3. CONTRACTS m10_SALE OF LAND-MUTU-, the parties were set out. This correspondALITY.

A contract providing that one party shall ence eventuated in a demand made by appelpay purchase money for real estate as it ma- lant in a letter dated February 7, 1914, as tures by the terms of the contract, and that the follows: other party shall execute deeds for the land at "Replying to yours of the 5th, this day rea rate stipulated in the contract, is not void ceived, would say that we refer to our last letfor want of mutuality.

ter of January 21st, in which we inclose a deed [Ed. Note.-For other cases, see Contracts, for you to sign, and also our ultimatum of JanCent. Dig. $$ 21-40; Dec. Dig. Om 10.]

uary 31st, and can only repeat that we will con

sider no other settlement at this time, either the Appeal from Logan Chancery Court; Wil- deed to the 50 lots or the return of the $1,500, liam A. Falconer, Chancellor.

or we will take action to protect our interests." Action by the Federal Realty Company

This letter was written in response to one against Joseph Evins. From a judgment for from appellee under date of February 5th, plaintiff, defendant appeals. Affirmed.

in which appellee stated :

"I have concluded to meet your demands by Anthony Hall, of Paris, for appellant. J. releasing to you by deed sixty lots, upon the T. Bullock, of Russellville, and R. C. Bul- payment to me of the amount due (find statelock, of Dardanell, for appellee.

ment inclosed), five hundred and forty-five ($545.00) dollars. This will settle fully the first

and second payments.” SMITH, J. On the 3d of April, 1912, the

[1] It will thus be seen that appellant was parties to this litigation entered into a con- contending for the execution and delivery to tract in writing for the sale of a tract of it of a deed containing 50 lots at the purland containing 125 acres situated in the chase price of $30 each; whereas appellee Northern district of Logan county. This tract of land had been platted into lots, and paid the balance due under the contract.

offered to deed 60 lots provided appellant was known as Mt. Magazine, a summer re- becomes necessary, therefore, to construe

It sort. The consideration for this contract was the sum of $6,000, and the provisions of tends it is an absolute sale of land to appel

the contract set out above. Appellee conthe contract over which the parties are dis- lant; while appellant contends it is an agree agreed read as follows: “Now, therefore, it is hereby agreed by and ment on its part to undertake the sale of

“ between the parties hereto, in consideration of said lands for appellee at a fixed price, and the mutual stipulations and agreements to be that the instrument cannot be construed as kept and performed by the several parties here- a contract for the sale of real estate, because to, as follows: "(1) The first party agrees that for the pur

there is no mutuality of obligation. pose of this contract he hereby agrees to sell

We think appellee correctly construed this and deliver unto the said parties of the second contract. We find nothing in its terms to part the aforesaid lands and lots at a stipulated support appellant's contention that the writprice of $6,000 to be paid in the manner here- ing set out constitutes a mere undertaking on inafter provided.

“(2) Five hundred dollars cash, the receipt of the part of appellant to sell said lots for apwhich is hereby acknowledged, and note for $500 pellee at a fixed price, and this is the point due August 10, 1912, said note to draw interest after maturity at 6 per cent., and said sec- upon which the parties disagree. We think ond parties shall continue to make payments to this is clear, not only from the terms of the the party of the first part as lots are sold, and contract, but that this was the understandthis contract shall continue in force for the ing of the parties thereto appears from their period of five years from date hereof, provided parties of the second part have made payments action under it. One thousand five hundred of at least $1,000 per year or upon the pay- dollars were paid before there was a demand ment of the balance of the said $6,000, together for any lots, and, while article 3 of the conwith interest upon deferred payment or pay tract does give appellant the right to demand ments at the rate of 6 per cent. after August 10, 1912, per annum, then said party of the a deed for each $30 of purchase money paid, first part or assigns is to deed to the party of article 2 of the contract requires appellant the second part, any and all lands or lots which to make payments at the rate of $1,000 a have not been previously deeded.

“(8) It is further agreed by and between the year, whether any lots are sold or not. parties hereto that the party of the first part

The court below construed the contract as is to release by deed lots at the rate of $30 each we have done, and gave judgment against for all money received by him, such deed to be executed and delivered to the parties of the sec- appellant for the $1,500 of the purchase monond part or any person designated by them ; ey then due, and declared this sum to be a same to be executed and delivered within 15 lien upon the property in question, and didays from date of payment."

rected its sale unless the same should be Appellant was the party of the second part paid within the time fixed by the decree, proto this contract, and, pursuant to its terms, vision being made in the decree for the repaid $1,500, and the interest, on payments tention by the commissioner of any sum of which had not been made at their maturity. money received by him in excess of the sum After these payments had been made a con- adjudged to be due, this excess to be applied troversy arose as to the respective rights and to the payment of the unpaid balance upon obligations of the parties under this con- its maturity. tract. There was considerable correspond- [2] Appellant, of course, is entitled to a ence, in which the respective contentions of deed to a lot for each $30 of purchase money

BLE."

paid, but it has no right to claim the bene- , 2318, relating to change of venue in criminal fit of the contract while refusing to discharge cases; the word “reputable” not being synonythe obligations which are imposed upon it.

mous with "credible.”

[Ed. Note.-For other cases, see Criminal Appellee offered to execute a deed to a suf- Law, Cent. Dig. $ 253; Dec. Dig. Om 137. ficient number of lots to cover all of the pur- For other definitions, see Words and Phrases, chase money which had been paid or was First and Second Series, Reputable.] then due, and, as this was all he could be re- 5. WITNESSES 311–CREDIBILITY—"CREDIquired to do, it cannot be said that he was in default.

A "credible” person is one who has the

capacity to testify on a given subject and is [3] The contract is not void for the want worthy of belief, and one who lacks knowledge of mutuality. Johnson v. Wilkerson, 96 Ark. on the subject under investigation is not a 320, 131 S. W. 690. The obligation on appel-credible person to be accepted as worthy of be

lief in that particular inquiry. lant's part is to pay the purchase money as

[Ed. Note. For other cases, see Witnesses, it matures, and upon appellee's part to exe- Cent. Dig. 88 1072-1075; Dec. Dig. Om 311. cute deeds at the rate of one lot for each

For other definitions, see Words and Phrases, $30 of purchase money paid.

First and Second Series, Credible.] We conclude, therefore, that appellant 6. CRIMINAL LAW Cww134-CHANGE OF VENUE misconstrued this contract and its rights AFFIDAVIT SUPPORTING WITNESSES —

KNOWLEDGE-CREDIBILITY. thereunder and committed a breach of the

Evidence held to support the finding of the contract by its failure to pay the purchase court that the supporting witnesses to an affimoney when due.

davit for a change of venue in a criminal case The decree of the chancellor will therefore were, for want of knowledge, not credible perbe affirmed.

sons within Kirby's Dig. & 2318.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 243, 251, 252; Dec. Dig.

Om 134.] DEWEIN V. STATE. (No. 129.) 7. CRIMINAL LAW O. 137–CHANGE OF VENUE (Supreme Court of Arkansas. Sept. 27, 1915.)

SUPPORTING WITNESSES — CREDIBILITY —

DISCRETION OF COURT. 1. CRIMINAL LAW m 119-SANITY-TRIAL- Whether a supporting witness to an affidaCHANGE OF VENUE.

vit for a change of venue is credible is a quesWhere the issue of sanity at the time of the tion largely in the discretion of the trial court, trial of a person convicted of crime and sen- depending on the facts of each particular case. tenced is to be submitted to a jury under a [Ed. Note.-For other cases, see Criminal writ of error coram nobis after sentence, he is Law, Cent. Dig. § 253; Dec. Dig. Eww137.] entitled to a change of venue as in other criminal cases.

8. JURY 99 - ISSUE OF SANITY - FORMER

TRIAL-OPINION-EFFECT. [Ed. Note.-For other cases, _see Criminal Law, Cent. Dig. SS 238–240; Dec. Dig. O

Where one convicted of murder secures, un119.]

der a writ of error coram nobis, the trial of an

issue as to his sanity at the time of his trial, 2. CRIMINAL LAW 121-CHANGE OF VENUE veniremen who admitted the forming and ex-DISCRETION OF COURT.

pressing of an opinion as to defendant's guilt, Where a petition for change of venue in a but who declared that they had no bias or prejcriminal case and its supporting affidavits are udice against him or any opinion on the quesin the form prescribed by statute, the only in- tion of his sanity, were competent to sit as quiry open to the court is as to the qualifica- jurymen. tions of the supporting witnesses, and if they [Ed. Note.-For other cases, see Jury, Cent. fulfill the requirement of Kirby's Dig. § 2318, as Dig. 88 438-443, 445 448; Dec. Dig. Om 99.] being credible qualified electors and actual residents of the county, not related to the defend- 9. CRIMINAL LAW Cw570_ISSUE OF SANITYant, the court has no discretion, and must grant

EVIDENCE-SUFFICIENCY. the change.

On the trial, under a writ of error coram [Ed. Note. For other cases, see Criminal nobis after sentence, of an issue as to the

Law, Cent. Dig. § 241; Dec. Dig. Om 121.]

sanity at the trial of one convicted of murder,

evidence held sufficient to sustain a verdict of 3. CRIMINAL LAW Omw 135—CHANGE OF VENUE sanity.

AFFIDAVITS WITNESSES CREDIBILITY [Ed. Note. For other cases, see Criminal -INQUIRY.

Law, Cent. Dig. $$ 1285–1288; Dec. Dig. 570.] In passing on the credibility of the supporting witnesses, on a motion for change of venue 10. CRIMINAL LAW 452—EVIDENCE-NONin a criminal case, the court may examine them EXPERT OPINIONS-INSANITY-ADMISSIBILas to their means of knowledge and as to the ITY. probability of the petitioner having a fair trial, The testimony of a nonexpert witness on but only for the purpose of ascertaining their the subject of insanity is admissible only aftcredibility.

er a showing of his association with the subject [Ed. Note.-For other cases, see Criminal of the examination and his opportunity for obLaw, Cent. Dig. $ 253; Dec. Dig. Om 135.]

servation and a statement of facts upon which

his opinion is based. 4. CRIMINAL LAW Cm137—CHANGE OF VENUE

[Ed. Note.--For other cases, see Criminal - DETERMINATION OF MOTION — REPUTA- Law, Cent. Dig. 88 1053-1055; Dec. Dig. Om

452.] The statement of the court, in passing on a motion for change of venue in a criminal case, 11. CRIMINAL LAW 741-ISSUE OF SANITY that "the witnesses are reputable citizens of AT TRIAL-PROVINCE OF JURY. Saline county, and in passing on the motion Whether the type of mental disease from

only their knowledge of conditions will which it was claimed defendant was afflicted be considered," was not a finding that the wit was such as to preclude its discovery by nonex. nesses were "credible” within Kirby's Dig. $ perts from ordinary observation was a question

BLE."

for the jury on the trial of the issue of his san-, v. State, 35 Ark. 517, 37 Am. Rep. 48. The ity at the time of his trial for the crime.

supporting affiants were called before the [Ed. Note. For other cases, see Criminal court to testify on an inquiry as to their Law, Cent. Dig. $S 1138, 1221, 1705, 1713, 1716, credibility, and they were examined and

, 1717, 1727, 1728; Dec. Dig. Om741.]

cross-examined at length. The court overAppeal from Circuit Court, Saline County ; ruled the motion for change of venue, and W. H. Evans, Judge.

in doing so the trial judge said that: Clarence Dewein was convicted of murder.

"The witnesses are reputable citizens of SaUpon affirmance of the judgment he brought line county, and in passing upon the motion and a writ of error coram nobis in the Saline in considering their testimony, only their knowlcircuit court, praying an inquiry into his edge of the conditions will be considered."

