first degree and murder in the second degree is that, while it is necessary to show an actual intent to take life, to convict of murder in the first degree, it is not necessary to show this to convict of murder in the second degree. Murder in the second degree is a killing with malice aforethought, and when there is no considerable provocation, or when the circumstances show an abandoned and wicked disposition, malice may be implied; and if the jury believe from the evidence that a party of men, commanded by the defendant, without provocation went to the house of George Black for the purpose of whipping him, and that, when said Black resisted said unlawful attempt by trying to defend himself and then fleeing, said defendant, without further provocation, ordered those under his command to shoot at said Black, that said order was obeyed, and said Black was wounded so seriously that he died from such wounds, then defendant is guilty of murder either in the first or second degree. He would be guilty of murder in the first degree if he gave such order to shoot Black with the deliberate intention formed in his mind to take his life. If he gave such order without provocation, but with no actual intention formed beforehand to take life, he would be guilty of murder in the second degree. "(8) Manslaughter is the killing in a sudden heat of passion, caused by provocation apparently sufficient to make such passion irresistible, and if the jury believe that the defendant is guilty, but that the killing was done in a sudden heat of passion, caused by considerable provocation, they will find him guilty of voluntary manslaughter. "(9) The guilt of the defendant must be proved beyond a reasonable doubt, and if, after considering all the evidence in the case, the jury have a reasonable doubt as to the guilt of the defendant, they will find him not guilty. "(10) The defendant in this case does not set up justification, but he undertakes to show that, at the time George Black was shot, he was not at the place where such shooting took place, but at another place, and that therefore he was not connected with or implicated in such crime.. The burden of showing an alibi is on the defendant, but if, on the whole case, the testimony raises a reasonable doubt that defendant was present when the crime was committed, he should be acquitted. But the jury should scrutinize the testimony of witnesses to see if some of them may not be mistaken as to dates and times when they saw the defendant, and it is proper for the jury to consider the lapse of time since such occurrence happened, and whether witnesses are likely, after such lapse of time, to be accurate as to the precise time or hour that they saw defendant on the night that the shooting occurred. In other words, in arriving at your conclusion on this point the jury should consider wheth er it may not be true that the defendant was present at the time George Black was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendant on that night. "(11) The jury are the judges of the weight of the testimony and the credibility of the witnesses. In arriving at your conclusion on that question, the jury may take into consideration the manner of testifying on the stand, their intelligence, their means of knowing the facts they testified to, their interest in this prosecution, or defense, and also whether they are contradicted or corroborated by other facts proven in this case, If the testimony of the witness Henson, or any other witness, differs from that given by him on any former occasion concerning the same facts, then, in arriving at your conclusion as to what weight to attach to such differences, the jury will consider whether such discrepancies or inconsistent statements were made about material and leading matters, such as a truthful witness would not likely forget, or whether they were made about minor and unimportant matters, and such as even truthful men are liable to make when undertaking to narrate the same facts at different times. Contradictory statements made concerning material and leading facts tend to impeach and impair the credit of a witness, but contradictory statements concerning immaterial and unimportant facts, or mere verbal variations, such as most people are liable to make under like circumstances, do not ordinarily furnish grounds for disbelieving a witness; but what weight to attach to such discrepancies or contradictory statements, if proved, whether material or immaterial, is always a matter for the jury to determine in the exercise of a sound discretion. If the inconsistency or contradiction is so glaring and important as to convince the jury that the witness has intentionally, willfully, and knowingly sworn falsely, the jury may disregard his entire testimony, if they find that he is utterly unworthy of belief. But the jury should remember at every stage of its deliberation that your sole object in considering these matters is to arrive at the truth, and to find your verdict accordingly, and, even if you believe that a witness for the state has been guilty of inconsistent or even false statements concerning matters, yet if, on the whole case, and after a full consideration of the whole evidence, you feel morally certain that the defendant is guilty, you should so find. And, on the other hand, if you do not feel satisfied of the guilt of the defendant beyond a reasonable doubt, you should find him not guilty. "(12) Something has been said by the attorneys in the argument about the race or color of the man that was killed. It is hardly necessary to remind the jury that. so far as its protection is concerned, the law. which you have sworn to uphold, makes no difference between persons, whether of different race or not. It does not say to the white man, 'You shall be protected,' and, to the black man, 'You are turned over to be disposed of by any band of lawless midnight prowlers that may choose to invade your home and assault you,'-but it undertakes to protect all alike, and should be enforced in a spirit of fairness to all. “(13) In conclusion, gentlemen, I will say that the defendant is accused of a serious crime; there cannot be a more serious violation of the rights of a citizen than for a band of armed and masked men to invade his home at night and to assault him and take his life. But notwithstanding the enormity of the crime, you should not convict unless you are convinced that the defendant is guilty; but, if you are convinced beyond a reasonable doubt of his guilt, it is your sworn duty, and you should not hesitate, to find him guilty, and to assess a punishment commensurate with the enormity of the crime. The case and its responsibilities are now with you." Brown & Lamb and W. H. Cate, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State. HUGHES, J. (after stating the facts). It is sufficient to say that there seems, upon close examination by the court, to be no tenable objection to the instructions. They sufficiently and strongly declare the law applicable to this case. The tenth instruction given is very vigorously assailed by the counsel for appellant in their brief, and they have supported their objections to it with much earnestness and ability. The court has given it a close and full consideration, and has reached the conclusion that it is not obnoxious to the objections urged against it. It was not improper for the court to instruct the jury, as it did in the first part of this instruction, that "the burden of showing an alibi is on the defendant, but if, on the whole case, the testimony raises a reasonable doubt that defendant was present when the crime was committed, he should be acquitted." That this is correct seems to be well settled by a decided weight of authority. 1 Bish. Cr. Proc. § 1066; Whart. Cr. Ev. § 333; State v. Fry, 67 Iowa, 478, 25 N. W. 738; State v. River (Iowa) 27 N. W. 781; State v. Jennings, 81 Mo. 185; State v. Waterman, 1 Nev. 543; State v. Freeman (N. C.) 5 S. E. 921; Com. v. Choate, 105 Mass. 451; Garrity v. People, 107 Ill. 162; Ware v. State, 67 Ga. 349; Fife v. Com., 29 Pa. St. 429; McCoy v. State, 46 Ark. 152; Blankenship v. State, 55 Ark. 244, 18 S. W. 54. Another portion of the tenth instruction is as follows: "The jury should scrutinize the testimony of the witnesses to see if some of them may not be mistaken as to dates and times they saw the defendant, and it is proper for the jury to consider the lapse of time since such occurrence, and whether witnesses are likely, after such lapse of time, to be certain as to the precise time or hour they saw the defendant on the night that the shooting occurred. In other words, in arriving at their conclusion on this point, the jury should, if witnesses testify that defendant was, at the time of the shooting, at a different place from where the shooting occurred, consider whether it may not be true that the defendant may have been present at the time George Black was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendant on the said night." Counsel for appellant urge that "this invades the province of the jury." The state had offered no evidence contradicting the witnesses who testified in behalf of the defendant as to an alibi, except that of Henson, a self-confessed murderer and assassin, and ask what possible theory suggested to the court its right to attempt to impeach them from the bench. They say: "It is a charge upon the weight of evidence, and an expression of the court's personal views, and clearly erroneous." While this part of the instruction is strongly cautionary, when carefully considered, it will be seen that it does not intimate any opinion upon the part of the judge upon the weight of the evidence, nor does it tend to impeach or disparage the testimony introduced to prove an alibi, or to cast suspicion upon it. The counsel for appellant cite, as directly in point, to support their contention, the case of People v. Pearsall (Mich.) 15 N. W. 98. The reason why the court condemned the instruction in that case was, as stated by the court, that "the charge was an indirect, but evident, instruction that the people's evidence was worthy of being used, and might be used, as a standard by which to test the truth of that given on this subject on the part of the defense." The court said: "The charge isolated this testimony for the defense, and, because it was not consistent with the evidence for the people, the jury were told that they should weigh it with the other testimony to see whether the defendant's witnesses were not mistaken. This discrimination, and the ground of it, were disparaging, and it was a natural inference that the circuit judge regarded the testimony thus pointed out as suspicious." In the case of People v. Wong Ah Foo (Cal.) 10 Pac. 375, the court gave the following charge, in reference to evidence introduced to prove an alibi: "Now, in determining that fact, gentlemen, I instruct you that evidence to establish an alibi, like any other evidence, may be open to special observation. Persons may, perhaps, fabricate [it] with greater hopes of success, or less fear of punishment, than most other kinds of evidence; and honest witnesses often mistake dates and periods of time, and identity of people seen, and other things about which they testify." On appeal, the supreme court # Jos. M. Hill (Anthony Hall, of counsel), for appellant. Oscar L. Miles (John S. Little, of counsel), for appellee. of California said: "Upon a close examina- | sheriff of Logan county, Ark. From a judg tion of the whole charge, including the part ment for plaintiff, defendant appeals. Afquoted, and giving it an unstrained inter- firmed. pretation, we do not perceive that the court charged the jury upon the weight of evidence. It is undoubtedly true, as a matter of fact, that untruthful witnesses may fabricate anything, and testimony of an alibi may, perhaps, be more easily fabricated than most other kinds, and those facts are within the knowledge of most persons of ordinary understanding and experience. * And, viewed in the light of good sense, we do not see that the language complained of went beyond a reasonable and fair latitude of observation permissible from the judge to the jury." In the case of People v. Lee Gam (Cal.) 11 Pac. 183, the jury were told, in an instruction as to evidence to establish an alibi: "Still, you are to scrutinize the testimony offered in the support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you." On appeal, this was approved by the supreme court of California. The court instructed them, of course, that, if they had a reasonable doubt on the whole case, they should acquit. In the opinion of the court, there was testimony tending to corroborate the witness Henson, and tending to connect the defendant with the commission of the offense, and the evidence was sufficient to support the verdict of the jury. The judg ment is affirmed. RIDDICK, J. The questions to be determined in this case arose in an action of replevin brought by the appellee, the AdlerGoldman Commission Company, a corporation organized under the laws of Missouri, against O. C. Wood, the sheriff of Logan county, to recover a stock of merchandise, store fixtures, etc., which said sheriff had seized as the property of Oppenheimer & Co.. under writs of attachment against them. The appellee claimed to have purchased said property and certain lands from Oppenheimer for the consideration of $8,500, which sum it placed as a credit on the indebtedness of Oppenheimer & Co. to them. Oppenheimer & Co. were insolvent, and, before said credit was entered, were indebted to appellee in a sum amounting to over $50,000, in addition to indebtedness to other parties. On the same day that the bill of sale for the property in controversy was executed, Oppenhei mer & Co. executed another instrument, in which, after reciting that they were indebted to appellee in a large amount, they say: "And also for the further consideration that the said Adler-Goldman Commission Company agree to pay the following named parties, to whom we are justly indebted as per amount set opposite their names: [Here follows a list of certain creditors and amounts due them]. Now, therefore, for the purpose of securing the same, we hereby transfer to the said Adler-Goldman Commission Company, by way of pledge, the choses in action described in the schedule hereto annexed; also twelve hundred and sixty-one bales of cotton now in their hands and in transit, consigned to them, said cotton to be sold by them in the usual way within thirty days from this date, and the net amount, after deducting usual expenses, to be credited to above indebtedness. If, after thirty days from this date, any of said choses in action should remain uncollected, and any of our debts unpaid, we hereby authorize the said Adler-Goldman Commission Company to sell said choses in action at public sale for cash, at the front door of our storehouse, in the town of Paris, Arkansas, after giving ten days' notice of the time, place, and terms of sale, by advertisement in some newspaper published in the county of Logan, Arkansas, or by writ ten or printed notices posted in at least ten conspicuous places in said county; and out of the proceeds of said sale the said AdlerGoldman Commission Company shall pay our debts due them as above, so far as said proceeds will extend, rendering the overplus to us. Witness our hands, this 11th day of Commission Company against O. C. Wood, Jan., 1892. [Signed] Ike Oppenheimer, S such a conveyance of property in trust for the purpose of being disposed of by the trustee, there is no assignment. It is only where property is conveyed to another in trust to be disposed of by him for the purpose of raising a fund to pay debts that the statute applies and undertakes "to regulate, direct, and secure a performance of the trust." Burrill, Assignm. (6th Ed.) 24. In the case at bar, the property was not conveyed or delivered to appellee to be disposed of for the purpose of raising a fund to pay creditors, nor to be held in trust for creditors. A portion of it was sold to appellee der delivered as a pledge to secure the balance of the debt due appellee, including the sums it had assumed and agreed to pay other creditors. After appellee had received the property under this agreement, the creditors whose debts it had assumed could have enforced the agreement by an action to compel it to pay the sums of money it had agreed to pay, which sums would be treated as a fund received by appellee for the use and benefit of these creditors. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494; Mellen v. Whipple, 1 Gray, 322; Carnegie v. Morrison, 2 Metc. (Mass.) 381; 1 Pars. Cont. (8th Ed.) 468, and authorities cited. The right of these creditors to recover was not limited to the property pledged or its proceeds; and that this was the understanding of the parties is shown by the action of appellee, for it paid the assumed debts at once, without waiting to dispose of the property. Sternberg, of the firm of Oppenheimer & Co." Appellants contend that these two instruments, the bill of sale of the property in controversy, and the transfer of the cotton and choses in action,-having been executed on the same day, and for the purpose of carrying out a preconceived intention, must be construed together, and that they amount in law to an assignment for the benefit of creditors, and are void because not made in conformity to the statute. Conceding that these instruments must be construed together, as part of the same transaction, the question for this court to determine is whether, when thus construed, they constitute an assign-in part payment of its debt, and the remainment for the benefit of creditors. By the term "voluntary assignment" is meant a conveyance of some or all of a debtor's property in trust for the purpose of being disposed of by the trustee to raise a fund to pay debts, as distinguished from a sale to a creditor in payment of his claim, and from a pledge or hypothecation as a security, in the nature of a mortgage. And. Law Dict. 83; Dias v. Bouchaud, 10 Paige, 461. "To constitute an assignment, the property must be conveyed absolutely, to raise a fund to pay debts." Richmond v. Mississippi Mills, 52 Ark. 35, 11 S. W. 960. One of the conveyances mentioned above purported to be a bill of sale of the stock of merchandise and chattels in controversy, in part payment of the debt due from Oppenheimer & Co. to appellee. The other purported to be a pledge of certain choses in action and bales of cotton, to secure the remainder of the debt due appellee, and also for an additional sum which, in consideration of the making of such pledge, appellee agreed to pay to certain creditors of Oppenheimer & Co. Oppenheimer & Co. had refused to make these transfers until appellee expressly agreed to pay these sums for them to the creditors designated. Having agreed to pay these sums as an inducement and a consideration for these conveyances after they were executed, appellee was in the same position as if Oppenheimer & Co. had paid it so much money for the use and benefit of the creditors. The statute regulating assignments for the benefit of creditors was not intended to prevent embarrassed creditors from selling property to pay debts, nor from mortgaging or pledging it for that purpose. A debtor, when he has pledged, mortgaged, or sold his property to obtain money to pay debts, may, if he chooses, allow the lender of the money to distribute the fund among the creditors, provided the transaction is free from any dishonest intent. Although, in such a case, the lender would hold the fund in trust for the creditors, and could be compelled to perform the trust, the statute regulating assignments for the benefit of creditors would not apply, for the reason that, in such a transaction, there would be no conveyance of property in trust for the purpose of being disposed of by the trustee to raise a fund to pay debts, and, without It is a general rule of law that no one can sue on a contract to which he is not a party, but there are exceptions to the rule. The cases from the supreme court of Pennsylvania cited by counsel for appellant only lay down the exception mentioned above,that, when one receives money or property upon a promise to pay the debt of a third person, such person can maintain an action on such promise. "These cases," say the court in Delp v. Brewing Co. (Pa. Sup.) 15 Atl. 871, "are cases in which the third person, although not a party to the contract, may be fairly said to be a party to the consideration in which it rests." In that case Delp received from Bingham & Spencer, proprietors of the Hotel Albemarle, its entire stock and assets, under an agreement that he would pay the debts of said Bingham & Spencer. One of the creditors brought an action on this promise, and it was sustained. The court, speaking of Delp, said "he assumed the payment of these debts, and the property was put into his hands for this express purpose. Whether thereby a technical trust was created is not material. It has always been held that the creditor in such a case has a right of action to compel payment in accordance with the agreement." Although it may be true that cases can be found holding that, where property is conveyed to one under promise that he will pay the debt of another, In ne will be treated as a trustee of the property until he performs his promise and pays the debt, yet such transfers do not come within the meaning of our statute of assignment, unless the