control of the business by the advancing concern, may furnish a basis for a reasonable inference that the business was owned or operated by the concern which advanced the money. We think the facts and circumstances in the instant case were sufficient from which the court and jury might well draw an inference that the business at Index was owned or operated by appellant. 1, 1923. Appellee was a property owner residing in the district, and sought the injunc tion upon several grounds, only one of which we shall discuss, as it sustains the decree of the chancellor enjoining the appellants from proceeding with the improvements under contract with the Western Construction Company and enjoining them from delivering the bonds to the Industrial Investment Company or any other person. The allega No error appearing, the judgment is af- tion and testimony introduced in support firmed. AVERITT et al. v. DODD. (No. 174.) (Supreme Court of Arkansas. Oct. 13, 1924.) 1. Highways 103-Commissioners not authorized to materially change route. Road commissioners may not adopt route for road materially different from that prescribed by act creating district. 2. Highways 103, 113(3) — Departure in route material and unauthorized, voiding contract and sale of bonds. Departure in route of road adopted by road commissioners from that prescribed in act creating district held material, rendering void contract for road construction and sale of bonds. 3. Judgment 715(3)-Not res judicata because not involving same issue. Decree for defendants in suit to enjoin road commissioners, in which the only issues were whether act creating district was constitutional, and assessment and levy of benefits arbitrary and confiscatory, did not preclude a second injunction suit in which the issue was whether the commissioners had made a material change in the route of the road. thereof, which sustains the decree, is that the plans, specifications, and contract provided for the construction of a highway along a different route than that specified and described in the act creating said district. The route provided for in the act creating the district was the public road known as the Mena and Womble road. The act described it as the public road leading from Mena to the Montgomery county line, leading to certain places and through certain townships. There were two public roads leading to Big Fork; one by Opal and the other by Bog Springs. The commissioners were authorized to follow either road at this particular point. Under the authority conferred upon the commissioners they had no power to materially deviate from the route in constructing the improvement. According to the undisputed evidence the plans and specifications prepared by the engineer and adopted as a basis of the contract for the construction of the highway changed the route for nearly two miles and to a considerable distance from the public road. A. E. Wear testified that he was familiar with the point at Big Fork where the commissioners changed the route from the pub Appeal from Polk Chancery Court; C. E. lic road; that they changed it from one side Johnson, Chancellor. Injunction suit by John Dodd against J. V. Averitt and others. Decree for plaintiff, and defendants appeal. Affirmed. Pipkin & Frederick, of Mena, for appel lants. McPhetridge & Martin, of Mena, for ap pellee. of the creek to the other for a distance of 3,000 feet. Peter McWilliams, acting engineer for the district, testified that he had examined the plans, specifications, and blue-prints for road improvement district No. 2, and that the survey as outlined and adopted by the commissioners departed from the route of the public road as it existed, for a distance of 13,600 feet between Mena and the Montgomery county line; that the greatest departure was between Opal and Big Fork, the extent of the departure being 6,500 feet; that the greatest departure at any particular point was 2,900 feet. We think the changes were material and unauthorized, rendering the contract for the construction of the road and sale of bonds void and of no effect. HUMPHREYS, J. [1, 2] This suit was brought against appellants by appellee in the chancery court of Polk county to restrain said appellants jointly and severally, as road commissioners of road improvement district No. 2 of Polk county, Ark., from performing any of the provisions of a contract entered into on the 9th day of December, 1922, between said commissioners and the [3] In addition to denying all the material Western Construction Company for the con- allegations in appellee's complaint, appelstruction of a road and bridges in said dis- lants interposed the further defense of res trict, and to restrain said commissioners or adjudicata. In support of this plea appeleither of them in said capacity from deliv-lants interposed the pleadings and decree in ering to any purchaser bonds of said district a certain cause, No. 884, tried in the chanexecuted by said commissioners on January cery court of Polk county February 14, 1921, Ark.) JORDAN v. STATE (265 S.W.) 4. Criminal law 1172(6)—Instruction per- In prosecution for assault to commit rape, instruction that jury might consider testimony as to prosecutrix's lewd acts with other men and her general reputation for chastity held not as to such acts was properly excluded, where prejudicial, though abstract, in that testimony it was not contended that she consented. wherein J. R. Perry et al. were plaintiffs, tity in determining whether she consented was and the commissioners of road improvement erroneous as abstract. district No. 2 of Polk county et al. were defendants. The complaint in said cause alleged that the plaintiffs were citizens and landowners in said district; that the district was wrongfully and illegally established in violation of sections 24 and 25 of article 5 of the Constitution of the state, and sets forth the particulars of said violation; that the assessment of benefits was excessive and was arbitrarily made; that the assessment for numerous reasons assigned was illegal and void. The plaintiffs prayed that the defendants be enjoined from levying a tax, that the collection of the tax be restrained, and to restrain the issuance of bonds by the commissioners. The answer denied all material allegations of the complaint, and upon a trial the court found all issues in favor of the defendant. An appeal was prayed and granted, but the appeal was never perfected. The issue of whether the commissioners had made a material change was not an issue in the Perry et al. case, as will be seen by reading the substance of the complaint The only issues involved in given above. that case were whether the act creating the improvement district was constitutional and whether the assessment and levy of benefits was arbitrary and confiscatory. The issues being entirely different, this action is not precluded by the adjudication in the Perry et al. case. No error appearing, the decree is affirmed. JORDAN V. STATE. (No. 143.) (Supreme Court of Arkansas. Sept. 29, 1924. Rehearing Denied Oct. 27, 1924.) Defendant may be I. Witnesses 337(6) asked whether he committed or was convicted of prior similar offense. One prosecuted for assault to commit rape may not be asked on cross-examination as to mere accusation of or indictment for prior similar assault on another, but may be asked whether he committed or was convicted of such offense. 2. Rape 40(3)-Testimony as to lewd acts by prosecutrix with other men held properly excluded. In prosecution for assault to commit rape, testimony as to prosecutrix's acts with other men, tending to lewdness, held properly excluded, in absence of issue of consent. 3. Rape 59 (8)-Instruction as to consideration of testimony on issue of consent held erroneous as abstract. Where testimony as to lewd acts by prosecutrix with other men was properly excluded because of absence of issue of consent, instruction that jury could consider evidence of such acts and her general reputation for chas missible in rebuttal of defense that prosecu5. Criminal law 683 (1)-Testimony held adtion was frame-up. Where defendant claimed that prosecution for assault to commit rape was frame-up to extort money from him, and, according to his testimony, prosecutrix's father was aggressor in fight at defendant's home, on day before his arrest, testimony of state's witness tending to show that defendant was aggressor was admissible in rebuttal, 6. Criminal law 680(1), 1153(3) — Admis- It is within trial court's sound discretion to permit testimony out of time, and exercise thereof will not be disturbed, unless abuse is shown. Appeal from Circuit Court, Pope County; J. T. Bullock, Judge. C. L. Jordan was convicted of assault with Afintent to commit rape, and appeals. firmed. Hays, Priddy & Hays, of Russellville, for appellant. J. S. Utley, Atty. Gen., and Jno. L. Carter, Wm. T. Hammock, Darden Moose, and J. S. Abercrombie, Asst. Attys. Gen., for the State. SMITH, J. Appellant was convicted of an assault with the intent to commit rape, alleged to have been committed upon the perHe denied having son of Neulion Spann. made the assault, and while the testimony upon this issue is in sharp and irreconcilable conflict, it is conceded that the testimony is legally sufficient to support the verdict. Error is assigned in the admission and in the exclusion of certain testimony, and in giving an instruction numbered 7 over appellant's objection. [1] It is insisted that the court erred in permitting the prosecuting attorney to interrogate appellant on his cross-examination. This testimony related to a prior assault upon another female, and it is insisted that the effect of this cross-examination was to show that appellant had been indicted for a simi lar offense and accused of another of like nature. It appears, however, that the judge had before him at the time this question arose the opinion of this court in the recent case For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of Parnell v. State, 163 Ark. 316, 260 S. W., aggressor. According to the testimony of 30, to which he referred, and to which his Burnett, appellant was the aggressor in this ruling conformed, and this was that appel- difficulty, and we think no error was comlant could not be asked on his cross-examina- mitted in permitting him to so testify. Aption about a mere accusation or an indict-pellant had attempted to show that he was ment, but that he could be asked if he had committed the offense, or had been convicted of it. [2-4] The court excluded testimony tending to show that Miss Spann had fondled certain young men, yet gave instruction numbered 7 reading as follows: "Gentlemen of the jury, you are instructed that you may take into consideration any acts of Neulion Spann tending to lewdness, if any such acts are shown by the testimony, and also the general reputation of the said Neulion Spann for chastity; this evidence is to be considered by you for the purpose of determining whether the said Neulion Spann did or did not consent to the alleged attempt of the defendant to have intercourse with her." being persecuted, and that there was an attempt to blackmail him, and having offered testimony to establish that defense, there was no error in permitting the state to rebut it. Moreover, it rests within the sound discretion of trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed, unless an abuse is shown, and there appears to have been no abuse of this discretion here. Wells v. State, 151 Ark. 221, 235 S. W. 798. No error appearing, the judgment is affirmed. DIFFIE v. STATE. (No. 134.) (Supreme Court of Arkansas. Sept. 29, 1924. Rehearing Denied Oct. 27, 1924.) 1. Criminal law 1159 (2) Conviction not disturbed merely because apparently against preponderance of evidence. Conviction cannot be disturbed merely because apparently against the preponderance of evidence. The court properly excluded this testimony, as there was no issue in the case of consent. Maxey v. State, 66 Ark. 523. Having excluded this testimony, instruction numbered 7 should not have been given, as it was abstract; but we do not think it was prejudicial for the reason, as we have stated, that no contention was made that Miss Spann had consented. In the case of Brust v. State, 153 Ark. 348, 240 S. W. 1079, we quoted from the case of Lockett v. State, 136 Ark. 473, 207 S. W. 55, as follows: "Now, it was competent, of course, to im-untary manslaughter. peach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her part, but appellant was bound by her answers on that subject and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.'" [5] It is next insisted that the court erred in permitting the state to interrogate W. M. Burnett in regard to a difficulty between appellant and Miss Spann's father, which occurred at appellant's home about a month after the commission of the alleged assault and the day before appellant was arrested on that charge. Appellant had closed his case when this witness was called, and it is insisted (a) that the testimony was incompetent for any purpose; and (b) that, if competent at all, it was not proper as rebuttal. 2. Homicide 255(2)—Evidence held to sustain conviction of manslaughter. Evidence held to sustain conviction of vol 3. Witnesses 337 (6)-Accused is properly asked if he was guilty of illicit manufacture of "moonshine." is properly asked if he was guilty of illicit Accused, voluntarily taking witness stand, manufacture of "moonshine" whisky, to impeach him as a witness. 4. Witnesses 233-Accused entitled to same treatment as other witnesses. Accused, voluntarily taking witness stand, is accorded same treatment as any other wit ness. 5. Witnesses 345(1)-Cannot be impeached by being asked about indictments or mere accusations. A witness cannot be impeached by asking him about indictments or mere accusations. 6. Criminal law 719(1)-Motion for continuance held in effect introduced in evidence so as to authorize argument that it conflicted with defendant's testimony. Defendant's sworn motion for continuance, parts of which were called to defendant's attention on cross-examination, was in effect introduced in evidence as to parts pointed out so as to authorize state's argument to jury concerning conflict with defendant's testimony. [6] We do not think either objection is well taken. It was the theory of the defense that the prosecution was a "frame-up," designed to extort money from appellant, and that it culminated when appellant insisted that the father of Miss Spann pay him a debt secured by a mortgage on certain live stock and his refusal to release this mort-7. Witnesses 379 (7)-Accused may be congage. A fight occurred at the time and place mentioned, the circumstances of which were detailed by appellant as a witness, and according to his version, Mr. Spann was the tradicted by conflicting statements in motion for continuance. Accused, who takes the stand in his own behalf, may be contradicted by showing con (265 S. W.) flicting statements previously made in verified remarks had hurt appellant's feelings, wheremotion for continuance. 8. Criminal law 1119(5)-Mere statement in motion for new trial that jurors misbehaved is insufficient. Mere statement in motion for new trial that certain jurors misbehaved, unsupported by proof or recital in record, is insufficient. upon deceased apologized and expressed regret, and said that he was going to leave the party and go back home. This much of the testimony is undisputed. According to the testimony of the state's witnesses deceased left the party and walked away, leaving the others seated in the car, and, after he had proceeded a short distance down the road, Appeal from Circuit Court, Hot Spring appellant hailed him, got out of the car, and County; Thos. E. Toler, Judge. Cleveland Diffie was convicted of voluntary manslaughter, and he appeals. Affirmed. D. D. Glover and H. B. Means, both of Malvern, for appellant. J. S. Utley, Atty. Gen., and John L. Carter, Wm. T. Hammock, Darden Moose, and J. S. Abercrombie, Asst. Attys. Gen., for the State. MCCULLOCH, C. J. Appellant killed Garland Hardage in Hot Spring county by shooting him with a pistol, and he was indicted for murder in the first degree. On the trial of the cause appellant was convicted of voluntary manslaughter, and his punishment was fixed by the jury at two years in the penitentiary. [1] Numerous errors are assigned, and one is that the verdict of conviction is not supported by the evidence. This assignment is argued with great zeal, but the argument really comes down to the point that the verdict is against the preponderance of the evidence-not that it is unsupported by substantial evidence. We do not feel at liberty under settled rules announced by this court to disturb the verdict merely because it appears to us to be against the preponderance of the evidence. walked out where deceased was sitting on the Appellant testified that after deceased had repeated his angry accusations he (appellant) decided to leave the party himself, and, after he had gone a short distance, he was hailed by deceased, and that they both stood for a minute talking and then squatted down in the road and carried on the conversation, and that deceased then repeated his accusations and rose up with a knife in his hand and made an attack on appellant. He testified that he fired the shot in self-defense while deceased was making an attack on him with the knife. Appellant introduced other testimony tending to show that a knife owned by deceased was found on the ground near the scene of the shooting, but other witnesses testified that the knife which was found there was not the property of deceased. It is seen that the testimony was conflicting, but the jury evidently accepted the testimony introduced by the state, notwithstanding the conflict and the impeaching testimony introduced by appellant against Holcomb. We think there was sufficient testimony to support the verdict. [2] The killing, which is admitted, occurred in a country neighborhood in which appellant and deceased both resided, and it occurred on a country road about 2 o'clock in the afternoon. Early in the morning of the day on which the killing occurred appellant and one of his associates in the neighborhood, named Rush Holcomb, started out in a car, with whisky, and commenced drinking. They first went to the home of Walter Hardage, a brother of deceased, and there got breakfast. Shortly after breakfast deceased, together [3, 4] Another assignment is that the court with Oscar Holcomb, a brother of Rush, came erred in permitting the prosecuting attorney to the place, and the whole party, including to ask appellant while on the witness stand appellant and deceased and the Holcomb if he was not guilty of illicit manufacture of brothers, got into the car and went over to "moonshine" whisky. This was done for the the home of the father of the Holcomb boys. purpose of impeaching appellant as a witThey drove about in the neighborhood, all of ness, and we have often decided that such them drinking whisky and occasionally stop-questions may be asked of an accused who ping the car. During the trip deceased dis- has voluntarily taken the witness stand, and played ill feeling towards appellant, and ac- who is accorded the same treatment as any cused him of interfering with certain busi- other witness. ness affairs of deceased's family. These accusations were repeated several times until Walter Hardage, brother of deceased, took the latter to one side, and told him that his [5] Appellant offered to interrogate two of the state's witnesses concerning indictments against them for felonies, but the court refused to permit the questions to be propound For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed, and the ruling is assigned as error. A the present case it seems that the affidavit witness cannot be interrogated for purposes itself was not formally introduced in eviof impeachment by asking him about indict-dence, but the effect was to introduce that ments or mere accusations. Johnson v. State, 161 Ark. 111, 255 S. W. 571. part of it in evidence by calling appellant's attention to it and examining him as to its contents. In other words, the contents of the affidavit, to the extent of the statements referred to, were brought to the attention of the jury by the admissions of appellant himself. It was competent in that way to contradict appellant by showing that his sworn statement on the witness stand conflicted with the statements in the verified motion for a continuance. It has been decided by this court in several cases that an accused person on trial who takes the witness stand in his own behalf may be contradicted by showing conflicting statements previously made in a verified motion for a continuance as well as by any other conflicting statements. Weaver v. State, 83 Ark. 119, 102 S. W. 713; Baker v. State, 85 Ark. 300, 107 S. W. 983; Moon v. State, supra. [6] At a term of the court prior to the trial of the cause appellant filed a motion for a continuance in order to secure the testimony of an absent witness, Mary Tisdale by name. The cause was continued from January to April, when the trial occurred, but it does not appear from the record that the attendance of the witness was secured. At any rate, the record does not show that she testified in the case. In the motion for a continuance, which was verified by the affidavit of appellant, the statement was made that Mary Tisdale, if present, would swear that she "was very near to defendant at the time he fired the fatal shot that killed Garland Hardage, and that Cleveland Diffie only fired one shot in necessary self-defense." The motion contains the usual statement that the affiant believes the testimony of the absent witness to be true. On cross-examination of appeliant the prosecuting attorney questioned him concerning his statement in the motion for a continuance about Mary Tisdale being near when the fatal shot was fired. The witness first answered in the negative, but after the prosecuting attorney had handed the affidavit to the witness, he admitted that he had made the statement. On further examination he stated that he did not see Mary Tisdale where the shooting occurred, and he supposed she was at his (appellant's) house. The record does not show that the verified motion for continuance was formally introduced in evidence, but the language was stated to the witness, and he admitted that he had sworn to the motion and that it contained the language in question. The affidavit itself was produced by the prosecuting attorney in the presence of the jury and handed to appel-1. lant, while on the witness stand, for his inspection. [7] In the argument of the cause one of the attorneys assisting in the prosecution produced the affidavit and read from it the statement referred to above with respect to the presence of Mary Tisdale near the scene of the killing, and this was commented on as showing a conflict between appellant's testimony and the affidavit in his motion for a continuance. This was objected to, and the ruling of the court in not sustaining the objection is assigned here as error. Counsel rely on the decision of this court in Moon v. State, 155 Ark. 601, 245 S. W. 29. That case does not, however, sustain the contention of appellant, for this court only decided that the prosecuting attorney should not have been permitted to read to the jury a motion for continuance which had not been offered in evidence or referred to in the testimony. In [8] There is another assignment in the motion for a new trial concerning alleged misconduct of two of the jurors in separating themselves from their fellows, but this assignment is not supported by the record, which fails to show anything concerning the alleged incident. It is not sufficient merely to state in a motion for a new trial that there was misconduct. The charge must be sustained by some proof or recital in the record. There being no error in the record, the judgment is affirmed. HARDY v. OUACHITA NAT. BANK OF (Supreme Court of Arkansas. Oct. 13, 1924.) Where one, in order to give maker of note credit with payee, signs his name on back of note before delivery and acceptance, he is liable to holder as joint maker. on 2. Estoppel 72-Person whose signature o note obtained before delivery by fraud held liable to innocent holder. Where maker of note, to obtain renewal of note, obtained defendant's signature on back of new note before delivery by means of fraud, such fraud not being known to or participated in by payee, defendant is liable as joint maker, under rule that person enabling fraud to be perpetrated must suffer as against another innocent person. Appeal from Circuit Court, Cleveland County; Turner Butler, Judge. Action by the Ouachita National Bank of Monroe, La., against J. B. Hardy. From a |