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Rose, Hemingway, Cantrell, Loughborough that 18 jurors were examined and declared & Miles, of Little Rock, Trimble & Williams, qualified, Mays among the number, and of Lonoke, and George H. Fearons, of New from this list the names of three jurors each York City, for appellant. Geo. M. Chapline, were struck by the state and the defendant. of Lonoke, for appellee.

On his voir dire the juror stated:

Q. You say you have heard of the case? HART, J. A. B. Brooks sued the Western A. I heard of the case here in the justice of Onion Telegraph Company to recover dam- witnesses? A. No, sir; those to whom I talk

the peace court. Q. Did you hear any of the ages for mental anguish on account of the ed had heard the witnesses, and they detailed the alleged negligence of the telegraph company facts in the case to me as they heard it. Q. in failing to deliver a message to him, notify- They detailed the facts to you? A. Yes, sir. ing him of his brother's death. The plain the guilt or innocence of the defendant?

Q. From that did you form an opinion as to tiff resided at Kerr, in Lonoke county, Ark., Yes, sir; I suppose I did. The Court: If and the message was addressed to him there you were selected as a juror in this case, could and was sent from Kansas City, Mo. The you and would you go into the jury box and jury returned a verdict in favor of the plain- this hearsay, and efface from your mind ang

lay aside those things you might have heard, tiff, and the telegraph company has appealed. opinion you might have formed from what you

There was sufficient evidence to show neg. have heard, and try this defendant according ligence on the part of the telegraph company. There from the stand, and the law as given you

to the evidence as detailed to you by the witness [1] The telegraph company assigns as er- by the court, disregarding all you might have ror the action of the court in refusing cer- heard or opinions you may have formed? A. tain instructions asked by it, but we think Yes, sir; I would try him according to the law the matters contained in these refused in and the evidence. The Court. The juror is structions were embraced in other instruc

qualified.”

The examination of the juror clearly shows tions given by the court. It is well settled that the court is not required to repeat in that he had no fixed opinion of the guilt

or innocence of the defendant, notwithstandstructions. [2] In the case before us the defendant ing he said he had talked with some persons

who had heard the witnesses testify in the claimed in the pleadings only the right to en

trial. force the limitation of its liability down to

He was not certain that he had an the sum of $50. The facts bring the case he had formed an opinion from hearing the

opinion even, answering the question whether squarely within the rule announced in West- facts detailed by those who had heard the ern Union Telegraph Co. v. Compton, 169 S. W. 916.

other witnesses: “Yes; I suppose I did.” The judgment of the circuit court will He stated he could go into the jury box and therefore be reduced from $250 to $50 and give the defendant a fair and impartial trial therefore be reduced from $250 to $50 and according to the law and the evidence as dethe judgment for that sum will be affirmed.

tailed by the witnesses upon the stand, disregarding what he had heard about the case

and any opinion he might have formed, and TISDALE v. STATE. (No. 192.) that he would do so. Thereupon the court (Supreme Court of Arkansas. Oct. 25, 1915.) | declared him competent and not subject to JURY 103—COMPETENCY-KNOWLEDGE AND challenge for cause, and committed no error OPINION.

in doing so. A juror is not disqualified merely because

The juror only supposed that he had an he had talked with persons who had heard the witnesses testify in the justice court, and opinion, did not say that it was definite and supposed that he had, from the facts they de- fixed, or would require evidence to remove it. tailed, formed an opinion as to the guilt or in- nor was he asked any further questions nocence of defendant; he stating that he could that might have disclosed a state of mind and would go into the jury box and give defendant a fair and impartial trial according to the that would have rendered him incompetent law and evidence, disregarding what he had as a juror, if such was the fact. McElvain v. heard and any opinion he had formed.

State, 101 Ark. 450, 142 S. W. 840; Collins v. [Ed. Note. For other cases, see Jury, Cent. State, 102 Ark. 182, 143 S. W. 1075; Jackson Dig. $8 444, 456, 460, 461-479, 497; Dec. Dig. Om 103.]

v. State, 103 Ark. 21, 145 S. W. 559; Hamer

v. State, 104 Ark. 606, 150 S. W. 142. Appeal from Circuit Court, Cleveland Coun

The judgment is affirmed. ty; Turner Butler, Judge.

N. R. Tisdale was convicted, and appeals. Affirmed.

SHUFFIELD V. STATE. (No. 187.) Bratton & Bratton, of Little Rock, for ap- (Supreme Court of Arkansas. Oct. 25, 1915.) pellant. Wallace Davis, Atty. Gen., and John 1. ARSON Cm37–EVIDENCE-SUFFICIENCY. P. Streepey, Asst. Atty. Gen., for the State.

Evidence in a prosecution for arson held

sufficient to sustain a conviction. KIRBY, J. This appeal is from a convic Dig. ss. 71-73; Dec. Dig. Cu 37.]

[Ed. Note. For other cases, see Arson, Cent. tion for the unlawful sale of intoxicating liquors, and it is insisted for reversal that 2. CRIMINAL LAW 371-EVIDENCE-OTTER

OFFENSES-INTENT AND MOTIVE. the court erred in not excusing the juror

Where a sheriff and his deputy had searched Sid Mays for cause. The record discloses I two persons, and were both threatened by them, Ark.)

SHUFFIELD Y. STATE

651

on a charge of burning the barn of the sheriff the by the defendant. The tracks led back to a following night evidence was admissible that the point where two horses had been hitched, deputy's fence and corntops were burned the same night, as tending to show motive and in- and it appeared that one of these horses had tent and the incendiary origin of the fire. run away.

The track of the other was fol[Ed. Note.-For other cases, see Criminal Law, lowed, and led to the residence of the mother Cent. Dig. 88 830–832; Dec. Dig. Om 371.]

of Walter Counts, where he resided. This 3. CRIMINAL LAW 374EVIDENCE-HEAR- track was of the same size and shape as SAY,

that made by the horse of Walter Counts On a criminal prosecution, other offenses,

Joe tending to show the intent or motive, cannot which he had ridden the night before. be established by hearsay.

Sanders, the man who was deputized by the [Ed. Note.-- For other cases, see Criminal constable to assist in quelling the disturbance Law, Cent. Dig. § 835; Dec. Dig. On374.]

and who helped to search the defendant and 4. CRIMINAL LAW 376 — EVIDENCE — BAD Walter Counts, had a bottom field about four REPUTATION.

The The prosecution cannot introduce evidence miles distant from the burned barn. of the bad character of accused as a circum- tracks of the horses which led up to the stance from which the jury may infer guilt, place where they had been hitched near the until the accused has introduced evidence of his barn the night of the fire came from the digood character.

The evi. [Ed. Note.-For other cases, see Criminal rection of Sanders' bottom field. Law, Cent. Dig. 88 836-839, 841, 843; Dec. Dig. dence showed that some of the corntops On 376.]

which were in Sanders' bottom field were set 5. CRIMINAL LAW Own 378-EVIDENCE-CHAR- on fire earlier in the night on the same night ACTERS-SPECIFIC ACTS.

Proof of pleading guilty to stealing chickens that the constable's barn was burned. Other is not admissible to rebut evidence of the good evidence tended to show that the defendcharacter of one accused of arson; for neither ant and Counts rode in the direction of this good nor bad character can be proved by specific bottom field when they left the church. W. deeds or acts.

[Ed. Note. For other cases, see Criminal T. Shuffield aroused some of his neighbors Law, Cent. Dig. $ 842; Dec. Dig. Omm 378.] when he discovered that his barn was on fire,

and one of them, on his way there, found Appeal from Circuit Court, Hot Spring Walter Shuffield's horse loose in the road. County; W. H. Evans, Judge.

The next day the defendant said to this witWalter Shuffield was convicted of arson, ness, “Walter Counts played hell when he and he appeals. Reversed.

turned my horse loose." H. B. Means, of Malvern, for appellant.

[1] Evidence was adduced in behalf of the Wallace Davis, Atty. Gen., Jno. P. Streepey, defendant tending to show that he was not Asst. Atty. Gen., and D. D. Glover, of Mal- guilty, and it is contended by his counsel vern, for the State.

that the evidence on the part of the state is

not sufficient to show his guilt. Without HART, J. Walter Shuffield and Walter commenting upon it, we are of the opinion Counts were jointly indicted for the crime of that the evidence on the part of the state, if arson, charged to have been committed by believed by the jury, was sufficient to estabburning the barn of W. T. Shuffield on the lish the guilt of the defendant. 22d day of November, 1914, in Hot Spring [2] It is next contended that the court county, Ark. They severed, and the defend- erred in permitting Joe Sanders to testify ant Shuffield was convicted, and from the that the defendant burned his fence and judgment of conviction has duly prosecuted corntops on the night that W. T. Shufthis appeal On the trial of Shuffield the field's barn was burned. It is urged that state proved a state of facts substantially as this testimony was inadmissible, for the reafollows: W. T. Shuffield was constable of son that one crime cannot be proved as a Bismarck township in Hot Spring county, circumstance from which to infer guilt of Ark., and on the night of November 22, the commission of another. Though this is

, to quell a disturbance. Some one had been of Joe Sanders were burned on the same shooting at the church with pistols, and he night was admissible under the circumstancdeputized Joe Sanders to go with him to es, not only to show the motive or intent of the church. They searched all the people the defendant, but also because it tended found at the church, including Walter Counts to show the incendiary origin of the fire. and the defendant Walter Shuffield. Counts It will be remembered that Joe Sanders was and the defendant both cursed the constable deputized by the constable to help search the and both, in effect, threatened him. Shuf-defendant and Walter Counts at the church field then went home, and his barn was burn-house. They were both threatened by the ed about 12 o'clock that night. The barn defendant and Counts, and later, on the same had a scuttle hole which had been covered night, both the. barn of the constable and with corntops, and it appeared that it was fence and corntops of the person who was set on fire at that place. An examination deputized to assist the constable were burnof the ground around the barn showed tracks ed. Nash v. State, 179 S. W. 159. made by shoes about the size of those worn [3] The testimony complained of, however,

was incompetent for another reason. An ex Appeal from Circuit Court, Mississippi amination of the record shows that it was County; J. F. Gautney, Judge. hearsay. Joe Sanders was told the next day Action by R. E. Peery against S. D. Mauldafter the fire that his corntops were burned in for negligent failure to levy an execution the night before, and that the defendant had and to return the same within the time preburned them. His testimony in regard to scribed by law. Judgment for defendant, the matter was hearsay, and should not have and plaintiff appeals. Affirmed. been admitted on that account.

R. E. Peery, pro se. [4] The father of the defendant was a wit

W. D. Gravette, of ness in his behalf, and on cross-examination,

Blytheville, for appellee. over the objection of the defendant, was asked whether it was true that his son, nam

HART, J. R. E. Peery instituted this acing the defendant, had pleaded guilty before tion against S. D. Mauldin under section a justice of the peace to a charge of stealing 3286 of Kirby's Digest to recover $141.11 for chickens, and answered that it was true. the alleged negligent failure to levy an exeThe admission of this testimony was errone- cution and for the alleged failure to return ous, and its admission was prejudicial to the same within the time prescribed by law. the rights of the defendant. It is the settled The facts are as follows: rule of this state that the prosecution can

[1] R. E. Peery sued R. E. Mangrum benot resort to the bad character of the accus- fore H. C. Hall, justice of the peace, and reed as a circumstance from which to infer covered judgment for the amount sued for. guilt, and this doctrine is founded upon Hall issued an execution on the judgment the wise policy of avoiding unfair prejudice and placed it in the hands of the defendant or unjust condemnation which such evidence S. D. Mauldin as constable of Chickasawba might induce in the minds of the jury. In township, Mississippi county, Ark. The exethe case before us the defendant did not put cution was issued on April 14, 1914, and the his character in evidence, and the state had following return is indorsed on it: no right to show his bad character. Ware v. April, 1914, and I have duly served the same by

“This writ came to hand on the 17th day of State, 91 Ark. 555, 121 S. W. 927; Younger showing and reading to R. E. Mangrum, and v. State, 100 Ark. 321, 140 S. W. 139.

now return this execution with stay bond filed [5] Moreover, it is well settled that neither April 29, 1914. S. D. Mauldin, Constable." good nor bad character can be proved by Hall, the justice of the peace before whom specific acts or deeds. Hardgraves v. State, the case was tried, testified that he had no 88 Ark. 261, 114 S. W. 216.

recollection of the execution being returned, For the error in the admission of the tes- but knew that it must have been returned timony just referred to, the judgment must because he found it in the pigeon hole of his be reversed, and the cause remanded for desk five or six days before the trial; that a new trial.

he remembered filling out a blank stay bond at the request of S. D. Mauldin, the con

stable, and either at that time, or some time PEERY V. MAULDIN. (No. 188.)

afterwards, copied the indorsement of costs (Supreme Court of Arkansas. Oct. 25, 1915.) as they appear on the back of the stay bond.

The indorsement referred to shows a fee of 1. JUSTICES OF THE PEACE O 135 EXECUTION-RETURN.

75 cents for approving the stay bond. The Where a justice of the peace issued execu- constable had approved it and had charged tion on a judgment April 14, 1914, and placed and was allowed a fee of 75 cents for doing it in the hands of a constable, such execution being found later among the official papers of so. The justice further stated that he never the justice indorsed: "This writ came to hand issued any certificate that a stay bond had on the 17th day of April, 1914, and I have duly been taken to anybody, and that he had no served the same by showing and reading to R. recollection of seeing the bond after the E. M. and now return this execution with stay bond filed April 29, 1914. S. D. M., Constable” constable asked him to draw it up for him, -it sufficiently appeared from the constable's and that the bond was never filed with him. return that the execution was returned on April The stay bond was executed by R. E. Man29, 1914, within 30 days from the date of issuance, as required by law, by the constable's degrum and Mack Rogers, and there appears livering it to the justice by whom it was issued. upon it the following indorsement: "Approy

[Ed. Note.-For other cases, see Justices of ed this April 29, 1914. S. D. Mauldin, conthe Peace, Cent. Dig. $$ 426-447, 749; Dec. stable." There also appears, among other Dig. Om 135.]

things, the following item of cost: "Taking 2. SHERIFFS AND CONSTABLES m106-FAIL- stay bond, seventy-five cents.” The court URE TO LEVY EXECUTION. To

found in favor of the defendant Mauldin, stable for negligent failure to levy an execution, and the plaintiff Peery has appealed. plaintiff must prove that during the life of the The judgment of the circuit court was writ the judgment debtor was possessed of prop-right. It sufficiently appears from the reerty liable to seizure thereunder, and that the turn made by the constable that the execuconstable neglected to seize it.

[Ed. Note.-For other cases, see Sheriffs and tion was returned within the time prescribed Constables, Cent. Dig. 88 175-178, 204; Dec. by law. The return of the officer shows that Dig. Om 106.]

the execution with the stay bond attached

Ark.)

WATKINS v. FINGER

653

thereto was returned to the justice of the judgment for defendants, plaintiffs appeal. peace who issued the execution on April 29, Affirmed. 1914. The execution was delivered to the

Winchester & Martin, of Ft. Smith, for apconstable on the 17th day of April, 1914, and was found among the official papers of pellants. W. M. Pipkin and J. I. Alley, both

of Mena, for appellees. the justice of the peace. We are of the opinion that this is sufficient to show that the constable returned the execution within

SMITH, J. Appellants are citizens and 30 days from the date of its issuance by de taxpayers of Polk county, Ark., and alleged livering it to the justice of the peace by in their complaint that the county court of whom it was issued. See Loveless v. State, that county had, at its October term, 1913, 64 Ark. 205, 41 S. W. 418.

appropriated the sum of $3,000 for build[2] The complaint alleges that the con- ing county bridges, but that during the year stable failed to levy the execution upon the 1914 the county judge of said county made property of the defendant in execution, but three separate contracts for bridges and does not allege that the defendant in execu- bridge materials, amounting in the aggretion had property at the time upon which to gate to $20,119. It is alleged that some of make the levy. There is nothing in the rec- the bridges so contracted for were bridges ord which tends to show that the defendant of the first class, and others bridges of the in execution was possessed of any kind of second class, but that said bridges were built property which the constable could have seiz- without specifications or the appointment of ed under execution. In order to enable the commissioners, or without bids of any kind plaintiff to recover, it was incumbent upon having been received, or without contracts him to prove that during the life of the writ therefor having been made. And it was furof execution his debtor was possessed of ther alleged that in the construction of said property liable to be seized under the writ bridges the county judge paid twice the and that the constable neglected to seize value of the material used; yet, when claims said property. State v. Kirby, 6 Ark. 454; for these materials were filed for allowance Conway v. Magill, 53 Neb. 370, 73 N. W. 702; before the county court, the county judge alStevenson V. Judy, 49 Mo. 227; Smith v. lowed them in the full amount claimed, alHeineman, 118 Ala. 195, 24 South. 364, 72 though he well knew that the affidavits atAm. St. Rep. 150; Phelps v. Cutler, 4 Gray tached to the respective claims that the same (Mass.) 137.

had not been enlarged or enhanced because It follows that the judgment must be af- of the depreciated price in scrip were false. firmed.

It was alleged that no appeal was taken from the allowance of said demands against

the county, for the reason that the time for WATKINS et al. v. FINGER et al. (No. 196.) appeal had expired before appellants knew

of the allowances. It is further alleged (Supreme Court of Arkansas. Oct. 25, 1915.)

that: 1. COUNTIES 165 COUNTY WARRANTS "All of said warrants were illegally and VALIDITY.

wrongfully issued, and they do not constitute Where the county court has made an ap- just and legal evidence of the indebtedness of propriation, though not a sufficiently large one Polk county, but before the filing of the original to discharge all expenditures for bridge pur complaint in this action all of said warrants had poses, warrants issued for bridge purposes are been, for one purpose or another, turned into not void.

the hands of defendant H. W. Finger, sheriff of [Ed. Note.-For other cases, see Counties, Polk county, and by him turned over to the deCent. Dig. $$ 246–248; Dec. Dig. Om 165.] fendant W. E. Anderson, treasurer of said coun2. COUNTIES O196 - COUNTY WARRANTS

ty." PAYMENT_OBJECTIONS.

It was further alleged that of said warWhere county warrants issued for bridge rants so turned over to the treasurer by the purposes were not void, but only voidable pro sheriff four of them were for the sum of tanto in so far as they exceeded the appropria- $500 each, and that these warrants had been tion, taxpayers cannot, after the warrants have been accepted by the treasurer, who, under Kir received by the collector in exchange for othby's Dig. § 1165, is liable for fourfold the er warrants, that is, he had changed larger amount of any warrant which he shall refuse to warrants by giving warrants of smaller depay if he have sufficient funds, secure cancellation of the warrants, for they had been satisfied,

nominations. And it was further alleged and nothing was left save for the presiding

that: judge of the county court to write “Redeemed” "On the 19th day of March, 1915, said sheracross the face of each warrant, and sign his iff had received the sum of $7,916 of this same name thereto as final evidence of the redemption, lot of warrants, issued as aforesaid to Boardman in accordance with section 1169.

& Co., from a taxpayer who did not pay his [Ed. Note. For other cases, see Counties, taxes, but only deposited these warrants with Cent. Dig. $ 308; Dec. Dig. Om 196.]

the sheriff, and these the said sheriff delivered to

the county clerk of Polk county, who receipted Appeal from Polk Chancery Court; James the sheriff for the same in the name of said D. Shaver, Chancellor.

treasurer, but not as county clerk, nor as deputy Action by D. M. Watkins and others paid his taxes and holds no receipt from said

of said treasurer, that this taxpayer has not against H. W. Finger and others. From a sheriff save for said warrants, but that the said county clerk has entered said warrants upon Weigel v. Pulaski County, 61 Ark. 74, 32 S. the register of redeemed warrants.”

W. 116. There was a prayer that said warrants be These warrants were issued pursuant to declared illegal, and not binding, obligations an order of allowance made by the county against the county of Polk, and that they court, and they were not void, although they be ordered canceled.

may have been voidable pro tanto, and these Appellees filed a demurrer to this com- were such warrants, therefore, as the counplaint, which was sustained by the court ty treasurer would have been protected in below, and this appeal has been duly prose- paying in good faith under the requirements cuted from that decree.

of section 1165 of Kirby's Digest, which We understand the effect of the allegations makes the treasurer liable for fourfold the above set out to be that the sheriff receiv- amount of any warrant which he shall reed $2,000 worth of the warrants in question fuse to pay if he have sufficient funds in his which were not tendered in payment of tax- hands therefor. es, or any other demand due the county, but It is true that in the case of Vale v. Buchthat he gave smaller warrants for these anan, 98 Ark. 304, 135 S. W. 850, it was held larger ones; in other words, he changed that: them.

"The orders or warrants of a county are not We do not fully understand the effect of negotiable instruments in the sense of the law the allegation in regard to the warrants de merchant, and no one can become an innocent posited with the treasurer aggregating $7,- purchaser thereof, although he obtains same for

value and before maturity. Every one receiving 916, but the complaint does allege that the such a warrant takes the same with full notice treasurer holds them as redeemed warrants, of the purpose for which it was issued and of and has so listed them with the county clerk. the order of the county court authorizing its isEven if the court below should have treated

suance.” this denıurrer as a motion to make specific,

These warrants were like past-due commerthe fact remains that the complaint was not cial paper, subject to any defense against made specific, but that appellants stood on the holder which could have been made their complaint, and the same was dismissed against the person to whom the allowance without any offer to amend or make specific. was made. But this rule does not apply to

[1, 2] The allegations of the complaint in appellees, who are sued in their official caregard to the circumstances under which pacities. The treasurer was not a purchaser these warrants were issued raised very of these warrants, and does not claim proserious questions concerning their validity tection as such. He acts for the county and while they were outstanding, but, under the received the warrants for the county, and allegations of the complaint, we think those when they reached his hands they were requestions have not been raised in apt time. deemed. The allegations of the complaint There is no allegation of fraud or collusion are that they had been filed and listed as on the part of either the collector or the redeemed warrants, and they could not theretreasurer to defraud Polk county, or to aid after be reissued or further used for any any one in disposing of invalid warrants. purpose, and nothing further remained to be Upon the contrary, the effect of the recitals done with them, except for the presiding of fact contained in the complaint is to al- judge of the county court, at the annual setlege that the treasurer now has in his hands tlement with the treasurer, to write the word a large amount of redeemed warrants the “Redeemed” across the face of each of these validity of which was questionable before warrants, and sign his name thereto as the their redemption.

final and conclusive evidence of the redempWe need not discuss here the effect of the tion. Section 1169, Kirby's Digest. action of the county court in making allow- The judgment of the court below will ances for excessive amounts to compensate therefore be affirmed. the depreciation in the value of county warrants. The law on this subject is fully discussed in the recent case of Monroe County BURKE et al. v. BOARD OF IMPROVEV. Brown, 177 S. W. 40.

MENT PAVING DIST. NO. 5 Nor need we consider here the effect of

et al. (No. 194.) the action of the county court in building the

(Supreme Court of Arkansas. Oct. 25, 1915.) bridges without having advertised the contracts and without letting them to the lowest 1. MUNICIPAL CORPORATIONS Cw352–PAVING

STREETS-CONTRACTS-QUANTITY OF WORK. bidder. The complaint contains an allega- A contract for paving streets described the tion that an appropriation had been made work to be done as the construction and comfor the purpose of building bridges, and pletion of the paving of the roadways of the the existence of this appropriation was the dicated by the board of improvement, and pro

streets and avenues in a paving district as injurisdictional fact essential to the validity vided that if in the judgment of the engineer the of the warrants, although a sufficiently large work was not being pushed with the necessary appropriation had not been made to cover degree of activity, it should be at his option to

employ such additional forces as might be rethe expenditures for that purpose. Wat- quired, and purchase material in the open markins v. Ştough, 103 Ark. 468, 147 S. W. 443; / ket and deduct the cost from the money due the

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