author: Hast, J.

text:
    Middleton v. State.
    Opinion delivered February 18, 1924.
    1. Criminal law — harmless error. — Though, before selecting the jury, the State announced that accused would be tried under one indictment, it was not error subsequently, before the jury was sworn, to permit the State to try him under another indictment, no prejudice being shown, and the accused not having requested the court to select a new jury or to excuse any of the panel selected.
    2. Criminal law — no reversal except for prejudicial error. — A judgment of conviction will not be reversed unless prejudicial error was committed.
    3. Criminal law — evidence of other crime. — Evidence of other crime is admissible to prove the specific crime charged when it tends to establish motive or guilty knowledge on the part of accused or shows it to ¡be a part of the same criminal plan or scheme as the main offense; it being necessary that some relation to or connection with the main offense exists.
    4. Criminal law — opening statement of prosecuting attorney^— In a prosecution of accused as accessory before the fact to grand larceny of an automobile, the opening statement of the prosecuting attorney that the State would prove that the accused had taken two other automobiles or caused them to be taken in the same way as the car mentioned in the indictment, was not improper, as such evidence would tend to show motive, or that the taking charged was part of a general scheme of accused to procure other persons to steal automobiles for him.
    5. Criminal law — discretion as to withdrawal of testimony.— A defendant is not permitted to sit by and allow testimony to be developed against him, and then, as a matter of right, have it withdrawn from the jury, and the exclusion of such testimony, once thus admitted, is within the trial court’s discretion.
    6. Criminal law — accomplice—corroboration.—Corroborating evidence need only tend to connect accused with the commission of a crime, but must do so independently of the testimony of the accomplice.
    7. Criminal law — corroboration of accomplice. — In a prosecution or accused as accessory before the fact to grand larceny of an automobile, corroborating evidence held sufficient to support the verdict.
    8. Criminal law — excluded testimony — prejudice.—Where, on appellant’s objection, the court refused to permit certain questions to be answered, and told the jury that the questions were incompetent, no error is shown.
    9. Witnesses — cross-examination of accused. — The cross-examination of accused as a witness as to his associates, antecedents and guilty connection with other crimes is largely within the discretion of the trial court, such matters affecting the credibility of the accused.
    10. Criminal law — admissibility of rebuttal evidence. — In a prosecution of accused as accessory before the fact to grand larceny of a car, where witnesses testified that they had met accused at a certain place after they had stolen cars for him, and accused, on cross-examination, denied having been there, testimony of another witness that he had been with accused and others at such place was competent to show a common scheme of accused in having ears stolen for him.
    11. Criminal law — instruction.—In a prosecution of accused as accessory before the fact to grand larceny of an automobile, where no objection until after its admission was made to testimony that two other cars were subsequently stolen, it was then discretionary with the trial court to exclude it, and, upon refusing to do so, it was proper to tell the jury that such evidence could be considered only as a circumstance tending to shed light on the question whether accused advised the theft of the car mentioned in the indictment.
    12. Criminal law — harmless error. — -No prejudice resulted where the court withdrew an instruction from the jury.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed:

      Murphy, McH'aney & Dunanoay, for appellant.

      J. 8. Utley, Attorney General, John L. Garter, Assistant, for appellee.
   Hast, J.

Clarence Middleton prosecutes this appeal to reverse a judgment and sentence of conviction against Mm for tlie crime of accessory before the fact to grand larceny.

The first assignment of error is that the court erred in allowing the defendant to he put on trial for the crime for which he was convicted after a jury had been selected to try him for a different offense.

It appears from the .record that the prosecuting attorney first announced that the State would try the defendant on another indictment; but, after the jury was selected, the prosecuting- attorney announced that the State would try the defendant on the indictment in question. The defendant, at the time, objected to the substitution of the indictment, and saved exceptions to the ruling of the court.

The change in the indictment was made because of the absence of a witness in the other-case. The defendant did not request the court to select the jury anew, or to excuse any of the panel selected. The jury had never been sworn to try the other, case, and was afterwards sworn to try the case at bar. It appears to us that, under the circumstances recited, the record shows that no prejudice resulted to the defendant, as far as the present case is concerned. He had already selected the jury as a fair one to try him under another indictment. The jury had not been sworn to try the first case. The defendant did not ask for them to be examined again as to any prejudice against-him in the case at bar. He did not ask that any of the panel be excused. It is well settled in this State that a judgment of conviction will not be reversed unless prejudicial error was committed by the trial court. Sellers v. State, 93 Ark. 313; Monk v. State, 330 Ark. 358, and Rogers v. State, 136 Ark. 161.

The next assignment of error is that the court erred in allowing the prosecuting attorney to say, in his opening statement to the jury, over the objections of the defendant, the following: “The prosecutor, in his opening statement to the jury, stated that the State would prove-that defendant had taken two other automobiles, or caused them to be taken, to one Woods ’ house, in the same wav as the Studebaker car mentioned in the indictment, and that said-cars had been stolen.”

The indictment under which, the defendant was tried and convicted charges him with advising and encouraging Noy McCallum and Louis Craig to steal an automobile from the Studebaker Corporation of America. To sustain their contention on this assignment of error, counsel for the defendant invoke the general rule that the commission of one crime is not admissible in evidence to prove the accused guilty of some other crime. It is equally well settled that there are several exceptions to the general rule. Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish motive on the part of the defendant, or that the evidence of the other offense shows it to be a part of the same criminal plan or scheme as the main offense. In other words, there must be, in the extraneous crime thus sought to be proved, some relation to or connection with the main offense. There must be a common motive or intent running through all the transactions, or they must be such in their nature as to show guilty knowledge on the part of the defendant at the time of the main transaction. Reed v. State, 54 Ark. 621; Nash v. State, 120 Ark. 157, and Hall v. State, 161 Ark. 453.

The statement of the prosecuting attorney is that the State would prove that the defendant had taken two other automobiles, or caused them to be taken, to Woods’ house in the same way as the Studebaker car mentioned in the indictment. This would tend to show a motive on the part of the defendant which induced him to advise and encourage McCallum to steal the car in question, or to show that it was a part of the general scheme of the defendant to procure other persons to steal automobiles for him.

The next two assignments of error relate to the testimony of Noy McCallum and Louis Craig, and may be considered together.

Noy McCallum was a witness for the State, and testified, without objection, that he stole the Studebaker car at the instigation of the defendant, and carried it out in the country to Woods’ house. Subsequently the defendant met Mm and Craig in a restaurant, and advised them to steal other ears to be used by him in running whiskey. No objection was made to any of the testimony of Mc-Callum.

Louis Craig was also a witness for the State, and testified about helping McCallum to steal two automobiles at different times, at the instigation of the defendant. The defendant advised them to steal the automobiles to be used by him in running whiskey, and agreed to pay them for doing’ it. On cross-examination he was asked if he had any knowledge of the stealing of the Studebaker car, or in any manner participated in it. Craig replied that he had nothing whatever to do with it.

Counsel for the defendant then moved to exclude the testimony with regard to the other stolen -cars, except the Studebaker car charged in the indictment, and saved their exceptions to the ruling of the court in refusing to exclude the testimony.

It is the -contention of counsel for the defendant that the theft of the other two cars occurred subsequently to the theft of the Studebaker car charged in the indictment, and that therefore proof of these crimes in no sense would be a part of a common scheme on -the part of the defendant to steal automobiles. They claim that the thefts of the other two cars, subsequent to that of the Studebaker car, are distinct transactions, and in no way -connected with the theft of the Studebaker car.

We need not decide this question. Under our rules of practice, counsel could not wait until after the testimony had been admitted and then, as a matter of right, have it excluded, even if the theft of the other cars had no connection with or relation to the theft of the Studebaker car. They should have objected, in the first instance, to its introduction because no connection was shown between the two thefts.

A defendant is not permitted to sit by and allow testimony to be developed against him and then, as a matter of right, have it withdrawn from the jury. The. exclusión .of the testimony, after it had been offered, was a matter in the discretion of the court, and it does not appear to us that the court abused its discretion in this respect. It cannot be said that counsel for the defendant were misled by the court’s action in allowing the opening statement of the prosecuting attorney with regard to the two thefts. There it was stated by the prosecuting attorney that he would prove that the defendant had taken two other automobiles, or caused them to be taken, to Woods’' house in the same way as the Studebaker car. This, as we have already seen, would tend to show a common scheme on the part of the defendant to procure the theft of all the automobiles as a part of a common plan, and it does not appear that the opening statement of the prosecuting attorney was not made in good faith. Hence we are of the opinion that the defendant should have objected . to the testimony of McCallum and Craig, with reference to their subsequent theft of automobiles, because they were not related to or connected with the theft of the Studebaker automobile, at the time the testimony was given.

