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"The language used was probably the result of inadvertence or oversight which did no harm."

killing was justifiable; that it was not nec- | defects in it. As was said in the last of essary that the danger to the appellant the above, cases: should have been actual or real; 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, and not in a spirit of malice or revenge, he would be justifiable.

The instructions, taken together, correctly declared the law. Instruction No. 12 was a copy of the statute (section 1798 of Kirby's Digest), and announced a rule of law applicable in cases where self-defense is interposed. It told the jury, in general terms, that it must appear that the danger was so urgent and pressing, etc. But the instruction does not explain to whom it must ap

pear.

Instruction No. 3 was a correct explanation of instruction No. 12 as to whom the danger must appear to be urgent and pressing, telling the jury, in effect, that it must so appear to the defendant.

There is no conflict between these instructions, but, on the contrary, when they are considered together, as they must be, they correctly declare the law in conformity with the decisions of this court in Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20, and Magness v. State, 67 Ark. 594, 50 S. W. 554, 59 S. W. 529.

[8] V. Appellant complains because in instruction No. 14 the court told the jury, in part:

"If you believe any witness has willfully sworn falsely to any material fact in this case, you may disregard his whole testimony or believe what you regard to be true and disbelieve what you regard to be false."

Instructions containing similar language were criticized in the cases of Frazier v. State, 56 Ark. 242, 19 S. W. 838, and Taylor v. State, 82 Ark. 540, 102 S. W. 367. But, while condemning instructions couched in this language, the court in neither of the above cases held that the giving of such an instruction would constitute reversible er

ror.

In the case of Frazier v. State, notwithstanding the instruction, the court announced that:

As there was "absolutely no proof of venue, the judgment must be reversed, and the cause remanded."

And in Taylor v. State, after criticizing the instruction as not being an accurate statement of the law, says:

"But, while this instruction is not strictly correct, there is no objection to it, and the language was probably the result of inadvertence or oversight which did no harm."

In the instant case no specific objection was made to the instruction. The court's attention was not called to any particular

In the recent case of Burgess v. State, 108 Ark. 508, 158 S. W. 774, appellant's counsel contended that that case should be reversed because an instruction was given in that case which, in effect, told the jury:

"That if any part of the statement of the witness is willfully false, they may disregard it be true." all, even though they believe portions of it to

Answering this contention of counsel, the court said:

"The instruction does not authorize the jury to disregard any part of it believed to be true, but, if it is open to that construction, that fact should have been called to the attention of the court."

So we say here. The instruction was one concerning the province of the jury in weighing the evidence and in passing upon the credibility of the witnesses, pointing out somewhat at length the duty of the jury in that regard. While the instruction was not aptly framed, it announced several propositions of law which were undoubtedly correct and which have often been approved by the decisions of this court; and the particular proposition which appellant now claims was erroneous and prejudicial should therefore have been specifically called to the attention of the trial judge, and if this had been done there is no doubt but what the court would have framed the instruction so as to conform strictly to the rulings of this court in former decisions criticizing the particular verbiage to which objection is now here for the first time offered.

VI. Appellant, in his amended motion for a new trial, challenges the qualifications of two of the jurors, alleging that they had formed and expressed an opinion as to the guilt or innocence of the accused, and that they were biased and prejudiced against him, which they denied on their voir dire, and alleging that appellant had no opportunity to discover otherwise until after the verdict was rendered.

Appellant adduced affidavits tending to support the allegations of the motion, and testimony of the jurors was offered in rebuttal. We have carefully examined this evidence as set forth in the record, and cannot say that the court erred in holding that the jurors were qualified. It presented a question of fact for the trial court, and we do not feel authorized to disturb its finding. On this point the case is ruled by Decker v. State, 85 Ark. 64-72, 107 S. W. 182.

The record presents no prejudicial error, and the judgment is therefore affirmed.

(No. 140.)

Harper was arrested about a week after the burglary was committed, and about that time appellant Oliver left Tinsman and went to

by the sheriff of that county and turned over to the sheriff of Calhoun county.

OLIVER v. STATE. (Supreme Court of Arkansas. Oct. 4, 1915.) 1. CRIMINAL LAW 404-EVIDENCE-IDEN- De Queen, Ark., where later he was arrested TIFICATION OF EXHIBITS STOLEN PROPERTY. Where, in a prosecution for burglary, the sheriff was permitted to testify that the sheriff of another county, in which defendant was arrested, told him he had found a pocketknife on the defendant and that he would send it to him, that defendant asked the witness if he had the knife, that the witness did receive a knife from the other sheriff, and that the knife in evidence was the one, his testimony does not identify the knife so as to warrant its admission in evidence in corroboration of a witness who stated that knives were stolen in the burglary.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. 404.]

2. CRIMINAL LAW TIONARY ACTION.

1148-REVIEW-DISCRE

Where defendant moves, under Kirby's Dig. § 2350, to discharge the sheriff and the special venire summoned by him for his prejudice and to designate some other person to summon a new venire, it is not an abuse of the discretion of the court to refuse the motion in the absence of any proof of prejudice.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3050-3052; Dec. Dig. 1148.]

Appeal from Circuit Court, Calhoun County; Chas. W. Smith, Judge.

Jamie Oliver was convicted of burglary, and he appeals. Reversed and remanded.

Lamar Smead and H. S. Powell, both of Camden, for appellant. Wallace Davis, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

MCCULLOCH, C. J. Appellant was convicted under an indictment charging him with the crime of burglary by entering the storehouse of one D. R. Speer in the town of Tinsman, in Calhoun county. The evidence tends to show that the crime was committed jointly by appellant and Bruce Harper and Albert Earnest. Harper confessed and entered a plea of guilty, and the state relies upon his testimony mainly for the conviction of the other two parties accused of complicity in the crime. Earnest was convicted, and on his appeal we reversed the judgment on the ground that the testimony of the accomplice, Harper, was not corroborated by other testimony.

The state undertook to corroborate Harper, the accomplice, in several particulars. One way in which corroboration was sought was to prove that appellant had in his possession a number of pocketknives shortly after the burglary was committed. The deputy sheriff who went to De Queen after appellant, when he was in the hands of the sheriff of that county, exhibited to the jury a pocketknife which he stated was sent to him through the mail by the sheriff of Sevier county. He testified further that, while he was at De Queen, the sheriff of Sevier county told him in appellant's presence that he had taken a pocketknife from appellant's person at the time of making his arrest, and would send it to him later through the mail. He also testified that appellant had since asked him whether the sheriff of Sevier county had sent the knife.

[1] All of this testimony was admitted in evidence over appellant's objection, and the ruling of the court in admitting it is assigned

as error. We are of the opinion that the court erred in admitting this testimony, and that the error was prejudicial. The error consisted of the admission of the knife in evidence before the jury, as it was not identified by any witness as the one which was taken from the person of the defendant when he was arrested. It is true that the officer testified that the sheriff of Sevier county told him in appellant's presence that he had taken a knife from appellant's person and would send it, but that was not an identification of the knife. The exhibition of this knife to the jury as the one which was taken from appellant's person might have had some weight with the jury as a circumstance corroborating the accomplice, Harper, when he stated that he, together with Earnest and appellant, had stolen a lot of pocketknives from the store of Speer. It does not appear that there was any attempt in any other way to identify this knife as one of those taken when the store was burglarized; but it may have been a new and unused knife, so that the jury might have improperly inferred from it that it was a knife that was stolen when the house was burglarized, and that the fact that it was found on appellant's person was a circumstance sufficient to corroborate the testimony of the accomplice. Therefore we are of the opinion that the introduction of the testimony was not only erroneous, but it was prejudicial and calls for a reversal of the judgment.

The indictment charges that appellant and the other persons accused entered the storehouse of Speer for the purpose of committing the crime of grand larceny, and that they did steal and carry away three coats, six pairs of trousers, and certain bolts of calico. The testimony adduced by the state also tends to show that, in addition to the articles mentioned in the indictment, some men's underwear and a lot of pocketknives were also It is also insisted that the verdict is not stolen. The men's clothing was found by the supported by sufficient evidence in the corofficers secreted in a hollow log, upon in- roboration of the testimony of the accomformation given to the officers by Harper. plice; but we have concluded not to pass

Corporations, Cent. Dig. §§ 711, 713-715; Dec.
Dig. 265.]

[Ed. Note.-For other cases, see Municipal

3. MUNICIPAL
"STREET."

CORPORATIONS

mm 269

upon that question, inasmuch as the testi- | imposed by statutes, and those necessarily immony may be different on another trial of plied from those named. the cause. The state relies upon appellant's possession of several pocketknives shortly after the commission of the burglary, and also the circumstances under which he left Tinsman about the time that Harper was arrested, as circumstances sufficient to corroborate. But, as before stated, the testimony may be to some extent different on the next trial of the case, and we will not undertake to determine whether those circumstances, as they now appear in the record, are sufficient to corroborate the accomplice.

[2] It is also insisted that the court erred in overruling appellant's motion to discharge the veniremen specially summoned as jurors, and also to discharge the sheriff of the county and to designate some other person to summon the jury for the trial of the case. It was alleged in the motion that the sheriff had summoned the special venire and that he was prejudiced against appellant and was giving assistance to the prosecution in the effort to procure a conviction in the

cause.

The statute provides:

"The court may, for sufficient cause, designate some other officer or person than the sheriff to summon jurors, the officer or person designated being first duly sworn in open court to discharge the duty faithfully and impartially." Kirby's Digest, 2350.

A trial court is clothed with discretion in such matter, and unless an abuse is shown in the exercise of such discretion this court will not disturb the action of the trial court.

Holt v. State, 91 Ark. 576, 121 S. W. 1072. The allegations of the motion amount only to a statement of the conclusion that the sheriff is prejudiced against appellant, and no proof was offered to substantiate the charge. cannot say, therefore, that there was abuse of discretion by the court.

We

any

For the error indicated, the judgment is reversed, and the cause remanded for a trial.

EICKHOFF v. CITY OF ARGENTA et al. (No. 143.)

(Supreme Court of Arkansas. Oct. 4, 1915.) 1. MUNICIPAL CORPORATIONS 385-STREETS

-CHANGING GRADE-LIABILITY.

Under the generic term "street" is included all parts of the way, roadway, gutters, and sidewalks.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 718-724, 733; Dec. Dig. 269.

For other definitions, see Words and Phrases,
First and Second Series, Street.]
4. MUNICIPAL CORPORATIONS 404 IM-
PROVEMENT DISTRICTS-CHANGE OF STREET
GRADE-COMPLAINT.

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In an action against an improvement district of a street for damages to plaintiff's property by changing the grade of a street, a complaint which fails to allege that the district was created for the purpose of grading the street in front of plaintiff's buildings is fatally defective.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 989-991, 993-999; Dec. Dig. 404.]

5. MUNICIPAL CORPORATIONS

400-STREETS

-CHANGE OF GRADE-LIABILITY.

Under Kirby's Dig. § 5672, requiring that street improvements shall be made with reference to the grades of the street as fixed by ordinances of the city, liability for damages to property occasioned by grading the street according to the established grade as altered is upon the city, and not upon the improvement district. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 962-964; Dec. Dig. 400.]

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6. MUNICIPAL CORPORATIONS 747 PROVEMENT DISTRICT-STREETS-GRADING— LIABILITY.

quasi corporation, created to carry out the duty The improvement district, being a public of the city in regard to improving streets, is not liable for damages resulting from changing the grade of a street, even if its agents and servants do the work contrary to the grade as fixed by the city ordinance; such acts being ultra vires and void, or else acts of negligence on the part of its agents for which the district is not liable.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1570-1577; Dec. Dig. 747.]

Appeal from Circuit Court, Pulaski County; W. G. Hendricks, Judge.

Action by George Eickhoff against the City of Argenta and Street Improvement District No. 11 of Argenta. From a judgment on demurrer, dismissing the suit as to defendant district, plaintiff appeals. Affirmed.

While cities and towns have power to fix The appellant sued the city of Argenta and change the grades of streets under the express provisions of Kirby's Dig. 88 5456, 5475, and street improvement district No. 11 of 5495, they will be liable for damages caused by that city, which we will hereafter designate a change in the grade of streets to abutting as the district, alleging that he was the ownowners, who have made improvements with ref-er of certain lots in the city of Argenta on erence to the established grade. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 925-928; Dec. Dig. mm 385.1

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which there were six store buildings, fronting on East Washington avenue for a distance of 140 feet. The lots are particularly 2. MUNICIPAL CORPORATIONS 265 IM- described in the complaint. It was alleged PROVEMENT DISTRICTS - POWERS AND LIA- that the buildings were erected with reference Improvement districts in cities and towns to the then street grade as established by are quasi governmental agencies, having no the city; that the city was a city of the first powers or liabilities, except those conferred or class, and that the district was a corporation

BILITIES.

gutters, and the sidewalks." Elliott on Roads and Streets, p. 17; Little Rock v. Fitzgerald, 59 Ark. 494, 28 S. W. 32, 28 L. R. A. 496.

[4] Now, the complaint, while alleging that the improvement district was "organized and existing under and by virtue of the state of Arkansas," nowhere alleges that it was created for the purpose of grading Washington avenue in front of appellant's buildings. In this particular the complaint is fatally defective, and fails to state a cause of action against the district, even if the district were liable in damages to abutting owners by reason of the grading of the street.

duly organized under the laws of the state | cluded all parts of the way, the roadway, the of Arkansas. It was alleged that along the front of the property described there was a sidewalk space, on which was laid a concrete pavement, with a concrete curb, which were in good condition, and which the plaintiff had laid at a great expense; that the pavement and curb had been laid on the grade established by law; that the defendants unlawfully broke the concrete pavement and curb into pieces and hauled it away; that they then lowered the earth along the sidewalk to a depth of two feet, leaving the front entrances of the stores 18 inches or 2 feet above the sidewalk; that the unlawful acts of the defendants, in the manner set forth, had cut off the necessary ingress and egress to and from the store buildings, and had thus greatly lessened the usable value of the same, to the damage of plaintiff in the sum of $14,750, in addition to the value of the concrete walk and curb, which defendants destroyed, of the value of $224, for all of which the plaintiff prayed judgment. The district demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the complaint as to the district. The plaintiff duly prosecutes this appeal.

Vaughan & Akers, of Little Rock, for appellant. Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, for appellees.

WOOD, J. (after stating the facts as above). [1] Cities and towns have the power to fix and change the grades of their streets, These powers are expressly conferred upon them for the public good. Sections 5456, 5475, 5495, Kirby's Dig. Under the statute and our decisions, where abutting owners have made improvements with reference to the established grade of the streets, thereafter if the grade is changed to the damage of abutting owners, the city is liable for such damage. Kirby's Digest, §§ 5495-5497; Fayetteville v. Stone, 104 Ark. 136, 148 S. W. 524; Dickerson v. Okolona, 98 Ark. 206, 135 S. W. 863, 36 L. R. A. (N. S.) 1194; Jonesboro v. Pribble, 112 Ark. 554, 166 S. W. 576.

[2] Improvement districts in cities and towns are quasi are quasi governmental agencies. They have no powers, except those expressly conferred by statute, and those necessarily implied from the powers expressly given. They are under such duties, and are subject to such liabilities, only as are imposed by statute. Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380, 127 S. W. 469, 21 Ann. Cas: 957.

[5, 6] But, as already observed, the district itself could not be liable for damages that accrued in grading a street according to the established grade, because the statute requires that:

"All such improvements shall be made with reference to the grades of streets and alleys as fixed, or may be fixed, by ordinances of said city.' Section 5672, Kirby's Digest.

99

The liability, therefore, for the taking or damage to private property for the public use, to wit, the grading or changing the grade of a street, is on the city, not on the improvement district. The improvement district itself would not be liable for damages to abutting owners for the grading of streets, even if their officers, servants, and agents violated the law by doing the work contrary to the grade as fixed by the city ordinances. For all such acts would be ultra vires, and torts pure and simple, or else acts of negligence on the part of the officers, servants, and agents, for which these public quasi corporations are not liable. Improvement Dist. v. Moreland, supra. See, also, Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. 1057, and Jones v. Sewer Imp. Dist., 177 S. W. 888.

Appellant relies upon McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910, 47 L. R. A. (N. S.) 137. That was a suit against the city of Hope for damages to certain lands beyond the city limits, caused by the discharge of the sewage of the city into a stream running through the lands. The court held that the city had the power to turn the sewage into the stream, and that its act in so doing was tantamount to a taking or damaging of the property for a public use, and that the damages should be assessed as if the act of the city were a proceeding to acquire the property under the power of eminent domain. See, also, City of El Dorado et al. v. Scruggs, 113 Ark. 239, 168 S. W. 846. These cases are not applicable here.

It follows that the judgment is correct,

[3] "Under the generic term 'street' is in- and must be affirmed.

"One mule, $75, one mule, $30, one mule, St. LOUIS, I. M. & S. RY. CO. v. NUNLEY. $25, one mare, $25 and one pony, $15."

(No. 159.) (Supreme Court of Arkansas. Oct. 11, 1915.) 1. CARRIERS 218-CARRIAGE OF LIVE STOCK -NOTICE.

A provision in the contract, requiring a shipper of stock to give written notice of injuries to the nearest station agent, or other agent of the carrier, may be waived by the company. [Ed. Note.-For other cases, Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. 218.]

2. CARRIERS 228 - CARRIAGE OF LIVE STOCK-ANIMALS-EVIDENCE.

In an action for injuries to live stock, evidence held to warrant a finding that written notice of the injury was waived.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. 228.]

3. CARRIERS 228- CARRIAGE OF LIVE STOCK-ACTIONS-EVIDENCE.

In an action for injuries to a shipment of live stock, evidence of injuries held sufficient to support verdict.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. 228.] 4. CARRIERS 230 CARRIAGE OF LIVE STOCK-ACTIONS-BURDEN OF PROOF. Where an action for injuries to a shipment of live stock was tried on the theory that the injuries occurred after the shipment reached the point of destination and the shipper left the car, a charge that the burden of proving all the facts of the injury was upon the shipper was properly refused; this not being a case of where the shipper was bound to have complete knowledge.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. 230.]

Nunley testified also that several other head of stock were injured for which he put in no claim for damages. He testified that as soon as he discovered that the animals had been injured he went to the depot at Argenta and notified the man in charge there that his stock had been injured, and that the person in charge directed him to a building in Little Rock where he should go to put in his claim for damages; that he went over to Little Rock and employed an attorney, and that he and the attorney then went to the building where he had been directed by the station agent; that a young man in charge of the office to which he had been directed to go entered into negotiations with him looking towards a settlement of his damages; that the young man went over to Argenta with him and his attorney to examine the injured stock; that the young man told him the company would pay him damages for the injury to them; that subsequently he returned to the same office and was told by another person there that the dead mule had not been injured by the railroad, but had died of colic, and that the other stock had not been injured. A witness testified in behalf of the plaintiff that he saw the stock before they were shipped, and that they were in good condition at the time of shipment, and that the plaintiff brought back several head of the stock with him and that they appeared to be badly injured. Another wit

Appeal from Circuit Court, Pulaski Coun-ness who lived in Argenta testified that he ty; G. W. Hendricks, Judge.

Action by John Nunley against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John Nunley sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages to a car of live stock shipped over defendant's line of railroad. The facts are as follows: On January 14, 1914, John Nunley shipped a car load of horses and mules from Russellville, Ark., to Argenta, Ark. He accompanied the shipment and rode in the caboose. The stock were in good condition when they left Russellville, and arrived at Argenta some time after midnight on the day of shipment. John Nunley testified that when the train arrived at Argenta the car load of live stock was switched onto a side track; that he and the conductor went forward and examined the live stock, and found that they were in good condition; that the next morning he found that the car had been moved about a mile to where the stockyards were situated; that the stock had been unloaded in the yards; and that one of the mules was dead and others injured. He put in a claim for damages for the mule killed for $100 and for the others injured, as follows:

saw the stock after they were unloaded, and stated that several of them were badly injured. He described specifically some of the injured stock, and placed the damage at as large or a greater amount than that testified to by the plaintiff. Another witness testified that he had been in the stock business and had shipped a great many head of stock, and and that he examined the horses and mules in question after they had been unloaded from the car, and that quite a number of them had been injured. He said that he did not think from the appearance of the injuries that they were received by the animals fighting, and that they did not appear to be injuries which resulted from. their kicking or biting each other. On the part of the railroad company the conductor in charge of the train testified that there were not any unusual jars or jolts on the way, and said that he did not examine the stock after the train arrived at Argenta. The agent whose duty it was to adjust and settle claims of this sort admitted that the plaintiff came to him for settlement of the claim, and said that he stated to him that one of the mules had died of colic, and that none of the other mules had been injured. He testified that he was the only person in his office authorized to adjust and settle claims of this sort, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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