, 167 Ark. 372, 267 S. W. 781 ; Day v. Johnston, 158 Ark. 478, 250 S. W. 532.

The act of 1919 above referred to is § 5028 of Crawford & Moses’ Digest. That act provides: “That the finding and recital of the judgment or decree of the probate court authorizing and ordering such sale that the guardian or administrator was duly and leg-ally appointed and qualified; that the sale was conducted according to law; and that the facts set forth in the petition entitled the said guardian or administrator to make said sale, shall be conclusive, etc.,” but the judgment of the probate court does not recite any of these things. The record in this case shows no judgment or no action of the probate court except, there is indorsed on the application a statement that the petition is granted. If the judgment of the probate court had recited the facts above mentioned in its judgment, the judgment would have been conclusive, but, as it did not do this, the judgment is not conclusive.

The decree of the chancery court is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.


author: Hart, C. J.,

text:
    Elk Horn Bank & Trust Company v. Spraggins.
    Opinion delivered June 23, 1930.

      McMillan <& McMillan; and D. H. Graiaford, for appellants.

      McElhannon <& Gallaami/, for appellee.
   Hart, C. J.,

(after stating the facts). It is well settled in this State that a vendor of land who has parted with the legal title has in equity a lien for the purchase money against the vendee and his privies, including subsequent purchasers with notice. The deed of plaintiff to S. W. Hearn which retains the reservation of the lien was not placed on record, but the bank and subsequent purchasers from S. W. Hearn were charged with notice of all recitals in the title deeds of their vendor whether they were of record or not. No principle of law is better established in this State than this, that one is bound by whatever, affecting his title, is contained in any instrument through which he must claim title, even though it be not recorded and he have no actual notice of its provisions/ Stephens v. Shannon, 43 Ark. 464 ; Green v. Maddox, 97 Ark. 397, 134 S. W. 931 ; Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192, 176 S. W. 129 ; Union & Planters’ Bank & Trust Co. v. Simmons, 166 Ark. 285, 265 S. W. 953 ; Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S. W. 682 ; and Robertson v. American Investment Co., 170 Ark. 413, 279 S. W. 1008.

This rule is conceded, but it is insisted that the rule has been changed by § 7382 of the Digest, when construed in connection with § 7408 of the Digest. The latter section was passed first. It was enacted by the Legislature of 1911 to provide a period of limitation in the enforcement of mortgages. In Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, 134 Am. St. Rep. 78, the court said that the effect of the statute as to third parties is that when the debt secured by a mortgage is apparently barred by limitation, and no payments which would extend the limitation are indorsed on the margin of the record of the mortgage, it becomes as to third parties an unrecorded mortgage; and, like an unrecorded mortgage, it constitutes no lien upon the mortgaged property, as against such third persons, notwithstanding' they have actual knowledge of the execution of such mortgage. Numerous other cases to the same effect are cited in the footnote to the section of the statute. This section does not mention vendor’s liens, and consequently the holders of such lien are not affected by the provisions of the statute.

Section 7382 of the Digest was enacted by the Legislature of 1917 to regulate the manner of renewing or extending the time of maturity of debts .secured by mortgages or vendors ’ liens. The section provides in effect that no agreement for the extension of the date of maturity of any debt or note secured by a mortgage or vendor’s lien or for the renewal thereof, whether made in writing or otherwise, and no written or oral acknowledgment of indebtedness thereon, shall so far as the same affects the rights of third parties, operate to revive said debt or extend the operation of the statute of limitations with reference thereto unless a memorandum showing such extension or renewal is indorsed on the margin of the record where such instrument is recorded.

It will be noticed that § 7408 deals with the subject of partial payments on a mortgage, and that § 7382 deals with the question of the extension of the date of maturity or the renewals of notes secured by mortgages or vendors’ liens. Payment is the discharge of a debt in whole or in part, and is not a contract. Pettus v. Rawls, 131 Ark. 125, 198 S. W. 874 ; and Porter v. Title Guaranty & Trust Co., 17 Idaho 364, 106 Pac. 299, 27 L. R, A. (N. S.) 111.

On the other hand, an extension or renewal of a note rests in contract, and means that which takes place when the debtor and creditor make an agreement upon a valuable consideration for the maturity of the debt on a day subsequent to that provided in the original contract. National Bank of Commerce v. Kennedy, 98 Texas 293, 83 S. W. 368 ; Rossville State Bank v. Heslet, 84 Kan. 315, 113 Pac. 1052, 33 L. R. A. (N. S.) 738.

The record in this case does not show any extension or renewal of the debt or note of S. W. Hearn to Mrs. Spraggins, secured by the vendor’s lien. Hence we are of the opinion that § 7382 has no application under the facts of the present case. Payments on the note or indebtedness of S. W. Hearn to Mrs. Spraggins were made from time to time, and proof of that fact was established by the testimony of Mrs. Spraggins, which is uncontradicted. Hence her debt was established by the uncontradicted evidence, and, under the principles of law above stated she had a vendor’s lien on the lots in controversy which could be enforced in a suit in equity. In short, the effect of a renewal or an extension as provided in § 7382 is merely to extend the time of payment of the note or deed, and does not discharge the obligation. On the other hand, the payment as provided in § 7408 extinguishes the debt to the extent of the payment.

The court also correctly allowed the bank judgment against Thomas A. Hearn, Jr., for $18.64 which it had paid to remove the materialman’s lien on the lot of said Hearn.

We find no reversible error in the record, and the decree will therefore in all thing’s be affirmed.


text:
    Nicklas v. Olvey.
    Opinion delivered June 23, 1930.

      Powell, Smead <& Knox, for appellant.

      Mahony, Yocum S Saye, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the drilling contract constituted a partnership between Olvey and Clark, and that he was entitled to recover the costs of making the abstracts against the partnership and Olvey as a member thereof, and that the court erred in not so holding under the authority of Stephens v. Neeley, 161 Ark. 114, 255 S. W. 562, 45 A. L. R. 1236, and the tests as prescribed in 20 R. C. L. 823-33.

