(252 S.W.) by quietly withdrawing from the scene. The influence and effect of his encouragement continue until he renounces the common purpose and makes it plain to the others that he has done so, and that he does not intend to participate further. He cannot, by the coward's expedient of running away after he has incited his associates to crime, escape punishment." At section 27 of the same article (page 147) it is said: "Even though you may believe, and so find, [ "A person who encourages the commission of beyond a reasonable doubt, that the defendant an unlawful act cannot escape responsibility was in Cross county, Ark., prior to the commission of the crime with the witness Dill, and that he encouraged and advised the said Dill to commit the same, yet, if you find that the crime was to be committed on Friday, October 14, 1921, by witness Dill, and that after the commission of the crime the defendant was to meet Dill at a place on the railroad between Fair Oaks and Tilton, and that, after such agreement was so made, the said Dill for any cause abandoned the commission of said crime on said date, and that the defendant Karnes had likewise abandoned the commission thereof in good faith, and that he had left the state of Arkansas and gone to the state of Missouri, and was in said state on the date of the commission of the crime, and that said Dill had notice that the said Karnes had abandoned the intent to commit the crime, and with such notice the said Dill thereafter, on Saturday, the 15th day of October, committed said crime. then the court instructs you that the defendant is not guilty, and you will return a verdict for him." vice before the crime is committed and does "If the accessory withdraws his aid and adwhat he can to prevent its perpetration, he will not be liable if the crime is committed as the result of some new and intervening cause, but mere change of mind will not of itself ex onerate him." In the chapter on Criminal Law in 16 C. J., under the subhead of Accessories Before the Fact, it is said at section 124, pp. 133, 134: "Where the perpetration of a felony has been entered upon, one who had aided and encouraged its commission may nevertheless, before its completion, withdraw all his aid and en It is earnestly insisted that error was committed in refusing this instruction, it being insisted that, when Karnes failed to meet Dill at the meeting place on the rail-couragement and escape criminal liability for road, and then went to Fair Oaks, where he also failed to meet Dill, this was notice to Dill that Karnes had not and would not carry out his part of the agreement, and that, having such notice, Dill could not assume that Karnes was concurring in his conduct on Saturday when the robbery was carried out in a manner that had never been agreed upon. Now, the defendant did not testify that he had ever abandoned the conspiracy. On the contrary, his defense is that he never entered it, and all the testimony offered by him was directed to an attempt to sustain that defense. [1] It is true that, if testimony of a substantial nature presents a defense, the defendant is entitled to have an instruction given on that subject, although it contra dicts his own testimony. Gibson v. State, 135 Ark. 520, 205 S. W. 898; Flake v. State (Ark.) 245 S. W. 174. [2] One cannot aid and advise another to commit a crime, and, after inducing him to do so by giving advice and encouragement and assurance of support, escape responsibility by saying that the crime was not committed at the time and place or in the exact manner he had advised. He must withdraw the aid and assistance which prompted and induced the commission of the crime; and this withdrawal must not be a mere mental process, of which the actual perpetrator of the crime is unaware, but he must communicate the fact of his withdrawal to the person whom he has inspired to commit the crime, and must do so before its commission. At section 12 of the article on Accessories in 1 R. C. L. p. 139, it is said: the completed felony; but his withdrawal must be evidenced by acts or words showing to his confederates that he disapproves or opposes the contemplated crime. Thus his mere flight from the place of the crime before its completion, although his coconspirators have knowledge thereof, will not relieve him from liability for the consummated crime." At section 132, p. 137, of the same text, it is said: "If one who has counseled or commanded the commission of a crime, or has agreed to take part in it, repents and withdraws, to the knowledge of the other party, before the crime is committed, he will not be liable as an accessory; but if he does not withdraw until it is too late, or fails to let the other party know of his withdrawal, he will be liable." At section 128, p. 135, of the same text it is said: "But for crimes which are the outcome of a total or substantial departure from his counsel. agreement, directions, or instructions he is not liable. Where a particular intent is requisite to constitute a crime, an accessory before the fact must have participated in that particular intent." To the text last quoted there is a (note 37 [b]) reading as follows: "I believe the following criteria will let the most inquisitive reader into the grounds upon which the several cases falling under this head will be found to turn: Did the principal der the influence of the flagitious advice, and commit the felony he standeth charged with unwas the event, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, willfully and knowingly commit a felony (Ark, of another kind or upon a different subject?' | tive, so far as that occasion was concerned, Foster, Crown L. p. 372." appellant abandoned the project in good Under these tests the instruction was not faith under such circumstances as were suf a correct declaration of the law. [3] The instruction is abstract. The conspiracy was not to rob Black on the 14th, and on no other day, and while he was hauling cotton, and in no other way. The con spiracy was to rob Black, and the time and place of doing so was a mere detail. Indeed, there had been two plans to rob Black, and both had failed; but the failure in neither case was due, in whole or in part, to the withdrawal of any conspirator from the conspiracy. The failure in the first instance was due to the fact that Black did not haul his cotton to the gin where the conspirators èx pected him to haul it. The second plan miscarried because there were too many people on the road. Karnes was not to actually participate in the robbery according to the second plan. He was not to be present. He was only to wait at an appointed place, and his mere failure to keep the appointment would not support a finding that Karnes had abandoned the crime, and that Dill had notice thereof, and there was no other testimony in the record upon which to submit that question. The crime was committed with a pistol Karnes had provided for the purpose, and on the morning following the time when its commission had been agreed upon. Dill testified that Karnes' explanation of his early departure for home was that his "nerve" had failed him, which was, of course, no legal excuse for his prior participation. We recognize and concede the right of the jury to accept such parts of Dill's testimony as they believed to be true, and to reject the parts believed to be false; but we think there is no reasonable interpretation of the testimony from which the jury could have found that Karnes withdrew from the conspiracy and notified Dill of that fact. He was either guilty from the beginning of the conspiracy until the spoils were divided, or he was never a party to the conspiracy at all; and we think no error was committed in refusing to give the instruction set out above. [4] We think the testimony was legally sufficient to support that of the accomplice Dill; and it was, of course, a question of fact for the jury to pass upon its truthfulness as well as the testimony tending to establish an alibi; and, as we find no error in the record, the judgment is affirmed. MCCULLOCH, C. J. (dissenting). There is testimony from which the jury might have found that the conspiracy was to perpetrate the robbery at a particular time and in a particular circumstance, and that after the preparations for the crime had proved abor ficient to give notice to the other conspirators of his withdrawal. If those were the facts, then appellant was not a participant in the subsequent commission of the crime under different circumstances, so as to make this depends on the fact that the aid or enhim guilty of aiding and abetting. Of course, couragement of the crime was limited to a particular time and occasion; for, if such aid commission of the crime, mere withdrawal and encouragement was given toward the from the project did not undo the unlawful participation. Such is, I think, the effect of the authorities cited in the opinion of the majority. Appellant was entitled to an injury, and the instruction requested by appelstruction submitting that question to the lant was correct. HART, J., concurs. THOMPSON et al. v. MANN. (No. 38.) (Supreme Court of Arkansas. June 11, 1923. Dissenting Opinion, July 2, 1923.) 1. Highways 90-Statute relating to organization of improvement district limiting total cost of particular highway improvement held to include amount already expended at the time enacted. lating to the organization of a particular road Acts Gen. Assem. 1923, No. 316, § 9a, reimprovement district, and limiting the cost of a contemplated improvement to a certain figure, held to intend that such figure should be the limit of the total cost, and that the $50,000 expended for preliminary plans before the enactment of the statute must be included as a part of such total cost. 2. Statutes 184-Rules of construction invoked only where statutes uncertain, and can never defeat manifest purpose. Rules for the construction of statutes are invoked only when the meaning of a statute is uncertain, and are never allowed to defeat the manifest purpose. 3. Highways 122-Legislative finding that particular lands would not receive greater benefits than others, held not arbitrary. Acts Gen. Assem. 1923, No. 316, § 4, containing a legislative finding that lands along a particular road improvement project, which were in both the road district and in a sub district, would receive no greater benefit per acre than lands in other part of the district not arbitrary, the obvious purpose being to reequally distant from the approved road, held lieve landowners whose lands were in both districts from paying more than others whose lands were not and were no nearer the road. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S. W.) 4. Highways 105 (2) — Statute authorizing | Crawford v. Pulaski Road Improvement Disimprovement of city streets as part of road trict No. 10, 154 Ark. 311, 242 S. W. 559. improvement project held not unconstitutional. The General Assembly of 1923 passed four Acts of 1923, No. 347, relating to a particu-acts relating to this district; but the conlar road improvement project and declaring struction of only two of them appears to be that the commissioners should have the right involved in this litigation, those being Acts to improve certain streets in the city of Little Rock as a part of such project, held not a vio- Nos. 316 and 347. lation of Const. art. 19, § 27, in that it authorized paving of streets of a city without the consent of the owners of property adjoining the locality to be affected. 5. Highways 90-Legislature may create road district and authorize road improvements through Incorporated town or city. It is within the legislative power to create a road district and authorize commissioners to improve the road through an incorporated town or city. Act 316 authorizes the commissioners to add a hard surface to that part of the Baucum road in section 2 from its intersection with the Galloway pike to a point about a mile and a half south of Scott Station, and added to the boundaries of the district some land in Lonoke county, and extended the northern boundary of section 2 in Pulaski county about one mile. This act contained a limitation on the cost of construction, found in section 9A, which McCulloch, C. J., and Humphreys, Wood, and reads as follows: Hart, JJ., dissenting in part. "Section 9A. The road provided for in this act shall not be less than 16 feet nor more than Appeal from Pulaski Chancery Court; 20 feet in width, and shall not cost said district Jno. E. Martineau, Chancellor. in excess of $330,000 exclusive of interest." Suit by Roy L. Thompson and others Section 4 of Act 316 also contains a legisagainst W. H. Mann. From a decree dismiss-lative finding that the lands in this section of ing a portion of the complaint and for plain- the district which were also situated in the tiffs on the remainder, both parties appeal. boundaries of the North Little Rock and GalAffirmed. loway road district would receive no greater Rose, Hemingway, Cantrell & Loughbor-benefit per acre than lands in other parts of ough, of Little Rock, for appellants. Cockrill & Armistead and Jno. W. Newman, all of Little Rock, for appellee. the district equally distant from the improved road; it also contained a limitation that the entire improvement, together with the interest on the cost, should not cost the rural lands in section 2 more than $250,000. Act No. 347 provided that the commissioners should have the right to improve Victory street from Third to Markham, and to improve Markham street from Victory to Main as a part of the improvement in section 6 of the district; this being a part of the improvement which the commissioners were originally authorized to make but later abandoned. Appellee the plaintiff below-is the owner of lands in both sections 2 and 6 of the district, and he alleged that the commissioners were incurring expenses in the preparation of plans for the improvement of the Baucum road which would cost exceeding $330,000, the limitation contained in the section of the statute quoted above; and that the limitation of $250,000 on the rural lands found in section 9B of Act 316 would also be exceeded. SMITH, J. This is the third appeal involving road improvement district No. 10 of Pulaski county. In the case of Cumnock v. Alexander, 139 Ark. 153, 213 S. W. 767, the validity of Act No. 436 of the regular 1919 session of the General Assembly creating the district was upheld. At the extra session of the General Assembly acts were passed which changed the plans of the improvement by adding certain roads to be improved and by eliminating one of the subdistricts. The statute as amended provided for the improvement in the subdistrict No. 6, of a road designated as the Perryville road, beginning in the city of Little Rock at Main and Markham streets, and running out Markham street to Victory street, thence south on Victory to Third street, thence west past Forest Park, and thence northwesterly to Cross Roads. The commissioners determined that the portion of Plaintiff also attacked as arbitrary the legthe improvement extending from the corner islative finding of benefits contained in secof Main and Markham to Third street, just tion 4 of Act 316; and he also attacked as described, could be eliminated because those unauthorized the action of the commissioners streets could be used as a part of the improve-in incurring expense in making plans for the ment without repair or other work on the improvement of the streets in the city of Litpart of the district; and the county court ap- tle Rock set out above, asserting that this proved the amended plans of the commission-could be done only upon a petition of a maers which excluded those streets from the jority in value of the owners of property ad plans of the improvement. A property owner jacent thereto. in the district sought to restrain the commis- The answer put in issue all the allegations sioners from thus changing the plans; but of the complaint, and the cause was heard on we upheld their right to do so in the case of the pleadings and on oral testimony which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes is before us in the bill of exceptions made at | sum to be expended after the passage of the the trial. act which contains the limitation. The court dismissed all of the complaint for [3] The majority is also of opinion that want of equity except that portion seeking to the legislative finding contained in section 4 restrain the commissioners from incurring of Act 316 is not arbitrary. The testimony expense in making plans for the improvement establishes the fact that the lands affected of the Baucum road, the total cost of which are of the same general kind, all being level the court found would exceed $330,000. Both and arable except certain lands lying in parties have appealed. lakes, but the finding of benefits does not apply to the lands covered by water, as they are expressly excepted. This appears to be a case in which the adoption of the zone system as the basis of assessment of benefits is not It appears from the testimony that the commissioners have sold $80,000 in bonds for the purpose of obtaining money to improve the Baucum road, and had expended $50,000 of that amount when Act 316 was passed. After arbitrary, and, as is pointed out in the brief the passage of that act the engineer of the district changed the plans of that improvement, and admitted in his testimony that the improvement contemplated by the changed landowners whose lands were in both displans could not be constructed for $330,000, if the $50,000 already expended was included as a part of the cost. [1, 2] We think the court properly construed section 9A of the act, and that the $330,000 is a limitation on the total cost. It is true that statutes are construed prospectively; but the aid of rules of construction is invoked in the interpretation of statutes only when the meaning of a statute is uncertain, and rules of construction are never allowed to defeat what appears to be the manifest purpose of the lawmaking body. Hopper v. Fagan, 151 Ark. 428, 236 S. W. 820. of counsel for the road district, the obvious reason for the provisions of section 4 is that the Legislature desired security for those tricts that they would not have to pay more than other lands not in both sections and no nearer the road. In other words, the assessment of benefits for the new road must take into account the fact that the existing road affords benefits for which they no doubt had already been assessed, which fact must be taken into account, in assessing for an additional road, and the General Assembly has, for itself, found and declared a limitation on these betterments; and we think there was no abuse of power in this respect. Hill v. Echols, 140 Ark. 474, 215 S. W. 882; Hines v. Road Improvement Dist. No. 5, 145 Ark. 382, 224 S. W. 817. Justices WOOD and HART do not concur in this view; it being their opinion that the legislative finding it arbitrary. Obviously, the thing of interest to the taxpayer is the cost of the improvement-the total cost thereof. The $50,000 already expended is a part of the cost which the taxpayer will have to discharge, and the work [4, 5] The majority is also of opinion that done with this $50,000 is a part of the final the section of the act authorizing the paving plans for the improvement and must be tak- of Victory and Markham streets in the city of en into account in ascertaining what the cost Little Rock is valid. The objection to this of the road will be, because the work done provision of this statute is that it violates with this $50,000 will be a part of the road. section 27 of article 19 of the Constitution, This $50,000 worth of work has not been in that it authorizes the paving of streets in paid for by the property owners except that a city without the consent of the property bonds have been sold which are liens up holders owning property adjoining the localon the lands in the district, and their pay-ity to be affected. ment lies in the future as the bonds mature, The question which determines the validity and these liens can be discharged by the prop- of this part of the statute is whether the paverty owners only when they have paid the ing of those streets is properly a part of the cost of the improvement, and this cost will proposed improvement; and, if that question include the whole amount expended for the is answered in the affirmative, the statute is construction of the road. valid, for we have several times held that the In placing this limitation on cost, the Leg-Legislature may create a road district and islature excluded interest, but excluded in-authorize the commissioners to improve the terest only, and it follows, therefore, that the commissioners are without authority to build a road which will cost exceeding $330,000 exclusive of interest. What we have said is applicable also to the limitation on the cost to the owners of rural property contained in section 9B; but the testimony shows that this limitation will not be exceeded. road through an incorporated town or city. Cumnock v. Alexander, 139 Ark. 153, 213 S. W. 767; Summers v. Road Imp. Dist., 139 Ark. 277, 213 S. W. 775; Reitzammer v. Road Imp. Dist., 139 Ark. 168, 213 S. W. 773; Cox. v. Road Imp. Dist., 118 Ark. 119, 176 S. W. 676; Nall v. Kelley, 120 Ark. 277, 179 S. W. 486; Bennett v. Johnson, 130 Ark. 507, 197 S. W. 1148; Tarvin v. Road Imp. Dist., 137 Ark. The Chief Justice and Mr. Justice Hum- 354, 209 S. W. 81. Indeed, in the case of phreys do not concur in the view that the Cumnock v. Alexander, supra, one of the limitation covers total cost; they being of the grounds of attack on the statute was that opinion that this limitation relates to the the commissioners were authorized to im (252 S.W.) prove those streets, and we held the commis | whole road as specified in the original dissioners had the right to do so. The com- trict, for there is no intimation that any missioners later determined the improvement change was intended to be made in the whole could be constructed without the improve- road; but, in dealing with the question of ment of those streets, and we held that if such was the case the district would not be required to improve them. Crawford v. Pulaski Road Imp. Dist. No. 10, 154 Ark. 311, 242 S. W. 559. Now the Legislature has determined that this part of the improvement should be restored as a part of the Perryville road; and we must assume that there has been a review or a reconsideration of the finding of the commissioners upon which they abandoned this part of the road. paving with hard surface a portion of the road described, it was deemed advisable to specify the width as well as the maximum cost, and this is all done in one sentence, and it shows clearly that the Legislature meant to prescribe the width and the maximum cost only of that part of the road which was to be paved. ATHLETIC TEA CO. v. McCORMACK. (No. 40.) (Supreme Court of Arkansas. June 11, 1923.) Principal and surety 98-Sureties on bond conditioned on faithful performance of contract held released by waiver of condition of contract without their consent. Of course, the Legislature could not authorize the improvement of the streets of a city under the guise of connecting the streets with the country road districts; but we do. not feel warranted in saying that this is a subterfuge to permit this to be done, but is rather a single improvement of which the city streets mentioned compose a part; and upon this assumption that portion of the act is upheld. Justices WOOD and HART do not agree to the conclusion of the majority on this feature of the case. The views of the different members of the court result in the affirmance of the decree of the court below in its entirety; and it is so ordered. MCCULLOCH, C. J. (dissenting in part). Mr. Justice HUMPHREYS and the writer do not agree to that part of the opinion which holds that the sum mentioned in the statute under consideration is a limitation on the total cost of the improvement of the whole road. It is the purpose of interpretation of a statute to ascertain the meaning of the lawmakers-not by the application of any particular formula, but by an examination of the language of the statute as a whole. State ex rel. v. Trulock, 109 Ark. 556, 160 S. W. 516. In an action against a principal and sureties on a bond which was conditioned upon the faithful performance of a contract, which contract provided that the principal who was in the employ of plaintiff should make weekly reports of total sales, cash collected, and stock on hand and in transit, held, that plaintiff company, by waiving the provision in the contract requiring the submission of weekly reports to showing the stock on hand and in transit, had thereby effected a material change in the terms of the contract which operated to release the sureties who had not given their consent. 2. Appeal and error 197 (7)-Objection to particular defense held not available when first asserted as grounds for reversal on appeal. In an action against a principal and sureties on his bond, where judgment was entered for defendant surety because plaintiff without such defendant's consent had waived a provision in the principal's contract, held, that a reversal of the judgment was unwarranted on the ground that such waiver had not been pleaded as a defense, where the evidence to establish it was introduced and the case tried on that theory without objection below. In enacting the statute under consideration, the lawmakers were dealing, not with the whole project as authorized in the original statute creating the district, but with a particular part of the road-that part which is definitely described in the new statute. The statute provides that the particular part of the road which is described shall be paved. C. Langford, R. F. Marsh, and Dr. G. A. with hard surface, and it is declared that the Appeal from Circuit Court, Pulaski County; A. F. House, Judge. Suit by the Athletic Tea Company against McCormack. From judgment for plaintiff against the first two named defendants and in favor of the last-named defendant, plaintiff appeals. Affirmed. Rogers, Barber & Henry, of Little Rock, for appellant. Chas. Q. Kelley and Carmichael & Hen dricks, all of Little Rock, for appellee. HUMPHREYS, J. This is a suit upon a contract and bond by appellant against O. C. Langford, as principal, and R. F. Marsh and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |