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“Deeds of record in the recorder's office in be stolen, with intent to deprive the true the county, at the time the council passes on owner thereof. He was convicted, and apthe question, are the criterion in so far as the peals from a judgment sentencing him to property represented by instruments subject 18 months' imprisonment in the state penito record is concerned.”

tentiary. Under the showing made, the names of There was testimony on behalf of the state these petitioners were properly excluded. tending to prove that in January, 1920, ar

The petition for rehearing will be overrul- ticles of clothing were stolen from several ed, as, upon a reconsideration of the record persons in Little Rock, Pulaski county, Ark., in the case, it appears that a majority in of the aggregate value of more than $300. value of the property owners have not peti- Two boys confessed to stealing the property, tioned for the improvement.

and they told the police officers where the articles could be found. They were under a dwelling house at 315 Gaines street, up near the frout. Appellant, after he was arrested,

also told the officers where they could find ELLIS V. STATE. (No. 62.)

the stolen goods. On cross-examination, one

of the officers was asked if he knew whether (Supreme Court of Arkansas. June 21, 1920.)

or not appellant was whipped at police 1. Witnesses Cw388(5)-Cross-examination to headquarters. He answered that he did not

impeach defendant not erroneous as introduc- know anything about it. After this, the tion of confession without proof of voluntary question was repeated, and objected to by the character.

state. The court, at this juncture, sustained Where court did not permit any testimony the objection, reserving a final ruling until in nature of a confession to go to jury, there appellant showed that he was subjected to was no error on any theory state was permit- a whipping for the purpose of extorting ted on cross-examination to introduce confession, without first proving it was voluntary; the property stated that they deposited the

statements from him. The boys who stole purpose of defendant's cross-examination as to statements made by him on examining trial same at Nineteenth and Commerce. One of being merely to lay foundation for impeach- these stated that, at appellant's request, witment.

ness and one Davis "went out there, and got 2. Criminal law w517(2)-Statements on ex

out the stuff, and carried it down to the amining trial in nature of confessions admis. house" where appellant resided; that appelsible.

lant stated he would put it where it could Statements made by defendant, accused of not be found. The witness testified that the receiving stolen goods, on the examining trial, appellant knew that the articles were stolin the nature of confessions of guilt, having

Witness stated that he so informed the been made in open court voluntarily, are admis

appellant. sible.

The testimony of the appellant was to the 3. Criminal law w883–Verdict not specifying effect that he did not have any conversation offense defined by instructions not defective. with the parties who stole the goods. He Verdict, “We, the jury, find the defendant

was ipformed by one Davis, after the parties guilty and leave the punishment to the court," held not fatally defective on account of its were arrested, that the goods were taken to form; the court having fully and correctly in- appellant's house. Appellant looked for the structed as to the essentials of the crime charg- I things, and could not find them. The officers ed, that of receiving stolen property.

arrested appellant and took him to the city 4. Criminal law Otwa 79812-Charge as to form

hall, where they asked him about the suit of verdict proper.

cases containing the articles. Appellant tesIn a prosecution for receiving stolen prop

tified that the officers beat him up, so he erty, a charge as to form of verdict held proper. did not know what he was talking about.

They whipped him "on his naked meat," Appeal from Circuit Court, Pulaski Coun- | broke the skin, and brought blood from him. ty; John W. Wade, Judge.

One of the officers put his foot on his head Will Ellis was convicted of receiving stolen This officer hit appellant over the head

and was holding him down on the floor. goods, and he appeals. Affirmed.

three times with a black-jack. After beatTroy W. Lewis, of Little Rock, for appel- ing him, they gave him salve for his wounds. lant.

They injured his back, and be passed blood Jno. D. Arbuckle, Atty. Gen., and Silas W. ) in his urine. They tried to make him confess Rogers, Asst. Atty. Gen., for the State. that he stole the two grips. At this junc

ture the appellant was asked the following WOOD), J. Appellant was indicted, under question: section 1830 of Kirby's Digest, for the crime

“Q. Did you confess it? of receiving stolen goods, knowing them to! "A. No,"

en.

(222 S.W.) Among other instructions the court gave, form of the verdict at the time same was renthe following:

dered. Furthermore, the verdict was not "If you find the defendant guilty, you will say, fatally defective on account of its form. The “We, the jury, find the defendant guilty of re- court had fully and correctly instructed the ceiving stolen property, as charged in the in- jury as to the essentials of the crime of dictment, and fix his punishment at a term of which appellant was accused. When the veryears in the penitentiary not less than one, or dict is taken in connection with the instrucno more than five years. If you find the de- tions, there can be no doubt that the jury infendant guilty, and cannot agree upon the pun- tended to find appellant guilty of receiving ishment, you will leave that to the court, and in that event the court will fix the punishment." stolen property, knowing at the time he re

ceived it that same was stolen. The court The appellant duly excepted to the ruling had instructed the jury, that, before they of the court in giving this instruction. The could find the defendant guilty, they "must jury returned a verdict as follows:

find that, at the time he received it, he did “We, the jury, find the defendant guilty, and so receive it with the knowledge that it was leave the punishment to the court.”

stolen, and that he had the intent, in so re

ceiving it, to deprive the true owner of the There was no objection by the appellant, property.” There was no error in the inat the time the verdict was rendered, to the struction as to the form of the verdict. form of the verdict.

The indictment charged that appellant "did [1] The appellant contends that the court unlawfully and feloniously receive and have, erred in permitting the state to introduce the with the felonious intent to deprive the true confession of appellant, without first proving owners thereof, he then and there well knowthat the confession was free and voluntary. ing that the property had been so feloniously The record does not bear out counsel for ap- stolen,” etc. When the jury found the appelpellant in his contention that the state, over lant guilty as charged in the indictment, they the objection of appellant, introduced a con- necessarily found that he received the goods, fession by appellant in order to establish his knowing at the time that they were stolen. guilt. Although appellant testified that he

There is no error. Affirmed. was severely beaten by the officers for the purpose of making him confess, nevertheless he denied that he made any confession. The proof introduced on behalf of the state did uot tend to prove any confession on the AMERICAN RY. EXPRESS CO. V. COLLINS.

(No. 63.) part of appellant. True, the prosecuting at. torney propounded certain questions in his (Supreme Court of Arkansas. June 21, 1920.) cross-examination of appellant concerning 1. Carriers Com 134_Evidence held to show alleged statements made by appellant when a

identity of shipment by express, witness on the examining trial before the

In action against express company for loss municipal court. The appellant answered of plaintiff's son's effects, delivered to comthese questions by saying that he did not pany by Navy Department for transmission to know, or by categorically denying that he plaintiff, evidence held to warrant finding that made the statements attributed to him. It the articles contained on the list of son's efis manifest that the purpose of this examina- fects given plaintiff by Navy Department were tion was not to introduce any alleged state- those delivered by the department to express

company. ment of the appellant in order to show a confession, but for the purpose of laying the 2. Carriers en 136—Whether express company foundation for the impeachment of appellant

delivered same package received by it held

for jury. as a witness. [2] The record, as abstracted - by appel for loss of the effects of plaintiff's son, de

In an action against an express company lant's counsel, does not show that the court livered to it by the Navy Department for transpermitted any testimony in the nature of a

mission to plaintiff, whether or not the deconfession to go to the jury. Moreover, if partment delivered to the express company the any of the statements made by appellant on personal effects that belonged to plaintiff's son, the examining trial were susceptible of be- and whether the company tendered to plaining construed as in the nature of confessions tiff the same package, held for the jury. of guilt, such statements were made in open

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Appeal from Circuit Court, Yell County; court, and besides were entirely voluntary. A. B. Priddy, Judge. See Iverson v. State, 99 Ark. 453, 138 S. W. 958. It was proved that the appellant was

Action by J. K. Collins against the Amerianxious to testify before the examining court.

can Railway Express Company. From judgThere was no prejudicial error in the rulings ment for plaintitf, defendant appeals. Afof the court in admitting or excluding testi

firmed. mony.

Davis & Bohlinger, of Dardanelle, for ap(3, 4) The appellant did not object to the pellant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

dia te 19, 22. This contention of appellant is un

WOOD, J. Jerry Collins died on the Unit-, of the appellee in the sum of $55. From the ed States hospital ship Mercy. The Navy judgment in that sum is this appeal. Department furnished J. K. Collins, his fa Appellant contends that there is no testither, hereafter called appellee, a list of his mony to show that the items listed by the son's personal effects. Appellee instructed Navy Department, which list was sent by the the Navy Department to forward by express Navy Department through the mail to appelhis son's belongings to him at Ola, Ark. lee, were ever delivered to the appellant; June 15, 1919, the agent of the American that there is no testimony to show that the Railway Express Company, hereafter called package which appellant tendered to appellee appellant, attempted to deliver to appellee a was not the identical package which it rebundle of clothing which it had received ceived from the Navy Department for shipfrom Norfolk, Va. Upon examination of the ment to the appellee. package appellee became satisfied that it did not contain the property of his son. It did tenable. Although appellee was unable to not contain all the items on the list of his identify the articles contained on the list son's property which had been sent the ap- sent by the Navy Department as the ones de pellee by the Navy Department. Some of livered by the Navy Department to appellant the items were marked “R. Collins.” Appel- for shipment to the appellee, and although lee thought the package delivered weighed no other witness testified that they were the more than the weight given of the package same articles delivered to appellant for shipcontaining his son's property. The Navy De ment to the appellee, yet the jury were warpartment sent to the appellee a bill of lading ranted in finding that such were the facts November 1, 1918. He turned the bill of lad- from the list sent by the Navy Department ing over to the telegraph operator at Ola and through the mail to the appellee and the direquested him to trace the goods, which the rection given by the appellee to the Navy Deoperator afterwards told him that he could partment to ship the articles contained on not locate. Appellee made several inquiries the list to him, and the further fact that the of appellant's agent at Ola, and upon being Navy Department sent in its letter to appellee unable to locate the goods appellee brought the bill of lading showing that the Navy Dethis action against the appellant August 12, partment had delivered to appellant a pack1919, to recover damages for the loss of the age to be transported to the appellee. This articles, which he valued at the sum of $85. fact made it an issue for the jury to say The bill of lading and the list of articles fur- whether or not the Navy Department delivernished appellee by the Navy Department ed to appellant the personal effects that bewere without objection introduced in evi- longed to appellee's son, and whether appel. dence. Appellee testified to the items which lant tendered to appellee this same package. were included in the list sent him by the Na The court did not err in submitting this vy Department and which were not contained issue to the jury. Appellant does not comin the package tendered him by the appel- plain that the issue was submitted under erlant. On cross-examination appellee stated roneous instructions. Appellant only conthat he could not swear that the items claim- tends that there was no substantial evidence ed as missing had ever been delivered to ap- to take that issue to the jury. We are con. pellant, and that he could not swear that the vinced that there was such evidence. items claimed by him were the items listed The judgment is correct, and therefore afunder the heading of personal effects on the firmed. blank furnished by the Navy Department; but he further stated on redirect examination that the list of his son's personal effects

COLĖ V. STATE. (No. 68.) offered in evidence had been forwarded to him by the Navy Department through the (Supreme Court of Arkansas. June 21, 1920. mail. He could not swear that the appellant Rehearing Denied July 12, 1920.) issued the bill of lading which was sent him.

The court instructed the jury, among oth- ". Intoxicating liquors Own 20–Statute provider things, that the burden was upon the ap

ing for summary seizure and destruction valid.

The statute providing for the summary seizpellee to make out his case by a preponder

ure and destruction of intoxicating liquors kept ance of the evidence, and that unless the in a prohibited district to be sold contrary to goods of appellee's son were delivered to the law is valid. appellant it would not be liable; that if appellant tendered to appellee the goods that 2. Jury Own 19 (15)-Jury trial in proceeding to were delivered to it by the Navy Department

condemn intoxicating liquors not contem.

plated. for shipment to appellee the appellant would

The statute providing for the summary seiznot be liable. The appellant asked the court to instruct the jury to return a verdict in its in a prohibited district to be sold contrary to

ure and destruction of intoxicating liquors kept favor. The court refused to grant appellant's law does not contemplate jury trial in a proprayer. The jury returned a verdict in favor | ceeding for the condemnation of such liquors.

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(222 S.W.) 3. Intoxicating liquors 250–Defendant com- in question for the purpose of appearing

plaining of condemnation of liquor must show for Cole in the case; that when he arrived he was not negligent in failing to attend hear- the case had been disposed of and the alIng.

cohol ordered destroyed; that the sheriff It is the duty of a litigant to keep himself complied with the order of the circuit court informed of the progress of his case, and one

as soon as it was made, and immediately charged with illegal sale of intoxicants, seek- publicly destroyed the alcohol; that both ing relief against a collateral judgment for their condemnation on the ground of unavoid- Cole and his attorney understood the proable casualty in not attending the hearing, must ceeding to be set for trial in the circuit show that he himself was not guilty of negli- court at 9 o'clock a. m. on the day of Novemgence in failing to be present, a requirement not ber 17, 1919. The case is here on appeal. satisfied by testimony of himself and his attorney that they understood the case was set

J. E. London, of Van Buren, and T. S. for a later hour than recited in the bill of ex- Osborne, of Ft. Smith, for appellant. ceptions.

Jno. D. Arbuckle, Atty. Gen., and Silas

W. Rogers, Asst. Atty. Gen., for the State. Appeal from Circuit Court, Sebastian County; John Brizzolara, Judge.

HART, J. (after stating the facts as above). W. H. Cole was prosecuted for the illegal the court has held valid our statute provid

[1, 2] It may be stated at the outset that sale of intoxicating liquors, and acquitted, ing for the summary seizure and destruction and from a collateral judgment that the of intoxicating liquors kept in a prohibited alcohol in possession of the sheriff and claimed by defendant be publicly destroyed, de- district to be sold contrary to law, and that fendant appeals. Affirmed.

the act does not contemplate a trial by jury

in a proceeding to condemn and destroy such This appeal involves the validity of a liquors. Kirkland v. State, 72 Ark. 171, judgment of the circuit court adjudging that | 78 S. W. 770, 65 L. R. A. 76, 105 Am. St. ten gallons of alcohol in the possession of Rep. 25, 2 Ann. Cas. 242. the sheriff of Sebastian county, Ark., and It appears from the bill of exceptions that claimed by W. H. Cole, be publicly destroyed the case was specially set for 8:30 a. m. by the sheritf.

on November 17, 1919, and that it was heard It appears from the transcript that the and determined at that time. It is true that cause was specially set for hearing in the according to the affidavits of Cole and his circuit court at 8:30 a. on November attorney they understood that the case was 17, 1919, and that the defendant was noti- set at a different hour on that day, but these fied of the setting of the case for that time. affidavits were not sufficient to conclusively When the case came on to be heard, the overcome the recital in the bill of exceptions defendant and his counsel were separately that the case had been specially set for called, but neither one made any appearance 8:30 a. m. in the proceeding. The prosecuting attorney [3] The court overruled Cole's motion for on behalf of the state introduced evidence a new trial because it did not state the facts, tending to show that the ten gallons of al- and it cannot be said that the finding of cohol had been taken by the sheriff from the court in this respect is without evidence the possession of W. H. Cole, and that said to support it. The case was brought reguCole kept alcohol to be sold contrary to law. Iarly on for trial and was regularly subThe alcohol was destroyed by the sheriff in mitted for decision. It is the duty of a liticompliance with the order of the circuit gant to keep himself informed of the progress court.

of his case, and the party seeking relief Subsequently, at the same term of the against a judgment on the ground of unacourt, the defendant filed a motion for a voidable casualty must show that he himself new trial, in which he set up that he had is not guilty of negligence. Trumbull v. been charged with the illegal sale of intox- Harris, 114 Ark. 493, 170 S. W. 222. icating liquors, and had been acquitted of As above stated, the testimony of Cole and the charge, that the alcohol had been seized his attorney to the effect merely that they by the sheriff, and that the case, in so far understood the case was set for a later hour as the seizure of the alcohol was concerned, does not conclusively overcome the recital had been continued several times at the in- | in the bill of exceptions that the case was stance of the prosecuting attorney, and at specially set for trial at 8:30 a. m.; and it each time the case had been set for 1 o'clock cannot be said, therefore, that the judgment p. m.; that the case ad been finally set of the court in overruli Cole's motion for a for November 17, 1919, and that both Cole new trial is not without evidence to supand his attorney understood that it was set port it. for 9 o'clock a. m.; that the attorney of

Therefore the judgment will be affirmed. Cole resided near the courthouse, and came there at 8:40 o'clock a. m. on the morning HUMPHREYS, J., not participating.

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Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on

pellant, the first note and mortgage being SMITH v. J. M. TAYLOR & Co. (No. 74.) executed on June 30, 1917, and due November (Supreme Court of Arkansas. June 21, 1920. 15, 1917, and the second note and mortgage Rehearing Denied July 12, 1920.)

upon May 25, 1918, due and payable in six

months thereafter, both notes bearing inter1. Payment Cw65(6)-One asserting payment est at the rate of 10 per cent. per annum of an obligation has burden of proof.

from their respective dates. The cross-bill Where defendant asserted payment of a contained a prayer for foreclosure in the toduebill given plaintiff, defendant had the burden tal sum of $590.60, the alleged balance due of proof on that issue.

on open account for advances made by appel. 2. Payment ww74(1)-Evidence held to show lee to appellant and his hands. Appellant payment of duebill.

pleaded the statute of frauds as a defense In suit for an accounting brought by a negro to appellee's claim for merchandise furnishfarmer against a merchant, evidence held to ed his hands. The cause was submitted upwarrant finding in favor of the merchant that a duebill given the negro had been paid; it

the pleadings, evidence, and exhibits appearing the negro had executed a receipt.

thereto, from which the court found that ap. 3. Appeal and error 907(5).- Presumption of $590.60, and upon which finding a judg

pellant was indebted to appellee in the sum that books of account not brought into record supported decree.

ment and decree of foreclosure against the In a suit for an accounting, where the de- property were rendered. From the judgment cree recited that on presentation of defendant's and decree, an appeal has been duly prosebooks in open court, it was adjudged that a cer- cuted to this court. tain amount was due, and the books were not Appellant contends that in stating the acbrought into the record by bill of exceptions, count the trial court erred: First, in disalor otherwise, it will be presumed by the appel- lowing him $400 and interest an alleged loan; late court that they sustained the findings and second, in allowing appellee a large sum in decree.

excess of $127 for merchandise in 1917; 4. Frauds, statute of ww23(3)-Recital of third, in allowing appellee $317.90 and intermortgages took transaction out of statute,

est on account of merchandise furnished R. Where mortgages recited that they were H. Murray, and $51.95 and interest for mergiven to secure advancements, and provided chandise furnished A. C. Chapman. that defendant storekeeper should furnish supplies to plaintiff and his hands, the recitals con

[1, 2] 1. Appellant testified: That he loan. stituted the undertakings original obligations ed appellee $400 on December 19, 1916, for a without the statute, and so there might be a short time, and took the following duebill recovery, though the supplies, instead of being as evidence of the indebtedness: charged to plaintiff, were charged to his hands.

"Parkin, Ark. Appeal from Cross Chancery Court; A. L. “In Account with J. M. Taylor Co. Hutchins, Chancellor.

“I have borrowed $400 from Walter Smith

for two weeks. Suit by Walter Smith against J. M. Taylor

"J. M. Taylor. 12/19/16." & Co. which cross-complained. From a decree for defendant on its cross-complaint, kin Home Bank for the amount. That he

That he gave appellee a check on the Parplaintiff appeals. Affirmed.

deposited the duebill with the bank in order R. R. Bond and Killough, Lines & Kil- for appellee to pay it if he desired to do so, lough, all of Wynne, for appellant.

as well as for safe-keeping, where it remain. J. C. Brookfield, of Wynne, for appellee. ed, without being presented for payment, wil.

til February or March, 1919, at which time HUMPHREYS, J. Appellant, negro it was returned to him on request. That farmer, instituted suit against appellee, a appellee never repaid, and still owes, the supply merchant, for an accounting growing amount to him. On the 20th day of Decemout of transactions between them for the ber, 1916, appellant's account with the bank years 1916, 1917, and 1918, and for judgment was charged with $400. in the sum of $1,400. Appellee filed an- Appellee testified that he bought some cotswer, denying any indebtedness on account ton from appellant and owed him $100; of transactions between them, and, by way that, on account of the bank being closed, of cross-complaint, alleging that appellant appellant did not want a check, and asked was indebted to his supply store in the sum for a duebill, which he gave him; that he of $590.60, with interest thereon from Octo- paid the duebill and took a receipt, as apber 25, 1918, after giving appellant credit pellant did not have it with him at the time for all amounts paid in cash or cotton; that, he paid it; that he wrote the receipt, and apto secure advances made to appellant and pellant signed it. The roceipt is as follows: his hands in 1917 and 1918, appellant exe

"Received of J. M. Taylor for duebill dated cuted two notes, secured by mortgages upon 12/19/16 paid in full. 12/28/16. Walter certain chattels and crops being raised by ap-Smith."

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