of said mortgages has been paid. This is conceded by counsel for appellant, Beckler, but they contend that the description of the mortgaged property in the mortgage to Snerly is void for uncertainty, and for that reason the mortgage to appellant is a prior lien on the rice crop in question. Thus it will be seen that the sole question presented on this appeal is whether or not the description of the mortgaged property contained in appellee Snerly's mortgage is sufficient to create a lien upon the property sought to be embraced in the mortgage against a subsequent mort gagee. It will be seen from our statement of facts that Beck gave a mortgage to Snerly upon a sufficient portion of his undivided one-half interest in 200 acres of rice to be grown on his farm during the year 1923 to comply with the condition in the mortgage, and that the condition in the mortgage is that Beck shall pay to Snerly $1,484 not later than November 10, 1923. In other words, this was a mortgage on a sufficient portion of the undivided one-half interest of C. S. Beck in a rice crop of 200 acres more or less, to be grown on his farm during the year 1923, to pay an indebtedness of $1,484 which Beck owed Snerly. [1] The text-writers lay down the general rule to be that any description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates and directs, is sufficient. A second rule is that any description which can be made certain by such inquiries is good. In short, if the description of the property in a chattel mortgage is sufficient to put third persons on inquiry, from which inquiry they can ascertain what the property is which is attempted to be described in the mortgage, such description would be sufficient. Dodds v. Neel, 41 Ark. 70, Johnson v. Grissard, 51 Ark. 410, 11 S. W. 585, 3 L. R. A. 795, and Eades v. Simpson, 127 Ark. 162, 191 S. W. 953. In the application of this general rule, the Supreme Court of Alabama in Truss v. Harvey, 120 Ala. 636, 24 So. 927, held that a mortgage on a crop for a stated year, and for every year thereafter until the debt is fully paid, is not void for uncertainty as to crops raised subsequent to the year named. In that case the property described in the mortgage was all of the crops of corn, cotton, and other produce which the mortgagor might raise or cause to be raised during the year 1893 and every year thereafter until the mortgage debt was fully satisfied. The court said that the description, although general and somewhat uncertain, was sufficient to put on inquiry, and that the purchaser of the cotton from the mortgagor was bound to ascertain whether the cotton he purchased was subject to the mortgage. The court also said that the mortgage was not void for uncer dence was admissible to show that it was still unpaid. The court cited with approval Varnum v. State, 78 Ala. 28. In that ease the defendant was convicted of the statutory offense of selling cotton for the purpose of defrauding a named person having a lien created by a mortgage. The instrument in that case recited, "My entire crop of every description, raised by me, or caused to be raised by me annually, till this debt is paid.” The defendant objected to the admission in evidence of the mortgage, on the ground that it was void for uncertainty in the description of the crops intended to be included in it. The court said that, whatever force there might be in this objection to the instrument on its face, this alleged uncertainty was capable of being removed when read in the light of the circumstances surrounding the contracting parties at the time of its execution, by extraneous parol identification; hence the judgment of conviction was affirmed. In First Nat. Bank v. Rogers, 24 Okl. 357, 103 P. 582, the Supreme Court of Oklahoma held that a description in a chattel mortgage, which is sufficient to put a third person upon inquiry which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good. In that case the words of description of the crop contained in the mortgage are as follows: "The product and proceeds of all my 1907 cotton and all my future crops until the above note is paid." The court said that the contents of the mortgage furnished the defendant information, which, aided by extrinsic evidence at his command, would have enabled him to ascertain that the cotton in controversy was the product of the crop described in the mortgage, and that he was not an innocent purchaser for value. In the case of Smith v. La Fayette & Bros., 29 Okl. 671, 119 P. 979, the description in the mortgage was all crops to be produced by the mortgagor during the years 1906, 1907, and each succeeding year until the indebtedness described in the mortgage shall have been paid in full. There as here it was claimed that the description was too vague and indefinite to put a second mortgagee upon notice. The Supreme Court of Oklahoma was of the opinion that the description was sufficient, aided by extrinsic evidence, to put the second mortgagee on his guard, and to enable him to ascertain at the time he took his mortgage that the property in controversy was covered by the prior mortgage. [2] In the case before us we are convinced that the description is sufficient, and that it comes within the general principles announced in the decisions above cited, which we regard as sound and of controlling force. Reliance is placed by counsel for appellant upon the case of Williamson v. Steele, 3 Lea (Tenn.) 527, 31 Am. Rep. 652. In that case (273 S.W.) of the cotton crop raised on a certain farm, describing it, as would be sufficient to make two bales of lint cotton, each weighing not less than 500 pounds. The description was properly held to be too indefinite, because it did not convey any aliquot part of the crop, and a mortgagee could have no right to select any particular part of the cotton raised to the extent of the quantity necessary to make two bales. This description is more like the one referred to in Dodds v. Neel, 41 Ark. 70, where it was held that a mortgage of a specified number of articles out of a larger number will not be good against creditors of the mortgagor and others acquiring adverse rights, unless it furnishes the data for separating the mortgaged part from the mass. This rule was recognized in Watson v. Pugh, 51 Ark. 218, 10 S. W. 493, but it was there said that, where the number specified is more than the whole number of such articles, there is no other property of the same kind from which a selection is to be made, and therefore no uncertainty in the description. The description in the mortgage was, "all my crop of corn, cotton, or other produce that 2. Homicide 146-Malice presumed from killing from attempt to commit felony. Malice, as a necessary ingredient of murder, is presumed when killing results from attempt to commit felony. 3. Criminal law 511(1)-Accomplices sufficiently corroborated. Testimony of accomplices on a murder trial held sufficiently corroborated by testimony of others. 4. Constitutional law 258-Homicide 8Statute making murder in perpetration of robbery first degree murder valid, and not violative of due process clause. Crawford & Moses' Dig. § 2343, declaring that murder committed in perpetration of, or attempt to perpetrate, robbery, shall be deemed murder in first degree, merely makes a change in the substantive law, and does not deprive an accused of his liberty without due process of law, on theory that it dispenses with neces specific intent to kill to convict of first degree sity of proving deliberation, premeditation, and murder. Appeal from Circuit Court, Pulaski County; John W. Wade, Judge. J. C. Kelly was convicted of first degree I may raise, or in which I may in any man-murder, and he appeals. Affirmed. Gus Fulk and Martin Fulk, both of Little [3] The record of the mortgage by Beck to Snerly was constructive notice to all persons acquiring rights in the rice crop subsequent to its execution, and, having held that the description in that mortgage was sufficient to put third parties upon inquiry, they were bound to inquire whether the rice in question was covered by the mortgage of Beck to Snerly. The result of our views is that the decree of the chancery court is correct, and it will therefore be affirmed. KELLY v. STATE. (No. 106.) (Supreme Court of Arkansas. July 6, 1925. Rehearing Denied Sept. 28, 1925.) 1. Homicide 232-Evidence held not to indicate shooting through sense of fear suddenly aroused, reducing crime to manslaughter. Evidence on prosecution, under Crawford & Moses' Dig. § 2343, making murder in attempt to rob first degree murder, held not to indicate that defendant fired through a sense of fear suddenly aroused, through deceased's struggle for pistol of defendant's accomplice, so as to reduce crime to manslaughter. H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State. HUMPHREYS, J. Appellant was indicted in the criminal district of the circuit court of Pulaski county for murder, under section 2343 of Crawford & Moses' Digest, which, omitting immaterial parts, reads as follows: which shall be committed in the perpetration of or in the attempt * robbery to perpetrate * shall "All murder * be deemed murder in the first degree." On the trial of the case, appellant was convicted of murder in the first degree, and, as a punishment therefor, was sentenced to death. From the judgment of conviction, an appeal has been duly prosecuted to this court. [1, 2] Appellant's first and main contention for a reversal of the judgment is that the facts reveal that appellant killed Harrod Fretwell under the influence of a sudden terror aroused by the successful resistance of the deceased, and, for that reason, was guilty of manslaughter, a crime not included in the indictment. Counsel for the state agree with counsel for appellant that the crime of manslaughter was not embraced within the charge, and that under the indictment appellant must have been convicted, either of murder in the first degree, or acquitted, but do not agree that the record contains any evidence tending to show that appellant was guilty of manslaughter. We agree with the For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes interpretation of the testimony by the state's that, after he shot the boy, the three men attorney. [3] Appellant next contends that the testimony of the accomplices was not sufficiently corroborated to justify his conviction. The testimony of Homer M. Adkins and other pieces of evidence referred to above sufficiently corroborated the testimony of his confederates to warrant the conviction. ran out of the station without completing According to the testimony, appellant, Al- the robbery, but the only reasonable inference vin Colbert, and A. B. Dean, armed them- is that their hasty departure was due to a selves and went to the filling station at Levy, fear that they might be detected, in case they which was in charge of Harrod Fretwell, for remained to complete the act of robbery, by the purpose of robbing him. Fretwell was some one who had heard the shot. Kelly asleep in his chair when they entered the door made no effort to get away during the strugof the filling station. Alvin Colbert, with hgle for Colbert's pistol, and he had ample pistol in hand, entered first, Kelly, with pistol opportunity to have done so. It is true that in hand entered next, and Dean followed him. malice is a necessary ingredient of murder, Colbert placed his pistol against the body of but malice is presumed when the killing rethe sleeping boy, and ordered him to throw sults from an attempt to commit a felony, up his hands. Instead of doing so, the boy, in this case an attempt to commit robbery. partly aroused, grabbed the barrel of Col- There is nothing in the testimony indicating bert's pistol, and, while trying to wrench it that the malicious intent terminated when' out of his hand, Kelly, the appellant, shot the deceased grabbed Colbert's gun. On the him. The three men then backed out of the contrary, Kelly deliberately shot the boy bestation without committing the robbery, and fore he had gotten up out of his chair. returned in haste to the car in which they had driven to the station. The car was owned by Roy Colbert, who was driving it. Roy knew nothing about the plan of the three men to rob the filling station. He and his wife were out driving with the three men and Kelly's wife. They drove out beyond the station several miles and upon their return, after passing the station two or three blocks, Roy stopped to fix one of the spark plugs. While engaged in doing this, the three men went back to the station for the purpose of robbing it. Roy Colbert heard the pistol shot and testified that the men returned to the car four or five minutes after the shot was fired. Immediately after the shooting, three men were seen running out of the filling station, and the deceased made his way to the house of Mr. and Mrs. D. M. Paxon, who lived across the street, where he fell upon his knees, saying that he had been shot by an unknown party. Appellant's coconspirators testified to the plan for robbing the station, and to the manner in which and by whom the deceased was killed. Homer M. Adkins, the sheriff, testified that, after arresting appellant, he asked him if he did not do the killing, and that he made the follow-dence at all. The purpose and intent of the ing answer to him: "You have been mighty kind to me, and I am not going to lie to you. If I could go up this afternoon and plead guilty and get life imprisonment, I would do so." We are unable to see in this evidence any indication that Kelly fired the shot through a sense of fear suddenly aroused. It is true [4] Appellant's next and last contention of conséquence is that the statute under which appellant was indicted is unconstitutional, because its effect is to deprive a defendant of his liberty without' due process of law. The argument is made that this statute dispensed with the necessity of proving deliberation, premeditation, and a specific intent to kill in order to convict one charged with murder in the first degree, and that, under the due process clause of the state and federal Constitutions, one charged with murder in the first degree cannot be convicted without proof of these inherent elements of the crime. We do not understand that the statute has changed or attempted to change any rule of evidence guaranteed by the Constitution as a protection to one charged with the crime of murder in the first degree. The statute does not attempt to deal with the rules of evi statute was to make a change in the substantive law by making any one guilty of murder in the first degree if he killed another in an attempt to rob him. The Legislature had power to do this under certain limitations unnecessary to mention at this time. 2 Wigmore on Evidence, § 1354, p. 1059. No error appearing, the judgment is affirmed. (273 S.W.) CRAFFORD v. STATE. (No. 69.) (Supreme Court of Arkansas. June 22, 1925. Rehearing Denied Sept. 28, 1925.) 1. Witnesses 255 (9)-Permitting reading of testimony taken before grand jury to refresh memory of witnesses held proper, where they admitted testimony was true. Permitting prosecuting attorney in murder trial to read testimony of witnesses given before grand jury, for purpose of refreshing memory, held proper, where witnesses admitted they had made the statements, and that testimony was true; testimony also being admissible for purpose of contradicting testimony given by them at trial. 2. Criminal law 829(1)—Court is not required to give requested instructions on propositions covered by instructions already given. Court is not required to give requested instructions on propositions covered by instructions already given. 3. Homicide 341-Instruction concerning motive properly refused where conviction was for manslaughter. Instruction, in murder prosecution, that deceased's threats might be considered as show. ing defendant's motive, held properly refused, where defendant was convicted of manslaughter; the question of motive having been removed from the case. deceased seven years before the homicide held properly excluded, where it appeared that friendly relation existed between them a few months before the homicide. Appeal from Circuit Court, Woodruff County; G. Otis Bogle, Special Judge. John H. Crafford was convicted of voluntary manslaughter, and he appeals. Affirmed. Roy D. Campbell, of Cotton Plant, for appellant. H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen., for the State. HART, J. John H. Crafford was. indicted for murder in the first degree, charged to have been committed by killing Alvin Hutchins on the 4th day of July, 1921, in Woodruff county, Ark. In March, 1925, he was convicted of voluntary manslaughter, and his punishment fixed by the jury trying him at three years in the state penitentiary. The case is here on appeal. According to the evidence for the state, John H. Crafford shot and killed Alvin Hutchins at the home of Mrs. Sarah Hopper in the southern district of Woodruff county, Ark., on July 4, 1921. Crafford and Hutchins had both married daughters of Mrs. Hopper, and had been associated in business for sev eral years. Hutchins' wife was dead, and he was living with Mrs. Hopper when he was killed. Mrs. Hopper had all her children there at a family reunion, and they had a picnic dinner some distance from the house. 5. Homicide 34 - "Involuntary manslaugh- The defendant and his family were there. ter" defined. "Involuntary manslaughter" consists in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty, the unlawfulness of the act in connection with which the killing occurs being the element which distinguishes the crime from a killing excusable by accident or misfortune. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Involuntary Manslaughter.] 6. Homicide 309 (3)-Instruction on involuntary manslaughter properly refused where it appeared that homicide was result of voluntary act of defendant. Where in murder prosecution it appeared that homicide resulted from voluntary act of defendant in shooting deceased, instruction on involuntary manslaughter was properly refused. 7. Homicide 189-Testimony of difficulty between defendant and deceased occurring seven years before homicide held too remote. In murder prosecution, testimony of difficulty which occurred between defendant and The defendant drove away somewhere in his automible and came back after the others had eaten dinner. He was drinking some, and had a fuss with Mrs. Hopper about the key to his automobile. The defendant took a pistol out of his car and approached the house with it. Mrs. Hopper and her daughter and one son-in-law went in the house. Alvin Hutchins and another son-in-law were out back of the house beating up ice with an ax for the purpose of making ice cream. Crafford went back of the house where Hutchins was, and the persons in the house heard four pistol shots fired right close together. one hollered, "Oh!" two or three times. After the shooting, Crafford left with the pistol in his hand. There were four pistol wounds in the body of Hutchins. One went in the collar bone, two went in his back above the waist line, and one of these came out just above the naval. One of the shots went in his elbow. No ax or weapon of any kind was found near the body of Hutchins. His body was found six or eight feet from the back steps of the house. Every one in the crowd was sober except the defendant. Some According to the testimony of the defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant and of his son, who was with him, Hutchins was advancing upon the defendant with an ax and endeavoring to strike him with it at the time he was shot and killed. It was also shown by other witnesses that the deceased had made threats against the defendant which had been communicated to him. This brief summary of the evidence shows that the verdict of the jury is supported by the evidence, and no reversal of the judgment is asked on this ground. [1] The first assignment of error upon which the defendant relies for a reversal of the judgment is that the court erred in allowing the prosecuting attorney to read to Elton Holwell and Mrs. Sarah Hopper extracts from their testimony before the grand jury, and asking each of them if he had not made such statements. The extracts from the testimony before the grand jury were read to the witnesses for the purpose of refreshing their memory, and each one stated that he had given the testimony before the grand jury as read to him. In making this contention, counsel for the defendant relies upon the case of Brown v. State (Ark.) 270 S. W. 537. We do not think that case has any application. There the witness denied that he had testified differently before the grand jury than the testimony being given by him at the trial. Therefore the court held that it was improper to admit the purported evidence of the witness before the grand jury, for the purpose of impeaching him, without first making proof that the testimony offered was the correct testimony of the witness before the grand jury. In the case before us each witness admitted that the extract of the testimony before the grand jury had been given by him before that body, and stated further that such testimony was true. Thus it will be seen that the testimony was admissible, either for the pur pose of contradicting the testimony given by the witnesses at the trial, or as substantive testimony given by them at the trial after refreshing their memory from the testimony given by them before the grand jury. Minor v. State, 162 Ark. 136, 258 S. W. 121. [2, 3] The next assignment of error is that the court erred in refusing to give instruction No. 2 asked by the defendant, which reads as follows: "You have a right in arriving at a verdict in this case to consider any threats made by the deceased against the defendant, which threats were communicated to the defendant, not only because such threats may show who was the aggressor at the time the killing occurred, but because such communicated threats may show defendant's motive at the time of the killing." That part of the instruction which told the jury it might consider threats communicated to the defendant in determining who was the aggressor was covered by an instruction giv the jury that it might consider previous threats made by the deceased against the defendant, whether communicated to the defendant or not, for the purpose of determining who was the aggressor in the difficulty, and the court is not required to multiply instructions on the same point. But it is insisted that the court erred in not telling the jury that communicated threats might be considered for the purpose of showing the defendant's motive at the time of the killing. Counsel for the defendant relies upon the case of Lee v. State, 72 Ark. 436, 81 S. W. 385, where it was held that, in a prosecution for murder, antecedent threats by deceased against the defendant which had been communicated were admissible not only upon the question as to who was the aggressor, but as tending to show motive. In the case at bar, the defendant was indicted for murder; but was only convicted of voluntary manslaughter. Voluntary manslaughter consists in the unlawful killing of another without malice, express or implied, and it is distinguished from murder by the absence of malice. Bivens v. State, 11 Ark. 455, and Brooks v. State, 141 Ark. 57, 216 S. W. 705. Inasmuch as the jury only convicted the defendant of voluntary manslaughter, the question of motive passed out of the case, and the defendant was not prejudiced by the refusal of the court to give the instruction. [4] It is well settled in this state that a judgment of conviction will not be reversed unless prejudicial error was committed. Middleton v. State, 162 Ark. 530, 258 S. W. 995. It is in this connection it may be stated that the court fully submitted to the jury the question of excusable or justifiable homicide. [5] The next assignment of error is that the court erred in refusing to instruct the jury on involuntary manslaughter. There is no element of involuntary manslaughter in this case. As defined at common law and under our statute, substantially declaratory thereof, involuntary manslaughter consists in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. The unlawfulness of the act in connection with which the killing occurs is the element which distinguishes involuntary manslaughter from a killing excusable as by accident or misfortune. 29 C. J. § 134, p. 1148; State v. Hardister and Brown, 38 Ark. 605, 42 Am. Rep. 5, McGough v. State, 119 Ark. 57, 177 S. W. 398, and White v. State, 164 Ark. 517, 262 S. W. 338. [6] According to the undisputed testimony, the death of Hutchins resulted from the voluntary act of Crafford in shooting him four |