the court said: "In fact, the covenants in a deed constitute no part of the conveyance but are separate contracts. The title passes independently of them." Therefore, the covenants of warranty are not affected by the erroneous description which was subsequently corrected by the execution of the quitclaim deed. The quitclaim deed refers to the warranty deed and by its terms shows that it was executed to correct the mistake of description made in the first deed. Therefore the two deeds constitute one contract, and are to be read together.

On the question of the measure of damages for a breach of warranty, in the case of Alexander v. Bridgford, 59 Ark. 195, the court said: "It is competent to show the real consideration to be more or less than that mentioned in the deed, although the recital that there was a consideration can not be contradicted. But, where the covenantee's title is entirely defeated by the encumbrance being changed into a title adverse and indefeasible, the plaintiff is entitled to recover the money paid for the land with interest (cases cited). *** 'Yet the purchaser is not required to buy in the encumbrance, though it be offered to him on moderate terms.' Miller v. Halsey, 2 Green, 48 (N. J. L.). When the encumbrance is changed into a title adverse and indefeasible, the criterion of recovery, if less than the whole land is lost, is so much of the consideration paid as is proportioned to the land lost. Hunt v. Orweg, 17 B. Monroe, 85."

It will therefore be seen that the jury followed the correct rule in determining the damages sustained by appellee for the breach of covenant of warranty by taking the proportionate part of the land lost (one-third) to the real consideration or purchase price, two hundred and twenty-five dollars.

Under the rule in the above case appellee was not required to purchase the outstanding title even though it was offered on reasonable terms. It was the duty of appellant to protect the title which he had given to appellee. The judgment of the jury included twenty-five dollars for attorney's fees, which the testimony shows was expended by appellee in defending the suit brought

by Strangways, and which was shown to be a reasonable fee. This appellee was entitled to recover under the rule laid down in the case of Beach v. Nordman, 90 Ark. 63. In that case the court said:

"The appellant's covenant of warranty had failed when this court adjudged the right of the title and possession of the lands in the chancery court to be in Robinson. Robinson v. Nordman, 75 Ark. 595. Appellee was not required to await the filing of the mandate before he could maintain the present suit. In law he had been evicted (2 Warvelle on Vendors, § 977, and authorities to this point in appellee's brief). * * * Under a covenant to warrant and defend the title, the costs and necessary expenses incurred by the covenantee in a bona fide defense or assertion of his title are recoverable in an action by him against the covenantor for breach of his warranty. Necessary expenses would include reasonable attorney's fees and other actual expenses paid by the covenantee in a bona fide but ineffectual effort to uphold the title which he has acquired from the covenantor." Therefore, the judgment will be affirmed.

THOMAS V. STATE.

Opinion delivered January 20, 1913.

CRIMINAL LAW-RECEIVING STOLEN GOODS EVIDENCE.-Where deceased was supposed to have stolen certain property and defendant was indicted for having knowingly received the same, evidence in the form of testimony by officers as to certain property which had been lost, and statements of claimants thereof of their ownership of the same at police headquarters, upon the recovery of the said property, after the death of the supposed thief, are inadmissible to charge defendant with receiving the same, knowing it to have been stolen.

Appeal from Lonoke Circuit Court; Eugene Lankford. Judge; reversed.

STATEMENT BY THE COURT.

Appellee was indicted for the crime of knowingly receiving stolen property, and charged with having re

ceived one suit of clothes, the property of Mrs. Diehl, of the value of $15, a gold cross and chain, of the value of $12, the property of Orie Ozier, one umbrella, the property of T. A. Wright, of the value of $12, one gold bracelet, the property of Kathleen Doyle, of the value of $15, and forty rare coins, the property of Levi Spitzberg, value unknown, one gold watch, the property of Mrs. Robert Brodie, of the value of $20, certain gold rings, of the value of $40, the owners to the grand jury unknown, and also one ladies' fur wrap, of the value of $20, the owner being unknown to the grand jury.

The court overruled appellant's motion to require the State to elect for which crime it would prosecute.

The testimony shows that Alice Brown was the sister of one J. B. Brown, alias "Jack the Shooter," who had terrorized the inhabitants of the city of Little Rock, by numerous burglaries, rapes and attempted murders, during some time before he was killed while entering the house of another negro. He gave appellee one bracelet and one watch and some rings some time during the period of two years before his death, which ornaments she wore about the neighborhood and to church, as other people used ornaments of like kind, except, it was shown she had not worn the bracelet upon visiting Little Rock. She resided with another brother and his wife upon a small farm in Lonoke County, near Little Rock, belonging to her brothers and herself. Upon learning of her brother's death, she came to Little Rock, and was taken to the police station, where she was asked to disclose her knowledge of the offenses committed by her brother and questioned closely to ascertain whether she had any of the property taken by him, and she denied at first she had any of it. She admitted she did have, however, finally, upon being told that she would be put in jail otherwise. She denied any knowledge, whatever, that the property given her by her brother had been stolen, and stated she thought her brother was amply able to make her such presents as he always dressed well, paid the bills of the farm and claimed to be in the suit pressing and real estate business in Little Rock, where he lived.

The umbrella was found in the house, where appellant lived with Henderson Smith, another brother, and his wife, where the family were visited frequently by the deceased, Brown.

A great deal of testimony was introduced, showing the different crimes and outrages committed in the city of Little Rock, the property reported at police headquarters to have been stolen by persons suffering losses from burglaries and thefts and some of the witnesses were allowed to testify that certain of this property had been reported stolen by the owners thereof; and that, later, after it was recovered, they had come to police headquarters and claimed and identified it.

There was much hearsay testimony of this kind introduced, over appellant's objections. One witness stated that Mrs. Brodie had identified one of the watches as her property and made an affidavit to that effect. The prosecuting attorney, in his closing argument, was also permitted to state that Mrs. Brodie had made an affidavit that the watch belonged to her and that she had claimed it at police headquarters.

The court instructed the jury, and from the judgment upon their verdict of guilty appellant brings this appeal.

Vaughan & Akers and Trimble, Robinson & Trimble, for appellant.

1. The evidence does not support the verdict, because there is no evidence tending to show guilty knowledge, and none from which such knowledge may be inferred; and because the proof was not that the property alleged to have been received by appellant was stolen, as alleged in the indictment, but that it was obtained by means of burglary. 24 Am. & Eng. Enc. of L. 45, 46, 47, 48 and 49; Kirby's Dig., § 1830; 78 Ark. 299; 191 Mo. 635, 4 Ann. Cas. 751, 752, 754; 105 Minn. 217; 32 Ark. 238. See also 58 Ark. 576, 578.

2. The court erred in admitting indiscriminate evidence of burglaries and assaults said to have been committed by the so-called "Jack the Shooter" in Little

Rock. 72 Ark. 586, 598; 92 Ark. 481; 84 Ark. 119; 75 Ark. 427; 54 Ark. 626; 191 Mo. 625; 21 Wend. (N. Y.), 86; 2 East. P. C. 780, § 163; 2 Strob., 273; 22 S. Dak. 550, 18 Ann. Cas. 192, and notes at p. 196.

3. Where improper and prejudicial language is indulged in by the prosecuting attorney and is objected to by the defendant, it calls for a reproof by the court of the offender, and an instruction withdrawing same from the jury's consideration, and where this is not done it is reversible error. 48 Ark. 130, 131; 58 Ark. 483; 61 Ark. 130; 63 Ark. 174; 65 Ark. 389; 71 Ark. 415, 416-18; 65 Ark. 619; 69 Ark. 648; 74 Ark. 210; 88 Ark. 579; 80 Ark. 23-30; 75 Ark. 577; 72 Ark. 138; Id. 247; Id. 461; 95 Ark. 233, 237; 70 Ark. 184; Id. 305; 48 Ark. 131, 132.

4. The State should have been required to elect upon which count of the indictment it would proceed, and the court erred in overruling appellant's motion to that effect. Kirby's Dig., § 2230; 32 Ark. 203; 33 Ark. 176; 34 Ark. 433; 36 Ark. 55; 90 Ark. 570; 92 Ark. 413.

5. The court should have given instruction 2, requested by appellant, to the effect that before the jury could convict they must find that appellant, at the time she received the articles, had knowledge that they were stolen; and that she was entitled to acquittal even if they found that after receiving the goods she discovered the fact that they were stolen, notwithstanding she tried to conceal them after discovering her brother was charged with their theft. 105 Minn. 217; 55 Fla. 90, 45 So. 818; 78 N. C. 484; 80 S. C. 387; 31 Tex. Crim. 210, 20 S. W. 356; 9 Cox C. C. (Eng.), 95; 116 Ga. 92, 42 S. E. 389.

That the court erred in refusing to charge the jury not to consider any statement made by the defendant in reference to the property in her possession which was inconsistent with her innocence, if made under threats to imprison her, etc., needs no citation of authorities.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee; John P. Streepey, of counsel.

1. Where there is any substantial evidence to sup