(273 S.W.) "Q. What is the general reputation of the defendant for morality? hear anything to indicate that the defend-years. On cross-examination of this witness, ant and Garrison were on unfriendly terms. the following occurred: Witness did not hear the defendant cursing or going on-no more than he told the parties to leave. Defendant did not point the gun at anybody. He did not make any complaint against any particular person. He came in swinging the gun around and told witness and the others to leave. Lester Miller testified that he was at defendant's home the night of the shooting. The defendant had been upstairs asleep and came down with a gun. He pointed the gun in at the door and ordered the crowd to leave. There were eight or ten in the room at that time. Garrison went out of the house and came in at the front and told the defendant, "For Christ's sake put that gun up before you shoot some one." Defendant said something that witness did not understand, and Garrison turned about that time, and defendant shot, and Garrison fell up against witness. Witness asked him where he was hit, and Garrison replied, "He hit me in the leg." About that time the light went out, and witness ran. He returned in about five or ten minutes, and some one had taken the gun away from defendant. Witness stated that defendant was in the game, and had been winning a little, and had loaned Den Garrison some money during the game. Other testimony for the state was to the effect that Garrison was shot on Saturday night, and lingered until the Wednesday following, and died about 6 o'clock from the effects of the wound. One witness testified that he saw Den Garrison on Saturday prior to the shooting; that witness and Garrison hauled rice together to De Witt. When witness next saw Garrison he was lying on a bed at defendant's house complaining of being shot. Witness saw a hole in his leg which was a fresh wound, and he stayed with Garrison from that time on until the following Wednesday about 11 o'clock. Garrison gradually grew worse from the time witness first saw him after he was shot until he died. "Mr. Botts: We object to that. "A. Good as far as I know. "Q. Did you ever have any complaint, Squire, of him having these dances and drinking parties and crap games out there at his place? "Mr. Botts: We object to that. "Court: You have his reputation in issue? "Mr. Botts: I did not put his reputation in issue for specific acts. "Court: You have it in issue. "Mr. Botts: That is not competent testimony. "Court: I have passed on it. (Exception saved by defendant.) "A. I have heard them talking about this game up there. "Q. You have had complaint about having these dances and drinking parties out there for young boys? "Mr. Botts: We object to that. "Court: Objection overruled. saved.) (Exception "Q. Basing your opinion on that, tell the jury whether or not you consider his reputation for morality good or bad? A. From what I have heard from the general discussion it is not so very good. "Q. You would not consider a man's reputation good if he would permit young boys to come there and gamble all night? "Court: That is common knowledge. "Mr. Botts: Defendant objects to these questions and remarks of the court. (Objection overruled, and exceptions saved.)" There was testimony to the effect that the the time he was drinking, and for several appellant was a hard drinker; that during days thereafter, he did not seem to know what he was doing. He was unable to work, easily excited, and highly nervous. One witness testified that he saw the defendant a short time after the shooting, and he appeared as though he had been on a drunk; that for two or three days after the defendant had been drinking he would not act in his right mind-did not seem to know what he was doing, and did not talk naturally; that he acted the same way on this occasion. Anoth with the defendant during the World War; that when defendant had been drinking for two or three days he did not know what had taken place, and did not realize what he had done or what had been done to him; that on these occasions he would disobey the officers, and did not seem to realize anything about what was taking place. The defendant offered testimony by sever-er witness testified that he was in the army al witnesses to the effect that, after the shooting, and after Garrison had been removed to a neighbor's house, he made a statement which was written down by a party in the presence of the justice of the peace, in which Garrison stated that the shooting was accidental, that Weakley was a good friend of his, and that he should not be punished for the shooting, and that he did not want Weakley punished for it. One of these witnesses, L. L. Brown, a justice of the peace, testified that he had known the defendant for many years; that he had never known him to be in any trouble except drinking; that his reputation for peace and quietude in the community in which he lived was good; and that he lived within one block of the defendant for about fourteen The defendant's brother, after testifying as above, stated that in his opinion the excessive drinking of poisonous alcohol by the appellant had diseased his mind to the extent that when he took a few drinks of whisky he was temporarily insane and did not know what he was doing; that this condition of mind was growing worse from year to year. The defendant himself testified that the only thing he knew about the shooting was what they told him about it. He had no ill feeling toward the deceased. On the contrary, they had always been the best of friends. When they told him about the shooting, he would not believe it, and when they took him in to where Garrison was, the latter said there was no cause in the world for the defendant to shoot him, and that it was an accident. He had never had a quarrel with Garrison. About six years before he (defendant) had got to drinking. He could not resist the temptation. It affected his mind. He quit for about two years, and later got to drinking again, and his mind was more greatly affected than before. During the time he was drinking he was not at himself. He was nervous, and if some one spoke to him it would frighten him until he did not know what he was doing. On cross-examination, he stated that he had had four dances at his house; that he had been drinking during the dance, and did not know where he got the gun or whether it was loaded or not. He did not want the boys to shoot craps, and told them so. He told Garrison and others that they could have the dance if they did not bring any whisky. would be guilty of murder in the second degree. The court gave correct instructions on the credibility of witnesses and reasonable doubt. The court further announced the law to be that, if the killing is unlawful, and a deadly or dangerous weapon is used, the inference of malice could not be rebutted; that if the killing was not an unlawful killing, it would be a justifiable or excusable killing, and the defendant would be relieved. The appellant asked the court to instruct the jury: "That voluntary intoxication is no defense to this charge, but that, if you believe from a preponderance of the evidence that at the time of the alleged shooting the defendant was laboring under such a defect of reason from disease of the mind, regardless of the cause of such mental condition, as not to know the nature of the act he was doing, or, if he did know it, that he was ignorant that he was doing what was wrong, then you will find the defendant not guilty." The appellant also asked the court to instruct the jury on the lower degrees of homicide, which prayers the court refused. The court instructed the jury defining murder in the second degree, and told them in effect that, in order to convict the defendant, the evidence upon the part of the state must show that the killing was unlawful; that it was unnecessary, not justifiable, or excusa-pellant prosecutes this appeal. ble; that it was willful-that is, intentional, and was done with malice; that malice de noted the state of mind and the act that prompts the motive of the defendant; that it was an act done wickedly and without due regard for the rights of one's fellow manan act done cruelly; that, if the shooting was unlawful and done with a deadly or dangerous weapon, in the use of such deadly or dangerous weapon the law implies malice, and the state was not required to prove it; that it was necessary for the state to prove that the deceased died in a year and a day from the time of the infliction of the injury, and that the shot was the cause of his death, and that it occurred in Arkansas county within five years before the finding of the indictment. The court then instructed the jury as to the form of the verdict in case they should find derendant guilty of murder in the second degree, and the punishment for such crime. The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at five years in the state penitentiary. From the judgment pronouncing sentence in accordance with the verdict, the ap The court further instructed the jury that it was the contention of the appellant that if he shot Garrison he was under the influence of intoxicating liquor to such an extent as to render him incapable of knowing right from wrong; that, where the charge was murder in the second degree, it is unnecessary to prove a specific intent to kill; that if one voluntarily becomes too drunk to know what he is about, and without provocation assaults and beats another person, and such assault [1] 1. The jury might have found from the testimony of the witnesses for the state, which it was their sole province to accept or reject, that the appellant shot and killed Garrison while appellant was in a state of voluntary intoxication, and that there was no provocation whatever on the part of Garrison. The testimony on behalf of the appellant tended to prove that the appellant did not know what he was doing at the time of the shooting, and did not know that he had shot Garrison. Such being the state of the record, the court did not err in holding that there was no testimony to justify the giving of instructions on any lower degree of homicide than that of murder in the second degree. There was no room for an instruction on manslaughter under the undisputed evidence both for the state and the appellant. Kinslow v. State, 85 Ark. 515, 109 S. W. 524; Bradshaw v. State, 95 Ark. 409, 129 S. W. 811. Mr. Bishop says: tending to take life, or of manslaughter with"A man may be guilty of murder without inout so intending, or he may purposely take life without committing any crime. The intention to drink may fully supply the place of malice aforethought so that if one voluntarily becomes too drunk to know what he is about and then with a deadly weapon kills another, he does murder the same as if he were sober. In other words, the mere fact of drunkenness will not reduce to manslaughter a homicide which would otherwise be murder." Bishop's New Criminal (273 S.W.) This is the doctrine applied by us in Byrd he lived was good. The court, on crossv. State, 76 Ark. 286, 289, 88 S. W. 974, 975, examination, permitted the state to ask where we said: "But no specific intent to kill is necessary ond degree, under our statute, and the law is that 'the intention to drink may fully supply the place of malice aforethought'; so that, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder the same as if he was sober." to constitute the crime of murder in the sec the witness if he had heard any comand drinking parties and crap games at his plaint about the appellant having dances house for young boys. There was no error in the ruling of the court. In the first place, the appellant, by the question asked the witness on direct examination, put in issue appellant's general reputation for peace and quietude in the community in which he lived. Now peace and quietude in the legal sense -the sense contemplated by the question[2, 3] While the instructions of the court signifies "public quiet, order, and security, were long and involved, yet there is no er- public tranquility, and obedience to law; roneous declaration of law announced in any hence that public order and security which of them, and they were not calculated to con- is commanded by the laws of a particular fuse and mislead the jury. The charge of sovereign, lord, or superior. * Hence, the court on the issue as to whether or not analogously, of the peace established by any the killing was done with malice, or whethlaws." Webster's Dictionary. Public peace er it was the result of mania a potu-insan-is "a condition of order that conforms to the ity produced by intoxication-was in accord- requirements of the laws." Funk & Wagance with the doctrine announced by this nall's Dict. The witness Brown was justice court in Byrd v. State, supra. See, also, of the peace, and one of the questions asked Casat v. State, 40 Ark. 511. If the killing him on cross-examination was if there had was the result of voluntary intoxication ever been any complaint of the dances, drinkwithout provocation and by the use of a ing parties, and crap games had at appeldeadly weapon, then it was murder in the lant's home, and in answer to this question second degree, unless the appellant at the he stated that he had heard them talking time was laboring under such a diseased con- about this game up there. He was further dition of the mind, a fixed insanity caused by asked if there had not been complaint about continued intoxication, that he was incapa- the dances and drinking parties for young ble of knowing the nature of the act he was boys, and if he had not heard of the general doing, or if he did know the nature of the discussion of appellant's past record, and act that he did not know it was wrong. from that discussion whether he considered [4] While the testimony of the defendant and of several witnesses was to the effect that drinking so affected the appellant's mind that he did not know what he was doing during the period of his intoxication and for several days thereafter, yet there was no testimony in the record tending to show that appellant was afflicted with delirium tremens or any other form of mental disease produced by intoxication, and that the killing was the result of such disease rather than the result of a mere temporary loss of reason caused by voluntary intoxication. The court, therefore, did not err in refusing appellant's prayer for instruction No. 2. The doctrine of Martin v. State, 100 Ark. 189, 139 S. W. 1122, upon which appellant relies to sustain this instruction, has no application to the facts of this record. [5] 2. One of the appellant's assignments of error is that the court erred in permitting the state to prove by witness L. L. Brown that he heard some complaint or rumor against the dances that defendant had permitted to take place at his house, and also erred in permitting the witness to be asked about specific acts of misconduct on the part of the appellant. Brown, witness for appellant, testified on direct examination that he had known appellant many years; had appellant's reputation for morality good or bad. He answered that from the general discussion it was not so very good. [6] These questions were legitimate on cross-examination to show that the reputation of appellant in the community where he lived was not very good for peace and quietude. The questions on cross-examination were responsive to the issue raised by appellant by the particular form of the questions asked the witness on direct examination concerning appellant's reputation for peace and quietude. In the second place, the questions propounded the witness on cross-examination were proper in order to test the accuracy of the statements of the witness on his direct examination and his credibility. In St. L., I. M. & S. Ry. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870, we said: "There could be no doubt that when a wit ness is put on the stand to attack or defend character, he can only be asked, on the examination in chief, as to the general character of the person whose character is in question, and he will not be permitted to testify to particular facts, either favorable or unfavorable to such person; but when the witness is subject to cross-examination, he may then be asked, with a view to test the value of his testimony, as to particular facts." never known him to be in any trouble See Clark v. State, 135 Ark. 570, 573, 205 except drinking; that his reputation for S. W. 975; Carr v. State, 147 Ark. 524, 227 S. peace and quietude in the community where W. 776. [7] 3. The court did not err in refusing to allow appellant to prove the alleged dying declaration of Garrison. The proper foundation was not laid for the admission of such testimony. 4. There are several other assignments of error urged for reversal of the judgment in the brief of appellant's counsel, but it would unduly extend this opinion to discuss them. Suffice it to say, we have examined them, and find no prejudicial error in the rulings of the court. The judgment is therefore affirmed. OZARK MUT. LIFE ASS'N v. DILLARD. (No. 83.) (Supreme Court of Arkansas. June 29, 1925.) 6. Trial 143-Conflicting testimony on question of fact raises issue for jury. Conflicting testimony on question of fact raises issue for jury. 7. Insurance198 (6)—Whether insurer had clothed its employee clerk with apparent authority to make contract with beneficiary held for jury. Whether insurer had clothed its employee clerk with apparent authority to make contract with beneficiary held for jury. 8. Principal and agent 99-Phrase "apparent authority in an agent" defined. "Apparent authority in an agent" is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and dis 1. Insurance 198(5)-Cancellation of mem-cretion, in view of the principal's conduct, bership certificate, application for which, as to age of beneficiary, was made in good faith, entitles person paying assessments to recover them. Where a membership certificate is canceled because of misstatement in application as to age of beneficiary, the person paying assessments is entitled to recover the premiums, despite misstatement, if the latter is made in good faith and without actual fraud. 2. Appeal and error 1064 (1)—Appellant not entitled to complain of instructions not prejudicial to it. Appellant held not entitled to complain of instructions not prejudicial to it. 3. Evidence 318(1)—Written signed statement of insured, not party to action, offered on issue of intentional misstatement in application as to insured's age, held properly excluded as hearsay. In action by beneficiary to recover assessments paid on canceled membership certificate, written signed statement of insured as to her age, offered by defendant on the issue whether her age was intentionally misrepresented in the application for the certificate, held properly excluded as hearsay; it appearing insured was not party to action or a party in interest. and did not represent beneficiary as her agent in making statement. 4. Insurance 89-When statement of insurer's employee to insured would and would not bind insured stated. Statement of defendant insurer's clerk to beneficiary that defendant canceled insured's certificate and would return to beneficiary assessments paid by him did not bind defendant, unless the clerk was authorized to make the statement and acted within the scope of authority therefor. 5. Insurance 87-Assumption by employee of insurer of authority to act for insurer as agent held not itself sufficient to bind in surer. Assumption by employee of insurer of authority to act for insurer as agent held not itself sufficient to bind insurer. would naturally suppose the agent to possess. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Apparent Authority.] Appeal from Circuit Court, Marion County; J. M. Shinn, Judge. Action by J. F. Dillard against the Ozark Mutual Life Association. Judgment for plaintiff, and defendant appeals. Affirmed. Pipkin & Frederick, of Mena, for appellant. J. H. Black, of Yellville, for appellee. WOOD, J. This is an action by the appellee against the appellant to recover assessments paid by the appellee on two policies or membership certificates issued by the appellant to Martha Baker, in which the appellee was named as beneficiary. The appellee alleged that he had paid in premiums on the policies the sum of $220, and that the appellant canceled the policies after such premiums had been paid and when the policies were of the value of $1,000. The appellant's principal defense was that the appellee forfeited his rights under the policies by the nonpayment of the premiums and assessments as they were due according to the terms of the contract of insurance, and further that appellee had perpetrated a willful fraud upon the appellant at the time of the application for the policies by stating that the assured, Martha Baker, was 59 years old, whereas she was at the time more than 60 years of age, and therefore beyond the age limit of insurance fixed by the laws of the appellant company. The appellee testified, identifying the polstated that he had kept the assessments paid icies, about which there is no dispute. He on the policies until the appellant turned them down face to face. He had been paying the assessments for something like 7 years. He had been paying on matured policies for 4 years. One Mr. Van Wagner came out to (273 S. W.) appellee's place and did business with appel- [ check for $1,000. In the conversation with lee's son. He made a settlement with him witness' father, the appellee, Wagner told and wrote him a check for $1,000. Van the appellee that he could not make any more Wagner said that he had investigated wit- payments; that he would turn them down, ness' policies, and found that Mrs. Baker was and told appellee to tell them to send his asolder than she was listed. Witness remark- sessment money in, and to do it right now. ed, "I reckon I will get my assessment mon- Wagner said that he would send the assessey;" and Wagner said, "Yes, sir; you will ment money to appellee as soon as he got get it as soon as I get back to Mena." It was back to Mena. Witness further stated that on that occasion that witness quit paying. the check given him by Wagner in settlement Witness paid until he was turned down. He of witness' claim against the company was had never asked for an assessment that wit-paid. Two other witnesses testified for the ness did not pay. The assessments witness appellee, and they corroborated substantially had paid amounted to about $220. On cross-examination witness stated, among other things, that he was suing to recover the assessments, and not claiming under the policies at all. He further testified that he did not know what position Wagner held with the appellant. He had been over there to settle with witness' son on a policy, and wrote out his check for $1,000. His business over there was to settle up with witness' son, and Wagner probably came to see witness, too. Witness had written the company and asked if his half-sister were dead, and Wagner said he looked her up and she was not dead, but found that she was over age and he would cancel the policies. Witness had not heard from her, and thought she might be dead, and so had witness' daughter to write to see if she was dead. After Wagner came over there, the conversation took place as before related by witness. Wagner said he was going to cancel the policies, and would not receive any more premiums. Witness had paid every month from the time the policies were taken out up to the time the policies were canceled, and had never paid any after that because Wagner said he would not receive it, and that he would send witness his assessments when he returned to the office. After Wagner left, he wrote back a letter to the witness, telling him to keep quiet about it -that there was some fraud in it, and that witness had better keep quiet. If Wagner had not told witness that, witness would bave been paying the assessments yet. Roy Dillard testified that he was the son of the appellee, and was present when Van Wagner came and made a settlement with the appellee on a claim. At that time Wagner made a settlement with the witness and paid witness $1,000. Witness heard the conversation between Wagner and the appellee with reference to the insurance policies that appellee held. Over the objection of appellant, Wagner told the appellee that Martha Baker was too old to carry policies, and appellee said he guessed he could get his money back, and Wagner said, "Yes." He told witness that he was an agent of the company. Witness did not know whether he was or not at the time, but found out that he was before Wagner left, as he made a settlement with witness for the company and gave witness a the testimony of the appellee and his son as to the conversation between appellee and Van Wagner. Van Wagner testified as a witness for the appellant that he had been in the employ of the appellant in its clerical department since 1917. He was sent out occasionally to settle policy losses, if it became necessary. He went to the appellee's place in 1922 to settle a loss with appellee's son, Roy Dillard, who had a policy with the company. The president, vice president, and secretary of the company told witness that they wanted him to settle the loss with Roy, and they had been getting several letters from the appellee with reference to Mrs. Martha Baker. The last letter stated that she was dead. They took it up, and found Martha Baker at Casa. Witness went down to Casa to find where Martha Baker was, and found her at Cotton Plant. She was getting her mail as Mrs. Adams, and not as Mrs. Baker; so, while witness was over there, he got to make a settlement, and did not know that Roy Dillard lived with the appellee until he got there. When he got to appellee's place, he asked for Roy Dillard, and the appellee came up and introduced witness to Roy. Witness then told appellee that he had been by and had seen Mrs. Baker, that appellee had been writing to the company about. Witness told appellee that he had got a statement from Mrs. Baker, and that she was very much alive. Witness finally said to appellee that he did not come to see him and had no business with him; that he had come to see Roy Dillard. Witness stated that he had no authority from the company to cancel the policies; that the company had not authorized the policies to be canceled; that the board of directors only had that authority, and witness was not a member of that board. The appellant offered to prove by this witness a statement furnished witness by Mrs. Martha Baker, written out and purporting to be duly signed by Martha Baker by her mark, dated September 8, 1923, to the effect that she was a girl at least 13 years old at the beginning of the Civil War. The court refused to allow such statement to be read to the jury, to which ruling the appellant duly excepted. The witness denied that any such conversation took place between him and the appellee |