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WITH

of the opinion that the issues were properly | ised to pay her.” He further testified that sent to the jury upon facts legally sufficient plaintiff nerer presented any account to him, to sustain the verdict.

and that he had never promised to pay her The judgment is affirmed.

any more than $140, and that he had paid her over that amount; that he paid her more than he owed her husband, for the reason

that her husband had been a particular friend WEIERMUELLER V. SCULLIN. of his, and that he had been in his employ (St. Louis Court of Appeals. Missouri. Nov. for over 13 years, and he wanted to help 17, 1903.)

his widow along; that in September, 1901, WITNESSES-COMPETENCY - CONTRACTS

she came to him and told him that she was DECEDENTS.

married again, and after learning this fact Rev. St. 1899, $ 4652. providing that, in actions where one of the original parties to the

he refused to give her any more money. The contract or cause of action ip issue is dead, the

verdict and judgment were for the defendother party to such contract or cause of action ant. Plaintiff appealed. shall not be admitted to testify, does not preclude the surviving party to a contract from

John J. O'Connor, for appellant. Scullin testifying to transactions and conversations had & Chopin, for respondent. with the other party to the suit, who claims as assignee or donee of the deceased party to the

BLAND, P. J. (after stating the facts). contract, and is attempting to enforce the contract for his own benefit.

Appellant's contention is that Scullin was an (Ed. Note.-For cases in point, see vol. 50,

incompetent witness for any purpose, and Cent. Dig. Witnesses, 88 630, 654.)

cites section 4652, Rev. St. 1899, as sustainAppeal from St. Louis Circuit Court; War

ing this contention. Counsel misconceives wick Hough, Judge.

the scope of that clause in the section which Action by one Weiermueller against James

declares that “in actions where one of the Scullin. From a judgment for defendant, original parties to the contract or cause of plaintiff appeals. Affirmed.

action in issue and on trial is dead, or is

shown to the court to be insane, the other Plaintiff is the widow of Samuel Weier

party to such contract or cause of action mueller. The evidence of plaintiff tends to

shall not be admitted to testify either in his show that on his deathbed Samuel Weier

own favor," etc. Some of the earlier cases mueller handed plaintiff a piece of paper, on

construing this clause of the section seem to wbich was written the following: “St. Lou- lend some support to appellant's construc. is, Mo., August, 1889. James Scullin, Debtortion, but the later ones have given it a more to Samuel Weiermueller. To money loaned, equitable construction, and hold that the sur$250.00.” He said to her: "I will give this viving party is not absolutely mut off from to you. You make the collection of it, and

testifying at all, but is a competent witness keep it yourself.” Plaintiff testified that

to conversations, transactions, etc., had with some time after the death of her husband

and testified to by a living witness, in re she presented the account to Scullin, and he

spect to the contract or cause of action in said that he owed it and would pay it to her issue and on trial. Kirton v. Bull, 168 Mo. as soon as he was able, and on May 6, 1897,

622, 68 S. W. 927, and cases cited on page he paid her $5 on the account, and thereafter,

631 of 168 Mo., page 929 of 68 S. W.; Eyerfrom time to time, up to and including Sep

mann v. Piron, 151 Jo. 107, 52 S. W. 229. tember 14, 1901, he made small payments to

As was said in Henry v. Buddecke, 81 Mo. her, ranging from $1 to $10, and aggregating App. 360: “The spirit of the statute is not the sum of $167.75; that after September

to close the mouth of the living party to a 14, 1901, he refused to make any more pay. contract, where the other party is dead, unments on the account. Scullin testified over

der all conditions and in every circumstance, the objection of plaintiff as follows: "The but to close his mouth where to permit him first time she came she said, 'I understand

to speak would give him an advantage which that you have promised. In the first place he would not have were the other party livshe said that she was very hard up, and said

ing." The transactions and conversation to she did not have any money, and that she which Scullin was admitted to testify were understood her husband to say that I have had with the appellant, a living person; and promised to pay him back some money that it would be a hard rule to admit plaintiff to he had paid me for those teams, and I told testify to conversations and promises made her that that was right-that I had done to her by Scullin, and then deny him the that. She asked me how much it was, and

right to contradict such conversations and I told her that it was $140, and I told her

agreements, if not true. This view of the that I had promised him just before he died

competency of Scullin to give testimony be that I would do that, and that I would just

was admitted to give disposes of appellant's as soon as I was able, and I did do it. I

objection to the instructions given and repaid her from time to time $5 until I had it

fused by the court. The instructions given more than paid up. In fact, I kept giving

are supported by the evidence, and fairly and her money until she came to me with her

fully submitted all the issues to the jury, husband, and then I told her that that set

The judgment is affirmed. tled it; I wouldn't pay her any more; that I had more than paid her what I had prom- REYBURN and GOODE, JJ., concur.

MAXEY v. STATE. (Supreme Court of Arkansas. July 8, 1905.) 1. MISDEMEANORS PROSECUTION ON AFFI

DAVIT-APPEAL-CIRCUIT COURT JURISDIOTION.

The circuit court has jurisdiction of an appeal from a conviction before a justice of the peace on an affidavit charging violation of Kirby's Dig. & 1680, declaring that every person who shall convey into any jail anything useful to aid any prisoner in his escape shall be punished, etc. 2. CRIMINAL LAW CHANGE OF VENUE GROUND FOR REFUSAL.

Where, on application for change of venue in a criminal case on the ground of prejudice of the inhabitants, three of the witnesses who signed affidavits were examined by the court and found not to be informed as to the condition of the minds of the inhabitants, the action of the court in overruling the motion was not arbitrary.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 252, 253.] 3. SamE-CIRCUIT COURT RULE.

Failure to comply with a circuit court rule that, before a change of venue shall be granted in any criminal cause, written notice of the application therefor shall be given to the state's attorney three days prior to the application, is not of itself sufficient reason for denying a motion for a change of venue. 4. SAME-EVIDENCE-SUPPRESSION OF TESTIMONY.

In a criminal prosecution, evidence that on the day before the trial defendant had assaulted one of the witnesses for the prosecution was admissible, as showing an effort to suppress testimony.

(Ed. Note.—For cases in point, see vol. 14, Cent, Dig. Criminal Law, $ 782.] 5. SAME - APPEAL-FAILURE TO EXCEPT AT TZIAL.

On appeal in a criminal case, objections to evidence which was not excepted to in the trial court will not be considered.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 2662.) 6. SAME-HARMLESS ERROR.

The admission of incompetent evidence over objection is harmless, where the same facts are shown by other evidence not objected to.

[Ed. Note.-För cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 3138.) 7. SAME-AIDING PRISONER TO ESCAPE.

On a prosecution for violation of Kirby's Dig. $ 1680, punishing the conveying to a prisoner of any article designed to aid him in escaping, evidence that the prisoner whom it was charged defendant aided to escape was tried and acquitted was irrelevant, but harmless to defendant. 8. SAME-GENERAL EXCEPTION.

A general exception to evidence, not pointing out any specific objection, is insufficient to raise the question of error in its admission.

[Ed. Note.-For cases in point, see vol. 15, Cent, Dig. Criminal Law. & 2671.) 9. SAME-ELEMENTS OF OFFENSE.

Under Kirby's Dig. 1680, declaring that every person who shall convey into any jail any instrument proper or useful to aid any prisoner in his escape shall be guilty of a misdemea nor, whether such escape shall be effected or at tempted, or not, the conveying to a prisoner of an instrument designed to aid him in escaping, with intent so to do, makes the crime complete, whether there is an acquiescence or co-operation on the part of the prisoner or not.

88 S.W.-64

10. SAME-ARGUMENT TO JURY.

In a criminal prosecution, remarks of a prosecuting attorney, merely drawing inferences from testimony before the jury, are not prejudicial.

Appeal from Circuit Court, Independence County; Frederick D. Feetherson, Judge.

R. L. Maxey was convicted of a misdemeanor, and appeals. Affirmed.

The amended record brought here by the Attorney General shows that appellant was convicted before a justice of the peace of Independence county on a charge made by the affidavit of the prosecuting attorney under the following statute: “Every person who shall convey into any jail or place of confinement any disguised instrument, arms or other thing proper or useful to aid any prisoner in his escape, with the intent there. by to facilitate the escape of any prisoner lawfully committed to or detained in such jail or place of confinement, for felony or other criminal offense, or detained therein for any violation of any penal statute, or any civil action, whether such an escape shall be effected or attempted or not, shall be deemed guilty of a misdemeanor, and on conviction be fined in any sum not less than one hundred dollars and be imprisoned not less than six months." Section 1680, Kirby's Dig. He appealed to the circuit court, was tried by jury, again convicted, and fined in the sum of $100 and six months in jail, and appealed to this court. In the circuit court appellant moved for change of venue, supporting his motion by the affidavits of himself and four others to the effect that the minds of the inhabitants of Independence county were so prejudiced against him that he could not obtain a fair and impartial trial. The prosecuting attorney objected to the hearing of the motion for change of venue because no written notice of such motion bad been served upon him, as provided by the rules of the circuit court, as follows: "That before a change of venue shall be granted in any cause pending on the criminal docket of this court, written notice of the application therefor shall be given to the attorney for the state at least three days prior to the day upon which the application is made. Upon hearing of any application for a change of venue, the defendant will be required to produce in court the persons making the supporting affidavits. The court, after examining three of the witnesses who signed the supporting affidavit for change of venue, called upon appellant to produce the fourth, but appellant was unable to do so. The court then overruled the motion for change of venue, reciting in the order “that the court, after hearing the cross-examination of the supporting affiants, is of the opinion that such affiants were not informed as to the condition of the minds of the inhabit. ants upon the matter, except about the city of Batesville, and for this reason, and that no notice of this application bad been served

upon the prosecuting attorney, as provided 5. The testimony of J. W. Six that he exby the rule of this court, the court is of the amined the charge of incest against W. J. opinion that the said motion be, and the Hall and committed him to jail, without prosame is hereby, overruled.” “Other facts will ducing the commitment or record, or acbe stated in the opinion.

counting for same, if erroneous, was not

prejudicial; for the witness W. J. Hall had Horton & South, for appellantRobt. Le

already testified, without objection, that he Roger, Atty. Gen., for the State.

had been committed to jail on a charge of

incest, and appellant himself testified that WOOD, J. (after stating the facts). 1. witness Hall had been in jail on that charge. The record brought here by certiorari on mo- 6. The fact that W. J. Hall, whom appeltion of the Attorney General shows that an lant is alleged to have intended to assist in appeal was taken by appellant from a judg- escaping from jail, had been tried and acment of conviction before the magistrate. quitted, was irrelevant to the charge against The circuit court therefore had no jurisdic- appellant; but we do not consider it prejudition.

cial. However, if it was relevant and preju2. The circuit court did not arbitrarily dicial, appellant saved only a general exoverrule appellant's motion for change of ception to it, failing to point out the specivenue, but examined three of the witnesses fied reason for its rejection. This was not signing the supporting affidavit, and found sufficient Vaughan v. State, 58 Ark. 353, that they were not informed as to the condi- | 24 S. W. 885. tion of the minds of the inhabitants about 7. The offense is complete under the statthe matter, except about the city of Bates- ute when any person shall have conveyed ville. This alone was sufficient to justify into the jail or place of confinement anythe court in refusing the motion for change thing proper or useful to aid any prisoner in of venue. The court gave as an additional his escape with the intent to facilitate the reason for refusing the change noncompli- escape of any prisoner, whether such esance by the appellant with its rules. This cape be effected or attempted, or not. The was no legal reason for refusing a motion acquiescence or co-operation of the prisoner, for change of venue, where the statute had which appellant contends is necessary, does been complied with; and, had this been the not seem to be contemplated by the act. only reason for the court's ruling, it would The express language is to the contrary. have been error. But, having examined the 8. The bill of exceptions contains the folwitnesses and ascertained the facts, as lowing: “Be it remembered that upon the found in the court's order overruling the mo- trial of the above-entitled cause J. C. Yancy, tion, which finding is sustained by the evi- attorney for the state, made the following dence, the court's ruling in refusing the mo- improper and prejudicial remarks: 'Bob tion cannot be considered arbitrary, and Maxey knew that dead men tell no lies,' therefore erroneous.

and saying that ‘Maxey, the defendant, in3. The court permitted the state's witness tended to kill Hall bis escape,' and sayHall to testify that the appellant had, on ing "They,' meaning the defendant's attorthe day previous to the trial, assaulted him neys, 'ask you to believe that Morgan would and used abusive language towards him. he guilty of such a scheme as this, and you The appellant's testimony shows that the as- must believe that Morgan would stoop to insault on and abusive language to Hall was stigate a scheme of this kind of that Bob because of what Hall had sworn before con- Maxey is guilty'—to which remarks the decerning appellant's connection with the crime fendant at the time excepted, and asked the charged. Hall was to testify, and did testi- court to instruct the same from the jury, fy the next day. The testimony tended to which was by the court overruled, which show the animus of appellant toward the ruling of the court he at the time excepted prosecuting witness, Hall, on account of the and asked that his exceptions be noted of testimony he had previously given, and which record, which was accordingly done." The he might be expected to give again on the above record shows that the circuit court remorrow. It tended to show a disposition on garded the remarks of the attorney as "imthe part of appellant to browbeat or intimi- proper and prejudicial,” but, notwithstanddate the witness Hall on account of his tes- ing this, he overruled the motion for a new timony, and in that sense might be regarded trial, setting up such remarks as the fifteenth as an effort on the part of appellant to sup- ground in such motion. This record presents press testimony against him.

the somewhat anomalous condition of the 4. Appellant urges that it was error for circuit judge expressing an opinion as to the court to permit witnesses to testify in the effect of the remarks objected to, but the absence of appellant to conversations failing to give the appellant the benefit of with Hall, in which he made statements his opinion by granting his motion for a damaging to appellant; but appellant failed new trial. As the learned trial judge, notto reserve exceptions to the ruling of the withstanding his declaration that the recourt in admitting this testimony, and the marks of the attorney set out above were objection made here for the first time can- "improper and prejudicial,” refused the apnot avail.

pellant's motion for a new trial, the question is presented to us as to whether the 3. APPEAL - AFFIRMANCE ON MERITS – NEW remarks were really "improper and preju

TRIAL. dicial," the declaration of the circuit judge

In an action to recover land, plaintiff of

fered in evidence a certified transcript of a to the contrary notwithstanding. The wit- record from the General Land Office to prove ness Hall had testified that the appellant title. This was admitted over objection on the had hit him on the head and knocked him

ground that it was secondary evidence and no

foundation had been laid, but the court decided down, and that from the effect of such blow

for defendant on other grounds. Held, that on he was in bad condition and suffering from appeal a determination that the transcript was nervousness at the time of giving his testi

not admissible as original evidence did not remony. There was nothing beyond this to

quire an affirmance on the merits, despite interindicate the character of the assault that plaintiff was entitled to a new trial, in order to

vening errors, in favor of defendant, but that was made by the appellant on the witness give him an opportunity to render his evidence Hall, and this was hardly sufficient to justi

competent by laying proper foundation. fy the attorney in reaching the conclusion

Supplemental opinion. For former opinthat it was the intention of the appellant,

ion, see 88 S. W. 566. by this assault, to kill the witness Hall, in order to get rid of his testimony, as indi.

HILL, C. J. This case was decided at this cated by the language which the attorney

term, and is yet within control of the court, used. Still the facts upon which he predi

and the court has concluded that it erred in cated his opinion were before the jury, and

its ruling on a question of evidence, and of as sensible men we must assume that they

its own motion has decided to recall the gave the opinion of the attorney as to these

mandate and insert this additional opinion facts no more or greater consideration than

therein for the guidance of the chancery the facts themselves justified. In this view,

court, and to modify the decree heretofore we do not see how the remarks concerning the

entered, so as to remand for further proceedassault could have been prejudicial. Likewise

ings, instead of remanding with peremptory as to what was said as to Sheriff Morgan.

directions to enter judgment for appellant. The facts were all before the jury, upon which

The appellant, to prove his chain of title, the attorney was expressing his opinion. It

offered a duly certified transcript from the was no more than an opinion which he was

Land Office showing the record of the issuexpressing. The learned counsel for appel

ance of a patent to Cross. The appellee oblant say "that the proof on the part of the

jected to its introduction on the ground that state showed conclusively that the sheriff

it was not the best evidence, the loss of the was a party to the scheme to induce the de.

original not having been proved. The court fendant to violate the law by committing

overruled this objection, and the appellee the act for which he was tried in this case."

duly excepted to the ruling. The court deThis being the opinion of counsel for appel

cided the case in favor of the appellee, Ashalant as to the conduct of Sheriff Morgan in

braner, upon a totally different proposition. connection with the transaction, it was cer- Upon the hearing in this court appellee intainly legitimate argument for counsel for

sisted that its exception was well taken, and the state to express the opinion that what

appellant's title not properly proved, and on the sheriff did in connection with the matter

the whole record the case ought to be affirmmust be attributed to innocent and proper ed, even if the court did not sustain his other motives, and, if so, the appellant was guilty.

contentions. The court held that the tranWe do not find the remarks complained of

script was original evidence and properly prejudicial to appellant.

admitted. Two other cases have come here Having considered all the assignments of

where the same point has been fully diserror in the order presented in appellant's cussed, and the court has concluded that it brief, and finding no reversible error, the erred in this case in holding the certified judgment is affirmed.

copy of the transcript to be original evidence, and sufficient to prove the transfer without laying proper foundation for its introduction

as secondary evidence. The question is fulBOYNTON V. ASHABRANER.

ly discussed in Carpenter v. Dressler, this

day decided,1 and the opinion therein will (Supreme Court of Arkansas. July 29, 1905.)

be made a part hereof in the mandate. 1. SECONDARY EVIDENCE – CERTIFIED TRAN- It does not follow, from this change of the SCRIPT OF RECORD.

opinion of the court on this question, that the A certified transcript from the Land Office, showing the record of the issuance of a patent,

case should be affirmed. The chancellor is not admissible in evidence, in the absence of

held the evidence competent, and based his any proof of the loss of the original.

adverse decision on other grounds, and there[Ed. Note.-For cases in point. see vol. 20, by did not give the appellant an opportunity Cent. Dig. Evidence, SS 1302, 1303.]

to render this evidence competent by laying 2. DOCUMENTARY EVIDENCE – TIME FOR Ex- the proper foundation then, or suffering a CEPTIONS.

nonsuit and bringing his action anew, whereUnder the express provisions of Kirby's

in he could have his evidence in proper Dig. 88 2743, 3190, exceptions to depositions and documentary evidence are to be determined

shape to be admissible. The practice conbefore final submission.

templates that exceptions to depositions and * Rehearing pending.

documentary evidence be determined before evidence tending to connect defendant with the final submission. See sections 2743, 3190,

offense committed," a charge is not erroneous Kirby's Dig. This enables a party to nonsuit

because merely, requiring corroboration by evi.

dence tending in "some degree" to connect dewhen he has mistaken the competency of his fendant with the offense. evidence and otherwise protect his rights.

5. SAME-CIRCUMSTANTIAL EVIDENCE. It would be manifestly unjust, and contrary A case is not one of circumstantial evito the better practice, to permit a defeat in

dence, where there is a confession of defendant an appellate court on an exception to evi.

and testimony of an accomplice that defendant

did the act. dence ruled in favor of the appellant, thereby throwing him off his guard and preventing Appeal from District Court, Grayson Counhim from properly protecting his rights, ity; B. L. Jones, Judge. when the decision is against him on totally

Will McKinney was convicted of assault different grounds. Such a case is not one to murder, and appeals. Affirmed. for the application of the rule to affirm when

Howard Martin, Asst. Atty. Gen., for the on the whole record the judgment is right,

State. although wrong reasons are given for it, but rather is a case calling for a remand for fur

BROOKS, J. Appellant was convicted of ther proceedings wherein it is shown that

assault to murder, and, being under 14 years the case is not fully developed on account

of age, his punishment was fixed at confineof an error of the court or a mistake of the

ment in the state reformatory and house of party as to his remedy, when the interests

correction for a term of five years. The tesof justice require the whole case to be more

timony shows substantially that A. Thomas, fully developed.

the assaulted party, a vender of fruits and The judgment is modified to the extent

chile, was shot by appellant, who was acthat the cause is reversed and remanded for

companied by Marvin Rhodes at the time of further proceedings not inconsistent here

the shooting; Rhodes being a small boy. with.

Prosecutor at the time of the shooting was in bed at his place of business. The shooting occurred between 5 and 6 o'clock in the

morning. Prosecutor testified that upon MCKINNEY V. STATE.

hearing a noise at the door he partly opened (Court of Criminal Appeals of Texas. June 14, it, and a shot was fired, wounding him. The 1905.)

state's testimony shows that the wound was 1. CRIMINAL LAW-INSTRUCTIONS AFTER RE- inflicted with a 22-caliber target rifle. The

TIREMENT OF JURY - TESTIMONY OF WIT- state introduced appellant's confession. NESS.

However, in this confession appellant states Under White's Ann. Code Cr. Proc. art. 734, providing that if the jury, after retiring,

that his companion, Marvin Rhodes, did the ask further instructions, the court may give shooting; that he and Marvin had agreed to them in writing, it is proper, where they, after shoot the old man (prosecutor) because he retirement, ask that the testimony of a witness be read to them, for the court to inform them

had sold them some chile the day before of in writing that they cannot have the testimony

an inferior grade. The state introduced Marread to them, but that, if there is a disagree- vin Rhodes, and he testified that appellant ment among them as to his testimony, they can

did the shooting. The first bill of exceptions request the court to have him brought back on

relates to the refusal of the court to instruct the stand, and have him detail that part of his testimony about which they disagree; such pro- the jury peremptorily to find a verdict of not ceedings being authorized by article 735.

guilty. We do not think there was any er2. SAME-HARMLESS ERROR-TESTIMONY AS TO ror in this, since both the confession of apDEFENDANT'S MENTAL CAPACITY.

pellant and the testimony of the accomplice, Defendant is not prejudiced by testimony

with the other evidence in the case, support of witnesses that in their opinion he had sufficient mental capacity to know it was wrong to

the verdict of the jury. attempt to kill prosecutor, this being admitted Bill of exceptions No. 2 shows that, after when the court was of the opinion that the

the jury had retired to consider their verdict, evidence made an issue whether defendant at the time of offense was under the age of 13

they propounded to the court the following years, and having been withdrawn when the question: "The jury desires to hear the tescourt was satisfied that no such issue was timony of W. S. Russell read to them. W. raised.

W. Parks, Foreman." The court informed 3. SAME-CONFESSIONS-INSTRUCTIONS.

the jury in writing that under the law they A charge that, where the state puts a confession in evidence, the whole of it is to be

could not have the testimony read to them; taken together, and the state bound by it, un

but, if there was any disagreement among less it is shown to be imtrue in whole or part, them as to the testimony of any of the witthough unnecessary, there being other testimony

nesses, they could request the court to have than the confession, is in proper form, even if the confession was relied on alone for con

the witness brought back on the stand and viction.

have him detail that part of the testimony 4. SAME-ACCOMPLICE TESTIMONY--CORROBO- about which the jury disagreed. This inRATION--INSTRUCTIONS.

struction was clearly correct, under article Though it is better practice to follow

734, 88 875–877, White's Ann. Code Cr. Proc.; White's Ann. Code Cr. Proc. art. 781, providing that a conviction cannot be had on accom

Conn v. State, 11 Tex. App. 390. plice testimony, “unless corroborated by other Bills 3 and 5 relate to the action of the

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