author: 'Smith, J.

text:
    Lackey v. Lackey.
    Opinion delivered October 1, 1928.

      W. R. F. Paine, for appellant.

      John E. Miller, for appellee.
   'Smith, J.

Appellant, Sam L. Lackey, and appellee-were married in March, 1924, and lived together as husband and wife until March, 1927, when they were separated, and appellee brought suit against appellant, her husband, for alimony. She alleged that her husband had failed to support her, had been unkind to her in many ways, bad cursed and abused her, and bad refused her permission to visit her children by a former marriage when they were ill, or to provide transportation for that purpose.

In an amended complaint appellee alleged that her husband owned about four hundred acres oif land, and had by fraud induced her to execute a deed conveying title to this land to appellant’s children by a former marriage. These children were made parties, and it was prayed that this deed be canceled. She prayed also for a division of appellant’s personal property.

Appellant and his children filed an answer, in which it was denied that the execution of the deed from appellant and appellee to appellant’s children had been procured by fraud. Appellant prayed that the suit to cancel the deed and for alimony be dismissed. Appellant did not pray that a divorce be granted him, but he offered testimony tending to show that he was entitled to a divorce, and the testimony was taken as if that relief had been prayed.

The testimony is to the effect that friction arose between the two families, and appellant’s children left their father’s house, and some of appellee’s children also departed, and most of the trouble between 'appellant and appellee arose over the children who remained in appellant’s home.

'The chancellor denied a decree of divorce to either party, although he.made a permanent allowance to appel-lee of $10 per month. The deed which appellant and appellee had executed to appellant’s children was canceled as having been executed in fraud of appellee’s marital rights, except as to a forty-acre tract which had been conveyed by the children to 'an innocent purchaser.

From this decree both parties have appealed. Appellant insists that the testimony shows that he is entitled to a divorce, and that the testimony did not warrant the finding that the execution of the deed to his children had been procured by fraud. Appellee insists that -she should have a substantial allowance as alimony, in the assessment of which, the value of all of appellant’s property, both real and personal, should he taken into account, and that a decree should he granted her.

We do not set out the testimony relating to the marital infelicities of the parties. It clearly appears that neither has any affection for the other, hut it does not appear that either has any statutory ground for divorce.

Appellee admitted executing the deed in question, but she testified that she did so because appellant had told her that the deed conveyed only two 80-acre tracts of land to appellant’s eldest daughter, and that these two 80-acre tracts were not a part of the homestead. The deed was not to the eldest daughter, but was to all of appellant’s children, ¡and described all the land owned by appellant. We are not asked to cancel this deed except as to the two 80-acre tracts to the- eldest daughter, but the prayer of appellee is that the deed be canceled in its entirety.

The testimony on the part of appellant is to the effect that appellee was fully advised as to the nature of the deed, which she admitted signing, and that no imposition was practiced upon her.

We concur in the action of the court below in canceling this deed. Appellee was deceived as to the land conveyed, but, as we have said, there is no contention on the part of appellant, or any of his children, that the deed is valid as a conveyance of two 8Cbacre tracts only, and it would not effectuate the intention of appellant to uphold the deed as a conveyance to a part of the land to one of his children only, as he does not contend that it was his intention to execute such a deed.

The representation that the deed conveyed only two 80s, when in fact it described all of appellant’s land, was a fraud upon appellee’s marital rights, and this fraud invalidates the deed.

The monthly allowance of $10 which the court ordered appellant to pay appellee is so modest and inconsiderable that he can have no just ground to complain thereat.

Upon a consideration of the testimony in its entirety we discover no reason for disturbing the chancellor’s finding, and the decree will therefore be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Evans v. State.
    Opinion delivered October 1, 1928.

      Dudley & Dudley, for appellant.

      II, W. Applegate, Attorney General, and Effie Combs, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction for the sale of intoxicating liquor.

It is complained that the venue of the offense was not sufficiently alleged or proved; that incompetent testimony was permitted to he introduced; and that the evidence is not sufficient to support the verdict.

The indictment 'recites that “the grand jury of Jonesboro, Western District, Craighead County, Arkansas, * * * accuses the defendant, Maude Evans, of the crime of selling intoxicating liquor, * * * the said Maude Evans * * * in the district, county and State aforesaid, on the 28th day of July, 1927,” etc.

W. J. Shipp testified that he was “an undercover man” for the sheriff’s office, and bought a pint of liquor from appellant “about the 15th day of July, at her home on East Washington 'Street, in Jonesboro, paying her $3 therefor.” He said there was a woman, Mary Miller, near where he was boarding, who was drinking, and he asked her about buying some liquor, and she told him where he could get it from appellant, and gave him a note to her which read: “Please send one pint with this fellow. He all right. Mary.”

Witness stated that he had been to appellant’s house before and took the note down there, gave it to appellant, who went out into another room and talked.with a negro man, telling him to get the liquor. He got the pint of liquor, and brought it back and gave it to appellant, who delivered it to witness upon his paying her three one-dollar bills therefor. He stated that he picked up the Mary Miller note while she was out, and attached it to the bottle containing the liquor, which was produced, in court before the jury, with the note accompanying it. Said also that he went to Mississippi County, where he next.worked, and being asked, “This was last September?” answered “No sir; last August.”

The sheriff was permitted to testify that he had had several complaints about liquor being sold at appellant’s house, and, during the time he was in office, had searched the house twice and found liquor and many bottles and containers, with la small amount of liquor in some of them.

The court, in overruling the objection to this testimony, stated it could be considered by the jury in shedding light on the kind and character of business defendant might be engaged in, etc.

Appellant denied having sold any liquor to witness Shipp, that any was delivered to him at her house, and that she received any money from him therefor.

It appears that the act dividing Craighead County into judicial districts provides that the districts shall be called the “Jonesboro District” and the “Lake City District;” that the circuit court held in the county seat shall have original and exclusive jurisdiction over the “Jonesboro District,” etc., and shall be styled “the circuit court for the county of Craighead for the Jones-boro District.” The venue was sufficiently alleged and proved. The indictment was returned by the grand jury of Jonesboro, Western District, Craighead County, Arkansas, and the word “Western” was merely descriptive and surplusage, 'and did not render its meaning less definite or certain, nor invalidate it. Ballentine v. State, 48 Ark. 45, 2 S. W. 340; Moose v. State, 49 Ark. 499, 5 S. W. 885; K. C. Sou. Ry. Co. v. State, 90 Ark. 349, 119 S. W. 288.

The testimony shows the liquor was purchased at the home of appellant on East Washington Street,- in Jonesboro, and proves the venue, since the court takes judicial notice of the boundaries of counties, judicial districts, and cities, in the State. Lyman v. State, 90 Ark. 596, 119 S. W. 1116; Cox v. State, 68 Ark. 462, 60 S. W. 27; King v. State, 110 Ark. 595, 162 S. W. 1087.

No error was committed in allowing the introduction of the note relative to the purchase oif the liqRior stated by witness Shipp to have been written by Mary Miller and delivered to appellant. Witness Shipp testified that Mary Miller gave him the note, and his testimony that he delivered it to appellant was not disputed. The matter testified 'about was within witness’ knowledge, and it was not hearsay nor incompetent. Neither was error committed in permitting’ the introduction of the sheriff’s testimony of the searchings of appellant’s house and the finding of liquor therein during any time within the term of three years before the finding of the indictment, the court having told the jury the only purpose for which it could be considered. Casteel v. State, 151 Ark. 69, 235 S. W. 386.

It is true no witness testified that the liquor sold by appellant was intoxicating, but witness Shipp testified that he bought liquor of appellant, that appellant sold him the pint of liquor and received the $3 in payment therefor. The sheriff testified that liquor had been discovered in appellant’s house upon the searches made by him of the premises, and that complaints had been made to him that liquor was being sold there, and the pint of liquor itself was introduced in evidence before the jury for its inspection and examination, and the jury, using its ordinary common-sense, was warranted, under the circumstances, in finding that the liquor sold was intoxicating. Kinnane v. State, 106 Ark. 337, 153 S. W. 264; Johnson v. State, 152 Ark. 218, 238 S. W. 23; Griffin v. State, 169 Ark. 342, 275 S. W. 665.

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


author: Kirby, J.,

text:
    Colonial Supply Company v. Koester.
    Opinion delivered October 1, 1928.

      Woods & Greenhorn and Lashley & Rmnbo, for appellant.

      6'house ■& Rowland, for appellee.
   Kirby, J.,

(after stating the facts). Appellant, the Colonial Supply Company, insists that its mortgage constitutes a first and prior lien against the lands, and that the court erred in not so holding and decreeing a foreclosure thereof. Appellant makes no real contention that the finding- that Jenning’s was the owner of the lands in controversy ¡after their conveyance to him by Bartles and Sitton and at the time of the execution of the deed to Koester and the decree is not contrary to the preponderance of the testimony.

It is earnestly urged, however, notwithstanding this finding of ¡fact, that, since Bartles, on the date of the execution of the notes and mortgage to the Colonial Supply Company, on Miay 29, 1923, was the owner and holder of two mortgages covering the lands in controversy, executed by Jennings and wife to him on March 17, 1920, the first securing the payment of the sum of $18,000 and the second for the sum of $5,200 with interest, Bartles’ mortgage to it operated as an assignment of the mortgages by Jennings to Bartles and constituted a lien or charge against the whole interest of Bartles in and to the lands, consisting of his entire title, either legal or equitable, under the mortgages given by Jennings. This contention cannot be sustained, however.

It appears from the record that Jennings, at the time of these transactions, was the legal owner of the lands and was in possession thereof, ¡and had been since 1914, and that Koester had obtained all the interest owned by Jennings through regular deeds of conveyance. Bartles made no attempt to include or transfer any indebtedness owed by Jennings to him, secured by the mortgage on the lands, and the mortgage from Bartles to appellant company recites that a mortgage upon the lands in favor of Bartles was owned by the Union National Bank of Bartlesville, to which the mortgage of appellant was made subject. This was notice to appellant that Bartles was not the owner of the lands and that there was an obligation outstanding secured by mortgage. Appellant insists that its mortgage from Bartles operated as an equitable assignment of the mortgages from Jennings to Bartles, and cites authorities claimed to be in support of the proposition, including our cases, Kline v. Ragland, 47 Ark. 111, 14 S. W. 474; Turman v. Sanford, 69 Ark. 95, 61 S. W. 167.

In the Turman case the court construed our statute, now § 1498, C. & M. Digest, providing that, if a person shall convey any real estate toy deed purporting to convey the same in fee simple absolute, and shall not at the time have the legal estate, hut afterwards acquires it, the after-acquired estate, legal or equitable, shall pass immediately to the grantee, and the conveyance shall be as valid as if such estate had been in the grantor at the time of the conveyance; holding that the interest of a mortgagee under his mortgage before foreclosure had no such estate as would pass by the statute to a grantee to -whom he had conveyed the land prior to his mortgage, saying: “For the mortgagee, before the foreclosure, is neither at law nor in equity the real owner of the land. The legal title, it is true, passes to him by the mortgage, but he holds it for the protection of his debt, and for that purpose only. * * * The statute only purports to pass real estate, but, if only the legal title in the mortgagee passed, it would be worthless; for the legal title can be used by the mortgagee only to collect his debt, and without the debt it would avail nothing.” This, in fact, is a holding that the appellant could have acquired no interest, lien on or estate in tiie land mortgaged to it by Bartles, the mortgagee of the lands owned by Jennings.

It is not claimed or intimated that the debts owed by Jennings to Bartles and secured by a mortgage from Jennings, the owner of the land, were transferred to appellant company or that there was any intention to make such transaction. Neither can there be any question of deception practiced upon appellant in the making of such mortgage. The mortgage itself recites the mortgage from Jennings to Bartles securing the $18,000 note and interest was an incumbrance on the lands, and that the lien had been assigned to the Union National Bank of Bartlesville. This shows, as the chancellor found, that there was no intention to convey or acquire any interest 'Bartles might have held in the lands by reason of Jennings’ mortgage, which was recited as an incumbrance. Bartles could have transferred his lien or interest under the mortgage in the lands by a transfer or delivery of the notes secured thereby to appellant company, but there could be no equitable transfer of any such interest by his mortgage of the lands to appellant company, which especially recited that the debts secured by the mortgage from Jennings to Bartles had already •been transferred to another party. In other words, the mortgage from Bartles to appellant company could not operate as an equitable assignment of his interest in the lands .under the Jennings mortgage, since said mortgage was recited as an incumbrance against the lands, the lien of which had already been transferred to' another bank, as stated therein. The title of appellee was superior to any claim of appellant company under its mortgage, which constituted a cloud on his title, which he was entitled to have removed by cancellation of said mortgage to appellant, and the chancellor committed no error in so holding.

The decree is accordingly ¿Jlirmed.


author: Mehaeey, J.

text:
    Clements v. Citizens’ Bank of Booneville.
    Opinion delivered October 1, 1928.

      1. J. Friedman and JoJm D. Arbuckle, for appellant.

      W. L. Kincamnon and Evans & Evans, for appellee.
   Mehaeey, J.

This suit -Was begun in the Logan Circuit Court by Charles Clements, appellant, to recover from the Citizens’ Blank of Booneville and Charles X. Williams, cashier, on the following contract:

“To Charles Clements,

248 Boyleston St.,

Boston, Mass.

“We, the Citizens’ Bank, guarantee the payment of .a sum not to exceed $1,000 (one thousand dollars) payment for monument Clements No. 60772, purchased by the Booneville Marble and Granite Works of Booneville, Arkansas, on the 'following conditions: That the monument be cut strictly in accordance with the blue-print approved by the said Booneville Marble and Granite Works and submitted, to the above Chas. Clements for the execution of the same. Further, that this amount shall cover all expenses connected with the purchase of material of which the monument is to be cut, also the material for a marker ordered this date. All monument and marker to be loaded on cars at Boston, Massachusetts.

“The Citizens’ Bank undertakes that the purchase price for this work is not due until a period of sixty days from date of invoice with bill of lading.

“Citizens’ Bank,

“By Chas. X. Williams, Cashier.”

The case was appealed to this court, and is reported in 172 Ark. 1023, 291 S. W. 439.

It is unnecessary to set out the testimony in detail. The case was tried and submitted to the jury under instructions by the court, and the jury returned a verdict for the Citizens’ Bank of Booneville. This court held, when the case was here on appeal before:

“If the contract of guaranty is for the hank’s own protection, or is incidental to the transaction of its own business or for its own benefit, it may give a guaranty.”

However, unless it is for the bank’s protection, or is incidental to the transaction of its own business or for its benefit, it would not have authority to give a guaranty.

It was held on former appeal that § 700 of Crawford & Moses’ Digest, prohibiting officers or employees from indorsing, selling, pledging or hypothecating any notes, bonds or any other obligations, etc., until authority was given 'by the board of directors and a written record made, was applicable to the guaranty in this case, the court holding that there was no reason why the officers of the bank should be prohibited from transacting the business enumerated without getting authority from the board and yet permit the cashier to bind the bank by guaranteeing the debt of another.

The law was settled on the' former appeal, and the court submitted the question of the bank’s liability under the facts proved to the jury, and there is no objection to the instructions given by the court so far as the liability of the bank is concerned. Appellant’s only objection to the instructions is that the court erred in directing a verdict for Williams, the cashier. Therefore the only question for this court, so far as the liability of the bank is concerned, is the question whether there is any substantial evidence to sustain the verdict.

While the circumstances indicate that the officers of the bank had permitted the cashier to manage the affairs of the bank just as he saw proper, yet the question as to whether they had given him the authority mentioned in the statute and made la record of it as required 'by law, was properly submitted to the jury, and there is substantial evidence to support the verdict, and it is therefore binding on this court.

It is contended, however, by the appellant that the court erred in directing a verdict for Williams, the cashier. The court instructed the jury to return a verdict in favor of the cashier on the theory that the cause of action against Mm was 'barred in three years, and no suit was begun against him until something like four years. As to whether the action was barred against the cashier, depends upon the nature of his liability. When an agent makes a contract for a principal which he has no authority to make, or a contract in excess of his authority, and, because of either not having authority or exceeding his authority, does not bind the principal, he is bound himself. Some courts have held that an action may be maintained against him on the contract on the theory that he intended to bind some one by the contract, and, if he did not bind the principal, he would bind himself. But the great weight of authority is to the effect that, wMle the agent is liable, he is not liable on the contract. It is said by a text-writer:

“Whether the agent can be held liable upon the contract itself which he has, without authority, assumed to make, is a question which has been much discussed and upon which the cases cannot be entirely reconciled. It would seem, however, that this question is one which must be determined largely by the circumstances of each case. Where the promise is made in the name of a principal who might have authorized it and as his contract, the better opinion is that the agent cannot be held liable upon it, but only in an action based upon the deceit, or upon the contract of warranty or indemnity, even in the case of a written contract, where the assumed relation of agency appears upon the face of it. Some courts have indeed manifested a disposition in this latter case to reject the words referring to the alleged principal as mere sur-plusage, and to hold the agent liable upon the remainder as upon his own contract. This, however, as has been well said, is rather to make a new contract f or the parties than to construe the one which they have made for themselves.” Mechem on Agency, 2d edition, vol. 1, 1023,-4.

“The proper remedy ag-ainst an agent by a third party, with whom the agent has dealt, where the agent acts without, or in excess of, his authority, is an action of assumpsit upon bis expressed or implied "warranty of authority, or, in a proper ease, an action of trespass on the case for fraud and deceit, and in some jurisdictions the latter is held to-be the only remedy in such cases.” 2 C. J. 892.

“'Some of the authorities hold that, in all written contracts, except specialties, if the pretended agent has so worded the instrument as to make it appear that he is acting ¡for or on behalf of another, and not himself— having no authority to do so — he hinds himself personally, and mil he liable in an action on the contract itself, for the reason that he must have intended to bind some one; and, if he was unauthorized to bind the principal, he is estopped to deny that he intended to .bind himself, as in that case no one whatever would be 'bound. But the objection to this doctrine is that it would require the court to make a new contract for the parties, or one into which they have not themselves entered; and the courts now generally repudiate it. While the decisions are not uniform, the great weight of modem authority is that the agent is not personally bound on the contract itself, and cannot 'be held liable in an action thereon.” LeRoy v. Jacobosky, 136 N. C. 443, 48 S. E. 796, 67 L. R. A. 977.

In discussing the liability of agents under circumstances like this, the Wisconsin court said:

“This whole doctrine proceeds upon a plain principle of justice; for every person so acting for another, by a natural, if not a necessary, implication, holds himself out as having competent authority to do the act, and he thereby draws the other party into a reciprocal engagement. If he has no such authority, and acts bona fide, still he does a wrong to the other party; and, if that wrong produces injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority iby the agent, it is perfectly just that he who makes such assertion should be personally responsible for the consequences, rather than that the injury should be borne by the other party who has been misled by it. * * * Later and better considered opinion seems to be that the liability, when the contract is made in the name of his principal, rests npon implied warranty of authority to make it, and the remedy is by an action for its breach.” Oliver v. Morawetz, 97 Wis. 332, 72 N. W. Rep. 877. And the Supreme Court of Oregon has said:

“Though the agent who has exceeded his authority cannot be .sued on the contract itself, as a party thereto, unless it contains apt words to charge him, an action may be maintained against him on his implied promise that he had authority to bind the principal. * * * This promise is not a part of the agreement supposed to have been entered into -with the principal, 'but independent thereof, and tantamount to an implied warranty that, if a third piarty will enter into a contract with the agent on behalf of his principal, he will indemnify such party against any loss that he may sustain, if it shall he ascertained that he does not possess the measure of authority which he assumes. Such warranty being impliedly given, it cannot be said that in enforcing it the court makes a new contract for the agent and a third party.” Anderson v. Adams, 43 Ore. 621, 74 Pacific Rep. 215.

“As we have seen, the authorities have been conflicting as to whether the agent could be held liable on the instrument, the weight of authority being in the negative.” Haupt v. Vint, 68 W. Va. 657, 70 S. E. 702, 34 L. R. A. (N. S.) 518.

The authorities seem to be unanimous in holding that the agent, under such circumstances, is liable, and almost unanimous in holding that an action cannot be maintained on the contract itself, but on an implied prom ise on the part of the agent that he has the authority to make the contract. If suit could have been maintained on the contract itself, the cause of action would not have been barred, because it could have been begun any time within five years. But this is a suit on an implied contract not in writing, and it was barred within three years.

We are therefore of the opinion that the court did not err in directing a verdict for. Williams, and the judgment of the circuit court is affirmed.


author: Mehaffy, J.

text:
    Taylor v. Bank of Mulberry.
    Opinion delivered October 1, 1928.

      Starbird & Starbird, for appellant.

      E. D. Chastain, for appellee.
   Mehaffy, J.

The appellee brought .suit in the Crawford Chancery Court against J. C. Campbell, B. E. Rogers, E. D. Chastain and Mrs. Kentucky Taylor. It alleged that it 'had obtained a judgment for $190.14 against J. C. Campbell and J. L. Campbell, wherein Rogers was garnishee, and that Rogers answered, admitting an indebtedness of $200 on a note and mortgage. The note, however, was in an Oklahoma bank.

It was alleged that, at the time of the judgment in the justice court, Campbell was the owner of the note, and that he had afterwards transferred it to Chastain for the purpose of defeating plaintiff’s lien thereon. It was further alleged that, at the time plaintiff obtained judgment against J. C. 'Campbell, said Campbell was the owner of the east half of the northeast quarter and elast half of the southwest quarter of the northeast quarter, section 32, township 11, range 29, Crawford County, Arkansas; and for the purpose of placing it beyond the reach of execution and to cheat and defraud the plaintiff, the said Campbell, without consideration, conveyed said land to Kentucky 'Taylor; that Mrs. Tfaylor is the sister of Campbell, and did not know of the conveyance at the time it was made; that the conveyance was void, and made to defraud creditors; that Campbell was insolvent. It alleged that it had no adequate remedy at law, and prayed for a cancellation of the deed, and that the note be required to be brought into court, and for a foreclosure upon the debt to Rogers.

A demurrer to the complaint was filed by Chastain, alleging that the complaint did not state a cause of 'action as to him. The demurrer was overruled, and both Chas-tain and Mrs. Taylor filed answers. Chastain claimed to have purchased the note, land filed a cross-complaint seeking to foreclose the mortgage which was given on certain land to secure the payment of the note. There was no statement or suggestion in the pleadings of either of the defendants that the chancery court did not have jurisdiction, but the only demurrer filed with reference to the statements in the complaint were by Chastain, in Which he stated that the complaint did not state facts sufficient to constitute a cause of action against him. That the statement in the complaint about the note failed to show that plaintiff had any lien, but admits that the Oklahoma bank held the note. His third ground for demurrer was that the order o'f the justice of the peace court was without authority. It was never suggested to the trial court that there was any defect in the pleading other than that mentioned by Chastain, and no suggestion to the trial court that that court had no jurisdiction.

Kentucky Taylor filed answer, denying the. allegations of the complaint, and alleging that she was Campbell’s aunt and not Ms sister, and that the purchase of the property by her was made in good faith.

■Chastain filed separate answer, seeking to collect on the note above mentioned.

’The court rendered a decree declaring the sale of the land from Campbell to Mrs. Taylor fraudulent and void, and also decreed that Chastain was entitled to recover his costs from the Bank of Mulberry.

Mrs. Taylor testifies, with reference to the purchase of the land from her nephew, that he owed her for four or five years ’ board; had been living with her for seventeen years, and he owed at least four years ’ board. That the understanding was that he would pay for one-fourth of the groceries for his board. She claims to have loaned to Campbell $50 and to have paid him $50, and admitted that she still owed him $190.

The chancellor found that the conveyance of the property was without consideration, and fraudulent and void, land we think that his finding was sustained by the evidence.

. The record of the justice of the peace court was introduced, showing a judgment as alleged in the complaint, and the justice of the peace record also showed that execution was issued on the '28th day of September, 1927, and returned the same day, the officer stating in his return that the parties, evidently meaning the parties defendant in the justice of the peace suit, were absent from the State, and no property found. This judgment was against J. L. Campbell and J. C. Campbell.

It is contended by the appellant that there was no allegation in the complaint of insolvency of the joint debtor, J. L. Campbell, and that, for that reason, the demurrer should have been sustained, and, in support of his contention, calls .attention to Euclid Avenue National Bank v. Judkins, 66 Ark. 486, 51 S. W. 632. In that case the court said:

“Now the complaint in this case shows that plaintiff’s judgment was against the White Sewing Machine Company and H. It. King, as well as against the defendant Jndkins, and there is no allegation that the White Sewing Machine Company and King were sureties merely. They appear as joint principals. The complaint shows that Judkins had no property whatever left in his hands subject to execution, out of which plaintiff’s debt could ¡be made by law, but it does not show that the other joint judgment debtors, the White Sewing Machine Company and H. It. King, did not have property subject to execution ample to satisfy plaintiff’s debt at law. The complaint did not ¡allege the insolvency of these joint judgment debtors with Judkins. Herein it fails to show any occasion for the interposition of a court of equity. A demurrer was interposed and sustained by the court, and judgment was entered dismissing the complaint, and Judkins appealed.”

The court further said in that case: ‘ ‘ The obtaining of judgment at law was not necessary, but it was necessary to show the insolvency of all the joint judgment debtors; for, in the absence of such an allegation, or a showing of some other facts calling for equitable relief, it does not appear that a resort to equity is proper.”

In the case relied on, the defendant himself demurred to the complaint, and the demurrer was sustained. In the case at bar Mrs. Taylor did not demur; she did not make any objection to the jurisdiction of the court at all, and Chastain, the other defendant, filed a demurrer, but did not contend that the court did not have jurisdiction, but simply relied on the fact that the complaint did not state a cause of action as against him. He was the ¡attorney for Mrs. Taylor as well as for himself, and did not miake any objection on the ground that there was no allegation that the other judgment creditor was insolvent.

■ We think the allegations of the complaint and the statements in the writ are sufficient to make a prima facie case and to give the chancery court jurisdiction. The complaint alleged that plaintiff had no adequate remedy at law. The return of the officer shows that all the parties were absent from the State, and there is no showing anywhere or no claim that the other Campbell had ever had any property. To he sure, the burden is on the plaintiff to allege facts sufficient to show jurisdiction of the chancery court, but we think the facts alleged, together with the execution and return of the officer, which, was recited in the complaint, are sufficient to show that it would he perfectly useless to try to collect the money out of the judgment creditors, and was sufficient to show that all of them were insolvent and had left the State, and that J. C. Campbell, who owned a tract of land, had conveyed it to his aunt, Mrs. Taylor, for the purpose of defrauding and hindering plaintiff in the collection of its debt.

The testimony shows that Campbell came down, got his attorney who represented him in the justice of the peace court, who knew all about the judgment against them, knew ¡about the garnishment and about the note, and prepared a deed for Campbell to Mrs. Taylor, and, when the deed was prepared and executed, telephoned to the clerk in order to ascertain whether a transcript of the justice of the peace judgment had been filed in the circuit clerk’s office; and, when he learned that it had not, the deed from Campbell to Mrs. Taylor was immediately filed and recorded.

We think the proof was ample to justify the chancellor in finding that the transfer of the property was made for the purpose of defrauding the plaintiff.

The appellant next calls attention to the case of Davis v. Arkansas Fire Ins. Co., 63 Ark. 412, 39 S. W. 258. In that case the court held: “It is still necessary to show that the remedy at law is inadequate by showing that the debtor has no other sufficient means from which the claims of the creditor may be satisfied, or showing other facts sufficient to call for the interference of the court of equity.”

In the case last referred to, there was no evidence that the remedy at law was inadequate, and no testimony of insolvency, and no showing of other facts sufficient to call for the interference of a court of equity. It is clearly indicated in the opinion that, if there were other facts shown sufficient to call for the interference of a court of equity, the court would have jurisdiction. And in the case at bar the proof is abundant, not only of the fraudulent transfer, hut that all of the parties were nonresidents of the State, and that, under the facts, the plaintiff could have had no adequate remedy at law. But the appellant tried his case without objection in the chancery court; certainly tried the case as to Mrs. Taylor without objection.

This court has many times held that, where there is no request to have a cause transferred, or where there is no objection to the jurisdiction of the court, the party will be 'held to have waived the right to ask for a trial at law. In other words, although a case might be brought in chancery court that should have been brought in the law court, and where a court of equity, for that reason, had no jurisdiction, still, if the defendant tries the case without objection to the jurisdiction, he cannot object in the appellate court, because he has waived the right to object. See Hayes v. Bishop, 141 Ark. 155, 216 S. W. 298; Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 174 S. W. 198, Ann. Cas. 1914A, 511.

An adequate remedy at law means a present remedy, and not one that might be exercised at some time in the future. This would not be an adequate remedy. It can hardly be contended that the appellee in this case had an adequate remedy at law, when the officer to whom the execution was given to serve reported that all of them were absent from the State, and no property could be found. See Little Red River Levee Dist. v. Thomas, 154 Ark. 328, 242 S. W. 552.

Again this court has said: “While the complaint is defective in that it fails to allege specifically that, the judgment debtor, Sudie A. Horner, was insolvent, and that therefore the judgment could not have been collected against her, nevertheless such -effect must necessarily be implied from the allegation ‘that, by the wrongful acts of defendant herein complained of, plaintiff has been deprived of bis right and remedy to collect and receive the 'benefits of bis half of said judgment.’ The defect in this particular could, and should have been reached by a motion to make more definite and certain, rather than iby demurrer. When the complaint is tested solely by its allegations, as it must be, it states a cause of action against the appellee for inducing the clients of appellant to breach their contract with him by selling the judgment to the appellee, in which the appellant had a half interest. The complaint alleges that this was done with the intent of depriving the appellant of the fruits of the litigation and the benefits of his fees earned therein. ’ ’ Hogue v. Sparks, 146 Ark. 174, 225 S. W. 291.

The decree of the chancellor is correct, and is therefore affirmed, and the decree in favor of Chastain is also affirmed.


text:
    Lester v. Walker.
    Opinion delivered October 1, 1928.

      E. R. Parham, for appellant.

      Owens & Ehrmcm and Miles & Taylor, for appellee.
   Mehaeey, J.

The Pulaski County Court entered an order directing the issuing to Cordon Walker warrants in the sum of $16,576.70, to be made payable on the first day of September, 1929. An appeal was taken from the order of the county court, the petition for appeal alleging that the order was void for a number of reasons, but all of the objections to the order except one have been abandoned.

It was alleged that the county does not own the land on which the proposed jail is being constructed, and that the county was therefore without the authority to make the contract for the construction of the jail on said land.

The circuit court held that the order was valid, and that the county was the owner of the land. The case was tried in the circuit court on an agreed statement of facts, and the appellant in his brief says:

“'Consequently, the only issue now before the court is whether or not the property now in dispute is the property of the county. Inasmuch as all other allegations were abandoned by the plaintiff upon the trial of the cause, we do not deem it necessary to set out the pleadings in full. The appellees both filed a reply, or answer to the petition, denying the allegations in plaintiff’s petition, and asserted affirmatively that the county was the owner of the property upon which the jail is now being constructed. The issue therefore was properly joined in the court below as to whether or not the county was the owner of the property, and this is the only question before this court for determination. ’ ’

'Since this is the only question to be determined by this court, it is not necessary to set out the pleadings in the case.

Appellant’s contention is that the city was without authority to pass the ordinance authorizing the conveyance of the property to the county, for the reason that it had already passed an ordinance, on April 14,1924, which ordinance is as f ollows:

‘ ‘ Ordinance number ' 3476. An ordinance setting aside all city property or property controlled by the city on the river front, and holding same to be beautified and made into public parks, and for other such purposes.

“Be it ordained by the city council of the city of Little Bock:

“'Section 1. That hereafter no leases or sales shall he made or extended on any land belonging to or controlled by the city of Little Bock on the river front, and all city lands on the river front shall from this date be held for public parks, to be improved, beautified, and made into parks for the use and benefit of the citizens of Little Bock.

“Section 2. All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed, and this ordinance shall take effect and be in force from .and after its passage. ’ ’

The city of Little Bock owned a tract of land bounded on the north by the Arkansas Biver, and it is the contention of the appellant that all the land the city owned in that part of the city 'constituted the river front, or a part of the river front, and that therefore the property in controversy on which the jail is being constructed had already been dedicated to the public, and could not be sold by the city. We think, however, that the river front meant only that tract of land fronting on the river north of the Missouri Pacific railroad; that it was certainly not the intention of the council to make a park of land south of the Missouri Pacific railroad tracks. It had already sold to the county many years ago the land on which the present .jail or old jail stands, and had never devoted or dedicated any part of the property south of the railroad tracks to the public. We think it would be unreasonable to hold that that part of the land owned by the city south of the railroad tracks was the river front mentioned in the ordinance; but, whether it was or not, we think the city had a right to sell the property in controversy to Pulaski 'County, notwithstanding the ordinance set out above had been passed.

It is insisted by the appellant that, when property is once dedicated for the use and benefit of the public for park purposes, the city no longer has authority to cancel or set aside such dedication and convey the property for other purposes. Appellant relies on Dillon on Municipal Corporations, 5th ed., 3d volume, § 1102, and on 20 B. C. L., 645. The section of Dillon on Municipal Corporations relied on .'by appellant reads as follows:

“A municipal corporation has no implied or incidental authority to alien or dispose of for its own benefit property dedicated to or held by it in trust for the public use, or to extinguish the public uses in such property, nor is such property subject to the payment of the debts of the municipality.”

One of the cases cited under this section is Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 791. In the opinion in that ease will be found a history of the ownership of the land in controversy by the city of Little Bock, as well as the manner in which it was held, and it was not held in trust, but it was held, according to the decision of this court, for general purposes. In that case it was said:

“It may be 'considered as well settled that municipal authorities cannot sell the streets • of the town or city dedicated to the public use, and the reason is, in such case the city or town is a mere trustee for the public, and a trustee cannot dispose of the property of the oestui que trust, except by special authority. In Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319, this, court said: ‘A municipal corporation has power to dispose of property held for general convenience, pleasure or profit.’ The property there involved was the town’s interest in a railroad lying mostly without the 'corporate limits of the town, and constructed for the purpose of connecting the town with the Iron Mountain railroad, three or four miles away, and that for the general convenience, pleasure and profit of the inhabitants of the town. It was in no wise a necessity in or factor of the municipal government.” Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 791.

We think it will be found that the authorities referred to and the oases cited by them are all dealing with property conveyed to the city in trust for a specific purpose.

The next authority cited by appellant is 20 R. C. L. 645. The authority referred to states:

“As a general rule, property dedicated for use as squares, parks or commons, cannot (be sold or leased by the municipality, and the Legislature has no power, as against the dedicators, to authorize such disposal. Where the fee is vested in the public, either by condemnation or otherwise, the Legislature may, as against the public and the property owners in the vicinity, control the use, although the use proposed is inconsistent with the one before designated. * * * The general rule is that municipal corporations possess the incidental or implied right to alienate or dispose of their property, real or personal, of a private nature, unless restrained !by charter or statute, but they cannot dispose of property of a public nature, such as a public park or common, in violation of the trust in which it is held; and, although a city takes the title to lands condemned for park purposes, it takes it for the public use as a park, and holds it in trust for that purpose. And, while, if it had taken the title free from such trust, it could sell and convey it away, when and as it chose, receiving the title in trust for an especial public use, it cannot convey without the sanction of the Legislature. But there is a distinction between property purchased for a public park or square and not yet dedicated, and property which is purchased for that purpose and actually dedicated to that use. ” 20 R. C. L. 645, § 13.

All these authorities refer to property conveyed to a city for a specific use and not to property owned by the city generally. Where property has been dedicated by the owner to a public use and where such property has not been used by the public, and neither the public nor any third person has acquired any rights because of the dedication, the dedication may be revoked.

This court has said.: “In the recent case of Davies v. Epstein (77 Ark. 221, 92 S. W. 19), we approved the generally established doctrine that ‘ an owner of land, by laying out a town upon it, platting it into blocks and lots intersected by streets and alleys; and selling lots by reference to the plat, dedicates the streets and alleys to the publicase, and such dedication is irrevocable.’ It is equally well established that ‘merely laying out grounds, or merely platting and surveying them, without actually throwing them open to the public use or actually selling lots with reference to the plat, will not, as a general rule, show a dedication. # * * The revocation may be accomplished either by an affirmative act in recalling it, or by an abandonment of the scheme. The question of abandonment is one of fact, and may be said to occur where the object of the use for which the property is dedicated wholly fails. * * * It follows that, the dedication never having-been in any way accepted by the public, and having been revoked by abandonment of the scheme for converting the lands into additions to the adjacent town, the title to the streets, avenues and alleys passed to the owners of abutting platted lots and blocks as grantees of the original dedicators.” Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S. W. 21, 113 A. S. R. 170.

In the case at bar the city owned the property, and passed an ordinance to the effect that hereafter the river front would be used as a park, and should not be leased or sold. The property, however, was never used as a park; nothing was done by the public or any third persons because of the passage of this ordinance, and, Iby an affirmative act of the city in passing the ordinance authorizing the sale of the property to the county, it necessarily repealed the first ordinance and revoked the intended dedication.

“Unless private rights have been attached or unless the property has actually been used as a park, the municipality may revoke.” iSections 1086 and 1091, Dillon on Municipal Corporations, vol. 3, 5th edition.

We therefore conclude that, in the first place, the property south of the Missouri Pacific railroad tracks is not a part of the river front; and second, that neither third persons nor the public having exercised "any rights, and the municipality itself having done nothing but pass the ordinance, it had the right to revoke it. A municipal corporation may dispose of its property uniese it is held in trust in the same .manner that a private individual could dispose of his property. This court has said:

“A municipal corporation may toe the owner of two classes of property. One class includes all property essential to, or even convenient for, the proper exercise of municipal functions and corporate power. The other class includes all property held for general convenience, pleasure ior profit. * * * Municipal corporations possess the incidental or implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained toy charter or statute. ’ ’ Fussell v. Forrest City, 145 Ark. 375, 224 S. W. 745.

There is no dispute about the city having owned the land in controversy, and it is conceded that, unless the ordinance dedicating the river front for a park prohibits it from doing so, the city may sell the property. There is a pretty full history of this property and the manner in which it was acquired by the city in the Little Rock v. Jeuryens, 133 Ark. 126, 202 S. W. 45. Among other things the court said: “It follows, from what we have said, that the city owned the disputed land upon which Jeuryens located, unless it was below the high-water mark. If it were below the high-water mark, it was a part of the bed of the river and belonged to the State. * * * We therefore hold that the land was an extension of Water Street, and belonged to the city as such.”

And the court further said in the above case: “The decree of the court ibelow will be reversed, and the cause will be remanded with directions to amend the decree quieting the title of the city against tooth Jeuryns and the State for the property involved in this litigation.”

So there can be no dispute about the title being in the city, and, as we have already said, municipal corporations have the same right to sell property held by them for general purpose that an individual has. We have no statute prohibiting it and nothing in the Constitution that prohibits it. And, since the title to the property involved was in tlie city and had never been dedicated to public use, the public had never acquired any rights, no third person had ever acquired any rights, and the city had a right to repeal the ordinance with reference to the river front and to sell the property involved in this suit to the county.

The judgment of the court is therefore affirmed.


author: McHaney, J.

text:
    Henson v. Arkansas State Life Insurance Company.
    Opinion delivered October 1, 1928.

      Oscar Barnett, for appellant.

      Neill Bohlinger, for appellee.
   McHaney, J.

Appellant is the mother of Gussie B. Henson, and wias named as beneficiary in a sick and accident policy of insurance issued by appellee to said Gussie B. Henson on the 11th day of June, 1927. By the terms of the policy the premiums were due July 1, and on the first of each month thereafter, with five days of grace allowed to pay same. She did not pay the premium due July 1, nor within the five days of grace allowed, and, along early in July, suffered an illness, from which she died on the 26th day of July. The insured not having paid her premium, on July 22 the company wrote her a letter, without any knowledge off her illness, calling her attention to her delinquency in the payment of her premium, in which it said: ‘ ‘ Our record shows you are only due for this month’s premium, which is only a small amount, and we are going to give you this one more chance to have yrour insurance put back in force, but you must act at once, and send us your premium before we close our books at the end of the month.” This letter was dated July '21, and was received by the insured on July 22, and the appellant sent the money to appellee on the same day, for which a receipt was issued.

This suit was instituted by appellant to recover $300 for the death of Gussie B. Henson, on the theory that the policy covered loss of life through natural causes. At the conclusion of the testimony the court instructed a verdict for appellee, and the case is here on appeal.

The court did not err in giving a peremptory instruction, for the reason that the policy in question does not cover death except through accidental means. It insured the deceased “against death and disability through sickness and accident to the extent as herein limited and provided. ” Part 1, § (A) provides for sickness indemnity for $1 per day, “meaning disability caused by sickness which is contracted and begins during the life of this policy, and after it has been maintained in continuous force for not less than thirty days hereinafter, called (such sickness,’ and so long as the renewal premium is paid in advance by the insured,” subject to all conditions set out in the policy. Section (B) provides for accident indemnity of $1 per day. Part 2 provides for accident insurance in the sum of $300 for certain specific losses, and continues: “If, within ninety days from the time of an accident, any one of the following specific losses shall result solely from such injury, the company will pay for such loss, in lieu of all other indemnity under this policy, the specified sum shown herein.” For loss of life $300, both eyes $300, etc.

There is no provision in the policy, which we have examined carefully, insuring the deceased against death, except through accidental means. Parts 3 and 4 deal wholly with accident indemnity, and part 5 with illness indemnity.

The evidence in this case shows that the insured died from disease, and not because of an accident. The policy not covering death of the insured except by accidental means, creates no liability against appellee for her death, and the court correctly instructed a verdict. Judgment is accordingly affirmed.


author: McHaNey, J.

text:
    Holt v. J. B. Holt Tire Company.
    Opinion delivered October 1, 1928.

      Virgil J). Willis, for appellant.

      J. M. Slvitm and Woods & Greenhaw, for appellee.
   McHaNey, J.

Appellee instituted this action against appellant before a justice of the peace to recover the sum of $82 on account, and secured, judgment against him. Appellant took an appeal to the circuit court, and gave an appeal bond. At the July term, 1927, of the circuit court, on motion of appellant, the case was continued to the January term, 1928, and set for the 16th day of January. Appellant failed to appear on said day, and, on motion of the appellee, his appeal was dismissed. Thereafter, on the 17th day of February, appellant filed his motion for reinstatement, and the memoranda on the judge’s docket shows that on the 18th day of February, “the motion to reinstate coming on to be heard, and. the court being fully advised in the premises, doth override the same,” to which appellant excepted. The transcript also shows that on the same day, February 18, “This canse coming on for trial, comes the plaintiff by his attorney, and the defendant appeared by attorney only, and filed a motion for a continuance herein on the grounds of sickness in the defendant. The court, after hearing the motion and being fully advised, doth overrule said motion, and the appeal in this cause is by the court, upon motion of the plaintiff, herein dismissed; and it appearing to the court that the defendant has entered into an appeal bond with 'Charles Austin as surety: It is therefore by the court considered, ordered and adjudged that the plaintiff, J. B. Holt Tire Company, have and recover of and from the defendants, W. H. Holt and his bondsman, Charles Austin, the sum of $82, and all costs in this suit laid out and expended, and to include the costs of the circuit court, for which let execution issue.”

There was no motion for a new trial, no bill of exceptions, and there is therefore nothing for this court to review except error manifest on the face of the record. We cannot review the action of the circuit court in overruling the motion for continuance recited in the above judgment, for the reason that the affidavit upon which it is based, if there was one, is not brought into the record by bill of exceptions, and for the- further reason that there was no motion for a new trial assigning the refusal of the court in this regard as error. Watts v. Cohn, 40 Ark. 114, and cases cited.

Neither can we review the action of the court in overruling the motion to reinstate the cause for the same reason. We cannot tell from the record what the court had before it when it heard the motion to reinstate, the order stating that, “the court being fully advised in the premises, doth overrule the same.” We cannot say from the face of the record that the court erred in overruling the motion to reinstate, as it might have heard evidence or was other-wise advised in the premises.

.Appellant also says that the court had no authority to render judgment against him and his bondsmen after dismissing the appeal. Assuming that this is true, which we do not decide, it is not properly before the court, as the record does not disclose any motion of appellant or his bondsman to set aside such judgment or to strike same from the record, nor any motion for a new trial assigning the refusal of the court to do so as error.

We find no error apparent on the face of the record, and the judgment is accordingly affirmed.


text:
    Crawford v. State.
    Opinion delivered October 1, 1928.

      Lee d Moore and Boss Mathis, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McHaNey, J.

Appellant was convicted upon a charge of murder in the first degree and sentenced to death for the killing of his mother-in-law, Mrs. Minnie May Chitty, on December 20, 1927. According to the evidence for the State, the killing was wholly unwarranted and unprovoked. The defendant contended that he shot the deceased after a murderous assault made upon him by the deceased with a stick of stovewood, without provocation, and after she had knocked him down and was attempting further to strike him.

His first assignment of error is that the court committed reversible error in its refusal to give his requested instructions Nos. 4 and 6, which are as follows:

Instruction No. 4: “If you find that the deceased made an assault upon the defendant, without fault or carelessness on the part of the defendant, and that the assault was so fierce and violent as apparently to make it (as) dangerous for the defendant to retreat as to stand, then it was not the duty of the defendant to retreat, and he had the right to stand his ground, and, if necessary to save his own life or to prevent .a great bodily injury to himself, to slay his assailant.”

Instruction No. 6: “If you find from the evidence that the deceased, Mrs. Chitty, made an assault upon the defendant, Dewey Crawford, which was so fierce and violent as to make the defendant believe he was in dan-" ger of losing his life or suffering great bodily harm, then you are instructed that the defendant was not bound to retreat, but that he had the right to act in his self-defense until the danger was over.”

