text:
    Clark v. State.
    Opinion delivered September 25, 1922.
    1. Continuance — discretion op court. — Where defendant was indicted on March 9th, and his case set for trial on March 15th, and he had subpoenas for witnesses issued on March 13th, but the sheriff was unable to serve the writs on some of hi3 witnesses, it was not an abuse of discretion to refuse a continuance for the term.
    2. Criminal law — burden of proving defense. — Under Acts 1921, p. 372, No. 324, § 2, prohibiting the keeping of a still without registering it, the burden is on the defendant to prove that the still was registered.
    3. Statutes — “and” read as “or” when. — Where the first four sections of Acts 1921, No. 324, define certain acts which are denounced as unlawful, and each section was complete in itself, the word “and” in section 6, providing that any person violating sections 1, 2, 3 and 4 should be punished as stated, should be read as “or.”
    Appeal from Lawrence Circuit Court, Eastern District; Bene H. Coleman, Judge;
    affirmed.

      J. E. Anderson, Smith <& Gibson and Schoonover & Jackson, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee;
   Smith, J.

The indictment under which appellant was tried contained two counts. He was convicted' under the first count, which charged that he had kept in his possession a certain stillworm and still without-registering the same with the proper United States officer.

Error is assigned in the refusal of the court to grant a continuance. In support of that motion appellant offered evidence tending to show the diligence he had employed to secure the attendance of certain absent witnesses. The evidence on this subject is to the following effect. Appellant had been bound over by a justice of the peace to await the action of the grand jury. He was indicted on March 9th, and his case set for trial on the following Wednesday, which was March 15th. He caused subpoenas for his witnesses to be issued on Monday, March 13th, and the sheriff reported that certain of them could not be found. Appellant made the showing that these witnesses could have been found had the officer pursued his search for them more diligently. The court found, however, that appellant had not used proper diligence in having subpoenas issued, and overruled the motion. '

Appellant did not ask a postponement for a few days' that the witnesses might be served. The prayer of his motion was that the cause be continued for the term, and the judge, in overruling the motion, announced his conclusion to be that appellant had not used proper diligence to get ready for trial at that term. These matters rest largely in the discretion of the trial court, and as no abuse of discretion was shown we cannot reverse the judgment for the failure to grant a continuance. Barling v. State, 143 Ark. 164.

The State proved that the still was found in appellant’s possession, but no evidence was offered that he had not registered it with the proper United States officer, and the court refused an instruction requested by appellant that the burden of showing this fact was on the State. No error was committed in refusing this instruction, as it was held in the case of Moore v. State, 154 Ark. 13, that this was a negative averment, particularly within the appellant’s knbwledge, and should have been disproved by the appellant himself. See also Ring v. State, 154 Ark. 250.

Both counts of the indictment were drawn under section 2 of act 324 of the General Acts of 1921 (General Acts 1921, p. 372). This act consists of seven sections, the first four of which denounce various acts as being unlawful, and by section 6 thereof it is provided that “any person who shall violate sections 1, 2, 3 and 4 of this act shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one and not more than five years.”

Appellant requested the court to direct a verdict of not guilty “because the penalty section of the act under which the indictment is brought only provides for a penitentiary sentence in case of an accused violating sections 1, 2, 3 and 4 of the statute, and that the State has not shown, nor charged, that defendant violated all four of them, that only two of them are charged to have been violated.” In other words, the insistence is that, because the connective conjunction “and,” rather than the disjunctive conjunction “or,” appears in section 6, a conviction can be had in the event only that a violation of all four sections is shown.

We think section 6 should not be so construed, and that its proper construction, to give effect to the manifest intent of the Legislature, requires the word “and” in section 6 to be read as “or.”

Each of the first four sections of this act defines certain actions which are denounced as unlawful, and it is quite obvious that the Legislature intended to make all the actions defined in each of said sections, respectively, unlawful. Each section of the act is complete in itself, and while it would not be impossible for a person to violate all the provisions of sections 1, 2, 3 and 4, it would be a strained construction of the act to say that a completed crime was not committed until all four sections had been violated.

It is a settled rule of construction that a statute must be read as a whole to ascertain its meaning, and to give effect to the meaning of a statute thus ascertained courts are quite frequently required to eliminate or to substitute words for those employed by the Legislature. In the discharge of this duty this court held, in the case of Williams v. State, 99 Ark. 149 (quoting a syllabus), that “to carry out the general purpose and intent of a statute, either civil or criminal, the words ‘and’ and ‘or’ are convertible.” See also McDaniel v. Ainsworth, 137 Ark 280.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Maddox v. State.
    Opinion delivered September 25, 1922.
    1. Homicide — burden op proving lesser degree. — Where the testimony on behalf of the State tends to prove the killing by defendant, as charged, and fails to show mitigation or excuse or a lower degree of homicide than murder, it devolves upon defendant to bring forward such testimony.
    2. Criminal law — sufficiency of evidence to support the verdict. —In determining whether the judgment must be reversed for insufficient evidence, the testimony supporting the verdict must be given the highest probative value with the inferences reasonably deducible therefrom.
    3. Homicide — sufficiency of evidence. — Evidence held to support a conviction of voluntary manslaughter.
    4. Homicide — harmless error. — Where the fact that defendant was a gambler and operating a gambling house was shown by his own witnesses in detailing the circumstances leading up to a killing, there was no prejudice in other witnesses stating the same fact.
    5. Criminal law — comment on failure of defendant to testify. —A remark by the prosecuting attorney that defendant had not seen fit to go on the stand was improper, but where the court admonished the jury that defendant had a right to refrain from testifying, and that it was improper for the prosecuting attorney to refer to his failure to testify, whereupon the attorney desisted and made no attempt to deduce any inference from the failure to testify, the remark was not prejudicial.

      Appeal from Union Circuit Court; Chas. W. Smith, Judge;
    affirmed.

      Powell <& Smead, Plenniken & Sellers, for appellant.

      J. S. Utley, Attorney G-eneral, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was indicted for murder in the first degree, and at his trial below was convicted of voluntary manslaughter and given a sentence of two years in the penitentiary, from which he has appealed.

For the reversal of the judgment the following errors are assigned: (1) That a case of self-defense was so clearly made that the case should be reversed on the facts; (2) That it should be reversed for the improper admission of testimony tending to show that defendant was, a gambler and operating a gambling-house; and (3) Because of the improper argument of the prosecuting attorney, which was so prejudicial that its effect could not be removed by any admonition of the court.

In support of the first assignment of error it is insisted that the only basis of the conviction is the proved and undenied fact that appellant killed the deceased.

In the case of Scoggin v. State, 109 Ark. 514, it was said: “Where the testimony on behalf of the State tends to show the killing, and that it was done as charged in the indictment, if there is nothing in the evidence adduced by the State tending to show that the defendant is guilty of manslaughter, then it devolves upon the defendant to bring forward such testimony, if he would have the grade of homicide reduced from murder to manslaughter. In other words, where the killing is proved as alleged, and the testimony on the part of the State does not show mitigation or excuse, or show a lower grade of homicide than murder, then the accused must be convicted unless he produces testimony to convince the jury that he is innocent, or that he is guilty of a less degree of homicide than that of murder. Petty v. State, 76 Ark. 515. The statute does not shift the burden of proving guilt from the State to the defendant.”

The case of Johnson v. State, 120 Ark. 193, also defines the law of those cases in which a defendant admits •the killing charged against him and seeks to show circumstances which justify or excuse it, and we need not repeat here w'hat was there so clearly stated. See also Wilson v. State, 126 Ark. 354.

Did appellant s.o clearly meet the burden imposed upon him by the law as defined in the cases cited that the judgment of the court below must be reversed as not being based upon evidence legally sufficient to support it? In the decision of this question we must in this case, as in all others, give to the testimony tending to support the verdict its highest probative value, with the inferences reasonably deducible therefrom.

It appears that appellant, deceased, and the witnesses for appellant were jointly engaged in opérating a gambling-house in El Dorado, and a poker game had commenced Saturday evening and extended into the early hours of Sunday morning, when it was broken up by the boisterous conduct of deceased, who, at least, had gotten drunk. The incoherent account of some of the details of the killing leads to the conclusion that the witnesses, too, as well as the principals in the tragedy, were more or less intoxicated.

It must be admitted that the witnesses, in describing the circumstances of the actual killing, made a case of self-defense. They agree that deceased, armed with two pistols, was entering appellant’s bedroom for the avowed purpose of killing appellant, and that appellant only fired when it became necessary for him to do so to save his own life. But there are a number of circumstances in the case which warranted the jury in disregarding this testimony. There are a number of unreconciled contradictions, not only between witnesses themselves, but in the testimony of the same, witnesses before the coroner’s jury of inquest and their testimony at the trial from which this appeal comes.

A transcript of the testimony of the witnesses before the eoroner’s jury was offered in evidence, but does not appear in the bill of exceptions; and, in addition, certain plats and diagrams were offered in evidence but áre not in the bill of exceptions. These plats and diagrams were used by the witnesses in testifying; and it is insisted that these plats would show that it was a physical impossibility for appellant to have shot deceased as the witnesses say he did.