The next assignment of error is that the evidence' is not legally sufficient to support the verdict. It is earnestly contended by counsel' for the defendant that there is not sufficient corroboration of the testimony of Roy Mc-Callum, who admitted that he stole the Studebaker car, and said that he did so at the instance of the defendant.

This court has uniformly held that the evidence relied upon for corroboration must, independently, and without the aid of the testimony of the accomplice, tend to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence should be sufficient to 'convict. It need only tend to connect the accused with the commission of the crime. Brewer v. State, 137 Ark. 243, and Haskins v. State, 148 Ark. 351. Tested by this rule, we think the corroborating evidence was sufficient.

H, F. Caskey, a salesman for the Studebaker Corporation, testified that a five-passenger Studebaker automobile was stolen from that corporation about'ten o’clock in the morning in April, 1923, from the northwest corner of Fifth and Scott streets, in Little Rock, Arkansas. The witness stated that he first saw the automobile, after it had been stolen, at a farmer’s house in Saline County, Arkansas.

Qn cross-examination he stated that the automobile was stolen on the last day of April, 1923.

Roy McCallum was the principal witness for the State. According to his testimony, he is nineteen years of age, and lives with his father and mother in Little Rock, Arkansas. He had known the defendant for about a year and a half, at the date of the trial. On the 30th day of April, 1923, the witness stole a Studebaker car belonging to the Studebaker Corporation, from Fifth and Scott streets, in the city of Little Rock, Arkansas. He stole the car to make some money out of it,. He first carried the car to Albert Koban’s place, on the Nineteenth Street pike. Subsequently he carried the car to the farm of a man named Woods, and placed it under a shed there. On this occasion the witness drove the Studebaker car to Woods’ house, and the defendant went there in a Dodge car. The witness came back to Little Rock with the defendant in his Dodge car. • The defendant went there for the purpose of bringing the witness back with him. The defendant talked with the witness about stealing cars for him before the car in question was stolen. The defendant did not tell the witness to steal this particular ear, but did procure him to steal cars for him. The defendant had the witness to carry the car to Woods’ house for the purpose of hiding it, and then brought the witness back to town with him. About a month after this the defendant met the witness and Craig in a restaurant, and made arrangements with them to steal cars for him,to be used in running whiskey. Pursuant to this plan, the witness and Craig first stole-a Hupmobile car and then a Dodge car for the defendant.

Craig was also a witness for the State. According to his testimony, he assisted McCallum in stealing the Hupmobile and Dodge cars, bnt he did not have anything whatever to do with stealing the Studebaker car.

The theft of the automobile by some one is established by the testimony of Caskey, and Roy McCallum testified that he stole it, under the advice and procurement of the defendant. This made McCallnm an accessory, and the court told the jury, as a matter of law, that his testimony must be corroborated, within the rule announced above, in order to convict the defendant. That is to say, it must be shown by other evidence that the defendant was connected with the commission of the crime. The State relied for corroboration upon the testimony of H. W. Woods and his son, Clarence Woods.

According to the testimony of H. W. Woods, he lived about a mile and a quarter from the turnpike road, in Grant County, Arkansas, and was engaged in farming. He has known the defendant five or six years. A brother of the defendant had married one of Woods’ daughters. Woods had only seen Roy McCallum one time before he brought the Studebaker automobile to his house. Some time before this the defendant and McCallum came by Woods’ house and asked him about some dogs. They were in a Ford car at that time. They only stayed a few minutes, and the defendant'called McCallum “Skimpy.” The next time McCallum came to Woods’ house was when he brought the Studebaker car in question. He drove the car there by himself. The defendant was already there. He came in his Dodge car, and had been there about two hours when McCallum came. Woods went on about his work, and supposed that McCallum and Middleton left the place together. Anyway, the witness left them at the house together, and when he came back they had gone. The car stayed under the shed at Woods’ house something over a week, and then McCallum came back and got it. It was shown bv other testimony that Woods lived about twenty miles from Little Rock.

Clarence Woods corroborated the testimony of his father about McCallum and Middleton coming to the house, separately, on the day that McCallum brought the Studebaker -car there. Pie says that he did not see the defendant and McCallum leave together, but thinks that they did so. The witness was at work around the place, and knew that they left about the same time.

We think this testimony of Woods and of his son was sufficient corroboration of the testimony of McCallum. Woods lived about twenty miles from Little Rock, which was the home of the defendant and of McCallum. McCallum had never seen Woods but once before. Then he came by there with the defendant, and only stayed a few minutes. The defendant called McCallum ‘ Skimpy, ’ ’ which indicated that he was familiar with him. The next time McCallum came back he brought the stolen car for the purpose of leaving it there. The defendant had been there about two hours when McCallum arrived with the stolen car. Woods and his son soon left and went about their work, leaving the defendant and McCallum at the house together. When they returned both of them had gone. The circumstances indicated that the defendant was at Woods’ house, waiting for McCallum to arrive with the stolen car, and that they left together in the defendant’s car to return to Little Ro-ck. The attending circumstances tended to establish these facts, and this is what McCallum testified were the facts. This testimony of MeCallum’s is sufficiently corroborated by the testimony of H. W. Woods and his son. When their testimony is considered together, with all the reasonable inferences to be drawn from it, it appears that the' defendant was connected with the theft of the automobile. Of course, according-to his testimony and the evidence adduced in his behalf, he was not guilty. The jury was, however, the judge of the -credibility of the witnesses, and, they having found the defendant guilty, the verdict must stand .if there is any testimony legally sufficient to support it.

Being of the opinion that the evidence of McCallum was sufficiently corroborated, the jury was warranted in finding the defendant guilty. See Haskins v. State, 148 Ark. 351, and Owens v. State, 159 Ark. 503.

The next assignment of error is that the court erred in permitting the prosecuting attorney to read over an alleged statement made by IT. "W. Woods, in the presence of the officers, which statement tended to contradict his own testimony. The record shows that the prosecuting attorney asked the officers if Woods had made certain statements to them, and if he was not asked certain questions and had answered them. Counsel for the defendant made objections to this testimony, and the court expressly excluded the testimony from the jury. The court told the jury, in plain language, that the questions were incompetent, and the answers were not read to the jury as evidence. Hence the assignment of error is not well taken.

The next assignment of error is that the court erred in permitting the prosecuting attorney, in his cross-examination of the defendant, to ask him if he had not been guilty of certain minor criminal offenses. The cross-examination of a witness as to his associates, antecedents, and guilty connection with other crimes, is largely within the discretion of the trial court. Such matters affect the credibility of the defendant as a witness, and it does not appear that the court abused its discretion in this respect. Hollingsworth v. State, 53 Ark. 387, and Noyes v. State, 161 Ark. 340.

It is next insisted that the court erred in allowing the State to show in rebuttal, by Godwin Brown, that he had been with the defendant and other persons to Koban’s place one night. The defendant had been asked, on cross-examination, if he had not been to Koban’s place last winter, and he replied that he had not. He stated further that he had never met Koban until recently. MoCallum and Craig both had stated that they had been to Koban’s place and had met the defendant there, after they had stolen cars for him. The evidence was competent, as being a part of the circumstances, to show a common scheme or plan on the Dart of the defendant in having automobiles stolen for his use in running whiskey.

The next assignment is that the court erred in its instructions to the jury. The court was asked by the defendant to tell the jury that they could not consider, for any purpose, that there were two other cars stolen besides the Studebaker car. The court refused to so instruct the jury. It told the jury, however, that it could not convict the defendant unless it found him guilty of the specific charge laid in the indictment. The jury was told that the evidence of the theft of the other two automobiles was only competent as a circumstance shedding light upon whether or not the defendant counseled, aided, or abetted in the commission of the larceny charged in the indictment.

As we have already seen, no objection was made to this testimony until after it had been given. It was then a matter of discretion with the court as to whether the defendant should be allowed to object to the testimony and have it excluded from the jurjr. There is no abuse of the discretion of the court in refusing to exclude the testimony after it had been admitted, and it was therefore proper to tell the jury that it could only be considered as a 'circumstance tending to shed light on the main fact, and that was whether the defendant had advised the theft of the Studebaker car, as charged in the indictment.

Objection is also made to instruction' No. 15. It appears from the transcript that the court withdrew it from the jury. We do not need to set out the instruction for that reason. If the court withdrew it from the jury, it could not have prejudiced the defendant at the trial.

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


source: Caselaw Access Project

author: Habt, J.

license: Public Domain

text:
    Phillips v. State.
    Opinion delivered February 18, 1924.
    1. Robbery — sufficiency of evidence. — In a prosecution for robbery, evidence held to warrant a conviction.
    2. Criminal law-former testimony of absent witness. — Where a witness has testified in a former trial or in a proceeding before an examining court, and the accused has had opportunity to cross-examine him, his testimony on such trial is competent on a subsequent trial, on a proper showing that the witness is dead or beyond the court’s jurisdiction.
    3. Criminal law — testimony before examining court. — An examining court may take the testimony of the prosecuting witness without inquiring of the accused whether he desired the aid of counsel, and, where accused cross-examined the witness, it was permissible to read the testimony of such witness on a subsequent trial, where the witness was beyond the court’s jurisdiction.
    4. Criminal law — aid of counsel in examining court. — Crawford & Moses’ Dig., requiring the examining court, before commencing the examination, to inquire of the defendant whether he desires the aid of counsel, is directory and not mandatory.
    5. Statutes — directory and mandatory acts. — In determining whether a statute shall be construed to be mandatory or directory, the purpose of the act, the end to be accomplished, the consequences that may result from one meaning or the other, and the context, are to be considered.
    6. Criminal law — right to aid counsel. — Where defendant’s counsel made arrangements with the deputy prosecuting attorney to have him notify counsel of the date when the case was set, but, when the case was set, the defendant was asked whether he desired the deputy to write to his counsel, and defendant stated that he had written to his stepfather who employed the counsel, and at the trial the court asked defendant whether he desired to be represented by counsel, and he answered “No,” it was not an abuse of discretion to proceed to trial without' furnishing defendant an attorney to represent him, as the right to have the aid of counsel may be waived.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    affirmed.

      W. G. Dinning, for appellant.

      J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Habt, J.

Luke Phillips prosecutes this appeal to reverse a judgment of conviction against him for the crime of robbery.

J. M. Walker, a witness for the State, testified that he was present in the municipal court at the time the defendant had his preliminary examination, and took down the testimony of George Glenn, the prosecuting’ witness in the case. Walker first took down the testimony of Glenn in shorthand, and reduced it to writing, and swore the witness to it. The transcript of the testimony shows that the prosecuting witness was cross-examined. The transcript of Glenn’s evidence is a correct statement of his testimony, and it was signed by him.

J. D. Mays, sheriff of Phillips County, was a witness for the State. According to his testimony, a subpoena was placed in his hands for George Glenn, but he was unable to find him. He found out that George Glenn was a nonresident.

The testimony of George Glenn taken at the examining trial was next read to the jury by the State. It is substantially as follows: I am seventeen years old, and reside at Whitmire, S. O. I recognize the defendant, Luke Phillips, and first saw him on Sunday evening, the 26th of August; I saw him at some 'place where we stopped to let a passenger train pass. The defendant robbed me of $10.76. There were two five-dollar bills, five buffalo nickels, one rusty one, one woman-headed nickel, one dime and six pennies, and one quarter. I was asleep, and the defendant flashed a light in my face, and held a gun on me. He made me turn around, and then put his pistol in his left hand, and then took the money from me. I was riding on the train at the time. I reported the robbery to the conductor, and pointed out the defendant as the man who robbed me. The witness further stated that he was positive that the defendant was the man who robbed him, and that the defendant got off of the train near the bridge south of Lexa, in Phillips County, Ark,

We copy the cross-examination of the witness by the defendant. It is as follows: “Q. What kind of a flashlight did I have? A. .A bright flash-light and nickel-plated gun. Q. You say the light was lit? A. Yes sir. Q. Was it working all right? A. Yes sir. Q. You say the train had stopped' to let a passenger train pass? A. Yes sir. When I woke up you were standing over me.”

The record shows that the testimony was signed by George Glenn, witnessed by J. G. Burke, judge, and sworn to before J. M. Walker, a notary public, on the 29th day of August, 1923.

T. B. Poe, a brakeman and deputy constable, was the next witness for the State. According to his testimony, he resided at Lexa, Ark., and has known the defendant since he was arrested some time in August, 1923, on the charge of robbery. When the witness approached the defendant to arrest him he was sitting on the end of a tie, in the railroad yards at Lexa, Ark. The witness went up behind the defendant and told him to get up. When the defendant got up, he had a flashlight in one hand’ and a pistol in the other. The witness searched the defendant, and found a pocketbook with two or three dollars in it, and seventy-six cents in loose change in his pocket. He was searched by the witness for the two five-dollar bills which the prosecuting witness had reported had been taken from him, but failed to find them. After he had carried the defendant to the jail, he searched his clothes and found a mask in his pocket, and' two five-dollar bills pinned up between his shoulders in his underwear. When the defendant was carried into the presence of George Glenn, the latter at once said, “That’s the fellow; that’s the man.” George Glenn told the witness of the different denominations of the money, amounting to $10.76, of which he had been robbed, and the money found by T. B. Poe, the deputy constable, on the defendant corresponded with his description of it. This all happened in August, 1923, at Lexa, in Phillips County, Ark. The defendant was a witness for himself, and denied his guilt. The evidence for the State, however, warranted the jury in returning a verdict of guilty.

The assignment of error upon which counsel for the defendant chiefly rely for a reversal of the judgment of conviction, and upon which they devote the most time in their brief, is that the court erred in permitting the prosecuting attorney to read ¡to the jury the testimony of George Glenn taken at the examining trial.

Section ten of the bill of rights in our Constitution provides that, in all criminal prosecutions, the accused shall have the right to be confronted with the witnesses against him.

The rule is well established in this State and elsewhere that, where a witness has testified in a former trial or proceeding in an examining court, and the accused has had an opportunity to cross-examine him, his testimony on such trial is competent on a subsequent trial, on a proper showing that the witness is dead or beyond1 the jurisdiction of the court at the time of the subsequent trial. Poe v. State, 95 Ark. 172; Eyer v. State, 112 Ark. 37; Ruloff and Berger v. State, 142 Ark. 477; Williams v. State, 156 Ark. 205; and case-note to Ann. Cas. 1913-C at 464.

It is conceded that the testimony of the sheriff was sufficient to show that George Glenn lived in another State, and was therefore beyond the jurisdiction of the court; but it is insisted that the testimony is inadmissible because the examining court did not ask the defendant whether he desired the aid of counsel before commencing the examination. Counsel for the defendant rely upon § 2918 of Crawford & Moses’ Digest, which is part of the procedure for magistrates holding examining courts in felony cases. Section 2918 reads as follows: “When a person who has been arrested shall be brought, or, in pursuance of a bail bond, shall come, before a magistrate of the county in which the offense is charged to have been committed, the charge shall be forthwith examined, reasonable time, however, being allowed for procuring counsel and the attendance of witnesses. TÍie magistrate, before commencing tlie examination, shall state the charge, and inquire of the defendant whether he desires the aid of counsel, and shall allow a reasonable opportunity for procuring it.”

According to the decisions cited above,' the right secured by the Constitution to the defendant to be confronted with the witnesses against him is satisfied when, at some stage of the case against him, in a proceeding authorized by law, he meets the witnesses face to face and is given an opportunity to cross-examine them. The defendant in this case did meet the prosecuting witness face to face in the examining court, and cross-examined him, so that there was no infringement of the constitutional guaranty.

It is insisted that the statute is mandatory, and that the examining court had no right to take the testimony of the prosecuting witness until he had inquired of the defendant whether he desired the aid of counsel. We cannot agree with this contention. It is contrary to the reasoning and holdings of the court in our own cases bearing on the question. This court has held that the accusation returned by a coroner’s jury and the commitment by the coroner have the force and effect of an examination and commitment by a justice of the peace. Ex parte Anderson, 55 Ark. 527.

In McNamara v. State, 60 Ark. 400, it was held that, on a trial for murder, the deposition of a witness who has since removed beyond1 the court’s jurisdiction, taken before the coroner and reduced by him to writing, is admissible where defendant was, at the time it was taken, in custody before the coroner, charged with the commission of the offense, and had an opportunity to cross-examine the witness, and was legally called upon to do so, though he was not at the time represented by counsel. In that ease the court, in discussing the provision of the Constitution above referred to, said that the defendant did not ask to be represented by\ounsel, and hence was deprived1 of no right in that regard. The court further said: “The witness was under oath, and •the substance of his testimony was reduced to writing by the coroner, and, while the record does not show that the testimony was read to and signed' by the witness, appellant made no objection in the court below, and has urged none here on that account, presumably for the reason that this was done. The defendant had the power to cross-examine, was notified by the coroner of his right, and was legally called upon to do so. If he did not choose to avail himself of the opportunity, it does not lie within his mouth to complain.”

Again, in Poe v. State, 95 Ark. 172, where the defend’ant was charged with the crime of rape, and was convicted by a petit jury of that crime, one of the assignments of error was that the court erred in admitting the testimony of two witnesses at the examining trial of the defendant before a justice of the peace. In discussing the question the court said: “At the examining trial the witness, Cotham, was present and heard the testimony there given by these two women, and, as court stenographer, took stenographic notes of their evidence and after-wards transcribed the same. Upon the trial in the circuit court he testified that this evidence was given by these two witnesses at the examining trial; there was no written statement thereof signed by them. The defendant was present at the examining trial, but without counsel. He was given the opportunity to cross-examine these two witnesses, and did propound to one of them some questions. 'It was shown, by testimony which the trial court found sufficient, and which we find to be sufficient, that these two witnesses were beyond the jurisdiction of the court at the time of the trial of the case in the-circuit court. It was competent to prove what these two witnesses testified upon the examining trial.”

The court further said: “Nor was it necessary, in order to render this testimony competent, that the defendant should have been represented by counsel at the examining trial. Butler v. State, 83 Ark. 272.” In discussing the question in the latter case, the court said: “Counsel also argue that the testimony of the absent witnesses -was not competent, because the defendant was not represented by counsel at the examination before the justice of the peace, when the testimony was given. It is not necessary, in order to render the testimony competent, that the defendant should have been represented by counsel. The law does not provide that an accused person must have counsel in a preliminary examination before a justice of the peace or other committing court. That is a privilege which he may or may not take advantage of, as he chooses. The constitutional guaranty that he shall have an opportunity to be confronted with the witnesses against him is fulfilled by his presence when the testimony is given.” Butler v. State, 83 Ark. 273.

We think it logically results from the reasoning of the court in these two cases, that the requirements of the statute as well as of the Constitution are met where the defendant is not denied the right of employing counsel and is given the opportunity to cross-examine the witnesses at the examining trial.

The case of People v. Napthaly, 105 Cal. 641, 39 Pac. 29, is not authority to the contrary. In that case the record showed that, at the preliminary examination before the magistrate, the defendant was not represented by counsel, and that the magistrate refused to continue the examination for the purpose of enabling him to employ counsel, and that the magistrate entirely failed to inform the defendant of his rights, as required by the statute. Under the circumstances the court held that he had not been legally committed by the magistrate, because he had been refused an opportunity to procure counsel. This is shown by the case of People v. Figueroa, 66 Pac. 202, which was decided by the Supreme Court of California at a later date. In that case it was said that, in the absence of a showing to the contrary, it will be presumed that the magistrate before wliom the defendant was first brought after his arrest duly informed him of his right to the aid of counsel in every stage of the proceeding. So it will be seen, even where the statute is construed to be mandatory, that there is a presumption that it has been complied with, in the absence of a showing to the contrary.

As above stated, we think our statute is only directory to the magistrate. When a statute relates to the manner in which power or jurisdiction in a public officer is to be exercised, and not to the, limits of the power or jurisdiction itself, they may be, and often have been, construed to be directory. In determining whether the words shall have a mandatory or directory effect ascribed to them, the purposes of the act, /the .end to be accomplished, the consequences that may result from one meaning or the 'other, and the context, are to be considered. Nixon v. Grace, 98 Ark. 505. In that case the court had under consideration the section of the statute which provides that, upon an indictment being found, the court shall forthwith make an order for process to be issued thereon.

The section of the statute under consideration in the present case prescribes the duties of the magistrate, directs, the manner in which the powers conferred upon him are to be exercised, but it does not create a limitation upon his powers or jurisdiction. While it is the duty of the magistrate to observe the safeguards mentioned in the statute for the benefit and protection of the accused, it cannot be said that his proceedings are without jurisdiction and void, where the record does not show that he has refused to observe them.

In this connection it may be stated that the Attorney General insists that proper exceptions to this testimony were not saved at the trial of the case. We do not decide whether the contention of the Attorney General is correct or not. We have concluded to treat the assignment of error discussed above as properly presented1 for review in this court, and, for the reasons given above, hold that it is not well taken.

The next assignment of error is that the defendant was not represented by counsel in the lower court. It appears from the record that the stepfather of the defendant employed counsel in the State of Mississippi, and that his counsel had made some sort of arrangement with the deputy prosecuting attorney to be notified of the date when the case was set for trial. By a series of misunderstandings, counsel did not get to the court until after the case had been tried and the defendant convicted.

Counsel who had come to represent the defendant admitted that the deputy prosecuting attorney had explained to him, on his arrival, that he had sent to the jail and asked the defendant if he wished him to notify his counsel, and that the defendant had reported that he had already written-to his folks. The deputy prosecuting attorney said that he had then dismissed the matter from his mind. On this point the jailer and deputy sheriff was called by the State. According to his testimony, he and the defendant were present in open court on Friday, November 2, at the time the case of the defendant was set for trial on November 12 inst., which was on Monday. The defendant was advised of the day that the case' was set for trial. The court had instructed the sheriff or jailer to see that the attorney for the defendant was notified of the day of the trial. The jailer then asked the defendant if lie wanted him to write to his attorney, and the defendant replied no, that he had already written to his stepfather. His stepfather had employed the attorney. This conversation with the defendant was two or three days after the case had been set for trial. This was in ample.time for the defendant to have notified his attorney of the day upon which the case was set for trial, and it cannot be said that the court abused its discretion in not continuing the case on account of the absence of the defendant’s attorney. When the case was called for trial, the court asked the defendant if he wanted him to appoint an attorney to represent him, and the defendant replied no.

This court has held that the constitutional guaranty of the right of the defendant in a criminal case to be heard in his own defense by himself and counsel is for the benefit of the accused, and that the accused may, at his option, decline to have counsel appointed to represent him, and conduct his own case. Williams v. State, 153 Ark. 289.

In a case-note to 17 A. L. R. 266, it is said that it is universally held that a defendant in a criminal case, who is sui juris and' mentally competent, may conduct his defense in person, without the assistance of counsel. To the same effect see case-note to Ann. Cas. 1913-C, at p. 739. Numerous cases are cited in the notes to support the holding.

The defendant at the trial of the case cross-examined the witnesses who testified against 'him, and his cross-examination of the prosecuting witness at the examining trial has been set out above. It shows the defendant to be a man of intelligence, and to have appreciated the weight of the testimony given by the witnesses.

The officer who arrested the defendant testified that he found a mask in his pocket. The defendant does not at any time attempt to explain this fact, and the evidence for the State was abundantly sufficient to show his guilt.

We have carefully examined the record, and do not find any reversible error in it. It follows that the judgment will be affirmed.


author: Smith, J.

text:
    Mutual Aid Union v. Perdue.
    Opinion delivered February 18, 1924.
    1. Appeal and error — directed verdict. — Where the court directed a verdict upon conflicting evidence, the court on appeal will ' presume that the jury would have found against the party for whom the verdict was directed.
    2. Insurance — failure to pay assessments. — Where the constitution and by-laws of a mutual assessment company provided that the assessments should be made by the board of directors, an assessment by the secretary was unauthorized, and a member was not in default in failing to pay such assessment.
    Appeal from Ashley Circuit Court; Turner Bittler, Judge;
    affirmed.
    J. V. Walker and Norman & Amsler, for appellant.'
    In excluding, on the motion of plaintiff, testimony regarding any assessment or dues, either of Nos. 10, 11 or 12, and, by its instructed verdict, the court invaded the province of the jury, and excluded evidence that has been held competent by tjiis court. 125 Ark. 449. The burden was on the appellee to show that all the conditions of the contract had been performed. 98 Ark. 338. There is a presumption that the secretary acted on authority of the board of directors. Thompson'Corp. (2nd ed.), par. 1608; Elliott on Private Corp. 667; 54 N. E. 433; 6 L. E. 552; 7 R. C. L. 455; 40 N. E. 799; 50 N. E. 665. In order to construe a contract of insurance, the primary object is to arrive at the intention of the parties in making the contract. 89 Ark. 471; 94 Ark. 417; 97 Ark. 425; 118 S. W. 211; 29 Cyc. 66. The fact that there is no formal record of the action of the board of directors does not necessarily render an assessment illegal. This is true evf>n though there is in fact no action taken by the board. 123 S. W. 973.

      Compere & Compere, for appellee.
    Proof of mailing a notice is not a conclusive fact of notice. 130 Ark. 12. It was not necessary to produce the records of the corporation showing the assessment. 22 C. J. 1011; E. O. L. p. Í54, § 125. There can be ho forfeiture without an assessment by the board of directors. 85 Ky. 1, 7 Am. St. 571; 19 Am,. St. 784; 52 Am. St. 572; 51 Ark. 447; 229 S. W. 407; 226 S. W. 615; 19 E. C. L. p. 1261, § 65; 194 S. W. 956.
   Smith, J.

On June 24, 1916, Mattie Perdue made application to the Mutual Aid Union, a mutual assessment company, hereinafter referred to as the company, for a certificate of membership. John T. Perdue, her husband, acted for her in making the application for membership, and signed her name to the application, and was designated in it as the party to whom all notices of assessments against her should be mailed in case she became a member.

The application was accepted, and the company issued to Mrs. Perdue a certificate of membership No. 837, having a maximum value of a thousand dollars, and placed her in Circle No. 40. Mrs. Perdue died on January 17, 1921, and the company refused, on demand, to pay the claim of her husband, the beneficiary 'named in the certificate, and this suit was brought to recover the sum payable under the certificate. The trial resulted in a verdict for the plaintiff, which was returned under the direction of the court, and, judgment being rendered accordingly, the company has appealed.

The company refused to pay the claim of the beneficiary on the ground that the insured was not a member at the time of her death, the company claiming that she had forfeited her membership because of her failure to pay an assessment, No. 10, issued October 19, 1920, in the sum of 88 cents. The court instructed the jury that the proof failed to. show that a valid assessment had been made.

Appellant says the questions for decision are: (1) Was there sufficient proof of a death upon which to base an assessment? (2) Was an assessment made as provided by the contract of insurance between the parties?

The constitution and by-laws of the company provided that notice .of an assessment should be given by mailing to the insured, or to the person named in the application to receive notices, and the testimony on the part of the company shows compliance with this requirement, and, as the verdict was directed against the company, we must presume that the jury would have found that notice had been given, although the testimony is conflicting on this issue.

The system employed by the company in. making assessments and in giving notice thereof was explained by the managing officers of the company, and was as follows: The company' employed the card system. Each member had a membership card, ruled1 for a period of twelve months, and, among other things, contained the name of the member, the name of the person designated by the member to whom notices of assessments should be sent, the number and circle of the certificate of membership, the date and amount of assessments, and whether paid or unpaid. The card used by the company for giving notice of an assessment contains, among other things, the number of the assessment, the date of the assessment, the amount of the assessment, the name and address of the deceased member on account of whose death the assessment is made. This notice is signed by the secretary .of the company, and gives the member instructions as to when and how to make remittance. The officers of the company testified that, in accordance with this system, notice had been mailed to appellee, but that no remittance had been made, and, after the expiration of the time allowed for payment, Mrs. Perdue’s card was placed among those of the suspended members.

The secretary of the company testified that he mailed appellee, on October 19, 1920, a notice of the death of a member, Elzada Monday, of Leflore, Oklahoma, and that the assessment was numbered 10, and was for the sum of 88 cents, and that this notice was sent out by him on receipt of the proof of the death of the deceased member.

The court excluded this testimony, holding that assessments could not be made by the secretary as a clerical matter, but that assessments could only be levied by the vote and action of the directors of the company, and that, in the absence of a showing that the alleged delinquent assessment had been made by the directors, there was no valid assessment of which notice could have been given, and that, if such an assessment had not been made by the directors, there was no valid assessment of which the assured could have been given notice or was liable to pay.

The correctness of this decision depends, of course, upon the provisions of the contract of insurance. As has been said, the company is a mutual one, engaged in the business of insuring the lives of its members, who are placed in circles of not exceeding a thousand members, and', upon the death of .any member, the surviving members are called upon to pay assessments, which are graduated, the first assessment paid by any member being 35 cents, and increasing 1 cent with each assessment until a maximum assessment of $1.15 is reached, after which the amount of the assessment is not further increased. The number of the assessments is, of course, dependent upon the number of deaths, and there might be a month in which there were no assessments, and there might be months in which there were more than one assessment.. The purpose of the notice was to advise the members of the assessments which had been made. As a circle was depleted by deaths, the places were filled by the names of new members, it being the policy of the company to keep all circles approximately full at a number not exceeding one thousand members.

The certificate of membership made the constitution and by-laws a part of the contract of insurance, and these were offered in evidence, and it is to these writings we must turn to ascertain the rights and duties of the company and its members. The relevant portions of the by-laws read as follows:

‘‘ Section 4. The levying of an assessment shall consist of mailing notices of the death of a member in any particular circle in which the assessment is made, on the authority of the board of directors, stating the amount of the assessment due from the individual member, and, when the records of the association show that an assessment has been levied, it shall be accepted as prima facie evidence of the mailing of notices to all members from whom assessments are due.”
“Section 6. Thése membership certificates shall be , written in circles containing not more than one thousand members, and no equity, rights or benefits shall accrue either to the member or his beneficiary beyond his circle or the circle to which he may have been subsequently assigned. These assessments shall be made on the members in the respective circles in which the death occurs; except when there is an accumulation of deaths in any circle, the members of another circle or circles may, at the discretion of the management, be assessed incident to such excess deaths, or assessments may be made irrespective of deaths, and revenue derived'therefrom shall be devoted to any purpose not inconsistent with the bylaws of the organization. All members are subject to each and every assessment made against their respective circle, at and after the date of their membership certificates.”
“Section 8. ¡When an assessment in any of the various circles has been deposited with the management of the Mutual Aid Union by the various members constituting a circle, and a death claim has been paid, the responsibility of the management of the Mutual Aid Union to its members of that circle ceases until another assessment by the management against the members surviving has been made and is received back into the treasury. It at all times being left to the discretion of the board of directors as to the manner and frequency of levying assessments, when there is an accumulation of deaths.”
“Section 25. Duties of the President. — The president shall have supervision of all meetings of the Mutual Aid Union. Shall call same to order and preside; take the votes of members by yeas and nays, and shall declare the result of elections; and shall vote on any question that may come up before the body. He shall call all meetings of the board of directors, and preside in same as at regular meetings, and perform such duties as the board of directors may impose on-him.”
“Section 27. Duties of the Secretary. — It shall be the duty of the secretary to keep a true and correct account of the proceedings of each meeting of the Mutual Aid Union and its board .of directors. To keep accounts of the organization, to pay over to the treasurer all moneys collected by him, and1 take receipts therefor, or a receipt from the official depository for the funds of the Mutual Aid Union, to answer the same purpose as a receipt from the treasurer. To keep or cause to be kept a correct set’of books, showing the financial condition of the organization, and be ready at all times to submit his statement to the board of directors of the condition of the organization. To collect all moneys due the organization, and1 turn same over to the treasurer, or the authorized depository; to sign or countersign all warrants and. checks drawn against the organization, and perform such ’other duties as the board of directors may see fit to impose upon him.”

It will be observed that § 6 of the by-laws provides that, in the event of .an accumulation of deaths in a particular circle, members of other circles may, in the discretion of the management, be assessed when that action is found necessary.

We think that, in the interpretation of the by-laws set out above, the court was correct in its holding that the levying of assessments was not a mere clerical duty which the secretary might perform, but that the authority and duty to levy assessments devolved upon the board of directors, and that a valid assessment could only be levied by tlie board. The assessments were not fixed and definite and certain as to the amount to be paid, nor as to the time within which payment was to be made. Affirmative action was required to levy and validate any particular assessment, and this was a duty imposed on the directors, and the duty of the secretary was the merely clerical one of giving the assured notice of that action when it had been taken by the' agency constituted for that purpose. If this is true, there was no valid assessment of which the secretary could have given notice, and the insured did not become delinquent and suspended until she had failed to discharge an assessment which had been properly levied.

It is the insistence of the company that the assessments against the member were, in reality, made when her application was accepted by the company, and that thereafter all that remained to be done was to notify the member that another member had died, and that an assessment had therefore become payable. We think this view is not correct, because it could not be known what number of assessments could be levied until the members had died and proofs of death had been made and the liability of the company had1 been ascertained and declared; and, as we have said, this was a function which the by-laws did not authorize the secretary to perform. It was the duty of the board of directors to determine whether a death had occurred which would impose a duty to levy an .assessment. The company might have what the directors regarded as good cause for deciding that there was no liability on the certificate of some particular member, in which -event there would have been neither necessity nor authority to levy an assessment.

In the case of Stubbins v. State Farmers’ Mut. Ins. Co. of Missouri, 229 S. W. 407, the policy sued on was issued by a mutual company whose by-laws required the directors to levy the assessments against members to pay losses. Justice Bland of the Kansas City Court of Appeals said that the certificate of the officers whose duty it was to levy the assessment was not alone to afford prima facie evidence that the rate levied was due and payable, but that this action by the board was required for the protection of policy-holders against excessive assessments.

Appellant cites the case of Burchard v. Western Commercial Travelers’ Assn., 123 S. W. 973, in which the court held that an assessment against the members, which the insured in that case had failed to pay, was valid, although there was no formal record of the action of the board of directors in levying the assessment which the insured had failed to pay. The assessments in that case, however, were fixed in a definite sum, and were payable at regular intervals, but the court said: “In order to authorize a suspension for the nonpayment of an assessment, it is absolutely necessary that the assessment should have been made in strict accordance with the by-laws of the association” (citing a number of cases), and that, but for the by-laws which fixed the assessments in a definite sum and made them payable at regular periods, the court “would hold that the failure of the board to make the assessments at each regular monthly meeting prevented the association from suspending the assured for not paying an assessment. ’ ’

In American Mutual Aid Society v. Helburn, 85 Ky. 1, 7 Am. St. Rep. 571, the insurance company operated on a plan not unlike that of the appellant company, and with a similar duty on its board of directors to levy assessments. The court said: “Thus we see that no assessment can be made on the surviving members of the society, to pay the benefits due the representatives of its deceased members, unless the assessments are made by the board of directors, or by an executive committee appointed by them for that purpose.” The court further said: “Thus we see that, in making assessments by the appellant upon its members, it does no+ act in a judicial, but in a ministerial, capacity. Therefore no presumption can arise in favor of the regularity or legality of its assessment; that the appellant’s board of directors, or an executive committee appointed by them, are the only persons authorized by appellant’s charter to make assessments against its surviving members to pay the benefits due the representatives of its deceased members; that a deceased member of the society should have died, and that his representative was entitled to a benefit arising from his death, and that an assessment upon all of the surviving members was actually made by the board of directors, or an executive committee appointed by them, for the purpose of paying said assessments, are conditions precedent to the right of appellant to demand payment of an assessment from any of its members. And they are not bound to pay any assessment until these things occur. Nor do they forfeit their membership by reason of their failure to pay such assessments, unless these things have occurred. And when the society relies upon the failure of any of its members to pay his assessment as a forfeiture of his membership and benefits under its charter, it must show affirmatively that the assessment was made in the manner indicated, otherwise the member cannot be said to be in default.”

This case was cited in the annotated note to the case of Bankers’ etc., Assn. v. Stapp, 19 Am. St. Rep. 784, in which the annotator says: “In all cases the burden of proof is on the association to establish a forfeiture by evidence that an assessment was made in the mode pointed out by the charter, otherwise the member is not in default.”

In 19 R. C. L., p. 1261, at § 65 of the chapter on Mutual Benefit Societies, it is said: “Where an assessment is not legally levied in the mode prescribed by the constitution and by-laws of the particular association, no liability arises on the part of a member to pay such assessment, and his failure to do so does not impair his right to the privileges and benefits extended by the association. In making an assessment, an association acts in a ministerial and not a judicial 'capacity, and there is, accordingly, no presumption in favor of the regularity or legality of its assessments, and, where it seeks to avoid liability upon a benefit certificate by reason of the nonpayment of an assessment, the burden of proving that such assessment was duly made in the manner prescribed by the rules and regulations of the order rests upon the association.”

See also Hogan v. Pacific Endowment League, 99 Cal. 248; Tobin v. Western Mutual Aid Society, 72 Iowa 261; Underwood v. Iowa Legion of Honor, 66 Iowa 134, 23 N. W. 300; Baker v. Citizens’ Mut. Fire Ins. Co., 51 Mich. 243,16 N. W. 391; Bates v. Detroit Mut. Ben. Assn., 51 Mich. 587, 17 N. W. 67. See also the following textbooks on insurance: Niblack, Accident Insurance and Benefit Societies- (Mutual Benefit Insurance) 2d ed., §§ 250, 252; Joyce on The Law of Insurance, 2d ed., vol. 3, §§ 1253, 1291, 1292; Bacon on Life & Accident Insurance, 4th ed., vol. 2, § 484.

We conclude therefore that, as the testimony fails to show any action by tire board in levying the alleged delinquent assessment, the verdict w-as properly directed for the plaintiff, and the judgment of the court below is affirmed.


text:
    McGehee v. State.
    Opinion delivered February 18, 1924.
    1. Rape — sufficiency of'evidence. — In a prosecution for carnally knowing a female under 16 years, testimony held to sustain a finding that such intercourse took place before the prosecutrix reached the age of 16 years.
    2. Indictment and information — time of offense. — In a prosecution for carnal abuse of a female under 16 years of age, proof of intercourse within the period of limitations and while prosecutrix was under 16 rendered immaterial an unproved allegation of the date of the intercourse.
    3. Rape — carnal abuse — corroboration of prosecutrix. — In a prosecution for carnally knowing a female under 16 years of age, her mother’s testimony that defendant’s attentions to prosecutrix were very noticeable, and that he sought many opportunities to be alone with her, was competent as tending to corroborate the testimony of prosecutrix that illicit relationship existed between her and defendant.
    4. Criminal law — harmless evidence. — In a prosecution for carnal abuse of a female under 16 years old, testimony of the State’s witness concerning defendant’s remark to him that a certain girl whose identity was not proved could not be reached with a 10-foot pole, though incompetent, was too vague and irrelevant to be prejudicial.
    6. Rape — instruction as to character of prosecutrix. — In a prosecution for carnal knowledge of a female under 16 years of age, an instruction that the moral character of prosecutrix might be considered as a circumstance tending to show the truthfulness of her statements was not improper.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge.;
    affirmed.

      Linus A. Williams and June P. Clayton, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was convicted, upon a trial, under an indictment charging him with having carnally known Lena Fisher, a female under the age of sixteen years. The indictment was returned on September 27, 1923, and the girl alleged to have been abused had her sixteenth birthday on January 17, 1922. To sustain the conviction, it is essential therefore that the proof show that sexual intercourse was had at some time prior to January 17, 1922, and yet within three years of September 27, 1923, the date the indictment was returned.

It is first insisted that the testimony did not show any'act of sexual intercourse while the girl was under sixteen which did not occur more than three years before the indictment was returned.

We do not think this is the only conclusion to be drawn from the testimony. Lena Fisher testified that appellant had married her sister, and that she visited at the home of her sister, and that appellant began having sexual intercourse with her when she was only fourteen years old, and that he continued to do so whenever the opportunity was afforded, until after she became pregnant, and that she became a mother on June 16, 1923, and that appellant was the father of her child. It is true that, in the course of nature, this baby was begotten after Lena Fisher became sixteen years old, but it will be remembered that she testified that the illicit relation commenced when she was fourteen and continued over a period of three years.

The mother and younger unmarried sister gave testimony strongly corroborating the testimony of Lena Fisher. Her mother testified that appellant’s attentions to Lena were very noticeable, and that he sought many opportunities to be with her alone, and that she was constantly watching them to keep them apart. The younger daughter testified that, when only herself and Lena and appellant were together, he would find some excuse to send her away, and that Lena and appellant sought opportunities to be alone with each other, and that on one occasion she and Lena slept in the same bed at appellant’s home, and that she was awakened during the night and found appellant sitting on the bed, and that this incident occurred in 1921. Any act of intercourse oom- , mitted at any time during that year would, of course, have been within three years cf the date of the indictment and ..yet while Lena was under sixteen years of age.

It is true Lena did not specifiy any exact date on which an act of sexual intercourse occurred, but we think her statement that these acts of intercourse continued during a period of three years was sufficiently definite.

. It is true also, as is pointed out by counsel for appel- • lant, that the indictment alleged the date of the commission -of the offense as being September 1, 1921, but this date is immaterial if the offense was in fact committed within three years of the date of the indictment and at a time when Lena was under sixteen years of age.

It is insisted that the testimony of the mother was irrelevant, incompetent, and immaterial; but we do not think so, as it tended to corroborate the testimony of Lena Fisher that the illicit relationship continued after it commenced.

A Dr. Kirksey testified that he delivered the child,' and that, while he .was engaged in its delivery, Lena stated that appellant was its father. When this testimony was offered, appellant’s counsel moved to exclude it on the ground that the statement was made after the girl had reached seventeen years of age. The court appears to have excluded the testimony on the ground that it was hearsay. It appears, moreover, that the admission of this testimony was not assigned as error in the motion' for a new trial.

The court permitted Tobe Eobinson, who was called as a witness for the State, to answer, over appellant’s objection, the following question: “State if you ever had a conversation with him (appellant) about certain actions with any girls,” and the witness answered that appellant had told him there was a certain girl he thought could not be reached with a ten-foot pole. The witness did not explain what was meant by this statement, but the inference is that the girl did not permit any one to have intercourse with her, and that appellant had acquired this information as the result of unavailing importunity.

We cannot conceive on what theory this testimony was admitted, nor do we see how it could have been prejudicial. The name of the young lady was not disclosed, nor does the testimony show in what connection the remark was made, nor what appellant meant by making the remark. The remark is too vague, too irrelevant, and so entirely apropos to nothing at all that we think no' prejudice resulted from the admission of this incompetent testimony.

An exception was saved to an instruction which told the jury that the moral character of the female might be considered as a circumstance tending to show the truthftilness of her statements. We see no objection to this instruction, but, if it was erroneous, the giving • of 'it was' not assigned as error in the motion for a new trial. " ' -

Certain other assignments of error are discussed in the brief for appellant, but they involve no questions which we think require discussion, and for that reason we do not do so.

No error appearing, the judgment is affirmed.


text:
    Warren v. Moore.
    Opinion delivered February 18, 1924.
    1. Parent and child — award for support of children. — In a suit by a divorced wife against the former husband for the support of a child, an award of $16 per month, where defendant owned a small farm and earned a small wage as a laborer, was not excessive.
    2. Parent and child — support of child — lien on real estate. — In an attachment suit against a nonresident parent to secure payment for support of a child, it. was improper to decree a lien on such parent’s land for future monthly payments.
    Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;
    modified.

      Sturbird £ Sturbird, for appellant.
    1. In making an allowance for the support of the child, it was error to include in such allowance the value of the mother’s personal attentions and service to the child.
    2. The allowance of $16 per month was excessive, under the evidence.
    3. The court erred in sustaining’ the attachment. The order and decree for an allowance was not a decree for the recovery of money within the meaning of the statute, C. & M. Dig., § 494. It is an action for future support. In sueh cases attachment is not necessary. 126 Ark. 164-168.
    4. No cause of action lies to the children themselves to maintain this suit. The right is sta.tutorv, and the child needs no protection save that which the divorce statute gives tc the court granting’ the divorce. The statute must he strictly pursued. 38 Ark. 127; 88 Ark. 308.
    5. It was manifest error to attempt to fix a lien upon appellant’s land to secure payment of future installments of the allowance. 147 Ark. 147; 38 Ark. 477; Id. 127.
   Smith, J.

Appellee brought this suit, as next friend for her three minor children, against appellant, who was formerly her husband, and is the father of the children, to require him to contribute to théir support. She had obtained a divorce from him, and in that decree an award was made as alimony for herself and as support for her children, but she soon thereafter married another man, and this allowance was set aside. The present suit was brought for the benefit of the children alone.

Appellee’s oldest son, though still a minor, earns $4.50 per day, and supports himself and contributes to the’ support of his mother. The second child is now living with its father, and is supported by him. The third child is a daughter, who lives with the mother, and the testimony as to the allowance which should be made relates to* this'child.

The testimony on this subject is conflicting. The mother prayed an allowance of $25 per month, of which amount she said $15 would be required to pay the actual expenses of the child, and that her own necessary service would be worth $10 per month. On the part of the father there was testimony placing the value of the child’s board as low as $6 per month.

It may be conceded, as contended by appellant, that the mother is not entitled to recover for the value of those purely personal services and duties which the mother owes the child, but, leaving these out of account, we think the allowance made by the court — that of $16 per month— is proper, under the testimony. The expenses of the child may, and no doubt will, vary, but, in addition to her board, the child may need medical attention, and is of an age when she should be in school, and will, of course, have to have books and clothes, and these are all proper items to be taken into account in fixing the allowance which the father should pay. As small as the allowance appears to be, we think it fair, in view of the fact that the father owns no property except a small farm, which, he testified, was worth not more than $450, and that he himself was a day laborer, earning only a small wage.

Appellant is now a nonresident of the State, and, upon the institution of this suit, the land was attached. The attachment was sustained by the court, and it was adjudged that the attachment lien is “hereby ectended for the protection and security of such payment,” and it was further decreed “that said lands, in default of- any payment, shall be subject to sale as on execution for the sale of lands on execution from the circuit court,” and that, in the event of sale, the proceeds thereof should be deposited with the clerk of the court, to be paid by him in accordance with the decree.

We approve this decree, except that part which decreed a lien on the land to secure the discharge of future monthly payments.

In Whitmore v. Brown, 147 Ark. 147, a wife obtained a divorce from her husband, with a decree *for $3,000 alimony, to be paid in installments of $250' quarterly. There was also a decree for the support and'maintenance of three minor children, at the rate of $75 per month,' until the youngest should become of age, with a provision that, upon default in payment, an execution might issue’ as in cases of judgment at law. Later, on the petition of both the husband1 and the wife, this decree for alimony and support of children was set aside and a decree was entered by consent for $3,000, with provision that there should be a specific lien on certain town lots. The decree further provided that the wife should recover for the support of each of the children the sum of $37.50 per month, and provided that a lien be created on the lots to secure the payment of the same. The wife executed a quitclaim deed for the lots, and, as stated in the opinion,”: thus disposed of any interest she had therein, but she sought, by the suit which she instituted,” to enforce a lien '• in favor of the children. We said: “Divorce proceedings are regulated by statute, and alimony is just what the statute makes it. There is no statute in this State providing that a decree for alimony or for the support and maintenance of the minor children of the divorced parties shall be a lien on the real estate of tlie husband. ’ ’ We there expressly declined to consider where the weight of authority was, or whether the rule announced was supported by the better reasoning, upon the ground that this court had long since decided that no lien could be declared in such cases, the reason assigned being that to do so would be likely to embarrass alienation. The cases so holding were there cited and quoted from.

It follows therefore that no lien on the land should have been decreed, and that part-of the decree must therefore be reversed, and the cause will be remanded with directions to modify the decree in this respect.


author: Smith, J. McCulloch, C. J.

text:
    Coker v. Fort Smith.
    Opinion delivered February 18, 1924.
    Municipal corporations — association with prostitutes. — A municipal ordinance making'it a misdemeanor for any male person over the age of 14 to ride or walk in the daytime or night within the city limits with any generally reputed prostitute is invalid, as in effect it deprives the prostitute of the right to reside in the city by depriving her of the privileges which give that right its value.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      T. 8. Osborne, for appellant.
    It is beyond the power of the city council to enact an ordinance making it a criminal offense to be on the street with a prostitute. 45 Ark. 336; 250 S. W. 429.

      Geo. W. Dodd, for appellee.
    The ordinance is valid. Not only have municipal .corporations in this State authority, under their general powers, to enact such an ordinance but it is made tbeir duty to enact such by-laws and ordinances as are neces: sary to suppress indecent and disorderly conduct aud to punish all lewd and lascivious behavior on the streets and in other public places. C. & M. Dig., § 7494; 19 B. C. L. § 151; 71 Iowa, 87; 107 N. C. 962; 74 Ga. 516; 92 S. E. 1021.
   Smith, J.

Appellant was tried and fined in the municipal court of Fort Smith on a charge of “being on the street with a prostitute. ’ ’ He appealed to the circuit court, and, on his trial there, was again found guilty and fined, and has appealed to this court.

At his trial in the Circuit court an instruction was given, over his objection and exception, which reads as follows: “1. The court instructs the jury that, if you find from the evidence that the defendant, Troy Coker, in the city of Fort Smith, and within one year next before the bringing of this suit, being a male person over the age of fourteen years, was seen riding or walking, in the daytime or night, within the city limits, without there being any necessity therefor, with a woman known or generally reputed to be a prostitute or lewd woman, then you should convict the defendant.”

This instruction appears to. have been warranted under the ordinance of the city which appellant was charged with having violated. It reads as follows: “It shall be deemed a misdemeanor to do, or cause to be done, any of the following acts, and any person convicted thereof shall be fined not less than five nor more than twenty-five dollars: To keep a house of ill-fame or assignation house, to permit any house owned by him, her or them, or under his, her or their control, to be kept for the purpose of prostitution; to be an inmate of a house of ill-fame, or to be found in such house' for lewd purposes; or for any woman of the town or any prostitute to walk the streets after nine o’clock at night, .without having any lawful business or without any necessity therefor, or at any time to solicit any person on the street, or in any public place, to accompany them or to meet them at any place for the purposes of prostitution; or for any male person over the age of fourteen years, who shall be seen riding or walking, in the daytime or at night, within the city limits, without there being any necessity therefor, with any woman known or generally reputed to be a prostitute or lewd woman. ’ ’

The part of the ordinance which appellant is charged with having violated is the last clause thereof. By his appeal he questions its validity.

The facts upon which the conviction was had are briefly these: Appellant was seen, near midnight, in an automobile with a woman who bore the reputation of being a prostitute. He drove the car in one direction, and,' after a short detour, drove it down the same street in the opposite direction. The officers stopped the car, searched it for whiskey, but found none. Appellant was then arrested upon the charge stated. In his own defense he testified that he met the woman at a party, and was merely carrying her home.

It may be said that it was clearly within the power of the city council to enact most of the provisions of this ordinance, and their validity is not affected by what is hereinafter decided. Endlich on Interpretation of Statutes, § 538; Dillon’s Municipal Corporations (5th ed.), vol. 2, § 647; McQuillin’s Municipal Corporations, vol. 2, § 816, and supplementary volume 7, § 816.

