text:
    Lee v. Ellis.
    Opinion delivered October 19, 1925.
    Landlord and tenant — liability por rent. — Where plaintiff offered either to rent certain land to defendants for 1000 pounds of lint cotton and to make certain improvements on the land, or to rent the land without the improvements for one-third of the crop, and defendants accepted the first offer, they will be liable for 1000 pounds of lint cotton, less whatever damage they sustained by failure of the plaintiff to make the proposed improvements.
    Appeal from Woodruff Circuit Court, Central District; E. D. Robertson, Judge;
    reversed.

      W. J. Rungcm, for appellant.

      E. M. GarlLee, for appellee.
   Hart, J.

J. W. Lee brought this suit against Jim Ellis and Hallet Ellis to enforce a landlord’s lien in the sum of $247.83 for rent and supplies.

It is alleged in the complaint that the defendants have disposed of some of the cotton grown by them on the farm of the plaintiff without his consent and without paying all of the rent. '

The defendants deny that they owed the plaintiff any amount whatever for rent and supplies, and filed a cross-complaiut against the plaintiff in which they asked for a judgment against him,, because he had sold and disposed of the proceeds of all the cotton grown on the place without accounting to them for their share.

The jury returned a verdict in favor of the defendants, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

The only ground relied upon for a reversal of the judgment is that the testimony is not legally sufficient to support the verdict.

According to the testimony of J. W. Lee, the plaintiff, and Geo. Lee, his son, the plaintiff rented f'orty-five acres of land to Jim and Hallet Ellis for the year 1923. He rented it to them both and was to receive two thousand pounds of lint cotton as rent therefor. The defendants only delivered to him about one thousand pounds of lint cotton, and that left a thousand pounds of lint cotton due him as rent. '

Jim Ellis and Hallet Ellis were witnesses for themselves. According to the testimony of Jim Ellis, J. "W. Lee first rented some land to Hallet Ellis and told Hallet that if he would give him one thousand pounds of lint cotton as rent, he would put up a barn and add another room to the house; or that Hallet could have the land for one-third of the crop raised by him. Hallett told the plaintiff that he would rather give him a thousand'pounds of lint cotton and let the plaimtiff build the barn, because he did not want his-stock to stand out in the weather. The plaintiff then told Jim Ellis that, if he would give him one thousand pounds of lint cotton for the other half of the place, he might have a house and garden across the brake for his son-in-law, and Jim Ellis said, “All right.” The plaintiff refused to let Jim Ellis have the house across the brake, and Jim Ellis thought that then he would only have to pay one-third of the crop as rent. The plaintiff also failed or refused to build a barn for Hallet Ellis.

On direct examination Hallet Ellis was asked to tell the jury what kind of rent contract he had with the plaintiff and answered: “We went over the place, me and my father with him, and he offered it to us for a third, and my father wasn't going to take any of the place at all, he said he had been promising’ me the place all fall, and then we come up on the south side of the field, and Mr. Lee says, ‘Hallet, I tell you what I will do with you’; he says, “If you will give me one thousand pounds of lint cotton, I will build you a barn for your stock and put you another room to the house, or you can have it for a third,’ and I says, ‘Mr. Lee, I rather give you a thousand pounds of lint rather than let my stock stay out and take the weather and do without the use of the room in the summer,’ and he says, ‘All right’; and then he says, ‘Mr. Ellis, I will let you have the house across the brake and the garden spot for your son-in-law to live in for a thousand pounds of lint, or you can have it for a third’; and Pa says ‘All right’; and he let another fellow have the house to make a share-crop there for him, and he never did put up my barn or the room, and I figured one-third was all he could hold me for. ”

The result we have reached renders it unnecessary to abstract the testimony on the cross-complaint of the defendants.

The defendants were examined and cross-examined at length; but we think that we have stated the gist of their testimony material to the issue raised by the appeal. It will be noted that all of the parties agree that the land was rented for two thousand pounds of lint cotton by the defendants. The plaintiff and his son testified that but one contract was made, and that was withboththe defendants. They deny that the plaintiff promised to build a barn and add a room to the dwelling house on the land rented by Hallet Ellis, and that he promised to let Jim Ellis have a house and garden across the brake for his son-in-law. The defendants testified that separate contracts were made with them, and that each was to pay the plaintiff one thousand pounds of lint cotton. They say in addition that the plaintiff was to- build a barn- and add a room to the dwelling house on that part of the land rented by Hallet Ellis, and that Jim Ellis was to have the use of the house and garden across the brake for his son-in-law. They both testified positively that this was the contract with the plaintiff.

It is true that they say that the plaintiff proposed to let them have the land for one thousand pounds of lint cotton and in addition to make the improvements testified to; nr to rent them the land for one-third of the crop. They both say, however, that they accepted the first proposition. Their acceptance of the first proposition made that the contract between the parties. The plaintiff and the 'defendants differ about whether the improvements were to be made, but they all agree that the plaintiff was to receive two thousand pounds of lint cotton as rent. The mere fact that the plaintiff refused to perform the contract about making the improvements would not abrogate the contract which had already been made between the parties by the acceptance by the defendants of the proposition of the plaintiff to let them have the land and make the specified improvements if they would pay him two thousand pounds of lint cotton. After this proposition was accepted by the defendants, its terms constituted a valid and binding- contract between the parties, and the second proposition about receiving one-third of the crop as rent passes out of the case and could not become the contract between the parties without their entering into an agreement to rescind or modify their first agreement and substitute it as a new agreement. In other words, the fact that the plaintiff refused to perform the contract in its entirety by the failure to make the specified improvements would not relieve the defendants of their obligation under it if they stayed on the place and undertook to farm the land. ¡When they did this, they became obligated to the plaintiff to pay the specified rent, and were only entitled to a reduction of the rent in the amount in which they were damaged by the breach of the -contract by the plaintiff. They could not stay on the land under the contract and refuse to carry oht their agreement about paying the rent because the plaintiff failed or refused to carry out his part of the contract about making the improvements. They could only ask for a reduction of the rent in the amount they were damaged by the plaintiff breaking the contract. Varner v. Rice, 39 Ark. 344; Brunson v. Teague, 123 Ark. 594; Johnson v. Inman, 134 Ark. 345.

It is true that the defendants say that they thought that when -the plaintiff failed to make the improvements he intended to take a third of the crop for rent; but, as we have already seen, a new or .substituted agreement could not be made without the mutual consent of the parties, and it is not claimed by any one that the plaintiff rescinded his first contract, or agreed to a new one whereby he was to receive ome-third of the crop as rent. In short, where one person proposes a contract in alternative terms and one -of his propositions is accepted by the ¡other, this constitutes a valid and binding contract; and a breach of it by either party does not abrogate it or constitute an. acceptance of an alternative proposal without the mutual consent ¡of the parties.

The undisputed evidence shows that the plaintiff was entitled to judgment for the value of one thousand pounds of lint cotton less the damages suffered by defendants by reason of his breach of the contract in not making the improvements agreed upon by him.

It follows that the judgment must be reversed, and the cause will be remanded for a new, trial.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Crosson v. Lion Oil & Refining Company.
    Opinion delivered October 19, 1925.
    Finding lost goods — title to escaping oil. — Where oil escaped from plaintiff’s pipe line and flowed upon defendants’ land and-was there impounded by defendants, and plaintiff asserted its claim as.soon as it ascertained that the oil had escaped and was in defendants’ possession, there was no abandonment of the oil, and it remained the property of the plaintiff.
    Appeal from Union Circuit Court; L. 8. Britt, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Lion Oil & Refining Company brought this action in the circuit court against James Crosson to recover the possession of four hundred barrels of crude oil.
    ■Crosson filed an answer, in which he denied that he took possession of the oil sued for, and states that he has no interest in it except a one-eighth royalty.
    "W. B. Eason was allowed to intervene in the case, and claim the oil as his own property.
    The record shows that the Lion Oil & Refining Company owns a pipe line to transport oil from its various oil wells in Union County, Arkansas, to its refinery at El Dorado, in said county. Tlhe pipe line is about seven miles long, and has a capacity of nine or ten thousand barrels of oil per day. Its pipe line at one point is laid along its right-of-way adjoining a .tract of land owned by the Fitzgeralds and leased by them to the Gladys-Belle Oil Company for the purpose of drilling oil wells. By the term's of the lease, the lessor was to receive as royalty one-eighth of all the oil produced by the lessee. James Crosson was the agent of the owners and had general supervision over said lands to protect their interests. W. B. Eason was the representative of the Gladys-Belle Oil Company. A break occurred in some way in the pine line of the Lion Oil & Refining Company on the tract of land next to that leased by the Gladys-Belle Oil Company and which was in charge of W. B. Eason as its agent or representative. The oil which escaped from the

      pipe line flowed off of the right-of-way of the plaintiff and into a small 'stream of water which ran across the land in charge of E'ason. Eason dammed up the stream and caught the oil in a mud or oil pit which had already been constructed by the Gladys-Belle Oil Company. The oil was diverted from the stream of water to the pit by damming up the stream of water by digging a ditch so that the water and oil would both flow into the mud or oil pit. The mud pit had also been used by Eason to catch waste oil, and there was some oil in it at the time he built the dam across the branch or watercourse for the purpose of catching the oil in controversy in this case. Water is heavier than oil, and it sank to the bottom when the branch or stream was dammed up and its course diverted to the pit. A drain pipe was placed in the pit at about the depth of the branch, and .in this way the water was drained out of. the mud or oil pit, and the oil which had escaped from the pipe line' of the defendants was retained in it. According to the testimony of Eason, he did the work necessary to impound the oil. The plaintiff gave a statutory bond and has possession of the crude oil under it.
    At the conclusion of the evidence the court directed a verdict in favor of the plaintiff for the oil in controversy, and the case is here on appeal.

