(252 S.W.) and prayed an appeal to the Supreme Court. Having appeared in the cause in the chancery court, all irregularities in making the transfer of the cause were waived by them. sisting on a judgment against him and The record shows that W. A. Childs and W. Childs. E. Layton objected to the rendition of the The chancellor found there was no agree-judgment against them in the chancery court ment, tacit or otherwise, between I. N. Linton and Childs or his attorney, or Layton, to the effect that he (Layton) would not seek redress or damages against Childs or his bondsman. Owens admits that he was not induced to withdraw from the case on account of the statement made by Linton. The statement attributed to Linton by Layton was vague. It was to the effect that he (Linton) had made arrangements whereby he would not bother him about the bond. Layton did not attempt to ascertain what arrangement had been made or to obtain a release from the bond on definite terms. Linton denied making the statement. In view of the conflict in the testimony upon this point, and of the warning given by J. C. Floyd and Sam Williams to Mr. Layton, we cannot say that the chancellor's finding against an express or tacit agreement not to look to the bond, was against the clear preponderance of the evidence. [2] 2. The judgment is not void because rendered without notice. The bond was conditioned for the payment of all sums recovered by defendant in the action for any cause whatever. Section 4844, Crawford & [4] 4. The last insistence of appellant for reversal is that all equitable issues were eliminated from the case when the issues raised in the pleadings between the Erie Ozark Mining Company and Linton and Childs were decided, and that the original suit in unlawful detainer should have been retransferred to the law court for trial. It is unnecessary to decide this question. Had a motion been made to retransfer the cause, and if proper to have done so, the failure would have constituted error for correction on appeal. This is a collateral attack, and is not a proceeding for the correction of mere errors in the rendition of the judgment. Such matters are not drawn in question in a collateral attack upon a judgment. No error appearing, the decree is affirmed. Moses' Digest. It is provided in section 4854 NEWBERGER COTTON CO. v. TEMPLE. of Crawford & Moses' Digest that in (No. 57.) (Supreme Court of Arkansas. June 18, 1923.) "all cases where judgment is rendered, either In construing statutes covering attachment and supersedeas bonds containing like provisions to the provision quoted above, covering bonds in unlawful detainer suits, this court ruled that a surety became a party to the suit by signing the bond and subject to a summary judgment without additional notice. Fletcher v, Menken, 37 Ark. 206; Morse Bros. Lbr. Co. v. F. Burkhart Mfg. Co. (Ark.) 244 S. W. 350. [3] 3. The point is made that the chancery court acquired no jurisdiction of this cause because the clerk of the circuit court of Marion county failed to make and transmit a certified transcript of the proceedings in said cause to the chancery court of said county. An order of transfer was made and entered of record by the circuit court. The original papers were transmitted to the chancery court, where the case was docketed.. E. 0. Owens, attorney for W. A. Childs, the plaintiff in the original suit and principal in the bond, appeared in the cause in the chan. cery court and obtained permission to withdraw from the case on the ground that his client had refused to communicate with him. Chattel mortgages 229 (3) Immaterial that mortgagee permitted mortgagor to sell mortgaged crop in previous years. In chattel mortgagee's action to recover value of part of mortgaged cotton crop purchased by defendant from mortgagor, it was immaterial that in prior years mortgagee had allowed mortgagor to sell his crop, where a year without business dealings between mortgagee and mortgagor intervened between such years and the year in which the mortgage relied on in the action was made. 2. Chattel mortgages 229(1)—Principal and agent 124(2)-Whether mortgagee's agent authorized to release lien held for jury; whether mortgagor given permission to sell held for jury. In chattel mortgagee's action to recover value of part of mortgaged cotton crop purchased by defendant from mortgagor, the issues whether mortgagee's agent had authority to release the mortgage lien, and whether he gave the mortgagor permission to sell the cotton crop in the open market, held for the jury. Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge. Action by William Temple against the Newberger Cotton Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Reynolds & Steel, of Ashdown, and Jones & Head and Paul Jones, Jr., all of Texarkana, for appellee. Shaver & Shaver, of Ashdown, for appel-[tion were under shelter on the farm cultivatlant. ed by Joe Wright. Appellee had an employee who was keeping watch upon it. Joe Wright sold two bales of the cotton to appellant and the third bale to A. Goldman, who sold same to appellant. It was soon discovered that the cotton as well as Joe Wright had disappeared, whereupon W. R. Orton, a manager and bookkeeper for appellee, immediately communicated with him and received directions to search for and recover the cotton. Orton discovered who had purchased the cotton and had a conversation with Oscar Oliver, bookkeeper and cotton buyer for A. Goldman, concerning same. Touching upon the issue of whether permission had been given Joe Wright to sell the cotton upon the market, Oliver and Orton in response to questions testified as follows: HUMPHREYS, J. Appellee instituted suit against appellant in the circuit court of Miller county to recover $196.44, the value of three bales of cotton, purchased by appellant from Joe Wright, who had, prior to the sale, executed a chattel mortgage thereon to appellee for supplies. All the allegations of the complaint were admitted by appellant, who interposed the affirmative defense that ap pellee trusted Joe Wright, the mortgagee, as was his custom in preceding years, to sell the cotton and account for the proceeds thereof. Over the objection of appellant a demurrer was sustained to the plea of custom. The case then proceeded to a hearing, and at the conclusion of the testimony the court, over the objection of appellant, instructed a verdict for appellee. The judgment was rendered in accordance with the instructed verdict, from which is this appeal. Oliver's testimony: "Q. Mr. Oliver, did Mr. Orton state to you that he had trusted his negro, or words to that effect, to bring this cotton into Ashdown and brought the money back to him, and when you sell it, and that he had run off and had not asked him about it he said he guessed he had talked too much? A. Yes sir." Orton's testimony: [1] In the course of the trial appellant offered proof, which was excluded over its objection, tending to show that in the years "Q. Did you say to Mr. Oliver, in words or in 1916, 1917, and 1918 appellee had permitted substance, in Fulton at any time (I mean in Joe Wright to sell his crop, which had been Ashdown) that you had trusted this negro, mortgaged to him, in the open market and to Joe Wright, to bring this cotton (referring to account for the proceeds. It appeared that the cotton for 1920) to Fulton (I mean AshJoe Wright procured his supplies elsewhere down), and sell it and bring the money to you in the year 1919 and did not trade with or in Fulton, and then you said to him that you mortgage his crop to appellee that year. Ap-make that statement to Mr. Oliver? A. I cerDid you guessed you had talked too much. pellant insists upon a reversal of the judg ment because the court sustained a demurrer to that part of its answer interposing the affirmative defense of custom, and because proof tending to establish such custom was excluded by the court. It is unnecessary to determine whether such usage was proper matter for defense in this case, as the undisputed testimony showed a break of an entire year in business transactions between appellee and Joe Wright. The chattel mortgage, made the basis for this suit, covered supplies for the year 1920. No supplies were furnished to Joe Wright in 1919 and no mortgage was given by him to secure same. settled his account with appellee in 1918 and traded elsewhere during the year 1919. He Appellant next insists for a reversal of the judgment because it was alleged that no demand was made for the cotton before the institution of the suit. The insistence is not supported by the evidence. W. R. Orton, appellant's bookkeeper and manager, testified that he demanded the cotton from appellant's agent before the suit was commenced. The testimony on this point was not contradicted. [2] Appellant's last insistence for a reversal of the judgment is that the court erred in instructing the jury to return a verdict for appellee. The three bales of cotton in ques tainly did not. "Q. Did you make that statement in substance, or anything like it? A. No, sir; I never. "Q. Did you tell him, or anybody else, that you or Mr. Temple, or any one for Mr. Temple or you, had given this negro, Joe Wright, permission to sell his cotton for 1920, or any part of it? A. I did not; no, sir. I was sending up to see about this cotton all the time." Appellee virtually admits that the conflict in the testimony of these witnesses presented an issue of fact for determination by the jury, for there had been no substantial evidence to show authority in Orton to grant permission to Joe Wright to sell the cotton freed from the mortgage liens. The record reflects that appellee's mercantile business was in Fulton, quite a distance from his home, which was in Texarkana, and that the business was supervised largely by employees. Appellee visited the place of business every week or two. Orton was the bookkeeper and assistant manager for the business. He had charge of the accounts, credits, collections, settlements, and other things ordinarily incident to the business. At the time he made the statement attributed to him he was in pursuit of the cotton. It was a part of his duty to "keep a line on the cot (252 S. W.) ton" of tenants to whom they had furnished, conduct in connection with the drunken brawl, supplies. From these facts the jury might was not erroneous; the entire narrative being have reasonably inferred, had the opportu- necessary