The intention of the parties is to be arrived at from their contract entered into for the drilling of the test well, and there appears to be no ambiguity about it. The leases were held by Clark, the party of the first part, and he was bound as a consideration for their procurement’ to have the test well drilled upon the block of acreage acquired by lease. He had already had certain abstracts of title made by appellant, and, after the drilling contract was entered into, he only directed that others be made, it being conceded by appellant that no directions were given him about the making of abstracts or suggestions for payment therefor by . Olvey, nor were any of the abstracts delivered to Olvey. It is obvious from the terms of the contract that it was the intention of the parties only to have the test well drilled, which was to be done at the actual cost of the party of the second part, the contract providing how the money should be realized to pay therefor by the selling of the leases by Clark or by Olvey in the event of Clark’s failure to procure sufficient money to pay the expenses as the drilling progressed. It was not contemplated by the parties, nor provided in the contract that drilling' operations would be continued and oil produced after the test well was finished, in case it should be a producer, without further agreement, the second party only being given an option of drilling any additional wells on the 80-acre tract at the then prevailing prices for drilling wells. In other words, the parties did not contemplate a partnership in the making of the contract or any further oil development after the test well came in a producer under the terms of the contract, which provided, in effect, as the lower’ court correctly held, but a means of compensation or method of payment to appellee Olvev for drilling the test well. Stone v. Riggs, 163 Ark. 211, 259 S. W. 412 ; Mehaffy v. Wilson, 138 Ark. 281, 211 S. W. 148.

The letter from Olvey to Clark, reciting- that the costs of abstracts and other expenses incident to clearing- the - titles “should be considered a part of the costs incident to the drilling of said well and may be paid out of funds raised to defray the costs of drilling,” expressly recited that “no charge is to be made for any services rendered in connection with the work on titles to any of the lands included in the block of acreage covered by said contract.” This expressly negatives any inference of liability for abstracts made to the lands included in the block of acreage contracted about where the test well was to be drilled and, although it recites that there was an agreement between these parties that the costs of certain abstracts should be considered a part of the costs incident to the drilling of the test well that could be paid out of the funds raised to defray the costs therefor, it was not made to nor with appellant or for his benefit, and, in addition, there were no funds on hand raised as provided out of which this cost could be paid, and, there being no partnership, appellant was not entitled to recover such costs against appellee, Olvey, herein.

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


author: Per Curiam.

text:
    Prager v. Wootton.
    Opinion delivered June 23, 1930.

      O. H. Sumpter, for a-ppellant.

      Martin, Wootton <& Martin and B. N. Florence, for appellees.
   Per Curiam.

Grace Prager, widow, and -Irene Prager Bourdier and John D. Prager, children and sole heirs at law of Charles J. A. Prager, deceased, filed in this court a petition for certiorari to quash a judgment of the Garland Chancery Court reviving a mortgage foreclosure proceeding by Afton Williams Wootton et al., against Charles J. A. Prager; and a transcript of the record of the proceedings in the chancery court is tendered with the petition.

It appears from the face of the record tendered that Afton Williams Wootton and E. H. Wootton, trustee, brought suit in the Garland Chancery Court against Charles J. A. Prager and Grace Prager, his wife, to foreclose a mortgage on real estate situated in Hot Springs, Garland County, Arkansas. The suit was filed on February 4, 1928, and summons was duly served on the defendants on February 6,1928. The record further shows that on February 6,1929, which was an adjourned day of the December, 1928, term of the Garland Chancery Court there was the following order in the case:

‘ ‘ On this day comes the defendants by their solicitor, O. H. Sumpter, Esquire, and suggests the death of the defendant, Charles J. A. Prager.”

•On January 28, 1930, the attorneys for the plaintiff filed in said cause in said court a motion to revive the suit in the name of Grace Prager, Irene Prager Bourdier, and J ames D. Prager, widow and heirs at law of Charles J. A. Prager, deceased; and for grounds state that Charles J. A. Prager died on January 26, 1929, and that no person has qualified as his personal representative, and that the action concerns only the right of the heirs of said Charles J. A. Prager to the property described in the complaint. The records of the chancery court show the filing of the motion to revive the cause in the names of Grace Prager, Irene Prager Bourdier and James D. Prager, widow and heirs of Charles J. A. Prager, deceased. On the 11th day of February, 1930, Irene Prager Bourdier and James D. Prager filed separate responses in which it was claimed that the right to revive the action had expired by limitation. On the 11th day of March, 1930, which was an adjourned day of the December term of 1929 of said chancery court, it was adjudged and decreed that the suit be revived in the names of the defendants, Grace Prager, Irene Prager Bourdier, and James D. Prager, widow and heirs of Charles J. A. Prager, deceased.

The chancellor proceeded upon the theory that the revivor must be had under § 1062 of the Digest, and that the suit could not be revived against the heirs of the defendant until one year had elapsed after the death of the defendant, no person having qualified as his personal representative. In this construction of the statute, the chancellor was wrong, for no part of the action survived against the personal representative of the defendant. The rule is that the heirs or devisees of a mortgagor, who dies the owner of the fee, are necessary parties in a suit to foreclose the mortgage. Hence, in a suit to foreclose, the heirs at law of the deceased mortgagor should be made defendants, or some excuse for not making them defendants, should be shown in the complaint ; as that the mortgagor conveyed his estate in the mortgaged lands before his death, or that it was sold under execution, or that after his death his interest in the lands was sold under an order of the probate court, etc. Simms v. Richardson & May, 32 Ark. 297 ; and Pillow v. Sentelle & Company) 39 Ark. 61.

Of course, the personal representative of a deceased mortgagor is a proper party in a mortgage foreclosure suit of real estate, for the lands of a decedent are assets in the hands of his personal representative for the payment of his debts, if needed for that purpose, and he would be a proper party in order to work out the rights of the creditors of the decedent. The heirs, however, are indispensable parties for the reason that, upon the death of the ancestor, the title vests in the heirs, and they can only be divested of their equity of redemption in the mortgage property in a proceeding to which they are made parties.

This view was recognized by the court in State Fair Association v. Terry, 74 Ark. 149, 63 S. W. 65, where it was said: “Upon the death of a party, the title to his real estate passes at once to his heirs (subject, of course, to the rights of creditors to be worked out through the administrator) ; and the administrator cannot represent them in court. They are necessary parties where the title to real estate is involved, and the court should, of its own motion, refuse to proceed until they are brought in. ’ ’

The sections of our statute on the revival of actions is a part of our Civil Code, and are to be construed together. State Fair Assn. v. Townsend, 69 Ark. 215, 63 S. W. 65.

In Putman v. Putman, 4 Pick. (Mass.) it was held that where a bill in equity to redeem mortgaged premises is abated by the death of the complainant, his heirs may revive the suit.

In Sutherland v. Rose, 47 Barb. (N. Y.) 144, it was held that on the death of a mortgagor in an action by him for the cancellation and satisfaction of the mortgage, the heirs, and not the personal representative, are the proper parties to continue the action, as the heirs alone have an interest in the satisfaction of the mortgage and in the right to redeem.

In the application of these principles of law, we are of the opinion that § 1063 of the Digest applies wherein it is provided that “upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees.”

In Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762, it was held that when the defendant in an action for unlawful detainer dies, the action should be revived against his heirs and not against a special administrator; and, until such revivor, there can be no adjudication concerning the land.

In Mayers v. Lark, 113 Ark. 207, 168 S. W. 1093, Ann. Cas. 1915C, 1094, where the title to land was involved, it was held that an order of revivor in the name of a special administrator was improper and that the revivor should be in the name of the heirs. See also Temple v. Gulp 106 Ark. 22, 150 S. W. 867 ; Dupree v. Smith, 150 Ark. 80, 233 S. W. 812 ; Thompson v. Lee, 174 Ark. 865, 206 S. W. 706 ; Blake v. Thompson, 176 Ark. 840, 4 S. W. (2d) 514 ; and Hill v. Brittain, 178 Ark. 784, 12 S. W. (2d) 869.

In the latter case, it was held that on defendant’s death pending a suit to recover on certain notes and to foreclose a mortgage of land securing them, the action for the indebtedness survived against his administrator, and the action to subject the land to the payment of the indebtedness survived against his heirs.

In the case at bar, no revivor was sought of the action for the indebtedness, and a revivor was duly sought on the foreclosure of the mortgage against the land. The court has uniformly held that the statute is mandatory in its terms, and the revivor, to be effective, must be applied for within the time prescribed by statute. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833 ; Cole v. Hall, 85 Ark. 144, 107 S. W. 175 ; Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491 ; and Bank of Des Arc v. Moody, 110 Ark. 39, 161 S. W. 134.

Under § 1065 of the Digest, an order to revive an action against the representatives or successor of a defendant should not be made without the consent of such representatives or successor, unless in one year from the time it could have been made, since the power to revive without consent ceases at the time limited by this statute; and, since no revivor was sought on the action on the notes, and since the revivor was sought only to subject the land to the payment of the indebtedness, it must have been made within the time it could have first been made.

It is true that in Hill v. Brittain, supra, the court said that the mortgagee lost his right to a lien under the mortgage by failing to revive the suit to foreclose the mortgage against the heirs of the deceased mortgagor within one year from the death of the mortgager; but it was evidently meant by the language used that the right to revive accrued at the death of the mortgag'or, and that the revivor must be had within one year from the time it could have been first made by the court. This view is in accord with the language used in § 1065, which was cited by the judge who wrote the opinion. This is also in accord with the rule announced in Dupree v. Smith, 150 Ark. 80, 233 S. W. 812, in which the opinion was written • by the same judge. In that case the court held that, in an action involving the title to land, the cause should be revived after the death of one of the litigants in the name of his heirs. In that case the court also held that the provisions of § 1065 were mandatory, and that this section was controlling. In construing this section, the court said that the cause could have been revived against the heirs upon proper notice the first day court was in session after the death of M. M. H. Dupree, and the cause could not have been revived against them without their consent after the expiration of one year from the time the order of revivor might have first been 'made.

That case was an action of ejectment, and the court in the course of the opinion further said: “The right to revive against the administrator was contingent upon the right to revive against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. M. H. Dupree, deceased, was dependent upon the title of the real estate being adjudged to appellee (plaintiff), which could not be done without the necessary parties before the court. The causes of action were not severable so that appellee might revive and prosecute his suit for rents against the administrator of the estate of M. M. H. Dupree. The consent of the administrator to a revivor availed nothing.” Plence it was held that the court erred in overruling the motion of the heirs of M. M. H. Dupree to dismiss the proceedings.

In Thompson v. Lee, 174 Ark. 868, 296 S. W. 706, it was held that the heirs of a deceased defendant are necessary parties, after his death, when the action affects the title to or for the recovery of real property, and that the cause could not be revived against them after the expiration of one year from the time the order of revival might first have been made.

Again, in Blake v. Thompson, 176 Ark. 841, 4 S. W. (2d) 574, it was held that, where a suit to cancel a trustee’s deed and for an accounting of rents and profits was improperly revived against the executor of the grantee on the latter’s death in 1922, and the heirs were not made parties until 1927, under § 1063 and 1065 of the Digest, the cause of action was barred.

Our cases hold that the order of revivor must be made by the court, and the court may act upon the suggestion of the death of the defendant by his counsel as was done in this ease, or upon motion of the plaintiff and proof of death of the defendant. This brings us to a consideration of whether the time fixed by statute for revivor against the heirs of the defendant had expired.

This being an application for a writ of certiorari, tbe order reviving the suit against the heirs of the original defendant as defendants cannot be quashed unless it is void upon the face of the record. The reason is that the record imports absolute verity, and in certiorari the record alone is the subject of consideration, and so far as it extends, is conclusive. Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, 214 S. W. 49 ; and Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596.

The record shows that the defendant, Charles J. A. Prager, died January 26, 1929. On February 6, 1929, counsel for the defendant filed in open court a suggestion of the death of the defendant, Charles J. A. Prager, and this was entered of record. A motion of the plaintiff to revive the cause was filed on January 28, 1930, and an order of revivor against the heirs of the original defendant was entered of record on the same day. The record does not show that the plaintiff knew of the death of the defendant, Charles J. A. Prager, before, a suggestion of his death was entered upon the records of the court on February 6, 1929. A motion to revive against the heirs of said defendant was made and entered of record on 'January 28, 1930, which was within one year after the record shows that his death was suggested, which, as disclosed by the record, was as soon as an order of revivor could have been made against the heirs of said defendant.

This was the construction placed upon the statute by the court of appeals of the Indian Territory in Bell v. Eddy, 2 Ind. T. 312, 51 S. W. 959. In that case the court said that, where the record shows that the plaintiff had failed to revive his action against the representative or successor of the original defendants within one year after the date of their deaths were suggested of record, it was the duty of the court to dismiss the complaint on motion of the substituted defendants. In this connection, we call attention to the decision of State Fair Association v. Townsend, 69 Ark. 216, 63 S. W. 65, where it was held that the word “representatives,”' as used in the statute, was intended to include both the heirs and administrator or executor of a plaintiff or defendant who has died pending the action. In that case, which was a suit by the mortgagor to redeem from a mortgage, the mortgagee died during the pendency of the action, and the suit was properly revived against both the administrator and the heirs because, if the redemption was had, the administrator would take the money and account for it in due course of administration. Hence the revivor was had under § 1062 because a part of the action survived against the personal representative of the mortgagee, who had died during the pendency of the action to redeem. In that case the court said that the action cannot be revived against either the heirs or personal representatives unless within one year from the time it could have been first made.

The case is different when the mortgagor'dies during the pendency of a suit to f oreclose. His heirs immediately succeed to his .interest in the lands, and the revivor must be had under § 1063, for the action concerns only the rights of the defendant to the land. Therefore the petition for a writ of certiorari must be denied.


author: Hart, O. J.

text:
    Walker v. State.
    Opinion delivered June 30, 1930.

      Wils Davis and A. B. GapUnger, for appellant.

      Ilal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Hart, O. J.

Willie Walker was convicted of murder in the first degree, charged to have been committed by killing Lena Walsh in Poinsett County, Arkansas, and his punishment was fixed by the jury at life imprisonment in the State Penitentiary. From the judgment rendered upon the verdict the defendant has appealed.

It is first insisted that the evidence is not legally sufficient to support the verdict. The record shows that about 12:00 o ’clock noon on December 12, 1929, the dead body of a woman was found a short distance from the Black Oak Road in Poinsett County between Marked Tree in Poinsett County and Earle in Crittenden County. The body was found about one hundred yards inside of the Poinsett County line. It was carried to an undertaking establishment at Marked Tree and kept there for forty-two days, during which time it was identified as the body of Lena Walsh by nine different persons including relatives, friends and acquaintances. There were four bullet holes in the right side of the body and one in the arm which caused a flesh wound. The bullets were from a thirty-two calibre pistol. The woman’s head was beaten into a pulp — looked like nail holes. The clothing was power burned.

One witness who lived close to the end of the bridg-e across St. Francis River at Marked Tree testified that she was awakened at about 10:30 o’clock on the night of December 11,1929, by the cries and moanings of a woman. Witness located the noise between her house and the river bank. She judged that the cries came from about two city blocks away. Other witnesses testified that at about the same hour on the same night they heard four or five pistol shots over in the direction of the river from Marked Tree. The inquest showed that the deceased had been shot four times. On the next day after the body was found, two little boys while playing- under the bridge at Marked Tree found a woman’s hat, wrap and a pistol wrapped up together. They were found in Poinsett County, Arkansas. It is about six miles from Marked Tree to the Crittenden County line. Another witness found the tip end of a pistol hammer in the cuff of the coat belonging to the dead woman. The hammers were broken from the pistol found by the boys and the tip end of the pistol hammer found in the cuff of the coat of the dead woman fitted on to the pistol. Another witness who had lent a pistol to the defendant a few days before the dead body was found testified that the pistol exhibited to him which had been found by the boys under the bridge looked like the pistol he had lent to the defendant.

The night marshal at Marked Tree testified that he had sold the defendant some gasoline about 4:00 o’clock on the morning of December 12, 1929, and that the defendant was driving a Studebaker sedan. Another witness testified that he ran a gasoline station at Wynne, Arkansas, and that the defendant, on the evening of December 11, 1929, bought gasoline from him and that at that time he was driving a Studebaker sedan.

Some time during the latter part of October, 1929, Lena Walsh bought a Studebaker sedan in Little Rock for $1,385, and at the time she was killed she owed a balance of $1,010 on the car. A day or two after the killing the defendant went to a cleaning plant in Greenville, Mississippi, and had a suit of clothes cleaned. There was blood on the left sleeve and front of the coat and on the left leg of the trousers. Later on the defendant was arrested in Arizona with a Studebaker sedan in his possession which had belonged to the deceased. The car was identified by several witnesses who worked at the place where the car was sold. The car was covered with mud and had several blood splotches on the inside of it when the defendant was arrested.

The defense of the defendant was that of an alibi, and he introduced evidence tending to support it. The evidence for the State tended to show that the deceased was brutually murdered by some one and the attendant circumstances warranted the jury in finding that the defendant was the guilty person. Hogue v. State, 93 Ark. 316, 124 S. W. 783 ; Culbreath v. State, 96 Ark. 177, 131 S. W. 676 ; Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436 ; Tillman v. State, 112 Ark. 236, 166 S. W. 582 ; and Weldon v. State, 168 Ark. 534, 270 S. W. 968.

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict on the ground that the venue of the crime was not proved. Venue may be established like any other fact, and it is not necessary that there should be direct evidence that the offense was committed in the county charged in the indictment. It is sufficient, if, from all the facts and circumstances introduced in evidence, such conclusion may be fairly and reasonably inferred. Wilson v. State, 62 Ark. 497, 36 S. W. 842, 54 Am. St. Rep. 303 ; Nichols v. State, 102 Ark. 266, 143 S. W. 1071 ; Cranford v. State, 130 Ark. 101, 197 S. W. 19 ; Cuzic v. State, 152 Ark. 230, 237 S. W. 1094 ; Stribling v. State, 171 Ark. 184, 284 S. W. 38. The evidence showed that the body of the deceased was found ip Poinsett County. Witnesses who lived at Marked Tree, which was about six miles from the county line of Poinsett County, testified that they heard the cries and moans of a woman near the bridge across St. Francis River on the night preceding the finding of the body. The evidence showed that the defendant had been traveling with the deceased in that part of the State in her Studebaker sedan; he was found Avith the car and arrested in the State of Arizona. The jury was fully warranted in finding under these circumstances that the crime was committed in Poinsett 'County, Arkansas, where the body was found, and that the defendant hid the body in the woods and left in the car of the deceased to conceal his guilty participation in the homicide.

It is next insisted that the court erred in refusing to give an instruction on the defense of alibi relied upon by the defendant, which was requested by his attorney. The court gave an instruction on the defense of an alibi in accordance with the well-established principles of law decided by this court in the folloAving cases; Hawthorne v. State, 135 Ark 247, 204 S. W. 841 ; Haskins v. State, 148 Ark. 351, 230 S. W. 5 ; Doyle v. State, 166 Ark. 505, 266 S. W. 459. This court has uniformly and repeatedly, held that the trial court is not required to multiply instructions on the same point. We have carefully examined the record. It shows that, the case was submitted to the jury on competent evidence and upon instructions which fully and fairly covered the respective theories of the State and of the defendant. The judgment will therefore be affirmed.


author: Humphreys, J.

text:
    Cabe v. State.
    Opinion delivered June 30, 1930.

      Sam* W. Trimble and Dillon <é Robinson, for appellant.

      Eal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted for rape in the circuit court of Pulaski County, First Division, and upon the trial of the charge was convicted of the crime of carnal abuse, and was adjudged to serve a term of five years in the 'State penitentiary, as a punishment therefor, from which is this appeal.

Appellant first contends for the reversal of the .judgment because the- trial court overruled a demurrer to the indictment. It is argued that the indictment was fatally defective, because it did not allege that the act complained of -by the State was an unlawful act. Section 2717, C. & M. Digest, defining rape, does not use the word “unlawful,” therefore, it was not necessary to use same in an indictment for the crime. State v. Murphy, 43 Ark. 178.

Appellant next contends for the reversal of the judgment because the trial court ruled that jurors W. R. Crow and C. R. Croft were qualified. On their voir dire examination each stated that he had formed an opinion regarding the case, based upon rumor, but that he would disregard the opinion if chosen as a juror and try and decide the case upon the testimony which would be adduced, under the law as pronounced by the court. Under the rule reiterated in the case of Ham v. State, 179 Ark. 20, 13 S. W. (2d) 805, both were qualified, notwithstanding they had formed opinions based upon rumor.

The disqualification of C. R. Croft is also urged because he admitted that he was prejudiced against the crime of rape. All law-abiding citizens are prejudiced against crimes of this nature, and, were the rule contended for pronounced by this court, it would be next to impossible to find law-abiding veniremen toi sit as jurors in such cases.

Appellant next contends for the reversal of the judgment because Chester Puller had formed and expressed an opinion which he had concealed on his voir dire examination. Affidavits of several parties were introduced to the effect that Puller was biased against appellant, as shown by expressions of his guilt in conversation with affiants and with others. These affidavits were contradicted by Puller, which presented a conflict in the evidence. The finding of the trial court, on conflicting evidence, that a juror was qualified, will not be disturbed on appeal. Pendergrass v. State, 157 Ark. 376, 248 S. W. 914.

Appellant next contends for the reversal of the judgment because there is no substantial evidence to support the verdict. The prosecutrix testified that she was under sixteen years of age, and that appellant had sexual intercourse with her in his apartment, forcibly and against her will. The law does not require the evidence of the prosecutrix to be corroborated in order to convict for the crime of carnal abuse. It is argued, however, that the testimony of the prosecutrix is wholly discredited by expert testimony to the effect that it was impossible for a normally developed man to penetrate her person. The slightest penetration was sufficient in law, and it cannot be said from the physical facts in the instant case that there was no penetration at all. Dr. W. E. Gray testified that he made an examination of the prosecutrix when brought to the hospital shortly after the alleged crime was committed, and that, although he found no external or internal laceration, tears or bruises, he found a drop or two of blood and discovered dn the vaginal canal abundance of spermatozoa. According to the State’s witnesses, appellant admitted having had sexual intercourse with the prosecutrix, but claimed that she told him that she was eighteen years of age and consented to the act. He denied that he made such admissions.

Although the prosecutrix was contradicted to some extent by appellant and his witnesses, it cannot be said that the testimony introduced by the State was wholly and entirely discredited. The judgment is supported by evidence of a substantial nature.

Appellant next contends for the reversal.of the judgment because Dr. Gray was permitted to testify concerning an examination he made of the prosecutrix a few hours after the alleged crime was committed. The introduction of his testimony was objected to on the ground that it was privileged. The doctrine of privileged communications only extends to the physician’s patients and himself. A defendant in a prosecution for crime has no right to claim the protection. Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1448.

Appellant next contends for tlie reversal of the judgment because the trial court allowed the prosecutrix to testify that Allen Frey threw her on the hed and tried to have sexual intercourse with her immediately after appellant had accomplished his purpose. Appellant and Frey had taken the prosecutrix and another girl from the State Fair grounds to appellant’s apartment in the city of Little Rock, and, according to the State’s evidence, had detained them for the purpose of raping them. This occurred, if at all, during their detention, and was a concomitant circumstance tending to prove the crime with which appellant was charged. It was clearly admissible as a circumstance tending to show that appellant had the prosecutrix in his apartment for immoral purposes.

Appellant next contends for the reversal of the judgment because the¡ court allowed the prosecuting attorney on cross-examination to ask him whether his wife had not obtained a divorce from him on account of his misconduct with other women. This was admissible as tending to show an abnormal inclination or disposition on appellant’s part to have sexual intercourse with women, as well as to reflect on his credibility as a witness.

Appellant next contends for the reversal of the judgment because the court allowed the prosecuting attorney to cross-examine him relative to his acquisition of whiskey. The testimony developed that he was drinking on this occasion, and we think the questions propounded by the prosecuting attorney touching this matter were admissible as tending to reflect on his credibility as a witness.

Appellant next contends tf:or the reversal of the judgment because the court refused to give his requested instruction on assault and battery. Assault and battery is not a necessary element of carnal abuse. The crime may be committed with the consent of the prosecutrix, hence, force is not a necessary essential to the commission of the crime, as is the case in rape. Appellant was acquitted of the rape charge, so he was not prejudiced by the refusal of the court to give his requested instruction, on assault and battery.

Appellant next contends for the reversal of the judgment because the prosecuting attorney was permitted to explain why he did not use the other girl who was in the apartment as a witness. This explanation was allowed because appellant’s attorney had criticised the prosecuting attorney for not calling her as a witness. The explanation was invited error,- if error at all. In permitting this explanation, the court admonished the jury not to consider the statement of the prosecuting attorney as to what she would have testified had she been introduced. The admonition cured the error.

Lastly, appellant contends for the reversal of the judgment because the court refused to permit him to introduce the police record showing that a window under appellant’s apartment had -been.broken by a burglar on the night the alleged carnal abuse occurred. There was evidence in the record tending to show that the girls left the apartment on account of the noise from a broken window. If proof of this character was pertinent and competent, it should have been made by a witness cognizant of the fact, and not by a police record in another case in which none of the interested parties were participants. The State would not be bound by facts developed in a different case from the one upon which he was being tried.

No error appearing, the judgment is affirmed.


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    Taylor v. State.
    Opinion delivered June 30, 1930.

      Finis F. Batchelor aud E. D. Chastain, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Crawford County for burglary and grand larceny jointly with James Wallace. Upon the trial he was acquitted of burglary, but convicted of grand larceny, and adjudged to serve a term of one year in the State penitentiary as a punishment therefor. From the judgment of conviction he has duly prosecuted an appeal to this court.

Appellant seeks a reversal of the judgment upon several alleged assignments of error.

The first assignment is that the court overruled his motion for a continuance. The motion was filed the day before the trial, and stated that Adam Shaffer, temporarily absent from the county, would swear that on the night of the robbery he had a conversation with appellant about 12:30 o’clock a. m., after which they parted and appellant went east in the direction of his home. The indictment was returned on March 11,1930, and although appellant was not tried until the 20th day of the month subpoena was not issued for the witness. It does not appear that the witness left the State before the arrest of appellant, nor was it made to appear that the testimony of the absent witness could be had if a continuance was granted. The court did not abuse his discretion in overruling the motion which failed to show that appellant used diligence to get the witness and that a continuance would result in securing the testimony. Hunter v. State, 180 Ark. 613, 22 S. W. (2d) 40.

The next assignment is that the instructions given by the trial court were erroneous. A general objection was made to each instruction, but an examination of them reveals that none of them are inherently wrong, and, when read together, correctly declared the law applicable to the facts in the case. It would extend this opinion and could serve no useful purpose to set out the instructions.

The next assignment is that the testimony of appellant’s alleged accomplice was not substantially corroborated.

James Wallace, the alleged accomplice, testified in substance, that he and appellant agreed to burglarize McKinney’s store in Yan Burén on the night of March 1,1930; that a little aftér one o’clock a. m. he entered the store through a window in the rear thereof which they broke with a hammer and handed certain goods and merchandise out to appellant; that as they were leaving they saw the night watchman approaching and dropped a part of the goods and that later the witness hid those which were not dropped near the river. The goods which were dropped were discovered the following morning and those hidden were pointed out to the officers by James Wallace.

Mrs. George Knight testified that James Wallace and Allen Taylor each came to her restaurant on the night in -question inquiring for the other and that about midnight she saw them together near the depot.

George Knight, the night watchman, testified that he saw James Wallace and Allen Taylor together about 2:30 o ’clock a. m. on the night in question going towards the back of McKinney’s store.

Appellant’s defense was that he was not with James Wallace on the night in question and that he did not assist him in burglarizing the McKinney store. The testimony of the Knights sufficiently corroborated the testimony of the alleged accomplice to connect appellant with the crime, and therefore to support the verdict. Powell v. State, 177 Ark. 938, 9 S. W. (2d) 583.

The next assignment is that the prosecuting attorney was permitted to inquire from witnesses who had testified to appellant’s good character whether it was not a fact that several other good hoys had gone wrong. Counsel for appellant had proved that he was a good boy on cross-examination, and we do not see how any prejudicial error resulted to him simply because the prosecuting attorney asked them whether they had not known, of other good boys going wrong.

No error appearing, the judgment is affirmed.


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    Wilbon v. Washington Fidelity National Insurance Company.
    Opinion delivered June 30, 1930.

      W. G. Dinning, for appellant.

      Brewer ■& G raer aft, for defendant.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in giving each of said instructions directing the jury that if they found from a preponderance of the testimon}^ that the assured had heart trouble in December, preceding the application for insurance, and this was known either to the assured or the beneficiary and was not disclosed to the defendant before the policy was issued, to find for the defendant. The provision in the policy relative to answers in the application being representations and not warranties is like those held to be representations in the cases of Old Colony Life Insurance Co. v. Julian, 175 Ark. 359, 209 S. W. 366, and Bankers’ Reserve Life Ins. Co. v. Crowley, 171 Ark. 135, 284 S. W. 4. In the latter case it was said: ‘ ‘ The questions propounded in the application as set out above call for answers founded on the knowledge and belief of the applicant and a misrepresentation or omission will not avoid the policy unless wilfully and knowingly made with an intent to deceive.” It is true the application appears to be signed by Percy L. Wilbon, but it is also signed by the father, appellant, with the statement required because of the applicant being under 15 years of age. There is no testimony tending to show that the under-10-year-old insured answered the questions in the application, except in the statements in the certificate thereto appearing to have been signed by him, and, if he had done so, being a minor of such tender age, he could not be expected to know whether the representations were correct and true, and certainly could not be held in making any misrepresentations to have made them wrongfully and knowingly with an intent to deceive such as would have avoided the policy. All of said instructions therefore — telling the jury that if they found that the insured or the beneficiary knew that the insured had had heart trouble preceding the application for insurance and did not disclose the fact to the insurer before the policy was issued and if either the assured or the beneficiary answered “No,” to the inquiry if the assured had ever had heart trouble and either of them knew that he had had heart trouble and if they found that either the assured or the beneficiary stated to the agent of the insuring company in answer to a question asked that the assured had never had heart trouble/4with the intent to deceive the company, etc.”, they should find for the defendant — -were incorrect and erroneous on that account, and inherently wrong, and necessarily call for a ■reversal of the case.

Since the beneficiary was not only required to consent to the application for insurance for his minor son, but to certify that the answers made to the questions in the application were complete and true in every particular, he was bound by such statements and representations to the same extent only, if they proved to be false, as if he had made such, representations upon an application for insurance upon his own life wrongfully and with an intent to deceive and not otherwise. The court therefore erred in giving each of the said instructions permitting the insurer to avoid liability on its policy if they found such misrepresentations had been knowingly made with the intent to deceive, either by the insured or the beneficiary.

For this error the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


author: Mehaffy, J.

text:
    Witten v. Wegman.
    Opinion delivered June 30, 1930.

      W. H. Bwnblazier and Joseph R. Brown, for appellant.

      Cravens <& Cravens and Warner & Warner, for appellee.
   Mehaffy, J.

This suit was begun by John Wegman, a nephew of Conrad Wegman, deceased, to have the will of Conrad Wegman construed and to have that part of said will which attempted to create a trust, declared void. Earl S. Witten, the appellant, is a nephew of Ettie Wegman, deceased, and claims the property mentioned in said will as the heir at law of said Ettie Wegman. Earl 5. Witten was made a party defendant and filed answer and cross-complaint and prayed that the title to the property be declared to be in him and that the complaint of plaintiff and cross-complaint of William Wegman be dismissed. The other defendants answered, and defendant William Wegman, who was the brother of Conrad Wegman and the owner of an undivided one-half interest in the property, filed answer and cross-complaint and prayed that the property be partitioned. Plaintiff filed a demurrer to the answer and cross-complaint of Earl S. Witten. Numerous pleadings and amendments were filed 'by the parties, but it is not necessary to set them out, as the only question involved is the right of appellant to the property in question. Appellant states, “The construction of the third paragraph of Conrad Wegman’s will determines appellant’s right to the property in question. The trust void, in whom did title to the property vest upon testator’s death?”

We agree with appellant in this statement. By the second paragraph of the will, Conrad Wegman gave to his wife, Ettie Wegman all of his personal property. The third paragraph of the will is as follows: “My brother, William Wegman, and myself are the owners of lot No. seventeen, south side of Garrison Avenue, Fort Smith, Arkansas, and the 'building thereon and also a fractional lot in the rear of lot seventeen, inherited from our parents, and it is my will that my half interest in the said real estate shall go to my said wife, and it is hereby bequeathed to her for and during her natural life, out of which she is to enjoy the rents and profits during her lifetime; and in the event she should agree with my said brother to. sell the same, it is my desire that the proceeds of the sale be put in, a trust fund, out of which fund my said wife shall receive the interest during her natural life, and at her death it is my will that the property mentioned in this paragraph shall gn toward building a home for old and dependent women in the city of Fort Smith, Arkansas, named for and in honor of my sainted mother, Mary Wegman.” The special trustee filed pleading and prayed that the complaint be dismissed, and that said will in all respects be upheld.' He alleged that the trust created by the will was a legal, valid and subsisting trust and capable of being carried into effect. He did not appeal from the decision against him. The chancellor held that all the right, title and interest of Ettie Wegman in the property terminated upon her death, and that the provisions of said will whereby the testator áttempted to create a trust are insufficient to create a trust and are null and void; that upon the death of Conrad Wegman the title to the property involved vested in the heirs-at-law of the said 'Conrad Wegman. The third paragraph of the will provides that upon the death of Ettie Wegman, “It is my will that the property mentioned in this paragraph shall go toward building a home for old and dependent woman in the city of Fort Smith. ’ ’ It will be observed that no one was appointed or authorized to be appointed to direct how and according to what plans the home should be built or to accept it when built. The property was not bequeathed or devised to anyone. The beneficiaries were not named. The devise for the home is too vague, indefinite and uncertain to be capable of enforcement. Ingram v. Sutherland, 89 Ark. 596, 117 S. W. 748 ; Wallace v. Wallace, 179 Ark. 30, 13 S. W. (2d) 810 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524.

The provision attempting to create a trust being void, in whom did title to property vest upon testator’s death? Appellant cites and relies on Booe v. Vinson, 104 Ark. 439, 149 S. W. 524. In that case the court said: “It was his evident purpose to provide at least such income for the maintenance of the legatees for the time specified, for the last of the sentence shows that at their death ‘what is left, if anything, be used for charitable purposes, ’ indicating a desire only that what remained of the estate, after the distribution to appellees, if anything there was, should be diverted to another purpose.” The language of the will in the Booe case was: “All my estate, real, personal and mixed, I give and bequeath to my aunt, Mrs. Carrie Vinson, and her daughter Bennie Vinson, subject to the following conditions and bequests.” That is, he gave the legatees named his entire estate subject to the conditions named. He did not undertake to limit it to their natural lives. Again it is said in the Booe case: “'Nowhere is there anything expressed in the will to indicate that, if it had been known to the testator that the gift of charity would fail, he would not have been willing for appellees to have absolute control and ownership of all the property given them.” Moreover, the legatees in the will construed in the Booe case were the sole and only heirs at law of said testator. In the instant case the property was bequeathed to Ettie Wegman for and during her natural life. It was clearly the intention to bequeath a life estate only.

The case of Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, 131 Am. St. Rep. 595, and the case of Provenchere’s Appeal, 67 Pa. St. 463, relied on by appellant, announce the doctrine that the object in construing wills is to ascertain the intention of the testator. This is the rule in this State. We said in the case of Booe v. Vinson, supra: “The purpose of construction of a will is to ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. ’ ’
The next authority relied on by appellant is 40 Oyc. 1410. It is there said: “The presumption against partial intestacy, however, arises only where an intention to pass the whole estate is expressed in some form, and it cannot avail where the language used by the' testator is plain and unambiguous; and hence the presumption may be rebutted and intestacy upheld as to part of the estate where it is clearly apparent from the will that the testator did not intend to dispose of all his estate by will.”

It is also said in 40 Cyc. 1412: “Where any ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will; hence such a construction should be given the will as favors the heirs at law, or next of kin, in preference to disinheritance, or to strangers, or persons not so closely related to the testator, and heirs at law will not be disinherited by mere conjecture, but only by express words in the will or by necessary implication arising therefrom.” In the will here involved it is clearly stated that the wife shall have a life estate, and it would be unreasonable to hold that the testator intended, if the trust failed, that strangers rather than his next of kin should take his property. In the absence of provision to the contrary, the property included in a trust will pass to the heir or next of kin of the testator rather than to strangers. 40 Cyc. 1818 ; 26 R. C. L. 1216.

The testator gave his wife a life estate only, and when the trust failed, his property, at the death of the life tenant, goes to his heirs. The decree of the chancery court is affirmed.


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    Post v. State.
    Opinion delivered June 30, 1930.

      G. C. Garter and Jesse Reynolds, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaeey, J.

The appellant was indicted, tried and convicted in the Franklin Circuit Court of the crime of manufacturing liquor. Appellant’s premises were searched, and there was found in a little house about forty feet from his dwelling about one and one-half gallons of whiskey in a three-gallon keg. There was about a truck load of old boxes, bottles and jugs, a barrel of wine and eighty-two bottles of home-brew. The officers said that appellant told them he made the home-brew for his own use. Appellant denied this, and he testified that he used the liftle house for a junk house and that there was a man living in it; that he did not know the whiskby was there. He admitted that he said that he made what was in the barrel. He said he had more strawberries than he could sell; that he put strawberries in the barrel without intentionally doing anything with them; he thought the berries would probably make vinegar. He was only at home part of the time. He said the liquid in the barrel that witnesses called wine was vinegar. The witnesses testified that a man named Jake Schriver lived in the little house. There was some conflict in the evidence but some of the witnesses testified that the barrel contained wine, and they also testified that appellant said the stuff in the bottles was his. The evidence showed that Schriver lived in the little house five or six months and that appellant would leave early in the morning and come home late at night. Appellant contends that the court erred in permitting the beer and wine to be exhibited to the .jury for the purpose of determining whether it contained alcohol. It was not error to permit jurors to make an examination to determiné,' in connection with the testimony of the witnesses whether it was alcohol. State v. Ling, 198 Iowa 598, 199 N. W. 285 ; Thiele pape v. State, 89 Tex. Cr. Rep. 493, 231 S. W. 769 ; Enyart v. People, 70 Colo. 362, 201 Pac. 564 ; State v. Burcham, 109 Wash. 625, 187 Pac. 352 ; State v. Dascenzo, 30 N. M. 34, 226 Pac. 1099 ; State v. Simmons, 183 N. C. 684, 110 S. E. 591.

It is next contended that the court erred in permitting Ledgerwood to testify that he tasted the wine, but did not drink enough to say whether or not it was intoxicating and to further testify that it was wine. This was competent testimony. A witness may testify as to his opinion as to whether liquor is intoxicating from tasting it. He may also testify as to its effect from drinking it. Joyce on Intoxicating Liquors, p. 717.

“If from use or by any other means a citizen knows what whiskey is, he may be a competent witness to the character of liquor. It does not require a scientific expert to identify a well known article of manufacture and commerce in common use. One who had drunk whiskey, who is familiar with its taste and smell, can give opinion evidence as to whether the beverage sold and drunk was whiskey. * * * The same reason applies with almost equal force to wine. ’ ’ Blakemore on Prohibition, p. 164.

It is next contended that the court erred in calling the jury back after they had deliberated for some time, and giving a cautionary instruction. Appellant argues that by giving this instruction the court tells them that it is their duty to agree; that that is what they are required to do under their oath. The court did not tell the jury they were required to agree. They were told that it was their duty to try to reach a result. Appellant calls attention to Stocktons v. State, 174 Ark. 472, 295 S. W. 397. The court, however, in that case said: “A short cautionary instruction * * * would not therefore be within the constitutional prohibition.” The instruction in the Stockton case the court said was long, involved and argumentative. The instruction in the instant case is not subject to the objection pointed out by the court in the Stockton case.

In the next case referred to, Stepp v. State, 170 Ark. 1061, 282 S. W. 684, the court expressly stated that the trial court might give an instruction like the one in the case at bar. In the next case cited and relied on by the appellant, Clarkson v. State, 168 Ark. 1122, 273 S. W. 353, the instruction was approved by the court. There was no error in giving the instruction given in this case. Mallory v. State, 141 Ark. 503, 217 S. W. 482 ; Whitley v. State, 114 Ark. 243, 169 S. W. 952.

The appellant contends that the court erred in refusing to give certain instructions requested by him, but these instructions were all covered 'by instructions given by the court. It was not error to refuse to grant a new trial on the ground of newly discovered evidence. The iiewly discovered evidence was cumulative, and the appellant did not allege any facts showing that he had used diligence. Reeder v. State, 181 Ark. 813, 27 S. W. (2d) 989.

Appellant contends that the judgment should be reversed because the verdict was not unanimous and presents to the court the affidavit of jurors. Section 3220 of C. & M. Digest is as follows: “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” The affidavits do not tend to establish that the verdict was made by lot, but are for an entirely different purpose. Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.

We find no error, and the judgment is affirmed.


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    Henson v. Malvern.
    Opinion delivered July 7, 1930.

      ■ Oscar Barnett, for appellant.
   Per Curiam.

Ernest Henson was convicted of transporting intoxicating liquors in the city of Malvern. He was a taxicab driver in that city. It was proved that one of his passengers had a one-half pint bottle of whiskey in his pocket while riding in the defendant’s cab, but it was not shown that the defendant participated in the act or had any knowledge of it. Therefore the judgment is reversed, and the case is remanded with directions to discharge the defendant.


author: Hart, C. J.

text:
    Phillips v. State.
    Opinion delivered July 7, 1930.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

Noel Phillips prosecutes this appeal from a judgment convicting him of seduction. It is conceded, and the testimony of the prosecuting witness established the crime, but it is insisted that there is not sufficient evidence to sustain the verdict because there is no corroboration of the testimony of the prosecuting witness. In such cases before conviction can be had, it is necessary for the testimony of the prosecutrix to- be corroborated both as to the promise of marriage and the intercourse. Brooks v. State, 126 Ark. 98 ; McMaster v. State, 163 Ark. 194 ; Dooms v. State, 164 Ark. 50 ; Taylor v. State, 174 Ark. 800 ; Sloan v. State, 172 Ark. 44.

The evidence shows that a child was born to the prosecuting witness on the 6th of February, 1929. Other evidence than her own testimony tended to show that for about a year before that time the defendant had been keeping company with the prosecutrix and that she had ceased to go with other boys. She was also making preparations for her wedding. Her father had the defendant arrested after he discovered his daughter’s condition, and the defendant, through the deputy sheriff, made a proposition to the father that he would marry his daughter if the father would cause him to be released. A physician also testified that the defendant came to him with a proposition to cause a miscarriage of the prosecuting witness.

Under the authorities above cited these facts were sufficient to corroborate the testimony of the prosecuting witness. We have carefully examined the record. It shows that the defendant had a fair trial, and that his theory of the case was fully covered by the instructions given by the court. The instructions asked by him and refused were fully covered by those'given. We find no prejudicial error in the record, and the judgment will therefore be affirmed.