court properly permitted the state to prove by viously convicted of a similar offense, to affect him on cross-examination that he had been prehis credibility.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129–1132, 1140-1142, 11461148; Dec. Dig. § 337.*]

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

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 of the bridge superintendent, and also was asked to shoot it at his request. Franklin's statement was denied by Land, and it was the province of the jury to decide the question, and they could have found that the railroad Company was engaged in removing the piling whether on its own account or in assisting Hahn & Carter to facilitate the passing of the boat through its right of way, and that the dynamite was exploded by the direction of its superintendent, and that it was liable for the injury caused thereby. The man who fired the dynamite, being at work under the direction of the railroad company at the time, determines its liability. Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, 152 S.

W. 147.

Instruction numbered 4, complained of, told the jury that if the person in charge of the railroad employés and machinery undertook the work of removing the piling, and in so doing used dynamite by the direction of the servant of the railroad company, they should find it liable; but if the jury did not find this fact, as it could have done from the testimony, then to find in favor of the railroad company, and thus submitted fairly the issue to the jury. Under the circumstances, it could not have been influenced, and it did not make any difference whether there was an agreement by Clayton, the engineer of the company, with Hahn & Carter, the ditch contractors, to remove the piling or not, because its servants were actually engaged in the work of removing it, which was within the scope of their employment, and used the dynamite, the explosion of which caused the injury, in furtherance of that purpose. Other questions are raised, but we do not find it necessary to discuss them.

Tom Hunt was convicted of assault with intent to rape, and he appeals. Affirmed.

pellant. Wm. L. Moose, Atty. Gen., and Jno. Lamb & Caraway, of Jonesboro, for apP. Streepey, Asst. Atty. Gen., for the State.

MCCULLOCH, C. J. This is an appeal from the judgment of conviction of the crime of assault with intent to commit rape. Apcrime was alleged to have been committed, pellant was 74 years of age at the time the and the accusation is that the assault was made upon a young woman in the city of Paragould. The testimony is conflicting, but is sufficient to warrant the finding that he made the assault with intent to have carnal knowledge of said female forcibly and against her will. The evidence of the injured female is that she resisted successfully, and that the appellant finally desisted before the consummation of the enforced act

of intercourse.

[1] Appellant's testimony tended to show that on account of his extreme age and failing powers he had lost all desire for sexual intercourse and was physically unable to consummate such an act. In the trial of the case, his attorney asked the court to give an instruction to the jury to the effect that the offense was not complete unless the accused was capable of consummating the act of intercourse-in other words, that impo

We find no prejudicial error in the record, tency was a defense to the charge of asand the judgment is affirmed.

In a prosecution for assault with intent to rape, the fact that accused was 74 years of age and had no further desire or capacity to perform the sexual act was no defense.

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 of another." Kirby's Digest, § 1583.

That definition has been applied by this court in determining the essential elements of the crime of assault to commit murder; the court holding that:

"Both the intention and the ability to commit a battery are necessary to constitute an assault." Pratt v. State, 49 Ark. 179, 4 S. W.

[Ed. Note.-For other cases, see Rape, Cent. 785. Dig. § 15-19; Dec. Dig. § 16.*]

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

Kirby's Dig. 83138, as amended by Laws 1905, p. 143, provides that a witness may be impeached by the party against whom he is produced, by contradictory evidence by showing that he has made inconsistent statements, or by evidence that his general reputation for truth and morality render him unworthy of belief, but not by evidence of any particular acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony. Held that, where accused in a prosecution for assault to

the rule broadly that impotency is a sufficient defense to an indictment for the consummated crime of rape, though not for an assault with intent to rape. In another part of the same volume (section 223) he says:

"If there be juridical incapacity for the consummated offense (e. g., infancy), there can be boy under 14 cannot, according to the prevalent no conviction of the attempt; and therefore a opinion, be convicted of an attempt to commit a rape as principal in the first degree. It is oth

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

mere accusation or indictment (Benton v. State, 78 Ark. 284, 94 S. W. 688); but for the purpose of testing his credibility he may For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appellees sued W. F. De Long to replevy a promissory note. The order of replevin contained a capias clause, under which De Long was taken into custody. De Long executed the following bond:

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 action, and that he will cause special bail to be put in, if the same be required." The bond under consideration was not executed to the officer, and was not made to protect him in case the defendant made his escape, and was not present to abide the order and judgment of the court, and was in no sense a penal bond as provided under sections 6858 and 6859. It did not contain all the conditions required by the latter of the above sections. But the bond was executed to the plaintiffs (appellees here), and does contain the conditions essential for a delivery bond as prescribed by section 6863, supra. That section prescribes that the bond shall contain a provision "to the effect that the defendant shall perform the judgment of the court in the action."

"We undertake and are bound to J. E. Roberts, sheriff of Mississippi county, Arkansas, and to J. T. & M. M. Alford, plaintiffs herein, in the sum of eighteen hundred dollars. that the defendant, W. F. De Long shall abide the order and judgment of the court in this action and that he will deliver to the plaintiffs the property sought to be replevied in their complaint or in lieu thereof will pay to them the value of said property as the court may direct, if the plaintiffs prevail in this action, and that said defendant, W. F. De Long, shall render himself amenable to the order of the court and that he will not depart from said court without exoneration from this bond and the order of the court. [Signed] W. F. De Long.

"C. H. Hawkins.
"Zeph O'Brien."

[2] True, the bond under consideration contains more provisions than are necessary in order to fulfill the requirements of a statutory delivery bond, but that does not render the bond invalid. The statute does not prescribe any set form of words for the delivery bond, and the conditions not required may be treated as surplusage where they are severable, as they are in the present case, from the conditions which the statute requires. 5 Cyc. p. 748. See, also, State v. Smith, 40 Ark. 431, 433.

This bond was signed by the appellees as sureties for De Long. Appellees obtained judgment against De Long for the amount of the note sued for, "or for the value of said note should defendant fail to deliver same to plaintiff, which value the court finds to be $900, with 8 per cent. interest thereon from December 14, 1912, until paid." At a subsequent term of the court appellees moved the court to render judgment against the appellants as sureties on the bond of De Long, and the court, after finding that appellees had been unable to collect their judgment against De Long, proceeded to render judg-mean the same as the terms "to perform the ment against the appellants for $900, with interest at 8 per cent. per annum from December 14, 1912, until paid, and for costs. Appellants caused a writ of certiorari to be issued from this court to quash the judgment against

them.

Appellants, pro se. Appellees, pro se.

*

WOOD, J. (after stating the facts as above). [1] The only question on this appeal is whether or not the court erred in finding that the bond set out above is a statutory bond, as prescribed by section 6863 of Kirby's Digest, which provides that the defendant "may cause a bond to be executed to the plaintiff in the presence of the sheriff, by one or more sufficient sureties, in double the value of the property, to be affected that the defendant shall perform the judgment of the court in the action." The bond under consideration is sufficient in terms to constitute a delivery bond within the meaning of sections 6863 and 6870 of Kirby's Digest. The appellants contend that the bond under consideration is a bail bond, executed under the authority of sections 6858 and 6859 of Kirby's Digest. These sections provide that

In the sense in which the terms "to abide the order and judgment of the court" are used in the bond under consideration, they

judgment of the court," as prescribed by section 6863, supra. This would not be the case, of course, but for the other language used in the bond. In Duncan, Trustee, v. Owens, 47 Ark. 388, 1 S. W. 698, we held that these terms, when employed in connection with the capias clause of our statute in replevin, constitute a bail bond as specified by sections 6858 and 6859, supra. See Black's Law Dictionary; Words and Phrases, vol. 1, p. 16; Anderson's Law Dictionary, and cases cited in notes 1 and 2. See, also, John Erickson v. F. A. Elder et al., 34 Minn. 370, 25 N. W. 804; C. M. Jackson v. State of Kansas, 30 Kan. 88, 1 Pac. 317; Hodge and Wife v. Hodgdon, 8 Cush. (62 Mass.) 294.

But, in the bond under review the other language, "he will deliver to the plaintiffs the property sought to be replevied, or in lieu thereof will pay to them the value of said property as the court may direct," show that the purpose of the obligor and sureties was to execute a delivery bond, and this with the other language is sufficient to meet the requirements of the statute as a delivery bond. This language being used by the obligor and by appellants, his sureties, it is our duty to

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 interest in either of the horses which were traded, but appellant insisted that Martin had stated that the owner of the mortgaged horse had a right to trade it, and although Martin at first denied having made this statement, he subsequently admitted that he had done so. This admission, however, was only made after appellant had manifested great anger and had threatened to assault Martin. Fears further testified that when appellant first began to talk he acted like an officer and wound up acting like a man who wanted to fight.

MARTIN v. STATE.

(No. 141.) (Supreme Court of Arkansas. Sept. 28, 1914.) FALSE PERSONATION (§ 2*) - STATUTES-OF

FENSE ARREST."

Under Kirby's Dig. § 1964, providing that no person shall assume or attempt to exercise any of the functions or privileges of a special deputy sheriff or other police officer without having been duly appointed as such, or summoned by such officer, and section 2122, declaring that an "arrest" is made by placing the person of defendant in restraint or by his submitting to the custody of the person making the arrest, it is not sufficient for one to falsely assert that he is an officer authorized to act as such, or to declare his intention to act as such, but he must assume or attempt to exer; cise some of the powers of such officer; and hence defendant's claim to have a warrant authorizing him to arrest a witness, and his expressed intention of doing so if witness would not pay him $5 as damages, without a placing of witness in restraint or a submission by wit ness to defendant's custody, did not constitute the offense.

[Ed. Note.-For other cases, see False Personation, Cent. Dig. § 1; Dec. Dig. § 2.*

For other definitions, see Words and Phrases, First and Second Series, Arrest.]

Martin testified that appellant claimed that he (Martin) had told him a lie and caused him to get cheated out of his horse, and that he had a warrant for him, but would let him go if he would pay $5; and he admitted having told a lie, but said he did so in order to avoid a personal difficulty with appellant.

Lela Mann testified that she met appellant as he was going down to see her brother, and that he told her he was going to get her brother and would bring him back within 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 claimto be an officer, nor was there any evi

Bev Martin was convicted of impersonated ing an officer, and he appeals. Reversed and dence that he actually undertook to arrest remanded for new trial.

Appellant was indicted for the crime of impersonating an officer, and upon his trial was convicted and given a sentence of two years in the penitentiary. The proof on the part of the state was made by the prosecuting witness, Os Martin, Ben Fears, with whom the prosecuting witness was boarding, and Lela Mann, a sister of the prosecuting witness.

Fears testified that he went with appellant to the field where Martin was plowing, and that appellant told Martin he had a warrant for him and was going to arrest him. Upon being asked about his warrant, appellant stated: That he had a warrant issued against Martin, because Martin had told appellant a lie in a trade for a horse, by reason of which appellant had been induced to trade for a horse upon which there was a mortgage, and which he had subsequently lost on account of this mortgage. Appellant told Martin that he had consulted an attorney, and had been advised that he could arrest Martin or let him go without arresting him, and he stated to Martin that if he would confess that he had lied to him and would pay him $5 that he would not make

Martin; on the contrary, he merely stated that he had a warrant for Martin's arrest and was going to arrest him. During all of this conversation in the field Martin stood between his plow handles, leaning against his plow.

Martin further testified that when appellant first came up to him he thought he was joking, but when he saw that he was very angry he decided appellant wanted to fight, and he admitted having lied to avoid being whipped, as appellant was much larger than he was, but that appellant did not arrest him, and did not try to arrest him, and that he did not think appellant was going to arrest him, but thought he was going to fight him.

We do not set out the evidence offered on behalf of appellant, but it was to the effect that he had only attempted to collect $5 as damages upon account of the fraud perpetrated on him.

Among other instructions, the court gave the following:

"In this case defendant, Bev Martin, is charged with the crime of impersonating an officer. The statute under which this charge is preferred reads that 'no person [Reads indictment.] 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 of special deputy sheriff, special constable, special deputy marshal, and policeman, or other peace officer, without having been legally and duly appointed as such, or has been summoned by some peace officer as provided by law.'

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