to a correct appreciation of what denity been extended, that it was within the fendant did and why he did it. scope of Orton's apparent authority to au- 3. Homicide 171(3) thorize the mortgagee to sell the cotton and account to him for the proceeds thereof. "A principal is bound by all that is done by his agent within the scope of his apparent power, and cannot avoid the consequences of his acts because no authority was in fact given to him to do them, unless they were in excess of the agent's apparent authority, or were done under such circumstances as put the person dealing with him, upon notice or inquiry as to his real authority." Jacoway v. Insurance Co., 49 Ark. 320, 5 S. W. 339; Brown v. Brown, 96 Ark. 456, 132 S. W. 220; Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646. The testimony was conflicting upon the issues of whether Orton had authority to release the mortgage liens and whether he gave Joe Wright permission to sell the cotton in the open market, so it constituted reversible error to withdraw the case from the jury. Bailey v. S. W. Veneer Co., 132 Ark. 63, 200 S. W. 280. Admission of testimony that defendant was violating liquor laws not error where merely cumulative of other testimony admitted without objection. In a prosecution for homicide, where the testimony of the witnesses in recounting the circumstances preceding the fatal difficulty developed the fact that defendant was engaged in the illicit operation of a whisky still, testimony of a witness who had joined in the search for the body of deceased that he was offered whisky at defendant's house, and that he found a still some distance from the house, was merely cumulative of undisputed testimony and was not objectionable, in that it tended to show appellant guilty of another offense. 4. Criminal law 1169(2) — Cross-examina. tion of defendant witness to show defendant manufactured moonshine not prejudicial where such fact undisputed. In a prosecution for homicide, where the testimony showed and defendant admitted that he had been engaged in the unlawful manufacture of liquor, the testimony of a witness The judgment is therefore reversed, and in behalf of defendant on cross-examination the cause remanded for a new trial. OWENS V. STATE. (No. 54.) (Supreme Court of Arkansas. June 18, 1923.) I. Indictment and information 125(29), 132 (4)-Separate counts may charge different means of killing, and state not required to elect as to which count trial would be had. An indictment for murder charging the crime in three counts, one alleging that defendant killed deceased by twisting and breaking his neck with his hands, the second that the killing was by striking and beating with a pistol, and the third that the manner and means of the homicide were unknown to the grand jury, both the second and third counts alleging that the crime charged was identical with that charged in the first count, held proper pleading to meet uncertainty in the proof, and the state was properly not required to elect upon which count defendant would be tried. 2. Homicide 171(1)-Entire circumstances surrounding crime admissible. Where defendant was charged with homicide following a disagreement between him and deceased in the presence of other companions during a drunken orgy at defendant's house, where the defendant had testified in his own behalf, as that defendant purchased large quantities of sugar from him a short time before the homicide was not prejudicial. 5. Homicide 281-Question whether witnesses were accomplices properly submitted to jury. In a prosecution for homicide, where witnesses testified that they went with defendant to the river and assisted him in disposing of the body only because they were required to do so, as defendant was armed with two pistols, and threatened to kill them if they did not assist him, and that he would kill them if they even told what they had seen, the court properly submitted to the jury the question whether such witnesses were accomplices. 6. Homicide 30(1)-Witnesses assisting in disposal of body under compulsion by defendant not accomplices. Witnesses are not accomplices to a homicide because they assisted the defendant in disposing of the body of deceased under compulsion and threats to kill them; defendant at the time being armed. 7. Homicide 249-Finding that witnesses were not accomplices supported by evidence. Evidence that defendant compelled witnesses to assist in the disposition of the body by threats to kill them, he being armed at the time, held sufficient to warrant a finding that such witnesses were not accomplices in the homicide. to the circumstances leading up to the fatal Appeal from Circuit Court, Little River John W. Owens was convicted of murder, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes " J. S. Utley, Atty. Gen., and John L. Carter and W. T. Hammock, Asst. Attys. Gen., for the State. June R. Morrell, of Ashdown, for appel- pellant beat him with his pistol and left him lant. for dead, and he then returned and found Taylor and Lovewell, who testified that appellant compelled them to go with him to dispose of the body, and the three went back to the place where Throckmorton was lying, and they found he was not dead, but had regained consciousness and he begged appellant not to kill him, but appellant seized Throckmorton's head, and by turning it and twisting it broke Throckmorton's neck. Tay. lor and Lovewell assisted appellant in putting the body in the boat, and they carried it down the river about three-quarters of a mile and dumped it into the stream. Before doing so appellant removed Throckmorton's coat, and had Taylor hang it on a snag in the river, and explained that he was having this done to make it appear, if the body was found, that Throckmorton had in some way drowned himself. SMITH, J. Appellant was convicted of murder in the first degree, and has been sentenced to be electrocuted. The indictment under which he was tried contained three counts, each charging him with having killed Hugh Throckmorton. The first count alleged that he killed Throckmorton by twisting and breaking his neck with his hands; the second count alleged that appellant killed Throckmorton by striking and beating him with a pistol; and the third count alleged that the manner and means of the commission of the crime were unknown to the grand jury; but both the second and third counts contained the allegation that the crime there charged was identical with that charged in the first count. [1] The court refused to require the state to elect upon which count appellant would be tried, and an exception was saved to that ruling. No error was committed in this ruling, as it was not improper to thus charge the offense to meet the uncertainty in the proof, and thereby prevent a variance. Williams v. State, 153 Ark. 289, 239 S. W. 1065; Nordin v. State, 143 Ark. 364, 220 S. W. 473; Harris v. State, 140 Ark. 46, 215 S. W. 620; Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436; Grayson v. State, 92 Ark. 413, 123 S. W. 388, 19 Ann. Cas. 929. According to the testimony on the part of the state the crime was one of revolting brutality. Appellant was engaged in the manufacture and sale of moonshine whisky, and was being freely patronized by deceased and several other neighbors, but he drank with them, and they all became more or less intoxicated. Appellant took charge of the party, and ran it to suit himself. He conceived the idea that some one had stolen his money -about $200-and he accused Euclid Cooper of having taken it. Cooper had gotten drunk and had left the scene of the carousal, and appellant ordered Throckmorton to find and bring Cooper to him, and he told Throckmorton that if he did not bring Cooper back he would kill him. Appellant had a controversy with one Jim Parham about a gun which he unsuccessfully attempted to take away from Parham, and then turned to Throckmorton, and said, "You go get Cooper or I'll kill you." Throckmorton protested that he did not know where Cooper was, but appellant marched Throckmorton out of the house and started with him towards the river, and cursed and abused him as he went, and he fired his pistol twice as he marched Throckmorton towards the river. Appellant does not appear to have shot Throckmorton, but the testimony strongly indicates that, after taking Throckmorton to the river bank, ap A physician who held a post mortem testified that Throckmorton was dead when the body was placed in the river, and that the neck was broken. He testified that he could not tell how the neck was broken, but that Throckmorton had not been hung. [2] Appellant was a witness in his own behalf, and admitted the truth of much of the testimony against him, but denied having assaulted Throckmorton in any manner, and denied that Taylor and Lovewell went with him to the river bank, or that Throckmorton's body was lying there or that it was thrown into the river. Appellant admitted having quarreled with Parham, but testified that it was becausé Parham, who was his partner in the liquor business, and owned half of the money which had been stolen from him, · would not give him his gun to be used in searching for Cooper. Appellant's disagreement with Parham was renewed after his return from the river where he had taken Throckmorton, and the admission of this tes timony is assigned as error. We think this testimony was properly admitted, as the entire narrative was necessary to a correct appreciation of what appellant had done and why he did it. What we have just said disposes of the objection to certain other testimony, all of which related to appellant's conduct in connection with the maudlin quarrel which led to the killing, or tended to explain appellant's connection with it. [3] Objection was made to the testimony of witnesses Waldrop and Smith, on the ground that their testimony showed that appellant was guilty of another felony, that of operating an illicit still. That fact was not proven as a circumstance unrelated to the crime with which appellant was charged, but was a circumstance mentioned by those witnesses in their testimony. Waldrop testified that he was notified that Throckmorton was reported missing the day after he was killed, and that he joined in the search for the body, (252 S.W.) and during his search went to appellant's either Throckmorton or Cooper. The sheriff house, where he was offered some whisky by of the county testified that on the afternoon appellant, and appellant sent away for more when the body was found appellant told him whisky, and on the next morning witness that it would be found about 20 or 30 steps came upon the still, which was about a mile down the river, directly across the river from and a quarter from appellant's house. This where the coat was hung on the snag in the witness saw deceased's mule, which he had river, and the body was found at about that ridden the day he was killed, at appellant's place. house, and he also saw there two shotguns which the deceased and Cooper had been seen with on the day of the killing. The testimony of the witness Waldrop tends to show that appellant was taking no part in the dict; and the judgment must therefore be search, although Throckmorton's mule was affirmed. Upon a consideration of the whole case, we are of opinion that no error prejudicial to appellant was committed, and that the testimony is legally sufficient to support the ver SHERMAN v. SHERMAN et al. (No. 35.) (Supreme Court of Arkansas. June 11, 1923.) at his place, and the guns belonging to de- ! ceased and Cooper were in his house, and the still was located by the witness while searching for the dead man. Moreover, it was an admitted, undisputed fact that appellant was making and selling liquor. He made no denial of that fact, and the testimony of Waldrop and Smith was merely cumula-. Husband and wife ~278(1)—Separation tive of that of other witnesses, whose narrative of the incidents leading up to the killing necessarily involved the statement that appellant was making and selling whisky. [4] W. C. Mize was called as a witness for appellant, and admitted in his cross-examination that appellant had bought at his store 300 pounds of sugar a short time before Throckmorton was killed. It is no doubt true, as counsel for appellant insists, that the purpose of this cross-examination was to show that appellant was engaged in the manufacture of liquor; but, as we have said, this was one of the undisputed facts in the case, and we think no prejudicial error was committed in not excluding that testimony. Maddox v. State (Ark.) 243 S. W. 853. [5] Appellant insists that the testimony of Taylor and Lovewell, if true, shows that they were accomplices, and that there was no corroboration of their testimony. Those witnesses testified that they went with appellant to the river, and assisted him in disposing of the body only because they were required to do so, as appellant was armed with two pistols, and told them he would kill them if they did not assist him, and that he would kill them if they ever told what they had seen. agreement settling property rights binding on parties, until avoided by their own conduct. A separation agreement settling property rights is valid and binding on the parties until avoided by conduct, showing that they regarded it as void. 2. Husband and wife 279 (3)-Separation agreement annulled by parties continuing to live together. Where the parties to a valid separation agreement afterward live together as husband and wife, and their conduct toward each other permits no other reasonable conclusion than that they have set aside or abrogated it, it will be held to have been annulled by them. 3. Dower 53-Wife continuing to live with and receive support from husband after separation agreement held entitled to dower. A wife, living with and supported by her husband in his home, and conducting herself as a faithful wife toward him until he died, about nine months after a separation agreement, by which she agreed to remove all her property from his residence and he to leave the city, held entitled to dower in his estate: their conduct showing their intention to end the contract in all respects. 4. Dower 12(I)-Second wife of decedent held entitled to half his property in fee, as against claims of one whom deceased and former wife had agreed to adopt. [6, 7] The court submitted to the jury the question whether Taylor and Lovewell were The second wife of one whose estate was accomplices or not, and gave a correct in- new acquisition and who died without children struction on the subject of their corrobora-held entitled, under Crawford & Moses' Dig. tion if they were found to be accomplices. § 3536, to half his property in fee simple as If the story told by those witnesses is accepted as true, they were not accomplices, and no corroboration of their testimony would have been required to support a conviction. But there was corroboration of their testimony. Other witnesses saw appellant march Throckmorton towards the river, and heard him curse and abuse him, and threaten to kill him if he did not produce Cooper, and in a short time appellant returned without D. Shaver, Chancellor. her dower immediately on his death, as against the claims of one whom deceased and his former wife had agreed to adopt and had cared for as their own child from his infancy, but never legally adopted; he standing only in the relation of a child for whose benefit an unperformed parol contract to adopt, to which the widow was not a party, had been made. Appeal from Clark Chancery Court; Jas. For other cases see same topic and KEY-NUMBER in aH Key-Numbered Digests and indexes |