author: McCulloch, C- J.

text:
    Moon v. State.
    Opinion delivered May 26, 1924.
    1. Continuance — absence op witnesses. — While it was error to refuse a continuance for the absence of material witnesses residing in the county and unable to attend court on account of sickness upon the ground that their testimony taken at a former trial of the case was available, it was not error to refuse such continuance if their testimony would have been merely cumulative of other evidence introduced in the case, and would not have added anything to the convincing force of the testimony of other witnesses in the case.
    2. Continuances — discretion of court. — The question of granting a continuance rests to a considerable extent in the sound discretion of the trial court, and the exercise of such discretion will not be disturbed unless abused, and it is not generally an abuse of discretion to refuse a continuance for the purpose of producing additional evidence that is cumulative.
    8. Continuance — absence of witness — diligence.—Where a subpoena for a witness in an adjoining county had been issued but not returned by the sheriff, and defendant made no application for a rule on the sheriff for failure to make return, his lack of diligence justified the court in refusing a postponement to procure the witness’ attendance by attachment.
    4. Seduction — evidence — character of female. — ■ Where the defense introduced testimony attacking the chastity of the prosecutrix in a seduction case, it was not error to permit the State to introduce testimony in rebuttal supporting her reputation for chastity.
    Appeal from "White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Brwididge <& Neelly, for appellant.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C- J.

This is an appeal from a judgment of conviction under an indictment against appellant, charging the offense of seduction, alleged to have been committed by obtaining carnal knowledge of an unmarried female by a false express promise of marriage. The case has been here twice on appeal. 155 Ark. 601; 161 Ark. 234.

The young woman in question testified that appellant promised to marry her, and induced her to have sexual intercourse with him by virtue of a false, express promise of marriage. Her testimony was corroborated by that of several witnesses as to both the promise of marriage and the sexual intercourse between the parties. The evidence was sufficient to sustain the verdict.

The principal point urged here now for reversal of the judgment relates to the ruling of the court in refusing to sustain appellant’s motion for postponement of the trial on account of the absence of witnesses. On the day the case was called for trial, appellant, through his attorneys, filed a motion to continue the cause until the next term of the court, on account of the absence of two witnesses, Mrs. Dewey Wilkerson and Mrs. Jewel Moon. He alleged in the motion that the witnesses had been summoned to attend, and that they were residing in the county where the case was pending, but were physically unable to attend court at that term. Certificates of a physician were filed as to the physical condition of the two absent witnesses. It was alleged in the motion that Mrs. Wilkerson would have testified, if present, that, on a certain occasion, she, with other parties, was returning from the village of Mt. Vernon one night about midnight, in a truck, when the truck broke down on the roadside, and that, while they were sitting on the truck, Clytie Dupriest, the prosecuting witness, and a young man named O’Guinn passed in a buggy; that she heard them hollering before they passed the truck, and that, as they passed by in the buggy, Clytie Dupriest held up a laprobe over her face to keep those in the truck from recognizing her. It was also alleged that Mrs.. Wilkerson would testify that she had seen certain other boys associating with Clytie Dupriest during the year 1920. It was alleged in the motion that Mrs. Jewel Moon would testify, if present, concerning certain statements of Clytie Dupriest in regard to her relations with appellant arid her intentions with respect to compelling him to marry her. It appears from the record that these two witnesses had testified at a former trial, and the court overruled the motion for a continuance on the ground that, the witnesses' being unable to attend court at that time, the testimony taken at the former trial was available. We are of the opinion that the ruling of the court in refusing to postpone the case cannot be sustained on that ground. The fact that the witnesses were unable to attend court on account of illness would have afforded grounds for admitting in evidence the testimony of the witnesses taken at a former trial (Williams v. State, 156 Ark. 205), but, under the constitutional guaranty that the accused in any criminal prosecution shall have the right “to compulsory process for obtaining witnesses” (art. 2, § 10, Declaration of Rights), the privilege of introducing the testimony taken at a former trial is not sufficient if the witnesses reside within the jurisdiction of the court, and the personal attendance of the witnesses can he procured at a later date. Graham v. State, 50 Ark. 164. Under the constitutional guaranty an accused has the right to have the personal attendance of the witness if it can he obtained, and the right to use the testimony of the witness taken at a former trial is only available where the attendance cannot be obtained. We think, however, that the ruling of the court was correct on another ground, and that is that the testimony of the witnesses was merely cumulative, and could be, and was in effect, covered by the testimony of other witnesses introduced. Appellant’s effort in the trial of the case was not only to show that he had not promised to marry the girl, and that he had not had sexual intercourse with her, ¡but that she associated with other young men, and was guilty of such conduct as to reflect upon her own virtue and chastity. Numerous acts of the girl were brought into the case by testimony tending to show that she was rather loose with young men in the neighborhood, and was guilty of improper conduct. The testimony introduced by the defendant tended to show that she went out with young men at night under circumstances that reflected upon her, that she was seen to put her head in the laps of young men, that she embraced a young man in the schoolroom, and kissed him, that she laid down on the floor with two young men on a certain occasion, and indulged in telling of indecent stories, and that she had on one occasion impliedly indicated to a young man that she would yield to him in sexual intercourse if he would drive her to one of the towns in an adjoining county. The testimony of both Mrs. Wilkerson and Mrs. Moon was cumulative to other testimony that was introduced. There was no other witness that testified to the precise incident which Mrs. Wilkerson would have related concerning the passing of the girl in a buggy with O’Guinn, but Mrs. Wilkerson’s narrative about the girl shielding her face with a laprobe was a circumstance of much less force than many other eivrcumstances testified to by other witnesses, and it is not conceivable that it would have added anything to the convincing force of the testimony of the other witnesses tending to show that the girl was not virtuous. The testimony of Mrs. Moon was merely for the purpose of impeaching the testimony of Clytie ■ Dupriest, and there were other witnesses who testified to the same and other contradictory statements.

The question of granting a continuance rests to a considerable extent in the sound discretion of the trial court, and the exercise of such discretion will not be disturbed by this court unless abused, and it is generally not an abuse of discretion to refuse a continuance for the purpose of producing additional evidence which is cumulative. Owen v. State, 86 Ark. 317.

There is another assignment of error with reference to the ruling of the court in refusing to order an attachment for another absent witness, Annie Goodloe by name. It appears from the record that a subpoena had been issued for the witness and sent to the sheriff of Faulkner County, but the subpoena had n'ot been returned. One of appellant’s attorneys stated to the court, when the case was called for trial, that he had talked with the sheriff, over the telephone, and had been informed by the sheriff that he had summoned the'witness named, and would send the subpoena by mail. The court offered to .order a rule on the sheriff to require him to return the subpoena, but refused to issue an attachment for the witness and postpone the trial until there could be a return. We think that the court was correct in its ruling, for it was the duty of appellant, through his attorneys, to have the subpoena issued in time to get a return from the,sheriff before the case was called. It seems from the record that no request was made for a rule on the sheriff of Faulkner County or for an attachment for the witness until the case was called for trial. If appellant expected to take advantage of the fact that the witness was not present, or that there was no return on the summons, the matter should have been presented to the court at an earlier date, so as not to necessitate a postponement of the trial. It was the duty of appellant to cause a summons to be sent out in time to get a return on it before the day of trial, and to apply to the court for a rule on the officer to whom the summons had been sent, if not returned within a reasonable time. In other words, there was a lack of diligence which, we think, justified the court in refusing to postpone the trial in order to procure the attendance of the witness by attachment. Nor was it proper to issue an attachment for the witness until there was evidence in the shape of a return on the subpoena showing that the witness had been summoned. This, at least, was a matter in the discretion of the court in determining whether or not there should be an attachment for an absent witness.

It is next contended that tlie court erred in permitting the State to introduce testimony in rebuttal supporting the reputation of Clytie Dupriest for chastity. The answer to this contention is that appellant introduced testimony attacking the chastity of the girl, and the State was entitled to support her character and reputation by proof in rebuttal.

There are two assignments of error in regard to the court’s charge to the jury, but they are not of sufficient importance to discuss, ás it is very plain that the court’s charge was in conformity with the law.

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


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Sanders v. State.
    Opinion delivered May 26, 1924.
    1. Criminal law — argument of prosecuting attorney. — An argument of the prosecuting attorney that neither defendant nor his attorneys had denied that defendant sold the liquors mentioned in the indictment was not objectionable as referring to the fact that defendant did not testify at the trial where the defense was bottomed upon the contention that the liquors mentioned were sold as medicine, and not upon the contention that he did not sell them, which was conceded by defendant’s counsel.

