Tobin et al. vs. Jenkins et al. If the statement of this witness is true, then we must sup. pose that Nathan Jenkins had either changed his mind with regard to having James write his will, or that his mind had been influenced by others to induce him to make the change. It was the province of the jury to weigh this evidence, and in view of their means of information, and the interest which the witnesses might be supposed to have in the issue, they were called to try to determine its weight, and to give it place when making their verdict. The testimony, if given full credit, shows very clearly, that the testator, for some cause, was unwilling to trust Owen to write another will for him, and that when the first will was made, he was procured to write it in preference to James, in whom he had more confidence; that his son, one of the principal devisees was not willing for him to have any one but Owen, and when the testator told the witness that he intended to have a will written as he pleased, we are left to infer that the first will was written contrary to the testator's wishes. What credit is to be given to this evidence was a matter for the jury to determine, and had direct bearing upon the question of undue influence, and of fraud in the procurement of the will. All that the complainants asked of the court was this: That if found true, it was a proper subject for their consideration, and the court clearly erred in refusing to give it. The ninth and last instruction asked by the complainants, and refused by the court, is: That an unequal disposition of the testator's property to his heirs creates a suspicion against the testament, and requires strict proof of fairness in its execution and of capacity to make it. There can be no doubt but that failure of a testator to make a fair distribution of his estate amongst his children, at once arouses inquiry as to the probable cause of so unnatural an act. That provision by way of advancements had been Dixon vs. The State. made to part of the children, or that some of them were prodigal, or disobedient, is at once looked into by the inquiring mind. Suspicion is aroused, and this unnatural devise is always a circumstance which should go to the jury; but we think that the terms, strict proof of fairness, tended to induce the jury to attach unnecessary importance to this circumstance, which, though properly given as such, does not necessarily require for this cause strict proof, or stricter proof, than other circumstances. We think the instruction properly refused. The remaining ground for a new trial is, that the jury found contrary to evidence. Without summing up the evidence, or attempting to decide on which side there was the greater weight of evidence, it may suffice to say that if this was the only ground assigned for granting a new trial, we would not disturb the verdict. But for the several errors which we have found in the progress of our investigation, the judgment and decision of the court below must be reversed and set aside, and the cause remanded with instructions to grant to the complainants a new trial; that the court make up an issue of devisavit vel non to be tried by a jury. DIXON VS. THE STATE. 1. PRESUMPTIONS: In favor of circuit court. When the circuit court set aside the regular panel of grand jurors, and had another summoned; and the record fails to disclose the ground of its action, this court will presume that it was done for good cause. 2. WAIVER: Of irregularity in formation of the grand jury. 3. INDICTMENT: Form of. Dixon vs. The State. A statement, in the indictment, of the facts necessary to constitute the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is in. tended, is all that is required. 4. THE RECORD: Need not recite facts already appearing. An order changing the venue in a criminal cause need not set forth the ground thereof, the same appearing in the petition, which is a part of the record. 5. CIRCUIT COURT: Authority for holding special terms of. The authority for holding a special term of the circuit court, for the trial of persons confined in jail, is complete when it appears there were persons in jail awaiting trial before the court, that the time fixed did not interfere with any other court to be held by the judge, and was not within twenty days of the regular term; and that the judge, ten days before the time fixed, made an order therefor, which was transmitted to the clerk and by him entered upon the record; and an omission to notify the prosecuting attorney, ten days before such term, would not affect the jurisdiction or the rights of a defendant. 6. VERDICT: Form of. The verdict of the jury may be announced orally and entered by the clerk upon the record; and if in writing and responsive to the is. sue, it is sufficient, without the formula, "in manner and form," etc. APPEAL from Hot Spring Circuit Court. Before the Judge of the Circuit Court of Hot Spring county. Wilshire & Allen, for the appellant. The Attorney General, contra. HARRISON, J. The appellant was indicted in the circuit court of Clark county for the murder of Nathaniel Y. McCall. Upon his application to the court, the venue was changed to Hot Spring county, in the circuit court of which, at a special term begun and held on the 23d day of March, 1874, he was tried and convicted of murder in the first degree. He filed a motion for a new trial, which was overruled; he Dixon vs. The State. then moved in arrest of judgment, and that motion being also overruled, judgment of death was pronouced against him. The first cause assigned for the arrest of judgment was, illegality in the formation of the grand jury. It appears from the record that the court, upon the motion of the prosecuting attorney, set aside the panel of grand jurors that had been summoned for the term, and orderd another to be summoned, from which latter the grand jury was formed; but the ground upon which the first panel was set aside is not disclosed. In the absence of any showing in regard to it, we must presume it was done for good and sufficient cause; yet, if it did appear that it was improperly set aside, and a valid objection to the grand jury on that account existed, the defendant, by pleading to the indictment, without moving to set it aside, waived it. Gantt's Dig., secs. 1829, 1831; State v. Brown, 10 Ark., 81; Wilburn v. The State, 21 id., 199; McQuillen v. The State, 8 Smedes & Marsh, 587; 1 Chit. Crim. Law, 309; Whart. Crim. Law, 173. The second was: That the "indictment did not allege facts sufficient to constitute a public offense." The indictment is as follows: "INDICTMENT-In Clark Circuit Court. February term, 1874. The State of Arkansas against Giles Dixon. The grand jurors of Clark county, in the name and by the authority of the state of Arkansas, accuse Giles Dixon of the crime of murder in the first degree, committed as follows, to-wit: the said Giles Dixon, in the county aforesaid, on the 30th day of December, A. D., 1873, did willfully, feloniously, of his malice aforethought, with premeditation, by lying in wait, kill and murder one Nathaniel Y. McCall, then and there being, by shooting him, the said Nathaniel Y. McCall, with a certain gun, which he, the said Giles Dixon, in his hands Dixon vs. The State. then and there held, the same being loaded with gunpowder and leaden bullets, with intent, him, the said Nathaniel Y. McCall, then and there to kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Arkansas. "DUANE THOMPSON, Prosecuting Attorney." "It is a general rule," says Wharton, "that the special matter of the whole fact should be set forth in the indictment with such certainty, that the offense may judicially appear to the court." Whart. Crim. Law, 116. The indictment above set out, though not containing that minute detail of circumstances attending the killing, usually found in indictments for murder, alleges every fact or ingredient of murder of which proof is required, and the manner; and the means of the perpetration of the crime are so clearly set forth that the accused could not possibly fail to know the specific charge against him, and what he had to meet and contest upon the trial. A statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, is all that is required. Gantt's Dig., secs. 1781, 1782, 1796. There is a material difference between this case and the case of Thomson v. The State, 26 Ark., 323. In that case the manner of killing was not shown; the indictment only alleging it to have been done "with a double barreled shot gun, loaded with gunpowder and leaden bullets," leaving it uncertain whether by shooting or beating, two modes so materially different that evidence of one would not be proof of the other. In this, no such uncertainty exists. The indictment directly charges the murder to have been committed by shooting, and the defendant was fully apprised of the nature of the evidence that would be required to prove the act. |