Kirby's Dig., § 2227; 11 O. 282; 26 Ark. 323; 68 Ark. 490. 2. An allegation of the value of the cotton sold was material and necessary to a valid indictment. Kirby's Dig., § § 2011, 2013, 2014.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The general allegation that a lien existed by virtue of a chattel mortgage was sufficient under our statutes. 68 Ark. 480; 50 Ia. 194.

2. The statute defining the offense (Kirby's Dig., § 2011) says nothing about the value of the security or the value of the property disposed of. They were mere matters of proof, and it became the duty of the jury, under proper instructions as to the law, to convict of a felony or misdemeanor according to the proof as to values. See 43 Ark. 284; 64 Ark. 194; 65 Ark. 80; 43 Ark. 378.

FRAUENTHAL, J. The defendant was indicted for selling certain property upon which a mortgage lien existed. The indictment in apt and comprehensive language charged that the defendant had sold certain property which was therein described, upon which a lien then existed by virtue of a certain chattel mortgage executed by him, and that such sale was made without the consent of the mortgagee; but the indictment did not allege the value of the property which was sold nor the amount of the debt secured by said mortgage. To this indictment the defendant interposed a demurrer, which was overruled; and upon his trial he was convicted of a felony, and his punishment assessed at imprisonment in the penitentiary for a term of six months. The indictment is founded upon section 2011 of Kirby's Digest, which makes it an offense for any person to sell or otherwise dispose of any property upon which certain liens exist, amongst them a lien created by virtue of a mortgage, with intent to defeat the holder thereof in the collection of his debt secured thereby. It is further provided that persons convicted of this offense shall be deemed guilty of a felony where the debt secured by such lien exceeds in amount the sum of $10, and the property so sold or otherwise disposed of exceeds in value the sum of $10; and where the debt secured by such lien does not exceed the

amount of $10, or where the property so sold or otherwise disposed of does not exceed in value the sum of $10, such persons shall be deemed guilty of a misdemeanor. Kirby's Digest, 2013, 2014.

Under the provisions of the above statutes, the defendant could be guilty of a felony only where the property disposed of exceeded in value the sum of $10 and the debt secured by the mortgage exceeded in amount the sum of $10. The value of the property disposed of and the amount of the debt secured by the mortgage are therefore, of the very essence of the offense of which defendant was convicted. The offense is a graded crime, and the value of the property and the amount of the debt are elements in the punishment thereof.

When value is an element in the punishment of an offense, it must be alleged in the indictment, and it is immaterial what the crime is. Thus, in cases of larceny, the value of the article stolen must be alleged unless the statute makes the stealing of a particular thing itself a felony. Houston v. State, 13 Ark. 66; Ware v. State, 33 Ark. 567; Walker v. State, 50 Ark. 532; Sheppard v. State, 42 Ala. 531; Davis v. State, 40 Ga. 229; Rapalje on Larceny and Kindred Offenses, § 109; 1 Bishop's New Crim. Proc., §§ 541, 567; 12 Enc. Pl. & Prac. 996.

Every indictment, for whatever offense, must set out all the facts which in law may influence the punishment for the commission thereof. The principle is thus stated in 2 Bishop's New Crim. Proc., § 48: "If the punishment to be inflicted is greater or less, according to the value of the property, the value must be stated in the indictment, because every indictment for whatever offense must set out every fact which the law makes an element in the punishment thereof." 1 Wharton, Crim. Law, § 1003; Bishop on Stat. Crimes, § 427.

The punishment fixed for the crime of selling mortgaged property is influenced by and dependent upon the value of the property sold and the amount of the debt secured by the mortgage thereon, and these facts must necessarily be set out in the indictment in order to charge an offense under the above statutes.

It follows that the court erred in overruling the demurrer to the above indictment. For this error the judgment is

reversed, and this cause is remanded with directions to sustain the demurrer to said indictment and for further proceedings.

1.

2.

WEST v. STATE.

Opinion delivered October 28, 1912.

DISTURBANCE OF SCHOOL-INTENT.-Under Kirby's Digest, § 1927, providing that "any person or persons who shall, by boisterous or other noisy conduct, disturb or annoy any public or private school," shall be guilty of a misdemeanor, etc., any act which is within the terms of the statute, the natural consequence of which is to disturb a school, and which is wilfully done, and which in fact does disturb a school, comes within the statute, though the actor may have had no specific intent to disturb the school. (Page 177.)

SAME-INTENT.-One who went to a school house for a lawful purpose, and who was properly demeaning himself, was not guilty of disturbing the school, within the meaning of Kirby's Digest, § 1927, where, on being violently assailed by another, he defended himself, though his acts in his necessary self-defense may have disturbed the school. (Page 178.)

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

STATEMENT BY THE COURT.

B. B. West was convicted of a misdemeanor, charged to have been committed by disturbing a public school in Randolph County, Arkansas.

Gussie Tiner, for the State, testified: "My name is Gussie Tiner. I was at the school house on the 14th day of July, 1911, where Miss Amanda Stevens was teaching when the difficulty occurred between the Wests and Segraves. Mr. West and myself and others were standing in front of the school house looking at some seats that Mr. Simpson had hauled there. Mr. Segraves came along, called Mr. West, saying that he wanted to talk with him. Mr. West replied that he would not do it. A quarrel followed, and again he asked West to come out there. Mrs. West had a club in her Segraves said something to

hand. West picked up a rock. West about he would lick him or for him to come off the school grounds. They soon got into a fight, were separated and Mr. Segraves went on home. They fought and rolled over

the ground, and Mrs. West struck Segraves on the head with a stick. I saw a cut or lacrated place on West's head, but I did not see the wound made. Everybody there was excited over the fight. Many of the children ran away during the fight; some of them were crying, and the teacher was crying also. Mr. West came into the school house. Mrs. West still had the club in her hand. Mr. West talked excitedly and, as I thought, in a mad tone of voice to the teacher, Miss Stevens. He told her that his children had come home with their clothes wet and torn, and that it was her place to look after them. Mr. Simpson told all of them he thought they should hush as they had been disturbed enough, and it was time for the school to begin."

Other evidence for the State tended to show that the defendant and Segraves both used loud and boisterous language while engaged in their quarrel just preceding the fight and otherwise corroborated the testimony of Gussie Tiner.

The defendant in his own behalf testified: "There was some dissatisfaction in the school district among the patrons of the school on account of the manner in which the teacher allowed the pupils to act, and complaints had been made to the directors about it. My wife and I went to the school house on the morning of the difficulty at the request of the directors for the purpose of discussing and investigating the matter. I had no thought of trouble with any one when we went to the school house. Soon after we arrived there, R. L. Segraves came along and called to me. He had a personal grievance against me, and talked like he was mad. He called me to come out of the school yard, saying that he had a settlement that he had to make with me. I told him I had no settlement to make, and did not want to have any trouble. He said he would whip me either off of the school ground or on the school ground. I told him to go on and let me alone, that this was no place to have trouble. He then pulled a rock out of his hip pocket, and threw it at me. I dodged the rock, and then run in and clinched him, and we both fell to the ground. He had a knife in his left hand when he come up, and while we were down on the ground he cut me on the side of the head and face with the knife. I held his hand the best I could. The other men there parted us, and Segraves went

on away, and my wife and I and the other men then went in the school house. I talked to the school teacher about the way I thought she should treat my child, and told her I wanted her to make my boy mind. I did not mean to talk in a contemptuous manner, and do not think I did. I did not mean. to offend the teacher in any way. Of course, I was excited over the trouble I had just had with Segraves, and perhaps talked a little loud and excited. What I said was in the presence of Mr. Simpson, one of the directors, and I believe if I had said anything out of the way to the teacher he would have called my attention to it. I had no intention at any time of disturbing either the teacher or the school."

The jury returned a verdict of guilty, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

S. A. D. Eaton, for appellant.

1. The indictment states two distinct offenses, and is bad for duplicity. Kirby's Dig., § 1927; 32 Ark. 203; 33 Ark. 176; 36 Ark. 55; 70 S. W. 1034.

2. The court erred in refusing to charge the jury as requested by appellant. One who is attacked by another may lawfully use such force as may be necessary to repel the assailant. 49 Ark. 543; 84 Ark. 121; 133 Ala. 613; 1 Gray 476; 53 Ala. 398; 96 Ala. 33; 11 Tex. App. 318; 108 N. C. 772.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The indictment states an offense under the statute, and is not bad for duplicity. Kirby's Dig., § 1927.

2. The instruction requested by appellant was properly refused because the effect of it was to tell the jury that appellant would not be guilty unless he intended to disturb the school which is not the law. 14 Cyc. 543; 133 Ala. 613; 99 Ala. 207; 8 Lea (Tenn.) 563; 92 Ala. 82; 34 N. Y. 141; 78 N. C. 448; 146 S. W. 862.

HART, J., (after stating the facts). The indictment in this case was drawn under section 1927, Kirby's Digest, which reads as follows:

"Any person or persons who shall, by any boisterous or other noisy conduct, disturb or annoy any public or private