(218 S.W.) -and the entire amount to be due upon the completion and acceptance of the building by the owner. This transfer was duly acknowledged and placed of record in the county clerk's office. The appellee sold and delivered to J. A. Knight lumber and other building materials which were used by J. A. Knight in construction of the building to the amount of $2,205.92, and of this amount J. A. Knight failed to pay the appellant the sum of $305.92. The appellee brought the suit against the appellant for the $305.92 in the nature of an action for damages for a tort in negligently failing filing of this suit did plaintiff ever so notify the said G. A. Hess or make any demand upon him for the payment of any balance owing by ed for the construction of said building. That the said Knight to plaintiff for material furnishmore than 90 days had elapsed after the acceptance of the said building by the said G. A. Hess and this final settlement with the said Knight for the construction of same before this suit was filed. That the said G. A. Hess fully complied with the terms of said contract by executing and delivering to the said Knight said note for mentioned as a part of the consideration for the $3,500 and by paying to him the $1,000 in cash construction of the building, and that the said G. A. Hess does not now and did not at the time of filing this suit owe the said Knight anything or any sum for the construction of the building." "to reduce the contract made between him and It was further alleged that J. A. Knight, though requested, had failed to pay the amount due, and that J. A. Knight was insolvent. The defendant answered by demurrer, denial, and specially that he had no notice that J. A. Knight was indebted to the plaintiff and that the plaintiff never fixed a lien as authorized to do. There was a trial before the court without a jury, and a judgment for the plaintiff. The court filed conclusions of fact and of law. The court's findings are that no bond was executed and delivered to G. A. Hess and wife by J. A. Knight for the faithful performance of the contract according to its terms as required by law; that J. A. Knight is insolvent; that the plaintiff did not attempt to comply with articles 5623 and 5632 of the Revised Statutes by giving to G. A. Hess written notices of the items of building material furnished to the said Knight and how much there was due and unpaid on the bill of material furnished to the said Knight, and did not within 90 days after the indebtedness accrued file in the office of the county clerk of Camp county an itemized account of the claim; and "9. That upon the completion of said house by the said Knight the said G. A. Hess accepted the same and paid to him the balance of the sum of $1,000 cash consideration then owing to the said Knight under the terms of said contract. That at the time of the said final payment by the said Hess to the said Knight the said Hess had never received any notice from plaintiff of the amount of any indebtedness owing by the said Knight to the plaintiff for material furnished, nor that the plaintiff was looking to the said Hess for the payment of any sum so owing by the said Knight to the plaintiff; and at no time thereafter up to the The court concluded that the defendant, G. A. Hess, was guilty of negligence in failing to require the contractor, Knight, to make and execute a bond, and enter personal judgment against G. A. Hess for the amount sued for by the appellee. Bass & Engledow, of Pittsburg, for appel- LEVY, J. (after stating the facts as above). The lumber company undertakes to hold the owner of the building personally liable for the unpaid balance of the account for material furnished to the contractor. The suit is based upon the alleged neglect to take a bond of the contractor as required by Acts 1915, p. 223. As applicable here, article 5623 of the act reads: Any "owner cuted a written contract for such erection, repair or improvement and cause the same to be filed with the county clerk of the county where the property is situated, and shall also cause to be executed and filed with the said county clerk before the work is begun, a good and sufficient after provided; and when said bond and conbond by said contractor, conditioned as hereintract shall be so executed and filed the said owner, railroad company, its agent or receiver, shall in no case be compelled to pay a greater sum for or on account of labor performed, or material, machinery, fixtures or tools furnished, than the price or sum stipulated in the original contract between such owner and contractor." * shall cause to be exe It is further provided by article 5623a that The bond that the owner of the building "shall take from every contractor" shall be conditioned for "the true and faithful performance of the contract, and the payment of all subcontractors, workmen, laborers, mechanics and furnishers of material by the undertaker, contractor, master mechanic or engineer. The said bond to be made in favor of the owner, subcontractors, workmen, laborers, mechanics and furnishers of material as their interest may appear, all of whom shall have the right to sue upon said bond, * and it shall guarantee the * payment of such claims, regardless of whether or not they are secured by any lien." [1] This law is by its express terms cumulative of the law authorizing any person furnishing material or doing labor on any house or building to secure and fix a lien on the house within 90 days, as the statute provides. As a rule, where a valid law imposes the duty on a person, where there has been a negligent breach of that duty pecuniary consequences are recoverable by law by the party injured for a breach or failure to perform that duty. And the pertinent question arises of whether or not the owner of the building can be held liable in tort, as pleaded, for the failure to procure a bond from the contractor for payment of the contractor's obligation to materialmen. It cannot be said that the act in question undertakes to regulate the oc cupation of a contractor by requiring him to give a bond before he can lawfully pursue the business. Nor does the act forbid any person from contracting with the contractor that has not given a bond. If it had been so, probably the Legislature would be within its authority in enacting the law under police powers. [2] But the law requires the owner to contract with the contractor to give a bond. It is compulsory contract purely. We think that it is beyond the power of the Legislature to require an owner to contract with the contractor to give a bond, as done in this very act, because it is interference with the law of the liberty of contract. If the owner does contract to have the contractor give a bond, he is at liberty to do so as a subject-matter of contract; but if the owner does not so contract, a personal judgment cannot be rendered against him for not requiring the bond of the contractor. [3] The material here was sold to the contractor in the ordinary course of trade, and the relation of creditor and debtor did not exist between the materialman and the owner. The owner of the building paid the contractor all that was due him after waiting a building, and he had no notice of the claim reasonable time after the completion of the of the materialman. Why should the owner be required to pay twice for the material? the same law to fix a lien for his claim, and The materialman had the legal right under law deprived of any remedy to enforce payhe neglected to do so. He was not by the ment for the money due him for material furnished the contractor. [4, 5] The lien law is justified upon the ground that the material for which the lien is sought has been converted into a part of the realty and has increased the value of the realty by becoming a part thereof; but the feature of the act requiring a compulsory contract on the part of the owner and contractor to give a bond is quite a different thing. The owner of the building is under no legal relation to the materialman selling to the contractor so as to render him personally liable for the debt of the contractor. And the economic advantage to the owner, if any, of having the lien satisfied by the bond would not justify the exercise of the police power requiring him to make a compulsory contract with the contractor. The cases cited by the appellee do not, we think, control the case, and we do not follow them. This case we intend to be expressly limited to that part of the act in question applying to individuals, and not corporations and municipalities. The judgment is reversed, and judgment is here rendered in favor of the appellant. 2. CRIMINAL LAW 596(1)—RIGHT TO CONTINUANCE NOT PRECLUDED BY ABSENT WITNESS' TESTIMONY BEING CUMULATIVE. Defendant's right to continuance is not defeated by the fact that the testimony of the absent witness would be only cumulative; the other witnesses being highly interested, and some of them charged with participation in the crime. 3. CRIMINAL LAW 594(3)-SHOWING THAT WITNESS COULD BE PROCURED NECESSARY FOR CONTINUANCE. Refusal of continuance for absence of witness was not error; no showing being made that his attendance could later be secured. 4. HOMICIDE 170 EVIDENCE TO SHOW ABILITY TO RECOGNIZE ACCUSED ADMISSIBLE. Witness who testified that defendant was one of the parties who fired could, as showing ability to recognize him, state that he had examined him for military duty. 5. CRIMINAL LAW 1090(13) STATEMENTS OF PROSECUTING ATTORNEY MUST BE SHOWN BY BILL OF EXCEPTIONS. Objections to statements of the prosecuting attorney in argument are not before the reviewing court; there being nothing in the bill of exceptions showing what the statements were, but the only reference thereto being in the motion for new trial. sider anything not submitted by the court, as outside influence, prejudice, passion, or rumors. 8. CRIMINAL LAW 759(5) INSTRUCTION PROPERLY REFUSED AS ON WEIGHT OF EVI- Instruction that if defendant became a fu- ION ON RUMOR. Though jurors had heard and talked about the killing and formed some kind of an opinion, yet they not having talked with witnesses, but their opinions being based on rumor, and they not having known defendant nor entertained any bias or prejudice against him, they were not incompetent. Appeal from Circuit Court, Cleburne County; J. M. Shinn, Judge. Bliss Adkisson was convicted of murder, and appeals. Affirmed. Bratton & Bratton, of Little Rock, for appellant. Jno. D. Arbuckle, Atty. Gen., and Robert C. Knox, Asst. Atty. Gen., for the State. SMITH, J. Appellant has assigned and discussed a number of errors, said to be prejudicial, occurring at the trial, from which this appeal is prosecuted, and which resulted in a sentence of 18 years in the penitentiary upon a conviction for murder in the second degree. [1] The first of these assignments is that the trial occurred in an atmosphere of prejudice occasioned by the admission of testimony tending to show that appellant and members of his family who were indicted with him were disloyal and that appellant was himself an evader of the draft. The testimony complained of was elicited, however, by witnesses who detailed the circumstances of the killing; it being shown that Porter Hazelwood, for whose murder appellant was convicted, was a member of a sheriff's posse which was attempting at the time to arrest appellant, pursuant to the directions of the military authorities, as an evader of the draft. The theory of the prosecution was that appellant and the members of his 7. CRIMINAL LAW 823(10)-REFUSAL OF IN- family, together with Leo Martin, his brothSTRUCTION NOT PREJUDICIAL IN VIEW OF IN-er-in-law, had conspired together for the pur 6. CRIMINAL LAW 844(1)-OBJECTION THAT INSTRUCTION WAS PREDICATED ON FACT UNSUPPORTED BY EVIDENCE MUST BE SPECIFIC. Objection to an instruction as to the law if the posse was endeavoring to arrest defendant or T., that there was no testimony that it was endeavoring to arrest T., should have been raised by specific rather than general objection. STRUCTIONS GIVEN. In view of instructions given to try the case on the evidence introduced, and that the burden was on the state to prove, by competent evidence, beyond a reasonable doubt, that defendant was guilty, it was not prejudicial to refuse instruction that the jury are bound by the law as given in the instructions, but that they are the judges of the evidence, but cannot con pose of enabling appellant and Martin to evade the draft; that appellant and Martin had received orders to report for military duty and had failed and refused so to do, and were in hiding at the time; and that a part of the conspiracy was to resist with force, if necessary, any attempt to locate and arrest them. As tending to show this conspir For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes acy testimony was admitted to the effect that [ ed appellant for military service. But this large quantities of provisions and ammunition testimony was brought out during the exwere concealed near the home of appellant's father; this being the congregating point of the members of the alleged conspiracy. This testimony was competent, therefore, not only to show the conspiracy, but as tending to explain the circumstances under which the shooting commenced which resulted in Hazelwood's death. [2, 3] Another assignment is the refusal of the court to continue the cause on account of the absence of Bill Rice, who was a member of the posse which attempted to arrest appellant at the time Hazelwood was killed, and who was himself then wounded. In the motion for continuance it was alleged that Rice, if present, would testify that as the posse approached the house of appellant's father, where appellant was supposed to be concealed, Hardy Adkisson, appellant's brother, for whom the posse had no process, came near the posse, but upon discovering them, and without knowing their mission and without indication of violence, turned and started back to the house, whereupon the sheriff in charge of the posse gave a command to shoot or stop Hardy Adkisson, and just as a member of the posse was about to execute this order by shooting Hardy Adkisson, Tom Adkisson, the father of Hardy, appeared on the front porch of his home and hallooed something to the officer, who apparently was about to shoot his son, and as the officer appeared not to have heeded, if, indeed, he had heard, this cry, Tom Adkisson entered his home and hastily reappeared with a gun and opened fire on the posse; and that no one else in or about the house fired upon the posse, and that appellant was not seen around the premises at any time. Members of appellant's family who were present during the shooting, including Mrs. Leo Martin, appellant's sister, detailed the circumstances of the shooting as stated in this motion for a continuance. But they were all highly interested witnesses, and the male members of the family were charged with the commission of the murder, and it cannot therefore be said that appellant was not entitled to the continuance because the testimony was cumulative of other testimony offered at the trial. Hall v. State, 64 Ark. 121, 40 S. W. 578. But no showing was made that the attendance of this witness could later be secured. At appellant's request a subpoena had been issued by the clerk of the Cleburne circuit court, where the cause was pending for trial, directed to the sheriff of Pulaski county, but the subpoena had been returned non est, and no showing was made as to where the witness had gone or as to the time when ne would likely return, and it was not error, therefore, to refuse the continuance. [4] Objection was made to the testimony of a Dr. Turner in regard to having examin amination of the witness, who was a member of the posse, and had testified that appellant was one of the parties on the porch who fired upon the posse, and as the identity, as well as the presence, of appellant at the shooting was one of the questions in dispute, it was proper for the witness to state his opportunity to know appellant when he saw him. Other assignments of error relating to the admission of testimony to the effect that appellant was a draft register are discussed; but we think they may all be disposed of by the general statement that the testimony objected to tended to show the motive for the killing as well as the circumstances under which it occurred. [5] Objection is made to certain statements of the prosecuting attorney in the course of his argument before the jury; but there appears to be nothing in the bill of exceptions showing what these statements were, the only reference thereto being found in the motion for a new trial. These objections are not, therefore, properly before us for review. Cravens v. State, 95 Ark. 321, 128 S. W. 1037. [6] An instruction numbered 23 was given, in which the jury was told that if Hazelwood was a member of the posse that was endeavoring to arrest and capture appellant, or Tom Adkisson, or Hardy Adkisson, and appellant knew that fact and shot Hazelwood in a spirit of resistance or defiance of the posse, that he could not plead self-defense as an excuse for the killing. Objection is made to this instruction upon the ground that there was no testimony that the posse was endeavoring to arrest Tom Adkisson or Hardy Adkisson. And this appears to be the fact. But only a general objection was made, and we think the point now presented should have been raised in the court below by a specific objection to the instruction. [7] Appellant requested, and the court refused to give, an instruction reading as follows: "The court gives you all the law and by that law so given in these written instructions you are bound. "But on the weight of testimony the court cannot aid you. You and you only must judge the evidence, but you cannot consider anything as evidence not submitted to you by the court. In arriving at your verdict you have no right to consider outside influence, prejudice or passion, or rumors, for or against the defendant." This is, of course, a correct declaration of the law, and might very well have been given; but at the request of the state and of appellant the court gave a very large number of instructions, and in these the jury was told to try the case upon the evidence introduced, and that the burden was on the state to (218 S.W.) prove, by competent testimony, beyond a reasonable doubt, that appellant was guilty, and we conclude, therefore, that no prejudicial error was committed in refusing the instruction. 2. CRIMINAL LAW 1090(3)-BILL OF EXCEPTIONS NECESSARY FOR REVIEW OF REFUSAL OF CHANGE OF VENUE. The question of refusal of change of venue cannot be considered on appeal; the motion and refusal and objections and exceptions to the [8] The court also refused to give appel- ruling not being brought into the record by bill lant's instruction numbered 6, as follows: "If you find that the defendant became a fugitive from justice after this alleged crime, then you may consider this as a circumstance tending to show guilt, unless explained by the defendant. If you should find that he was afraid of a mob, then this fact of being a fugitive is explained. If you should further find that the defendant volunteered to officers of the law, this becomes a circumstance in the defendant's favor." This instruction was properly refused as being a charge upon the weight of evidence. [9] Assignments 69 to 89 relate to rulings of the court on the competency of various veniremen. Isolated answers of several of these veniremen would indicate that such fixed opinions of appellant's guilt were entertained that they were incompetent to serve as jurors; but we think that fact does not appear in any instance where the entire examination is considered as a whole. We have read the testimony as it appears in the transcript, and it is apparent that the killing had attracted wide interest and attention, and that practically all the veniremen had heard about it and had talked about it and had formed some kind of opinion. None of the veniremen held competent had talked with the witnesses, and the opinion in each instance appears to have been based upon rumor. These veniremen did not know appellant and entertained no bias or prejudice against him, and we think it was not shown that appellant was compelled to exhaust a challenge upon any veniremen who could not try the case according to the law and the evidence. No prejudicial error appearing, the ment of the court below is affirmed. ADKISSON v. STATE. (No. 143.) of exceptions. 3. CRIMINAL LAW 1090(13)-BILL OF EX CEPTIONS NECESSARY FOR REVIEW OF REMARKS OF PROSECUTING ATTORNEY. That remarks of prosecuting attorney in opening statement or argument of the case may be reviewed, they, with the objections and exceptions, should be brought into the record by bill of exceptions. 4. HOMICIDE 83-ONE PRESENT AT KILLING AND AIDING OR ABETTING GUILTY THOUGH NO PRIOR CONSPIRACY. Requested instructions requiring the state to prove that defendant, convicted of manslaughter, fired the fatal shot, or that prior thereto he conspired with others and was engaged with them in carrying out the conspiracy to fight men lawfully trying to arrest his son, were erroneous; he being present at the time of the killing, and it being enough that he either fired the shot or aided or abetted others in the killing. 5. HOMICIDE 307(4)-INSTRUCTION BAD IN REQUIRING CONVICTION OF FIRST DEGREE OR ACQUITTAL NOTWITHSTANDING EVIDENCE OF LOWER DEGREES. The evidence justifying the submission of the question of guilt on all the grades of homicide, a requested instruction requiring acquittal der in the first degree was erroneous. unless the facts warranted a conviction of mur 6. HOMICIDE 300(14) IMMINENT DANGER NECESSARY FOR SELF-DEFENSE NOTWITHSTANDING DECEASED WAS AGGRESSOR. killing a member of a posse, to acquit if the Requested instruction, on prosecution for posse was the aggressor and fired the first shot on the house containing defendant and his family, was erroneous, as imminent danger of defendant or a member of his family was not predjudg-icated, and he could kill only in necessary selfdefense of himself and family. (Supreme Court of Arkansas. Jan. 26, 1920. Rehearing Denied Feb. 23, 1920.) 1. CRIMINAL LAW 1090(7)-BILL OF EXCEPTIONS NECESSARY FOR REVIEW OF REFUSAL OF CONTINUANCE. Motion for continuance and the overruling thereof, and the objections and exceptions to such ruling, must be brought into the record by bill of exceptions; otherwise they are no part of the record which can be considered on appeal. 7. CRIMINAL LAW 766-INSTRUCTION AS TO DYING DECLARATION INCLUDING RULES AS TO ADMISSIBILITY PROPERLY REFUSED. Requested instruction laying down, not only rules for guidance of the jury in the consideration of the dying declaration, but rules governing the admissibility of such a declaration, was properly refused; the latter matter being for the court and not the jury. 8. HOMICIDE 116(3)-MISTAKEN BELIEF OF DANGER MUST HAVE BEEN HONEST AND REACHED WITHOUT FAULT. Instruction that to excuse a killing on the ground of mistaken belief of imminent danger his belief must have been honest and reached without fault or carelessness held proper. Appeal from Circuit Court, Cleburne County; J. M. Shinn, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |