author: Humphreys, J.

text:
    Augusta Cooperage Company v. Dowdy.
    Opinion delivered June 20, 1921.
    1. Sales — existence op CONTRACT — jury question. — In an action against a buyer for breach of a contract to purchase all of the ash and gum logs to be cut and delivered during the logging season from the sellers’ lands, not to exceed one million feet, where the buyer denied having made such a contract, held that the question whether the buyer had entered into such a contract under the evidence was for the jury.
    2. Corporations — authority op agent — jury question. — Whether the agent of a cooperage company had apparent authority to make a contract to purchase logs held for the jury.
    3. Frauds, statute of — part performance. — An oral contract to purchase the entire output of logs during a logging season, not to exceed one million feet, is not void under the statute of frauds where the buyer had accepted and received a part of the logs so sold.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jackson, Judge;
    affirmed.

      J. F. Summers, for appellant; Geo. B. Webster, St. Louis, Mo., of counsel.
    1. Granting that there was a contract, it was within the statute of frauds and not enforceable. The timber claimed was of more than $30 in value, and there was no memorandum of writing, nor any delivery under the alleged parol contract. 79 Ark. 338; 20 Cyc. 247.
    2. The instructions given for appellee are vague and indefinite and assume as a fact that Thoma had authority to make the alleged contract. There is no proof in the record to show the quantity of logs nor any place of delivery.
    3. The uncontradicted evidence shows that Thoma did not have authority to malee a future contract for a season’s output of logs. On the question.of agency alone for the failure of proof the cause should be reversed. 105 Ark. 111. See, also, 174 S. W. 227; 215 Id. 646. Instruction No. 5 for appellee is especially víqíous and misleading.

      4. It was error to refuse the instructions asked by appellant, as they clearly state the law. 97 Ark. 613.
    6. A peremptory instruction should have been given for appellant. 132 Ark. 155; 126 Id. 405.

      H. M. Woods and Chas. F. Cole, for appellees.
    I. The contract was not within the statute of frauds. Appellees alleged and proved that they contracted to appellant for that season’s entire output of logs and appellant accepted and paid for three separate lots of logs. This was an acceptance of part .of the logs and removed the statutory bar. C. & M. Digest, § 5864; 79 Ark. 338.
    2. Thoma, who acted for appellant in making the contract, had authority to make it. Appellees dealt with him as a general agent, and had authority to bind appellant. The presumption is, in the absence of notice to the contrary, where one deals with an admitted agent that the agent is acting within the scope of his authority, and the burden is .on the principal to show the contrary. 100 Ark. 360; 112 Id. 63; 137 Id. 418. No attempt was made to show that appellees had any notice of any'limitations of Thoma’s authority, and the proof shows that they had- none. 105 Ark. Ill, relied on by appellant, is not in point.
    3. A contract was proved, and it was not void under the statute of frauds. Under the undisputed testimony' plaintiffs were entitled to recover, and the verdict is not excessive but sustained by the proof.
   Humphreys, J.

Appellees instituted this suit against appellant in the Woodruff Circuit Court, Northern District, to recover $1,568.40 for 6,000 feet of ash and 60,000 feet of gum logs alleged to have been delivered on the river at Lockhart Ferry, pursuant to an oral contract whereby appellees agreed and contracted to sell to appellant all the ash and gum appellees could cut and deliver during the season with three teams and two saws from appellees’ lands in Black River bottom.

Appellant interposed the defenses to the cause of action that (1) it did not enter into the alleged contract; (2) its agent was not 'authorized to make the alleged contract, and (3) if snob contract was made, it was contrary to the statute of frauds and void, because the value of the logs was more than $30, and the contract was not in writing1, signed by the parties.

. Relative to the contract, appellees introduced the following witnesses: Arthur Wilson, Albert Wilson, R. A. Dowdy, Cecil Sexton and G-. A. Patterson.

Arthur Wilson testified that, as the representative of appellees, be entered into an oral contract with Pete' Tboma, as representative of appellant, on or about the 26th day of August, 1920, to sell appellant all logs, during the logging season of 60 to 90 days, that be could cut and deliver with two saws and three teams, off the ap-pellees’ lands in Black River bottom; that the price agreed upon was $22.50 a thousand for soft woods, and $35.00 for ash; that Tboma scaled and took up three lots of logs under the contract, and, after the- fourth lot of about 66,671 feet was piled on the bank, the place agreed upon for delivery, Tboma refused to scale and take them up; that be said he would write the company; that, later, he stopped on his way up. the river and said: “Do you want your logs scaled?” and I said “Yes.” “I asked him if he would allow another scale, and he said ‘Yes.’ ” The company’s raftsman rolled 4,000 feet of this lot of logs in the river and they were taken up. The others were left on the river bank. _

Albert Wilson testified that he heard a conversation between Arthur Wilson and Pete Thoma relative to the purchase of the Dowdy timber; that, after Thoma bought his timber, he introduced the parties; that Thoma told Wilson he would take all the logs he could put out, up to a million feet, and pay $22.00 a thousand for soft woods and $35.00 for ash; that Wilson said he would run two saws and three teams; that he received appellant’s check for the logs, he sold it; that Thoma bought a great many logs up1 and doWn the river for appellant.

R. A. Dowdy testified that appellees employed Arthur Wilson as their "foreman to put out their timber in Black River bottom; that he Was informed by Wilson that Thoma had offered to tahe all "Wilson could put out with his force during the season, for $22.50 a thousand; that he told Wilson to let Thoma have all the logs; that the first scales contained a small amount of ash, and he accepted checks in full payment of the statement, in which a small amount of ash was figured in at $27.50 and $22.50 a thousand; that he had not conferred at the time with Wilson and did not know that the agreed price for ash was $35.00 a thousand; that, after Thoma refused to take up the logs, he saw E. J. Chalf ant, the manager of appellant company, and Mr. Chalf ant said: “If Thoma agreed to take your logs, he will do' so; ” that, afterward, he saw Thoma in the presence of Wilson, and Thoma did not deny the contract, but said appellant instructed him not to take up any more logs on the bank of the river; that Thoma raised the question about appellees having sold logs to others; that they never let anybody else have logs after Thoma began taking them.

Cecil Sexton testified that he heard Pete Thoma tell Arthur Wilson to get out all the logs he could, stating how many of them he would take at the same price; that, after the logs in controversy were on the bank, he heard Thoma tell Wilson as he came back down the river he would take up the logs.

G-. A. Patterson testified that, when Thoma was sealing and taking up logs, he heard him tell Wilson to go ahead and get out all the logs he could; that he would take them; that part of the last batch put on the bank by Wilson was rolled in the river and put in appellant’s raft.

Several of the witnesses testified that Thoma selected binders and floats for rafting the logs on appellees’ land, and had them out and hauled to the river bank for that purpose.

Relative to the contract, appellant introduced Pete Thoma, M. E. Collins, Z. S. Massey and E. J. Chalf ant.

Pete Thoma testified that he had no authority to buy logs for future delivery; that.the- only authority given him was to purchase logs on the bank of the river and to buy binders and floats to raft them; that he did not buy the entire output of appellees for that reason; that he bought three separate lots, on three separate and distinct contracts, from appellees; that he told Wilson as he went up the river that he would scale and take up the logs on the bank of the river, now in controversy, as he came back, but. at that time he had not received instructions from appellant company to quit buying logs; that he received notice after that time and refused to scale and take up the logs on the bank as he came back; that he only bought binders and floats which were necessary to raft the logs which he bought outright on the banks of the river as he passed along; that he bought no logs for future delivery.

