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Ark.)

VAUGHAN v. CHICAGO, R. I, & P. RY, CO.

165

to be apportioned. But we do not concur in We think the court below erred in quashthe view that this recital in the petition is ing the order of the county court dissolving jurisdictional. The statute does not require the district, and its judgment will be rethe petition for the dissolution of a district versed, and the cause remanded, with directo designate the districts to which the peti- tions to set aside that order. tioners desire the territory attached. This act of 1895 does not require the county court

KIRBY, J., dissents. to dissolve the district upon the filing of a proper petition therefor. It merely confers upon the county court the authority to do so. A discretion abides with the court in passing VAUGHAN v. CHICAGO, R. I. & P. RY. CO. upon the petition, but the court has no au

(No. 92.) thority to dissolve any particular district (Supreme Court of Arkansas. July 5, 1915.) except upon the filing of a petition conform- 11. DEEDS 194 – DELIVERY - PRESUMPTION ing to the requirements of the act above AND BURDEN OF PROOF. quoted. The assignment of the territory of The plaintiff, in an action to set aside a the dissolved district is one of the things to deed to a railroad which had been delivered and

filed for record, had the burden of showing that be taken into account by the county court in it had been wrongfully delivered ; and its delivdetermining how this discretion shall be ex- ery to the agent of the railroad and its filing ercised, and, if the prayer of the petition is for record raised a presumption of delivery. granted, the discretion of the court in the as. Dig. sg 574-583, 623, 634; Dec. Dig. Om 194.]

[Ed. Note. For other cases, see Deeds, Cent. signment of this territory is limited only by the duty of adjudging against the territory 2. DEEDS Ow208-SUFFICIENCY OF EVIDENCE

-DELIVERY so distributed its pro rata part of the indebt

In an action to set aside. a deed to a railedness of the district of which it was orig-road on the ground of its nondelivery, evidence inally a part.

held to sustain a finding that it had been deIn the recent case of School District No. livered, and that the title had vested in the

railroad. 45 v. School District No. 8, 177 S. W. 892, a

[Ed. Note. For other cases, see Deeds, Cent. sornewhat similar objection was made against Dig. $$ 625-632; Dec. Dig. Om 208.] the granting of the prayer of a petition for

3. APPEAL AND ERROR Om1009_REVIEWthe change of the boundary line between two

FINDINGS-CONCLUSIVENESS. adjoining school districts transferring three A chancellor's findings of fact will not be sections of land from one district and attach- disturbed on appeal unless against the clear preing it to another. The decision of the case ponderance of the evidence. turned upon the construction of section 7544 Error, Cent. Dig. $$ 3970–3978; Dec. Dig. Ons

[Ed. Note.-For other cases, see Appeal and of Kirby's Digest, which reads as follows: 1009.]

“The county court shall have the right to form new school districts or change the bound Appeal from Prairie Chancery Court; Jno. aries thereof upon a petition of a majority of M. Elliott, Chancellor. all the electors residing upon the territory of the districts to be divided."

Action in equity by Emmet Vaughan It was there held that the electors of the against the Chicago, Rock Island & Pacific district to be divided only were to be taken and plaintiff appeals. Affirmed.

Railway Company. Judgment for defendant, into account; that the electors of the district to which the territory was to be attached On November 19, 1908, Emmet Vaughan might have their hearing before the county instituted this action in the chancery court court, where a discretion abided to grant, or against the Chicago, Rock Island & Pacific to refuse, the petition even though it con- Railway Company, to annul and set aside formed to the statute.

a deed because of no delivery and on acIt is urged that the opinion of this court count of nonperformance of certain condiin the case of Cox v. Road Improvement Dis- tions alleged to be stated therein. trict No. 8, 176 S. W. 676, is authority for The Choctaw, Oklahoma & Gulf Railroad the position that the petition was void be- Company purchased the Searcy and Des Arc cause of its failure to designate the desired Railroad, and desired to extend that raildistribution of the territory of the dissolved road to either Hazen or De Vall's Bluff on district. But we do not concur in this view. its main line. Finally it decided to extend We were discussing there the jurisdictional the road from Des Arc to a point near De requirements of the petition for the estab- Vall's Bluff, and a contract was made with lishment of a road improvement district, and certain persons in Prairie county for the in that connection we said that there must be procurement of the right of way. The citino uncertainty about the road or street to zens of Des Arc wished the extension to be be improved; and there is no analogy be- made along the banks of White river through tween that case and this. The petition here the town of Des Arc and wished the depot specifies the district to be dissolved, and, as moved from the northwestern part of the we have seen, the statute does not require the town, where it was then located, to the foot petition to state the disposition to be made of Buena Vista street, near the banks of of the territory of the dissolved district. White river. In order to secure this the

citizens of Des Arc made certain donations or that executed in 1905 was to be delivered of property to the railroad company for its until the conditions above stated were comright of way.

plied with; that he had no recollection of beEmmet Vaughan testified that he was and ing present when the second deed was exefor many years had been a citizen and resi- cuted, or of having seen it after it was dent of Des Arc; that on February 24, 1903, executed; that he was satisfied he never had he executed a deed to W. L. Willeford, as the deed in his possession; and that the trustee for the Choctaw, Oklahoma & Gulf citizens of Des Arc were making every efRailroad Company, conveying six lots in the fort to get the road constructed along the town of Des Arc, the consideration recited river route to De Vall's Bluff. in the deed being, "one dollar and the fur Judge Thweatt testified that he was a resither consideration that the Choctaw, Okla- dent of De Vall's Bluff at the time the railhoma & Gulf Railroad Company will extend road was extended from Des Arc to a point the Searcy & Des Arc road from its main line near De Vall's Bluff; that the extension of through Des Arc along the river route as sur- the road from Des Arc to Hazen was first veyed and to its main line, and will agree to determined upon, but that the citizens of De build a depot near the east end of Buena Vis-Vall's Bluff induced the railroad company to ta street in Des Arc"; that in February, 1905, change the line to a point near De Vall's Judge Willeford came to him and stated that Bluff, upon the agreement that they would he had been requested to procure a deed di- furnish the right of way; that Mr. Vaughan rect to the Chicago, Rock Island & Pacific and other citizens in the town of Des Arc Railway Company, the successor to the Choc- had been anxious to have the road contaw, Oklahoma & Gulf Railroad Company; structed along what was called the river that at that time the railroad company had route through Des Arc, and that the road constructed its line of road along the river was constructed along that route before 1905, route, but had not moved its depot to the but that the depot had not been changed east end of Buena Vista street; that on this from its location in the northwestern part of account he at first refused to execute a new the town to the east end of Buena Vista deed, but upon the representation of Judge street, near the river, as desired by the citiWilleford that the road and depot would be zens of Des Arc; that the railroad company constructed at once he executed a deed in had contemplated moving the depot to that lieu of the former one, with the understand- place, and had procured lots upon which to ing that the same was to be in escrow upon erect the new depot on August 8, 1907; that the same conditions as the former deed; that the depot was not erected on the new site the former deed had been placed in the hands until 1908 just after the filing of the presof W. B. Frith, as cashier of a bank in Des ent suit; that in February, 1905, the plainArc; that subsequently he notified one of the tiff Vaughan executed a deed to the lots in attorneys of the railroad company that, be- question and delivered the same to him as cause it had failed to build the depot, he agent for the railroad company; that no would draw down his deed, and did go to the conditions were written in the deed and no cashier of the bank and procure the deed verbal conditions attached to the execution which he had executed on the 24th of Feb- of it; that nothing was said about the locaruary, 1903; that subsequently, on Novem- tion of the depot at the time of the execuber 25, 1907, he conveyed the lots in question tion of the deed; that the deed was deliverto the Hastings Industrial Company, and ed to him as agent of the railroad company, executed a warranty deed therefor; and and filed for record pursuant to the directhat said company erected a canning factory tions of the officers of the company; and on said lots.

that there was no understanding that Judge Willeford testified that he was the Vaughan's deed should be held in escrow, person to whom the deed of the 24th of Feb- but that it was sent in to the company along ruary, 1903, was executed; that the deed with other deeds to property in the town of after its execution was delivered by him to Des Arc. W. B. Frith, cashier of the Farmers' & Mer The officers of the railway company in chants' Bank in Des Arc, to be held in es-charge of its right of way testified that the crow and to be delivered to the railroad com- deed in question was delivered to the railpany upon the performance of the condi- way company and was by it filed for record. tions named in the deed; that he did not re Other testimony will be referred to in the member precisely all that occurred in regard opinion. to the execution of the second deed in 1905, The chancellor found the issues in favor of but that Judge Thweatt and he had several the defendant railway company. The plainconversations about the matter; that he un- tiff was given permission to remove all of derstood that this deed was to be in escrow the improvements on the lots in question, just as the trustee's deed above referred to; and was declared to be the owner of such imthat Mr. Vaughan never authorized him to provements. The court further found that deliver it to the Chicago, Rock Island & the deed executed by Emmet Vaughan to the Pacific Railway Company; that he under-railway company was for a valuable con

Ark.)

TYRA V. STATE

167

said railway company. The plaintiff has ap- tion of delivery to the railway company. pealed.

Graham v. Suddeth, 97 Ark. 283, 133 S. W. Emmet Vaughan, of Des Arc, and Trimble 1033. & Williams, of Lonoke, for appellant. Thos.

[2] One of the principal conditions imposS. Buzbee and Geo. B. Pugh, both of Little ed by the first deed, namely, that the road Rock, for appellee.

should be extended along the river route, had

already been performed by the railway comHART, J. (after stating the facts as above). pany. When we consider this circumstance, It will be remembered that the first deed in connection with the fact that no conditions executed by Vaughan to the railway com- were written in the deed, as was the case pany was on the 24th day of February, 1903. when the first deed was executed, and that This deed was in consideration that the rail- the second deed was not delivered to a third way company should extend its line of road party to be held until the conditions were along the river route as surveyed, and that performed, and the positive testimony of it would build a depot near the east end of Judge Thweatt that no conditions were writBuena Vista street. This deed was execut- ten in the deed, and that nothing was said ed to Judge Willeford as trustee for the rails about the location of the depot, we are of road company, and was placed in the hands the opinion that it cannot be said that the of a bank at Des Arc, to be delivered to the finding of the chancellor that the deed was railway company upon the performance of delivered to the railway company, and that the conditions named in the deed. Vaughan the title to the property in question vested testifies that the deed executed by him in in it, is against the preponderance of the 1905 was upon the same conditions, and that

evidence. it was their intention that the deed should

[3] It is the settled rule of this court that be held in escrow.

It is the contention of findings of fact made by a chancellor will not counsel for the plaintiff that, although the be disturbed on appeal unless against the deed was delivered to Judge Thweatt, who clear preponderance of the evidence. Tested was the agent of the railway company, in by this rule, we are unwilling to say that the procuring the deed Judge Thweatt was deem- findings of fact made by the chancellor are ed to occupy the relation of a third party to against the clear preponderance of the evithe transaction, and that the deed was to be dence, and the decree will therefore, be afheld in escrow.

firmed. Judge Willeford, to a certain extent, corroborates the testimony of the plaintiff, but

TYRA V. STATE. (No. 138.) stated that, owing to his advanced age and ill health, he does not remember the trans- (Supreme Court of Arkansas. Sept. 27, 1915.) action very clearly, but states that his recol. CRIMINAL LAW Cm814–INSTRUCTIONS — AB

STRACT INSTRUCTIONS. lection is that the deed was executed upon In a prosecution for assault with intent to the same conditions as the first deed, but rape, it was not error to refuse to give instructhat it was never delivered to him, and that tions distinguishing between conduct which he does not know what was done with it aft- and acts which were the beginning of an at

would merely constitute acts of preparation er it was executed.

tempt to have carnal knowledge of the prosecutJudge Thweatt acted as agent for the rail. ing witness forcibly and against her will, where road company in procuring the deed in 1905. there was no issue of fact requiring such inHe says that the deed was delivered to him struction, and which, if given, would have been

. as agent for the railroad company; that no [Ed. Note.-For other cases, see Criminal conditions were written into the deed, and Law, Cent. Dig. $$ 1821, 1833, 1839, 1860, 1865, that nothing was said at the time about the 1883, 1890, 1924, 1979-1985, 1987'; Dec. Dig?

Om 814.] erection of a depot at the east end of Buena Vista street; that the railroad company had

Appeal from Circuit Court, Pulaski Counalready extended its line along the river ty; Robt. J. Lea, Judge. route; and that the deed was filed for record

John Tyra was convicted of assault with by the railroad company.

intent to rape, and he appeals. Affirmed. [1] This second deed does not appear in J. Bracey Gulley, of Little Rock, for apthe record, but we think it may be taken as pellant. Wm. L. Moose, Atty. Gen., and certain that no conditions were written in it Jno. P. Streepey, Asst. Atty. Gen., for the as in the first deed, because if such had been State. the case the plaintiff, no doubt, would have introduced it in evidence; for, the deed hav- SMITH, J. Appellant was convicted of ing been delivered to the railway company the crime of assault with intent to rape, aland filed for record by it, the burden of leged to have been committed upon the perproof was upon the plaintiff to show that son of one Bessie Holt, and he prosecutes it had been wrongfully delivered. The deed this appeal to secure a reversal of the judgwas signed, acknowledged, and delivered to ment pronounced against him. He assigns, the agent of the railway company, and by it as error calling for the reversal of the case, filed for record. This raises a presump- the refusal of the court to give two instructions requested by him. These instructions, "You have got to do just as I say, or I will were to the effect that appellant could not kill you right here," and that she thought be convicted of the crime of assault with he was going to cut her with this knife. intent to commit rape if the proof only A knife was found on this road, but appelshowed that he did some act or acts which lant disclaimed its ownership. The girl were mere preparations for indulging in further testified that appellant caught her sexual intercourse with the prosecuting wit- around the shoulders while her arms were by ness, and did no act which was the begin- her side, and pulled up her dress and tore ning of the attempt to have carnal knowl- her underclothes and tried to throw her edge of the prosecuting witness forcibly and down on the ground, and that all of this against her will. It has been several times was done forcibly and against her will; that decided by this court that the crime of as- she cried and told appellant that she was sault with intent to commit rape is not com- engaged to be married, and that she would mitted unless some act is done which is the accommodate him when she had married, beginning of the attempt to have sexual in- whereupon he released her and told her that tercourse forcibly and against the will of if she ever breathed a word of what had the assaulted female. It is not sufficient that happened to any one he would kill her. On there may have been acts of preparation made the contrary, appellant denied that he had without the consent of the female, nor is the even requested the girl to have sexual incrime committed by evidence of solicitation tercourse with him, and denied having placed merely. The assailant must have done some his hands upon her, or having in any manact which is not merely one of preparation ner attempted to compel her to have interor solicitation, but is one which is intended to course with him. The state offered, in conovercome the will of the female for the pur- tradiction of appellant's evidence, proof of pose of having sexual intercourse with her certain statements made by him in which he forcibly and against her will. It is not said he had asked the girl to have internecessary, however, that this attempt be per- course with him, but that when she declined sisted in to the uttermost, but it is sufficient nothing more was said about it, and that if it was actually begun, without reference he made no attempt to coerce her. It apto the reason which causes the assailant to pears, therefore, that the instructions were desist. Anderson v. State, 77 Ark. 37, 90 s. abstract. According to the evidence upon the W. 846; Douglass v. State, 105 Ark. 218, 150 part of the state appellant was guilty of the S. W. 860, 42 L. R. A. (N. S.) 524; Paul v. crime charged, while, according to his own State, 99 Ark. 558, 139 S. W. 287; Williams evidence, he was not guilty, and there was v. State, 88 Ark. 91, 113 S. W. 799.

no issue of fact which required the court Appellant now complains of the refusal to give the requested instructions. It is the of the trial court to give the instructions purpose of the instructions on the part of the requested by him distinguishing between con- court to declare the law applicable to the isduct which would merely constitute acts of sue of facts raised by the evidence, but the preparation and acts on his part which were court should not give abstract instructions. the beginning of an attempt to have carnal The judgment of the court below will be knowledge of the prosecuting witness forcibly affirmed. and against her will. We think the trial court's action was proper under the evidence in this case. The evidence was sharp

SHEPPARD v. STATE. (No. 135.) ly conflicting, and it is impossible to reconcile it. According to the evidence upon the (Supreme Court of Arkansas. Sept. 27, 1915.) part of the state appellant had induced the 1. HOMICIDE 142–INSTRUCTIONS-INDICTprosecuting witness to accompany him to MENT-VARIANCE. Little Rock under the representation that in the common-law form which charged premed

An indictment for first degree murder was he could and would assist her in suppressing itation, etc., but did not charge that the crime and settling a criminal prosecution which he was perpetrated in the commission of a robbery. told her had been or would be instituted The court on the trial instructed the jury that

if they should find that the defendant did the against her. They spent the day in Little killing while in the act of committing a robbery, Rock, and he attempted to induce the girl they should find him guilty as charged. Held, to spend the night with him, but she de- that the instruction was error, since there are clined to do so. They left Little Rock on a two kinds of first degree murder, and an indicttrain, departing at 7 o'clock, and walked from upon the other.

ment upon one will not sustain an instruction a flag station to the girl's home, arriving [Ed. Note.-For other cases, see Homicide, there some time after dark, and during a Cent. Dig. $S 250-259; Dec. Dig. Om 142.] portion of this journey they traveled through 2. CRIMINAL LAW C834-TRIAL-INSTRUCthe woods. The girl testified that appellant TIONS-MODIFICATION. had a bottle of whisky, from which he drank It is not error to omit parts of a requested freely, and that he invited her to have a instruction, where the instruction as given is drink, but she declined. She testified that he to cover the point.

in the language of the statute and full enough had a knife, which he exhibited after he had

[Ed. Note. For other cases, see Criminal Law, made demands upon her, and that he said, Cent. Dig. $8 2013, 2014; Dec. Dig. 834.]

Ark.)

SHEPPARD V. STATE

169

3. CRIMINAL LAW ww676—TRIAL-CUMULA-, ax; that he had the money in his pocket. TIVE EVIDENCE-DISCRETION OF COURT. Where the court admitted the testimony of

This occurred between 7:30 and 8 o'clock, 9 witnesses for defendant

on the question of They ran away from the vicinity and divided alibi, and excluded that of 10 other witnesses the money, he taking eight $10 bills, and upon the same facts, there being nothing to Sheppard seven, of the money secured, and show that the testimony of the 10 excluded was of special value or of greater weight than that giving Sheppard $5 of his own money to of the 9, there was no abuse of the discretion of make the division equal. He said that they the court to determine the extent to which cu- returned to Camden, six miles away, reachmulative evidence shall go, even though the trial was upon a capital offense.

ing there about 10 o'clock. This witness [Ed. Note. For other cases, see Criminal said he did not enter the house at all, nor Law, Cent. Dig. § 1608; Dec. Dig. cm 676.] see anything that was done there, and did

Appeal from Circuit Court, Ouachita Coun- not expect any violence would be necessaty; Chas. W. Smith, Judge.

ry to secure the money, and thought that Bully Sheppard was convicted of murder Bully would be able to scare the old man in the first degree, and he appeals. Revers-into giving it up with the club. The borrowed and remanded.

ed overcoat worn by him on the night of Appellant was convicted of the crime of the murder had stains of blood spattered on murder in the first degree for killing George share of the money was found hidden in a

the back of it, and the skirt was bloody. His Brian upon an indictment regularly charging the offense, and which did not charge it fence corner, where he told his father he was committed in the perpetration or at

had put it. No money was found upon aptempt to perpetrate robbery, and from the pellant nor about his place. The jumper and judgment imposing the death sentence brings pair of corduroy pants said to have been this appeal.

worn by him in the afternoon before the murIt appears from the testimony that George der were found at his house wet and with

The defense of an Brian, a little, frail, old man, who lived alone wet blood upon them. in a small hut in a pine thicket in an old alibi was interposed, and appellant did not field near Camden, was murdered and his testify. His statement to some witnesses, safe rifled of its contents on the night of after his arrest, that he had been at Brian's Thanksgiving day, 1914. He was found on

house on the Saturday night before the murthe next morning lying on the floor near the der to assist two white men in robbing the small safe in a pool of blood, with the top old man, but that after he went to the door of his head chopped off and bruises and he looked around and discovered his allies gashes upon it and a bloody ax and club had gone away, “their nerve having failed,” were lying near him. The inner door of the as he said, and that he went away and nevlittle safe had been battered and torn off, er went back and was not there when the and there was no money in it.

murder was committed, was in evidence. John Barnes, an accomplice, testified that Nine witnesses were introduced, accounting he had suggested to appellant, who seemed for his whereabouts from about 6:30, when greatly in need of money, that old man Bri- he ate supper at Peter Mayweather's till 10 an had some money they could get, and that o'clock of the night of the murder. These appellant said they would go down and take witnesses stated that he came to Mayweathit away from him; that he would take the er's about dark, after the family had finished money if witness would go with him; that supper; that supper was prepared for him appellant asked him if he had a pistol and, about 6:30; that he went with some members upon being told he did not requested him of the family to a neighbor's of the name of to get one, which he tried and failed to do. Pierce, and from there in company with sevHe stated they went from Camden down to eral people to a party or entertainment at the home of the deceased on Saturday night Andy Williams' house; that he remained at before the murder on Thanksgiving, and the party, which was three miles or more that Buily Shepard cut a club near the house from the house of the murdered man, for an and told him to stay outside while he went hour or two, and returned with the crowd to on down to get the money; that Sheppard their homes as the 10:10 passenger train was went to the house, called the old man to the passing. door, talked with him a minute, and lighted The court refused to allow 10 other wita match and returned, saying, he didn't see nesses, who were present and would have any safe, and they went on back to town; testified that the appellant was at the party that on Thanksgiving night, while it was and remained there past the time the murder raining, they returned to the vicinity of Bri

was committed, to testify. an's house, and Sheppard cut another club,

The court instructed the jury, giving, and he stood 30 or 40 yards away from the among others, over appellant's objection, inhouse while Sheppard went in; that he was struction No. 2, as follows: inside four or five minutes and returned running, and said he had knocked the old man the evidence in this case, beyond a reasonable

“2. You are instructed that if you find from down with the club and finished him with the doubt, that the defendant entered the residence

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