another form at the request of appellant. [6] Finally it is insisted by counsel for appellant that the verdict is excessive, and this we consider the most serious question in the case. Appellee recovered judgment in the sum of $1,500. Mrs. Fuqua died about 11 months after she was injured, and during the whole time suffered intense pain. If her suffering, as contended by appellee, was caused by falling down the steps of the railway company's platform, then, of course, the verdict is not excessive. It is contended by the railway company, however, that her suffering and death were not caused by the fall but resulted from cancer, with which she was afflicted at the time she received the injury. They admit that she received a slight injury, but say it was only temporary and for a brief space of time, and contend that her subsequent suffering resulted from the cancer with which she was afflicted at the time she was injured.

One of the daughters of Mrs. Fuqua testified that the attending physician told her that her mother was afflicted with cancer, and that she was dying of that disease. Physicians introduced by the defendant testified that the discharges from a woman suffering with uterine cancer are very offensive and have a very peculiar odor; that there is always a sloughing off of the womb which is caused by the hemorrhages; that the patient will probably have frequent headaches; that one of the early symptoms of cancer of the womb is headache, and that the hemorrhages always relieve the headache temporarily; that cancerous headaches come from the enlargement of the uterus, and usually first affect the patient in the back part of the head and then extend all over the head.

that she first began to discover an odor about two or three months after the injury was received; that at this time the condition of the hemorrhage changed; that there was then more mucous than anything else mixed with the blood; and that after that time, for the most part, there was no odor when she had a hemorrhage.

One of the daughters of Mrs. Fuqua testified that her mother was a small woman and had never been robust, but that she had been in fairly good health prior to the time she received her injuries, and that she had been subject to headaches all her life. She was examined, cross-examined, and re-examined as to the violence with which her mother fell, and we think it may be fairly inferred from all her testimony that she said in effect that, though her mother did not fall flat to the ground because she held her up, she did fall with considerable force down the steps, and would have fallen heavily to the ground had she not been held up by her.

The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. Direct testimony that the subsequent suffering of Mrs. Fuqua resulted from the fall, such as testimony from physicians to that effect, is not essential, but it is sufficient if the circumstances be such as to fairly permit the inference that the suffering of Mrs. Fuqua, as testified to by witnesses for appellee, was caused by the injury which she received.

We have not adopted the rule that a scintilla of evidence is sufficient to support a verdict, and that for that reason the verdict of the jury cannot be based upon surmise and conjecture. While this rule is not to be ignored, it is equally well settled that any issue of fact in controversy may be established by circumstantial evidence, where the circumstances adduced in evidence are such that reasonable minds might draw different conclusions therefrom. See St. L., I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171.

The mother-in-law of Mrs. Fuqua testified that on the day Mrs. Fuqua received her injury and was brought home she looked to be in a very bad condition; that she was pale and had to be helped up the steps of the front porch and up the stairs in the house; that she was not able to get up the steps without assistance; that after she was undressed her underclothing was spotted It will be noted that the physician testiaround the bottom; that she suffered in-fied that in cases of cancer of the womb there tensely from that time until she died; and was always a sloughing, and also a very that she was never able to get out of her peculiar odor from the hemorrhages. The bed any more except to be wheeled around mother-in-law of Mrs. Fuqua, who was with in a chair. She stated that she was with her constantly, testified that she was presher constantly after she received her inju- ent when Mrs. Fuqua was examined about ries, and that she never saw any one suffer two weeks after receiving her injuries, and more pain than she did during the 11 months assisted the physician in making the exshe lived after receiving the injury; that amination, and that there was then no a physician examined Mrs. Fuqua about two sloughing of the womb, but that there apweeks after the accident; that, during the peared to be a cut at the edge of the womb. time before the examination was made, Mrs. She also stated that there was no peculiar Fuqua constantly had hemorrhages from her odor from the womb, such as comes from womb; that she assisted the physician in cancer, and that she discovered no odor making the first examination; that she did whatever from the hemorrhages until about not see any sloughing condition of the womb; two or three months after Mrs. Fuqua rethat it looked like a cut or split; that at ceived her injuries, and then only for a first she did not discover any odor at all; short time, and that thereafter, at very in

frequent intervals, she discovered the same appellant thereupon filed the following petiodor.

When we consider these facts, and the further fact that Mrs. Fuqua was able to walk about before she received her injuries, and was afterwards unable to walk at all, we think it was for the jury to say whether or not the injury she received caused her subsequent suffering and death,

tion:

"Comes the defendant and moves the court to set aside the plea of guilty heretofore enThat he had no attorney at the time of the tered by defendant in this cause, and says: agreement to enter said plea, and that he was not able to employ an attorney. That he was called and forced to go to trial, and that on account of his inability to procure the aid of an attorney, and on account of his own inability As above stated, though she did not fall to attend said trial, he entered his said plea. flat to the ground, she did stumble down the That he was not in fact guilty of an assault to steps which extended up to the platform, the kill, as charged in the indictment then pending against him, and that he was not advised, and floor of which was five feet higher than the did not know the full consequences of his said adjacent ground, and the jury might have plea. That the witnesses to the fight for which inferred that she would have fallen heavily he was indicted are within the jurisdiction of to the ground had she not been held up by this court, and that they may be had upon usual process. Defendant says that he was justified her daughter. She was a frail woman, and in striking Ben Bowlin in his necessary selfmight have been severely wrenched in her defense, and that a trial of said cause will disstumbling or falling down the steps, and, close. Wherefore he prays that he may be permitted to withdraw his plea of guilty, and enter when all the facts and circumstances are con- his plea of not guilty, and have a trial before a sidered in their light most favorable to ap-jury, and for all other proper and legal relief." pellee, we think the jury were warranted in The court heard testimony on behalf of the finding that Mrs. Fuqua sustained injuries appellant, to sustain his motion, to the effect which resulted in her subsequent suffering that he had endeavored to employ an attorwhen she stumbled and fell from the plat-ney, but did not succeed because he was unform. See St. L., I. M. & S. Ry. Co. v. Ward, 168 S. W. 573.

We find no prejudicial error in the record, and the judgment will be affirmed.

able to pay the fee. He entered his plea because he was mad and did not have any one to assist him. He testified that the attorney whom he endeavored to employ advised him that he was not guilty and that he could be cleared before a jury, and that he was advised to enter a plea and the matter would be dropped.

COX v. STATE. (No. 136.) (Supreme Court of Arkansas. Sept. 28, 1914.) 1. CRIMINAL LAW (§ 274*)—PLEA OF GUILTY-fied

WITHDRAWAL-DISCRETION.

Where accused, on being arraigned and after being fully warned, made no request for the appointment of counsel to defend him, as authorized by Kirby's Dig. § 2273, but pleaded guilty, it was not an abuse of the trial court's discretion at a subsequent term to refuse to permit him to change the plea to not guilty, on the ground that the former plea had been entered because of his inability to hire an attorney or procure aid to that end, and that the assault with which he was charged had been committed in self-defense.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 632, 633; Dec. Dig. § 274.*] 2. CRIMINAL LAW (§ 977*)—PLEA OF GUILTY

SENTENCE-SUBSEQUENT TERM.

A sentence may be pronounced on a plea of guilty at a term subsequent to that at which the plea was entered.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2482, 2483, 2488, 2489, 2492, 2499, 2502; Dec. Dig. § 977.*]

Appeal from Circuit Court, Greene County; W. J. Driver, Judge.

Monk Cox was convicted of assault with intent to kill, and he appeals. Affirmed.

The appellant was indicted at the December, 1912, term of the Greene circuit court for assault with intent to kill. He entered his plea of guilty, and the cause was continued until the December, 1913, term of the court. At that term the prosecuting attorney asked that the appellant be sentenced. The

The attorney to whom he had spoken testithat the appellant was unable to pay him the fee that he charged, and that he was not employed because the father of appellant was not willing to indorse the note for appellant to obtain the money, and that the appellant "became mad because his father had thus deserted him and walked up in a spirit of anger and pleaded guilty." This attorney testified, further, that the court advised appellant, at the time he entered his plea, that at any time thereafter the court saw fit the court could have appellant arraigned and sentence him to the penitentiary, on his plea of guilty, from 1 to 21

years.

Appellant also, concerning this, testified as follows:

"I did not know the result of entering the plea. It is true Judge Driver, who was on the bench, did tell me something in substance about what would be the result."

And, on cross-examination:

"I understood what Judge Driver said, but I was not thinking about that. I was mad and worried."

There was much other incompetent and irrelevant testimony heard by the trial court, to the effect that since appellant entered his plea of guilty he had committed various misdemeanors, and also other testimony to the effect that appellant, since he entered his plea, had worked on a farm and made a good farm hand.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

JUDGMENT AT SUBSEQUENT TERM.

The court denied appellant's petition to 12. CRIMINAL LAW (§ 980*)—Plea of GUILTY— set aside his former plea of guilty, and granted the prosecuting attorney's motion to have appellant sentenced, and the court thereupon sentenced the appellant to 21 years in the state penitentiary, and this appeal has been duly prosecuted.

Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above). The court did not err in overruling the appellant's motion to set aside his plea of guilty entered at a former term of the court, and in sentencing appellant upon such plea. The appellant was 24 years of age. He was advised by the court of the legal consequences of such plea.

ment may be entered at a subsequent term. Where a plea of guilty is entered, judg[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2493-2496; Dec. Dig. 980.*]

Appeal from Circuit Court, Cross County; W. J. Driver, Judge.

Jack Spencer was convicted of selling liquor illegally by means of a blind tiger, and he appeals. Affirmed.

Appellant was indicted at the September, 1913, term of the Cross circuit court for the offense of selling liquor illegally, by means of a device known as a blind tiger. He appeared in his own proper person at that term of the court, and entered a plea of guilty to the charge, and the record in that case recites that his plea was accepted by the court and the cause continued for the term. But it does not appear that any condition whatever was attached to the plea. It was without condition. At the following term of the court the prosecuting attorney filed a motion, in which he prayed the court to impose sentence upon this plea, entered at the previous term of the court, and in this motion he recited the fact to be that subsequent to the entry of this plea appellant had continued to en

[1] The statute provides for the appointment of counsel, upon the request of one who has been indicted for a felony, where he is unable to employ any. Kirby's Digest, § 2273. Appellant made no request for the court to appoint counsel to defend him. On his motion to set aside the plea of guilty, he did not offer to introduce any testimony that tended to prove that he was not guilty of the crime charged, and his testimony was not sufficient to show that he was induced to enter a plea of guilty under a misappre-gage in the illegal sale of liquor. Considerahension of the facts. His plea of guilty was entered voluntarily, and there is nothing in the record to show that the plea was improperly entered. It was within the discretion of the court, under the evidence adduced, to allow appellant to withdraw his plea of guilty entered at a former term, or to refuse to allow him to do so. There was no abuse of the court's discretion. Joiner v. State, 94 Ark. 198, 126 S. W. 723.

[2] This court has held that sentence may be pronounced on a plea of guilty at a term subsequent to that at which the plea was entered. Thurman v. State, 54 Ark. 120, 15 S. W. 84; Greene v. State, 88 Ark. 290, 114 S. W. 477; Joiner v. State, 94 Ark. 198, 126 S. W. 723; State v. Wright, 96 Ark. 203, 131 S. W. 688; Barwick v. State, 107 Ark. 115, 153 S. W. 1106.

The judgment is affirmed.

ble evidence was introduced before the court upon the hearing of this motion, and at its conclusion a fine of $500 and a sentence of 30 days in jail was imposed upon appellant, and this appeal has been duly prosecuted from that judgment.

J. C. Brookfield, of Wynne, for appellant. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

SMITH, J. (after stating the facts as above). [1] Appellant has not abstracted the evidence offered before the court upon the hearing of the prosecuting attorney's motion, nor did he file with the clerk of the court below his bill of exceptions within the time limited. Therefore the only questions to be considered on this appeal are those appearing on the face of the record. Green v. State, 96 Ark. 175, 131 S. W. 463, Ann. Cas. 1912B, 279.

[2] Appellant contends that the judgment is void for the reason that it was entered on a conditional plea of guilty, which he should have been allowed to withdraw, upon the withdrawal of which he should have been tried by a jury upon a plea of not guilty, which he had asked permission to enter. But as it does appear that any condition was attached to this plea, the case falls within the rule announced in Barwick v. State, 107 Ark. 115, 153 S. W. 1106, and Joiner v. State, 94 Ark. 198, 126 S. W. 723, in which cases it was held that, "upon a plea of guilty entered at one term of court, judgment may be entered at a subsequent term." See, also, Cox v.

State, 169 S. W. 789.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The judge imposed the maximum sentence, Jackson county for the crime of assault with but he may have been induced so to do by intent to kill, and on trial of the case they reason of the evidence introduced upon the were convicted of aggravated assault, a mishearing of the prosecuting attorney's motion, demeanor. which is not before us. However, appellant does not complain of the severity of the sentence, but only of the court's right to impose it at all; and, as the record presents no other question, the judgment is affirmed.

QUINN et al. v. STATE. (No. 53.) (Supreme Court of Arkansas. June 22, 1914.) | * 1. INDICTMENT AND INFORMATION (§ 189*) CONVICTION OF OFFENSE INCLUDED IN CHARGE.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

murder were sufficient to embrace all the essentials of the offense of aggravated assault. The indictment alleges that the assault was made with a deadly weapon, with intent to kill, which necessarily includes the charge that it was done to commit bodily injury. The allegation that the act was done "with malice aforethought, and after deliberation and premeditation," constitutes a negation of the fact that there was considerable provocation.

[2, 3] It is also insisted that the evidence is insufficient to warrant the conviction of appellants for any offense. One of the appellants was the contractor of the county convicts of Jackson county, and he maintained a stockade for the confinement of the prisoners on or near his farm in that county. The negro, "Slim," was a convict in custody of the contractor, and was treated as a trusty, being permitted to work as a servant around the contractor's dwelling. A lot of jewelry was missed from the dwelling, and the negro was accused of the theft. He was locked up in the stockade, and in the early part of the night all three of the appellants, and another person, went to the stockade, handcuffed the negro, and took him out and carried him down in the woods or thicket. When they returned to the house with the negro he had been shot through the arm with a gun or pistol. The state proved by a convict that, when the negro was taken out of the ade one of the appellants (the contractor himself) said to the negro, "I will learn you how, you d S of a b, to tell lies about things." There is testimony to the effect that this witness had not been convicted at that time and was not in the stockade. That made a question for the determination of the jury, and we must treat the testimony in the light most favorable to the state's side of the

case.

was no intention to kill the negro, and the jury properly acquitted the appellants of assault with intent to kill; but we are of the opinion that there is enough evidence to justify the jury in convicting the appellants of aggravated assault. The jury did not accept the theory of appellants as correct, but it is manifest from the verdict that the jury found that appellants, or some of them, fired shots at the negro without intent to kill him, but with intent to do him bodily harm. We will not undertake to determine for ourselves where the preponderance of the evidence lies, for it is sufficient to sustain the conviction here if we find evidence of a substantial nature tending to establish the essential elements of the offense of which appellants were convicted.

Our conclusion, therefore, is that the evidence sustains the conviction, and as there is no other assignment of error, the judgment must be affirmed.

HALL v. HUFF. (No. 54.)

(Supreme Court of Arkansas. June 22, 1914.)
1. EQUITY (§§ 39, 199*) JURISDICTION TO

GIVE COMPLETE RELIEF-PLEADING CROSS-
COMPLAINT.

Where defendant in ejectment filed a crosscomplaint, asking that his title therein be quieted and the instrument under which plaintiff stock-claimed be canceled as a cloud on his title, the allegations of the cross-complaint were sufficient to give the chancery court jurisdiction; and, having assumed jurisdiction, it properly proceeded to determine all the rights of the parties in the subject-matter.

One of the members of the party had a Winchester rifle. Another witness stated that when the party returned to the house with the negro they had pistols and guns in their hands, and there was a rope around the negro's neck. This was after the negro was shot in the arm. There was other testimony to the effect that several shots were fired while the party was down in the woods with the negro, that at the time of the shooting the voices of the negro and some of the appellants were heard, and that somebody in the party said, "Don't shoot any more;" that his arm is broken.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 104-114, 463, 464; Dec. Dig. §§ 39, 199.*]

2. ATTORNEY AND CLIENT (§ 150*)-CONTINGENT FEE-STATUTE-EFFECT OF COMPROMISE.

if the parties compromise any suit, an attorney, Under Kirby's Dig. § 4457, providing that, whose fee therein, evidenced by a written transfer, is contingent, may have an action against them for a reasonable fee, an instrument in writing, employing plaintiff as attorney to recover any part of his client's interest in the estate of his divorced deceased wife by suit, for a one-third interest in the property recov ered, amounted to a transfer of an interest in the cause of action; but where plaintiff consented to a decree collusively declaring his client's interest as tenant by the curtesy, and then negotiated a conveyance to defendant of his client's interest, he was not entitled, as against the defendant, to any interest, since the statute does not give a right of action where the cause of action is compromised with the attorney's

consent.

Client, Cent. Dig. §§ 354-357; Dec. Dig. § [Ed. Note.-For other cases, see Attorney and 150.*]

3. ATTORNEY AND CLIENT (§ 150*)—StatuTE -REASONABLE FEE.

The contention of appellants, as reflected by their testimony, was that the negro confessed to complicity in the theft, told where the jewelry was hidden, and was accompanying the party out to the place to show it to them, when he attempted to make his escape, was seized by one of the party, whose pistol Under Kirby's Dig. § 4457, authorizing an fell out of his pocket during the scuffle and attorney, in an action in which he has an interwas accidentally discharged, the bullet strik-est, to recover a reasonable fee on its comproing the negro's arm. Now, the testimony mise by the parties, such reasonable fee is not a speculative or contingent fee, but one that shows pretty clearly, we think, that there is reasonable, considering the importance of

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes