author: Wood, J.

text:
    Adams v. State.
    Opinion delivered April 9, 1928.
    1. Homicide — issue as to murder in first degree.' — In a prosecution for murder, evidence held to justify submitting the issue as to defendant’s guilt on a charge of murder in the first degree.
    2. Criminal law — discretion as to continuance. — Euling of the trial court in granting a continuance or postponement will not be reversed unless it clearly appears that the trial court abused its discretion, and that the ruling operated as a denial of justice.
    3. Criminal law — right to be heard by counsel. — The constitutional right of accused to be heard by his counsel under Const., art. 2, § 10, does not contemplate that he shall be heard at all times by all of the counsel that he may see proper to employ.
    4. Criminal law — refusal of postponement. — Where defendant had eight attorneys and ample time intervened for taking depositions before the conclusion of the trial, refusal of the court to continue or postpone the cause for the taking of depositions was not error, where the court gave defendants opportunity to take the ■depositions of such witnesses in an adjoining county to he read before the close of the trial.
    5. Criminal law — absence of non-resident witnesses. — It was not an abuse of discretion to overrule a motion of continuance on the account of absence of non-resident witnesses, who are beyond the court’s jurisdiction.
    6. Criminal law — refusal of continuance. — It was not an abuse of discretion to refuse a continuance to secure the testimony of witnesses living about 35 miles distant and beyond the State line, notwithstanding the sheriff’s testimony that he could probably catch the witnesses during one of their frequent visits into the State, where a large number of witnesses were required to he in attendance by reason of change of venue, and delay would cause inconvenience and expense.

      7. Homicide — instruction as to self-defense. — In a prosecution for murder, an instruction that defendant could not justify a killing in self-defense, if he could reasonably have withdrawn from or avoided the difficulty with safety to himself after it began and failed to do so, held proper under the evidence and not objectionable as invading the jury’s province.
    8. Criminal law — repetition of instructions. — It was not error to refuse instructions fully covered by instructions given.
    9. Criminal law — incomplete and argumentative instructions. —It was not error to refuse requested instructions which were incomplete and argumentative in form, where they unduly stressed particular phases of the testimony.
    10. Criminal law — instruction as to circumstantial evidence.'— In a prosecution for murder in which proof of guilt depended upon direct testimony, a requested instruction that, in case there were two reasonable views of evidence leading to conclusions of guilt or innocence, the jury should acquit, held properly refused where the court had properly instructed as to the credibility ¡pf witnesses, weight of evidence and presumption of innocence and reasonable doubt; the requested instruction being erroneous unless the case depended wholly on circumstantial evidence.
    11. Criminal law — evidence of good character.' — An instruction that the evidence of defendant’s good character is substantive evidence in his favor was properly refused.
    12. Criminal law — argument of counsel. — Trial courts are vested with wide discretion in determining whether the remarks of counsel in argument are within their legitimate scope.
    18. Criminal law — duty of prosecuting attorney. — The prosecuting attorney is a public officer whose duty it is to use fair means to secure the conviction of the guilty without appealing to prejudice or perverting the testimony or making statements of facts to the jury which have not been proved.
    14. Criminal law — remarks of prosecuting attorney. — Statements of one of the prosecuting attorneys in a murder prosecution deploring- the fact that some of defendant’s counsel were enlisted in behalf of the murderer in spite of their previous opposition to crime and remarks concerning- their efforts to procure evidence, though improper, did not require a reversal where the jury were admonished not to consider such remarks.
    15. Criminal law — argument of counsel. — While the Supreme Court will always reverse where counsel go beyond the record to state facts that are prejudicial to defendant, unless the trial court by its ruling has removed the prejudice, it will not reverse for mere expression of opinion of counsel in their argument, unless so flagrant as to arouse passion and prejudice and necessarily having that effect.

      Appeal from Lafayette Circuit Court; J. H. McCollum, Judge;
    affirmed.

      Allen Hamiter, Jim Landes, Searcy & Searcy, Luke Monroe, J. D. Head and Carter S Carter, for appellant.

      II. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

This is the second appeal in this case. 173 Ark. 714, '293 S. W. 19. On the first appeal the cause was reversed, and remanded for a new trial because of th© error of the trial court in refusing certain prayers of the appellant for instructions.

The facts were stated on the former appeal as follows: “In October, 1925, appellant, who had previously served as chief of police of the city of Texarkana, and Virgil Grigson, who was at the time constable of the township in which that city is located, were engaged in the retail meat and grocery business in Texarkana. Grigson had invested about $3,000 in the business and appellant about $160. They had disagreed and had quarreled, and, on and prior to the day on which Smith was killed, both had been drinking heavily. On the morning of the killing appellant Went to the home of Osborne Carpenter to get a large pistol, which he had previously exchanged with Carpenter for a smaller one, and, in examining the pistol to ascertain whether it was loaded, it was accidentally discharged. Appellant told Carpenter he wanted the pistol to shoot beeves with, ¡as he had only a single-action one, and on one occasion he had shot a beef with a smaller gun, and the bullet glanced off the head of the beef and came near hitting the man who was employed, to help appellant butcher the beef. In addition to this pistol, Grigson had a Winchester rifle, which was kept at the store for the same purpose. Grigson and appellant- had a quarrel in the store, and appellant and his sons took Grigson’s pistol away from him. Appellant offered several times that day to fight Grigson, but the challenge was not accepted. Grigison attempted to telephone the police from the store, but appellant refused to permit Mm to use the telephone. Grigson directed Ms son to call the police, but the sons of appellant refused to permit him to do so. Grigson went to his car, but appellant took the key-out of the car, and would not permit Grigson to leave in it. Grigson then went to a filling station a-block away from the store,'and attempted-to call the police headquarters, but got no response. Grigson then called the sheriff’s office, and requested the sheriff to come to the filling station where he then was. In a short time Lish Barber, the sheriff of the county, and Bob Smith, his deputy, drove up to the filling station in separate cars! Grigson told the officers about the difficulty he had had with appellant, whereupon the sheriff, Ms deputy and Grigson drove to the -store. It was-admitted that appellant and his sons knew that Grigson. had gone to call the officers. When the party reached the store they walked in, Grigson leading, the -sheriff next, and Smith behind, and, as they came into the store, Wallace Adams, k son of appellant, remarked, ‘Daddy, there is Lish Barber,’ and appellant replied, ‘Damn Lish Barber — nobody is going to arrest me.’

“The State’s testimony is to the effect that Allen Adams, a younger son of- the appellant, was also in the store, when the officers came in, and that Adams and his sons placed themselves as follows: Wallace Adams was behind a counter, near the front door, armed with his father’s pistol; Allen Adams, the younger son, was in another corner of the store, armed with the Winchester rifle; and appellant was near the center of the store, behind a -small counter, armed with a knife. Ruth Shumaker, a young lady whose home was near appellant’s store, testified that she saw Barber get out of his car, and that he spoke to her, and smiled. Barber walked near the center of the store, and in a friendly way said, ‘Hello, Hendricks.’ The testimony is sharply conflicting as to what then occurred, and the State’s version was not developed until after the appellant had put on his testimony, and one of the errors assigned is the order in which the State was permitted to develop its case. "We state this testimony at this time to preserve the proper chronology. According to appellant and his sons, who testified in their father’s behalf, Barber’s first remark was to inquire, ‘What is the matter with you and the big Irishman?’ meaning Grigson. Appellant answered, ‘ The big son-of-a-hitch was trying to' run me out of my business, and nobody can do that.’ Appellant testified that, when he said this, Grigson jumped back and began to curse, and, as appellant turned towards Grigson, Barber shot appellant, the ball going through appellant’s-arm, penetrating his body aiid lodging in his lung. Appellant further testified, that as soon as Barber shot him, Wallace Adams seized Barber’s -pistol, and -a scuffle for its possession ensued, and that Barber struck Wallace over the head with the pistol. Appellant then took the rifle from the hands of his younger son, Allen, and, as he did so, Barber threw Wallace from him and started towards appellant with his pistol drawn on him, whereupon appellant shot Barber with the rifle. Barber then turned and ran through the screen door, and this was the last appellant saw of Barber.

“Grigson, who was called in rebuttal, :and whose testimony was objected to upon the ground that his testimony was not rebuttal, stated that, when Barber entered the store, Adams came from behind the counter with the knife in his hand, and advanced on Barber, who slowly retreated, pushing appellant back, and telling appellant to drop his knife, but appellant advanced, and struck at Barber with Iris knife, cutting Barber’s hand and left wrist to the bone, and, when Barber drew his pistol, Allen Adams and Barber both fired, and Wallace Adams shot Smith, inflicting a slight flesh wound. All three shots were fired so near together that you could not tell who fired first. Grigson fell down behind the counter, and went out the back door. The shot fired 'by Allen Adams knocked Grigson’s hat off his head. Appellant denied catting 'Barber, and denied that Barber was cut, but several witnesses, including the undertaker who prepared Barber’s body for burial, testified to the.existence of the knife wounds.

“Grigson testified that Smith and Barber left the store, and appellant followed them, and while Barber, who had got into the street, was backing away, appellant shot Barber just above the heart, and Barber died in á few minutes. Just'as this fatal shot was fired, Smith, who was about two-thirds 'across the street, fired two or three shots at appellant as appellant was advancing on Barber. Smith then passed behind an automobile parked on the side of the street, and from there he went along the walk to the house of a man named Whitney, through whose yard he walked, coming out at the rear of Whitney’s lot. Smith then went to the store of J. H. Scott, and appellant saw Smith enter the store. Appellant admitted that, after shooting Barber, he went back into the store, but, in a short time, he came out again and started for Scott’s store with the rifle under his arm. Some boys who saw appellant coming remarked, ‘Yonder he comes, and he will kill all of us.’ Smith and Scott heard this remark, and they came to the door of Scott’s store, and Smith cried out to appellant, ‘Henry, I give up, I throw my gun away,’ and as he said this he drew his pistol from his holster and pitched it in the street, six or eight feet beyond the sidewalk. Appellant called -Smith a vile name and said, ‘Yes, give your soul to God,’ and shot Smith. Appellant denied hearing the remark Smith made about giving up, but two witnesses, who were further from Smith than appellant was, testified that they heard the remark. Smith ran out of the store, and, as he was passing out the "rear door, appellant again shot -Smith, who died the following day. Scott remonstrated with appellant, who said, ‘I’ll kill every damn one of them. ’ ’ ’

At the last trial a witness for the defendant by the name of Wead testified that he saw Bob -Smith go across the street from Mrs. Shumaker’s house. He turned right down toward Gr'igson’s store, went about thirty feet in that direction, then -turned around and started (back toward old man Scott’s store. ■

Mrs. Jenkins, a witness for the defendant, testified that she saw Bob Smith come out of the back of Scott’s store and run. She heard a lot of shooting — couldn’t say that she heard a shot just as he came out. He didn’t, fall, but ran awfully fast. He ran down by the side of Mrs. Edwards’ house and On into Jackson Street, near the welding shop. He didn’t run like he was hurt. Witness didn’t hear him holler when he came out of the back door. She was close enough to have heard him holler if he had done so.

Clyde - Hicks, a witness for the defendant, testified that he took Smith to the hospital after he was shot. Smith told him that Henry Adams shot him, and that he (Smith) emptied his gun at Adams. Witness was holding Smith u-p in the automobile at the time. Smith said that he thought he was dying.

Dr. Hunt, witness for the defendant, testified that he was called to see Bob Smith after he was brought to the hospital. He heard Smith make a statement just before he was operated on. Smith stated that he emptied his gun.

Virgil Grigs on, a witness for the State, testified that he called Lish Barber, the sheriff, over the telephone, and told him that he and Henry .Adams had had some trouble, and he wanted him to come over there. When Barber came into Burrow’s store, witness told him about the difficulty he had with Henry Adams. Witness was then asked what Barber said he would do, and answered, “I don’t remember exactly what he did.say — he said he would go up there and settle it — something—he said he would go up there and talk with him — something like that.” Just the exact words he used the'witness couldn’t say.

It is conceded by counsel for the appellant that, with the above exceptions, the testimony at the last trial was substantially tbe same as it was at the former trial. On the former appeal, after stating the facts, we said: “We are of the opinion that the testimony recited fully justified the court in submitting to the jury the question whether the appellant was guilty of murder as charged, and that the testimony is legally sufficient to support the verdict rendered.” After the above additional testimony developed at the last trial, we are still convinced, after a careful consideration of all the testimony in the record, that it was an issue for the jury to determine whether the appellant was guilty of murder in the first degree as charged. Indeed, learned counsel for the appellant do not contend in their brief on this appeal that there was no testimony to sustain the verdict. The only grounds they urge for reversal on this appeal are the following, which we will now consider.

1. That the court erred in overruling appellant’s motion for a continuance of the cause until a subsequent term to give the appellant an opportunity to' have his witnesses, George Shumaker and Lloyd Jones, present at the trial, and erred in overruling the appellant’s motion for a postponement of the trial until the appellant could have an opportunity of obtaining the depositions of these witnesses to be read at the present trial.

The appellant had George Shumaker and Lloyd Jones subpoenaed ¡as witnesses. They were served with process, and failed to appear on the day the case was set for trial. Appellant asked and obtained an attachment for them.

Ruth Shumaker, a witness for the State, testified, in substance, that ‘ ‘ she was in the front part of her yard when Barber and Smith drove up to the Adams & Grigson store, and that Barber spoke to her, and smiled; that she then was looking for a gas connection under the front part of her house, and heard the first shot, and that she raised up and saw Barber out in the middle of the street, and saw Adams fire at him, and then saw Barber throw his hand to his breast, and turn to go north across tlie street, and'fall; that she saw deceased, Smith, when he reached the sidewalk in front of her house, and saw him come into her yard and'go behind her house, and then saw him come back into the street and cross over it and go in the direction of Scott’s store, and enter Scott’s store; and that, while Smith was crossing the street and going to Scott’s store, she saw Adams follow him down the street, and that Adams was reloading his gun, and then saw Adams shoot at Smith in Scott’s store door, and heard Smith holler, “Oh, oh,” and then saw Adams go into Scott’s store and shoot again, and when Adams came out of Scott’s store she saw him look around at the back end of Scott’s store, and shoot again at Smith as he ran off. ’ ’

In his motion for a continuance the appellant set up that George Shumaker and Lloyd Jones would testify, in substance, that, about a week or ten days after Smith was killed by Henry Adams, they were present at the home of Ruth Shumaker, when she and her mother, Mrs. Cornelia .Shumaker, were discussing the shooting of Smith and what they knew concerning the same; that in this conversation Ruth Shumaker stated that she was under the back end of her house, getting a stove connection, when the first shot was fired, and that she ran into the back of the house through the kitchen, and did not see any of the shooting; that Mrs. Cornelia Shumaker said, in Ruth’s presence, that Ruth did not know anything about the shooting; that Ruth was out at the back end of the house looking for a connection for a gas stove, and that she ran into the back end of the house through the kitchen up to where Mrs. Shumaker was in the front part of the house; that Ruth didn’t see any of it; that Ruth acknowledged that that was true; that George Shumaker testified that he was the uncle of Ruth Shumaker, and that, after the trial at the former term of the court, some time in the spring of 1927, he was visiting Mrs. Cornelia Shumaker, when Ruth Shumaker was present; that at that time she asked witness to buy her a pair of stockings, and told him that Mrs. Lillie Barber, the wife of Lish Barber, had not paid her yet, and that if she conkl get the death sentence of defendant Henry Adams, she, Ruth Shumaker, would be able to buy George Shumaker some socks.

The motion set up that George Shumaker lived at Nash,- Texas, five miles from Texajrkana; that he frequently visited the city of Texarkana, and worked there as a common laborer; that his wife was at that time in a hospital at Texarkana for an operation, and that witness was in attendance at the hospital, and could be served' with process and compelled to come to court if the case were postponed for a reasonable time, and, if not, the court ought to grant a' postponement for the purpose of allowing his deposition to be taken; that said deposition would have been taken but for the fact that the witness faithfully promised that he would 'be present in response to the subpoena that had been served upon him, and defendant believed that he would have been present but for the untimely illness of his wife; that Lloyd Jones, the other witness, also lived at Nash, Texas, and was often in the city of Texarkana, and had faithfully promised the defendant that he also would be present at the trial; that, in the event he could not be reached by the attachment which had been ■ issued for him, the court should grant a continuance or a postponement of the trial, to the end that his testimony might be had.

On the hearing of the motion, the sheriff of Miller County testified that the attachment for these absent witnesses was placed in his hands on the morning after the court convened, October 31,1927; that it was thirty miles from Lewisville to Texarkana; that he reached Texarkana about one o’clock on the day the attachment was placed in his hands, but could not find the witnesses Shumaker and Jones. He believed, if he were given more time, he could catch both of them in Texarkana; that people who lived close to Texarkana, whether in Arkan•sas or Texas, and who came there to trade, almost necessarily go from one State to the other while there, and, if given a reasonable time, he conld in all probability catch both Shnmaker and Jones in Miller County, Arkansas. He learned that Shumaker had been in Texarkana on the day he went there to serve'the attachment, but had taken his wife home'that morning from the hospital.

Judge Carter, one of the attorneys for the appellant, and who was sworn as a witness, stated that the defendant did not receive information about what the witnesses Shumaker and Jones would testify until about a month after the first of September, 1927, when the defendant had the subpoena issued for his witnesses, and, when the defendant first received information about what the witnesses Shumaker and Jones would testify, they immediately had an extra subpoena issued aud served by the sheriff on these witnesses in Miller County, Arkansas.

As soon as the testimony of Judge Carter was completed, the court announced that the attorneys for the defendant might take the depositions of these witnesses in or out of the State, and that the depositions would be read, if they could be had before the close of the trial. Thereupon J. D. Head, one of the attorneys for the defendant, requested the court to specify the time for the defendant to have an opportunity to take the depositions, and that the attorneys be relieved from their duties in the case and the cause adjourned over, to the end that the attorneys might go and take the depositions of these witnesses. The court thereupon announced as follows: “There are several attorneys representing the defendant in this case, and either one o'f the attorneys may go out any time he chooses to take the depositions of these witnesses, if they desire to do so.” The court thereupon overruled the motion to continue or to postpone, to which ruling the appellant duly excepted.

It has been the unvarying practice of this court since its origin not to reverse the ruling of the trial court in granting or refusing such motions unless it clearly appears that the trial court has abused its discretion in making the ruling and that such ruling manifestly operates as a denial of justice. As early as Burriss v. Wise & Hind, 2 Ark. 33, we said: “This court would not reverse a decision or judgment below for merely granting or refusing a continuance, unless it clearly and positively appears from the face of the record that the court who decided the cause had been guilty of a palpable and manifest violation of public duty seriously prejudicing the rights of the parties complaining.” And in Price v. State, 57 Ark. 165-167, 20 S. W. 1091, 1092, we said: “ The 'continuance of causes in criminal and civil cases is in the sound discretion of the trial court, and its refusal to grant a continuance is never ground for a new trial, unless it clearly appears to have been an abuse of such discretion and manifestly operates as a denial of justice.” See cases there cited. See also Bruder v. State, 110 Ark. 402, 116 S. W. 1067; Wood v. State, 159 Ark. 671, 252 S. W. 897; McDonald v. State, 160 Ark. 185, 254 S. W. 549. All cases so holding are too numerous to cite here, as there is no uncertainty about the rule of practice. The difficulty always is to determine whether the trial court abused its discretion after applying the rule to the particular facts in any given case that were considered by the trial court in making its ruling.

Learned counsel for the appellant contend in their brief, and have likewise earnestly insisted in .oral argument, that, under the facts as above set forth, the trial court abused its discretion in overruling their motion for a continuance, or at least for a postponement of trial of the cause, to give them an opportunity to take the depositions of witnesses Shumaker and Jones. There are at least two sound reasons why this contention of counsel cannot be sustained. In the first place, it appears from the record that eight attorneys were counsel for the appellant. When the motion for a continuance, or for a postponement, was being considered, the' court announced that there were several attorneys, and that either one of them, upon notice to the attorney for the State, might go out any time to take the depositions of these witnesses, if they desired to do so, and that such depositions would be read before the end of the trial. The trial was set in the Lafayette Circuit Court on change of venue from'the Miller Circuit Court, and was to begin October 31,1927. The actual trial before the jury began on November 1, 1927, and was concluded November 4, 1927. The distance between Lewisville, the county seat of Lafayette County, where the trial was being conducted, and Texarkana, Miller County, and the pjyice in Texas where witnesses Shumaker and Jones lived, was not over thirty-five miles. It is obvious therefore, from the facts which appellant alleged he could prove by these witnesses, 'that the depositions could have been quickly and easily taken and in ample time to have returned to the Lafayette court before the trial was concluded. All of this could have been done without depriving the appellant of his constitutional right to be heard by counsel.. While the Constitution guarantees to the accused the right to be heard by his counsel (§ 10, art. 2, Constitution of 1874), this provision does not contemplate that he is deprived of any constitutional right unless he is heard at all times by all of the counsel that he may see proper to employ. Therefore, under the liberal offer of the court to have the depositions of these witnesses taken and read at any time the defendant might desire to do so before the close of the testimony, it would appear that the trial court did not abuse its discretion in refusing to continue the cause to a subsequent term, nor in refusing to postpone the trial of the cause to a future day in the term. What the court actually did was tantamount to granting the appellant an opportunity to take the depositions of these witnesses and producing such testimony by deposition. The appellant did not therefore exercise due diligence to procure and produce the alleged testimony of the witnesses Shumaker and Jones, as set forth in his motion for a continuance.

In. the second place, this court has heretofore always ruled that a trial court does not abuse its discretion in overruling a motion for continuance on account of the absence of witnesses where it is shown that such witnesses are nonresidents of the State and thus beyond the jurisdiction of the court. This, for the obvious reason that the court has no power through any of its process to compel the attendance of such witnesses.. In Bruder v. State, supra, we held, quoting syllabus: “It is not an abuse of the trial court’s discretion to refuse a continuance of a criminal trial on account of the absence of nonresident witnesses.” See also Turner v. State, 135 Ark. 381-383, 205 S. W. 659, and cases there cited; also Freeman v. State, 150 Ark. 387-389, 234 S. W. 267, and cases there cited; Hayes v. State, 156 Ark. 180, 245 S. W. 309, and cases there cited; and McDonald v. State, supra.

But counsel for appellant urge that all of these cases can, and should, be differentiated from the case at bar on the facts, which are bottomed mainly on the. testimony of the sheriff to the effect that, if given 'a reasonable time, he could, in all probability, catch both Shumaker and Jones in Miller County, Arkansas, because they lived in close proximity thereto, and frequently were at Texarkana, the county seat of that county. Now, the record shows that this cause had been set as early as August 15, 1927, for trial on Monday, October 31, 1927. On account of the large number of witnesses residing in Miller County who had to be in attendance by reason of the change of venue and the magnitude of the cause and the length of time that would necessarily be consumed in the trial of the case, it involved large costs both to the State and county, as well as great inconvenience and considerable expense to the individuals connected therewith. Certainly the trial court was justified in taking all these circumstances into consideration in determining whether or not he should end the cause at that term of continue same to a subsequent term. The trial court doubtless concluded that the probability of compelling the attendance of witnesses Shumaker and Jones would, at least, be no greater at a subsequent term of the court • than it then was. An attachment had been placed in the hands of the sheriff for them, and he had attempted to serve the same, but had been unable to do so. If these witnesses, who resided beyond the jurisdiction of the court, were then avoiding the court’s process by remain- . ing beyond the jurisdiction of the court, they could at all future times when the court was in session so escape its process. Thus the court has no more than a probability that, if the cause were continued, the attendance of the witnesses might possibly be had at a subsequent term. Under these circumstances we are convinced that the trial court not only did not abuse its discretion but that its discretion was in all respects wisely and correctly exercised.

2. Counsel complain of the alleged errors of the court in granting the State’s prayer for-instruction No. 18 and in refusing to grant appellant’s prayers for instructions Nos. 7 and 7a, 18, 19, 20 and '21. (See footnote). It would unduly extend this opinion and would serve no useful purpose as a precedent to set out and discuss in detail all of the assignments of error in the rulings of the court in the .granting and refusing prayers for instructions. We have examined them all carefully, and do not find that there was any error prejudicial to the appellant in any of the court’s rulings in this respect. Let it suffice to say that the 'State’s prayer for instruction No. 18 (see footnote) does not invade the province of the jury, was based upon the testimony, and is not susceptible of the construction which counsel for appellant claim.

Appellant’s prayer for instruction No. 7 and likewise No. 7a were fully covered by appellant’s prayers for instructions Nos. 7b and No. 8, which the court granted (See footnote). Instruction No. 7b and No. 8 were given in the identical language of instruction No. 7b and No. 8, which were asked at the last trial and refused. This court on the former appeal held that the trial, court erred in refusing appellant’s prayers for instruction No. 7b and No. 8, and reversed the judgment and remanded the cause for a new trial because of such error. On the trial from which this appeal comes these prayers were granted. The idea which these prayers were intended to cover, as stated in the former opinion, is as • follows: “If the sheriff and his deputy were not acting in the capacity of officers of the law, with the right to so act, no account should be taken of the fact that they were officers. In other words, the fact that Barber and Smith were officers of the law was not a circumstance to he considered by the jury, unless the officers had the right to act in that capacity and were so acting.” In thus granting appellant’s prayers for instructions No. 7b and No. 8 at the last trial, the court fully and correctly covered the testimony adduced hearing upon that subject, and did not err in refusing appellant’s prayers No. 7 and No. 7a, which concerned the same subject. Moreover, appellant’s prayers for instructions Nos. 7 and 7a on the last trial were not correct either in form or substance. They were incomplete, and were argumentative in form because they unduly stressed particular phases of the testimony.

Appellant’s prayer for instruction No. 18 is as follows :

“You are instructed that, in the event you find from the evidence there are two equally reasonable views of the evidence which may be adopted bv the jury, one of which leads to the conclusion of guilt and one of which leads to the conclusion of innocence, and that the testimony tending to show each of said theories is of equal probability or truth, then you are instructed that it is your duty to adopt that view of the evidence that leads to the conclusion of innocence, and acquit the defendant.”

Appellant’s prayer for instruction No. 19 embodied the same idea and theory, and we therefore do not set it out.

Even if it could be said that this was a case depending wholly upon circumstantial evidence, nevertheless the court did not err in refusing to grant appellant’s prayers for instructions Nos. 18 and 19, because the court had already fully and correctly instructed the jury on the credibility of witnesses, tbe weight of evidence, the presumption of innocence, and reasonable doubt. In Barton v. State, 175 Ark. 120, 298 S. W. 867, we said, referring to the refusal of the trial court to give a similar instruction :

“We have held, however, that it is not improper to refuse to give such an instruction, even in cases where conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof-resting on the State to establish the guilt of the accused beyond a reasonable doubt, and where reasonable doubt was properly defined. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Bost v. State, 140 Ark. 254, 215 S. W. 615; Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23.”

The above correctly declares the law, and it is not in conflict with any of our previous decisions.

But the case iat bar does not depend wholly, if indeed at all, upon circumstantial evidence. We regard it rather as a case where the guilt or innocence of the defendant depended upon the direct testimony of witnesses as to facts related by them and the weight and credibility to be given by the jury to the testimony of such witnesses, tí we are correct in this conclusion, it would have been positive affirmative error for the trial court to give instructions Nos. 18 and 19. These instructions are wholly improper and erroneous, except in cases depending wholly upon circumstantial evidence, where the jury is to draw its conclusions only from circumstances and not from the direct evidence of. eye-witnesses. The prayers for instructions Nos. 18 and 19, if granted in the case at bar, would- have been argumentative, and calculated to confuse and mislead the jury. Therefore the court did not err in refusing them. The ruling of the court in refusing these prayers'for instructions is in perfect accord with the doctrine of our cases as announced in Wacaster v. State, 172 Ark. 983, 291 S. W. 85; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Cooper v. State, 145 Ark. 403, 224 S. W. 726; DeShazo v. State, 120 Ark. 495, 179 S. W. 1012; Rogers v. State, 163 Ark. 252, 260 S. W. 23; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 405, 205 S. W. 805—commented upon in brief of counsel for appellant. Indeed, we do not consider that the case of Barton v. State, supra, is out of harmony with onr other cases when the facts of all these cases are differentiated and the law applicable thereto correctly apprehended. It-is certain that appellant’s px'ayers for instructions Nos. 18 and 19 are not applicable to the facts of this record, and the trial court did not err in refusing them.

Appellant’s prayers for instructions Nos. 20 and 21 are as follows:

“20. You are instructed that evidence of good character, where introduced, is evidence in favor of the party possessing it, and, if believed by the jury, it goes to augment the presumption of innocence which the law raises on behalf of the defendant.
“21. You are instructed that defendant has introduced testimony tending to show he has, in the community in which he lives, a good reputation as a peaceable, quiet, law-abiding citizen (and that this evidence is substantive .proof in defendant’s favor), and must'be considered by you in connection with all the other testimony in arriving at a conclusion as to the guilt or innocence of defendant.”

These instructions are erroneous, and the court ruled correctly in refusing them. The court modified appellant’s prayer for instruction No. 21 by striking out the words' contained in the parentheses, and gave the instruction as thus modified, which ruling was according to the doctrine of this court as announced in Eady v. State, 168 Ark. 731, 271 S. W. 338.

3. The last contention of counsel for appellant is that the court made remarks during the trial, while the testimony was being adduced, that were erroneous and prejudicial to appellant, and also that tbe court erred in allowing Congressman Tillman Parks, especially employed counsel for tbe prosecution, in tbe closing argument for tbe State, to make remarks concerning appellant’s counsel and other remarks that were highly prejudicial to the appellant, and did not by its ruling remove from the minds of the jury the prejudicial effect of such remarks. We deem it unnecessary to catalogue and comment upon all the remarks that were made by the court and counsel. It is a complete answer to this assignment of error to say that the court told the jury, in express terms, not to consider at all any remarks made by the court during the taking of the testimony to which counsel had objected. These remarks, at least, were not of such a flagrant character as to produce any lasting impression in the minds of the jury prejudicial to the appellant. If they were calculated to prejudice appellant at all, the ruling of the court telling the jury not to consider them was sufficient to eliminate that prejudice.

Certain remarks were made by Parks concerning Jim Landis, counsel for the appellant, to 'the effect that the speaker had known him as a follower of the lowly Nazarene, and deploring the fact that, “on the threshold of a new career, he was enlisted in behalf of a man who was a murderer.” Likewise Mr. Parks referred to Judge Carter’s career on the circuit bench — how he then thundered against crime et c&tera, but now he too was found on the side of one who had violated the law, as the speaker would have the jury infer. Mr. Parks alluded to an effort being made by the attorneys for the defendant, before Barber’s body was placed in the ground, seeking evidence in his behalf. Among other things, Mr. Parks said that what took ‘Bob Smith down to the G-rigson & Adams store on the fatal day was, £ £ 0, the beckoning hand of duty, the silver hand of duty, ’ ’ and other similar remarks, which we deem it unnecessary to set forth and comment upon in detail. As soon as any objection was made to any of these remarks, the court promptly admonished counsel that they wefe improper, and, in effect, to confine himself to the record, and instructed the jury not to consider these remarks.

Trial courts, in the very nature of the case, must be, and are, vested with wide discretion in determining whether the remarks of counsel in argument are within their legitimate scope, or whether they transcend the bounds set for them by the well established rules of practice which this court has so often announced to govern and guide trial courts in the matter of passing upon the arguments of counsel. Perhaps, the rule has never been better stated by any court than was stated by the Supreme Court of Wisconsin in Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, through its Chief Justice Ryan, and adopted by our own court in Little Rook & Ft. Smith Ry. Co. v. Gaveness, 48 Ark. 106, 2 S. W. 505, and quoted by Judge Battle, speaking for the court in that case, as follows:

“The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him, but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels outside of his client’s case and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client, but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudice against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest freedom of speech, within the duty of his profession, should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the circuit courts, in jury trials, to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not 'before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal of the court.”

The same great judge again voiced the unanimous opinion of this court in his own strong and lucid language, when he declared the proper practice for trial courts to follow in such cases in Kansas City & C. R. Co. v. Sokal, 61 Ark. 137, 32 S. W. 497. Again, Judge Battle, speaking for the court in Holder v. State, 58 Ark. 473, 25 S. W. 279, 281, at page 481, declares' the rule and duty, particularly with reference to prosecuting attorneys, as follows:

“A prosecuting attorney is a public officer ‘acting-in a gwjsi-judicial capacity. ’ It is his duty to use all fair, honorable, reasonable and lawful means to secure - the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudice, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success .should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences, as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.”

See Vaughan v. State, 58 Ark. 353, at page 368, 24 S. W. 885, where the rule is also announced. Doran v. State, 141 Ark. 442, at page 447, 217 S. W. 485. These rules have never been departed from. See Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428, where Chief Justice Hill, speaking for the court, clearly and cogently states the rules concerning remarks of counsel as they had been announced by this court in previous decisions to that date (1905), and in the opinion he collates all of our cases upon the subject. Again we may say here that there is no controversy or uncertainty as to the rules themselves, but the difficulty always is in their application to the facts of each particular case. That is the matter here which has given us very grave concern.

Now, it is sufficient to say of all the above and other similar remarks of Mr. Parks that they constituted improper argument; but, after he was so told by the court, it is exceedingly doubtful whether they had any effect on the minds of the jury prejudicial to the appellant. If so, we are convinced that the rulings of the court declaring them improper and directing the jury not to consider same removed all possible prejudice from their minds. The ad captandwn, ad hominem, remarks of the Congressman, in which he turned from the facts and the law of the case to express his opinion of Mr. Landis and judge Carter, of counsel for the defendant, because they had accepted employment to defend the accused, were, of course, highly improper, because his purpose was to appeal to the passion and prejudice of the jury. But the court admonished counsel that such argument was improper, and that he should not make it. When the remarks themselves are analyzed, we discover nothing in them derogatory to the character of Mr. Landis or Judge Carter. These gentlemen were both doubtless as well known to the jury as they were to Mr. Parks. The jurors, as sensible men, would understand the relation that a lawyer sustains to his client and the duty he owes his client. No doubt a sensible, fair-minded jury would be quick to resent any remark which they regarded as a reflection on the character of these gentlemen, and especially upon the integrity and the eminent public service of their former circuit judge. They perhaps would regard as wicked and slanderous any remarks which they considered an aspersion upon Judge Carter and Mr. Landis, and would say, in answer to the offender, “his mischief shall return upon his own head and his unfair dealings shall come down upon his own pate,” and he shall reap no benefit therefrom by our verdict.

When we consider therefore that the remarks concerning Judge Carter and Mr. Landis were but tanta-, mount to the expression of an opinion, and that they were not derogatory in character, but rather the reverse, and that the attorney making them was admonished by the court that such an argument was improper, it is problematical whether such remarks, if they had any effect at all, did not in fact tend to influence the jury in favor of the appellant instead of against him. We have therefore reached the conclusion that the remarks of a personal nature, under the circumstances, had no prejudicial effect whatever upon appellant's rights. 'This court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party, unless the trial court, by its ruling, has removed the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70; Hayes v. State, 169 Ark. 1173, 278 S. W. 15; Sanders v. State, 175 Ark. 61, 296 S. W. 70. But this court does not reverse for the mere expression of opinion of counsel in tlieir argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect.

After careful consideration of the whole record we find no error for which the judgment should be reversed. The same is therefore affirmed.

       Note: No. 18, for the State: “If the jury believes from the evidence, beyond a reasonable doubt, that the defendant could have, at any time from the beginning of the difficulty, if you find that there was a prior difficulty, to the ending of the meeting between himself and the deceased, when the deceased was killed, if you find beyond a reasonable doubt that he was killed by defendant at the ending of said last meeting between them, reasonably withdrawn from or avoided the difficulty, with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.”
      “No. 7. You are instructed that neither the sheriff nor. his deputy, as such, had any authority, by virtue of their office, to settle or attempt to settle any dispute 'between Grigson and Adams, and- if they went to said store where Adams was for -the purpose of settling or attempting to settle any such dispute, then you are instructed that, in so doing, they were acting wholly without their official duties and solely in their capacities as individuals.
      “No. 7a. You are instructed that there is no evidence that Sheriff Barber and / or his deputy were or was acting in an official capacity when they went to the store where the shooting occurred, nor is there any proof that they or either of them were attempting to arrest the defendant; hence you are instructed that, in considering this case, you must look at it in the same way as if Lish Barber and Bob Smith were not officers.
      “No. 7-b. You are instructed that, if you find from the evidence that the sheriff and / or his deputy did not go into the store for the purpose of arresting the defendant for a felony, then you are instructed that the sheriff and / or his deputy had no other or better rights in said store at -the time than any private individual.
      “No. 8. You are instructed that the sheriff and his deputy had no right, under the law, to attempt to arrest the defendant for any disturbance or row the defendant may have had w-ith Grigson prior to the time of the arrival of the sheriff or his deputy at the- store where the shooting occurred, unless you find they had a warrant for him, and if they or either of them attempted to do so without a warrant, then you are instructed that in such attempt they were acting in violation of the law, and in violation of the rights of the defendant.”


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Baskin v. Mosaic Templars of America
    Opinion delivered April 9, 1928.
    Judgment — injunction—meritorious defense. — An insurance society could not enjoin enforcement of a judgment recovered against it in a justice of the peace court on the ground that the judgment was rendered without proper service, where it did not allege that it had a valid defense on which the judgment was rendered.
    Appeal from Pulaski Chancery Court; Frank FL. Dodge, Chancellor;
    reversed.

      Andrew J. Gilmer, for appellant.

      Scipio A. Jones and Thomas J. Price, for appellee.
   Smith, J.

Appellee, a fraternal insurance society, brought this suit to enjoin the enforcement of a judgment recovered against it in the court of a justice of the peace in Conway County, upon the ground that the judgment was rendered without proper service being first had.

The complaint recited facts which, it is alleged, show that there had been no proper service of summons before the rendition of the judgment, but the complaint did not allege that there was a valid defense to the claim upon which the judgment was rendered. A demurrer to the complaint was overruled, and, as the judgment creditors stood on the demurrer and refused to plead further, the relief prayed was granted and the enforcement of the judgment was enjoined, and this appeal is from that decree.

The case of Rotan v. Springer, 52 Ark. 80, 12 S. W. 156, was one in which the enforcement of a judgment was sought to he enjoined upon the ground that it had been rendered without notice, and it was there said: “The plaintiff offered no suggestion of a defense to the claim upon which the judgment which he sought to enjoin was based. His complaint therefore stated no cause of action (State v. Hill, 50 Ark. 458, 8 S. W. 401), and the court did not err'in sustaining the demurrer.

The doctrine of that case has been followed many times since. Horn v. Hull, 169 Ark. 463, 275 S. W. 905; McDonald Land Co. v. Shapleigh Hdw. Co., 163 Ark. 524, 260 S. W. 445; Derringer v. Stevens, 145 Ark. 293, 225 S. W. 14; Renfroe v. Parmelee, 143 Ark. 547, 220 S. W. 816; Williams v. Alexander, 140 Ark. 442, 215 S. W. 721; Baxter County Bank v. Davis, 137 Ark. 459, 208 S. W. 797; Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546, 207 S. W. 45; Osborne v. Lawrence, 123 Ark. 447, 185 S. W. 774; Robinson v. Ark. Loan & Trust Co., 74 Ark. 292, 85 S. W. 413.

The demurrer to the complaint should therefore have been sustained, and the decree of the court below will be reversed, and the cause remanded with directions to sustain the demurrer.


text:
    Winfrey v. People’s Savings Bank.
    Opinion delivered April 9, 1928.
    1. Execution — sale of land subject to homestead. — In a parti-tion of a lot to secure a half interest alleged to be owned by reason of the sale of an undivided half interest under the-judgment in an attachment suit, rendered iby default, where the lot-was occupied as homestead by the judgment debtor’s mother, who was not made a party to the attachment suit, held that the homestead right was not aifected, but that the interest of the judgment debtor subject to the right of homestead passed.
    2. Judgment — identity of party. — In a partition of a lot brought to secure an interest alleged to have been acquired under sale of the judgment-debtor’s interest, where it was insisted that the judgment-debtor had not been sued on the note as Fred A. Williams, but as F. A. Williams, and that the note sued on was signed “Fred A. Williams,” held that it will be presumed on this collateral attack that the court ascertained that F. A. Williams and Fred A. Williams were the same person.
    3. Judgment — .presumption on collateral attack. — Where, in collateral attack on a judgment, it was contended that defendant was not properly served with process in the suit resulting in the sale, . held that it will be presumed that "the circuit court found to the contrary, and that finding is not subject to. collateral attack.
    4. Judgment — presumption on collateral attack. — Where a judgment in an attachment proceeding was attacked collaterally on a ground that no affidavit for attachment was made, and that it was not shown that the defendant’s personal property was insufficient to pay the judgment, it will be conclusively presumed on collateral attack that the court 'below, before sustaining the attachment, ascertained that the attachment had been properly issued.
    5. Appeal and error — matters not considered below. — Where an attack in the court below was made on a sale and an attachment proceeding on the ground that the sale had never been approved in the attachment proceeding, an order of the circuit court in such proceeding confirming the sale, copied 'by opposing counsel in their brief on appeal, will not be considered where it was not considered in the court below.
    6. Execution — presumption op regularity op sale — Under Crawford & Moses’ Dig., § 1534, providing that a sheriff’s deed shall be evidence of the legality and regularity of sale of land, a deed to land duly executed and acknowledged by the sheriff and recorded is evidence that the sale was regularly made, without proof that the sale was confirmed by the court.
    Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor;
    affirmed.

      M. R. Ferry and B. G. Clanton, for appellant.

      Roscoe R. Lynn and June P. Wooten, for appellee.
   Smith, J.

Appellee, as administrator of the estate of H. Gr. Pottebaum, brought this suit, in conjunction with the widow of the said Pottebaum, who alleged that she had acquired the interest of the heirs of her husband in his estate, to partition a lot in the city, of Little Bock, a half interest in which was alleged to be owned by the intestate, and from a decree granting the relief prayed is this appeal.

The question presented on the appeal is that of the validity of a judgment of the Pulaski Circuit Court, whereunder it was alleged that appellee’s intestate had acquired an undivided one-half interest.

Some years ago Potte'baum brought suit upon a note executed to his order by one Fred A. Williams, who, at the time, was a resident of the city of Chicago and an employee of the postoffice in that city. Judgment was rendered by default for the amount of the note, and an attachment was sustained and the lot ordered sold, and, pursuant to this judgment, an execution was levied upon Williams’ undivided half interest, and that.interest was sold, and later an execution deed was issued to Pottebaum by the sheriff who made the sale.

It was alleged that the judgment against Williams was'void for the following reasons:

The lot levied upon had been owned by Williams’ father, who, upon his. death, was survived by his widow and two children, and the lot was then occupied by Williams’ mother as her homestead. It is'therefore insisted that, as the lot was a homestead, it was not subject to sale. In reply to this contention it suffices to say that the widow was not a party to the attachment suit, and her homestead right was not affected by it. The defendant had an interest in the lot, which was, of course, subject to his mother’s right -of homestead, and it was upon this interest that the attachment was levied. The homestead estate of the widow terminated 'by her death in 1925, before the institution of this suit.

It is next insisted that defendant should have been sued as Fred A. Williams, and not as F. A. Williams, as was done, inasmuch as the note sued on was signed “Fred A. Williams.” It must be presumed, in this collateral attack on the judgment of the circuit court, that that court ascertained that the Fred A. Williams who signed' the note and the F. A. Williams who was sued as the maker thereof were one and the same person. Indeed, the testimony heard at the trial from which this appeal" comes shows that such was the fact.

It is insisted that the defendant was not properly advised of the pendency of the suit by the attorney appointed by the clerk to represent the nonresident defendant. Upon rendering judgment sustaining the attachment the circuit court presumably found to the contrary, and that finding is not subject to the collateral attack here made upon it. It may be said, however, that a letter written by Williams, which was offered in evidence at the trial from which this appeal comes, shows that he was in fact aware of the levy of the attachment.

It is next insisted that there was no affidavit for the attachment, nor was any showing made that the defendant’s personal property was not 'Sufficient to satisfy the plaintiff’s demand without making -a levy upon his interest in the land. In support of this allegation it is shown that no affidavit for the attachment was found, when this case was tried in the court below, among the files of the clerk in the original attachment suit. In answer to this collateral attack, it may be said that it will be conclusively presumed that the court below, before sustaining the attachment, ascertained that the attachment had been properly issued.

It is finally insisted that it was. not shown that the sale under the execution was ever approved, and that a suit for partition cannot be maintained upon a\ title acquired through an unconfirmed sale.

Counsel for appellee set out in their brief an order of the circuit court confirming the sale; but, inasmuch as this order was not offered in evidence in the court below, it cannot be considered here. But appellee offered in evidence in the court below an execution deed duly executed and acknowledged by the sheriff who made the sale, and this deed was. duly recorded, and its recitals conform to the requirements of § 4334, C. & M. Digest.

Section 8390, C. & M. Digest, provides that: "A sheriff’s or auditor’s deed, given in the usual form, without witnesses, shall be taken and considered by said court as sufficient evidence of the authority -under which said sale was made, the description of the land, and the price at which it was purchased.”

Section 1534, C. & M. Digest, provides that: “All deeds of conveyance made by administrators, executors, guardians and commissioners in chancery, and deeds made and executed by sheriffs of real estate sold under executions duly made and executed, acknowledged and recorded as required by law, and purporting to convey real estate, shall vest in the grantee, his heirs and assigns, a good and valid title, both in law and in equity, and shall be evidence of the facts, therein recited and of the legality and regularity of the sale of the lands so conveyed until the contrary is made to appear.”

It is not made to appear that the execution deed was not executed under authority of law, and the fact alone that the affidavit for the attachment was not found in the files of the original attachment suit does not prove that there was in fact no affidavit for the attachment. The court found that the attachment was properly issued, and the attachment was sustained as having been properly levied upon the lot which the judgment directed should be sold in satisfaction of the indebtedness there adjudged to be due the plaintiff.

In 15 R. C. L., page 891, § 370 of the chapter “Judgments,” it is said: “If a statute requires a certain affidavit to be filed prior to the rendition of judgment, it •frill be presumed, in support of the judgment of a court of general jurisdiction, in the absence of any statement or showing upon the subject, that such affidavit was filed. Thus it may be presumed that a writ of attachment, regular upon its face, on which a judgment has been based, was properly issued after execution of a proper affidavit required in such cases.”

Upon a consideration of the whole record we conclude that it was not tiiade to appear that the judgment of the circuit court was void through failure to comply with the law in the rendition of the judgment through which Pottebaum’s title was acquired. Huggins v. Dabbs, 57 Ark. 628, 22 S. W. 563; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81, 84 S. W. 1044; Taylor v. King, 135 Ark. 43, 204 S. W. 614; Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546, 207 S. W. 45; Baxter County Bank v. Davis, 137 Ark. 459, 208 S. W. 797; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; St. L. S. F. R. Co. v. Wardell, 157 Ark. 557, 249 S. W. 17.

. Tliis being true, tlie relief by way of partition was properly granted, and that decree is affirmed.


text:
    Hospital & Benevolent Association v. Arkansas Baptist State Convention.
    Opinion delivered April 9, 1928.
    1. Lost instruments-^-burden of proof. — One who claims title • under an alleged lost instrument must establish the execution, contents and loss of such instrument by the clearest, most conclusive, and satisfactory proof.
    2. Lost instruments — sufficiency, of evidence. — Evidence held sufficient to prove the execution and delivery -of a lost deed to land, and to prove the contents and sufficiency of such instrument of conveyance.
    S. -Charities — transfer of property. — Execution of a deed conveying a hospital and property by the officers of the hospital eharitaable association, held within the power of the association where it tended to perpetuate -and promote the purposes of such association, where the association could no longer maintain the hos-pitar, while the transferee organization agreed to do so.
    4. Charities — ratification of deed. — Evidence held sufficient to show a ratification by a hospital association of the transfer of its property by deed to an organization which agreed to carry on the hospital work, though execution of the deed was authorized at a called meeting not provided for in the constitution of the association, where, for several years after the transfer, the association made no attempt to seit aside or alter the effect of such deed.
    5. Gifts — transaction held to be sale. — Where a hospital association deeded its property to another on the consideration that the -grantee would assume burdensome obligations of the grantor and the grantee expended large sums in improving the property, held that the transaction was a sale and not a gift.

      Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      E. W. Brockman, Palmer Danaher and M. Danaher, for appellant.

      W. B. Sorrels, for appellee.
   Smith, J.

Appellant .brought this suit in ejectment against the Arkansas Baptist State Convention, hereinafter referred to as the convention, to recover possession of a hospital and the adjacent grounds located in the city of Pine Bluff. The defendant convention filed an answer, alleging its possession and ownership of the property under a deed from the plaintiff, which was alleged to have been lost, and, by way of cross-complaint, the defendant prayed that its lost deed be restored and held valid, and that its title be quieted against the plaintiffs. In an answer to the cross-complaint the plaintiffs denied the execution of the deed or their power to execute it.

Prom the testimony offered at the trial from which this appeal comes, it appears that seventy ladies, residents of Pine Bluff, wermincorporated by order of the Jefferson Circuit Court, July 6, 1895, as the Hospital'& Benevolent Association, for the purpose of raising funds to establish and maintain a hospital "in the city of Pine Bluff. ' Funds "for this purpose were to be raised by annual dues to be collected from each member of the association, amounting to $1 a year, and by donations, legacies and subscriptions from charitably disposed persons.

The constitution of the association provided for an annual meeting on the first Friday of October in each year, at which time a president, three vice presidents, a secretary and a treasurer should be elected, who should hold office for one year and until their successors were elected and qualified. It was provided in the constitution that ten members should .constitute a quorum for the transaction of business. Mrs. J. W. Crawford was elected president, Mrs. O. J. Taylor was secretary, and Dr. Lillian G. Higginbotham assistant secretary, and the organization began to function by erecting and operating a hospital. To raise necessary funds, a mortgage of $4,000 was..placed on the property, and other indebtedness was incurred. The enterprise was not a success, and the hospital was finally closed, and, after it had been closed for four or five months, its managing officers and friends began to cast about to devise means whereby it might be reopened and operated. Overtures were made to the convention to take over the hospital, and at a regular meeting of the hospital association on October 7, 1919, ,an ajnandment to the charter was adopted authorizing a lease of the property for ninety-nine years. A proposition "wa's submitted to the hospital committee of the convention to lease the property, but this offer was declined, and a counter proposition was made to take over the property, repair it, pay the outstanding indebtedness, enlarge the hospital, and operate it, provided a deed was made to the convention.

A called meeting of the plaintiff hospital association was held on October 10, 1919, to consider this counter-proposition, at which seventeen members of the association and two non-mem'ber friends were present. At this meeting the following resolution was unanimously adopted:

‘‘Whereas, the Davis Hospital has been closed for several months for lack of sufficient funds to repair, reopen and run it; and whereas, the Baptists have undertaken to raise large sums for hospital purposes, and the Arkansas Baptist State Convention has offered to take a deed to the property and in consideration thereof agreed to maintain and run the hospital and from time to time enlarge it, as the demands for enlargement come and the necessities require, in the judgment of the board of said convention; and whereas, they have agreed to keep the name, Davis Hospital, for the institution perpetually, and to accept a deed requiring such perpetuation of the name and containing a stipulation that, if they fail to perpetuate the name, or if they or their assigns or successors should fail to keep the property in reasonably good repair, or should fail or cease to maintain and run the institution as a hospital, then in any such event the title to the property shall at once revert to the grantor; now therefore be it by the Davis Hospital Benevolent. Association in meeting assembled, resolved, that tlie president and secretary, or assistant secretary, of this association be, and they are, hereby authorized and empowered to make a deed to said Arkansas Baptist State Convention, or to such trustee as they may name, conveying to it or them the following described'land, lying ii> Jefferson County, State of Arkansas, to-wit: Lots one .and two, in block seventy-six, in Tannehill & Owens’ addition to the city of Pine Bluff, for the consideration and purposes and containing the stipulations required by the foregoing preamble; and, for the same consideration and purposes, to include in said deed the furniture and hospital appliances on said land. Only the land and building and the furniture and appliances shall be conveyed. The Davis Hospital Benevolent Association shall reserve to itself such funds, devises and legacies as it now owns, and such devises and legacies as are provided for in wills already made to it or Davis Hospital.”

Pursuant to this resolution, a deed was prepared from the hospital association to the convention, which was duly acknowledged by the president and the assistant secretary of the association. This deed was delivered to a member of the hospital committee of the convention, but was lost without having been recorded.

The cause was tried in the court below, by consent, without a jury, and the court found the fact to be that this deed was executed and delivered and that the title to the property there described passed to the convention, and judgment was rendered accordingly, and from that judgment is this appeal.

The plaintiff association — the appellant here — states in its brief that “the only issue before the court for determination is whether the deed claimed by defendant to have been made was in fact made, and, if so, whether it was legally made so as to be a valid deed.”

“The rule is. well established in this State, as well as by the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof.” Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2, and cases there cited.

The first question for decision is therefore whether the proof tending to establish the alleged lost deed from the hospital association to the convention meets this test.

We think it does, and the court below so found. By collaboration of the persons interested in the preparation, execution, and examination of the lost deed it has been restored, and these persons testified that the restored deed is substantially identical with the lost deed. Among the witnesses who testified as to the execution and contents of the lost deed was J. W. Crawford, an attorney at Pine Bluff, whose wife ivas the president of the hospital association. He testified that his wif e had devoted much of her time to the work of the hospital association, and was much" concerned about reopening the hospital. He prepared the lost deed, and in a general way remembered its recitals, although he had not kept a copy of it, and testified that the restored deed was substantially identical with the one he had prepared. After the deed had been executed and acknowledged, he transmitted it to a member of the hospital committee of the convention. He had also prepared the resolution for adoption by the hospital association authorizing the sale of the property to the convention. He had kept a copy of this resolution, and identified the resolution set out above appearing in the restored deed as identical with the one which he had prepared for adoption by the association at the called meeting held on October 10,1919.

H. T. Allcott testified that lie was a notary public, and that, as such, he had taken the acknowledgments of the president and the 'assistant secretary of the hospital association to the deed. He stated in detail the circumstances under which the acknowledgments- had been taken.

After the execution and delivery of the deed to the hospital committee of the convention it was submitted for examination and approval to .Judge ~W. R. Donham of Little Rock, a practicing attorney and a member of the hospital committee. Judge Donham testified that he made a careful examination of the deed to determine its sufficiency, and in connection with this examination made copious notes as to its recitals. These notes he had preserved, but the deed itself was lost, and he was unable to find it, after a most exhaustive search. He had not surrendered the possession of the deed to any one, and when he last saw the deed it was in his possession. He testified that the restored deed is, substantially identical with the one given him for examination.

The deed was executed to R. Oarnahan, H. C. Fox and J. P. Runyan, as trustees, for the use and benefit of the Arkansas Baptist State Convention. Mr. Carnahan was a resident of Pine Bluff, and was one of the visitors who attended the meeting of the hospital association of October 10, and was instrumental in inducing the convention to take over the hospital. He also testified as to the execution of the deed, and it was he who delivered it to the hospitalfcommittee of the convention.

The hospital property was accurately described in the deed which conveyed that property to the trustees named, on the conditions and limitations set out in the resolution of the hospital association adopted on October 10, and which was incorporated in the deed.

Several membars_of the hospital ^association testified that they were not advised of the .meeting held on OctoberAOj and knew-nothing of the action taken at that meeting: in regard to the sale of the property. They were advised of the meeting held on October 7, at which time a reioTutidn'was adopted which authorized a lease of the property for ninety-nine years,- and, while they knew the property had been taken over and was being operated by the convention, they supposed this was done under the authority of the resolution adopted October 7.

The assistant secretary of the association, whose name was signed to the deed, denied having signed or executed it; but, without setting out the testimony in this respect, we announce our conclusion to be that this good lady had merely forgotten the incident. The high character of all the witnesses who have testified is such that the case presents no question of veracity of any of the witnesses. We are sure all testified truthfully, so far as they remembered the facts about which they testified; but, while this is true, we are of opinion that the testimony measures up to the-requirements announced in the case of Erwin v. Kerrin, supra, to prove the execution and delivery of the lost deed and the contents and sufficiency of that instrument.

It is further insisted that, although the execution, contents and delivery of the deed have been sufficiently proved to establish it as a lost instrument, it was not valid_as-.a-Gonveyance, for the reason-that it was an ultra 'vires act onjthe-part of the officers of the-association who executfid-the-deed, qnd the case of Fordyce v. Woman’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (N. S.) 485, is cited in support of that contention. In that case it was held that the property of a charity cannot be sold under an execution on a judgment rendered for the nonfeasance, misfeasance or malfeasance of its agents or trustees, for the' reason that a charitable trust cannot be destroyed through the wrongful acts of the trustees, and it is insisted that the officers of the hospital association have, through the execution of the deed, wrongfully destroyed the trust committee) to their management.

We do not concur in this view. On the contrary, the purpose of the trust has not been destroyed. The undisputed testimony shows that the hospital association had come to the end of its resources, and the trust was about to fail through lack of support. The hospital had been closed, and the property was deteriorating in value, and the debts of the association were unpaid. The deed to the convention required that body to maintain and run the hospital, and from time to time- enlarg’e it as the necessity therefor required, and the conveyance was valid as such so long only as these conditions were complied with. That these conditions have been fully complied with will be later herein shown.

We conclude therefore that the execution of the deed by the officers of the hospital association was not an .act which whs beyond the power of the corporation itself to authorize, as it tended to perpetuate and promote.the purposes of that organization.

It isTnsist'edr that the execution of this deed was authorized at a called meeting, which was not provided for in the constitution of the hospital association, and that the body of the members were not notified of the meeting, and that the execution of the deed was therefore unauthorized, and that the members of the association will not be held to have ratified this conveyance through the subsequent action of the convention, for the reason that the members of the hospital association had the right to assume that the possession and occupancy of. the hospital by the convention was referable to the resolution adopted at the regular meeting on October 7 authorizing a lease of the property.

We think, however, that it must be held that the hospital association has in fact ratified.this deed, even thopgETiA. execution, was not authorized. More than a quorum of the members attended the meeting at which the resolution was adopted authorizing the sale of the property, and the transaction was a sale, and not a gift, as is contended by appellant. The deed was executed upon the consideration of the assumption of burdensome obligations by the convention. It is not intimated that the meeting of October 10 was. surreptitiously called, and there is no reason to even suspect that the action then taken was concealed. All parties appear to have been actuated by the most laudable motives. The resolution then adopted directing the sale of the property was in a form which, if otherwise authorized, would have conferred the power to sell the property. There was nothing to indicate to the convention that it would not take by the deed tendered to it the title which that instrument purported to convey, and there is no reason to doubt that the members who did not attend the meeting of October 10 might, with but slight inquiry, have ascertained the terms and conditions upon which the convention took over the hospital.

The undisputed testimony shows that, after the delivery of the deed, the convention expended $20,000 to put the hospital in condition to be operated, and altogether expenditures aggregating $33,000 were made, including enlargement and equipment, and the institution has been raised to a grade A hospital, and is now being operated as such. In other words, the conditions upon which the deed was executed have been fully complied with, and have been since the date of that deed, which was October 31, 1919.' This suit was not filed questioning the title of the convention to the property until June 15, 1925.

The case of Merchants’ & Farmers’ Bank v. Harris Lbr. Co., 103 Ark. 283, 146 S. W. 508, Ann. Cas. 1914B, 713, was one in which the right of the secretary and treasurer of a corporation to execute a chattel mortgage upon the corporate property was questioned, and, in holding the stockholders had ratified that action, the court quoted with approval from 2 Morawetz on Private Corporations (2 ed.), § 623, as follows:

“In 2 Morawetz on Private Corporations. (2 ed.), §. 623, it is'said: ‘If the shareholders who constitute the corporate association unanimously acquiesce in or ratify an act performed by an agent or board on behalf of the corporation, no further question as to the extent of the powers delegated to the agent or board can arise. Ratification by all the shareholders would not cure the illegality of an act which is prohibited by the common law or statute; but it would remove any defect of authority in an agent performing the act as between himself and the company. After such ratification, the company would become chargeable with the act to the same extent as if ■it had originally authorized it-to be done’.”

In the same case it was there further said:

“All the shareholders of a corporation may waive the necessity for a meeting of its board of directors, and may, without such meeting, either authorize acts done by its agents within the scope of the powers of such corporation, or ratify those acts which have been done, and, by such authorization or ratification, bind the corporation itself. The rule that the members of the board of directors have the authority to act only when convened in a board meeting is for the benefit of the shareholders. The shareholders own the assets, and in fact constitute the corporation. All the shareholders may therefore waive the necessity for the meeting of all the members of the board of directors in the transaction of any business that is not beyond the powers of the corporation to enter into. ’ ’

In the case of American Bonding Co. v. Laigle Stave & Lbr. Co., 111 Ark. 151, 163 S. W. 167, the question was raised as to the power of an agent of a corporation to execute accommodation paper in the name of the corporation, and, after holding that such right was not within the real or apparent scope of the agent’s authority, the court held that such action might be ratified. It was there said:

“In 2 Thompson on Corporations (2 ed.), § 2019, the rule of acquiescence in or ratification of an unauthorized act of the officers or agents of a corporation is stated as follows: ‘Acquiescence for a considerable time by a corporation, through its efficient agencies and the body of its stockholders, in a state of facts, after knowledge or after such a length of time and such a condition of circumstances that a knowledge is to be inferred, will operate as a ratification. * '* * Ratification of this character may rest on the principle of equitable estoppel, on the theory that one man, though innocent, ought not to allow another innocent man to rest in the belief that a voidable engagement is valid until the latter has changed his position. It also rests on the moral consideration that the former, after allowing the hopes of the latter to be raised for a considerable length of time, in respect of whatever benefits may aeerue’or may have accrued from the engagement, ought not to be allowed to disappoint those hopes. The rule therefore is that, where the agents of a corporation exceed their powers, their principal must, as in the case of a natural person, disaffirm promptly, or at least within a reasonable time, having regard to the circumstances of each case’.”

The case of Common Sense Mining & Milling Co. v. Taylor, 152 S. W. 5, was one in which the president and secretary of the corporation had, without authority, sold the assets of the corporation, and their grantee, under the unauthorized conveyance, expended a large amount of money on the property conveyed. For a period of five months the stockholders remained inert, and, when finally they called the conveyance in question, the court held that, by their inaction, they had ratified the unauthorized act. In so holding, the Supreme Court of Missouri, through Graves, P. J., said:

“Judge Thompson, in 10 Cyc., p. 1065, says: ‘Subject to exceptions in case of municipal or governmental corporations, which are held to a strict exercise of their powers, the general rule is that corporations quite as much -as individuals are held to a careful adherence to truth in their dealings with mankind, and cannot, by representations or by silence, involve others in onerous engagements and then defeat the just expectations which their conduct has superinduced. A round statement of this doctrine is that estoppels in pais operate against corporations in like manner as against natural persons.’ And further discussing the doctrine of estoppel as applicable to corporations, at page 1066 of the same volume, says: 'As more fully explained later, the same principle validates the voidable acts of corporations, on the theory of a ratification by the acquiescence of all the shareholders, so that, after, a long delay, in which time other rights have supervened or expectations have been founded, upon the faith of an existing state of facts, the shareholders will be precluded from maintaining actions in equity to undo what has been done by the directors or officers without their authority.’ The same writer, in his work on Corporations (2 Thompson on Corporations, 2 ed., par. 1960, p. 1048), says: 'In the law of agency there is a rule that, if one accepts the benefits of an unauthorized contract made in his behalf 'by another, he is bound by its terms the same as if he had entered into the contract in person or had expressly ratified it, provided, of course, that he had full knowledge of all the facts, and'he is thereby estopped from repudiating the contract without restoring the benefits and putting the other party in statu quo. This principle is applicable, in .its fullest sense, to corporations which, from their nature, can act only through the instrumentality of agents. If therefore an officer of a corporation, or other person, assuming to have power to bind the corporation, by a given contract enters into the contract for the corporation, and the corporation receives the fruits of the contract, and retains them after acquiring- knowledge of the circumstances attending the making of the contract, it will thereby become estopped from afterwards rescinding, or undoing- the contract. In other words, by retaining the fruits of the unauthorized contract, with knowledge of the circumstances which entitle.it to its election either to affirm or disaffirm it, the corporation ratifies the contract and makes it good by adoption.’ In the same volume, at page 1056, it is further said: 'It is not strictly necessary to the proper application of the principle of estoppel that the corporation should have received a benefit from, the contract, but it is sufficient that the other party has acted on the faith of it to his disadvantage, as where he has expended money on the faith of it. The reason of the rule is that honesty and fair dealing are the highest public policy, and that a private corporation, which is a mere collection of individuals, is no more privileged to repudiate its engagements and act dishonestly than a single individual is’.”

The court below expressly found the fact to be that the members of the hospital association, whose relation to that organization is not dissimilar to that of shareholders in the ordinary private corporation, had, by their inaction, ratified the sale of the property to the convention, and it is our opinion that the testimony sustains that finding.

The judgment of the court below must therefore be affirmed, and it is so ordered.