author: Butler, J.

text:
    Patterson Orchard Company v. Southwest Arkansas Utilities Corporation.
    Opinion delivered July 8, 1929.

      Lake, Lake d Carlton, for appellant.

      Abe Collins and Arnold & Arnold, for appellee.
   Butler, J.

The cbancery court of Sevier. County, on the petition of the Southwest Arkansas Utilities Corporation, rendered its decree in favor of the petitioner condemning a right-of-way across the orchard lands of the Patterson Orchard Company thirty feet in width, for use as a right-of-way for its lines used in the transmission and supply of electricity for public use, and adjudging to the Patterson Orchard Company for its damage the sum of $1,000. Prom this decree the Patterson Orchard Company appeals to this court, and to that part of the decree adjudging damages the Southwest Arkansas Utilities Corporation has filed its cross-appeal, and has also' asked this court to determine on its cross-appeal the question as to whether a foreign corporation engaged in the business of generating and transmitting electricity for public use, and which has complied with the laws of this State with reference to foreign corporations doing business herein, is authorized to exercise the right of eminent domain.

There are five questions presented to this court for its determination by the appellant, Patterson Orchard Company, which are as follows: (1) Could the appel-lee, a domestic public utilities corporation, clothed with the power of eminent domain, exercise that power for the benefit of a like foreign corporation which had complied with the general laws of the State prescribing upon what terms a foreign corporation might do business therein? (2) Was the purpose for which a right-of-way was sought to be condemned across the appellant’s orchard one to serve a private use and not a public use, and, if the former, was the decree of the chancery court justified by law? (3) Was the right-of-way sought to be condemned necessary in order to enable the appellant or its lessee to perform their functions and duties to the public? (4) Was the chancery court correct in decreeing to appellee a fee simple title in and to the strip of land across the orchard of appellant? (5) Was the damage awarded to appellant adequate?

On its cross-appeal the appellee contends that the damages awarded were not only adequate,, but excessive, and against the preponderance of the testimony. Ap-pellee also has asked this court to pass upon the question as to whether or not a foreign corporation, having complied with the general laws of the State with reference to a foreign corporation doing business therein and engaged in the business of generating and transmitting electricity' for public use, lias the right to exercise the power of eminent domain and condemn a right-of-way for the purpose of its business.

The appellant, in addition to the questions presented and hereinbefore stated, challenges that part of the decree of the court adjudging’ the costs against it.

The testimony in this case as to the amount of damages sustained by the appellant is conflicting, but there is no dispute as to the other facts in the case, which are substantially as follows: The Southwestern Gas ' & Electric Company, a Delaware corporation, after having complied with the statutes of this State, was engaged, among other things, in the transmission of electricity for public use, and prior to the 17th day of March, 1928, owned and operated a transmission line from DeQueen, by way of Horatio-, to Foreman, in Sevier County, Arkansas, the right-of-way of which paralleled the public highway and was adjacent thereto. This transmission line was a 33,000-volt capacity. At and before the date mentioned above, the said company was engaged in rebuilding, relocating and increasing the capacity of its high power electric transmission line running from Shreveport, Louisiana, to DeQueen, Arkansas, and had proceeded with this work until it reached the orchard of the appellant, located about three miles south of De-Queen, and, having been unable to obtain the riglit-of-wajr further across said orchard, filed its suit in the Sevier Circuit Court by which it sought to condemn said right-of-way for its own use, and, having made the deposit in the sum named by the circuit judge, obtained on said day an order permitting it to enter upon the land of the appellant for the purpose of constructing its transmission line, and, ou the same day that the order was obtained, put a large force of men on the work and proceeded with the construction of said line across the appellant’s land. On the same day, and a short time after the order had been procured and the work begun, the appellant, learning of this, filed its petition for a revocation of the order, setting up as grounds therefor the fact that the Southwestern Gas & Electric Company was a foreign corporation, and alleging that it was without authority or right to exercise the right of eminent domain or condemn a right-of-way over the appellant’s land. This petition was presented to the judge at about noon on the same day on which the order was made, namely, March 20, and thereupon the judge issued an order holding in abeyance his former order, and setting March 24 for the hearing of the original petition of the Southwestern Gas & Electric Company. A copy of this last order was duly certified by the clerk and served by the sheriff upon the superintendent of the electric company in charge of the work. At that time the electric light poles had been erected across the entire tract, a distance of three-quarters of a mile, and the wires had been unrolled and lay across the orchard and the branches of some of the peach trees, and, after the order revoking the former order was served, the workmen continued to work for about an hour or a.n hour and a half, attaching the wires to the poles, the reason given for this- apparent disobeyance of the order being that the work done after the notice of the revocation of the former order was that the wires might become tangled or damage the trees, and that they might properly be preserved.

On the 21st of March the appellant, Southwest Arkansas Utilities Corporation, was organized with a capital stock of $25,000, divided into 250 shares of the par value of $100 each. The superintendent of the gas and electric company took 248 shares of this stock and two other employees of said electric company took one share each. The purpose for which this company was organized, as stated in its charter, was to generate and transmit electricity for public use. As soon as, or a short time after, its organization and the issuance of its charter, the 248 shares taken by the superintendent of said company were issued to the gas and electric company in exchange for the transmission line extending from the north bank of Little River over the 'orchard of appellant to the substation of the gas and electric company at DeQueen, and the said line was then leased by the appellee to the gas and electric company. On the 24th day of March, the date set for the hearing of the petition of the Southwestern Gas & Electric Company, the appellee filed its intervention, alleging the purchase from the gas and electric company of all its rights in and to the transmission line constructed by it across the orchard of appellant. On the day of the hearing, after a resolution of the stockholders-of the new company had been passed, by which there was adopted for the appellee corporation the route across appellant’s orchard which had previously been selected by the gas and electric company, it filed in the offic e of the circuit clerk of the -county its complaint, which is the original complaint in the case at -bar, and the original suit and intervention were abandoned. A date was set for the hearing of the complaint and petition filed by the appellee, the 11th day of April, and on that day an order was entered authorizing the appellee to go on the lands of the appellant for the purpose of constructing and maintaining a transmission line, and requiring the appellee to make a deposit of $750 to be used in payment of such damages as might be finally assessed against it, which deposit was accordingly made. The appellant filed its answer, and asked that the cause be transferred to equity, and that it have a permanent injunction against the appellee. Upon a hearing, the chancery court entered a decree, to which reference has been heretofore made.

1. It is urged by the appellant that, under the facts disclosed, the creation of the Southwest Arkansas Utilities Corporation was but a subterfuge for acquiring a right-of-way indirectly for the Southwestern Gas & Electric Company, which could not be done directly because of a constitutional prohibition; that the sole purpose behind the organization of the appellee company was to acquire a right-of-way for the gas and electric company, and that therefore it had no right to exercise the’ power of eminent domain for such purpose. It cannot be questioned that one of the reasons, if indeed not the principal oner for the formation of the appellee company was the procurement of a right-of-way for the gas and electric company, but there was also testimony to the effect that said company was organized to serve, and has served, as a developing company for the Southwestern Gas & Electric Company, and that it will own the right-of-way over which the new transmission line shall run until such time as it shall see fit to dispose of this property, and that, while at that time it had no funds available to pay out for development purposes, it expected to get funds from the gas and electric company, or from banking firms, bond issues, or otherwise.

The legal existence of the appellee corporation is not questioned, but it is insisted that the State Constitution prohibits a foreign corporation from exercising the power of eminent domain, and that it cannot take the right as lessee of a domestic corporation, or by other means. Especially would that be true in this case, appellant says, under such circumstances surrounding its organization as are set out above, and cites the cases of State v. Scott, 22 Neb. 628, 36 N. W. 121, and Koenig v. Chicago, etc. Ry. Co., 27 Neb. 699, 43 N. W. 423, which cases apparently sustain the appellant in its contention. Appellant also cites the case of Simpson v. Teftler, 176 Ark. 1093, 5 S. W. (2d) 350, but which case can have no application to the state of facts presented in the case at bar. The. weight of authority, however, is contrary to the rules announced in the 26th and 27th Nebraska reports, supra, and sustains the position that, while a foreign corporation might not have authority to exercise the right of eminent domain in the procurement of its rights-of-way, it might cause another company of its own stockholders to be so organized as to have that power, and that, when such subsidiary company has obtained the right-of-way, it may lease its line to the foreign corporation.

In the case of Lower v. C. B. & Q. R. Co., 59 Iowa 563, 13 N. W. 718, the court said:

‘ ‘ The evidence shows that the Chillicothe & Chariton Railroad Company has leased the road in question to the Chicago,' Burlington & Quincy Railroad Company, and we think that the evidence shows that the former company was organized with the design of procuring a right-of-way and building a road to be used by the latter company. It does not, however, follow that the plaintiffs have been defrauded. The land taken has been taken for public use, and just compensation, as we must assume, has been made to the plaintiffs. Their real ground of complaint, so far as their alleged equity is concerned, is that they have not been allowed to hold the key to' the situation in such a way as to enable them to defeat the construction of the road, or obtain more than just compensation. The amount demanded by the plaintiffs was such as to show very clearly that it was graduated without any reference to the real damages sustained, but the supposed exigency of the company. Now, while it sometimes happens that a person can, under the protection of law, practice extortion, it is proper for an intended victim to resort to every legal device to defeat the attempted extortion, and, if he succeeds, his action cannot properly be called fraudulent. The plaintiffs, indeed, do not themselves seem to place much reliance upon the alleged ground of fraud. This appears from the emphasis which they place upon the necessity of construing strictly the powers of a corporation. If we could see that the plaintiffs have been defrauded by the defendants, our way would be very clear. The fact of fraud would entitle the plaintiffs to relief, and it would be of very little consequence what the defendants’ powers are. Now, we apprehend that the real question in this case is not a question of fraud, but of power. The plaintiffs, we think, have no right to relief unless they can maintain the correctness of the following proposition: The Chicago, Burlington & Quincy Railroad Company has no power to condemn the land in question. This being so, no other company can be organized with power to condemn it whose sole object is to aid the Chicago, Burlington & Quincy Railroad Company * * *. If, then, the Chicago, Burlington & Quincy Railroad Company lacks the power to build such road, it is simply because its articles of incorporation do not so provide expressly or by reasonable implication. But the Chillicothe & Chariton Railroad Company can build the road, and that, too, even though it derives all its means from the Chicago, Burlington & Quincy Railroad Company, and builds it with the express design of leasing it to that 'company. ’ ’

In the case of Postal Tel. Cable Co. of Utah v. Oregon S. L. R. Co., 23 Utah 474, 65 Pac. 735, the court said:

“After argument the demurrer was overruled by the lower court, and the appellant answered, denying the incorporation of respondent, and basing its defense principally upon an allegation that the respondent is the agent and under the control of the Postal Telegraph Cable Company of New York, a foreign corporation, which has not the power to exercise the right of eminent domain in this State, and which, through the organization of respondent, is seeking to do 'by indirection that which it cannot accomplish in its own name directly, and that in reality respondent has no separate existence from the Postal Telegraph Cable Company of New York. * * * It is also insisted by the appellant that the respondent is not a corporation either de jure or de faoto. The respondent appeárs to have complied fully with the laws of Utah. * * * Clearly it is a corporation, and, being such, it is a legal entity (citing cases), and it is granted the right to exercise the power of eminent domain. It may be true that the Postal Telegraph Company of New York is interested in respondent, but that fact does not divest from respondent any of the corporate powers with which it is clothed. There is nothing in the letter, spirit, or policy of the law which pro-Mbits the same persons from forming and conducting two or more different corporations. This same question was before the United States. Circuit Court for the District of Idaho. Postal Telegraph Cable Co. v. Ore. S. L. R. Co., 104 Fed. 623, is a case upon all-fours with the one at bar. These views are fully sustained by the following authorities (Citing eases).”

In re N. Y. L. & W. R. Co. v. Union Steamboat Co., 90 N. Y. 12, 1 N. E. 27, contains this declaration: ‘ ‘ The fact that a railroad is leased to another is not fatal to its right to have lands condemned for its benefit, upon a case of necessity shown, even though the lessee road is a corporation foreign to the State.”

In 20 C. J. 543, the rule is stated in this language: “The fact, however, that a foreign corporation is interested in a domestic corporation, or owns the greater part of its stock and controls its management, will not prevent the latter from exercising the power of eminent domain.” See also Idaho Postal Telegraph Cable Co. v. Ore. S. L. R. Co., 104 Fed. 623 (affirmed 111 Fed. 842, 49 C. C. A. 663), 90 Am. St. Rep. 705. “The fact that the condemnation of the land in question is also earnestly desired by a foreign corporation and will inure largely to its benefit, furnishes no reason for denying the relief asked for by the petition, provided it has brought itself within the language of the statute authorizing such proceeding.” In re Application of Staten Island Rapid Transit R. Co. etc., 103 N. Y. 251, 8 N. E. 548; In re N. Y. L. & W. R. Co., 99 N. Y. 21, 1 N. E. 27.

The provision of the Constitution of the State of Nebraska with reference to the rights of foreign corporations exercising the right of domain, as quoted and construed in the case of Koenig v. Chicago, etc., Ry. Co., 27 Neb. 699, 43 N. W. 423, and State v. Scott, 22 Neb. 628, declares that no foreign corporation can exercise the right of eminent domain or acquire a right-of-way or real estate for a depot or other uses, and in the ease of Koenig v. Chicago, etc., Ry. Co., supra, the court, referring to a foreign railroad corporation, said: “If it cannot acquire, then it is forbidden to hold what it is prohibited from acquiring, because the effect of the denial of the right of acquisition is to prevent it from taking the property, and, as it cannot do indirectly what it is prohibited from doing directly, it cannot acquire and hold a leased line and thus evade a plain constitutional prohibition.” There is no such prohibition in the Constitution of this State, and it is clear that, when a foreign corporation has complied -with the laws of this State with reference to doing business therein, it is authorized to perform all acts and conduct its business in the manner authorized by its charter, except in the case of a plain constitutional restriction.

Section 11, article 12, of the Constitution of Arkansas is as follows:

“Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law * * *. They shall be subject to the same regulations, limitations and liabilities as like corporations of this State, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this State; nor shall they have power to condemn or appropriate private property.”

It will be seen from this language that it is materially different from that of the Constitution of the State of Nebraska, and the only restriction on the powers of foreign corporations doing business in this State is contained in the last clause, to-wit, “nor shall they have power to condemn or appropriate private property.” Since the power to acquire rights-of-way by purchase, lease, or otherwise, is not excepted from the general powers granted, it follows that a foreign corporation may exercise such power. The privilege granted a foreign corporation to do business in this State would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of that business, and, as it is a necessary incident to the business of companies engaged in the transmission of electricity for public use to acquire rights-of-way, this authority must be deemed to have been granted under its general powers, unless expressly or by necessary implication prohibited in terms expressed in the Constitution, and which it does not do.

We therefore conclude from the language of § 11, article 12, of the Constitution of Arkansas, supra, that the appellee, the legality of whose corporate existence is not questioned, under the terms of its charter had the power to condemn the right-of-way over the lands of appellant and to lease its rights so acquired to a foreign corporation, and we can see no reason for a denial of this right, although it might have been that it was created, among other things, for the purpose of acquiring that right for the benefit of a foreign corporation doing business in this State. If that corporation scould acquire a right-of-way by purchase, it certainly could do the same by any other method, unless such method was prohibited, and the only method which may appear to be prohibited (but which we do not now decide) is that it might not acquire the right-of-way by the exercise of the power of eminent domain. The conclusion we have reached appears to us to be supported by the authorities hereinbefore cited. We therefore hold that a domestic corporation, the business of which, as expressed in its charter, is'to generate and transmit electricity for public use, may lease the right-of-way secured by it to a foreign corporation engaged in a similar business, which has complied with the laws of this State and is doing business therein. And the act- of such domestic corporation in securing such right-of-way by the exercise of its power of eminent domain cannot be questioned, except for fraud shown, although the principal motive for its incorporation was to secure the right-of-way for such foreign corporation, which had been unable to secure it for itself, even when the incorporators of the domestic corporation were employees of and the greater part of its capital stock immediately transferred to said foreign corporation. There are, perhaps, some unusual circumstances connected 'with this case, but it nowhere appears that the appellant has been defrauded in any way. The Southwestern Gras & Electric Company merely resorted to a proper legal device to obtain the right-of-way which it thought necessary for the conduct of its business and which it had been unable to obtain by any.other method from the appellant.

2. Was the purpose for which the right-of-way was sought, to he condemned across the appellant’s orchard one to serve a private use and not a public use? The learned chancellor, on this proposition, made a specific finding of fact in the decree rendered by him as follows: ‘ ‘ The erection of the transmission line on the right-of-way in controversy will serve a public need and purpose either in the hands of the plaintiff in this suit or the Southwestern Gras & Electric Company.” This is a question of fact which has been determined adversely to the contention of the appellant, and which must be sustained, unless it is shown that it is contrary to the clear preponderance of the testimony. It is conceded by the appellee that the right of eminent domain could not be exercised if it is shown that it is being fraudulently used to take private property for a private use instead of a public use. But it is contended by it, and we think properly, that nowhere in the testimony in this case is there any such showing of fraud intended or practiced. It may be true that the sole use to which the appellee seeks to put the property condemned is for the benefit of the Southwestern Gas & Electric Company, but, as that company is extensively engaged in the generation and transmission of electricity for public use, this, of itself, in our opinion, is sufficient to show that the use intended was a public use, and, while the principal immediate purpose was to serve the Standard Pipe Line Company and the American Cement Company, it is also apparent that the increasing needs of the public made necessary the erection of a high voltage power line, and that the line in controversy is used and operated as a part of the transmission line of the Southwestern Gas & Electric Company, and is serving a large number of the citizens of this State. As before observed, this is a question of fact which has been found by the chancellor, and which we think is not against, but supported by, the preponderance of the testimony, and the cases cited by the appellant are not applicable to' the facts disclosed in this record.

3. Was the right-of-way sought to be condemned necessary in order to enable the appellant, or its lessee, to perform their functions and duties to the public 1 This also is a question of fact upon which the chancellor has passed, and we find no evidence that would warrant us in holding that the decision of the 'chancellor was not correct. It is true the Southwestern Gas & Electric Company owned and operated a line near the point where the lands in question were taken, of the capacity of 33,000 volts, but the mere fact that it was going to a great expense in doubling the capacity of that line is persuasive that that company at least thought that the new construction was necessary. We can see no reason why, in enlarging and relocating its lines, the said Southwestern Gas & Electric Company or its subsidiary corporation, appellee here, should be compelled to follow the old transmission line with its meanderings and angles, when, from the nature of the increase made in the transmission capacity, it was apparent that the old rig’ht-of-way and equipment were insufficient. While the Legislature has said that a right-of-way must be necessary for the exercise of the rights of the corporation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corporation itself, and, unless it clearly appears that such discretion has been abused and its actions arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed. In this case, while it might have been, and perhaps was, more convenient for the gas and electric company to make some changes in the route followed, this alone would not be a warrant for holding that its action in condemning the right-of-way in question was an unnecessary use of the power exercised by appellee corporation for its benefit. It is onr opinion that the decree of the chancellor in this particular was correct.

4. Was the chancier}'' court correct in decreeing to appellee a fee simple title in and to the strip of land across the orchard of appellant? The appellant contends, and the appellee seems to admit, that the chancellor by his decree divested the fee simple title in and to the strip of land taken across the land of appellant from the appellant and vested it in the appellee. We have examined the decree, and are unable to discover that the chancellor has rendered any such decree. In the amendment to the complaint it is alleged by appellee that the only use it has for the right-of-way is that it might have the right of ingress and egress for the men and equipment used in the construction and maintenance of the transmission line, and that it would not be necessary to cut and remove any peach trees, and that the cultivation and use of said land by the appellant need not be interfered with in any manner except in so far as the presence of said poles on said land would interfere with same, and, after the construction of the line, appellee would not have occasion, except in some unforeseen emergency, during the life of the poles (which was estimated to be from fifteen to twenty years), to enter upon the land, other than to send one of its men on foot along the transmission line to inspect same about twice a month; but it alleged that it desired the exclusive use of all appellant’s land if it had to pay the full value of same for damages for the right-of-way acquired.

In the decree the court merely held, in the declarations made preliminary to the decree proper, “that the plaintiff should be granted the right to condemn the right-of-way as prayed for in the complaint, upon paying to the defendant damages in the sum of $1,000 on account of the taking of said right-of-way.” Following that, the right-of-way is described, and then comes the decree proper, which is as follows: ‘ ‘ It is therefore by the court considered, ordered and decreed that the plaintiff be and it is hereby granted the right-of-way as hereinbefore described across the lands of defendant, for the purpose of constructing, maintaining and operating said transmission line, conditioned, however, upon the payment to the defendant by the plaintiff, within thirty days from this date, (of) the sum of $1,000, covering* all damage sustained by the defendant on account of the taking of said right-of-way by the plaintiff.” By this decree an easement only is created, and the appellee is necessarily granted the exclusive possession of the property to the extent that such possession is necessary for the erection, operation and maintenance of its line, and to no other or greater extent. By admissions of the appellee in its amended answer, it is shown that the exclusive possession granted was only necessary for the time during the actual erection of the line, or in the case of some unforeseen emergency, -and that the extent of the possession absolutely necessary would be only for the purpose of occasional trips of inspection by its employees. In no case can the fee simple title in its true sense be vested in the corporation exercising the right of eminent domain, for, at whatever time the purpose for which the right-of-way was taken had been accomplished and its use terminated, the possession and all other incidents of ownership would revert to the original owner. It is true, the necessary uses for a parcel of land condemned may be of such nature as to preclude any possession except that of the party exercising the right to condemn, and to that extent an estate in the nature of a fee would be acquired; as, for instance, a railroad corporation might condemn a plot of ground for á depot. The purpose for which this land would be used would be such that the owner could not exercise any possession over it that would be consistent, and not interfere, with the rights of the railroad company, so that it would necessarily have the exclusive possession for all purposes. But in all other cases, except such as of the same nature of the possession stated just above, the owner would have also the right to the possession, subordinate to the paramount possession of the condemnor, and might exercise any and all rights of ownership, except such as were inconsistent, and an interference, with the easement granted.

In the instant case the appellee has the exclusive possession of the strip of land taken for all purposes necessary to carry into effect and maintain the transmission line, and to no other extent. Therefore the appellant still and does have the right to enter upon the same at all reasonable times and for all reasonable purposes not inconsistent, or in interference, with the rights of the appellee. Appellant may continue to grow his peach trees, cultivate them, and gather the fruit, so long as it does not interfere with the property of the appellee or its employees in the performance of their legitimate duties.

The appellee contends that it should not be charged with the full value of the land actually taken, but it has cited a sufficient answer to that contention, namely, ‘ ‘ the company’s remedy in such cases is to condemn no more than it needs..” Ry. v. Combs, 51 Ark. 324-328, 11 S. W. 418. This court has recognized in a number of cases that, in the acquirement of a right-of-way, nothing is obtained save an easement, and we see no reason to now hold otherwise. See Ry. v. Combs, supra; Baucum v. Ark. Power & Light Co., ante, p. 154.

5. Was the damage awarded the appellant adequate? The appellant insists that the entry made upon land and the erection of the transmission line across it was unlawful, and that the improvement inured to its benefit, and therefore, in awarding the damages, the court should have ascertained the value of the whole line as constructed on appellant’s land, and awarded that amount in addition to the other damages given. We think the position of the appellant is untenable. While the line may have been erected without sufficient authority at that time (which we do not here decide), still, in our opinion, this is a matter, if appellant is entitled to damage on tliat score, in which its rights may be fully protected in a proper proceeding, and it is not entitled in this case to the damages claimed.

The appellee, on its cross-appeal, also complains of the award of damages made by the court, on the theory that the same were excessive, and not warranted by the testimony. There were about three acres of land actually taken in the right-of-way, and, without discussing in detail the testimony as to its value and the consequential damage to the orchard of appellant as a whole, we think it is sufficient to sustain the finding of the chancellor; and, as the appellee is entitled to the full value of the three acres taken and such damage to the remainder of the orchard as might be sustained by reason of the erection of the transmission line across same, we think, under all the circumstances in the case, that the finding of the chancellor is not unreasonable or against the clear preponderance of the testimony.

6. On its cross-appeal the appellee asks us to decide the question as to the right of the Southwestern Gas & Electric Company to condemn the right-of-way in controversy. Inasmuch as the 'Southwestern Gas & Electric Company is no longer a party to this suit, we think that question is not properly presented, and, as its decision is not necessary for the decision of this case, we expressly refrain from passing upon that question.

There remains but one matter of which the appellant complains, namely, that the chancellor abused his discretion in adjudging the costs against it. It is our opinion that § 3999 of Crawford & Moses’ Digest does not limit the discretion of the chancellor, for in that section the deposit is “to pay the owners the amount assessed and such costs as may, in the ^discretion of the court, be adjudged against it.” We think the -statute leaves the discretion just where it found it, and we cannot say that any abuse of that discretion has 'been made in this case. Doubtless the chancellor had complete knowledged of all the circumstances surrounding the facts in the case, and perhaps thought the appellant had been given a liberal amount of damages, and that it would be fair to compel it to pay the costs.

As we view this case and the decree rendered in the court below, we are of the opinion that the decree is in conformity with the conclusions we have reached, and it is therefore in all things affirmed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Adams v. State.
    Opinion delivered September 23, 1929.

      Colemcm & Reeder, for appellant.

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

(after stating the facts). It is first earnestly insisted by counsel for the defendant that the court erred in overruling his motion for a change of venue. The petition for a change of venue was in statutory - form, and contained the affidavits of numerous qualified electors who were actual residents of the county and not related to the defendant in any way. The court found that one of the supporting affiants was a credible person, but that the others were not. That is to say, the court found that only one of the supporting affiants had knowledge as to the existence or nonexistence of prejudice in the minds of the inhabitants of the whole county. The other affiants, on cross-examination, admitted that they only knew of the existence of prejudice against the defendant in certain portions of the county. The entire county was covered by them, but no one of them knew of the existence or nonexistence of prejudice against the defendant in all parts of the county. One of the supporting affiants was not produced by the defendant in court, and was not examined .at all.

Section 3087 of Crawford & Moses’ Digest provides for a change of venue in any criminal case whenever it shall appear, in the manner hereinafter provided for, that the minds of the inhalbitants of the county in which the case is pending- are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Section 3088 provides for the filing of a petition setting forth the facts, verified by affidavit, and that the petition be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county, and not related to the defendant in any way. The application for change of venue in a criminal case is addressed to the sound discretion of the court, and this court 'will not overrule the ruling of the trial court denying an application for a change of venue, unless it is made to appear that there has been such an abuse of discretion as to constitute a denial of a substantial right. White v. State, 83 Ark. 36, 102 S. W. 715; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376; and Padgett v. State, 171 Ark. 556, 286 S. W. 810. Numerous other cases might be cited to the same effect, but the rule is so firmly established in this State that a further citation of authorities is unnecessary.

These authorities also establish that the court may examine the supporting affiants to determine whether or not they are credible persons within the meaning of the statute. The examination is made for the purpose of showing their means of knowing the condition of the minds of the inhabitants of the county. The statute requires the petition to state that the minds of the inhabitants of the county in which the case is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein, and the truth of the allegations in the petition must be supported by the affidavits of two credible persons. This means that the supporting affiants must know the condition of the minds of the inhabitants throughout the whole county. Otherwise, they will not be credible persons within the mean-rug of the statute. The petition itself and the supporting affiants must conform to the requirement of the statute, and it was within the province of the court, in the exercise of a sound discretion, to refuse to grant a change of venue unless two supporting affiants were credible persons within the meaning of the statute, and that meant that each of them, upon examination by the court, must show that he had knowledge of the condition of the minds of the inhabitants throughout the whole county as to the existence or nonexistence of prejudice -against the defendant. One of the supporting affiants was not produced by the defendant, and for that reason the court did not err in holding that he was not a credible person within the meaning of the statute. It was the duty of the defendant to have produced in court this affiant for the purpose of enabling the court to examine him to determine whether or not he was a credible person.

It is next insisted that the court erred in not directing a verdict in favor of the defendant. , The indictment was returned under § 688 of Crawford & Moses’ Digest, which provides a penalty for false entries or statements in bank books. Without setting forth the entire section, it in effect provides that any person who shall knowingly and willfully make or cause to be made any false entry in the books of any bank, with the intent to deceive the Bank Commissioner or the examiner, shall be deemed guilty of a felony. This statute was passed by the Legislature of 1913, and is a part of a statute creating the State Banking Department and providing for the organization and control of banks. Prior to the passage of this statute there was an old statute on the subject, which is § 24-74 of Crawford & Moses’ Digest. Among other things it provided that every person who, with intent to defraud, shall make any false entry or shall falsely alter any entry made in any book of accounts by any banking organization within the State, shall, on conviction thereof, be punished as for forgery.

In construing this statute in Mears v. State, 84 Ark. 136, 127 S. W. 951, it was held that the statute makes an intent to defraud an essential element of the offense charged. Again, in Quertermous v. State, 95 Ark. 48, 127 S. W. 951, the court said that the word “falsely,” as used in the statute, not only imports an element of fraud or bad faith, but goes further and relates to the act. The court quoted with approval from the opinion of Judge Thayer in United States v. Crecilius, 34 Fed. 30, in which, in construing a statute on the same subject passed by Congress, regulating national banks, the learned judge said: ‘ ‘ The statute evidently was enacted to prevent bank officials and officers from concealing the actual financial condition of national banking associations, by means of a falsification of any of the books of account or statement or report which they are by law required to make. ’ ’

In construing the act of Congress, the Supreme Court of the United States held that it cannot be a false entry to make a recital on the books of the bank which is indeed the truth. Coffin v. U. S., 156 U. S. 432, 15 S. Ct. 394; 162 U. S. 664, 16 S. Ct. 943; Graves v. U. S., 165 U. S. 324, 17 S. Ct. 373; and Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235.

Under our statutes the crime may be committed personally or by directing the false entry to be made. If the entry upon the books of the bank of the matter contained in the deposit «lip is not true, it is a false entry. If it represents an actual transaction, it does not fall within the denunciation of the statute.

This brings us to a consideration whether the transaction in the present case actually took place and was entered upon the books of the bank actually as it occurred. The jury had a right to consider all the facts connected with the transaction; and, when this was done, we think that it might have found that the entry was a false one within*, the meaning of the statute, and made with the intent to deceive the bank examiner. The deposit was made by the defendant on the 30th day of June, 1926, and an examination was made by the bank examiner about a month thereafter. The entry on the books of the bank .showed a deposit slip in favor of D. D. Adams, Sr., which was evidenced by a draft drawn by him for $75,000. If Adams had had the power to draw the draft in question, the transaction would have been a genuine one, and there would not have been any false entry upon the books of the bank. The evidence shows, however, that the entry did not show the real transaction. Adams was not entitled to a credit upon the draft drawn by him until it was also signed by Scroggins and Bridewell. Upon this account the transaction was not entered upon the books of the bank in accordance with the actual facts in the case, and -the jury might have found that the entry was a false one. Under the circumstances, the jury might also have found that the transaction as it was entered upon the books of the bank was made with the intent to deceive the bank examiner. The entry did not represent a transaction as it actually existed, and was therefore calculated to deceive and did actually deceive the bank examiner when he examined the books .of the bank. Therefore we do not consider this assignment of error well taken.

The next assignment relates to the error of the court in excluding the testimony offered by the defendant as to his intent in the matter. We have copied this in its entirety in our statement of facts, and need not repeat it here. Under the terms of the statute itself, an intent to deceive the Bank Commissioner or bank examiner must be alleged and proved. The statute, by its very terms, is designed to punish only those officers of a bank who make or cause to be made false entries in a book of accounts with the intent to deceive the Bank Commissioner or bank examiner. Of course, if the false entry is calculated to deceive the bank examiner, the making of it in the books of the bank with the intent to deceive him is all that is necessary to bring the act within the meaning of the statute. This is apparent from our own cases above cited, as well as from the following cases: United States v. Britton, 107 U. S. 655, 2 S. Ct. 512; Coffin v. United States, 162 U. S. 664, 16 S. Ct. 943; Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235; Cummins v. United States (Cir. Ct. of Apppeals, 8th Circuit), 232 Fed. 844; Galbreath v. United States (Circuit Court of Appeals, 6th Circuit), 257 Fed. 648; and United States v. Reece (District Court, D. Idaho, E. D.) 280 Fed. 913.

Our statute expressly makes the intent of the person charged with deceiving the bank examiner an essential element of the offense, and this must be alleged and proved. The excluded evidence might have shed light upon the intent of the defendant under the circumstances. It was within the province of the jury to draw all legitimate inferences from the evidence, and that excluded might, in the minds of the jury, have shed light upon the fact whether or not the defendant intended to deceive the bank examiner by causing a false entry to be entered upon the books of the hank. The defendant was entitled to have had all the facts and circumstances connected with the transaction shown in evidence before the jury in order to enable it properly to determine the matter.

Therefore we are of the opinion that the court erred in refusing to allow defendant’s counsel to introduce the excluded evidence before the jury, and for that error the judgment will be reversed, and the cause remanded for a new trial.


author: Haet, C. J.,

text:
    Adcock v. State.
    Opinion delivered September 23, 1929.

      Will Steel and Pratt P. Bacon, for appellant.

      Sal L.. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Haet, C. J.,

(after stating the facts). It is earnestly contended by counsel for appellant that the circuit court erred in refusing- to continue the case on account of the illness of one of his attorneys. The record shows that both of the attorneys for the defendant represented him at his examining trial. After the indictment was found, the case was set for trial at an adjourned term of court. Both of his attorneys were present, but one of them represented that he was ill with appendicitis, and had been in bed all the day before. The court refused to continue the case, and both the attorneys actively participated in the trial. The record shows that the defendant was ably and skillfully represented at the trial, and that no injury resulted to him on account of the illness of one of his attorneys. Under these circumstances it cannot he said that the circuit court abused its discretion in overruling’ the defendant’s motion for a continuance. Holmes v. State, 144 Ark. 617, 224 S. W. 394, and G. H. Robinson Co. v. Hudgins Produce Co., 138 Ark. 500, 212 S. W. 305.

It is next contended that the court erred in permitting- Jim Patterson to testify that, immediately after they left the scene of the shooting, Minor Patterson beg-an to pray for the defendant, Horace Adcock. Witness said that they had not gone a hundred yards when the praying commenced. The record shows that, when objection was made to the testimony, the court stated that he would overrule the objection for the present. The witness drove home with his'uncle, and telephoned for a doctor. The physician came, and at once carried Minor Patterson to a hospital at Texarkana. At about 7 :30 o’clock in the evening the deputy prosecuting attorney came and took down his dying statement, after Patterson had declared that he knew he was going* to die. He did die the next morning at about 7:30' o’clock. The physician who attended him testified that he was shot on the right side, between the eighth and ninth ribs, and that the bullet lodged in the muscle. The physician said that the bullet was calculated to produce death. It is within the province- of the court to hear the circumstances under which the alleged dying declarations were made and to determine whether they are admissible. After they are made, it is within the province of the jury to weigh them and the circumstances under which they were made, and-give them such credit upon the whole evidence as they may think they deserve. Jones v. State, 88 Ark. 579, 115 S. W. 166; Robinson v. State, 99 Ark. 209, 137 S. W. 831; Rhea v. State, 104 Ark. 162,147 S. W. 463; Stewart v. State, 148 Ark. 540, 230 S. W. 590; and Lowmack v. State, 178 Ark. 128, 12 S. W. (2d) 909.

In these cases the court has held that the inference that the declarant was under a sense of certain and speedy death may not only be found from what the de-clarant stated on the subject, hut also' from the character of the wound itself and the fact that he died within a short time, in connection with the other attendant circumstances.

In the first place, the trial court admitted the testimony of the witness to the effect that the deceased had prayed for the defendant without first ascertaining whether the proper foundation had been laid for admitting the testimony as a dying declaration, but that this ruling- was temporarily made. The record shows that soon thereafter the trial court did hear testimony on this point, and made an affirmative finding to the effect that a proper foundation for a dying declaration had been laid. He did not rule out the testimony referred to, and it is fairly inferable that he considered it admissible as a dying- declaration. It was admissible for that purpose as a declaration showing the state of mind of the deceased to the defendant at the time of the shooting. Hence we do not think that the court erred in admitting this testimony;

It is next insisted that the court erred in allowing witnesses to testify that, on the next day after the shooting, they examined the scene, and allowed them to describe the condition of the ground with reference to the wagon tracks across the road and tracks of the team hitched to the wagon. It is claimed that, the shooting-having occurred on a public road, the condition of the ground easily changed, and that the testimony could shed no light as to the appearance of the ground at the time of the shooting. This was a matter for the jury. The evidence showed that the shooting occurred on a country road which was not traveled much. The jury was the judge of the credibility of the witnesses, and could tell from their descriptions of the ground whether or not there had been sufficient passage of other teams and vehicles to materially change the condition of the ground from that which existed at the time of the shooting.

It is next insisted that the court erred in admitting the oral testimony oí the witness Cook as to the dying declaration, which had been reduced to writing. It is insisted that the written declaration is the best evidence. The court only admitted the testimony of Cook to show that the dying declaration was made, written down, and signed by the deceased at a time when he thought he was going to die, and that his death was immediate and impending. Under the authorities above cited, the testimony of Cook was necessary to lay a proper foundation for the dying declaration.

It is next insisted that the court erred in allowing Dr. Allen to testify as to the location of the bullet, because an X-ray picture had been made, and the X-ray photograph would be the best evidence of the location of the bullet. We do not agree with counsel in this contention. The physician had practiced medicine for more than twenty years, and was competent to testify not only as to the location of the wound, which, he could do from actual observation, but also as to the location of the bullet, which he could know by probing in the wound. The X-ray photograph would only show the location of the bullet. If the body of the deceased 'showed no place of exit of the bullet, it was necessarily lodged somewhere within the body. The exact location was not material, because the point of entrance could be observed, and the physician testified that the wound was calculated to produce death, and it actually did produce death on the next-morning after the deceased was shot. Hence no‘prejudice could possibly have resulted to the defendant from the admission of this testimony.

Finally, it is insisted that the court erred in giving State’s instruction No. 9, which reads as follows:

“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter,.or that the accused was justified or excused in committing the homicide, provided you find from the evidence on the whole case, beyond a reasonable doubt, that the defendant is guilty.”

In this connection it may also he said that the court gave the defendant’s instruction No. 6, which reads as follows:

“In this case the killing is admitted, and the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounts to manslaughter, or that the accused was justified or excused in committing the homicide; and you are further instructed, however, that upon the whole case the burden is on the prosecution to establish defendant’s guilt beyond a reasonable doubt. ’ ’

It is insisted that the instructions are conflicting. We do not think so. The killing was admitted by the defendant while he was on the stand, and his theory was that it was done in necessary self-defense. The court properly gave to the jury § 2342 of Crawford & Moses’ Digest, and qualified it by telling the ,jury*that the burden of the whole case rested upon the State. The fact that the defendant admitted the killing, and that it was established by the undisputed proof to have been done by the defendant, did not relieve the State from establishing the guilt of the defendant by evidence beyond a reasonable doubt, because in any event the burden of proof on the whole case rested upon the State. Tignor v. State, 76 Ark. 489, 89 S. W. 96; Parsley v. State, 148 Ark. 418, 230 S. W. 587; and Sheppard v. State, 160 Ark. 315, 254 S. W. 657.

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


author: Smith, J.

text:
    Parker v. State.
    Opinion delivered September 23, 1929.

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

Appellant was convicted under each of the two counts of the indictment upon which he was tried, the first charging him with burglary and the second with grand larceny. It was alleged that he had broken into a building occupied by the Kroger Grocery & Baking Company, and had stolen and carried away a quantity of cigars, tobacco, cigarettes, bacon and ham.

The motion for a new trial contains a number of assignments of error, all of which have been considered, although no brief has been filed on appellant’s behalf, but the only assignments of error which appear to be of sufficient importance to require discussion are the following:

Appellant was jointly indicted with one Ernest Emory, and a motion fo,r a continuance was filed, which alleged the absence of Emory, and recited that, if he were present, he would testify “that defendant did not commit any of the acts of burglary or any of the offenses as charged in the indictment herein.” The motion contained the admission that no subpoena had issued for this witness, but it was explained that this omission was due to the fact that it was known to defendant that a warrant of arrest for Emory was in the hands of the officers, and it was believed that, if this warrant was not served, a subpoena could not be.

This allegation was, of itself, sufficient to sustain the action of the court in overruling the motion for a continuance^ Defendant had no right to demand the postponement of his trial until the presence of a fugitive from justice could be secured. There was no showing that the attendance of this witness could ever be secured. Harris v. State, 169 Ark. 630, 276 S. W. 361. Moreover, the motion contained only a statement of a conclusion of law. There was no recital of the facts concerning which the witness, if present, would testify.

The manager of the grocery company testified that a list of the goods received by the officers who arrested appellant had been furnished him, and he identified these goods as having been taken from his store. There were certain marks which made the identification possible. Objection to this testimony was properly overruled, as the testimony of the officers who delivered the goods to the manager of the store identified them as the goods found in a room occupied by appellant at the time of the commission of the crimes charged.

After the prosecution had announced that the case was closed, appellant asked the court.to direct a verdict in his favor on the ground that the evidence was insufficient to support a conviction. Thereupon the prose-outing attorney asked permission to 'offer further testimony, and, when permission was given, the prosecuting attorney himself took the stand and testified to a confession of guilt made to him, which appears to have been freely and voluntarily made. Appellant had not at that time offered any testimony in his own behalf.

The practice is well settled that the trial court has a wide discretion in the control of the order of introduction of testimony, and that a judgment will be reversed for rulings in this regard only when ah aibuse of this discretion resulting in prejudice has been shown. There appears to have been no abuse of discretion in the instant case. Stepp v. State, 170 Ark. 1061, 282 S. W. 684.

The evidence is legally sufficient to sustain the judgment, and, as no error prejudicial to appellant was committed at the trial, the judgment must be affirmed, and it is so ordered.


text:
    Arnold v. State.
    Opinion delivered September 23, 1929.

      Fred A. Isgrig, Walter A. Isgrig and Scipio A. Jones, for appellant.

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

In the small hours of the morning Leon G-ary was called to the door of his home, in the city of Little Rock, and shot three times, through the wire screen of the door, and, when he fell, his assailant entered the room and shot, him twice more.

A sergeant of the police force, who was on duty at the police station, testified that he received a call at 2:30 a. m., advising him of the shooting, and Gary was carried to the city hospital where he died at 7 that morning. Before dying he made a statement, in which he said that he was fully aware of his impending death, and that appellant, Byron Arnold, had shot him, and that he had fully recognized Arnold as his assassin.

A nephew of the deceased, and a sister-in-law, who both resided at the same house, testified that they too recognized Arnold as the man who had done the shooting. Other testimony in the case leaves little room to doubt that Arnold shot and killed Gary.

Arnold was a member of an orchestra, of which James Bryant was the leader, and they appear to have been intimate friends. These men, as well as the deceased, were colored. Arnold and Bryant went to a cafe to g*et some food, some time after midnight, and there is a conflict in the testimony as to whether they were accompanied there by a young colored woman named Annie May Cannon. At any rate, they were with this woman at the cafe, and a controversy arose over the conduct of Arnold and G-ary in her presence, which resulted in a fight, during the course of which Arnold was cut several times with a knife. He testified that he received a wound in his throat, one on his body, which was only prevented from being serious by the protection which a belt afforded, and another in his right hand. This latter appears to have been the most serious of them all, although each wound was dressed after Arnold had been carried to the hospital and the attendance of a surgeon had been secured, after some delay. The testimony is conflicting as to who was the aggressor in the fight at the cafe. Arnold also had a knife in this fight, but did not use it with any effect.

Arnold was carried to a hospital in an ambulance, and was escorted there by the 'Cannon woman, and was followed by Bryant, who went in an automobile. Arnold requested Bryant to return the Cannon woman to her home, and she was finally induced to go, but, when they came near her home, she demanded that she be returned to the hospital, and this demand was -complied with. When they returned to the hospital Arnold asked Bryant to again take the woman home, as he feared his wife would come to the hospital and see her, and the woman was again carried away. After leaving the woman, Bryant drove to Arnold’s home, where Arnold was returned in the ambulance, and was met by the members of his household, including his mother.

The testimony on the part of the State is to the effect that Arnold was in a towering rage from the time he was cut until after he had shot Gary, and that he said to the surgeon who dressed his wounds that he would have another patient before day. Bryant was asked by Arnold’s mother, after arriving at Arnold’s home, to restrain Arnold and prevent him froim killing Gary. Arnold went to the ’phone and called the home of Gary, and told Gary it was Bryant speaking. When Bryant asked Arnold why he had done this, Arnold stated that he wanted to know if Gary was at home. This incident increased the apprehensions of the persons present, and they insisted that Arnold go to bed, but he took his pistol out of the house, saying he was going to hide his gun. When he returned he was told to wash the blood off his hands and face, and his wife began to heat some water for this purpose. Arnold went to bed, but, before the water was hot, left his bed and ran out of his room. Arnold’s wife called out to Bryant that Arnold had gone, and she and Bryant followed him. A man named McCoy, who was also at the house, went to his car to overtake Arnold, but found that the car key was not in the car. Bryant and Arnold’s wife followed Arnold, but did not overtake him, and, when they came near Gary’s home, which was about eight blocks away, they heard three shots in rapid succession, and, after a short interval, two more. They met Arnold returning from the direction of Gary’s home, and Bryant testified that Arnold said he had killed Gary, lie further testified that he and Arnold’s wife accompanied Arnold home, and, after arriving there, a hurried conference was held, in which it was agreed that all of those present would say that Arnold went to bed after returning from the hospital, and had not again left home that night.

When put upon trial for killing Gary, Arnold sought to prove an alibi, and all the persons at his hoime that night, except Bryant, testified that Arnold did not leave his home after returning from the hospital.' The police arrested Bryant in connection with their investigation of the killing, and he, too, stated, at the time of his arrest, that Arnold did not leave home that night. Upon his examination as a witness at the trial Bryant admitted that he had made this statement, and that he had made other statements which he then admitted were false. He was asked by the prosecuting attorney if he had given the same testimony before the grand jury as he was then giving before the trial jury, and, when he answered that he had, counsel for Arnold demanded the right to examine the minutes of the grand .jury, in order that they might determine whether this statement was true-. This request was denied, and an exception was saved to that ruling.

No error was committed in this ruling. The statute (§§ 2980 and 2981, C. & M. Digest) requires that every grand jury appoint one of its members to be the clerk thereof, whose duty it is to preserve and keep minutes of their proceedings and of the evidence given before them, and to deliver these minutes to the prosecuting attorney when so directed by the grand jury. The testimony given by the witness before the grand jury was, of course, immaterial, and the trial court would, no doubt, have ordered it stricken from the record had this been asked, but the request made was that these minutes be submitted to counsel for defendant for their inspection.

This is a right which has never been accorded to persons accused on trial in this State.

Professor Wharton, in his work on Criminal Evidence, § 564a, page 1157, says that the general rule is that an accused in a criminal case has no right to an inspection of the minutes of the grand jury, either before or during the trial.

In the case of State of Ohio v. Rhodes, 81 Ohio State 397, 91 N. E. 186, this question was well considered by the Supreme Court of Ohio, and the conclusion reached that a person charged with a crime had no such right, and that it was error for the trial court to order the. State’s attorney to deliver minutes of the grand jury, or a transcript of the evidence so taken, to the defendant, or his attorney, for inspection. The notes to this case, which is annotated in 27 L. R. A. (N. S.) 558, show, as stated by Professor Wharton, that this is the general rule.

The Cannon woman was subpoenaed as a witness by the State, but was not called in that behalf, but she was called as a witness for the defense, and, in the course of her examination, she was interrogated concerning conversations she had had with Bryant as they journeyed to and from the hospital. It was sought by these questions to contradict the testimony of Bryant, who had testified on his cross-examination that he did not have a pistol, and that he did not make any threats against the deceased. Had she 'been permitted so to do, she would have testified ‘ ‘ that Bryant told the witness, while at the hospital, and before the deceased was shot, that he had an automatic gun at the time, and was going to shoot the deceased. ’ ’

It is insisted that this testimony was competent, both to impeach the testimony of Bryant and to support the defense of an alibi, by showing that a person other than the defendant had both the means and the intention to commit the crime with which the accused was charged.

We think no error was committed in the exclusion of this testimony. Except for this offer, there was no attempt to show that Bryant had killed G-ary, and the testimony, if admitted, would not have tended to show any bias or prejudice on the part of Bryant against Arnold. It would have had the opposite effect, of showing that Bryant was Arnold’s partisan and that he resented the treatment which Arnold had received at the hands of the deceased.

Cases are cited to the effect that, where one is charged with a crime, and evidence of a circumstantial nature is offered tending to show his guilt, it is competent to prove that a third person had made threats that he would commit the same crime. It may ¡be answered, however, that the evidence in. this case is not circumstantial in its nature. On the contrary, it is as positive as testimony can' be, that -Arnold killed Gary, and there was no attempt to show, except the proof above referred to, that Bryant committed the crime.

In the case of McElroy v. State, 100 Ark. 312, 140 S. W. 8, it was stated:

“As a general rule, in a case where the guilt of the defendant is shown by evidence which is largely circumstantial in its nature, any testimony tending to show that some other person may have committed the crime is admissible. But, where nothing else appears connecting third persons with the commission of the crime, threats made by them against a deceased are inadmissible. Before such threats made by third persons can be introduced in evidence, facts and circumstances must be adduced connecting or tending to connect such persons with the crime itself” (Citing authorities).

The examination of Bryant by appellant’s counsel was therefore upon a collateral matter, and his answers, whether true or false, concluded the inquiry upon that subject. Williams v. State, 175 Ark. 752, 2 S. W. (2d) 36; Bacquie v. State, 171 Ark. 589, 285 S. W. 18; Perkins v. State, 168 Ark. 710, 271 S. W. 326; Jordan v. State, 165 Ark. 502, 265 S. W. 71; McAlister v. State, 99 Ark. 604, 139 S. W. 684.

At the conclusion of all the testimony, counsel for defendant requested the court to charge the jury that defendant was either guilty of murder in the first degree or was not guilty of any crime, and an exception was saved to the action of the court in charging upon murder in the second degree. If an error at all, this was one of which the defendant could not complain, as he was not prejudiced thereby. McGough v. State, 113 Ark. 301, 167 S. W. 857; Roberts v. State, 96 Ark. 58, 131 S. W. 60.

After the court had charged the jury as to the law concerning murder in the second degree, counsel for defendant then asked the court to give an instruction which was in the language of the statute upon the subject of voluntary manslaughter. The court refused to give this instruction, and this ruling presents' what we regard as the most important question in the case.

It is earnestly argued that, while defendant denied that he had killed deceased, and devoted all the testimony in his behalf to an attempt to establish an alibi, the jury might, while disregarding this testimony, have found that, although defendant' had killed deceased, he had done so upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible.

It is true, of course, that, having been indicted for murder in the first degree, the indictment includes all the lesser degrees of homicide. It is true also that the defendant is entitled to have the law declared as to any defense which the testimony presents, either to the effect that he is not guilty at all or that he is guilty only of one of the lesser degrees charged in the indictment, and he is not to be deprived of this right because this défense was made to appear from testimony which was contradictory of the testimony offered .in his own behalf. Phares v. State, 155 Ark. 75, 243 S. W. 1061; Smith v. State, 150 Ark. 193, 233 S. W. 1081; Dewein v. State, 114 Ark. 472, 170 S. W. 582; King v. State, 117 Ark. 82, 173 S. W. 852; Collins v. State, 102 Ark. 185, 143 S. W. 1075; Allison v. State, 74 Ark. 453, 86 S. W. 409; Pickett v. State, 91 Ark. 570, 121 S. W. 732.

But it is also true that, unless there is such testimony, whether offered by the defendant or appearing in testimony contradicting that which he did offer, which is legally .sufficient to support the defense upon which the instruction is asked, there is no error in refusing the request; in other words, while the trial court may not pass upon the veracity of witnesses, the court may say, as a matter of law, whether testimony, when given its highest probative value, with the inferences legally de-duci'ble therefrom, is sufficient to sustain the defense interposed, or to say, as in this case, whether such testimony, if true, suffices to lower the grade of the crime charged. The following cases, among others, are in point upon this question: Robinson v. State, 177 Ark. 538, 7 S. W. (2d) 6; Clark v. State, 169 Ark. 729, 276 S. W. 840; Rogers v. State, 136 Ark. 161, 206 S. W. 152; King v. State, 117 Ark. 82, 206 S. W. 152; Nichols v. State, 102 Ark. 266, 143 S. W. 1071; Jones v. State, 102 Ark. 195, 143 S. W. 907; Bradshaw v. State, 95 Ark. 409, 129 S. W. 811; Dow v. State, 77 Ark. 464, 92 S. W. 28; Allison v. State, 74 Ark. 453, 86 S. W. 409; Ringer v. State, 74 Ark. 262, 85 S. W. 410; Vance v. State, 70 Ark. 272, 68 S. W. 37; Jones v. State, 52 Ark. 345, 12 S. W. 704; Curtis v. State, 36 Ark. 284; Benton v. State, 30 Ark. 328.

In the latest of these cases, that of Robinson v. State, 177 Ark. 538, 7 S. W. (2d) 6, we said, in quoting from the case of Clark v. State, supra, that “if there is no evidence to establish a lower degree of homicide than murder in the first degree, the court, in properly giving the law, must of necessity determine whether there is any evidence at all to justify a particular instruction, and it is the duty of the jury to take the court’s exposition of the law” (Citing authorities).

It becomes necessary therefore to determine, as a matter of law, whether there was any testimony sufficient to support a finding that the crime committed was that of voluntary manslaughter, and in the decision of this question we recognize the rule that any reasonable doubt about the facts should be resolved in favor of the accused, and that he should be given the benefit of any reasonable doubt arising out of the testimony as to the degree of his crime. Section 3183, 0. & M. Digest.

The circumstances herein detailed are such as to apparently show a deliberate and malicious killing, and to fully support the finding of the jury that appellant is guilty of the crime of which he was convicted, that of murder in the second degree, upon which he was given a sentence of eighteen years in the penitentiary, or even of the highest degree of homicide known to the law, that of murder in the first degree.

But was there testimony sufficient to support a finding that the killing was upon a sudden heat of passion apparently sufficient to make the passion irresistible? The answer to this question depends upon a consideration of what is known in the law of homicide as cooling time.

Allison v. State, 74 Ark. 444, 86 S. W. 409, has become a leading case in this State, at least, upon this subject, and'it was there said -by Mr. Justice Riddick that: ‘‘The provocation must he such as will ordinarily arouse the passions of men, and such as is calculated to. throw them off their guard and cause them to do rash deeds. The question, what is a sufficient provocation, is, says Mr. Bishop, a question of law, hut, like other questions of law, it is found practically involved in inquiries concerning facts, and as such it must he passed upon by the jury. Bishop, Crim, Law (4th ed.) § 735.”

In volume 1 of Russell on Crimes (8th ed.), page 666, it is said:

“In every case of homicide upon provocation, however great the provocation may have been, if there has been sufficient time for passion to subside and reason to interpose, such homicide will be murder. * * * ‘For let it be observed that, in all possible cases, deliberate homicide upon a principle of revenge is murder. No man under the protection of the law is to be the avenger of his own wrongs. If they are of a nature for which the laws of society will give him an adequate remedy, thither he ought to resort; but be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth only to the Most High.’ ”

In Bishop on Criminal Law, vol. 2 (9th ed.), page 543, it is said: , , j j

“Cooling time. — If the passion had time to cool, the offense is not reduced to the lower degree, though in fact it had not cooled. For ‘when anger, provoked ¡by a cause sufficient to mitigate an instantaneous homicide, has been continued beyond the time which, in view of all the circumstances of the case, may be deemed reasonable, the evidence is found of that depraved spirit in which malice resides.’ ”

Continuing, at the same page the learned author says:

“We have no rule for determining how much time is necessary for cooling; in the nature of thing's, it must depend much on the particular case. 'Commonly the time in which an ordinary man under like circumstances would cool is the criterion. * * *”

In support of this statement of the law, our case of Fitzpatrick v. State, 37 Ark. 238, is cited. At § 718 of the same text, page 546, it is further said:

“Blood actually cool. — Says Hawkins: ‘Whenever it appears from the whole circumstances of the case that he who kills another on a sudden quarrel was master of his temper at the time, he is guilty of murder; as, if, after the quarrel, he fall into other discourse, and talk calmly thereon; or perhaps if he have so much consideration as to say that the place wherein the quarrel happens is not convenient for fighting, or that, if he should fight at present, he should have the disadvantage by reason of his shoes,’ etc. In other words, if the actual furor of mind does not exist, or does not impel the fatal blow, there is no excuse to reduce the homicide to manslaughter.’’

In McClain on Criminal Law, vol. 1, § 343, it is said:

“The preceding discussion has shown that homicide under provocation is reduced to manslaughter on account of the heat of passion thereby engendered, which, out of charity to the weakness of human nature, is assumed to deprive the killing of that malignant character which would otherwise be supposed to exist and to constitute malice aforethought. And it has also appeared that the provocation must be such as would have influenced a reasonable person, and that the killing must be the result of passion. Therefore if such time has elapsed after the provocation as that a reasonable person would have regained self-control, then the act must be deemed malicious, and not the result of the provocation, and there-, fore murder. In other words, if there has been sufficient time for the passion to cool, the provocation will not mitigate a subsequent killing to manslaughter. The question is not whether the blow was actually struck in a continuance of the passion, but whether there had been a reasonable time for the passion to cool in the case of an ordinary person, or whether the defendant did actually commit the homicide in cold blood. This must depend on the circumstances of the case, and is a question for the jury.”

In the application of these principles, which the Allison and other cases from this court have followed, we have concluded that the court did not err in refusing to charge upon the subject of voluntary manslaughter.

The testimony is somewhat indefinite as to the length of time which intervened between the first quarrel and the killing, but we think it fair to say that as much as two hours had intervened. Within this time, according to the testimony which tends to present this issue, the defendant had deliberated upon the manner in which he would take Gary’s life, and had thought out and executed the ruse of ascertaining whether Gary was at home by falsely stating that another person had called on the telephone; and, immediately after the killing had occurred, he had joined with others in the preparation of a simulated defense by which he might avoid the consequences of his act. This testimony also shows that, when the Cannon woman returned to the hospital, defendant contemplated the probable consequences .of the discovery of her presence there by his wife, and he contrived to have her sent away to avoid a meeting between these women. He had also carried his pistol from the house and had hid it, so that his intention to kill might not be circumvented.

Cases on the subject of cooling time recognize the principle that the character of the provocation should be taken into account in determining whether or not there had, in fact, been cooling time. There are certain provocations which would superinduce a greater and more irresistible passion than others; and, while defendant did have a great provocation, he also had, what we think the jury must necessarily have found, a time long enough 'for the passion to sufficiently cool for him to' regain possession of himself and of his reasoning faculties, and we think the circumstances detailed show conclusively that he had done so.

Defendant denied that he had made any threats against the deceased, and on that subject testified that: “I was a little angry, but not angry enough to kill him”; and, when asked if he had cooled down, he said “I was a little sore, 'but not dead angry with him.” He denied having threatened to kill deceased, or that he had any such intention, or that he had said he would have Gary in the hospital within an hour after he left there, although he admitted that the matter was not a closed incident.

Undoubtedly defendant was greatly angered, but anger alone does not suffice to reduce malicious killing to voluntary manslaughter. If this were true, many of the most deliberate killings would be reduced to that grade. There must be a sudden heat of passion aroused by a provocation apparently sufficient to make the passion irresistible, and, even when such a passion has arisen, the degree of homicide is not reduced if there has been time within which a reasonable and ordinary man would have cooled, or reflected, even though he had not cooled.

"We think the undisputed testimony shows that such time had elapsed; that defendant had time for reflection, and had reflected, but his reflection was upon the manner in which he might appease his wrath, and it is conduct such as this which raises malicious killing- to the grade of murder in the first degree.

There are certain other assignments of error which we have considered, but do not regard as of sufficient importance to require discussion.

Upon a consideration of the vvhole case we have concluded that there was not sufficient testimony .to require the submission of the question whether defendant was guilty of voluntary manslaughter; and, as no error appears in the record, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Hedden v. State.
    Opinion delivered September 23, 1929.

      Rowell & Alexander and E. W. Broojcman, for appellant.

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

Appellant was indicted, under separate counts, in the circuit court of Jefferson County, for the crimes of grand larceny and embezzlement. He filed a motion for a change of venue, which was overruled by the trial court, over his objecton and exception. Upon a trial of the charges he was acquitted of grand larceny bnt convicted of embezzlement, and adjudged to serve a term of one year in tbe State Penitentiary as a punishment therefor, from which judgment of conviction an appeal has been duly prosecuted to this court.

Appellant assigns as reversible error the action of the trial court in refusing to grant him a change of venue.

In order to obtain a change of venue to another county, by one charged with crime in any circuit court in this State, the statutes require that it must be made to appear by petition of the defendant, supported by the affidavits of two credible persons, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that he cannot obtain a fair and impartial trial therein. This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof. Dewein v. State, 120 Ark. 302, 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S. W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Mills v. State, 168 Ark. 1005, 272 S. W. 671.

In the instant case the affiants were only conversant with the sentiment in three or four localities in Jefferson County, and, on account of their limited knowledge of the popular mind in the entire county, could not qualify as “credible persons” within the meaning of the statute.

Appellant also assigns as reversible error the refusal of the court to instruct the .jury that the evidence introduced, of similar offenses about the same time, was admitted solely for the purpose of showing design or particular intention. The count in the indictment charging-appellant with embezzlement alleged that he came into possession of $19.50 as agent of the Hall Grocery Company, a corporation, on the 10th day of November, 1928, and unlawfully, feloniously and fraudulently converted same to his own use. The State introduced testimony to prove the alleged unlawful conversion of said amount on the 10th day of November, 1928, and then introduced other evidence tending to show that other amounts had been converted in a similar manner on other dates before and after the date alleged in the indictment. The proof introduced by the State tended to show that each separate conversion constituted a separate offense, so the only purpose for which similar offenses committed by appellant about the same time could have been introduced was to reflect his intent in converting said sum on the date alleged, and the introduction thereof should have been limited to that purpose, by instruction or otherwise. Strong v. State, 81 Ark. 25, 98 S. W. 678, and cases cited therein. Appellant’s requested instruction No. 2 was a correct declaration of law relative to the purpose for which evidence of similar transactions occurring about the same time might be introduced, and should have been given to the jury. Prejudicial error was committed by the trial court in refusing to give his requested instruction.

Appellant also assigns as reversible error the refusal of the trial court to give his requested instruction No. 6 on the admissibility of the written confession of appellant, and in giving instruction No. 6 on his own motion. We do not think instruction No. 6 given by the court was prejudicial, although perhaps susceptible of a construction not intended. In other words, we do not think the language used misled the jury as to the true meaning of the instruction. The law is more clearly and accurately expressed in instruction No. 6 requested by appellant. On a retrial of the case it should be given instead of instruction No. 6 which was given by the court on its own motion.

We do not deem it necessary to discuss or pass upon the other assignments of error, as they may not arise on a retrial of the cause.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.

text:
    Hall v. Cartwright.
    Opinion delivered September 23, 1929.

      Reid, Evrard & Henderson and C. A. Cwmingham-, for appellant.

      G. B. Segraves, for appellee.
   Kirby, J.

Appellant states correctly that there is hut one question involved in this appeal, whether the recording of a mortgage of personal property in, the Osceola District of Mississippi County, where the property was situated, while the mortgagor resided in Blythe-ville, in the Chickas-awba District in said county, created a lien on the abstract books mortgaged.

The abstract books were purchased by appellee at a sale duly made by the trustee in bankruptcy, the mortgagor having been declared a bankrupt more than four' months- after the execution of the mortgage and the record thereof at Osceola, where the books were situated at the time of this suit and in the possession of the appel-lee company.

A mortgage of personal property does not constitute a lien upon the property mortgaged until the same is filed for record in the recorder’s office in the county in which the mortgagor resides, or in the district of his residence where the county is divided into districts. Sections 7380-81, C. & M. Digest; Beaver v. Frick Company, 53 Ark. 18, 13 S. W. 134.

By act 81 of 1901 and act 468 of 1919, amendatory thereof, Mississippi County was divided into two judicial districts, designated as the Osceola District and the Chickasawba District, the acts expressly providing that, for all purposes thereof, these districts should be considered as separate and distinct counties, the amenda-tory act requiring the clerk to keep a record of the sales of lands for taxes, the formation and alteration of school districts, the establishment and location of roads and highways and of ditches and drainage districts, and the alteration thereof, a record for all deeds of trust and mortgages and other instruments required by law to be recorded, “and to record all such instruments pertaining to the property rights of the Chickasawba District, and shall either file or record all chattel mortgages pertaining to personal property in said district in his office in said district, and all such instruments, when so filed or recorded, shall have the same force and effect as if filed or recorded at Osceola, in said county.”

Appellant concedes that the recording of the mortgage at Osceola would have created no lien on the property there situate, the mortgagor at the time residing in the Chickasawba District, under the terms of the original act of 1901 creating the two districts of the county, and that proper construction of the act would be controlled by the decisions above cited. He insists, however, that the amendment to the act providing for the filing or recording of chattel mortgages in the Chicka-sawba District, and that all such instruments, when so filed or recorded, ‘ ‘ should have the same force and effect as if filed or recorded at Osceola in said county,” changes the effect of the law, and that chattel mortgages pertaining to property situate in the Osceola District create a valid lien when filed or recorded there, so long as the mortgagor resided in Mississippi County, without regard to his being a. resident of the Chickasawba District.

The law as amended, only pertains to property in the Chickasawba District, and has no reference to chattel mortgages of property in the Osceola District, leaving the law relative thereto as it was prior to the division of the county into districts by the said act of 1901. It is the duty of the court, in the construction of statutes, to arrive at the legislative will, to be determined primarily from the language of the statute itself, and to sweep aside all obstacles in the way of accomplishing it, and if a statute is susceptible of two constructions, one of which would render it an absurdity and the other would not, the latter will be adopted. McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Standard Oil Co. v. Brodie, 153 Ark. 124, 239 S. W. 753; Southern Surety Co. v. Dardanelle Road Improvement District, 169 Ark. 764, 276 S. W. 1014, 42 A. L. R. 299.

The fair and reasonable construction of the statute dividing the county into two districts and providing, for all purposes of the act, that they should be considered as distinct counties, and the amendment relating expressly to the filing or recording of chattel mortgages in the Chickasawba District, could mean only that such mortgages, when filed or recorded in such district, would create a lien on the property mortgaged under the same conditions as the filing or recording of a chattel mortgage in a county not so divided, and any other construction would render it an absurdity, or amount to a repeal of such statute.

The decree is correct, and must be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Foster v. State.
    Opinion delivered September 23, 1929.

      Hal L. Norwood, Attorney (general, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

Tbe appellant was convicted of tlie crime of perjury, his punishment fixed at one year in the penitentiary, and he prosecutes this appeal to reverse the judgment of the circuit court. Appellant has filed no abstract or brief, hut his motion for a new trial raised the questions that the verdict was contrary to law and to the evidence and that the court erred in giving and refusing certain instructions.

The indictment charged, in proper form, that appellant committed the crime of perjury in testifying falsely at a trial in the Hempstead Circuit Court, in a case where Gray Dodson was charged with the crime of selling whiskey; that appellant testified in said case that he saw N. C. Reed and C. E. Hester at the home of Gray Dodson on a certain date, and that Reed and Hester came to Dodson’s house, and that appellant was on the front porch of Dodson’s house, and that Reed and Hester took a quart fruit-jar of whiskey out of the car and brought it on Gray Dodson’s premises, and that appellant and Dodson drank some of the whiskey.

The witnesses Reed and Hester both testified that the testimony given by appellant in the trial of Dodson was not true; that they did not take any whiskey there, but bought the whiskey from Dodson. Dodson was being tried for selling whiskey, and appellant was a witness, and undertook by his testimony to show that Reed and Hester brought the whiskey there and that they did not buy it from Dodson. The question was whether Dodson sold whiskey. This was a material question in the trial of said Dodson. There was ample evidence to justify the jury in finding the defendant guilty. There is no dispute about the witness having been sworn and about his testifying in the ease of State v. Dodson.

A number of other witnesses testified, but it is not important to set out the testimony. There was some conflict in the testimony about whether certain witnesses were present, and also about whether some of the witnesses who testified were at Dodson’s place at the time it was charged the whiskey was sold, but these were questions for the jury, and the verdict settled them against the appellant. Wright v. State, 177 Ark. 1039, 9 S. W. (2d) 233.

The appellant urges a reversal of the case because the .court, in one of the instructions, told the .jury, with respect to the materiality of the testimony, “if you find he gave such testimony, you are told it was material.” In other words, the court told the jury that the testimony was material, and appellant contends that this question should have been submitted to the jury.

All the evidence with reference to the trial of State v. Dodson and the testimony of appellant given in that case is uncontradicted, and, when the facts are undisputed, the question of whether the testimony is material is for the court and not for the jury. 2 Wharton’s Criminal Law, 1700.

“When there is no dispute about the facts sworn to, the question whether the testimony on which perjury is assigned is material, is a question of law to be decided by the court, and not of fact to be passed on by the jury.” Nelson v. State, 32 Ark. 192; Grissom v. State, 88 Ark. 115, 113 S. W. 1011; Barre v. State, 99 Ark. 629, 139 S. W. 641; 30 Cyc. 1456.

It was therefore proper for the court to tell the jury that the testimony was material.

Appellant also complains at the refusal of the court to give instruction No. 7, requested by him, which, in effect, told the jury that, if the evidence on behalf of the defendant raised in their minds a reasonable doubt, they must acquit. This was not a correct instruction. If, after considering the evidence in the whole case, there was a reasonable doubt, he should have been acquitted. But the court fully and correctly instructed the jury with reference to reasonable doubt, and what we have said above disposes of all the other questions raised by the defendant.

The judgment of the circuit court is affirmed.