ceny, by stealing merchandise, consisting of plied that he had something to do with the three coats and six pairs of trousers, of the burglary. He also stated to the witness, aggregate value of $39. The proof shows when Harper was arrested and was about to that the articles alleged to have been stolen be taken away, that he wanted to see Harper. were found, shortly after the burglary, in a We do not think that these circumstances hollow log about a half mile from Tinsman. were sufficient to amount to substantial corOne Bruce Harper gave information to the roboration. They were entirely consistent deputy sheriff as to the place the stolen goods with defendant's innocence. It was not uncould be found, and confessed that he, to- natural for defendant to comment upon the gether with Oliver and the defendant, had fact that he was being watched in a way committed the burglary. Harper was intro- which cast an imputation as to his connecduced as a witness by the state, and testified tion with the burglary. Nor was it any evithat he and Oliver and the defendant bur- dence of guilty participation in the crime that glarized the house and stole the goods. He he showed anger or irritation at the implied stated, also, that in addition to the articles suggestion of his connection with the crime. mentioned in the indictment some bolts of These circumstances are too weak, we think, calico were stolen and taken away by the to be treated as corroborative testimony defendant, and that the defendant stated that of a substantial nature. We are therefore of he was going to secrete the same under a the opinion that the verdict of the jury was certain church house. The bolts of calico not supported by sufficient testimony. were not found. It is insisted by counsel for the defendant that the testimony is not sufficient to support the verdict of conviction, in that the testimony of Harper, the alleged accomplice of the defendant, was not corroborated. That contention must be sustained, for, after a careful analysis of the testimony, we are un-1 able to discover any of a substantial character which tends to corroborate the testi mony of the accomplice. Our statute on the subject requires that the corroboration must tend to connect the defendant with the commission of the offense, and is not sufficient "if it merely shows that the offense was committed, and the circumstances thereof." Kirby's Digest, § 2384. We are asked to enter a judgment of dismissal here; but we are unwilling to do that, for the reason that the prosecuting attorney may have discovered additional testimony in corroboration of the alleged accomplice. The judgment is therefore reversed, and the cause is remanded for a new trial. JOHNSON v. MANTOOTH. (No. 114.) Where there is a substantial conflict in the evidence, the action of the trial court, in granting new trial because the verdict is against the weight of the evidence, is not reviewable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876; Dec. Dig. 1015.] Appeal from Circuit Court, Jackson County; R. E. Jeffery, Judge. Action by Nettie Mantooth against B. F. Johnson. Verdict for defendant. From an order granting plaintiff a new trial, defendant appeals. Final judgment rendered for plaintiff under stipulation pursuant to statute. The Attorney General presents two features of the testimony which he argues afforded sufficient corroboration. One is the testimony of the railroad agent, named Brett, who stated that on the night of the burglary he saw defendant pass by the railroad station twice, between 9 and 10 o'clock. The testimony of Harper is to the effect that the burglary was committed between 1 and 2 o'clock during the night. Brett testified that he saw the defendant pass the station, and walk down towards The appellee sued appellant in the Jackthe railroad section house, and return short- son circuit court, alleging that she was the ly afterwards, and that there was nothing owner of a certain tract of land in that coununusual about that occurrence. He stated ty through inheritance from her mother and that the defendant was alone at the time, deed from her sister; that appellant was in and that it was not unusual for persons to the unlawful possession of the land, and she pass along about that hour. There is noth- prayed for recovery of possession and daming whatever in the testimony of Brett, or in ages. The appellant answered, admitting any other part of the record, which tends to that appellee was the owner of the land, but make the presence of defendant at or near denied that he was in the unlawful possesthe railroad station a circumstance sufficient sion, and set up that he was in possession of to warrant the inference that defendant was the land under an oral contract with T. E. implicated with the burglary. The other Mantooth, the husband and agent of appelcircumstance relied on is that, a day or two lee, entered into on or about the 1st of Auafter the burglary was committed, and after gust, 1911, having previously rented the Harper had been arrested, the defendant re- same for that year by oral contract entered marked to one of the witnesses that some into with appellee, through her husband and one had been watching his house, and showed agent, T. E. Mantooth; that by the terms some anger at the insinuation thereby im- of the contract of rental for the year 1912, made, as alleged, between appellant and appellee, through the husband and agent of appellee, appellee agreed to furnish the appellant with teams, feed, and such tools as would be necessary to cultivate, gather, and market the crops, and to furnish half of the oil, wire, and ferriage necessary to gather and market the crops and hay grown on the land for the year 1912; that appellant was to pay appellee's agent one-half of the proceeds of the crops as rent for the land and for the use of the teams and tools for the year 1912. The appellant set up, by way of counterclaim, that he was in possession of the land, making preparations to cultivate the same under the terms of his contract, and that on or about the 1st day of February, 1912, the appellee evicted the appellant from the lands, by reason whereof he failed to raise the crops which he had contemplated (the kinds and value thereof being specified), all to his damage in the aggregate sum of $2,500, for which he asked judgment. Appellee testified that Judge Stuckey was her agent for the rental of the lands in controversy for the year 1912, and that her husband (Thornton Mantooth) was not her agent. Thornton Mantooth, her husband, had rented the land from her mother for the years 1910 and 1911, and appellant subrented it from Thornton Mantooth, and lived on and cultivated it for the year 1911. Witness claim ed no interest in the land prior to her mother's death, which occurred May 22, 1911. Her husband tried to act as her agent, as she found out from deals he made with other parties; but he was not her agent. He had no authority to rent the land for the year 1912. In October, 1911, she rented the land for the year 1912 to Mantooth Bros. Her husband was not present at that time, and had no interest in it whatever. She to vacate. She stated that after her husband had rented the land in controversy to appellant she heard about it; heard it in about two weeks after he had done so. Other witnesses corroborated the appellee to the effect that she, in person, on or about the 28th of October, 1911, rented the land to the Mantooth Bros. for the year 1912. The witnesses stated that the Mantooth Bros. were brothers of Thornton Mantooth, the husband of appellee. They had talked with him a little about renting the land, as people would talk about such things. One of the witnesses stated that Thornton Mantooth had told him time and again that he had promised Johnson the place; did not tell the particulars about his trade. Another one stated that Thornton told him that he had rented the land to Johnson before Mantooth Bros. rented it from the appellee. The appellant testified that he rented about 30 acres of the place in controversy from Thornton Mantooth for the year 1911, and about the 1st of August, 1911, he told Thornton Mantooth that he wanted the whole place for the year 1912. Thornton said: "Well, I will let you know right away. I am satisfied I will make a deal, and let you have it. I am thinking of renting out my other place, too. I will let you know about it later on." About two weeks afterwards witness enter ed into a contract with Thornton Mantooth, by which witness rented the place from him, cultivate it and Thornton Mantooth was to with the understanding that witness was to furnish the teams and tools and one-half of the ferriage, etc., to market the crop, and witness was to give him (Mantooth) one-half of the proceeds. Witness did not know anything about the appellee's renting the place to the Mantooth Bros. until a few days before New Year's. Appellee sent him notice gave the appellant written notice to get out, to give possession. He did not give possesbut he refused to do so until after shesion until the end of the suit, when the court brought this suit. She denied that she had any agreement with appellant to furnish him anything, or to allow him to cultivate the farm for the year 1912. On cross-examination she stated that she had another place, which she got from her mother, which she allowed her husband to rent out when it was agreeable to her to do so. He made contracts for the rental of this place, on which they lived, when it was agreeable with her; but he talked with her first. From the year 1912 her husband did as she said when he made a contract. Her husband rented to Cherry and Campbell other lands of hers for the year 1912. It was agreeable to her, and she furnished these parties for the years of 1912 and 1913. Her husband was not her agent for furnishing them; she did that herself. The appellant knew that she had rented the land in controversy to the Mantooth Bros., in two days after she rented it. He came to see her about it. He said he would stay there and stand a lawsuit. This gave judgment against him, and that he appealed the case. He went to see appellee about the notice to surrender possession which she had given the witness, and she said: "Well, I told Thornton, when he rented, the day after he rented it to you, that I didn't see that there was much in it for us that way." Witness' further testimony was in regard to the damages he claimed to have sustained, which, in the view we have taken of the case, it is not necessary to set forth. The testimony of witnesses on behalf of appellant tended to corroborate the testimony of the appellant as to the contract between him and Thornton Mantooth for the rent of the land for the year 1912. One of these witnesses testified that he could not remember the details of the agreement, but, if he understood it right, Mrs. Mantooth owned the land. She was not present, and witness did not know whether she ever agreed to the contract or not. Other witnesses on behalf of the appellant testified to the effect that years 1911 and 1912 from Thornton Man- stantial evidence to sustain such verdict, still tooth. The land rented by these witnesses it does not follow that the court erred in was not the land in controversy. Another granting the motion for a new trial. Counwitness testified that in the years 1911, 1912, sel for appellant frankly say that: and 1913 he bought timber from Thornton "It may be admitted that the evidence of the Mantooth on the land belonging to appellee. authority of Thornton Mantooth to act as the The timber came off of the land that appel-agent of his wife is not strongly proven by di lant occupied. rect testimony." Certainly it cannot be said that there was In rebuttal, one of the witnesses testified that in August or September, while appel-no conflict in the testimony on this point. On lant was on the land in controversy, she had the contrary, if there was any competent tesa conversation with him about the land, and timony to show that Thornton Mantooth was heard Johnson say he had the land for the the agent of his wife to rent the land in connext year. Witness told Johnson that Mrs. troversy for the year 1912, and that as such Mantooth was not going to let him stay, and agent he did rent the land to appellant for Johnson replied that he had made a contract the year 1912, there was certainly direct and decided testimony conflicting with this, and with Mr. Mantooth, and it would have to stand; that he did not make any contract to the effect that he was not her agent, and did not rent her lands to appellant for the year 1912. In Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922, we quoted the following from the Supreme Court of Missouri: substantial conflict in the evidence, review the "The Supreme Court will not, where there is action of the trial court in granting a new trial because the verdict is against the weight of the evidence." with Mrs. Mantooth. M. M. Stuckey testified that, after the death of appellee's mother, Thornton Mantooth, her husband, did not have anything to do with the land, and was not the agent of the appellee. Witness was her agent to rent the land in controversy, and he rented the same for the year 1912. The papers and note evidencing the rent contract between Mantooth Bros. and the appellee were drawn in his office, and he collected the rents. At the conclusion of the testimony, both parties presented prayers for instructions; but it is not necessary to set these out. The jury returned a verdict in favor of appellant for $700. The appellee filed a motion for a judgment in her favor notwithstanding the verdict. The record recites that the court treated the motion as a motion for a new trial, and sustained the same, entering an order granting appellee a new trial. The appellant at the time excepted, and prayed an appeal to the Supreme Court, consenting that judgment absolute should be rendered against him in case the judgment of the trial court granting appellee a new trial be affirmed, as provided by statute. Stuckey & Stuckey, of Newport, for appellant. Otis W. Scarborough and John W. & Jos. M. Stayton, all of Newport, for appellee. WOOD, J. (after stating the facts as above). Appellant contends that the ruling of the court in granting the appellee a new trial was erroneous, because there was some substantial evidence tending to show that appellee rented the land to the appellant for the year 1912 through her husband and agent, Thornton Mantooth. Conceding, without deciding, that there was testimony from which the jury might have found that appellee rented the land to appellant for the year 1912, through her husband, Thornton Mantooth, acting as her agent, and that there was sub179 S.W.-12 See cases there cited. In McDonnell v. St. L. S. W. R. Co., 98 Ark. 334, 336, 135 S. W. 925, 926, we said: "It is not invading the province of the jury where there is a conflict in the evidence. for the trial judge to set aside its verdict, On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. it will not, set aside a verdict unless it is. But it should not, and the presumption is that against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict, where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance." And in McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596, 599, 141 S. W. 196, 197, after referring to the above cases, the court said: and we cannot say that the trial court erred in "There was a decided conflict in the testimony, its conclusion that the verdict was against the preponderance of the evidence, or abused its discretion in setting it aside. * ** It is difficult to determine where the preponderance of the testimony lies, and we certainly are unable to say that the conclusion of the trial judge is against the preponderance." See, also, Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S. W. 962. Under the testimony in this record, there was no abuse of discretion on the part of the trial judge in setting aside the verdict and granting a new trial, and in accordance with the stipulation on the part of appellant, and in pursuance of the statute (Kirby's Digest, § 1188, subd. 2, and section 1238), final judgment will be rendered here in favor of the appellee. murrer. The trial court should have susSTITH V. STATE. (No. 132.) tained the demurrer to the indictment. This (Supreme Court of Arkansas. Sept. 27, 1915.) court has held that the name of the person 1. FORGERY29-INDICTMENT-DESCRIPTION to whom the forged instrument was passed OF OFFENSE-PERSON TO WHOM INSTRUMENT is a material part of the description of the WAS PASSED. Where an indictment for forgery charged defendant with passing a forged order drawn upon an express agent, without alleging any person, firm, or corporation to or upon whom the same was uttered or passed, not stating that the person to or upon whom it was uttered or passed was to the grand jury unknown, such indictment was bad upon demurrer. 29.] offense. McClellan v. State, 32 Ark. 609. The indictment in the case at bar attempts to charge the defendant with passing a forged order, but does not allege any person, firm, or corporation to or upon whom the same was uttered or passed. The indictment does not excuse this omission with any state [Ed. Note.-For other cases, see Forgery, Cent. ment that the person to or upon whom it was Dig. §§ 77-81; Dec. Dig. uttered or passed was to the grand jury un2. FORGERY 12-FORGERY OF EXPRESS OR- known. The object of naming the injured DER NECESSITY FOR ADDRESS TO PARTICU-person in the indictment is not only that the LAR PERSON. Where a forged order for an express pack- defendant may properly prepare for his deage, not addressed to any particular person, was fense, but that in case of a second prosecuyet addressed to "Express Agt.," directing him tion for the same offense he may accurately to "let the bearer have my package," its ut- plead former conviction or acquittal as the tering was forgery, since, if the order had been genuine, it was explicit and clear enough to warcase may be. rant the agent in delivering the package to the bearer. [Ed. Note.-For other cases, see Forgery, Cent. Dig. §§ 28-47; Dec. Dig. 12.] [2] Again, it is contended by counsel for defendant that the instrument alleged to be forged is not addressed to any particular person, and therefore is not the subject of Appeal from Circuit Court, Ouachita Coun- forgery. We do not agree with counsel in ty; Chas. W. Smith, Judge. George W. Stith was convicted of forgery, and he appeals. appeals. Reversed, and case re HART, J. The appellant, G. W. Stith, was convicted of the offense of forgery, and has duly prosecuted an appeal to this court. [1] The indictment omitting the formal parts is as follows: "The grand jury of Ouachita county, in the name and by the authority of the state of Arkansas, on oath accuse the defendant, George Stith, of the crime of forgery, committed as follows, to wit: The said defendant, George Stith, in the county and state aforesaid, on the 26th day of October, A. D. 1914, did then and there will fully, unlawfully, and feloniously, fraudulently and falsely make, forge, and counterfeit a certain paper writing, and sign thereto said paper writing the name of Sam Stith without his knowledge or consent; said writing purporting to be an order drawn upon the express agent to let the bearer have a package, which said false and forged order is in words and figures, to wit: 'Express Agt. Please let bearer have my pack age, oblige. Sam Stith.' And the false and fraudulent making, forging, and counterfeiting of said order and signing the name of the said Sam Stith was done with the felonious and fraudulent intent then and there to cheat and defraud the said express agent out of the said package aforesaid, to the great damage and injury of the said express agent, contrary to the statutes in such cases made and provided, against the peace and dignity of the state of Arkansas." The appellant interposed a demurrer to the indictment, which was overruled by the court, and his counsel now assigns as error the action of the court in overruling his de this contention. It is true the instrument is not addressed to any particular person firm or corporation. It is apparent, however, that it was addressed to the agent of the expackage consigned to Sam Stith, and if the press company which had charge of the order had been genuine it was explicit and clear enough to warrant the express agent in delivering the package to the bearer. This being true, its uttering was forgery. For the error of the trial court in over ruling the demurrer of appellant to the indictment, the judgment must be reversed, and the case will be remanded for further proceedings according to law. OGLESBY v. FT. SMITH DISTRICT OF SE- construction of a new courthouse, and, upon [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 174, 175; Dec. Dig. 114.] McCulloch, C. J., and Wood, J., dissenting. Appeal from Circuit Court, Sebastian County; Jno. H. Vaughan, Special Judge. Ira D. Oglesby, of Ft. Smith, for appellant. Thos. B. Pryor, of Ft. Smith, and Vincent M. Miles, of Little Rock, for appellee. HART, J. Ira D. Oglesby, an attorney of Ft. Smith, presented a claim to the county court of Sebastian county for $1,000 for legal services alleged to be due him by the Ft. Smith district of Sebastian county. His claim was disallowed by the county court, and he appealed to the circuit court. There his claim was again disallowed, and he has appealed to this court. The facts briefly stated, are as follows: In 1911 an agitation was begun for the erection of a new courthouse for the Ft. Smith district of Sebastian county. The inhabitants of the district were sharply divided on the question, and mass meetings were held and numerous articles written, pro and con, in the newspapers about it. Those favoring the proposition thought that the old courthouse was unsafe and unsanitary, and that it should be torn down and a new one erected on its site. Those opposed believed that the old courthouse was adequate for its purposes, and that it was practicable to repair it at a reasonable cost so that it would last many years. The erection of a new courthouse on the site of the present one became the principal issue between the candidates for the Democratic nomination for county judge at the primaries to be held in March, 1912. Judge Harp, the then county judge, favored the erection of a new courthouse, and Ezra Hester, his opponent, opposed it. Judge Harp was defeated in the primary, and Judge Hester was elected county judge at the general election in September, 1912. Judge Harp determined upon the plan of letting a contract for the erection of a new courthouse before his term of office expired. In August, 1912, he let a contract for the construction of a new courthouse. The officers of the city of Ft. Smith had quarters in the courthouse, and several suits were instituted against the county judge, having for their object the prevention of the building of a new courthouse. One of the suits for that purpose was brought in the chancery court by the city of Ft. Smith against the county judge. Other suits having the same object in view were instituted by various citizens of the Ft. Smith district of Sebastian county. On the 16th day of October, 1912, Judge Harp, who was still in office, made an order which was entered of record, reciting the pendency of these various suits and the necessity of employing counsel to represent the Ft. Smith district in them, because the prosecuting attorney had declined to do so, or to take any action to protect the interests of the said district in the litigation. The order appointed George W. Dodd and Ira D. Oglesby as attorneys for said district to and provided that said attorneys should receive not less than $1,000 each for their services. About the middle of July Col. Oglesby became ill and went to a hospital in the city of St. Louis, and remained there until about the middle of September. During the time he was there he received papers occasionally from Ft. Smith. It was shown on the part of Col. Oglesby that the county judge prior to his employment had attempted to get the prosecuting attorney to represent the interests of the Ft. Smith district, and that the prosecuting attorney had refused to do so. The county judge himself talked with the prosecuting attorney about it, and Mr. Dodd says that he also talked with him, and that the prosecuting attorney declined to represent the county on account of the political phase of the case. Mr. Dodd admitted that during all this time there was continuous discussion of the matter on the street, and that numerous articles written with reference to it were published in the Ft. Smith newspapers. The prosecuting attorney himself testified that the suits with reference to the matter had been brought be fore he knew anything about them, and that the cases were within a few days of trial before he was consulted by the county judge in regard to the matter, and that the county judge had already employed counsel prior to this time, and that for that reason he declined to represent the Ft. Smith district of the county. On the 20th day of October, 1912, the suit of the city of Ft. Smith against the Ft. Smith district of Sebastian county was decided by the chancellor, and it was decreed that the county judge be enjoined from erecting a new courthouse. Judge Harp, the then county judge, directed Col. Oglesby to immediately prepare a transcript and take an appeal to the Supreme Court, and this was done. Judge Harp's term expired and Judge Hester became county judge on the 31st day of October, 1912, and he immediately set aside the order providing for a minumum fee of $1,000 each for Col. Oglesby and Mr. Dodd. Col. Oglesby attempted to prosecute the appeal of the case from the chancery court, where Judge Harp had been enjoined from erecting a new courthouse, but Judge Hester moved the Supreme Court to dismiss the appeal, and this was done. Other testimony will be referred to later on. Certain declarations of law were asked by Col. Oglesby which were refused by the circuit court, and a general finding was made in favor of the Ft. Smith district. Judgment was rendered accordingly. A majority of the judges have voted to affirm the judgment in this case, but a majority of us have not agreed upon the reasons therefor. It is the contention of Col. Oglesby that the county court, on the 16th day of October, |