at Cabool, Mo., that had been ordered by Mr. | within two miles of the road, etc., were not Safey? A. No, sir; I ordered the eggs my self.

"Q. Do you remember when this case was tried in the justice of the peace court? A. Yes, sir.

"Q. Didn't you state there that these eggs were ordered from the Graves Commission Company, and that Mr. Safley got them out of the express office and signed your name for it, by himself as agent? A. I don't remember. He didn't, unless I gave him authority to."

We think this testimony insufficient to constitute Safley an agent for Gregory to receive shipments consigned to Gregory, without the knowledge or consent of Gregory.

The cause was submitted to the court sitting as a jury, and judgment was rendered against the express company for the value of the meats.

No error appearing, that judgment is affirmed.

(141 Ark. 164)

WILKINSON V. ST. FRANCIS COUNTY
ROAD IMPROVEMENT DIST. NO.
1 et al. (No. 43.)

subject to judicial reduction, though as a result of such method of assessment lands worth more than $100 an acre would pay no more tax than lands worth less than $5 an acre; the assessments having been made in good faith by a board of competent men named by statute.

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor.

Proceeding for reduction of assessments by C. M. Wilkinson against St. Francis County Road Improvement District No. 1 and others. From a decree approving the assessments, petitioner appeals. Affirmed.

W. J. Lanier, of Forrest City, for appellant.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and S. S. Hargraves, of Forrest City, for appellees.

SMITH, J. Appellant is a large landowner in road improvement district No. 1 of St. Francis county, which was created by Act No. 157 of the Acts of 1917 (Acts 1917, p. 814), and he seeks by this appeal to have the assessments against his lands vacated and set aside upon the ground that they are ex(Supreme Court of Arkansas. Dec. 8, 1919.) cessive, confiscatory, and disproportionate to other assessments. This is a direct proceedUE AS DECISIVE QUESTION IN MAKING AS-ing to review by appeal the refusal of the chancery court to revise and reduce appellant's assessments. He insists that the assessments were made by zones; the assessments against each tract being determined solely by a consideration of the zone within which the lands are located, and without reference to the benefits to be derived from the proposed improvement.

1. HIGHWAYS 135-ENHANCEMENT OF VAL

SESSMENT.

In making assessment to pay for any proposed road improvement, the question is to what extent the proposed improvement will enhance the value of the property against which the assessment is to be levied, for it is the enhanced value that is taxed.

2. HIGHWAYS 142-NO SUBSTITUTION

OF

It is a matter of common knowledge that levees and drains have passed beyond the experimental stage.

4. MUNICIPAL CORPORATIONS

487-RIGHT OF COUNTRY OWNER TO COMPLAIN OF CITY ASSESSMENTS FOR Roads.

It is undisputed that the assessment was made by zones, under which all lands lying within one mile of the proposed road were placed in the first zone and a betterment of $7 per acre assessed, and that lands lying more than one mile but within two miles of the road were placed in the second zone and a betterment of $6 per acre assessed, and so on with other zones; the theory being that betterment from the improvement was in proportion to proximity to it. As a result of this theory and method of assessment it is undisputed that lands lying in the same zone will have the same acreage assessment, and that lands shown to be worth more than $100 per acre will pay no more tax than lands shown to be now worth less than $5 per acre. But the assessment is not necessarily to be condemned on that account. In the case of Board of Improvement v. Southwestern Gas

Where town and country land is assessed for the cost of a road improvement, the owner of country land can complain of no inequalities in the assessment of town lots, except that the municipal assessments are too low as a whole. 5. HIGHWAYS 140-ZONE SYSTEM OF AS-& Electric Co., 121 Ark. 105, 180 S. W. 764, the SESSMENTS NOT REQUIRING JUDICIAL REDUC-board of assessors made a horizontal assessment of 20 per centum of the value of the real property in the district as assessed for state and county purposes. The purpose for which that district was organized was to ac

Assessments of lands by a road improvement district on a zone system, $7 an acre on lands within a mile of the road, $6 an acre on land

(216 S.W.)

quire, construct, and equip a water plant and [ In the case of Rogers v. Arkansas & Louissystem. In that case the court below had iana Highway Improvement District, 213 S. held the assessment illegal and erroneous, but W. 749, we said: in reversing that finding we said:

"If the chancellor meant to hold that the assessors could not, even after giving due consideration to all the elements which go to make up the benefits to be derived from the stated improvements, make an assessment which resulted practically in a percentage of the value according to the assessment of taxes for state and county purposes, he was in error, for there is no sound reason why that method may not be adopted, if that basis of assessment results in arriving at the real benefits from the improvement. If, however, a basis of that kind is adopted arbitrarily, and without any relation to the real benefits to be derived, it is invalid, and should be set aside. We have decided in numerous cases that a legislative ascertainment that benefits from a local improvement accrue in proportion to the value of the property affected will be respected, unless it be demonstrated to a certainty that a mistake has been made."

Upon a review of the testimony in that case we reached the conclusion that the tes

"The question is, not what the usable value of the road is to a particular tract of land, but to what extent has the improvement enhanced the value of the land? It is against this enhanced value or betterment that the tax is levied to pay for the construction of the improvement, which is to bring about the enhanced value."

[1, 2] In making the assessments to pay for any proposed improvement, the question is, To what extent will the proposed improvement enhance the value of the property against which the assessment is to be levied? for it is this enhanced value which is taxed. The method of arriving at that enhanced value is to be determined by the men charged with that duty, and, as we have frequently said, the judgment of the judges reviewing the assessments should not be substituted for that of the assessors who made the assessments, unless the evidence clearly shows that the assessment is erroneous.

Applying that test, what disposition shall be made of the assessment in the present case? The board here consists of seven members, who are named in the act, and who ap

timony did not warrant the conclusion that the board of assessors had acted arbitrarily in reaching the conclusion that the benefits pear to be successful men of affairs, who to all property in the district would accrue in proportion to values. The assessors in that case were men familiar with the real property in the district, and in their meetings they had reached the conclusion that all the property in the district would be relatively benefited in proportion to the value thereof the assumption being that the assessment of value by the county assessor was correctand that a percentage assessment based on that valuation would represent the true benefits to be derived from the improvement. In that case it was shown that some of the property in the district was so situated that it did not then need the supply of water which was to be afforded by the construction of the improvement; yet we held that that fact was not necessarily conclusive that the benefits to all the property in the city might not accrue alike in proportion to the value of each piece of property.

In the case of Alcorn v. Bliss-Cook Oak Co., 133 Ark, 118, 201 S. W. 797, the directors of a levee district sitting as a board of assessors imposed a tax of 10 cents per acre upon each acre of land in the district. This assessment was resisted by the Oak Company on the ground that it was not proportionate to benefit. We approved the assessment, however, and in doing so said that

"If the construction of the levee increases the values of the different classes of land within the district proportionately, there is no injustice. In this way the burden will be distributed in proportion to the benefits." 216 S.W.-20

have a general knowledge of the lands in the district. It must be confessed that portions of the testimony of some of these commissioners would appear to indicate that distance from the road was the only thing taken into account in assessing the betterments. But we think this a mere infelicity of speech, and while, as we have stated, lands in the same zone, differing widely in market value and in usable value, received the same assessment per acre, this result was achieved because the commissioners had determined that each piece of land in the first and other zones received benefits equal to those of other lands in the same zones. Of course, mathematical accuracy in this respect is not required, because values and benefits are at last mere matters of opinion, and we can expect nothing more than an intelligent judgment honestly and fairly exercised. The commissioners all testified that it was their purpose to make a fair, just, equal, and proportionate assessment of the benefits, and that the assessment by zones met that requirement. It is true one or more of the assessors thought the assessment should be made ad valorem; but they yielded to the majority, and it is not shown that a substantially different result would have been reached, had that method been employed.

[3] There is testimony that much of the land owned by appellant received an assessment greater than its present market value. These were lands shown to be of small value, chiefly because of the recurring overflows

"That plaintiff understands that the defendant Ernest Reed is claiming some interest or claim on said lot."

from the L'Anguille river, which winds its ence in the complaint to appellant was as tortuous course through them. It is not follows: shown or contended that these lands are beyond reclamation by drainage or by levees, and it is a matter of such common knowledge that courts may know it that levees and drains have passed beyond the experimental stage.

[4] Considerable testimony was offered for the purpose of proving inequalities in the assessments of lots in the city of Forrest City and in the town of Palestine; but the owners of these lots, against which these inequalities are said to exist, do not appear to have complained, and as appellant owns none of those lots his only right to complain would be that the municipal assessments are too low as a whole, and as that complaint is not made this testimony appears to be immaterial in this litigation.

[5] Upon a consideration of all the testimony in this case, we do not feel warranted in revising appellant's assessments, and the decree of the court below approving them is therefore affirmed.

(141 Ark. 111)

The notes were exhibited with the complaint. Appellant and Brown were both served with summons to appear in the action, but neither appeared, and there was a default decree against both of them, which was for the recovery of the amount of the notes ($740.80) and for foreclosure of the vendor's lien on the real estate conveyed by Matthews to Brown. Appellant has prosecuted an appeal from the personal decree against him for recovery of the amount of the notes.

The decree was obviously wrong to the extent that it was for the recovery of the amount of the notes from appellant personally. The complaint contained no allegation which would be sufficient to warrant such a decree. The only allegation was that he was claiming some interest in the lot sold by Matthews to Brown. This feature of the decree may have been an inadvertence or misprision of the clerk in entering the decree; but, as the decree stands upon the record, it is erroneous, and appellant is entitled to a

REED V. FIRST NAT. BANK OF CORNING. reversal to that extent. (No. 33.)

LONG v. STATE.
(Supreme Court of Arkansas.
1. BURGLARY

(140 Ark. 413)

(No. 182.)

Nov. 3, 1919.)

41(6) - EVIDENCE SUSTAINS

In action to foreclose vendor's lien, complaint, in which the only reference to certain defendant was allegation "that plaintiff understands that defendant E. is claiming some interest or claim on said lot," held insufficient to warrant default decree against such defendant In a prosecution for burglary, evidence personally for recovery of amount of purchase-held sufficient to connect defendant with the crime.

money notes.

Appeal from Clay Chancery Court; Archer Wheatley, Chancellor.

Action by the First National Bank of Corning against Ernest Reed and another. From that portion of decree against defendant Reed personally, for recovery of amount of notes, he appeals. Reversed, in so far as a personal decree against appellant.

C. T. Bloodworth, of Corning, for appellant.

MCCULLOCH, C. J. Appellee instituted this action in the chancery court of Clay county (Western district) against appellant and one Brown to foreclose a lien on certain real estate for the purchase price. It was alleged in the complaint that J. E. Matthews sold the real estate in question to Brown, and that Brown executed to Matthews the promissory notes in suit, which were assigned to appellee by Matthews. The only refer

CONVICTION.

In a prosecution for burglary, where proof showed that building was owned by an improvement district, an entity capable of owning or possessing property, a conviction was sustained, although the indictment described the improvement district as a corporation, and the evidence failed to show that it was a corporation. 4. LARCENY 64(1)-POSSESSION OF RECENTLY STOLEN PROPERTY.

The unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn.

5. CRIMINAL LAW 759(4)-INSTRUCTION ON

WEIGHT OF EVIDENCE.

In a larceny case an instruction that "the possession of property recently stolen affords

(216 S.W.)

presumptive evidence of guilt" was erroneous, | two flash lights, and belonged to Carlyle Petas being upon the weight of the evidence; the tey. The burglary and theft occurred on unexplained possession of recently stolen prop- the night of the 3d day of March, 1919; the erty being only a fact from which an inference house being entered by pushing open a winof guilt may be drawn. dow which had not been latched or bolted. 6. CRIMINAL LAW The house entered was in the possession and occupied by the Searcy Electric Light Improvement District No. 1. Early in that month appellant sold the overcoat in question to his uncle, F. P. Long, and one of the flash lights to his cousin, W. D. Bateman. The trousers were found in the home of his

1059(2)-REVIEW; EXCEPTION IN GROSS TO INSTRUCTIONS,

An exception "to the entire oral charge" was in gross and availed nothing, where the oral charge contained several instructions and part of them were correct.

Appeal from Circuit Court, White County; uncle, F. P. Long. Appellant explains his J. M. Jackson, Judge.

Ernest Long was convicted of grand larceny and burglary, and appeals. Affirmed.

Cul L. Pearce, of Bald Knob, and Harry Neelly, of Searcy, for appellant.

Jno. D. Arbuckle, Atty. Gen., and Robert C. Knox, Asst. Atty. Gen., for the State.

HUMPHREYS, J. Appellant was indicted, tried, and convicted in the White circuit court of grand larceny and burglary. His punishment for the larceny was fixed at one year in the peniteniary, and for the burglary at three years in the penitentiary. An appeal has been duly prosecuted to this court, and a reversal of the judgment of conviction and assessment of penalties is sought upon the following grounds:

First. Because the evidence fails to connect appellant with breaking and entering the house, as charged in the indictment.

Second. Because the state failed to prove that the Searcy Electric Light Improvement District No. 1 was a corporation.

Third. Because the court erred in instructing the jury as to the effect of the possession of recently stolen property.

1. The indictment, in the first count, charged, in substance, that appellant feloniously did break and enter a house used and possessed by the Searcy Electric Light Improvement District No. 1, a corporation, with the felonious and burglarious intent to steal and carry away personal property, over the value of $25, of Carlyle Pettey, and in the second count charged the larceny of the personal property aforesaid in apt words and

form.

The evidence showed that appellant, in company with his brother, Will Long, went from Little Rock to Searcy on the evening before the burglary, reaching Searcy at about 7 o'clock. They left Searcy together early on the morning of March 4th. Between 12 and 1 o'clock on the night of the burglary appellant was seen in company with his brother, who confessed to the crime, in about a block of the light plant. His brother, Will Long, at the time had a bundle under his arm. The property stolen consisted of an overcoat, a pair of trousers, and

possession of the goods by saying he got them from his brother. His brother, Will Long, testified that appellant was not with him at all on the night of the burglary. Appellant admitted, however, that he was with him on that night in Searcy.

[1, 2] We cannot agree with the appellant that the evidence is insufficient to connect him with the crime. He was in company with his brother near the scene of the burglary and larceny at a late hour on the night the crimes were committed. They came to Searcy from Little Rock together, reaching there about 7 o'clock p. m. on the 3d of March, and left together early the next morning. His brother confessed to the commission of the crime on that night, and soon thereafter the possession of the property was traced to appellant, who converted a part of it to his own use by sale thereof to his kinsmen. On the night of the burglary appellant and his brother were seen at a late hour near the house that was burglarized, and at the time appellant's brother had a bundle under his arm. We think this evidence sufficient to support a finding that appellant participated in the burglary and larceny.

[3] 2. It developed in the testimony that the house which was burglarized was owned by the Searcy Electric Light Improvement District No. 1, and that said electric light company was known, under the statutes of Arkansas, as an improvement district. It is insisted by appellant that there is a variance between the evidence and the indictment, for the reason that said company is described in the indictment as a corporation. The purpose of the charge and proof was to identify the particular house burglarized as belonging to some person or entity capable of owning or possessing property. The proof that the company was an improvement district sufficiently establishes it as such an entity, and, for that reason the kind or character of the entity is immaterial. Section 2233 of Kirby's Digest reads as follows:

"Where an offense involves the commission, or an attempt to commit, an injury to person of property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes