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(149 Ark. 559)

(232 S.W.)

FOSHEE et al. v. STATE. (No. 108.)

and as a punishment for the crime each was adjudged to serve one year in the state pen

(Supreme Court of Arkansas. July 11, 1921.) itentiary. From the respective judgments of conviction, each has duly prosecuted an ap

1. Criminal law 815(4)-Intoxicating liq-peal to this court. While the facts are someuors 224-Instruction, taking from jury what different, the vital question involved in question whether beer produced in distilling the appeals is the same in all the cases, so whisky is intoxicating before vapor passes the respective appeals will be treated in one through worm, erroneous, and no presumpopinion. tion relating thereto.

In a prosecution for making intoxicating liquors, an instruction that if defendant and others conspired to make whisky, erected a still and boxes, boiled the mash, placed it in the boxes to mature, and this was necessary in the manufacture of liquor, defendant would be guilty, was erroneous, as taking from the jury the question whether the beer produced in the process of distilling whisky is an intoxicating liquor, before the vapor or gas produced therefrom by use of heat passes through a worm or coil; there being no judicial presumption that such is the fact.

2. Criminal

law 1172(1)-Erroneous instruction as to intoxicating character of beer produced in distilling whisky prejudicial, despite evidence that defendants manufactured liquor at another still.

In a prosecution for making intoxicating liquor, an erroneous instruction to the effect that the beer produced in the course of distilling whisky before passing through the worm in the form of vapor or gas was intoxicating liquor within the statute was prejudicial, though there was evidence that defendants did manufacture intoxicating liquor at another still, since the jury may have acquitted them of the latter charge and convicted them on the for

mer.

3. Criminal law 1036(1), 1054 (1)-Admission of defendant's testimony against coconspirator not reversible error, where not objected or excepted to.

Though, under Crawford & Moses Dig. § 3122, where two or more persons are concerned in the commission of a crime, testimony of one against another may not be used against the former in a prosecution for the same offense, such use of such testimony was not reversible error, where it was admitted without objection or exception on his part.

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Pinnix & Pinnix, of Murfreesboro, for appellants.

J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State.

HUMPHREYS, J. Appellants were separately indicted, tried, and convicted at the March term, 1921, of the Pike circuit court for the crime of making intoxicating liquors,

The evidence on the part of the state in the cases of the appellants John W. W. Foshee, in case No. 2518, and Ed Ray, in case No. 2520, tended to show that they manufactured intoxicating liquor at a still near to, and between, the homes of each.

The evidence on the part of each appellant tended to show that he was not interested and did not manufacture intoxicating liquors at said still.

The evidence on the part of the state tended to show that all of the appellants entered into a contract to manufacture whisky at a still in said county, near the home of appellant George Meyers, on what was known as the "goat pasture"; and that, pursuant to the agreement, a still was set in the pasture, other necessary paraphernalia procured, ingredients obtained and converted into a liquid in the course of the process for making whisky. At the time of the seizure of the still, paraphernalia and product by the officers, no cap and worm were discovered, and the liquid produced had not been run through the worm.

In all the cases, except No. 2522, in whichC. C. Pounds is the appellant, the court, over the objection and exception of the respective appellant, instructed the jury as follows:

"If you find from the testimony in this case, beyond a reasonable doubt, that the defendant and others entered into a conspiracy to make some whisky, and the defendant and his associates built a still and boxes, hauled them to the still, set and arranged the still, prepared and boiled the mash, then placed it in the boxes to mature, and that this work was necessary in the manufacture of liquor, then the defendant would be guilty of manufacturing liquor, and you will so find."

In the Pounds Case, the following additional words were added to the instruction: "And that the malt or beer had become alcoholic or intoxicating to any extent."

The effect of these additional words, however, was rendered of no value by the modification made by the court in instruction No. 3, requested by the appellant Pounds. As modified, the instruction conflicted with the instruction given by the court.

[1] The instruction given by the court in each case and set out above was predicated upon the idea that, when the liquid, commonly called beer, was produced in the process of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-59

the distillation of whisky, it will be judicially said that the liquid is an intoxicating liquor, even before the vapor or gas, produced therefrom by the use of heat, passes through a worm or coil. No such presumption can be indulged. In the case of Lowery v. State, 135 Ark. 159, 203 S. W. 838, this court declared as a matter of law that the running of the liquid through the worm or coil once had the effect of producing spirituous or fermented liquor within the meaning of the statute prohibiting the distillation of spirituous or fermented liquors. As to whether the liquid or beer, before such treatment is intoxicating within the meaning of the statute preventing the manufacture of spirituous or fermented liquor, was a question for the jury. The instruction given took that question from the jury, and was erro

neous.

[2] It is contended, however, by the state that the evidence was sufficient to show that appellants John W. W. Foshee, in case No. 2518, and Ed Ray, in case No. 2520, manufactured intoxicating liquor at the still in said county, near to and between their homes. The evidence introduced in behalf of said appellants, in their respective cases, tended to show that they were not interested in and did not manufacture intoxicating liquors at

said still. We are unable to say whether the jury convicted them on the evidence adduced by the state, tending to show they made liquor at that still. For aught that can be said, the jury may have acquitted them of that charge, and convicted them of manufacturing intoxicating liquors at the still in the goat pasture, under the instruction which, in effect, told the jury that the beer, or liquor produced in the course of the distillation of whisky before passing through the worm in the form of vapor or gas, was intoxicating liquor, within the meaning of the statute prohibiting the manufacture of spirituous or fermented liquor.

[3] In the course of several of the trials, the state called the coconspirators to testify against their coconspirator then on trial, and the testimony given by each was afterwards used in the criminal prosecution against him. This did not constitute reversible error in the cases now before us, because the evidence was admitted as against the particular appellant then on trial without objection or exception on his part. For that reason, the contention now made by the several appellants that the court committed reversible

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In proceedings to establish a private road across another's land, under Crawford & Moses' Dig. §§ 5250-5252, evidence held to sustain a finding that the private road was necessary. 2. Appeal and error 931 (1)—Evidence must be viewed in light most favorable to appellee.

The Supreme Court, in testing the legal sufficiency of the evidence to sustain the findings of lower court, must view it in the light most favorable to the appellee.

3. Eminent domain 205-Evidence held to prove that damages from road did not exceed $25.

In proceedings to establish a private road over defendant's land under Crawford & Moses'

Dig. §§ 5250-5252, evidence held to justify a finding that damages to defendant did not exceed $25.

4. Private roads

2(1)-Statutes relating to establishment of private roads applicable to both unoccupied and occupied land.

Crawford & Moses' Dig. §§ 5250-5252, pro-. viding for establishment of private road over the lands of another, held applicable to all land whether occupied or unoccupied.

5. Private roads I-Established over another's land may be used by public.

A private road established by one owner of land over another's land under Crawford & Moses' Dig. §§ 5250-5252, providing for the establishment of such road whenever necessary, becomes a public road in the sense that it is open to the use of all who see fit to use it.

Appeal from Circuit Court, Madison Coun ty; W. A. Dickson, Judge.

Petition by Blunt Hanby against Arlie error in this regard is not tenable. Should Houston, to establish a road across defendsuch objection be made in the retrial of the ant's land. Petition granted, and damages cases, it would be improper to use the evi- awarded to defendant by county court, and dence given by one against others in a sub-by the circuit court on defendant's appeal, sequent prosecution against the one testifying. Section 3122 of Crawford & Moses' Digest is applicable to this character of evidence, and is as follows:

and defendant appeals. Affirmed.

Oscar H. Winn, of Little Rock, and H. R. Whyte, of Oklahoma City, Okl., for appellant. Combs & Combs, of Huntsville, for appellee.

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

(232 S.W.)

MCCULLOCH, C. J. This is a proceeding to have a road across appellant's land in originating in the circuit court of Madison order to haul the timber away from his own county on the part of appellee to establish a road from certain lands of appellee across lands of appellant to a public road. The proceeding is based on the statute which provides :

owner,

That if "the lands, dwelling house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling house or plantation to any public road or navigable water course over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such *** to appoint the viewers to lay off said road," and that, upon the report of the viewers, if "the court shall be of the opinion that it is necessary for the petitioner to have said road from his said lands, dwelling house or plantation to said public road or navigable water course, and said petitioner shall pay all costs and expenses accruing on account of said petition for such private road * * * an order shall be made establishing the same as a private road, not exceeding fifteen feet wide, and the person applying for such road may proceed to open the same." Crawford & Moses' Digest, §§ 5250, 5251, 5252.

The county court granted the petition of appellee, and upon the report of the viewers made an order authorizing the opening of the road across appellant's land. The viewers awarded damages to appellant in the sum of $25, which said award of damages the county court approved. Appellant prosecuted an appeal from this order to the circuit court. There was a trial of the issues as to the right of appellee to have the road established, and as to the amount of damages to be awarded, and the trial resulted in a judgment of the circuit court establishing the road in accordance with the order of the county court and awarding to appellant the same amount of damages as was awarded by the viewers in their report and by the county court in its judgment. An appeal has been duly prose

cuted to this court.

land. It appears from the testimony that there was an old road across appellant's land along the route now sought to be established-not a public road, nor a private way acquired by prescription, but that there had been a country road used to some extent by appellee and others and appellant stopped up this road by cutting timber across it, and refused to permit appellee to use it in hauling his logs. Appellant offered to open up another road around the edge of his place and permit appellee to use it, but the contention of appellee is that that road was an impractical one, by reason of the fact that the grade was too steep, the angles too sharp, and that it was too expensive to build bridges across the canyons.

[2, 3] There is a conflict in the testimony as to the amount of damage to appellant in · opening up the proposed road, but in testing the legal sufficiency of the evidence we must view it in the light most favorable to appellee's cause. The road viewers were introduced as witnesses by appellee, and there were certain other witnesses, and each of the parties testified themselves. According to the evidence adduced by appellee the proposed road runs about 125 or 150 yards through appellant's cleared land, i. e., a small field inclosed by a two-wire fence. At the time the road was laid out appellant had planted sugar cane. The viewers testified that the laying out of the road that way cut off a small patch of about three-fourths of an acre from the remainder of the field, and that the total damage, including the value of the land taken, and the inconvenience in using the remainder of the land, and loss of the crop, did not exceed $25. we think, sufficient evidence to justify the finding that the award of $25 was proper compensation to appellant for his injury.

There was,

of the statute is broad enough to include all [4, 5] It will be observed that the language lands, whether occupied or unoccupied, and, as said by this court in construing the stat[1] The only question presented for our consideration is whether or not there was evi-ute, a road established thereunder becomes dence sufficient to sustain the findings of the a public road in the sense that it is open to court upon the issues involved. The land of the use of all who see fit to use it. Roberts appellant over which the road is sought to be v. Williams, 15 Ark. 43; Pippin v. May, 78 established is a small farm in Madison county, Ark. 18, 93 S. W. 64; Carter v. Bates, 142 established is a small farm in Madison county, Ark. 417, 218 S. W. 838. In Pippin v. May, occupied by appellant as his homestead. Ark. 417, 218 S. W. 838. In Pippin v. May, Only a small portion of the land is in cultiva- supra, Judge Riddick, speaking for the court, tion, as we understand the testimony, though the amount is not shown. Appellee owns an adjoining tract containing 160 acres of uninclosed timber lands. He owns and operates a sawmill a few miles distant from this land, and at the time the present proceeding was inaugurated he was engaged in cutting the timber from his own lands and hauling it to his mill. He claimed that it was necessary

said:

"It being a public road, it was not, we think, required that plaintiff should establish an absolute necessity for such road by showing that he had no other means of reaching the public leading from his place to the public highway highway. The fact that there is already a road does not conclusively show that the road that he petitioned for is not necessary. termining whether such a road is necessary, the

(149 Ark. 502)

HARRISON ELECTRIC CO. v. CITIZENS'
ICE & STORAGE CO. (No. 95.)
(Supreme Court of Arkansas.

court must, of course, take into consideration
not only the convenience and benefit it will be
to the limited number of people it serves, but
the injury and inconvenience it will occasion
the defendant through whose place it is pro-
posed to extend it. After considering all these
matters, it is for the court to determine wheth-1.
er the road is, within the meaning of the law,
necessary or not."

In that case the facts were that the petitioner sought to establish a road over adjoining lands for a distance of about a quarter of a mile when he had the use of another road about three-quarters of a mile long, which, at certain seasons of the year, was boggy and difficult to travel. The judgment of the ciruit court was reversed on account of a declaration made by the court stating the law to be that

"One person is not entitled to a private road through the land of another, except in case of absolute necessity, and where he had no other way of ingress and egress."

In the recent case of Carter v. Bates, supra, the facts were, according to the undisputed evidence, that the land over which the road was sought to be established was a valuable farm which was tile drained, and that the establishing of the road and traveling over it would cause ruts to be formed, and the tiling broken and injurious consequences would inevitably result to the owner by establishing the road out of proportion to the expense and inconvenience of adopting another route.

July 11, 1921.)

12-Filing of

Public service commissions notice of change of rates with commission is notice to public.

Under Crawford & Moses' Dig. § 1612 (Acts 1919, p. 417, § 7), providing that persons and corporations operating public utilities shall not change their rates except after 30 days' notice to the corporation commission and the public stating the proposed changes, but specifying no method in which notice to the public is to be given, the filing of the schedule with the comtice both to the commission and to the public, mission in the prescribed form is sufficient noand section 6809, providing that when any legal advertisement or notice is required to be published and a definite time is specified, it shall be construed to mean once a week during the time so specified, has no application. 2. Public service commissions rates go into effect after 30 days without affirmative order of commission.

19(1)-New

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4. Constitutional law 135 Obligation of contract not impaired by new rates of electric light company having contract with consumer. electric light company and a consumer, fixing The obligation of a contract between an maximum rates, was not impaired by the putting into effect of new rates under Crawford & Moses' Dig. § 1612 (Acts 1919, p. 417, § 7), subject to the control of the corporation commission, as there could be no valid contract as against the power of public control by the commission.

In the present case there is testimony to A schedule of increased rates promulgated the effect that appellant was injured only to by an electric light company and filed with the the extent of $25, by establishing the road corporation commission under Crawford & Mosalong the proposed route, and that he suses' Dig. § 1612 (Acts 1919, p. 417, § 7), supertained less injury to his farm than by adopt-lished between the company and a consumer. seded any contractual rates theretofore estabing the other road which he was willing to give around the edge of his place. It is also shown that the road which appellant proposed to give around his place was along a very steep grade, and that there were sharp angles which rendered it impossible to haul logs that way. It was also shown that it would cost from $500 to $1,000 to build bridges across the canyons. There was testimony also that appellee could get out to a public road by traveling about two and a half miles, but appellee and some of his witnesses testified that it was impracticable to get the timber out by hauling it along that route. Appellee, after stating the facts with reference to the location of the proposed road and of the other road named, gave his positive opinion that the use of this road was a necessity in affording ingress and egress to and from his land.

We think the evidence is legally sufficient to sustain the findings. Judgment affirmed.

F. McMahan, Chancellor.
Appeal from Boone Chancery Court; B.

Suit by the Citizens' Ice & Storage Company against the Harrison Electric Company. From a decree for plaintiff, defendant appeals. Reversed and remanded, with direc

tions.

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

(232 S.W.)

MCCULLOCH, C. J. Appellant is a domes- | own initiative, upon reasonable notice, to entic corporation owning and operating the ter upon a hearing concerning the propriety of electric light plant at Harrison, Ark., and ap- such rate, charge or regulation; and pending pellee, Citizens' Ice & Storage Company, is such hearing, and the decision thereon, the coman industrial consumer of electric current, mission upon filing with such schedule, and deand a patron of appellant. Appellee claims livering to the carrier or carriers or public service corporation affected thereby, a statethe right under a contract with appellant's ment in writing of its reasons for such suspenpredecessor to obtain electric current for sion, may suspend the operation of such schedits manufacturing plant at the maximum ule and defer the use of such rate or charge, rate of $400 per month. Appellant changed but not for a longer period than six months the rate on April 1, 1920, after having filed beyond the time when such rate, fare or charge, the same with the corporation commission, or regulation would otherwise go into effect; but appellee refused to pay the increased and after full hearing, whether completed berate. Appellant then cut off the supply of fore or after the rate, charge or regulation goes electric current, and appellee instituted der in reference to such rate, fare, charge, or into effect, the commission may make such or this action in the chancery court of Boone regulation as shall be deemed proper and just. county to enjoin appellant from cutting off Provided, that if said commission shall susthe current, and to recover damages in the pend the operation of any such schedule, and sum of $2,000 for the interference with its defer the use of such new rate or charge, as business in cutting off the current. Appellant herein described, then the person, firm or coranswered, setting up its change of rates pur- poration making such new rate may file with suant to the statutes and under authority the commission its bond, to be approved by the from the corporation commission. On the commission, conditioned that it will pay over final hearing of the cause the chancery court in money to the commission for the use and decided that the change of rates was void, for to, the difference between the sums it shall colbenefit of the persons or patrons entitled therethe reason that proper notice had not been lect under such new rate and the sums which given by appellant in accordance with the would have been collected under the rate finalstatute, and rendered a decree in favor of ly adjudged reasonable and just, with interest appellee, enjoining appellant from maintain- upon such difference at the rate of eight per ing the increased rates, and for the recov-centum per annum. Upon the filing of said ery of damages in the sum of $100.

The contention of appellee in support of the court's decree is that the statute creating the corporation commission and conferring jurisdiction over public utilities requires that before a rate can be changed there must be an affirmative order by the commission authorizing it, and that there must be a notice published weekly for 30 days, and that the statute was not complied with in either of these respects. We think that this is not the proper construction of the statute. Crawford & Moses' Digest, chapter 37; Acts 1919, p. 411. The statute confers jurisdiction on

the commission over all public utilities in the state, with power to control and regulate rates of charges and other matters in connection with service to the public. Section 7 of the act of 1919, which is section 1612 of Crawford & Moses' Digest, reads as follows:

"No person, firm or corporation subject to the provisions of this act, shall modify, change, cancel or annul any rate, joint rates, fares, classifications, charge or rental, except after thirty days' notice to the commission and the public, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares or charges shall go into effect; provided, the commission may enter an order prohibiting such person, firm or corporation from putting such proposed new rates into effect pending hearing and final decision of the matter by the commission, and, whenever there shall be filed with the commission any schedule proposing a change in any rates, charges or regulations, the commission shall have, and it is hereby given authority, either upon complaint or upon its

bond, the order of the commission suspending such new schedule or charge shall become inoperative until final adjudication of the matter."

[1] It will be observed that, while the statute provides that no change in the rates shall be made "except after 30 days' notice to the commission and the public," there is no specification as to the method in which the notice is to be given. The contention of counsel for appellee is that the provision for notice in this statute is controlled by the provision of the statute with reference to the length of time for publishing legal notices (Crawford &

Moses' Digest, § 6809); but this contention is

obviously unsound, for the reason that the section just cited only fixes the number of publications, and does not supply any other defects in an imperfect provision for notice. The section we are now dealing with does not specify either the method or place of the publication. The only reasonable interpretation of the statute is that the framers meant tion of the statute is that the framers meant that the filing of the schedule in the prescribed form with the commission was sufficient notice to the commission and to the public. This is in accord with our decisions to the effect that notice must be taken of all proceedings and regulations promulgated by public boards. Kansas City Southern Ry. Co. v. State, 90 Ark. 343, 119 S. W. 288; Cazort v. The State, 130 Ark. 453, 198 S. W. 103. statute is patterned, to a considerable extent, after the federal statute creating the Interstate Commerce Commission, and regulating its proceedings, and it has been decided

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