But the question for decision is whether the clause reading “or for any male person over the age of fourteen years, who shall be seen riding or walking, in the daytime or at night, within the city limits, without there being any necessity therefor, with any woman known or generally reputed to be a prostitute or lewd woman,” is valid.

There are an almost infinite number of cases dealing with the authority of municipal corporations to enact ordinances of this character, and, after an examination of many of the cases collected in the annotated cases cited in the note to § 151 of the article on Municipal Corporations in 19 R. C. L., p. 844, we find the holding of these cases is there correctly summarized into a general statement of the power of the municipalities in the enactment of such ordinances. It is there said: “A municipal corporation, under a general delegation of power, may enact ordinances to prohibit the keeping of houses of ill-fame and to punish the keepers thereof, and to punish any person found in or frequenting a disorderly house, leaving him to show, as a defense, if he can, that he was lawfully or innocently in the house. So also an ordinance forbidding owners of houses from renting them to others for the purpose of prostitution, or with knowledge that they were to be so used, is valid, and á municipal corporation may prohibit prostitutes from walking streets at night, except in case of reasonable necessity. Municipal regulations for the suppression of prostitution must, however, be reasonable. Ordinances have been held unreasonable, and consequently void, which declare that the owner or occupant of a house or room who permits' single acts of illicit sexual intercourse shall be deemed guilty of keeping a house of ill fame, or which forbid any prostitute to reside in or stay in any house or room within the city, and forbid the renting of any such premises to a prostitute, without regard to its use, or which make it unlawful for any person to associate or converse with a prostitute upon any of the streets of the city, by day or by night, regardless of the subject and occasion of the conversation, or which punish as a crime the mere pres.ence within or return to the corporate limits of a, prostitute. The decisions in these cases fully establish the invalidity of ordinances which amount to an outlawry, or a denial of the right to life and liberty to any class of women, however abandoned, except so far as it may be in punishment of a specific offense. That is to say, women cannot be denied the right1 to occupy property and engage in lawful business by reason of any general bad character. But they may be subject to such police regulations as are reasonably necessary. So also the provisions' for enforcing the regulations must be reasonable.”

Among the annotated cases cited, in the note is onr own case of Paralee v. Camden (which will be again referred to), 4 Am. St. Repts. 35.

One of the best considered cases is that of Dunn v. Commonwealth, 88. Am. St. R. 344, 105 Ky. 834, 49 S. W. 813. In that case an ordinance which prohibited prostitutes from being on the streets of the city between the hours of 7 p. m. and 4 o ’clock a. m. following, except in instances of reasonable necessity, was upheld as a valid exercise of the police power. The court said that the council had, no doubt, ascertained that the hours during which prostitutes were excluded from the streets was the favorite time for their business, and was therefore a proper ordinance to suppress the traffic whereby they earned their livelihood. The court further said: “We think this is a reasonable restraint, and it does not unreasonably abridge their personal liberty. By the terms of the ordinance they are allowed to go upon the streets if there is reasonable necessity for it. During the fifteen hours of the twenty-four these habitual offenders against the moral, social, and penal laws are permitted to go wherever they please upon the streets and alleys of the city, which affords them ample opportunity for healthful exercise, and of attending to their reasonable wants.”

A very recent case on the subject is that of Ex parte Cannon, 250 S. W. 429, decided by the Court of Criminal Appeals of Texas. There an ordinance of the city of Texarkana, Texas, making it unlawful for a man to ride with, or walk along the street or to be together in a public place with, a prostitute, or to be found with a woman in a house of prostitution, or with a negro woman at her place of residence, unless he were a doctor, a deliveryman, a collector, or a police officer, was held violative of the provisions of the Federal and State Constitutions guaranteeing to every citizen the right of life, liberty and property. In that case the court quoted with approval from the decision of the Supreme Court of Missouri in the case of Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576, as follows: “This ordinance is now attacked on the ground of its unconstitutionality, in that it invades the right of personal liberty -by assuming to forbid that any person should knowingly associate with those who have the reputation of being thieves, etc. And certainly it stands 'to reason that, if the Legislature, either State or municipal, may forbid one to associate with certain classes of persons of unsavory or malodorous reputations, by the same token it may dictate who the associates of any one’may be. But, if the Legislature may dictate who our associates may be, then what becomes of the constitutional protection to personal liberty, which Blackstone says ‘consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s inclination may direct, without imprisonment or restraint, unless by due course of law.’ 1 Bl. Comm. 134. Obviously, there is no difference in point of legal principle between a legislative or municipal act which forbids certain associations, and one which comihands certain associations. We deny the power of any legislative body in this country to choose for our citizens whom their associates shall be.”

Without further reviewing the decisions of other jurisdictions, it may be said that we have two decisions of this court which announce principles that are fatal to the'validity of the portion .of the ordinance under which appellant was convicted.

The first of these is Buell v. State, 45 Ark. 336. In that case the court held that a town council had no power to make it a misdemeanor for a prostitute to reside in or be found within the limits of the town. This decision was rendered in 1885.

The second case is that of Paralee v. Camden, 49 Ark. 165, which was decided in 1887, and in which it was held that a municipal corporation has no power to enact an ordinance punishing as a crime the mere presence in or return to the corporate limits of a prostitute, although the statute of the State authorizes municipalities to pass ordinances to punish persons for lewd and lascivious behavior in the streets or other public places, and to suppress bawdy and assignation houses and indecent and disorderly conduct.

It will be observed that both these cases were decided after the passage of § 7599, C. & M. Digest, which section of the Digest, together with §§ -7598, 7600, 7601 and 7603, C. & M. Digest, comprise § 9 of the act of March 9, 1875. Acts 1875, page 1.

The city could, no doubt, pass a valid ordinance prohibiting a prostitute from in any manner soliciting patronage in the streets, or at any other place, at any hour, ■ and the city might, no doubt, prohibit the presence of a prostitute on the streets during such hours of the night as were apparently suitable for the solicitation of patronage ; but the portion of the ordinance under review goes far beyond that. It, in effect, takes from the prostitute the value of the right to reside in the city by depriving her of the privileges which give that right its value. Under this ordinance no male person over the age of ' fourteen years, even though he were a near blood relative, could ride or walk with a prostitute within the city limits, without there being a necessity therefor. It is true, the ordinance does not make her exercise of such a right - unlawful; but it, in effect, deprives her of this right by making it unlawful on the part of any male companion.

We think the portion of the ordinance under which appellant was 'convicted is too broad in its terms, and was beyond the power of the council to enact, and is therefore invalid.

The judgment of conviction must therefore be reversed, and the cause will be dismissed.

DISSENTING OPINION.

McCulloch, C. J.

The two decisions of this court cited by the majority (Buell v. State, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165) hold that, whilst munieipipalities m;ay suppress bawdy houses by ‘‘prohibiting the keeping of such places, by forbidding the renting of premises for such purposes, and by other like prohibitions,” the mere presence of a prostitute in the municipality cannot be declared to be a crime. That is the full t extent of those decisions. The sole effect of the other decisions cited hy the majority is that prostitutes cannot he denied the right of existence — cannot be completely outlawed — because of their immoralities. The reasoning- of all those cases is that prostitutés and their male associates can be restricted in their freedom except to the extent that such restriction does not interfere with their-reasonable necessities of life.

The majority opinion overlooks the exception in the ordinance under consideration which makes it reasonable in its operation. It only applies where the conduct referred to is “without there being any necessity therefor.” This- relieves the ordinance of {unreasonable oppressiveness. A fair interpretation of the language of the ordinance means a prohibition of association of men with prostitutes or reputed prostitutes on the streets or other public places when there exists no reasonable necessity therefor, and it seems to me that this does not unduly restrict liberty of action. The ordinance, in its application to prostitutes themselves, only prohibits them from walking the streets during the hours of the night, and then only “without having any lawful business or without any necessity therefor; ’ ’ but men are prohibited, in the other part of the ordinance, from walking or riding with them at any time, day or night, without the existence of necessity therefor.

Fallen women are unfortunate, -and deserve pity, but when they give themselves over to lives of prostitution they cannot expect, and are not permitted, the same degree of liberty as that enjoyed by other members of society. Protection of society at large demands restriction of the liberty of those who habitually lead lives of immorality. What can be more demoralizing in its influence than for men to be seen in public places in association with prostitutes, or reputed prostitutes? The influence from such practices is worse in the daytime than in the night, for it is then that they come into public notice, to the humiliation of virtuous women, and to the demoralization of youth. However much we may pity fallen women, it is shocking to the sensibilities to witness the flagrant and needless association of men with them in public places.

The only effect of this part of the ordinance is to prohibit men from walking or “joy-riding” with prostitutes, and it seems to me to be a strange doctrine to say that it is beyond the power of this State to prohibit such conduct.

Mr. Justice Humphreys concurs.