M. F. Collins testified that, on September 22, 1920, he was at the Lockhart Ferry and heard a conversation between Thoma and Wilson; that Thoma asked Wilson' if he wanted his logs scaled, and Wilson said “No;” that Thoma said the log market might go down.

Z. S. Massey, the log superintendent for appellant, testified that Thoma was under him, and he under E. J. Chalfant; that the extent of Thoma’s authority was to buy the logs on the bank and binders and floats sufficient to raft them without waste; that Thoma bought logs up and down the river for appellant for five months, and bought one and a half million feet.

E. J. Chalfant testified to the same effect with reference to the authority conferred upon Thoma. He further testified that Mr. Dowdy came to him, and, in trying to convince him that appellant should take the logs left on the bank of the river, he told him that Thoma had gone so far' as to point out trees on their land to be cut for floats and binders; that he responded to Mr. Dowdy’s argument that he would take any logs which had been pointed cut by Thoma and cut and delivered for that purpose; that ho did not tell Dowdy that, if Thoma had contracted for the logs, he would take them.

At the conclusion of the evidence, appellant made a request for a peremptory instruction, which was. refused, and the refusal of the court to give this instruction is urged as reversible error.

There is a sharp conflict in the evidence as to whether Thoma agreed t'o buy appellees’ entire output of logs to be cut and delivered in the use of two saws and three teams, during the logging season, lasting from 60 to 90 days, not to exceed a million feet, at a stipulated price. On account of the 'Conflict in the evidence, this issue became strictly a jury question, and it was not error to submit that issue to the jury.

Whether or not there is any dispute in the evidence as to Thoma’s authority to make a contract for the future delivery of logs has given us some pause, but, after a very careful consideration of the evidence, we have concluded that a reasonable inference might have been drawn from all the facts and 'Circumstances in the case to the effect that he had apparent authority to make the contract. He was the only representative of appellant on the ground, and for five months bought a large number of logs, estimated at a million and a half feet, up and down the river. ' There was evidence tending to show that, when the dispute arose over the scaling and taking the logs up, the superintendent made no point that Thoma had exceeded his authority, but, on the contrary, said that if Thoma had agreed to take the logs', he would scale and take them up. Dowdy testified that Chalfant made a statement to that effect, and, if he did, it indicates that Thoma did not exceed his authority in making the contract. There being some substantial evidence therefore tending to show that Thoma acted within the apparent scope of his authority in making the contract, it was not error to submit that issue to the jury.

If Thoma had authority to make a contract for future delivery of logs on the bank of the river and made such a contract with appellees, through their agent, the contract was not void, as being contrary to the statute of frauds, for the undisputed evidence shows that he scaled and took up three batches of logs, as well as binders and floats with which to raft them. There was no controlling issue, therefore, in the case, sustained by the undisputed evidence, which warranted a peremptory instruction, and the court properly refused appllant’s request for a directed verdict.

Objections are urged to instructions given and refused. We have carefully examined both. We think every issue presented by the pleadings and evidence was presented to the jury under proper instructions.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Witham v. State.
    Opinion delivered June 20, 1921.
    1. Homicide — instructions.—Where in a prosecution for murder there was evidence tending to prove that had blood existed between deceased and defendant, and evidence tending to disprove that the killing was in self-defense, instructions upon murder in the first degree and upon murder in the second degree were not abstract.
    2. Homicide — abstract instructions harmless when. — When, under an indictment for murder, defendant was convicted of manslaughter, error in giving abstract instructions upon the higher degrees of homicide, or upon the súbject of malice and premeditation, were not prejudicial to defendant.
    8. Homicide — instruction as to various degrees. — An instruction, in effect, that if the jury found appellant was not guilty of murder in the first degree they might find him guilty of a lesser degree of homicide was not objectionable as impressing upon the jury that the court wanted the defendant convicted of some degree of homicide where the court told the jury that it was their duty to acquit defendant unless they were convinced beyond a reasonable doubt of his guilt.
    4. Homicide — self-defense—question for jury. — Where the evidence was in dispute as to whether defendant employed all the means within his power, consistent with his safety, to avoid the danger to himself, and as to whether the danger was so urgent and- pressing that it was necessary to kill deceased in order to save his own life, it was proper to submit that question to the jury.
    5. Homicide — evidence of family quarrel. — Evidence of a family qparrel which took place shortly before the killing was admissible where it tended to establish a motive for the killing and to show who was the probable aggressor.
    6. Homicide — competency op evidence. — Evidence that deceased was on his way to a neighbor’s house to sell some mules was properly admitted as tending to prove that deceased stopped at defendant’s home on his way to such neighbor’s, without intention to kill defendant or do him bodily harm.
    7. Homicide — evidence—photographs.—Photographs purporting to represent the environment of the killing, being properly verified, were competent to show the situation of the parties and the place and conditions connected with the fatal rencounter.
    8. Homicide — evidence—harmless error. — The error, if any, of permitting the State to prove that six years before the killing the witness heard defendant say that he grudged deceased the ownership of his land, and that some day he would acquire it himself, was not prejudicial as it tended merely to prove malice, which was eliminated by the verdict of manslaughter.
    9. Witness — incompetency of wipe to testify for husband. — Act 159 of 1915 and act 66 of 1919 have not changed the status of married women so as to render her competent to testify in her husband’s behalf in criminal cases.
    Appeal from Saline Circuit Court; W. H. Evans, Judge;
    affirmed.

      Mehaffy, Donham & Mehaffy, for appellant.
    1. The court erred in its instructions to the jury, and in its rulings as to the admission of testimony. The wife of defendant should have been allowed to testify. The married woman’s acts of 1915 and 1919 have entirely changed the law as to the admission of the testimony of married women for or against their husbands as found in C. & M. Digest, § 3406. ■
    2. The uncontradicted proof that the deceased was the aggressor, and that appellant acted in necessary self-defense. The jury arbitrarily disregarded the evidence, and the verdict is contrary to the law and the evidence.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in the instructions given or refused. Appellant was in no way prejudiced by any of th§ instructions. 109 Ajk. 134. Where, under an indict-. ment for murder, defendant is convicted of manslaughter, error in defining the higher grades of homicide is not prejudicial. 60 Ark. 76.
    2. There was no error in giving the instructions requested by the State. Malice is an essential ingredient of the crime of murder either in the first or second degree. It may be either express or implied. C. & M. Dig., §§ 2340-1. 136 S. W. 316-22; 3 Words & Phrases (N. S.), p. 462. Even if the court did err in its instructions defining malice, appellant was only convicted of manslaughtr, and was not prejudiced.
    3. There was no error in giving the State’s request for instruction No. 4. The premeditation and deliberation and determination to do murder may be formulated in the assailant’s mind upon the instant; it does not have to exist any appreciable length of time. It is only necessary that it exists when the assailant commits the crime. 133 Ark. 321. But, if the instruction was error, it was not perjudicial. 60 Ark. 76.
    4. No proper exceptions were saved nor objections made to the other instructions. 93 Ark. 401.
    5. Photographs are admitted as evidence. Under-hill’s Cr. Ev., § 50; 1 Wigmore on Ev. 792; 103 N. T. 487; 91 Ark. 179.
    6. There was no error in refusing to permit defendant’s wife to testify. C. & M. Dig., § 5577; Act 159, Acts 1915; Act 66, Acts 1919. This case is exactly in point with 125 Ark. 471 and is settled by that case.
    7. There were no prejudicial errors of law and the verdict is supported by the evidence.
   Humphreys, J.