      Goodwin & Goodwin, for appellant.

      Mahony] Yocum & Saye and J. N. 8aye, for appellee.
   Hart, J.,

(after stating the facts). The record shows that the pipe line of the plaintiff was broken in some unaccountable way, and the crude oil therein contained flowed off the right-of-way of the plaintiff down a small watercourse on the land occupied and controlled by the defendants, and part of the crude oil was diverted from the watercourse into a mud or oil pit on the land controlled by the defendants.

It is the claim of the defendants that they acquired title to the oil which escaped from the pipe line of the plaintiff and flowed on the land controlled by them.

There is no statute in this State giving the defendants title to the oil under the facts above stated, and we are of the opinion that they could not acquire title at the common law. It is well settled at common law that the title to personal property that is lost is not vested in the finder. 25 C. J. pp. 1136 and 1139; and 17 R. C. L. pp. 1203 and 1206.

This principle of the common law was recognized by this court in Gentry v. Madden, 3 Ark. 127. In that case it was held that a person finding, taking possession oj| and selling a raft of timber stranded upon a sandbar in' a navigable river is liable for its conversion. It has also been held that an owner does not lose the title to logs which high water has floated into another’s pond. Walker v. Duncan, (Wis.) 32 N. W. 689. The Supreme Court of California has held that where lumber drifts down a stream and lodges upon adjacent land, the owner may maintain replevin therefor. Flanders v. Lock, 53 Cal. 20.

It has also been held that upon termination of a lease of land adjoining a parcel owned by a coal miner, upon both of which he has established a culm pile, the miner is not, in case he abandons the culm upon the leased property, and permits its reclamation by the lessor, bound to retain that upon his side of the division line, under penalty of losing title to it if he permits it to drift over onto the former leasehold. Preston Coal & Improvement Co. v. Raven Run Coal Co., 200 Fed. 465, 43 L. R. A. (N. S.) 460. The court said that the owner may always recover his property wherever he may find it, and that this elementary principle of law is not affected by the rights given by statutes or common law to the finder of lost property, or to the owner of land onto which the property of another has come. It has also been held that one whose property is borne upon the lands of another by inevitable accident (a flood), without his fault or negligence, may elect, either to abandon the property, in which case he is not liable to the owner of such lands for any injury occasioned by it, or to reclaim it, in which latter case he must make good to such owner the damag’es ■so occasioned. Sheldon v. Sherman, 42 N. Y. 484.

When the crude oil was taken from the ground and placed in the pipe line of the plaintiff to be carried along its right-of-way to its refinery at El Dorado, it ceased to possess the character of oil in place in the ground and became the personal property of the plaintiff, just like any other personalty owned by it. Although the plaintiff lost possession of the oil when it escaped from its pipe line, yet it retained title in the oil and the right to recover it. Of course, it might have abandoned the <$il, and in such case the title to the oil would go to whoever took possession of it.

Numerous instructions were asked by the defendants which were refused by the court. In all of these instructions, however, the defendants based'their rights to the possession of the oil under a claim of ownership because they impounded it in their oil pit. They did not request any instructions upon their right to recover from the owner their necessary and reasonable expenses in impounding the oil and preserving it in their oil or mud pit. Hence this question is not ail issue raised by the appeal.

The sole question presented by the appeal and argued by the parties is as to which of them wa.s entitled to claim as owner the oil which escaped from the pipe line of the plaintiff and flowed onto the land’ occupied iby the defendants, and which was there impounded by them in a pit dug for that and other purposes.

Counsel for the defendants asserted title under the doctrine announced in Duvall v. White, (Cal. Dist. Ct. of Appls.) 189 Pac. 324.

Even if it be said that the doctrine laid down in that case is sound and should be followed in this State, we think the facts in the case at bar are essentially different, and do not bring it within the rule there announced. In that case certain oil companies designedly allowed waste oil to escape from their works and flow down a watercourse adjoining’ their lands. Several miles below their works, the watercourse emptied into a lake. In consequence of the danger of the oil contaminating the waters of the lake and causing suits to be brought against the oil operators for damages for the injury, the operators made arrangements with a proprietor of land bordering on the lake to construct a dam for the purpose of preventing the waste oil from contaminating the waters of the lake, and, in consideration theref or, agreed to give the landowner all the oil he could thus impound.

An intermediate landowner bordering on the stream undertook to divert the waters of the stream, and this it was ordinarily conceded he had a right to do. The lower landowner sought to enjoin the intermediate landowner from diverting or in any way interfering with the flow of oil or water down to his land so that he might impound it in accordance with the agreement with the oil operators. The decision was in favor of the intermediate landowner, who was the defendant in the action.

In rendering a decision the court proceeded upon two theories. One was that there was an abandonment of the oil by the operators when they intentionally allowed it to escape from their works and to flow down the watercourse without any intention of ever reclaiming it.

In the first place, it may be said that there can be no such thing as an abandonment in favor of a particular individual or for a consideration. Such an act would be a gift or a sale. Hence it is. obvioiffe that the operators could not abandon the property and at the same time transfer a right to it to the owners of the land on the lake. Nor could they transfer the title to the owner of the land bordering on the lake with the unqualified right to have it flow down the stream and thus impair the rights of intermediate proprietors to use or divert the waters of the stream just as they had the right to do before the oil was allowed to waste and flow down the stream. It is obvious that the operators could not divest the water rights of intermediate proprietors by allowing the oil to waste from, their plants and flow down the stream for their benefit. This could give them no easement in the stream which they did not possess.

Property is said to be abandoned when it is thrown away or its possession voluntarily forsaken by the owner, in which case it will become the property of the first occupant. When involuntarily lost, or left without hope or expectation of again acquiring it, it becomes the property of the finder, subject to the superior claim, of the owner. Eades v. Brazelton, 22 Ark. 499.

Hence it will be seen that, under the doctrine of the case just cited, when the oil operators in the California case abandoned the 'waste oil by voluntarily letting it flow into the creek without any intention of reclaiming it, the first owner proprietor would have the right to acquire it.

In the case at bar the undisputed facts show that the oil was not voluntarily allowed to escape, and that the owner asserted its claim to it soon as it ascertained that the oil had escaped and was in the possession of the defendants. There are no facts or circumstances in the record from which it might be inferred that the plaintiff in this case is estopped from claiming the oil. As soon as it was found out that the oil was escaping, the pipe line was repaired, and the plaintiff asserted 'title to the oil which was impounded by the defendants in their mud pit.

As above stated, the question of compensation to the defendant® for impounding the oil was not raised by the pleadings or in any other manner. Hence it is not an issue in the case.

The judgment of the cohrt under the facts most favorable to the defendants was correct, and it will therefore be affirmed.


author: Smith, J.

text:
    Barnhardt v. State.
    Opinion delivered October 19, 1925.
    1. Criminal law — corroboration of accomplice: — instruction.— .An instruction to. the jury that the corroboration of an accomplice “is sufficient if there is any evidence to warrant you in convicting the defendant, which, taken with all the other evidence in the case, convinces you of the guilt of the defendant beyond a reasonable doubt” was deficient in not telling the jury that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof.
    2. Criminal law — conflicting theories — instructions.—Where the evidence in a prosecution for aiding in the embezzlement of a crop of cotton justified submission of the State’s theory that the title to the cotton was in the landowner under a share-cropper’s agreement, and the defendant’s theory that the person aided was owner of the crop as tenant of the landowner, it was error to charge the jury as to the former theory and to refuse to charge as to the latter.
    3. Landlord and tenant — title to crop. — Where a share-cropper raises •& crop for the landlord, and is to receive a part of the crop as wages, the title to the crop vests in the landlord; but where the share-cropper pays one-half of the crop for the use of the land, with the tools, team and feed therefor, the title to the crop is in the tenant.
    4. Criminal law — admissions of defendant.. — In a prosecution for aiding another in embezzling a crop of cotton, any incriminating admission made by defendant on a previous trial for buying the same cotton at night, in violation of Crawford & Moses’ Dig., § 2439, was competent.
    3. Criminal law — other offenses as evidence of intent. — In a prosecution for aiding another to embezzle cotton, where defendant admitted that he bought the cotton from the alleged sharecropper in the night time but claimed that he supposed that the share-cropper had the right to sell it, testimony that the defendant had bought cotton from other tenants under similar circumstances was admissible as tending to show intent or guilty knowledge.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    reversed.

