author: Wood, J.

text:
    McMaster v. State,
    Opinion delivered March 17, 1924.
    1. Seduction — corroboration op prosecutrix. — Testimony of the prosecutrix in a seduction case must he corroborated both as to the promise of marriage and the act of sexual intercourse.
    2. Seduction — corroboration of prosecutrix. — The fact that a child was born to-prosecutrix and testimony of her parents as to intimate association between her and defendant and numerous opportunities for sexual intercourse, was substantial corroboration of her testimony as to defendant having had intercourse with her.
    3. Seduction — corroboration of prosecutrix. — Corroboration of the testimony of prosecutrix may be by circumstances as well as by direct proof, and ordinarily such corroboration can he established only by circumstantial evidence.
    4. Witnesses — scope op cross-examination. — Where defendant sought to establish by his witness by inference that -prosecutrix had been guilty of unbecoming conduct while returning from a party at an unreasonable hour with a man, it was within the State’s province on cross-examination to elicit from the witness all the facts and circumstances within his knowledge concerning the occasion and his connection therewith.
    5. Seduction — instruction as to chastity. — In a prosecution for seduction it was proper to charge that seduction means obtaining carnal knowledge of a woman of actual personal chastity by false express promise of marriage; that a woman is presumed to be chaste, and, if defendant maintains that the prosecutrix is unchaste, he must show it by evidence; that a woman may lapse from chastity and reform, and that, if defendant obtained carnal knowledge of the person -of the prosecutrix by a false express promise of marriage when she was personally chaste, the defendant should be convicted; but if, at the time, she was unchaste, the defendant should be acquitted,
    tí. Criminal law — newly discovered evidence — diligence.— Refusal of a new trial for newly-discovered evidence was proper where there was no sufficient showing of diligence, and such testimony tended merely to impeach the credibility of the prosecutrix.
    7. Criminal law — evidence—general objection. — Where a general objection to a witness’ testimony on a certain subject was sustained, it will be presumed that all of such testimony was excluded; if counsel conceived that such was not the effect of the trial court’s ruling, a more specific exception should have been saved.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      C. M. Wofford, for appellant.
    Corroboration of the prosecutrix as to the promise of marriage alone is not sufficient. She must also be corroborated as to the fact of the sexual intercourse. 40 Ark. 482; 77 Ark. 468; 97 Ark. 421. The testimony of Geo. Boyd to the effect that' the prosecutrix was making quilts and pillow shams and that she was going to get married was clearly inadmissible. Bethel v. State, 162 Ark. 76; 143 Ark. 404.

      J. S. TJtley, Attorney General, and John L. Carter, Assistant, for appellee.
    1. There was sufficient corroboration both of the promise of marriage and of the illicit intercourse to make a question for the jury. 24 R. C. L. 779, par. 63; 126 Ark. 98; 92 Ark. 421; 77 Ark. 472.
    2. There was no abuse of discretion in overruling the motion for new trial based on the ground of newly-discovered evidence. There was no diligence shown, and in any event the newly-discovered evidence would have gone only to impeach the credibility of a witness. 132 Ark. 92; 145 Ark. 244.
    3. The record does not reflect that the court ruled on the objection here urged to the testimony of Geo. Boyd. Moreover, appellant waived such objection by inquiring about the same things on cross-examination.
   Wood, J.

This is an appeal from a judgment sentencing .the appellant to imprisonment in the State Penitentiary for a period of one year .and adjudging a fine against him in the sum of $100, upon conviction, after a trial by jury, for the offense of seduction. The prosecutrix, Ocie Boyd, testified substantially to the effect that she had kept company with the appellant some three or four years. He began going with her in 1920. They were engaged to be married in the summer of 1920, and the appellant had sexual intercourse with her in the spring of 1921. Before this occurred, they were engaged to be married, and the witness would not have permitted appellant to have such intercourse if he had not promised to marry her. They continued this relation until the fall of 1922. The witness was the mother of the child' which she had with her while giving her testimony. Appellant was father of the child. The first act of intercourse occurred in the spring of 1921. The child was born in June, 1923. The appellant induced the witness to have sexual intercourse with him by telling her that he did not think there was any harm in it, as they were going to be married. . During the period appellant was going with her she was also keeping company with several other young ¡men.

The mother and father of the prosecutrix testified to the effect that the appellant kept company with their daughter some three or four years. He would come to their house and take her to church, parties, and other places. The father stated that he guessed the appellant went with his daughter as many as five hundred times. He would come regularly a while, and then quit. During the examination of the father he was asked this question: “Q. From the summer of 1921 up till the time he quit going -with her, did she make any preparation toward getting married? A. She made pillow shams and quilts. She would' say ‘I am going to get married. ’ ’ ’ The appellant objected to the testimony, and the court said to the witness, “You need not state what she said. ’’ Appellant saved his exceptions to the ruling. He was further asked, “Do you know whether or not the defendant saw these things or knew she was making them?” and answered, “I don’t know.”

On cross-examination the appellant asked witness this question: “Talking about the pillow shams and quilts, they are not the only ones made in your family? A. She made these and put them away — looked like she was making them for her use, or she would not have put them away. She told me they were going to get married.” Counsel for appellant said, “We object to that.” Thereupon the court stated as follows: “The statement of what his daughter told him is not admissible, and, gentlemen of the jury, you will not consider that in rendering your verdict. ’ ’ The witness further 'stated that, during the time that the appellant was going with his daughter, she kept company with him exclusively. The witness was asked if he ever had a talk with the appellant about the matter, and answered, “All we ever said about marrying — I gave my girl a heifer calf, and I said, ‘When you and her marry, you will have a start,’ and he said, ‘Yes, I have two besides that.’ ”

Laura Justice testified that she lived in the same neighborhood with the prosecutrix and appellant. She had a conversation with the appellant one day, and he said, “We will be close neighbors soon,” and said he was going to get married. Witness asked him if he was going to marry Ocie Boyd, and he said, “Don’t you think she would make a good woman?” and witness replied, “I do,” and he said, “ You know whom I have been going with.”

Zula Ballinger testified that the appellant told her once that he and Ocie Boyd were going to get married and live down there.

The appellant testified in his own, behalf, and his testimony tended to rebnt the testimony of the prosecutrix and ,the other witnesses for the State to the effect that'he kept company constantly with the prosecutrix, and the appellant testified that he had never had sexual intercourse with the prosecutrix.

Hubert Fears testified that the prosecutrix and George Ballinger, Laura Fowler and witness went to a play party, in the community where the prosecutrix lived, in the year 1919. Witness was with Miss Fowler, and Ballinger was with Ocie Boyd. The play party was in a house near MoMaster’s store. The party broke up at 10:30 or 11 o’clock. The place of the party was about a mile from the home of Ocie Boyd. When the party broke up, they started toward her home and got there at four or five o’clock in the morning. Witness and the young lady he was with were not with the other couple all the time. They were supposed to be ahead. They did not overtake them until the next morning, when they got to the gate. Witness did not know what occurred on the way. On cross-examination witness, over the objection of the appellant, was asked what he and his companion were doing on their way home, and whether or not there was anything improper in his conduct that night. The witness answered, “No sir; I don’t know if there was.anything improper between the other couple.”

In rebuttal the State introduced testimony tending to rebut the above testimony of the witness Fears.

Among other instructions the court gave the following: “1. Tins is a prosecution for seduction, and it contemplates the obtaining of cafnal knowledge of a woman of actual personal chastity, by virtue of a false express promise of marriage. The law presumes the woman to be chaste; and, if the defendant maintains that she is unchaste, he must show it by evidence. If a woman lapses from personal chastity, yet if she reforms and maintains her personal chastity for such a time that the jury can see that she is actually personally chaste at the time of the alleged seduction, then if the accused' obtains carnal knowledge of her person by a false express promise of marriage, and this is sufficiently proved, the defendant should be convicted. If, however, it appears that the woman, at the time of the alleged seduction, was not possessed of actual personal chastity, the accused should be acquitted.” The appellant duly objected and excepted to the giving of this instruction.

The appellant set up, as one of the grounds of his motion for a new trial, the newly discovered evidence of one Harvey Myers. Appellant alleged that Myers, if present, would testify that he had had sexual intercourse with Ocie Boyd on several occasions between April or May and August or September of the year 1922; that he knew nothing of this testimony until after the trial, and that it was impossible for appellant to know what the witness Myers would testify, as Myers had not communicated to appellant that he knew and would testify to the above alleged facts before the trial.

1. The appellant concedes that there is some testimony to warrant the jury in finding that the prosecutrix was corroborated as to the express promise of marriage. But he contends that there is no substantial testimony to corroborate the prosecutrix as to the act of sexual intercourse. The law requires that the testimony of the prosecutrix must be corroborated both as to the promise of marriage and as to the act of sexual intercourse. Hope v. State, 40 Ark. 482; Lasater v. State, 77 Ark. 468; Nichols v. State, 97 Ark. 421. But we cannot concur in ■the view that there is no substantial testimony to corroborate the prosecutrix as to the act of sexual intercourse. The fact that the child was born to the prosecutrix is corroboration of her testimony as to the act of sexual intercourse, and the testimony of her father .and mother, showing the intimate association between the prosecutrix and the appellant and that there were numerous opportunities for such intercourse, afford substantial corroboration of her testimony to the effect that there was such intercourse. The corroboration may be by circumstances, as well as by direct proof. Patrick v. State, 135 Ark. 173. The nature of the offense is such as to necessarily make it most difficult, except under extraordinary conditions; to corroborate the testimony of the prosecutrix as to the act of sexual intercourse. Ordinarily such corroboration may only be established by circumstantial evidence. “Only such corroborative evidence is required as, in the nature of the case, is obtainable, and, when produced', though circumstantial and slight in character, a case is made for the jury to determine.” 24 R. C. L., par. 63, p. 779; Brooks v. State, 126 Ark. 98; Jackson v. State, 154 Ark. 119.

2. The appellant, by his witness, Hubert Fears, sought to establish, inferentially at least, the fact that the prosecutrix was guilty of unbecoming conduct with one George Ballinger, while returning to her home from a party at an unseasonable hour, in the year 1919. The appellant having elicited this testimony, it was clearly within the province of the State, on cross-examination, to elicit from the witness all the facts and circumstances within his knowledge concerning the occasion and the witness’ connection therewith. This was germane, as testing the accuracy of the witness’ recollection and the credibility of his testimony. The State did not transcend the bounds of legitimate cross-examination in the questions propounded to the witness Fears.

3. Instruction No. 4, set out above, was a correct declaration of law. Polk v. State, 40 Ark. 482; Cooper v. State, 86 Ark. 31. Counsel for appellant, in his brief, states that, in giving the instruction, the trial court announced: ‘ ‘ This is the instruction given in a similar case and approved by the Supreme Court of this State. ’ ’ Counsel contend that such remarks were prejudicial to the appellant, but we do not discover in the bill of exceptions that the trial court made any such remarks. Therefore this ground of the appellant’s motion for a new trial presents no question for our consideration. The record only shows that the court gave the instruction, and that the appellant reserved an exception to the ruling of the court in giving the instruction.

4. The court did not err in refusing to grant the appellant a new trial on the ground of newly discovered evidence. The record shows that the court had granted appellant’s motion for a continuance at a prior term of the court, one of the grounds being that appellant would prove by certain witnesses named that these witnesses had had sexual intercourse with the prosecutrix, and that she was therefore an unchaste woman. The alleged testimony of the witness Myers, which appellant stated that he discovered only after the trial, and could not have discovered before, was in the same category as that for which a continuance had once before been granted. The mere statement, in appellant’s motion for a continuance, to the. effect that it was impossible for the appellant to state what the witness Myers would testify until after the trial was completed, because the witness Myers had not told him the facts, is not sufficient to show that appellant had used due diligence to discover such testimony. Lind v. State, 132 Ark. 92. Moreover, this alleged testimony of Myers was, after all, testimony which only would ¡have tended to impeach the credibility of the prosecutrix, because she testified that she had never had sexual intercourse with any one except the appellant.

This court has often ruled that newly discovered evidence which goes only to impeach the credibility of a witness is not a ground for a new trial. Morris v. State, 145 Ark. 245, and cases there cited.

5. The appellant contends, in the last place, that the court erred in permitting the testimony of George Boyd, the father of the prosecutrix, to the effect that she made pillow shams and quilts and put them away, and that she would say she was going to get married. Upon general objection being made to this testimony by the appellant, the court ruled that the witness could not state what his daughter said and what she told him in regard to the pillow shams and quilts, and instructed the jury that they should not consider that in rendering their verdict.

In Bethel v. State, 162 Ark. 76, we said: “In the Carrens case we held that the injured female could not be corroborated merely by her own letters to tbe accused, and in the Woodard case, supra, we held that neither acts nor' declarations of the injured female, in the absence of the defendant, were competent testimony for the purpose of corroborating her as to the promise of marriage.” See Woodard v. State, 143 Ark. 404. The appellant contends that the ruling of the court in admitting the above testimony was error on the authority of these oases. But it 'occurs to us, from the record of the court’s rulings, as above set forth, that it was the intention of the court to exclude the above testimony. The testimony of the witness as to what his daughter did and what she said was all in the same sentence, and, when the appellant objected generally to this testimony, the court ruled that the witness could not testify as to what his daughter had said — as to what she had told him. Evidently the court' meant to rule that the entire testimony was improper, and to exclude the same from the jury. If the appellant conceived that such was not the effect of the ruling of the court, but that the ruling was only to exclude that part of the testimony of the witness concerning what his daughter told him and what his daughter said, but not that part >of his testimony as to what his daughter did in the way of making pillow shams and quilts, then, in fairness to the trial court, counsel for appellant should have drawn the attention of the trial court by specific objection to the effect that the court had not excluded that part of the testimony of the witness that his daughter had made pillow shams and quilts. The objection made by counsel for appellant is not sufficiently specific to entitle him to a reversal for an error in the court’s ruling, when it was obvious that the court intended to rule in his favor and to exclude all of the testimony to which he was objecting. The ruling is susceptible of such construction, and we believe that its effect was to exclude from the jury the entire testimony of Boyd to which appellant objected. Stevens v. State, 143 Ark. 618, at p. 624. But, if counsel for appellant conceived that such was not its effect, then, as we have stated, he should have laid his finger on that part of th.e testimony which he now urges the court failed to exclude, and made a -specific request of the court to exclude that also. This he did -not do.

In the whole case the record presents no error in the rulings of the trial court prejudicial to the appellant. Its judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Keith v. McGregor.
    Opinion delivered March 17, 1924.
    1. Landlord and tenant — construction op renewal option.- — A lease for a year, which reserved an annua! rental to be paid on a certain day “of each year -during the contract,” and which stipulated for renewal of the lease “for a period of one, two, three or four years from the expiration of this contract,” did not contemplate -a formal renewal at the end of each yearly period, but merely gave the lessee the option to- extend the lease by holding over and paying the annual rental.
    2. Landlord and tenant- — assignment op lease. — A lease for a year, with option of renewal, which contains no provision against assignment or requiring the landlord’s consent, may be assigned without the landlord’s consent.
    3. Landlord and tenant. — liability op assignee of lease. — The assiguee of a lease is in privity -of estate, but riot of contract, with the lessor, and is only liable on covenants which run with the land, such as covenants for rent, to pay taxes, and to yield ' up the premises in good repair.
    4. Landlord and tenant — liability of lessee after assignment op lease.- — The fact that a lessor of land accepted rents from the lessee’s assignee, with knowledge of the assignment, did not release the lessee from liability for the payment of the rent when due -or for building a fence at expiration -of the lease.
    5. Landlord and tenant — release of lessee. — -Where a lessor, after his lessee had assigned the lease without his consent, accepted from the assignee a note for -the final installment of rent due under the lease, he will be held to have accepted the assignee as tenant in lieu of the lessee, and to -have released the latter from liability for such rent.
    6. Landlord and tenant — -liability op lessee to build pence— SET-OPP. — A lessee, liable for construction of. a fence at the expiration of the lease, was not entitled to set-off against such liability buildings constructed on the premises by him before assignment, where he sold such 'buildings to his assignee and they were purchased by the lessor at .a- bankrupt sale of the assignee’s assets.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    affirmed.

      Roy D. Campbell, for appellant.
    1. The proof is undisputed, and appellee admits, that Keith did not renew the contract after the expiration of the first year. He therefore could not be held liable for rent accrued after the first year.
    2. Appellee, by hi-s conduct in accepting rent each year under the contract, consented to the assignment thereof, and is estopped to maintain this action. 97 Ark. . 588. 10 R. C. L. 675; 140 Ark. 108; 131 Ark. 77; 147 Ark. 561.
    3. If appellant is to be held liable- for any part of the rent after the first year, he was certainly liable to the value of the building left on the premises at the termination of the contract, under the provision therein giving him the right to remove any buildings, etc., constructed by him. 136 Ark. 14.

      Ross Mathis, for appellees.
    1. The assignment -of a lease by the lessee does not relieve him of his obligation under the lease, and acceptance of rent from the assignee by the lessor does not amount to a substitution of the assignee as a tenant nor to a release of the original .tenant. 24 Cyc., 996, and notes; 108 Ark. 513; 127 Ark. 466; L. R. A. (N. S.) 1917C, p. 901; 52 L. R. A. (N. S.), 968; 973, note (b), 975, note 2; 24 Cyc. 1372; 5 Elliott on Contracts, par. 4573, tit. “Leases”; 16 R. C. L. par. 346, and notes.
    2. The acceptance of a note from the assignee did not have the effect of -a payment, as there was no agreement that the note should extinguish the debt. 2 Ark. 209; 84 Ark. 218; 149 Ark. 369; -50 Ark. 261; 49 Ark. 508; 45 Ark. 313; 48 ,Ark. 267; 111 Ark. 529.
   Wood, J.

On the 22d day of June, 1917, J. D. McG-regor, as manager of the McG-regor estate, entered into a lease contract with J. L. Keith whereby McGregor leased to Keith about ten acres of land for a period of one year from the 16th day of September, 1917, for an annual rental of $100. The lease specified that the rental was to be paid “on the 17th day of September of each year during the contract herein stipulated.” The contract stipulated “that the party of the second part may renew said lease contract from year to year for a period of one, two, three or four years from the expiration of this contract.” The purpose of the contract was to lease, as specified therein, the ground to Keith for a mill-site, and it was provided that, at the expiration of the contract, Keith should restore any and all cross-fences torn away by him, and Keith was to have the right to erect any and all buildings and equipment for the proper operation of his plant, and, at the expiration of the contract or any renewal period, he was to have the right to remove any improvements placed by him on the ground. It was also provided that Keith, at the expiration of the lease contract, and at his own expense, should inclose the leased ground with a “hog-proof” fence. Soon after the lease contract was executed Keith, who was manager of the Cotton Plant Stave Company (hereafter called company), assigned his contract to that company. During the first year, while the company was operating under the contract, they erected five buildings on the leased property, which remained on the property. After the first year Keith severed his connection with the company and went into the stave business on his own account. In the years 1918, 1919 and 1920, on the days when the annual rental became due, Hines, the manager of the company, mailed checks to McGregor for the sum of $100, the annual rental. In the year 1921 Hines wrote McGregor that he was unable to pay the rent for the year 1922, and offered to send him a ninety-day note for the rent, which note McGregor accepted. The note was not paid, as the company had become insolvent and had gone into bankruptcy. The. buildings on the property were sold by the receiver in bankruptcy, at public sale, and were purchased by McGregor. • The first 'cost of the buildings was around $1,500. The present value of them was $300. The buildings were sold by Keith to the company. When Keith assigned his contract to the company, he did not consult McGregor about it — simply transferred the lease and got credit for the $100 he had already paid, and the company, under the lease, 'held the property for the full five years. Keith did not build the fence called for by the contract. McGregor built this fence at a cost of $145. McGregor knew, at the time he received the checks in payment of the annual rentals, that Hines was at the head of the company, and knew that Keith was in business for himself on a separate tract of ground. McGregor knew, when he accepted the checks from Hines, that the company had succeeded to Keith’s rights, and did not raise any objection. McGregor did not look to Hines for the payment of the annual rents while the company was in possession under the lease, but accepted the payments from the company, and accepted Hines’ note for the payment of the last annual rental.

This action was instituted by McGregor and others against Keith to recover the sum of $100 annual rent for the year 1922, and also to recover the cost of rebuilding the fence in the alleged sum of $300. Keith denied liability.

The above are substantially the facts upon which the court instructed the jury as follows: “You are instructed that the plaintiff cannot recover of defendant for rent in this action, so this leaves the claim as to the fence only to be determined' by you. So, if you find that the defendant, under the contract, failed to build the fence, you will find for plaintiff the reasonable cost of building the same.” Both plaintiff and defendant objected and excepted to the ruling of the court in giving the above instruction.

Keith contended that the acceptance by McGregor from the company of the annual rentals for a period of four years — three years in cash and a note for the last year’s rental — estopped McGregor from recovering in this action. Keith presented several prayers for instructions which, if granted, would have submitted his contention to the jury. These prayers the court refused, to which rulings Keith duly excepted. The jury returned a verdict in favor of the plaintiff in the sum of $145. Judgment was entered in plaintiff’s favor for that sum, from which is this appeal.

1. ¡When all of the provisions of the lease contract under review are considered, it is clear that the parties did not contemplate a formal renewal of the lease at the end of each year period, but, on the contrary, it was the purpose of the parties to give the appellant the option to extend the lease for a period of five years by holding over and paying the annual rental on the 17th day of September of each year during the remainder of the full period mentioned in the contract. In Neal v. Harris, 140 Ark. 619, at page 624, we quoted from Underhill on Landlord and Tenants, vol. 2, p. 803, where, in discussing the difference between the extension of a lease and a renewal thereof,- the learned author, among other things, said: ‘ ‘ So, where a lease gives the lessee a renewal at his election, and he elects to continue, a present demise is created which is subject to all the conditions ¡and covenants of his former lease, and it is not necessary that a new lease should be executed. In the absence of an express provision that a new lease is intended to be executed, the presumption is that no new lease is intended, but that the lessee is to continue to hold under the original lease. The lease must clearly ¡and positively show that the making of a new lease was intended. This must appear from the express language of the parties. The reason for the presumption is the fact that the making of a new lease will involve trouble and expense, which should be avoided by the courts, if possible, unless it is very clear that the parties had expressly agreed to incur such trouble and expense. ’ ’

In the same case we quoted from Kramer v. Cook, 7 Gray (Mass.) 550, where it is said: “The provision ‘in the lease is not a mere covenant of the plaintiff for renewal; no formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease de futuro, requiring only the lapse of the preceding term and the election of the defendant to become a lease in praesenti. All that is necessary to its validity is the fact of election.”

The construction of. any lease contract, to be sure, depends upon its own language. The language of the contract under consideration brings it clearly within the rules above quoted in Neal v. Harris. It is nothing more nor less than a lease contract for a period of five years, provided the lessee, at the expiration of each year, elected to continue from year to year until the full contract period, 'and it was only necessary to manifest such election by holding over and paying the rent. The lease contract contains no provision against the assignment thereof by the lessee. Our statute does not prohibit, but, on the contrary, expressly authorizes, the assignment of such leases. Section 4866, C. & M. Digest. Therefore Keith had the right to assign the lease to the company, and the assignment to the company conferred upon it all the rights of Keith under the lease. 5 Elliott on Contracts, § 4574; Hollander v. Central Metal & Supply Co., 109 Maryland 131; 71 Atl. 442; Moreno v. Williams, 30 Nevada 360.

The consent of the lessor was not necessary to the validity of the assignment. McGregor, the lessor, did not, in the lease contract, expressly make his consent a ■condition precedent to the validity of the assignment, and therefore he could not object to it. “The assignee is in privity of estate, but not in privity of contract, with the lessor, and is only liable on covenants which run with the land, such as covenants for rent, to pay taxes, and yield up premises in good repair.” 5 Elliott on Contracts, § 4574, and cases there cited. All express covenants in a lease contract binding the lessee to pay rent during the term “inhere in the estate as a covenant real, and bind the assignee of the term, by reason of his privity of estate, to pay the rent accruing during his ownership ,and possession of the estate; so that, after an assignment of the lease, the lessor has a dohble and several security for the payment of his rent, either or both of which he may pursue until satisfaction, is obtained. Therefore the receipt of rent from the assignee of the lessee does not amount to a novation or release of the lessee, but is the assertion of a right which accrued to the lessor as an incident to the assignment.” Taylor v. Debus, 31 Ohio St. 468, at page 471; Kanawha-Gauley Goal & Coke Co. v. Sharp, 52 L. R. A. (N. S.), 968, and numerous cases cited in note 3(a) at page 971, and note 3(b) at page 973. In the case-note 3(b) to the above case it is said: ‘ ‘ The lessee is liable to the lessor on an express covenant-to pay rent, even though he had assigned the leasehold-with the consent of the lessor, >so long as there was not a specific release of liability. ’ ’ -Numerous, cases are cited in the text and in the case-note to Kanawha-Gauley Goal & Coke Co. v. Sharp, supra, to sustain the doctrine therein announced. This is in accord with the trend of our own decisions. Evans v. McClure, 108 Ark. 531; Landsdell v. Woods, 127 Ark. 466-469. See also, 24 Cyc., p. 1372; 5 Elliott on Contracts, §§ 4573 -and 4574; 16 R. C. L., p. 846, § 346, and cases cited.

Now, applying the law to the facts, the fact that the assignee company paid to McGregor, the lessor, the rent for three years, which rent the latter accepted, knowing that the lessee Keith had assigned his lease to- the company and had severed his connection therewith, and was doing a separate business on his own account on other land, would not release -the appellant Keith from his covenant to pay the balance of the rent due, nor from his covenant to make repairs — to build the fence, and appellee would not be estopped from maintaining this action against the appellant both for the balance due on rent and for the cost of building the fence. McGregor swore, and his testimony is undisputed, that, while he accepted the checks from Hines, the manager of the company, for the three years payment of rents, he did not look to him for payment. These facts alone would not be sufficient to relieve the appellant of the payment of the $100 balance dne on the rent, nor estop the appellees from recovery thereof. Bnt the appellee, McGregor, when the last annual payment became due, accepted the note of the company in payment thereof. By so doing the appellees must be held to have accepted the company as its tenant instead of the appellant. This act of McGregor was tantamount to releasing the appellant from the covenant to pay the balance of the rent and accepting the company in his stead. It had the effect, in law, to substitute the assignee and to release the lessee.

Learned counsel for the appellee cite many of orneases to the effect that the giving of a negotiable instrument does not extinguish the debt for which it is given, unless there is an agreement between the parties that the instrument shall have this effect, and that the check or note of a'debtor taken by a creditor is not payment or satisfaction unless the parties agree that it shall have that effect. See Estes v. Lamb S Co., 149 Ark. 369; Daniels v. Gordy, 84 Ark. 218; Churchill v. Yeatman-Gray Co., 111 Ark. 529. But these cases are clearly distinguished from the facts of the case at bar, because here, as we view the evidence, the acceptance by the appellee of the note of the company for the balance of the rent due was tantamount to treating the balance of the rent due as the debt of the company, and the conduct of the appellees in this respect constituted a payment of that debt so far as the appellant was concerned. See cases in note 52 L. B. A. (N. S.), p. 974, note (c).

The fact is not disputed that the appellees rebuilt the fence at a cost of $145. The appellant cannot offset this amount pro tanto by the value of the buildings on the property, because he testified that he sold these buildings to the company, and they were purchased by McGregor from the one who bought them at the sale of the assets of the company in bankruptcy. It follows that there was no error in the rulings of the trial court, and its judgment is therefore affirmed, both on appeal and cross-appeal.


author: Hart, J.,

text:
    Stone v. Riggs.
    Opinion delivered March 17, 1924.
    1. Partnership — sharing in profits. — To constitute a partnership, ■ there must he a community of interests 'inter se, and it is neces- ■ sary that the parties share the profits and losses, and a sharing in the profits of a business does not render one a partner where he receives such share only as compensation for services or as rent or hire for property furnished by him.
    2. Partnership — when not created. — An agreement between two persons interested in developing oil lands and the owners of a drilling outfit, which required the owners of the outfit to deliver it for use in the drilling of wells, and that they should receive one-eighth in- the leases, did not render .the owners partners with those interested in the development of the wells.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OE EACTS.
    Tom Stone and four other persons brought separate suits in attachment against Alphonzo Biggs, William Pautz, J. W. Butler and Gk W. McMurray.
    The complaint in each case alleges that the defendants entered into an agreement of partnership for the purpose of developing certain oil and gas territory in Howard County, Arkansas, and that, in the prosecution of their business, the defendants became indebted to the plaintiff for services rendered in the amount sued for.
    The complaint also alleges that the defendants are all nonresidents of the State, and are about to remove a material portion of their property out of the State, without leaving enough to satisfy the plaintiff’s claim.
    A bond for attachment was duly executed for each plaintiff. A general order of attachment was issued in each case, and was levied on certain lands belonging to the defendants.
    .' J. W. Butler and Gr. W. McMurray filed a separate answer in each case. They stated that they composed the firm - of the Butler-McMurray Drilling Company, and denied that they had formed a partnership with Alphonzo Riggs and William Pautz. They denied that they were indebted to the plaintiff in any snm whatever.
    All five cases were consolidated for the purpose of trial. An agreed statement of facts was filed in the consolidated case. It was agreed that certain machinery, drilling rigs, and tools, upon which writs of attachment in these oases had been levied, belonged to the ButlerMcMurray Drilling Company, and that they were furnished to Alphonzo Riggs and William Pautz, in pursuance of the terms of a written contract introduced in evidence. During the drilling of the well mentioned in the written contract referred to, neither member of the firm of the Butler-McMurray Drilling Company had anything to do with the work in any manner, except to visit the well on two or three occasions, when they had been notified that the drillers had struck oil. They only visited the well then for the purpose of witnessing the test.
    It was also agreed that the accounts of the plaintiffs, as stated in their several complaints, were correct, and that they were for labor performed in digging said well. The written agreement between the defendants, which was signed by them, is as follows:
    “This memorandum of agreement, made and entered into this 29th day of April, A. D. 1922, at Mineral Springs, Arkansas, by and between Alphonzo Riggs, hereinafter called the first party, and William Pautz, hereinafter called the second party, and Butler-McMurray Drilling Company, a copartnership, of Shreveport, Louisiana, hereinafter called third parties.
    “iWitnesseth: That first and second parties hereto have jointly undertaken to develop certain acreage in townships ten and eleven south, range twenty-seven, twenty-eight and twenty-nine west, Howard County, Arkansas, for oil and gas, upon the conditions hereinafter set forth, and third party has agreed to contribute the use of a rotary drilling rig, tools and equipment to be used in drilling not more than two wells upon said acreage.

      “It is agreed that the parties hereto shall have each ' an undivided interest in all acreage leased by either of first or second parties, directly or indirectly, for oil, gas and other minerals in said territory above described, in the following proportions, that is to say, first party shall have an undivided one-half interest in said acreage, second party shall have an undivided three-eighths interest, and third party shall have an undivided one-eighth interest in said acreage; hut it is agreed, for convenience, that all leases shall be taken in the name of first party, or transferred to him, >and he shall hold the said interest of second and third parties therein in trust for their benefit. This contract shall apply to all leases on lands located in said territory heretofore taken in the name of first party or transferred to him.
    “That the financing of said leases shall be undertaken by said Biggs, and shall he done by developing said territory in blocks of about three thousand acres each, more or less; that the first block shall consist of block of three thousand acres, more or less, including the Deaver farm and lands adjoining or adjacent thereto.
    “That a block of one hundred and sixty acres of the Deaver farm, more particularly described as follows: (Here follows a description of the lands) of Howard County, Arkansas, upon which a well is now being drilled by the first and 'second parties hereto, shall he reserved by said Biggs, and by him the profits, if any, from the oil or gas discovered thereunder shall be divided into one thousand equal undivided parts, so that interests of one-thousandth parts of the net profits therefrom, after paying the necessary operating expenses, may be granted as a bonus with each one hundred dollars ($100) paid for acreage to said Biggs, as hereinafter provided for, free and dear of any claim or title thereto by said second and third parties, or any person claiming under them, but any interest in the profits from said one hundred and sixty acre tract not so granted shall be held in the proportions by the parties hereto as hereinbefore provided for.

      “It shall be provided, in any instrument conveying said bonus interests, that á sum not exceeding fifty per centum (50 per cent.) of the net profits accruing to any interest in the said one hundred and sixty acre tract, including the interests of the parties hereto, may be reserved for the costs and expenses of drilling one or more additional wells on said tract, as the same may be justified in the opinion of said Alphonzo Riggs, and for the purpose of obtaining cash to pay for the costs and expenses of completing the said well now drilling, and for paying the rentals due or becoming* due on leases included in .said block, and other necessary or incidental expenses, including an additional well on said one hundred and sixty acre tract. If the first shall not show sufficient profit, .and further drilling is deemed advisable by the parties hereto, the said first party shall divide the Lands covered by leases under this agreement, adjacent or adjoining said one hundred and sixty acre tract, into Lots of such size as the said first party shall determine, which siaid lots shall, by .said first party, be sold for such sums per acre as can be obtained by said first party, but in varying .amounts, as may be determined by the distance of said lots from the well now drilling.
    “Any such lots so sold shall be transferred by said first party, by an appropriate instrument, conveying* the title thereto free and- clear of any claim or interest therein of the second and third parties, or any one claiming under them, but said first party shall faithfully account for all sums so received by him and of all disbursements made by him, but, however, any of said acreage as shall not be so sold shall be held by said first party, subject to the undivided interest of said second and third parties as herein provided; from the sums so received said first party shall first deduct any moneys heretofore or hereafter advanced by him for expenses and costs incurred in drilling said well, paying rentals, and other expenses; he shall also deduct .from such sums the necessary expenses of selling said lots, including commissions and the costs of having the same certified under the Ohio blue-sky act; with each conveyance of said lots the first party shall execute an appropriate instrument granting said bonus interest in said one hundred and sixty acre tract in the proportion of one-thousandth part for each one hundred dollars received by him as purchase price for said acreage.
    “It may be hereafter agreed upon between the parties hereto to extend this contract to additional leases upon other parts of Howard County,- or elsewhere, for development upon like plan, or if, in the opinion of any party, it -may not be advisable to continue paying rentals upon leases under this agreement, then the other parties shall have prompt notice thereof, and shall have, if they so desire, the right to elect to pay any such rentals and assume such leases as the separate property of the said parties. Upon the completion of -the promotion and financing of said first block, the development of the remainder of the leases covered under this agreement shall be undertaken by the parties hereto in like manner, at such place and time as they shall hereafter determine.
    “It is understood and agreed between the parties that this agreement shall apply to all leases heretofore assigned or acquired by Henry K. Grustin, and which are now claimed by said Pautz, in an action pending in Howard County Circuit Court, and their interests therein shall be in like proportion as herein provided.
    ‘£ The said tools and equipment heretofore delivered by third parties, which are now in use in drilling a well on the Deaver farm, in said county, shall be used for drilling only one additional well under this agreement, and it is agreed that the well now drilling shall be prosecuted with diligence -and without unnecessary delay, and that -said -tools and equipment shall be redelivered to third party, f. o. b. cars, at Mineral Springs, Arkansas, or such other place, at not greater expense, -as they may designate, immediately after completing said second well, if -drilled, but in no case later than five months from the date of this agreement. All expenses incident to the upkeep of said tools and equipment during their use by first and second parties hereto shall be paid by'said parties ; said tools and equipment shall be redelivered by first and second parties to third parties in as good condition as when received by second party hereto, ordinary wear and tear excepted; first and second parties shall bear all expense of labor, material and other costs incurred in putting down the said wells, and expressly agree to hold third parties harmless from any loss or liability by reason thereof, and to indemnify them- against any claim of any person for any such costs and expense.
    “In consideration of the covenants and agreements of fir-st and third parties hereto^ second party agrees that he will -superintend the drilling -of at least two wells in said territory, including the well now drilling, and that he will diligently prosecute the obtaining of additional leases in said territory for the benefit of the parties hereto.
    “In witness whereof the parties hereto have signed their names in triplicate, the day and date first above written. ’ ’
    The case was tried before the circuit court sitting as a jury. The court found that there was no partnership between the Butler-McMurray Drilling -Company, or the members thereof, and Alphonzo Biggs and William Pautz. Hence it was held that the Butler-McMurray Drilling Company was not liable to the plaintiffs. If was adjudged that the Butler-McMurray Drilling Company go hence without day.
    The court further found that Alphonzo Biggs and William Pautz were indebted to the plaintiffs in the amounts sued for, and the attachment which had been levied on their land was sustained.
    To reverse that part of the judgment holding that neither the Butler-McMurray Drilling Company nor the members thereof were partners with Alphonzo Biggs and William Pautz, the plaintiffs have duly prosecuted an appeal -to this court.

      Jas. S. McConnell, for appellants.

      As fixing liability to' creditors, the test of a partnership is whether the business has been carried on in behalf of the person sought to be charged as a partner, i. e., whether he stood in the relation of a principal towards the ostensible traders by whom the liabilities have been incurred, and under whose management the profits have been made. 44 Ark. 427. Definition of partnership; 80 Ark. 23. It is not necessary that the partners, shall call themselves such. If they engage in a joint business enterprise, each putting- in capital or labor; with an agreement to share profits as such, it is a partnership, whatever the parties may call it. 145 Wis. 31. It exists as the result of a voluntary contract, and not solely by operation of law. 54 Ark. 384. There was here an agreement of partnership, as appears by the contract, a community of interest, a common undertaking for the purpose of making profits and provision for sharing in the profits. 93 Ark. 521.

      W. P. Feasel, for appellees.
    Appellants in argument concede that, in order to create a partnership between these parties, there must be a joint undertaking between them to develop the acreage for oil and gas. This being true, it necessarily follows that, if there be no joint undertaking between them, there can be no partnership. The contract must be the guide in determining the relation existing between the parties. The case is ruled, we think, by 94 Ark. 505; 137 Ark. 281. Participation in the profits of a business does not necessarily create a partnership interest in the business. 137 Ark. 80; 138 Ark. 281; 152 Ark. 465. In order to constitute a partnership, the parties must have joined or associated themselves together to carry on a trade or undertaking for their common benefit, each contributing property or services in the enterprise in Which the parties have a community of interest, and the parties sharing in the profits and. losses. 93 Ark. 521; 94 Ark. 505.
   Hart, J.,

(after stating the facts). It is conceded by counsel for the plaintiffs that the sole question upon this appeal is whether the legal effect of the written agreement entered into between the defendants, and which is copied in onr statement of facts, is such that the ButlerMeMurray Drilling Company, or the members thereof, became associated in business as partners with Alphonzo Riggs and William Pautz.

The general rule is that to constitute a partnership there must be a community of interests inter se, and that the parties should share the profits and losses. A well-known exception to the general rule is that, where one is only interested in the profits of a business as a means Of compensation for services rendered by himself, or for the rent or hire of property furnished by him in the prosecution of the business, he is not a partner. All the cases fully .sustain the doctrine that, where the profits are merely a measure of compensation, no partnership is created.

It is admitted by counsel for plaintiffs that the effect of the first part of the agreement is that Rigg's and Pautz agreed to transfer to Butler and McMurray a one-eighth interest in the leases which they held for the use of a drilling rig and tools of the Butler-McMurray Drilling Company.

It is insisted, however, that the- common property of all the parties was the leases,-and that the latter part of the contract, which placed upon Riggs the -duty of developing and selling the leases in small lots and accounting to the parties according to their respective shares, after paying all expenses, made them partners. They rely upon the principles of law decided in cases like Beebe v. Olentine, 97 Ark. 390, and Hayes-Thomas Grain Co. v. Wilcox, 144 Ark. 621.

In the first mentioned case, the parties entered into a contract to purchase jointly, for the purpose of speculation, numerous tracts of land. Each was to pay an equal amount of the purchase price and to share equally in the final profits arising from future sales. The court held that this showed an intention -on their part to form a partnership for the purchase and sale of timber lands. This had all the elements of a partnership. The parties, by their contract, engaged in a joint enterprise and shared the profits and losses equally.

Neither do we think the case last cited is in point. In it the A. F. Wilcox Contracting Company and the J. R. Vansant Construction Company entered into a contract in which there was a community of interest between them in a contract between the contracting company and an improvement district and the profits arising therefrom. The agreement between the construction company and the contracting company was that the former would finance the latter and advance all sums of money to pay for work, labor and materials used in improving the street, as provided in the contract between the improvement district and the contracting company. The court said that there were all the elements of a joint enterprise and a joint contribution to a common end and a sharing of profits. This created a partnership between the contracting company and the construction company.

We do not think the written contract entered into between the defendants in the case at bar, by its terms, or on its face, constituted a partnership. Under the agreement the Butler-McMurray Drilling Company hired to Riggs and Pautz its drilling outfit, to be used in drilling not more than two oil or gas wells upon certain leases owned by Riggs and Pautz, and they were to receive as-compensation for the use of their equipment a one-eighth * interest in the leases. Butler and McMurray were not generally interested in the development of the .leased property, but only had a special and specific interest, and were in no sense partners. The agreement provides that the drilling equipment should be used in drilling not more than two wells upon the leases. It provides that the drilling shall be prosecuted with diligence, and that the drilling equipment shall be redelivered to Butler and McMurray immediately after completing the second well, if drilled, but in no case later than five months from the date of the agreement.

It was further provided that all expenses of the upkeep of the equipment during its use by Riggs and Pautz should be paid by them and that the equipment should be turned back to Butler and McMurray in as good condition as when received, ordinary wear and tear excepted.

The agreement further provided that Riggs and Pautz should bear all the expense of labor, materials, and other costs in putting down the wells. Butler and McMurray had nothing to do whatever with the drilling operations.

It will be noted that the agreement provides that the parties may, by further agreement, extend the contract to additional leases upon other parts of Howard County for development, upon a like plan of such other plan as may be provided by an additional contract.

Thus it will be seen that the written agreement provides for a future arrangement with Butler and McMurray in case the business proved to be profitable, but it nowhere states that they were going in as partners or refers to them as such. Riggs and Pautz assumed the entire responsibility for the drilling operations, and Butler and McMurray had no voice whatever in the work of drilling for oil and gas.. They only received a certain interest in the leases for the use of their drilling machinery.

The circuit court was right in holding that they were not partners. We think the agreement on its face and the attending circumstances bring this case within the principles of law decided in Mehaffy v. Wilson, 138 Ark. 281. In that case Wilson owned certain timber land's and a sawmill outfit, which he furnished to Russell for the purpose of cutting the timber and manufacturing* it into lumber. The contract specified that Wilson was to be paid for his timber at a stipulated price and that he was to receive a part of the net profits as compensation for the use of the sawmill and other buildings on his land. The court held that Wilson was the sole owner of the mill and machinery, and that there was no community of interest in the property. Wilson was not responsible for any losses and did not share in the profits as profits, but was only to receive a certain per cent, of them as compensation for his services and the nse of his mill and other houses. The court held that these conditions did not constitute a partnership between him and Russell.

That case is directly in point, and the facts are so similar in kind as to make it decisive of the question considered on this appeal. We are not able to perceive any distinction existing between the two cases, and hold that the principles decided in it are conclusive of the case at bar.

This was the view taken by the circuit judge upon the trial of the case, and it follows that the judgment of the circuit court was correct and will be affirmed.


author: Hart, J.

text:
    Roth Tobacco Company v. Layton Department Store.
    Opinion delivered March 17, 1924.
    1. Appeal and error — presumption prom absence of evidence.— Where a motion, to quash service of summons was heard by the court on testimony not preserved in the record, the presumption will he indulged on appeal that the evidence was sufficient to sustain the court’s finding.
    2. Appeal and error — bringing up evidence. — Where the trial court overruled a motion to quash the service of summons, and it does not appear by the recitals of the judgment or by bill of exceptions what evidence was heard, it will be presumed on appeal that facts introduced on the hearing warranted the court in overruling the motion.
    Appeal from Marion Circuit Court; J. M. Slmm, Judge;
    affirmed.

      J. F. Wills, for appellant.
    Service upon a mere agent of a corporation is not sufficient, unless specifically permitted by statute. 32 Cyc. 552; 123 Fed. 614; 53 N. J. L. 150.

      Floyd & Floyd, for appellee.
    Matters complained of on appeal, together with the objections and exceptions to the rulings, must be brought into the record by bill of exceptions. 2 Ark. 14; 96 Ark. 379; 131 S. W. 876. Alleged errors will not be reviewed unless preserved in bill of exceptions. 38 Ark. 456; 59 Ark. 178; 26 S. W. 827. On an appeal from an order overruling motion to set aside a judgment or to quash service, it is necessary to file a bill of exceptions. 95 Ark. 302; 129 S. ¡W. 1104; 119 S. W. 266; 90 Ark. 482. Where the defendant is a foreign corporation having an agent in this State, the service may be upon such agent. Section 1151, C. & M. Digest; 69 Ark. 396; 63 S. W. 999; 173 U. S. 221, 19 Sup. Ct. 402, 43 L. ed. 675; 59 Ark. 583; 28 S. W. 420.
   Hart, J.

This suit was brought in the circuit court by Layton Department Store, a domestic corporation, against Roth Tobacco Company, a foreign corporation, to rescind a contract for the sale of tobacco by the defendant to the plaintiff, and to recover the consideration paid by the plaintiff to the defendant. The plaintiff recovered judgment against the defendant for $518.40, the amount sued for. From the judgment rendered, the defendant has duly prosecuted an appeal to this court.

It is claimed by counsel for the defendant that the circuit court erred in overruling its motion to quash the service of summons. This motion was heard by the court upon testimony that has not been preserved in the record, and we must therefore indulge the presumption that there was sufficient evidence to sustain the finding of the court, if it is not contrary to law.

One of the grounds of the motion to quash the service of summons is that the party upon whom the summons was served was not such an agent as service of summons could be properly had upon. We must indulge the presumption that the evidence warranted the court in finding that the service of summons upon the defendant ■ was proper under the evidence introduced. Vulcan Construction Co. v. Harrison, 95 Ark. 588; Hale v. Road Imp. Dist. No. 1, 148 Ark. 316, and cases cited; and Helton v. Howe, 162 Ark. 243.

There is in the transcript what- purports to he the evidence heard on the motion to quash the service of summons; hut this purported evidence is not authenticated by a bill of exceptions or brought into the record by any other appropriate method. Hence, under the familiar rules of practice .in this court, the purported evidence cannot be considered by us on appeal.

The record recites that the motion to quash the service came on to be heard before the court, and that the court, after hearing the argument of counsel, and being fully advised as to the law arising on the motion, is of the opinion that it should be overruled. Judgment was rendered overruling the motion.

If counsel wishes to limit the consideration of the motion to quash the service to the return of the sheriff, the judgment should have recited that it was submitted upon the motion and the return of the sheriff on the summons. Inasmuch as the judgment simply states that the motion came on to be heard, and that, after hearing the argument of counsel, the court, being sufficiently advised, overruled the motion, the presumption is that facts may have been introduced upon the hearing of the motion which warranted the court in ovérruling it.

No other assignment of error is presented for a reversal of the judgment, and it follows that the judgment must be affirmed.


author: Habt, J.

text:
    Smith v. State.
    Opinion delivered March 17, 1924.
    1. Perjury — indictment.—An indictment for perjury" in giving false testimony before the grand jury held sufficiently clear and explicit.
    2. Perjury- — several assignments in same count. — Several assignments of perjury may be contained in one count in an indictment, and all the several particulars in which the accused swore falsely' may ibe embraced in the same count.
    3. Perjury — failure to allege defendant’s voluntary appearance. — An indictment for perjury consisting of false swearing before the grand jury, which recited that the grand jury was investigating generally the unlawful manufacture, sale, storing, possessing and giving away of alcoholic and intoxicating liquors, and not a specific charge against the defendant, was not defective in failing to allege that defendant voluntarily appeared before the grand jury.
    4. Criminal law — election between counts. — In a prosecution for perjury, consisting of false statements made to the grand jury, refusal to require the State to elect upon which count of the indictment it would go to trial was not prejudicial error where all of the State’s testimony was directed to a single count.
    5. Criminal law — admission of testimony before grand jury.— In a prosecution for perjury, consisting of alleged false statements made to the grand jury, the transcribed notes of the grand jury’s stenographer, properly certified by him, were admissible in evidence under Acts 1913, p. 376.
    6. Perjury — false testimony before grand jury. — Both at common law and by statute, false swearing as to a material matter before a grand jury in investigations which it may make is perjury.
    7. Criminal law — evidence—notes of grand jury’s stenoo? rapher. — Acts 1913, p. 376, making the transcribed notes of accused’s testimony, taken by the grand jury’s stenographer, admissible as evidence, is not unconstitutional as violating accused’s right to be confronted by the witnesses.
    8. Perjury — sufficiency of evidence. — Evidence held to sustain a conviction of perjury.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      W. D. Davenport, for appellant.

      J. 8. Utley, Attorney General, and Jno. L. Garter, Assistants, for appellee.
   Habt, J.

George Smith prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of perjury.

The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. The body of the indictment is as follows:

“The grand jury of White County, in the name and by the authority of the State of Arkansas, accuses George Smith of the crime of perjury, committed as follows, to-wit: The said George Smith, in the county and State aforesaid, on the 18th day of July, A. D. 1923, on his examination as a witness before the grand jury of said county and State, duly selected, sworn and impaneled, and in an inquiry and investigation being conducted by said grand jury as to the unlawful and felonious manufacture, sale, storing, having and giving away of alcoholic and intoxicating liquors in said county and State, and after having been duly sworn by the foreman of .said grand jury, who had the authority to administer such oath, to testify to the truth, the whole truth, and nothing but the truth, feloniously, falsely and corruptly did testify that he, the said George Smith, did not drink intoxicating liquors; that he had not bought any intoxicating liquors, and that no one had given him any such intoxicating liquors within the last three years; that he had not been drunk and had not been under the influence of intoxicating liquors to any extent within the last three years, and that he had not had any intoxicating liquors in his possession within the last three years, which statements so made and the matter so testified to by the said George Smith being material to the inquiry and investigation then being conducted and made by said grand jury as aforesaid, and the testimony and statements being wilfully, feloniously and corruptly false, and being known by the said George Smith to be feloniously, wilfully, unlawfully, so made them as aforesaid, against the peace and dignity of the State of Arkansas.”

It will be observed that the indictment recites that the grand jury had under investigation the unlawful manufacture, sale, storing, possessing, and giving’ away of alcoholic and intoxicating liquors, and that the defendant was duly sworn as a witness before the grand jury by its foreman. The indictment states the substance of the testimony sworn to before it 'by George ’Smith, and contains proper averments of its falsity.