conveyance is made to the grantee for the purpose of having him dispose of the property to raise a fund to pay debts. the case of one who sells property to another upon the consideration that he will pay certain debts of the vendor, the transaction, if without fraud, is distinguished from an assignment by the fact that the title passes absolutely to the vendor, and, after he pays the debts, there is no resulting trust in favor of the vendor for the residue of the property or its proceeds, as there always is in cases of assignment. When one pledges or mortgages property to another for the purpose of securing a debt, or to obtain money to pay a debt, it is distinguished from an assignment by the fact that a beneficial interest remains in the mortgagor or pledgor, and he has the right to redeem, and an assignor does not have. These distinctions are elementary, and may be found in Burrill on Assignments or any other text-book on the subject of assignments, with authorities collated. In the case of Goodbar v. Locke, 56 Ark. 315, 19 S. W. 924, a pledge of choses in action for the benefit of certain creditors was held not to be an assignment. Justice Hemingway, who delivered the opinion of the court, said: "As the debtors were not by the terms of the instrument divested of the beneficial ownership, it was not an assignment; and, although the debtors may have had no reasonable hope of paying the debts and retaking the collaterals, the property remained in them, and could be reached by unsecured creditors as other equitable assets may be." In the case at bar the right to redeem within 30 days remained to Oppenheimer & Co. in the property pledged. Some of the cases from the supreme court of Ohio cited by counsel for appellant may seem to hold that such transfers as those under consideration would, in that state, constitute an assignment for the benefit of creditors; but those cases are to a certain extent governed by a statute of that state which, in effect, provides that all conveyances by debtors to trustees in contemplation of insolvency, with the intention to prefer one or more creditors, shall be held to inure to the benefit of all the creditors in proportion to their respective demands. All conveyances coming within the meaning of this statute are held in Ohio to be assignments, and the property conveyed inures to the benefit of all the creditors. Bagaley v. Waters, 7 Ohio St. 359, where the statute is quoted. After a due consideration of the matter and of the authorities cited by the learned counsel for appellant, we feel convinced that this pledge was made, not to secure the creditors named in the instrument, but to secure the debt due appellee, including the sums assumed by him; that a right of redemption re mained in Oppenheimer & Co. after the execution; and that these instruments, whether construed separately or together, are not conveyances in trust for creditors, within the meaning of our statute regulating voluntary assignments. In the absence of any evidence tending to show a fraudulent intent, the determination of this question disposes of the case, and we deem it unnecessary to discuss the other point raised. The judgment of the circuit court was, in our opinion, right, and is therefore affirmed. BATTLE and HUGHES, JJ., concur in the judgment, but not in the reasons given. On Rehearing. (July 14, 1894.) RIDDICK, J. In his brief in support of the motion for rehearing filed in this cause, counsel for appellant insists that the fact that the cotton mentioned in the conveyance was to be sold within 30 days, and also that the choses in action were to be collected within 30 days, shows, in connection with the other facts in the case, that these conveyances constituted an assignment. These facts were not overlooked by the court. The cotton had already been consigned to appellee for sale at the time these instruments were executed; and they only stipulated that the cotton was still to be sold by appellee, "in the usual way, within thirty days," and that the proceeds should be applied on their indebtedness to appellee, including the debts assumed to be paid by appellee. The right to sell this cotton, and to collect the choses in action, given appellee. was not as a trustee of the creditors whose debts it had agreed to pay, but as the cotton factor and agent of Oppenheimer & Co. The money to be realized was, subject to the lien created by the pledge, the money of Oppenheimer & Co., and, under the provisions of the pledge, was to be paid on the debt due appellee, and to go towards the redemption of the other property pledged. In deciding this case, we based our opinion mainly on the fact, as found by a majority of the court, that the property in question "was not conveyed or delivered to appellee to be disposed of for the purpose of raising a fund to pay creditors, nor to be held in trust for creditors." After considering the able argument of counsel for appellant, we remain of the same opinion still, and the motion to rehear is overruled. HOUSTON, C. A. & N. RY. CO. v. BOLLING. (Supreme Court of Arkansas. July 14, 1894.) MASTER AND SERVANT-SCOPE OF EMPLOYMENT. A railroad company is not liable for iniuries received by one not an employé while riding on its hand car, on which the foreman in charge was forbidden to take any one but an employé. Appeal from circuit court, Drew county; Carroll D. Wood, Judge. |