text:
    Sharp v. State.
    Opinion delivered January 16, 1928.
    1. Grand jury — witness properly excused when. — Under Crawford & Moses’ Dig., § 6366, it was not error to excuse and substitute another for a grand juror, who was a witness for defendant, when the latter’s case was before the grand jury.
    2. Indictment and information — motion to quash indictment.— Where, on the day set for the trial of a criminal case, a motion was made to quash the indictment on the ground that it was returned through coercion, the motion was properly overruled where no diligence was shown to have the grand jurors present to testify in support of the motion.
    3. Homicide — admissibility of evidence. — In a murder trial, it was error to exclude the testimony of a justice of the peace, contradicting that of the sheriff, as to what the defendant said as to the shooting, on the ground that the justice could not remember whether the sheriff was present at the time, where other witnesses testified that the sheriff was present and that the defendant made the statement to him.
    4. Criminal law — exclusion of evidence — prejudice.—In a murder trial, excluded testimony of a justice of the peace contradicting that of the sheriff as to how the defendant said that the .shooting occurred, was not merely cumulative, though he would have 'been fourth to testify on such point, in view of his long residence and standing in the community.
    5. Homicide — exclusion of testimony — prejudice.—Exclusion of the testimony of a justice of the peace, contradicting that of the sheriff in a murder trial, as to how defendant said that the shooting occurred, was not prejudicial t» defendant, where his own testimony showed that he voluntarily entered into the affray.
    6. Criminal law — charge to grand jury — failure to object.— Where defendant did not object to the court’s instruction to the grand jury in the presence and hearing of three members of the .petit jury which tried defendant, at the time when such petit jurors were examined as to their qualifications, he estopped himself from afterwards making such objection.
    7. Criminal law— impeachment of witness. — In a murder trial, admission of testimony on cross-examination of a witness who had testified as to deceased’s bad reputation, that he had heard, but did not believe, that the man who accused deceased of killing certain persons made affidavit that defendant employed him to make such statements, held not reversible error because defendant’s reputation had not been put in issue, such testimony being admissible to test the witness’ credibility.
    8. Homicide — sufficiency of evidence. — .Evidence held sufficient to sustain a conviction of involuntary manslaughter.
    9. Homicide — self-defense.—Where defendant armed himself and went to a place where deceased and his companions would nec- • essarily, pass, this amounted to a voluntary entry into conflict, and precluded him from pleading self-defense, though he testified that he did not open fire until they leveled their guns upon him.
    10. Homicide. — prejudice.—One cannot complain of being convicted of a lower degree of homicide than the evidence warranted.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      Compere & Compere, for appellant.

      H. W. Applegate, Attorney G-eneral, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Ashley County for the crime of murder in the first degree for shooting and 'killing Bill Jones, on May 23, 1927, who was passing his premises in an automobile, in company with Boy Bobbins, Lee Bobbins and Bank Norrell. Bill Crow Sharp, son of appellant, and Buss Jordan were with appellant when the killing occurred, and all three were indicted fur the crime. Appellant interposed the plea of self-defense to the charge, and, on the trial of the cause, was convicted of involuntary manslaughter, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this -appeal.

Appellant has assigned as reversible error the action of the trial court in temporarily excusing Jim Wilcoxson, a regular grand, juror, from the grand jury, when appellant’s case was before said grand jury for investigation and consideration, and in summoning another to serve in his place. Jim Wilcoxson was excused on the motion of employed attorney for the State because he was a witness for appellant. Section 6366 of Crawford & Moses’ Digest provides that the trial court may excuse for good cause any who are not competent jurymen. Certainly a witness for one whose case is being investigated by the grand jury is not a competent juror. The court did not commit reversible error in substituting another to serve in the place of Wilcoxson.

Appellant also assigns as reversible error the refusal of the court to quash the indictment at his request on the alleged g’round that it was returned through coercion, and not voluntarily. This motion was made on the day the case was set for trial, and the members of the grand jury had not been subpoenaed to testify in support of the motion, and were not present so that they might be called without delaying the trial oif the cause. The court refused to delay the trial in order that the grand jurors might be subpoenaed to appear and testify relative to the charge of coercion. As no diligence was shown to have the jurymen present, the court was warranted in treating the motion as dilatory.

Appellant also assigns as reversible error the refusal of the court to allow D. A. Pearson, a justice of the peace, to tell how appellant said the shooting occurred, in contradiction of the testimony of J. C. Riley, the sheriff, who testified that, when he reached the scene of the tragedy, he asked .appellant if J ones and those with him were trying to kill him when he shot at them, and he said “No”; that he then asked him if they had their guns raised to .shoot at the time he shot a.t them, and he said, “No,” that, Gf...... damn them, he did not give them a chance; that he then asked him if he would shoot la man Who was not trying to kill him, and he said, well, he figured that he had to kill them, and that this was the best chance he would ever have.

Appellant offered to prove by D. A. Pearson that he would say, if allowed to answer, that appellant said that, before he fired at Norrell and Jones, Norrell had raised his gun to fire, and that Jones was trying to get his gun up, but was having trouble getting it around because' the barrel hit the top' of the car; and that appellant did not say that they did not give him a chance, and that he thought that he would have to kill them some time, and that this would be about the best chance he would ever get.

The court excluded the testimony of Pearson because he would not state thiat.J. C. Eiley was present when he heard appellant make the statement. 'Three other witnesses testified that Pearson was present when appellant told Eiley how the shooting occurred. One was Jordan, jointly indicted with appellant. Another was Pugh, who was sick, and testified by deposition. The third was Peek Watson. None of these were officers. All three contradicted the sheriff1 relative to the statement he said appellant made to him as to how the killing occurred. It was error to exclude Pearson’s testimony, either upon the ground that Pearson could not remember whether Eiley was present when appellant made the statement, or because it was cumulative. Other witnesses testified that Eiley was present,, and that appellant was addressing himsellf to Eiley when he made the statement. If Pearson had been permitted to testify, he would have been the fourth to testify on that point, but we do not regard the testimony as merely cumulative. Pearson was an officer who had lived for sixteen years in the community, and, on account of his standing, muela weight might have beeai accorded his statemeait. Toaaching upon this point, it was suggested by the coaart, in the case of Sheppard v. State, 120 Ark. 160, 179 S. W. 168, that the testimony of a witness whose standiaag would have carried more weight than that of others should be admitted.

Although, error to exclude Pearson’s testimony, appellant suffered no prejudice on account of the exclusion thereof, for the reason that, according to his own statement, he voluntarily entered into the shooting affray, and therefore he cannot avail himself of the claim that he shot Jones in necessary self-defense. Appellant testified that, after hearing that Jones, and Norrell had threatened to kill him, and after being informed that they passed his premises with their guns, en route to a small village the other side of their home, he armed himself and took his station at the little tenement house 'on his premises near the road by which the deceased would return, for the purpose of defending himself in case he was attacked. It was unnecessary for his protection that' he go down by the roadside, armed, where deceased would probably pass on his return. He could easily have avoided the difficulty by remaining at his own residence, which was, in the eye of the law, his castle. It would not have been a cowardly act to do so. He could have defended himself there as well, if not better, than on the roadside, had they attempted to take his life.

Appellant also assigns as reversible error certain remarks made by the court in instructing the jury that indicted him, which remarks were made in the presence and hearing of N. T. Watson, Eugene Bunn, and J. R. Hester, who were members of the petit jury who tried him. It is unnecessary to set out that portion .of the charge of the court now objected to. The objection was not made when the petit jurors were examined touching their qualifications. That was the time for appellant to have spoken, and, not having done so, he estopped himself from afterwards making the objection.

Appellant also' assigns as reversible error the admission of certain testimony of Peck Watson, on the ground that appellant’s reputation had not been put in issue. The interrogatory and answer are as follows:

“Q. You know, too, that the man who accused Bill Jones and Bank Norrell of the killing of Sam Meeks made an affidavit that this defendant, T. J. Sharp, employed him to make that statement and swear that these two paid him to kill Sam Meeks, and that he would keep him out of jail if he would swear that?.A. I heard it, but did not believe it. ”

This interrogatory was propounded and answered on cross-examination of Peck Watson, who had testified that the reputations of Bank Norrell and Bill Jones were bad, when he was being questioned as to certain other specific acts when this testimony was developed, and it was admitted for the purpose of testing the credibility of the witness and not for the purpose of attacking the character of appellant.

Appellant also assigns as reversible error the action of the court in modifying his requested instruction Gr, by striking out the word “home” and inserting the word “premises.” The court’s action was correct. The undisputed proof showed that appellant was at a tenement house on his premises and not at his own home when the shooting occurred. The amendment had the effect of conforming the instruction to the undisputed proof.

Appellant next assigns as reversible error the insufficiency of the evidence to sustain the verdict. According to the evidence of the State’s witnesses, appellant was guilty of murder in the first degree. They testify, in substance, that appellant opened fire upon Bill Jones and his companions, who were passing a tenement house on appellant’s premises in an automobile, and continued to shoot at them until he . had killed Bill Jones, and wounded,two others. Their testimony was to the effect that no attempt was made by Bill Jones and his companions to assault appellant before he began to shoot at them. Appellant admitted receiving information that they had threatened to kill him and had gone by his house on the way to a small village with guns in their car, and that he armed himself and took a station near the roadside at one of his tenement houses. It is true that he testified that he did not open fire until they had leveled their guns at him, but his action in arming, himself and going to a place where they would necessarily pass upon their return amounted to voluntarily entering .into the conflict, and precluded him from pleading self-defense to the charge.

Learned counsel argue that the testimony showed that he was either guilty of murder in the first degree or nothing. This court has often ruled that one cannot complain of being convicted of a lower degree of homicide than the evidence warrants. Price v. State, 82 Ark. 25, 100 S. W. 74; Wilkerson v. State, 105 Ark. 367, 151 S. W. 518; Freeman v. State, 150 Ark. 387, 234 S. W. 267; Parker v. State, 169 Ark. 421, 275 S. W. 758.

The judgment is affirmed.

Justices Mehaeey and MoHaney dissent.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Blytheville v. Ray.
    Opinion delivered January 16, 1928.
    1. Criminal law — judicial notice. — Courts take judicial notice of the latest' United States census.
    2. Municipal corporations — authority to establish municipal COURT. — Under Acts 1927, c. 60, § 1, authorizing all cities having a population exceeding 9,300, according to the latest preceding census to establish municipal courts, the city of Blytheville having a population of less than 7,000, under the preceding United States census, was not authorized to establish a municipal court, although at the time an ordinance establishing such court was passed, it is conceded that the population exceeded 9,300.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keck, Judg’e;
    affirmed.

      Ivy W. Graivford, for appellant.

      Crowder ■<& Cooper, for appellee.
   Kirby, J.

This, appeal challenges the validity of an ordinance of the city of Blytheville, Arkansas, attempting to establish a municipal court in that city under the pro - visions of act No. 60 of the Acts of the General Assembly of 1927.

In October, 1927, the city council of that city, by ordinance .No. 353 duly passed, established the municipal court for said city in accordance with the provisions of said act of the General Assembly.

Appellees, two girls, were arrested for a misdemeanor alleg’ed to have been committed outside the city limits of Blytheville, in Chickasawba Township, in which Blytheville is situated. They were convicted in the municipal court, and on appeal to the circuit court they challenged the authority of the municipal court as not legally established. ■

It was conceded that, at the date of the passage and approval of said Act No. 60 of 1927, and at the time of the passage of the ordinance No. 353 establishing the municipal court, and also' at the time of the trial, the city of Blytheville had an actual population exceeding 9,300.

The court held that the municipal court was not legally established, and from the judgment this appeal is prosecuted.

Section 1 of the Act No. 60 of 1927, in accordance with which the ordinance No. 353 establishing.the municipal court was passed, provides:

“Section 1. All cities having a population exceeding 9,300' according to the latest preceding United States census, and all townships and counties within which are situated any of such cities, shall be subject to the provisions of this act, provided, that any city which may hereafter become subject to the provisions of this act may establish a municipal court by passage of an ordinance by the city council of such city creating and establishing such court under the provisions of this act.”

This act prescribes “the latest preceding United States census” as the guide or criterion for determining the population of the cities coming under its provisions and those that may thereafter become subject thereto, being prospective in its operation. Childers v. Duvall, 69 Ark. 336, 63 S. W. 802; Montgomery v. Little, 69 Ark. 392, 63 S. W. 993; Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.

At the trial it was conceded that the population of the city of Blytheville was in excess of 9,300 at the time of the passage of said act No. 60 of 1927, and also when the ordinance was adopted and the municipal court established thereunder; but, according to the latest United States census, of 1920, of which the courts take judicial notice, and by which only the population of the city- of Blytheville could be determined for the establishment of the municipal court, under the provisions of said act of the Legislature, the population of that -city was less than 7,000, being 6,447 as shown by said census.

The city was without the power, under the said act, to establish the said municipal court by ordinance, unless and until its population was shown to exceed 9,300 “according to the latest preceding United States census,” and the ordinance attempting to do so was beyond its power, and void.

The ordinance being void, the municipal court was not legally established, and had no power to render judgment against the defendants, as the circuit court on appeal correctly held.

The judgment is affirmed.


text:
    Missouri Pacific Railway Company v. Morrison.
    Opinion delivered January 16, 1928.
    1. Railroads — killing dog on trestle — -negligence.—Evidence held sufficient to require a submission of the case to the jury, where a dog was run over while on a trestle, due to the alleged negligence and failure of the train to stop in time to avoid killing the dog.
    2. Trial — -instruction.—Where the court instructed the jury, “you have no right to arbitrarily disregard the statement or testimony of any witness,” it was not error to refuse an instruction “that you have no right to arbitrarily disregard the testimony of the engineer and fireman in this case.” •

      Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    ¡affirmed.

      Thomas B. Pryor and Gordon Frierson, for appellant.

      W. B. Scott, for appellee.
   Kirby, J.

Appellant prosecutes this appeal to reverse the judgment against it for appellee for $50 damages for the alleged negligent killing of Ms bird dog by one of its trains.

The testimony shows that on August 9, 1925, about 6 o’clock in the afternoon, one of appellant’s eastbound passenger trains ran over and killed appellee’s setter dog on its track, about the middle of a 300-foot trestle beyond Earle. ’She was purchased at two months old for $35; was a thoroughbred registered dog, well trained, and a good hunter. Some of her puppies had sold for as much as $25 and $30 each. Appellee stated she was worth $250.

Raymond Vernon, a 14-year-old boy, found the dog on the track after the train passed. It was cut kalif in two. Saw the dogs on the trestle before the train came along. Heard the train whistling, and saw it stop. The dogs went to the edge of the trestle, looked over, and then went back to the center of the track. The cowcatcher struck one of the dogs, and the wheels ran over •it. The train stopped just ¡after it struck the dog, and was almost stopped when it struck the dog.

The engineer testified that he was running toward Memphis, at 6 o’clock in the daylight, and first saw the dogs 400 or 500 feet away. Could not see it sooner on account of the curve in the track. Saw a white object, and could not tell what it was; thought it was paper, for several seconds, until it moved. He immediately applied the brakes and the emergency, sanded the track, blew the whistle, and stopped the train as soon as possible. When the engine stopped, one pair of wheels, the pilot wheels, had run over' the dog and cut it in two. It was lying’ between the rails, between the first and second trucks. Thinks the dogs were lying down when he first noticed the objects on the track. Was keeping a lookout when he came around the curve. One of the dogs dodged and got away. This train did not stop at the station, and was making about 10 miles an hour when it passed the station, and the speed limit at the curve is 50 miles an hour. The trestle is hardly a mile east of Earle.

The fireman stated he was looking ahead at the time. First saw an ofiject on the track 300 feet away or more; could not toll what it was. Shortly saw it move, and started to call the engineer, but he had already discovered the dog, and began to apply the brakes and blow the whistle continuously. Did all he could to stop the train. Witness thought, in fact, he had stopped short of the dog, and ran out on the trestle to get the dog off the track.

Morrison stated it was three-fourths of a mile from the station to where the dog was killed, and about 300 or 400 feet east of the city limits. An object could be seen west from where the dog was killed about one-fourth of a mile. That the curve to the east of the station was not abrupt, only about 30 degrees, and that the trainmen could have seen the dog a quarter of a mile, coming from the east.

• The court refused appellant’s request for a directed verdict and some of its other instructions.

It is insisted by appellant that the court erred in not directing a verdict in its favor and that the uncontradicted evidence shows that the trainmen were keeping a lookout, and did everything possible to stop the train and avoid injury to the dog- after it was discovered on the tracks.

It does appear that proper care was exercised in bringing the train to a stop after the animal was. discovered on the trestle, and that the effort to prevent the injury to the dog was well nigh successful, having failed. by about only six feet.

It cannot be said, however, that the testimony of appellant’s witnesses, as to having kept the proper lookout, was uncontradicted, since appellee testified that the curve in the track, which the engineer said prevented his sooner discovering the' dog, was not an abrupt curve and that the dog could have been seen for a quarter of a mile, if a lookout had been kept, notwithstanding the curve.

Certainly, had it 'been discovered sooner, the train could have been stopped and the injury prevented by the efforts made by the trainmen. The testimony of the trainmen, not being- uncontradicted, did not overcome the prima facie case of negligence made by showing that the dog was struck and killed on the trestle by the moving-train, and the court did not err in refusing to direct the verdict in favor of the railroad company.

Neither was error committed in refusing- to give appellaliit’s requested instrudtion, “that you have no right to arbitrarily disregard the testimony of the engineer and fireman in this ¡case. ’ ’ The court told the jury that its verdict must be based upon the evidence and not upon surmise or conjecture, and, in two instructions, “You have no right to arbitrarily disregard the statements or testimony of any witness,” which was a sufficient statement of the law, free from singling out any particular witness.

The majority finding- no prejudicial error in the record, and the evidence being sufficient to support the verdict, the judgment is affirmed.


author: Mehaffy, J.

text:
    Fidelity Mutual Life Insurance Company v. Wilson.
    Opinion delivered January 16, 1928.
    1. Insurance — presumption against suicide. — In an action on a life insurance policy where the insurer alleges as a defense that the insured committed suicide, the ¡burden is on the insurer to establish that fact, since the law presumes that the insured did not commit suicide.
    2. Insurance — evidence of suicide. — In an action on a life insurance policy where the evidence established that deceased was killed by a gunshot wound in the mouth, inflicted in a locked hotel room, subsequent to period of treatment at the hospital for excessive drinking, held to disprove an accidental killing or murder, and to show conclusively that insured committed suicide.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    reversed.

      Joe Hardage and Bose, Hemingivay, Cantrell é Loughborough, for appellant.

      McMillan db McMillan, for appellee.
   Mehaffy, J.

The appellant, on the 29th day of July, 1924, issued a life insurance policy to Howell D. Wilson in the sum of $1,000 if he died from natural causes, and $2,000 if he died from violent or accidental means, payable to his mother, Marie E. Wilson. The policy contained the following clause:

“In case of self-destruction within two years from date of this policy, whether the insured be sane or insane, or if the insured shall die within two years from date hereof as a result, directly or indirectly, of participating in aeronautics or submarine expeditions or operations, then the insurance under this policy shall be a sum equal to premiums herein which have been paid to and received by the -company, and no more.”

The insured died from a pistol-shot wound in the m-outh, in the city of Washington, D. C., on the 21st day of June, 1925, while a guest in the Burlington Hotel. The insurance company defended on the ground that he committed suicide. The plaintiff maintained that he came to his death either accidentally or by a shot from some person unknown.

There w-as a jury trial, and a verdict returned in favor of the appellee against the appellant for $2,000, and 6 per cent, interest from December 12, 1925, and a judgment for siaid amount, and, in addition thereto, a judgment for $200 as attorney’s fees, and $240 damages and costs.

Motion for -a new trial was filed and overruled, and appeal taken to this -court. And, as stated by appellee, the sole question now is, is the verdict of the jury so wholly unsupported by evidence that this court can say that the jury were not warranted in declining* to draw the inference that Wilson’s death was intentionally self-inflicted?! Or, in other words, whether Wilson committed suicide, or whether he was shot accidentally, or shot by some person unknown.

The facts are substantially as follows: Howell D. Wilson was, on the 25th day of May, 1925, confined in the Gallinger Memorial Hospital in Washington, D. C., and remained there under treatment until June 19, 1925, when he was discharged. On the same day that he was discharged from the hospital he went to the Burlington Hotel, in Washington, D‘. C., and procured a room, and remained there until the '21st day of June, 1925. A telegram came for him,.and the bell-boy tried to deliver it, and discovered that his door was locked, and he did not answer the. telephone nor the knocks on the door. The bell-boy notified the hotel manager, and the door to the room he occupied was opened, the outer door opened with a latchkey, and the other door was shoved open, one of the beds having been placed against this door. When they entered the room occupied by Wilson he was found on the bed, dead, with a wound in his head. He had been shot through the mouth, and the ball came out on the back part of his head. There was blood on the bed and pillows, but nothing in the room was disarranged, except the bed being against the door. The pistol was on the bed, about three inches from deceased’s right hand.

The room occupied by Wilson could be entered from the hall, or from the balcony if the windows or doors were open. Nothing unusual was noticed about Wilson’s appearance when he registered at the hotel.- On the outside of his door was a card with the words, “Do not Disturb.” There were no powder-burns on his face or lips, and no wounds.

There was considerable testimony by experts about powder-burns and wounds when the gun was held close to' the person, who was shot, but no one seemed to have liad any experience or to.know anything about the effect when shot in the mouth. That is, as to whether you could see powder-burns or wounds if one was shot in the mouth, and whether the blood would prevent seeing them. However, no one examined to see what the condition of the mouth was. They only knew that the bullet entered the mouth land came out at the back of the head.

Wilson formerly lived at Arkadelphia, and a number of persons testified about his habits and character while he lived there, and the substance of this evidence was that there was nothing unusual about his character, and that he was not depressed or of a gloomy or morose disposition, but, on the other hand, had a sunny disposition, and there was nothing to indicate that, he might commit suicide.

A number of witnesses who examined the body in Washington, D. C.,- testified that he had been drinking, that he had delirium tremens, and was confined in the hospital from the 25th day of May to the 19th day of June, 1925, land that he was very much concerned about whether or not his mother would find out that he had been confined in this institution, and stated that he was afraid that it would kill her if she did find it out.

There was some conflict in the testimony as to whether he was dressed or undressed when found, and about where the bullet came out of his head. There was no dispute, however, about the pistol having been fired in his mouth.

Wilson had demanded his release, although the doctor suggested that he remain in the institution until some of the representatives of the firm that he was with in New York should come.

As we have stated, he was shot in the mouth, and there were no wounds or powder-burns on his face or lips.

Appellee says in her brief: “The sole question now is, is the verdict of the jury so wholly unsupported by evidence that this court can say that the jury were not warranted in declining to draw the inference that Wilson’s death was intentionally self-inflicted?”

Appellee is correct in this- statement. The only question is whether Howell D. Wilson committed suicide, and, as stated by appellee, there is a presumption against suicide. If the circumstances under which one came to his death are such that it may have resulted from suicide, and the insurer alleges that fact as a defense, the burden is on it to establish that fact, for the law presumes the insured did not intentionally take his own life.

“And, while in an action on an accident policy the burden is on the plaintiff to show that death was caused by lan accident, yet, where it is doubtful from the evidence whether death was caused by accident or bjr suicide, a presumption arises that am accident and not suicide was the cause of the death. * * * The presumption against suicide will stand and be decisive of the case until overcome by testimony which shall outweigh the presumption.” 14 R. C. L. 1236-7.

Among the most important things to be considered in determining whether the death of the insured was caused by suicide are the presence or absence of a motive, physical facts surrounding death, as the place where the body is found, its position, the presence or absence of powder-marks where death was caused by a pistol, the habits and temperament of the insured, and his environment.

Appellee contends, and correctly, that there is a presumption against suicide, and that such presumption stands until overthrown by evidence in favor of the insurer, and calls attention to the case of Grand Lodge of A. O. U. W. v. Bannister, 80 Ark. 190, 96 S. W. 742, and the court in that case said, after speaking of the presumption against suicide -and stating that the rule was founded- upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being, states:

“This presumption is greatly strengthened in this case by proof as to the habits and character of deceased. He was sober, industrious, and religiously inclined. He was married, and lived happily with his wife, and had never, so far las the proof shows, said or done anything indicating a suicidal tendency, but, on the contrary, almost his last utterance expressed his plans to pursue the even tenor of his life. He went to bed, after preparing himself as usual for a night’s rest, and apparently fell asleep. * * * It is not impossible, nor even improbable, that the shooting wias accidental. He had a self-acting revolver ■ under his pillow, which he always' kept there. He was very nervous and excitable, wakeful, and easily alarmed at night. He may have been suddenly aroused by some noise, grasped the pistol, and, in a half-awakened state, pulled the trigger as he drew the pistol from beneath the pillow. This is neither impossible nor improbable, though, as already stated, it may be more probable that the shooting occurred from design, and we do not, under those circumstances, feel justified in setting aside the conclusion reached by the jury and substituting our own as to the cause of death.”

Wilson, as shown by the evidence, was not only not sober, but had been drinking to such an extent that he had delirium tremens. He was confined in the hospital for nearly a month. He was depressed, and very much concerned whether his mother should hear of his confinement in this institution, stating that, if she did learn of it, it might kill her. He had just been discharged 'from the hospital, but was still nervous and depressed, according to the testimony of one of the doctors who saw him after he had been discharged. He went to his room' at the hotel and locked one ctf the doors, or, at any rate, it was found locked, and the bed was found placed up against the other door. The wound was in his mouth. It must have been made by placing the barrel of the pistol in his mouth, because there is no showing of any blood or powder-burn on his face or lips. We think it impossible that the wound could have been by accident or have been by any person other than Wilson himself.

The appellee next calls attention to the case of Ætna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S. W. 540, Ann. Cas. 1918B 1122. In that case the insured was found dead as the result of a gunshot wound through his head, but the bullet went into his head about an inch in front and about the right eye and came out about an inch and one-half above and behind the left ear. There were no powder-marks or burns of any nature on his body. His flesh was not charred or his hair singed. The pistol had been firéd twice.

The court in the last case mentioned states the general rule with reference to presumptions against suicide, and cites the case of Grand Lodge A. O. U. W. v. Bannister, and simply holds that the verdict of the jury in that case was proper; that is, that the court did not commit reversible error in giving the instructions, one of which told them they would find for the plaintiff if the evidence showed that death resulted from a shot fired by some person other than the plaintiff. The jury could very well have found this in that case. He was shot in the head, the bullet entering about ian inch in front and above the right eye, and there were no powder-burns and nothing to indicate that the gun was held by himself close enough so as to show marks or powder-burns on his face. It was a question of fact for the jury to determine whether he committed suicide or whether he was killed by some other person.

But, in the present case, the facts are wholly different. The facts are such that we think fair-minded men, after an examination of all the testimony, could not reach any conclusion other than that the deceased, Wilson, put the pistol in his mouth and fired the shot. This is shown not only by the fact that there were no powder-burns on his face nor wounds on his face, that the pistol was fired in his mouth, but 'also by the fact that he had been suffering from delirium tremens, was wounded in Ms month, that he had been in the hospital, and was depressed, the doors of his room were locked, and we think these things show conclusively that deceased committed suicide. To be sure, there is a possibility that some one could have got into his room, but there is no probability that any person got into his room and got a pistol in his mouth and fired without making any wounds on his face or leaving any powder-burns. In fact, from the evidence in this case, we think no conclusion can be reached other than that he committed suicide.

The appellee calls attention also to the case of Columbian Woodmen v. Matlock, 144 Ark. 126, 221 S. W. 858. In that case, however, the company resisted payment of the policy on the ground that the insured had made false representations in regard to the use of intoxicating liquors when he obtained the policy sued on, and had become intemperate in the use of intoxicating liquors, when he had agreed that, in case of suicide, sane or insane, there should be due and payable only one-fifth of the value of the covenant. The court submitted to the jury in that case only the question of suicide. The insured had got a double-barrel shotgun and shot his wife in the face, but she - afterwards recovered. And the deceased walked to a nearby door, and in a few seconds another shot was heard. And the deceased was shot in such a manner as to blow his chin and face away, and that the shot entered underneath his chin and ranged upward, slightly outward. This shot, even if fired by the deceased, could have been accidental. It was the same gun with which he had shot his wife. And the court, among other things, said, after announcing the rule as to presumption as to suicide:

“We are unable to -say, as a matter of law, that the fatal shot was not fired as the result of some iaet, such as violently striking the gun against the floor, or striking it against some object; and, while it must be confessed that the theory of suicide does not appear more probable than any other theory, the question of probabilities is one addressed to the jury, and not to us.”

We think the jury could well have f ound in that case that the company had not shown 'by a preponderance of the evidence that the deceased committed suicide. He may have struck the gun, as suggested by the court, and accidentally have killed himself. He may have stumbled or fallen. At any rate, there was sufficient evidence to submit the question to the jury as to whether he committed suicide or shot himself accidentally, and, since the jury found that he did not commit suicide, their verdict was permitted to stand, although the court said that the theory of suicide appeared more probable than any other theory.

The difference between that case and the one at bar is that Wilson was not shot accidentally. Nobody, we think, could reach the conclusion that he had accidentally put the gun in his mouth and pulled the trigger, and there is no evidence upon which a verdict could be based that he either killed himself accidentally or was shot by some other person.

The next case referred to by appellee is Watkins v. Reliance Life Ins. Co., 152 Ark. 12, 238 S. W. 10. This case was reversed because the court admitted improper testimony.

Appellee argues that the jury could have found from the testimony of appellant’s witnesses that Wilson had no desire to take his own life. But, even if this is true, the jury could not have found from the testimony of all the witnesses that he was either killed by some other person or that he accidentally killed himself. Appellee also says that the jury may have declined to adopt the opinion of some of the witnesses. That may be answered by saying if they refused to adopt the opinion of any witnesses they could not have returned the verdict against the insurance company in this case, unless they declined to adopt not only the opinion of the witnesses but declined to consider the testimony that was undisputed and the physical facts which, as we have already said, show conclusively that he committed suicide.

It is next contended by the appellee that Wilson could have been murdered. There is no testimony in the case upon which such a finding could be based, and, if the jury had found that he had been murdered, the finding would not only have been without testimony to sustain it, but it would have been against all the testimony tending to show how he was killed.

This court has said: ‘‘ Hence we say that, if reasonable men, viewing the facts which are undisputed, might come to different conclusions as to whether the deceased committed suicide, then the facts, although undisputed, were properly submitted to the jury.” New York Life Ins. Co. v. Waters, 154 Ark. 569, 243 S. W. 831.

The undisputed facts in the Matlock case were submitted to the jury because, after he shot his wife, he walked to a door, and there was no possible way of knowing just how he came to shoot himself, whether it was accidental or whether he committed suicide, and it was proper to submit the facts to the jury. But, in the case of N. Y. Life Ins. Co. v. Waters, it was also said:

Reasoning upon the undisputed physical facts in the case, we are unable to evolve any reasonable theory by which the insured could have been accidentally shot. He was standing when the pistol fired. The course of the ball was approximately straight through the head from temple to temple. Had the pistol accidentally dropped, and fired either before or after it hit the ground, and if the ball had taken an upward course, it could not have passed on a level through a standing man’s head, and have left powder-burns on the place of entry. * * * The physical facts are not consistent with any reasonable theory of an accidental killing of which we can conceive. We are unable to reconcile them with any manner of killing except- suicide. ’ ’

And we think that in this case the-physical facts are not consistent with any reasonable theory either of accidental killing or of being killed by some third person. We are unable to reconcile them with any manner of killing except suicide.

This court, on November 21, 1927, decided the case of Ætna Life Ins. Co. v. Alsobrook, ante p. 523, in which the defense interposed by the insurance company was suicide. In that case the deceased was shot in the mouth with a shotgun. The shot ranged through the roof of the mouth toward the back of the head without any visible powder-burns on his face anywhere. The skull was torn to pieces by the shot, and one of his front teeth was missing. On examination it was found that he was shot by a gun that he had borrowed, the barrel of the gun being about 28 inches in length. It could not be told whether the roof of the mouth showed powder-burns, on account of the excessive amount of blood. But in that case it was shown that Alsobrook was a man of happy disposition, and the witnesses who saw him on that morning agreed that he showed no signs of worry or trouble. Testimony showed that powder from a gun like the one he was shot with would make powder-burns anywhere from six to eight feet from the muzzle of the gain, and there were no powder-burns, found on his face.

The court there said:

“We think the undisputed evidence, in fact, all the evidence, clearly establishes the fact that the insured committed suicide, and that it overcame the presumption of law against suicide and the presumption that he was killed accidentally rather than by suicide. ’ ’

The policy sued on here was issued on the 29th day of July, 1924, and provided for the payment of $1,000 if he died from natural causes and $2,000 if he died from violent and accidental means, payable to his mother, Miarie E. Wilson. The policy also contained the following clause:

“In case.of self-destruction, within two years from the date of this policy, whether the insured be sane or insane, or if the insured shall die within two years from the date hereof as a result, directly or indirectly, of participating in aeronautics or submarine expeditions or operations, then the insurance under this policy shall be' a sum equal to premiums herein which have heen paid to and received by the company, and no more. ’ ’

It follows from what we have s'aid that the insurance company is only liable under this policy for a sum equal to the premiums which have been paid to and received by the company.

The briefs of appellant and appellee contain a long list of 'authorities on the question involved in this case, but it is unnecessary to comment on them or cite them here further than we have.

This court has in recent cases followed the rule announced in the cases we have cited, and, under the facts in this case, there can be no liability except as set out above.

The case is therefore reversed, and remanded with directions to enter a judgment against the insurance company in a sum equal to the premiums which have been paid to and received by the company.


text:
    Caplinger v. Hickerson.
    Opinion delivered January 16, 1928.
    1. Landlord and tenant — injunction against trespass. — An injunction to restrain a lessor from turning horses and cattle on land which the tenant was cultivating was not granted, where there was no showing that the tenant would suffer irreparable injury.
    2. Landlord and tenant — injunction against trespass. — An injunction will not be granted to a tenant to restrain a solvent landlord from turning cattle and horses on the land which he had under cultivation, since the tenant had an adequate remedy at law.
    .Appeal from Independence Chancery Court; Alvin 8. Irby, Chancellor;
    affirmed.

      W. M. Thompson, for appellant.
    J. Paul Ward and Coleman é Reeder, for appellee.
   Mehaffy, J.

The appellant filed a petition in the chancery court seeking to restrain appellees from turning loose certain stock upon the growing crops of the appellant, who was a tenant of appellee. He alleged that he resided on appellees’ lands as a tenant, and that, upon agreement with appellees, he was cultivating some ground surrounding* the house in which he lives, cultivating the same in tomatoes, cucumbers, peas 'and other truck, and that this was in a common inclosure owned and operated by appellees, and he alleged further that they were about to turn several head of cattle, horses, and other live stock into said inclosure, to his damage, and. that, unless restrained, he would suffer irreparable harm, and that there was no means of determining the extent of damage to which he would be subjected by the actions of the defendants, and that he had no adequate remedy at law.

The appellees filed answer, denying the material allegations in appellant’s complaint, and also filed a cross-complaint alleging that appellant was cultivating the small piece of land without their consent, and that he turned his' own stock into the same, and that appellant knew when he put said land in cultivation that it was a common pasture, knew that defendants would use the same, and that they offered him some fencing to fence the land if he wished to do so, but he did not do so. They state they never agreed to fence the land for appellant, and were under no obligations to do so. Appellees state, however, that, when appellant complained to them, that they did fence the spot of land, although they were under no obligations to do so. That he had damaged their orchard, fence and pasture in the sum of $200.

The testimony was conflicting, and the finding of the chancellor is supported by the evidence. It may also be stated that there is no allegation of insolvency and no showing of irreparable injury, and that appellant had a complete and adequate remedy at law.

The decree is therefore affirmed.


author: Mehaeey, J.

text:
    C. A. Blanton Company v. First National Bank of Marked Tree.
    Opinion delivered January 16, 1928.
    1. Records — when paper filed. — -A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file.
    2. Appeal and error — conclusiveness of court’s finding.— Findings of- fact of the circuit court sitting as a jury, are as conclusive on appeal as the finding of the jury would have been.
    3. Garnishment — purpose of return. — The chief purpose of the return of an officer of having served a writ of garnishment is to show that the writ was served.
    4. Judgment — when default judgment set aside. — To set aside the judgment by default on the ground of lack of proper service, one who is aggrievéd by the judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceedings in time to make a defense.
    5. Judgment — defense against default judgment. — The party against whom a judgment is rendered must show a meritorious defense in order to set the judgment aside.
    Appeal from Poinsett Circuit Court; G. E. Keck, Judge;
    affirmed.

      G. T. Carpenter, for appellant.

      Basil Baker, for appellee.
   Mehaeey, J.

On June 15, 1925, appellee instituted suit on a note for $165.94 and interest against L. B. Yancey. Summons was issued and served on defendant.

Oil the 26th day of June, the day set for trial, the defendant did not appear, and judgment was rendered against him for the amount of the note and interest. On the 28th day of July, 1925, a writ of garnishment was issued and served on C. A. Blanton Company.

More than a year after judgment was rendered against C. A. Blanton Company, execution was issued against defendant and garnishee. The justice of the peace who rendered the judgment was no longer in office, and motions to quash judgment were filed with his successor. The justice of the peace set aside the judgments, and, on appeal to the circuit court, the original judgments of the justice of the peace were held valid, and Yiancey and the Blanton Company have appealed to ■this court. Their motion for a new trial states, that the judgment is contrary 'to law and contrary to the evidence. The ■ only other grounds in the motion for a new trial are, fourth, that the court erred in finding' that the original note sued on herein had ever been filed with the justice of the' peace in the wiay and manner as prescribed by law, in order to give the justice of the peace jurisdiction of the question; and, fifth, that the court erred in finding that the service on C. A. Blanton Company was 'sufficient to sustain the judgment against it as garnishee.

Appellant’s first argument in his brief is that the court erred in finding that the original note had been filed. It appears from the evidence that the garage where the justice of the peace had had his office had been burned, and be had requested Mr. J. 'G-. Waskom,' an attorney, to keep his docket and papers at his office, and that Mr. Waskom kept them there. Mr. Waskom is the attorney who filed this suit, and he testifies that he went to the justice of the peace, took the docket and the original note and the form of the summons, and handed tbam. to the justice of the peace. That the justice of the peace signed the summons and handed them back to the attorney. That the attorney, Wasko-m, put the note in the docket at about the place where the suit would be entered, and that the justice directed him to take them back to Waskom’s office, which he did. That the former garage of the justice had been burned, and that the justice had asked Mr. Waskom to keep his docket at his office, as he, the justice of the peace, had a very poor place to keep things of that kind.

The appellant, Yancey, testifies that he made two trips to the justice of the'peace, and did not get to see what was filed nor see the docket. But he admits that the justice told him that they were in Mr. Waskom’s office. And, so far as the proof shows, he never went to Mr. Waskom’s office to find them. Therefore, so far as the filing of the original note is concerned, if giving it to the justice of the peace was filing it, then the note was filed.

This court has said: “A paper is said to he filed when it is delivered to the proper, officer and by him received to be kept on file.” Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579; Bettison v. Budd, 21 Ark. 578; Eureka Springs Stone Co. v. Knight, 82 Ark. 164, 100 S. W. 878; Case & Co. v. Hargadine, 43 Ark. 144; and Forehand v. Higby, 133 Ark. 191, 202 S. W. 29.

The circuit court sitting as a jury found that the note had been filed, and the findings of facts by the court are as conclusive here as the finding of a jury, and there. was ample evidence to sustain the finding of the court that the note had 'been filed.

The defendant, Yancey, does not dispute the debt or the note. There is no contention on his part that he. did not execute the note, and no contention that he did not owe the amount of the note.

His next contention is that there was no service on the Blanton Company. But appellants, in giving their testimony, did not claim that the writ of garnishment was not served. In fact, they state that it was served. But their contention is that the return of the officer simply showed a service on the Blanton Company, and that the officer was permitted to amend his return by showing that he served it on C. A. Blanton, president of the C. A. Blanton Company.

The chief purpose of the return of the officer is to show that the writ was -served, and there is no dispute about the service.

Appellant says there is nothing to show whether C. A. Blanton Company was a foreign or domestic corporation. The return of the officer shows that it was a corporation, and that C. A. Blanton was its president, and that service was had on him. And the' appellant does not claim that it i$ a foreign corporation or that service on C. A. Blanton was not proper because it was a foreign corporation, and it does hot contend now that C. A. Blanton was not the proper party upon whom to serve the writ of garnishment.

The appellants knew of the proceeding's against them in the justice court, and knew of the day set for trial, and they failed to appear or to take any action to get a new trial or to have the judgment vacated in the time provided by statute, and neither party appealed.

“This court is committed to the rule that ‘one who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceedings in time to make a defense, in order to obtain relief.” Fore v. Chenault, 168 Ark. 747, 271 S. W. 704; State v. Hill, 50 Ark. 458, 8 S. W. 401; Moore v. Price, 101 Ark. 142, 141 S. W. 501; Quigley v. Hamilton, 104 Ark. 449, 148 S. W. 275; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575.

A party against whom a judgment is rendered must show a meritorious defense in order to get the judgment set aside. King v. Dickinson-Reed-Randerson Co., 168 Ark. 112, 269 S. W. 365; Moreland v. Youngblood, 157 Ark. 86, 247 S. W. 385; Minick v. Ramey, 168 Ark. 180, 269 S. W. 565.

The judgment of the circuit court is correct, and is therefore affirmed.


author: MoHaney, J.

text:
    Waggoner v. Weaver.
    Opinion delivered January 16, 1928.
    Prosecuting attorneys — fee on plea of guilty. — Where a prosecuting attorney files an information before a justice of the peace and is present in court to prosecute, he is entitled under Crawford & Moses’ Dig., § 4571, to his fee, although defendants plead guilty.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.

      Chas A. Walls ¡and W. H. Gregory, for appellant.

      Williams Holloway, for appellee.
   MoHaney, J.

Appellees brought separate actions before a justice of the peace of Lonoke County against appellant to recover from appellant in the Weaver case $10 and in the Hallum case $25 fees paid appellant by appellees on their convictions on separate charges in the .justice court of J. H. Melton of Lonoke County, in criminal cases filed against them by appellant as prosecuting attorney for the Seventeenth Judicial District.

Appellant, as prosecuting attorney, filed an information against Weaver, charging him with the crime of assault and battery. He was convicted, as he says, on a plea of guilty, but, as appellant says, after a trial, which is supported by the record of the justice of the peace, fined $1 and 'costs, which included a $10 fee for the prosecuting attorney.

Appellant also filed an information against Hallum, charging him with the crime of gaming. He was convicted on a plea of guilty, fined $10 and costs, which included a $25 fee for the prosecuting attorney. Both fines and costs were paid, but appellant deducted $5 from his fee in the latter case, and these separate suits were brought to recover these respective sums of money on the ground that appellant had no lawful right to collect a fee on a plea of guilty. On a trial of the cases in the justice court, judgment was rendered for appellant, and the plaintiffs in those cases appealed to the circuit court, where judgment was rendered for them and against appellant, from which is this appeal.

We will assume, for the purpose of this decision, that both appellees pleaded guilty to the criminal charge against them, although we do not think the facts in the Weaver case justify this assumption. The undisputed fact is that the prosecuting attorney ■brought both criminal actions before the justice of the peace, instituted, and initiated such prosecutions by filing’ an information -against them, charging them, respectively, with the crimes heretofore stated, and that, on the day they were to be tried, he was present in court and prosecuted. Section 4571, C. & M. Digest, provides: “Prosecuting attorneys, where present and prosecuting cases, either in person or by deputy, in justice court, shall be entitled to the same fees for prosecuting in cases of misdemeanors before justice "of the peace as in circuit court.” Under that section of the Digest, the prosecuting attorney would be entitled to his fees where he filed the information, was present at the trial, and ready to prosecute the case, even though the defendant might plead guilty, unless this court has decided to the contrary in other cases.

In Brown v. Welch, 151 Ark. 142, 235 S. W. 997, this court said:

“It is clear, we think, that the prosecution of a case by the officer, even where a plea of guilty is interposed before the trial of the cause, entitles him to the fee. The cases cited on the brief of counsel show that the legal definition of the word ‘prosecute,’ when used in this sense, includes a conviction under a plea of guilty, where the officer performs the preliminary duties in instituting the prosecution and attends the trial for the purpose of conducting the prosecution.”

While this decision was based, to some extent, upon a statute applicable to Clay County and to deputy prosecuting attorneys therein, we are of the opinion that it applies with equal force to that phase of the question now before us, as to whether a prosecuting attorney who files the information, and is present, ready to prosecute, but is prevented from actually trying1 the case by a plea of guilty, comes within the meaning of § 4571 of the Digest heretofore quoted. We therefore hold that, under such circumstances, the prosecuting attorney in these cases was present and prosecuting, regardless of the fact that the defendants in those cases entered pleas of guilty.