The testimony of the witnesses at the trial below as to the number of shots fired does not coincide with their testimony as to the number of shots fired given at the inquest. The witnesses now agree that four shots were fired by appellant with a double-barreled shotgun, two of which shots struck and killed deceased; but there is no coherent explanation of the circumstance of firing and reloading the gun, as must have been done to have fired it four times. The witnesses say deceased had a pistol in each hand, yet, notwithstanding the fact that he was probably killed instantly, one of his hands was in his pocket when his body was viewed by the coroner. There is another circumstance which, it is insisted, is significant. Witnesses testified that deceased demanded and took possession of the house’s “bank-roll.” This money was in a sack, and the witnesses say that the sack was in deceased’s hand with one of his pistols at the time he was killed, and when the body was viewed by the coroner the sack was found in a puddle of blood near deceased’s body. It is insisted that if the sack had fallen to the floor at the time deceased fell there would have been a dry spot under the sack. This may or may not have been true, but it was a circumstance to be considered by the jury, and, when considered in connection with all the other facts and circumstances in the case, we cannot say that the jury should have accepted as true the version of the eye-witnesses as to the circumstances of the killing, and the jury may therefore have concluded that neither the testimony on the part of the State, nor that on the párt of the defendant, showed circumstances raising a reasonable doubt as to appellant’s justification in firing the fatal shots.

As to the assignment of error that testimony was improperly admitted showing that appellant was a gambler and was operating a gambling-house at the time of the killing, it may be said that this is one of the undisputed facts in the case, and the proof thereof was first made by appellant’s own witnesses in detailing the circumstances leading up to the killing, and (there could therefore have been no prejudice in other witnesses stating a fact which had already been proved by appellant’s own witnesses.

In his closing .argument the prosecuting attorney said: “The defendant has not seen fit to go on the stand.” Objection was made, and the court, in sustaining the objection, admonished the jury that the defendant had the right to refrain from testifying, and that it was improper for the prosecuting attorney to refer to the fact that he had failed to take the stand in his own behalf.

We think, under the circumstances, no such prejudice resulted from the remark of the prosecuting attorney as requires the reversal of the judgment. The remark was improper, and should not have been made; but there was no persistence in making it, and there was no attempt to deduce any inference .from the failure of appellant , to testify; and the prosecuting attorney promptly desisted when admonished by the court.; and the admonition of the court appears to have, been sufficient, under the rule laid down by this court in the case of Ingram v. State, 110 Ark. 538.

No error appearing, the judgment is affirmed.


author: ■Smith., J.

text:
    Ex parte Dukes.
    Opinion delivered September 25, 1922.
    Divorce — evasion of award of alimony — contempt.—Where a husband, on being granted a divorce, consented to a decree for alimony, and was able to comply therewith, but sought to evade payment and feloniously caused the order to be canceled and satisfied, it was not error to punish him for contempt.
    Certiorari to Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      W. A. Singfield, for petitioner.
   ■Smith., J.

This cause grew out of a divorce proceeding, in which the petitioner Dukes was granted a divorce from his wife, Willie Dukes, and by consent of parties the wife was awarded as alimony an estate for life in a certain lot in the city of Dermott and an allowance of $2,000, of which $200 was payable in cash and the balance payable at the rate of $35 per month. The petitioner made one payment and defaulted, and, when cited for contempt in failing and refusing to pay the alimony monthly as required by the decree of the court, filed a response in which he set up the following facts:

íhat, after obtaining his divorce, he discovered the fact to be that Willie Dukes had a living husband, and she did not obtain a divorce from this first husband until .after petitioner had obtained his divorce from her. That she then admitted this imposition had been practiced .upon him, although, before their marriage, she had stated that her first husband was dead, and that it was then agreed that the decree for alimony should be canceled, and a power of attorney was prepared, executed and acknowledged, directing the clerk of the chancerv court to enter cancellation and satisfaction of that portion of the decree.

In the trial of the cause in the court below a judgment was rendered in which the following finding of fact was made: “In a certain cause heretofore adjudicated by this court, wherein the said Theodore B. Dukes was plaintiff, and Willie M. Dukes was defendant, the said contemner, Theodore B. Dukes, did forge the name of the said Willie M. Dukes to a certain power of attorney, and did forge the notarial jurat, signature and seal of one Geo. V. Jones, a. notary public, to the said spurious power of attorney, which spurious power of attorney said Theodore B. Dukes did utter and cause to be recorded in the records of Chicot County, Arkansas,' and thereafter caused the clerk of this court, under mistaken authority thereunder, to falsely and fraudulently satisfy a judgment and decree rendered and entered by this court as aforesaid. That said contemner, Theodore B. Dukes, did wilfully and contumaciously refuse to obey the orders of said court wherein he was bound and directed by said court to pay certain specific sums of ononéy to the said Willie M.- Dukes, and that said conduct was and is a contempt of said court. That said Theodore B. Dukes did wilfully and contumaciously refuse to obey the orders of said court in that he did alienate a certain house and lot adjudged in said decree to the said Willie M. Dukes for life, as shown by the solemn judgment and decree of said court. ’ ’

The court, upon this finding of fact, imposed a fine of $500 and a sentence in the county jail for a period of six months; and the petitioner seeks by certiorari to have that order and judgment quashed.

Petitioner testified in his own behalf in support of the allegations of his response to'the citation; and he also offered certain testimony in corroboration of his own. He admitted his present ability to comply with the original decree awarding alimony to his wife.

We think the testimony fully supports the finding of the court below. Mrs. Dukes testified that petitioner knew of her prior marriage, and represented to her that he would obtain a divorce for her and that he had, in in fact, done so, and that she relied uuon petitioner’s assurance that her divorce had been obtained in contracting her marriage with-petitioner. Certain correspondence between her and petitioner appears to corroborate her in this statement. She denied that she had signed the power of attorney. The notary public whose name was 'signed to the certificate of acknowledgment and whose notarial seal was attached thereto testified .that he and petitioner occupied the same office, but he denied that he had taken the acknowledgment or attached his seal thereto.

Petitioner obtained his divorce upon the ground of cruel and abusive treatment on the part of his wife, and the decree for alimony was rendered by consent. •

Petitioner’s prayer that the order adjudging him to be in contempt be quashed must be denied. The original divorce decree was not void; and the award of alimony was rendered by consent of parties, which was an order properly made. Pryor v. Pryor, 88 Ark. 302.

Here the petitioner has not only sought to evade the order of the court (Bryan v. State, 99 Ark. 163), but has . flaunted it by contumaciously and feloniously causing the order to be canceled and satisfied. Full authority exists for the punishment of such conduct. Meeks v. State, 80 Ark. 579; Dodson v. Butler, 101 Ark. 416; Pitcock v. State, 91 Ark. 527; Carl Lee v. State, 102 Ark. 122; Ford v. State, 69 Ark. 550; In re Barstow, 54 Ark. 551.

The writ of certiorari is quashed, and the decree appealed from is affirmed.


author: Humphreys, J.

text:
    Spight v. State.
    Opinion delivered September 25, 1922.
    1. Contempt — information presented by grand jury — A proceeding for contempt in evading the service of a subpoena issued by the grand jury may be initiated by the court on an information presented by the grand jury, without the affidavit of a third party.
    2. Contempt — power of courts to punish. — Crawford & Moses’ Dig., § 1485, limiting the amount of fine for contempt, is not a limitation upon the power of courts to punish for contempt in disobedience of their process, in view of Const, art. 7, § 26/

      3. Grand jury — evasion of process — contempt—Evasion of service of subpoena issued by a grand jury as an arm of the court is a contempt of court within Const, art. 7, § 26.
    4. Contempt — evidence—Evidence held sufficient to support a finding that defendant was guilty of contempt in wilfully and contemptuously disobeying a subpoena issued by the grand jury.
    Appeal from Garland Circuit Court; ■Scott Wood, Judge;
    affirmed.

      Richard M. Ryan, for appellant.

      J. S. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

The petitioner, Walter Spight,. was adjudged guilty of contempt of court, for evading the service of a subpoena issued by the grand jury of Garland County on the seventeenth day of May, 1922. His punishment was fixed at a fine of $100 and imprisonment for thirty days. The record of the proceedings in the 'Garland Circuit Court has been brought before us for review on writ of certiorari.

The petitioner insists that the judgment should be quashed, because the information filed by the grand jury was not verified. The information is as follows:

“State of Arkansas v. Walter Spight.

“The grand jury reports that on the 17th day of May, 1922, it issued a subpoena for one Walter Spight to appear forthwith before the grand jury; that after said subpoena was issued the said witness in some way learned that the subpoena was in the hands of the sheriff, and he, the said Walter Spight, wilfully and contemptuously evaded the service of said subpoena; that the conduct of the said Walter Spighl in evading service of this subpoena constituted a contempt of the authority of the grand jury and of the court, and the grand jury respectfully requests that the said Walter Spight be punished for contempt. Charles Goslee, foreman.”

Under the rule announced in Bryan v. State, 99 Ark. 163, the evasion of the service of a subpoena, issued by an arm of the court, is tantamount to a disobedience of the court’s process. A charge of contempt, of this character, may be initiated by the court without the aid of an affidavit of a third party. Carl Lee v. State, 102 Ark. 122.

The petitioner next insists that the judgment should be quashed because the fine imposed was in excess of the maximum amount fixed by section 1485 of Crawford & Moses’ Digest. The Legislature cannot abridge the power of courts to punish as for contempt in disobedience of their process. The Constitution specially reserved this inherent power in the courts, when delegating authority to the Legislature to regulate punishments for con-tempts. Art. 7, sec. 26, Constitution 1874.

The petitioner next contends that the judgment should be quashed because no disobedience of process could occur until the process was served upon him. The process was placed in the hands of -the sheriff between 9 and 10 o ’clock a. m. May 17, 1922, and was not served until 5 o’clock p. m. Petitioner complied with the process after service. There was testimony tending to show that he evaded the service of process in the interim. This court ruled in the case of Bryan v. State, supra, that .(quoting syllabus 2) “resistance of process, or evasion or circumvention of an officer in the service of process, when it amounts to contempt of court, is disobedience of process within art. 7, sec. 26 of the Constitution.”

Lastly, the petitioner contends that the judgment should be quashed because the evidence is insufficient to support the finding of the court that he wilfully and contemptuously disobeyed the process of court. While there is testimony in the record tending to show that petitioner did not secrete himself to avoid the service of the subpoena, there is also substantial testimony tending to show that he did secrete himself for that purpose. Petitioner knew the grand jury would meet on the 17th and expected to be subpoenaed to appear before it. He was seen in the city that morning. After the issuance of the subpoena, he disappeared and could not be found, although diligent and persistent search was made for him. After the search proved futile, the judge of the court notified his attorney and one of his bondsmen about 5 o’clock p. m. that unless he appeared forthwith a forfeiture would be taken on his bond in another case. In ten or fifteen minutes thereafter he appeared and submitted to service of the process. There wrns also evidence tending to show that shortly after the noon hour petitioner was notified over the ’phone by a friend that the sheriff had a subpoena for him.

"We think there is substantial evidence in the record tending to show that petitioner was in hiding during the day to avoid service of the subpoena.

No error appearing, the judgment is affirmed. '


text:
    Berry v. State.
    Opinion delivered September 25, 1922.
    Indictment and information — filing in open court — demurrer.— The objection that an indictment failed to show that it was filed in open court in the presence of the grand jury cannot be reached by demurrer; the proper remedy being a motion to quash the indictment.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Patterson <£ Ragon, for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted in the Pope Circuit Court, for the crime of selling and being interested in the sale of intoxicating liquor. The indictment was returned at the November, 1921, term of court. At the succeeding April, 1922, term of court, appellant filed a demurrer to the indictment on the ground that the record failed to show it was filed in the manner prescribed by law, that is, in open court and in the presence of the grand jury of said county. The demurrer was filed on the tenth day of said month and on the same day was overruled by the court, over the objection and exception of appellant. On the succeeding day appellant was tried, convicted, and adjudged to serve a term of one year in the State Penitentiary, from which judgment is this appeal.

The only assignment of error, based upon the record in ¡the case is that the indictment failed to show that it was filed in open court, in the presence of the grand jury, during the session of said court. The defect complained of could not be reached by demurrer. The proper remedy was by a motion to set aside or quash the indictment. State v. Brandon, 28 Ark. 411; Robinson v. State, 33 Ark. 182; Price v. State, 71 Ark. 180.

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


text:
    Graves v. State.
    Opinion delivered September 25, 1922.
    1. Criminal law — remark of court. — A remark of the court that certain testimony was immaterial will not be considered on appeal where no objection was made nor exception saved at the time the remark was made.
    2. Homicide — burden of proof — instruction—An instruction in a murder case, in the language of the statute, that, the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter or that the accused was justified or excused in committing the homicide, was not erroneous.
    3. Criminal law — failure to request instruction — Where defendant requested no instruction submitting the issue of manslaughter in a prosecution for murder, he cannot complain of the court’s omission to give such an instruction.
    4. Homicide — instruction as' to plea of self-defense. — An instruction that the “plea” of self-defense was founded on the principle of necessity, that it must have appeared to defendant, not only that the danger was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm, the killing of the deceased was necessary, held
      not open to the objection that the plea was interposed by defendant because it was necessary to do so.
    5. Criminal law — misleading instruction — specific objection.— Specific objection should be made to language in an instruction thought to be misleading.
    6. Homicide — evidence of defendant’s acts and statements.— Acts and statements of defendant, not in the hearing and presence of- deceased and not directed toward or about him, were inadmissible.
    7. Homicide — evidence harmless ■ .when. — Admission of evidence that, some time before killing deceased, defendant displayed a gun while intoxicated and made threatening statements was not prejudicial where the evidence showed similar statements and conduct on defendant’s part immediately before the killing.
    8. Criminal law — res gestae.. — Evidence of threatening acts and conduct of defendant immediately before the killing was admissible as part of res gestae.

    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      D. E. Waddell, A. J. Johnson, Rogers & Terral, Caldwell, Triplett é Ross, for appellant..

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the Lincoln Circuit Court for murder in the first degree for killing Isaac Hartley. Upon trial of the charge he was convicted of murder in the second degree and adjudged to serve a term of twenty-one years in the State Penitentiary as punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court. The killing occurred on the night of the 12th day of November, 1921, at Grady, in front of a drugstore conducted by Jim Taliaferro. Some hour or more before the killing, appellant, the constable of the township, who was drinking to some extent, appeared at the show tent of a carnival company in another part of the town and caused those present to scatter and run in every direction by displaying his gun and a handful of cartridges. He made the statement that he was the law and wanted to see whether he had enough cartridges to go around. The deceased was not present during this occurrence. He seems, however, to have been there either earlier or later, and to have been somewhat under the influence of liquor, claiming a bill of sale on a part of the show property. Subsequently both went to the drugstore near the scene of the killing. The deceased and several other parties were in the drugstore when appellant entered. When appellant entered, Taliaferro, observing that he was drinking, requested that every one go, and directed the boy at the soda fountain to put out the lights. When the boy got on the counter in an attempt to comply with Taliaferro’s order, the appellant, with pistol in hand, ordered the boy not to turn out the lights. Appellant then took a position at the front door, asserted that he was the law or boss, and that no one could go out until he said so. The deceased attempted to go out but was prevented' by appellant. During the incident appellant was generous with oaths. Taliaferro finally prevailed upon appellant to put up his gun and allow all of them to go out. He then closed the store, but was engaged about twenty minutes in doing so on account of the lock being out of repair. At this juncture the testimony sharply conflicts. That offered by the State tends to show that while Taliaferro was locking the door appellant attempted, without cause, to shoot Leon Stanfield, one of the party, but was prevented from doing so by Taliaferro, who knocked the pistol down as it fired; that in the struggle which ensued between appellant and Stanfield, appellant again fired the pistol at Stanfield but missed him and hit the deceased, the ball entering the back of his neck and killing him instantly. The testimony offered by appellant tended to show that, after the drugstore had been closed and appellant was being taken home by Taliaferro, deceased -attacked him with an automobile pump, and appellant fired upon and killed deceased in self-defense.

In the course of the trial appellant was permitted to prove an uncommunicated threat against him, made by deceased to Taliaferro about 11 o’clock a. m. on the day of the killing. On admitting the testimony, the court made the remark that he regarded it as immaterial. The record also reflects that the statements made and acts committed by appellant on the show ground, out of the presence and hearing of deceased, tending to show a general malevolent spirit and wicked disposition as well as deliberation, were introduced by the State over the objection and exception of appellant.

Appellant’s first contention for reversal is, that the .court destroyed the effect of the uncommunicated threat by remarking that it was immaterial. No objection was made or exception saved at the time to the remark of the court. The objection cannot, therefore, be considered on appeal. Yazoo & M. V. Ry. Co. v. Solomon, 123 Ark. 66; Lisko v. Uhren, 130 Ark. 111.

' Appellant’s next contention for a. reversal of the judgment is, that the court erred in giving instruction No. 25, which is as follows: .

“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” The instruction follows the language of the statute and, in the form given, has been approved by this court. Wilson v. State, 126 Ark. 354, and cases therein cited to the same point.

Appellant’s next contention for a reversal of the judgment is that the court erred in failing to define and submit the question to the jury of whether appellant was guilty of voluntary or involuntary manslaughter. Appellant did not request an instruction submitting the issue of manslaughter, and cannot now complain at the omission of the court to do so, Allison v. State, 74 Ark. 44; Price v. Greer, 89 Ark. 300; Bates v. Ford, 110 Ark. 567; Hayes v. State, 129 Ark. 324.

Appellant’s next contention for reversal is that the court erred in giving instruction No. 13, which is as follows:

“The court instructs you that the plea of self-defense is founded solely on the principle of necessity. Before this plea is available in this case, it must have appeared to the defendant not only that danger to him at the nands of the deceased was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm at his hands, the killing of the deceased was necessary, and not in a spirit of revenge.” Appellant’s assault on the instruction is to the word “plea” in the first part of the instruction. He argues that the word “plea” in the connection used would lead the jury to believe that the plea was interposed by appellant because it was necessary for him to do so'. It is apparent that the word “plea” was used in the sense of “right.” We do not think the jury should have been misled by this slight error in phraseology. If appellant thought so, he should have made a specific objection, calling the attention of the trial court to the defect. Rock Island Plow Co. v. Rankin Bros. & Winn, 89 Ark. 24; Williams Cooperage Co. v. Clark, 105 Ark. 157.

