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did not volunteer to use the dynamite, took | rape became a witness in his own behalf, the it after it had been procured at the request court properly permitted the state to prove by of the bridge superintendent, and also was viously convicted of a similar offense, to affect

him on cross-examination that he had been preasked to shoot it at his request. Franklin's his credibility. statement was denied by Land, and it was the [Ed. Note.-For other cases, see Witnesses, province of the jury to decide the question, Cent. Dig. $8 1113, 1129–1132, 1140–1142, 1146and they could have found that the railroad 1148; Dec. Dig. $ 337.*] company was engaged in removing the pil Appeal from Circuit Court, Greene Couning whether on its own account or in assist-ty; J. D. Driver, Judge. ing Hahn & Carter to facilitate the passing Tom Hunt was convicted of assault with of the boat through its right of way, and that intent to rape, and he appeals. Affirmed. the dynamite was exploded by the direction

Lamb & Caraway, of Jonesboro, for apof its superintendent, and that it was liable pellant. Wm. L. Moose, Atty. Gen., and Jno. for the injury caused thereby. The man who P. Streepey, Asst. Atty. Gen., for the State. fired the dynamite, being at work under the direction of the railroad company at the

McCULLOCH, C. J. This is an appeal from time, determines its liability. Arkansas Nat. ural Gas Co. v. Miller, 105 Ark. 477, 152 s. the judgment of conviction of the crime of

assault with intent to commit rape. ADW. 147.

pellant was 74 years of age at the time the Instruction numbered 4, complained of, told the jury that if the person in charge of and the accusation is that the assault was

crime was alleged to have been committed, the railroad employés and machinery undertook the work of removing the piling, and made upon a young woman in the city of in so doing used dynamite by the direction but is sufficient to warrant the finding that

Paragould. The testimony is conflicting, of the servant of the railroad company, they should find it liable; but if the jury did not he made the assault with intent to have carfind this fact, as it could have done from the nal knowledge of said female forcibly and

The evidence of the intestimony, then to find in favor of the rail- against her will. road company, and thus submitted fairly the jured female is that she resisted successfully,

and that the appellant finally desisted beissue to the jury. Under the circumstances, it could not have been influenced, and it did fore the consummation of the enforced act

of intercourse. not make any difference whether there was an agreement by Clayton, the engineer of

[1] Appellant's testimony tended to show the company, with Hahn & Carter, the ditch that on account of his extreme age and failcontractors, to remove the piling or not, being powers he had lost all desire for sexual cause its servants were actually engaged in intercourse and was physically unable to the work of removing it, which was within consummate such an act. In the trial of the the scope of their employment, and used case, his attorney asked the court to give the dynamite, the explosion of which caused an instruction to the jury to the effect that the injury, in furtherance of that purpose. the offense was not complete unless the ac

Other questions are raised, but we do not cused was capable of consummating the act find it necessary to discuss them.

of intercourse-in other words, that impoWe find no prejudicial error in the record, tency was a defense to the charge of asand the judgment is affirmed.

sault with intent to commit rape. Our statute defines an assault as:

“An unlawful attempt, coupled with present

ability to commit a violent injury on the person HUNT v. STATE. (No. 132.)

of another.” Kirby's Digest, $ 1583. (Supreme Court of Arkansas. Sept. 28, 1914.)

That definition has been applied by this

court in determining the essential elements 1. RAPE (§ 16*)-ASSAULT TO RAPE DEFENSES-INCAPACITY.

of the crime of assault to commit murder; In a prosecution for assault with intent to the court holding that: rape, the fact that accused was 74 years of age “Both the intention and the ability to commit and had no further desire or capacity to per a battery are necessary to constitute an form the sexual act was no defense.

sault." Pratt v. State, 49 Ark. 179, 4 S. W. [Ed. Note.-For other cases, see Rape, Cent. 785. Dig. $$ 15–19; Dec. Dig. $ 16.*]

Professor Wharton, in his work on Crimi. 2. WITNESSES (8 337*)-IMPEACHMENT—Prior nal Law (11th Ed., vol. 1, § 690), lays down CONVICTION OF SIMILAR OFFENSE.

Kirby's Dig. $ 3138, as amended by Laws the rule broadly that impotency is a suffi1905, p. 143, provides that a witness may be cient defense to an indictment for the conimpeached by the party against whom he is pro- summated crime of rape, though not for an duced, by contradictory evidence by showing assault with intent to rape. In another part that he has made inconsistent statements, or by evidence that his general reputation for truth of the same olume (section 223) he says: and morality render him unworthy of belief, "If there be juridical incapacity for the conbut not by evidence of any particular acts, ex- summated offense (e. g., infancy), there can be cept that it may be shown by the examination no conviction of the attempt; and therefore a of the witness, or record of the judgment, that boy under 14 cannot, according to the prevalent he has been convicted of a felony. Held that, opinion, be convicted of an attempt to commit a wbere accused in a prosecution for assault to rape as principal in the first degree. It is oth

as

erwise when the incapacity is merely nervous or be asked about a judgment of conviction physical. A man may fail in consummating a (Vance v. State, 70 Ark. 272, 68 S. W. 37). rape from some nervous or physical incapacity such matters are collateral to the issue, and intervening between attempt and execution. But this failure would be no defense to the in- affect only the credibility of the accused as dictment for the attempt. At the same time a witness, but are nevertheless competent there must be apparent capacity.”

for that purpose. Mr. Bishop also lays down the rule that We are therefore of the opinion that there impotency is no defense to the charge of is no error in the record; and, as the eviassault with intent to commit rape. The dence was legally sufficient to sustain the decisions on this subject are neither abun-conviction, the judgment must be affirmed. dant nor clear, but we are convinced that

It is so ordered. the rule stated above by the learned textwriters is the sound one, and that mere impotency on account of failing powers from old age is no defense to the crime of assault O'BRIEN et al. v. ALFORD et al. (No. 135.) with intent to rape. The essence of the Supreme Court of Arkansas. Sept. 28, 1914.) crime is the violence done to the person and 1. REPLEVIN (8 135*) DELIVERY BOND feelings of the injured female. Complete JUDGMENT AGAINST SUBETIES — "ABIDE" consummation of the act of sexual inter- “PERFORM." course is not essential even to the crime of fendant in replevin may cause a bond to be

Kirby's Dig. $ 6863, provides that the dera pe;

a partial penetration, without emis- executed to the plaintiff in double the value sion, being sufficient even to make the crime of the property, to the effect that the defendant of rape. It follows, therefore, that the shall perform the judgment of the court in the

action wherein the property shall be restored to crime of assault with intent to commit a

him. Section 6870 authorizes the court to rape may be complete, even though the per- render judgment against the sureties upon such petrator lacks physical vigor to consummate delivery bond. Sections 6858, 6859, provide

for the arrest of the defendant upon a capias the act.

in case the property cannot be found, and [2] Appellant testified in his own behalf, for his release upon executing to the officer a and on cross-examination counsel for the bond in a penalty of at least double the value state drew out the fact that several years of the property described, conditioned that such ago appellant had been convicted of a simi- the court, and that he will cause special bail

defendant will abide the order and judgment of lar offense, alleged to have been committed to be paid in if the same be required. The deon the person of another woman, and sought fendant in a replevin action was taken into custo draw out from him an admission that he tody, upon a capias, and thereupon executed a

bond to the sheriff and to the plaintitfs, conhad committed the offense. Appellant ad- ditioned that the defendant should abide the mitted that he had been so convicted, but order and judgment of the court in the action denied that he was guilty of the charge. and deliver to the plaintiffs the property, or Objection was made to this line of examina- pay the value thereof if the plaintiff should pre

vail, and that the defendant would render him. tion, and an exception was duly saved, and self amenable to the order of the court, and is now pressed as grounds for reversal. that he would not depart from said court withCounsel for appellant rely upon the statute out exoneration from the bond and the order

of the court. Upon defendant's failure to deof this state (Kirby's Digest, § 3138, as liver the property or to pay the value thereamended by Acts 1905, p. 143), which de- of, the court rendered judgment against the clares that:

sureties on the bond. Held, that the bond was

a delivery bond under section 6863, the words "A witness may be impeached by the party to abide the order and judgment of the court" against whom he is produced, by contradictory meaning the same, in view of other provisions evidence by showing that he has made state of the bond indicating an intent to execute a ments different from his present testimony, or delivery bond, as "to perform the judgment of by evidence that his general reputation for truth the court," and was not a bail bond under sec. or morality render him unworthy of belief, tions 6858, 6859, since it did not contain all but not by evidence of particular wrongful the provisions necessary for such bond, and acts, except that it may be shown, by the ex- therefore the court properly rendered judgment amination of a witness, or record of a judg: ment, that he had been convicted of a felony." on such bond under section 6870.

[Ed. Note.-For other cases, see Replevin, That statute has no application to the cent. Dig. 88 532-540; Dec. Dig. $135. cross-examination of a witness for the pur- For other definitions, see Words and Phrases, pose of testing his credibility. On the con- First Series, Perform; also First and Second

Series, Abide.] trary, it has been held that the defendant

2. REPLEVIN (8 49*)-DELIVERY BOND-VAin a criminal prosecution, when he takes

LIDITY-SURPLUSAGE. the witness stand, places himself in the at- The fact that the bond contained more titude of any other witness, and that he may provisions than were necessary to satisfy the be interrogated concerning specific acts of reguirements of Kirby's Dig. $ 6863, for a de

livery bond, did not render it invalid, since they his own for the purpose of testing his credi- were separable and could be treated as surplusbility. Hollingsworth v. State, 53 Ark. 387, age. 14 S. W. 41. He cannot be asked about a [Ed. Note.-For other cases, see Replevin, mere accusation or indictment (Benton v.

Cent. Dis. 88 180–185; Dec. Dig. $ 49.*] State, 78 Ark, 284, 94 S. W. 688); but for Appeal from Circuit Court, Mississippi the purpose of testing his credibility he may I County; W. J. Driver, Judge. *For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Serles & Rep'r Indexes

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Action by J. T. and M. M. Alford against | when the defendant in replevin has been W. F. De Long, in which Zeph O'Brien and taken into custody he may be discharged "upanother became sureties upon a replevin on executing to the officer” having him in bond. Judgment for the plaintiffs against custody "a bond in a penalty of at least the defendants Zeph O'Brien and another as double the value of the property, * sureties upon the replevin bond, and the conditioned that such defendant shall abide sureties appeal. Affirmed.

the order and judgment of the court in such Appellees sued W. F. De Long to replevy a action, and that he will cause special bail promissory note. The order of replevin con- to be put in, if the same be required.” The tained a capias clause, under which De Long bond under consideration was not executed was taken into custody. De Long executed to the officer, and was not made to protect the following bond:

him in case the defendant made his escape, "We undertake and are bound to J. E. Rob- and was not present to abide the order and erts, sheriff of Mississippi county, Arkansas, judgment of the court, and was in no sense and to J. T. & M. M, Alford, plaintiffs herein, a penal bond as provided under sections 6858 in the sum of eighteen hundred dollars, that and 6859. It did not contain all the condithe defendant, W. F. De Long shall abide the order and judgment of the court in this action tions required by the latter of the above secand that he will deliver to the plaintiff's the tions. But the bond was executed to the property sought to be replevied in their com- plaintiffs (appellees here), and does contain plaint or in lieu thereof will pay to them the the conditions essential for a delivery bond value of said property as the court may direct, if the plaintiff's prevail in this action, and that as prescribed by section 6863, supra. That said defendant, W. F. De Long, shall render section prescribes that the bond shall conhimself amenable to the order of the court and tain a provision “to the effect that the dethat he will not depart from said court without exoneration from this bond and the order fendant shall perform the judgment of the of the court. (Signed] W. F. De Long. court in the action."

“C. H. Hawkins.

