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him to perform legal services in which the It is true that evidence was adduced by Ft. Smith district of Sebastian county was the plaintiff tending to show that the proseinterested, and that the incoming county cuting attorney had been consulted by the judge had no right to set aside such con- county judge in regard to contemplated lititract. He also contends that the object of gation with ‘reference to the building of the the litigation above referred to was to set- courthouse, and that he had failed and negtle the title of the Ft. Smith district to the lected to represent the county. On the othsite on which the present courthouse in the er hand, the prosecuting attorney himself city of Ft. Smith is situated. On the other testified that the first information he had of hand, it is the contention of counsel repre- the pending litigation was derived from readsenting the Ft. Smith district of Sebastian ing the newspapers, and that the county county that Col. Oglesby was employed to judge had already employed other counsel represent the interests of the county judge without consulting him. According to his in erecting the courthouse, and that the title testimony the county judge superseded him to the ground on which the present court- with other counsel, and he was justified in house stands was not involved in any of the considering himself as having no official conlitigation; that Col. Oglesby was the per- nection with the cases. He stated that the sonal representative of the county judge; county judge did not talk to him until a few and that the county is not liable to him. days before the case above referred to, which

It is well settled in this state that the was decided in the chancery court on the 21st finding of a circuit judge sitting without a day of October, 1912, was heard and deterjury is as binding upon us upon appeal as mined. He admits that Col. Oglesby talked the verdict of a jury. Such findings will to him about the case, but says this was only not be disturbed on appeal if there is any a few days before the case was reached for substantial evidence to support them. In the trial. application of this rule Judge Smith and

It will be remembered that Col. Oglesby the writer have reached the conclusion that was not employed until the 16th day of Ocwhen all the facts and surrounding circum- tober, 1912, and that the only case in which stances and the inferences which might le he appeared was heard by the chancellor on

It also apgitimately be drawn therefrom are consider the 21st day of October, 1912. ed, the circuit court was warranted in pears that Col. Oglesby had been in a hospifinding that Col. Oglesby had no cause of tal in St. Louis until the latter part of Sepaction against the county, and that the cir-tember, 1912. So, it is reasonable to presume cuit court did not err in dismissing his com- cuting attorney until a few days before the

that Col. Oglesby did not talk with the proseplaint. Section 6392 of Kirby's Digest provides circuit court was the sole judge of the cred

case was called for trial. At any rate, the that each prosecuting attorney shall com- ibility of the witnesses, and was justified in mence and prosecute actions, both civil and finding that the county judge employed addicriminal, in which the state or any county tional counsel without any appearance of inin his circuit may be concerned. Section 6393 of the Digest provides that he shall de- the prosecuting attorney.

competency or neglect of duty on the part of fend all suits brought against the state or

As we have already seen, the undisputed any county in his circuit. In the construc- facts show that an agitation for the erection tion of the latter section, in the case of Gra- of the new courthouse was begun in 1911, ham v. Parham, 32 Ark. 676, the court held and the citizens of the district were sharply that it is the official duty of the prosecuting divided on the question of the expediency of attorney to defend suits brought in the fed- erecting it. The question was an issue in the eral court against the county embraced in primary campaign in the spring of 1912. his circuit. We think the county court has Judge Harp, the then county judge, asked for power to employ additional counsel when in re-election, and one of the reasons given his judgment the interests of the county are therefor was that he favored the erection of of sufficient importance to demand it, or, in a new courthouse. His opponent was Ezra cases where the prosecuting attorney neg. Hester, who was opposed to the construclects or refuses to perform the duties im- tion of a new courthouse. That the erection posed upon him by statute, or where his of a new courthouse was one of the principal other duties are of such character that he issues of the primary campaign is fairly indoes not have time to properly represent the ferable from all the circumstances. Hester county. We are of the opinion, however, was at the time county clerk. The agitation that the power of the court to employ ad- for the erection of a new courthouse was ditional counsel does not give the right, un-begun the year before. Col. Oglesby testified der the guise of such employment, to take that the people were very much divided on the case out of the hands of the prosecuting the question. Geo. W. Dodd, who was also attorney and confide its management to oth-employed as an attorney in the matter by er attorneys without consultation with the Judge Harp, testified that there was friction prosecuting attorney, or for the purpose of between Judge Harp and Ezra Hester in refurthering the private interests of the coun- gard to the erection of a new courthouse, and Ark.)

STATE V MCKINLEY

181

county judge in certain instances; that it Judge Kirby is of the opinion that under was generally known that Ezra Hester was section 6393 of Kirby's Digest and the recopposed to the erection of a new courthouse. ord of this cause, it was beyond the power Judge Harp was defeated in the primary by of the county judge to employ counsel to perJudge Hester, and the latter was elected as form the duties which had been imposed by county judge at the general election in the statute upon the prosecuting attorney, and following September. Judge Harp then de- that its contract with Col. Oglesby was ultra termined to get the construction of the new vires and void. For that reason he has voted courthouse under such headway before his to affirm the judgment. It follows that the term of office expired that it would not be judgment is affirmed; and it is so ordered. practical to prevent the courthouse from be- The CHIEF JUSTICE and Mr. Justice ing erected. In carrying out his plan he WOOD are of the opinion that the judgment made an order for the erection of a new should be reversed. See 179 S. W. 1199. 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- STATE v. McKINLEY. (No. 133.) complish the same purpose the city of Ft. (Supreme Court of Arkansas. Sept. 27, 1915.) Smith, which under a contract with the county occupied rooms in the present courthouse, STATUTES Cw141--CONSTITUTIONAL REQUIRE

MENTS-AMENDMENT-SEPARATE ACT. 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 exhaus, ed under section 5433, demurred to the indicttive opinion in the cause and memorialized ment for unconstitutionality in extending a law

by reference. Held, that it was not within the the facts by spreading them on the record. prohibition, being complete in itself, though reHe expressed the view that the present quiring reference to other acts to ascertain its courthouse was safe and large enough for meaning. the needs of the district for years to come. Cent. Dig. $$ 48, 198, 209; Dec. Dig. Eww141.]

[Ed. Note.-For other cases, see Statutes, He further held that there was no cloud upon the title of the district to the grounds Appeal from Circuit Court, Greene Counupon which the courthouse is situated, and ty; J. F. Gautney, Judge. that the city only claimed the right to occupy E. L. McKinley was indicted for violating a part of the building under a contract it election laws, and demurred to the indicthad made with the Ft. Smith district of ment. The demurrer was sustained, and the Sebastian county. As soon as the case was State appeals. Reversed and remanded. decided by the chancellor the county judge ordered Col. Oglesby to take an appeal at

Wm. L. Moose, Atty. Gen., John P. Streeonce. This Col. Oglesby proceeded to do. pey, Asst. Atty. Gen., and M. P. Huddleston, He caused the transcript to be prepared and of Paragould, for the State. R. P. Taylor, of the appeal to be lodged in the Supreme Court

Paragould, for appellee. at once. When Judge Hester became county

,
at

Appellee and others were inonce made an order, setting aside the former dicted for an alleged violation of the elecorder made at the same term of the court tion laws while acting as judges of an elecemploying Col. Oglesby. He also moved the tion for city officers in the city of Paragould, Supreme Court to dismiss the appeal in the in Greene county, Ark. The court sustained case above referred to, and this was done. a demurrer to the indictment, and the state Col. Oglesby never consulted him about the has appealed to this court. It is conceded matter at all, but throughout the litigation that the act of January 23, 1875 (Laws acted under the direction of Judge Harp, who 1874–75, p. 92), providing a general election had made the order employing him during his law, in terms applies only to general electerm of office. Col. Oglesby was a prominent tions of state, county, and township offilawyer and citizen of Ft. Smith, and must have cers, and to special elections held to fill vaknown of the controversy that had been wag- cancies in said offices. ed for a year or more regarding the erection

Section 5433 of Kirby's Digest provides for of a new courthouse. Under all these cir- | the holding of elections in municipal corcumstances, we think the circuit court was porations, and the concluding sentence reads justified in finding that Col. Oglesby was act

as follows: ing in the interest of Judge Harp, and was the manner prescribed by law for holding state

"All elections shall be held and conducted in not entitled to a claim for his services against and county elections, so far as the same may be Sebastian county. For these reasons

we applicable." have voted to affirm the judgment of the cir- The only objection made to the indictcuit court disallowing his claim.