[2, 3] In a criminal case, when a petition sanity at the time of the trial. From a verdict and judgment establishing his sanity, affidavits are in the form prescribed by stat

for a change of venue and the supporting petitioner appeals. Affirmed.

ute, the only inquiry upon which the trial Chas. P. Johnson and Jones & Owens, of court may enter is as to the qualifications of Little Rock, for appellant. Wm. L. Moose, the supporting witnesses; and if it be found Atty. Gen., and John P. Streepey, Asst. Atty. that they come within the definition of the Gen., for the State.

statute, as "credible persons who are quali

fied electors, actual residents of the county MCCULLOCH, C. J. Appellant, Clarence and not related to the defendant in any Lee Dewein, was convicted in the circuit way," the court has no further discretion, court of Saline county, Ark., on April 25, and the order for a change of venue must be 1914, of the crime of murder in the first de made. The court may, however, in order gree, and on appeal to this court the judg- to pass upon the credibility of the supporting ment of conviction was affirmed. 170 S. W. witnesses, have them called before the court 582. The crime which he was adjudged to and examined. That is not the exclusive have committed consisted of the killing of method of passing upon the question, but it one L. H. Thompson, an aged man, in the is the familiar one more often pursued in town of Benton, and the proof showed that this jurisdiction. The court may inquire init was committed by appellant and one Joe to the means of knowledge of the witnesses Strong, and that they killed Thompson for and as to the probability of the petitioner the purpose of robbing him of his money. being able to obtain a fair and impartial Both of the men were convicted and sentenc-trial, but only for the purpose of reaching ed to death by electrocution. Subsequent to a conclusion upon the credibility of the supthe affirmance of the judgment by this court, porting witnesses. appellant filed in the Saline circuit court a [4, 5] It is insisted, in the first place, that petition for a writ of error coram nobis, the trial court found, as a matter of fact, praying for an inquiry into the question of that the witnesses were credible persons, and his sanity at the time of the trial, and that that his order overruling the motion for the judgment of conviction be set aside on change of venue was inconsistent with that the ground that he was insane at the time finding. The argument is based upon the of the trial and without capacity to conduct statement made by the trial judge to the efhis defense. The writ was duly issued by the fect that the witnesses were "reputable citjudge of the circuit court, and at the next izens of Saline county"; but the remainder term there was a trial of the issue before a of the sentence uttered by the court at the jury, which resulted in a verdict establishing time shows that this statement was not meant appellant's sanity at the time of his convic- as a finding that the witnesses were credible tion. An appeal has been duly prosecuted persons within the meaning of the statute, to this court.

for the judge said in the same connection [1] Appellant presented to the trial court a that there was no question raised as to the petition for a change of venue. The petition credibility of the witnesses, "except as to was in the form prescribed by statute and their knowledge as to the condition of the supported by the affidavits of two qualified minds of the inhabitants in the county.” It electors of the county, who, it is claimed, is true that the word “reputable” is laid were credible persons. The statute provides down by the lexicographers as synonymous that a petition for a change of venue in a with the word “credible,” but the two words criminal case must be supported “by the affi- are not synonymous in the fullest sense, and davits of two credible persons who are quali- cannot be treated as synonyms when confied electors, actual residents of the county sidered in interpreting our statute on the and not related to the defendant in any subject of change of venue. A person may way.” Kirby's Digest, § 2318. When the be of good repute in the community in which question of insanity of a convicted person he lives, and yet, by reason of a reckless and is to be submitted to the jury on writ of inaccurate oath, based upon insufficient error coram nobis, after conviction and sen- knowledge, fail to be a "credible" person tence, the petitioner is entitled to a change within the meaning of the statute. A crediof venue as in other criminal cases. Adler I ble person is one, who has the capacity to testify on a given subject and is worthy of ing upon a question of this kind, much is belief; and one who lacks knowledge on the left to the fair discretion and judgment of subject under investigation is not a credible the trial court, and each case must be deperson to be accepted as worthy of belief in termined by its own particular facts. Ford that particular inquiry. So we are of the v. State, 98 Ark. 139, 135 S. W. 821. We opinion that the trial judge did not mean to fail to find that there is any abuse of the declare a finding that the witnesses were court's discretion in this case, and the order credible persons within the meaning of the refusing the change of venue will not be disstatute, and that we must test the correct- turbed. ness of the court's conclusion on that issue [8] The next ground urged for reversal is by a review of the record as presented to the that the court erred in passing on the qualijudge upon the inquiry as to their credi- fications of veniremen. There were numerous bility.

exceptions in that regard, and appellant ex[6, 7] Now, the witnesses did not pretend hausted all of his challenges, so that, if it to have a general knowledge of the state of be found that incompetent jurors were taken the mind of the citizens of all portions of upon the jury, or that appellant was comthe county; nor did their knowledge extend pelled to exhaust any of his peremptory to the state of mind of the people with ref- challenges on incompetent veniremen, a reerence to the issues to be presented on the versal of the case must follow. It would trial. On the contrary, they appear to have serve no useful purpose to set out at length rested their conclusions entirely upon the the testimony of the veniremen on their voir fact that there was a widespread belief in dire, but it is sufficient to say that the only the minds of the inhabitants of the locality, question as to their competency relates to of which the witnesses were advised, that the matter of opinion on the question of the appellant was one of the parties who had guilt or innocence of appellant on the origirobbed and slain L. H. Thompson, and the nal trial. Many of the veniremen stated that supporting witnesses seem to have drawn they had formed and expressed opinion as the conclusion therefrom that those who to the guilt of appellant's participation in shared that belief were necessarily preju- the killing of Thompson, but all of them diced to the extent that appellant could not stated that they had no bias or prejudice get a fair trial upon the issue as to his against him or any opinion as to the question sanity or insanity at the time of the trial. of his sanity at the time of the trial, and Neither of the witnesses gave any evi- could give him a fair trial on that issue. dence whatever of any widespread prejudice Now, the question under investigation at against appellant, further than the inference this trial did not relate to the matter of apto be drawn from the fact of belief in the pellant's participation in the killing of established participation of the appellant in Thompson, or even to the question of his the killing of Thompson. It did not neces- sanity at the time the killing occurred, but sarily follow that, because the belief was the inquiry was to be confined solely to the general that appellant had participated in question of appellant's sanity or insanity at the killing of Thompson, there existed in the the time of the original trial. Therefore an minds of the inhabitants such prejudice as opinion formed and expressed by a venirewould prevent his obtaining a fair and im- man concerning the question of appellant's partial trial in the county. On the contrary, participation in the killing did not necessariit is fair to assume that an acceptance of ly create such a prejudice as would prevent the adjudged fact of appellant's participa- him from sitting as a juror; nor was it such tion in the killing did not create in the an opinion as rendered him incompetent as minds of intelligent people such a prejudice a juror. All of the veniremen stated that, as would prevent him obtaining a fair and notwithstanding the opinions they had formimpartial trial on the issue as to his sanity ed as to the original question of appellant's at the time of conviction. It is shown, too, participation in the crime, they were openthat there was an effort made to secure a minded as to his sanity or insanity at the pardon, and that a large number of the time of the trial, and could give him a fair prominent citizens of the county presented a and impartial trial on that issue. They protest against executive interference; but were therefore competent jurors, and the that protest, and the agitation which brought court did not err in overruling appellant's it about, was not shown to have been so challenges. general as to prevent appellant from obtain- [9] It is insisted, finally, that the testimony ing a fair and impartial trial. Upon the adduced in the trial established by overwhole we cannot say, from a perusal of the whelming preponderance, if not beyond distestimony, that the court erred in finding pute, that appellant was suffering from menthat the supporting witnesses to the petition tal disease which incapacitated him from for a change of venue were lacking in suffi- knowing the difference between right and cient knowledge and rested their conclusions wrong, and that he was insane, not only at upon erroneous premises to the extent that the time of the trial, but at the time of the they would not be deemed credible persons killing of Thompson. Appellant was about within the meaning of the statute. In pass-

curred, and the evidence adduced by his "after a showing of their association with counsel tends to establish the fact that his him, and their opportunity for observation, weak mentality resulted from hereditary and a statement of facts upon which their syphilis, and that he was mentally incapable opinions were based.” The witnesses in this from early childhood. There is a great mass case who were permitted to testify gave a of testimony along that line, consisting main statement as to the circumstances under ly of the testimony of experts who had treat-which they observed the conduct of appellant, ed appellant and examined him for the pur- and they undertook to describe the manner in pose of testifying in the case. The testimony which he conducted himself during the trial was, in other words, abundant, and it is in- and while he was on the witness stand. They sisted by counsel for appellant that it was, showed sufficient opportunity for observing in fact, undisputed, and that the testimony the appellant and forming an opinion as to adduced by the state was incompetent and his mental capacity, which entitled their teswithout any probative force. Appellant was timony to go to the jury. The weight of the born and reared in the state of Illinois, and testimony was, of course, a question for the had only been in Saline county a few months jury, but we cannot say that the testimony before the crime was committed. He was of those witnesses was entirely without proconfined in jail from the time of his arrest bative force. up to the date of trial, and the witnesses in- [11] It is argued that the type of mental troduced by the state testified with reference disease under which appellant labored was to their knowledge resulting from observa- such as to make it impossible for a nonexpert tion during the confinement in jail and dur- to discover its presence by ordinary observaing the trial of the cause, which lasted sev- tion. But we think that was all a question eral days. There were quite a number of for the jury to pass on, whether it was true

. those witnesses, however, who testified that that appellant was mentally incapacitated to they observed appellant closely during the the extent which the testimony of the extrial, and some of them while he was in jail, pert witnesses tended to show, without it beand they all expressed the opinion that he ing observable by nonexpert witnesses who was sane. For instance, the sheriff of the took careful note of appellant's actions and county testified that he had observed appel- demeanor during the progress of the trial. lant's conduct while confined in jail and There are numerous opinions of this court watched him closely during the trial and ob- which deal with the question of insanity and served his demeanor throughout the progress mental incapacity, but we find none of them of the trial, and particularly while he was which warrant us in saying that the testimoon the witness stand. He testified that ap- ny of the witnesses introduced by the state pellant appeared to be a normal man and in this case was without substantial force, took care of himself quite well on the wit- and that the judgment should be reversed ness stand. Other witnesses who were pres- as being without any evidence to support it. ent testified that appellant maintained him- We will not undertake to say .where the preself well as a witness in his own case, even ponderance of the evidence appears to us to under the searching cross-examination to be, for it is sufficient here if we find that which he was subjected. One of the state's there is evidence of a substantial nature that witnesses was a physician who had opportu- appellant was, in fact, sane at the time of the nities for observing the defendant's conduct trial which resulted in his conviction of the while in jail, but it is not sought to qualify crime of murder. him as an expert witness.

Being of the opinion that the evidence was [10] There is some conflict in the authori. sufficient to warrant the verdict, and that ties as to the competency of nonexpert wit- there was no error committed by the court in nesses on the subject of insanity, and of the the progress of the trial or in overruling the probative force of such testimony. This court motion for a change of venue, it becomes our is committed to the rule that, before the duty to affirm the judgment; and it is so opinions of nonexpert witnesses on that sub- ordered. ject can be made admissible in evidence, "the specific facts upon which the opinions are based must first be stated by the witnesses, J. R. WATKINS MEDICAL CO. V. or their testimony must show that such inti

HAYNES. (No. 27.) mate and close relations have existed be- (Supreme Court of Arkansas. May 31, 1915.) tween the party alleged to be insane and CONTRACTS C303 - PREVIOUS CONTRACT

themselves as fairly to lead to the conclu- BREACH-COMPROMISE-BONDSMEN. sion that their opinions will be justified by Where defendant contracted to furnish their opportunities for observing the party." plaintiff with medicines to be sold exclusively

by him in a given territory, and that, in view Shaeffer v. State, 61 Ark. 241, 32 S. W. 679. of the compromise of a claim by plaintiff against A further statement of the rule is found in defendant for defendant's breach of a similar the recent case of Schuman v. State, 106 Ark. contract, defendant would continue to supply 362, 153 S. W. 611, where we held that the plaintiff with medicines as though the original

contract were still in existence, and would retestimony of nonexpert witnesses' as to the quire no other or additional bondsmen thereon, sanity of the defendant was admissible only the refusal of one of the bondsmen to be bound