author: Hart, C. J.

text:
    Simpson v. Matthews.
    Opinion delivered July 13, 1931.

      ■ Tom F. Rigby, for appellant.

      Chas. W. Mehaffy and Rose, Hemingway, Cmüréll Loughborough, for appellees.
   Hart, C. J.

This is an appeal from an order of the circuit court upholding the validity of a statute permitting adjoining landowners to form an improvement district and to condemn land adjacent to a State highway in order to construct a reservoir for the alleged protection thereof. No separate or particular statement of facts is necessary, for the reason that, on the consideration of the motion for a rehearing, the court has concluded that this case should he decided upon the single point whether the act is unconstitutional as being local or special act.

In construing article 5, § 25, of our Constitution, this court has uniformly held that the Legislature is the exclusive judge whether a provision by general law is possible under the provision of the Constitution to the effect that no special law shall be enacted in cases where a general law can be made applicable.

Amendment No. 14 was initiated by the people and adopted as a part of the Constitution at the general election-in 1926. It reads as follows: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

The Legislature of 1931 passed act No. 108, entitled, “An act to grant to county courts, in counties having a population of 75,000 or -more, the rig*ht to condemn lands for the protection of public roads.”

The preamble and so much of § 1 as we deem necessary for a proper consideration of the issue raised by the appeal are as follows:

“Whereas, in certain hilly or mountainous sections the rainfall is precipitated over State or public roads; thereby injuring the roads, and interfering with and endangering the use of them by the public, which precipitate flow of water could be controlled and regulated by the construction of suitable dams or reservoirs, which would protect the roads, and also the lower lands subject to such precipitate inundation; now therefore,
“Be it enacted by the G-eneral Assembly of the State of Arkansas:
“Section 1. Any five persons owning lands on or in the vicinity of a State highway or other public road on which the rainfall from the adjacent hills is precipitated so as to injure th'e road, or to interfere with its use by the public, may file a petition in the county court praying for an order condemning certain lands for a reservoir and authorizing- the construction of a suitable dam, dams, or works, with the necessary reservoir or reservoirs, for impounding water to protect such road and lower lands from the precipitate flow of water thereon. The petition shall describe the road and lower lands to be protected, and shall be accompanied with plans and specifications for the proposed dams and reservoirs, with a description of the area to be flooded, and of lands to be condemned for such purpose,” etc.

The remainder of 1 and §§ 2, 3 and 4 relate to the method of procedure in the premises. Section 5 relates to the method of procedure in the premises. Section 5 provides that the act shall only apply to counties which now or hereafter may have a population of 75,000 inhabitants according to the last federal census.

It is manifest that, when the amendment prohibiting the passage of special acts by the Legislature is considered with the provision of the Constitution above referred to, it was intended that the action of the Legislature shall be subject to judicial review. We do not think that it was intended tó do away with the classification of counties, cities and towns according to population or the topography of the country where such classification rests upon substantial differences in situation and needs. The amendment was intended to prevent arbitrary classification based on no reasonable relation between the subject-matter of the limitation and classification made. In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject and was based Upon substantial differences which make one situation different from another. The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is arbitrary or is manifestly made-for the purpose of evading the Constitution. If the judgment of the Legislature must control in all cases, the' amendment could serve no purpose, and the people might just as well not have initiated and adopted it.

In State ex rel. Richards v. Hammer, 42 N. J. Law, 435, the subject of statutory classification was thoroughly considered. The court said: “If it could be so sanctioned, then the constitutional restriction would be of no avail, as there are few objects that cannot be arbitrarily associated, if all that is requisite for the purpose of legislation is to designate them by some quality, no matter what that may be, which will so distinguish them as to mark them as a distinct class. But the true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring' exclusive legislation. There must be substantial distinction, having a reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of thing’s, as will, in some reasonable degree at least, account for or justify. the restriction of the legislation. ”

Again, the subject was comprehensively discussed by Mr. Justice Mitchell for the Supreme Court of Minnesota in State ex rel. Douglas v. Ritt, 76 Minn. 531, 79 N. W. 535. The learned justice said: “We have been over the whole subject of classification so often, particularly in Nichols v. Walter, 37 Minn. 264, 33 N. W. 800, and State v. Cooley, 56 Minn. 540, 58 N. W. 150, that it is unnecessary now to do more than restate two fundamental rules, vis.: First, that the basis of classification -cannot be arbitrary or illusive, but must be founded upon a substantial distinction, having reference to the subject-matter of the legislation, between the objects or places embraced in the subject of the legislation and the objects or places excluded, as suggests the necessity or propriety of different legislation for the two in respect to the matter which is the subject of the legislation; second, that the act must include, and act uniformly upon, all of the class — that is, all whose conditions and wants render such legislation equally appropriate to them as a class. Judging from much recent legislation in this State, it would seem that the impression is prevalent that because classification on the basis of population may be proper for the purposes of legislation on certain subjects, therefore any classification on the basis of population, is appropriate for the purposes of legislation on any subject. The sooner the minds .of legislators and others are disabused of this erroneous impression, the better; for under any such rule the provisions of the iConstitution against special legislation would become wholly nugatory. If it is permissible to adopt for any and all purposes a classification founded upon any and every arbitrary and illusive basis of population, we might have as many acts, general in form, but special in fact, as there are counties, cities, villages, townships, wards, and school districts in the State. It ought to be apparent to any one on a moment’s reflection that, under the rules above stated, classification on the basis of population may be appropriate for one purpose, and not for another; that is, for legislation upon one subject, and not for legislation upon another. For example, a classification of counties or cities on the basis of population might be proper, a-s was held in State ex rel. Anderson v. Sullivan, 72 Minn. 126, 75 N. W. 8, for the purpose of fixing the compensation of county or city officers, inasmuch as the extent of their duties and labors presumably will bear s-ome relation to the population of their respective counties and cities, while classification on any such basis for the purpose of fixing the time at which elections should be held to elect such officers would be as arbitrary as if it had been based upon the initial letter of the names of the counties or cities. ’ ’

Our own court has expressly recognized that all classification must be based upon substantial distinction which makes one class really different from another. It must be based upon some material reason suggested by some difference in the situation of the subject which would suggest'the necessity for different legislation with respect to them. Le Maire v. Henderson, 174 Ark. 936, 298 S. W. 327, and cases cited; and Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617, and cases cited.

The rule itself is fair and reasonable, and the main difficulty is in the application of the rule to a particular case. In the case at bar, according* to the title of the act, its purpose is to grant 4o county courts in counties having a population of 75-,000' or more the right to condemn lands for the protection of public roads. Its preamble recites that in certain hilly and mountainous sections the rainfall is precipitated over State or public roads to their injury, and, that such matter could be controlled and regulated by the construction of suitable dams or reservoirs. Section 1 provides that any five persons owning lands in the vicinity of a State highway or road on which the rainfall from the adjacent hills is precipitated so as to injure the roads may file a petition in the county court praying an order condemning* land for a reservoir and authorizing the construction of suitable dams with the necessary reservoirs for impounding water to protect such roads.

Now it will be seen that the subject of the legislation is not applicable or germane to a classification by population. The topography of a county with less population than 75,000 with relation to the State or public roads in such county would create the necessity for the construction-of dams or reservoirs for the alleged purposes of protecting public roads just as much as it may do so in counties of 75,000 or more population. In each case the basis of the classification would result from the topography of the county and in no sense from the population thereof. A classification by population would have no connection with the subject of the proposed statute. In everything except mere form, it is manifest from the language used, when considered in connection with matters of which the court will take judicial notice, that the Legislature intended that the act should apply only to Pulaski County; and this is just as apparent as if it had been expressly so stated in the act. The basis of classification was not germane to the purpose of the act, and a general act applicable to all counties could have been framed which would accomplish the same purpose which the present act was intended to accomplish.

It is a matter of judicial knowledge that Pulaski County is the only county in the State which contains over 75,000 inhabitants or which is likely to do so far any reasonable time in the future. No ordinary increase in population will place any other county in the same class within any reasonable time. No express words could have been used by the Legislature to limit the application of the act to Pulaski County more definitely than those employed. The avowed purpose of the act has no reasonable relation whatever to the supposed protection of State or public roads by the construction of dams or reservoirs. The condition sought to be remedied would be created and would exist wholly from the topography of the county and not in any sense from the population thereof. As said by Judge Sherwood in State ex rel. Harris v. Herrmann, 75 Mo. 340, “The section (act) in question may be a general law in form, but courts of justice cannot permit constitutional prohibitions to be evaded by dressing up special laws in the garb and guise of general statutes.”

The majority of the court is of the opinion that the classification based on population in the present case, when considered with reference to the purposes of the act, is illusory and a mere subterfuge to exclude the other counties from the provisions of the act. In.the opinion of the majority, the act is unconstitutional as being a special act passed in violation of amendment No. 12. Other objections to the constitutionality of the act are not considered or decided. Therefore the judgment of the circuit court affirming the judgment of the county court which condemned the lands under the authority of the act will be reversed, and the cause will be remanded with directions to the circuit court to adjudge that the order of the county court in the premises shall be vacated and that its judgment to that effect shall be certified down to the county court. It is so ordered.

■Smith, J., concurs; Humphreys, J.., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Rhine v. State.
    Opinion delivered September 28, 1931.

      G. G. Elrod and Williams <£ Williams, for appellant.

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

Lee Rhine prosecutes this appeal to reverse a judgment of conviction against him for manslaughter upon the verdict of the jury fixing his punishment at three years in the State penitentiary.

Henry Walker, sheriff of Washington County, Arkansas, was the first witness for' the State. According to his testimony, on the 24th day of December, 1930, he was informed that Bill Brundidge had been killed in a wood pasture on the farm of Adam Rhine in Washington County, Arkansas. He first went to the house of Adam Rhine, and two of Rhine’s little boys went with him to the wood pasture to show him where the body of Brundidge lay. When he arrived there, he found the body of Brundidge with his back to the ground and a shotgun on his chest with the barrel pointing upwards. There was a considerable amount of blood around the shoulders. Brundidge’s throat had been cut right around from behind one ear under the .jaw bone and back to the other ear. It was a deep cut, and just a little bit of the neck in the back was left. Brundidge’s head was slightly uphill and his feet downhill. There was not much blood on the ground, the most part of the blood being on his shoulders. The gun was a twelve-gauge pump-gun and had four or five shells in the magazine. Bill Brundidge was a heavyset, muscular sort of man and rather tall. The defendant, Lee Rhine, was also a very strong man. Several other cuts were on the arm and head of the deceased. The testimony of the sheriff was corroborated by that of Frank Fletcher, a deputy sheriff. The latter described the wound as a deep cut clear to the bone, and said that, as a matter of fact, Brundidge’s head was almost cut off from his body. He stated further that Lee Rhine told them that he had cut Bill Brundidge’s throat.

Ben Anglin, who assisted in preparing the body of Brundidge for burial, said that they found his throat cut from his left ear right around under his chin to behind his right ear. There were seven cuts on his head and one in the back of his neck and one bad cut on the left shoulder. Another witness who assisted in preparing the body for burial testified that there was a cut on one shoulder and seven stabs or cuts on the head. One of these witnesses said that his throat was cut from ear to ear to his spinal column.

Charley Brundidge testified that he was a brother of Bill Brundidge and that Bill Brundidge’s throat was cut from ear to ear clear to the neck bone. The blood appeared to have run from his neck to his shoulders. Bill Brundidge at the time he was killed was thirty years old and weighed 185' pounds. Other witnesses described the defendant as being as large and stout as the deceased, and some of them said he was the stronger and more active man of the two.

The knife with which the deceased was killed was exhibited to the jury, and it was fairly inferable from the evidence that the point of one blade had been broken off while the defendant was stabbing the deceased. One of the witnesses said that the blade appeared to have been broken recently.

According to the testimony of Adam Rhine, on the morning of the killing, he had sent his two little sons to drive up some of his horses from a wood pasture. He became uneasy because they did not come home as soon as he expected them, and he requested his son, Lee Rhine, to go after them, which he did.

According to the testimony of Andrew Rhine, he was ten years of age when he and his brother were sent to the wood pasture south of the house to look for the horses. They met Bill Brundidge in the pasture. He had a shotgun and told them to sit down. They did so, and he then said that if the boys were not so little he would shoot their brains out. While they were sitting there, he abused them and told them that he didn’t intend for any more of his liquor to be stolen by the Rhine family. About that time, the defendant, Lee Rhine, walked towards them from behind Brundidge. Brundidge pulled back the trigger of Ms gun and started to shoot. Lee ran around behind a small tree, and the wit7 ness ran towards home and did not see any more.

According to the testimony of Charley Rhine, he was thirteen years of age, and, when he and his younger brother found the horses, they started to drive them home. After they had driven the horses twelve or fifteen, steps, they met Bill Brundidge who told them to sit down.They did so, and Brundidge told them that, if they were not so little, he would shoot their brains out. He had a twelve-gauge pump shotgun. Brundidge said that he didn’t want any more of Ms whiskey stolen, and that he was going down and kill the rest of the Rhine family. The witness told Brundidge that he had not stolen any of his whiskey. Witness first saw his brother Lee coming towards them about fifteen steps away. He came up behind Brundidge. When Brundidge saw Lee coming he picked up his gun and said: “There is another Rhine I: am going to get.” Lee then jumped behind a small tree. Brundidge then started towards him and knocked Lee down striking him with the barrel of his gun. Brundidge knocked Lee down and jumped on him. Lee got his knife out, got it open, and commenced cutting Bill Brundidge, who finally fell over on his back. Witness could see his brother Lee striking Brundidge on the head -with his knife. Lee was down on his knees at the time. Lee grabbed the gun barrel in his left hand. The gun was cocked, and Brundidge was trying to get it away from Lee Rhine so that he could shoot him. He said that Brundidge was a-little bigger than Lee Rhine, but .that Lee was the -better man of the two, meaning that he was of more physical strength .and activity. As soon as he killed Brundidge, Lee went home and told his father about it, and his father directed another one of his brothers to go and notify the sheriff. Brundidge had his left hand on the barrel of his gun, and his right hand on the trigger when his body was found.

Two physicians testified that Lee Rhine suffered with, epilepsy, and that, when he had an attack of it, he had no knowledge of what was going on around him but was wholly unconscious.

According to the testimony of Lee Rhine, he went up to the pasture to find his little brothers at the request of his father. He saw his little brothers sitting down on the ground, and Bill Brundidge was about eight feet away from them and “sassing” the little boys. When Lee walked up, Brundidge said, “There comes another damn Rhine, and I’m going to kill him, and when I get through with him, I am going back down there and finish. ’ ’ Brundidge then started towards Lee Rhine with his shotgun in his hand. Lee Rhine jumped behind a small tree, and Brundidge came towards him and knocked him down with his shotgun. Lee Rhine got up on his knees, and Brundidge continued to strike him. Lee grabbed the gun with his left hand and with the other reached into his pocket and pulled out his knife and opened it. Brundidge had his gun cocked. Lee Rhine finally cut Brundidge’s throat after they had been fighting for sometime. Brundidge then fell on Lee Rhine’s breast, and he pushed him off, and Brundidge rolled down on the ground on his back.

Other evidence was introduced for the State and for the defendant, but we do not deem it necessary to set it out, because what we have stated substantially describes the situation of the parties and the circumstances attending the killing.

The law presumes malice from the intentional use of a deadly weapon in the commission of homicide unless the existence of malice is rebutted or overcome by the evidence which proves the killing. Palmore v. State, 29 Ark. 248; Sullivan v. State, 163 Ark. 353, 258 S. W. 980, and Tatum v. State, 172 Ark. 244, 288 S. W. 904. This proposition is well settled by a long and uniform line of decisions in this State, and no further citation of authority is necessary.

Every person is presumed to intend the natural and probable consequences of his act. Hence, his intention to kill may be inferred from the act of killing another person with a deadly weapon or a weapon calculated to inflict great bodily harm upon another person; bnt this is an inference of fact to be drawn by the jury and not a presumption of law to be applied by the court.

In the present case, the jury found the defendant guilty of manslaughter, thereby negativing the idea that the defendant was actuated by malice in the killing, but rather that he had, acted too hastily without any considerable provocation. Freeman v. State, 174 Ark. 1035, 298 S. W. 333.

Under § 2342 of Crawford & Moses’ Digest, where the killing is proved, the burden of proving’ circumstances of mitigation that justify or excuse the homicide devolves upon the accused unless the evidence which proved the killing shows that the offense committed only amounted to manslaughter or that the accused was justified or excused in committing the homicide. Cogburn v. State, 76 Ark. 110, 88 S. W. 822; Smith v. State, 139 Ark. 356, 213 S. W. 403, and Graves v. State, 155 Ark. 30, 243 S. W. 855. This proposition is also well settled by the uniform current of authority in this State.

It is earnestly insisted by counsel for the defendant that the evidence introduced overcomes the case made by the State and that the undisputed evidence shows that' the defendant acted in his own self-defense in killing the deceased. In making this contention, they rely upon the fact that the defendant and his two little brothers were the only eye-witnesses to the killing, and that their testimony, being consistent, conclusively shows that the defendant was .justified or excused in killing the deceased. We cannot agree with the argument that the evidence for the defendant is undisputed and conclusively overcomes the case made by the State. The evidence for the State shows that the defendant killed the deceased. One of the officers testified that the defendant admitted the killing to him. Defendant also admitted the killing when he took the stand as a witness in his own behalf. The manner'of the killing as described by himself and his two little brothers on the witness stand was in all respects similar, but we do not think that.it can be said to be imdisputed because it is not consistent with the evidence for the State. The evidence for the State shows that the deceased was found lying- on his back with his gun cocked and his right hand on the trigger. He was a strong, able-bodied man, and the marks on his face and shoulder showed that he was stabbed seven times. His throat was cut from ear to ear, and his head was nearly severed from his body. This wound produced instant death, and thus the jury might have inferred that he had been stabbed at least six timas before his throat was cut. The jury might have further found that, if his hand had been on the trigger and he was¡ trying to shoot the defendant, there was nothing to prevent him from pulling the trigger while the defendant was stabbing him on the face and shoulders with his knife. The jury might have found that bad blood existed between the defendant and the deceased, and that they began fighting, Brundidge striking the defendant Rhine with his gun and the defendant striking back with his knife. The jury might have believed that the attendant circumstances negatived the idea that the defendant killed the deceased in his own self-defense. The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. The facts and circumstances warranted the jury in drawing the inference that the killing did not occur in the manner described to it by the defendant and his little brothers. The jury was not required to accept as true the testimony of any witness.- They might believe one part of it and reject another part. In the exercise of the duty conferred upon the jury as the trier of the facts under our Constitution, there were facts and circumstances warranting the jury in finding the defendant guilty of manslaughter. Houston v. State, 165 Ark. 294, 264 S. W. 869; Stepp v. State, 170 Ark. 1061, 282 S. W. 684; Ferguson v. State, 92 Ark. 120, 122 S. W. 236; Vaden v. State, 174 Ark. 950, 298 S. W. 323; and Freeman v. State, 174 Ark. 1036, 298 S. W. 333.

The record shows that the court submitted the cause to the jury under approved instructions upon the law of homicide and that no improper evidence was admitted before the jury. We find no reversible error in the record, and the judgment will be affirmed.

Humphreys and Kirby, JJ., dissent.


author: Smith, J.

text:
    Riley v. State.
    Opinion delivered September 28, 1931.

      Feasel Steel, for appellant.

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

This appeal is from a judgment of the Pike Circuit Court, sentencing appellant to a term of one year in the penitentiary upon a charge of stealing certain wearing apparel from the Highland Stores, Incorporated.

The sheriff of the county, who was a very material witness against appellant, offered in evidence a letter, which he said had been written by appellant. This letter was signed in the name of appellant, and was addressed to Roy Henderson, who was suspected of complicity in the larceny, and the statements therein contained were of the most damaging character.

Appellant testified that at the time of the date of the letter he was confined in jail in Howard Comity, and that his right hand was injured so that he could not write, and that he did not write the letter.

The sheriff was asked upon his cross-examination, “Where did you get this letter? You didn’t get it from Lewis, [appellant] did you?” An objection to this question was made by the prosecuting attorney, which was sustained by the court. In so ruling, the trial judge said: “Court: I don’t think that is competent. It is a question whether it is or is not his letter. It is immaterial where he got the letter. It is immaterial how he obtained possession of the letter, if it was his letter.”

Counsel for appellant insisted that he be allowed to interrogate the witness as to the source of the letter, and stated that he was advised that the witness had said he obtained the letter from a Mr. McClure, and that Mr. McClure would testify that he did not deliver the letter to the witness.

We think error was committed in refusing to permit counsel for appellant to interrogate the sheriff as to the source of the letter. It was, of course, immaterial, as stated by the court, how the sheriff got the letter, if appellant wrote it. But that was the question in issue. The authorship of the letter was an issue in sharpest dispute, and appellant denied having written it. It was therefore highly relevant to develop the source of the letter and the means or agencies by which it had come into the sheriff’s hands in determining the authorship of the letter. The sheriff, who offered the letter in evidence, did not claim to be a handwriting expert, but testified that he recognized the letter as having been written by appellant; that he knew appellant’s writing, and he knew appellant had written this letter by the manner in which the letter “r” was made.

This testimony did not conclude the question of the authorship of the letter, and in passing upon this highly important question the jury should have been permitted to hear any relevant testimony which would have aided them in so doing, and certainly the circumstances under which the sheriff had acquired possession of the letter could not be regarded as irrelevant or. immaterial.

An instruction was given upon the possession of recently stolen property, to which the specific objection was made, that the stolen property was not found in appellant’s possession. This, however, was a question of fact. Certain wearing apparel, which was identified as similar to that stolen from the Highland Stores, was found in a vacant house near that in which appellant resided with his father. Two shirts of a similar kind were found in appellant’s room, but these he claimed had been given him by his brother-in-law, and the latter so testified. A path led from the house in which appellant resided to the vacant house, and in this path was seen a track which was made by a shoe having a hole in the sole. Appellant had on such a shoe. The stolen goods, although found in a vacant house had not been abandoned, and it was a question for the jury whether they were in appellant’s possession when found.

Appellant asked an instruction, which the court refused to give, reading as follows: “You are told that you cannot convict upon proof, if any, that defendant was in possession of recently stolen property alone.” No error was committed in refusing to give this instruction. Yelvington v. State, 169 Ark. 359, 275 S. W. 701; Dennis v. State, 169 Ark. 505, 275 S. W. 739. It was held in both of these eases that the possession of property recently stolen justifies the inference that the possession is a guilty one, and may be of controlling weight unless explained by circumstances or accounted for in some other way consistent with innocence. But we have also said that it would be improper to so charge the jury, as to do so would constitute a charge upon the weight of the evidence, and that it was “wholly within the province of the jury to draw or not to draw such inference,” and that courts should not invade the province of the jury by telling them, as a matter of law, what inference arose from such possession. Mays v. State, 163 Ark. 232, 259 S. W. 398.

Upon the whole case we find no error in the record except the refusal of the court to permit the sheriff to be interrogated as to the source from which he had obtained possession of the letter hereinabove referred to. But for this error the judgment must be reversed, and the cause will be remanded. It is so ordered.


text:
    Pickens v. Baker.
    Opinion delivered September 28, 1931.

      F. O. Butt, L. M. Poe, E. J. Lundy, R. E. Morgan and II. R. Duncan, for appellant.
   Smith, J.

This appeal is from a decree which sustained a demurrer to a complaint containing the following allegations. The plaintiff recovered a judgment against defendant, which has become final and absolute, but which he has been and is now unable to collect. Defendant is a resident of the Western District of Carroll County, and the complaint was filed in the chancery court of that district.

The defendant possesses and owns two Osag'e head-rights, one allotted her by reason of her being a member of the Osage tribe of Indians, and the other was acquired under the will of her deceased husband, who was also an Osage allottee.

The defendant is an Osage allottee of less than half-blood, and there has been issued to her a certificate of competency long prior to the incurring of the indebtedness which plaintiff is attempting through this proceeding to collect.

That defendant receives, through such Osage head-rights, an annuity, payable in quarterly installments, amounting to several thousand dollars each year, which, if impounded and applied to the payment of plaintiff’s judgment, would soon discharge it.

It was prayed that defendant be enjoined from selling, assigning or transferring her interest in said head-rights, and that a receiver be appointed to collect and receive the proceeds from such headrights, with directions to apply the same to the satisfaction of plaintiff’s judgment.

