text:
    Jones v. Keebey.
    Opinion delivered June 25, 1923.
    1. Replevin — necessity op demand. — Demand is a prerequisite to an action of replevin where the defendant does not deny the plaintiff’s right to possession and will noit contest same, but does not have possession of the article, either actual or constructive, so that it is out of his power to deliver same.
    2. Replevin — nature op action. — As replevin is not an action for the collection of money, but is an action for the recovery of specific • personal property, an answer denying that defendant has possession, either actual or constructive, held to state a good defense.
    3. Replevin — bail bond — liability.—Where a defendant in re-plevin, arrested under a capias clause, executed a bail bond under Crawford & Mioses’ Dig., § 8645, it was error to enter judgment against defendant and his bondsmen if he established that the property was not in his possession, either actual or constructive.
    Appeal from Woodruff Circuit Court; J. M. Jackson, Judge;
    reversed.

      W. J. Dung an, for appellant.
    Demand of return of the property was necessary before bringing of the suit. 23 E. C. L. 888. Action of replevin cannot be maintained unless property involved be in possession or under the control of the defendant. 23 E. C. L. 874; 82 Ark. 362. The court erred in rendering judgment against appellant and Ms sureties, because his answer stated an equitable defense that should have been heard. 70 Ark. 505. Impropriety of conduct of plaintiff’s attorney, Dungan, in procuring the bond. 1 E. C. L. .763, par. 6; 46 Ark. 302; 9 E. C. L. 718, par. 8. 726, par. 16. Bond has never been placed in the record nor was it put in evidence. If it was a bail bond the conditions have been performed.

      Melbourne M. Martin, for appellee.
    No demand was necessary before bringing suit. 66 Ark. 219. The answer shows a demand would have been futile. Appellant was in possession of the ring. 31 Cyc. 924-927; 82 Ark. 362. Admitted it was delivered into bis possession and that he executed notes for balance dne with title retained by appellee. No equitable defense was interposed, nor was there a motion made to transfer to equity. The statute provides for summary judgment on the bond. The statement that plaintiff was actuated by malice and that conversion was attempted or employed is utterly unwarranted.

      W. J. Dungcm, in reply.
    The case cited by appellee, Triplett v. Rugby Distilling Go., 66 Ark. 219, supports our contention that a demand was necessary. 23 R. O. L. 876, par. 28. We have brought the bond into the record, and it is merely a bail bond, and the court erred in rendering judgment on it. Appellant had the right to have the issue submitted to a jury.
   Wood, J.

This is an action by the appellee (plaintiff below) against the .appellant (defendant below) to recover possession of a diamond ring No. 1268, stone weighing 1.17 carats, mounted in platinum, hexagon top, ladies’ fancy ring, of the value of $1,000. An order of delivery and summons with capias was issued, and returned “duly served by delivering a copy and stating the substance thereof to the within named Reece Jones, and, failing to find said property, have released said Reece Jones, upon his giving bond, as required under § 8645, Crawford & Moses’ Digest, as herein commanded.” The bond executed by Jones was in the sum of $2,000, and conditioned that Jones “shall abide the order and judgment of the court in the above entitled cause, and that he will cause special bail to be put in if the same be required.”

An answer was filed by Jones, in which he admitted that the appellee wag the owner of the ring and was entitled to the immediate possession thereof. Appellant denied that he unlawfully detained the ring or that he was concealing it to de'feat the action, and denied that the appellee was entitled to any damages against him for the wrongful detention of the ring. He alleged the facts to be as follows: That Miss Elizabeth Aubrey, with the knowledge and consent of plaintiff, took possession of the ring and kept possession at all times. Afterwards defendant married Miss Aubrey and lived with her eight months, when she went back to Little Rock. Defendant immediately notified the plaintiff. He tried to get the ring for plaintiff, and tried to get plaintiff to recover the ring, telling plaintiff where it was. Plaintiff knew that defendant was trying to get the ring and could not. Plaintiff then made a false affidavit to the effect that the defendant was concealing the ring, and had the defendant arrested, and had him and his mother, brother and uncle coerced into making a bond to prevent defendant from going to jail. The defendant prayed that the bond be canceled, and that the complaint be dismissed.

The bill of exceptions recites that, “oh oral motion of plaintiff for á judgment on the record or pleadings, the court found that the answer set up no defense to the complaint, and granted plaintiff’s motion for judgment, after the introduction of two notes filed as a basis for the action. To which action of the court in granting-said motion the defendant at the time objected and saved his exceptions.” The notes introduced were notes for $408.75 each, executed by R. W. Jones and James E. Hyatt. It is recited in the notes that they were given for the purchase price of the diamond ring, describing it as in the complaint; that the ring was delivered to the maker of the notes wiithi the understanding and agreement between the maker of the notes and R. W. Jones that the title of the property is and shall remain in the name of P. G-. Keebey until the indebtedness is paid in full. The notes further recited that, in the event of default in payment of one of the notes, all should become due November 1, 1921.

The judgment recited that the answer showed that the plaintiff was the owner and entitled to the possession of the property sought to be recovered, or its value, ‘ ‘ and, the plaintiff having .in open conrt waived all and every right and claim for the recovery of damages from defendant for. the detention of the property hereinafter referred to, it. is by the conrt considered, ordered and adjudged that plaintiff have and recover of and from defendant and of and from Mrs. Blanche Jones, Eg-bert Jones, and :B. F. Jones, sureties upon the forthcoming bond herein given by defendant, the possession of the diamond ring described as in the complaint, and that, in case delivery thereof cannot be had, he shall recover of and from defendant and said sureties the sum of $817.50, together with interest at the rate of eight per cent, per annum from the sixth day of December, 1920, to the date of said payment. ”

The appellant filed his motion for a new trial, the fourth ground of which is “that the court erred in finding that the answer filed herein stated no defense, and in granting a peremptory judgment for plaintiff, and in depriving defendant of a trial by jury, over his protest.” This motion was overruled, and the appellant prosecutes this appeal.

The court erred in rendering a judgment on the pleadings in favor of the appellee. The appellant should have been allowed to prove the allegations of his answer, and these allegations, if proved, would have constituted a defense. The court disposed of the cause as if on demurrer to the answer. The allegations of the answer show that the ring was neither in the actual or constructive possession of the appellant. The appellant admitted that the title to the ring was in the appellee; that the appellant had delivered the possession of the ring to Miss Aubrey, his prospective wife, as an engagement ring; that, after they were married, appellant’s wife lived with him for eight months, and then returned to Little Bock, where she lives with her mother; that appellant notified the appellee that he was not able to pay for the ring, and notified the appellee that the ring was in the possession of his wife in Little Bock; that appellant, after making honest efforts, was unable to get possession of the ring, all of which appellee knew, and appellant requested appellee to recover the possession of the ring from Mrs. Jones by legal proceedings, if necessary.

To be sure, if the possession which appellaht alleged to be in his wife was collusive, then the appellant, to whom the possession was delivered, would still be in the constructive possession of the property, and the action would lie. But the allegations of the answer do not justify the conclusion, as a matter of law, that appellant entered into a collusion with his wife whereby she was to retain possession of the property and thereby defeat an action of replevin, if one should be brought against the appellant, by asserting that the possession was in his wife. On the contrary, the allegations of the answer show that the appellant had made many honest efforts to get possession of the ring for the appellee, but that he was unable to succeed; that he was unable to pay for the ring, and was willing for the appellee to have the ring. Under these circumstances it occurs to us that the cause should have been sent to the jury on the issue of fact as to whether or not the appellant had actual or constructive possession of the ring.

The allegations of the complaint do not show that any demand was made upon the appellant before the institution of the action, and the allegations of the answer show that, if demand had been made upon him for the possession of the ring before the institution of the action, he would have made every effort in his power to deliver possession of the ring to the appellee, and would not have contested his right to such possession. When the facts show that a defendant in replevin does not deny the right of the plaintiff to the possession and will not contest the same, but he does not have the possession of the article, either actual or constructive, so that it is out of his power to deliver the same, then the plaintiff at least should malee demand upon the defendant and give him an opportunity of surrendering possession before haling him into court and subjecting him to the harassment of a lawsuit. As is said in Triplett v. Rugby Distilling Co., 66 Ark. 219, “Demand is necessary only when the defendant would not deny or contest the plaintiff’s right to recover. - The defendant in such a case should have the opportunity of surrendering that which the plaintiff claims, without being subjected to the annoyance and expense of a lawsuit.”

The mere fact that the statute provides for the alternative recovery in damages is not sufficient to justify the bringing of an action against the defendant who is not in possession. See note to Andrews v. Hoeslech, 18 L. R. A. (N. S.) 1265-75, and other cases there cited. In Dow v. Dempsey, 21 Wash. 86, it is said: “The primary object of the action of claim and delivery, under the Code, is to recover the possession of personal property in specie; and the gist of the action is the'wrongful detention of the property by the defendant. In such an action it is necessary for the complainant, in order to state a cause ■ of action, to allege that the property, recovery of which is sought, is wrongfully detained by the defendant. * * * And a failure to prove the allegation must of necessity be a fatal variance. ' True, the action has as its secondary object the recovery of the value of the property in case delivery cannot be had, but the purpose of this is to prevent the action from becoming fruitless or ineffectual by reason of the property being lost, destroyed, or disposed of by the holder after action brought. It never becomes the primary object of the action, nor does it change the action into one for damages for the tortious taking and conversion of personal property.” See also Casey v. Scott, 82 Ark. 364. The action of replevin is not for the collection of a debt, but it is a possessory action for the recovery of specific personal property. Carpenter v. Ingram, 77 Ark. 299; Eaton v. Langley, 65 Ark. 448; Spear v. Arka nsas National Bank of Hot Springs, 111 Ark. 29; Bowser Furniture Co. v. Johnson, 117 Ark. 496. Treating the allegations of the answer as true, they do not show that the appellant is unlawfully detaining the ring.

2. The court likewise erred in directing judgment to be entered against the appellant and his bondsmen. The order of delivery contained a capias clause, and the allegations of the answer were sufficient to show that the appellant was arrested under the provisions of §§ 8642 and 8644 of Crawford & Moses’ Digest, and executed bond pursuant to § 8645 of Crawford & Moses’ Digest, which was a bail bond. Such being the case, the trial court erred in rendering a summary judgment on this bond. Daniels v. Wagner, 156 Ark. 198. The judgment is therefore reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Clayton v. State.
    Opinion delivered June 25, 1923.
    1. Indictment and information- — joinder of offenses. — An indictment charging in the first count that the accused broke and entered a home with intent to commit grand larceny, and in the second count that he stole corn of the value of $20, was not defective on -the ground that it joined the offenses of burglary and grand larceny, where the indictment does not show on its face that the two offenses were not related.
    2. ■ Criminal law — harmless error. — -Overruling, a demurrer for misjoinder of counts for -burglary and grand larceny was not prejudicial where the State elected to try the accused on the count for grand larceny.
    3. Criminal law — question not raised below. — In a prosecution for grand larceny in stealing corn, a variance between the indictment and evidence tending to show that the accused severed from the -soil corn of the value of more than $10, constituting a trespass under -Crawford & Moses’ Dig., § 2518, cannot be urged upon appeal where it was not made a ground for a motion for new trial, except by the contention that the -verdict was contrary to the evidence.

      4. Criminal law — harmless error. — In a prosecution for grand larceny, testimony as to a confession was not prejudicial where the accused testified to the same facts.
    5. Witnesses — impeachment.—In a prosecution for grand larceny by stealing corn, it was not error to permit the State to ask defendant’s witness whether he did not peddle liquor for the defendant, whether the witness worked at a still for defendant, and whether the witness was paid in the product of the defendant’s still, such questions being calculated to elicit facts affecting the witness’ credibility.
    6. Witnesses — cross-examination.—In a prosecution for grand larceny, it was proper to permit the prosecuting attorney to ask defendant testifying as a witness whether he had made whiskey and sold it illegally, and to ask him concerning indictments against him for other offenses, where the court instructed the jury to consider such matters only as affecting defendant’s credibility.
    Appeal from Crittendent Circuit Court; G. E. Keck, Judge;
    affirmed.

      Rudolph Isom, for appellant.
    Tlie indictment is fatally defective because of a mis-joinder, burglary and grand larceny being charged, with no relation whatever between the offenses. 97 Ark. 176; 105 Ark. 12; 48 Ark. 94. There is a variance between the larceny count and the proof offered to sustain it. 67 Pa. 54. An unharvested crop is part of the realty, and although appellant could have been indicted under § 2578 C. & M. Digest, he was not. 93 Ark. 81; 100 Ark. 409; Bishop on Statutory Crimes, § 414; 66 Ark. 65; lil Ark. 180. This was called to the court’s attention by objection when he read as part of instruction 2 said § 2518, C. & M. Digest. Question may 'be raised first time on appeal. 12 Cyc. 811-12; 26 Ill. App. 137. The court erred in permitting a purported confession to go to the jury and also in allowing the prosecuting attorney to ask defendant if he had not committed certain other offenses wholly unrelated to offense for which he was on trial. 109 Ark. 322; 91 Ark. 555; 102 Ark. 492; 99 Ark. 604.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock, assistants, for appellee. •

      Appellant made no objection to the two offenses being charged, and the State elected to try him on the second count of the indictment, and the jury were so instructed. 96 Ark. 52; 151 Ark. 240; 141 Ark. 43; 142 Ark. 96. The second count of the indictment was sufficient. Sec. 2518, C. & M. Digest; 100 Ark. 409; 111 Ark. 180. No proper objection was made to it in any event. 80 Ark. 225; 17 C. J. 53, par. 3330, 50, par. 3328; 51, par. 33, 29, 55. No error in admitting evidence of the confession nor in permitting the defendant to be questioned about whether he had not committed certain other crimes. No objections were made nor exceptions saved. 82 Ark; 540; 84 Ark. 128; 109 Ark. 355. There was only one act of larceny, and appellant’s assignments of error are not properly preserved, either no objection being made or a failure to obtain a ruling of the court thereon. 79 Ark. 298; 117 Ark. 154; 118 Ark. 310; 151 Ark. 463; 149 Ark. 147.
   Wood, J.

Charlie Clayton, the appellant, was indicted by the grand jury of Crittenden County in two counts. The first count was for 'burglary, and the second for grand larceny. The first count alleged that he “did unlawfully, wilfully, maliciously, burglariously, feloniously and with force break and enter the home of M. C. Williams, with the unlawful, wilful, malicious, burglarious and felonious intent to commit grand larceny, by unlawfully, wilfully, and- feloniously taking, stealing and carrying'away personal property of the value of more than ten dollars.”

The second count alleged that he “did unlawfully and feloniously take, steal and carry away ten bushels of corn of the value of $2 per bushel, of the total value of $20, the property of M. C. Williams.”

Clayton was tried and convicted of grand larceny, and sentenced by judgment of the court to one year in the State Penitentiary. Prom that judgment he appeals.

1. The appellant contends that the indictment was fatally defective because it joined the offenses of burglary and grand larceny, where the proof showed that there was no relation between the two offenses, the charge of burglary being the entering of the house of Williams with the intent to commit a felony, and the charge of grand larceny being the stealing of com from the field of Williams. This contention of the appellant cannot be sustained, for the reason that the indictment does not on its face reveal the 'alleged defect of which appellant complains. Furthermore, if this defect were shown on the face of the indictment, the State elected to try appellant only on the second count of the indictment for grand larceny, which was a good indictment for that offense.

2. The appellant next contends that there was a fatal variance between the second count and the proof offered to sustain it; that the testimony offered by the State tended to show that the appellant went into a field and severed from the soil of Williams roasting ears growing thereon, of the value of more than $10. Appellant contends that this constituted trespass and not larceny, under § 2518, C. & M. Digest, which provides: “If any person shall sever from the soil of another any vegetable or produce growing thereon, of the value of one dollar or more, * * * and shall take and carry away, or convert the same to his own use, with intent to steal the same, he shall be adjudged guilty of larceny in the same manner as if the article so taken had been severed at some different and previous time.”

The appellant is not in an attitude to complain here of a, fatal variance between the second count in the indictment and the proof offered to sustain it, for the reason that he did not call attention to such objection in the trial court. Such alleged error in the ruling of the trial court is not made one of the grounds of his motion for a new trial. This was necessary. True, the appellant alleges, as one of the grounds of his motion for a new trial, that the verdict was contrary to the evidence, but the testimony for the State tended to prove the charge of grand larceny as set np in the second connt of the indictment.

3. The appellant next contends that the court erred in permitting a purported confession of appellant to go to the jury because the testimony tended to prove that such confession was not free and voluntary. Witness Curlin testified for the State as follows: “Q. Tell the jury whether or not you had any conversation with this defendant concerning M. C. Williams, or concerning this case. A. I did. Q. Where? A. Down in the office. Q. Do you know when it was with reference to the time that the case was to be tried that you talked to him?’ A. No, I don’t know just exactly the number of days, but it was several days after the case should have come'up. Q. To refresh you, do you know whether it was — you talked to him the day it was to come up, or do you know? A. No sir. The day I talked to him was the day they brought him back from Memphis. Q. Mr. Curlin, before he talked to you about the case, was-any inducement held out to him to get him to talk about it? A. None whatever. Q. Or any abuse or anything of that kind used to get him to talk about it? A. No sir. We were just laughing and talking about the circumstances. Q. Was he laughing about it? A. Yes sir. Q. Was he telling you about some occurrence? A. Yes sir. Q. Was the conversation on the part of Clayton free and voluntarily made? A. It was.”

Further along in his testimony the witness stated that the appellant was telling about his capture. He stated that he had stationed several half-pints of whiskey around Williams’ buggy and in his house, and he then put in a call for the officers, and thought the deputy sheriff would come and arrest Williams on a whiskey charge, but the policemen came instead, and the appellant said, “When the policemen came, he knew he had played hell. So they caught him and carried him down to the police station, and I believe he said they hit him on the side of the head, and he told them all about it.”

If it be conceded that the above testimony tended to prove that appellant made a confession, and that- same was not free and voluntary, still no prejudice resulted to the appellant from such testimony, because appellant himself to oh the witness stand and testified to the same state of facts brought out by such testimony.

4. The -appellant contends that the court erred in permitting the prosecuting attorney to propound improper questions in the cross-examination of a witness for the defendant. The character of these questions is indicated by the following examples: “Q. Didn’t you peddle a little liquor for Payton and Charlie, both of them? Q. I’ll ash this: was Charlie getting corn up there -out of that field to mahe liquor down there on his place? Q. Didyouworh at the still for him? Q. Didn’t pay you in the product of his corn?”

There was no error in these questions. It was proper to ash them, as they were calculated to elicit facts which the jury might consider as affecting the credibility of the witnesses. Jordan v. State, 141 Ark. 504; Kyles v. State, 143 Ark. 419, and other cases in Crawford’s Supplement to Digest, Witnesses, 981-2-3. Moreover, to some of the questions -no objection was made at the time, and no ruling of the court was elicited and obtained on any of them. Coon v. State, 109 Ark. 346-55.

The appellant also contends that the court erred in permitting the prosecuting attorney to ash the defendant, who had become a witness in his own behalf, if he had not committed murder, made whishey and sold it illegally, and also to ash him with reference to indictments procured against him for other offenses. These questions were likewise proper as tending to affect the credibility of the defendant as a witness. The court told the jury that they would consider such questions “only for the purpose of goingto the credibility of the witness.” The ruling was correct. Kyles v. State, supra; Jordan v. State, supra; Conner v. State, 132 Ark. 531; Shinn v. State, 150 Ark. 215, and other cases in Crawford’s Supplement to Digest, p. 982.

The record presents no reversible error.

Affirmed.


author: Hart, J.,

text:
    Matkin v. Cramer Cotton Company.
    Opinion delivered June 25, 1923.
    1. Appeal and ERROR — conclusiveness of chancellor’s finding.— A chancellor’s finding of facts will not be disturbed on appeal unless it is against the weight of the evidence.
    2. Judgment — relief against, in equity. — Equity will not grant relief against ,a judgment at law for errors which should have been corrected in the trial court or on appeal.
    3. Judgment — relief in equity. — To entitle a party to have equitable relief against a judgment at law, it must appear that the party complaining was not guilty of inattention or negligence.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    E. B. Matkin brought this suit in equity against the Cramer Cotton Company and W. N. Wilkes, as sheriff of Woodruff County, to set aside a judgment rendered in the circuit court against him in favor of the first-named defendant, and to enjoin the sheriff from levying an execution issued on said judgment.
    It appears that Matkin had shipped 25 bales of cotton to the Cramer Cotton Company to be sold for him by it. According to the evidence adduced in behalf of Mat-kin, the Cramer Cotton Company sold the cotton contrary to his orders, after the market had gone down, and thereby caused him damage in a material sum.
    According to the testimony of the Cramer Cotton Company, it sold the cotton according to contract, and Matkin finally gave it his promissory note for the bal-anee due it for advances. Suit was brought on the note by the Cramer Cotton Company against E. B. Matkin in the circuit court, and judgment was rendered in its favor against Mm. Subsequently an execution was issued on said judgment and placed in tbe bands of the sheriff, to be levied by him on the property of Matkin, to satisfy said -judgment.
    According to the evidence for the plaintiff, he had a meritorious defense to the action brought against him in the circuit court 'by the Cramer Cotton Company, and N. A. Cramer, the principal owner of the stock in said company, promised not to take judgment against him at the term of court at which the judgment in question was rendered.
    According to the testimony of N. A. Cramer, he had not seen E. B. Matkin for some time before the suit in the circuit court was filed, and did not promise him that judgment would not be taken in the suit at the term of court at which the judgment in question was rendered, or at any other time.
    The chancellor found the issue in favor of the defendants, and the complaint of the plaintiff was dismissed for want of equity.
    A temporary injunction which had been issued m the suit in favor of the plaintiff was dissolved. The plaintiff has duly prosecuted an appeal to this court.
    R. M. Hutchins and Mehaffy, Donham & Mehaffy, for appellant.
    The judgment was obtained by fraud, and the testimony shows appellant had a meritorious defense, and that he had no adequate remedy at law, appellee being insolvent. The chancery court should have enjoined the collection of the judgment. 120 Ark. 151; 61 Ark. 341; 40 Ark. 551; 40 Ark. 338; 35 Ark. 123; 23 Cyc. 991,1010, 1024, 1028; 74 Ark. 292; 73 Ark. 555; 51 Ark. 341. Appellant has a cause of action against appellees upon wMch he should have been given judgment, which could have been enforced 'by enjoining the collection of ap•"•pellant’s judgment, or a set-off of judgments. 23 Cyc. 1019; 32 Ark. 478. The court erred in not affording this relief, and the decree should 'be reversed.

      Brundidge & Neelly, for appellees.
    Appellant, having filed a stay bond after the rendition of the judgment, was not entitled to prosecute this appeal, which should be dismissed. 141 Ark. 587; 136 Ark. 348. The chancery court was without jurisdiction to issue an injunction, and the chancellor’s'findings are supported by the testimony. C. & M. Digest, §§ 5788,. 6990, 6295. Appellant had adequate remedy at law. 58 Ark. 317.
   Hart, J.,

(after stating the facts). According to the allegations of the complaint, the judgment in favor of the Cramer Cotton Company against E. B. Matkin in the circuit court was procured by fraud. In other words, it is the contention of Matkin that he had a meritorious defense to the action, and that the Cramer Cotton Company took judgment against him after promising him that no action would be taken in the case at that term of the court.

N. A. Cramer, the principal stockholder and manager of the Cramer Cotton Company, denied that he made any agreement with Matkin not to take judgment against him at the term of the court during which the judgment in question in the circuit court was rendered, or at any other time.

The chancellor found the issue in this respect in .favor of the defendant, Cramer Cotton Company, and it cannot be said that his finding on this point is against the weight of the evidence.

' Under a long course of decisions in this' State, a finding of fact made by a' chancellor will not be disturbed on appeal unless it is against the weight'of the evidence. Hence a court of equity cannot relieve the plaintiff in this case, though the judgment against him in the cir- ' cuit court was manifestly wrong. The alleged errors in the'ease against Matkin in the circuit court should have been settled in that court, or by appeal to this court. It must appear that the judgment complained of was not the result of any inattention or negligence on the part of Matkin, and he must show a clear case of diligence to entitle himself to an injunction. Clopton v. Carloss, 42 Ark. 560, and Hanna v. Morrow, 43 Ark. 107.

It is the duty of a litigant to keep himself informed of the progress of his case, and a court of equity will not relieve him if the taking of the judgment appears to have been due to his own carelessness in not defending •the suit. Trumbull v. Harris, 114 Ark. 493.

It follows that the decree must be affirmed.


author: Hart, J.

text:
    Royal v. State.
    Opinion delivered June 25, 1923.
    1. CRIMINAL LAW — WEIGHT AND SUFFICIENCY OF EVIDENCE. — While the Supreme Court will determine whether there was evidence legally sufficient to sustain a verdict, it will not disturb a verdict upon the mere weight of the evidence.
    2. Landlord and tenant — sale of cotton subject to landlord’s lien. — In a prosecution under Crawford & Moses’ Dig., § 2552, for a sale of property subject to a landlord’s lien, evidence held sufficient to sustain a finding that defendant had sold cotton with intent to defeat his landlord’s lien, and to show the value thereof.
    3. Criminal law — instructions—objections and exceptions.— Where no objections or exceptions are saved to the giving of instructions, no assignment of error on this account is presented for review.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      Gooh & Trice, for appellant.
    The evidence is not sufficient to support the verdict. 68 Ark. 529; 97 Ark. 156; 85 Ark. 360; 114 Ark. 230. Necessary to allege and prove value of the property. 105 Ark. 172. The judgment should be reversed.

      J. S. Utley, Attorney General, John L. Garter and Wm. T. HaonmocJc, Assistants, for appellee.
    No objections were made to tbe court’s charge, and no assignment of error is presented on this account. 96 Ark. 52. Tbe verdict is supported by tbe testimony. 107 Ark. 469; 16 Ark. 499; 64 Ark. 247; 114 Ark. 393; 103 Ark. 87; 88 Ark. 418; 154 Ark. 191. Tbe judgment should be affirmed.
   Hart, J.

Crawley Royal prosecutes this appeal to reverse a judgment of conviction against him for selling property subject to a landlord’s lien, in violation of tbe provisions of § 2552 of Crawford & Moses’ Digest.

Tbe main reliance of appellant for reversal of tbe judgment of conviction is that tbe verdict is without evidence to support it. Whether there was any testimony legally sufficient to sustain tbe verdict is a question of law, but whether tbe verdict is justified by tbe testimony presents a question of fact which cannot be considered upon appeal.

According to tbe testimony of T. K. Lee, he made the contract with the appellant, Crawley Royal, to rent him his farm in Chicot County, Ark., for $1,000 for the year 1920. There were 125 acres fit for cultivation, but, on account of the wet season in 1920, there was only between 75 and 100 acres put in cultivation. One of the subtenants of appellant made three bales of cotton and a remnant. This cotton was delivered to appellant, and he delivered two of the bales to the landlord. These two bales were sold for about $100 by the landlord. Appellant told witness that 'he had taken the other bale of cotton to Lake Village and sold it.

A subtenant of appellant testified that he made three bales of cotton and a remnant of 100 pounds. He turned this cotton over to the appellant after it was ginned. This was the same three bales of cotton referred to bv the landlord in his testimony. Another witness testified that she was a subtenant of appellant, and made a' small remnant of cotton, which she turned over to him. Still another witness testified that he made 280 pounds of lint cotton on the place, which he turned over to appellant. Another witness testified that he ginned seven bales of cotton for the appellant and his subtenants in the fall of 1920. All this cotton was turned over to the appellant, except one bale, which he kept to pay for ginning. This . bale was sold for about $50.

It is true that this testimony was contradicted by that of the appellant and his witnesses, but, as above stated, the long-established rule in this State is that this court will not disturb the verdict of a jury upon the mere weight of the evidence.

The jury might have found, from the evidence recited above, that the cotton referred to by the witnesses was raised upon the place of the prosecuting witness in Chicot County, Ark., and that appellant sold a part of it with the intent to defeat the landlord in the collection of his rent.

It is insisted that the value of the cotton sold is a material element in the offense, and that there is no testimony on this point. According to the testimony of the landlord, the two bales of cotton which he did receive from appellant were sold for something like $100. According to the testimony of' the ginner, the bale which he kept as security for the ginning was sold by him and brought something like $50. The cotton was all grown on the same place. At least the jury might have inferred this to be the fact, and the testimony as to what these three bales sold for inferentially showed the value of the other cotton.

No objections were made or exceptions saved to the giving of instructions. Therefore no assignment of error on this account is presented for review. Clardy v. State, 96 Ark. 52.

It follows that the judgment must be affirmed.


text:
    Sheridan v. State.
    Opinion delivered June 25, 1923.
    1. Intoxicating liquors — burden of proof. — In a prosecution for violating Crawford & Moses’ Dig., § 6171, declaring if unlawful to receive for storage, distribution or on consignment for another the liquors mentioned in § 6165, evidence of the discovery of some kind of “home brew” in a house wherein defendant was found was insufficient to sustain a conviction in the absence of proof that the liquor came within the kind enumerated in the statute; the burden being on the State to prove such fact.
    2. Criminal law — failure of evidence to sustain verdict.— Where the evidence wholly fails to sustain the verdict on a material issue, it is the court’s duty to reverse the judgment and remand the cause for a new trial.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.