Appellant was indicted and tried in the Saline Circuit Court of murder in the first degree, for killing W. L. Pritchard, on the 14th day of January, 1920, in the county of Saline and State of Arkansas, convicted of manslaughter and adjudged to 'serve a term of three years in the State penitentiary as punishment therefor. Froim the judgment of conviction, an appeal has been duly prosecuted to this court.

The evidence adduced on behalf of the State is, in §qbstance, as follows: The deceased and accused reside^ on adjoining farms, their home's, being between two and three hundred yards apart. An old shop stood close to the fence and near accused’s home. A sign, directed to keep people out, was posted by the accused on his property near the division line between the two places. So far as appears from the record, the family of deceased consisted of himself, his wife, Mattie Pritchard, two sons, Hampton and Henry, a daughter, Bosie, and two smaller children. The family of the accused consisted of himself, his wife, Matt Witham, a son, Loy, and a daughter, Grace. Mrs. Effie Hoskins, widow, and a daughter of the accused, resided, with her children, consisting of Julia Hoskins and others, upon his place, about three hundred yards distant from his residence and also from the residence of deceased. :Both the accused and deceased had bought their respective farms some years prior to the killing, from the father of Mrs. Mattie Pritchard. The accused had tried to purchase the deceased’s farm on several occasions. During the course of the trial, over the objection and exception of appellant, Mart Kelt, a witness for the State, was permitted to testify that appellant stated to him, some six years before the killing, that some day he would acquire deceased’s place in some way. Ill feeling arose between the accused and deceased in the spring of 1919, occasioned, first, by the accused’s dog biting deceased’s girl; next, by accused’s son cursing deceased’s wife; next, over a small indebtedness of deceased to accused; then by a family quarrel during the afternoon before the killing on the night of January 14, 1920'. This family quarrel was instigated by Grace Witham, daughter, and Julia Hoskins, granddaughter, of the accused, throwing rocks at the sign. Mrs. Mattie Pritchard came out of her house and told them to quit throwing at the sign. They thereupon reflected upon the character of Mrs. Pritchard, and she threatened to have them -arrested. Mrs. Matt Witham, who was standing with her husband, the accused, and Effie Hoskins, near the old shop-, witnessing the affair, said: “Come on and let that old fool alone.” The evidence relating to the family quarrel was admitted over the objection and exception of appellant. When her husband came home after sunset from his work, Mrs. Pritch-ard informed him of the occurrence. They decided to go down to Mrs. Hoskins’ and ascertain why she permitted the girls to abuse Mrs. Pritchard. Deceased had planned to go to the home of George Aiken for the night, to purchase some mules. In going, he would pass by the Hoskins home. Mrs. Pritchard and their son went that far with him. Deceased was unarmed. He took his horses with him. The discussion of the family quarrel .resulted in a personal difficulty between Mrs. Pritchard and Mrs. Hoskins. In the midst of the fight, Julia Hos-kins ran up the road and hollered, “Oh, Grandpa, come down here with your 'gun, quick; we have got him.” After the altercation subsided, Mrs. Pritchard and her son left deceased standing in the road and went to Sam Newcomb’s for the purpose of getting him to induce deceased to go away. While at Newcomb’s, they heard a shot, but thought nothing of it. Hampton Pritchard asked Mr. Newcomb for a gun, while at his house. Deceased did not return, and Ms family concluded he had gone on to George Aiken’s, where he intended to spend the night. The next morning, about daylight, Henry and Hampton Pritchard went down the road singing, and discovered their father lying in the road, dead, near the place he was left standing the night before. As they approached, they saw Loy Witham and some other persons going from the place where their father was lying, toward accused’s home. Deceased was lying across the road, about tMrty yards from the Hoskins gate, between two embankments. The distance between the embankments was seven feet. The embankments were sloping. The embankments were from two and one-half to three feet high, and the ground above them was level for four feet or more back to the fence on either side. There were no evidences on the ground of a struggle. Deceased was killed with a shotgun. The charge entered his breast from the front, ranged downward at an angle of forty degrees, and lodged near the right shoulder blade. Sam Newcomb, Who viewed the body and surroundings the next morning, testified without objection that the party, who shot deceased was necessarily standing upon the embankment. A pool of blood wias found about nine yards from the body, in the direction of the Hoskins' home. A barlow knife, belonging to. deceased, was lying by the pool of blood, open. The handle and blade were both bloody. Deceased’s horses were tied to the fence between his body and the Hoskins gate. About 9 o ’clock' on the night of the tragedy, the accused appeared at the home of his son-in-law, Louis Tudor, three miles distant, and informed him that he had shot the deceased, and expressed the hope that he had not killed him. The next morning the accused met the sheriff within a mile of town, inquired as to the deceased’s condition, and surrendered.. Loy Witham had accompanied his father to the Tudor home the night before, but was afraid to go back home. Eli Dunnivan went home with him, and they slept together that night. The next morning, they got up and went to the body. They observed the pool of blood near the body, the bloody barlow knife near the blood. The knife was open. Effie Hoskins and her family stayed at the home of the accused that night, and' no one went to the place where deceased was killed. Four-pictures, taken about three months after the tragedy-occurred, were introduced over the objection and exception of appellant. Sam Newcomb, who was present when the' pictures were taken, identified and explained them. In explaining them, he said: “Here is one that I don’t understand, some way or other.” He followed this statement with an explanation of the picture as representing’ Witham’s house. In identifying and explaining the pic-' tures, he said that the first represented Witham’s house, the path in front of it and some lumber and stuff lying by the path; the next, the road to Hoskins’ in front of his house; the next, the road to Hoskins’ house; and the next, the road at Hoskins’ house.

The evidence adduced on behalf of appellant is, in substance, as follows: There had been no family quarrel in the afternoon before the killing, nor any difference between the accused and the deceased prior thereto, except in August, when the deceased came to the accused’s home and charged Loy with abusing his wife. On that occasion deceased threatened to kill Loy and others if the abuse did not stop, if he had to get them from the bushes. Grace and Julia had not thrown at the signboard, nor abused Mrs. Pritchard in the presence of the accused, his wife and Mrs. Ho’skins. Deceased, his wife and son had come to Mrs. Hoskins’ home about 8 o’clock on the night of the killing, and accused the girls, of these things. Mrs. Hosldns resented the charge; whereupon Mrs. Pritchard attacked her, and, during the fight, both deceased and his son struck Mrs. Hoskins. Mrs. Hoskins ordered them away. Julia Hoskins ran up the road and called for the accused. Mrs. Pritchard and her son left. Deceased remained and told them to call the accused, for he came to have it out with him, and that he intended to kill him if he came. Deceased tied his horses to the fence near the Hoskins home; then opened and put his knife in his pocket. Loy and Grace came before accused and his wife. Deceased ordered them to stop, and struck at Grace. When accused and his wife arrived, deceased jumped from behind his horse and told accused he had said if they called him down there he would kill him, and with that, grabbed accused. The accused jerked loose and said, “Stop.” Deceased grabbed him again, and as he backed off again, cut at him. When deceased had backed him for a way up the embankment and against the fence, accused jerked loose and shot him. Accused raised the gun in both hands and fired one shot, the muzzle being within two feet of deceased’s breast. Accused turned and ran before deceased fell. Accused did not return, or send any one, to see about the deceased. When he got home, he removed his sweater, which had been cut in the affray, and, after putting on other clothes, went to Louis Tudor’s, in company with his son, where he remained for the night. Mrs. Hoskins and her children went to accused’s home a short time after the killing and remained there. They did not go to the body or see it, but went around another way. Loy went 'home by the road, and observed the body of the deceased lying in the road, and passed on.

Appellant first insists that the court committed reversible error in giving instructions 1 and 2, because it is said they are abstract.- Instuotion No. 1 defined murder in the first degree; and No. 2, in the second degree. We do not think either instruction was abstract. There was evidence tending to show that the deceased, while standing in the road below the embankment, was shot by appellant while standing on the level ground above the embankment; that considerable distance intervened between them when the fatal shot was fired. There was no evidence of a struggle between them — the shotgun used being raised and held in both hands by appellant when fired. The range of the charge was downward at an angle of forty degrees. The evidence of the State tended to show that bad blood existed between them. So, it can not be said that evidence is wanting to show a motive • for the killing. These stubborn facts, in connection with the subsequent conduct of appellant in abandoning the body of deceased and not returning to it, are inconsistent with a killing in necessary self-defense. If it could be said the instructions were abstract, no prejudice resulted to appellant on account of the court having given them, 'because he was acquitted of murder in the first and second degrees., This court said, in the case of Easley v. State, 109 Ark. 134, “As the defendant was only convicted of murder in the second degree, it is plain, whether the instruction on murder in the first degree was erroneous or not, it did him no harm.” Again, in the case of Rogers v. State, 60 Ark. 76, it was said by the court that “where under an indictment for murder, defendant is convicted of manslaughter, error in defining the higher degrees of homicide is not prejudicial to defendant.”

Appellant next insists that the court erred in defining malice. It is unnecessary to analyze the instruction, because malice was not an ingredient of' the crime of manslaughter, for which appellant was convicted. Mai-ice was an essential ingredient of the higher degrees of homicide of which appellant was acquitted. Therefore, no prejudice resulted to him on account of the instruction defining malice.

Appellant next insists that the court erred in submitting to the jury the question of whether there was either deliberation or premeditation existing in the mind of appellant at the time of the killing, for the reason, it is said, that no evidence whatever was adduced to show either deliberation or premeditation on his part. Delib-ération and premeditation are not elements of the crime of manslaughter for which appellant was convicted, and no prejudice could have resulted to him on account of the instructions submitting those questions.

Appellant next insists that the court committed reversible error in instructing upon the various degrees of homicide, by saying, in effect, that, if they found at-pellant was not guilty of murder in the first degree, they might find him guilty of murder in the second degree, or lesser degrees, if convinced beyond a reasonable doubt of the guilt of any one of the degrees of murder. It is said that this manner of instructing the jury impressed upon their mind that the court wanted the defendant convicted of something. We think this position is untenable, for the court distinctly told the jury that, unless they w¡ere convinced beyond a reasonable doubt of the guilt of the accused, then it was their duty to acquit appellant. Certainly, reasonable men could not have concluded that the court wanted appellant convicted of some degree of homicide, when pointedly instructed to acquit him unless they believed, beyond a reasonable doubt, that he was guilty of some degree of homicide.

Appellant next insists that the court erred in giving, instruction No. 7, requested by the State, which is as follows: “You are further instructed that in order to justify the defendant in killing the said W. L. Pritchard in self-defense that it was the duty of defendant to employ all means within his power and consistent with his safety to avoid the danger and avert the necessity of taking the life of the deceased, and that the circumstances were sufficient to excite the fears of a reasonably prudent person that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the deceased was necessary, and that the deceased was the assailant. ’ ’ Appellant contends that the undisputed evidence showed that he did all within his power, 'consistent with his safety, to avoid the danger, and that the danger was so urgent and pressing it was necessary to kill deceased in order to save his own life. It is true appellant testified that he did all within his power, consistent with his safety, to avoid taking deceased’s life, and that, -at the time he fired the fatal shot, the danger to him, was urgent and pressing. Other evidence, however, tended to show that, at the time the fatal shot was fired, quite a little distance intervened between the accused and the deceased; that the accused was standing on level ground above an embankment, and the deceased in the road below the embankment at the time the shot was fired; that deceased had not advanced on appellant up the bank and crowded him backward to the fence before he fired the shot; that, on the contrary, deceased was shot and fell in the road, by appellant, who was standing on the level ground above the embankment. The evidence being in dispute as to whether appellant employed all the means within his power, consistent with his safety, to avoid the danger, and as to whether the danger was so urgent and pressing that it was necessary to kill deceased in order to save appellant’s life, it was proper to submit that question to the jury.

It is next insisted that the court erred in admitting evidence relating to the family quarrel at 3 o’clock in the afternoon before the killing. According to the State’s witnesses, this quarrel occurred in the presence and hearing of appellant. The evidence, in its nature, tended to . establish a motive for the killing, as well as tended to show who was the probable aggressor in the subsequent affray. In the first place, appellant stood charged with all the degrees of homicide, and evidence tending to establish a motive for the killing was admissible on the charge, and, even if appellant had stood charged with manslaughter, the evidence would have been admissible under appellant’s plea of self-defense, as tending to show which was the probable aggressor.

Appellant next insists that it was error to admit the evidence of George Aiken and his wife to the effect that they were on a trade for mules and that he had made arrangements to come to their house on Wednesday to see George Aiken about purchasing them. We think this evidence admissible, as tending to corroborate the evidence of other State witnesses to the effect that the deceased stopped at the Hoskins home on his way to the home of Aiken, and had not gone to the Hoskins home for the purpose of killing or doing bodily harm to appellant.

Appellant insists that the court erred in permitting the introduction of four photographs purporting to represent the place of killing, the road between the Witham and Hoskins places and the twlo residences, for the alleged reason that the photographs were not properly verified. The rule announced in the case of Sellers v. State, 91 Ark. 175, is relied upon to support the contention. The case cited is not parallel to the instant case, for in that case the photographs were intended to show the situation of the parties and the place and condition connected with the final rencounter. In the instant case, the photographs were introduced for the purpose of aiding in the description of the place where the rencounter occurred, 'and the relative position of the two residences referred to in the testimony. The photographs in the instant case could have little bearing upon the issues involved, for they in no way attempt to locate the persons engaged in or witnessing the affray during any period from its inception to its ending. They only evidence the place where the .affray occurred, and so it was not as necessary to have the photographs as accurately verified as if they attempted to place the persons and their respective positions, from time to time, in the scene. Bnt-if the rigidity of the rule should be applied, we think it was substantially complied with in the instant case. Sam Newcomb was present when the photographs were taken and verified them all. It is true he said, concerning one of them, “Here is one that I don’t understand some way or other.” He followed up his testimony, however, by saying: “It represent’s Witham’s house. In front it shows the path, some lumber and stuff. It is 62 feet from Witham’s house to the road in front of his house.” It will be seen that, while he had some difficulty in understanding it, he did understand it sufficiently to explain it. No claim is made that the physical conditions had been changed after the killing and before the photographs were taken. We think he sufficiently identified each photograph.

Appellant next insists that the court erred in permitting Mart Kelt to testify, in substance, that, some six years before the killing, he heard accused say he grudged deceased the ownership of the land, and that some day, in some way, he would acquire it himself. This evidence only tended to establish a motive for the killing. Any prejudice resulting from the admission of this evidence was eliminated by appellant’s acquittal of murder in either the first or second degree, because motive was not an ingredient of the crime of manslaughter, for which he was convicted, and was a necessary ingredient of the crimes of which he was acquitted.

The next and last insistence of appellant is that the court erred in refusing to allow Matt Witham, who was present at the scene of the killing, to testify on behalf of her husband. This court ruled in the case of Padgett v. State, 125 Ark. 471, that act 159 of the Acts of the General Assembly of 1915, extending the rights of married women, did not relate to the rules for the production of evidence; and hence did not change the rule to the effect that the wife is incompetent to testify for or against her husband in criminal cases. It is insisted, however, that act 66 of 1919 of the General Assembly so enlarged the rights of married -women as to relate to and change the rules for the production of evidence. We are unable to discover anything in act 66 of 1919 of the General Assembly which authorized a married woman to testify for or against her husband in criminal cases. It was ruled in the case of Comstock v. Comstock, 146 Art. 266, that act 159 of 1915 and act 66 of 1919, changed the status of married women so as to render husband and wife competent as witnesses for or against each other in suits between themselves. There is nothing, however, in the opinion in the case of Comstock v. Comstock, supra, nor in either statute, changing or modifying the rule for the production of evidence in suits between third parties and either one of them.

No error appearing in the record, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Cunningham v. State.
    Opinion delivered June 27, 1921.
    1. Homicide — instructions—assumption op pact op killing. — In a prosecution for murder, where defendant denied that he killed deceased and offered no proof on self-defense, instructions upon self-defense and deliberation and premeditation were not abstract and did not constitute an assumption by the court that the killing was done by defendant.
    2. Homicide — instruction as to circumstantial evidence. — An instruction that circumstantial evidence is legal and competent, and that “if it is of such a character as to exclude every reasonable hypothesis, other than that the defendant is guilty, it must be received, just as direct evidence is received,” held not objectionable where considered in connection with other instructions on the subject of reasonable doubt.
    3. Criminal law — repetition op instructions. — It was not error to refuse to give instructions fully covered by other instructions given.
    4. Criminal law — new trial — newly-discovered evidence. — A motion for new trial on the ground of newly-discovered evidence relating to defendant’s mental condition at the time of the alleged commission of the crime was properly refused where there was no showing of diligence in discovery and production of such evidence.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge;
    affirmed.

      Henry Stevens, for appellant.
    1. Tbe court erred in its instructions given for the State. They are abstract, misleading .and prejudicial; also arbitrary, and assume the facts not proved and tell the jury what inference may be drawn from the facts. Hughes on Instructions, §§ 505-6, 309; Ih., § 8; 59 Ark. 422.
    2. It was error to refuse the instructions asked by defendant and in amending them and in their modification. The circumstances show a conflict in the evidence and a reasonable doubt of defendant’s guilt, and the court should have instructed the jury that the doubt should be resolved in favor of defendant. Hughes on Instructions, § 312.
    3. It was error to refuse a new trial for newly-discovered evidence. When one is accused of crime, the question of his sanity or insanity is one for the jury. 133 Ark. 39.

      J. S. Utley, Attorney General, Elbert Godwin and-W. T. Hammock, Assistants, for appellee.
    1. There was no error in the court’s instructions on self-defense. The instructions were properly given, as testimony was introduced tending to show self-defense. A defendant accused of homicide who pleads self-defense must show that he used all means consistent with his safety to avert the danger and avoid the necessity of killing, and if he could avoid the necessity of killing by retreating it was his duty to retreat. 73 Ark. 568.
    The admissibility of circumstantial evidence in criminal cases is well settled. 18 it. C. L., § 172, pp. 179-180.
    2. The court properly modified appellant’s requests. 109 Ark. 383.

      3. There was no error in refusing a new trial for newly-discovered evidence. Due diligence was not shown, and the question as to whether or not appellant used due diligence was a question of fact for the jury to determine. 135 Ark. 435. The motion was addressed to the sound discretion of the court, and no abuse of discretion is shown. 41 Ark. 229; 54 Id. 364.
   McCulloch, C. J.

Appellant was charged in the indictment with murder in the first degree, but was convicted of voluntary manslaughter. The charge is that he shot and killed Walter Allen. According to the testimony adduced at the trial appellant and Allen were living together in the same house on a farm which Allen had rented from the owner. Appellant was working .on shares with Allen. Appellant had a family consisting of a wife and children, but it does not appear from the evidence that Allen had any family, at least none of them lived with him. The house in which they lived was a small one, and was divided by an open hall through the center, and was situated from .one hundred to two hundred yards from a public road.

There was no eye-witness to the killing, at least none was introduced as a witness. Allen’s body was found lying in the open hall and a double-barrel shotgun which he owned was found in the grasp of his right hand. Two witnesses, Gore and Watkins, testified that on the morning of the day during which the dead body of Allen was found in the hall, they were passing along the road near the house where appellant and Allen lived and saw two men going toward the house talking to each other and one of them was rather excitedly gesturing; that the two men passed behind the house from them and immediately thereafter they heard a gunshot; that after the me.n passed out of their view they (witnesses) passed along about fifty yards up the road and then saw a man lying in the hall and saw a boy walking across the hall. The boy appeared to be about eight or ten years old, and then witnesses also stated that the boy passed in front of the house after they heard the gunshot. One of the ■witnesses testified that fie recognized appellant as one of tfie two men who were walking toward tfie fiouse shortly before tfiey heard tfie gunshot. Another witness, Miss Snyder, who lived but a short distance from the fiouse where appellant and Allen lived, testified that on tfie morning of tfie day on which tfie body was found she was out in front of her father’s fiouse and saw appellant and Allen just before she heard the gun; that she saw tfie two men going toward the fiouse talking to each other and gesticulating, and after about tfie length .of time had elapsed for them to get into tfie fiouse she heard tfie gunshot; that she saw appellant come out of the fiouse and walk toward a tree in tfie back yard and then go back to tfie fiouse, and that fie then went down to the field where a Mr. Daniels and appellant’s daughter were at work. This witness also testified that she saw a boy go toward the fiouse just before the gun fired, but she did not know whether fie entered tfie fiouse; that tfie boy was appellant’s son and was about xdne or ten years old. She recognized appellant and Allen as being tfie two men whom she saw going toward tfie fiouse just before tfie gun was fired.

Appellant testified as a witness and denied that fie shot Allen. He testified concerning tfie trouble which had arisen between him and Allen; that Allen had abused and mistreated him and had also abused his daughter and offered her certain indignities. He testified that on the morning in question fie was working in tfie field when Allen came out and gave him directions about the things to be done on the farm, and that Allen struck him and knocked him down; that the last time fie saw Allen the latter directed him to go and get a trespassing animal out of tfie field. Appellant stated that after looking for tfie animal, and, failing to find it, fie went back through tfie corn to see if fie could find Allen and went to the fiouse after water and saw the body of Allen lying in tfie hall with tfie shotgun grasped in his hand. There was other testimony in tfie ease with reference to Allen’s conduct toward appellant and toward appellant’s daugfi-ter. There are other circumstances detailed in the evidence which are unnecessary to mention.

The court submitted the issues to the jury upon instructions covering all the phrases of the law of homicide, and the instructions were all in the forms which have received the approval of this court. It is not contended that there were errors in any of the instructions, but it is insisted that the court erred in giving an instruction on the law of self-defense and also erred in giving one on the subject of deliberation and premeditation as elements of murder. The argument is that, since appellant denied that he killed the deceased and did not offer any proof on self-defense, these instructions were abstract and were calculated to mislead the jury to appellant’s prejudice. The contention is that the giving of these instructions constituted an assumption by the court that the killing was done by appellant. It is unnecessary for us to determine whether or not there was any proof which would have justified a finding by the jury that the killing was done in self-defense. But we do not think that the giving of either of the instructions referred to constituted any assumption of fact by the court. It is not contended that any particular language of either of the instructions assumed the existence of any fact, but the argument is that the mere giving of the instructions on those subjects presupposed that the killing was done by appellant, and constituted an assumption of that fact. It is true that appellant made no claim of self-defense, but, on the contrary, asserted in his testimony that he did not commit the homicide and was not present when it was committed. That issue was properly submitted to the jury, and the instructions on self-defense and on the subject of premeditation and deliberation, as essential elements of the crime of murder in the first degree, were given for the benefit of the accused. ■ Even conceding that there was no evidence to justify a finding that the killing was done in self-defense, we can not say that any prejudice could possibly have resulted from the giving of these instructions. It was tantamount to saying to the jury that if they found that the accused did the killing they should consider the law of self-defense as declared by the court. We think there was no prejudice resulting from the giving of these instructions.

Objection was made to instruction number 13, which reads as follows:

“The court further instructs the jury that circumstantial evidence is legal and competent in criminal cases, and if it is of such a character as to exclude every reasonable hypothesis, other than that the defendant is guilty, it must be received just as direct evidence is received.’’

We see no objection to the substance of this instruction, whatever criticism may he made to the form. The proposition of law stated therein is correct when considered in connection with other instructions given to the jury on the subject of reasonable doubt. Jones v. State, 61 Ark. 88; Bost v. State, 140 Ark. 254.

The next assignment relates to the ruling of the court in modifying appellant’s instruction number 1 by striking out the last sentence, as follows:

“You are instructed, the law presumes the defendant to be innocent of the crime charged, and this presumption continues in his favor throughout the trial, step by step; and you can not find the accused guilty of any of the crimes charged in the indictment until the evidence in the case satisfies you beyond a reasonable doubt of his guilt. And, as long as you have a reasonable doubt as to the eccistence of any one of the several elements necessary to constitute the offense or offenses charged, the accused can not be convicted.”

The instruction was complete without the last sentence, and in this connection with other instructions completely declared the law as to the burden of proof and reasonable doubt. Indeed the language stricken out, when considered as an independent declaration of law, is erroneous. Carr v. State, 81 Ark. 589.

Instruction number 8 given on the court’s own motion and instruction number 7 given at appellant’s request stated to the jury, in substance, that it devolved upon the State to prove beyond a reasonable doubt each of the material allegations in the indictment.

The court also modified instruction number 3, requested by appellant, but the language stricken out was also covered by another instruction given on the court’s own motion.

Finally it is insisted that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. In the motion for a new trial appellant alleged the discovery, subsequent to the trial, of evidence which tended to prove that appellant at the time of the killing of Allen was insane “or was under such a defective reason as not to have known the nature of the act of killing.” It is further alleged in the motion that the fact of appellant’s insanity was unknown to appellant’s counsel until after the trial and verdict. Affidavits were filed in support of these allegations. It appears from the record that appellant had been living in Columbia County for a number of years, and that his counsel had been personally acquainted with him to some extent for a long time. Appellant was introduced as a witness at the trial in his own behalf, and testified concerning his relations with Allen and all of the things that transpired between them on the day of the killing. There is no diligence shown in the discovery and production at the trial of evidence of appellant’s alleged mental incapacity. The fact that the newly discovered evidence related to appellant’s mental condition at the time of the alleged commission of the crime does not alter the rules and practices with reference to requiring diligence in testing the sufficiency of a motion for new trial grounded on newly discovered evidence. Diligence must be shown on a motion based on that ground as well as on the ground of newly discovered evidence in regard to other defenses. There are other available remedies for establishing, either before or after the verdict, the fact of the insanity of the accused at the time of the trial. The accused may, before the trial, cause an inquiry to be made as to his sanity for the purpose of postponing the trial; or after trial when the accused appears for judgment he may show that he is insane. Duncan v. State, 110 Ark. 523. After the expiration of the term the trial court, upon proper showing of insanity of the accused at the time of the trial, may, when it appears that the question of insanity was not suggested at the trial, issue the writ of error ooram nobis for the purpose of inquiring into that question, and empaneling a jury for that purpose. Hydrick v. State, 104 Ark. 43; Hodges v. State, 111 Ark. 22. It is not alleged in the motion in this case that appellant was insane at the time of the trial, and therefore the court did not treat it as a motion to inquire into the question of the insanity of the accused for the purpose of suspending judgment. Duncan v. State, supra. The alleged discovery of evidence can not, therefore, afford grounds for a new trial, without the proper showing of diligence.

Finding no error in the record, the judgment is affirmed.


text:
    Crawford v. Harmon.
    Opinion delivered June 27, 1921.
    1. Elections — right to vote in primary election. — In a primary election those persons were not entitled to vote who were members of another political organization or who were not eligible under the established, rules of the political party under whose auspices the primary election was held.
    2. Elections — primary contests — unsigned votes. — Allegations in a complaint seeking to contest a primary election that the ballots of many persons who voted in certain townships were not signed by the voters, without alleging their names or how they voted, or that their failure to sign their ballots was done fraudulently, or that the election officials failed to keep a register showing the names and number of ballot of each voter, held not to state grounds either for disregarding the unsigned ballots or for discarding the returns in the townships in which such ballots were alleged to have been cast.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      J. D. Benson, J. P. Clayton, T. A. Pettigrew and Evans & Evans, for appellant.
    This was a Democratic primary election, and it was error to allow Republicans to vote and count their votes. If the illegal votes had been thrown out, appellant clearly received a majority of the votes cast legally. 20 C. J., par. 158, p. 137; 109 Ark. 250; 43 Ark. 62.
    The requirement that ballots shall be endorsed is mandatory. 69 Ark. 501; 79 Id: 236; 98 Id. 505; 108 Id. 515. To justify the annulment of an election, it is not necessary to show that a majority of the electors were actually prevented from voting or voted against their wishes; it is sufficient to show that wrongs against the freedom of elections prevailed generally and to the extent of rendering the result doubtful. 53 Ark. 161. See, also, 86 Ark. 259, where the fraudulent conduct of election judges discredited the returns.

      G. C. Carter, David Partaw% and G. L. Grant, for appellee.
    1. The abstract of appellant is insufficient, and discloses no errors.
    2. The testimony sustains the findings and judgment below.
    3. The court properly sustained the demurrer to the third paragraph. The court did not throw out enough votes to change the result of the election. 85 S. W. 1183; 154 Pac. 2; 44 N. E. 803. Under the evidence and proof the judgment should be sustained.
    There was no error in sustaining the demurrer to the complaint. The complaint did not allege that the parties named were known to have voted against the Democratic nominees or any of them, nor was their right to vote questioned by any well known Democrat or election official The judges are the proper triers of Urn issues raised at the election, and their decision is final, as the presumption is that officers have acted properly and honestly.
   McCulloch, C. J.

At the general primary election held on August 10, 1920, for the purpose of nominating candidates of the Democratic party, appellant and appel-lee were opposing candidates for the office of sheriff of Franklin County, and upon the canvass of the votes ap-pellee was returned as the successful candidate by a majority of 43 votes, having received 941 votes and appellant having received i898 votes.

Appellant instituted a contest in the circuit court pursuant to the statute (Crawford & Moses’ Digest, § 3772), and in his complaint containing numerous paragraphs he set forth his grounds for the contest. He alleged, in substance, that certain members of the Republican party in Franklin County were allowed to vote and voted for appellee; that certain other persons who had not been affiliated with the Democratic party and who were ineligible to vote under the rules of the party were permitted to vote in said election and cast their ballot for appellee; that certain persons who were not qualified electors because of the fact that they had not paid their poll tax, were permitted to vote at the election and voted for appellee; that in certain townships the ballots cast by the voters were in many instances unsigned and that the judges of the election in some of the precincts were guilty of electioneering in violation of the statute and permitted ballots to be cast where the voters were not’in fact present. The court sustained a demurrer to three of the paragraphs of the complaint, and after an answer was filed by appellee the cause proceeded to a trial on the pleadings and the evidence adduced. The trial resulted in a finding by the court in favor of ap-pellee. The court found that appellee received 884 legal votes at the election and that appellant received 800 legal votes, a majority of 84 votes in favor of appellee. It is thus seen that, according to the findings of the court, appellee received a greater majority of legal votes than had been given him in the certificate of the canvassing board.

In one of the paragraphs of the complaint to which the court sustained a demurrer it was alleged that the judges of the election in certain townships had allowed to vote 23 persons affiliated with the Eepublican party and two persons affiliated with the Socialist party. In another paragraph of the complaint to which the court sustained a demurrer it was alleged that the judges of the election in certain townships had permitted 45 persons to vote who were not, under the established rules of the Democratic party, entitled to vote, for the reason that said persons had not supported the nominees at the last preceeding general election, and that said persons had cast their ballots for appellee. Under the law as declared by this court in the recent case of Ferguson v. Montgomery, 148 Ark. 83, the court erred in sustaining the demurrer to these two paragraphs. We held, in that case, that persons were ineligible to vote in a primary election who were members of another political organization or who were not eligible under the established rules of the political party under whose auspices the primary election was held. In other words, we held that the rules of the political organization not in conflict with the statutes would be controlling in determining the qualifications of the voters. It does not follow, however, that this error of the court would result in a reversal of the cause, for, if it be conceded that the ballots of all the persons named in these two paragraphs were illegal and should be subtracted from the count, it is insufficient to change the result, for these paragraphs only mention 70 illegal votes, and the court found that appellee had received the nomination by a majority of 84 votes. After deducting the alleged illegal votes mentioned in these two paragraphs, it still leaves appellee, under the finding of the court, with a majority of 14 votes. It appears that, notwithstanding the sustaining of the demurrer, the court permitted the parties to introduce proof concerning the allegations as to Republicans being allowed to vote, and there is proof tending to show that some of the persons mentioned in the paragraphs of the complaint were in fact eligible. But, even disregarding this proof, the 'allegations .of the excluded paragraphs are not sufficient to show that there were enough illegal votes cast for appel-lee to change the result as found by the court.

In the other paragraph of the complaint to which the court sustained the demurrer, it was alleged, in substance, that the ballots of many persons who voted in certain townships were not signed by the voter, as required by law; that appellant had no means of ascertaining and stating the names of said voters who failed to sign their ballots, and that those facts could only be ascertained by an inspection of the ballots themselves. The paragraph contained no allegations with respect to the names of any of the persons who are alleged to have cast the unsigned ballots. Nor is there any allegation with respect to how those persons voted. It is not alleged that the election officials failed to keep and return a register showing the names of each person who voted and the number of the ballot of each person. Nor is it alleged that the ballots were left unsigned with any fraudulent intent on the part of the voter or any of the election judges. This being true, the allegations of the complaint were insufficient to afford grounds either for disregarding the unsigned ballots or for discarding the returns in the townships in which such ballots were alleged to have been cast. Ferguson v. Montgomery, supra. It was held in that case that the statute affords two methods of identification of the ballots — one by the signatures of the voters and the other by the register kept by and returned by the election officials — and that the failure to observe one of those methods, unless done with fraudulent purposes, would not afford grounds for disregarding the vote-of the precinct.

In the present instance there is no allegation even that the unsigned votes were cast for appellee, and fqr this reason also the paragraph failed to state a cause of action. It is not shown that the court erred in its findings as to the majority of 84 votes received by appellee. We find no error of the court in the proceedings. There was proof adduced in one instance that the judges of the election of a certain township accepted the ballot of an elector who was not actually present at the polls. The facts were that J. P. Locke, a qualified elector, was sick at his home a short distance from the polling place, and one of the election judges went to Mr. Locke’s home and received the ballot and took it back to the voting place and deposited it in the box. It does not appear that this was done with any fraudulent design, but with an honest purpose on the part of the judges to permit the sick man to cast his ballot. The court properly threw out this ballot as having been illegally cast, but it afforded no ground for discarding the whole vote of the precinct.

It is argued in the brief that the court improperly threw out the votes of 98 qualified electors who had paid their poll taxes because their names did not appear on the official poll list. This assignment is not, however, sustained by the record, at least, we fail to find it in the record, and the abstract does not call attention to any page of the record which sustains this contention.

There are other errors which are unnecessary to discuss for the reason that the abstract is not sufficient to show that the assignments are well founded.

Judgment affirmed.


author: Wood, J.

text:
    Simmons v. State.
    Opinion delivered June 27, 1921.
    1. DRUNKENNESS ON PUBLIC HIGHWAY — EVIDENCE.—A conviction of appearing in a drunken or intoxicated condition on a public highway, under Crawiord & Moses’ Digest, § 2626, is sustained by proof tending to show that defendant was in an intoxicated condition on a certain road leading from a church which was being traveled by the public, and also on a street in a certain town,

      2. Druneenness — instruction defining. — It was not error to instruct the jury, in a prosecution for appearing in an intoxicated condition on a public highway, that “one does not have to be under the influence of whiskey to such an extent as to become boisterous, or stagger, or be, as is sometimes called, ‘down drunk’; that whenever the whiskey causes a man to be out of the ordinary in his general demeanor, it is sufficient under what the law terms in this case as intoxicated.”
    Appeal from Pike Circuit Court; James 8. Steel, Judge;
    affirmed.

      W. T. Kidd and Pirniix & Pinmx, for appellant.
    1. There was a total lack of evidence tending to prove that appellant was drunk or intoxicated on a public highway. C. & M. Digest, §■§ 2626, 3028. One can not be charged with the commission of a crime in a particular way or place and convicted by showing that the crime was committed in a different way or place. 64 Ark. 188; lb. 23; 23 Id. 550. The crime must be proved as alleged. 31 Ark. 49; 62 Id. 459; 84 Id. 285; 71 Id. 415; 64 Id. 188; 37 Id'. 40(8; 36 Id. 178; 16 Id. 499; 114 Id. 312; 129 Id. 364.
    2. The court erred in its instruction to the jury that if they believed beyond a reasonable doubt that defendant at the time and place mentioned in the indictment or any other time or place within twelve months was drunk or intoxicated on a public highway or street, he was guilty. This was error, as the indictment did not charge defendant with being drunk on a street or alley or at a public gathering. Evidence of other crimes is not admissible on the trial for another crime than the one charged. 20 Kan. 311-19.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Appellant was guilty under C. & M. Digest, § 2626. This section does not mean a highway established by proper orders of the county court, necessarily; it simply means any highway that the public may use.
    2. Appellant made no objections to the testimony offered below, and can not raise the question for the first time on appeal. 130 Ark, 11; HQ Ar, 117,

      3. A general objection in gross to several instructions will not be considered if any one of them is good. 105 Ark. 157.
    4. Evidence of other sales of liquor is admissible to show a plan or system .on part of the accused to engage unlawfully in the liquor business. 131 Ark. 450; 18 A. & E. Ann. Cases 850-1; 97 S. W. 92; 45 Md. 33; 108 N. W. 6; 135 Ark. 163. See, also, 86 Ark. 364.
   Wood, J.

The appellant was tried on an indictment charging that on the 15th day of February, 1921, in the county of Pike, State of Arkansas, he “did unlawfully appear on the public highway in a drunken and intoxicated condition.” One of the witnesses introduced by the State testified, without objection, that he saw the appellant at Mt. Maria in Pike County at a picnic in January, 1921; that he came up the road to Mt. Maria; that he didn’t seem-to walk exactly straight and talked more than usual. Witness smelled whiskey on appellant’s breath, and from his actions and conduct witness considered him intoxicated. Part of the time they were at the churchhouse, and part of the time on the road going from the churchhouse. Witness overtook appellant on the road a quarter or half mile from the church and smelled whiskey on his breath. Appellant was going along the road with a girl.

Another witness testified that she went with the appellant to the school house, and she thought he was intoxicated, and she didn’t go home with him because she thought he was drinking. She smelled whiskey. She was asked if she noticed anything out of the ordinary about appellant’s actions and conduct and answered, “Well, he was rather furnvy that day.” Witness smelled the whiskey at Luther Alford’s.

Another witness, the deputy sheriff of the county, testified that he attended the singing at Mt. Maria on the occasion mentioned, and saw appellant, and thought he was drinking,' but didn’t smell any whiskey on him. Witness had seen appellant “lots of times, and anybody acquainted with him can tell'it when he is drinking,” It is easy to detect. Witness and appellant used to drink together — ‘ ‘ had drunk together many times. ’ ’ He wasn’t out of the way, was laughing, funny and jovial. Witness was asked the following question: “Q. Was he attending to his own business and conducting himself in an orderly way?” “A. He was while I was with him, but after I went back to the house he started on toward my father’s and met my sister in the road, and I thought he was trying to shake hands with her. I don’t know whether that was what he was trying to do or not.” Witness saw appellant intoxicated or drunk one night at the Forty-ninth Show on the street. He was then acting out of the ordinary, but not disturbing anybody, was attending to his own business and conducting himself in an orderly way. Witness watched him for an hour or more on account of his condition.

Appellant himself testified that he was not drunk or drinking on the occasion mentioned; that he had no liquor and didn’t see any, and several witnesses testified in his behalf, corroborating the testimony of appellant to the effect that he was not drunk.

The court instructed the jury as follows: “If you believe beyond a reasonable doubt that the defendant at the time and place mentioned in the indictment, or any other time within twelve months before the finding of the indictment in this case, was in a drunk or intoxicated condition on a public highway or on a street or alley of the town, or any public gathering, you will find him guilty. I want to state, gentlemen, in a case like this, you don’t have to be under the influence of whiskey to such an extent that you become boisterous, stagger, or be, as we sometimes call, down drunk. Whenever the whiskey causes a man to be out of the ordinary in his general demeanor, it is sufficient under what the law terms in this case as intoxicated.” The appellant objected to the giving of the instruction. The court overruled the objection, and the appellant duly excepted to the court’s ruling.

The appellant presented the following prayer for instruction: “The court instructs the jury that, although you may find from the evidence in the case that the defendant had drunk intoxicating liquors, yet if you further find from the evidence that he was attending to his own business in an orderly way and in control of his faculties, then he would not be guilty of the offense charged against him, and it would be your duty to acquit him.” The court overruled appellant’s prayer for this instruction on the ground that he had already embodied the purport of that prayer in the instruction given the jury. The appellant duly excepted to the ruling of the court. The jury returned a verdict of guilty against the appellant and assessed his fine at the sum of $10. From the judgment rendered on that verdict is this appeal.

1. The appellant contends that there is a total lack of evidence tending to prove that appellant was in a drunken and intoxicated condition on the public highway. Section 2626 of Crawford & Moses’ Digest reads as follows: “Any person or persons who shall appear at any public gathering* of any kind or upon any public highway, street, park or thoroughfare, or on any train in this State, in a drunken or intoxicated condition shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars, nor more than twenty-five dollars.” The terms, “highway,” “street,” and “thoroughfare,” are used in the statute synonymously. The words “road” and “highway” are used indiscriminately throughout our statute and mean the same. Chapter 81, Crawford & Moses ’ Digest, “Highways.”

The word “highway,” is used in this statute, was intended to embrace any road or thoroughfare used and traveled by the public, even though the same was not laid out by the county court and technically designated as a public road or highway. “Highway” is used in its popular rather than its technical sense, and is synonymous with “road,” which is “an open way of public passage for vehicles, persons and animals.” Webster’s New International and Funk & Wagnall’s dictionaries.

There was, testimony in the record tending to show that the appellant was in an intoxicated condition on a road leading from the churchhouse at Mt. Maria, which was being traveled by the public, and also on the street in Murfreesboro. This testimony was sufficient to sustain the charge as far as the word “highway” is concerned, for a “street” is “a public highway.” Webster’s New International Diet. The road was being used by the public.

2. The appellant next contends that the court erred in telling the jury that “ one does not have to be under the influence of whiskey to such an extent as to become boisterous or stagger or be, as sometimes called, down drunk; that whenever the whiskey causes a man to be out of the ordinary in his general demeanor, it is sufficient under what the law terms in this case as intoxicated” and erred in refusing to instruct the jury that “if appellant was attending to his own business in an orderly way and in coutrol of his faculties, then he would not be guilty of the offense charged against him.” There was no error in these rulings of the court.

In Brooks v. State, 86 Ark. 364, the court had under review an ordinance of the city of Morrilton which made it a misdemeanor “for any person to appear in any public street in a drunken or intoxicated condition.” . In that ease the evidence showed that the defendant was drinking, and he showed some signs of the effect of strong drink, but he was attending to his own business in an orderly manner and had not lost control of his faculties. The court held that the evidence was not sufficient to sustain the charge, and we approved the following definition of “drunk” taken from the Standard Dictionary: “Under the influence of intoxicating liquor to such an extent as to have lost the normal control of one’s bodily and mental faculties, and, commonly, to evince a disposition to violence, quarrelsomeness and bestiality.” Some of the common effects .of being under the influence of intoxicating liquor, or drunk, are there given, towit: “A disposition to violence, quarrelsomeness and bestiality.” But these are by no means the only results or exhibitions that may be included in the definition.

“Drunk and speak parrot? and squabble? swagger? swear? and discourse fustian with one’s own shadow? 0 thou invisible spirit of wine, if thou hast no name to be known by, let us call thee devil!” Othello, Act I, Scene 3.

The statute was broad enough to include, and does include, the manifold manifestations of the influence of intoxicating liquors, upon varying temperaments, when such influence becomes so pronounced over one’s bodily or mental faculties as to put them beyond normal control, so that in acts or words one is liable to become a nuisance to fellow travelers upon the public highway, or to those with whom he comes in contact at the other places designated in the statute. See Sepp v. State, 116 G-a. 182, and cases there cited.

In Midland Valley Railroad Co. v. Hamilton, 84 Ark. 81, speaking of the terms “drunkenness” and “soberness,” we said: “It may well be doubted whether these terms are susceptible to any accurate definition for practical purposes. They sufficiently define themselves, and it would have been better to leave it to the jury, without attempt at definition, to determine what the condition of the.plaintiff was in this respect.”

In Brooks v. State, suprg., we held that “it was not error, in a prosecution for appearing in a public street in a drunken condition, to leave to the jury to determine the condition of the defendant as to drunkenness or sobriety, without defining these terms.”'

Under the above authorities the trial court might, very properly, have refrained from defining the words “drunken” and “intoxicated” used in the statute; but, since the trial court did not take that course, it can not be said that the definition embodied in the instruction was erroneous. On the contrary, the court apprehended and declaxed the meaning of these words as they were intended by onr lawmakers. The prayer of appellant was correct, but the court did not err in refusing it because it was sufficiently covered by the court’s charge.

The record shows no error, and the judgment is therefore affirmed.