[2] True, the bond under consideration con“Zeph O'Brien."

tains more provisions than are necessary in This bond was signed by the appellees as order to fulfill the requirements of a statusureties for De Long. Appellees obtained tory delivery bond, but that does not render judgment against De Long for the amount of the bond invalid. The statute does not prethe note sued for, “or for the value of said scribe any set form of words for the delivnote should defendant fail to deliver same ery bond, and the conditions not required to plaintiff, which value the court finds to may be treated as surplusage where they are be $900, with 8 per cent. intereșt thereon severable, as they are in the present case, from December 14, 1912, until paid.” At a from the conditions which the statute resubsequent term of the court appellees moved quires. 5 Cyc. p. 748. See, also, State v. the court to render judgment against the ap- Smith, 40 Ark. 431, 433. pellants as sureties on the bond of De Long,

In the sense in which the terms "to abide and the court, after finding that appellees the order and judgment of the court” are had been unable to collect their judgment used in the bond under consideration, they against De Long, proceeded to render judg- mean the same as the terms “to perform the ment against the appellants for $900, with in- judgment of the court,” as prescribed by secterest at 8 per cent. per annum from Decem- tion 6863, supra. This would not be the case, ber 14, 1912, until paid, and for costs. Appel- of course, but for the other language used lants caused a writ of certiorari to be issued in the bond. In Duncan, Trustee, v. Owens, from this court to quash the judgment against 47 Ark. 388, 1 S. W. 698, we held that these them.

terms, when employed in connection with the Appellants, pro se. Appellees, pro se. capias clause of our statute in replevin, con

stitute a bail bond as specified by sections WOOD, J. (after stating the facts as above). 6858 and 6859, supra. See Black's Law [1] The only question on this appeal is Dictionary; Words and Phrases, vol. 1, p. whether or not the court erred in finding that 16; Anderson's Law Dictionary, and cases the bond set out above is a statutory bond, cited in notes 1 and 2. See, also, John Erickas prescribed by section 6863 of Kirby's son v. F. A. Elder et al., 34 Minn. 370, 25 Digest, which provides that the defendant N. W. 804; C. M. Jackson v. State of Kansas, "may

cause a bond to be executed 30 Kan. 88, 1 Pac. 317; Hodge and Wife v. to the plaintiff in the presence of the sheriff, Hodgdon, 8 Cush. (62 Mass.) 294. by one or more sufficient sureties, in double But, in the bond under review the other the value of the property, to be affected that language, "he will deliver to the plaintiffs the the defendant shall perform the judgment property sought to be replevied, or in lieu of the court in the action.” The bond under thereof will pay to them the value of said consideration is sufficient in terms to con- property as the court may direct," show that stitute a delivery bond within the meaning the purpose of the obligor and sureties was of sections 6863 and 6870 of Kirby's Digest. to execute a delivery bond, and this with the

The appellants contend that the bond under other language is sufficient to meet the reconsideration is a bail bond, executed under quirements of the statute as a delivery bond. the authority of sections 6858 and 6859 of This language being used by the obligor and hold that it constitutes a delivery bond in the arrest. That appellant stated that he compliance with the statute. See Crawford had gotten $5 from one Jim Warvell, a boy v. Ozark Ins. Co., 97 Ark. 553, 134 S. W. 951. who was with appellant at the time the horse

The court, therefore, did not err in render- trade was made, and the $5 which he claimed ing judgment summary against appellants un to have so received was exhibited at the der section 6870 of Kirby's Digest. The time. That Martin, who was spoken of by judgment of the circuit court is affirmed. the witnesses as being a boy, had no inter

est in either of the horses which were traded, but appellant insisted that Martin had

stated that the owner of the mortgaged horse MARTIN V. STATE. (No. 141.)

had a right to trade it, and although Martin (Supreme Court of Arkansas. Sept. 28, 1914.) at first denied having made this statement, False PERSONATION (8 2*) – SratuTES – OF- he subsequently admitted that he had done FENSE,"ARREST,

Under Kirby's Dig. & 1964, providing that so. This admission, however, was only made no person shall assume or attempt to exercise after appellant had manifested great anger any of the functions or privileges of a special and had threatened to assault Martin. Fears deputy sheriff or other police officer without further testified that when appellant first having been duly appointed as such, or summoned by such officer, and section 2122, declar- began to talk he acted like an officer and ing that an “arrest” is made by placing the wound up acting like a man who wanted to person of defendant in restraint or by his sub

fight. mitting to the custody of the person making the arrest, it is not sufficient for one to false

Martin testified that appellant claimed ly assert that he is an officer authorized to act that he (Martin) had told him a lie and as such, or to declare his intention to act as caused him to get cheated out of his horse, such, but he must assume or attempt to exer; and that he had a warrant for him, but cise some of the powers of such officer; and hence defendant's claim to have a warrant au- would let him go if he would pay $5; and thorizing him to arrest a witness, and his ex- he admitted having told a lie, but said he did pressed intention of doing so if witness would so in order to avoid a personal difficulty with not pay him $5 as damages, without a placing of witness in restraint or a submission by wit- appellant. ness to defendant's custody, did not constitute Lela Mann testified that she met appellant the offense.

as he was going down to see her brother, and [Ed. Note.-For other cases, see False Person that he told her he was going to get her ation, Cent. Dig. $ 1; Dec. Dig. & 2.*

brother and would bring him back within For other definitions, see Words and Phrases, First and Second Series, Arrest.]

a short time, but that he would let Martin

out of his trouble if he would pay him $5, Appeal from Circuit Court, Greene Coun- as the Warvell boy had done. ty; W. J. Driver, Judge.

No witness testified that appellant claimBev Martin was convicted of impersonated to be an officer, nor was there any eviing an officer, and he appeals. Reversed and dence that he actually undertook to arrest remanded for new trial.

Martin; on the contrary, he merely stated Appellant was indicted for the crime of that he had a warrant for Martin's arrest impersonating an officer, and upon his trial and was going to arrest him. During all was convicted and given a sentence of two of this conversation in the field Martin stood years in the penitentiary. The proof on the between his plow handles, leaning against part of the state was made by the prosecut his plow. ing witness, Os Martin, Ben Fears, with Martin further testified that when apwhom the prosecuting witness was boarding, pellant first came up to him he thought he and Lela Mann, a sister of the prosecuting was joking, but when he saw that he was witness.

very angry he decided appellant wanted to Fears testified that he went with appellant fight, and he admitted having lied to avoid beto the field where Martin was plowing, and | ing whipped, as appellant was much larger that appellant told Martin he had a warrant than he was, but that appellant did not arrest for him and was going to arrest him. Upon him, and did not try to arrest him, and that being asked about his warrant, appellant he did not think appellant was going to stated : That he had a warrant issued arrest him, but thought he was going to against Martin, because Martin had told ap- fight him. pellant a lie in a trade for a horse, by rea

We do not set out the evidence offered on son of which appellant had been induced to behalf of appellant, but it was to the effect trade for a horse upon which there was a that he had only attempted to collect $5 as mortgage, and which he had subsequently damages upon account of the fraud perpelost on account of this mortgage. Appellant | trated on him. told Martin that he had consulted an attor

Among other instructions, the court gave ney, and had been advised that he could the following: arrest Martin or let him go without arresting “In this case defendant, Bev Martin, is charghim, and he stated to Martin that if he i ed with the crime of impersonating an officer. would confess that he had lied to him and this charge is preferred reads that ‘no person

[Reads indictment.) The statute under wbich would pay him $5 that he would not make shall assume to exercise, or attempt to exercise, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes any of the functions, powers, duties, or privileg-, ers, or duties incident or belonging to an offies incident or belonging to the position or office

cer. of special deputy sheriff, special constable, special deputy marshal, and policeman, or other

We are not called upon to decide what, peace officer, without having been legally and if any, violation of the law appellant comduly appointed as such, or has been summoned mitted by his conduct, as it is sufficient, for by some peace officer as provided by law.'

the purposes of this case, to say that the Thos. W. Campbell, of Pocahontas, for ap- proof is insufficient to sustain a conviction pellant. Wm. L Moose, Atty. Gen., and Jno. under the section above quoted, and the P. Streepey, Asst. Atty. Gen., for the State. judgment of the court below is therefore

reversed, and the cause remanded for a new

trial. France v. State, 68 Ark. 529, 60 S. SMITH, J. (after stating the facts as above). The instruction set out above is W. 236; Reed v. State, 97 Ark. 156, 133 S. substantially the language of section 1964 of W. 604; Jones v. State, 85 Ark. 360, 108 S.