But it is contended by counsel for appellees that § 8310 of C. & M. Digest, as construed by this court in the case of Duncan v. West, 167 Ark. 14, 267 S. W. 567, and State v. Staples, 158 Ark. 502, 250 S. W. 517, authorizes the recovery of these judgments against appellant in these cases. Section 8310 reads as follows:

“In any criminal action pending before any justice’s court, where the defendant is charged with an offense mentioned in § 8308 by affidavit or otherwise, and shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of-the justice to cause the prosecuting attorney, or deputy, for such county to be notified of the nature of the charge, and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and, in case of conviction, shall be allowed the same fee as is now allowed for similar cases in the circuit court. And no prosecuting attorney or his deputy shall- receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute. ’ ’

In the Staples case, supra, Staples and others had been arrested by the sheriff and constable of the township for gaming. The sheriff notified the prosecuting attorney of the cases, and, on the 'following morning, he went to the municipal court for the purpose of filing informations against the defendants and to prosecute the cases against them. The constable, however, had already filed these informations, and, when the cases were called for trial, the prosecuting attorney was present and ready to prosecute, but Staples pleaded guilty, was fined, and the municipal court refused to tax a fee for the prosecuting attorney in the costs, and the question involved on appeal to this court was whether such a fee should have been taxed in the costs. And this court held that the prosecuting attorney was not entitled to the fee. In this case the court said:

“Under this statute, the prosecuting attorney, when present and prosecuting, is only entitled tó a fee in a criminal case pending in said court, upon affidavit or otherwise, where the defendant pleads not guilty, employs an attorney to make his defense, and is convicted.”

While the court used this language, which is very broad in its scope, yet the fact remained that the prosecuting attorney did not initiate the prosecution, filed no information, and did nothing in the prosecution except to be present. And it will bo readily seen that the facts in that case were wholly different from the facts in the case now under consideration.

The case of Duncan v. West, supra, was a habeas corpus proceeding’ to discharge a prisoner from the county convict farm, who had worked out his fine and costs, with the exception of the fees of the prosecuting attorney. In this case the right of the prosecuting attorney to collect a fee on plea of guilty in the justice court was again under consideration, and the court again followed the case of State v. Staples, and said:

“The opinion in State v. Staples, supra, holds that the right of a prosecuting attorney to fees in cases before justices of the peace depends on C. & M. Digest, § 8310, and § 4571 does not allow fees otherwise than under the conditions stated in § 8310, supra. It is true that the Staples case, stipra, differed from the present one in that the prosecuting attorney did not, in that case, file information, but that difference in the facts does not alter the application of § 8310, for, as before stated, we held that § 8310 prescribed the only conditions under which a prosecuting attorney can claim fees in cases pending before justices of the peace.”

It would appear therefore that the facts in Brown v. Welch were substantially the same as in the case iat bar. The Staples case was followed in Brown v. Welch, and, a majority of the court now think, erroneously so, as the language used in the Staples case was not necessary to a decision of that case. For, as already stated, the prosecuting attorney did not file information, and did nothing in the prosecution except to be present. A majority of the court agree that the decision in Brown v. Welch was wrong, and should be overruled, and we are of the opinion that § 8310 of the Digest has no application to the facts in this case, but applies to a case where the prosecution is initiated by somebody other than the prosecuting attorney or his deputy. The judgment in each case will therefore be reversed, and the causes dismissed.

Smith, J., dissents.


author: McHaney, J.

text:
    Bowlin v. State.
    Opinion delivered January 16, 1928.
    1. Jury — waiver of irregularity in selection.- — By going to trial without objection to the manner in which the jury was impaneled, defendant must be deemed to have waived any irregularity in the order of selecting the jury.
    2. Criminal law — improper argument- — effect of withdrawal.— Objectionable remarks of the prosecuting attorney to the jury are not ground for reversal, where upon objection the remarks were withdrawn by the prosecuting attorney.
    3. Witnesses — impeachment on cross-examination.- — Defendant may be asked on cross-examination as to conviction and incarceration for previous crimes, for the purpose of testing his credibility as a witness.
    4. Witnesses — cross-examination.—It is within the court’s discretion to permit a witness on cross-examination to be questioned as to his character and antecedents for the purpose of testing his credibility.
    5. Witnesses — cross-examination of accused. — In cross-examining witnesses to test their credibility, the same rules apply to defendants who testify in criminal cases as to other witnesses.
    Appeal from Johnson Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      J esse Reynolds, for appellant.

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

Appellant was indicted, tried, convicted and sentenced to five years' in the penitentiary on a charge of assault with intent to kill one Joe Bramlett, and prosecutes this appeal to reverse the judgment and sentence against him. This was done at an adjourned term of the regular May term of the Johnson Circuit Court.

It is admitted that the testimony was sufficient to take the case to the jury, but it is urged: first, that the court was without jurisdiction to try the case and render .judgment against him, for the reason that, according to the affidavits of the county and circuit clerks, there were no funds on hand to pay the expenses of holding the adjourned term of the circuit court, and that the regular business of the court carried over from the regular term to the adjourned term was not tried, but that this defendant, who was indicted at the adjourned term, and some others, were tried at this term of court; that there were no funds with which to pay the jurors, and that this defendant was forced to be tried before jurors who volunteered their services for that purpose. It is claimed that, by reason of this fact, he had no voice in the selection of the jury, and that a court so constituted was and could be no more than a moot court.

The record shows that this question was raised for the first time in the motion for a new trial. The statute provides for the manner of the selection of jurors to try cases in the circuit court. By going to trial without objecting to the manner in which the jury was impaneled, appellant must be deemed to have waived any irregularities in the order of selecting the jury. In support of this contention he cites, the case of Dixie Culvert Mfg. Co. v. Perry County, 174 Ark. 107, 294 S. W. 381, construing Amendment No. 11, in which it was held that the county judge of Perry 'County was without authority, under that amendment, to make a contract for road culverts and spread the cost thereof over a period of years, when there was insufficient funds on. hand for the year in which same were purchased to pay therefor. It had nothing to do with the question now before us. See also Polk County v. Mena Star Co., ante p. 76.

It is next urged that the case should be reversed for certain remarks made by the prosecuting attorney in his opening’ statement to the jury. An objection by counsel for appellant was sustained by the court, and the prose-, cuting attorney withdrew the remarks from the .jury. There was therefore nothing on which to base this assignment of error. The objection was sustained and the remarks withdrawn by the prosecuting attorney. Lewis v. State, 78 Ark. 40, 93 S. W. 55; Hall v. State, 113 Ark. 454, 168 S. W. 1122.

It is finally insisted that the court erred in permitting the prosecuting attorney to ask the appellant the following questions over his objections:

“Q. I will ask you if you are the same Jim Bowlin that was sent to the pen from Newton County, over here, for cutting a preacher up over there?” “Q. Jim, what was it you was convicted for and why were you serving a jail sentence at Dardanelle about 'a year ago, when you broke jail?”

Appellant was a witness in his own behalf, and the above questions were asked on cross-examination, and it is well settled in this court that the defendant may be asked on cross-examination about other crimes committed by him, whether he has been in jail, the penitentiary, or any other place that would tend to impair his credibility. These questions were permitted, no doubt, for the purpose of testing the credibility of the witness. This court, in the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, announced the general rule on this subject in a quotation from the Supreme Court of Michigan, in Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203, as follows:

“It has always been'held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility. ’ ’

The above quotation was also used in the recent case of Whittaker v. State, 171 Ark. 762, 286 S. W. 937, where a quotation from Real v. People, 42 N. Y. 270, was cited with approval as follows: “A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places.”

The same rules apply to defendants who testify in criminal oases as to other witnesses. There was therefore no error in permitting the above questions to be asked, and in requiring appellant to answer them.

These are all the errors complained of, and, having answered them against appellant, the judgment must be affirmed.


author: Hart, C. J.,

text:
    Gilbertson v. Clark.
    Opinion delivered January 23, 1928.
    1. Deeds — covenant as to acreage. — The mention of the quantity of acres in the deed containing a definite description of the land by metes and bounds, does not amount to a covenant, unless so expressly declared, nor afford a cause of action, though the quantity of acres should fall short of the amount named.
    2. Fraud — knowledge op purchaser. — A vendee cannot complain of a fraudulent misrepresentation made by the vendor as to the number of acres sold to him, if before the sale was made and accepted he was informed as to the actual number of acres, and with that knowledge consummated the contract of sale.
    3. MInbs and minerals — implied warranty of acres. — Where, in an assignment of an oil lease, the land was described by metes and bounds, and as containing 71 acres “more or less,” the assignee could not maintain an action for damages on an implied warranty of the number of acres, though the tract contained only 52 or 53 acres.
    4. Deeds — quantity of acreage — “more or less”. — Where the description of land in a deed is by definite boundaries, or by words of qualification as “more or less,” the statement of the quantity of acres is a mere matter of description, and not of the essence of the contract, so that the buyer takes the risk of quantity, in the absence of fraud.
    5. Mines and minerals — shortage of acreage in oil lease. — In an assignment of an oil lease, representing the land embraced in the lease as containing 71 acres, where it embraced about 53 acres, the difference-between the actual and the estimated quantity of acres was not so gross as to conclusively warrant a finding that the assignee would not have contracted, if the shortage had been known to him.
    6. Mines and minerals — evidence of fraud in assignment of lease. — In a suit for payment for the assignment of an oil lease, evidence held not to show that the assignor had falsely represented to the assignee the number of acres in the lease.

      Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.
    STATEMENT oe eacts.
    O. W. Clark, trustee, brought this suit in equity against G. E. Gilbertson and Minnesota Oil Corporation to recover judgment in the sum of $21,530.32, balance alleged to be due on an oil and gas lease; that a lien be declared against the oil and gas lease to secure the payment of said sum, and that said lien be foreclosed and the lease sold under the orders of the court for the payment of the judgment prayed for.
    The suit was defended on the ground that there should be an abatement of the purchase price on account of the misrepresentation by Clark as to the quantity of land embraced in the lease.
    The record shows that the lease is in writing, and was signed by O. W. Clark, trustee, on the 29th day of January, 1924. It was acknowledged before a notary public on the first day of February, 1924. The consideration for the lease was $225,000. Ten thousand dollars of this amount was paid in cash, and the balance was evidenced by promissory notes- signed by G. E. Gilbertson. The lease contains a recitation that, on the first day-of August, 1923, C. M. Martin executed to O. W. Clark, trustee, an assignment of oil and gas leases covering lands in Ouachita County, Arkansas, as follows: “West half of the southeast quarter lying west of the St. Louis, Iron Mountain & Southern Railway, in section 24, township 15 south, range 17 west, containing 71 acres, more or less-.” The lease also recites the property embraced in it as being situated in Ouachita County, Arkansas, and described as follows: “Being all that part of the west half of the southeast quarter of section 24, township 15 south, range 17 west, lying west of the Missouri Pacific Railroad, formerly known as the St. Louis, Iron Mountain & Southern Railroad.”
    At the time that Martin assigned the lease to Clark, trustee, there were no oil wells on the land described in the lease. At the time Clark, as trustee, executed the lease to Gilbertson, oil wells had been drilled on the lease, and were producing oil. Wells were being’ drilled at the time of the execution of the lease, and Gilbertson at once took possession of the lease and continued the drilling operations. In June, 1924, Gilbertson asked for and obtained an extension of the time of payment of $12,500 due on the 6th’day of July, 1924, until the 15th day of August, 1924.
    According to the testimony of G. E. Gilbertson, he first became acquainted with Dr. O. W. Clark in January, 1924. Daniel McGahey and W. G. Sawyer came to him and told him that they had a good lease. McGahey introduced the witness to Dr. Clark. Mr. Sawyer and Judge James Gould were present. They began to discuss the purchase of a lease from Dr. Clark, known as the Jeff Berry lease-. The deal was closed about the 29th day of January, 1924, about.two weeks after the witness met Dr. Clark. Dr. Clark told him that the lease contained 71 acres, that it was a good lease, had four wells on it, and that they were drilling a fifth well. Sawyer and McGahey both represented the lease to contain 71 acres. These representations were made between the 13th and 20th of January, 1924. Judge Gould represented to the witness that there were 71 acres of the lease, and he figured that twelve wells could be drilled on it, with six acres to the well. Gilbertson was president of the Minnesota Oil Corporation, and was acting as its agent in the purchase of the lease. The lease was taken in his name and later transferred to the Minnesota Oil Corporation. Witness would not have purchased the lease had he known that there was a shortage in the acreage and that it only contained between 52 and 53 acres. Witness did not learn that the lease contained less than 71 acres until some time in December, 1924. He immediately wrote to Dr. Clark about the shortage, and told him that the matter would have to be settled before he would make any further payments on the lease.
    W. G. Sawyer was also a witness for the defendants. According to his testimony, Daniel McGahey and he acted as brokers in selling the lease to G. E. Gilbertson. Sawyer represented to Gilbertson, by authority from O. "W. Clark, that the number of acres contained in the lease was 71 acres. 0. W. Clark and James Gould both told him to represent to Gilbertson that there were 71 acres in the lease.
    Olaf F. Bruce, treasurer of the Minnesota Oil Corporation, testified that W. G. Sawyer came before the board of directors of that corporation on January 23, 1924, and told him that Dr. Clark had a lease consisting of 71 acres, which was a good lease.
    H. A. Thackery, a civil engineer, was a witness for the plaintiff. According to his testimony, he made a survey of the lease during the month of January, 1924, and made a plat of the survey. He gave a tracing of the plat, which showed the number of acres in-the lease to he 52.12 acres, to Dr. Clark.
    According to the testimony of Dr. 0. W. Clark, he never knew W. G. Sawyer directly in his life, and did not employ him to sell the lease in question. About the middle of January, 1924, Daniel McGahey, G. E. Gilbertson, and a man who, he subsequently learned, was W. G. Sawyer, came to his office for the purpose of purchasing the lease in question. Witness had never seen either Sawyer or Gilbertson before, and thought they were associates. He did not tell Gilbertson that the lease covered 71 acres and did not authorize Sawyer to do so. The lease was not sold on an acreage basis. Witness, as trustee for himself and associates, purchased the lease from Martin on an acreage basis because, at that time, no oil well had been drilled on the lease and it was not known whether or not there was any oil in it. At the time the lease was sold to Gilbertson oil wells had been drilled on the lease and were producing oil. For this reason the sale was made in gross and not on an acreage basis. Clark told Gilbertson that there was a shortage of acreage-, and, even after the down-payment'of $10,000 had been made, he stated to Gilbertson that there was a shortage, and said that, if he did not wish to take the lease because there were only 52.12 acres, he would return him his $10,000 and cancel the lease. Gilbertson did not want to do this, because’ he had some acreage which had not 'been drilled for oil, and he could not sell it unless he also had some producing acreage.
    Daniel McGahey was also a witness for the plaintiff. According to his testimony, W. G. Sawyer told him that he had some people who wanted some acreage that was producing oil, and McGahey showed Sawyer the map of the oil lease, which showed the lease to contain 71 acres. Sawyer asked witness if there were 71 acres, and witness told him that he did not know. .They called up Dr. Clark that night about selling the lease, and he sent Judge Gould down the next morning to talk the "matter over. Witness did not represent to Gilbertson that there were 71 acres in the lease. He told Gilbertson that the old map showed 71 acres, and that he did not know anything but what the old map showed. He did not have any further conversation with Gilbertson about the number of acres. He agreed to .divide the- commission with Sawyer, because Sawyer had introduced Gilbertson to him. Dr. Clark did not employ Sawyer to sell the lease and did not know that the witness had agreed to divide the commission with him.
    Judge James Gould was also a witness for the plaintiff. According to his testimony, he was beneficially interested, and assisted in selling it to Gilbertson. He never saw W. G. Sawyer in his life, and did not authorize him to represent to Gilbertson that there were 71 acres in the lease.’ Witness did not represent to Gilbertson that there were 71 acres in the lease. On the contrary, he expressly stated to Gilbertson that they never sold a lease where they guaranteed the acreage. He then told Gilbertson that the tax record showed the lease to contain 71 acres, but that he would have to be his own judge about- that.
    M. L. Galliger, a witness for the plaintiff, testified that he came to Camden on the first day of February, 1924, to take charge of the lease, and met Mr. Gilbertson a few days after he got there. Gilbertson told Dr. Clark that he had been talking with Mr. G. H. Speary, who was drilling a well on the lease, and that Speary mentioned to him that he had had a survey of the lease made. Clark told Gilbertson that he had had it surveyed a few days before, and that the lease contained 52.12 acres. Clark told him that he would call off the trade and give him his $10,000 back if he was not satisfied. Gilbertson said that he was satisfied, and thought that he had the best lease in the field, and would not give it back.
    According to the testimony of G. Ii. Speary, he met Gilbertson at the time he was looking at the property with a view of purchasing the lease. Speary knew the lease was short, and told Gilbertson that he understood that there were only 52 or 53 acres in it. Speary showed Gilbertson the plat which showed that the lease only contained 53 acres.
    The chancellor found the issues in favor of the plaintiff, and a decree was rendered accordingly. The case is here on appeal.

      Potoett, Smead <& Knox, for appellant.

      T. J. Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellee.
   Hart, C. J.,

(after stating-the facts). The law applicable to cases of this sort is well settled in this State. In Joseph v. Balter, 95 Ark. 150, 128 S. W. 864, it was held that the mention of the quantity of acres after a definite and certain description of the land by metes and bounds does not amount to a covenant in a deed, unless so expressly declared, nor afford a cause of action, though the quantity of acres should fall short of the amount named. It was further held that a vendee cannot complain of a' fraudulent misrepresentation made by the vendor as to the number of acres sold to him if, before the sale was made and accepted, the vendee was informed as to the actual number of acres in the tract sold, and, with that knowledge, consummated the contract of sale. In such case the vendee can only recover damages -upon the theory that he was induced to purchase the land by the fraudulent representation of his vendor as to the quantity of the land. Where the vendee has knowledge of the deficiency of the quantity of the land, he is not misled by any misrepresentation of his vendor and is not induced to make the contract by a misrepresentation of the quantity of the land which he knows to be untrue. In short, if he knows that there is a deficiency in the quantity of the land and knows how much land he is purchasing, he has no right to rely upon the representation of his vendors as to the quantity of the land.

Again, in Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787, it was held that, when a vendor conveys for a specified price a tract of land which is described by -metes and bounds or otherwise, with the words added, “containing a specified number of acres, more or less,” this is a contract not by the acre but in gross, and does not by implication warrant the quantity. It was further held that a misrepresentation in a sale of land, to affect the validity of the contract, must relate to some matter of inducement to the making of it, in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and.trust which he reposes in the representations of the other, on account of his superior information and knowledge in regard to the subject of the contract.

In the application of the principles of these oases to the facts in the case at bar, appellants cannot maintain an action for damages upon the ground that there has been a breach of a covenant of any implied warranty of the quantity of the land. The lease shows that there was no express warranty of the quantity of the land, and appellants do not claim that the deed contains a clause expressly warranting the quantity of the land. Hence their cause of action is founded upon the ground that they were induced by false representations as to the quantity of the land to agree to pay the price expressed in the lease.

This is an application of the general rule that, where the description of the land is ¡by definite boundaries, or by words of qualification, as “more or less,” the statement of the quantity of acres in the deed is a mere matter of description, and not the essence of the contract. Hence the buyer takes t'he risk of the quantity, if there is no element of fraud in the case. It cannot be said in this case that the difference between the actual and estimated quantity of acres is so gross as to conclusively warrant a finding’ that the parties would not have contracted had the shortage been known. It is true that the price was considerable, but, when the attending circumstances are considered, it is evident that the quantity of acres was not the controlling factor in the premises.

Gilbertson was representing a corporation which was speculating in oil and gas leases, and the corporation had a quantity of acreage which had not been developed for oil or gas. He wished to purchase the lease in question for his corporation and to add it to what is termed “wildcat” acreage in order to better sell that acreage. In other words, the lease in question had been drilled for oil and had producing wells on it at the time Gilbertson purchased the lease. According to the testimony of Dr. Clark, Gilbertson wished to add these producing acres to his wildcat acreage in order to sell the latter.

As to whether the representation as to the quantity of acres was actually made, the testimony is in direct and irreconcilable conflict. Gilbertson testified that both Dr. Clark and Judge Gould represented that the lease contained 71 acres, and that he would not have purchased it if he had not believed the representation to be true. He is corroborated by the testimony of W. G. Sawyer in every respect. The testimony of Bruce only goes to the fact of the representation made by Sawyer as to the number of acres in the lease, and adds nothing to the testimony of Sawyer on that point. On the other hand, Judge Gould says that he never knew Sawyer, and did not authorize him to make such representation about the quantity of land in the lease. Dr. Clark denies having employed Sawyer to represent him in selling the lease, and denies authorizing him to represent that the lease contained 71 acres. He testified that McGahey, who was his agent, brought SaAvyer to his room -with Gilbertson, and that he supposed that Gilbertson, and Sa^wyer were associated together. McGahey says that he only showed the old lease to Gilbertson, and told him that that was all that he knew about the quantity of acreage in the lease. This could not be said to be a concealment of the quantity of the acreage, for both Dr. Clark and Speary testified that Gilbertson was told about the shortage in the lease Avhile he was examining the property Avith a view to purchasing the lease. The lease was executed the latter part of January, 1924, and Gilbertson says he did not discover the shortage until some time in December of that year. He admitted that he was on the lease frequently during this time, and was familiar Avith locating and drilling wells on such leases. The land as described in the lease was 71 acres, and it is deducible from all the circumstances that a man of Gilbertson’s experience in oil leases would have ascertained the shortage by being on the land much sooner than he did discover it. This is a circumstance which might be considered in testing his credibility.

We have examined the evidence as it appears in the record, and considered it in all its bearings, and have reached the conclusion that it cannot be said that a preponderance of the evidence shows that Dr. Clark falsely represented the quantity of the acreage to be 71 acres. Therefore the decree of the chancellor mil be affirmed.


text:
    Cheairs v. McDermott Motor Company.
    Opinion delivered January 23, 1928.
    1. Usury — sale of article'on credit. — Usury can only attach to a loan of money or to the forbearance of a debt'.
    2. Usury — sale of chattel. — Adding to the cash price of an automobile what is termed “insurance and carrying charge,” representing the credit price of the automobile as distinguished from the cash price, represented by a note bearing interest at 10 per cent., held not usury where the sale was made in good faith.
    3. Usury — evidence.'—-A memorandum on the face of a note and sales contract, designating an addition to the cash price of an automobile as “insurance and interest,” held not evidence that the sale of an automobile on credit was intended to cover a usurious loan, and hence its alteration to read “interest and carrying charge” was immaterial.
    Appeal from Drew Circuit Court; Turner Butler, Judge;
    affirmed.
    STATEMENT OP PACTS.
    This is an action in replevin by the McDermott Motor Company against J. T. Cheairs and Ima Mae Cheairs to recover the possession of a Ford coupe, alleged to be of the value of $250.
    The record shows that the McDermott Motor, Company is a corporation engaged in seling automobiles in the town of McGehee, Arkansas. On the 28th day of February, 1925, it sold to Ima Mae Cheairs and J. T. Cheairs a Ford coupe, and retained title in the vehicle until the purchase price was paid in full. The purchasers agreed to pay $743.81 for the coupe. One hundred and eighty-five dollars of this amount was paid in cash, and a note for $557.86, with interest from maturity until paid, at the rate of ten per cent, per annum. The note was payable in installments' of $46.48, and contained a provision that, if any installment was not paid when it became due, the entire amount of the purchase price should become due and payable at the option of the seller, and that the seller had a right immediately to take possession of the property and sell it for the unpaid balance of the purchase price. On the back of the note appears the following:
    Cash price of car...............................................................$600.31
    Extra equipment, balloon tires........................ 35.00
    Extra equipment, lock wheel.............................. 10.00
    Extra equipment, bumpers.................................... 22.50
    Total amount of sale..........................................$667.81
    Insurance and carrying charge.............................. 76.00
    Total cost to buyer, on time....................................$743.81

      After Ima Mae Cheairs signed the note, and before it was signed by J. T. Cheairs, the note contained the following: “Insurance and interest,” which was changed to “Insurance and carrying charge,” as it now appears on the note. The purchasers paid the monthly installments on the note until there was a balance due of $232.18, when they ceased to make the monthly payments, and the seller declared the balance of the purchase price due, and demanded possession of the car. Possession was refused by the purchasers, hence this lawsuit. The above facts are undisputed.
    In addition, according to the testimony of the witnesses for the plaintiff, the cash price of a Ford coupe was $600.31. The credit price of the car, together with the insurance and extra equipment, amounted to $743.81. The items called “insurance and carrying charge” were not for the forbearance of a debt but were to cover the increased price of selling on a credit. The loan of money did not enter into the transaction at all. At the time of the filing of the suit the car was worth $250, and at the time of the trial it was only worth $150.
    Other facts wil be stated or referred to in the opinion.
    The case was tried by the court sitting as a jury, and the court found the issues of fact and law in favor of the plaintiff. Judgment was rendered in accordance with the provisions of § 8654a of Crawford & Moses’ Digest for the balance due on the purchase price of the automobile, or, in default of payment within the time prescribed by the statute, for the return of the automobile, and damages for its detention. To reverse that judgment the defendants have duly prosecuted this appeal.

      John T. ■Cheairs, for appellant.

      Toff $ Smith and Williamson $ Williaxmson, for appellee.
   Hart, C. J.,

(after stating the facts). The main reliance of the defendants for a reversal of the judgment is that the transaction was, in effect, a device to cover a loan and to exact a greater rate of interest than that allowed by law. We do not agree with counsel in this contention. The law is well settled in this State that usury can only attach to a loan of money or to the forbearance of a debt, and that, on a contract for the sale of property, the contracting parties may agree upon one price if cash be paid, and upon a large addition to the cash price, as may suit themselves, if credit be given. Where the facts show that the transaction is in reality a sale, and the agreement is not made in consideration of the loan or forbearance of money, the charge of usury is not sustained. Ford v. Hancock, 36 Ark. 248; Brakefield v. Halpern, 55 Ark. 265, 15 S. W 190; Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126; Blake Bros. v. Askew, 112 Ark. 514, 166 S. W. 965; Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978; and Standard Motor Finance Co. v. Mitchell Auto Co., 173 Ark. 875, 293 S. W. 1026.

The cash price of the automobile was $600.31, and the credit price, including certain extra equipment, was $743.81. The added charge was not a mere device to evade the statute against usury, but it represented the credit price of the car as distinguished from its cash price, and the circuit court properly held that the sale was valid and free from any taint of usury. The facts did not show this to be a case where property was sold at a cash valuation and certain payments were deferred in consideration that a greater rate of interest than allowed by law be paid by the purchaser. The transaction was neither a loan nor a forbearance of a debt, but was simply a contract to pay a greater sum for the purchase price of the automobile on a credit than would have been paid had the sale been for cash.

It is next insisted that the contract is usurious because the memorandum on the face of the note and sales contract, as signed by Ima Mae Cheairs, was “Insurance and interest,” instead of “Insurance and carrying charge,” as it now appears. The sum under this item was $76, and, under the facts disclosed'by the record, though it was in the original contract called ‘ ‘ interest, ’ ’ if was not paid for a loan of money, but was a part of the purchase price which the defendant at the time agreed to pay for the automobile. There.is no evidence whatever that the transaction was intended as a cover for a loan. Parker v. Coburn, 10 Allen (Mass.) 82. Hence the alteration in the contract was an immaterial one, and there is no ground whatever for the suggestion of the defendants that the contract was usurious.

Therefore the judgment will be affirmed.