The charging part of the indictment is stated in language sufficiently clear and explicit to enable the defendant to know with certainty what he is called upon to answer. It sets out clearly and distinctly what the defendant swore to before the grand jury, and charges ■with the same distinctness and clearness that the testimony was material to the crimes being investigated by the grand jury.

As above stated, it contains proper averments as to the falsity of the testimony of the defendant before the grand jury, and, according to, our statute, has all the substance of a good indictment. State v. Green, 24 Ark. 591; Thomas v. State, 54 Ark. 584, and Atkinson v. State, 133 Ark. 341.

In the latter case it is held that several assignments of perjury may be contained in one count in an indictment, and that all the .several particulars in which the accused swore falsely may be embraced in the same count. In such' case proof of the falsity of any one or more of the assignments will justify conviction.

■ It is next insisted that the indictment is defective because it does not allege that the defendant voluntarily appeared before the grand jury. This was not necessary. The indictment recites that the grand jury was investigating generally the unlawful manufacture, sale, storing, possessing, and giving away of alcoholic and intoxicating liquors. Hence it affirmatively appears that the grand jury did not have tinder investigation a specific charge against the defendant.

Under our statute the grand jury had inquisitorial powers, and the questions asked the defendant were pertinent to the subject under investigation by the grand jury. Our statute protects an accused person from the use of his own testimony in the prosecution of a charge against himself. Therefore the indictment falls squarely within the rule announced in State v. Roberts, 148 Ark. 328. Hence we conclude that the indictment was valid and the averments in it sufficient to enable the defendant to ascertain fully the matters charged against him:

It is next insisted that the court erred in overruling the defendant’s motion to elect upon which count the defendant should go to trial.

With regard to this assignment of error, it need only be said that there was no testimony whatever by the State to prove any of the charges except that the defendant had been seen drunk on several occasions within the period of time covered by his testimony, as charged in the indictment. Hence the defendant could not have been prejudiced by the failure of the State to make a formal election of which count in the indictment it relied upon for a conviction. Pearce v. State, 97 Ark. 5, and Rinehart v. State, 160 Ark. 129.

The next assignment of error is that the court erred in allowing the prosecuting attorney to introduce in evidence the stenographer’s certified transcript of the evidence of the defendant given before the grand jury.

Under our statute, the transcribed notes of the grand jury’s stenographer, when properly certified to by him, shall be admitted as evidence in all the courts of this State in all cases where, under the laws of the State, proceedings of the grand jury are now or may hereafter be admissiblé. Acts of 1913, p. 376. Both at the common law and under our statute, false swearing as to a material matter before a grand jury, in investigations which it may make, is perjury. State v. Green, 24 Ark. 591; Claborn v. State, 115 Ark. 387; State v. Roberts, 148 Ark. 328, and Warren v. State, 153 Ark. 497.

The assignments of perjury against the defendant in this case are the matters he testified to before the grand jury in its investigation of violations of the liquor laws. Hence it became pertinent, on the trial of the ease, to show what he testified to before that body; and the testimony comes squarely within the provisions of the statute.

But it is claimed that the statute is unconstitutional because it violates that provision of our Constitution which provides that the accused shall have the right to be confronted with the witnesses against him. Counsel for the defendant claims that what the defendant testified to before the grand jury should have been proved by witnesses who heard him testify, and that it was error to admit the transcribed notes of the stenographer who took down his testimony.

The general rule is that, whenever a statute requires the keeping of a record, then the record is the best evidence to prove the matters recited in it. Our constitutional provision does not prohibit the introduction of written evidence against a defendant, where such evidence is pertinent to the issue and is the best evidence obtainable. The only purpose of the Constitution is to prevent the introduction of depositions of witnesses against the defendant. Where oral evidence is used against him, he has the right to be. confronted by the witnesses so that he may cross-examine them. Suppose the assignment of perjury was that the defendant had sworn falsely in a deposition given in a certain case which he had signed, and which had been filed and used as evidence. In such case the deposition itself would be the best evidence of the assignment of perjury.

Our statute requires that the testimony of witnesses before a grand jury shall be taken down by a stenographer, and that his transcribed notes shall be admitted in evidence in cases where such testimony is competent. By analogy to the case where the assignment of perjury is upon a deposition of the defendant, it was competent here tó show the assignment of perjury by the transcribed notes. Counsel for the defendant relies upon the case of Hinson v. State, 109 Ark. 359. We do not consider that case in any wise applicable. There an attempt was made to read the transcribed notes of another witness, taken before the grand jury, as evidence against the defendant. This could not be done,' because it violated the constitutional provision above referred to. The case is quite different where the defendant himself P’ives the testimony before the grand jury. Of course, if the defendant thought that his testimony had not been correctly transcribed by the stenographer, he might show that fact by his own testimonv, or by the testimonv of members of the grand jury. Hence we do not consider this assignment of error well taken.

It is also insisted that the evidence is not sufficient to sustain the verdict. The evidence for the State shows that the grand jury was investigating generally violations of the statute as to selling, manufacturing, transporting, and giving away whiskey. The defendant was summoned to appear before the grand jury, and its foreman administered the oath to him as a witness. The foreman then warned him as to the effect of giving his testimony. He was also cautioned as to the result or effect of giving false testimony.

The defendant testified before the grand jury that he did not drink intoxicating liquors and had not been under the influence of such liquors to any extent within the last three years. This testimony was material in the general investigation made by the grand jury. Several witnesses for the State testified that, at different times and places, they had seen the defendant drunk within the last three years.

The testimony of the defendant was material in the general investigation of violation of the liquor laws, and the testimony of the witnesses for the State that they had seen him frequently drunk during the last three years tended to show that he had sworn falsely before the grand jury. Hence the evidence was sufficient to support the verdict.

The instructions given by the court were in accordance with the orineiples of law above laid down. It follows that the judgment must be affirmed.


author: Smith, J.

text:
    Taylor v. Taylor.
    Opinion delivered March 17, 1924.
    Divorce — custody of child. — Where both husband and wife are proper persons to care for a five-year-old daughter, on granting the wife a divorce the custody of the child will be awarded to her.
    Appeal from Jefferson 'Chancery Court; John M. Elliott, Chancellor;
    reversed.

      Rogers, Barber & Henry, for appellant.
   Smith, J.

Appellant filed suit against appellee, her husband, in which she prayed for a decree for divorce from Mm, for alimony, and for the custody of Valoría Taylor, their only child, a girl, .who was 4% years old when her mother’s deposition was taken, and who is now something more than 5 years old. Appellant was granted a divorce and an allowance of alimony, but the custody of the child was awarded to her husband, and she has appealed to reverse that part of the decree.

The testimony on appellant’s part tended to show that her husband had abused and neglected her, and that on one occasion he had shot at her. He was put to trial for tMs, and appellant testified that the shooting was accidental, but, in her deposition, she stated that her testimony that the shooting was accidental was false, and that she gave this false testimony at his solicitation and because she did not want to see him go to the penitentiary. . She also offered the testimony of several witnesses corroborating her own as to his abuse and neglect, and testimony was also offered that he failed to provide appellant with proper clothing and suitable food and necessary medical attention, although appellee is himself a physician.

Appellee offered testimony controverting all this. The testimony on his behalf is to the effect that he provided well for Ms wife, and authorized credit to be extended to her at the stores where she traded, and that these merchants sold her anything she desired to buy, and that he also provided servants who assisted her in the discharge of her domestic duties.

Without reciting this testimony in detail, we announce our concurrence in the .finding of the court below,- that appellant made a showing which entitled her to a divorce on account of appellee’s neglect, abuse, and cruel treatment.

The real controversy is over the custody of the child. Appellee undertook to show that appellant was not a proper person to have the custody of the child. He testified that, after leaving him, she took up her residence at the home of a woman of unsavory reputation. His testimony in this respect was without corroboration, and his assault on this woman’s reputation is not sustained. On the contrary, the affirmative showing was made by the testimony of several witnesses that the woman’s reputation was good. Appellant testified that she was driven from home, and sought shelter where she could find it, 'but, when she learned that appellee found, fault with the woman at whose house she was residing, she changed her residence, and has since boarded in the home of a .minister.

Appellee undertook to show that appellant had neglected the child, and had, on more than one occasion, left her with no one to take charge of her, and that, upon their last separation, appellant left the child without offering to take it with her. Appellant explains all this by showing that she left home because she was driven away, and that she did not take the child because appellee had threatened to kill her if she did so.

Appellant admitted that appellee was devoted to the child and was good to her, and the testimony shows that he is a suitable person to be awarded the child’s custody, that he is able to properly care for the child, and is more than willing to do so. But we do not think that he has made a showing which warrants taking the child from the custody of the mother, or that she is an improper person to have its care. The child’s age is such that a mother’s care is very necessary, and we. think the custody should be awarded to the mother.

Appellee is shown to be a physician who enjoys a remunerative practice, although the testimony of the parties is sharply conflicting as to the amount of his earnings. In addition to these earnings, he owns income-producing property, both rural and urban.

The court below made no finding as to what contribution the father should make towards the support of the child, because the child’s father was awarded its custody, but, under our view, it will be necessary to make some order in this behalf, as we are reversing the decree in this respect.

The decree of the court below will be reversed, and a decree will be entered awarding the custody of the child to the mother, with the right .of visitation on the part of the father, and the court will, if it is found necessary so to do, hear further testimony as to the contributions which the father should make towards the support of the child.


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    Mays v. State.
    Opinion delivered March 17, 1924.
    1. Receiving stolen goods — evidence.—A conviction of receiving stolen goods held supported by sufficient testimony.
    2. Witnesses — impeachment.—While accused, on his cross-examination, could be asked as to his recent residence, occupation and associations, as affecting his credibility, his answers as to these collateral matters, whether true or false, concluded inquiry, and independent testimony on the subject of accused’s associates was inadmissible, where there was no attempt to prove a conspiracy between himself and such persons.
    3. Criminal law — evidence op another crime. — In the absence of evidence, on a prosecution for receiving stolen goods, that it Was defendant’s practice or business to receive stolen goods, evidence that, at a previous time, another stolen article was found in his room was inadmissible.
    4. Criminal law — incompetent evidence — prejudice.—The prejudice of incompetent evidence that, on a previous occasion, a stolen article wias found in defendant’s room, was not removed by defendant’s testimony that the thief was arrested and that defendant was a witness.
    5. Criminal law — instruction as to possession op stolen property. — An instruction that the possession of property of another recently stolen, raises a presumption of guilt, which is rebut-table, is on the weight of evidence, and invades the jury’s province.
    6. Criminal law — erroneous instruction — when not cured. — The erroneous part of a charge that possession of property of another, recently stolen, raises a presumption of guilt, is not cured by adding that the finding of the property in defendant’s possession was not sufficient for conviction, but merely a circumstance to be considered by the jury, who should not convict unless convinced beyond a reasonable doubt that defendant knew the property was stolen when he received it.

      Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      Éolland & Hollcmd, for appellant.

      J. S. Utley, Attorney General; John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was convicted of receiving stolen property, and seeks a reversal of the judgment sentencing him to a term in the penitentiary upon the following assignments of error: (1) That the verdict is not supported by sufficient testimony; (2) that the court erred in the admission of testimony; (3) that error was committed in giving and in refusing to give certain instructions.

Upon the first assignment of error it may be said that the testimony on the part of the prosecution was to the following effect: Gladys Settle was en route to visit her aunt, and was accompanied by her father. She and her father went into the courthouse, and left in their car her suitcase, 'containing, among other articles of wearing apparel, two dresses. Upon returning to the car they discovered that the suitcase had been stolen, and they reported its loss at once to the police. The next day appellant’s daughter was seen on the street with one of the dresses on. This young lady was carried to her mother’s house, where the officers were told that appellant had bought the dress from a peddler for ten dollars.

'Witness Templeton testified that he saw the suitcase taken from the car, and that the man who took it resembled appellant, but that his hat was pulled down over his face, and he was not certain about his identification. He described the apparel of the man, and, when appellant was brought before him, a day or two later, appellant had on clothes of similar description. Appellant explained his daughter’s possession of the dress by saying that he bought it from a peddler, and there was some testimony tending to show that there was a peddler in that neighborhood about the time the suitcase was stolen. We cannot say this testimony is not sufficient to sunport the conviction. The jury passed upon appellant’s explanation of Ms possession and did not accept it, and we cannot say that tMs action was arbitrary.

Appellant was asked if he was not addicted to the use of narcotic drugs, and he answered that he was not. Asked when he had discontinued their use, he stated that he had not used such drugs for a period of two weeks preceding Ms trial. The court permitted the State to prove by a police officer that persons known.to the police as drug addicts were frequently seen at appellant’s house. This testimony was objected to, but the prosecuting attorney insisted it was competent to show who appellant’s associates were, and, in admitting it, the court stated the jury might consider it for whatever it was worth.

We think this testimony was incompetent and its admission prejudicial. It was, of course, proper to ask appellant, on his cross-examination, touching his recent residence, occupation and. associations, as affecting his credibility as a witness, but, as these matters were collateral, his answers, whether true or false, was the extent to which that inquiry could be carried, and the court should not have admitted independent testimony on the'subject of appellant’s associations, as there was no attempt to prove a conspiracy between 'himself and such persons, or any connection with the crime by such persons. Sweeney v. State, 161 Ark. 278; Davis v. State, 150 Ark. 500; Lockett v. State, 136 Ark. 473; Crawford v. State, 132 Ark. 518; McAlister v. State, 99 Ark. 604.

The court also admitted, over appellant’s objection, testimony that at some previous time — and the time was not fixed — the sheriff of Crawford County had recovered from appellant’s house a stolen article. The court per- • mitted appellant to testify that the person who had stolen the . article was arrested, and that he was a witness at the trial. But. we do not think this explanation removed the prejudice of the incompetent testimony.

Cain v. State, 149 Ark. 616, and other cases to the same effect, are cited by the Attorney General in support of the court’s ruling in admitting this testimony. These cases are to the efteet that, while the general rule is that evidence of the .commission of other crimes is admissible only when such evidence tends, directly or indirectly, to establish the defendant’s guilt of the crime charged in the indictment, or some essential ingredient thereof, yet evidence of the commission of other crimes of a similar nature about the same time may be admitted if such testimony tends to show the guilt of the accused of the crime charged by disclosing the criminal intent, guilty knowledge, or identifies the defendant, or is a part of a common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other.

We think, however, the testimony here admitted, over appellant’s objection, does not come within any of the exceptions to the general rule under which evidence of another crime may be shown. There was no attempt to show that there was any scheme or plan or practice whereby appellant received stolen goods, or that' the dresses were received by appellant pursuant to any scheme or plan; the time of the possession of the first stolen goods was not even shown; and, in the absence of substantial testimony tending to show that it was appellant’s business or practice to receive stolen goods, this testimony was incompetent and prejudicial. Wood v. State, 157 Ark. 503.

The' court gave, over appellant’s objection, an instruction numbered 3, which advised the jury that the finding of stolen property in the possession of another, shortly after the said property had been stolen, raises a presumption of guilt as against the person in whose possession the same is found, but that this presumption is a rebuttable one, and that, if this possession is explained to the satisfaction of the jury, the presumption is overcome, and should not be considered as any evidence against the accused. After so announcing the law, the court proceeded in the same instruction to say that the finding of the property in the possession of the defendant was not itself sufficient to warrant a conviction, but was merely a circumstance to be considered by the jury in passing on defendant’s guilt or innocence, and that he should not be convicted unless they were convinced, beyond a reasonable doubt, that defendant knew the dresses were stolen when he received them.

We have here an instruction which contains the error which has been frequently condemned by this court as prejudicial. A recent case is that of Pearrow v. State, 146 Ark. 182, where it was said: “The court erred in telling the jury ‘that the possession of property recently stolen and unexplained by the defendant affords presumptive evidence of his guilt.’ This language was an instruction on the weight of the evidence, which was condemned by this court as erroneous and prejudicial in the quite recent case of Long v. State, 140 Ark. 413, when we said: ‘The rule is that the unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn.’ It is wholly within the province of the jury to draw or not to draw such inference, and it is an invasion of the province of the jury to tell them, as a matter of law, that the unexplained possession of recently stolen property raises a presumption of guilt. Other cases holding to this effect are cited in Long v. State, supra. The latter part of the instruction is a correct statement of the law, but it did not cure the vice of the language of the first part, just quoted.” See also, Gilcoat v. State, 155 Ark. 455; Spivey v. State, 133 Ark. 314; Long v. State, 140 Ark. 413; Alexander v. State, 128 Ark. 35; Mitchell v. State, 125 Ark. 260; Sons v. State, 116 Ark. 357; Reeder v. State, 86 Ark. 341; Thomas v. State, 85 Ark. 138; Duckworth v. State, 83 Ark. 192; Gunter v. State, 79 Ark. 432; Denmark v. State, 58 Ark. 576; Blankenship v. State, 55 Ark. 244; Shepherd v. State, 44 Ark. 39; Boykins v. State, 34 Ark. 443.

There is no other assignment of error which we think requires discussion, hut, for the errors indicated, the judgment must be reversed, and the cause will be remanded for a new trial.