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time limit and extending over beyond it, for that question does not arise here. The county court heard the complaint in this case and rendered a judgment fixing the amount of appellant's assessment and later, without notice and after the lapse of the statutory time limit, undertook to make a new order. We are of the opinion that the order was void, and that appellant's taxes should have been extended on the books at the amount which the county court fixed by its first order.

[2] It does not follow, however, that appellant has adopted appropriate proceedings to recover the excess. The case of Sanders v. Simmons, 30 Ark. 274, was precisely like this, except that the assessment of the plaintiff's property was fraudulently raised by forgery after it had been fixed by the board of equalization. He paid the amount so extended and sued the collector for the amount; but this court held he was not entitled to recover, for the reason that his complaint contained no allegation that the collector still held the funds in his hands.

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JARRETT v. JARRETT et al. (No. 319.) (Supreme Court of Arkansas. May 18, 1914.) 1. HOMESTEAD (§ 135*)-RIGHT TO HOMESTEAD -REMARRIAGE BY WIDOW.

Where a husband died in 1869, the rights

of his widow and minor children in his homestead are fixed by Const. 1868, art. 12, § 5, and hence, under the direct provisions of that article, the widow's remarriage after her children had reached their majority worked an abandonment of the homestead.

[Ed. Note.-For other cases, see Homestead, Cent. Dig. §§ 246-248; Dec. Dig. § 135.*] 2. ADVERSE POSSESSION (§ 62*)-WHAT CON

STITUTES.

Where a widow, after abandoning, by remarriage, her homestead rights in land of her deceased husband, remained in possession by virtue of her quarantine rights given by Kirby's Dig. § 2704, her possession was not adverse to the husband's heirs.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 324-327, 329-332; Dec. Dig. § 62.*]

as his widow shall remain unmarried, the homestead cannot be validly sold for payment of debts until after the widow's remarriage.

[Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 261-270; Dec. Dig. § 141.*]

4. PLEADING (§§ 193, 367*)—DEFECTS-ATTACK -MOTION.

Where the complaint was sufficient to inferentially show that the land in suit was the that it did not directly allege that fact must homestead of plaintiff's ancestor, the defect be raised by motion to make more certain, and not by demurrer.

[Ed. Note.-For other cases, see Pleading, 1193; Dec. Dig. §§ 193, 367.*1 Cent. Dig. §§ 64, 425, 428-435, 437-443, 1173–

Appeal from Circuit Court, Randolph County; John W. Meeks, Judge.

Action by Louis C. Jarrett against W. H. Jarrett and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

R. P. Taylor, of Paragould, and C. H. Henderson, of Pocahontas, for appellant. S. A. D. Eaton, of Pocohontas, for appellees.

MCCULLOCH, C. J. This is an action at law, instituted by appellant, to recover a tract of land in Randolph county, Ark., containing 160 acres; the parties to the action all claiming title from a common source, one H. C. Jarrett, who died on November 4, 1869, while occupying the land as his homestead. He left several children, all of whom are parties to this action, and a widow, who died in the year 1909. The widow occupied the land with her children until she remarried in the year 1884, when she and the children removed therefrom, but the widow continued to hold possession of the land through her tenants and collected the rents up to the time of her death.

There was an administrator of the estate of H. C. Jarrett, one Thomas Simington, who sold the lands under order of the court to pay debts on December 18, 1877, one Thomas Foster being the purchaser at the administrator's sale, and he subsequently conveyed to

one of the defendants in this case.

The defendants pleaded the bar of the statute of limitation, and also defend under the conveyance to one of them from the purchaser at the administrator's sale. The court gave a peremptory instruction in favor of the defendants, and the plaintiff has appealed.

[1] The rights of the parties are to be determined by the homestead laws of the state which existed at the time of the death of H. C. Jarrett in the year 1869. That was under the Constitution of 1868, which provided that the homestead of the owner should, after his death, "be exempt from the payment of his debts in all cases during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right." Section 5, art. 12, Constitution 1868.

3. HOMESTEAD (§ 141*)-SALES.

Under Const. 1868, art. 12, § 5, providing that the homestead of the owner shall, after his death, be exempt from payment of his debts during the minority of his children, and so long

The homestead was not subject to sale for 2. MALICIOUS MISCHIEF (§ 1*)-ELEMENTS OF the debts of the decedent until the widow

OFFENSE-INTENT.

abandoned it by remarriage in the year 1884. It does not appear from the pleadings or proof that any of the children were minors at that time, and the remarriage of the widow operated as an abandonment of it as a homestead.

[2] Notwithstanding her abandonment of the land as a homestead, she still had the right to occupy the premises through her tenants by virtue of her quarantine rights under the statute. Kirby's Digest, § 2704. Her occupancy was therefore not adverse to the heirs, and the statute of limitation did not begin to run against any of them so long as the occupancy of the widow continued. Brinkley v. Taylor, 163 S. W. 521.

[3] The administrator's sale to Foster was void for the reason that the probate court was without jurisdiction to order it prior to the abandonment by the widow. McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71; Bond v. Montgomery, 56 Ark. 563, 20 S. W. 525, 35 Am. St. Rep. 119.

[4] It is insisted by counsel for defendant that the allegations of the complaint are not sufficient to show that the property was the homestead of H. C. Jarrett at the time of his death; it being contended that the allegations only state conclusions of law on that subject.

misdemeanor to deface, disfigure or damage any Under Kirby's Dig. § 1923, making it a part of a church, specific intent to injure is not an element of the offense, which is complete when the act is done regardless of the

intent.

SAFFELL v. STATE. (No. 311.) (Supreme Court of Arkansas. May 11, 1914.) 1. MALICIOUS MISCHIEF (§ 4*)-SUFFICIENCY OF INDICTMENT-"DEFACE, DISFIGURE, OR DAMAGE."

Under Kirby's Dig. § 1923, making it a misdemeanor to deface, disfigure, or damage any church or public building, and in view of section 2233, providing that where an offense involves the commission of an injury to property, and is described with sufficient certainty to identify the act, an erroneous allegation as to the person injured is not material, an indictment charging that defendant willfully and maliciously tore down and removed a church building, which was public property, was sufficient; the name of the owner not being necessary, and the words "injure, tear down, and remove" being broad enough to include the words "deface, disfigure, or damage."

[Ed. Note.-For other cases, see Malicious Mischief, Cent. Dig. §§ 1-5; Dec. Dig. § 1.*] 3. MALICIOUS MISCHIEF (§ 1*)-PROPERTY IN

JURED.

Under such provision, one indicted for injuring and removing a church building was none the less guilty because the building was

also used as a schoolhouse.

[Ed. Note.-For other cases, see Malicious Mischief, Cent. Dig. §§ 1-5; Dec. Dig. § 1.*]

4. CRIMINAL LAW (§ 1137*)—APPEAL-ESTOPPEL TO ALLEGE ERROR.

In a prosecution for willful and malicious injury to a church, where defendant himself testified that he had donated the site for church it was used for a schoolhouse as well as for purposes, he could not on appeal complain that church purposes.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*]

Appeal from Circuit Court, Lawrence County; R. E. Jeffery, Judge.

John A. Saffell was convicted of maliciously and mischievously injuring, tearing down, and removing a certain church building, being public property, and he appeals. Af

firmed.

We are of the opinion, however, that the allegations of the complaint are sufficient, McCaleb & Reeder, of Batesville, for apinferentially at least, to establish the home- pellant. W. L. Moose, Atty. Gen., and Jno. stead right, and that, in order to properly P. Streepey, Asst. Atty. Gen:, for the State. raise the defects in the complaint, a motion to make more definite and certain would be required. No such motion was presented, and the evidence establishes specifically all the facts necessary to make the property the homestead of H. C. Jarrett at the time of his death. We are of the opinion, therefore, that the court erred in giving a peremptory instruction in favor of the defendants.

Reversed and remanded for a new trial.

WOOD, J. [1] The appellant was convict · ed on an indictment which charged as follows:

"That the said J. A. Saffell, in the district, county, and state aforesaid, on the 30th day of December, 1913, did unlawfully, willfully, maliciously, and mischievously injure, tear down, and remove a certain building known as the Harmony church building, the same being public property," etc.

Appellant demurred to the indictment. The court overruled the demurrer, and appellant urges this ruling of the court as one of his grounds for reversal.

The statute under which appellant was indicted is as follows:

"To cut, write upon, deface, disfigure or damage any part or appurtenance or the inclosure

of the state house, or any other building belonging to the state, or of any church or schoolhouse, or other public building, or to any citimisdemeanor punishable by a fine not exceeding zen of this state, when not occupied, shall be a one hundred dollars." Kirby's Dig. § 1923.

The indictment was sufficient to charge the offense under the above statute. The name

of the owner of the church was not necessary to identify the crime at which the statute was leveled. The language of the statute does not require the name of the owner to be mentioned. To charge in the language of the statute, or in words of the same purport,

[Ed. Note.-For other cases, see Malicious Mischief, Cent. Dig. §§ 7-11; Dec. Dig. § 4.*]

that one disfigured or damaged any church even if it had been abandoned for church house was sufficient.

"Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material." Kirby's Dig. § 2233.

The indictment was sufficient to advise the appellant of the crime with which he was charged, and he was not prejudiced because of the failure to use the precise words of the statute. See Kirby's Digest, § 2229.

[2] 2. The appellant complains because the court refused to allow him to testify that in tearing down the building he did not have any intention of injuring anybody. To constitute the offense charged, it was not necessary that the appellant should have had the specific intention of injuring any one. A specific intent to injure some one is not an ingredient of the crime charged, and, if one tears down, injures, or damages a church house, he is guilty, under the statute, of a misdemeanor, whether he intended to injure any specific individual or many individuals or not. The offense is complete when the act is done, regardless of the intent of the offender in the commission of the unlawful act.

purposes. The undisputed evidence showed that the house alleged was a church house, named Harmony Church, and that it was torn down by appellant.

BRYAN et al. v. STATE.

Even if the indictment had erroneously designated the particular denomination, or the trustees thereof holding the title for the (No. 306.) members of the church, still the indictment (Supreme Court of Arkansas. May 11, 1914.) would not have been defective on that ac-1. BALL (§ 77*) — Judgment of ForFEITURE count. The words "injure, tear down, and TIME. remove" are certainly broad enough to include the words "deface, disfigure, or damage."

[3] There was testimony to the effect that the church house was also used as a schoolhouse. Appellant complains because the court refused to grant prayers for instructions to the effect that the appellant would not be guilty by reason of the school district having occupied the building for school purposes. The ruling of the court in refusing these prayers was not prejudicial error. Appellant was not charged with injuring a schoolhouse, and there is no contention that the building alleged in the indictment was not a church house. Therefore appellant would be none the less guilty because the property was also a schoolhouse as well as a church house.

[4] The appellant is in no attitude to complain because the court refused to submit the issue as to whether the house mentioned was used for a schoolhouse as well as for church purposes. Appellant himself testified that he donated the site for church purposes and executed a deed to three trustees. There is nothing to show that the land was ever econveyed to the appellant, and the testimony warranted the jury in finding that the use of the building had not been abandoned for church purposes. There was nothing to show that the title was to revert to the appellant,

There is no error in the record, and the judgment is affirmed.

Where a bail bond was declared forfeited, plicates of the pleadings filed by them, and which a consent order requiring the sureties to file duhad been destroyed, on or before October 25th, constituted leave to appear on that day and postponed further proceedings until then, and ment against the sureties before that date; it was improper for the court to render judgbut such judgment would not be set aside because of its premature rendition, unless the sureties appeared at the day fixed and tender

ed a defense.

[Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.*] 2. BAIL (§ 79*)-DEFAULT-DEFENSES.

A showing by sureties on a bail bond conditioned that the principal would appear on March 24, 1913, that the principal resided in Omaha, Neb., and returned there when released on such bond and remained there until March 19th, with every intention of appearing, that in March a tornado occurred in Omaha, and that on his failure to return they made and that the principal has not been seen since, vigorous search for him at a considerable expense amounted only to a showing that the principal disappeared, and that the sureties had from liability on the bond. been unable to find him, not exonerating them

[Ed. Note. For other cases, see Bail, Cent. Dig. §§ 350-369; Dec. Dig. § 79.*]

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Appellants were sureties on the appearance bond of one Charles Wilt, who was under indictment returned by the grand jury of Garland county on the charge of grand larceny. The bond was in the usual form, conditioned that the principal, Charles Wilt. should appear at the first term of the Garland circuit court to be held thereafter on the 24th day of March, 1913, and not depart without leave, etc. Wilt failed to appear, and on March 25th, the second day of the term, a forfeiture was declared. Process

was duly issued and served on the sureties, | terms of said telegram, they at once instituted summoning them to appear and answer on vigorous search for said defendant Chas. Wilt, the 1st day of the September term, which and have continued said search from that time until this; they have expended many hundreds convened on September 22, 1913. The court- of dollars in said search, and have spent hunhouse of Garland county was in the mean- dreds of dollars spreading broadcast his phototime partially burned, and some of the rec- graph and descriptive matter, together with a reward for his apprehension; that on said 19th ords destroyed, and the court entered an day of March, so far as the information of each order on the first day of the term, by con- of these defendants goes, he has dropped out of sent of the parties, giving leave to the at- existence, and has not been seen or heard of torney for the state to file duplicates of the from that day until this; that these defendants are not and were not insurers of the appearpleadings on or before the 15th day of Octo-ance of the defendant, and ought not to be held ber, 1913, and "that the defendants be and liable where defendant was beyond his own conthey are hereby required to file a duplicate trol the control of the defendants the bondsor substituted copy of all such pleadings as the defendants may have heretofore filed in this cause on or before the 25th day of October, 1913." On October 15, 1913, the court being in session that day, the case was called, and, in the absence of the sureties, judgment was rendered against them for the amount of the bond. On October 25th the sureties appeared, filed an answer, and moved to set aside the judgment, which motion the court overruled, and an appeal was ob

men."

tained.

[1] The judgment of the court rendered on October 15th recites that there were no lost pleadings to be amended, and we assume that the recital correctly states the facts; but the order of September 22d nevertheless constituted leave to the sureties to appear on October 25th and postponed further proceedings until that day. It was improper for the court to render judgment before that date; but, unless the sureties tendered a defense when they appeared on October 25th, the judgment should not have been set aside because of the premature rendering of the original judgment.

[2] It becomes necessary, therefore, to examine the answer of defendants to determine whether or not a defense was tendered, and that is the sole question presented on this appeal. The only statements in the answer concerning the failure of the principal in the bond to appear are as follows:

It will be observed that the date of the

tornado in Omaha is not alleged, so that the
court could determine whether it interfered
with his appearance in Hot Springs on the
24th day of March, 1913, nor does the an
Swer contain a distinct and sufficient allega-
tion that Chas. Wilt lost his life at that
time. Taking the statements as a whole,
they only show that defendant Wilt disap-
peared on the day before the tornado at
Omaha, and that the sureties have been
This did not constitute
unable to find him.
exoneration from liability under the bond.
Adler v. State, 35 Ark. 517, 37 Am. Rep. 48.

The judgment of the circuit court was therefore correct, and the same is affirmed.

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Where, in a prosecution for rape, prosecutrix testified for the state, it was proper crossexamination to ask her if she had not been guilty of prior acts of intercourse with others, to affect her credibility as a witness.

"That the defendant Charles Wilt resided in Omaha, Neb.; that he came to the city of Hot Springs from Omaha, Neb., and returned thereto when released on said bond, about the 20th day of January, 1913, and continued in Omaha, Neb., until the 19th day of March, 1913, when he intended to start for the said city of Hot * * * that Springs to attend said court; on the day of March, 1913, there was a very disastrous tornado and storm, causing a fire which spread over the city of Omaha, causDeing large destruction of property and life. fendants further allege that the defendant Chas. Wilt had every intention and made every effort to keep and perform all the conditions of said bond and render himself in jurisdiction of this court, as by law required, but that he was prevented from doing so by conditions over which he nor none of these defendants had control; that from all of the circumstances it is apparent, and these defendants allege, that the said Chas. Wilt for some reason, unknown to these defendants, failed to start from Omaha until said tornado and fire, and lost his life therein. These defendants further allege that upon his failure to arrive, according to the

The appellant was convicted of the crime of carnal abuse alleged to have been com mitted by carnally knowing one Mittie Spen

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.*]

3. CRIMINAL LAW (§ 1162*)—APPEAL-RUL

INGS ON EVIDENCE.

Accused could not object on appeal to the exclusion of questions asked prosecutrix on cross-examination as to prior acts of intercourse with others, where no attempt was made to show that the witness, if allowed to answer, would have confessed her incontinency, or that defendant believed she would have so testified.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3085; Dec. Dig. § 1162.*]

Appeal from Circuit Court, Columbia County; C. W. Smith, Judge.

Sam Garrard was convicted of rape, and he appeals. Affirmed.

cer, a female under the age of 16 years. At determining which witness they would bethe time appellant was alleged to have had lieve. The specific acts which may be inquirsexual intercourse with this girl, she was ed about on cross-examination must be renot quite 16 years old, and it is only con- cent and must be of such nature as that tended that he had intercourse with her on their commission would have some relation one occasion, and the circumstances under to the present credibility of the witness, and which this act of intercourse is said to have we think the excluded question was proper occurred are such as to raise serious ques- in that connection. But this was a collateral tion as to the veracity of the witness. The question, and, as such, the cross-examination appellant denied ever having had sexual inter- concluded the inquiry. course with the prosecuting witness, and she [3] However, as was said in the King Case, did not tell any one that he had ever done supra, the appellant has not complied with so until some months thereafter, and it does the rules of this court to secure a reversal not appear why she told it when she did, as of the case on account of the action of the she has never been pregnant. On her cross-trial judge in excluding the evidence. No examination she was asked the following attempt was made to show that the witness, question: if allowed to answer, would testify that she had had sexual intercourse with other men, nor does he state that he believes she would have so testified, and, there being no such showing, no prejudice resulted to appellant. This may have been a mere "fishing ques"Q. Have you had any intercourse with any tion," and appellant may not have had any other man either prior or subsequent to the serious expectation that the witness would time that you had intercourse with the defend-make a favorable admission, and may have ant, Sam Garrard?"

The court sustained an objection to this question, whereupon she was asked the following question:

had no reason to believe the witness was guilty of having had intercourse with other men. At any rate, the court was not so advised.

"Q. Have you had any intercourse before with any other man?"

An objection to this question was sustained, and appellant duly excepted. Appellant did not attempt to show what answer he expected to receive as a result of this question, and there is nothing to indicate that he expected the witness to admit her incontinence, if she was permitted to answer, and answered the question truthfully.

C. W. McKay, of Magnolia, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streep-| ey, Asst. Atty. Gen., for the State.

SMITH, J. (after stating the facts as above). We have here the exact question de cided in the case of King v. State, 106 Ark. 160, 152 S. W. 990, and the question arises upon a record identical with the record in that case, and consequently this case is ruled

by that one and must be affirmed.

There being no other error complained of, the judgment is affirmed.

PRESCOTT & N. W. R. CO. v. THOMAS:
(No. 321.)
(Supreme Court of Arkansas. May 18, 1914.)
1. EVIDENCE (§ 127*)-HEARSAY-EXCLAMA-
TIONS OF PAIN.

Involuntary exclamations of pain because of an injury, though occurring several weeks thereafter, are admissible in evidence as to the extent of the injury, but narrative statements by the injured party as to the injury are pure hearsay and inadmissible.

Cent. Dig. §§ 377-382; Dec. Dig. § 127.*]
[Ed. Note.-For other cases, see Evidence,

2. CARRIERS (§ 247*)-CARRIAGE OF PASSENGERS-DEGREE OF CARE.

The duty of a railroad company to exercise for the benefit of passengers the highest degree of care reasonably consistent with the operation of its trains continues until the passenger has alighted from the train.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.*] 3. CARRIERS (§ 303*)-CARRIAGE OF PASSENGERS-DEGREE OF CARE.

Where a passenger slipped upon seeds upliable, unless its servants knew of the presence on the step of defendant's car, defendant is not of the seeds and negligently failed to remove them, or the seeds had been on the steps of the car for such a length of time that the trainhave discovered their presence. men, in the exercise of ordinary care, should

[1, 2] We there held that this evidence was competent, not as a matter of defense, because the unchastity of the female is not a defense, but that it was competent to be considered as a matter of mitigation, and also as bearing upon the credibility of the witness. The jury would have the right to say, under the circumstances of each particular case, whether such admission should mitigate the punishment to be imposed upon one whom they had found guilty of this offense.

In the present case the jury imposed the lowest penalty allowed by law, and it is said, therefore, that no prejudice could have arisen from the exclusion of this answer. But this was a proper question to be asked upon cross-examination, as bearing upon the credibility of the witness. There was sharp question of veracity between her and the appellant, and the admission, if it had been made, that she was a person of loose character might have influenced the jury in

a

ITY TO EVIDENCE.

In an action by a passenger who slipped upon seeds on the step of defendant's car, where

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226–1232, 1234-1240, 1243; Dec. Dig. § 303.*]

4. CARRIERS (§ 321*)-INJURIES TO PASSENGER ACTION INSTRUCTIONS APPLICABIL

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