It is said that, in the cross-examination of appellant, it was attempted to be shown by appellant himself that lie could have retreated without shooting the deceased, and that numerous questions were asked by counsel for the -State which tended to ridicule appellant’s contention that he could not retreat. The killing was admitted, and appellant interposed the plea of self-defense in justification thereof.

Section 2375, C. & M. Digest, provides: “In ordinary cases -of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great 'bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in -good faith endeavored to decline any further contest before the mortal blow or injury was given. ’ ’

The court gave, at appellant’s request, instruction No. 2, which, after explaining’ to the jury the essential difference between murder and manslaughter, says: “It will not be necessary for you to distinguish between the different degrees of murder or between murder and manslaughter, if you find that the defendant acted in self-defense, and killed the deceased after she had made an attack upon him, which was not provoked by him and without fault or carelessness -on his part, and if he killed the deceased because of an honest belief, as a reasonable man, that there was an urgent and pressing danger of losing his life or suffering great bodily injury, and shot to protect himself in this belief.”

Again the court repeated the same idea at the request of appellant in instructions 11,12 and 13, instruction No. 13 being as follows: “You are instructed that, in arriving at a decision as to whether or not the defendant, Dewey 'Crawford, shot the deceased, Mrs. Chitty, in the honest belief that he was- aibout to suffer death or great bodily injury at her han-ds, -and without fault or carelessness on his part, you will try to form in your own mind a picture of the killing and see the circumstances as they appeared (before the defendant, and not as they may now appear to you; and if you find from the evidence that the defendant, at the time of the- killing, without fault or carelessness on bis part, honestly believed that be was in great danger of losing bis life or of suffering great bodily injury at the bands of the deceased, Mrs. Chitty, and shot her in this belief, then yon will return a verdict of not guilty, even though yon should find now that there was in fact no actual danger of his losing' his life or suffering great bodily injury at her hands.”

The court fully instructed the jury on presumption of innocence, the burden of proof, and reasonable doubt.

We think there was no error therefore in the refusal to give the above instructions. Instruction No. 4 is subject to the criticism made of a similar instruction in the recent case of Stoddard v. State, 169 Ark. 602, 276 S. W. 358. However, instruction No. 6 is not subject to the same criticism, and might, under proper circumstances, be a correct declaration of the law on the question of appellant’s duty to retreat. The court had already instructed the jury in the language of § 2375, C. & M. Digest, and repeated the matter in the instructions above mentioned at the request of appellant more than once.

Self-defense can only be interposed where the person killed was the assailant, or where the slayer, having brought on the difficulty and being himself the aggressor, had really and in good faith endeavored to withdraw from the contest or controversy before the killing. If the person killed is the assailant, and it appears to the defendant that the danger is so urgent and pressing that it is necessary to kill the assailant in order to prevent his receiving great bodily injury, then he may do so without retreating. But, if he brings on the difficulty himself, is the aggressor, then he must in good faith endeavor to decline any further contest, in other words, retreat or withdraw, before he is entitled to the plea of self-defense, and then only under the same conditions as to the urgent and pressing necessity for killing. Therefore, according to his own statement, appellant was not the aggressor, was not under duty to retreat, and on his own theory of the case was not entitled to either of said instructions in addition to those heretofore mentioned as having been given. As already stated, the court .'fully instructed the jury on the law of self-defense, and in language so plain that the jury could not have misunderstood it. We therefore overrule appellant’s contention in this regard.

Appellant next insists that the court erred in refusing to give his requested instruction No. 3, as follows:

“You are instructed that, if you find that any statements were made by the deceased in regard to the defendant that might he construed as threats against the defendant, then you would have a right to consider such statements or threats as .showing the frame of mind of the defendant and as bearing upon the question of who was the probable aggressor. ’ ’

The court gave an instruction on the law of threats, stating, in .substance, that it was competent for the defendant to show that threats had been made against him; that threats against a person will not justify an assault or the taking of life of a person unless, at the time of the assault or taking the life, the person making the threats does some act indicating that he is about to carry his threats into execution; that they should be considered in determining whether or not he was in such danger as required the exercise of his right of self-defense, But, if they are made, they should be considered only by the jury in determining who was the probable aggressor in the difficulty. Appellant’s requested instruction was not correct, for the reason that it did not distinguish between communicated and uncommunicated threats, but applied to all threats generally. It was therefore not a correct declaration of the law as requested, as an uncom-municated threat could not throw any light on the frame of mind of the defendant. No objection or exception was made to the court’s charge on threats, and, not having asked a correct instruction thereon, he is in no position to complain.

It is next insisted that it was error for the court to give § 2342, C. & M. Digest, as an instruction, without following it with a statement that the burden of proof on the whole case was on the State, and notwithstanding § 2342, it was sufficient if the evidence in behalf of appellant created a reasonable doubt of his guilt. Only a general objection was raised against this instruction, and if appellant thought the court should have added thereto in the manner above indicated, he should have requested the court to do so. As already stated, the court fully instructed the jury on the burden of proof, reasonable doubt, and presumption of innocence, and we therefore overrule appellant’s contention in this regard.

It is finally insisted that the verdict of the jury was clearly excessive, as the evidence does not show the elements of murder in the first degree. It is said that the evidence in behalf of the State did not warrant the death penalty. As heretofore stated, the testimony on behalf of the State showed a willful, deliberate and malicious killing, which was entirely unprovoked; that on behalf of the defendant, that he was justified therein. This was a question for the jury, and, under the settled rule of this court, the verdict must stand if supported by any substantial testimony. It is also said that the verdict was dictated by passion and prejudice, but we find nothing in the record to justify this statement. The trial court was present, saw the witnesses on the stand, heard them testify, and was in better position to judge of this matter than this court. By his action in overruling’ the motion for a new trial, he has said, in effect, that no such condition existed, and we do not feel justified in setting the verdict aside on this ground. We find no error, ánd the judgment is affirmed.


author: Hart, C. J.,

text:
    Laird v. Byrd.
    Opinion delivered October 8, 1928.

      Gauglmn & Sifford, for appellant.

      Align Smith and W. L. Broivn, for appellee.
   Hart, C. J.,

(after stating the facts). It is well settled in this State that one who sells personal property with reservation of title, upon the purchaser’s default may either treat the sale as canceled and bring an action of replevin, or treat the sale las absolute and sue for the purchase money. It is equally well settled that the purchaser has the right to pay the balance of the purchase price, so as to prevent the seller from retaking the property. Culberson v. Lakella Iron Works, 170 Ark. 813, 281 S. W. 373.

The Commercial Investment Trust, by transfer and assignment from Hugh McKenzie, became the owner of the $450 note of Clyde E. Byrd, payable in installments, and also of the conditional sales contract. Byrd made default in the payment of the first two installments of the note, and the Commercial Investment Trust turned the note and contract over to Edward I. Rothbart, an attorney of Chicago, for collection, or for the recovery of the automobile in default of the payment of the balance due on it. Rothbart, on the ninth day of July, 1926, wrote to Clyde E. Byrd a letter in which he told him that ¡his clients had requested him to take immediate action in the matter, and that the matter would be held in abeyance in his office for the next seven days. This letter was duly received by Byrd, and, before the end of the seven days, he went to the garage of Hugh McKenzie, where he had left the car to be greased and oiled, and demanded his car. He was told by McKenzie that the Commercial Investment Trust hiad taken possession of the car because of his default in the payment of the two installments of the notes. Byrd tendered to Hugh McKenzie his father’s check for $450 for the balance of the purchase price. The check was refused, but was refused by McKenzie .because he had already sold the car to P. D. Laird. Byrd then wired the $450 to the Commercial Investment Trust.

The court submitted to the jury the question of whether or not the Commercial Investment Trust had waived its right to retake the car during the seven days ’ time for extension given by its attorney, Rothbart, and the action of the court in this respect is assigned as error by counsel for appellants. They cite and rely on the principle of law decided in Cullen-McCurdy Construction Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S. W. 1023, where it was held that it was not within the implied authority of an attorney to compromise his client’s cause of action, or to release the defendant from liability, or to shift that liability by accepting the liability of another for that of the defendant. In this connection it may be said that there is no implied power, under a general retainer to an attorney, to grant additional time to a client’s debtor. 6 C. J. 659, and cases cited. These cases are based upon the principle that the law of principal and lagent applies to the relation of attorney and client where the attorney is acting merely in the capacity of a collector, and that there is no implied power to grant additional time to his client’s debtor. Our own case cited above and those cited in Corpus Juris proceed upon the principle that an attorney cannot give a release or compromise a case without sufficient authority, because that affects his client’s right and not merely his remedy. So too, when an extension of time has been granted by an attorney who has merely authority to collect, this might have the effect of discharging a surety of the debtor or of otherwise impairing the rights of his client.

Here greater authority than a mere collection attorney may be implied. As we have already seen, there was a conditional sales contract, and the seller or his assignee had the right to treat the sale as absolute and recover the balance of the purchase price, or to retake the property and claim it as his own, upon default by the purchaser - in making the installment payments as provided in the conditional sales contract. It is infer-able from the letter written by Bothbart and from his testimony in the case that he had authority to collect the balance of the purchase price or to institute suit for the property itself, in case of default of the payment of the purchase price. Hence we are of the opinion that the court was justified in submitting to the jury whether or not Bothbart did have authority to extend the time of payment for a short period in order to collect the balance of the purchase price. 'Such action on his part in no sense deprived his client of any material right, and related merely to his control of the remedy given his client under the conditional sales contract. Hence we do not think that the court committed reversible error in submitting this question to the jury, under the circumstances adduced in evidence.

It is next contended that, even though Bothbart had the authority to give the seven days’ extension of time for payment, this did not have the effect of waiving the foreclosure, and that the seller still had a right to retake the property because the two installment notes had not been paid when due. This is contrary to the plainest principles of justice. The seller was given the election to treat the sale as absolute and sue for the balance of the purchase price, or to retake the property upon the default being made by the purchaser in the payment of the past due installment notes and demand for the property. The jury was justified in finding that Byrd had relied upon the seven days’ extension of time given him by Rothbart for the 'Commercial Investment Trust, the holder of the note and the conditional sales contract, and, under the circumstances, it could not treat the nonperformance of the contract within the original time as a breach of it. Johnson v. Keaser, 196 Cal. 686, 239 Pac. 324; Reinkey v. Findley Electric Co., 47 Minn. 161, 180 N. W. 236; and McCaron v. Commercial Credit Trust, 167 Minn. 322, 209 N. W. 15.

It is also insisted that the judgment should he reversed because the tender made by Byrd for the payment of the purchase price was not in cash. This did not make any difference. The tender was not refused because of the check, but because McKenzie claimed that he had already sold the car to Laird. McKenzie waived his right to demand money by objecting to receiving the tender on other grounds. It would have been a vain and idle thing for Byrd to have procured the $450 in money and tendered it to McKenzie when McKenzie was refusing to accept the tender on other grounds. Harriman v. Meyer, 45 Ark. 40; and Duffy v. O’Donovan, 46 N. Y. 223.

Finally, it is insisted that Byrd could not maintain the suit against McKenzie because he had already sold and delivered the car to Laird at the time the suit in replevin was brought. The suit of 'Byrd was predicated upon the wrongdoing of the defendants, and they were all liable in damages for the condition of the car, under the facts found by the jury in the application of the principles of law given by the court. If the Commercial Investment Trust wrongfully converted the car to its own use when Byrd had the right to pay the balance of the purchase price, neither the Commercial Investment Trust nor its agents in the premises can escape liability for its wrongdoing. In the very nature of things neither McKenzie nor Laird could obtain any better rights than the Commercial Investment Trust. They were in no sense innocent purchasers.

Therefore the judgment will be affirmed.


author: MoHanet, J.

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

      Northcutt, Burrow• &' Richardson, for appellant.

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

Appellant was indicted, convicted and sentenced to one year in the penitentiary for the unlawful manufacture of intoxicating liquor. The indictment copied in the transcript was one charging him with manufacturing mash fit for distillation, but on certiorari the correct indictment has been certified to this court.

His first assignment of error for reversal of the judgment of conviction and sentence against him is that the evidence was insufficient to support the verdict and •judgment. The rule of law governing this court on this assignment is that, if there is any substantial evidence tending to connect appellant with the commission of the offense charged against him, the verdict of the jury is binding here.

The credibility of the witnesses is a question solely for the jury, as well as the weight and sufficiency of the evidence to convict, if there is any substantial testimony tending to convict. There are so many decisions of this court to that effect that we deem it unnecessary to ciite them.

The testimony of Mr. Keck and three other witnesses for the State was sufficient to submit to the jury the question of the guilt or innocence of appellant. He testified that he climbed a tree about 250 or 300 yards away from the house, and saw appellant and others carrying mash from the mash barrel into the house; that two of them would carry the mash while another stood guard, and that they would take it turn about standing guard. Appellant was recognized by Mr. Keck as one of those carrying the mash into the house.

Mr. Keek and the others with him went down to the house, where they arrested appellant and the others, and found a still located in the house, in full operation, with some finished liquor. Appellant refused the officers admission until they had shown him a search warrant, and told them not to pour the mash on the floor. This tended to show possession of the property in which the still wa.s located, as well as the still itself. This was sufficient to take the case to the jury, and its verdict is binding upon this court.

Assignments 2 and 3, that if any offense was committed it was for possessing mash, and that the proof was not responsive to the indictment, pass out of the case, for the reason that the proper indictment has been brought into the record by certiorari, as heretofore stated.

There was no error in the refusal of the court to permit appellant to show that he had had a subpoena issued for two witnesses who were out of the State. No motion for continuance was filed on this account, or, if so, the overruling thereof was not assigned as error. Moreover, the record does not show that such testimony was offered or excluded, and the error, if one, could not be urged on appeal, it having been raised in the motion for new trial for the first time. Brown v. State, 169 Ark. 324, 274 S. W. 1.

Complaint is also made of the closing argument of the prosecuting attorney; that the women jurors were not properly instructed; and because the jury was not made up according to law. The argument of the prosecuting attorney is not contained in the bill of exceptions, and we cannot tell whether it was erroneous or not. As for the women jurors, the record does not reflect that the court was requested to advise them that their service on the jury was optional. The law provides that it is .optional with them, and it is presumed that they knew the law; but perhaps, if appellant had requested the court to so advise the women jurors, it would have done so. Nor does the record reflect any irregularity in the impaneling- of the jury. No objection was made or exceptions saved to the manner of impaneling the jury, and, even though it had been irregularly impaneled, appellant is in no position to complain.

Complaint is also made of the refusal of the court to give instructions 1, 2 and 3 requested by him. We have examined these instructions refused as well as those given by the court, and find that the jury were correctly instructed. Numbers 1 and 2 were argumentative in form, and number 3 was on circumstantial evidence. The State did not rely upon circumstantial evidence wholly, and this court recently held, in the case of Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946, that, even where the State depends wholly on circumstantial evidence, it is not error to refuse such an instruction, where the court properly instructed upon the weight of the evidence, the burden of proof, and reasonable doubt.

We find no error, and the judgment is affirmed.


author: Hart, O. J. Mehaeey, J.,

text:
    Kirkpatrick v. State.
    Opinion delivered October 8, 1928.

      W. D. Brouse, N. A. McDcmiel and W. A. Utley, for appellant.

      H. W. Applegate, Attorney ‘General, and Walter L. Pope, Assistant, for appellee.
   Hart, O. J.

John P. Kirkpatrick prosecutes this appeal to reverse a judgment of conviction against him for attempting to induce Ge'thel Coates to withhold her evidence in the case of State of Arkansas against Lilhurn Kirkpatrick, pending iii the Saline Circuit Court.

The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. The charging piart of the indictment contains the following:

“The said John P. Kirkpatrick, in the county and State aforesaid, on or about the 21st day of November, A. D. 1927, did unlawfully, willfully and corruptly attempt, directly and indirectly, to induce one Gethel Coates to withhold her evidence and to deter her, the said Gethel Coates, from offering or giving evidence in a certain criminal case then pending in the circuit court of iSaline County, Arkansas, between the State of Arkansas, plaintiff, and Lilhurn Kirkpatrick, defendant,” etc.

It is contended that the use of the words “directly and indirectly” in the charging part of the indictment as copied above shows that it was intended to charge two distinct offenses, and that the use of the word “or” between “directly” and “indirectly” renders the indictment void for uncertainty. This contention is based on the general rule that, where a statute enumerates several acts disjunctively, which together or separately constitute the offense, an indictment thereunder, to charge more than one of them, which it may do in the same count, should do so in the conjunctive, and if the disjunctive is used, the indictment will be bad for uncertainty. This general rule was recognized and applied in Trout v. State, ante, p. 1029. In that case it was pointed out that malt, fermented and spirituous liquors might all he intoxicating liquors, hut they were different kinds of liquors. Hence a charge of selling vinous, malt and spirituous liquors would he in the conjunctive instead of in the disjunctive. The reason was that the accused was entitled to know which one of the different kinds of liquors he was charged with selling in order that he might be prepared to make his defense and in order that the record of the judgment of conviction or acquittal at that trial might be pleaded upon a subsequent indictment for the same offense.

On the other hand, where but one offense is charged but the several modes provided by the statute by which it may be committed are charged in the disjunctive, the indictment is good. Holland v. State, 111 Ark. 214, 163 S. W. 781. The reason is that the charge is based upon one offense, and the different modes of committing it provided in the statute are based upon the same transaction. Here the words, “directly or indirectly induce or attempt to induce any witness to absent himself, or avoid a subpoena or other process, or to withhold any evidence,” etc., as used in § 2562 of 'Crawford & Moses’ Digest, have the same effect. In the very nature of things, whenever an attempt to induce a witness to withhold her testimony or to change it is made indirectly, it is in the law as if it had been made directly. Therefore we hold this assignment of error is not well taken.

For the same reason the court did not err in refusing to require the State to elect whether it would rely upon proving that the defendant directly or indirectly attempted to induce the witness to change her testimony. The offense charged was an attempt to bribe G-ethel Coates in the case of State of Arkansas against Lilburn Kirkpatrick, and but one offense was charged, which might have been committed by directly or indirectly bribing the witness. In other words, the State in proving the offense might show that it was done or that the attempt to bribe was done directly or indirectly, or by both, means. In either event it related to the same transaction and constituted but one offense. To illustrate, it would have been competent to prove that the defendant attempted to induce the witness to withhold her testimony in a given case <by making- propositions to her mother, and then to have proved that the defendant made the same proposition directly to the witness herself.

It is next insisted that the'evidence is not sufficient to support the verdict. The indictment was based upon § 2562 of Crawford & Moses’ Digest. Mrs. S'. A-Lewallen, mother of G-ethel Coates, was the principal witness for the State. According to her testimony, Gethel Coates had a bastard child born to her, and she claimed that Lilburn Kirkpatrick, a son of John P. Kirkpatrick, was the father of the child. According- to her testimony, John P. Kirkpatrick asked her to come to see him. He then told her that he wanted her to get Gethel Coates to swear that she had had intercourse with other boys and men, and agreed to pay for that statement the sum of $100, and also to help support the baby as long as he lived. iBill Moore, a witm^ for the State, also testified that the defendant got him to go to Gethel Coates and tell her, in substance, that he would pay her money if she would keep the case against his son out of court. The defendant said that he would rather give what money the case would cost in court to her. The witness made this communication to Gethel Coates; and she said she did not want anything from the Kirkpatricks, land refused to take the money. According to the testimony of Gethel Coates, her mother and Bill Moore communicated these offers from the defendant to her, and she refused- to accept the offers. This evidence was legally-sufficient to warrant a conviction. It is true that, according to the testimony of the defendant and his witnesses, he was not guilty; but the jury were the judges of the credibility of the witnesses, and‘the testimony set out above by the witnesses for the State, if believed by the jury, was sufficient to warrant it in returning a verdict of gnilty.

Another assignment of error is that the court erred in holding that the jurors, W. A. Bussell and Winn Moore, who had served as jurors in the case of State of Arkansas v. Lilburn Kirkpatrick, were competent jurors in the case at bar. These jurors stated in their examination before the court that they had no bias or prejudice against the defendant. They stated that they had been on the jury in the case against Lilburn Kirkpatrick, but that this fact would not prejudice them in the present trial. The two cases were entirely different offenses, and the fact that the jurors had served in the case of State of Arkansas against Lilburn Kirkpatrick in no sense affected their competency in the case at bar.

Another assignment of error is that the court erred in not allowing the defendant to impeach the witness, Gethel Coates, by showing that she had been a juvenile delinquent, and had been charged with truancy in the defendant’s court. The defendant was at the time the county judge of Saline County. This court has held repeatedly that a witness cannot be impeached by proof of specific acts or incidents of bad .conduct. Dean v. State, 130 Ark. 322, 197 S. W. 684; Mobley v. State, 135 Ark. 457, 205 S. W. 827; Lockett v. State, 136 Ark. 437, 207 S. W. 55; and Davis v. State, 150 Ark. 500, 234 S. W. 482.

The next assignment of error is that the court erred in permitting the mother of Gethel Coates to testify that her daughter had told her that Lilburn Kirkpatrick, the son of John P. Kirkpatrick, was the father of her child. Now Lilburn Kirkpatrick had been indicted for carnal abuse, charged to have been committed by having intercourse with Gethel Coates, a girl under the statutory age. As we have already seen, the mother of Gethel was the principal witness for the State. She related on the stand, in detail, the circumstances under which the defendant attempted to induce her to get her daughter to change her testimony in the case of State against Lilburn Kirkpatrick by the payment of money to her by the defendant. It was. necessary, in order to understand the effect of her testimony, for the witness to tell that her daughter had told her that Lilburn Kirkpatrick was the father of her child. It appears that she had already testified to that fact, and the offer on the part of the defendant was to induce her to change her testimony by stating that other boys and men had had intercourse with her about the same time, and thereby affect her credibility. Therefore we hold that this assignment of error is not well taken.

We have carefully examined the instructions of the court, and find no reversible error in them.

The last ¡assignment of error is that the court erred in removing the defendant from the office of county judge after the jury had returned a verdict of guilty. The jury returned the following verdict:

“We, the jury, find the defendant guilty as charged, and assess his fine at $5 and his punishment at imprisonment within the county jail for a period of five minutes.”

The court also removed the defendant from the office of county judge, under the provisions of § 10336 of Crawford & Moses’ Digest. Sections 10335 and 10336 must be read together in order to show upon what the court based its action in removing the defendant from office. The two sections read as follows:

“10335. 'Suspension on presentment or indictment. Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant.

“10336. Judgment and proceedings on conviction. Upon conviction of any such officer for any such offense, a part of the sentence of the circuit court having jurisdiction shall be to remove snob officer from office, and tbe clerk of tbe court, at tbe close of tbe term, shall transmit to tbe Governor a certified transcript of tbe presentment or indictment, with tbe judgment of the court thereon, and tbe vacancy shall be filled as may be prescribed by law at tbe time tbe same occurs. ’ ’

Tbe court relied upon tbe decision in Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Gas. 1914B, 302. In that case Jones, tbe constable of Big Back Township, in Pulaski County, was indicted for murder in the first degree, and was suspended from office under § 10335. His counsel contended that the words “criminal conduct amounting to a felony, ’ ’ as used in tbe statute, should be held to mean criminal conduct in office amounting to a felony. Tbe .court held against that contention, and, in construing tbe statute, said in effect that tbe whole context must be considered in arriving at the meaning of the Legislature.

In discussing the question tbe court said:

“Tbe words ‘gross immorality,’ immediately preceding tbe phrase under consideration, refer to individual or personal attributes and habits, .as contradistinguished from official misconduct or derelictions. There may be gross immorality in, or upon tbe part of, an individual during tbe time be may be bolding office, but there cannot be such thing as gross immorality in office.

“Tbe general terms, ‘incompetency, malfeasance, misfeasance and nonfeasance,’ have reference to official conduct. Tbe term ‘corruption’ might have reference to acts constituting official corruption, or it might be applied to individual delinquencies not in connection with bis office, constituting corruption or dishonesty, as the term is evidently intended to mean.”

Continuing, tbe court said:

“There are no statutes making ‘incompetency,’ ‘corruption,’ and ‘gross immorality,’ as such, indictable offenses. Therefore tbe Legislature must have intended by tbe use of these terms that, when any one holding a public office was indicted for any ‘criminal conduct

amounting to a felony,’ or for any offense which showed him to be corrupt or dishonest, or for any felony or misdemeanor which showed him to be ‘grossly immoral,’ and which, if proved, in the eyes of the law would render him incompetent to hold office, he should be suspended. In other words, the Legislature did not intend that an officer should perform the functions of his office while he was under presentment or indictment for any criminal conduct which, if proved, amounted to a felony, or that showed that the accused was grossly immoral or corrupt. This is the wise public policy which the Legislature manifestly intended to conserve.”

From the language quoted it is apparent that the court held that the word “corruption,” as used in the statute, wias intended by the lawmakers to be used in its more comprehensive sense, and not merely as relating to official delinquencies.

According to the definition of the word ‘ ‘ corruption ’ ’ in Bouvier’s Law Dictionary, it includes bribery; and, as declared by the court in the case just cited and quoted from, in its more comprehensive sense it applies to individual delinquencies not in connection with an office. In short, the court expressly held that the word “corruption,” as used in the statute, was intended to be used in its more comprehensive sense ¡as meaning individual as well as official delinquencies.

But it is claimed that the decision of the court on this point was dictum. It is true that the court might have refrained from passing upon the meaning of the word “corruption,” as used in the statute; but the language of the court was a proper and reasonable part of the argument upon which the decision of the court was based, and we do not think it -should be declared to be dictum merely. It was the deliberate expression of the court upon the meaning which should be given to the whole section when read together in order to ascertain the declared purpose of the Legislature in passing the statute. We call attention to the fact that the court expressly stated that the words, “gross immorality,” as used in the statute, could only mean ‘ ‘ gross immorality upon the part of the individual during the time he held office,” for the reason that there could he no such thing as gross immorality in office. As we have already seen, a person could he corrupt while in office just as well as he could he corrupt in his official duties; and bribery is included in the word “corruption,” whether it relates to the official duties of the officer or to his private delinquencies.

It is insisted, however, that this holding of the court in the Jones case has been overruled by later cases relating to the subject. Reliance is placed upon the holding of the court in Winfrey v. State, 133 Ark. 357, 202 S. W. 23, and in McClain v. Sorrels, 152 Ark. 321, 238 S. W. 72. In the Winfrey ease the court held that an indictment against lan officer for transporting liquor did not fall within the statute authorizing a summary judgment of removal. The reason was that the act charged could not he said of itself to amount to “gross immorality” or “corruption.” In the McClain case the court said that a single act of drunkenness on a public highway, in violation of statute, does not necessarily involve moral turpitude so as to constitute “gross immorality” within the meaning of the Constitution and statute authorizing the removal of county and township officers for “gross immorality.” In neither of these cases is any reference made to the Jones case, and this shows conclusively that there was no express intention on the part of the court to overrule it. We do not think there is any necessary conflict between the Jones case and the Winfrey and McClain cases. A violation of a statute might or might not constitute “gross immorality” or “corruption” according to the circumstances of the case. It might he a violation of a statute that would involve no moral delinquencies whatever. It might require repeated acts to show that an officer was guilty of gross immorality or of corruption by violating’ the statute. Violation of a statute directed against bribery, however, is necessarily different. If the word “corrup-Non” includes bribery, then necessarily tbe conviction of one offense would make tbe officer guilty or “corruption” if be was convicted of violation of tbe bribery law. If be was convicted once or many times would relate only to tbe degree of bis guilt.

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

Mehaeey, J.,

dissents from that part of tbe opinion holding that the court bad tbe power to remove defendant from office.