I ment is that the general election laws do 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

In the construction of such statwhich reads as follows:

utes, “ 'the statute referred to is treated and con“No law shall be revived, amended, or the pro- sidered as if it were incorporated into and visions thereof extended or conferred by refer- formed a part of that which makes the reference to its title only; but so much thereof as ence. The two statutes coexist as separate and is revived, amended, extended or conferred shall distinct legislative enactments, each having its be re-enacted and published at length.

appointed sphere of action; and the alteration, The purpose of the clause of the Constitu- change, or repeal of the one

does not operate

.' tion was to protect the members of the Leg.Co. v. Fire Department, 117 Ala. 631, 23 So. islature and the public against fraud and de- 843, 42 L. R. A. 468. Such statutes are not ception.

strictly amendatory or revisory in character, Where the new act is not complete, but vision which forbids a law to be revised, amend

and are not obnoxious to the constitutional prorefers to a prior statute which is changed so ed, or the provisions thereof to be extended or that the legislative intent on the subject conferred by reference to its title only. That can only be ascertained by reading both prohibition is directed against the practice of

amending or revising laws by additions to, or statutes, uncertainty and confusion will ex- other alterations, which without the presence of ist, and this constitutes the vice sought to be the original act are usually unintelligible." prohibited by this clause of the Constitu- In People v. Mahaney, 13 Mich. 481, Judge tion. In the case before us the act is very Cooley, with reference to a similar provibroad and comprehensive. It is complete in sion, said: itself, and in no manner attempts to amend "This constitutional provision must receive a or change the existing election laws. On reasonable construction, with a view to give the contrary, the general election laws are was the enactment of amendatory statutes in

it effect. The mischief designed to be remedied undisturbed and are in no wise affected by terms so blind that legislators themselves were section 5433, pertaining to municipal elec- sometimes deceived in regard to their effect, tions. It is no objection to the statute that, and the public, from the difficulty in making in order to ascertain how elections in cities ed to become apprised of the changes made in

the necessary examination and comparison, failand towns shall be held, it becomes necessary the laws. An amendatory act which purported to refer to existing laws relative to holding only to insert certain words, or to substitute general elections for state and county offi- one phrase for another, in an act or section cers. This rule was recognized and applied was well calculated to mislead the careless as

which was only referred to, but not published, by this court in the cases of Watkins v. to its effect, and was, perhaps, sometimes drawn Eureka Springs, 49 Ark. 131, 4 S. W. 384, in that form for that express purpose. and Common School Dist. v. Oak Grove Spe- confusion was thus introduced into the law, and

the Constitution wisely prohibited such legislacial School Dist., 102 Ark. 411, 144 S. W. tion. But an act complete in itself is not 224. In the former case the court said: within the mischief designed to be remedied by

“We are not, however, prepared to assert that this provision, and cannot be held to be prohibwhen a new right is conferred or cause of ac-ited by it without violating its plain intent.” tion given the provision of the Constitution From the principles above announced it remedy to be re-enacted in order to enable the will be seen that the constitutional provision courts to effect its enforcement."

quoted above was intended to enable the In the latter case the court quoted with meaning of statutes directly amending prior approval from the Supreme Court of Mon- tion of the new statute, without the neces

statutes to be ascertained by an examinatana as follows: "If an act is original in form, and by its own subject to ascertain the effect of the amend

sity of examining the prior statutes on the language grants some power, confers some right or creates some burden or obligation, it is not ment. As we have already seen, section in conflict with the Constitution, although it 5433 of Kirby's Digest is complete in itself may refer to some other existing statute for the and does not purport in any manner to cuting the power, enforcing the right, or dis- amend or change the existing election laws. charging the burden.'

It follows that the constitutional requireIn construing a similar constitutional pro- ment was not violated in the enactment of vision, in Savage v. Wallace, 165 Ala. 572, section 5433 of Kirby's Digest, and the court 51 So. 605, the Supreme Court of Alabama erred in sustaining the demurrer to the insaid:

dictment. “There is a class of statutes, known as 'ref

For this error the judgment must be reerence statutes,' which impinge upon no con- versed, and the cause will be remanded for stitutional limitation. They are statutes in a new trial.

Ark.)

CARMEN v. STATE

183

Appeal from Circuit Court, Clay County ; CARMEN v. STATE. (No. 136.)

J. F. Gautney, Judge. (Supreme Court of Arkansas. Sept. 27, 1915.)

J. F. Carmen was convicted of incest, and

he appeals. Affirmed. 1. INCEST 10-INDICTMENT-SUFFICIENCY. An indictment stating in technical language

J. F. Carmen was indicted, charged with that adultery was committed by defendant, a the crime of incest, committed by having carmarried man, with his niece, sufficiently alleged nal knowledge of his piece, Ona Burns; the the offense of incest.

[Ed. Note.-For other cases, see Incest, Cent. indictment not alleging that he was a marDig. $ 9; Dec. Dig. Om 10.]

ried man. A demurrer was interposed to 2. INCEST Om 10-INDICTMENT-SUFFICIENCY.

the indictment and overruled, and he was An indictment for incest which failed to al- placed upon trial, and the jury, having failed lege that defendant was a married man when he to agree, were discharged by the court aftcommitted the adultery with his niece was in- er they had reported the second time their sufficient to sustain a conviction.

{Ed. Note.--For other cases, see Incest, Cent. failure to arrive at a verdict. Dig. $ 9; Dec. Dig. Om 10.]

On the 8th of May, before the cause was 3. CRIMINAL LAW_Cw185—FORMER JEOPARDY again reached for trial, the grand jury in -TRIAL UNDER BAD INDICTMENT.

session returned another indictment against Under Kirby's Dig. $ 2396, providing that the defendant, charging him with incest comif, after being kept together such a length of mitted with his niece, Ona Burns, and also

as agree on a verdict, and it satisfactorily appears that he was a married man. After its return that there is no probability they can agree, the the court upon its own motion sustained the court may discharge them, where a trial under demurrer to the first indictment, which it an indictment which was insufficient to support had previously overruled. Upon the case a conviction because of the omission of an essential allegation resulted in the discharge of the being called for trial the defendant moved jury because of their failure to agree, such trial for a continuance because of the serious illdid not bar a new trial under a proper indict-ness of his wife, which was denied. A deconviction under such an indictment will confer murrer to the second indictment was overimmunity from further prosecution for the same ruled, and the defendant interposed a plea offense.

of former jeopardy, alleging that he had [Ed. Note.-For other cases, see Criminal been put in jeopardy of his liberty for this Law, Cent. Dig. $ 344; Dec. Dig. Om 185.]

offense by the former trial. The testimony 4. CRIMINAL LAW 586, 1151 CONTINU- was introduced on this issue showing the misANCE-DISCRETION-REVIEW.

The trial court has a large discretion in trial on the first indictment, and the court granting or refusing continuances, and unless directed the verdict for the state upon this there appears to have been a manifest abuse of plea. The testimony shows that Ona Burns, its discretion in the denial of a continuance, the niece of the defendant (who "was not its action will not be reversed.

bright," as one of the witnesses said) lived [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1311, 3045-3049; Dec. Dig, at defendant's house with him and his wife, -586, 1151.

who was in poor health and about 70 years

Several witnesses testified to an 5. INCEST 13-EVIDENCE-OTHER ACTS.

On a trial for incest with defendant's niece, apparent undue intimacy between the defendevidence of his conduct with her and acts of in- ant and his niece, Ona Burns, a half-witted tercourse occurring at a time when the offenses girl about 21 years of age, and one stated thereby committed would be barred by limitations was admissible as tending to shed light on positively that he had seen defendant in the the relations between them at a time within the act of having sexual intercourse with said statutory period, and to show the probability of niece in the corncrib at the barn. She was the commission of the offense charged, when delivered of a child about the usual time properly limited to this purpose.

[Ed. Note.–For other cases, see Incest, Cent. after these acts of sexual intercourse were Dig. $$ 29–35; Dec. Dig. Om 13.)

alleged to have occurred; and the county 6. INCEST 13-EVIDENCE-ADMISSIONS.

judge, upon a complaint made in a bastardy On a trial for incest, where it appeared that proceeding, sent for the defendant and told in a bastardy proceeding defendant voluntarily him of the complaint, and he said he was not admitted that he was the father of the child, and the father of the child, but that he was willmade the required bond without any warrant having been issued and without a trial, the bond ing to give the bond required for its support. and orders in such proceeding were admissible, The judge informed him that it was necesthe jury's consideration thereof having been lim- sary for him to admit that he was the faited to a voluntary admission by defendant, and the jury having been told that, if defendant did ther of the child or submit to a trial of that not understand that he was charged with being question, and he said that it would be all the father, they should not consider the matter right, that he would make the bond, which even as an admission.

he did do, and returned and filed it with the [Ed. Note.-For other cases, see Incest, Cent.

judge. He admitted having made the bond, Dig. $ 11; Dec. Dig. Om 13.]

did not deny that the judge explained the 7. INCEST Om14-EVIDENCE-SUFFICIENCY. On a trial for incest, evidence held sufficient fully, as he claimed to have done, but said

circumstances and his rights in the matter to support a verdict of guilty.

[Ed. Note.-For other cases, see Incest, Cent. he only understood that he was giving the Dig. $ 12; Dec. Dig. Om 14.]

bond to support the child in order that his

of age.

niece and it should not be taken from his short of an actual acquittal or conviction unhouse to the poor farm. The bond in regular der such an indictment will confer immunity form was introduced in evidence over de from further prosecution for the same offendant's objection, and upon the back of it fense upon the accused. State v. Ward, 48 was endorsed the following:

Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213. “On this day comes before me J. P. Carmen, Moreover, there was no verdict or judgment accused of bastardy, and, the charge being stat- upon the trial, but a mistrial, the court havties on his bond for the maintenance of said child ing discharged the jury, as it had the right J. W. Wickham and S. H. Smart, and said bond to do, after they failed to agree upon a verso tendered being conditioned as provided by law, dict and it satisfactorily appeared to him and, the said Ona Burns waiving her claim to a that there was no probability of one being judgment against the said J. F. Carmen, said bond is by the court ordered filed and approved, reached. Sections 2396, 2397, Kirby's Digest. and a judgment thereon entered.

[4] Neither was error committed in deny"This day of April, 1914.

ing the motion for a continuance. The court “B. B. Holifield, Judge."

has large discretion in the granting or refusThe defendant denied ever having had in-ing of motions for continuance, and, unless tercourse with the girl, but admitted that there appears to have been a manifest abuse he had asked her to have intercourse with of its discretion in the denial of such motion, him, as two witnesses testified he had told its action will not be reversed, and there is them, but said that he had done so, as he no such condition shown here as would inditold said witnesses, only for the purpose of cate any such abuse of discretion. teaching the girl a lesson, and that he had

[5] The proof of conduct of defendant with so explained it satisfactorily to his wife upon his niece and acts of intercourse occurring the girl having told her of his conduct. at a time when the offense thereby committed There was other testimony tending to show would be barred by the statute of limitations that some other persons could have been the

was competent and admissible as tending to father of the child, and the girl herself stat- shed light upon the relations existing beed definitely that one of them “had had a tween the parties at a time within the statchance to be.” The defendant's prior good utory period, and shows the probability of reputation was established, and there was the commission of the offense charged, and testimony tending to some extent to discredit the court by proper instructions limited the the statement of the witness who had seen

who had seen jury's consideration of it to this purpose. the parties in the sexual embrace; certain Adams v. State, 78 Ark. 16, 92 S. W. 1123; witnesses stating that he could not have seen Taylor v. State, 110 Ga. 150, 35 S. E. 161; them leaving the barn where the act was Com. v. Bell, 166 Pa. 405, 31 Atl. 123. said to have occurred after he had ridden

[6] It is strenuously urged that the court away from the gate to where he said he was erred in permitting the bond given by the deat the time they left the barn.

fendant in the bastardy proceedings or any R. H. Dudley, of Piggott, for appellant. of the entries or judgments relating thereto Wm. L. Moose, Atty. Gen., and John P. to be introduced in evidence. This question Streepey, Asst. Atty. Gen., for the State. has given us serious concern, but there was

no adjudication by the county court in the KIRBY, J. (after stating the facts as bastary proceeding that defendant was the above). [1] The allegations of the indict- father of the child of his niece with whom ment under which the defendant was convict- he is alleged to have committed incest, after ed sufficiently alleged the offense, and no er- a trial of the question, but it was shown ror was committed in overruling the demur- that he voluntarily admitted that such was rer thereto. Martin v. State, 58 Ark. 3, 22 the fact upon being told by the county judge S. W. 840. It stated in technical language that a charge of the kind had been lodged that the adultery was committed by defend against him, and agreed to and did make the ant, a married man, with Ona Burns, his bond required by the statute in such cases niece, and, as said in Gaston v. State, 95 Ark. without any warrant having been issued or 233, 128 S. W. 1033:

any trial thereof. The court, by appropriate "The gravamen of the crime of incest is the instructions, limited the consideration of this unlawful carnal knowledge, and it is unlawful matter by the jury to a voluntary admission because of consanguinity. The object of the statute is to prohibit by punishment the sexual on the part of the defendant, and instructed intercourse of those who are related within the them that, if they should find he did not unprescribed degrees."

derstand the purpose or effect of the bond, [2, 3] Neither did the court err in denying or did not understand enough about the defendant's plea of former jeopardy. The transaction to know that he was charged indictment under which he was first tried with being the father of the child, they should was not suficient to sustain a judgment of not consider it as an admission even, and we conviction, not having alleged that the de- do not think any error was committed in fendant was a married man at the time it this respect. was alleged he committed the adultery with The case is unlike that of Ireland v. State, his niece, which constituted the crime of in- 99 Ark. 32, 136 S. W. 947, in which there was

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