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to be apportioned. But we do not concur in the view that this recital in the petition is jurisdictional. The statute does not require the petition for the dissolution of a district to designate the districts to which the petitioners desire the territory attached. This act of 1895 does not require the county court to dissolve the district upon the filing of a proper petition therefor. It merely confers upon the county court the authority to do so.

We think the court below erred in quashing the order of the county court dissolving the district, and its judgment will be reversed, and the cause remanded, with directions to set aside that order. KIRBY, J., dissents.

(No. 92.)

(Supreme Court of Arkansas. July 5, 1915.) 1. DEEDS 194 - DELIVERY - PRESUMPTION AND BURDEN OF PROOF.

A discretion abides with the court in passing VAUGHAN v. CHICAGO, R. I. & P. RY. CO. upon the petition, but the court has no authority to dissolve any particular district except upon the filing of a petition conforming to the requirements of the act above 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. 88 574-583, 623, 634; Dec. Dig. 194.] [Ed. Note.-For other cases, see Deeds, Cent. signment of this territory is limited only by the duty of adjudging against the territory 208-SUFFICIENCY OF EVIDENCE so distributed its pro rata part of the indebtedness of the district of which it was originally a part.

In the recent case of School District No. 45 v. School District No. 8, 177 S. W. 892, a somewhat similar objection was made against the granting of the prayer of a petition for the change of the boundary line between two adjoining school districts transferring three sections of land from one district and attaching it to another. The decision of the case turned upon the construction of section 7544 of Kirby's Digest, which reads as follows:

"The county court shall have the right to form new school districts or change the boundaries thereof upon a petition of a majority of all the electors residing upon the territory of the districts to be divided."

It was there held that the electors of the district to be divided only were to be taken into account; that the electors of the district to which the territory was to be attached might have their hearing before the county court, where a discretion abided to grant, or to refuse, the petition even though it conformed to the statute.

It is urged that the opinion of this court in the case of Cox v. Road Improvement District No. 8, 176 S. W. 676, is authority for the position that the petition was void because of its failure to designate the desired distribution of the territory of the dissolved district. But we do not concur in this view. We were discussing there the jurisdictional requirements of the petition for the establishment of a road improvement district, and in that connection we said that there must be no uncertainty about the road or street to be improved; and there is no analogy between that case and this. The petition here specifies the district to be dissolved, and, as we have seen, the statute does not require the petition to state the disposition to be made of the territory of the dissolved district.

2. DEEDS

-DELIVERY.

In an action to set aside a deed to a railroad on the ground of its nondelivery, evidence held to sustain a finding that it had been delivered, and that the title had vested in the

railroad.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. 208.] 3. APPEAL AND ERROR 1009-REVIEW

FINDINGS-CONCLUSIVENESS.

A chancellor's findings of fact will not be disturbed on appeal unless against the clear preponderance of the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.]

Appeal from Prairie Chancery Court; Jno. M. Elliott, Chancellor.

Action in equity by Emmet Vaughan against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

On November 19, 1908, Emmet Vaughan instituted this action in the chancery court against the Chicago, Rock Island & Pacific Railway Company, to annul and set aside a deed because of no delivery and on account of nonperformance of certain conditions alleged to be stated therein.

The Choctaw, Oklahoma & Gulf Railroad Company purchased the Searcy and Des Arc Railroad, and desired to extend that railroad to either Hazen or De Vall's Bluff on its main line. Finally it decided to extend the road from Des Arc to a point near De Vall's Bluff, and a contract was made with certain persons in Prairie county for the procurement of the right of way. The citizens of Des Arc wished the extension to be made along the banks of White river through the town of Des Arc and wished the depot moved from the northwestern part of the town, where it was then located, to the foot of Buena Vista street, near the banks of White river. In order to secure this the

citizens of Des Arc made certain donations 1 or that executed in 1905 was to be delivered of property to the railroad company for its right of way.

Emmet Vaughan testified that he was and for many years had been a citizen and resident of Des Arc; that on February 24, 1903, he executed a deed to W. L. Willeford, as trustee for the Choctaw, Oklahoma & Gulf Railroad Company, conveying six lots in the town of Des Arc, the consideration recited in the deed being, "one dollar and the further consideration that the Choctaw, Oklahoma & Gulf Railroad Company will extend the Searcy & Des Arc road from its main line through Des Arc along the river route as surveyed and to its main line, and will agree to build a depot near the east end of Buena Vista street in Des Arc"; that in February, 1905, Judge Willeford came to him and stated that he had been requested to procure a deed direct to the Chicago, Rock Island & Pacific Railway Company, the successor to the Choctaw, Oklahoma & Gulf Railroad Company; that at that time the railroad company had constructed its line of road along the river route, but had not moved its depot to the east end of Buena Vista street; that on this account he at first refused to execute a new deed, but upon the representation of Judge Willeford that the road and depot would be constructed at once he executed a deed in lieu of the former one, with the understanding that the same was to be in escrow upon the same conditions as the former deed; that the former deed had been placed in the hands of W. B. Frith, as cashier of a bank in Des Arc; that subsequently he notified one of the attorneys of the railroad company that, because it had failed to build the depot, he would draw down his deed, and did go to the cashier of the bank and procure the deed which he had executed on the 24th of February, 1903; that subsequently, on November 25, 1907, he conveyed the lots in question to the Hastings Industrial Company, and executed a warranty deed therefor; and that said company erected a canning factory on said lots.

until the conditions above stated were complied with; that he had no recollection of being present when the second deed was executed, or of having seen it after it was executed; that he was satisfied he never had the deed in his possession; and that the citizens of Des Arc were making every ef fort to get the road constructed along the river route to De Vall's Bluff.

Judge Thweatt testified that he was a resident of De Vall's Bluff at the time the railroad was extended from Des Arc to a point near De Vall's Bluff; that the extension of the road from Des Arc to Hazen was first determined upon, but that the citizens of De Vall's Bluff induced the railroad company to change the line to a point near De Vall's Bluff, upon the agreement that they would furnish the right of way; that Mr. Vaughan and other citizens in the town of Des Arc had been anxious to have the road constructed along what was called the river route through Des Arc, and that the road was constructed along that route before 1905, but that the depot had not been changed from its location in the northwestern part of the town to the east end of Buena Vista street, near the river, as desired by the citizens of Des Arc; that the railroad company had contemplated moving the depot to that place, and had procured lots upon which to erect the new depot on August 8, 1907; that the depot was not erected on the new site until 1908 just after the filing of the present suit; that in February, 1905, the plaintiff Vaughan executed a deed to the lots in question and delivered the same to him as agent for the railroad company; that no conditions were written in the deed and no verbal conditions attached to the execution of it; that nothing was said about the location of the depot at the time of the execution of the deed; that the deed was delivered to him as agent of the railroad company, and filed for record pursuant to the directions of the officers of the company; and that there was understanding that Vaughan's deed should be held in escrow, but that it was sent in to the company along with other deeds to property in the town of Des Arc.

The officers of the railway company in charge of its right of way testified that the deed in question was delivered to the railway company and was by it filed for record. Other testimony will be referred to in the opinion.

Judge Willeford testified that he was the person to whom the deed of the 24th of February, 1903, was executed; that the deed after its execution was delivered by him to W. B. Frith, cashier of the Farmers' & Merchants' Bank in Des Arc, to be held in escrow and to be delivered to the railroad company upon the performance of the conditions named in the deed; that he did not remember precisely all that occurred in regard 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 constood that neither the deed executed in 1903 sideration and passed title to said lots to

said railway company. The plaintiff has ap- [tion of delivery to the railway company. pealed. Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033.

Emmet Vaughan, of Des Arc, and Trimble & Williams, of Lonoke, for appellant. Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellee.

HART, J. (after stating the facts as above). It will be remembered that the first deed executed by Vaughan to the railway company was on the 24th day of February, 1903. This deed was in consideration that the railway company should extend its line of road along the river route as surveyed, and that it would build a depot near the east end of Buena Vista street. This deed was executed to Judge Willeford as trustee for the railroad company, and was placed in the hands of a bank at Des Arc, to be delivered to the railway company upon the performance of the conditions named in the deed. Vaughan testifies that the deed executed by him in 1905 was upon the same conditions, and that

it was their intention that the deed should be held in escrow. It is the contention of counsel for the plaintiff that, although the deed was delivered to Judge Thweatt, who was the agent of the railway company, in procuring the deed Judge Thweatt was deemed to occupy the relation of a third party to the transaction, and that the deed was to be

held in escrow.

Judge Willeford, to a certain extent, corroborates the testimony of the plaintiff, but stated that, owing to his advanced age and

[2] One of the principal conditions imposed by the first deed, namely, that the road should be extended along the river route, had already been performed by the railway comWhen we consider this circumstance, pany. in connection with the fact that no conditions were written in the deed, as was the case when the first deed was executed, and that the second deed was not delivered to a third party to be held until the conditions were performed, and the positive testimony of Judge Thweatt that no conditions were written in the deed, and that nothing was said about the location of the depot, we are of the opinion that it cannot be said that the finding of the chancellor that the deed was delivered to the railway company, and that the title to the property in question vested in it, is against the preponderance of the evidence.

[3] It is the settled rule of this court that findings of fact made by a chancellor will not be disturbed on appeal unless against the clear preponderance of the evidence. Tested by this rule, we are unwilling to say that the findings of fact made by the chancellor are against the clear preponderance of the evidence, and the decree will therefore, be af

firmed.

TYRA v. STATE. (No. 138.)

STRACT INSTRUCTIONS.

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 814-INSTRUCTIONS-ABlection is that the deed was executed upon the same conditions as the first deed, but that it was never delivered to him, and that he does not know what was done with it after it was executed.

Judge Thweatt acted as agent for the railroad company in procuring the deed in 1905. He says that the deed was delivered to him as agent for the railroad company; that no conditions were written into the deed, and that nothing was said at the time about the erection of a depot at the east end of Buena Vista street; that the railroad company had already extended its line along the river route; and that the deed was filed for record by the railroad company.

In a prosecution for assault with intent to rape, it was not error to refuse to give instructions distinguishing between conduct which and acts which were the beginning of an atwould merely constitute acts of preparation tempt to have carnal knowledge of the prosecuting witness forcibly and against her will, where there was no issue of fact requiring such instruction, and which, if given, would have been

abstract.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. 814.]

Appeal from Circuit Court, Pulaski County; Robt. J. Lea, Judge.

John Tyra was convicted of assault with intent to rape, and he appeals. Affirmed.

J. Bracey Gulley, of Little Rock, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

[1] This second deed does not appear in the record, but we think it may be taken as certain that no conditions were written in it as in the first deed, because if such had been the case the plaintiff, no doubt, would have introduced it in evidence; for, the deed having been delivered to the railway company and filed for record by it, the burden of proof was upon the plaintiff to show that it had been wrongfully delivered. The deed was signed, acknowledged, and delivered to 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 instruc

SMITH, J. Appellant was convicted of the crime of assault with intent to rape, alleged to have been committed upon the person of one Bessie Holt, and he prosecutes this appeal to secure a reversal of the judgment pronounced against him. He assigns,

tions 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 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 forcibly and against her will. It is not necessary, however, that this attempt be persisted in to the uttermost, but it is sufficient if it was actually begun, without reference to the reason which causes the assailant to desist. Anderson v. State, 77 Ark. 37, 90 S. W. 846; Douglass v. State, 105 Ark. 218, 150 S. W. 860, 42 L. R. A. (N. S.) 524; Paul v. State, 99 Ark. 558, 139 S. W. 287; Williams v. State, 88 Ark. 91, 113 S. W. 799.

Appellant now complains of the refusal of the trial court to give the instructions requested by him distinguishing between conduct which would merely constitute acts of preparation and acts on his part which were the beginning of an attempt to have carnal knowledge of the prosecuting witness forcibly and against her will. We think the trial court's action was proper under the evidence in this case. The evidence was sharply conflicting, and it is impossible to reconcile it. According to the evidence upon the part of the state appellant had induced the prosecuting witness to accompany him to Little Rock under the representation that he could and would assist her in suppressing and settling a criminal prosecution which he told her had been or would be instituted against her. They spent the day in Little Rock, and he attempted to induce the girl to spend the night with him, but she declined to do so. They left Little Rock on a train, departing at 7 o'clock, and walked from a flag station to the girl's home, arriving there some time after dark, and during a portion of this journey they traveled through the woods. The girl testified that appellant had a bottle of whisky, from which he drank freely, and that he invited her to have a drink, but she declined. She testified that he had a knife, which he exhibited after he had made demands upon her, and that he said,

certain statements made by him in which he said he had asked the girl to have intercourse with him, but that when she declined nothing more was said about it, and that he made no attempt to coerce her. It appears, therefore, that the instructions were abstract. According to the evidence upon the part of the state appellant was guilty of the crime charged, while, according to his own | evidence, he was not guilty, and there was no issue of fact which required the court to give the requested instructions. It is the purpose of the instructions on the part of the court to declare the law applicable to the issue of facts raised by the evidence, but the court should not give abstract instructions. The judgment of the court below will be affirmed.

SHEPPARD v. STATE. (No. 135.) (Supreme Court of Arkansas. Sept. 27, 1915.) 1. HOMICIDE 142-INSTRUCTIONS-INDICTMENT-VARIANCE.

in the common-law form which charged premedAn indictment for first degree murder was itation, etc., but did not charge that the crime was perpetrated in the commission of a robbery. The court on the trial instructed the jury that killing while in the act of committing a robbery, if they should find that the defendant did the they should find him guilty as charged. Held, that the instruction was error, since there are two kinds of first degree murder, and an indictment upon one will not sustain an instruction upon the other.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. 142.] 2. CRIMINAL LAW 834-TRIAL-INSTRUC

TIONS-MODIFICATION.

It is not error to omit parts of a requested instruction, where the instruction as given is to cover the point. in the language of the statute and full enough

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2013, 2014; Dec. Dig. 834.]

3. CRIMINAL LAW_676-TRIAL-CUMULA- | ax; that he had the money in his pocket. TIVE EVIDENCE-DISCRETION OF COURT.

Where the court admitted the testimony of 9 witnesses for defendant on the question of alibi, and excluded that of 10 other witnesses upon the same facts, there being nothing to show that the testimony of the 10 excluded was of special value or of greater weight than that of the 9, there was no abuse of the discretion of the court to determine the extent to which cumulative evidence shall go, even though the trial was upon a capital offense. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1608; Dec. Dig.

676.] Appeal from Circuit Court, Ouachita County; Chas. W. Smith, Judge. Bully Sheppard was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Appellant was convicted of the crime of murder in the first degree for killing George Brian upon an indictment regularly charging the offense, and which did not charge it was committed in the perpetration or attempt to perpetrate robbery, and from the judgment imposing the death sentence brings

this appeal.

It appears from the testimony that George Brian, a little, frail, old man, who lived alone in a small hut in a pine thicket in an old field near Camden, was murdered and his safe rifled of its contents on the night of Thanksgiving day, 1914. He was found on the next morning lying on the floor near the small safe in a pool of blood, with the top of his head chopped off and bruises and gashes upon it and a bloody ax and club were lying near him. The inner door of the little safe had been battered and torn off, and there was no money in it.

John Barnes, an accomplice, testified that he had suggested to appellant, who seemed greatly in need of money, that old man Brian had some money they could get, and that appellant said they would go down and take it away from him; that he would take the money if witness would go with him; that appellant asked him if he had a pistol and, upon being told he did not, requested him to get one, which he tried and failed to do. He stated they went from Camden down to the home of the deceased on Saturday night before the murder on Thanksgiving, and that Bully Shepard cut a club near the house and told him to stay outside while he went on down to get the money; that Sheppard went to the house, called the old man to the door, talked with him a minute, and lighted a match and returned, saying, he didn't see any safe, and they went on back to town; that on Thanksgiving night, while it was raining, they returned to the vicinity of Brian's house, and Sheppard cut another club, and he stood 30 or 40 yards away from the house while Sheppard went in; that he was inside four or five minutes and returned running, and said he had knocked the old man down with the club and finished him with the

This occurred between 7:30 and 8 o'clock. They ran away from the vicinity and divided the money, he taking eight $10 bills, and Sheppard seven, of the money secured, and giving Sheppard $5 of his own money to make the division equal. He said that they returned to Camden, six miles away, reaching there about 10 o'clock. This witness said he did not enter the house at all, nor see anything that was done there, and did not expect any violence would be necessary to secure the money, and thought that Bully would be able to scare the old man into giving it up with the club. The borrowed overcoat worn by him on the night of the murder had stains of blood spattered on the back of it, and the skirt was bloody. His share of the money was found hidden in a fence corner, where he told his father he had put it. No money was found upon appellant nor about his place. The jumper and pair of corduroy pants said to have been

worn by him in the afternoon before the mur

The defense of an

der were found at his house wet and with wet blood upon them. alibi was interposed, and appellant did not testify. His statement to some witnesses, after his arrest, that he had been at Brian's house on the Saturday night before the murder to assist two white men in robbing the old man, but that after he went to the door he looked around and discovered his allies had gone away, "their nerve having failed," as he said, and that he went away and never went back and was not there when the murder was committed, was in evidence. Nine witnesses were introduced, accounting for his whereabouts from about 6:30, when he ate supper at Peter Mayweather's till 10 o'clock of the night of the murder. These witnesses stated that he came to Mayweather's about dark, after the family had finished supper; that supper was prepared for him about 6:30; that he went with some members of the family to a neighbor's of the name of Pierce, and from there in company with several people to a party or entertainment at Andy Williams' house; that he remained at the party, which was three miles or more from the house of the murdered man, for an hour or two, and returned with the crowd to their homes as the 10:10 passenger train was passing.

The court refused to allow 10 other witnesses, who were present and would have testified that the appellant was at the party and remained there past the time the murder was committed, to testify.

The court instructed the jury, giving, among others, over appellant's objection, instruction No. 2, as follows:

"2. You are instructed that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant entered the residence

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