W. 223. Kirby's Digest, under which section this prosecution was had. Other instructions applying the section above quoted to the

RUSH v. CITIZENS' NAT. BANK. facts of this case were given, to which ex

(No. 115.) ceptions were duly saved; but we find it (Supreme Court of Arkansas. July 13, 1914.) unnecessary to set them out.

1. APPEAL AND ERROR (8 1008*)-REVIEWIt appears from the evidence, which we FINDINGS. have set out, that the jury might have found Where a case was tried before a court sitthe facts to be that appellant claimed to have ting as a jury, its findings of fact are as binda warrant authorizing him to arrest Martin ing on appeal' as a verdict. and that appellant announced his intention Error, Cent. Dig. $8 3955–3960, 3962–3969;

[Ed. Note.-For other cases, see Appeal and of doing so. But there was attached to the Dec. Dig. 8. 1008.*] announcement of bis purpose to make the 2. BANKS AND BANKING (8 134*)—DEPOSITS arrest the condition that he would not do so -APPLICATION OF DEPOSIT TO DEBT. if Martin would pay $5 as damages, and

Where defendant and another executed to it appears that appellant's purpose was ei. maturity of the note was entitled to apply de

a bank a joint note for $3,500, the bank on ther to collect this $5 or to whip Martin in the fendant's general deposit, which had not been event he failed to pay. He may have been specifically appropriated to a different purpose, deterred from the accomplishment of either to its payment; and it was immaterial that the of these reprehensible purposes by the pres- other joint maker, nor could defendant complain

bank had no demand or set-off against the ence of Fears and his interposition in the that suit was not brought for the whole amount discussion. But there is no evidence that of the note, but only for the balance shown to

be due. appellant ever actually undertook to arrest

[Ed. Note.-For other cases, see Banks and Martin.

Banking, Cent. Dig. $8 353-374; Dec. Dig. $ “An arrest is made by placing the person of 134.*] the defendant in restraint, or by his submitting to the custody of the person making the Appeal from Circuit Court, Garland Counarrest." Section 2122, Kirby's Digest.

ty; Calvin T. Cotham, Judge.

in restraint, nor did he submit himself to the against C. C. Rush and others. Judgment for custody of appellant; but, upon the con- plaintiff, and defendant Rush appeals. Aftrary, Martin testifies that he did not think firmed. appellant meant to arrest him.

The Citizens' National Bank of Hot Springs To constitute the offense of impersonating instituted this action against C. C. Rush, C. an officer, under the section above quoted, G. Bryan, and L. D. Cooper to recover the it is not sufficient that one falsely asserts balance alleged to be due on a promissory that he is an officer and has the authority note amounting to $1,532.58, with the acto act as such, nor is it sufficient that he crued interest. declares his intention to act as such; but, The facts are as follows: The defendant to constitute this offense, it is essential that Bryan and one Jacobs were partners engaged he assumes or exercises or attempts to ex- in the saloon business in the city of Hot ercise some of the functions, powers, duties, Springs. They executed a note to the plainor privileges incident or belonging to the tiff bank in the sum of $5,000. The note was office which he asserts he holds at the time. renewed several times, and partial payments Appellant did not arrest Martin, nor did he were made on it. The defendant, Rush, finalundertake to do so. He merely stated that ly bought out Jacobs' interest in the saloon he had a warrant and falsely declared his business, and Jacobs was released from the purpose of making an arrest. But such note. On April 9, 1913, there was a balance false statements, even though made for the due on the note of $3,500, and on that day purpose of wrongfully extorting payment of C. G. Bryan and C. C. Rush executed to the a sum of money, did not constitute the as- Citizens' National Bank their note for the sumption of the functions of an officer or sum of $3,500, which was due and payable on the attempt to exercise the privileges, pow.) June 18, 1913. This note bore the indorse

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