FROMHOLZ et al. v. McGAHEY et al. (No. 145.)

daughters, Agatha Reisen and Gertrude McGahey, and three sons, Fred, Ewald, and Bernhard Fromholz. The first three had become adults and left home before he moved

(Supreme Court of Arkansas. Oct. 4, 1915.) 1. JUDGMENT 822-CONCLUSIVENESS-VA- to Lonoke county. The last two children, LIDITY OF DEED-ISSUES.

A judgment dismissing the complaint in an action brought in Nebraska against plaintiffs herein to set aside a deed to them, on the ground that the grantor was mentally incompetent and that it had been procured by undue influence, from which an appeal to the Supreme Court of that state was dismissed, was res judicata in an action for partition against the defendants, plaintiffs in the former action, so that their cross-complaint, setting out the same issue as to incompetency, etc., was properly dismissed.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1454, 1488-1490, 1496-1500; Dec. Dig. 822.]

2. JUDGMENT 822-PLEA OF RES JUDICATA -SUFFICIENCY.

A certified copy of the judgment of the district court of another state, a certified copy of the amended and supplemental complaint and answer, and the mandate of the Supreme Court dismissing an appeal, were sufficient to sustain a plea of res judicata.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1454, 1488-1490, 1496–1500; Dec. Dig. 822.]

3. EQUITY 385-RECEPTION OF EVIDENCE. In a suit for partition, with cross-complaint to which the plaintiffs set up a plea of res judicata, it was within the discretion of the chancellor to allow a copy of the answer in the former suit to be introduced after the cause

had been submitted and taken under advisement.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 822-824, 833; Dec. Dig. 385.]

Appeal from Lonoke Chancery Court; Jno. E. Martineau, Chancellor.

Bernhard and Ewald, were living with their parents in Lonoke county at the time their father died. By his will Fromholz devised to his wife his Nebraska land, to Ewald 120 acres of land in Lonoke county, and to Bernhard and Ewald the remainder of his land in Lonoke county. He also bequeathed to his wife and to his son Ewald certain personal property. He stated in his will that he had already made advancements to his three older children. Ewald died in Lonoke county in 1895. Prior to his death he conveyed his interest in the Lonoke county land to his brother Bernhard.

The widow lived with her son Bernhard in Lonoke county until 1901, when she went to another state to reside with her daughter Gertrude. In 1902 she conveyed by deed to her daughter Gertrude H. McGahey the lands in Nebraska which her husband had devised to her. In 1903 she executed another deed conveying the land to her daughter Gertrude. In the fall of 1904 a guardian was appointed for Marie Fromholz as an insane person, and suit was at once brought by him in the district court of Platte county, Neb., against Gertrude H. McGahey and Agatha Reisen. The object of the suit was to set aside the two deeds executed by Marie Fromholz to Gertrude H. McGahey conveying her 200 acres of land in Platte county, Neb. Marie Fromholz died in 1905. Fred and Bernhard Fromholz were substituted as

plaintiffs. The allegations of the complaint were that Marie Fromholz, at the time she executed the deeds to her daughter Gertrude

Partition by Gertrude H. McGahey and others against Bernhard Fromholz and another, with cross-complaint by defendants. Decree for plaintiffs, dismissing the cross-H. McGahey, was mentally incompetent to complaint, and defendants appeal. Affirmed. Oscar E. Williams, of Lonoke, for appellants. Jones & Owens, of Little Rock, and W. J. Otjen, of Enid, Okl., for appellees.

HART, J. In 1909 Gertrude H. McGahey and Agatha Reisen instituted this action in the chancery court against Fred and Bernhard Fromholz, asking for a partition for certain lands in Lonoke county, which they claim that they with the defendants own as tenants in common. The defendants filed a cross-complaint against the plaintiffs, in which they ask for recovery of part of the proceeds of land in Nebraska which was sold by Gertrude H. McGahey. The facts are as follows:

transact business, and that the execution of the deeds was procured by the undue influence of her said daughter. An answer was filed by the defendants, denying the allegation of the plaintiffs. A great deal of testimony was taken by both sides. The court found for the defendants, and the complaint of the plaintiffs was dismissed, at their cost. The decree recites that the cause came on for hearing on the 10th day of February, 1908, upon the amended and supplemental petition of the plaintiffs, upon answer of the defendants, and upon the evidence. An appeal was taken to the Supreme Court of the state of Nebraska by the plaintiffs, and the appeal was dismissed by the court.

The object of the action instituted by the In the year 1884 Fred W. Fromholz mov- plaintiffs against the defendants in Lonoke ed from Platte county, Neb., to Lonoke coun- chancery court in 1909 was for the partition ty, Ark., and died there in June, 1891. Prior of the lands in Lonoke county; the plainto his death he had acquired about 500 acres tiffs, Gertrude H. McGahey and Agatha of land in Lonoke county, and also owned 200 Reisen, claiming to own an interest therein acres of land in Nebraska. He left surviv- as heirs of their deceased brother Ewald. ing him his wife, Marie Fromholz, two As above stated, the defendants Bernhard

It follows that the decree will be affirmed,

and Fred Fromholz filed a cross-complaint | to allow a certified copy of the answer in the against the plaintiffs, and asked for a re- Nebraska suit to be introduced, and to set covery of a part of the proceeds of the Ne- aside the submission of the cause for that braska lands, which had been sold by Ger- purpose. trude H. McGahey. They sought to set aside the deeds from Marie Fromholz to Gertrude H. McGahey on account of the mental incompetency of Marie Fromholz and the undue infiuence practiced upon her by Gertrude H. McGahey at the time the deeds were executed. An answer was filed to the cross-complaint, in which Gertrude H. McGahey and Agatha Reisen denied the allegation of the cross-complaint and also entered a plea of res adjudicata. The court sustained the plea of res adjudicata, and dismissed the crosscomplaint for want of equity. The crosscomplainants have duly prosecuted an appeal to this court.

[1, 2] The decree of the chancery court was correct. The issue to be determined in the Nebraska suit was whether or not Marie Fromholz was mentally incompetent at the time she executed the deeds to the Nebraska lands to her daughter Gertrude H. McGahey, and whether or not said deeds were procured by undue influence exerted upon her by her said daughter. The same persons instituting that action filed a cross-complaint in the present suit, and the issues in the two suits were identically the same. To maintain the plea of res adjudicata, not only was a certified copy of the judgment of the Nebraska district court introduced, but also a certified copy of the amended and supplemental complaint and answer was introduced. The plaintiffs prosecuted an appeal to the Supreme Court of Nebraska and the court dismissed their appeal. The mandate of the Supreme Court was also introduced to sustain the plea of res adjudicata in the present suit. So it will be seen that the complete record of the Nebraska suit was introduced to sustain the plea of res adjudicata in the present action; that is to say, a certified copy of the judgment in the Nebraska suit, together with all the pleadings on which the judgment was founded, were produced at the hearing in the present suit. It will be noted that the judgment in the Nebraska suit recited that the cause was heard upon the amended and supplemental complaint, upon the answer, and upon the evidence. This was sufficient to sustain the plea of res adjudicata. McCarthy v. Troll, 90 Ark. 199, 118 S. W. 416, and cases cited; Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477.

[3] After the cause had been submitted to the chancellor and taken under advisement by him, the defendants to the cross-complaint asked that they be permitted to introduce a certified copy of the answer in the Nebraska suit, which was done. The action of the chancellor in this regard is assigned as error calling for a reversal of the decree. It was within the discretion of the chancellor

JOHNSON v. STATE. (No. 142.) (Supreme Court of Arkansas. Oct. 4, 1915.) 1. HOMICIDE 228-EVIDENCE-CORPUS DE

LICTI.

Evidence that deceased, after he had retired for the night, was called from his bed and requested to go about 100 yards from his house, where several persons were waiting to see him, and that about two hours later he was found dead; that his left arm was stabbed, the muscle on it being cut and the arm broken above the elbow, and that there were other wounds on the left arm and side, and the body was badly cut and covered with blood, warranted the jury in finding that there was an unlawful killing.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. 228.] 2. HOMICIDE

FOR JURY.

268-EVIDENCE-QUESTIONS

Under Kirby's Dig. § 1765, providing that, circumstances of mitigation that justify or exa killing being proved, the burden of proving cuse the homicide shall devolve on accused unless by the prosecution's proof it is sufficiently manslaughter, or that accused was justified or manifest that the offense only amounted to excused in committing the homicide, where an unlawful killing was proved, and defendant admitted that he was the one who "knifed" deceased, the court properly refused to direct a verdict of not guilty; there being no proof on the part of the state that the offense only amounted to manslaughter, or that accused was justified or excused in committing it.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. 268.] 3. CONSPIRACY

48-HOMICIDE-EVIDENCE

6. HOMICIDE 144-BURDEN OF PROOF-MIT- | strong had been making some derogatory reIGATING CIRCUMSTANCES.

Notwithstanding Kirby's Dig. § 1765, the marks about his (Hopson's) wife. Hopson burden on the whole case on a trial for homicide had married the appellant's sister. Hopson, is on the state, and when evidence is introduc- in company with the appellant, Bud Miller, ed either on the part of the state or defend- and Coot Childers, on the night of the killant which tends to justify or excuse defendant's act, if such evidence, in connection with other ing, started to the home of Armstrong for evidence in the case, raises a reasonable doubt the purpose of seeing him in regard to what of defendant's guilt, the jury must acquit. he was reported to have said concerning [Ed. Note. For other cases, see Homicide, Mrs. Hopson. When they got within 100 Cent. Dig. § 261; Dec. Dig. 144.] yards of the house all stopped, except Car7. HOMICIDE 300-INSTRUCTIONS - SELF- roll Hopson. He went on up to Armstrong's DEFENSE. house. He called to Armstrong, stating that he wanted to see him, whereupon Armstrong arose and dressed and went with Hopson to where others of the party were. about 9 o'clock at night. About two hours later Armstrong was found dead in the road near his home. His body was found lying near a thicket in a dense part of the woods. His left arm was stabbed, all the muscle on same being cut, and the arm was broken above the elbow. It was a smooth break. There was another wound also on the left arm, and a wound on the left side, and another wound on the ninth rib. The body was badly cut, and was covered with blood.

On a trial for homicide the court charged, in the language of Kirby's Dig. § 1798, that in ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that to save his own life, prevent great bodily injury, or prevent the commission of a felony the killing of the other party was necessary, and that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest. The court further charged, at defendant's request, that if, at the time defendant stabbed deceased, he had reasonable cause to apprehend great bodily injury at the hands of deceased, and if he had reasonable grounds to believe, and did believe, it necessary for him to use a knife as he did, and if he acted without previous fault or carelessness, the killing was justifiable, that it was not necessary that the danger should have been actual or real, but that it was sufficient if the defendant had reasonable cause to believe that he was in danger of death or great bodily harm, and that, if he acted under such belief, he would be justifiable. Held, that these instructions were not in conflict, but, when taken together, correctly declared the law, as the first instruction told the jury that it must appear that the danger was urgent and pressing, etc., without explaining to whom this must appear, while the second instruction explained that this must ap

pear to defendant.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. 300.]

8. CRIMINAL LAW 1043-APPEAL-RESERVATION OF Grounds of REVIEW.

There was testimony to the effect that on the day after the killing appellant said that he went over to have a talk with Armstrong about remarks that Armstrong had been making about his (appellant's) people. He said: "I did not hit him but once." Again he said: "I thought that I hit him only once or twice." Appellant made further statements to the effect that Armstrong had "knifed" him, and that he had "knifed" Armstrong.

There was testimony on behalf of appellant tending to prove that he and Armstrong were good friends, and that they were neighbors; that Carroll Hopson, appellant's brother-in-law, told appellant on the night of the killing that he was going to see Armstrong to get him to quit talking about his wife; that appellant told Hopson that he would go with him, and did go; that he and Hopson and Miller and Childers went up near Armstrong's house, and when Carroll Hopson and Armstrong returned to where appellant and the others were waiting Hopson accused Armstrong of making statements about his wife. Armstrong denied having made the statements attributed to [Ed. Note. For other cases, see Criminal him, and there was some controversy over Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. the matter, in which the appellant partici1043.]

Where an instruction that, if the jury believed any witness had willfully sworn falsely to any material fact, they might disregard his whole testimony or believe what they regarded to be true, and disbelieve what they regarded to be false, was part of an instruction pointing out at some length the province and duty of the jury in weighing the evidence and passing upon the credibility of the witnesses, and which announced several propositions of law which were undoubtedly correct, defendant should have specifically called the attention of the trial judge to the portion of the instruction in question, and, not having done so, there was no error, as the court's language was probably the result of inadvertence or oversight.

Appeal from Circuit Court, Cleveland County; Turner Butler, Judge.

Kenneth Johnson was convicted of murder in the second degree, and he appeals. Affirmed.

On the night of April 22, 1914, Frank Armstrong was killed by appellant in Cleveland county, Ark. Armstrong, after a hard day's work, being very tired, had retired early. Carroll Hopson had heard that Arm

pated, and during the conversation appellant said, "Since you admit talking about my people, I want you to quit tagging after my children when you are passing my house, and I don't want you to come on my place any more." To this Armstrong replied, "You God damned little devil, you must think I am afraid of you," and started at appellant, whereupon the fight ensued, and shortly afterwards Armstrong said, "Take him off, boys; he has cut me to pieces." Appellant

then turned and walked away; said he was § 1765; Brock v. State, 101 Ark. 147–154, hurt and was going home. Appellant sus- 141 S. W. 756. tained a severe knife wound in his shoulder, which was about three inches in width under the surface, and as a result of which appellant was confined to his bed several days. Appellant stated that he did not go over there with murder in his heart or to abuse Armstrong, and was going to let the matter pass if Armstrong would quit talking about his sister. He thought because they were members of the same Woodmen lodge he could get him to quit talking the way he had been doing. An open knife was found sticking in the ground near Armstrong's head. The knife was a large-sized barlow.

[3, 4] II. Carroll Hopson, a witness on behalf of appellant, was asked on cross-examination, this question, "Do you know a negro named John Mosely?" and answered, "Yes." He was then asked, "What did you want with his pistol the day before the killing?" and answered, "I didn't have it." He further testified, in answer to questions, that Mosely did not get any pistol from him the day after the killing; that he did not have Mosely's pistol a day or two before the killing, nor any time that year. John Mosely testified, in rebuttal, that on the night that Armstrong was killed Carroll Hopson had his (Mosely's) pistol; that he brought it home the next morning. The appellant moved the court to exclude the testimony of John Mosely. The court overruled the motion. The court did not err in this ruling. The testimony of Mosely was competent as original evidence. It tended to establish the fact that on the night of the killing Hopson was armed with a pistol. Now, the jury were warranted in inferring that appellant and Hopson, on the night of the killing, had entered into a conspiracy to see Armstrong, and, in case he did not make satisfactory explanation in regard to the alleged defamatory remarks attributed to him concerning the wife of Carroll Hopson, to do him personal violence.

Hopson testified on cross-examination:

"I intended to go to see deceased, and if he made it right about talking about my wife I intended to drop it, and if he had not made it right I had not made up my mind as to what I was going to do."

Hopson further testified:

"Deceased had been doing some talking, and we wanted to see him about it." And again:

"I knew the fight was about what deceased had said about my wife."

The appellant himself testified:

brought his wife and told me that he was going "Hopson came to my house that night and over to see deceased to get him to quit talking about his wife. I told him that I would go with him."

WOOD, J. (after stating the facts as above). [1, 2] I. The appellant contends that the court erred in not instructing the jury, at the close of the evidence on behalf of the state, to return a verdict of not guilty. The court did not err in this ruling. The testimony on behalf of the state tended to show that Armstrong was killed on the night of April 22, 1914, and that he was killed by a knife in the hands of some third party. The identity of the appellant was established by his admission to the effect that on that night he had cut Armstrong with a knife. The circumstances adduced on the part of the state tending to show that Armstrong, after he had retired for the Although witness Hopson and the appelnight, was called from his bed and requested lant, in their testimony, say that on the night to go to the place where he was killed, and of the killing they were on good terms with the manner in which he was killed, as indi- deceased, and disclaim any ill will towards cated by the numerous wounds he had re- him, and deny any intention of doing him any ceived, were sufficient of themselves to war- violence on the occasion, the above testirant the jury in finding that there was an mony, together with other facts and circumunlawful killing. The corpus delicti being stances in evidence, were sufficient to warthus established, and appellant having ad- rant the jury in finding otherwise, and that mitted that he was the one who "knifed" their visit to the home of Armstrong on that Armstrong, it then devolved upon him to occasion was not a friendly one. Therefore prove circumstances of mitigation that justi- the court was warranted in admitting any fied or excused the homicide, there being no evidence to prove that on the night of the proof on the part of the state which made killing Hopson had a pistol. The testimony it sufficiently manifest that the offense com- was not concerning a collateral issue, but mitted only amounted to manslaughter, or was relevant to the issue being tried, and that the accused was justified or excused in therefore competent either on direct or on

[5, 6] III. The court, at the request of the 1 to show that the defendant is guilty of every state, gave instruction No. 5, as follows: