evidence is uncontradicted that the heat ac tually applied has a temperature of from 1,500 to 1,800 degrees Fahrenheit. There was further evidence that the city dumps, exposed sewers, and old-fashioned vaults, and especially the engines engaged in switching in the railroad yards, emit gases and odors similar to those complained of. In fine, the case is one where not only other causes for the existence of the nuisance complained of were shown, but the evidence of all those who had any technical knowledge on the subject was to the effect that noxious gases and offensive odors were not emitted by the defendant in such quantities as to affect the health, or interfere with the comfort, of the public generally. We therefore conclude that, on the showing made below, the order closing the plant should not have been made, but that the rule should have been discharged. after the erection of the plant. On the other | excess of 400 degrees Fahrenheit, and the hand, the evidence for the company is as follows: Other plants engaged in refining crude oil are permitted to carry on their business in and near various towns and cities throughout the country, although they have never taken any precautions to neutralize the odors or consume the gases. Since the finding of the indictment, the defendant has equipped its plant with the best appliances known to science for destroying the gases and odors complained of. One expert, of long experience in such matters, analyzed the gases and gave it as his opinion that their combustion was practically complete. It was conceded that other experts would testify to the same effect. No expert was introduced by the commonwealth for the purpose of rebutting this evidence. On the contrary, Dr. White was candid enough to admit that he did not know whether any poisonous gas was thrown out after the introduction of the gas to the furnace. He also admitted that hydrogen sulphide might be consumed by heat in Judgment reversed, and cause remanded, with directions to set aside the order closing the plant and to discharge the rule. (149 Ark. 336) (232 S.W.) CUNNINGHAM v. STATE. (No. 63.) (Supreme Court of Arkansas. June 27, 1921.) MCCULLOCH, C. J. Appellant was charged in the indictment with murder in the first degree, but was convicted of voluntary manslaughter. The charge is that he shot and killed Walter Allen. According to the testi-. 1. Criminal law 761 (12) Instructions on self-defense do not assume killing by defend- mony adduced at the trial, appellant and Alant, which he denied. In a prosecution for homicide, where defendant denied that he killed deceased, the giving of correct instructions on the law of self-defense was not erroneous, as assuming that defendant killed deceased. len were living together in the same house on a farm which Allen had rented from the owner. Appellant was working on the shares with Allen. Appellant had a family, consisting of a wife and children, but it does not appear from the evidence that Allen had any 2. Criminal law 784(4)-Instruction on cir- family; at least, none of them lived with cumstantial evidence hela correct. 3. Criminal law 823(15), 834(5)-Modification of requested instruction on presumption of innocence held proper. The modification of an instruction on the presumption of innocence, by striking therefrom the sentence that, "as long as the jury had reasonable doubt as to the existence of any one of the elements necessary to constitute the offense, the accused could not be convicted," was not erroneous, where the instruction was complete without that sentence, and, with other instructions, completely declared the law as to the burden of proof and reasonable doubt, especially since the stricken language was erroneous as an independent declaration of law. 4. Criminal law 829(1)-Court can strike from requested instructions statements contained in court's instructions. It was not error for the court to strike from instructions requested by accused language which was given by another instruction on the court's own motion. 5. Criminal law 939(1)-Motion for new trial for newly discovered evidence of defendant's insanity must show diligence. Though defendant has remedies available for determining his sanity or insanity at the time of the trial or thereafter, on suggestion of such insanity to the court, a motion for a new trial on the ground of newly discovered evidence tending to show defendant was insane at the time he committed the offense must show diligence in attempting to secure the evidence before the trial. him. The house in which they lived was a small one, and was divided by an open hall through the center, and was situated from 100 to 200 yards from a public road. There was no eyewitness to the killing; at least, none was introduced as a witness. Allen's body was found lying in the open hall and a double-barrel shotgun which he owned was found in the grasp of his right hand. Two witnesses, Gore and Watkins, testified that on the morning of the day during which the dead body of Allen was found in the hall they were passing along the road near the house where appellant and Allen lived, and saw two men going towards the house talking to each other, and one of them was rather excitedly gesturing; that the two men passed behind the house from them, and immediately thereafter they heard a gunshot; that after the men passed out of their view they (witnesses) passed along about 50 yards up the road, and then saw a man lying in the hall, and saw a boy walking across the hall. The boy appeared to be about 8 or 10 years old, and the witnesses also stated that the boy passed in front of the house after they heard the gunshot. One of the witnesses testified that he recognized appellant as one of the two men who were walking towards the house shortly before they heard the gunshot. Another witness, Miss Snyder, who lived but a short distance from the house where appellant and Allen lived, testified that on the morning of the day on which the body was found she was out in front of her fa ther's house, and saw appellant and Allen just before she heard the gun; that she saw the two men going towards the house, talking to each other and gesticulating, and after about the length of time had elapsed for them to get into the house she heard the gunshot; that she saw appellant come out of Appeal from Circuit Court, Columbia the house and walk towards a tree in the County; Chas. W. Smith, Judge. Tom Cunningham was convicted of voluntary manslaughter, and he appeals. firmed. Af Henry Stevens, of Magnolia, for appellant. J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State. back yard, and then go back to the house, and that he then went down to the field, where a Mr. Daniels and appellant's daughter were at work. This witness also testified that she saw a boy go towards the house just before the gun fired, but she did not know whether he entered the house; that the boy was appellant's son, and was about 9 or 10 years old. She recognized appellant and Allen as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes being the two men whom she saw going towards the house just before the gun was fired. Appellant testified as a witness, and denied that he shot Allen. He testified concerning the trouble which had arisen between him and Allen; that Allen had abused and mistreated him, and had also abused his daughter, and offered her certain indignities. He testified that on the morning in question he was working in the field, when Allen came out and gave him directions about the things to be done on the farm, and that Allen struck him and knocked him down; that the last time he saw Allen the latter directed him to go and get a trespassing animal out of the field. Appellant stated that, after looking for the animal and failing to find it, he went back through the corn to see if he could find Allen, and went to the house after water, and saw the body of Allen lying in the hall with the shotgun grasped in his hand. There was other testimony in the case with reference to Allen's conduct towards appellant and towards appellant's daughter. There are other circumstances detailed in the evidence which are unnecessary to mention. [1] The court submitted the issues to the jury upon instructions covering all the phases of the law of homicide, and the instructions were all in the forms which have received the approval of this court. It is not contended that there were errors in any of the instructions, but it is insisted that the court erred in giving an instruction on the law of self-defense, and also erred in giving one on the subject of deliberation and premeditation as elements of murder. The argument is that, since appellant denied that he killed the deceased and did not offer any proof on self-defense, these instructions were abstract and were calculated to mislead the jury to appellant's prejudice. The contention is that the giving of these instructions constituted an assumption by the court that the killing was done by appellant. It is unnecessary for us to determine whether or not there was any proof which would have justified a finding by the jury that the killing was done in self-defense. But we do not think that the giving of either of the instructions referred to constituted any assumption of the fact by the court. It is not contended that any particular language of either of the instructions assumed the existence of any fact, but the argument is that the mere giving of the instructions on those subjects presupposed that the killing was done by appellant and constituted an assumption of that fact. It is true that appellant made no claim of self-defense, but, on the contrary, asserted in his testimony that he did not commit the homicide and was not present when it was committed. That issue was properly submitted to the jury, and the instructions on self-defense and on the subject of premeditation and delibera tion as essential elements of the crime of murder in the first degree, were given for the benefit of the accused. Even conceding that there was no evidence to justify a finding that the killing was done in self-defense, we cannot say that any prejudice could possibly have resulted from the giving of these instructions. It was tantamount to saying to the jury that, if they found that the accused did the killing, they should consider the law of self-defense as declared by the court. We think there was no prejudice resulting from the giving of these instructions. [2] Objection was made to instruction No. 13, which reads as follows: cumstantial evidence is legal and competent "The court further instructs the jury that cirin criminal cases, and if it is of such a character as to exclude every reasonable hypothesis, other than that the defendant is guilty, it must be received just as direct evidence is received." We see no objection to the substance of this instruction, whatever criticism may be made to the form. The proposition of law stated therein is correct, when considered in connection with other instructions given to the jury on the subject of reasonable doubt. Jones v. State, 61 Ark. 88, 32 S. W. 81; Bost v. State, 140 Ark. 254, 215 S. W. 615. [3] The next assignment relates to the ruling of the court in modifying appellant's instruction No. 1 by striking out the last sentence, as follows: "You are instructed the law presumes the defendant to be innocent of the crime charged, and this presumption continues in his favor throughout the trial, step by step; and you can" not find the accused guilty of any of the crimes charged in the indictment until the evidence in the case satisfies you beyond a reasonable doubt of his guilt. And as long as you have a reasonable doubt as to the existence of any one of the several elements necessary to constitute the offense or offenses charged, the accused cannot be convicted." The instruction was-complete without the last sentence, and in connection with other instructions completely declared the law as to the burden of proof and reasonable doubt. Indeed, the language stricken out, when considered as an independent declaration of law, is erroneous. Carr v. State, 81 Ark. 589, 99 S. W. 831. Instruction No. 8, given on the court's own motion, and instruction No. 7, given at appellant's request, stated to the jury, in substance, that it devolved upon the state to prove beyond a reasonable doubt each of the material allegations in the indictment. [4] The court also modified instruction No. 3, requested by appellant; but the language stricken out was also covered by another instruction given on the court's own motion. [5] Finally, it is insisted that the court (232 S.W.) (149 Ark. 343) CRAWFORD v. HARMON et al. (No. 64.) primary elections determined by party's rules. In a Democratic primary election contest, demurrer was improperly sustained to a paragraph of the complaint alleging that the election judges in certain townships had permitted persons to vote, in the primary, who were not, under the established rules of the Democratic party, entitled to vote, because they had not supported the party nominees at the last preceding general election, and that such persons voted in the primary election for contestee; for the rules of the political organization, not conflicting with statutes, control in determining voters' qualifications as respects primary elections. 2. Elections 154(6)-Sustaining demurrer to paragraph in primary election contest complaint held harmless. Sustaining demurrer to paragraph in a primary election contest complaint held harmless, where, after the number of votes claimed in such paragraph to be illegal, contestee was still left with a majority of the votes. 3. Elections 154 (92) -Paragraph of complaint in primary election contest relating to unsigned ballots held demurrable. erred in refusing to grant a new trial on the ground of newly discovered evidence. In the motion for a new trial appellant alleged the discovery, subsequent to the trial, of evi- (Supreme Court of Arkansas. June 27, 1921.) dence which tended to prove that appellant. Elections 126(4)-Eligibility to vote at at the time of the killing of Allen was insane, "or was under such a defective reason as not to have known the nature of the act of killing." It is further alleged in the motion that the fact of appellant's insanity was unknown to appellant's counsel until after the trial and verdict. Affidavits were filed in support of these allegations. It appears from the record that appellant had been living in Columbia county for a number of years, and that his counsel had been personally acquainted with him to some extent for a long time. ed with him to some extent for a long time. Appellant was introduced as a witness at the trial in his own behalf, and testified concerning his relations with Allen and all of the things that transpired between them on the day of the killing. There is no diligence shown in the discovery and production at the trial of evidence of appellant's alleged mental incapacity. The fact that the newly discovered evidence related to appellant's mental condition at the time of the alleged commission of the crime does not alter the rules and practices with reference to requiring diligence in testing the sufficiency of a motion for new trial grounded on newly discovered evidence, Diligence must be shown on a motion based on that ground, as well as on the ground of newly discovered evidence in regard to other defenses. There are other available remedies for establishing, either before or after verdict, the fact of the insanity of the accused at the time of the trial. The accused may, before the trial, cause an inquiry to be made as to his sanity for the purpose of postponing the trial, or after trial, when the accused appears for judgment, he may show that he is insane. Duncan v. State, 110 Ark. 523, 162 S. W. 573. After the expiration of the term the trial court, upon proper showing of insanity of the accused at the time of the trial, may, when it appears that the question of insanity was not suggested at the trial, issue the writ of error coram nobis for the purpose of inquiring into that question, and empaneling a jury for that purpose. Hydrick v. State, 104 Ark. 43, 148 S. W. 541; Hodges v. State, 111 Ark. 22, 163 S. W. 506. It is not alleged in the motion in this case that appellant was insane at the time of trial, and therefore the court did not treat it as a motion to inquire into the question of the insanity of the accused for the purpose of suspending judgment. Duncan v. State, supra. The alleged discovery of evidence cannot, therefore, afford grounds for a new trial without the proper showing of diligence. Finding no error in the record, the judgment is affirmed. In primary election contest, a paragraph of the complaint was demurrable, where it alleged that the ballots of many persons voting in certain townships were not signed by the voter, and ballots could not be identified, but did not allege that the election officials failed to keep and retain a register, showing the names of each person who voted and the number of the ballot of each person, nor that the ballots were left unsigned with any fraudulent intent on the part of the voter or any of the election judges; for such allegations were insufficient to afford grounds either for disregarding the unsigned ballots or for discarding the returns in the townships in which such ballots were alleged to have been cast, as the statute affords two methods of identification of the ballots-one by the voters' signatures, and the other by the register kept and returned by the election officials-and failure to observe one of these methods, unless done with fraudulent intent, does not invalidate the vote of the township or precinct. 4. Elections 126 (6)-Accepting vote of sick man, not present at polls, did not invalidate whole vote of precinct. In a primary election, the fact that one of the election judges, without fraudulent design, went to the home of a qualified elector, who was sick, and received such elector's ballot, and took it back to the voting place, and deposited it in the box, while ground for throwing out the ballot as having been improperly cast, held not ground for discarding the whole vote of the precinct. Appeal from Circuit Court, Franklin County; James Cochran, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pellees. Election contest by S. S. Crawford against [mitted 45 persons to vote who were not, unC. G. Harmon and others. From judgment der the established rules of the Democratic for defendants, plaintiff appeals. Affirmed. party, entitled to vote, for the reason that J. D. Benson and J. P. Clayton, both of said persons had not supported the nominees Ozark, T. A. Pettigrew, of Charleston, and at the last preceding general election, and Evans & Evans, of Booneville, for appellant. that said persons had cast their ballots for G. C. Carter and David Partain, both of appellee. Under the law as declared by this Ozark, and G. L. Grant, of Ft. Smith, for ap- court in the recent case of Ferguson v. Montgomery, 229 S. W. 30, the court erred in sustaining the demurrer to these two paragraphs. We held, in that case, that persons were ineligible to vote in a primary election who were members of another political orthe established rules of the political party ganization, or who were not eligible under under whose auspices the primary election rules of the political organization not in conwas held. In other words, we held that the rules of the political organization not in con MCCULLOCH, C. J. At the general primary election held on August 10, 1920, for the purpose of nominating candidates of the Democratic party, appellant and appellee were opposing candidates for the office of sheriff of Franklin county, and upon the canvass of the votes appellee was returned as the successful candidate by a majority of 43 votes, having received 941 votes and appel-flict with the statutes would be controlling lant having received 898 votes. Appellant instituted a contest in the circuit court pursuant to the statute (Crawford & Moses' Digest, § 3772), and in his complaint, containing numerous paragraphs, he set forth his grounds for the contest. He alleged, in substance, that certain members of the Re publican party in Franklin county were allowed to vote and voted for appellee; that certain other persons, who had not been affiliated with the Democratic party and who were ineligible to vote under the rules of the party, were permitted to vote in said election and cast their ballot for appellee; that certain persons who were not qualified electors because of the fact that they had not paid their poll tax were permitted to vote at the election and voted for appellee; that in certain townships the ballots cast by the voters were in many instances unsigned and that the judges of the election in some of the precincts were guilty of electioneering in violation of the statute and permitted ballots to be cast where the voters were not in fact present. The court sustained a demurrer to three of the paragraphs of the complaint, and after an answer was filed by appellee the cause proceeded to a trial on the pleadings and the evidence adduced. The trial resulted in a finding by the court in favor of appellee. The court found that appellee received 884 legal votes at the election, and that appellant received 800 legal votes, a majority of 84 votes in favor of appellee. It is thus seen that, according to the findings of the court, appellee received a greater majority of legal votes than had been given him in the certificate of the canvassing board. [1] In one of the paragraphs of the complaint to which the court sustained a demurrer it was alleged that the judges of the election in certain townships had allowed to vote 23 persons affiliated with the Republican party and 2 persons affiliated with the Socialist party. In another paragraph of the complaint to which the court sustained a demurrer it was alleged that the judges of the election in certain townships had per in determining the qualifications of the voters. [2] It does not follow, however, that this error of the court would result in a reversal of the cause; for, if it be conceded that the ballots of all the persons named in these two paragraphs were illegal and should be subtracted from the count, it is insufficient to change the result, for these paragraphs only mention 70 illegal votes, and the court found that appellee had received the nomination by a majority of 84 votes. After deducting the alleged illegal votes mentioned in these two paragraphs, it still leaves appellee under the finding of the court with a majority of 14 votes. It appears that, notwithstanding the sustaining of the demurrer, the court permitted the parties to introduce proof concerning the allegations as to Republicans being allowed to vote, and there is proof tending to show that some of the persons mentioned in the paragraphs of the complaint were in fact eligible. But, even disregarding this proof, the allegations of the excluded paragraphs are not sufficient to show that there were enough illegal votes cast for appellee to change the result as found by the court. [3] In the other paragraph of the complaint to which the court sustained the demurrer it was alleged, in substance, that the ballots of many persons who voted in certain townships were not signed by the voter, as required by law; that appellant had no means of ascertaining and stating the names of said voters who failed to sign their ballots, and that those facts could only be ascertained by an inspection of the ballots themselves. The paragraph contained no allegations with respect to the names of any of the persons who are alleged to have cast the unsigned ballots. Nor is there any allegation with respect to how those persons voted. It is not alleged that the election officials failed to keep and return a register showing the names of each person who voted and the number of the ballot of each person. Nor is it alleged that the ballots were left unsigned with any |