      R. D. Smith and Mann & McCulloch, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant Barnhardt was convicted under an indictment charging him with having aided and abetted one O. C. Osborne in embezzling 250 pounds of seed cotton belonging to Alfred Sohm.

Osborne admitted his guilt and implicated Barnhardt. The court gave an instruction on the question of the sufficiency of the corroboration of an accomplice to sustain a conviction, and in the ■ instruction the jury was told that the corroboration “is sufficient if there is any evidence to warrant you in convicting the defendant which, taken with all the other evidence in the case, convinces you of the guilt of the defendant beyond a reasonable doubt.” This instruction was deficient in not telling the jury that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof (§ 3181 C. & M. Digest), but the objection offered to the instruction was possibly not sufficient to call to the attention of the court the requirement of the statute in the particular indicated. Appellant asked and’ the court gave an instruction embodying* the requirement of the statute that a conviction could not be had on the testimony of an accomplice if the corroboration showed only that the offense was committed and the circumstances thereof.

Over appellant’s objection the court gave an instruction numbered 1 reading as follows: “You are instructed that if you find from the testimony in this case beyond a reasonable doubt that O. C. Osborne made a contract with Alfred Sohm by the terms of which he was to be furnished by the said Alfred Sohm with the land, farming implements, seed, etc., to make a crop, and that he, the said Osborne, was to receive for his labor one-half •of the proceeds of such crop, and that the said O. C. Osborne raised the cotton mentioned and described in the indictment in this case, pursuant to said contract, then the title to such cotton was in the said Alfred Sohm, and it was his property.”

This instruction is a correct declaration of the law, and was properly given. But, having* given this instruction, the court should also have given the converse thereof embodied in an instruction numbered 7 requested by appellant reading as follows: “You are'instructed that, if you find from the evidence that Sohm and Osborne entered into an agreement whereby Sohm rented to Osborne the land on which the cotton alleged to have been embezzled was grown, and that the said Osborne agreed to pay to the said Sohm one-half of all cotton raised on said land as rent therefor, then your verdict will be not guilty, notwithstanding the fact that you find that the said Osborne failed to perform his part of the agreement.”

These instructions, had both been given, would have submitted to the jury the question whether Osborne was a tenant or whether he was a mere laborer.

The indictment alleged that the property stolen belonged to Alfred Sohm. This allegation of ownership was material, and the two instructions, together, would have submitted that question of fact to the jury, whereas the instruction given submitted only the State’s theory of the case. We think the testimony raised a question of fact as to the ownership of the property which should have gone to the jury.

J. J. Hughes testified that he was agent or manager of Alfred Sohm, and he was asked this question: “Q. You have stated that Mr. Osborne was there in what capacity1?”, and to this question he answered: “As a tenant or employee.” Hughes further testified that he as agent for the owner of the land was to furnish the livestock, plow tools, gear and half of the fertilizer, and that Osborne was to do the necessary work to make the crop. He was asked how the crop was to be divided, and he answered: “A. After his (Osborne’s) account was paid, he .was to receive his part of the crop or one-half of the crop.” In this same connection Osborne was asked: “Q. He furnished the mules and the feed for the mules and the seed and the plow tools, and you did the work on the land, and you gave him half for the use of those things?”, and the witness answered: “A. Yes, sir, I was making a share-crop.”

We think this testimony leaves in doubt, or at least that a question was made for the jury, as to whether Osborne was a tenant or an employee. Hughes testified that he was a “tenant or employee.” If Osborne was a tenant, then the title to the crop was in him, and Sohm, the landlord, had a lien thereon for one-half the crop as rent, and a lien on the remaining half for the value of any necessary advances of money or supplies to enable Osborne to make the crop-. On the other hand, if Osborne was a mere employee, then the title to the crop was in Sohm, as it was alleged to be in the indictment.

The distinction may appear to be finely drawn between a tenant who pays half the crop' for the use of the land and live-stock and feed therefor, with the necessary tools and implements to grow the crop, and one who makes a crop as an employee to whom these things are furnished 'and who is given for his labor one-half of the crop to be grown by him.

But this distinction has been recognized by this court in many cases. It had been recognized prior to the case of Hammock v. Creekmore, 48 Ark. 264, as is shown by the cases to which Chief Justice Cockrill referred in the opinion in that case. The earlier cases were there reviewed, and the law in regard to the title to crops grown “on shares” was there restated to be as follows:

If the share-cropper raises a crop for the landlord, and is to receive a part of the crop' from the landlord as wages for his work, the title to the crop grown vests in the landlord, and the share-cropper has a lien thereon for his labor. If the share-cropper is to pay one-half the crop for the use of the land, with the tools and team and feed therefor, then the title to the crop' is in the tenant, and the landlord has a lien thereon, and, in addition, the landlord has a lien for any necessary supplies of money or provisions to enable the tenant to make the crop, but the title td the crop is in the tenant-

As was said by the learned Chief Justice in the Hammock v. Creekmore case, “if the intention to become tenants in common had been indicated (see Bertrand v. Taylor, 32 Ark. 470; Ponder v. Rhea, ib. 436), then the title would have vested, as in other chattels held in common (Hamby v. Wall, ante 135) * *

The distinction pointed out in the case of Hammock v. Creekmore, supra, has been consistently recognized by this- court in later cases. Rand v. Walton, 130 Ark. 431; Woodson v. McLaughlin, 150 Ark. 340; Bourland v. McKnight, 79 Ark. 427.

We conclude, therefore, that instruction numbered 7 requested 'by appellant should have been given, so that the jury would have 'been advised what the distinction was between a share-cropper who makes a crop for the landlord under an agreement to pay as rent a given portion of the crop, and one who makes a crop for the landlord under a contract to be paid as wages for his labor an agreed share thereof, this distinction being determinative of the question of title to the cotton.

A motion for a continuance was filed, and it is earnestly insisted that error was committed in overruling it. In view of the fact that we are reversing the case on another ground, it will be unnecessary to consider this assignment of error.

It is further insisted that the court erred in permitting the witness Hughes to testify that the defendant had entered a plea of guilty to the charge of stealing the cotton at the preliminary hearing before the justice of the peace'. It appears that appellant and Osborne were arrested the very night the cotton was sold by Osborne to Barnhardt. This sale was made in the nighttime. On the following day both Osborne and Barnhardt were arraigned before a justice of the peace, and Barnhardt pleaded guilty to the offense of buying cotton after night in violation of § 2439, C. & M. Digest, and he was fined for that offense. At the trial from which this appeal comes he testified that his plea of guilty was limited to the admission that the cotton had been purchased after dark, and that he did not intend to enter a plea of guilty to any other charge.

This was a question of fact, and any admission made by Barnhardt in this connection was admissible against him. He had the right to testify as to the plea entered by him, and likewise to explain' such plea, but any statements made by him in making- this plea were admissible against him, and it was competent and admissible for Hughes, or any other witness who heard Barnhardt’s statements, to testify as to the statements then made.

Error is also assigned in the action of the court in permitting testimony to be offered tending to show that Barnhardt bought cotton from other tenants under circumstances similar to those under which he purchased cotton from Osborne. Barnhardt admitted purchasing the cotton in question, but testified that he supposed Osborne had the right to sell it. The testimony objected to was therefore admissible as tending to show the intent or guilty knowledge of Barnhardt at the time of these sales, all of them being made in the nighttime and under circumstances indicating that there was a desire to conceal what was being done.

Certain other errors are assigned which we do not think require discussion, but for the error indicated the judgment must be reversed, and the cause will be remanded.


text:
    Costen v. Fricke.
    Opinion delivered October 19, 1925.
    Executors and administrators — statutory allowances — election under will. — Where decedent devised his homestead to his wife “for and during her natural life, and at her death, if undisposed of, then to my heirs hereinafter named,” the widow was not required to elect between taking under the will and staking the statutory allowances provided by Crawford & Moses’ Dig., § § 80 and 86.
    Appeal from Greene Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Jeff Bratton, for appellant.

      Huddleston & Little, for appellee.
   Smith, J.

This canse was tried in the court below on an agreed statement of facts, from which we copy the following- recitals:

W. C. Greathouse departed this life testate on March 12, 1923, leaving him surviving his widow, Emily C. Greathouse, and certain children and grandchildren, who were the children of deceased children. . On October 15, 1923, W. T. Costen qualified as administrator of the estate. The will devised to the testator’s wife, “for and during her natural life, and at her death, if undisposed of, then to my heirs hereinafter named, # * * the home place and a tenant house located on each side thereof; * * * with full poiwer to mortgage the fee simple title of all or any part thereof, if necessary, to raise money for her reasonable support and maintenance during her natural life;” The will further recited that “I further give, will, devise and bequeath unto my said wife, Emily C. Greathouse, all the household and kitchen furniture, beds and bedding, cooking utensils, etc., now used by us in keeping house and the sum of $135 in money.” And it was therein further recited that “I give to my children and grandchildren (who were there named) all of the residue of my estate, both real, personal and mixed, in equal portions and to share and share alike. ”

The will was duly witnessed and probated as required by law. After the death of the testator, his widow took possession of the property devised and bequeathed to her and continued in possession thereof until her death, which occurred October 12, 1923. During the life of the widow no administration was had upon the estate of the testator, and the widow did not, after the death of her husband, during her lifetime, expressly elect either to take under the will or in opposition thereto.

Before the death of W. C. Greathouse he and his wife contracted with ÍW. J. Fricke for the sale of a lot adjacent to the homestead for the consideration of $1000, of which $100 was paid in cash, the balance to be paid .in monthly installments of $15, beginning May 1, 1922.

After the death of Mrs. Greathouse the Security Bank & Trust Company qualified as administrator of her estate. Thereafter Fricke filed a bill in the chancery court against the administrators of both estates, alleging the facts herein recited and praying the court to adjudge to whom he should make the monthly payments on the lot he had purchased.

The administrator of the estate of the testator filed an answer claiming everything. The administrator of the estate of the widow filed an answer claiming the statutory allowances provided for by §§ 80 and 86, C. & M. Digest, or the value of those allowances, towit, the sum of $450.

In opposition to the claim of the administrator of the wife, the administrator of the testator contended that, by accepting the benefit of the provisions of the will, the widow had elected to take under the will, and could not therefore take in addition these statutory allowances.

The court declared the law to be that the widow was entitled to claim these statutory allowances, and decreed accordingly, and the administrator of the testator’s estate has appealed.

By § 3538, C. & M. Digest, it is provided that “If any husband shall devise and bequeath to his wife any portion of his real estate of which he died seized, it shall be deemed and taken in lieu of dower out of the estate of such deceased husband, unless such testator shall, in his will, declare 'otherwise.”

The sections of the statute following, towit,, 3539, 3540, 3541 and 3542, provide for :'am election by the widow where a devise was made to her in lieu of dower. There is conferred upon her by these sections of the statute the right to elect whether she will take under the will or under the statute as if there were no will, and they provide how she may renounce the will and the time within which she must do so. Here the widow made no election.

We pretermit any discussion of the fact that the widow died before the time limited by the law had expired within which she might elect to renounce the will, and dispose of the question presented for decision without taking that fact into account.

By § 80 the widow and minor children, or the widow or minor children, are given the sum of $300 out of the personal estate at its appraised value when the value of the personal estate exceeds that sum. There are here no minor children to share this allowance with the widow.

By § 86 the widow alone is given, in addition to the allowance specified in § 80, when the estate is not insolvent, such personal property as she may wish not to exceed the appraised value of $150. The solvency of the estate involved is not questioned.

Is the widow barred from asserting a claim for the allowances provided in §§ 80 and 86, C. & M. Digest, in addition to the testamentary provision? It is conceded that this is the controlling question in the case.

The principle which controls here was announced in the case of Stokes v. Pillow, 64 Ark. 1. There Tapp, the cwner of a homestead and ether lands, made a will containing the following words: “I give and bequeath unto my beloved wife, Amanda M. Tapp, all my real and personal estate of whatever kind I may die possessed of, land, tenements, rents and issues, profits and ohoses in action, to be hers so long as she may live, and to dispose of as she may deem proper at her death, taxing her only to pay what legal debts I may owe at the time of my death and my funeral expenses.” The testator died May 10, 1877, and the will was probated, but the widow, who was therein named as executrix, did not qualify as such, and there was no administration during her lifetime. The widow 'occupied the homestead until her death on September 10, 1892, at which time an administrator of the estate of Tapp was appointed, and certain debts were probated against Ms estate. Afterwards the administrator of Tapp brought ejectment against the heirs and devisees of Mrs. Tapp to recover the lots for the purpose of subjecting them to sale to pay the probated debts. The admimstrator alleged that Tapp devised the lots in controversy and other property to his wife, and that as widow and sole devisee she elected to accept the provisions of the will; that she took possession of said premises and remained in possession until she died, holding the same adversely under claim of absolute ownership, and not under claim of homestead, and that the rights of the administrator and creditors were barred by adverse possession and the statute of limitations.

Mr. Justice Riddick, speaking for the court, said: “It becomes, therefore, material to determine whether the provision in the will was intended to be in lieu of the homestead given by law, for, if the provision in the will was made for the widow in lieu of her homestead, she would be put to her election, but, if the provision was not made in lieu of the homestead estate, she had the right to hold both the homestead and the benefits conferred by the will, and the creditors could not subject the land to their debts until the expiration of the homestead estate. Our statute provides that ‘if any husband shall devise and bequeath to his wife any portion of his real estate of which he died seized, it shall be deemed and taken in lieu of dower out of the estate of such deceased husband, unless such testator shall in his will declare otherwise.’ Sand. & H. Dig. § 2544. But we have no statute of this kind in reference to the wife’s homestead, and whether the provisions made by the will for the widow must be taken as in lieu of the homestead estate given by law so as to put the widow to an election depends upon the language and meaning of the will itself, as determined under common law rules of construction. Although there be no express declaration to that effect, yet if the devise to the widow is clearly inconsistent with her right to claim a homestead, then it will be treated as made in lieu of lier homestead estate, and she must make her election whether to claim her homestead estate or to take the provisions given by the will. But the presumption is that the testator did not intend to deprive the widow of any estate given her by law, and that the provisions of the will were intended as a bounty in addition to that which she already had. The widow is therefore in such cases entitled to claim both the homestead as well as the benefits conferred by will, unless its provisions are so repugnant to the claim of homestead that the same cannot stand together. On this point, the language of many decisions is very strong. Mr. Pomeroy, who has treated this doctrine of election with marked ability ¡and learning, after an examination of the adjudged cases on the subject of election in cases of dower, concludes that, in the absence of an express declaration in the will that the provision is in lieu of dower, mere intention of the testator to that effect, gathered from the will, is not enough to put the widow to an election. To make a case for an election, he says ‘that intention must have been shown or carried into operation by totally inconsistent gifts of the land subject to dower.’ 1 Pom. Eq. Jur. § 493.”

After citing a great number of authorities supporting his statement of the law, the learned .justice proceeded to say: “Applying these well settled rules to the will in this case, we hold that no election was required, for there is nothing in the will that rebuts and overturns the presumption that the testator did not intend ■ to devise the homestead, the right to which was already given to the widow by law, and nothing inconsistent in her claiming both the homestead and the provisions in the will. The meaning of the will must bo taken to be the same as if the testator had inserted therein an express provision that the devise made by him was subject to the homestead right of his wife, for the law presumes that such was his intention unless such presumption be countervailed by other inconsistent provisions.”

We think what was there said is equally applicable to the statutory allowances in question. The widow does not take the homestead as dower; neither does she take these statutory allowances as dower. They are in addition to dower, and the widow is not put to an election in regard thereto unless the language of the will makes it dear that the property devised to her is to be in lieu of those allowances as well as that of dower.

T[he widow here was devised certain specific property, and “all of the residue” of the estate was devised and bequeathed per stirpes to the testator’s children and grandchildren. What this residue was does not appear. We conclude, therefore, that there was not such a manifest purpose on the part of the testator to deprive the widow of these statutory allowances as required her to renounce the will to take them. She could have taken these allowances without disavowing the will. These allowances are no more a part of the dower than is the homestead right. The widow, therefore, has these allowances and is entitled to claim them, unless the provisions of the will make it clear that that action would be inconsistent with the testator’s intention. In other words, the residue of the testator’s estate to which he referred did not include these statutory allowances, because the presumption that he did not intend to deprive her of them does not sufficiently appear to have made an election on the widow’s part essential to claim them.

The decree of the court below accorded with this view, and it is therefore affirmed.-


text:
    Morgan v. State.
    Opinion delivered October 19, 1925.
    1. Criminal law — change of venue — time for application. — A petition for change of venue was filed too late where it was not filed until defendant had waived formal arraignment and entered his plea of not guilty, and the impaneling of the jury had progressed to the point where four jurors had been found qualified and been accepted.
    2. Criminal law — prejudice—discharge of panel. — A motion to discharge the regular panel of the jury upon a showing that the members thereof were residents in or near the city of the venue, and that the sentiment therein was hostile toward defendant, ’ was properly denied where the jury was not completed from the regular panel, whereupon the court ordered a special panel to be summoned from outside the city, and it appears that defendant did not exhaust his peremptory challenges in impaneling the jury.
    3. Larceny, false pretenses and embezzlement distinguished.— Where one^ionestly receives possession of goods upon a trust, and, after receiving them, fraudulently converts them to his own use, it is a case of embezzlement; if the possession has been by fraud, trick or device, and the owner of them intends to part with his title when he gives up possession, the offense, if any, is obtaining property by false pretenses; but where the possession has been obtained through a trick or device, with the intent at the time to convert the same to his own use, and the owner parts merely with the possession, and not with the title, the offense is larceny.
    4. Larceny — taking by trick or subterfuge. — Where the manager of an ice company was authorized by the company to deposit the company’s funds' with a certain stockholder, the latter’s failure to repay the money was neither embezzlement nor larceny; but if the manager merely pretended to make a deposit when not authorized to do so, the original taking was unlawful, and the crime was larceny, and not embezzlement.
    Appeal from Jefferson 'Circuit Court; T. G. Parham, Judge;
    reversed.