The court below was of the opinion, as expressed in the decree, that if a receiver were appointed by the court no authority could be conferred upon him to collect funds that are being administered as a trust in the State of Oklahoma under the acts of the Congress of the United States, without the permission of such law-making authority, and that no such grant of authority had been given. The court therefore refused to appoint a receiver as prayed, and this appeal was prosecuted to reverse that decree.

The “Laws relating to the Osage Tribe of Indians” from May 18, 1824, to March 2, 1929, have been compiled by Mr. B. A. Barney and published in a book under the title of the language above quoted, but a summary of these laws, in so far as they relate to the creation and nature of the headright of an Osage Indian, is contained in the opinion in the case of In re Denison, 38 Fed. (2d) 662.

It is recited in this opinion that at the time of the passage of the Osage Allotment Act of June 28, 1906 (34 Stat. 539), the Osag'e Indians were occupying as a tribe their reservation in Oklahoma Territory containing approximately a million and a half acres of land largely underlaid with oil, gas and other minerals, and 1hat the G-overnment then held in trust for the two thousand or more members of the Osage Tribe a fund of over eight million dollars received and held under various treaties as compensation for the relinquishment of other lands. This Allotment Act reserved the oil, gas, coal and other minerals to the Osage Tribe for a period of twenty-five years from and after the 8th day of April, 1906, as a trust to be administered by the United •States Government, and by subsequent legislation this trust has been extended to April 8, 1958.

Legislation relating to this tribe of Indians removed the restrictions on Indians of less than one-half Indian blood except as to the trust estate held by the Government belonging to the tribe, and provided the manner of payment of quarterly annuities to non-competents and for the payment to those having- certificates of competency of their portion of the fund as it accumulated.

The Denison and other cases defined an “Osage headright” to be the interest which a member of the tribe has in the Osage tribal trust astate, which trust consists of the oil, gas and mineral rights, and the funds which were placed to the credit of the Osage Tribe under Federal legislation relating- to that tribe. The Federal Government has granted leases for the exploration and recovery of oil, upon which royalties are being collected and held in trust for the owners of these headrights.

The complaint alleges that the defendant is an Osage Indian of less than one-half blood and the possess- or of a certificate of competency, which accorded to her full authority to manag-e her own business.

In the Denison case, supra, it was said that: “The only distinction as to alienation of property, between an Osage Indian of half blood or more and an Osage Indian of less than half blood, is that Osage Indians of half blood or more may have certificates of competency issued to them upon application, and in the discretion of the Secretary of the Interior 2, par. 7, act of June 28, 1906, 34 Stat. 542), while all restrictions against the alienation of their allotment selections, both surplus and homestead, of all adult Osage Indians, of less than one-half Indian blood, have been removed. Section 3, Act of Congress, March 3, 1921, amendatory of § 3, Act of Congress, June 28, 1906.”

It was there also said: “An adult Osage Indian of half blood or more, with a certificate of competency has the right to sell and convey any lands deeded to him by reason of the act of June 28, 1906, except his homestead, while an Osage Indian of less than half Indian blood has the right to sell both his surplus and homestead. A ‘competent’ Osage Indian is one having a certificate of competency.

“The word competent has been defined as follows: ‘The word “competent” as used in this act, shall mean a person to whom a certificate has been issued authorizing alienation of all the lands comprising his allotment, except his homestead.’ Section 9, Act of April 18, 1912, 37 Stat. 86; McCurdy v. U. S., 246 U. S. 263, 38 S. Ct. 289, 62 L. Ed. 706.”

The Denison case was one which involved the question whether an Osage headright of an Indian who had filed a voluntary petition in bankruptcy constituted an asset of the bankrupt, to be administered by the trustee in bankruptcy as the other assets of the bankrupt. In an opinion reviewing much of the legislation on the head-rights of Osage Indians, it was held in the Denison case that “Nowhere in the Act) of 1906, or by an amendment thereto, does an Osage Indian of less than half blood with a certificate of competency, or with restrictions removed, have the right to dispose of his trust fund or his trust estate. Congress has the right at any time to modify the provisions for holding or disposing of the trust estate of the Osages. The whole purpose of Congress has been to protect the Indian, and provide for his maintenance, his education and his care, and the trust estate cannot be affected by any obligations created by the Indian, even though he has a certificate of competency.”

It was there further said: “This does not, even by implication, empower him to sell his interest in a trust estate. Congress has provided that at the termination of the trust period, whenever it may be, the interest of the individual Indian shall be delivered to him intact. United States v. Thurston County, (C. C. A.) 143 F. 287. Could 'Congress do this if taxes could attach or if liens could attach 'by virtue of judgments and obligations of any character? If the so-called Osage 'head-right’ is an estate in bankruptcy, then every Osage Indian, having had issued to- him a certificate of competency, could absolutely defeat the original purpose of Congress. It would be an easy matter for him to incur obligations either in good faith, or otherwise, and through a bankruptcy proceeding destroy the control which the Grovemment exercises over his trust estate and through the bankruptcy proceeding get control of same himself.”

It followed, of course, from these declarations that the headright of an Indian did not constitute an asset of the bankrupt, to be administered by the trustee in bankruptcy, and the court so expressly held.

It was held by the Supreme Court of the United States in the case of Choteau v. Burnet, Commr. of Internal Revenue, decided May 25, 1931, 283 U. S. 691, 51 S. Ct. 598, that a member of the Osage Tribe of Indians holding a certificate of competency was liable for the income tax on his share of the income paid him for tribal mineral leases. But in an opinion in the case of Taylor v. Tayrien, by the United States Circuit Court of Appeals for the Tenth Circuit, 51 Fed. (2d) 884, it was pointed out that the Chotean case dealt only with moneys actually paid to and in possession of the individual Indian, which were his own to do with as he pleased.

This case of Taylor v. Tayrien involved the single question whether the headright of an Osage Indian of less than half blood, with a certificate of competency, passed to his trustee in bankruptcy. The court held that it did not. This case of Taylor sets out and approves an opinion, dated August 15,1922, by the Solicitor of the Department o'f the Interior on the right of members of the Osage Tribe of Indians to assign oil and gas royalties. The solicitor concluded his opinion as follows: “True, individual members did obtain a prospective right to share in the periodical distributions of royalties received from leasing the deposits mentioned, after certain authorized deductions therefrom had first been made. In the absence of specific legislation by Congress, which has not been had, prospective rights of this nature, even in the hands of those members of the tribe who have received ‘certificates of competency’ or the restrictions against alienation of whose lands have otherwise been removed, are not assignable. * * * Payments of these funds in any other manner, or to persons other than as authorized by these statutes, is not warranted. * * * Again, and speaking generally, funds in the hands of administrative officers of the government, whether for the benefit of Indians or otherwise, are not subject to attachment, levy, sale, execution, assignment, etc., in the absence of express legislation by Congress to that effect.

“I find no difficulty therefore, in holding that members of the Osage Tribe, including those to whom certificates of competency have been issued or whose restrictions have otherwise been removed, are without power to assign their right to share in the oil and gas royalties and other funds accruing to them as members of that tribe, and that such funds, as and when due, can be paid only to such of these allottees or their heirs as may be competent; the shares due incompetent members to be further administered for their benefit, as specifically provided for in the act of March 3,1921.”

Upon a consideration of these authorities, we have concluded that the chancellor properly refused to appoint a receiver in this ease. The property of which the court,is asked to take possession is not within the jurisdiction of the court, but is in another State and is there being administered as a trust under the Federal statutes above referred to for the benefit of all the members of the Osage Tribe.

The decree of the court below will therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Kidwell v. State.
    Opinion delivered September 28, 1931.

      Hugh Williamson and Coleman \& Reeder, for appellant.

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

Appellant was indicted, tried and convicted in the circuit court of Izard County of the crime of murder in the first degree for shooting and killing Shorty Moser on the 8th day of May, 1930, and his punishment was fixed at imprisonment in the State penitentiary during his natural life, from which conviction and sentence appellant has duly prosecuted an appeal to this court. Deceased was assassinated between six and seven o’clock on the eighth day of May, 1930, as he was entering the gate of the barnyard, and the theory of the State was that the shot was fired by appellant, who was concealed in the stable.

According to the testimony of two of the State’s witnesses - introduced in rebuttal, who testified over the objection and exception of appellant, they heard appellant say to Emmet Williamson, “I thought I would have to take the second shot to get him, but I got him the first shot.” Emmet Williamson denied that appellant made such a statement to him, and the court admitted the testimony in rebuttal for the purpose of contradicting Emmet Williamson.

It is urged that the court committed reversible error in admitting the rebuttal evidence because there was nothing in the statement itself which connected it with the death of Shorty Moser. It is true that Shorty Moser’s name was not mentioned when the statement was made, but he was shot only one time when assassinated, and appellant was observed by Shorty Moser’s widow leaving the barn immediately after the shot had been fired and was seen by others coming from that direction a short time after the shot was fired. Other circumstances, unnecessary to mention, tended to show appel: lant was the author of the crime, so we think' this statement admissible as original testimony tending to connect him with it. Being* admissible as original testimony, appellant was in nowise prejudiced by the admission of it in rebuttal.

A reversal of the judgment is also urged because the court g*ave instruction No. 4 relating* to the alibi interposed by him as a defense. The-instruction is the .same in substance as that usually given in criminal cases where an alibi is interposed as a defense and has been approved by this court in the following cases: Ware v. State, 59 Ark. 379, 27 S. W. 485; Rayburn v. State, 69 Ark. 177, 63 S. W. 356; Wright v. State, 177 Ark. 1039, 9 S. W. (2d) 233.

No error appearing, the judgment is affirmed.


text:
    Hartley v. State.
    Opinion delivered September 28, 1931.

      A. H. Rowell, Jr., and Rowell <& Alexander, for appellant.

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

On January 15, 1926, appellant entered a plea of guilty in the circuit court of Jefferson County to a charge of selling liquor under a State statute making the unlawful sale thereof a felony punishable by imprisonment in the State penitentiary. The imposition of the sentence was postponed by agreement during the good behavior of appellant, and the cause was continued. On May 16, 1931, it was made to appear by petition of the prosecuting attorney that appellant had violated his agreement with the court by committing offenses against misdemeanor statutes of the State. He was brought into court on an alias bench warrant for the purpose of imposing sentence on the plea of guilty entered'by him on January 15, 1926. He objected to the imposition of the sentence on account of the lapse of time between the date of his plea of guilty and his rearrest and because he did not commit any other felony. His objections were presented by proper pleas.

The court heard testimony upon the issues joined, overruled appellant’s pleas, and imposed a sentence of service in the State penitentiary at one year on his plea of guilty for unlawfully selling liquor, from which is this appeal.

The sentence was postponed under authority of act No. 76 of the General Assembly of 1923. That act authorizes the circuit judge to accept a plea of guilty and postpone pronouncement of final sentence upon proper and reasonable conditions if he deems it to the best interest of defendant and not harmful to society. The condition imposed in the instant case was that appellant’s behavior thereafter should be good. This condition necessarily implied that appellant should obey and not violate the law. Good behavior in the sense of being law-abiding-means not to violate the law. The record reflects that appellant pleaded guilty, to unlawfully carrying a pistol and paid a fine for the offense a short time before the sentence in the instant case was imposed. The testimony also tends to show that he committed other misdemeanors for which he was not prosecuted and convicted. It cannot be said therefore that it was contrary to the best interest of society for the circuit court to impose the delayed sentence. The condition upon which the sentence was postponed had been broken.

It was pleaded, and now argued, that the court lost jurisdiction to impose the sentence by the lapse of time. Not so. Neither the statute in question nor any other statute contains a time limitation. No limitation was fixed in the order. It was clearly a continuing order and remains in force ancl effect until changed or modified.

This court announced the rule in Davis v. State, 169 Ark. 277, 277 S. W. 5, that a sentence of imprisonment can only be satisfied by serving and not by lapse of time. This rule was reaffirmed in the case of Stocks v. State, 171 Ark. 835, 286 S. W. 975. The same rule was applied by this court in construing act No. 76 of the General Assembly of 1923, saying: ‘ ‘ That rule applies here in the absence of a statute limiting the time in which the court may revoke the suspended sentence.” Denham v. State, 180 Ark. 382, 21 S. W. (2d) 608.

No error appearing, the judgment is affirmed.

Mr. Justice Smith concurs.


author: Kirby, J.,

text:
    Killian v. State.
    Opinion delivered September 28, 1931.

      Northcutt •& Northcutt, for appellant.

      Hal L. Nomvoocl, Attorney General, and 'Robert F. Smith, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). It is first urged that the court erred in allowing Dr. Smith to testify that in his opinion the wound inflicted on the marshal would have proved fatal if he had not received immediate treatment and the portion of the skull lifted from the brain. There was no error in the admission of the testimony as to the nature and extent of the wound inflicted for the consideration of the jury in determining the intent of the person committing the assault and the degree of the offense. Underhill, 'Criminal Evidence, 3d ed., § 540.

Neither did the court err in excluding the testimony relative to the indictment of Homer Scott for the offense for the commission of which appellant was on trial. There was no offer to introduce any testimony tending to show that Scott was the guilty person, but only that he had been charged as being such.

The instructions complained of, though erroneous, could not have been prejudicial, since, notwithstanding the jury was told that it would be possible for it, under the testimony, to find the defendant not guilty of the crime of assault with intent to kill and find him guilty of aggravated assault, the suggestion, if it amounted to such, was disregarded, and the appellant found guilty of assault with intent to kill. The instruction was not aptly worded, but the majority is of opinion, in which the writer does not concur, that it did not indicate the court’s opinion, under the testimony, nor amount to a suggestion of the opinion of the court on the degree of importance to be attached to the testimony or an opinion of the court about the weight and sufficiency of the evidence.

Although the defendant denies that he threw the stone or struck the marshal and attempted to show that another had been indicted for the offense, there was some testimony that he did throw it, and the jury found it to be a fact, and there were no circumstances of mitigation, justification or excuse shown, and the law implies malice. If death had resulted it would have at least constituted murder in the second degree, and the testimony is sufficient to sustain the conviction of assault with intent to kill. Turner v. State, 175 Ark. 232, 298 S. W. 1028; Cheeks v. State, 169 Ark. 1192, 278 S. W. 10.

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

Butler, J., dissents.


author: Mehafey, J.

text:
    Elmore v. Bishop.
    Opinion delivered September 28, 1931.

      Jeff Bratton, for appellant.
    .7. T. Craig, for appellee.
   Mehafey, J.

The appellant, R. L. Elmore, became sheriff of Greene County in 1916 and went out of office on January 1, 1920. Mrs. Bessie Cook died in 1918, and the appellant, sheriff of Greene County at the time, as public administrator, took charge of the estate of Bessie Cook,, deceased. The record does not show that he was ever appointed administrator and does not show that he gave bond as administrator. He did, however, take charge of the property and made two settlements. The last settlement as public administrator was made January 16, 1923, and the following judgment was entered on the back of the last settlement: ‘ ‘Settlement examined and approved and administrator ordered and directed to pay over to guardian or curator or heirs of Mrs. Bessie Cook, $118.02 with interest, and judgment is rendered against said administrator and his bondsmen for balance, for which execution may issue. January 16, 1923, J. C. Honey, Probate Judge.” The appellees, Clara Bishop, Margaret Mayo and Carl Cook, the heirs at law of Bessie Cook, deceased, on August 7, 1930, filed suit against appellant for $118.02.

Appellant testified that he took possession of the estate of Mrs. Bessie Cook and filed two settlements, and that he had had in his possession $118.02, payable to the estate of Bessie Cook and that he was directed to pay the money to Wm. Poole, and that he did pay the money to Mr. Poole according to the directions of the probate judge; that he took a receipt from Poole and carried it to the clerk’s office- Mr. Poole was at that time working in the Security Bank & Trust Company. The receipt was not found, and appellant testified that he did not know what became of it. He thought he paid the money by check on the Bank of Commerce, and that the check was made payable to Poole. All his checks had been burned. He told Poole he was paying him the Bessie Cook money. Payment was made sometime after he filed his settlement.

Ted Rogers, assistant bookkeeper at the Bank of Commerce, testified that he could not find any account that B-. L. Elmore kept with the hank. Elmore Brothers had an account there, hut he could find no record of a check given for $118. The period for which he examined the books was for 1914 to 1921 or 1922 and not for 1923.

Jim Poole, a brother of "Wm. Poole, testified that he thought Wm. Poole left there sometime in the fall of 1922, and that he, witness, did not receive any money from Elmore in the bank.

It is undisputed that the appellees are the only heirs at law of Mrs. Bessie Cook, deceased, that Elmore had in his hands as public administrator, belonging to the heirs, $118.02, and the court submitted to the jury the following interrogatory: “Did it. L. Elmore, administrator1 of Cook estate, pay to the Security Bank & Trust Company the sum of $118.02?” and the jury found that he did not. The order of the court was that he pay over to the guardian or curator or the heirs of Mrs. Bessie Cook the sum of money mentioned. The Security Bank & Trust Company was the curator.

The settlement made by the appellant and the order or .judgment of the court was quite a long while after appellant’s term of office had expired, and at the time the suit was brought Clara Bishop was 25 years old, Margaret Mayo was about 24 years old and Carl Cook was 27 years old. There was judgment against appellant for $118.02, and he prosecutes this appeal to reverse said judgment.

The only disputed question of fact in the case is whether appellant paid the $118.02.

Appellant contends that because there is no record of the administration, no inventory filed, no application for appointment as administrator, no bond as administrator and no record entry of anything pertaining to the administration of the Bessie Cook estate, the case should be reversed.

Our statute provides: ‘ ‘ The sheriff shall, by virtue of his office, be public administrator in and for his county.” Crawford & Moses’ Dig., § 245.

No appointment by the prohate court was necessary. The sheriff was by virtue of his office public administrator. Appellant testified himself that he took possession of the estate and filed two settlements, and he also testified that he did have in his possession $118.02 payable to the estate of Bessie Cook.

“The general power to act as public administrator may be assumed by the officer taking the property into possession, if necessary, to prevent waste, or upon the order of the probate court directing him to do so.” Williamson v. Furbush, 31 Ark. 539.

A public administrator may in the first instance act on his own judgment in taking charge of an estate, but the probate court has jurisdiction to determine all questions arising in the progress of the administration. McCabe v. Lewis, 76 Mo. 296.

The probate court in this case exercised jurisdiction and passed on two settlements filed by appellant as public administrator. “It does not appear, either by the petition or proofs, that the probate court ordered the plaintiff to take possession of the estate of Mrs. Taylor; but it is alleged in the petition, and was admitted on the trial, that plaintiff was the duly elected and qualified administrator of Lewis County, and that he took charge of the estate of Clarissa Taylor, and filed notice thereof in the probate court. Section 299, Rev. St. 1889, makes it the duty of the public administrator to take charge of the estates of deceased persons in the cases specified in the first seven subdivisions thereof. In those cases, the public administrator, in taldng charge of estates, acts independent of any order of the probate court.” Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955. Appellant took charge of the estate as public administrator, filed his settlements in the probate court as such administrator, and the fact that no record was found showing the administration is immaterial. When appellant filed his second settlement, the probate court made the order above set out. This order was indorsed on the back of the settlement, but was not shown to have been recorded elsewhere. It was, however, the judgment of the court, and appellant relies on it as finally settling and adjudicating his rights as administrator. It was a valid judgment although not recorded. McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.

It is contended also that the evidence conclusively shows the .judgment was paid. It is true that appellant testified that he had paid the amount, but a rule established by this court is that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. (2d) 162.

Not only will the evidence of an interested party not be regarded as undisputed, but in this case the officers of the bank were unable to find any record of a check claimed to have been given in payment by the appellant, and appellant had no account at the bank at the time the payment was claimed to have been made. It also appears probable from the evidence that Poole, the man appellant thinks he paid it to, left in 1922, and the payment, if made, was made in 1923. As to whether the amount was paid was a question for the jury, and the verdict on this issue was against appellant. This finding is conclusive here.

It is contended that the claim is barred by the statute of limitations. The statute provides: “Actions on all judgments and decrees shall be commenced within ten years after cause of action shall accrue, and not afterwards.” Crawford & Moses’ Digest, § 6959.

This action was commenced within ten years, and was therefore not barred.

Appellant also contends that the trial court erred in holding that the action was barred as to the sureties on appellant’s bond and not barred as to appellant. He says this action of the court was in effect holding that the appellant could not plead any statute of limitations. We do not agree with appellant in this contention. The suit was against the sureties on the appellant’s bond as sheriff, and not against the sureties on administrator’s bond. It appears that he did not give any bond as administrator. “Actions on the official bonds of sheriffs, coroners and constables shall be commenced within four years after the cause of action shall accrue and not afterward.” Crawford & Moses’ Dig., § 6957.

The judgment of the circuit court is affirmed.


author: Mehaeey, J.

text:
    Shell v. State.
    Opinion delivered September 28, 1931.

      Alexander \ds Cooper and T. J. Crowder, for appellant.

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

Appellant was convicted of the violation of act 121 of the Acts of 1925, the first section of which reads as follows: “It shall be unlawful for any person, firm, or corporation to have in their possession any alcoholic, vinous, malt, spirituous or fermented liquor or any compound preparation thereof commonly called tonics, bitters, or medicated liquors for the purpose of sale as a beverage.”

The second section of this act provides that on conviction the person shall be fined in any sum not more than $1,000 and not less than $50.

The jury found the appellant guilty and fixed his punishment at a fine of $100, and judgment was entered accordingly. This appeal is prosecuted to reverse the judgment of the circuit court.

The appellant lived in a small house on the premises of Mr. Spicer. The officers had a search warrant to search the premises of Mr. Spicer and went there about ten o’clock at night. Just before arriving at the premises, they met a Mr. Chappie coming out and stopped him and questioned him and let him go on. They then went on to the house and found at the front porch .10 gallons of liquor. The appellant came out on the porch partly dressed, and the officers arrested him.

The evidence showed that some time, possibly a year before this, 15 gallons of whiskey were found in this same house where appellant lived; he was arrested, entered a plea of guilty, and was fined. The appellant testified that he knew nothing about this 10 gallons of liquor, did not know that it was at his porch, it did not belong to him, and it was not in his possession, and he did not have it for sale. He admitted that on a former occasion the officers had found 15 gallons in his home, and that he paid a fine for possessing it for sale.

Appellant insists that the case should be reversed, first, because the evidence did not show that the liquor was the kind prohibited by law, and did not show that it was intoxicating. Both the State and appellant treated it as intoxicating liquor or whiskey, and Mr. Wilson, one of the witnesses, was asked the question: “Was the whiskey on the porch, or under the porch, or near the porch?” He answered that when he saw it it was right against the porch. He also said that Mr. Lindsey got there before he did, and when he got there Mr. Lindsey said: “Here is ten gallons of whiskey I found at the front porch.”

There was no contention that it was not intoxicating liquor. The evidence was sufficient to justify the finding by the jury that the liquor found was intoxicating. Fuller v. State, 179 Ark. 914, 18 S. W. (2d) 913.

It is next contended that the evidence does not show that it was in the possession of the defendant. The evidence, however, shows that the liquor was found at the porch of the house where appellant lived; appellant testified that it was his home, and that he had been living there several years.

The fact that the whiskey was found at appellant’s front porch on the premises controlled by him, together with the fact that he had formerly engaged in the business, and had 15 gallons of liquor in his house, was sufficient to justify the jury in finding that the liquor was in the appellant’s possession.

Possession is such control of property that the person having it may legally enjoy it to the exclusion of others, and it means that which one occupies or controls. He was in possession of this liquor in the sense that he was in possession of anything else on the premises. Of course, it is possible that liquor or anything else could be put on one’s porch or in his house without his knowledge, but whether he was in possession or not was a question for the jury, and the evidence on this issue was sufficient to justify their verdict.

It is next contended that the evidence does not show that it was in his possession for sale. Before the appellant’s conviction under the act would be justified, it must appear that he had the liquor for the purpose of sale as a beverage. The evidence tending to show that he had the liquor for sale as a beverage is not very strong. As to whether he did or not was a question of intention, and as a general rule the intention can be proved only by circumstances. No one can testify as to what another’s intentions are. One might have possession of whiskey, or it might be on his premises tinder such circumstances as would contradict the idea that he had it for sale; or it is possible that one might give such an explanation of its possession that would show that it was not kept for sale, but we have no explanation; the appellant simply denies that he possessed it, and denies any knowledge of it at all.

Intention or purpose is a fact which can not, in the nature of things, be positively known to others. Others can not testify directly as to what one’s intention or purpose is. It is not a presumption of law, but an inference of fact that the jury may draw from the facts and circumstances introduced.

The fact that a ten gallon vessel of whiskey was found at his porch, together with the fact that he had, something like a year before that time, been in possession of 15 gallons of whiskey which he had for sale, and the fact that a person was coming from his house at this time of night, and the fact that there was no explanation or suggestion that the liquor was kept for any other purpose, was sufficient to submit the question to the jury, as to whether he possessed the liquor for sale. '

The jury was composed of men of the county where appellant had lived a number of years, and the court told the jury that it was not a violation of the statute to possess intoxicating* liquor in a private residence unless the possession is for some illegal purpose, and that in this ease it was the duty of the jury to acquit, unless they found beyond a reasonable doubt that the defendant possessed the liquor in question for the purpose of selling it. They were told by the court that if they had a reasonable doubt either that the liquor was in his possession, or, if in his possession, for the purpose of sale, it would be their duty to acquit the defendant. The jury were therefore properly instructed. The jury was the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and we think the facts and circumstances introduced were sufficient to support the jury’s finding.

The .judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Wilson v. State.
    Opinion delivered September 28, 1931.

      Caraway, Balcer i& Oautney, for appellant.

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

Appellant was indicted for murder in the first degree for the killing of Dexter Carter. He was convicted of voluntary manslaughter, and sentenced to two years in the penitentiary.

For a reversal of the judgment of conviction ag’ainst him, appellant first says the court erred in refusing to permit certain witnesses for him to testify concerning certain uncommunicated threats the deceased is said to have made against appellant some weeks before tbe killing. Threats which are not communicated to the deceased are not always admissible, but only when there is doubt as to who the aggressor was. They are admitted in proper cases to show who the probable aggressor was. As said by this court in Lee v. State, 72 Ark. 436, 81 S. W. 385, “Former threats by the deceased against the accused 'may generally be given in evidence, as tending to show the defendant’s motive, when'they were communicated to him before the killing, and evidence of former threats by the deceased against the accused, even though they were not communicated to the defendant prior to the killing, may be received when there is a doubt as to who was the aggressor, and some evidence has been given which tends to show the act was done in self-defense. 25 Am. & Eng. Enc. Law (1st Ed.) pp. 1066, 1067.” At the time this testimony relating to threats made by the deceased against appellant was offered, there had been no testimony given which in any way tended to show that the killing was done in self-defense, and, therefore, the testimony was not admissible at that time. Thereafter, appellant himself testified that at the time he hit deceased with the billet of wood, he did so in self-defense, or that deceased was walking towards him with his hand in his pocket. No offer was made thereafter to prove the uncommunicated threats, and, conceding that they would then have been admissible, it certainly was not error to exclude them at the time offered.

It is next argued that the court erred in refusing to give appellant’s requested instruction No. 1 to the effect that the jury might consider the evidence of uncommunicated threats together with other evidence in determining who was the probable aggressor. As above shown all evidence relating to such threats was excluded, therefore such instruction was abstract, as there was no evidence on which to base it.

Finally, it is said that the court erred in its oral instruction urging the jury to try to come to an agreement. The remarks of the court in this connection are lengthy, and we think no useful purpose can he served by copying them. We have examined the language of the court carefully in the light of appellant’s argument, and cannot agree that it has the effect of expressing an opinion as to appellant’s guilt. The court was very careful to explain to the jury that such was not the intention. We are convinced that appellant received a fair and impartial trial. He was ably represented by eminent counsel, and the results áchieved testify to this fact.

Affirmed.


text:
    Reeves v. Wisconsin & Arkansas Lumber Company.
    Opinion delivered September 18, 1931.

      Hogue >é Burney, for appellant.

      John L. McClellan, for appellee.
   McHaney, J.

On May 9, 1919, appellee entered into a written contract with one H. G. Toler for the sale to him of sixty acres of land in Grant County, for a consideration of $450, of which $100 was paid in cash, and for the remainder two promissory notes were given, $175 each, due in one and two years after date, with interest at 7 per cent, from date. Said contract provided that, upon the payment of said notes and interest and the surrender-of the contract, appellee would execute to said Toler, his heirs or assigns, “a special warranty deed conveying the title to said aforedescribed lands and premises in fee simple. ’ ’ But, on a failure to pay said notes, or either of them, at the time and in the manner set forth, it is provided that said contract shall be null and void, “and the premises hereby contracted shall revert to and revest in ’ ’ appellee, “time being the essence of this contract.” A further provision is: “It being agreed and understood that deed, when made, is to carry the usual mineral, coal, oil and gas reservations. ’ ’

On April 11, 1920, appellant bought this land from Toler, paying him a sum in cash and assuming the outstanding indebtedness to appellee, represented by the above mentioned notes. A copy of the Toler contract was delivered to him in 1925, and the original held by Toler was assigned to him on October 20,1928. He made some small payments to appellee from time to time, hut failed and refused to pay in full. Appellant being in default and refusing to pay after notice and demand, appellee brought this action to recover possession of the land, or to enforce a lien for the balance due, appellant having entered into possession when he bought from Toler and made valuable improvements thereon. A trial resulted in a decree for appellee declaring and enforcing a lien on said land for the balance of the purchase money represented by said notes, $378.50, including interest.

For a reversal of the judgment, appellant says the contract is void, first, for want of execution; and, second, that the exception clause, reserving the minerals, etc., above quoted, is ambiguous which renders the contract void. Appellant made no such contentions in the trial court, and these questions were not then and are not now issues in the case. He admitted the specific allegations in the complaint in these respects to be true, that is, that appellee and Toler made the contract upon the terms and conditions heretofore stated, that the copy thereof attached to the complaint is a true copy, that the land was to be conveyed to Toler, or his assigns, upon the payment of the balance due, by special warranty deed, and further: “admit that plaintiff was to reserve title to all mineral, oil, coal and gas in and to said lands in the plaintiff,” etc. Having admitted by answer that the contract was properly executed and that appellee was to reserve the minerals mentioned in the deed, when executed, no issue thereon was joined, and none can be raised now. It appears that the contract was executed in duplicate, each party receiving a copy signed by the other. The copy held by appellee and attached to the complaint was signed by Toler, but not by an officer of appellee. This could make no difference to either Toler or appellant. It was unnecessary' for appellee to sign its copy. It was and is asserting that the contract was its act, which was not denied. Nor could any person of ordinary intelligence have been misled by the wording of the mineral reservation to be inserted in the deed.

It is finally contended that appellee’s title to the land is not good, or that there has been a failure of title. The argument made by appellant under this heading appears to be based on the assumption that the written contract is void. Since, as we have already shown, the contract was a valid one, admitted to be such in his answer, and no contention thereon being made below, appellant must, of necessity, be concluded on this point. It will be remembered, however, that appellee contracted to give Toler, or his assigns, a special warranty deed only. Such a deed cannot lie construed to be one of general covenants of warranty, but simply warrants the title against all defects therein done or suffered by the grantor. Appellee however offered to give appellant a deed with general covenants of warranty, if he would pay the purchase price and thereby avoid the necessity of this lawsuit, but the offer was refused. We think it unnecessary to decide whether the title in appellee is good or bad, but will observe in passing that it acquired the title in 1905, the land at that time, being unimproved and uninclosed, and that it and those through whom it claims have paid the taxes thereon for a great many years, more than seven, under color of title, and have continuously paid the taxes thereon since 1905 to 1919, when the land was sold to Toler.

We find no error, and the decree is accordingly affirmed.


author: Butler, J.

text:
    Ransom v. State.
    Opinion delivered September 28, 1931.

      Jackson <& Blackford, for appellants.

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

Three youths, Raiford Ransom, Charles Ransom and James McElroy, were indicted for the murder of J. H. Jenkins. The cases were by consent consolidated for the purpose of trial, which trial resulted in a verdict of guilty of murder in the second deg’ree as to each of them and punishment fixed at imprisonment for twenty-one years in the State penitentiary.

It is contended here that the evidence is not legally sufficient to support the verdict against any of the defendants. This is the only ground urged by counsel for the reversal of the case.

At the time of the homicide the defendants, who were from seventeen to nineteen years of age, had been trapping near the town of Bunny, and on the forenoon of December 11, 1928, returned from their trapping to the town where they had a Ford car in which they left going north on the highway leading past the town. Shortly after their departure a rural mail carrier followed along the same route, and, after having gone about two' miles north and turned into' an intersecting road going east for about 150 yards, he discovered the automobile of Jenkins near the center of the road and the body of Jenkins lying on the right side of, and parallel with, the car with his head toward the front end of the car. The body was lying on the right hand with the left arm straightened out, the feet being about five or six feet from the front end of the car. On approaching the body, it was discovered that the motor of the car was still running’ and that Jenkins was dead. His pistol scabbard which was attached to his belt was empty. A light rain had been falling, so that marks on the highway were easily discoverable. From these it appeared that only two cars had traveled the highway that morning before the mail-carrier reached the scene of the killing. From the trades it appeared that the car, which afterwards was found to be the one in which the defendants had been riding, had been stopped near the right side of the highway going north, and Jenkins’ car passed to the left and stopped about the center of the highway about twenty-five feet from the defendant’s car. Foot tracks revealed that Jenkins had got out of his car on the left and walked around the front end of it to a point about opposite the middle of the right-hand fender and stopped facing in the direction of defendant’s car. The automobile tracks showed that, aifter having stopped, the defendant’s car moved forward and around Jenkins’ car and stopped again about thirty feet away from where the body of Jenkins lay, and from this point foot-steps led to the body of Jenkins and back to where the defendants’ car had been stopped the second time. From this point the car of defendants moved on to where it was afterwards found at the home of the father of Raiford Ransom.

The three boys were arrested, and Raiford Ransom admitted having killed Jenkins. The statement of Raiford Ransom and that of the two other defendants were much alike and about as follows: When the defendants left Bunny, all three were riding on the front seat' of the car, Raiford Ransom in the middle with a forty-five calibre Colt pistol on the seat by his side. They had in the car a gallon can of coal oil. They travelled north for about two miles and then east on an intersecting road about 150 yards in the direction of the home of the Ransom boys. Just before they reached this point they heard a car behind them which sounded its horn several times, and McElroy, the driver of defendant’s car, was told by Raiford Ransom to stop. He drew over to the right hand side of the road and did so. As he stopped, the other car passed to the left and stopped about 25 feet away at about the center of the highway. The man got out on the left, walke4 around to the front of his car to its right side with a pistol in his hand, and ordered the three boys to stand up and turn their pockets out, stating that he intended to search their car. None of the three defendants knew who the man was though it was afterwards discovered that he was Jenkins, a deputy sheriff. The defendants obeyed his command, and McElroy was told to stand where he was, and the others were told to get out of the car. There was no floor board in the bottom of defendants’ car and as Baiford Bansom arose he fell through the opening in the-floor of the car. Jenkins immediately fired two shots in his direction and when he arose Jenkins fired two more shots at him. Jenkins then exclaimed, “If I haven’t hurt you yet, I will,” and unbreached his pistol, feeling in his pocket. At this time Baiford Bansom obtained the pistol from the seat of the car and fired twice at Jenkins, striking him twice in the breast, one of the bullets passing through his body and one not quite penetrating it. Jenkins fell to the ground. The defendants started their car and passed by Jenkins, running over one of his feet. About thirty feet further on they killed their engine. While starting it again, Baiford Bansom looked backward and saw Jenkins trying to reach his pistol which had fallen from his hand. Baiford Bansom then returned to Jenkins, took possession of the pistol, returned with it to his car, placed it in the back of same, and the three proceeded to the home of the father of the Bansom boys.

•Several witnesses, who were from a quarter to a half mile away from the scene of the shooting, testified that they heard some firing in that direction, but were not very clear as to the number of shots fired or as to the intervals between them. Upon this state of facts counsel for appellant insist that the jury should have returned a verdict of not guilty on the ground of justifiable homicide, and that there is no case of unlawful homicide made against the defendants.

Raiford Bansom having admitted killing Jenkins, the burden of proving facts which would tend to justify or extenuate his aSt devolved upon him and the jury had the right to scrutinize his testimony and that of his codefendants in the light of attendant circumstances in order to determine whether his statements were made in good faith and true, or whether they were untrue and made simply to avoid the consequences of his act. Crawford & Moses’ Digest, § 2342; Houston v. State, 165 Ark. 294, 264 S. W. 869; Jimmerson v. State, 169 Ark. 353, 295 S. W. 956.

His testimony and that of his companions is to the effect that they were unacquainted with J enkins and did not know that he was an officer. While there is no direct testimony tending to contradict this statement, it is apparent from all of the testimony in the case that J enkins had been an officer of the law for some time, active in the discharge of his duties, and had acquired the soubriquet of “Bugaboo Jenkins” among those with whom the defendants associated. Therefore, the jury might reasonably have doubted the truth of the statements of defendants regarding their acquaintance with the deceased. These statements were also to the effect that Jenkins approached within a short distance of defendants’ car — about five feet — when he began firing, while the physical facts show that he never got beyond the center of the front fender of his car, nor was it reasonable that firing four shots within five feet of the car and its occupants that none of the bullets would have found its mark or struck any portion of the car. Again, it was testified by the defendants that the deceased threw the cylinder of his pistol out of position and was feeling in his pocket as if searching for cartridges, but it is significant that no exploded shells of the calibre of Jenkins’ pistol were found at the scene of the killing and that the pistol itself had been taken away and kept by the defendant, Raiford Ransom, until recovered by the officers.

Another circumstance testified to by defendants migh| have appeared to the jury so out of the ordinary manner that men follow in a crisis of this kind as to render it unworthy of belief, i.e., that after the defendants had started their car and were on their way Raiford Ransom returned some thirty feet to the body of Jenkins and picked up the pistol and carried it away because Jenkins was reaching for it as he lay on the ground. The position of Jenkins’ body and the nature of his wounds were such that the jury might well have inferred that he fell in his tracks and probably never moved again. All of these circumstances were considered by íhe jury and were sufficient to justify the conclusion that the statements of the defendants as to the manner in which the killing occurred was untrue. Since the jury is the sole judge of the credibility of the witnesses and the weight to be accorded their testimony, its conclusion must not be disregarded if there is any substantial evidence, direct or circumstantial, to support the verdict. Ford v. State, 167 Ark. 677, 268 S. W. 24.

The case of Charles Ransom -and James McElroy stands on a different footing. They were not the actual slayers of Jenkins, and the burden was upon the State to show by some affirmative testimony, direct or circumstantial, that they in some way aided, abetted or encouraged Raiford Ransom in taking the life of Jenkins, or that they actively consented to such act. The mere fact that they were the companions of Raiford Ransom on the journey in question and were present at the scene of the killing is not sufficient to justify their conviction. The court should have so told the jury as requested by them in instruction No. 1. 29 C. J. p. 1069, § 42; 13 R. C. L., p. 727, § 27; Vasser v. State, 75 Ark. 373, 87 S. W. 635.

We have examined the record and fail to find any testimony which tends to establish the guilt of Charles Ransom and James McElroy. It is true that the jury has found that their testimony regarding the killing Avas untrue, but this only served to negative the defense offered by the principal defendant, and did not i® any way tend to show that they had any previous knowledge of his intention or to establish the fact that they were aiding and encouraging Raiford Ransom in the commission of the homicide. All that the evidence shows with any reasonable degree of certainty is that Jenkins suddenly appeared on the scene -without any previous knowledge on the part of the defendants that he was likely to do so. There is no proof of any circumstance tending to show that the defendants were on an unlawful mission or that there was any reason for them to apprebend danger at the hands of the deceased, or any reason offered as to why they should have borne any malice toward him. The bare fact that Charles Ransom and James McElroy were the companions of Raiford Ransom and present at the time of the shooting is all that has been disclosed by the testimony in this case. At most, there could arise but a mere suspicion of any guilty knowledge upon their part as to the intention of the principal defendant, or of any act upon their part which might have encouraged him in the commission of the deed. This is not sufficient to satisfy the law.

It is ordered that in the case of Raiford Ransom against the State of Arkansas, the judgment of the lower court be affirmed, and in the case of Charles Ransom and James McElroy the judgment is reversed and the cause remanded for a new trial.