      2. Criminal law — argument of prosecuting attorney. — An argument of the prosecuting attorney that defendant’s counsel argued that the testimony was insufficient to justify conviction, but that when counsel was prosecuting attorney he asked for a conviction on testimony no stronger than in this case, was an expression of opinion merely, and not calculated to mislead the jury.
    3. Intoxicating liquors — relevancy of evidence. — In a prosecution of a druggist for unlawfully selling intoxicating liquor, testimony tending to prove the possession and sale of intoxicating liquors mentioned in the indictment was competent.
    • 4. Intoxicating liquors — sufficiency of evidence. — Evidence held to sustain a conviction of selling alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof.
    5. Intoxicating liquors — intent of purchaser. — Under Crawford & Moses’ Dig., § 6160, it is a violation of law to sell or to be interested in the sale of the prohibited liquors, regardless of whether or not they are to be used or intended by the seller or purchaser to be used as beverages.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      John D. DeBois and John E. Miller, for appellant.-

      J. 8. TJtley, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

The indictment charged that the appellant “unlawfully and feloniously did sell alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof, commonly called tonics, hitters, and medicated liquors.” The appellant was tried and convicted on the above charge and sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of one year, from which judgment is this appeal.

The prosecuting attorney, in his closing argument, among other things said: “It is not denied that the defendant sold the liquors mentioned in the indictment. He has not denied it; Mr. DeBois did not deny it in his argument; Mr. Miller does not deny it in his argument to you gentlemen, and no one else has denied it. The witnesses have testified that they bought it, and so the only question for you gentlemen to determine, under the law as given you by the court, is whether or not the stuff which the defendant did sell was intoxicating’, or contained alcohol.” The appellant entered a plea of not guilty to the indictment, but did not testify at the trial. He contends that the court erred in overruling his objection to the above argument.

When the remarks of the State’s attorney are considered as a whole, they cannot be fairly interpreted to have reference to the failure of the defendant to testify, but only to the fact that the witnesses had testified that the defendant sold the liquors mentioned in the indictment, and that they had bought the same, and that such fact was undisputed by the testimony. The appellant contends that the case is ruled on this point by the case of Curtis v. State, 89 Ark. 394-401. In that case Curtis was charged with the crime of carnal abuse. The prose'cutrix testified that Curtis had sexual intercourse with her when she was of the age of fifteen years, and the prosecuting attorney, in his closing argument, stated to the jury that “the defendant does not deny that he had sexual intercourse with the prosecutrix.” We held that the argument in that case was prejudicial and reversible error, because it necessarily referred to the failure of the defendant to testify. But the remarks here under consideration do not refer to the failure of the defendant to testify. On the contrary, as we have already stated, when they are considered as a whole the prosecuting attorney was emphasizing the fact that, so far as the sale of the liquors was concerned, there was no dispute in the testimony. When the entire record is considered, it shows that the defense of the appellant in the case at bar was bottomed upon the contention that the liquors sold by him were sold as medicine, and not upon the contention that he did not sell the particular character of liquors which the witnesses for the State testified they purchased of him. His contention was solely that such liquors did not come within the inhibition of § 6160, Crawford & Moses’ Digest, under which the appellant was indicted. For instance, appellant’s prayer for instruction No. 6 is as follows: “You are instructed that, if you find that the concoctions which the defendant sold to the prosecuting witness were kept and sold by the defendant as medicine or for medicinal purposes, then, under the law, it is immaterial whether the prosecuting witness used the same as a beverage, and, if the State has failed to prove beyond a reasonable doubt that the defendant sold such concoctions for use as a beverage, then you should acquit the defendant. ’ ’ The prayer presented by the appellant in this form shows that, while conceding that he sold certain concoctions or liquors as testified by the witnesses for the State, nevertheless he contended that such sale was not a violation of the statute because he did not sell such liquors as a beverage, but only as a medicine.

It occurs to us therefore that the remarks of the prosecuting attorney, to the effect that the sale of the liquors was not denied, had reference, not to the failure of the appellant to testify, but to the fact that it was being conceded by appellant and his counsel that the sale was made, but that, in making the sale, he was not violating the law. But, if we be mistaken in this interpretation of the remarks of the prosecuting attorney, nevertheless they were not prejudicial, because they but reiterated a fact which had been shown by the undisputed testimony for the State and conceded by the appellant’s counsel. There was no conflict in the testimony as to the fact of the sale.

The appellant further contends that the court erred in permitting the prosecuting attorney to make the following remarks: “Mr. Miller, in his argument to you gentlemen, stated that the testimony in this -ease was not sufficient to justify a conviction. While he was prosecuting-attorney of this district, only a little more than a year ago, I have heard him ask for the conviction of persons charged with the same offense as this defendant, where the testimony was no stronger or more convincing than it is here, and I have seen juries convict such persons as a result of his efforts, just as you gentlemen should and will do in this case.”

In these remarks the prosecuting attorney was merely expressing his opinion of the weight of the testimony in this case compared with what he conceived to be the weight of the testimony in other cases where the appellant’s counsel, who was then prosecuting attorney, had secured, convictions. The remarks were general. No particular case was mentioned, and no facts were given showing that convictions were had in other cases where the testimony was no stronger or more convincing than in the case at bar. The remarks “were no.t calculated to influence a jury of sensible men to disregard the oath they had taken to try the cause according to the law and the evidence and a true verdict render.” Blackshare v. State, 94 Ark. 548-558; Spear v. State, 157 Ark. 283-287.

The appellant next contends that the court erred in permitting C. E. Caldwell, a witness for the State, to testify that he was a deputy sheriff; that he searched the appellant’s place of business, and found in his possession one bottle of Angostura bitters, many bottles of vanilla extract and Jamaica ginger, and that the labels on these bottles showed that they contained alcohol, from 45 to 47 per cent, in the vanilla'extract to 93 per cent, in the Jamaica ginger. There was no error in the ruling of the court. Witnesses for the State had testified that they had bought Jamaica ginger and vanilla extract from the appellant in October and January before this search was made, which was January '28, 1924, and also one witness stated that he didn’t think that he had ever bought any Jamaica ginger or other liquor from the appellant without telling him that he wanted it for medicine; that he wanted it for medicine, as he was not in the best of health — felt run down — and that it made him feel better, but that he drank too much of it and got drunk.

In Leslie v. State, 155 Ark. 526-534, we said: “Testimony therefore tending to prove that Lyko, Jamaica ginger and the other liquors sold by the appellant contained alcohol, that they were intoxicating, were sold by appellant, and used by the purchaser thereof as beverages, was relevant to the charge in the indictment. ’ ’ The doctrine of the above case rules this.

The appellant contends that the evidence is not sufficient to sustain the verdict under the charge made in this indictment, because the appellant is not charged with the crime of selling intoxicating liquors, and the testimony tending to prove that the appellant sold liquors that were intoxicating would not be sufficient to support the charge of selling alcoholic, vinous, malt, spirituous and fermented liauors and the compounds or preparations thereof, commonly called tonics, bitters or medicated liquors, as charged in the indictment. The testimony, as we háve seen, was competent and relevant to the issue as to whether appellant had sold the liquors as charged in the indictment.- If appellant sold alcoholic, vinous, malt, spirituous or fermented liquors, or a compound or preparation thereof called tonics, bitters or medicated liquors as charged, then the fact that the liquors sold had an intoxicating effect would not make the testimony any the less relevant or the charge any the less complete. The testimony was sufficient to sustain the verdict. Sluder v. State, 162 Ark. 212, and casus there cited.

The appellant contends, in the last place, that the court erred in giving instructions and in refusing appellant’s prayers for instructions. It would unduly extend this opinion and could serve no useful purpose to set out the instructions given by the court and the prayers of the appellant for instructions which the court refused, and to discuss in detail the objections urged by appellant’s counsel to the rulings of the court. We have carefully considered these objections, and find that the rulings of the court conformed to the law as announced in Leslie v. State, supra, where the law covering every phase of the testimony in this case is declared. In that case, among other things, we said, at page 535': “'Before the above laws were passed, the inhibition was against selling liquors of the character mentioned ‘which are used and drunk as a beverage.’ The present law contains no such exception. Therefore it is a violation of the law now for any one to sell or be interested in the sale of the liquors mentioned in § 6160 Crawford & Moses’ Digest, supra, whether they are used, or intended by the seller or purchaser to be used, for beverage purposes or not. The statute is leveled against the selling or being interested in the sale of alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation of these, commonly called tonics, bitters, or medicated liquors. While the lawmakers did not intend to prohibit the sale of drugs which contain only such a percentage of alcohol as is necessary to compound and preserve them as medicines, yet they did intend to prohibit the sale of the liquors named in the statute, or a compound or preparation thereof, under the guise of medicine, and as a subterfuge to cover the sale of the prohibited liquors and medicated liquors mentioned therein.. The exception contained in the statute shows that it was the intention of the lawmakers to allow pharmacists such necessary quantities of alcohol as may be required in their business, that is, in the art and science of compounding and preparing medicine. Druggists and pharmacists are prohibited from making or selling, or giving away, or being interested in the sale or giving away of bitters, or medicated liquors, where alcohol, or any one of the other liquors mentioned, is the dominating'ingredient, or where the alcohol is used not merely for preserving the tincture or compound as medicine, but in such a way that it is fit to be used as a beverage. If drugs, containing only the necessary quantity of alcohol to compound and preserve them as medicines, are sold, then such sale is not unlawful because some one of abnormal appetite, depraved habits, or perverted taste, buys such medicine for use as a beverage.”

While there is some testimony tending- to show that, when the witness bought the liquors from the appellant, he told the appellant that he wanted it for medicinal purposes, .and that the appellant refused to sell it to him until he found out that he did want it to use as a medicine, yet the testimony shows that the liquors sold by the appellant contained a large per cent, of alcohol, and there is no testimony in the record tending to prove that the liquors contained only such per cent, of alcohol as was necessary to compound or preserve them as medicines. The instructions were as favorable to the appellant as he was entitled to ask under the evidence adduced, in view of the law as declared by the court in Leslie v. State, supra. There is no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.


author: McCulloch, C. J.

text:
    Fidelity & Deposit Company v. Fairfield.
    Opinion delivered June 2, 1924.
    1. Judgment — res judicata. — A judgment of the probate court fixing the amount due to an estate by the administrator and ordering it paid over is conclusive upon the administrator and his surety.
    2. Executors and administrators — bill to surcharge settlement — fraud.—In a bill to surcharge an administrator’s settlement for fraud, neither allegations nor proof that the administrator made payments to creditors of the estate in excess of the pro rata to which the creditors were entitled was sufficient to show fraud.
    3. Executors and administrators — conclusiveness op settlement. — Confirmation of an administrator’s final settlement and an order to pay over the amount found due are conclusive,-not only upon the administrator and his bondsmen but all others, and in the absence of fraud or mistake which constitutes ground for surcharging the account.
    4. Appeal and error — waiver of objection to forum. — Objection to the jurisdiction of equity, not raised in the trial court, will not be considered on appeal.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor;
    modified.

      J. T. Coston, for appellant.
    - 1. Since the widow, the creditors and the administrator in succession had the right to have the errors complained of corrected, ' first, by filing exceptions, to Anthony’s settlement, and second, by appeal to the circuit court from the order of the probate court approving such settlement, they had a full, complete and adequate remedy at law, and the chancery court, therefore, was without jurisdiction. 45 Ark. 511, 512; C. & M!. Digest, 2258; 36 Ark. 401; C. & Mj. Dig. § 189; 124 S, W. 1027; 64 Ark. 130; 191 S. W. 222; 173 S. W. 402; 95 Ark. 619; 80 Ark. 145; 116 Ark. 490; 109 Ark. 205.
    2. The chancery court has no jurisdiction to impeach the settlement of an administrator after its approval by. the probate court, unless it is shown that such approval was procured by deception, imposition or fraud practiced by the administrator upon the probate court, and none is shown here, nor attemped to be shown. 84 S. W. (Ark.) 486; 39 Ark. 257; 34 Ark. 72; 33 Ark. 732; 36 Ark. 395.
    3. The payment of claims without an order of the probate court directing such payments is an irregularity, but does not amount to a fraud upon the court. 131 S. W. (Ark.) 951. The order of the probate court approving the unlawful payment of the claims in question, if it was unlawful, is conclusive in this proceeding. 157 S. W. (Ark.) 149.
    4. Before the surety can be held liable for the widow’s dower, two things must be made to appear: First, that the court ordered the administrator to pay it over her; second, that he disobeyed that order. The first has been shown, but the second has not. 5 Ark. 474; 25 Ark. 47; 215 S. W. (Ark.) 582.

      Little, Buck & Lasley, for appellees.
    1. The testimony shows conclusively that Anthony, at the time he made the deposit of the funds of the estate in the Bank of Blytheville, knew of its failing condition, and was familiar with its condition from that time until it closed its doors, and not only so, but he was also one of the two men responsible for the bank’s failure. He and his surety are therefore liable for the amount of money so deposited. 11 R. C. L. 150; 31 Mo. App. 633; (U. S.) 40 Law ed. 1047; 23 Ky. L. Rep. 2050; 47 N. Y. 101; 12 N. Y. 197.
    2. In presenting to the probate court, and securing approval of his settlement wherein he had taken credit for the disputed claims, without having’ filed a list of the demands against the estate, and thereby informing the court of the insolvent condition of the estate, the administrator perpetrated a fraud upon the court"; and the payment of the challenged claims in full, or any part thereof, when the estate was insolvent, constituted .constructive fraud, and was a wanton waste of the assets of the estate, against which equity will give relief. 24 Corp. Juris, 118; 23 Corp. Juris 119; 32 Miss. 309; 33 S. E. 568; 42 Ark. 186; 33 Ark. 575; 53 A,rk. 545; 48 Ark. 387; 53 Ark. 224.
    3. Anthony’s settlement and the order of approval prima facie fixed his liability to the administrator in succession. If he had paid any part of the sum shown 'by his settlement to be due that was a matter of. defense which should have been shown by the appellant. 63 Ark. 145; 44 Ark. 509; 80 Ark. 309; 123 Ar. 507; 69 Ark. 419.
   McCulloch, C. J.

This is an action against W. A. Anthony, who was formerly administrator of the estate of D. P. Beard, deceased, and appellant Fidelity & Deposit Company, the surety on his bond, to recover funds which came into his hands as such administrator, and which he had failed to pay over in accordance with the orders of the probate court. The action was instituted by the appellees, Fairfield, as administrator in succession of the Beard estate, and Mrs. Virgie Beard, the widow of said decedent.

Beard died in the year 1918, and, as before stated, Anthony became administrator of the estate, and appellant Fidelity & Deposit Company executed his bond as surety. Property of the estate of the aggregate value of $74,184.87 came into the hands of the administrator, according to his own settlement account filed in the probate court, of which there was $40,000 in cash collected ou an insurance policy payable to the decedent. The cash was collected by the administrator, and deposited in the Bank of Blytheville, a banking institution with which Anthony was officially connected, and which later became insolvent.

During the year 1918 the probate court made an order assigning the widow’s dower in personalty, and directed the administrator to pay over to her the sum of $13,478.09 as her dower in the funds of the estate, and also certain other items of personal property. After the Bank of Blytheville became insolvent, it was taken over by the State Banking Department, and a dividend was declared for distribution to creditors. The amount of this dividend on the deposit of Anthony, as administrator, was $8,-452.08, which was paid over to the widow, leaving a balance of $5,026.01, the balance due on her dower in the cash assets of the estate. Anthony resigned as administrator, and filed his settlement account showing. a balance of funds in his hands belonging to the estate in the sum of $19,926.66. There were no exceptions to this settlement, and the court approved it and ordered Anthony to pay the sum found to be in his hands over to his successor. Appellant A. Bi. Fairfield was appointed administrator in succession, and, as before stated, he and the widow instituted this action to recover not only the amount found due on settlement, but to recover additional sums alleged to have been wrongfully taken credit for by Anthony in his settlement account. In other words, the suit was in part to surcharge his account for alleged fraud in making excessive payments to creditors of the estate, and in taking credit for same in the settlement account. It is charged in the complaint, in general terms, that the payments were fraudulently made, but no facts or circumstances are either alleged or proved 'which constitute fraud in fact.

The court, on final hearing, found that there was due from Anthony the sum of $12,155.26 after crediting the amount of dividend paid by the bank on the sum shown in Anthony’s final settlement, and rendered a decree against him and the surety on his bond for this amount, and also for the sum of $8,417.18, which Anthony had paid, according to his settlement, to certain creditors in excess of the amount due on those claims.

The court was correct in its decree for the recovery of the balance due ($12,155.26) and in the hands of the administrator, and which the court ordered paid over to his successor. Anthony and his surety are, according to the undisputed evidence, liable for this amount, for the order of the probate court fixing the amount and ordering it paid over is conclusive upon the administrator and his surety. Fogg v. Arnold, 163 Ark. 461.

The court erred, however, in surcharging Anthony’s settlement account and in charging him and his surety with the sums paid to creditors in excess of their respective pro rata. Neither the allegations nor the proof were sufficient to show fraud or mistake'which would justify a court of equity in surcharging the account. It is undisputed that the claims of creditors were valid liabilities of the estate. There is not shown any collusion between the administrator and any of those creditors, or any actual fraud in making the payments. All that appellees allege in the complaint is that payments were made in excess of the pro rata to which each of the claimants was entitled. This is not sufficient to show fraud. McLeod v. Griffis, 45 Ark. 505. The confirmed settlement account of Anthony and the order to pay over are conclusive, not only upon the administrator and his bondsman, but upon all others interested in the estate, in the absence of ’fraud or mistake which constitutes ground for surcharging the account. Rhodes v. Driver, 108 Ark. 80.

The judgment of the probate court, like any other judgment, is conclusive unless fraud be shown in its procurement. James v. Gibson, 73 Ark. 440.

Counsel for appellant contend here that appellees had an adequate remedy at law for recovery of the amount due by Anthony and his surety under the order of the probate court, and1 that the chancery court was without jurisdiction to entertain the cause of action. There was no question raised below as to the right of appellees to sue in equity, and it is too late now to raise the question here.

There can be no dispute as to the liability of appellant for the balance of the amount ordered paid over by the probate court, and the decree for the recovery of that amount will be affirmed. The decree is. therefore modified by reducing the recovery to the sum of $12,155.26, and, as thus modified, it is affirmed.


text:
    Carr v. State use Smith.
    Opinion delivered June 2, 1924.
    1. Bastardy — time for appeal from county court. — Crawford & Moses’ Dig., § 780, providing that appeals from the county court in bastardy cases shall be “as in cases of appeals from judgments of justices of the peace,” must be interpreted to refer to the manner of taking appeals from justices of the peace and • the time limit of thirty days within which such appeals may be taken.
    2. Statutes — repeal.—A general affirmative statute does not repeal a prior particular statute or particular provisions of a prior statute upon the same subject, unless there is an invincible repugnancy between the two.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      J. H. Hawthorne and W. E. Spence, for appellant.
    The appellant had the right to appeal at any time within six months after the rendition of the judgment of the county court, by complying with the statute governing appeals from orders and judgments of the county court. C. & M. Digest, § 2287. The statute relied on by appellee, C. & M. Digest, § 780, only applies to the manner or form of taking appeals, and not to the time within which the same must be perfected» 146 Ark. 221; 135 Ark. 219 ; 140 Ark. 168.

      F. Weldin, for appellee.
    The general law for taking appeals from the county court, C. & M. Digest, § 2287, does not apply; the special statute, C. & M. Digest, § 780, is the one which must control in this class of cases. 80 Ark. 411; 96 Ark. 274; 92 Ark. 148; 65 Ark. 419; 3 Cyc. 1013, defining the word “as;” C. & M. Dig. § 6513, 6515; 102 Ark. 511.
   McCulloch, C. J.

This is a bastardy proceeding against appellant, instituted in the county court of Clay County for the Eastern District, in the name of the State of Arkansas for the use and benefit of Edith Smith, the mother of the bastard children. Appellant attempted to prosecute an appeal to the circuit court, but the appeal was dismissed by the circuit court, on motion of appellee, on the ground that the statute governing appeals in such cases was not complied with, in that the appeal was not granted by the term of court and was not taken within thirty days from the date of the judgment appealed from.

Appellant relies on the general statute regulating appeals from judgments of county courts, Crawford & Moses’ Digest, § 2287. This statute was enacted by the General Assembly of 1883 (Acts 1883, p. 48), and provides, in substance, that appeals “from all final orders and judgments of the county court” may be taken at any time within six months after rendition' of the same, “either by the court rendering the order or judgment, or by the clerk of the circuit court, with or without supersedeas, as in other cases at law.”

The statute regulating bastardy proceedings (chap. 16, 'Crawford & Moses ’ Digest) was enacted by the General Assembly of 1875, and approved November 29, 1875. It contains the following section with reference to appeals:

“Section 780. An appeal will lie from a judgment of the county court to the circuit court in all cases of bastardy, as in cases of appeals from judgments of justices of the peace to circuit courts; but no appeal shall be granted until affidavit and appeal .bond is filed. When the appeal is granted, the clerk of the county court shall make, certify and transmit a certified copy of all the papers, judgment and orders of the county court to the circuit clerk, who shall give receipt for such transcript, and also enter the same on the docket of the circuit court.” Crawford & Moses’ Digest.

Appellant contends, in the first place, that the statute last quoted fixes no specific time within which an appeal must be taken, and that, even if it did so by reference to the statute regulating appeals from justices of the peace, it has been repealed by the general statute, supra, regulating appeals from county courts. Crawford & Moses’ Digest, § 2287. We are unable to agree with appellant in either of the contentions. The language of the statute (Crawford & Moses’ Digest, § 780) regulates appeals the same “as in cases of appeal from judgments of justices óf the peace to circuit courts.” This means in the same time or in like manner and by the same procedure as prescribed for appeals from judgments of justices of the peace. The general statute regulating the practice before justices of the peace and appeals from such judgments (Crawford & Moses’ Digest, § 6512 et seq.) was enacted by the G-eneral Assembly in 1873 (Acts 1873, p. 430), and it prescribes a limit of thirty days within which an appeal could be taken. We are of the opinion that § 780 must be interpreted to refer to the manner of taking appeals from justices of the peace and the time limit within which such appeals may be taken.

Prior to the Constitution of 1874 the jurisdiction in bastardy cases was vested in justices of the peace. Grantt’s Digest of 1874, chap. 15. The Constitution of 1874 in express terms transferred that jurisdiction to the county court (art. 7, § 28), and the act of 1875, supra, was enacted for the purpose of carrying out the provisions of the Constitution by prescribing a mode of procedure in bastardy cases before the county court. The statute referred to in Grantt’s Digest prescribing the procedure before justices of the peace fixes a limitation of thirty days upon the time for appeal to the circuit court, and in this respect the statute was similar to the general statute (act of 1873, supra), prescribing the time and mode of appeal from all judgments of justices of the peace. In other words, the act of 1875 was legislation upon aparticular subject regulating the method of appeal in a particular class of cases, and the question is whether the general statute (Crawford & Moses’ Digest, § 2287) repeals the former. . We think that this question is concluded by decisions of this court. Baugher v. Rudd, 53 Ark. 417; Nemier v. Bramlett, 103 Ark. 209; Wilson v. Ward, 127 Ark. 266. The decision in each of those cases related to the question of repeal by the statute now under consideration (Crawford & Moses’ Digest, § 2287) of a section of a statute enacted in 1871, prescribing a mode of appeal from the county court from judgments opening public roads, and this court decided that the general statute referred to above did not repeal the old statute on the particular subject. In Baugher v. Rudd, supra, the court said:

“The former (the road law of 1871) is a special provision governing a class of cases in which the public interest demanded special protection. The rule of construction is that ‘a general affirmative statute does not repeal a prior particular statute, or particular provisions of a prior statute, upon the same subject, unless there is an invincible repugnancy between the two.’ ”

We discover no distinction between the question involved in these cases cited above and that involved in the present case. Each of the statutes related to f ‘a class of cases in which the public interest demanded special protection, ’ ’ and the language of the opinion in Baugher v. Rudd, supra, is as applicable to the present case as to that one. We are of the opinion therefore that the circuit court was correct in holding' that the appeal was not taken in the manner prescribed by statute, and in dismissing the appeal.

Judgment affirmed.


text:
    Carolus v. Arkansas Light & Power Company.
    Opinion delivered June 2, 1924.
    1. Contract — action for breach — parties.—Where a contract between a landowner and a power company contemplated that the latter would install motors and furnish power for the operation of a pumping plant on a rice farm, but nothing to show that it was made for the benefit of the former’s tenant, such tenant was not a beneficiary, of the contract, nor a proper party to an action for its breach.
    2. Evidence — contemporaneous parol agreement. — Where a power company contracted with the owner of a rice field for power to be used in pumping water and provided that it superseded all previous contracts, it was not error, in an action on the contract, to exclude testimony of the landowner as to a contemporaneous verbal contract under which he was operating.
    3. Appeal and error — theory and grounds of decision of lower court. — The Supreme Court will not reverse a correct ruling of the trial court, although an erroneous reason was given for such ruling.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Geo. G. Lewis, for appellants.
    1. These are the established and salient facts: The owner leased the rice farm to a share-cropper, under an arrangement whereby they were to become equal owners, or tenants in common, of the crop. The owner arranged for electric power with a public service corporation, and, knowing that the tenant was unskilled in the operation of electrical machinery, arranged also that the company should exercise general supervisory control and direction over the machinery and keep it in operation.^ The tenant, in reliance on this arrangement, undertook to- make the crop and to carry out his part of the contract,, and the company undertook to install and. keep in operation the machinery, and to give the agreed supervisory service. We think the court erred in dismissing the tenant from the case in limine, and that the correct rule is stated in Ruling 'Case Law, p. 884. See also 144 Ark. 8; 46 Ark. 132; 65 Ark. 27; 93 Ark. 346; 121 Ark. 414.

      2. In this case the agreement was made solely for the purpose of enabling the appellants to make a rice crop. The company undertook to carry out its contract with knowledge that failure upon its part must inevitably entail loss to the rice crop. This case does not differ in principle from the case of Harrington v. Blohm, 136 Ark. 231.'

      John L. Ingram, for appellee.
    1. The tenant, Burger, was not a party to the contract sued. While it is true that, where a promise is made to one party for a sufficient consideration for the benefit of another, the beneficiary may sue, that is true only where the contract was made for the third party’s benefit as the direct and primary object, or the promisor has received money or property in the nature of a trust, under which the duty devolves upon him to perform the promise. Benjamin on Contracts, 66, and cases cited; 98, U. S. 124, 77 No. 307; 117 Pa. 606. Aside from this, Burger, in his lease contract with Carolus, agrees “ * * '* to look after electric motor and see that it is properly operated * * ? to look after the motor and improvements and take good care of same, except usual wear and tear of such improvements.” He was therefore joined in a .suit for damages against appellee for failure to perform duties which he himself was to perform. His duties were fixed by that contract, which was made on April 19, 1921, whereas the contract between Carolus and appellee was not entered into until in June following. The lower court was right in holding that the damages sued_for-were remote and speculative. 128 Ark. 167. But whether remote and speculative or not, is immaterial. It was necessary to prove actual damages, and appellants neither proved nor offered to prove such damages. C. & M. Digest, § 1231.
   Wood, J.

Dr. Carolus, a citizen of Illinois, owned a rice farm in Arkansas County, Arkansas. On the 19th day of April, 1921, he entered into a contract with one J. W. Burger by which he leased the farm to Burger for the year 1921, and agreed to furnish a complete irriga1 tion well, with all the electric appliances and power for operating the same. Burger was to look after the electrical motor and improvements and to take good care of the same, except as to wear and tear, and see that the motor was properly operated, and haul lubricating oil for the motor and pump. He was to cultivate the land, and the crop was to be equally divided between him and Carolus. On June 15,1921, the Arkansas Light & Power Company (hereafter called company), a corporation of Arkansas, entered into a contract with Carolus, which, after reciting that the company had been engaged in furnishing electrical energy to Carolus for pumping purposes, agreed that it would continue to furnish electrical power to Carolus’ premises as from May 1, 1920, for a period of five jmars, at a stated compensation, to begin on May 1, 1921.

This action was instituted by Carolus and Burger against the company to recover damages for injury to their rice crop. They set up the lease contract between themselves, and alleged that the company had sold and installed the motors on the rice farm of Carolus, and that it was under contract to supply the power to operate the same, knowing that plaintiffs could not obtain water to irrigate the crop in any other manner; that the motors required technical skill for their installment and subsequent operation, and that, as an inducement to the sale of the motors, the company agreed to properly install the same and to supply the technical skill and direction necessary for their operation during the crop season of 1921; that the company directed that no alterations, repairs, or changes should be made, except upon its• direction; that the company failed to properly install the motors, and failed and neglected to give proper direction and supervision to the operation of same, thereby causing the pumping plant to be idle frequently; that, because of such defective installation and operation, one of the motors set fire to the building in which it was housed, and both building and motor were destroyed. Plaintiffs alleged that, but for the interruption to the operation of the pumping plant and the shortage of water which was essential to the rice crop, the plaintiffs would have made at least 6,800 bushels of rice, worth 90 cents a bushel, which they had planted on the one hundred acres, in reliance upon the company’s agreement; that, because of the company’s default as mentioned, they made only 1,536 bushels of rice; that the net damage to plaintiffs, because of such default, amounted to the sum of $4,000, for which, they asked judgment.

The defendant answered, denying the allegations of the complaint as to damages and"as to its alleged default in performing its contract. It averr'ed that ‘ ‘ it had nothing whatever to do with the operation of the pumping plant and nothing to do with its installation, and was under no agreément to direct the operation óf the same. ’ ’ The defendant also moved to strike plaintiff Burger as a party,, alleging that he had no interest in/the suit, and that the complaint did not state a cause of action as to him, and that he was improperly joined as party plaintiff.

The court sustained the motion, and the cause proceeded between Carolus and the company.

Carolus testified substantially as follows: That, during the year 1919, he ascertained that one of the motors on his rice farm was too light, and entered into negotiations by which the company, for the sum of $80, agreed to take the lighter motor and install one of higher power. As a part of the agreement for the exchange, the company agreed to keep up the motors and superintend their operation. During the year 1920 the company furnished current, but the service was imperfect, and, after the pumping season was over, witness complained to the company, stating that he had practically lost his rice crop on that account, and that he did not want a repetition of it the next year. The company assured him that he would be taken care of the next year, and would have no trouble. The next year witness entered into the lease contract with Burger and into the power contract with the company above mentioned. Witness testified that the clause in- the lease contract which required 'Burger to look after the electrical motor and see that it was properly operated and to haul lubricating oil, etc., simply meant that Burger was to start and stop the motor, oil it, etc., but, when any trouble developed, he was to notify .the company, and it was to send out its own employees to remedy the difficulty, in accordance with its contract. Burger was not an electrician, and witness was' not an electrician, and did not know whether the motor acquired from the company in the exchange referred to was properly installed, but such motor gave trouble until it was burned.

Burger testified, and explained the method of operation of the pumping plant and as to the defects therein. He stated that the company’s, manager told .witness that the relift plant was so wired that the company had only one man to take care of it, and he came and started the motors. The company’s manager told witness not do do anything to the motors when there was trouble, but to notify the company. Witness explained that some of the company’s men, in -attempting to fix the defects in the starter to the motor, had taken out a coil. This coil had never been replaced and the starter never fixed, though the employees were -called many times because of stoppages. Finally, a fire developed, which burned up the -motor and the building. The company replaced the motor with one of smallar size than the one destroyed by fire, -and witness protested that it was not suitable. It was., used, however, for the balance of the season. -It threw a fifth less water than the other motor, and this, with the previous shut-downs, .prevented a sufficient supply of water to mature the rice crop. Witness knew nothing about electricity, and was absolutely dependent on the -company’s employees when trouble occurred in the pumping plant, and the company knew that witness had no other .way to get water.

The court, over the objection of Carolus, refused to allow testimony to the effect that, because of the company’s failure to remedy the defects in the motor and direct the operation of same, only 1,536 bushels were matured on the 100 acres, whereas, if the machinery had operated in the usual manner and there had been no interruption on account of the fire, the witness would have made, judging from .the yields in neighboring fields, 6,800 bushels of rice, which would have been sold at the current market price of 90 cents per bushel, of which Burger would have received half. The court, also over the objection of Carolus, refused to allow testimony to the effect that the representatives of the company, at numerous times between the 15th of June and the day of the fire, agreed to remedy the defect in the starter connected with the motor, and that it was in reliance upon that agreement that Carolus made no effort to have the same remedied by other persons; that Burger knew nothing about electrical appliances, and did not know what was necessary to be done to remedy the defect.

The court thereupon instructed the jury to return a verdict in favor of the company, which was done. Judgment was rendered against recovery by the plaintiffs, and for costs, from which is this appeal.

The first question for decision is whether or not the court erred in holding that the complaint failed to state a cause of action in favor of Burg*er, and that Burger was not a proper party plaintiff, and in dismissing the complaint as to him.

In Thomas Mfg. Co. v. Prather, 65 Ark. 27, we said: ‘.‘This court long ago ruled, in line with the doctrine which generally obtains in this country, that, where a promise is made to one upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promisor for a breach of his promise. This doctrine operates as an exception to the elementary rule of law that a stranger to a simple contract, from whom no consideration moves, cannot sue upon it. Therefore it should be applied cautiously, and restricted to cases coming clearly within its compass. ‘There must be, first, an intent by the promisee to secure some benefit to the third party; and second, some privity between the two— the promisee and the party to be benefited — and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him, personally.’ ” The doctrine of this case has been since approved in Dickerson v. McCoppin, 121 Ark. 414, and Schmidt v. Griffith, 144 Ark. 8; see also Spear Mining Co. v. Shinn, 93 Ark. 346. In Dickerson v. McCoppin, supra, we quoted the following from B. C. L.: “Under the rule that a beneficiary may enforce a -contract, 'the contract must have been intended for the benefit of a third person. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties. The fact that one not a party or privy to a contract is incidentally benefited under it is no reason for declaring that the contract was made and intended for his benefit.”

Where, from the language of the contract itself or the testimony aliilnde, it could be said that it was the intention of the parties to the contract to confer a direct benefit upon a third person, then such person may sue on the contract. It is not necessary. that the person be named in the contract, if he is otherwise sufficiently described or designated; he may be one of a class of persons, if the class is sufficiently described or designated. Applying the above doctrine to the facts of this record, we do not discover that the parties to the contract had in mind any benefit to accrue directly to Bur-’ ger in the performance of the contract. True, as an inci-/ dent to the performance of the contract he would be benefited. The allegations of the complaint show that appellee was under contract to supply electric power to. Carolus for operating his pumping plant for the season of 1921; that appellee had-sold and installed motors knowing that Carolus -could obtain water to irrigate his rice crop in no other way, and that, as an inducement to the sale of these motors and to the contract for supplying electric power to Carolus, the appellee had agreed to properly install the motors and to supply the requisite technical skill and direction for their operation during the season. There is no language.in the complaint or in the alleged oral or written contract indicating that the parties to it contemplated that it was made directly for the benefit of Burger, or any other tenant of Carolus, and Burger was not specifically named, nor were any tenants named as a class. There is nothing in the allegations of the complaint, the written contract, or in the testimony aliunde, to show that Carolus was to lease his rice farm or that same was to be cultivated by sharecroppers. The record shows nothing more nor less than a simple contract on the part of the appellee to install motors for Carolus and supervise and direct their operation and any alterations or repairs necessary to keep them in operation, and to furnish power for the operation of the pumping plant on Carolus ’ rice farm, without any intimation or suggestion that the purpose of the oral or written contract was to benefit any third person. We conclude therefore .that Burger was not a beneficiary of the contract between the appellee and Carolus, and does not come clearly within the compass of the doctrine of our cases, supra, and hence the court did not err in holding that he'was not a proper party, to the action.

It will be observed, from the allegations of the complaint, that the appellants bottom-their action upon an alleged breach of an oral contract on the part of the appellee to properly install electric motors for Carolus, and to direct and supervise any changes or alterations, and to direct their operation, and to keep the same in working order during the season of 1921. The only testimony tending to sustain this allegation is that of Carolus, to the effect that, after the pumping season for the year 1920 was over, witness went to appellee’s office in Stuttgart and complained that there had been a good deal of trouble with the motor; that something was wrong with the starter to the motor, and that the fuses would frequently burn out. He had practically lost a crop of ricé on that account, and did not want a repetition of it the next year. He was assured that he would be taken care of the next year, and would have no trouble. When witness bought the place the appellee had a contract with Webb-to supply electric power for pumping purposes which had two or three more years to run. Witness supposed that this contract went with the land, and that he was operating under that contract for the year 1921, but, in the meantime, Webb had bought another rice farm, and claimed this contract. Appellee thereupon insisted that witness make another contract for power with it, and, under the pressure of his need for water to save his crop, such contract was made. This is the power contract before referred to. The power contract to which witness referred contained .this clause: “This contract and the terms hereof supersede any and all contracts previously entered into by and between the parties hereto,” etc.

The appellants made the following offer of proof: “We offer to prove by this witness that, when he made answer that he was operating under the Webb contract at all times until the contract of June 15,1921, was signed, he simply meant that he was operating under that contract so far as rates and matters of that kind were concerned; that the arrangements for the exchange of motors and the agreement by the defendant to install and furnish supplies for and look after the operation of the motor was a separate verbal Contract, but changed in the Webb contract.’-’ The court ruled correctly in not permitting the above proof to be made, for it would have been in direct contradiction of the above 'clause of the written'contract of June 15, 1921; which, by its express terms, “superseded any and all contracts previously entered into between the parties.” The appellant therefore failed to sustain the allegations of the complaint as to the oral contract upon which they predicate their cause of action.'

The testimony of ’Carolus to the effect that the appellee promised to take care of him for the year 1921 was not sufficient to show proof of the verbal contract set up in the complaint, nor was the offered testimony of Burger, to the effect that the representatives of the appellee, at numerous times between the 15th of June and the day of the fire, agreed to remedy the defect in the starter connected with the motor, and that it was in reliance upon this agreement that the appellants made no effort to have the same remedied by other persons. This testimony did liot show any consideration for the alleged oral contract, and was otherwise too indefinite to establish such a contract. Appellants do not seek to recover damages for a breach of the written contract to furnish power. If the proximate cause of the loss of appellants was the failure to properly install electric motors and to keep same in good repair and operation, and if appellee was under no contractual obligation to do this, then the appellee was' not liable to the appellants in damages for the loss they sustained. Therefore, before the appellants could recover under the allegations of their complaint, it was necessary for them to prove the verbal contract and its breach, as set up in the pleadings. This they have not done. Learned counsel for the appellants say that the trial court conceded the right of the appellants to recover for the building and machinery, had such recovery been asked, but say that the court was of the opinion that damage to the rice crop was remote and speculative, and not within the contemplation of the parties. The record does not disclose what reasons the court had in mind for directing a verdict in favor of the appellee. But, whatever may have been the reasons for such direction, the ruling was correct. This court- will not reverse a correct ruling of the trial court, although an erroneous reason may be given for such ruling.

The judgment is affirmed.


author: Hart, J.

text:
    White v. State.
    Opinion delivered June 2, 1924.
    1. Criminal law — sufficiency of evidence. — In testing the legal sufficiency of evidence to sustain a conviction, it must be considered in the light .most favorable to the State.
    2. Homicide — involuntary manslaughter. — One driving an automobile upon a public highway while drunk, and at a greater speed than allowed by statute, may be found guilty of involuntary manslaughter if he thereby causes another’s death.
    3. Criminal law — instruction as to accused’s character. — An instruetion’that, if the jury find that defendant was a man of good character, they might take this fact into consideration in determining his guilt or innocence, but, if they believe from all the evidence, beyond a reasonable doubt that defendant is guilty, they shall so find, notwithstanding his good character, held ' correct.
    'Appeal from. Arkansas Circuit Court, Northern District; George W. Clarke, Judge;
    affirmed.

      Gray é Morris, for appellant.

      J. 8. Utley, Attorney General, -and John L. Carter, Assistant, for appellee.
   Hart, J.

Shannon White was convicted before a jury of the crime of involuntary manslaughter, and, the punishment being left by the jury to the court, he was sentenced to the State Penitentiary for ninety days.

Prom the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

It is first earnestly insisted that the evidence is not legally sufficient to support the verdict."

It appears from the record that the defendant, Shannon White, operated a service car out of England, in Lonoke County, Arkansas, and that he had done so for about seven years before the date in question. On the 15th day of December, 1922, S. C. Hendrix employed the defendant to take him from England to a sawmill near DeWitt, Arkansas. Hendrix was going thére to try to find Ashley Stilwell, who had robbed him of $291. He carried with him Mrs. Lona Watkins, who was acquainted in the neighborhood where they were going. The weather was very cold, and.Mrs. Lona Watkins rode on the front seat with the defendant, who was driving the car. They left England about eight o’clock p. m. and reached their destination about twelve o’clock p. m. Hendrix failed to find the man he was looking for, but found out from Mrs. Watkins that he could purchase some whiskeyj He first bought a quart jar with some whiskey in it, and then sent a man for some more. The man returned later in the night with two five-gallon kegs of whiskey, which were delivered to Hendrix. Hendrix insisted upon putting the two kegs of whiskey in the automobile. White protested against hauling the whiskey, but finally consented to do so. They started back to England about four o’clock in the morning. Hendrix rode on the back seat, and Mrs. Watkins rode on the front seat with the defendant, who drove the car. When they got back on the turnpike, going towards England, the defendant drove the car at a speed of twenty-five miles an hour, according to his own testimony. He says that he drove at this rate for about twelve miles, and then checked the speed of the car to something like eighteen or twenty miles. Mrs. Watkins had become drunk, and attempted to take hold of the steering wheel and run the car. This caused the car to get partly off of the turnpike, and the defendant, seeing that it was going to strike a culvert a short distance in front of them, tried suddenly to turn the car back on the turnpike. The sudden turn of the car caused it to turn over, and the defendant and Mrs. Watkins were pinned down under the car, in a pool of water. Hendrix extricated himself from the car, and reported the accident to some people who lived near by. When they arrived at the scene of the accident, Mrs; Lona Watkins was dead, and the defendant, White, was nearly dead from cold.

According to the testimony of both Hendrix and the defendant, Mrs. Watkins was drunk at the time of the accident. Hendrix had been drinking whiskey, and says that he was asleep on the back seat at the time of the accident. Hendrix said that they had all drank about a quart of whiskey before the accident occurred.

The defendant admitted that he had taken one drink of whiskey on their return, after the car got on the turnpike, but denied being drunk, or that he drank any more whiskey.

The people in the neighborhood' who were called to the scene of the accident said that the defendant was either stupefied with drink or with cold. M physician who was called in testified that, in his opinion, the defendant was drunk. ‘ ■

One of the witnesses for the State testified that it Was probably an hour before they' were able to get any sense out of the defendant; and that the reason for this Was that he was either drunk or knocked crazy; that he made an examination of the ground with reference to where the car left the road; that it appeared as though the car gradually left the turnpike 200 yards or more before it came to the culvert, and gradually got a little farther off, and that it looked like it made a sharp turn, and this turned the oar over.

The accident occurred just about daylight, and it appears, from the tracks of the automobile, that it partly left the rock of the turnpike about 150 or 200 feet before it turned over. The car made a short turn, as if the driver was trying to get all of the wheels back on the hard surface of the road, and the sudden turn was the cause of the car’s turning over. It appears from the tracks that the car left the hard surface of the pike at an angle and went straight along after the wheels on the right side left the pike. The wheels on the right of the car hugged the edge of the pike. The wheels on the left remained on the hard surface of the1 .pike.

Section 7426 of Crawford & Moses’ Digest provides that no person shall drive a motor vehicle upon any public highway in this State at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property.of any person..

The section further provides that, if the rate of speed of any motor vehicle operated on any public highway outside the closely built-up business portion or residence portion of any incorporated city, town or village, exceeds twenty miles an hour for a distance of one-fourth of a mile, such rate of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed) greater than is reasonable and proper, having regard to the traffic and the use of the way, so as to endanger the life or limb or injure the property of any person.

Section 2626 of the Digest provides that any person who shall appear upon any public highway in a drunken condition shall be deemed guilty of a misdemeanor.

In testing the legal sufficiency of the evidence to support the verdict, it must be considered in the light most favorable to the State. When so considered it is fairly and legally inferable from the evidence that the defendant was drunk at the time the accident occurred, and that he was driving at a greater rate of speed than allowed by the statute. One. of the purposes of these statutes is to prevent accidents and to preserve persons from injury.

The jury might have found the defendant guilty of gross negligence in operating the automobile upon a public highway; and one doing so and occasioning injuries to another, causing death, may be found guilty of involuntary manslaughter. Bowen v. State, 100 Ark. 232; Edwards v. State, 110 Ark. 590; Madding v. State, 118 Ark. 506; People v. Townsend (Mich.), 183 N. W. 177, 16 A. L. R. 902; and Schultz v. State (Neb.), 130 N. W. 972, 33 L. R. A. (N. S.) 403.

It is next insisted that the court erred in giving instruction No. 7, which reads as follows:

“There has been some testimony here offered with reference to the former good character of the defendant, that calls for an instruction upon, the part of the court. Good character is no defense to crime, where guilt is established, and that to the satisfaction of the jury, then such good character, if proved, should not be considered by you. If you have a reasonable doubt as to whether or not he committed the offense, or as to whether or not he operated the car in a careless, reckless or wanton manner, as charged in the indictment, 'then such good character should be considered by you, and, if such reasonable doubt still exists, turn the scales in favor of the accused, and a verdict of not guilty returned, but, when guilt is established, then it is no defense to crime and should have no weight in the consideration of the jury in determining the question of his guilt or innocence.”

In this connection it may be stated that the court gave other instructions on the - question of reasonable doubt. While the instruction is not' in proper legal form, we do not think the judgment should be reversed for giving it. No specific objection was made to it. In a criminal prosecution, evidence of the accused’s general good character is admissible with regard to the particular trait involved in the nature of the charge. The trait of character which may be proved depénds upon the nature of the crime charged and the moral wrong involved in its commission. Seaton v. State, 151 Ark. 240.

The court should have told the jury that, if they found that the defendant was a man of good character, they might take this fact into consideration in determining the question of his guilt or innocence; but that.if they believed, from all the evidence in the case, beyond a reasonable doubt, that the defendant was guilty, they should so find, notwithstanding his good character.

We think that, when the instruction is considered as a whole and in connection with the other instructions on the question of reasonable doubt, the court meant to instruct the jury as we have just indicated. If the defendant thought otherwise, he should have made a specific objection to the instruction, and doubtless the court would have corrected it. The instruction, in question plainly tells the jury that it should not convict the defendant if it had a reasonable doubt as to whether or not he committed the offense, and the evidence of his good character would, of course, bfe considered by the jury in reaching that conclusion. This holding is in accord with the reasoning of the court in the case- of Seaton v. State, 151 Ark. 240.

Several witnesses in behalf of the defendant testified that his reputation for peace and sobriety was good. It must be presumed that the members of the jury were of reasonable information, and carried into the jury box their experience and understanding in the ordinary affairs of life. We do not think that the jury could have understood the instruction to mean that the evidence of the good character of defendant should not be considered by it in arriving at its verdict. The court made it plain to the- jury throughout its instructions that the defendant could not be convicted unless the jury was satisfied of his guilt from the evidence beyond a reasonable doubt, and, in determining his guilt or innocence within the meaning of the instruction, the jury was told that it could consider the evidence of the good character of the defendant for peace and sobriety.

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


author: Hart, J.,

text:
    Road Improvement District No. 4 v. Smith.
    Opinion delivered June 2, 1924.
    Taxation — collector’s commission. — Under Road Acts 1919, vol. 2, p. 2286, § 12, providing that the tax collector shall receive the same commission for collecting road taxes as for county and State taxes, held that the gross amount of road taxes collected each year must he added to the total amount of county and State taxes collected for same year, and on the whole his commission is to he as fixed hy Crawford & Moses’ Dig., § 10071.
    Appeal from Cleveland Circuit Court; Turner Butler, Judge;
    reversed.
    STATEMENT OP PACTS.
    Road Improvement District No. 4, Cleveland County, Arkansas, brought this suit in. the circuit court against John E. Smith, as collector of Cleveland County, Arkansas, to recover from him excessive amounts charged for the collection of road district taxes.
    According to the allegations of the complaint, the plaintiff is a road improvement district created by a special act of the Legislature, approved April 2, 1919. The plaintiff was created for the purpose of improving a designated public road in Cleveland County, Arkansas, and the Legislature described the lands which were included within the boundaries of the district. In compliance with the provisions; of the act, the plaintiff caused an assessment of benefits to the lands to be made and entered in an assessment book. The assessment book so made was duly delivered to John E. 'Smith, sheriff and ex-officio collector of taxes of Cleveland County, Arkansas. Said assessment book contains a description of each tract of land within the boundaries of the district, together with the name of the owner and the amount of taxes to be collected for the plaintiff, as levied by the commissioners of said improvement district.
    During the tax collecting period for the year 1920 the defendant collected road taxes for said district in the amount of $9,061.62, and at the same time State and county taxes to the amount of $81,270.12. During the tax collecting period of 1921 the defendant collected for said district road taxes amounting to $9,031.80, and State and county taxes amounting to $90,880.09. During the tax collecting period of 1922 the defendant collected road taxes for said district amounting to $8,800.99, and State and county taxes amounting to $86,334.95. The defendant, in paying over the road taxes to the treasurer of the road improvement district, deducted a commission each year for collecting the taxes in the sum of 5 per cent., being more than he was entitled to as commissions for collecting said road taxes.
    The prayer of the complaint is that the plaintiff have judgment against the defendant for the sum of $683.29, with interest, as specified in the complaint.

      The defendant filed a demurrer to the complaint, which was -sustained by the court. The plaintiff refused to plead further, and it was adjudged that the complaint should be dismissed. The case is here on appeal.

      Rowell <0 Alexander, for appellant.
    Section 10071 C. & M. Digest provides for the fees to be allowed the collector’ for general taxes, and by the special act creating the district the same fee is fixed for collecting the road tax. The method of computing the commission allowed the sheriff is particularly set out in 51 Ark. 212, which is to be upon the aggregate amount collected. Any other computation is erroneous. 101 Ark. 358; 112 Ark. 91.

      W. B. Sorrels, for appellee.
    The act plainly states that that commission is to be 5% on the first ten thousand dollars collected, and -does not read that the commission shall be the ‘1 average percentage” nor a “just ratable proportion.” The office of interpretation is -to, bring sense -out of words used, not to bring sense into them. 47 Ark. 404. The language being plain and unambiguous, the court cannot give it a different meaning to subserve public policy or to maintain its constitutionality. 59 Ark. 237. The Legislature must -be understood to mean what it has plainly expressed, and this excludes construction. 65 Ark. 521; 93 Ark. 42. See also 74 Ark. 302.
   Hart, J.,

(after stating the facts). The correctness of the decision of the court below depends upon the construction to be placed upon § 12 of the act creating the road improvement district in question. See Boad Acts of 1919, vol. 2', p. 2286. Section 12 reads as follows:

“The secretary of the board shall each year, on or before the first day of January, make out and deliver to the collector of Cleveland County a book showing all lands, railroads and tramroads, telegraph, pipe and telephone lines and street-car lines within the district, in parcels as the same appears -upon the county assessment book of Cleveland County, the name of the owner there appearing, and the amount of taxes to be collected for Road Improvement District No. 4 in Cleveland County, as levied by the commissioners of said district, and it is made the duty of the collector of said county to collect said taxes, along with the other taxes, and for his services the collector shall have and receive the same commission that he is allowed for collecting the taxes of the county and State. Said taxes, when collected, shall be paid over to the treasurer of the district at the same time he pays over the county funds. If the collector shall fail to collect the taxes hereby provided for, along with the other taxes, he shall be subject to a penalty of one hundred dollars for each instance in which he shall collect from an individual the other taxes and omit tbe road tax provided for herein, unless the said road tax has been enjoined by a court of competent jurisdiction, the said penalty to be recovered in a suit by the commissioners to the use of the district. ”

The section makes it the duty of the collector to collect the road taxes along with tbe other taxes, and provides that be shall receive the same commission therefor that be is allowed for collecting the taxes of the county and State.

Section 10071 of Crawford & Moses’ Digest providing for the fees to be allowed the collector for collecting State, county and general taxes, is as follows:

“Said collector shall be allowed commissions for collecting the revenue as follows: For the first ten thousand dollars collected, five per cent, in kind; for all sums over ten thousand dollars and under twenty thousand dollars collected, three per cent, in kind; for all sums over twenty thousand dollars collected, two per cent, in kind.”

In Wilson v. State, 51 Ark. 212, it was held that the commission of the collector is limited by this statute to five per cent, upon the first ten thousand dollars of the whole amount of taxes collected, three per cent, upon the next ten thousand, and two per cent, upon the excess over twenty thousand. dollars, where the aggregate amount collected exceeds the latter sum.

. The decision of the circuit court was based upon the theory that the compensation of the collector for collecting the road taxes should be made under the rule laid down in the case just cited, without taking into consideration the amount of State and county taxes collected by him. This was error.

Section 12 of the road act provides that the secretary of the board shall make out and deliver to the collector a book showing all the lands in the district in parcels as the same appears upon the county assessment book, the name of the owner there appearing, and the amount of taxes to be collected for the road improvement district as levied by the commissioners of the district. It is made the duty of the collector to collect said 'taxes along with the other taxes, and for his services the collector shall have and receive the same commission that he is allowed for collecting the taxes of the county and State.

Thus it will be seen that the State, county and road taxes are collected at the same time and in the same manner. The act provides that the road taxes shall be collected as other taxes, and that the collector shall have the same compensation for collecting them. The Legislature evidently intended the collector to be paid in the same way 'and at the same rate at which he was paid for collecting the county and State. That is to say, for the purpose of ascertaining the compensation due the collector, the gross amount of the road taxes collected each year shall be added to the total amount of the county and State taxes collected by him for the same year, and upon the whole the collector’s commission shall be fixed by § 10071 of Crawford & Moses’ Digest, as construed in the case above cited.

As bearing on the question and as tending to sustain the construction we have placed upon the statute see McGlone v. Womack (Ky.), 111 S. W. 688, 17 L. R. A. (N. S.) 855.

It follows that the judgment must he reversed, and the causé will be remanded with directions to overrule the demurrer to the complaint, and for further proceedings according to law and consistent herewith.


text:
    United Drug Company v. Bedell.
    Opinion delivered June 2, 1924.
    1. Appeal and error — time for filing transcript. — In a proceeding in chancery the time for filing the transcript on appeal is not extended by filing a motion to vacate the decree.
    2. Appeal and error — time for filing transcript. — Where a decree, entered of record on March 19, recited that same was rendered on January 30, a transcript on appeal filed more than six months after the latter date is too late.
    3. Judgment — amendment.—Every court of record has control over its judgments and decrees, and may, even after the term has ended, correct clerical mistakes and cause them to speak the truth.
    -Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    appeal dismissed.

      Reinberger & Reinberger, for appellant.

      Rowell & Alexander, for appellee.
    The appeal was not perfected within the time allowed by law and should be dismissed. 152 Ark. 581 ; 157 Ark. 351; 122 Ark. 255; 134 Ark. 386.
   Hart, J.

This suit was broug'ht by appellee against appellant in the Jefferson Chancery Court to enjoin the appellant, United Drug Company, from prosecuting a suit against appellee in the Jefferson Circuit Court, and to reform certain notes signed by him and payable to the order of United Drug Company.

Appellants filed an answer denying the allegations of the complaint, and asking that it be dismissed for want of equity.

It appears from the record that the United Drug Compahy brought suit in the municipal court in the city of Pine Bluff, Jefferson County, Arkansas, against A. Gr. Bedell on a series of notes, twenty-six of which were for $25 each, and the remaining one for $13.82. A. Gr. Bedell defended the suit on the ground that he had signed the notes as agent of his wife, Julia S. Bedell, who was the owner of Bedell’s Pharmacy, and that, by mistake, the name of the principal was not inserted in the notes before they were sent to the United Drug Company. The case went from the municipal court on appeal to the circuit court, and A. Gr. Bedell was allowed to prove in the circuit court, by parol evidence, the defense relied upon by him that he had signed the notes as agent for his wife. He recovered judgment in the circuit court, and the United Drug Company duly prosecuted an appeal to this court.

The judgment was reversed on the ground that it was not competent to show by parol evidence that A. Gr. Bedell signed the notes sued on as agent merely for his wife. The opinion was delivered July 12, 1920. United Drug Co. v. Bedell, 145 Ark. 96.

The present suit was instituted in the chancery court on the 5th day of October, 1920. The answer of appellants, who were defendants in the court below, was filed on the 12th day of February, 1921. It appears from the transcript that an opinion and decree in favor of appellee against appellants was entered of record in the chancery court, in book. 30, p. 70. The caption is as follows:

“In the Jefferson Chancery Court — Tuesday, January 30, 1923 (November Term). A. G. Bedell v. United Drug Company et al.—No. 8063.”

Then follows the opinion of the court, making a specific finding in favor of A. Gr. Bedell and ending with a decree enjoining the United Drug Company and the other appellants from prosecuting a suit against A. Gr. Bedell on the notes in question.

The decree also directs that the notes be reformed so as to show that they were signed by A. B. Bedell as agent of 'Bedell’s Pharmacy.

On the next page of the transcript in the present case we copy the following:

“In the Jefferson Chancery Court, Monday, March 19, 1923 (November Term). Decree. A. G. Bedell v. United Drug Company et al.—No. 8063.
“Now on this 2d day of January, 1923, comes on this cause for hearing, comes the plaintiff by his attorneys, Rowell & Alexander, and comes the defendant, United Drug Company, by its attorneys, Reinberger & Reinberger. And this action, having been reached upon the call of the calendar, is submitted.to tlie court for its consideration and judgment, upon the complaint, the answer of the defendant, the demurrer of the plaintiff and the order of the court thereon, and the petition requiring the plaintiff to execute a bond for the restraining order heretofore issued, the deposition of A. G. Bedell, original notes in question, and agreed statement as to testimony of W. C. Hudson, on behalf of the plaintiff, and the deposition of George W. Skuse and Irving Reinberger on behalf of the defendant, and the court took-the matter under advisement. And that on the 30th day of January, 1923, the court, being well and sufficiently advised as to all matters, rendered the following opinion upon the facts.”

Pages 122,123, and 124 of the transcript contain the opinion and decree of the court. The opinion contains a specific finding in favor of the appellee against appellants, and concludes as follows:

“Under these circumstances, the court is of the opinion that the defendants should be enjoined from prosecuting the suit now pending in the circuit court, and that the notes sued on should be reformed by the insertion of the words, ‘Bedell’s, per’ over the signature of the plaintiff.
“It is so ordered.”

Immediately following is the decree of the court. ■ It is decreed 'that the United Drug Company and its codefendants be perpetually enjoined from prosecuting a suit on the notes in question pending in the Jefferson Circuit Court, in the case of the United Drug Company v. A. G. Bedell.

It was further agreed that said notes should be reformed so as to show that they were signed by A. Gr. Bedell, as agent for Bedell’s Pharmacy.

The transcript was filed in this court on August 14, 1923. A. Gr. Bedell filed a motion to dismiss the appeal on the ground that the transcript was not filed in this court within the time allowed by statute.

Appellants filed a response to the motion to dismiss the appeal. In its response the United Drug Company states that it did not know that a decree was rendered in the case on January 30, 1923, in the Jefferson Chancery Court, and was misled by the filing of the decree on March 19,1923, in the same case in the same court.

One of the attorneys for the United Drug Company filed an affidavit with the response. In it he stated that some time immediately after January 30, 1923, he received through the mail from the chancellor what purported to ibe his opinion, and several days later the decree of the court. Immediately upon receipt of the decree he advised the chancellor that he would like to make some corrections in the decree, which he did, and, upon presenting them to the chancellor, the latter instructed the affiant to present the decree to the attorneys for appellee for their approval, which was done, and the decree was rendered on the-19th day of March, 1923. Upon receipt of the transcript about the 10th day of August, 1923, the attorney for appellant went to the office of the attorneys for appellee and asked them to enter their appearance in the Supreme Court. The attorneys for appellee, after examining the transcript, stated that the decree of January 30, 1923, had been omitted from the transcript, and this was the first time that the attorney for appellants knew that a decree had been entered in the case on January 30, 1923. The decree above referred to, purporting to have been rendered on January 30, 1923, was then inserted in the transcript.

Other matters are stated by the attorney for appellants in his affidavit; but, inasmuch as we do not deem them material to the issue raised, we do not insert them in the opinion.

In deciding the issue as to whether the appeal was taken in the time allowed by statute, we have considered that the decree was not entered of record until the 19th day of March, 1923.

Section 2140 of Crawford & Moses’ Digest provides that an appeal shall not he granted except within six months next after the rendition of the judgment or decree sought to he reviewed, unless the party applying therefor was an infant or of unsound mind at the time of its rendition.

In construing this section, this court has held that the time for taking an appeal to the Supreme Court is six months after the rendition of the judgment, or decree sought to he reviewed; and that, in a proceeding in chancery, this time is not extended by reason of the filing of a motion to vacate the decree. Oxford Tel. Mfg. Co. v. Arkansas National Bank, 134 Ark. 386, and cases cited.

Now it will be noted that, although the decree was not entered of record until the 19th day. of March, 1923, it was actually rendered on the 30th day of January, 1923. This is shown by the recitation of the decree itself. It specifically recites that, on the 30th day of January, 1923, the court, being well and sufficiently advised as to all matters, rendered the following opinion upon the facts. Then follows a specific finding of the chancellor upon the facts, with the conclusion that the court is of the opinion that the defendants should he enjoined from prosecuting the suit pending in the circuit court, and that the notes sued on should he reformed.

Thus it will be seen that there is an express recital in the decree that it was rendered on' the 30th day of January, 1923. The transcript was not lodged in this court until the 14th day of August, 1923, which was more than six months after the rendition of the decree appealed from.

It appears from the affidavit of the attorney for the ■appellant, filed in response to the motion to dismiss the appeal, that he knew the decree was entered of record on the 19th day of March, 1923. If he had read it carefullv. lie would have seen that it contained a recitation that it had been rendered on the 30th day of January, 1923, and this would have put him on notice that he must perfect Ms appeal within six months from the date of the rendition of the decree. If the recital in the decree that it was rendered on the 30th day of January, 1923, was a mistake, it should have been corrected then, or it could have been corrected at a later date so as to make it speak the truth. Inasmuch as the date when the decree is rendered fixing the time and the date when the time limited to appeals, begins to run, if that date is not correctly stated in the record entry, the record entry should he amended so as to make it appear according to the facts.

It is well settled in this State that every court of record has control over its own judgments and decrees, and has power, as well after the term has ended as while it lasts, to correct clerical mistakes and to cause them to speak the truth. Bobo v. State, 40 Ark. 224; Schoffield v. Rankin, 86 Ark. 86, and Bouldin v. Jennings, 92 Ark. 299.

The appeal was not taken within six months from the date of the rendition of the decree appealed from, and it follows that the motion of appellee to dismiss the appeal must be granted.

It is so ordered.