Under the showing made, the names of these petitioners were properly excluded.

The petition for rehearing will be overruled, as, upon a reconsideration of the record in the case, it appears that a majority in value of the property owners have not petitioned for the improvement.

ELLIS v. STATE. (No. 62.)

be stolen, with intent to deprive the true owner thereof. He was convicted, and appeals from a judgment sentencing him to 18 months' imprisonment in the state peni

tentiary.

There was testimony on behalf of the state tending to prove that in January, 1920, articles of clothing were stolen from several persons in Little Rock, Pulaski county, Ark., of the aggregate value of more than $300. Two boys confessed to stealing the property, 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 the stolen goods. On cross-examination, one of the officers was asked if he knew whether or not appellant was whipped at police headquarters. He answered that he did not know anything about it. After this, the question was repeated, and objected to by the 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 confes- statements from him. The boys who stole sion, without first proving it was voluntary; the property stated that they deposited the purpose of defendant's cross-examination as to statements made by him on examining trial being merely to lay foundation for impeach

(Supreme Court of Arkansas. June 21, 1920.) 1. Witnesses 388 (5)-Cross-examination to impeach defendant not erroneous as introduction of confession without proof of voluntary character.

ment.

same at Nineteenth and Commerce. One of these stated that, at appellant's request, witness and one Davis "went out there, and got out the stuff, and carried it down to the

2. Criminal law 517(2)-Statements on examining trial in nature of confessions admis-house" where appellant resided; that appel

lant stated he would put it where it could not be found. The witness testified that the appellant knew that the articles were stolen. Witness stated that he so informed the appellant.

The testimony of the appellant was to the effect that he did not have any conversation with the parties who stole the goods. He was informed by one Davis, after the parties were arrested, that the goods were taken to appellant's house. Appellant looked for the things, and could not find them. The officers arrested appellant and took him to the city hall, where they asked him about the suit cases containing the articles. Appellant tesdid not know what he was talking about. tified that the officers beat him up, so he They whipped him "on his naked meat," broke the skin, and brought blood from him. One of the officers put his foot on his head and was holding him down on the floor.

Will Ellis was convicted of receiving stolen This officer hit appellant over the head goods, and he appeals. Affirmed.

three times with a black-jack. After beat

Troy W. Lewis, of Little Rock, for appel- ing him, they gave him salve for his wounds. lant. They injured his back, and he 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.

WOOD, J. Appellant was indicted, under section 1830 of Kirby's Digest, for the crime of receiving stolen goods, knowing them to

that he stole the two grips. At this junc-
ture the appellant was asked the following
question:

"Q. Did you confess it?
"A. No."

(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 fatally defective on account of its form. The court had fully and correctly instructed the jury as to the essentials of the crime of which appellant was accused. When the verdict is taken in connection with the instructions, there can be no doubt that the jury intended to find appellant guilty of receiving stolen property, knowing at the time he re

“If you find the defendant guilty, you will say, 'We, the jury, find the defendant guilty of receiving stolen property, as charged in the indictment, and fix his punishment at' a term of years in the penitentiary not less than one, or no more than five years. If you find the defendant guilty, and cannot agree upon the punishment, you will leave that to the court, and in that event the court will fix the punishment."

The appellant duly excepted to the ruling of the court in giving this instruction. The jury returned a verdict as follows:

ceived it that same was stolen. The court had instructed the jury, that, before they could find the defendant guilty, they "must 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."

There was no objection by the appellant, at the time the verdict was rendered, to the form of the verdict.

stolen, and that he had the intent, in so receiving it, to deprive the true owner of the property." There was no error in the instruction as to the form of the verdict.

The indictment charged that appellant "did unlawfully and feloniously receive and have, with the felonious intent to deprive the true owners thereof, he then and there well knowing that the property had been so feloniously stolen," etc. When the jury found the appellant guilty as charged in the indictment, they necessarily found that he received the goods, knowing at the time that they were stolen. There is no error.

Affirmed.

(No. 63.)

[1] The appellant contends that the court erred in permitting the state to introduce the confession of appellant, without first proving that the confession was free and voluntary. The record does not bear out counsel for appellant in his contention that the state, over the objection of appellant, introduced a confession by appellant in order to establish his guilt. Although appellant testified that he 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 not tend to prove any confession on the AMERICAN RY. EXPRESS CO. v. COLLINS. part of appellant. True, the prosecuting attorney propounded certain questions in his cross-examination of appellant concerning alleged statements made by appellant when a witness on the examining trial before the municipal court. The appellant answered these questions by saying that he did not know, or by categorically denying that he made the statements attributed to him. It is manifest that the purpose of this examination was not to introduce any alleged statement of the appellant in order to show a confession, but for the purpose of laying the foundation for the impeachment of appellant as a witness.

[2] The record, as abstracted by appellant's counsel, does not show that the court permitted any testimony in the nature of a confession to go to the jury. Moreover, if any of the statements made by appellant on the examining trial were susceptible of being construed as in the nature of confessions of guilt, such statements were made in open court, and besides were entirely voluntary. See Iverson v. State, 99 Ark. 453, 138 S. W. 958. It was proved that the appellant was anxious to testify before the examining court. There was no prejudicial error in the rulings of the court in admitting or excluding testimony.

(Supreme Court of Arkansas. June 21, 1920.) 1. Carriers 134-Evidence held to show identity of shipment by express.

In action against express company for loss of plaintiff's son's effects, delivered to company by Navy Department for transmission to plaintiff, evidence held to warrant finding that the articles contained on the list of son's effects given plaintiff by Navy Department were those delivered by the department to express

company.

2. Carriers 136-Whether express company delivered same package received by it held for jury.

for loss of the effects of plaintiff's son, deIn an action against an express company livered to it by the Navy Department for transmission to plaintiff, whether or not the department delivered to the express company the personal effects that belonged to plaintiff's son, and whether the company tendered to plaintiff the same package, held for the jury.

Appeal from Circuit Court, Yell County; A. B. Priddy, Judge.

Action by J. K. Collins against the American Railway Express Company. From judgAfment for plaintiff, defendant appeals.

firmed.

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

of the appellee in the sum of $55. From the judgment in that sum is this appeal.

Appellant contends that there is no testimony to show that the items listed by the Navy Department, which list was sent by the Navy Department through the mail to appellee, were ever delivered to the appellant; that there is no testimony to show that the package which appellant tendered to appellee was not the identical package which it received from the Navy Department for shipment to the appellee.

[1, 2] This contention of appellant is untenable. Although appellee was unable to identify the articles contained on the list sent by the Navy Department as the ones delivered by the Navy Department to appellant for shipment to the appellee, and although no other witness testified that they were the same articles delivered to appellant for shipment to the appellee, yet the jury were warranted in finding that such were the facts from the list sent by the Navy Department through the mail to the appellee and the direction given by the appellee to the Navy Department to ship the articles contained on the list to him, and the further fact that the Navy Department sent in its letter to appellee the bill of lading showing that the Navy Department had delivered to appellant a package to be transported to the appellee. This fact made it an issue for the jury to say whether or not the Navy Department delivered to appellant the personal effects that belonged to appellee's son, and whether appellant tendered to appellee this same package.

WOOD, J. Jerry Collins died on the United States hospital ship Mercy. The Navy Department furnished J. K. Collins, his father, hereafter called appellee, a list of his son's personal effects. Appellee instructed the Navy Department to forward by express his son's belongings to him at Ola, Ark. June 15, 1919, the agent of the American Railway Express Company, hereafter called appellant, attempted to deliver to appellee a bundle of clothing which it had received from Norfolk, Va. Upon examination of the package appellee became satisfied that it did not contain the property of his son. It did not contain all the items on the list of his son's property which had been sent the appellee by the Navy Department. Some of the items were marked "R. Collins." Appellee thought the package delivered weighed more than the weight given of the package containing his son's property. The Navy Department sent to the appellee a bill of lading November 1, 1918. He turned the bill of lading over to the telegraph operator at Ola and requested him to trace the goods, which the operator afterwards told him that he could not locate. Appellee made several inquiries of appellant's agent at Ola, and upon being unable to locate the goods appellee brought this action against the appellant August 12, 1919, to recover damages for the loss of the articles, which he valued at the sum of $85. The bill of lading and the list of articles furnished appellee by the Navy Department were without objection introduced in evidence. Appellee testified to the items which were included in the list sent him by the Navy Department and which were not contained in the package tendered him by the appellant. On cross-examination appellee stated that he could not swear that the items claimed as missing had ever been delivered to appellant, and that he could not swear that the items claimed by him were the items listed under the heading of personal effects on the blank furnished by the Navy Department; but he further stated on redirect examination that the list of his son's personal effects COLE 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-1. Intoxicating liquors 20-Statute providing for summary seizure and destruction valid. er things, that the burden was upon the appellee to make out his case by a preponder-ure and destruction of intoxicating liquors kept The statute providing for the summary seizance 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 ap

The court did not err in submitting this issue to the jury. Appellant does not complain that the issue was submitted under erroneous instructions. Appellant only contends that there was no substantial evidence to take that issue to the jury. We are convinced that there was such evidence. The judgment is correct, and therefore affirmed.

pellant tendered to appellee the goods that 2. Jury 19(15)-Jury trial in proceeding to condemn intoxicating liquors not contemwere delivered to it by the Navy Department plated. for shipment to appellee the appellant would The statute providing for the summary seiznot be liable. The appellant asked the courture and destruction of intoxicating liquors kept to instruct the jury to return a verdict in its favor. The court refused to grant appellant's prayer. The jury returned a verdict in favor

in a prohibited district to be sold contrary to law does not contemplate jury trial in a proceeding for the condemnation of such liquors.

(222 S.W.)

Ing.

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 alcohol ordered destroyed; that the sheriff complied with the order of the circuit court as soon as it was made, and immediately publicly destroyed the alcohol; that both Cole and his attorney understood the proceeding to be set for trial in the circuit court at 9 o'clock a. m. on the day of November 17, 1919. The case is here on appeal.

It is the duty of a litigant to keep himself informed of the progress of his case, and one charged with illegal sale of intoxicants, seek ing relief against a collateral judgment for their condemnation on the ground of unavoidable casualty in not attending the hearing, must show that he himself was not guilty of negligence in failing to be present, a requirement not satisfied by testimony of himself and his attorney that they understood the case was set for a later hour than recited in the bill of exceptions.

Appeal from Circuit Court, Sebastian County; John Brizzolara, Judge.

W. H. Cole was prosecuted for the illegal sale of intoxicating liquors, and acquitted, and from a collateral judgment that the alcohol in possession of the sheriff and claimed by defendant be publicly destroyed, defendant appeals. Affirmed.

This appeal involves the validity of a judgment of the circuit court adjudging that ten gallons of alcohol in the possession of the sheriff of Sebastian county, Ark., and claimed by W. H. Cole, be publicly destroyed by the sheriff.

It appears from the transcript that the cause was specially set for hearing in the circuit court at 8:30 a. m. on November 17, 1919, and that the defendant was notified of the setting of the case for that time. When the case came on to be heard, the defendant and his counsel were separately called, but neither one made any appearance in the proceeding. The prosecuting attorney on behalf of the state introduced evidence tending to show that the ten gallons of alcohol had been taken by the sheriff from the possession of W. H. Cole, and that said Cole kept alcohol to be sold contrary to law. The alcohol was destroyed by the sheriff in compliance with the order of the circuit court.

J. E. London, of Van Buren, and T. S. Osborne, of Ft. Smith, for appellant.

Jno. D. Arbuckle, Atty. Gen., and Silas W. Rogers, Asst. Atty. Gen., for the State.

HART, J. (after stating the facts as above). the court has held valid our statute provid[1, 2] It may be stated at the outset that ing for the summary seizure and destruction of intoxicating liquors kept in a prohibited district to be sold contrary to law, and that the act does not contemplate a trial by jury in a proceeding to condemn and destroy such liquors. Kirkland v. State, 72 Ark. 171, 78 S. W. 770, 65 L. R. A. 76, 105 Am. St. Rep. 25, 2 Ann. Cas. 242.

It appears from the bill of exceptions that the case was specially set for 8:30 a. m. on November 17, 1919, and that it was heard and determined at that time. It is true that according to the affidavits of Cole and his attorney they understood that the case was set at a different hour on that day, but these affidavits were not sufficient to conclusively overcome the recital in the bill of exceptions that the case had been specially set for 8:30 a. m.

[3] The court overruled Cole's motion for a new trial because it did not state the facts, and it cannot be said that the finding of the court in this respect is without evidence to support it. The case was brought regularly on for trial and was regularly submitted for decision. It is the duty of a litgant to keep himself informed of the progress of his case, and the party seeking relief against a judgment on the ground of unavoidable casualty must show that he himself is not guilty of negligence. Trumbull v.

Subsequently, at the same term of the court, the defendant filed a motion for a new trial, in which he set up that he had been charged with the illegal sale of intox-Harris, 114 Ark. 493, 170 S. W. 222. icating liquors, and had been acquitted of the charge, that the alcohol had been seized by the sheriff, and that the case, in so far as the seizure of the alcohol was concerned, had been continued several times at the instance of the prosecuting attorney, and at each time the case had been set for 1 o'clock p. m.; that the case had been finally set for November 17, 1919, and that both Cole and his attorney understood that it was set for 9 o'clock a. m.; that the attorney of Cole resided near the courthouse, and came there at 8:40 o'clock a. m. on the morning!

As above stated, the testimony of Cole and his attorney to the effect merely that they understood the case was set for a later hour does not conclusively overcome the recital in the bill of exceptions that the case was specially set for trial at 8:30 a. m.; and it cannot be said, therefore, that the judgment of the court in overruling Cole's motion for a new trial is not without evidence to support it.

Therefore the judgment will be affirmed.
HUMPHREYS, J., not participating.

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

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

upon May 25, 1918, due and payable in six months thereafter, both notes bearing interest at the rate of 10 per cent. per annum from their respective dates. The cross-bill contained a prayer for foreclosure in the total sum of $590.60, the alleged balance due on open account for advances made by appel74(1)-Evidence held to show lee to appellant and his hands. Appellant

1. Payment 65 (6)-One asserting payment
of an obligation has burden of proof.
Where defendant asserted payment of a
duebill given plaintiff, defendant had the burden
of proof on that issue.

R. R. Bond and Killough, Lines & Kil- for appellee to pay it if he desired to do so, lough, all of Wynne, for appellant.