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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:

HART, J. A. B. Brooks sued the Western Union Telegraph Company to recover damages for mental anguish on account of the alleged negligence of the telegraph company in failing to deliver a message to him, notifying him of his brother's death. The plaintiff resided at Kerr, in Lonoke county, Ark., and the message was addressed to him there and was sent from Kansas City, Mo. The jury returned a verdict in favor of the plaintiff, and the telegraph company has appealed. There was sufficient evidence to show negligence on the part of the telegraph company. [1] The telegraph company assigns as error the action of the court in refusing certain instructions asked by it, but we think the matters contained in these refused instructions were embraced in other instructions given by the court. It is well settled

that the court is not required to repeat in

structions.

[2] In the case before us the defendant claimed in the pleadings only the right to enforce the limitation of its liability down to the sum of $50. The facts bring the case squarely within the rule announced in Western Union Telegraph Co. v. Compton, 169

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TISDALE v. STATE. (No. 192.) (Supreme Court of Arkansas. Oct. 25, 1915.) Oct. 25, 1915.) JURY 103-COMPETENCY-KNOWLEDGE AND OPINION.

A juror is not disqualified merely because he had talked with persons who had heard the witnesses testify in the justice court, and supposed that he had, from the facts they detailed, formed an opinion as to the guilt or innocence of defendant; he stating that he could and would go into the jury box and give defendant a fair and impartial trial according to the law and evidence, disregarding what he had heard and any opinion he had formed.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dec. Dig. 103.]

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

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

Bratton & Bratton, of Little Rock, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

"Q. You say you have heard of the case? A. I heard of the case here in the justice of witnesses? A. No, sir; those to whom I talkthe peace court. Q. Did you hear any of the ed had heard the witnesses, and they detailed the facts in the case to me as they heard it. Q. They detailed the facts to you? A. Yes, sir. the guilt or innocence of the defendant? Q. From that did you form an opinion as to A. Yes, sir; I suppose I did. The Court: If you were selected as a juror in this case, could you and would you go into the jury box and this hearsay, and efface from your mind any lay aside those things you might have heard, opinion you might have formed from what you have heard, and try this defendant according here from the stand, and the law as given you to the evidence as detailed to you by the witness by the court, disregarding all you might have heard or opinions you may have formed? A. Yes, sir; I would try him according to the law The Court. The juror is and the evidence. qualified.".

The examination of the juror clearly shows

that he had no fixed opinion of the guilt

or innocence of the defendant, notwithstanding he said he had talked with some persons who had heard the witnesses testify in the trial. He was not certain that he had an opinion even, answering the question whether he had formed an opinion from hearing the facts detailed by those who had heard the other witnesses: "Yes; I suppose I did." He stated he could go into the jury box and give the defendant a fair and impartial trial according to the law and the evidence as de

tailed by the witnesses upon the stand, disregarding what he had heard about the case and any opinion he might have formed, and that he would do so. Thereupon the court declared him competent and not subject to challenge for cause, and committed no error in doing so.

The juror only supposed that he had an opinion, did not say that it was definite and fixed, or would require evidence to remove it. nor was he asked any further questions that might have disclosed a state of mind that would have rendered him incompetent as a juror, if such was the fact. McElvain v. State, 101 Ark. 450, 142 S. W. 840; Collins v. State, 102 Ark. 182, 143 S. W. 1075; Jackson v. State, 103 Ark. 21, 145 S. W. 559; Hamer v. State, 104 Ark. 606, 150 S. W. 142. The judgment is affirmed.

(No. 187.) Oct. 25, 1915.)

SHUFFIELD v. STATE. (Supreme Court of Arkansas. 1. ARSON 37-EVIDENCE-SUFFICIENCY. Evidence in a prosecution for arson held sufficient to sustain a conviction. Dig. §§ 71-73; Dec. Dig. 37.] [Ed. Note.-For other cases, see Arson, Cent. 371-EVIDENCE-OTHER

2.

KIRBY, J. This appeal is from a conviction for the unlawful sale of intoxicating liquors, and it is insisted for reversal that the court erred in not excusing the juror Where a sheriff and his deputy had searched Sid Mays for cause. The record discloses two persons, and were both threatened by them,

CRIMINAL LAW OFFENSES-INTENT AND MOTIVE.

on a charge of burning the barn of the sheriff the following night evidence was admissible that the deputy's fence and corntops were burned the same night, as tending to show motive and intent and the incendiary origin of the fire.

by the defendant. The tracks led back to a point where two horses had been hitched, and it appeared that one of these horses had run away. The track of the other was followed, and led to the residence of the mother of Walter Counts, where he resided. This 374-EVIDENCE-HEAR- track was of the same size and shape as

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $8 830-832; Dec. Dig. 371.] 3. CRIMINAL LAW

SAY.

On a criminal prosecution, other offenses, tending to show the intent or motive, cannot be established by hearsay.

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[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 835; Dec. Dig. 374.] 4. CRIMINAL LAW 376 · EVIDENCE BAD REPUTATION. The prosecution cannot introduce evidence of the bad character of accused as a circumstance from which the jury may infer guilt, until the accused has introduced evidence of his good character.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. 376.]

5. CRIMINAL LAW

378-EVIDENCE-CHAR

ACTERS-SPECIFIC ACTS.

Proof of pleading guilty to stealing chickens is not admissible to rebut evidence of the good character of one accused of arson; for neither good nor bad character can be proved by specific deeds or acts.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 842; Dec. Dig. 378.]

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Walter Shuffield was convicted of arson, and he appeals. Reversed.

H. B. Means, of Malvern, for appellant. Wallace Davis, Atty. Gen., Jno. P. Streepey, Asst. Atty. Gen., and D. D. Glover, of Malvern, for the State.

The evi

that made by the horse of Walter Counts
which he had ridden the night before. Joe
Sanders, the man who was deputized by the
constable to assist in quelling the disturbance
and who helped to search the defendant and
Walter Counts, had a bottom field about four
The
miles distant from the burned barn.
tracks of the horses which led up to the
place where they had been hitched near the
barn the night of the fire came from the di-
rection of Sanders' bottom field.
dence showed that some of the corntops
which were in Sanders' bottom field were set
on fire earlier in the night on the same night
that the constable's barn was burned. Other
evidence tended to show that the defend-
ant and Counts rode in the direction of this
bottom field when they left the church. W.
T. Shuffield aroused some of his neighbors
when he discovered that his barn was on fire,
and one of them, on his way there, found
Walter Shuffield's horse loose in the road.
The next day the defendant said to this wit-
ness, "Walter Counts played hell when he
turned my horse loose."

[1] Evidence was adduced in behalf of the defendant tending to show that he was not guilty, and it is contended by his counsel that the evidence on the part of the state is not sufficient to show his guilt. Without commenting upon it, we are of the opinion that the evidence on the part of the state, if believed by the jury, was sufficient to establish the guilt of the defendant.

HART, J. Walter Shuffield and Walter Counts were jointly indicted for the crime of arson, charged to have been committed by burning the barn of W. T. Shuffield on the 22d day of November, 1914, in Hot Spring county, Ark. They severed, and the defendant Shuffield was convicted, and from the judgment of conviction has duly prosecuted this appeal. On the trial of Shuffield the state proved a state of facts substantially as follows: W. T. Shuffield was constable of Bismarck township in Hot Spring county, Ark., and on the night of November 22, 1914, was called to a church in the township to quell a disturbance. Some one had been shooting at the church with pistols, and he deputized Joe Sanders to go with him to the church. They searched all the people found at the church, including Walter Counts and the defendant Walter Shuffield. Counts and the defendant both cursed the constable and both, in effect, threatened him. Shuffield then went home, and his barn was burned about 12 o'clock that night. The barn had a scuttle hole which had been covered with corntops, and it appeared that it was set on fire at that place. An examination of the ground around the barn showed tracks made by shoes about the size of those worn [3] The testimony complained of, however,

[2] It is next contended that the court erred in permitting Joe Sanders to testify that the defendant burned his fence and corntops on the night that W. T. Shuffield's barn was burned. It is urged that this testimony was inadmissible, for the reason that one crime cannot be proved as a circumstance from which to infer guilt of the commission of another. Though this is true, we think evidence that the corntops of Joe Sanders were burned on the same night was admissible under the circumstances, not only to show the motive or intent of the defendant, but also because it tended to show the incendiary origin of the fire.. It will be remembered that Joe Sanders was. deputized by the constable to help search the defendant and Walter Counts at the church house. They were both threatened by the defendant and Counts, and later, on the samenight, both the barn of the constable and fence and corntops of the person who was deputized to assist the constable were burned. Nash v. State, 179 S. W. 159.

was incompetent for another reason. An examination of the record shows that it was hearsay. Joe Sanders was told the next day after the fire that his corntops were burned the night before, and that the defendant had burned them. His testimony in regard to the matter was hearsay, and should not have been admitted on that account.

[4] The father of the defendant was a witness in his behalf, and on cross-examination, over the objection of the defendant, was asked whether it was true that his son, naming the defendant, had pleaded guilty before a justice of the peace to a charge of stealing chickens, and answered that it was true. The admission of this testimony was erroneous, and its admission was prejudicial to the rights of the defendant. It is the settled rule of this state that the prosecution cannot resort to the bad character of the accused as a circumstance from which to infer guilt, and this doctrine is founded upon the wise policy of avoiding unfair prejudice or unjust condemnation which such evidence might induce in the minds of the jury. In the case before us the defendant did not put his character in evidence, and the state had no right to show his bad character. Ware v. State, 91 Ark. 555, 121 S. W. 927; Younger v. State, 100 Ark. 321, 140 S. W. 139.

[5] Moreover, it is well settled that neither good nor bad character can be proved by specific acts or deeds. Hardgraves v. State, 88 Ark. 261, 114 S. W. 216.

For the error in the admission of the testimony just referred to, the judgment must be reversed, and the cause remanded for a new trial.

PEERY v. MAULDIN. (No. 188.) (Supreme Court of Arkansas. Oct. 25, 1915.) 1. JUSTICES OF THE PEACE 135 EXECUTION-RETURN.

Appeal from Circuit Court, Mississippi County; J. F. Gautney, Judge.

Action by R. E. Peery against S. D. Mauldin for negligent failure to levy an execution and to return the same within the time prescribed by law. Judgment for defendant, and plaintiff appeals. Affirmed.

R. E. Peery, pro se. W. D. Gravette, of Blytheville, for appellee.

HART, J. R. E. Peery instituted this action against S. D. Mauldin under section 3286 of Kirby's Digest to recover $141.11 for the alleged negligent failure to levy an execution and for the alleged failure to return the same within the time prescribed by law. The facts are as follows:

[1] R. E. Peery sued R. E. Mangrum before H. C. Hall, justice of the peace, and recovered judgment for the amount sued for. Hall issued an execution on the judgment and placed it in the hands of the defendant S. D. Mauldin as constable of Chickasawba township, Mississippi county, Ark. The execution was issued on April 14, 1914, and the following return is indorsed on it:

April, 1914, and I have duly served the same by "This writ came to hand on the 17th day of showing and reading to R. E. Mangrum, and now return this execution with stay bond filed April 29, 1914. S. D. Mauldin, Constable."

Hall, the justice of the peace before whom the case was tried, testified that he had no recollection of the execution being returned, but knew that it must have been returned because he found it in the pigeon hole of his desk five or six days before the trial; that he remembered filling out a blank stay bond at the request of S. D. Mauldin, the constable, and either at that time, or some time afterwards, copied the indorsement of costs as they appear on the back of the stay bond.

The indorsement referred to shows a fee of 75 cents for approving the stay bond. The constable had approved it and had charged and was allowed a fee of 75 cents for doing so. The justice further stated that he never issued any certificate that a stay bond had been taken to anybody, and that he had no recollection of seeing the bond after the constable asked him to draw it up for him, and that the bond was never filed with him. The stay bond was executed by R. E. Man

Where a justice of the peace issued execution on a judgment April 14, 1914, and placed it in the hands of a constable, such execution being found later among the official papers of the justice indorsed: "This writ came to hand on the 17th day of April, 1914, and I have duly served the same by showing and reading to R. E. M. and now return this execution with stay bond filed April 29, 1914. S. D. M., Constable" -it sufficiently appeared from the constable's return that the execution was returned on April 29, 1914, within 30 days from the date of issuance, as required by law, by the constable's de-grum and Mack Rogers, and there appears livering it to the justice by whom it was issued. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447, 749; Dec. Dig. 135.]

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upon it the following indorsement: "Approved this April 29, 1914. S. D. Mauldin, constable." There also appears, among other things, the following item of cost: "Taking stay bond, seventy-five cents." The court found in favor of the defendant Mauldin, and the plaintiff Peery has appealed.

The judgment of the circuit court was right. It sufficiently appears from the return made by the constable that the execution was returned within the time prescribed by law. The return of the officer shows that the execution with the stay bond attached

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

constable on the 17th day of April, 1914, and was found among the official papers of the justice of the peace. We are of the opinion that this is sufficient to show that the constable returned the execution within

30 days from the date of its issuance by de livering it to the justice of the peace by whom it was issued. See Loveless v. State,

64 Ark. 205, 41 S. W. 418.

[2] The complaint alleges that the constable failed to levy the execution upon the property of the defendant in execution, but does not allege that the defendant in execution had property at the time upon which to make the levy. There is nothing in the record which tends to show that the defendant in execution was possessed of any kind of property which the constable could have seized under execution. In order to enable the plaintiff to recover, it was incumbent upon him to prove that during the life of the writ of execution his debtor was possessed of property liable to be seized under the writ and that the constable neglected to seize said property. State v. Kirby, 6 Ark. 454; Conway v. Magill, 53 Neb. 370, 73 N. W. 702; Stevenson v. Judy, 49 Mo. 227; Smith v. Heineman, 118 Ala. 195, 24 South. 364, 72 Am. St. Rep. 150; Phelps v. Cutler, 4 Gray (Mass.) 137.

Winchester & Martin, of Ft. Smith, for appellants. W. M. Pipkin and J. I. Alley, both of Mena, for appellees.

SMITH, J. Appellants are citizens and taxpayers of Polk county, Ark., and alleged in their complaint that the county court of that county had, at its October term, 1913, appropriated the sum of $3,000 for building county bridges, but that during the year 1914 the county judge of said county made three separate contracts for bridges and bridge materials, amounting in the aggregate to $20,119. It is alleged that some of the bridges so contracted for were bridges of the first class, and others bridges of the second class, but that said bridges were built without specifications or the appointment of commissioners, or without bids of any kind having been received, or without contracts therefor having been made. And it was further alleged that in the construction of said bridges the county judge paid twice the value of the material used; yet, when claims for these materials were filed for allowance before the county court, the county judge allowed them in the full amount claimed, although he well knew that the affidavits attached to the respective claims that the same had not been enlarged or enhanced because

It follows that the judgment must be af- of the depreciated price in scrip were false. firmed.

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2. COUNTIES 196 COUNTY WARRANTS PAYMENT OBJECTIONS.

Where county warrants issued for bridge purposes were not void, but only voidable pro tanto in so far as they exceeded the appropriation, taxpayers cannot, after the warrants have been accepted by the treasurer, who, under Kirby's Dig. § 1165, is liable for fourfold the amount of any warrant which he shall refuse to pay if he have sufficient funds, secure cancellation of the warrants, for they had been satisfied, and nothing was left save for the presiding judge of the county court to write "Redeemed" across the face of each warrant, and sign his name thereto as final evidence of the redemption, in accordance with section 1169.

[Ed. Note. For other cases, see see Counties, Cent. Dig. § 308; Dec. Dig. 196.]

It was alleged that no appeal was taken from the allowance of said demands against the county, for the reason that the time for appeal had expired before appellants knew of the allowances. It is further alleged that:

"All of said warrants were illegally and wrongfully issued, and they do not constitute just and legal evidence of the indebtedness of Polk county, but before the filing of the original complaint in this action all of said warrants had been, for one purpose or another, turned into the hands of defendant H. W. Finger, sheriff of Polk county, and by him turned over to the defendant W. E. Anderson, treasurer of said county."

It was further alleged that of said warrants so turned over to the treasurer by the sheriff four of them were for the sum of $500 each, and that these warrants had been received by the collector in exchange for other warrants, that is, he had changed larger warrants by giving warrants of smaller denominations. And it was further alleged

that:

"On the 19th day of March, 1915, said sheriff had received the sum of $7,916 of this same lot of warrants, issued as aforesaid to Boardman & Co., from a taxpayer who did not pay his taxes, but only deposited these warrants with the sheriff, and these the said sheriff delivered to the county clerk of Polk county, who receipted James the sheriff for the same in the name of said 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

Appeal from Polk Chancery Court; D. Shaver, Chancellor.

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 declared illegal, and not binding, obligations against the county of Polk, and that they be ordered canceled.

Appellees filed a demurrer to this complaint, which was sustained by the court below, and this appeal has been duly prosecuted from that decree.

We understand the effect of the allegations above set out to be that the sheriff received $2,000 worth of the warrants in question which were not tendered in payment of taxes, or any other demand due the county, but that he gave smaller warrants for these larger ones; in other words, he changed them.

We do not fully understand the effect of the allegation in regard to the warrants deposited with the treasurer aggregating $7,916, but the complaint does allege that the treasurer holds them as redeemed warrants, and has so listed them with the county clerk, Even if the court below should have treated this demurrer as a motion to make specific, the fact remains that the complaint was not made specific, but that appellants stood on their complaint, and the same was dismissed without any offer to amend or make specific. [1, 2] The allegations of the complaint in regard to the circumstances under which these warrants were issued raised very serious questions concerning their validity while they were outstanding, but, under the allegations of the complaint, we think those questions have not been raised in apt time. There is no allegation of fraud or collusion on the part of either the collector or the treasurer to defraud Polk county, or to aid any one in disposing of invalid warrants. Upon the contrary, the effect of the recitals of fact contained in the complaint is to allege that the treasurer now has in his hands a large amount of redeemed warrants the validity of which was questionable before their redemption.

We need not discuss here the effect of the action of the county court in making allowances for excessive amounts to compensate the depreciation in the value of county warrants. The law on this subject is fully discussed in the recent case of Monroe County v. Brown, 177 S. W. 40.

Nor need we consider here the effect of

These warrants were issued pursuant to an order of allowance made by the county court, and they were not void, although they may have been voidable pro tanto, and these were such warrants, therefore, as the county treasurer would have been protected in paying in good faith under the requirements of section 1165 of Kirby's Digest, which makes the treasurer liable for fourfold the amount of any warrant which he shall refuse to pay if he have sufficient funds in his hands therefor.

It is true that in the case of Vale v. Buchanan, 98 Ark. 304, 135 S. W. 850, it was held that:

"The orders or warrants of a county are not negotiable instruments in the sense of the law merchant, and no one can become an innocent purchaser thereof, although he obtains same for value and before maturity. Every one receiving such a warrant takes the same with full notice of the purpose for which it was issued and of the order of the county court authorizing its issuance."

These warrants were like past-due commercial paper, subject to any defense against the holder which could have been made against the person to whom the allowance was made. But this rule does not apply to appellees, who are sued in their official capacities. The treasurer was not a purchaser of these warrants, and does not claim protection as such. He acts for the county and received the warrants for the county, and when they reached his hands they were redeemed. The allegations of the complaint are that they had been filed and listed as redeemed warrants, and they could not thereafter be reissued or further used for any purpose, and nothing further remained to be done with them, except for the presiding judge of the county court, at the annual settlement with the treasurer, to write the word "Redeemed" across the face of each of these warrants, and sign his name thereto as the final and conclusive evidence of the redemption. Section 1169, Kirby's Digest.

The judgment of the court below will therefore be affirmed.

BURKE et al. v. BOARD OF IMPROVE

MENT PAVING DIST. NO. 5
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 bidder. The complaint contains an allegation that an appropriation had been made for the purpose of building bridges, and the existence of this appropriation was the jurisdictional fact essential to the validity of the warrants, although a sufficiently large appropriation had not been made to cover the expenditures for that purpose. Watkins v. Stough, 103 Ark. 468, 147 S. W. 443;

1. MUNICIPAL CORPORATIONS 352-PAVING STREETS-CONTRACTS-QUANTITY OF WORK. A contract for paving streets described the work to be done as the construction and completion of the paving of the roadways of the streets and avenues in a paving district as indicated by the board of improvement, and provided that if in the judgment of the engineer the work was not being pushed with the necessary degree of activity, it should be at his option to employ such additional forces as might be required, and purchase material in the open market and deduct the cost from the money due the

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