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him to perform legal services in which the Ft. Smith district of Sebastian county was interested, and that the incoming county judge had no right to set aside such contract. He also contends that the object of the litigation above referred to was to settle the title of the Ft. Smith district to the site on which the present courthouse in the city of Ft. Smith is situated. On the other hand, it is the contention of counsel representing the Ft. Smith district of Sebastian county that Col. Oglesby was employed to represent the interests of the county judge in erecting the courthouse, and that the title to the ground on which the present courthouse stands was not involved in any of the litigation; that Col. Oglesby was the personal representative of the county judge; and that the county is not liable to him.

It is well settled in this state that the finding of a circuit judge sitting without a jury is as binding upon us upon appeal as the verdict of a jury. Such findings will not be disturbed on appeal if there is any substantial evidence to support them. In the application of this rule Judge Smith and the writer have reached the conclusion that when all the facts and surrounding circumstances and the inferences which might legitimately be drawn therefrom are consider ed, the circuit court was warranted in finding that Col. Oglesby had no cause of action against the county, and that the circuit court did not err in dismissing his complaint.

Section 6392 of Kirby's Digest provides that each prosecuting attorney shall commence and prosecute actions, both civil and criminal, in which the state or any county in his circuit may be concerned. Section 6393 of the Digest provides that he shall defend all suits brought against the state or any county in his circuit. In the construction of the latter section, in the case of Graham v. Parham, 32 Ark. 676, the court held that it is the official duty of the prosecuting attorney to defend suits brought in the federal court against the county embraced in his circuit. We think the county court has power to employ additional counsel when in his judgment the interests of the county are of sufficient importance to demand it, or, in cases where the prosecuting attorney neglects or refuses to perform the duties imposed upon him by statute, or where his other duties are of such character that he does not have time to properly represent the county. We are of the opinion, however, that the power of the court to employ additional counsel does not give the right, under the guise of such employment, to take the case out of the hands of the prosecuting attorney and confide its management to other attorneys without consultation with the prosecuting attorney, or for the purpose of furthering the private interests of the coun

It is true that evidence was adduced by the plaintiff tending to show that the prosecuting attorney had been consulted by the county judge in regard to contemplated litigation with 'reference to the building of the courthouse, and that he had failed and neglected to represent the county. On the other hand, the prosecuting attorney himself testified that the first information he had of the pending litigation was derived from reading the newspapers, and that the county judge had already employed other counsel without consulting him. According to his testimony the county judge superseded him with other counsel, and he was justified in considering himself as having no official connection with the cases. He stated that the county judge did not talk to him until a few days before the case above referred to, which was decided in the chancery court on the 21st day of October, 1912, was heard and determined. He admits that Col. Oglesby talked to him about the case, but says this was only a few days before the case was reached for trial.

It will be remembered that Col. Oglesby was not employed until the 16th day of October, 1912, and that the only case in which he appeared was heard by the chancellor on It also apthe 21st day of October, 1912. pears that Col. Oglesby had been in a hospital in St. Louis until the latter part of September, 1912. So, it is reasonable to presume cuting attorney until a few days before the that Col. Oglesby did not talk with the prosecircuit court was the sole judge of the credcase was called for trial. At any rate, the ibility of the witnesses, and was justified in finding that the county judge employed additional counsel without any appearance of incompetency or neglect of duty on the part of the prosecuting attorney.

As we have already seen, the undisputed facts show that an agitation for the erection of the new courthouse was begun in 1911, and the citizens of the district were sharply divided on the question of the expediency of erecting it. The question was an issue in the primary campaign in the spring of 1912. Judge Harp, the then county judge, asked for re-election, and one of the reasons given therefor was that he favored the erection of a new courthouse. His opponent was Ezra Hester, who was opposed to the construction of a new courthouse. That the erection of a new courthouse was one of the principal issues of the primary campaign is fairly inferable from all the circumstances. was at the time county clerk. The agitation for the erection of a new courthouse was begun the year before. Col. Oglesby testified that the people were very much divided on the question. Geo. W. Dodd, who was also employed as an attorney in the matter by Judge Harp, testified that there was friction between Judge Harp and Ezra Hester in regard to the erection of a new courthouse, and

Hester

county judge in certain instances; that it [ was generally known that Ezra Hester was opposed to the erection of a new courthouse. Judge Harp was defeated in the primary by Judge Hester, and the latter was elected as county judge at the general election in the following September. Judge Harp then determined to get the construction of the new courthouse under such headway before his term of office expired that it would not be practical to prevent the courthouse from being erected. In carrying out his plan he made an order for the erection of a new courthouse on the site occupied by the old one. Certain citizens of Ft. Smith instituted suits against him for the purpose of preventing the erection of a new courthouse. To ac

complish the same purpose the city of Ft.

Judge Kirby is of the opinion that under section 6393 of Kirby's Digest and the record of this cause, it was beyond the power of the county judge to employ counsel to perform the duties which had been imposed by statute upon the prosecuting attorney, and that its contract with Col. Oglesby was ultra vires and void. For that reason he has voted to affirm the judgment. It follows that the judgment is affirmed; and it is so ordered.

The CHIEF JUSTICE and Mr. Justice WOOD are of the opinion that the judgment should be reversed. See 179 S. W. 1199.

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(Supreme Court of Arkansas. Sept. 27, 1915.) STATUTES 141-CONSTITUTIONAL REQUIRE

MENTS AMENDMENT-SEPARATE ACT.

Smith, which under a contract with the county occupied rooms in the present courthouse, also instituted an action in the chancery Kirby's Dig. § 5433, provides that all mucourt against the county judge. To defend nicipal elections shall be held as prescribed by these suits Col. Oglesby was employed on the law for holding state and county elections so 16th of October, 1912, and appeared as coun-5, § 23, provides that no law shall be amended far as the same may be applicable. Const. art. sel for the county judge when the cause, set or extended by reference, but must be re-enfor October 21, 1912, was heard and deter- acted and published in full. Defendant, indictmined. The chancellor rendered an exhaused under section 5433, demurred to the indicttive opinion in the cause and memorialized the facts by spreading them on the record. He expressed the view that the present courthouse was safe and large enough for the needs of the district for years to come.

He further held that there was no cloud upon the title of the district to the grounds upon which the courthouse is situated, and that the city only claimed the right to occupy a part of the building under a contract it had made with the Ft. Smith district of Sebastian county. As soon as the case was decided by the chancellor the county judge ordered Col. Oglesby to take an appeal at once. This Col. Oglesby proceeded to do. He caused the transcript to be prepared and the appeal to be lodged in the Supreme Court at once. When Judge Hester became county judge on the 31st day of October, 1912, he at once made an order, setting aside the former order made at the same term of the court employing Col. Oglesby. He also moved the Supreme Court to dismiss the appeal in the case above referred to, and this was done. Col. Oglesby never consulted him about the matter at all, but throughout the litigation acted under the direction of Judge Harp, who had made the order employing him during his term of office. Col. Oglesby was a prominent lawyer and citizen of Ft. Smith, and must have known of the controversy that had been waged for a year or more regarding the erection of a new courthouse. Under all these circumstances, we think the circuit court was justified in finding that Col. Oglesby was acting in the interest of Judge Harp, and was not entitled to a claim for his services against Sebastian county. For these reasons we have voted to affirm the judgment of the circuit court disallowing his claim.

by reference. Held, that it was not within the ment for unconstitutionality in extending a law prohibition, being complete in itself, though requiring reference to other acts to ascertain its meaning.

Cent. Dig. §§ 48, 198, 209; Dec. Dig. 141.] [Ed. Note. For other cases, see Statutes, Appeal from Circuit Court, Greene County; J. F. Gautney, Judge.

E. L. McKinley was indicted for violating election laws, and demurred to the indictment. The demurrer was sustained, and the State appeals. Reversed and remanded.

Wm. L. Moose, Atty. Gen., John P. Streepey, Asst. Atty. Gen., and M. P. Huddleston, of Paragould, for the State. R. P. Taylor, of Paragould, for appellee.

HART, J. Appellee and others were indicted for an alleged violation of the election laws while acting as judges of an election for city officers in the city of Paragould, in Greene county, Ark. The court sustained a demurrer to the indictment, and the state has appealed to this court. that the act of January 23, 1875 (Laws 1874-75, p. 92), providing a general election law, in terms applies only to general elections of state, county, and township officers, and to special elections held to fill vacancies in said offices.

It is conceded

Section 5433 of Kirby's Digest provides for the holding of elections in municipal corporations, and the concluding sentence reads

as follows:

the manner prescribed by law for holding state "All elections shall be held and conducted in and county elections, so far as the same may be applicable."

The only objection made to the indictment is that the general election laws do

which reads as follows:

"No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

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not apply to municipal elections, and that | original form, and in themselves intelligible and section 5433 of Kirby's Digest is in violation complete 'statutes which refer to, and by refof section 23, art. 5, of our Constitution, erence adopt, wholly or partially, pre-existing statutes.' In the construction of such statutes, "the statute referred to is treated and considered as if it were incorporated into and formed a part of that which makes the reference. The two statutes coexist as separate and distinct legislative enactments, each having its appointed sphere of action; and the alteration, change, or repeal of the one does not operate upon or affect the other.' Phoenix Assurance Co. v. Fire Department, 117 Ala. 631, 23 So. 843, 42 L. R. A. 468. Such statutes are not strictly amendatory or revisory in character, and are not obnoxious to the constitutional provision which forbids a law to be revised, amended, or the provisions thereof to be extended or conferred by reference to its title only. That prohibition is directed against the practice of amending or revising laws by additions to, or other alterations, which without the presence of the original act are usually unintelligible."

The purpose of the clause of the Constitution was to protect the members of the Legislature and the public against fraud and deception.

Where the new act is not complete, but refers to a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist, and this constitutes the vice sought to be prohibited by this clause of the Constitution. In the case before us the act is very broad and comprehensive. It is complete in itself, and in no manner attempts to amend or change the existing election laws. On the contrary, the general election laws are undisturbed and are in no wise affected by section 5433, pertaining to municipal elections. It is no objection to the statute that, in order to ascertain how elections in cities and towns shall be held, it becomes necessary to refer to existing laws relative to holding general elections for state and county offi

cers.

This rule was recognized and applied by this court in the cases of Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, and Common School Dist. v. Oak Grove Special School Dist., 102 Ark. 411, 144 S. W. 224. In the former case the court said:

"We are not, however, prepared to assert that when a new right is conferred or cause of action given the provision of the Constitution quoted requires the whole law governing the remedy to be re-enacted in order to enable the courts to effect its enforcement."

In the latter case the court quoted with In the latter case the court quoted with approval from the Supreme Court of Mon

tana as follows:

"If an act is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden."

In construing a similar constitutional provision, in Savage v. Wallace, 165 Ala. 572, 51 So. 605, the Supreme Court of Alabama

said:

"There is a class of statutes, known as 'reference statutes,' which impinge upon no constitutional limitation. They are statutes in

In People v. Mahaney, 13 Mich. 481, Judge Cooley, with reference to a similar provision, said:

"This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied terms so blind that legislators themselves were was the enactment of amendatory statutes in sometimes deceived in regard to their effect, and the public, from the difficulty in making ed to become apprised of the changes made in the necessary examination and comparison, failthe laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless the Constitution wisely prohibited such legislaconfusion was thus introduced into the law, and tion. But an act complete in itself is not

within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent."

From the principles above announced it will be seen that the constitutional provision quoted above was intended to enable the

meaning of statutes directly amending prior statutes to be ascertained by an examination of the new statute, without the necessity of examining the prior statutes on the subject to ascertain the effect of the amendment. As we have already seen, section 5433 of Kirby's Digest is complete in itself and does not purport in any manner to amend or change the existing election laws. It follows that the constitutional requirement was not violated in the enactment of section 5433 of Kirby's Digest, and the court erred in sustaining the demurrer to the indictment.

For this error the judgment must be reversed, and the cause will be remanded for a new trial.

CARMEN v. STATE. (Supreme Court of Arkansas.

1. INCEST

(No. 136.) Sept. 27, 1915.)

10-INDICTMENT-SUFFICIENCY. An indictment stating in technical language that adultery was committed by defendant, a married man, with his niece, sufficiently alleged the offense of incest.

[Ed. Note.-For other cases, see Incest, Cent. Dig. 9; Dec. Dig. 10.]

2. INCEST 10-INDICTMENT-SUFFICIENCY. An indictment for incest which failed to allege that defendant was a married man when he committed the adultery with his niece was insufficient to sustain a conviction.

[Ed. Note.-For other cases, see Incest, Cent. Dig. 9; Dec. Dig. 10.] 3. CRIMINAL LAW 185-FORMER JEOPARDY -TRIAL UNDER BAD INDICTMENT.

Under Kirby's Dig. § 2396, providing that if, after being kept together such a length of time as the court deems proper, the jury do not agree on a verdict, and it satisfactorily appears that there is no probability they can agree, the court may discharge them, where a trial under an indictment which was insufficient to support a conviction because of the omission of an essential allegation resulted in the discharge of the jury because of their failure to agree, such trial did not bar a new trial under a proper indictment, as nothing short of an actual acquittal or conviction under such an indictment will confer immunity from further prosecution for the same offense.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 344; Dec. Dig. 4. CRIMINAL LAW 586, 1151 ANCE-DISCRETION-REVIEW.

185.] CONTINUThe trial court has a large discretion in granting or refusing continuances, and unless there appears to have been a manifest abuse of its discretion in the denial of a continuance, its action will not be reversed.

[Ed. Note. For other cases, see Criminal Note.-For Law, Cent. Dig. §§ 1311, 3045-3049; Dec. Dig. 586, 1151.]

5. INCEST 13-EVIDENCE-OTHER ACTS.

On a trial for incest with defendant's niece, evidence of his conduct with her and acts of intercourse occurring at a time when the offenses thereby committed would be barred by limitations was admissible as tending to shed light on the relations between them at a time within the statutory period, and to show the probability of the commission of the offense charged, when properly limited to this purpose.

[Ed. Note. For other cases, see Incest, Cent. Dig. §§ 29-35; Dec. Dig. 13.] 6. INCEST 13-EVIDENCE-ADMISSIONS.

On a trial for incest, where it appeared that in a bastardy proceeding defendant voluntarily admitted that he was the father of the child, and made the required bond without any warrant having been issued and without a trial, the bond and orders in such proceeding were admissible, the jury's consideration thereof having been limited to a voluntary admission by defendant, and the jury having been told that, if defendant did not understand that he was charged with being the father, they should not consider the matter even as an admission.

[Ed. Note.-For other cases, see Incest, Cent. Dig. § 11; Dec. Dig. 13.]

7. INCEST 14-EVIDENCE-SUFFICIENCY.

On a trial for incest, evidence held sufficient On a trial for incest, evidence held sufficient to support a verdict of guilty.

[Ed. Note.-For other cases, see Incest, Cent. Dig. § 12; Dec. Dig. 14.]

Appeal from Circuit Court, Clay County; J. F. Gautney, Judge.

J. F. Carmen was convicted of incest, and he appeals. Affirmed.

J. F. Carmen was indicted, charged with the crime of incest, committed by having carnal knowledge of his niece, Ona Burns; the indictment not alleging that he was a married man. A demurrer was interposed to the indictment and overruled, and he was placed upon trial, and the jury, having failed to agree, were discharged by the court after they had reported the second time their failure to arrive at a verdict.

On the 8th of May, before the cause was again reached for trial, the grand jury in session returned another indictment against the defendant, charging him with incest committed with his niece, Ona Burns, and also that he was a married man. After its return the court upon its own motion sustained the demurrer to the first indictment, which it had previously overruled. Upon the case being called for trial the defendant moved for a continuance because of the serious illness of his wife, which was denied. A demurrer to the second indictment was overruled, and the defendant interposed a plea of former jeopardy, alleging that he had been put in jeopardy of his liberty for this offense by the former trial. The testimony was introduced on this issue showing the mistrial on the first indictment, and the court directed the verdict for the state upon this plea. The testimony shows that Ona Burns, the niece of the defendant (who "was not bright," as one of the witnesses said) lived at defendant's house with him and his wife, who was in poor health and about 70 years of age. Several witnesses testified to an apparent undue intimacy between the defendant and his niece, Ona Burns, a half-witted girl about 21 years of age, and one stated positively that he had seen defendant in the act of having sexual intercourse with said niece in the corncrib at the barn. She was delivered of a child about the usual time after these acts of sexual intercourse were alleged to have occurred; and the county judge, upon a complaint made in a bastardy proceeding, sent for the defendant and told him of the complaint, and he said he was not the father of the child, but that he was willing to give the bond required for its support. The judge informed him that it was necessary for him to admit that he was the father of the child or submit to a trial of that question, and he said that it would be all right, that he would make the bond, which he did do, and returned and filed it with the judge. He admitted having made the bond, did not deny that the judge explained the circumstances and his rights in the matter fully, as he claimed to have done, but said he only understood that he was giving the bond to support the child in order that his

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niece and it should not be taken from his house to the poor farm. The bond in regular form was introduced in evidence over defendant's objection, and upon the back of it was endorsed the following:

"On this day comes before me J. P. Carmen, accused of bastardy, and, the charge being stated, he enters a plea of guilty, and offers as sureties on his bond for the maintenance of said child J. W. Wickham and S. H. Smart, and said bond so tendered being conditioned as provided by law, and, the said Ona Burns waiving her claim to a judgment against the said J. F. Carmen, said bond is by the court ordered filed and approved, and a judgment thereon entered. "This day of April, 1914.

"B. B. Holifield, Judge."

The defendant denied ever having had intercourse with the girl, but admitted that he had asked her to have intercourse with him, as two witnesses testified he had told them, but said that he had done so, as he told said witnesses, only for the purpose of teaching the girl a lesson, and that he had so explained it satisfactorily to his wife upon the girl having told her of his conduct. There was other testimony tending to show that some other persons could have been the father of the child, and the girl herself stated definitely that one of them "had had a chance to be." The defendant's prior good reputation was established, and there was testimony tending to some extent to discredit the statement of the witness who had seen the parties in the sexual embrace; certain witnesses stating that he could not have seen them leaving the barn where the act was said to have occurred after he had ridden away from the gate to where he said he was at the time they left the barn.

R. H. Dudley, of Piggott, for appellant. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

KIRBY, J. (after stating the facts as above). [1] The allegations of the indictment under which the defendant was convicted sufficiently alleged the offense, and no error was committed in overruling the demurrer thereto. Martin v. State, 58 Ark. 3, 22 S. W. 840. It stated in technical language that the adultery was committed by defendant, a married man, with Ona Burns, his niece, and, as said in Gaston v. State, 95 Ark. 233, 128 S. W. 1033:

"The gravamen of the crime of incest is the unlawful carnal knowledge, and it is unlawful because of consanguinity. The object of the statute is to prohibit by punishment the sexual intercourse of those who are related within the prescribed degrees."

[2, 3] Neither did the court err in denying defendant's plea of former jeopardy. The indictment under which he was first tried was not sufficient to sustain a judgment of conviction, not having alleged that the defendant was a married man at the time it was alleged he committed the adultery with his niece, which constituted the crime of in

short of an actual acquittal or conviction under such an indictment will confer immunity from further prosecution for the same offense upon the accused. State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213. Moreover, there was no verdict or judgment upon the trial, but a mistrial, the court having discharged the jury, as it had the right to do, after they failed to agree upon a verdict and it satisfactorily appeared to him that there was no probability of one being reached. Sections 2336, 2397, Kirby's Digest.

[4] Neither was error committed in denying the motion for a continuance. The court has large discretion in the granting or refusing of motions for continuance, and, unless there appears to have been a manifest abuse of its discretion in the denial of such motion, its action will not be reversed, and there is no such condition shown here as would indicate any such abuse of discretion.

[5] The proof of conduct of defendant with his niece and acts of intercourse occurring at a time when the offense thereby committed would be barred by the statute of limitations was competent and admissible as tending to shed light upon the relations existing between the parties at a time within the statutory period, and shows the probability of the commission of the offense charged, and the court by proper instructions limited the jury's consideration of it to this purpose. Adams v. State, 78 Ark. 16, 92 S. W. 1123; Taylor v. State, 110 Ga. 150, 35 S. E. 161; Com. v. Bell, 166 Pa. 405, 31 Atl. 123.

[6] It is strenuously urged that the court erred in permitting the bond given by the defendant in the bastardy proceedings or any of the entries or judgments relating thereto to be introduced in evidence. This question has given us serious concern, but there was no adjudication by the county court in the bastary proceeding that defendant was the father of the child of his niece with whom he is alleged to have committed incest, after a trial of the question, but it was shown that he voluntarily admitted that such was the fact upon being told by the county judge that a charge of the kind had been lodged against him, and agreed to and did make the bond required by the statute in such cases without any warrant having been issued or any trial thereof. The court, by appropriate instructions, limited the consideration of this matter by the jury to a voluntary admission on the part of the defendant, and instructed them that, if they should find he did not understand the purpose or effect of the bond, or did not understand enough about the transaction to know that he was charged with being the father of the child, they should not consider it as an admission even, and we do not think any error was committed in this respect.

The case is unlike that of Ireland v. State, 99 Ark. 32, 136 S. W. 947, in which there was

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