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Appeal from Circuit Court, Sevier Coun- | which was situated on the west side of the ty; B. E. Isbell, Judge. railroad, facing south on the street or road

J. C. Burris was convicted of murder in the which crossed the railroad at right angles second degree, and appeals. Affirmed.

J. S. Steel, of Ashdown, Abe Collins, of De Queen, Du Laney & Steel, of Ashdown, and E. K. Edwards, of Lockesburg, for appel

lant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen.,

for the State.

McCULLOCH, C. J. Appellant was indicted by the grand jury of Little River county for the crime of murder in the first degree, alleged to have been committed by killing Lillard Johnston. The case was transferred to Sevier county on appellant's petition for change of venue, and the trial resulted in appellant's conviction of murder in the second degree.

east and west. Matthews' narrative of the incidents thereafter occurring is as follows:

After remaining in Hull & Furlow's store a few minutes, appellant started out of the door, with Johnston and witness following, and as they went out of the door appellant inquired of Matthews if they wanted to see him, and Matthews replied that he did, and appellant said, "Made it snappy, for I am in a hurry." The three men started walking across the railroad, in the direction of the garage, and appellant stated that he had filed a petition in bankruptcy, and that he had heard that Johnston was personally responsible for all of the account except $100, and he felt like they (Matthews and Johnston) ought to have advised him before that: that Johnston replied, "I have told you two or three times that I only had an authorized credit for $100," and appellant disputed that statement. They continued walking towards the garage, with appellant doing most of the talking, and he offered to pay $59 that had been charged to Johnston on commission account. Witness asked appellant whether he had sold the gasoline and oil on hand, and appellant replied that he had not. In the conversation it was mentioned that appellant's mother had sold the garage building to Mr. Wood, and that the oil and gas on hand The killing occurred on January 2, 1925, in were listed in the bankruptcy proceedings as the town or village, of Ogden, in Little River assets. Witness stated that just as he was county, at a garage and gasoline filling staon the point of turning to leave them Johntion formerly operated by appellant. John-ston said to appellant, "I am deceived in you, ston lived at Ashdown, and was the district agent of the Magnolia Petroleum Company, a corporation selling and distributing motor oils and gasoline. Appellant had been purchasing oil and gasoline from Johnston, but had recently gone into bankruptcy, and the business had been purchased and was being operated by a man named Wood.

It is undisputed that appellant shot and killed Lillard Johnston-it was so conceded on the trial-but it was contended on behalf of appellant that he acted on what appeared to him to be imminent danger of death or great bodily harm about to be inflicted by the deceased, so as to justify appellant in firing the fatal shot in necessary self-defense. It is also contended that appellant was insane at the time of the encounter which resulted in Johnston's death.

Johnston, accompanied by J. J. Matthews, the state's principal witness, drove over from Ashdown on the morning that the killing occurred for the purpose of collecting from appellant an account of $409, claimed to be unpaid and due from appellant to the oil company. Appellant claims that he made a settlement with Johnston prior to that time, and that he owed the company very little, if anything. Witness Matthews, who, as before stated, was the state's principal witness, testified that he and Johnston drove over from Ashdown that morning to see appellant about paying the balance of his account, that they first drove to appellant's residence, and were informed by the latter's wife that he was at the garage, but that, when they reached the garage, they were told that appellant was across the railroad track at the store of Hull & Furlow, and they then proceeded to that store, where they found appellant, and left

and don't appreciate a bit the way you have done about it," whereupon appellant replied, "I am not going to take any abuse;" then Johnston said, "I have said it, and am not going to take it back, and do not appreciate it a damn bit." The two men were from four to six feet apart at that time, and appellant then remarked that he did not intend to take any rough talk, and Johnston said that he "stayed by his statement, and did not appreciate it a damn bit," adding the remark to appellant, "Burris, you are a low down dirty crook." Appellant had his hand in his overcoat pocket all the time, and at this point he drew his pistol and fired immediately; two shots being fired in quick succession. At the first shot Johnston said, "Why, Burris!" and then began to crumple and stagger or fall for a distance of four or six feet, and that, when the second shot was fired, he cried "Oh!" and fell to the ground. He died almost immediately. Witness then asked for a telephone so that he could call a doctor, and appellant said, "Run over to the store and call the doctor quick; I have played hell; he is as good a friend as I had." Witness testified that Johnston had on an overcoat, and gloves on both hands, and that his hands were held down but were not in

(273 S.W.)

There is a conflict in the testimony; ap- something attracted his attention to the parpellant giving a different account of what ties over in front of the garage, whereupon happened, though he agreed with witness he walked out a few steps and witnessed the Matthews as to some of the things that were encounter from a distance of about 90 steps, said. that he heard the report of the pistol shots, and saw Johnston fall to the ground, and that at the time this occurred the two men. were six or seven feet apart. He further testified that he went over to the place where the body was lying and found that Johnston had on his overcoat and gloves, and had nothing in his hand, that the gloves were either canvas or knit gloves. He said that there was no scuffling at the time or before the shooting, that appellant was standing with his back to the garage, and that Johnston's hands were not in his pockets.

Appellant's narrative was that he had had a settlement with Johnston previous to that day, and that when he went into bankruptcy he owed nothing to Johnston or to the oil company except the sum of $13.50 for two barrels of oil; that he had heard that Johnston had said that he was coming over there to have a settlement with him or have trouble, and that he knew that Johnston always carried a pistol; that after he and Johnston and Matthews got to the garage, and the conversation was continuing concerning Johnston's claim of indebtedness and the bankruptcy, and appellant not owning the building, Matthews said, "I have information that you sold out for $4,100 in cash," and added, with an oath, that he (appellant) had put Johnston "in a hell of a bad light," and that Johnston was going to have to pay the account to his company; that Johnston then said, "Yes, Burris, as much as I have done for you, you have acted a low-down son of a bitch from start to finish," and appellant replied, "Lillard, I do not feel like being talked to like that," and that Johnston said, "Well, I have not said a God damn word to take back, you God damned low-browed son of a bitch, I am going to stamp your head off." Johnston, according to appellant's narrative, then lunged forward and grabbed appellant with his left hand, and grabbed for the pistol, and attempted to wrench it from appellant's hand, and appellant fired the pistol, but was unable to state how many shots he fired. He said that when he fired the pistol Johnston stopped and backed off and leaned over and fell. The undisputed testimony is that Johnston was unarmed.

There was another eyewitness, introduced by appellant-a man named Crouch-who was working at the garage at the time, and he corroborated the statement of appellant that Johnston had hold of appellant's hand, and that the two men were scuffling, and that Johnston was following up appellant, who was attempting to retire, when the latter fired the fatal shot. There was other testimony introduced in the case, but there were only three witnesses who claimed to have seen what occurred at the time of the killing.

The assignments of error are very numerous; there being fifty-eight assignments in all, relating to all phases of the evidence, and to the court's charge, and in refusing to give instructions requested by appellant.

[1] It is first contended that the court erred in refusing to permit appellant to prove by witness Matthews that Johnston had failed to credit the account of one O'Connell, a customer of the oil company, with certain amounts that had been paid. Counsel contend that this evidence was competent as shedding light on the contention that Johnston was presenting a false account against appellant and was endeavoring to force the latter to pay it. It was competent, of course, to prove the claims made by both Johnston and appellant at the time of the encounter with respect to the state of the account, which appears to have been the cause of the rupture between the two men, but the fact that Johnston had improperly failed to give credit on another man's account had no bearing upon the question involved in this trial. The only effect it could have had would have been to impeach the character of the dead man for honesty, and we know of no rule of law which would permit that to be done. [2] It is next contended that the court err

Appellant testified on cross-examination that, when Johnston grabbed his hand, he (Johnston) threw one of his hands into his pocket and tried to get appellant by the collar and struck him in the breast. He stated that Johnston grabbed the gun with his left hand. Appellant's testimony is not very clear as to whether he shot because Johnston threw his hand in his pocket or because he was trying to wrench the pistol out of his hand, but at any rate his claim was that Johnston was engaged in an assault upon him, either to get the pistol away from him, or to draw one from his pocket, and he thought his life was in danger, and fired the shot. There was enough to justify the sub-ed in admitting the following question and mission of the question whether or not appellant fired the shot under the apprehension of danger or violence from Johnston, and the court did in fact submit that issue in sufficient instructions.

Another witness for the state testified that he was standing on the front porch of a store on the east side of the railroad, and

answer in the cross-examination of witness Matthews:

"Q. What, if anything, did Johnston do toward making an attack upon Burris? A. There was no attack made."

The contention is that this was merely the statement of a conclusion, and that the wit

ness should not have been permitted to do, tion from childhood up to the date of the that. We do not think that this was a trial, and her testimony tended to show that statement of a conclusion, but one of fact, appellant was insane. namely, that Johnston made no attack. The word "attack" defines itself, and when the witness said that no attack was made he stated a fact, not a conclusion.

[3] In the testimony of witness Wood, who was introduced by the appellant, the following question was sought to be propounded:

“Q. Did J. J. Matthews at that time tell you that Mr. Johnston said that he extended more credit to Burris than was allowed, and that Johnston told him that he ought to go down there and give Burris a whipping?"

This question had been propounded by appellant's counsel to Matthews on cross-examination, and Matthews had replied in the negative. The court refused to permit the witness Wood to answer the question. There is a long colloquy in the record between the trial judge and counsel with respect to the form of the question and the effect of it. The court stated to counsel that they were entitled to prove threats on the part of Johnston against appellant, and also were entitled to show contradictory statements of witness Matthews on material matters, in order to impeach his credibility, but that this question would not elicit proof of a threat on the part of Johnston or a contradictory statement of Matthews on material matters. We think that the court was correct in its ruling. The question related to an alleged statement of Johnston to the effect that witness Matthews-not Johnston himself "ought to go down there and give Burris a whipping." That is the way we understand the question and evidently the trial court understood it that way. Now, it would have been competent to prove a threat of Johnston and also to impeach witness Matthews as to a contradictory statement concerning this threat, for proof of the threat was a material matter, but Johnston's statement that Matthews ought to whip appellant was not a threat of violence on Johnston's part; therefore appellant was not entitled to prove it as a material matter, or to contradict witness Matthews in regard to his statement concerning it.

[4] If the trial judge misunderstood the question propounded to the witness, it was the duty of counsel to remove that misunderstanding, as it is evident from the colloquy between court and counsel that the court had a correct conception of the law and was willing to admit competent evidence of threats and also impeaching evidence.

In bringing forward proof of appellant's mental condition, his counsel introduced numerous witnesses, both expert and nonexpert. The nonexpert witnesses related their experience and observation of appellant, and stated that they considered appellant to be mentally unbalanced. Appellant's mother

[5] There are assignments of error with respect to the court's refusal to permit two of the witnesses-appellant's mother and a witness named Hull-to testify concerning statements made by appellant to them orally and also in writing. These statements were in substance to the effect that appellant was insane. Witness Hull would have testified that he received a letter from appellant stating that physicians had advised him that he (appellant) was bordering upon insanity. Appellant's mother testified that at one time appellant, while working on some machinery, had said to her, "Don't bother me, you can't realize the condition I am in; I don't know a thing." These were statements of selfserving declarations of the appellant himself, and were not competent. Of course, the nonexpert witnesses should have been permitted to tell of their observations of appellant, and of any unusual conduct of his which tended to show that his mind was unbalanced, but a mere statement, whether made orally or in writing, that he believed himself to be insane, was not such a statement as could properly form the basis of an opinion as to his mental condition. These witnesses were allowed to testify as to other facts which infiuenced them in concluding that appellant was mentally unbalanced. His mother testified as to his condition from infancy, giving an account of diseases which had begun in early childhood, and relating many instances upon which she based her conclusion that he was not of sound mind. We think there was no error committed by the court in excluding the testimony concerning appellant's statement of his own mental condition.

[6] Dr. Kitchens was introduced by appellant as an expert witness, and testified fully as to his observation of appellant and his opinion concerning the latter's mental condition. Error is assigned on the court's refusal to permit the following question to be asked:

"Under his condition as you have observed it, and the history of the case, do you think that under excitement he would be capable of determining the difference between the right and the wrong thing to do with reference to any specific act?"

Of course appellant was entitled to prove the substance of the matter which this question would have elicited, namely, as to whether or not appellant was capable of knowing the difference between right and wrong with reference to the specific act under investigation (Bell v. State, 120 Ark. 530, 180 S. W. 186), but the witness was permitted to cover the same ground in another statement. After giving the full history of the case as derived from his own observation,

(273 S.W.)

told him, Dr. Kitchens stated his opinion information "necessary to enable him to preto be that appellant was insane, and had been scribe as a physician." The statute does not so for about two years. He made the fol- exclude all of the testimony of a physician lowing statement: because he had attended the person in a professional capacity, but the exclusion is limited to information which was necessary to enable the physician to prescribe. Neither of these witnesses had ever examined appellant as to his mental condition, or treat

"I don't think that he would be capable of deliberation and premeditation with reference to his acts under excitement."

Now this latter statement was a sufficient answer to the inquiry which the court after-ed him for mental disease, and they both teswards excluded, and the answer of the witness would have been a mere repetition of what he had already said. Therefore there was no error in the court's refusal to permit 'the question to be, in substance, repeated.

[7] Appellant offered to prove by witness Crouch, who claims to have been standing in front of the garage door at the time the killing occurred, that immediately after the shooting appellant walked into the garage and made this statement to him, "Frank, I would not have done it for anything in the world, but he forced me to do it to protect myself." The contention is that this testimony was competent as part of the res gestæ. If the alleged statement had been one concerning a fact, and not a mere conclusion, it would, we think, have been competent under the rule stated by this court in Combs v. State, 163 Ark. 550, 260 S. W. 736, but we think that the statement was nothing more than a conclusion to the effect that appellant had been forced to fire the shot in order to protect himself, which was no more than a statement that he had acted in selfdefense. If he had made a statement at that time and under those circumstances concerning a specific act of Johnston which led appellant to believe that he was in danger, the statement would have been competent. The court was correct in refusing to allow this statement of a conclusion to go to the jury as part of the res gestæ.

[8] It is contended that the court erred in permitting the state to introduce in rebuttal two physicians, Dr. York and Dr. Phillips, concerning appellant's mental condition. These physicians both testified that they had been acquainted with appellant for a number of years, had practiced in his family, and had treated him for disease on different occasions. Over the objection of appellant, they were permitted to testify as to his men tal condition. The statute on this subject reads as follows:

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tified that they were basing their opinions upon mere observations of the appellant during their acquaintance with him as family physician, and by observing him while he was on the witness stand, but not from any information received for the purpose of treating him. It is true that one of the physicians said that on one occasion he gave appellant medicine for a nervous trouble, but he did not examine him with a view of ascertaining his mental condition, or treat him for any mental disease.

Counsel rely mainly upon the announcement of the law on the subject made by this court in the case of Triangle Lumber Co. v. Acree, 112 Ark. 534, 166 S. W. 958, Ann. Cas. 1916B, 773, but we find nothing on examination of the opinion in that case which would justify us in holding that this testimony was incompetent. There is nothing in the opinion to justify the conclusion that we meant to ignore the distinction that under the statute the testimony of a physician is not to be excluded except such as related to information essential to the treatment of the patient. Both of these physicians were cross-examined by counsel and by the court with reference to the basis of their opinions, and the answers of the physicians justified the court in holding that the opinions were not based upon information received which was necessary for the physicians to prescribe.

This covers all the assignments of error with respect to the introduction of testimony.

[9] The assignments of error with regard to the court's charge are too numerous to discuss in detail. We have examined them all, and find that every phase of the case was properly submitted to the jury. The court gave twenty-four instructions at the instance of the state and fifteen at the instance of the appellant, covering all questions relating to the law of self-defense and insanity, and the law as to the burden of

"Sec. 4149. Physicians and Nurses. No per-proof and reasonable doubt. Many of the son authorized to practice physic or surgery, and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse.' Crawford & Moses' Digest.

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It will be observed that the statute only excludes the testimony of a physician as to

assignments relate to refused instructions which we find were fully covered by other instructions given by the court at the instance of the state as well as the appellant. This is particularly true as to the instructions on the subject of reasonable doubt, which was very fully covered by the court's charge.

Upon the whole, we find that the record is free from prejudicial error, and the judgment is therefore affirmed.

PAPANIA v. PAPAS. (Court of Appeals of Kentucky. June 12,

1. Contracts

construction adopted.

1925.) 318-Forfeitures not favored; against forfeiture will be

Forfeitures are not favored in the law, and if language from which they are supposed to emanate is susceptible of two constructions, one of which would sustain forfeiture and other deny it, latter interpretation will be adopted. 2. Landlord and tenant 22 (3)—Contract by which lessor was to construct building for lessee and to receive two years rent in advance construed.

Under contract by which lessor was to construct a building and to lease part of it to lessee, who was to pay two years' rent in advance, if lessor commenced construction within two weeks, otherwise contract was to be void, and requiring lessor to keep building insured for amount paid by lessee, when construction of building had progressed to a point where lessor could procure insurance thereon equal to amount paid by lessee, lessor had right to receive payment of such sum from lessee and not till then.

Appeal from Circuit Court, Perry County. Suit by Jimmy Papas against Sam Papania, consolidated with defendant's suit against plaintiff. From a decree for plaintiff, and of dismissal of defendant's suit, defendant appeals. Affirmed.

J. W. Craft, of Hazard, for appellant. Napier & Helm, of Hazard, for appellee.

THOMAS, J. Johnson & Jones owned a vacant lot on Main street in Hazard, Ky., fronting 50 feet on that street and running back 60 feet. They ground-rented a part of it to appellee, Papas (to whom we shall hereafter refer as Jimmy), 16 feet fronting on Main street and running back 35 feet, for 10 years at an agreed monthly rental, upon which the lessee was to construct at his own expense a building in which to conduct a restaurant, with the privilege of removing it at the expiration of the lease. In the same way they rented to appellant, Papania (to whom we shall hereafter refer as Sam), the remainder of the lot upon which he was to erect, at his own expense, a building in which to conduct a bakery business, with the same privileges at the expiration of the lease. Sam desired to cover the whole lot with a building he contemplated constructing, and he and Jimmy entered into a written contract whereby Sam agreed that he would construct a building and would cut off for Jimmy's use a space 16 by 35 feet in which he might conduct his restaurant business, and Jimmy agreed to pay as rental therefor the sum of $25 per month, but with

the further understanding that he would pay two years' rent in advance, and to which we will hereafter refer. It was further agreed between them in that contract that, if Sam did not commence the construction of his building within two weeks after the date of the contract (October 5, 1921), then Jimmy should have the right to declare the contract void and proceed to construct his building under the contract he had with Johnson & Jones and to which the latter agreed. the lease contract between the parties hereto there were these additional stipulations:

In

"However, should first parties [Sam and wife] begin construction of their building within said two weeks, then party of the second part [Jimmy] shall pay unto said first parties the sum of six hundred dollars in cash representing the first two years' rental provided for herein, in advance, and in event of said advancement of said sum, first parties agree to keep the building of said second party insured to the extent of said $600.00 by paying the premium on that amount of insurance for second party and keep the same insured for said sum until said amount so advanced shall have been exhausted by the occupancy of said parcel by second party until his rent shall have equaled said sum. It is provided, however, that should said building burn before second party has conder the policy covering the same shall be prosumed all of said payment the loss payable unrated between the parties hereto as their interests appear."

Sam commenced the erection of his building within the two weeks and finished it in about eight weeks. After the expiration of two weeks from the time he began his structure, he notified Jimmy that under the above excerpt from the lease contract the latter had forfeited his right under the lease by not paying the $600 within that time, which was the construction that Sam put upon the contract, while Jimmy construed it to mean that his $600 advance payment was not due thereunder till the building was sufficiently advanced to enable Sam to procure a fire insurance policy on it for as much as $600 with which to protect him in case the building should be destroyed by fire during the term and before the two years' occupancy for the rent for which that payment was made. Notwithstanding his interpretation of the contract, Jimmy, after being so notified, tendered to Sam the $600, and when the building was about completed he moved in the room which he was to occupy some counters and other fixtures, whereupon Sam, without any process of law, removed the fixtures and put them in the street. Jimmy then brought one of these equity actions against him to enjoin him from interfering with his occupancy and from trespassing upon his right of possession of the space of 16 by 35 feet and, besides alleging his interpretation of the contract, he sought its reformation upon the ground that it did not em

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