      Richard M. Ryan, for appellant.
    The evidence is not sufficient to sustain the verdict. There was only found some “home brew,” called beer, in the house where appellant slept, and there was no testimony showing that it contained alcohol. Secs. 6169, 6165, 6171, C. So M. Digest. The court erred in refusing appellant’s requested instructions numbered 1, 10, and also in refusing 11a instructing a verdict for appellant.

      J. S. Utley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    Appellant was convicted of violating provisions of § 6171, C. & M. Digest, and the evidence is as strong as in 133 Ark. 85, where a conviction was sustained. No specific objection was made to instruction number 1, complained of. 73 Ark. 315. Instruction No. la was pronerly refused. 54 Ark. 588; 117 Ark. 64; 103 Ark. 70; 100 Ark. 199; 52 Ark. 180. No. error in refusing to give peremptory instruction. No error is refusing requested instruction No. 3a, which is argumentative in form and was not requested till after case had been submitted to the jury. C, So M. Digest, § 3175; 145 Ark. 75,
   Hart, J.

Clarence Sheridan prosecutes this appeal to reverse a judgment of conviction against '.him for violating- § 6171 of 'Crawford & Moses’ Digest. The section reads as follows: “It shall he unlawful for any person, firm, corporation or association to receive for storage, distribution, or on consignment, for another, the liquors mentioned in § 6165 of the act, or any of them, or any other liquors, bitters or drinks prohibited by the laws of this State, to be sold, bartered, or otherwise disposed of in this State.”

The liquors mentioned in § 6165 are “any alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, or medicated liquors.”

According to the testimony of the witnesses for the State, Clarence Sheridan was working in a restaurant in Hot Springs, Ark., for Harry Moore. The constable received information that intoxicating liquors were stored in the residence of Harry Moore in Hot Springs, Ark., and sent two of his deputies there to make an investigation. They found the house locked, and then tried to get in through the windows. They finally found a window in the house unlocked, and went in through it. They found Clarence Sheridan on a bed in the house, asleep. They found 75 or 80 pints of beer and a lot of empty bottles there. The empty bottles appeared to have contained some kind of “home brew.” On cross-examination one of the witnesses testified that-all of the liquor found by them appeared to have been some kind of “home brew.”'Both of them said that they did not know whether or not the liquor contained any per cent, of alcoh ol.

The defendant denied having any possession or control over the liquor whatever, and said that he was unwell and had merely been permitted by his employer to sleep in the house that day. His testimony was corroborated by that of Harry Moore, who said that the liquor belonged to him, and that it did not contain any alcohol.

Reliance is placed by the State for a conviction npon the case of Rogers v. State, 133 Ark. 85. In that case a search was made of Rogers’ house, and a quantity of corn liquor and several empty bottles were found. There were 'also some jugs or containers on the premises. Some of the liquor was found concealed behind the barn, and there were about three dozen bottles which had been cleaned, and a funnel was in one of them, ready for liquor to be poured into it. The court held that this was substantial testimony to sustain the verdict. The difference in the two cases is that the witnesses in the Rog’ers case said that the liquor found by them on 'the premises was corn whiskey. The court will take judicial notice that com whiskey contains alcohol and is intoxicating’.

In the present case the liquor found on the premises is called beer, but it appears from the evidence for the State to have been some kind of “home brew.” The witnesses did not know whether it contained any alcohol or not. The burden of proof was upon the State to show the guilt of the defendant, and it devolved upon it to show that the liquor came within the kind enumerated above. Having failed to show that the “home brew” found on the premises of Harry Moore contained any per cent, of alcohol, a material ingredient of the offense was not proved.

This case is not governed by the long-established rule that this court will not disturb the verdict of the jury upon the mere weight of the evidence. Where, as’ in this case, the evidence wholly fails to sustain the verdict upon a material issue in the cause, it is as much the duty of this court to reverse the judgment below and' to remand the cause for a new trial as it would be for any error of law occurring at the trial and excepted to. The reason is that the question as to the sufficiency of the evidence to support the verdict becomes one of law where there is an entire absence of evidence on some material point.

It follows that the judgment must be reversed, and the cause will he remanded for a new trial.


author: Smith, J.

text:
    McIntosh v. Little Rock.
    Opinion delivered June 25, 1923.
    1. Statutes — construction.-—-All new legislation must be construed in reference to existing legislation.
    2. Licenses — occupation tax — repeal.—Acts 1923, No. 345, imposing a tax upon the entire gross income of every resident of the State, for the benefit of the public schools, is not in conflict with Crawford & Moses’ Dig., § 7618, which authorizes an occupation tax to be levied by cities of the first and second class notwithstanding § 7618 contains an exemption in favor of “such persons, firms, individuals or corporations who pay a tax to the cities or State upon gross incomes,” since the act of 1923 provides, in section 24, that the tax thereby imposed shall be in addition to all other taxes.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      Isgrig & Dillon and J. C. Marshall, for appellant.
    Act 345 of Acts 1923, imposing an income tax, is in conflict with § 7618, C. & M. Digest, and relieves appel.lant from payment of the occupation tax prescribed by ordinance passed pursuant to said section. The occupation tax statute was held void in 141 Ark. 421. It would be a gross discrimination to say that persons required to pay the gross income tax to the State at a later day would not be exempt, while those required to pay it by an earlier statute would be. 85 Ark. 509. The Legislature intended to exempt from city occupation taxes all those who are required at any time to pay a tax to the State on gross incomes.

      A. B. Ggpert, for appellee.
    Appellee contends that act 345 of Acts 1923 is unconstitutional and does not affect the law authorizing cities to levy occupation taxes. In conflict with § 5, art. 16, Constitution of Arkansas. 86 So. 56; 26 N. C. L. 145; 7 Wall. 433,19 U. S. (La.) 253; 93 Atl. (N. H.) 211. If the income tax is a property tax, said act is unconstitutional. See § 24 of act. The object of statutory construction is to arrive at tbe legislative intent. 117 Ark. 606; 150 Ark. 493; 133 Ark. 157; 35 Ark. 56; 48 Ark. 308; 76 Ark. 443. It could not have been tbe intention to take tbe occupation tax from tbe cities without making other provision for revenue for them.
   Smith, J.

Appellant is a practicing attorney in the city of Little Nock, and has declined to pay tbe occupation tax assessed by an ordinance of that city upon attorneys. He was fined for bis refusal, both in tbe municipal court and in tbe circuit court on appeal, and .has prosecuted this appeal to reverse that judgment.

Section 7618, C. & M. Digest, authorizes cities of tbe first and second class to enact ordinances requiring every person, firm, individual or corporation engaged in any trade, business, profession, or vocation, to procure a license so to do.

An ordinance enacted pursuant to this statute was upheld in tbe case of Davies v. Hot Springs, 141 Ark. 521.

Tbe statute contains an exemption in favor of “such persons, firms, individuals or corporations who pay a tax to tbe city or State on gross incomes,” such persons being exempted from tbe requirements of tbe statute. Tbe statute authorizes the city to classify tbe persons subject to the tax, but, after doing so, provides that “no classification shall be based upon earnings or income.”

Pursuant to this statute, tbe city of Little Nock enacted an ordinance fixing tbe license to be paid by practicing attorneys, and it was for bis refusal'to pay this' license that appellant was fined.

By act 345 of tbe Acts of tbe General Assembly of 1923, approved March 8, 1923, a tax for tbe benefit of the public schools of the State was imposed upon the entire gross income of every resident of the State. The term “gross income” is defined in the act to include gains, profits, and income derived from salaries, wages, or compensation for personal service, or .from professions, vocations, trades, businesses, commerce, or sale, etc.

Appellant earns an income from his profession, and hah become subject to the payment of this tax, and he says that, having become subject to the payment of this tax on his income, he is now exempt from the payment of the municipal license fee, and he assigns this as his reason for his refusal to procure a city license. It will be observed that appellant does not attack the act of 1923. Indeed, he claims exemption from liability for the city tax through its provisions.

'On behalf of the city it is insisted, first, that the act of' 1923 is unconstitutional, and therefore does not repeal the city ordinance, and second, that the act of 1923, even if constitutional, is not in conflict with § 7618, C. & M. Digest, pursuant to which the city ordinance was passed.

As we are of opinion that the city is correct in its second insistence, we do not consider the constitutionality of the act of 1923, for, as we have said, appellant not only does not attack it, but relies on it to excuse his failure to pay the city tax.

It is the insistence of appellant that the exemption in favor of persons “who pay” a tax on gross incomes refers to those who pay at the time any particular act is passed imposing a tax on gross incomes as to them; and in this he is correct, so that, if the act of 1923 contained no other provision on the subject, the effect of its enactment would be to exempt from, liability for the city license all persons who are required to pay tax on incomes under the act of 1923; but there is another section of the act of 1923 which, we think, must be looked to to ascertain the legislative intent. It reads as follows: “Section 24. The taxes imposed by this act are in addition to all other taxes imposed by law, and are levied for the sole nse and benefit of the public schools for the State of Arkansas.”

All new legislation must be construed with reference to existing’ legislation. Thompson v. Road Imp. Dist., 139 Ark. 136; Board of Dir. v. Williford, 120 Ark. 415; Benton v. Willis, 76 Ark. 443.

Section 7618, C. & M. Digest, does not authorize the cities to impose an income tax as such. The authority it confers is to impose an occupation tax; and one subject to it must pay the tax although he derives no income from his attempt to practice his profession or vocation; indeed, it is expressly provided that no classification. shall be based upon earnings or income. So therefore the General Assembly was advised that an occupation tax was levied in the cities, or was authorized to be levied. Now, the acl of 1923 is an additional tax. It was not enacted to relieve any one from the payment of any tax to which he might be subject under the existing laws. The Legislature, ,no doubt, anticipated that questions would be raised as to the purpose and effect of the act, and it sought by § 24 to furnish its own interpretation, and that is that the taxes imposed by this act are in addition to all other taxes imposed by law.

It is a new tax, and a tax in addition.to all other taxes, made so by the express language of the act itself. It is levied upon the income, and is measured by the amount of the income, and we think the legislative intent is clear to impose more taxes, and not to relieve anv one from any impost to which he was otherwise subject.

Under this view, appellant should pay the city license, and the judgment of the court imposing a fine for not doing so is affirmed.


text:
    Neill v. Cornish.
    Opinion delivered June 25, 1923.
    1. VENDOR AND PURCHASER — RESCISSION FOR FAILURE OF TITLE. — To entitle a vendee in possession under deed with general covenants of warranty to rescind for failure of title, his loss must be of such a character as to deprive him substantially of the benefits of his purchase; and if the beneficial enjoyment of his contract be not materially taken away, and the failure of consideration be only partial, and such as can be compensated in damages, there is no case for rescission.
    2. Mines and minerals — failure of title of oil lease — rescission. — The purchaser of an oil lease is not entitled to receive or recover the purchase price and drilling expenses for partial failure of title because a portion of the land included in the lease had previously been deeded to another, where the evidence showed the absence of fraud, and that, because of the existence of a geological fault, none of the lands included in the lease was oil-bearing, and where the portion of the land to which the title failed was not more or less valuable than the other lands included in the lease, the purchaser was entitled to recover a proportionate share of the purchase money.
    Appeal from-Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      George P. Whittington and 0. H. Sumpter, for appellant.
    Appellant was entitled to rescind this -contract and recover the purchase price as well as the cost of the well, the consideration having failed. Appellees had no title to -one and a quarter acres of the tract leased to appellant and upon which the well was drilled. It was included in the description. 95 Ark. 375. Fraud and breach of warranty alleged as grounds for recovery. 71 Ark. 91. Appellee was deprived of substantial benefits of his purchase and the beneficial enjoyment of his contract, and can not be compensated in damages. 46 Ark. 347; 123 S. W. 263. Should recover the value of improvement placed on land and interest. Black on Rescission and Cancellation, § 636, 632. The decree should be reversed, the contract allowed rescinded, and appellant given judgment for the money paid and cost of improvements.

      Marsh & Marlin, for appellees.
    The title to one and a quarter acres of the tract leased failed, the abstracters having overlooked the prior conveyance thereof to the Rock Island Railway, which conveyance was of record, as the other conveyances from which the abstract of title was made, and of which appellees had no more actual knowledge than did appellant, and about which no false or fraudulent representations were made. No ground exists for a rescission of the contract. 143 Ark. 581; 101 Ark. 608. Appellees are only liable for the value of the land the title to which failed, proportionately to purchase price of entire tract, which they stood ready to pay, and- tendered in court. 59 Ark. 196; 13 Ark. 524; 143 Ark. 24. The testimony disclosed that the test developed there was no oil of commercial value on the entire tract. Case does not come within the rule announced in 95 Ark. 375; 46 Ark. 337 distinguished.
   Smith, J.

Appellant, as trustee for himself and a number of others, bought an oil lease -from appellees on a ten-acre tract of land near El Dorado, for the sum of $20,000. The land covered by the lease was a part of a seventy-acre farm owned by A. J. Cornish in his lifetime. Cornish died in 1919, and was survived by his widow, a woman seventy years old, and seven children, all of whom were adults at the time the lease was made.

In 1921, soon after the discovery of oil in Union County, -appellee L. K. Cornish, a son of A. J. Cornish, acting for himself and the other heirs of his father, negotiated the lease to appellant. L. K. Cornish was a commercial traveler, and had not lived on the farm for twenty years. An abstract of the title to the land - was procured from a reputable abstracter in El Dorado, which appellant caused to be examined by his attorney. In connection with the abstract Mrs. Sallie Cornish, the widow of A. J. Cornish, made an affidavit which recited that her husband had been in the possession of the land leased for many years.

The title was approved and the purchase money paid, and appellant entered into a contract with Chai Daniels & Company to drill a well. The lease contract required the lessee to begin drilling a well within sixty days, and the drilling commenced about April 18 or 20. On May 9 notice was served on appellant that the land ' on which the well was being drilled was owned by the Rock Island Railroad Company, and appellant was ordered to vacate. The drilling was suspended for a few' days, during which time an effort was made to secure' 'permission to complete the well. This was not obtained, -and the drilling was resumed, and the well was completed in June.

The well was drilled in and bailed out after the service of the notice, this being,the final work done about the drilling of a well.

It appears that in 1908 A. J. Cornish sold to the Rock Island Railroad Company an irregular strip of land containing about one and a quarter acres of land, which the railroad company required as a part of ■ the land covered by its reservoir or water supply near El Dorado. The land sold the railroad company was a long narrow strip extending along the west front of thefarm. The deed was placed of record, soon after its execution.

Mrs. Cornish admitted she had signed a- deed to the railroad company in which she relinquished her dower, ■ but she is a woman of but little experience in business, and the land was described by metes and bounds, and she testified that she did not know that the land sold by her husband to the railroad company was included in the lease, in which the land leased was also described by metes and bounds; The abstract of the title, was defective in that it failed to show the conveyance to the railroad company, and none of the parties to this litigation had actual knowledge of the fact that a portion of the land embraced in the lease had been previously conveyed to the railroad company, and there is no imputation of fraud on the part of the lessors.

At the time the drilling began on this lease no wells had been drilled north, sonth or east of this well, bnt there was a producing well, known as the Boggs well, about eighteen hundred feet west of the land. As the drilling on the lease progressed there was a showing of oil, and when the well was drilled in and bailed out there was oil in the well. The well is what is known as a pumper, that is, a well out of which it would be necessary to pump the oil, but no pump was ever placed in the well, and its capacity as a producer remains conjectural. Mr. Galloway, the manager of the company which drilled the well, testified that, in his opinion, the well would produce from twenty to fifty barrels per day, but he expressed the opinion that it would not be profitable to install a pump if the production ran less than thirty barrels a day, and that he did not know for what time it would produce even the minimum capacity.

. J. A. Brake, the State Oil and Gas Inspector, testified that he was a geologist, and that he had many years’ experience in the oil fields. He testified that what oil . men and geologists know as a fault ran along the western boundary of this lease. This fault was about a quarter of a mile wide and three miles long, and the well on this lease was drilled in the western edge of the fault. He described a fault as being caused by the fold of the earth, which resulted from the manner in which the earth had cooled, and that this fault defined and limited the oil field on its western side. After appellant commenced drilling this well, other wells were begun north, south and east of this well, but all were dry holes, thus proving positively that the fault terminated this field. Brake further testified that the only part of this lease on which oil could have been found was along its western border, where the well was drilled. He testified that a survey of this field was made by geologists in the service of the Federal Government, in which he participated, in March, 1921, and that the fault was located and platted the latter part of March or the first of April, 1921, but the report had not been given to the public when appellant bought his lease, and neither the lessors nor the lessee knew of this fault when the lease was given. Brake testified, however, that he notified the drillers shortly after they commenced drilling of the presence of this fault, and advised them against continuing the drilling.

Brake also testified that, but for the presence of this fault, any part of the lease would have been regarded as oil land, and that any one acre was as valuable as any other acre for that purpose, but that it was the custom always to drill nearest production, that is, nearest a well which was producing oil.

•Galloway testified that, when he commenced drilling, . the entire ten acres looked like producing territory, and there was no difference in the value of any part of the lease, but that the drilling was begun on the west side of the lease because this was the side nearest to the Boggs well.

There is no intimation of fraud in this case. On the contrary, there is a disclaimer of any intention to charge fraud to the lessors, and, in our opinion, all parties acted in entire good faith. But for the mistake of the abstracter the lease would no doubt have been drawn to exclude the strip of land sold the railroad company, and there was no collusion between him and the lessors. The abstracter’s mistake was probably due to his failure to comprehend the descriptions of the area sold to the railroad company.

Appellant has demanded the return of the entire purchase money paid by him, and the-sum expended in drilling the well. The lessors tendered the proportionate part of the purchase money covering the acre and a quarter to which the title had failed, and the decree of the court was for the return of that sum, and for that amount only, and this appeal is from that decree.

We áre of the opinion that the decree of the court below is correct. There was no fraud practiced, and a case for rescission has not been made. The rule to be applied here is that announced in the case of Fitzhugh v. Davis, 46 Ark. 337, where the court said: “The rule is, to entitle a vendee of land, who has gone into possession under a deed with general covenants of warranty, to rescind on the ground of failure of title, the loss must be of such character as that he is thereby deprived substantially of the benefits of his purchase; but if the beneficial enjoyment of his contract be not materially taken away, and there is only a partial failure of consideration which can be compensated in damages, there is no case for rescission.”

The thing really bought was the right to explore for oil, and the prospect of finding oil was the thing which gave the land its great value. It has now been determined that, because of .the fault, the land is dry territory, just as is the land north, south and east of it, and for the same reason. This exploration was made by appellant 'himself, or for him, and on land to which the title failed.

If the well drilled- was a producing, profitable well, we would have a question not presented by this record; but, as we understand this testimony, the entire lease is, practically speaking, dry territory, and appellant has had the benefit of his lease, which was the right to explore for oil. No oil was found in paying quantities, and the value of the portion to which the title failed is no greater than that of the remainder, and, in our opinion, the equities of the case are met by returning to appellant the proportionate part of the purchase money to cover the area to which the title failed. Such was the decree of the court below, and it is affirmed.


text:
    Wallace v. McCartney.
    Opinion delivered June 25, 1923.
    1. Statutes — construction of amendatory act. — The general rule that an amendatory act containing the words that an existing statute “be amended to read as follows” excludes all omitted portions of the former law will not be followed when to do so would defeat the manifest purpose of the Legislature, made apparent by the statute when considered in its entirety.
    2. Drains — authority of commissioners to employ engineers.— Under Crawford & Moses’ Dig., § 3607 et seq., as .amended by Acts 1921, p. 388, held that the commissioners of a drainage district organized under the alternative system have authority to employ and pay engineers.
    Appeal from Jackson Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Stayton & Stayton, for appellant.
    There is no authority for the commissioners of drainage districts organized under the alternative system to employ and pay engineers. Sec. 3610, C. & M. Digest, authorizing such employment, was amended by section of act 353 of Acts of 1921, and that part of the section authorizing such employment was omitted from ■this amended act and is not in force. Sec. 23, art. 5, Constitution of Arkansas, 1874; 109 Ark. 556; 55 Ark. 391; 89 Ark. 609; 91 Ark. 243; 100 Ark.175. Its omission shows intent on part of Legislature to divest commissioners of such authority, and this case does not come within rule announced in 109 Ark. 556. Said- act 353 of 1921, repealed by implication all other provisions of the drainage law referring to • employment -of engineers. 64 Ark. 83; 59 Ark. 54; 47 Ark. 476; 64 Ark. 467; 49 Ark. 131; 51 Ark. 177.

      B-oyce & Made, for appellees.
    'The clause of § 3610, C. & M. Digest, authorizing the employment of engineers, was not repealed by § 2, act 353, of Acts 1921. 109 Ark. 556. Analysis of act shows conclusively no intention to repeal last two paragraphs of § 3610. Even if repealed, the commissioners still have authority of law to employ engineers. 115 Ark. 194; 79 Ark. 229; 109 Ark. 90; 125 Ark. 57.
   Smith, J.

The question for decision in this ease is whether there is authority under the statute for the commissioners of drainage districts organized under the alternative system, sometimes called the Turner Act, to employ and pay engineers. The act referred to was approved April 28, 1911, and is found beginning at page 193 of the Acts of 1911, and, as amended from time to time, appears as 3607 'et seq., C. & M. Digest.

At the 1921 session of the General Assembly, act 353 was passed, the same being “An Act to amend §§ 3607 and 3610 of Crawford & Moses’ Digest of the statutes of the State of Arkansas” (Acts 1921, page 388).

The change made ájn-§ 3607 was to provide that, where the lands of a drainage- district were situated in more than one county, the district should be organized in the 'County where the largest portion of the lands was situated, whereas, under the statute before it was amended, the district could be organized by the circuit court of any county in the district.

Section 3610, C. & M. Digest, consists of three paragraphs, the three, together, covering more than a page of the Digest. The first paragraph deals with the appointment and removal of commissioners; and by the last sentence of that paragraph the court is authorized to remove any member -of the board on the petition of a majority of the owners of land within the district, who shall also own a majority of the acreage therein.

Section 2 of act 353 purports to amend § 3610, C. & M. Digest, and does so by providing that the court may remove commissioners on the petition of a majority in value of the owners of real property in the district; whereas the statute, before it was amended, required that the petition should contain a majority of the owners of the land, who should also own a majority of the acreage. Section 2 of act 353 reads as follows: “Section 2. That § 3610 of Crawford & Moses’ Digest be amended to read as follows ’ ’ and the- first paragraph of § 3610 is then reenacted with the change shown above.

The second and third paragraphs of § 3610 were not reenacted by the amendatory act, and the insistence is that the failure to ¡set ont the second and third paragraphs of § 3610 in the amendatory act operates to repeal those paragraphs. If this contention is correct, then the express anthority to employ engineers is repealed, for that anthority appears in the second paragraph. The court held against this contention, and the landowner who raised the point has appealed.

The insistence that the second and third paragraphs of § 3610 have been repealed is based upon the decisions -of this 'and other courts, in which it was held that, when an act amends a former statute “so as to read as follows” it operates as a repeal, by implication, of inconsistent provisions in the former statute and all provisions omitted in the amended law.

The question raised is not a new one; indeed, the exact question was decided in the case of State v. Trulock, 109 Ark. 556. In that case an act of 1913 amended § 5667, Kirby’s Digest, it being provided by the .amendatory act that § 5667, Kirby’s Digest, “be amended to read 'as follows: * * * ” The statute amended provided for the appointment of commissioners, whereas the amendatory act omitted any reference to the appointment of .commissioners, and the argument was made that the power of appointment had ceased to exist.

The opinion in that case contains an extensive review of the authorities, and no useful purpose would be served by again reviewing them. “We recognized the rule of construction that an amendatory statute containing the words that an existing law “be amended to read as follows” ordinarily carried the meaning, when not otherwise limited, that the amendatory statute ex-eluded all omitted provisions of the former law; but we held that this was a mere rule of construction, and would not be followed when to do so would defeat the manifest purpose of the Legislature, made apparent by the statute when considered in its entirety.

That rule is applicable here. One cannot read the drainage act in its entirety and conclude that there was a legislative purpose of withdrawing the authority from the commissioners to employ engineers contained in the ■second paragraph of § 3610. Other portions of the drainage statute refer to work which would necessarily be done by an engineer. Indeed, this is true of the amendatory act itself, for, by § 3607, as thus amended, it is provided that the property owners petitioning for the organization of the district shall file a bond to pay for the expenses of a survey of the proposed district, in case the district is not formed, and that the court shall enter upon its records an order appointing an engineer to he selected by the petitioners, provided the person selected is satisfactory to. the court, - and that the engineer shall give bond, etc. It is there further provided, in the said amended § 3607, that the engineer shall make a survey and a report, and provision is made for the payment of that expense. This, however, is all of a preliminary character, and the second paragraph of § 3610 provides for the employment of an engineer to do the actual construction work.

The third paragraph of § 3610 contains provisions for the use of permanent plans of a drainage district, prepared pursuant to the authority of the second paragraph of that section, in the event the improvement is, for any cause, abandoned but later taken over by another district, and for the payment of the value of those plans, in that event; and if this third paragraph, is held to be repealed, there is nothing in the amended act to take the place of the provisions there contained.

There is nothing in the act to indicate a legislative purpose of depriving the commissioners of the services of an engineer in the construction of a proposed improvement, except the failure to set out in the amended act this second paragraph of section 3610.

In the case of State v. Trulock, supra, we said that it was obvious, from a consideration of the whole of the amendatory statute, that the Legislature did not intend, to amend the whole of the section named, but had left unimpaired that part of it which covered a subject not treated in the new statute, namely, the third and last clause of the section, which related to the appointment of the commissioners and prescribed their qualifications. And we think it equally obvious here that the Legislature intended to amend only the first paragraph of § 3610 and to leave unchanged the second and third paragraphs thereof.

The judgment of the court below accorded with this view, and it is therefore affirmed.


author: Humphreys, J.

text:
    Betts v. Hackathorn.
    Opinion delivered June 25, 1923.
    1. Associations — authomty to do business in state.— General partnerships, joint stock companies, business trusts, and other associations may do business in this State under general laws and not under statutory restrictions applicable to limited partnerships and 'corporations.
    2. Trusts — liability of trustee. — A trustee is a principal, and' not an agent for the cestui •que trust, and hence is personally liable for any indebtedness growing out of transactions in relation to the trust estate.
    3. Business trusts — liability of trustees. — Trustees of a business trust, doing business under a declaration vesting in them absolute authority over the trust business and property, are personally' responsible for any indebtedness growing out of transactions in •relation to the trust estate, though the declaration declares them exempt from personal liability. .
    4. Partnership — intention.—The test in determining whether a ' business is. a partnership is to ascertain whether the parties intended one.

      5. Business trusts — liability op shareholders. — Where a declaration of trust vests absolute control of the property and business in the trustees, shearing the shareholders or beneficiaries of all control .or management, the latter are exempt from individual liability to creditors, in the absence of anything in the instrument showing an intent to form a partnership or to cooperate in the business.
    6. Partnership — language op indenture. — Whether a partnership or business trust is created by an indenture- depends on the language and provisions thereof.
    7. Joint stock companies and business trusts distinguished.— The managers of a joint-stock company are agents of the shar&-holders, while the managers of a business trust are principals and the shareholders are cestuis que trnst.

    Appeal from Hempstead Circuit Court; George R. Haynie, Judge;
    reversed in part.

      Gentry & Purhins, for appellants.
    Tire court erred in sustaining tbe demurrer to tbe answer. Tbe instrument or agreement created a pure common-law, or “Massachusetts,” trust, and not a partnership, and there is no individual liability of members for the.acts of the trustees. 249 U. S. 223; 102 N. E. 355; 88 N. J. Eq. 229; 39 R. S. 193; 107 Kan. 190; 41 L. R. A. (N. D.) 252'; 225 S. W. 273. There is nothing to warrant the construction of this instrument as a partnership agreement. 137 Art. 80; 138 Ark. 281; 87 Ark. 416; Sears on Trust Estates, 138 par. 90.

      E. F. McFadden, for appellee.
    Are the trustees or shareholders under a common-law declaration of trust liable as partners to creditors or other third persons, in the absence of a question of es-toppel? Our cases seem to settle question in affirmative. 125 Ark. 146; 243 S. W. 66. Authorities on subject generally, “Common Law Trust,” “Business Trust,” “Trust Estate,” “Massachusetts Trusts,” Wrightington on Unincorporated Associations- (1917), Thompson on Business Trusts as Substitutes for Business Corporations (1920); Sears, Trust Estates as Business Companies (1921); 7 Am. Law Rep. 612, annotation “Massachusetts Trust,” 10 Am. Law Rep. 887; 115 Am. St. Rep. annotation 407. The trustees are individually liable. 110 IT. S. 330, 28 L. ed. 163; Thompson on Business Trusts, 3536. Shareholders as members liable to appellee. Doyle-Kidd v. Kennedy, supra. Alleged trust only a joint stock company. Association defined. Anderson’s Law Dictionary; Words & Phrases; 241 S. W. (Tex. Civ. App.) 689; Baker-McGrew Co. v. Union Seed, •& Fertil-iser Co., supra; 239 S. W. 1001; 262 Fed. 783; 242 S. W. 1091; 10 A. L. R. 743; 221 S. W. (Tex.) 251. AÍ1 the appellants are liable as partners to third persons on the g’rounds of public policy. 239 S. W. 1001; 25 Ark. 634; 32 Cyc. 1251; Doyle-Kidd Dry Goods Co. v. Kennedy, supra. Regulation of Arkansas Corporations, § 1726, C. & M.Digest, and also chapter 137; Sears on Trust Estates, 343; Thompson on Business Trusts, 18.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court, of Hempstead County to recover $180 for goods sold and delivered to the Hope Oil Trust, a concern doing business under a written declaration commonly known as the “Massachusetts trust.” The suit is based upon an allegation that the Hope Oil Trust is a partnership, and that appellants are members thereof, and as such are individually liable for the indebtedness of the .concern. The six appellants first named were denominated trustees in the declaration. They filed a separate answer, admitting the amount of the account and that the goods were sold to the Hope Oil Trust, but denying individual liability, upon the ground that they are exempted from liability under paragraph 21 of the declaration, which in part is as follows:

“Every act done, power exercised, or obligation assumed by the trustees, pursuant to the provisions of this agreement, or in carrying out the trusts herein contained, shall be held to be done, exercised, or assumed, as the case may be, by them as trustees, and not as individuals, and every person or corporation contracting with the trustees, as well as every beneficiary hereunder, shall look only to the fund and property of the trust for payment under such contract, or for the payment of any debt, mortgage, judgment, or decree, or the payment of any money that may otherwise become due or payable on account of the trusts herein provided for, and any other obligation arising under this agreement, in whole or in part; and neither the trustees nor the shareholders, present or future, shall be personally liable therefor.”

The two last named appellants are shareholders, and 'filed a separate answer denying liability, upon the ground that, under the terms of the declaration, they are cestuis que trust. They claim exemption under paragraph 21, quoted above, and paragraphs 9 and 20, which are as follows: “9. The trustees under this agreement shall have the sole legal title to all property, in any part of the United States of America, or in any foreign country, at any time held, acquired or received by them, as trustees under the terms of this agreement, or in which the shareholders under this agreement shall have any beneficial interest as such shareholders, and they shall have and exercise the exclusive management and control of the same, in any manner that they shall deem for the best interest of the shareholders, with all the rights and powers of absolute owners thereof.”

“20. Shareholders hereunder shall not be liable for any assessment, and the trustees shall have no power to bind the shareholders personally.”

Demurrers were filed to the separate answers, and sustained by the court. Appellants stood upon their answers and refused to plead further, whereupon the court rendered judgment against them, from which is this appeal.

The appeal involves the sole question of the personal liability of the trustees and certificate owners in the business operated under the trust declaration. The instrument is long, and it would unduly extend this opinion to set it out in extenso, a statement of the substance thereof being sufficient for the purposes of this cause. In short, the instrument reflects that trustees associated themselves together for the purpose of selling certificates of stock in the name of Hope Oil Trust, and of using the proceeds for investment in securities and enterprises for the equal benefit of the shareholders. The trustees reserved the entire management and control of the business in themselves, the right to hold the title to all the property and dispose of same, and to elect their own successors in case of the resignation or death of either one of them. The indenture, in effect, provided that the trustees should be masters of the trust property, as well as the business, without suggestion, supervision, or interference on the part of the stockholders. No authority or power whatever was conferred upon the stockholders. In fact, all authority and control of the property and business was withheld from them. No provision was even made for a meeting of the stockholders at any time for any purpose. Under the terms of the declaration they were non-participants., save to share in dividends and profits that might be declared and distributed among them by the trustees. The paragraphs of the declaration exempting the shareholders from personal liability have been set out in full.

The statutes of this State provide for and regulate two kinds of business concerns, limited partnerships and corporations. The other business organizations operate in this State under the general law of the land, not under statutory protection and restrictions. General partnerships, joint ¡stock companies, business trusts, and other associations are not prohibited from doing business in this State. With these preliminary remarks we proceed at once to determine whether the trustees and shareholders in the Hope Oil Trust are individually liable for the account sued upon. We will first determine the liability of the trustees.

A general rule in the law of trusts is that a trustee is a principal, and not an agent for the cestui que trust. It follows from this rule that the trustee and not the cestui que trust is personally responsible for an indebtedness growing out of transactions in relation to the trnst estate. The creditor’s guarantee is the personal liability of the trustee. We see no reason why the trustees here should be exempt from this general rule. Their declaration exempting them from personal liability cannot prevent individual liability from attaching, as the law fixes the liability of trustees. According to the declaration, they are self-appointed trustees, with absolute authority over the trust business and property. The rule announced above is supported by the decided weight of authority, as will be seen by reference to the list of cases cited on page 46 of Sears on Trust Estates. It was said by the Supreme Court of the United States in the case of Taylor v. Davis, 110 U. S. 330, that: “When a trustee contracts as such, unless he is bound, no one is bound, as he has no principal. The trust estate cannot promise, the contract is therefore the personal undertaking of the trustee. * * * If a trustee contracting for the benefit of a trust wants to protect himself from individual liability on the contract, he must stipulate that he is not to be responsible, but' the other party is to look solely to the trust estate.” The trustees, under the terms of the indenture, interposed themselves as a shield between the stockholders and creditors, and for that reason are individually liable.

■ We next proceed to a determination of the liability of the shareholders. The declaration not only exempts the shareholders from individual liability in specific terms, but shears them of all control and management of the business. Paragraph 9 of the indenture makes the trustees absolute master of the property and business. The only right accorded to the holders of certificates of stock is to share in profits or dividends. They are in the attitude of one lending money to a partnership for a-share of the profits in lieu of interest.’ A reading of the trust instrument in its entirety has convinced us that the shareholders are not associated with each other and the trustees for the purpose of conducting a business in person or through agents for a profit. There is nothing in the instrument showing an intention on the part of the shareholders to enter into a copartnership, or an intention on the part of the trustees to cooperate with the shareholders in the conduct of the business. The test, after all, in determining whether a business is a partnership, is to ascertain whether the parties intended one. Buford v. Lewis, 78 Ark. 417; Wilson v. Todhunter, 137 Ark. 80; Mehaffy v. Wilson, 138 Ark. 281. Under the terms of the instrument the shareholders are cestuis que trust, and the instrument, in so far as they are concerned, creates a pure trust. Common-law trusts are generally recognized, and have been upheld by the weight of authority. Williams v. Milton, 102 N. E. 355; Simson v. Klipstein, 88 N. J. Eq. 229; Rhode Island Hospital Trust Co. v. Copeland, 39 R. I. 193; Home Lumber Co. v. Hopkins, 107 Kan. 190; Wills Stone Mercantile Co. v. Grover (N. D.), 41 L. R. A. 252; Mayo v. Montz, 151 Mass. 481; Foster v. Barton, 215 Mass. 31. Appellee insists that this court is committed to the doctrine that immunity from individual liability to shareholders in a business organization can be accomplished in Arkansas through the medium only of limited partnerships and corporations. In support of this contention two Arkansas cases are cited, in which the court held the members of the organizations liable as partners. Doyle-Kidd Dry Goods Co. v. Kennedy, 154 Ark. 573; Baker-McGrew Co. v. Union Seed & Fertilizer Co., 125 Ark. 146 The declaration of trust in each of these cases was quite different from the declaration in the instant case. The question as to whether a partnership or strict trust is created by an indenture must depend on the language and provisions of the instrument involved in each case. In the Doyle-Kidd case this court ruled that the instrument created a joint stock company. There is a marked difference between a joint stock company and a pure business trust. In a joint stock company the managers are agents for'the-shareholders. Not so in a business trust. The managers are principals, and the shareholders are ces-tuis que trust. In the Baker-McGrew case the indenture provided for shareholders to meet and elect trustees. In this way they were in a position to control and manage the 'business and property. We have hot overlooked the case of Greene County v. Smith, 148 Ark. 33. In that case the question of the liability of shareholders to creditors or thirds persons was not involved, the only question involved being one of taxation.

The instrument in the instant case created a pure trust, in so far as appellants P. M. Simms and T. M. Kinser are concerned, and they are immune from individual liability.

The judgment is affirmed as to the trustees, and reversed and the cause remanded as to Kinser and Simms, with directions to overrule the demurrer to their answer and to proceed in accordance with this opinion.


text:
    Watson v. State.
    Opinion delivered June 25, 1923.
    1. Seduction — promise op marriage — evidence.—In a prosecution for seduction, testimony of the prosecutrix that she had intercourse with the accused because of his promise of marriage, and • that two dates were set for their marriage, met the requirement that there must be an unconditional promise of marriage.
    2. Seduction — corroboration of prosecutrix. — In a prosecution for seduction, the testimony of the prosecutrix must be corroborated, both as to the promise of marriage and the fact of intercourse, by proof other than her own, of a direct or inferential nature.
    3. Seduction — weight of testimony. — Where, in a prosecution for seduction, there was corroborating testimony from which the promise of marriage and the fact of sexual intercourse might be inferred, the weight thereof was for the jury.
    4. Criminal law — instruction—clerical error. — In a prosecution for seduction where the statute required an express promise of ■marriage, whether false or feigned, an instruction authorizing a conviction if the accused made “a false feigned, feigned promise of marriage” was not open to a general objection,,where in another instruction the jury were told that there must have been an “express” promise of marriage.
    5. Seduction — instruction.—In a prosecution for seduction a rer quested instruction to discard the testimony of the prosecutrix for the time being to ascertain whether there was outside substantial evidence to show a promise of marriage and the facts of sexual intercourse was erroneous, as emphasizing one part of the testimony and as excluding that of the prosecutrix which had to be considered in determining the hearing of the independent evidence on her evidence.
    6. Criminal law — repetition of instructions. — It was not error to refuse requested instructions fully covered by those given.
    7. Criminal law — instruction as to accused’s failure to testify.’ —In a prosecution for seduction, in which the accused did' not testify, an abstract instruction relative to his right to testify, and the weight to be given to his evidence was prejudicial error as calling attention to his failure to testify.
    Appeal from Frankling Circuit Court, Ozark District; James Cochran, Judge;
    reversed.
    J. P. Clayton, J. D. Benson, and Dave Partain, for appellant.
    There was no evidence corroborating the testimony of prosecutrix. Sec. 2414, C. & M. Digest; 40 Ark. 482; 77 Ark. 16; 92 Ark. 41- Instruction 11 should have been given and a verdict instructed for defendant. Promise' of marriage not unconditional. 113 Ark. 520; 135 Ark. 221. The court erred in refusing to give appellant’s requested instructions numbered 6, 7 and lO. 77 Ark. 472. Bequested instruction numbered 1 should have’been es-. pecially in view of court’s instruction number 1. 73 Ark. 235. The charge of the court does not follow either-the indictment or the statute. 72 Ark. 398. The court erred in giving instruction No. 7. ' -
    J. 8. TJtley, Attorney General, John L. Carter and W. T. Hammoeh, Assistants, for appellee. ' "
    The evidence is sufficient to support the verdict; the testimony of the prosecutrix was sufficiently corrobo-' rated. Sec. 2414, C. & M. Digest; 24 B. C. L. 779; 154: Ark. 119; 126 Ark. 98 Cases cited by appellant, 92 Ark. 421, and 77 Ark. 472, distinguished. Unconditional express promise of marriage. 135 Ark. 221. Instructions 6, 7 and 10 requested are covered by 1, 2 and 3 given. Instruction 5 properly refused. 77 Ark. 476. Instruction 1, refused, substantially covered by 5, >to which no specific objection was made. Neither was there any specific objection made to giving of instruction 7. 154 Ark. 67; 142 Ark. 96.

      J. D. Benson, J. P. Clayton, and Dave Partam, in reply.
    Case should be reversed on account of erroneous instruction 1. “Express” defined. "Webster’s New International Dictionary. 2 Words & Phrases (sec. series) 406 ; 72 Ark. 398.
   Humphreys, J.

Appellant was indicted, tried and convicted of the crime of seduction in Franklin Circuit Court, Ozark District, and as punishment therefor adjudged to serve one year in the State Penitentiary. From that judgment an appeal has been duly prosecuted to this court.

Appellant’s first contention for reversal is that the evidence is insufficient to support the verdict, first, because it does not reveal an unconditional promise by appellant to marry the prosecutrix as an inducement to the act of sexual intercourse; and second, that the evidence of the prosecutrix was without corroboration.

(1) The prosecutrix testified in response to inter- • rogations as follows: “ Q. How did you come to have intercourse with him? A. Because I loved him. Q. And his promise of marriage? A. Yes sir.” The prosecu-trix also testified that two. dates were set for their marriage. This testimony meets the requirement of the law, that there must be unconditional promise of marriage.

(2) The law requires that the testimony of the prosecutrix be corroborated, both as to the promise of marriage and the fact of intercourse, by proof, other than her own, of a direct or inferential nature. Polk v. State, 40 Ark. 482; Laster v. State, 77 Ark. 468; Nichols v. State, 97 Ark. 421. The prosecutrix testified that the courtship of herself and appellant covered a period of about fifteen months; that during the time they were twice engaged; that appellant first promised to marry her in the spring of 1921; that she purchased some clothing for the occasion, and for that purpose went to Webb City in company with Walter Conley and his wife during the month of March, 1921; that subsequently the engagement was broken, but was renewed in August of the same year; that at that time she yielded her person to him, and the illicit relationship continued for a number of months; that in November she became pregnant by appellant, and as a result a child was born in August, 1922; that during the first and second courtships he came to see her from one to four times a week, and that she received him to the exclusion of all others, except very occasionally she would go with some other boy, and he with some other girl. Arch Sewell, father of the prosecuting witness, testified that appellant came to see his daughter continually f or a long period of time, beginning some time in 1921; that his daughter received his attentions to the exclusion of others; that he went with her regularly and took her to parties, church, Sunday-school, and prayer meeting; that during the continued courtship he purchased clothes twice for. his daughter to get married. The deputy sheriff of Logan County, a Mr. Kirkpatrick, testified that, in a conversation with appellant and his father, Mr. Watson, the father said that the boy had fixed to get married at one. time but he put a stop to it, to which statement appellant replied that he would have taken the girl but was damned • proud now that he didn’t.

Walter Conley testified that in March, 1921, the prosecutrix accompanied him and his wife to Webb City, but that he could not remember whether she bought anything on that occasion.

■' It is inferable from the testimony of Arch Sewell that his daughter was engaged to appellant, and that appellant was the father of the child; also that his daughter and appellant were engaged. His testimony showed a long, constant, persistent, exclusive courtship, during which time he purchased clothing for his daughter on two occasions for them to marry. The testimony ■ of Walter Conley corroborates that of the prosecutrix, to ■some extent, with reference to buying a dress in which to marry. The testimony of the deputy sheriff tends to ■establish an admission on the part of appellant that he was engaged to the prosecutrix. There was, then, corroborating testimony from which the promise of marriage and the fact of sexual intercourse might be inferred, and the weight thereof was a question for determination by the jury. Jackson v. State, 154 Ark. 119.

: Appellant’s next contention for reversal is that, in giving instruction No. 1, the court told the jury that it should convict appellant if they found he made “a false, ■feigned, feigned promise of marriage,” instead of a false, feigned, express promise of marriage.” The statute requires that there shall be an express promise ■ of marriage, whether false or feigned, before there can be a .coxiviction. Burnett v. State, 72 Ark. 398. The court not only read the statute to the jury, but, in giving instruction No. 7, called the attention of the jury to the fact that the law required an express promise of mar- . riage as a prerequisite to conviction. It is apparent that the word ‘‘feigned” was used twice in instruction No. 1, through, inadvertence, and was a clerical error.- It could not have misled the jury, as the correct word, ‘’express,” was used in instruction No. 7. The only way to'take ad-wantage of a clerical error in an instruction is to make a specific objection thereto, and this was not done.

Appellant’s next contention for reversal is that ■the' court" erred in refusing to give instruction No. 5, requested by him. The purport of this 'instruction'was 'a direction to the jury to discard the testimony of the prosecutrix, for the time being, in order to ascertain whether there was outside substantial evidence to show a promise of marriage, and the fact of sexual intercourse, The vice in this instruction is that it contained a direction to emphasize one part of the testimony to the exclusion of the other. In order to ascertain whether there was substantial evidence corroborating that of the prosecutrix, it was necessary to use her testimony as a basis therefor, and to consider the bearing of the independent evidence upon her evidence. This could not have been done had her evidence been discarded for the time being. The entire body of the evidence should be retained at all times in the minds of the jurors, and treated and considered as a whole in determining the innocence or guilt of an accused.

Appellant’s next contention for reversal is the refusal of the court to give his requests numbered 1, 6, 7 and 10. Each of these instructions told the jury it was necessary for the evidence of the prosecutrix to be corroborated by other evidence, both as to the promise of' marriage and the fact of sexual intercourse, before they could convict appellant. This point and all other matters touched upon in the instructions were fully covered by instructions given by. the court upon his own motion.

Appellant’s next and last contention for reversal is that the court erred in giving instruction No. 7, over his objection, relative to his right to testify, and the weight to be attached to his evidence. Appellant did not testify in the case, so the instruction was abstract, and for that reason should not have been given. It was prejudicial because it necessarily called the jury’s attention to the fact that he failed to testify in his own behalf, although such right was accorded to him by the law.

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


author: McCulloch, C. J.

text:
    S. B. Wilson Telephone Company v. John A. Roebling’s Sons Company.
    Opinion delivered July 2, 1923.
    CORPORATIONS — FOREIGN CORPORATION — DOING BUSINESS IN STATE. — A foreign corporation, selling to one in this State through negotiations conducted by correspondence between the parties from their respective domiciles and shipping the goods f. o. b. at place of shipment, was not doing business in the State, and could sue on the purchase money note without complying with the statute for doing business in this State.
    Appeal from Woodruff Chancery Court, Southern District; A. L. Hutchins, Chancellor;
    affirmed.

      J. W. House, Jr., for appellant.
    Appellee is a foreign corporation not authorized to do 'business in this State and not entitled to make or enforce here any contract for such business done. Sec. 1832, C. & M. Digest.

      Roy D. Campbell, for appellee.
    Although appellee is a foreign corporation' not authorized to do business in this State, the business done was interstate commerce, and it was entitled to sue upon the contract without offending against the terms of the statute. 98 Ark. 597; 133 Ark. 505; 136 Ark. 52. It is apparent that this appeal wa.s taken for delay, and the decree should be affirmed with penalty.
   McCulloch, C. J.

Appellee is a New Jersey corporation, -with its domicile and principal place of business in that State, and it sold and delivered to appellant, S. B. Wilson Telephone Company, a domestic corporation operating a telephone line at Cotton Plant, in this State, a certain quantity of metal cable to be used in the operation of a telephone plant. Co-appellants of the telephone company entered into a contract with appellee, before the sale, to guarantee payment of the price, ap-pellee having refused to make the sale without such guaranty. The negotiations which resulted in the sale were conducted by correspondence between the parties from their respective domiciles, and, when the order was accepted, appellee mannfactnred the cable at its plant in New Jersey and shipped it by common carrier, f. o. b. at the place of shipment, to the telephone company at Cotton Plant. Subsequently the guarantors executed- to appellee a negotiable promissory note f-tir -the price, and the present action was instituted by á'ppbllee on the note.

The only defense offered below was that appellee could not sue in this State because it had not complied with the statutes -of this State with reference to doing business here.

There is no evidence in the record that appellee ever did any business in this State or maintained any place of business here. Unless the character -of this transaction constituted doing business in this State, then ■appellee is not open to the charge of having violated the 'statute by attempting to do business here without complying with its terms.

The subject of what constitutes interstate commerce in the sale and delivery of merchantable articles has-been thoroughly discussed and determined in several very recent cases, in which it was decided that the solicitation of -orders in the State by traveling salesmen or by written correspondence does not constitute doing business in this State, where the contract of sale relates to a sale accepted in another State and shipment therefrom to a purchaser in this -State-. Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151; Rose City Bottling Works v. Godchauax Sugars, Inc., 151 Ark. 269; L. D. Powell Co. v. Roundtree, 157 Ark. 121. According to the undisputed evidence in this case, the transaction now under review falls within each of those decisions, and constituted an interstate and not an intrastate transaction. Appellee was entitled to sue on the contract without offending against the terms of the statute.

Decree affirmed.