      R. W. Wilson, R. L. Rogers and W. B. Sorrels, for appellant.

      H. W. Applegate, Attorney General, and E. W. Brockman, for appellee.
   Smith, J.

Appellant was convicted on his trial upon a charge of having embezzled certain money belonging to the Consumers’ Ice & Coal Company.

The first error assigned for the reversal of the judgment sentencing him to the penitentiary is the refusal of the court to grant his petition for a change of venue. It appears, however, that this petition was not filed until appellant had waived formal arraignment and entered his plea of not guilty and the impaneling of the jury to try the case had progressed to the point where four jurors had been found qualified and had been accepted both by appellant and the State. We think the petition was not filed in. apt time.

The point decided in the case of Clarkson v. State, 165 Ark. 459, has no application here. There the validity of a rule of court was involved which provided that a petition for change of venue would not be entertained by the court unless it were filed within #¡certain time before the case was called for trial. We held the rule was invalid as contravening the right to a change of venue, guaranteed alike by the Constitution and the statute. But in so holding we said: “Under the statute an accused has the right, at any time before' the commencement of a trial, to obtain a change of venue by complying with the requirements of the statute.”

There must, of necessitjq be a time within which the right to apply for a change of venue must be exercised, and beyond which time, if not then exercised, it must be held to have been waived, and that time is, we think, the commencement of the trial. If not exercised by or before that time, the right must be held to have been waived; and the trial from which this appeal is prosecuted had begun when the petition for change of venue was filed.

It is next assigned as error that the court erred in not discharging the panel of the jury and, ordering a new venire upon appellant’s motion that this be done. This motion was predicated upon testimony which was offered and heard by the court on the application for a change of venue. It was developed that all the members of the panel then present resided in or near Pine Bluff, where the trial occurred, and it is insisted that a showing was made that there existed against appellant a sentiment of hostility in that city which would prevent him from obtaining a fair trial. No showing was made or attempted that the regular panel of jurors then present was not regularly selected and summoned. Moreover, it appears that the jury was not completed from among the members of the regular panel, and the court thereafter made an order directing that a special venire of thirty-five jurors should be summoned from outside Pine Bluff. It further appears that defendant did not exhaust the peremptory challenges allowed him by law in impanelling the jury.

Appellant was the principal stockholder in and a director and the president of the Consumers’ Ice & Coal Company, a corporation!. The undisputed testimony showed that he had possession of $37,000 in money belonging to that company, which he did not pay over on demand. Appellant was engaged in the general brokerage business, which he conducted under the name of S. R. Morgan & Company, and it was the theory of the defense that the ice company’s money had been deposited with Morgan, doing business as S. R. Morgan & Company, under an agreement on the part of Morgan to pay to the ice company interest on the daily balances, and that the money admittedly in his hands was a mere loan which he was unable to repay, but which he had on several occasions offered to repay upon condition that the ice company pay an indebtedness alleged to be due by it to the Republic Power & Service Company, a corporation largely owned by Morgan.

It was the theory of the prosecution that Morgan dominated the ice company as well as certain other corporations in which he owned the controlling stock, and that the directors were mere “sign here” men, who did his every bidding, and that there was no necessary or proper relation between these corporations, yet appellant so related their affairs that he could use each of them to exploit the other.

The theory on which the conviction was asked, and was obtained by the State, is reflected in an instruction, numbered B, which reads as follows: “Even though you may believe that a resolution was passed by the board of directors of the Consumers’ Ice & Coal Company authorizing- the loaning of the funds of the company to S. R. Morgan & Company, and that a contract was entered into between the Consumers’ Ice & Coal Company and S. R. Morgan & Company in pursuance to this resolution, still,, if you believe beyond a reasonable doubt from all the facts and circumstances in this case that said resolution was passed as a subterfuge only to make that appear as legal which otherwise would not be, then the passage of such a resolution, if you believe one was passed, would not be a defense.”

Appellant earnestly insists that the giving of this instruction was error, for the reasons, first, that it is not the law in any case, and, second, there was no testimony to justify giving it in the instant case.

A summary of the testimony will be required to dispose of these assignments of error, and in doing so we give bo the testimony tending to support the verdict its highest probative value.

The Consumers’ Ice & Coal Company was a prosperous going concern on January 13, 1920, and was paying annually and regularly to its stockholders a dividend of ten per cent, and the stock had a book value of $1.75. On the date mentioned appellant acquired a majority of the stock, and new directors were elected, appellant being-one of these, and his brother another, and the other two were appellant’s employees and were dominated by him.

The ice company had a large revenue, and carried large daily balances in each of two banks in Pine Bluff. Neither of these banks had allowed the ice company any interest on these balances. Mclndoo was installed as manager after Morgan had obtained control of a majority of the stock of the ice company, and Mclndoo was later elected a director. Beginning April '20, 1920, Mclndoo began remitting to S. R. Morgan & Company various sums of ¡money in the form of checks, and this practice continued until November 29, 1921, by which time these remittances aggregated $31,657.45. Another item brought the total to the approximate sum of $37,000.This item arose out of the sale of certain treasury stock of the ice company, which was bought ¡by Morgan, and in payment of which he gave a draft on a bank which closed its doors before the draft was presented for payment. Thereafter the draft was charged to Morgan both on the books of the ice company and on the books of Morgan & Company. The remittances composing these sums appeared on the books of the ice company, which Mclndoo caused to be entered by the company’s bookkeeper. It is further contended by the State that Morgan appropriated and embezzled certain other assets of the ice company, all of which, together, totaled $85,000.

The items beyond the $37,000 may be disposed of by saying that, if the ice company sustained those losses, there was nothing connected with the losses which would support the charge of embezzlement. In fact, the testimony in regard thereto was offered as tending to show Morgan’s unlawful purpose to appropriate the money which admittedly came to his hands, and we therefore confine our consideration to the items making up the total of $37,000, which the indictment alleges Morgan embezzled.

The undisputed testimony shows that it appeared from the books of both the ice company and S. R. Morgan & Company that the ice company had in the hands of'S. R. Morgan & Company about $37,000, and Mclndoo, who, as we have said, became the manager of the ice company after Morgan acquired control thereof, testified as to the times when and the circumstances under which this money reached the hands of Morgan & Company, which, as we have also said, was the name under which appellant Morgan conducted a general brokerage business. Mclndoo was called as a witness for the State, but it is insisted that he was very friendly to appellant, and was entirely subject to his orders.

Mclndoo’s testimony was to the effect that at a meeting of the board of directors attention was called to the fact that the ice company carried large daily balances in two banks in Pine Bluff, on which no interest was being received, and Morgan made the proposition that, if the banks would pay no interest, S. R. Morgan & Company would do so, and would pay at the rate of seven per cent, per annum, and it was decided to accept his proposition, and thereafter remittances were made to him until the sum so deposited exceeded $30,000.

Mclndoo testified that at a meeting of the board of directors the proposition of depositing the ice company’s surplus with S. R. Morgan & Company was considered, and it was then unanimously agreed by the directors that Morgan’s proposition should be accepted, but no record of this action was entered on the minutes of the corporation at that time. The deposits were made pursuant to this action. Later, after the minority stockholders had become dissatisfied with the management of the company’s affairs, it was decided to embody this action, which had been previously taken, in the .form of a resolution, and this was done at a meeting of the .board of directors held on the 12th of July, 1921.

If the transactions were what they thus prima facie appeared to be, there would be nothing to this case. A charge of embezzlement could not be predicated upon the mere failure to repay loans to Morgan in the form of deposits. But the State insists that these purported deposits were mere subterfuges to conceal the real purpose which Morgan had of appropriating the ice company’s money.

The instruction set out above submits that issue. The circumstances which warranted the submission of that issue, in addition to those stated, are that Mclndoo, after stating that the deposits were authorized at a meeting of the board of directors, testified on his cross-examination as follows:

“Q. The verbal contract you are talking about between Morgan and the directors of the Consumers ’ Ice & Coal Company — was that entered into between the board of directors as such, or as individuals? A. Not by the board of directors. Individuals. Q. Who had that agreement? A. Morgan and Miller and myself talked it over at one time. Q. When was that? A. Early in 1920. Sometime about April -or May. Q. You and Morgan and Miller? A. Yes sir; and later on I discussed it with M. B. Morgan, who w|as later elected a member of the board. Q. There never was any resolution of the board of directors as such authorizing that? A. No sir.”

It is insisted on the part of the prosecution that this resolution was never adopted, or, if adopted, that it was a mere subterfuge. In support of this contention, it is insisted other resolutions relating to the management and sale of certain property belonging to the ice company, which were never in fact adopted by the board of directors, were entered in the minute book of the ice company. One of these important meetings was supposed to have been held on the 26th of January, 1922. There was testimony on the part of the State that a receiver took charge of the affairs of the ice company on December 22, 1921. At that time the -minute book of the directors’ meeting did not extend beyond page 119 and did not show the meeting of January 26, 1922. The receivership was dissolved on January 26, 1922, but on March 4, 1922, a receiver was- again appointed, and, when the receiver again took over the management of the ice company’s affairs and its records, the minute book then showed the entry of the proceedings of a meeting of the board of directors held January 26, 1922. It was recited in the minutes of this -meeting that it was held at the office of ;S. R. Morgan & Company at Little Rock at 4 o’clock p. m., which adjourned over at the same place at 8 o ’clock, and that Morgan was present and presided at these meetings. There was testimony from wfhich the jury might have found that Morgan was not in Little Rock at either of those hours, hut was in fact in Pine Bluff both hours.

But it is very earnestly insisted by counsel for appellant that, if it be said that the testimony is sufficient to support a finding that the transaction was not in the nature of a loan by way of deposits made, the offense, if anything, was larceny, and not embezzlement.

We have concluded that counsel for appellant are right in this contention. The transaction was either a loan by way of deposits made, as claimed by appellant, or it was a trick or device, or, to quote from the language of instruction B, set out above, it was a mere .subterfuge to make that appear as legal which would not otherwise be so. In such event the crime committed would be larceny, and not embezzlement.

The 'crimes of larceny and embezzlement are kindred offenses, and the difference between them is sometimes difficult to distinguish. But they are different offenses, and different proof is required to sustain one from that required to sustain the other. Because of this similarity and the consequent contingency that the testimony may show the commission of the one rather than the other, it is provided by statute that a single indictment may charge the commission of both in separate counts, and when the offenses are thus charged in a single indictment the State is not required to elect upon which charge the prosecution will be conducted. Hall v. State, 161 Ark. 453. The State may go to the jury upon both charges, leaving it to the jury to decide whether there was a wrongful taking or a wrongful conversion, one offense being larceny, the other embezzlement. The proof of a wrongful taking is essential to support a conviction for larceny, but that proof will not suffice, to sustain the charge of embezzlement, nor will the proof of a wrongful conversion sustain the charge of larceny.

T|he distinction 'between these offenses has been pointed out in numerous decisions of this court, one of the latest being that of Hall v. State, supra. It was there contended that the defendant, who had been indicted for both larceny and embezzlement, had been wrongfully convicted of larceny, when, if guilty of any offense, it was that of embezzlement. We held there, however, that the defendant had come into the possession of the money wrongfully, and that his conversion thereof constituted a wrongful taking, and was therefore larceny; but we there also said: “He was never rightfully in possession of the warrant or the money derived by cashing it, and he was not therefore guilty of embezzlement. ’ ’

The court below properly charged the jury that, if the money was deposited with Morgan, no offense was committed, for a mere failure to repay a loan cannot be converted into a crime; and if the transaction was not a loan, then the original taking was wrongful — was accomplished by a subterfuge — and the crime was larceny, and not embezzlement.

It is settled law that where one deposits money as with a bank, the title to the money passes to the bank and the relation of debtor and creditor arises between the depositor and the depository. So here, if this money was deposited with Morgan and the transaction was what it appeared to be, a mere loan was made. If the apparent deposit was a mere trick or subterfuge whereby Morgan acquired possession of the money, the original taking was wrongful, and the crime was larceny, and not embezzlement.

In the case of Arkansas National Bank v. Johnson, 122 Ark. 1, the owner of the property had parted with its possession consciously and purposely, but had been induced to do so through a trick or device, and we said the crime committed was larceny.

The distinction ¡between the crimes of larceny and embezzlement and another kindred offense, that of obtaining money by false pretense, was pointed out in that opinion by a quotation which we there approved from the case of People v. Tomlinson, 102 Cal. 19, 36 Pac. 506, reading as follow's: “ ‘Where one honestly receives the possession of goods upon a trust, and, after receiving them, fraudulently converts them to his own use, it is a case of embezzlement. If the possession has ¡been obtained by fraud, trick or device, and the owner of it intends to part with his title when he-gives up’possession, the offense, if any, is obtaining money 'by false pretenses. t But where the possession has been obtained through a trick or device, with the intent, at the time the party receives it, to convert the same to his own use, and the owner -of the property parts merely with the possession, and not with the title, the offense is larceny.’ (Citing cases).”

If M'dndoo had the authority to make the remittances to Morgan by way of deposits, the failure to repay would be neither larceny nor embezzlement. If he was a mere confederate, and was pretending to do a thing which was not in fact being done, that is, depositing the money, the original taking was unlawful, and the crime was that of larceny.

We conclude therefore that the testimony in the case does not sustain the charge upon which appellant was convicted and the judgment must therefore be reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Taylor v. State.
    Opinion delivered October 19, 1925.
    1. ■ , Indictment and information — signature of foreman. — Where ' the indorsement of “a true bill” on an indictment was signed by the foreman, this meets the requirement of Crawford & Moses’ - Digest, § 3009, and it is unnecessary that the indictment itself be signed by such foreman.
    2. Indictment and information- — allegation of time — clerical misprision. — That -an indictment by clerical misprisi-on alleges an impossible date for the commission -of the crime does not aifect the validity or sufficiency of the indictment.
    3. Intoxicating liquors — unlawful sale — evidence.—(Evidence held to sustain a conviction of unlawfully selling intoxicating liquors.
    4. Witnesses — impeachment.—It was not error to refuse to -permit defendant in a criminal prosecution to show that the prosecuting witness was in jail on indictment for burglary and grand larceny at the time he was testifying.
    5. Criminal law* — proof of other offenses. — In a prosecution for unlawfully selling intoxicating liquor, a witness may testify that he searched defendant’s house on other occasions and found'whiskey, as such testimony tended to show the business in which defendant was engaged.
    ■ Appeal from Sebastian Circuit Court, Fort Smith District; J ohm, E. Tatum, Judge;
    affirmed.

      T. 8. Osborne and'John Hiner, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the Fort Smith District of -the Sebastian Circuit Court on the 5th day of June, 1925, for the crime of selling intoxicating liquor on the 6th day of October, 1925. He moved to quash the indictment for the alleged reason that same did not bear the signature of the foreman of thé grand jury. ' The motion was overruled over the objection and exception of appellant. At -a later date, appellant was tried, convicted, and adjudged to -serve a term -of -one year in the.State penitentiary as a punishment therefor.

An -appeal has been duly prosecuted to' this' court from the judgment of conviction.

Appellant first contends for a reversal of the judgment upon the following alleged grounds; first, that the indictment was not signed by the foreman of the grand jury; and, second, that the accusation preceded the commission of the crime.

The record reflects that the indictment was indorsed by the foreman of the grand jury. This meets the requirement of the statute. The statute does not require that the indictment be signed by the foreman. Crawford & Moses’ Digest, § 3009.

Since an accusation implies the commission of a crime, it is apparent that the alleged date thereof was a clerical error and did not affect the validity or sufficiency of the indictment. Conrand v. State, 56 Ark. 559; Cooper v. State, 145 Ark. 403.

Appellant’s next assignment of error is that the proof is insufficient to support the verdict because it tended to show that the crime was committed on an impossible date, towit: October 6, 1925. Appellant is mistaken in this contention, for John Henry Morgan testified that he bought intoxicating liquor from appellant on the 6th day of October, and again on the first Monday after Easter; that he paid $3.00 ,a pint for it; that when he bought the whiskey on the first Sunday in October, Jim, whom he had known about a year and one-half, was there. The indictment was returned on the 5th day of June, 1925. Appellant was tried on June 24, 1925. If, on that date, John Henry Morgan had only known Jim, who was present when the sale was made, for a year and one-half, then the sale must have occurred within a year and one-half from the date of the trial, which would be within three years next before the indictment was returned. It follows that the sales testified to by John Henry Morgan were necessarily on the 6th day of October, 1924, and the Easter next preceding the date of the trial. There was no Easter or October between the date of the indictment and the date of the trial. The evidence therefore is sufficient to support the verdict.

Appellant’s next assignment of error is that the trial court refused to allow appellant to show that the prosecuting witness was in jail for trial on indictment for burglary and grand larceny at the time he was testifying in this case, as tending to affect his credibility. The rule is that a witness may he asked concerning a conviction as affecting his credibility, but not asked concerning indictments or mere accusations. Parnell v. State, 163 Ark. 316.

Appellant’s next assignment of error is that the trial court erred in permitting D. M. Willis to testify that he searched defendant’s house on other occasions and found whiskey. This testimony was admissible as a circumstance tending to show the business in which appellant was engaged. Mobley v. State, 135 Ark. 475; Noyes v. State, 161 Ark. 340.

Appellant’s next assignment of error is that the court erred in giving instruction No. 1, for the alleged reason that there is no evidence tending to show that appellant sold intoxicating liquor within three years next before the finding -of the indictment. As stated above, the appellant is mistaken in his construction of the testimony. Morgan’s testimony tended to show that the liquor was sold within a year and one-half before the day he was testifying.

Appellant has argued other assignments of error, which are not properly before this court either because they were not brought into the record by proper exception' or because the exceptions were not preserved in his motion for a new trial.

No error appearing, the judgment is affirmed.


text:
    Faulkner Lake Drainage District v. Williams.
    Opinion delivered October 19, 1925.
    Drains — mandamus to levy on assessed benefits. — -Both at common •law and under Crawford & Moses’ Digest, § 3620, mandamus will lie to compel the commissioners of a drainage district to levy and collect a sum out of the assessed and unused benefits of the property in the district sufficient to pay a judgment against the district.
    Appeal from Pulaski 'Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Charles Jacobson and Rose, Hemingway, Cantrell <& Loughborough, for appellant.

      Coleman, Robinson, House & Riddick, for appellee.
   Humphreys, J.

This is an appeal from the judgment of the Circuit 'Court of Pulaski County rendered in a mandamus proceeding, compelling appellants to petition the county court to increase the levy, over a period of five years or more, on the assessments of benefits to the lands in the Faulkner Lake Drainage District, 2.3% for the purpose of paying a judgment in the sum of $11,040, -which appellee- obtained in said court against said district. The facts in the case are undisputed, and, briefly stated, are as follows: The assessment of benefits to lands in said district totaled, after being increased by the Legislature, $166,672.90. These assessments have been'reduced $2,882.62 by reason of the forfeiture of certain lands in the district to the State for the non-payment of 'taxes, and $4,363.20 by lands taken-from appellee in the construction of the improvement in the district, leaving a total balance of assessed benefits of $159,192.56, which bears 6 per cent, interest. In order to make the improvements in the district, two interest-bearing bond issues were made by the commissioners, one on November 1,1916 for $75,000 bearing 5 per cent, interest, ■and the other on May 1, 1920, for $55,000 bearing 6 per cent, interest. These bonds were secured by a mortgage upon the total assessed benefits to the land in the district by the commissioners pursuant to the statute creating the district. The bonds matured- serially up to and including the year 1936, and those which have matured, together with the interest on 'both issues, have been paid out of the levy made, pursuant to law, on the assessments. After sufficient levy was made to pay the bonds and interest thereon, and the deductions for forfeited lands, and land taken in construction was made, it left a margin of $29,192.56 in assessed benefits. On June 26,192Q, appellee obtained a judgment against the district for $11,040 f or damages resulting to her land in the construction of the improvement, and the purpose of this suit is to collect same by an additional levy upon the benefits covering a period of five years or more.

Appellants contend for a reversal of the judgment upon two grounds: first, that the circuit court was without jurisdiction to make the final order appealed from herein; and second, to order the-commissioners to apply for- a levy upon benefits which had been pledged to secure the bonded indebtedness.

The circuit court is the proper forum in which to institute mandamus proceedings to compel the performance of ministerial acts. Mandamus is essentially a proceeding at law. In the instant case, however, authority for the institution of this suit in the circuit court is found in § 3620 of Crawford & Moses’ Digest.

It is true that the benefits sought to be reached by levy to liquidate appellee’s judgment were pledged to secure the two bond issues, but there is a margin of about $29,000 of benefits, which is ample to take care of reasonable eventualities which may arise, and to pay appellee’s, judgment. It would indeed be a harsh rule that would tie up unused benefits for a long 'period of time, and thereby prevent creditors from collecting their just claims from an improvement district all because the commissioners happened to pledge more of them than necessary to secure money for constructing the improvements. In the instant case, a large part of the bonded indebtedness, including accrued interest, has been paid, and the levy which was made will be ample to pay the balanee, leaving a surplus of benefits sufficient in amount to meet all reasonable eventualities and vicissitudes which may occur in the life of the district, and to pay appellee’s judgment. Outside of a lew forfeitures of land to the State and the expense of collecting the taxes, there cannot well be any further shrinkage of the benefits. The sound rule is to require an improvement district to pay all its «debts? secured and unsecured, if the assessed benefits are 'amply sufficient to do so.

For the reasons assigned, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Stoddard v. State.
    Opinion delivered October 26, 1925.
    1. Homicide — evidence op threats. — Tío convey a threat, no particular words are necessary; any language being sufficient which ■shows, either on its face or in connection with the circumstances under which it was spoken or written and with the relations of the parties, though it consists merely of inuendoes and suggestions.
    2. Homicide — evidence of threat. — In a prosecution for murder, a witness for the defense offered to testify that decedent asked witness whether defendant was afraid of him, to which witness replied that defendant was afraid that decedent would get the drops on him, to which decedent replied that he “would not get behind a tree to get no man,” and that if he got defendant in the right kind of a crowd he was going to show what there was to him. Held admissible as tending to prove an implied threat and upon the disputed issue as to who was the aggressor in the combat.
    3. Homicide — evidence—excuse or justification. — In a murder case evidence that the defendant’s wife had informed him that deceased had made indecent proposals to her was properly excluded, both because it was hearsay and because the making of such proposals was no excuse or justification for the homicide.
    4. Witness — impeachment on cross-examination. — Where witnesses testified on direct examination that they knew deceased and knew that his reputation was good, the fact that they admitted on cross-examination that they had not heard his reputation discussed did not render their testimony incompetent, but merely went to its weight and credibility.

      5. Homicide — instruction as to threats.- — -An instruction that communicated threats made by deceased against the defendant could be considered only in determining who was the aggressor was erroneous in excluding consideration of such threats in determining whether defendant acted under an honest belief that ■he was in danger of losing his own life or receiving great bodily injury at the time of the killing.
    6. Homicide — self-defense—instruction.—In a prosecution for murder, defendant is entitled to an affirmative instruction that if the danger appeared to him, acting without fault or carelessness, to be so pressing and urgent that the killing was necessary, and he honestly so believed, he would be justified.
    7. Homicide — self defense — instruction.—An instruction in a prosecution for murder that the killing would be justified “if the defendant believed there was a reasonably apparent necessity to kill to save himself” was properly refused, as there must have been on the defendant’s part a belief, honestly entertained, that there was a real, and not an apparent, necessity for the killing.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    reversed.

      W. J. Lanier, R. D. Smith and H. P. Smith, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted by tbe grand jury of St. Francis County for tbe crime of murder in the first degree, alleged to have been committed by killing Arthur Hamilton, and on change of venue to Lee County there was a trial of the cause, which resulted in appellant’s conviction of murder in the second degree-.

The killing of Hamilton by appellant is undisputed, and it occurred in the daytime on a street in the town or village of Colt, in St. Francis County. There were many eye-witnesses — some who claimed to have seen the whole of the encounter, and others part of it. Both men were armed, and each emptied his pistol in firing at the other. The only conflict in the testimony is as to who was the aggressor. There had been ill feeling’ between the two men, and they met in Colt on the day the killing occurred, neither of them being a resident of the town. Appellant was living on a farm a few miles distant from Colt, and Hamilton was living at Forrest City at that time, having returned after an absence from the .State. Appellant came to town first, and claimed that he was there by appointment with a physician, who was to examine a boil on appellant’s arm or shoulder which the physician had previously lanced. Hamilton came into town later in a buggy, and appellant at the time was standing near one of the stores. Hamilton alighted from his buggy and stood for a time talking with an acquaintance named Holt, and the two men walked along or across the street towards a bridge, when the firing began between appellant and Hamilton.

Several of the witnesses introduced by the State testified that they observed the commencement of the encounter, and saw appellant looking intently at Hamilton as the latter walked along with Holt; that appellant drew his pistol and fired the first shot, and that after appellant fired the second shot, Hamilton drew his pistol and advanced upon appellant, firing at him. Appellant, after firing all the loads in his pistol, turned and ran, Hamilton following until he sank down from a fatal wound which he had received from one of appellant’s shots.

There is no direct testimony as to which of appellant’s shots struck Hamilton except appellant’s own testimony, and he said that it was the second shot he fired. Hamilton was shot in the breast, and the ball went through his body and made its exit in the back, near the shoulder-blade.

Appellant and other witnesses introduced by him testified that Hamilton drew his pistol and fired >at appellant before the latter had made any demonstration, and that the first shot fired by appellant was after he had been fired upon by Hamilton.

Appellant proved certain communicated threats made by deceased, aud also attacked the general reputation of deceased as a dangerous and turbulent nian. The State responded to this proof by introducing' testimony showing- that the reputation of deceased for peace and quietude was good. ¡

The court permitted appellant to introduce several witnesses to prove threats against appellant on the part of deceased and instructed the jury that such proof should he considered for the purpose of determining who was the aggressor in the encounter, and also for the purpose of determining “whether or not the defendant acted in an honest belief that he was in danger of losing his own life, or receiving great bodily injury, at the time of the killing.”

The court refused to permit witness May to testify concerning what .appellant contends was a threat on the part of Hamilton towards appellant, and that ruling of the court is assigned as error. The statement of the witness was heard by the court in the absence of the jury and excluded from consideration of the jury. The testimony of the witness was that he had a conversation with Hamilton about a month before the fatal encounter between the latter and appellant, and the conversation was related by the witness as follows:

‘‘Q. Now, Mr. May go ahead and tell what was said to you there by Mr. Hamilton. A. When he asked me, ‘did I know Mr. Stoddard, ’ I told him I did, and he asked me had I heard they wasn’t good friends, and I told bim I had, and he asked me was Mr. Stoddard afraid of him, and I told him I didn’t think so, and I said in a way he might be, and he says, ‘In what way?’ and I said, ‘He is kind o’ afraid you will take the drop on him.’ ‘Now,’ I says, ‘that is what several people told me at Colt,’ but he says, ‘You know me well enough to know that Arthur Hamilton wouldn’t get behind a tree to get no man,’ and he says, ‘If I get Stoddard in the right kind of a crowd, I am going to show what there was to him. ’ Q. How long after that was it before they got into it? A. About a month. Q. He said if he ever got him in the right kind of crowd, he was going to show you fellows what there was to him.”

We are of the opinion that the court erred in excluding this testimony. There is no proof that this alleged threat was communicated to appellant, hut, if the language used, under the circumstances, was insufficient to constitute a threat, it was, nevertheless, competent for the purpose of arriving at a conclusion as to who was the aggressor in the difficulty. The language used by deceased to the witness didnot contain an express threat, in so many words, but the language was of such import that the jury might have concluded that it was intended as a threat. It was a question for the jury to determine what weight to give to the language, and to determine the degree of its intensity as an implied threat, thus shedding light upon the deceased’s state of mind towards appellant at that time. The proper rule on this subject is stated in an enclyclopedia as follows:

“No particular words are necessary to convey a threat. Any language which shows this, either on its face or in connection with the circumstances under which it was spoken or written, and with the relations of the parties, is sufficient, though it consists merely of innuendoes and suggestions. ” 28 A. & E. Ene. of Law, 145.

This court, in Brown v. State, 55 Ark. 593, showing it to be in the mind of the court that a threat need not be in express language, said: “The declaration of the deceased which the defendant offered to prove by Mrs. Medlin was in the nature of a threat made by the deceased a few days before his death, and was competent evidence. In connection with the other threats admitted by the court the declaration referred to was a circumstance proper to be considered by the jury as tending to show that the deceased was the aggressor.” The statement of deceased to witness May, as related by the latter, shows that it was intended as in the nature of a threat. The first inquiry of deceased was whether or not the witness was-a friend of appellant’s, and then he asked whether or not appellant was afraid of him. "When told that appellant was afraid that deceased might take advantage of him, he declared in effect that he would not “get behind a tree to get no man,” and that “If I get Stoddard in the right kind of a crowd, I am going to show what there is to him. ’ ’ This clearly implied a threat to provoke some sort of difficulty with appellant — in other words, to test his mettle in an encounter, and to show to those present the extent of appellant’s courage. The error in excluding this testimony must be treated as prejudicial, for we have no means of determining what effect it might have had on the minds of the jury. There was a sharp conflict in the testimony as to who was the aggressor, and, though other witnesses testified concerning threats, the excluded testimony of witness May might have turned the scales in appellant’s favor.

Appellant was introduced as a witness in his own behalf, and he detailed the association between himself and deceased since they ¡became acquainted, about two years before the killing occurred. He testified that he began working for deceased as bookkeeper, and later became the latter’s tenant on a farm. He testified concerning the state of feeling between himself and deceased for several months prior to the killing, and stated, among other things, that his wife had informed him that the deceased had insulted her by making indecent proposals. This testimony was repeatedly offered in the course of appellant’s examination by counsel, and in each instance the court excluded it. We can perceive no theory upon which this testimony was admissible, and we are of the opinion that the court properly excluded it. The fact that deceased had made indecent proposals to appellant’s wife could not be established by hearsay testimony, and the offered testimony was purely hearsay. Neither the fact that deceased made such proposals, or that appellant received information that he had done so, afforded any excuse or justification for the homicide (Fisher v. State, 149 Ark. 48; Flowers v. State, 158 Ark. 295), and the receipt of such information could not even be considered in mitigation unless it came so close in point of time to the commission of the offense as to arouse a sudden heat of passion which continued without let or hindrance down to the fatal encounter. Flowers v. State, supra. Counsel for appellant insist that this testimony comes within the rule announced by this court in Prewitt v. State, 150 Ark. 279. We do not think that the decision in that case has any bearing upon the question now under discussion. The testimony of a conversation between appellant’s wife and the mother of deceased was held admissible for the purpose of corroborating the appellant in his statement that he had not made derogatory remarks concerning deceased’s mother, as charged against him. No such question is presented in the present case.

After appellant had introduced testimony attacking the reputation of deceased, the State introduced a number of witnesses to prove that the reputation of deceased was good. All of the witnesses who testified on this subject stated that they had been personally acquainted with deceased, and knew his reputation .in the neighborhood in which he lived, but on cross-examination some of them stated that they had never heard his reputation discussed. Counsel for appellant moved in each instance that the testimony be excluded, and the refusal of the court to do so is assigned as error. We do not think that the court erred in refusing to exclude this testimony because the witnesses said that they had not discussed the reputation of deceased with other persons. Each of the witnesses stated, on direct examination, that they were acquainted with deceased, and knew his reputation. This qualified them to testify on the subject. The fact that they admitted on cross-examination that they had not heard the reputation of deceased discussed by any one did not render the testimony incompetent, but merely went to its weight and to the credibility of the witnesses. There was therefore no error committed in this regard.

Each of the paragraphs of the court’s charge to the jury was objected to, and exceptions duly saved. We have examined the instructions, and find no error in any of them except in No. 3, which reads as follows:

“You are instructed that, even though you may find that the deceased had made some threats against the defendant, and that these threats had been communicated to the defendant, still this would not justify the defendant in talcing the life of the deceased, but can only be considered by you in determining who was the aggressor at the time the deceased was killed.”

This instruction was erroneous in telling the jury that proof of threats could only be considered in determining who was the aggressor. In another instruction given immediately following this one, the court told the jury that such testimony could be considered, not only to determine who was the aggressor, but also to determine “whether or not the defendant acted under an honest belief that he was in danger of losing his own life or receiving great bodily injury at the time of the killing.” The erroneous omission of this statement from instruction No. 3 may have resulted as a mere inadvertence, and, as the judgment is to be reversed on another ground, we need not determine whether or not the defect in instruction No. 3 would cause a reversal in the absence of a specific objection. We merely call attention to the defect now so that it will not occur in the next trial. .

Appellant requested seventeen instructions, all of which the court refused. The same instructions may not be asked in the next trial, and it is unnecessary to discuss them. There is one feature, however, which, we think, calls for discussion in view of the fact that the same ques-' tion may arise in another trial. The court gave the following, among other, instructions at the request of the prosecuting attorney:

“No. 1. There has been some evidence introduced bearing upon the bad character of the deceased prior to the commission of the crime charged in the indictment ■ in this ease; and in this connection you are instructed that you are to consider this evidence for the purpose of determining* whether or not deceased was making an attack upon the defendant at the time of the killing, or whether the defendant honestly believed, at the time, without fault or carelessness on his part, that the deceased was about to take his life or do him a great bodily injury.”
“No. 6. You are instructed that the right of self-defense is founded solely on the principle of necessity; and, before the plea is available in this case, it must have appeared to the defendant, acting without fault or carelessness on his part, not only that danger to him at the hands of the deceased was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm ^t the hands of the deceased, the killing of the deceased was necessary. ’ ’

It will be observed that these instructions, particularly No. 6, stated in substance that the plea of self-defense is not ¡available unless it appeared to the defendant, acting without fault or carelessness on his part, that the danger was so pressing or urgent that, to save himself from immediate death or bodily harm, the killing* was necessary. 'These instructions were correct as far as they went, but appellant was entitled to an instruction telling the jury affirmatively that, if the danger appeared to the defendant, acting* without fault or carelessness, to be so pressing and urgent that the killing was neces- ■ sary, and he honestly believed that it was so, he would be justified. Several instructions on this subject were asked iby appellant but refused. One of them (No. 17) reads as follows:

“You are instructed that, to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary, but, if the defendant believed there was a reasonably apparent necessity to kill to save himself, though to the jury there may not seem to have been any such necessity, and if in fact there was no such necessity, yet it is sufficient if the defendant honestly thought, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life or to prevent great bodily injury — if you find that to the defendant there appeared such facts, then you will acquit him.”

That instruction was not accurate, and the court was therefore not hound to give it, because it contained the words, “reasonably apparent.” The thing that affords justification is that the necessity to ldll appears to be real and not merely reasonably apparent. The necessity may not actually exist, but it must so appear to the accused acting without fault or carelessness, and he mnst honestly believe so before he is justified. There must be a belief on the part of the accused, honestly entertained, that there is a real necessity — not merely a belief that there .is a reasonably apparent necessity. The distinction may seem technical, but the trial court in giving or refusing instructions has the right to refuse one which is not technically correct. We merely mentioned this to show that while the court was correct in refusing this particular instruction, the request for one on this subject should be granted. Other instructions on the subject are open to the same objection.

For the error indicated in refusing to admit the testimony of witness May, the judgment is reversed, and the cause remanded for a new trial.