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(273 S.W.) 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

Q. What is the general reputation of the or going on-no more than he told the par

defendant for morality ? ties to leave. Defendant did not point the

"Mr. Botts: We object to that. gun at anybody. He did not make any com

"A. Good as far as I know. plaint against any particular person. He

"Q. Did you ever have any complaint, Squire, came in swinging the gun around and told of him having these dances and drinking parwitness and the others to leave.

ties and crap games out there at his place? Lester Miller testified that he was at de

"Mr. Botts: We object to that. fendant's home the night of the shooting.

“Court: You have his reputation in issue? The defendant had been upstairs asleep and

"Mr. Botts: I did not put his reputation in

issue for specific acts. came down with a gun. He pointed the gun

"Court: You have it in issue. in at the door and ordered the crowd to

"Mr. Botts: That is not competent testimony. leave. There were eight or ten in the room "Court: I have passed on it. (Exception at that time. Garrison went out of the house saved by defendant.) and came in at the front and told the defend- A. I have heard them talking about this ant, “For Christ's sake put that gun up be- game up there. fore you shoot some one." Defendant said “Q. You have had complaint about having something that witness did not understand, these dances and drinking parties out there for and Garrison turned about that time, and de

young boys?

"Mr. Botts: We object to that. fendant shot, and Garrison fell up against

"Court: Objection overruled. (Exception witness. Witness asked him where he was saved.) hit, and Garrison replied, "He hit me in the “Q. Basing your opinion on that, tell the jury leg." About that time the light went out, whether or not you consider his reputation for and witness ran. He returned in about five morality good or bad? A. From what I have or ten minutes, and some one had taken the heard from the general discussion it is not so

very good. gun away from defendant. Witness stated that defendant was in the game, and had tion good if he would permit young boys to

"Q. You would not consider a man's reputabeen winning a little, and had loaned Den come there and gamble all night? Garrison some money during the game. "Court: That is common knowledge.

Other testimony for the state was to the "Mr. Botts: Defendant objects to these queseffect that Garrison was shot on Saturday tions and remarks of the court. (Objection night, and lingered until the Wednesday fol- overruled, and exceptions saved.)" lowing, and died about 6 o'clock from the ef

There was testimony to the effect that the fects of the wound. One witness testified that he saw Den Garrison on Saturday prior the time he was drinking, and for several

appellant was a hard drinker; that during to the shooting; that witness and Garrison days thereafter, he did not seem to know what hauled rice together to De Witt. When wit- he was doing. He was unable to work, easily ness next saw Garrison he was lying on a excited, and highly nervous. One witness bed at defendant's house complaining of be- testified that he saw the defendant a short ing shot. Witness saw a hole in his leg time after the shooting, and he appeared as which was a fresh wound, and he stayed though he had been on a drunk; that for two with Garrison from that time on until the or three days after the defendant had been following Wednesday about 11 o'clock. Gar- drinking he would not act in his right rison gradually grew worse from the time mind-did not seem to know what he was witness first saw him after he was shot un- doing, and did not talk naturally; that he til he died.

acted the same way on this occasion. AnothThe defendant offered testimony by sever- er witness testified that he was in the army al witnesses to the effect that, after the with the defendant during the World War; shooting, and after Garrison had been re- that when defendant had been drinking for moved to a neighbor's house, he made a two or three days he did not know what had statement which was written down by a par- taken place, and did not realize what he had ty in the presence of the justice of the peace, done or what had been done to him; that on in which Garrison stated that the shooting these occasions he would disobey the oflicers, was accidental, that Weakley was a good and did not seem to realize anything about friend of his, and that he should not be pun- what was taking place. ished for the shooting, and that he did not The defendant's brother, after testifying wapt Weakley punished for it.

as above, stated that in his opinion the excesOne of these witnesses, L. L. Brown, a jus- sive drinking of poisonous alcohol by the aptice of the peace, testified that he had known pellant had diseased his mind to the extent the defendant for many years; that he had that when he took a few drinks of whisky never known him to be in any trouble except he was temporarily insane and did not know drinking; that his reputation for peace and what he was doing; that this condition of quietude in the community in which he lived mind was growing worse from year to year. was good; and that he lived within one The defendant himself testified that the block of the defendant for about fourteen only thing he knew about the shooting was what they told him about it. He had no ill, would be guilty of murder in the second defeeling toward the deceased. On the con- gree. trary, they had always been the best of The court gave correct instructions on the friends. When they told him about the shoot credibility of witnesses and reasonable ing, he would not believe it, and when they doubt. The court further announced the took him in to where Garrison was, the lat- law to be that, if the killing is unlawful, and ter said there was no cause in the world for a deadly or dangerous weapon is used, the inthe defendant to shoot him, and that it was ference of malice could not be rebutted; an accident. He had never had a quarrel that if the killing was not an unlawful killwith Garrison. About six years before he ing, it would be a justifiable or excusable (defendant) had got to drinking. He could killing, and the defendant would be relieved. not resist the temptation. It affected his The appellant asked the court to instruct mind. He quit for about two years, and lat- the jury: er got to drinking again, and his mind was

"That voluntary intoxication is no defense to more greatly affected than before. During this charge, but that, if you believe from a prethe time he was drinking he was not at him- ponderance of the evidence that at the time of self. He was nervous, and if some one spoke the alleged shooting the defendant was labor. to him it would frighten him until he did not ing under such a defect of reason from disease know what he was doing. On cross-exam- of the mind, regardless of the cause of such ination, he stated that he had had four mental condition, as not to know the nature dances at his house; that he had been drink- of the act he was doing, or, if he did know

it, that he was ignorant that he was doing ing during the dance, and did not know where what was wrong, then you will find the defendhe got the gun or whether it was loaded or ant not guilty." not.

He did not want the boys to shoot craps, and told them so. He told Garrison The appellant also asked the court to inand others that they could have the dance if struct the jury on the lower degrees of homi. they did not bring any whisky.

cide, which prayers the court refused. The court instructed the jury defining mur

The jury returned a verdict of guilty of der in the second degree, and told them in murder in the second degree, and fixed the effect that, in order to convict the defendant, punishment at five years in the state penitenthe evidence upon the part of the state must tiary. From the judgment pronouncing senshow that the killing was unlawful; that it tence in accordance with the verdict, the apwas unnecessary, not justifiable, or excusa- pellant prosecutes this appeal. ble; that it was willful-that is, intentional,

[1] 1. The jury might have found from the and was done with malice; that malice de testimony of the witnesses for the state, noted the state of mind and the act that which it was their sole province to accept or prompts the motive of the defendant; that it reject, that the appellant shot and killed was an act done wickedly and without due Garrison while appellant was in a state of

voluntary intoxication, and that there was regard for the rights of one's fellow man

no provocation whatever on the part of Garan act done cruelly; that, if the shooting

rison. The testimony on behalf of the ap was unlawful and done with a deadly or pellant tended to prove that the appellant dangerous weapon, in the use of such deadly did not know what he was doing at the time or dangerous weapon the law implies malice, of the shooting, and did not know that he and the state was not required to prove it; had shot Garrison. Such being the state of that it was necessary for the state to prove the record, the court did not err in holding that the deceased died in a year and a day that there was no testimony to justify the from the time of the infliction of the injury, giving of instructions on any lower degree of and that the shot was the cause of his death, homicide than that of murder in the second and that it occurred in Arkansas county degree. There was no room for an instrucwithin five years before the finding of the tion on manslaughter under the undisputed indictment. The court then instructed the evidence both for the state and the appellant. jury as to the form of the verdict in case Kinslow v. State, 85 Ark. 515, 109 S. W. 524; they should find derendant guilty of murder Bradshaw v. State, 95 Ark. 409, 129 S. W. in the second degree, and the punishment for 811. such crime.

Mr. Bishop says: The court further instructed the jury that it was the contention of the appellant that if tending to take life, or of manslaughter with

"A man may be guilty of murder without inhe shot Garrison he was under the influence out so intending, or he may purposely take life of intoxicating liquor to such an extent as to without committing any crime. The intention render him incapable of knowing right from to drink may fully supply the place of malice wrong; that, where the charge was murder aforethought so that if one voluntarily becomes in the second degree, it is unnecessary to too drunk to know what he is about and then prove a specific intent to kill; that if one with a deadly weapon kills another, he does voluntarily becomes too drunk to know what murder the same as if he were sober. In other

words, the mere fact of drunkenness will not he is about, and without provocation assaults reduce to manslaughter a homicide which would and beats another person, and such assault otherwise be murder." Bishop's New Criminal causes the death of the other person, he Law, p. 296, § 401.

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(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:

the witness if he had heard any com“But no specific intent to kill is necessary and drinking parties and crap games at his

plaint about the appellant having dances to constitute the crime of murder in the second degree, under our statute, and the law is house for young boys. There was no error in that the intention to drink may fully supply the ruling of the court. In the first place, the place of malice aforethought'; so that, if the appellant, by the question asked the witone voluntarily becomes too drunk to know ness on direct examination, put in issue apwhat he is about, and then without provocation pellant's general reputation for peace and assaults and beats another to death, he commits quietude in the community in which he lived. murder the same as if he was sober."

Now peace and quietude in the legal sense [2, 3] While the instructions of the court signifies “public quiet, order, and security,

—the sense contemplated by the questionwere 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 wheth

laws." 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 accordance with the doctrine announced by this nall's Dict. The witness Brown was justice

requirements of the laws." Funk & Wagcourt 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 hle 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 appellant's reputation for morality good or and of several witnesses was to the effect bad. He answered that from the general disthat drinking so affected the appellant's cussion it was not so very good. mind that he did not know what he was do

[6] These questions were legitimate on ing during the period of his intoxication and cross-examination to show that the reputafor several days thereafter, yet there was no tion of appellant in the community where he testimony in the record tending to show that lived was not very good for peace and quieappellant was afflicted with delirium tremens tude. The questions on cross-examination or any other form of mental disease pro- were responsive to the issue raised by appelduced by intoxication, and that the killing lant by the particular form of the questions was the result of such disease rather than asked the witness on direct examination conthe result of a mere temporary loss of reason cerning appellant's reputation for peace and caused by voluntary intoxication. The court, quietude. In the second place, the questions therefore, did not err in refusing appellant's propounded the witness on cross-examinaprayer for instruction No. 2. The doctrine tion were proper in order to test the accuraof Martin v. State, 100 Ark. 189, 139 S. W. cy of the statements of the witness on his di1122, upon which appellant relies to sustain rect examination and his credibility. this instruction, has no application to the In St. L., I. M. & S. Ry. Co. v. Stroud, 67 facts of this record.

Ark. 112, 56 S. W. 870, we said: [5] 2. One of the appellant's assignments

“There could be no doubt that when a witof error is that the court erred in permitting

ness is put on the stand to attack or defend the state to prove by witness L. L. Brown character, he can only be asked, on the exthat he heard some complaint or rumor amination in chief, as to the general character against the dances that defendant had per- of the person whose character is in question, mitted to take place at his house, and also and he will not be permitted to testify to parerred in permitting the witness to be asked ticular facts, either favorable or unfavorable to about specific acts of misconduct on the part such person; but when the witness is subject of the appellant. Brown, witness for appel- to cross-examination, he may then be asked, lant, testified on direct examination that he with a view to test the value of his testimony,

as to particular facts." had known appellant many years; had 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 6. Trial em 143-Conflicting testimony on quesallow appellant to prove the alleged dying tion of fact raises issue for jury. declaration of Garrison. The proper founda- Conflicting testimony on question of fact tion was not laid for the admission of such raises issue for jury. testimony.

7. Insurance Om 198(6)-Whether insurer had 4. There are several other assignments of

clothed its employee clerk with apparent auerror vrged for reversal of the judgment in

thority to make contract with beneficiary held the brief of appellant's counsel, but it would for jury. unduly extend this opinion to discuss them. Whether insurer had clothed its employee Suflice it to say, we have examined them, clerk with apparent authority to make contract and find no prejudicial error in the rulings with benefiçiury held for jury. of the court.

8. Principal and agent Omw99–Phrase "apparThe judgment is therefore affirmed.

ent 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 OZARK MUT. LIFE ASS'N V. DILLARD.

agent out as possessing; such authority as he (No. 83.)

appears to have by reason of the actual au(Supreme Court of Arkansas. June 29, 1925.) thority which he has; such authority as a rea

sonably prudent man, using diligence and dis1. Insurance 198(5)-Cancellation of mem- cretion, in view of the principal's conduct,

bership certificate, application for which, as would naturally suppose the agent to possess. to age of beneficiary, was made in good faith, (Ed. Note. For other definitions, see Words entitles .person paying assessments to recovo and Phrases, First and Second Series, Apparer them.

ent Authority.) Where a membership certificate is canceled because of misstatement in application as to

Appeal from Circuit Court, Marion County ; age of beneficiary, the person paying assess. J. M. Shinn, Judge. ments is entitled to recover the premiums,

Action by J. F. Dillard against the Ozark despite misstatement, if the latter is made in

Mutual Life Association. Judgment for good faith and without actual fraud.

plaintiff, and defendant appeals. Affirmed. 2. Appeal and error Om 1064(1)-Appellant not

Pipkin & Frederick, of Mena, for appellant. entitled to complain of instructions not prejudicial to it.

J. H. Black, of Yellville, for appellee. Appellant held not entitled to complain of instructions not prejudicial to it.

WOOD, J. This is an action by the appel

lee against the appellant to recover assess3. Evidence 318(1)-Written signed state. ments paid by the appellee on two policies or ment of insured, not party to action, offered membership certificates issued by the appelon issue of intentional misstatement in ap- lant to Martha Baker, in which the appellee plication as to insured's age, held properly excluded as hearsay.

was named as beneficiary. The appellee al

leged that he had paid in premiums on the In action by beneficiary to recover assessments paid on canceled membership certificate, policies the sum of $220, and that the appelwritten signed statement of insured as to her lant canceled the policies after such preage, offered by defendant on the issue whether miums had been paid and when the policies her age was intentionally misrepresented in were of the value of $1,000. the application for the certificate, held prop- The appellant's principal defense was that erly excluded as hearsay; it appearing insured the appellee forfeited his rights under the was not party to action or a party in interest, policies by the nonpayment of the premiums and did not represent beneficiary as her agent and assessments as they were due according in making statement.

to the terms of the contract of insurance, and 4. Insurance C.89—When statement of in- further that appellee had perpetrated a will

surer's employee to insured would and would ful fraud upon the appellant at the time of not bind insured stated.

the application for the policies by stating Statement of defendant insurer's clerk to that the assured, Martha Baker, was 59 years beneficiary that defendant canceled insured's old, whereas she was at the time more than certificate and would return to beneficiary assessments paid by him did not bind defendant. 60 years of age, and therefore beyond the age unless the clerk was authorized to make the limit of insurance fixed by the laws of the statement and acted within the scope of au- appellant company. thority therefor.

The appellee testified, identifying the pol5. Insurance ww87–Assumption by employee stated that he had kept the assessments paid

icies, about which there is no dispute. He of insurer of authority to act for insurer as agent held not itself sufficient to bind in on the policies until the appellant turned

tliem down face to face. He had been paying Assumption by employee of insurer of au- the assessments for something like 7 years. thority to act for insurer as agent held not He had been paying on matured policies for itself sufficient to bind insurer,

4 years. One Mr. Van Wagner came out to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexeg

surer.

(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.

the testimony of the appellee and his son as On cross-examination witness stated, to the conversation between appellee and Van among other things, that he was suing to Wagner. recover the assessments, and not claiming Van Wagner testified as a witness for the under the policies at all. He further testified appellant that he had been in the employ of that he did not know what position Wagner the appellant in its clerical department since held with the appellant. He had been over 1917. He was sent out occasionally to settle there to settle with witness' son on a policy, policy losses, if it became necessary. He and wrote out his check for $1,000. His busi- went to the appellee's place in 1922 to settle ness over there was to settle up with witness' a loss with appellee's son, Roy Dillard, who son, and Wagner probably came to see wit- had a policy with the company. The presiness, too. Witness had written the company dent, vice president, and secretary of the comand asked if his half-sister were dead, and pany told witness that they wanted him to Wagner said he looked her up and she was settle the loss with Roy, and they had been not dead, but found that she was over age and getting several letters from the appellee with he would cancel the policies. Witness had reference to Mrs. Martha Baker. The last not heard from her, and thought she might be letter stated that she was dead. They took dead, and so had witness' daughter to write it up, and found Martha Baker at Casa. Witto see if she was dead. After Wagner came ness went down to Casa to find where Martha over there, the conversation took place as be- Baker was, and found her at Cotton Plant. fore related by witness. Wagner said he was She was getting her mail as Mrs. Adams, and going to cancel the policies, and would not not as Mrs. Baker; so, while witness was receive any more premiums. Witness had over there, he got to make a settlement, and paid every month from the time the policies did not know that Roy Dillard lived with the were taken out up to the time the policies appellée until he got there. When he got to were canceled, and had never paid any after appellee's place, he asked for Roy Dillard, that because Wagner said he would not re- and the appellee came up and introduced witceive it, and that he would send witness his ness to Roy. Witness then told appellee that assessments when he returned to the office. he had been by and had seen Mrs. Baker, After Wagner left, he wrote back a letter to that appellee had been writing to the comthe witness, telling him to keep quiet about it pany about. Witness told appellee that he —that there was some fraud in it, and that had got a statement from Mrs. Baker, and witness had better keep quiet. If Wagner that she was very much alive. Witness finalhad not told witness that, witness would ly said to appellee that he did not come to bave been paying the assessments yet.

see him and had no business with him; that Roy Dillard testified that he was the son he had come to see Roy Dillard. Witness of the appellee, and was present when Van stated that he had no authority from the comWagner came and made a settlement with the pany to cancel the policies; that the comappellee on a claim. At that time Wagner pany had not authorized the policies to be made a settlement with the witness and paid canceled; that the board of directors only witness $1,000. Witness heard the conversa- had that authority, and witness was not a tion between Wagner and the appellee with member of that board. reference to the insurance policies that ap The appellant offered to prove by this witpellee held. Over the objection of appellant, ness a statement furnished witness by Mrs. Wagner told the appellee that Martha Baker Martha Baker, written out and purporting to was too old to carry policies, and appellee be duly signed by Martha Baker by her mark, said he guessed he could get his money back, dated September 8, 1923, to the effect that she and Wagner said, “Yes.” He told witness was a girl at least 13 years old at the begin. that he was an agent of the company. Wit- ning of the Civil War. The court refused to ness did not know whether he was or not allow such statement to be read to the jury, at the time, but found out that he was before te which ruling the appellant duly excepted. Wagner left, as he made a settlement with The witness denied that any such conversawitness for the company and gave witness a tion took place between him and the appellee

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