Appellant’s last contention for reversal is that the court erred in admitting his acts and statements on the show-ground. These acts and statements being done and made out of the presence and hearing of the deceased, not being directed toward or about him, were dissassoeiated from the crime. The court should have excluded the testimony relating to them. If they stood alone in the case, the admission of them in evidence would have constituted reversible error. Deal v. State, 82 Ark. 58; Washington v. State, 83 Ark. 268. Competent testimony of the same character, however, was introduced in the case. Appellant’s conduct and statements in the drugstore, immediately preceding the killing, were, in tenor and effect, the same as his statements and conduct on the showground. Appellant’s statements and conduct in the drugstore were a part of the res gestae,- and for that reason were admissible in evidence. Additional evidence of the same nature as that properly introduced could not' have resulted in prejudice to appellant. It is true this-additional evidence might have tended to show deliberation, and would have been prejudicial to the rights of appellant had he been convicted of murder in the first degree. Deliberation not being an essential element in murder in the second degree, of which appellant was convicted, no prejudice could have resulted to him on this account.

No error appearing, the judgment is affirmed.


author: Hart, J.

text:
    Bowers v. State.
    Opinion delivered September 25, 1922.
    Elections — contest—refutable citizens. — In a contest for the office of road overseer for a single township, only the electors of such township were “reputable citizens” within Crawford & Moses’ Dig., § 3772, requiring that the complaint in such case be supported by the affidavit of at least 10 reputable citizens.
    Appeal from Lonoke Circuit Court; Geo. W. Clark, Judge;
    affirmed.

      G. E. Morris and Jas. B. Gray, for appellant.

      G. W. Hendricks, for appellee. •
   Hart, J.

H. B. Bowers filed a contest in the circuit court against C. E. Hollis for the office of road overseer of G-ray Township, Lonoke County, Ark. He filed the affidavits of ten Democratic electors of' Lonoke County in support of his petition for contest. Only two of these affiants resided in Cray Township, and, on motion of C. E. Hollis, the circuit court dismissed the petition for contest of H. B. Bowers on the ground that the ten supporting affiants required by the statute must reside in Cray Township.

The case is here on appeal, and is submitted for immediate decision by consent of the parties.

This appeal involves the construction of sec. 3772 of Crawford & Moses’ Digest, regulating the contest of primary elections. It provides, in part, that, if the contested office is a county or township office, the action shall be brought in the circuit court of the county, and if for a circuit or district office, in any circuit court in the circuit or district where any of the wrongful acts occur. The particular portion of the statute to be construed provides that the complaint in such cases shall be supported by the affidavit of at least ten reputable citizens.

In Simmons v. Terrell, 145 Ark. 585, it was held that the word “citizens,” as used in the section is synonymous with the word “electors.”

In Ferguson v. Montgomery, 148 Ark. 83, the court said that the object of the statute was to give the electors of recognized political parties the immediate control in the selection of their own candidates. It was held, therefore, that only those who are entitled to participate in the primary are directly interested in the election and can be said to be reputable citizens or electors within the meaning of the statute. Now, the electors of Gray Township only could participate in the election of a road overseer for that township. Hence the affiants must be electors of Gray Township.

Of course, in the case of a county, circuit, or district office, the electors of the particular party holding the primary in the whole county may vote in the primary election and are therefore directly interested in the result of such election. Hence they might become supporting affiants under the statute, even though only one township in the county was being contested. The contest of the votes in a particular township might change the result of the whole election, and those living outside of the township who might participate in the election are. therefore equally interested with the electors residing in the township where the votes are contested.

As above stated, it is equally apparent that in the-ease of a contest for a township officer only the electors of the particular township may vote in the election, and consequently are directly interested in the result thereof.

It follows that the circuit court properly held that in the case of a contest for the office of road overseer for a single township only the electors of that township were reputable citizens within the meaning of the statute.

The judgment must be affirmed.


author: McCulloch,, C. J.

text:
    Clift v. State.
    Opinion delivered October 2, 1922.
    1. Witnesses — cross-examination.—Where, in a prosecution for carnal abuse, the prosecuting witness had detailed the circumstances of the offense, it was not error to refuse to permit defendant to cross-examine her as to what she expected when she accompanied defendant into the woods.
    2. Witnesses — cross-examination.—Where, in a prosecution for carnal abuse, defendant, in - cross-examining the prosecutrix, elicited the fact that she never told any one about the offense until her mother questioned her, it was competent for the State on redirect examination to show that the first information concerning the offense had by her mother was received from defendant’s wife.
    3. Witnesses — cross-examination.—Where, in a prosecution for carnal abuse, the prosecutrix testified that she and a companion on the alleged occasion rode in a car with defendant and another man, and the latter denied 1^hat he had ever ridden in a car with defendant and the two girls, it was proper for the State to show the relationship between the witness and the companion of the prosecutrix as affecting his credibility.
    4. Witnesses — cross-examination—impeachment—harmless error. — Where a witness on cross-examination denied having made a certain statement, it was harmless error to permit the State to. prove that he'made such-statement, though a collateral matter, if the alleged statement - was too • indefinite to be incriminating.
    5. Rape — name of prosecuting witness. — An indictment for carnal abuse which charges the offense as committed with a girl named G. when her real name was Q. was not a variance where it appears that her stepfather was named G., and that she generally passed under the' stepfather’s name.

      6. Witness — cross examination. — Where defendant and another were separately indicted for carnal abuse of two girls, and on defendant’s trial the other testified, it was proper to permit the State on cross-examination to ask such witness whether he had not had a similar scrape with another girl.
    7. Witnesses — contradiction.—Where defendant and another were separately indicted for carnal abuse of prosecutrix and companion alleged to have occurred during an automobile ride, testimony of the other that he never rode in a car with the ■ girl he was charged with having abused may be contradicted by proof that on an occasion not far removed in time from that charged he and defendant went riding in a car with the two girls.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    affirmed.

      Norwood S Alley, for appellants.

      J. S. Utley, Attorney General, and Elbert Godwin, Assistant, for appellee.
   McCulloch,, C. J.

Appellants, Pay Clift and Brino Cannon, were separately indicted, tried and convicted of the crime of carnal abuse, and their appeals, of course, were separately prosecuted, but the cases against them are so similar in detail that useless repetition will be avoided by disposing of both cases in one opinion.

The two girls with whom the alleged intercourse was had by the two appellants, respectively, were “chums” and resided in the city of Mena, where each of the appellants also resided. Dessie Hall, the girl with whom Clift is charged to have had unlawful intercourse, was fifteen years old at the time the offense was committed, ami Bernice Goodwin, the other girl, with whom Cannon-is alleged to have had intercourse, was thirteen years old at the time.

According to the testimony adduced by the State, the two offenses occurred on a certain night in December, 1921. Both of the girls testified in each case, and by their testimony it was shown that the two appellants induced them to go riding in an automobile on the night in question and drove out a few miles from Mena; that after halting the oar near the road each couple went a short distance into the woods, and that intercourse between each of the two couples occurred at that time and under those circumstances.

There is a striking similarity between the testimony of the two girls with .respect to the circumstances under which the intercourse took place. The car was driven by Clift, and Dessie Hall sat with him on the front seat, while Cannon and Bernice Goodwin sat on the rear seat. Each couple, according to the testimony of the two girls, got out of the car and went into the edge of the woods, in different directions, and after staying out there a short time they returned to the car without having had sexual intercourse; a few moments, after returning to the car and getting into it, each of 'the men took hold of one of the girl’s hands'and drew her out of the car,, and they again went to the woods together and had sexual intercourse, each of the young men placing his coat on the ground for the girls to lie on.

' The details of the act of intercourse were so strikingly similar that in the trial of the case below counsel for the appellants emphasized this fact as affecting the credibility of the two girls as witnesses.

Each of the appellants testified in both cases, and they not only denied that they had had sexual intercourse with the girls at any time, but denied that they had ever ridden with them in an automobile. ' There was a sharp conflict-in the testimony, and there was other testimony of more or less force introduced in the case.

The State introduced a witness in the Cannon case who testified that Cannon admitted that he had had intercourse with Bernice Goodwin.

In*the Clift case there (were numerous assignments of error with respect to the rulings of the court in limiting the cross-examination of the prosecuting witness. Appellant proposed to ask the witness what she had in mind, or expected would occur, when Clift spread his coat out on the ground, and the court stopped the cross-examination. without permitting her to answer the question. Another instance is where counsel on cross-examination of the prosecuting witness proposed to ask the witness concerning the circumstances under which she told her mother about Clift having sexual intercourse with her.

It appears from the record that the court allowed great latitude to counsel on both sides in the cross-examination of the witnesses; that each of the girls told all about the circumstances under which the acts of intercourse occurred, and it was unnecessary to propound to Dessie Hall the question as to what she expected would occur when the accused spread his coat on the ground. It appears from the record that Clift’s counsel was permitted to ask the girl all about the circumstances under which she told her mother of the incident, and why she told her. •

Another instance which is the basis of' an assignment is that in the cross-examination of Bernice Goodwin in the Clift case there was an offer to ask her the number of trips made in automobiles with the appellants when Olift and Dessie Hall were participants.

We fail to discover a single instance in the record of the court having abused its discretion in placing the cross-examination under due limits.

Another assignment of error in the Clift case is based upon the ruling of the court in permitting the prosecuting witness to state that the first intimation that her mother received concerning the alleged sexual intercourse between her and Clift was received from Clift’s wife. It is contended that tins was hearsay testimony and was incompetent. Dessie Hall testified at the instance of the State, and told about the act of intercourse with Olift and the circumstances under which it was accomplished. On cross-examination Clift’s counsel asked the girl whom she first told about having had intercourse with Clift, and she replied that she had first told her mother. 'Counsel then asked her whether she told he^ mother voluntarily or her mother asked her about it, ar»^ she replied that she gave her mother the information concerning the intercourse at her mother’s request. 'Counsel then asked the witness if she had ever told anybody about it before her mother asked about it, and she replied that she had not, and did not intend to tell anybody about it until her mother interrogated her about it.

The purpose of counsel evidently was to discredit the witness by showing on cross-examination that she had never divulged to any one the fact of Clift having had intercourse with her, and that her mother had asked her about it without her first having told it.

Dessie Hall was recalled by the State for further redirect examination, and was asked to state how her mother received information as to the act of intercourse between the witness and Clift,‘and she replied that her mother had first received information concerning it from Clift’s wife. There was no effort made to prove what Clift’s wife said to the mother of the prosecuting witness, and of course it would have been incompetent as mere hearsay to prove any such statement, but since appellant’s counsel, in an effort to discredit the girl, had called in question the consistency of her statements in regard to her conversation with her mother in which she imparted the information, the. State had a right to have the witness clear herself of the apparent inconsistent statement by showing where her mother had first got the information which induced her to ask the girl concerning the intercourse between her and Clift. Appellant would have been entitled to a direction from the court to the jury telling them not to consider any statement made by Clift’s wife as substantive proof in the case in regard to whether or not the offense had been committed; but it was not improper to allow the witness to explain the reason why her mother had' asked her about it and the source from which the first information had come to her mother concerning the incident.

Objections were made to certain questions propounded to Brino Cannon as a witness in the Clift case, and the rulings of the court are assigned here as error.

Cannon was introduced as a witness by. Clift, and he denied that he had ridden in a ear with Clift and the girls. This testimony was, of course, in direct contradiction of the testimony of each of the girls. The State then, on cross-examination, asked Cannon questions about his relationship with Bernice Goodwin, and also asked him if he had not made certain admissions to one Lace-field to the effect that he had had intercourse with Bernice Goodwin. To each of the inquiries Cannon entered a denial, and said that he had never had intercourse with Bernice Goodwin, and that he had never ridden with her .in a car. Even if the questions were improper, there was no prejudice, because the witness answered in the negative. We are of the opinion, however, that under the circumstances it was competent for the State to cross-examine the witness with reference to his relations with Bernice Goodwin and his admissions concerning the same. He had testified as a witness for Clift directly contradicting the girls, and it was competent to ask him about his relations with Bernice Goodwin as throwing light on the truth of the statement of the girls that they had ridden in a car together on the occasion named and had indulged in sexual intercourse. It was also competent as affecting Cannon’s credibility, and we think there was no error committed in this regard.

The State, in cross-examining Cannon, also asked him the question whether or not he had said, on a certain occasion when he was on the train en route to Heavener, Oklahoma, that “Bernice Goodwin was at Heavener, that she was a fine girl, and that he expected to have a good time.” He denied that he had made any such statement, and the State called Lacefield as a witness, who testified that Cannon made that statement to him.

Conceding that it was improper to contradict Cannon concerning his statement as to a collateral matter, we do not think there could have been any prejudice resulting from the testimony of the witness. The alleged statement concerning the girl was too indefinite to show that there was any improper relation between the parties.

The only other assignment of error in the Clift case relates to the action of the court in striking out certain parts of appellant’s requested instructions on the subject of reasonable doubt. Conceding that the portions stricken out were correct statements of the law, the instructions were complete without those statements, and there was no error in the modifications.

In the Cannon case there were assignments of error similar to those in the Clift case with respect to limitation placed upon the cross-examination of Dessie Hall by counsel for the accused, but what we have said in respect to the other case is sufficient to dispose of those assignments.

The indictment charges in the Cannon case that the intercourse was with a girl named Bernice Goodwin, and she was referred to by that name throughout the trial. On cross-examination of the witness'1 she stated that she was the daughter of Mrs. Goodwin by a former marriage to a man named Quinn, that her real name was Quinn, but that since her mother’s marriage with Goodwin she had generally passed under that name, and was registered at school under the name of Bernice Goodwin. It is contended now by counsel for appellants that there is a variance in the proof and the allegation.in that the indictment charges the name of the girl to be Bernice Goodwin, whereas her real name is Bernice Quinn. The proof to the effect that the girl is commonly known by the name of Bernice Goodwin does not constitute a variance from the charge in the indictment, for if she was commonly 'known by that name, it was sufficient to describe the offense by designating her under that name in the indictment. ■

Error is assigned in the ruling of the court in permitting the State to interrogate Cannon on cross-examination with reference to his having sexual intercourse with another girl under the age of consent a few years before the incident now under investigation occurred. The form of the question was as follows: “I will ask you if it isn’t true that you got into a similar scrape four years ago with a young lady by the name of Eloise Pullen?” Appellant answered as follows: “No sir; 0, yes sir; it didn’t go into court.” In the closing argument the prosecuting attorney made a statement to the effect that a man who admits having had experience with another girl was not entitled to credit as a witness, and objection was made to this argument.

It was competent for the State to propound the question for the purpose of testing the credibility of the witness, and the evasive answer given by the witness justified the prosecuting attorney in commenting upon it in the argument.

The State was permitted, over appellant’s objection, to prove by a witness, Ode Bates by name, that on a certain occasion, not far removed in point of time from the date of the charge in the present case, the witness went automobile riding in a car with Dessie Hall, and that Cannon and Bernice Goodwin were also in the car. The witness testified that they drove out on one of the .public roads out of Mena one night, but that nothing unusual occurred on the trip. Cannon denied that he ever rode in a car with Bernice Goodwin, and the testimony of Bates was competent, not only for the purpose of contradicting Cannon, but as substantive proof of the relations between Cannon and Bernice Goodwin as an independent fact tending to show whether or not they had had sexual intercourse.

There are other assignments of error concerning the cross-examination of Cannon,' and also testimony introduced to impeach him by proving contradictory statements. It is sufficient to say generally, in answer to the contention of counsel, that it was competent to inquire of the accused about every matter affecting his credibility, or concerning the relationship between him and the prosecuting witness, Bernice Goodwin, and it was also competent to prove by other witnesses any -fact or circumstance which threw light on the latter question.

After 'Careful consideration of the record in each of the cases, we have reached the conclusión that there was no prejudicial error, and the judgment in each case is therefore affirmed.


author: McCulloch, O. J.

text:
    Green v. State.
    Opinion delivered October 2, 1922.
    1. Criminal law — jurisdiction on appeal. — The appellate court acquires such jurisdiction only as was possessed by the court from which the appeal was prosecuted.
    2. Criminal law — municipal court — change of venue. — Acts 1917, p. 1129, § 9, as amended by Acts 1921, p. 435, § 2, giving defendant in criminal cases in the municipal court right to change of venue and forbidding the circuit court to try one convicted of a misdemeanor in the municipal court where a change of venue has been denied by the municipal judge, was not invalid as interfering with the superintending control and appellate jurisdiction of the circuit court.
    3. Criminal law — municipal court — right of appeal. — Acts 1917, p. 1129, § 9, as amended by Acts 1921, p. 435, § 2, does not prevent a defendant from appealing a void judgment of conviction against him in the municipal court, rendered after the court’s jurisdiction was ousted, by his application for a change of venue.
    4. -Criminal law — review of void judgment. — While a void judg- • ment of the municipal court may be attacked by certiorari in the circuit court, such remedy is cumulative of the right of appeal.
    5. Criminal law — municipal court — effect of petition for change of venue. — Under Acts 1917, p. 1129, § 9, as amended by Acts 1921, p. 435, § 2, giving defendant in criminal cases in the municipal court a right to a change of venue, and providing for transfer of the case to a justice of the peace on motion therefor, where a petition was filed in the municipal court for a change of venue, that court should have transferred the case, and where it failed to make the transfer, and convicted defendant, the circuit court on appeal should quash the judgment of conviction and remand the cause with directions to transfer it to a justice of the peace.
    Appeal from Jfefferson Circuit Court; W. B. Sorrels, Judge;
    reversed.

      Rowell é Alexander, T. G. Parham, J. M. Shaw, for appellant.
    • J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, O. J.

Appellant is charged with the statutory offense of transporting intoxicating liquor, and was brought to trial in the municipal court of the city of Pine Bluff on information filed by the prosecuting attorney of the circuit.

Before the trial of the cause in the municipal court, appellant filed his duly verified and supported petition for change of venue on account of alleged prejudice on the part of the municipal judge, but that court overruled ■the petition and compelled appellant to proceed with the trial, which resulted in his conviction. He prosecuted an appeal to the circuit court, and there filed a plea to the jurisdiction of the court on the ground that jurisdiction was lost upon the filing of the petition for change of venue. The plea was based upon a provision of the amended statute under which the municipal court was created, and which reads as follows:

“Provided, the defendant, in criminal cases pending for trial or examination before the municipal court as herein provided, shall have a right to change the venue in any case as is now provided by law in justice of the pease courts; and provided, further, that the circuit court shall not have jurisdiction to try any defendant convicted of a misdemeanor in said court where a change of venue has been denied by the judge of the municipal court; and provided, further, that the justice of the peace to whom such case is transferred shall proceed to try said case as is now provided by the laws of the State of Arkansas in justice courts, and shall be entitled to like fees as are now allowed by the law for justice of the peace under the general laws of the State of Arkansas.” Acts 1917, vol. 1, p. 1125; Acts 1921, p. 433.

The circuit court overruled the plea and proceeded with the trial of appellant on the merits of the charge, which resulted in his conviction, and an appeal has been duly prosecuted to this court.

It was the obvious design of the framers, of the statute to give the right of change of venue in criminal cases from the municipal court to a justice of the peace, and to effectually enforce that right by terminating the jurisdiction of the municipal court in misdemeanor cases upon the filing of a petition for change of venue in accordance with law. The statute provides that “the circuit court shall not have jurisdiction to try any defendant convicted of a misdemeanor in said court where a change of venue has been denied by the judge of the the municipal court,” and this provision is founded upon the theory that, the municipal court being deprived of jurisdiction, the circuit court could acquire none on appeal.

It is in conformity with the rule of law that a court in the exercise of appellate jurisdiction acquires only such jurisdiction as was possessed by the court from which the appeal was prosecuted. Little Rock, M. R. & T. Ry. Co., 44 Ark. 100.

It is contended by the Attorney General that the statute is unconstitutional and void because it is an attempt to deprive the circuit court of its rightful jurisdiction in criminal cases, but we fail to see wherein the statute deprives the circuit court of any of its original or appellate jurisdiction conferred by the Constitution. The statute has no reference to the exercise of original jurisdiction by the circuit court, but applies only to the exercise of its appellate jurisdiction, and, as we have already seen, the. exercise of that jurisdiction depends upon the rightful jurisdiction of the court from which the appeal is prosecuted.

The statute does not cut off the appellate or supervisory jurisdiction of the circuit court, even in a casé where a petition for change of venue has been filed in the municipal court, bnt only deprives the circuit court of the right to try the case upon its merits. This leaves the superintending control and appellate jurisdiction of the circuit court in full play, for, notwithstanding the loss of jurisdiction by the municipal court, the circuit court has the power to supervise and review a void judgment rendered by that court.

Appellant prosecuted an appeal from the void judgment of the municipal court, and he had a right to do so, for there is nothing in the statute which attempts to cut off the remedy by appeal from a void judgment.

It is also contended by the Attorney General that appellant has pursued the wrong remedy in appealing to the circuit court from the judgment of the municipal court, instead of resorting to a remedy by writ of certiorari. It is true that a judgment void on its face may be attacked by certiorari in the court exercising* superintending control, but that remedy is not exclusive. It is only 'cumulative of the right of appeal which is conferred by the Constitution.

Under the statute in question the filing* of the petition for a change of venue in proper form transferred the jurisdiction from the municipal court to a justice of the peace, to whom the court should have transferred the papers in the case, and the circuit court should have quashed the judgment of the municipal court and remanded the cause to that court with directions to transfer It to a justice of the peace, in accordance with the prayer of the petition for change of venue.

The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to enter the judgment indicated above.


author: McCulloch, E. J.

text:
    Fairbanks v. State.
    Opinion delivered October 2, 1922.
    1. Criminal, law — motion to quash indictment — conclusiveness op finding. — Where, on motion .to quash the indictment on the ground o-f collusion between the prosecuting attorney, clerk and sheriff to omit calling the names of two grand jurors and substitute in their place bystanders suggested by the prosecuting attorney, the evidence was conflicting, the finding of the trial court is conclusive on appeal.

      2. Grand jury — summoning bystanders. — The court was not bound to exhaust its process against grand jurors before directing the sheriff to substitute bystanders to complete • the grand jury list.
    Appeal from Clay Circuit Court, Eastern District; R. E. L. Johnson, Judge;
    affirmed.

      W. E. Spence, for appellant.

      J. S. Utley, Attorney Gfeneral, and Elbert Qodioin, Assistant, for appellee.
   McCulloch, E. J.

There were two indictments against appellant, one in which he was charged with the offense of keeping in his possession an unregistered still, and the other in which he was charged with the offense of selling intoxicating liquors. The two cases were tried together with his consent, and a verdict' establishing his guilt was rendered on each charge. He filed a motion to quash each of the indictments on the ground that there was collusion between the prosecuting attorney, the clerk of the court and the sheriff, to surreptitiously drop the names of two of the alternates on the grand jury list and to cause to be summoned in their stead two other persons whose names were suggested by the prosecuting attorney, and who were summoned by the sheriff and placed on the grand jury.

The court overruled the motion to quash, and this feature of the case is the only ground on which a reversal of the two judgments is sought.

The issue of fact presented in the motion was heard by the court upon conflicting oral testimony, and the finding of the court is therefore conclusive on this appeal.

Appellant introduced testimony tending to show that the clerk did not -call two of the names on the alternate list of grand jurors, that one of the persons named was in the court room at the time, and that when it appeared to the court that there were two of the alternates absent the sheriff was directed to summon two more for jury ■ service, that he summoned two men whose names were handed him by the clerk, and that they were the names that had been previously suggested by the prosecuting attorney.

There was evidence tending to prove, however, that the clerk called the names of the two omitted veniremen, and that when they failed to respond two others were regularly summoned in their stead. In other words, there was evidence tending to show that the charges made in the motion to quash the indictments were unfounded.

The court record of the formation of the grand jury recites that the two names omitted were called, that the men failed to answer, and that the sheriff, under the direction of the court, summoned two bystanders, who were accepted by the court, and that the jury was thus regularly impaneled. The record does not recite that the two absent jurors were excused by the court, or that process was ordered for them, but that was not essential to a substitution of bystanders summoned by the sheriff under direction of the court. The court was not bound to exhaust its process against the absent jurors before completing the list of the grand jury.

Affirmed.


author: Wood, J.

text:
    Guerin v. State.
    Opinion delivered October 2, 1922.
    1. Homicide — instruction as to voluntary manslaughter — evidence. — Under Crawford & Moses’ Dig., § 2355, where there was no testimony tending to prove that defendant killed deceased upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, the failure to charge on voluntary manslaughter was not error.
    2. Homicide — instruction as to involuntary manslaughter. — On a trial for murder, evidence held to warrant a finding that defendant killed deceased in the prosecution of a lawful act done without due caution and circumspection, and hence to entitle defendant to an instruction on involuntary manslaughter, under Crawford & Moses’ Dig., § 2356, if it had been requested.

      3. -Criminal law — instruction—necessity of request. — Where defendant in a murder case asked no instruction on involuntary manslaughter, he could not complain of the court’s failure to charge thereon.
    4. Homicide — failure to charge — harmless error. — Where, in a murder case, the court charged the jury to acquit the defendant unless the killing was intentional, failure to charge that, if the killing was unintentional, but done in the performance of a lawful act without due caution and circumspection, defendant might be convicted of involuntary manslaughter, was not prejudicial, as the error was to defendant’s advantage.
    5. Criminal law — objections to instructions. — Where, though instructions complained of were open to criticism and did not state the law as clearly as they should, they were not, when considered as a whole, inherently erroneous and prejudicial, objections thereto should have been raised specifically before the trial court.
    6. Homicide — instruction as to murder in second degree. — An instruction that, if the evidence showed beyond a reasonable doubt that the killing was committed by defendant and nothing more was proved, this would justify a verdict of murder in the second degree, but that, if the evidence tended to show that the killing was not intentional, and the jury believed that it was not wilfully done, or entertained a reasonable doubt as to whether it was wilful, defendant would not be guilty of any degree of murder, held not erroneous, when considered with other instructions, as telling the jury that it was sufficient to constitute murder in the second degree if it was shown that defendant killed deceased. o
    7. ' Homicide — instruction-—murder in second degree. — An instruction that if the jury believed beyond a reasonable doubt that defendant killed deceased, and the evidence was not sufficient to raise a reasonable doubt as to whether or not the kill-: ing was intentional, they would be justified in finding defendant guilty of murder in the second degree, was not erroneous when considered with other instructions, as authorizing a conviction of murder in the second degree, though the jury had a reasonable doubt as to whether the killing was intentional.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      Martin, Wootton & Martin, for appellant.

      J. S. Utley, Attorney General, and Elbert Godiviñ, Assistant, for appellee.
   Wood, J.

Ben L. Guerin, on or about tbe lOtb day of April, 1921, in the city of Hot Springs, Garland County, Arkansas, killed one Charles Logan with a shotgun loaded with buckshot. Guerin was about sixty years of age and without a family. He operated a store in Hot Springs at the corner of Pleasant and Silver streets, in which he also lived. Logan, who was a middle-aged man and without a family, boarded with Mrs. Rookard across the street from the store about seventy feet away. At the time of his death he was clerking for Guerin. He had been working for Guerin in this capacity for about eight weeks prior to his death. Guerin had been acquainted with Logan for some tw/o years or more, and there was testimony tending to prove that they were warm friends. They were both heavy drinkers, and on the night previous to the killing they had been drinking together, and also on the morning of the killing. The killing occurred on Sunday morning. About eight or nine o ’clock on that morning Guerin and Logan, with two boys, went in appellant’s car into the country near the river for the purpose of locating a fishing camp where they proposed to spend a week or more. Guerin was crippled so that his locomotion was impaired. Logan and one of the boys placed Guerin in his car. Guerin and Logan sat on the back seat and the young, men on the front seat. On the trip to the river and return both Guerin and Logan were drinking heavily and were drunk. The parties returned to Guerin’s store about 11:30, where the young men left them. A short time thereafter loud talking was heard in the store. One of those engaged in the conversation was talking in a low tone, and the other was talking in a loud tone. Witness who heard this conversation stated she thought she heard the one talking in a loud tone say, “Get away from that door.” Witness thought from the language used by the parties that they were engaged in a fuss. Witness stated: “By the time we got in the house and turned around a gun fired, and I thought it was somebody threw a rock against the house.” Immediately after hearing this noise witness saw Guerin, half bent, coming around from towards the front door of the store and saw him go around to the side of the store and fall on the ground. Soon after that some one came along and assisted Guerin into his car.

After Guerin got in his car he was asked where Logan was and he stated that he was up town, and that he (Guerin) was going after him and would be back in a few minutes. He drove out of town some, distance, and there was a collision between his car and another car. Guerin told certain parties who gathered around at that time that he had killed a man and was mailing his “getaway” and wanted them to^ take him out to Hiram Irwin’s, who lived six or seven miles in the country. These parties refused to do so, believing that his conversation resulted from his drunken condition. On the way back to town Guerin stated'several times that he had “killed this fellow” and wanted to go ¡by and get the sheriff. He stated that he had “shot his head off.” Witness thought he stated that lie shot the party with a shotgun loaded with buckshot. One of the witnesses stated that Guerin stated to him on that occasion, “Yes, I killed old Logan — I shot the damned son-of-a-bitch’s head off with buckshot.”

The testimony adduced on the part of the State is quite voluminous, and we deem it unnecessary to set it all forth. The above is substantially the testimony upon which the State relies to sustain the verdict.

The defendant testified in his own behalf, and his testimony ténded to prove that he and Logan were fast friends and had never had any trouble or difficulty of any kind. He explained the killing substantially as follows : That when they were in the store together they were fixing their fishing tackle, and that he had some tackle in a sack; that Logan had intended loading the fishing tackle in the car while appellant prepared some dinner for them to take with them; that he had a gun on the premises, and that the same had been there for seven or eight years; that he kept it in n corner in the back end of the store; that Logan was preparing to take some fishing tackle out to put in the car; that as he started ont the door, witness told him to wait a minute and asked him to take the gun along and put that in the car, and that in taking up the gun to hand it to Logan in some manner it was discharged. Witness did not know what caused it to go off unless in picking it up it struck the table or something. Appellant’s testimony further tended to prove that he was very drunk, and on that account could not remember all that happened either immediately before or after the shooting.

The court, after correctly defining “murder” and its degrees, gave, among other, the following instructions:

“8. In other words, if the evidence should show beyond a reasonable doubt that the killing was committed by the defendant, and nothing more is proved, this would justify a verdict of murder in the second degree; but if the evidence goes further, and there is evidence adduced which tends to show that the killing was not intentional, and the jury, after considering all of the evidence, believe that it was not wilfully done, or entertain a reasonable doubt as to whether or not it was wilful, then the defendant would not be guilty of any degree of murder.”

“9. If you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased, Chas. Logan, and you further believe from the evidence beyond a reasonable doubt that the killing was wilful, that is, that the defendant shot the deceased intentionally and not accidentally, you should find him guilty of murder. ’ ’

“10. If you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased, and the evidence introduced is not sufficient to raise in your mind a reasonable doubt as to whether or not the killing was intentional, then you would be justified in finding the defendant guilty of murder in the second degree.”

“11. If the evidence convinces you beyond a reasonable doubt that the defendant killed the deceased wilfully and after premeditation and deliberation, then you should find 'the defendant guilty of murder in the first degree.”

“12. If, after fully and fairly considering all of the evidence, you entertain a reasonable doubt as to whether or not the defendant killed the deceased accidentally and without intending to kill, then you should find the defendant not guilty.”

“13. But if you are convinced from the evidence beyond a reasonable doubt that he did intentionally kill the deceased, you should find the defendant guilty of either murder in the first degree or murder in the second degree.”

The defendant’s counsel interposed a general objection to each of these instructions. They did not object specifically to any of them and did not request any instructions. Defendant was convicted of the crime of ‘ murder in the second degree and sentenced to five years’ imprisonment in the State Penitentiary.

1. There is no testimony tending to prove that the appellant killed Logan upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible. The court, therefore, did not err in failing to instruct the jury on voluntary manslaughter. Sec. 2355, C. & M. Dig., and cases there cited. This learned counsel for the appellant frankly concede, hut they contend that there was testimony from which the jury, at most, could only have found that the appellant killed Logan in the prosecution of a lawful act done without due caution and circumspection, and thalt therefore appellant was entitled to an instruction on involuntary manslaughter. Counsel for appellant are correct in this contention. See sec. 2356, C. & M. Digest. If the appellant had prayed the court for such an instruction and the court had refused the prayer, then such ruling of the court would have been erroneous and prejudicial to the appellant. Appellant, however, did not ask the court to instruct the jury on involuntary manslaughter, and he is therefore not in an attitude to complain on account of the failure of the court to so instruct. Graves v. State, ante p. 30; Hayes v. State, 129 Ark. 324, and cases there cited.

Moreover, the court, under correct instructions, submitted the issue to the jury as to whether or not the killing was intentional, and instructed the jury in effect that unless the killing- was intentional they should acquit the defendant. No prejudicial errror therefore can be predicated upon the failure of the court to instruct the jury that, if the killing were unintentional, but done in the performance of a lawful act without due caution and circumspection, the appellant might be convicted of involuntary manslaughter. The failure of the court to instruct on involuntary manslaughter, under the circumstances, was to appellant’s advantage rather than to his prejudice. Outler v. State, 154 Ark. 598; Jones v. State, 102 Ark. 195.

2. Counsel for the appellant contend that instructions Nos. 8 and 10 are erroneous and prejudicial; that instruction No. 8 is erroneous for the reason that it does .not instruct the jury that, before they could find the defendant guilty of murder in the second degree, they would have to find that the act resulting in the killing was wilful and intentional and also malicious; that instruction No. 10 is erroneous and prejudicial for the reason that it relieves the State of the burden of proving beyond a reasonable doubt that the killing- was intentional and places the burden on the defendant of raising in the minds of the jury a reasonable doubt of his guilt. These instructions, 8 and 10, are open to criticism and do not state the law as clearly as they should, but the objections which counsel now urg-e should have been raised specifically before the trial court. For, after a careful consideration of the testimony upon which the charge was grounded, we are convinced that, when all of the instructions are taken as a whole, as they must be, the two instructions indicated were not inherently erroneous and prejudicial. Because instructions 9, 11, 12 and 13, in effect, tell the jury that, unless they believe from the evideuce beyond a reasonable donbt that the killing was wilful, that is, intentional, they should find the defendant not guilty. When these instructions are read in 'connection with instructions 8 and 10, it is manifest that the court did not intend to tell the jury in instruction 8 that it was sufficient to constitute murder in the second degree if it were merely shown that the defendant killed Logan; nor, in instruction 10, that they could convict the defendant of murder in the second degree if they had a reasonable doubt as to whether the killing was intentional. While instruction No. 10, considered alone, may be susceptible of that construction, yet it is manifest that, when taken in connection with those immediately preceding and following it, such was not the court’s meaning, and appellant should have directed the attention of the court to the error of which he now complains by specific objection. While instruction No. 10 is not happily phrased, yet, it occurs to us that the court meant to tell the jury in this instruction -that, if they believed from the evidence beyond a reasonable doubt that the defendant killed the deceased, and believed from the evidence beyond a reasonable doubt that the killing' was intentional, they would be justified in finding the defendant guilty of murder in the second degree. In other words, the instruction, correctly understood, required the jury to believe from the evidence beyond a reasonable doubt that the killing was intentional, before they would be justified in finding him guilty of murder in the second degree.

Now, the testimony on behalf of the State tended to prove that the appellant killed Logan and that the killing was intentional. The jury might have found that the killing was intentional from the testimony tending to show that there was loud talking and that the parties in the store were engaged in a fuss. Also, from the testimony of the declarations of the appellant, himself, immediately after the killing, to the' effect that he had “killed old Logan” — that he shot the “damned son-of-a-bitch’s head off with buckshot.” As we have already stated, there was no testimony on the part of the State tending to show that the killing only amounted to manslaughter, or that the accused was justified, or that he should be excused in committing the homicide. The testimony adduced on behalf of the defendant tended to show that the killing was unintentional. Such being the testimony adduced on behalf of the State and the defendant, we are convinced that it was the purpose of the court, in its charge, to submit to the jury the clear-cut issue as to whether or not the killing was intentional. There is no issue as to whether or not it was done with a deadly weapon. That was undisputed. The effect of the court’s charge on murder in the second degree, when taken as a whole, was to put the burden on the State to prove beyond a reasonable doubt that the defendant was guilty of murder in the second degree — that is, of the crime of intentionally shooting Logan with a gun, which act resulted in his death — and to tell them that, unless the evidence convinced them beyond a reasonable doubt that the killing, was intentional, they should acquit.

In considering whether or not the defendant was guilty of murder in the second degree, under the instructions, the jury were authorized to consider the testimony of the appellant that his act in shooting Logan was purely accidental and unintentional. But the instructions did not shift the burden upon the defendant to prove his innocence. The burden was put upon the State in the whole case to prove his guilt. The charge upon the whole was applicable to the facts adduced and was not calculated to confuse and mislead the jury. It was in conformity with the statute (sec. 2342, C. & M. Dig.) and the many decisions of this court construing the same.

In the last of these cases, that of Maddox v. State, ante, p. 19, we quoted from Scoggin v. State, 109 Ark. 514, as follows: “Where' the testimony on behalf of the State tends to show the killing, and that it was done as charged in the indictment, if there is nothing in the evidence adduced by the State tending to show that the defendant is guilty'of manslaughter, then it devolves upon the defendant to bring forward such testimony if he would have the grade of homicide reduced from murder to manslaughter. In other words, where the killing is proved as alleged, and the testimony- on the part of the State does not show mitigation or excuse, or - show a lower grade of homicide than murder, then the accused must be convicted unless he produces testimony to convince the jury that he is innocent, or that he is guilty of a less degree of homicide than that of murder. The statute does not shift the burden of proving guilt from the State to the defendant. See also Wilson v. State, 126 Ark. 354, and cases there cited.

As there is no reversible error, let the judgment be affirmed.


text:
    Lemons v. State.
    Opinion delivered October 2, 1922.
    1. Intoxicating liquors — manufacture of alcoholic liquors— evidence. — In a prosecution for manufacturing alcoholic liquors, evidence held sufficient to sustain a conviction.
    2. Indictment and information — caption of indictment. — Under Acts 1911, 138, § 2, dividing the circuit courts of the Second Judicial Circuit into two divisions and providing that all criminal cases should be assigned to the second division, held that where the caption of an indictment showed that it was found in the criminal division, instead of in' the second division, this was sufficient, and a demurrer on the ground that the caption was erroneous was properly overruled.
    3. Indictment and information — use of disjunctive “or.” — In an indictment for manufacturing alcoholic liquor which followed the language of Crawford & Moses’ Dig., § 6160, which charged defendant with the manufacture of alcoholic liquors and a compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, the disjunctive “or” did not designate separate and distinct offenses; it being used to connect different words meaning the same thing.
    4. Criminal law — failure to object to court’s answer. — Where, in a liquor prosecution, while the jurors were deliberating, one of them, in the presence of the defendant and his attorney, handed to the court a written question as to whether the making of sour mash constituted making liquor, and the court wrote upon the slip, “If sour mash is found by the jury from the evidence beyond a reasonable doubt to be alcoholic, yes,” the failure of defendant to except to this procedure at the time waived the error.
    5. Criminal law — motion for new trial — testimony of jurors. — ' Where, in a liquor prosecution, a juror came from the jury room and handed the court a slip of paper upon which was written, “Does the making of sour mash constitute making liquor?” the testimony of the jurors, taken to establish a ground of the motion for new trial to show the effect of the court’s answer, and that the verdict was only reached upon condition that the court should be asked to suspend the judgment, was incompetent.
    Appeal from Greene Circuit Court, Second Division; B. E. L. Johnson, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. TJtley, Attorney General, and Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J.

The appellant appeals from a judgment of conviction under an indictment which charges that he “did unlawfully and feloniously manufacture, and was unlawfully and feloniously interested in the manufacture of alcoholic, vinous, malt, spirituous and fermented liquors and a compound or preparation thereof, commonly called tonics, bitters, or medicated liquors.”

The testimony on behalf of the State was to the effect that appellant rented a potato house from one Mrs. Julia Spain, for the purpose of storing his potatoes therein during the potato storage season for the years 1919 and 1920. The storage season for potatoes is from the time they are harvested in the summer until they are planted the following spring. When Mrs. Spain rented the house to appellant she delivered the key to him. As far as she knew he had complete control of the building until he was arrested on the 4th nf March, 1922, on the charge of manufacturing alcoholic liquors. At the time of his arrest he had potatoes in the house and was in complete control of the building. Appellant was suspected by the officers, and under authority of a search warrant they searched the potato house.

The sheriff of G-reene County secured the search warrant to search the potato house. He found appellant, and requested him to go with him while he searched the house. Appellant ashed the sheriff to wait for him ten or fifteen minutes before making the search. The sheriff denied appellant’s request, and took him to the building immediately. On their way the appellant told the sheriff that he was looking for a United States marshal; that he had found something out there in the potato house and did not know what it was.' The sheriff asked appellant why he had not reported what he had found to him, and appellant replied, “Well, I was looking for the United States marshal.” When the sheriff first met the appellant and informed him that he had a warrant, appellant told the sheriff to go ahead out there without him; that he could jerk the lock and it would come open, but the sheriff took the appellant along, and when they reached the house the appellant jerked the lock and the door did not come open. Whereupon the appellant unlocked the door and they went in and found thirty-five or forty gallons of mash and drippings. The mash consisted of meal, sugar or molasses, with yeast cake in it. There were two barrels in there. One of these barrels contained mash and drippings and the other contained about sixteen -gallons, of strained' drippings, and in a tow sack hanging over inside the barrel was meal and stuff. The mash which had not been strained or dripped was working, bubbling,» and was very sour. The officer found a lard stand which had contained wet meal, some of the meal remaining in the stand. The strained mash or drippings looked like it was ready to be distilled into whiskey. The mash had the odor of whiskey — an alcoholic scent. ■ The barrels- looked like they had been there for some time — some six or eight months. In the potato house there was a little room lined with tow sacks¡ to make it airtight. The officer found a still and a stillworm under a small platform covered'with tow sacks. Nothing could be seen in the house until they had a light. They found in the house a barrel which the appellant said contained vinegar, but which the officers found to be water.

The sheriff described fully the building and its contents and surroundings, and explained how the still and its equipment which he found in the potato house were operated in the process of manufacturing liquor. He testified that the still smelled like it had been used — “it smelled like white mule. ’ ’ It was shown by a registered pharmacist that mash consisted of meal, chops, sugar or molasses, water and yeast cake, and that when same had soured and was bubbling it contained alcohol. He gave it as his opinion that the mash or preparation described by the sheriff would contain alcohol.

The appellant, in his testimony, denied that he had anything to do with the manufacture of liquor. He admitted that he had a key to the potato house, and as far as he knew no one else used the potato house, or had any connection with it except himself. He testified that the barrels containing mash were “old slack barrels” and were in the building when he rented it.

Witnesses were introduced on behalf of the appellant who testified to the effect that the appellant was a hard-working and industrious man, who was constantly employed working for a living.

1. The appellant contends, first, that the testimony was not sufficient to sustain the verdict, and we are convinced from the above testimony that - the issue as to whether or not appellant manufactured alcoholic liquors as charged in the indictment was one for the jury.

2. Appellant also contends that the court erred in overruling his demurrer to the indictment; one of the objections he urged to the indictment was that the caption . of the indictment showed that the indictment was found in the “circuit court of Greene County, criminal division.” Section 2 of act No. 138 of the Acts of 1911 divides the circuit courts of the second judicial circuit into two divisions, to be known as the First and Second Divisions. The 4th section of the act, among other things, provides: “The clerk of each of said courts shall assign all civil cases to the First Division and all criminal cases to the Second Division as soon as docketed, by writing opposite the title of each the words, ‘First Division’ or ‘ Second Division’.” The act further provides for an additional judge of the circuit, and that if the judges deem it expedient they may divide the business into other than civil and criminal divisions and in any manner they deem proper, and on their written order the clerks of the several courts shall assign cases therein filed to the particular division, as may be provided in said order.

The indorsement on the indictment was doubtless meant for the purpose of properly designating the division of the court in which the indictment had been returned under the provisions of the statute. The indictment, upon its face, showed that it was returned by the grand jury of Greene County sitting in the Second Division of the circuit court of that county. That was sufficient to give the circuit court of the Second Division of Greene County jurisdiction of the case.

Appellant further contends that the indictment was defective because the disjunctive “or” is used between the words “compound” and “preparation” and also between the words “bitters” and “medicated liquors.” It is obvious that the disjunctive “or” between the words “compound” and preparation,” and between the words “bitters” and “medicated liquors” as used in the statute (sec. 6160, C. & M.) and in the indictment, which follows the language of the statute, were not intended by the lawmakers nor by the pleader to designate separate and distinct offenses; but the word “or” was used to connect different words meaning the same thing. The words “compound” and “preparation” in the statute are used synonymously, and likewise the words “tonics” and “medicated liquors” are synonymous. One of the most common uses of the conjunctive “or” is to connect different terms expressing the same thing or idea. See Standard Ency. of Procedure, vol. 12, 455, 456.

3. "While the jury was deliberating on its verdict, W. R. Gamer, one of the jurors trying said cause, came from the jury room into the courtroom and handed the court a slip of paper on which was written the following question: “Does the making of sour mash constitute making liquor?” The court wrote upon the slip in answer to the question, the following: “If sour mash is found by the jury from the evidence beyond a reasonable doubt to be alcoholic, yes.’’’ The appellant and his attorney were present wlaen the interrogatory and answer thereto were read, and no exceptions at the time were saved to this procedure. After the verdict of the jury came in, counsel for appellant requested the court to allow him to except, which request the court refused for the reason that counsel for appellant made no exception at the time the procedure occurred and did not attempt to do so. The objection to the question and answer, coming as it did after the verdict, was too late. In order for the objection of appellant to avail, he or his counsel should have interposed same when the question and answer were read in their presence and hearing. Conceding that these proceedings were irregular and erroneous, the appellant must be held to have waived the error by failing to except to the ruling of the court at the time such ruling was made and by waiting until after the return of the verdict to interpose his objection. See Holmes v. State, 153 Ark. 339.

The testimony of jurors taken to establish the ground of the motion for new trial,, on account of the above procedure, and to show its effect'upon their verdict, and that the verdict was reached only upon condition that the court should be asl?ed to suspend the judgment, was incompetent. Lamb v. State, 135 Ark. 275; Arnold v. State, 350 Ark. 27.

There is no error. The judgment is therefore affirmed.