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that said statements were true." The ap- 3. SAME-NEGLIGENCE. pellant at the time, by his attorneys, objected

Plaintiff's mule was killed by defendant's and excepted to these statements; the court

train while on the right of way and track, going

from the_train some distance before it was at the time of appellant's objections stating struck. The view along the track was clear for to said attorney for appellee, in a mild tone at least a quarter of a mile from the point the of voice, that such argument was not proper;

mule entered the right of way, and, at the speed

the train was running, it was evidently far whereupon said attorney said that he “apolo

enough from the mule so that, if action towards gized for said statement,” but, “that plaintiff slowing down had been earlier begun, the injury was one of the meanest men who ever came could have been avoided. Held, that defendant into a court of justice"; that he had de

was liable.

[Ed. Note.-For cases in point, see vol. 41, stroyed his own trees and had poisoned his

Cent. Dig. Railroads, $8 1489–1498.] own cistern; and that the evidence warranted him in saying so. And Hon. W. A. Tur. Appeal from Circuit Court, Washington ner, one of the attorneys for appellee, in ar- County; John N. Tillman, Judge. guing said case before the jury, asserted that Action by J. D. Carlisle against the St. "he was warranted in sayin, from the evi. Louis & San Francisco Railway Company. dence, that the plaintiff had destroyed his Judgment for plaintiff, and defendant apown orchard, that he believed this, and was peals. Affirmed. warranted in believing it, from the evidence

L. F. Parker and B. R. Davidson, for apin the case." The record fails to disclose

pellant. Walker & Walker, for appellee. any offer of testimony to support any of the charges. Evidence that English injured his own cistern, of course, would have been com

HILL, C. J. This is an action against petent, but not the charges of murder.

the appellant railroad company for negliThere is absolutely nothing in the record to

gently killing appellee's mule. There were warrant any of these remarks. Anderson's

a verdict and a judgment in favor of appeltestimony is confined to denials and explana

lee. The court gave one general instruction, tion of the evidence against him, and some of

and it was in entire accord with the statute his witnesses are corroborative of him, and

governing these cases. At the instance of some are corroborative of English's evidence.

appellant the court gave ten instructions, These assertions, therefore, were wholly un

and refused three. Those given presented warranted, and were attempts of counsel to

fairly every phase of the appellant's case make witnesses of themselves of matters

which it was entitled to have considered, without the record. The court fell short

and some more favorably for it than the of the duty imposed on him to enforce the

law authorized. The first one refused was a argument in legitimate channels, and permit- peremptory instruction which ought not to ted repetitions of it, in offensive and denun

have been given. The next instruction reciatory terms, after his mild admonitions to

fused stated that it was not negligence to counsel to desist. Even if the court had act.

run the train at 50 or 55 miles an hour. The ed emphatically, it is doubtful if the sinister

court had just instructed, at instance of effect of these remarks cou have been erad

appellant, that the company was not required icated. This subject has recently been gone

to run its train at a low rate of speed, as into fully in the cases of Kansas City South

to one who owned stock and allowed it to ern Ry. v. Murphy (Ark.) 85 S. W. 428, and

range in the vicinity of the track. The last Day v. Ferguson (Ark.) 85 S. W. 771. Apply

instruction requested which was refused stating the principles therein stated, the court is

ed that, if the rate of speed the train was of the opinion that an undue advantage has

operated was the sole cause of the injury, to been secured by this argument, not warrant

find for the defendant. This was not the ed by the law or facts of the case.

issue in the case, but the issue was one of Reversed and remanded.

care in the operation of the train—whether slow or fast-and that question was properly and fairly presented in instructions framed

by the appellant. ST. LOUIS & S. F. RY, CO. V. CARLISLE.

On the evidence, the jury, if it believed (Supreme Court of Arkansas. June 10, 1905.) plaintiff's witnesses, were amply justified 1. RAILROADS-KILLING STOCK ON TRACK- in finding the verdict. The mule killed was INSTRUCTIONS-SPEED OF TRAIN.

on the right of way and track going from Where, in an action against a railroad for negligently killing plaintiff's mule, the court

the train some distance before it was struck, instructed that defendant was not required to

and the vision along the track was clear riin its train at a low rate of speed, as to one at least a quarter of a mile from the point who owned stock and allowed it to range in the mule must enter the right of way. At the vicinity of the track, an instruction that it was not negligence to run the train at 50 or 55

the rate of speed the train was running, it miles an hour was properly refused.

was evidently a sufficient distance away 2. SAME-ISSUES.

from the mule to have prevented the injury An instruction that, if the rate of speed if action towards slacking the speed was of the train was the sole cause of the injury, defendant was not liable, was also properly re

earlier begun. In fact, it is doubtful if it fused; the issue being one of care in the opera.

was slackened at all. tion of the train, whether slow or fast,

Judgment affirmed.

new trial, and hence it is not properly for COROTHERS V. STATE.

review here. (Supreme Court of Arkansas. June 10, 1905.) 2. The appellant complains of the follow1. CRIMINAL LAW-APPEAL-INSTBUCTIONS

ing action of the court: "The defendant thereREVIEW.

upon asked the court to instruct the jury Where there was no exception to an in- that, if the act of sexual intercourse was struction in a criminal case, nor any assign

committed forcibly and against the will of ment of error based thereon, in the motion for a new trial, the instruction is not reviewable.

the prosecuting witness, then the crime was [Ed. Note. -For cases in point, see yol. 15,

rape, and not carnal abuse, which was by Cent. Dig. Criminal Law, 88 2668, 2683.]

the court refused.” The prosecutrix testi2. SEXUAL ABUSE OF INFANT FEMALE-CON- fied that the first act of intercourse was withSENT.

out her consent and against her will. She Sexual intercourse with a female under 16

also testified to four other subsequent acts years of age, with or without her consent, con. stitutes a crime, within Kirby's Dig. $ 2008,

of intercourse, where the lack of consent is punishing the offense of carnally knowing a fe- not shown. Discarding the first act, still the male under the age of 16 years.

evidence sustains the verdict. But the fact [Ed. Note. For cases in point, see vol. 42, that the intercourse was procured in a manCent. Dig. Rape, $ 12.]

ner to constitute rape will not be a defense 3. CRIMINAL LAW - CROSS-EXAMINATION OF DEFENDANT.

to an indictment under this statute. The Under Kirby's Dig. $ 3088, making a de

charge of rape does not include this crime, as fendant on trial for crime a competent witness, pointed out in Warner v. State, 54 Ark. 660, a defendant testifying is subject to a similar 17 S. W. 6, but the fact of sexual intercourse cross-examination as any other witness, and it is not error to cross-examine him with refer

with a female under 16 years of age, with or ence to his attempt to silence testimony against without her consent, whether obtained by him,

force or from lust, constitutes the crime de[Ed. Note.-For cases in point, see vol. 50, i nounced by this statute. Cent. Dig. Witnesses, 88 979–984.)

3. The appellant testified in his own be4. SAME-DISCRETION OF COURT-REVIEW.

half, and denied the crime charged, and exThe court, in controlling the cross-examination of a defendant on trial for crime, is vested

plained the occasion of the trip when the first with discretionary power, and it is only for an act was charged to have been committed. abuse thereof prejudicial to defendant that a He testified in regard to all the material reversal can be had.

questions before the jury. The state was [Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, 3064; vol. 50, Cent.

permitted to cross-examine him to inquire Dig. Witnesses, 88 923-930.]

whether one Riggs, a friend of his, had of

fered the father of the prosecutrix $1,000 to Appeal from Circuit Court, Conway Coun

get the girl out of the county in order to ty; Wm. L. Moore, Judge.

prevent her testifying against him. He deOne Corotbers was convicted of carnal

nied all knowledge of any such action. There abuse of a female under the age of 16 years,

was evidence on behalf of the state tending and he appeals. Affirmed.

to prove that an effort had been made by Cravens & Covington and Atkinson & Pat- another party to get the girl away. The terson, for appellant. Robt. L. Rogers, Atty. first case in which this court passed on the Gen., for the State.

act of 1885 (Kirby's Dig. $ 3088) permitting

the defendant to testify in criminal cases was HILL, C. J. Corothers was indicted under McCoy v. State, 46 Ark. 141, and the followsection 2008, Kirby's Dig., for carnal abuse ing rule announced: “A defendant in a crimof Lou Eldridge, a female under the age of inal case takes the stand like any other wit16 years, was convicted, and has appealed. ness. He is subject to the same liabilities

1. The indictment was returned May 6, on cross-examination as any other witness1904, and alleged the offense to have been This rule has been followed and apcommitted on May 10, 1904. It was essen- plied in many cases since. It was entirely tially similar to the one in Conrand v. State, competent to attempt to prove by this wit65 Ark. 559, 47 S. W. 628. The court in that ness (defendant) that he was attempting to case held that an indictinent charging the silence testimony against him. Some of the offense in the past tense was not vitiated by questions asked assumed facts not proved, the insertion, evidently by clerical error, of and he denied all knowledge of the matter a date in the future. The trial judge, in inquired of, and no prejudicial error is seen his charge, told the jury that the indictment in this regard. The circuit court is necescharged the crime was committed in 1904, sarily vested with a large discretion in con"and the proof shows that it was in 1903, i trolling the examination of witnesses, and it which makes no difference.” The instruction is only for an abuse of such discretion prejuis criticised for assuming that the crime was dicial to the appellant that reversals can be proved. While the instruction is not hap: obtained. Straw Scott v. State (Ark.) 86 S. pily worded, yet its meaning, in view of the W. 1004. facts and the connection in which it was 4. On the whole case the court is unable used, is clear. However, there is no excep- to find any prejudice to the appellant. The tion to this instruction, and no assignment prosecutrix was severely attacked, and her of error based upon it, in the motion for a moral character questioned, and the probability of her evidence assailed. The jury has, each calendar month, and transmit them imhowever, believed her and discredited the mediately, together with his monthly report, appellant, and their decision upon all such and all cash on hand in excess of $500.00 to matters is final.

es."

said Company at Denver; any failure upon The judgment is affirmed.

his part to discharge these duties shall be sufficient grounds for the termination of this contract.

(

“(3) Not to draw for his personal use more WROUGHT IRON RANGE CO. V. YOUNG. than One Hundred Dollars per month until (Supreme Court of Arkansas. June 10, 1905.)

the final settlement at the expiration of this

contract. 1. MASTER AND SERVANT-EMPLOYMENT-ConTRACTS-WAGES-INDEBTEDNESS SET-OFF. “(4) Ten per cent. of all losses upon notes

Where plaintiff was employed as defend- received for sales made by men under his ant's agent under a separate but similar con

supervision during the term of this contract, tract for each of several years, to be paid by commissions on ranges sold by employés un

shall be deducted from amount due bim; and der his charge, defendant was entitled to set any balance due on notes for ranges taken up off the amount due by plaintiff to it on account and returned to the Company shall be acceptfor one of the years against sums due from de

ed as losses. fendant to plaintiff on the account for that and prior years.

“(5) Under no circumstances will be permit [Ed. Note.- For cases in point, see vol. 34, | any man under his supervision to overdraw Cent. Dig. Master and Servant, & 111; vol. 43, the monthly allowance due him for his work; Cent. Dig. Set-Off and Counterclaim, $$ 44, 53.) in the event of such overdraft, same to be 2. SAME-OVERDRAFTS-INSTRUCTIONS.

charged to the account of the party of the Where plaintiff's contract of employment second part.” provided that he should not permit any man under his supervision to overdraw his monthly

A separate contract was signed for each allowance, and that in the event of such over- year of service, but these contracts, with the draft the same should be charged to plaintiff's exception of the dates, were the same. account, and in an action on the contract the

Afterwards S. K. Young brought an action court charged that if sums were appropriated by the salesmen under plaintiff, without his į at law against the defendant company, in permission, knowledge, or consent, before such which he alleged that the company was owsums reached his hands, such retention did not ing him $774.57 for commissions due January constitute an overdraft, within the meaning of

1, 1899, for sales made by men under his suthe contract, the refusal of an instruction stating the converse of such proposition was error.

pervision for the years 1897 and 1898, and

the further sum of $600 for commissions for Appeal from Circuit Court, Quachita Coun

sales made on credit during year 1898, and ty; Charles W. Smith, Judge.

not realized on until year 1899, and which Action by S. K. Young against the Wrought

were due January 1, 1900, and also the furIron Range Company. From a judgment for

ther sum of $600 for services as superintend. plaintiff, defendant appeals. Reversed.

ent during year 1898, outside of the contract During the years 1897, 1898, and 1899 S. referred to, wherefore he asked judgment K. Young was employed by the Wrought Iron against the company for the amounts named, Range Company to take supervision of sales- with interest. The defendant, in its answer, men engaged in selling Home Comfort ranges denied that it was due the plaintiff any sum manufactured by the defendant. The com- upon the contracts sued on, and denied that pany agreed to allow him for his services plaintiff performed any services not included about $2 on each range sold by men under bis in the contracts made by him, and denied that supervision. But when a range was sold on it was indebted to plaintiff anything either credit the commission was not due until the on the account or for extra services. Defendnotes given for the same were collected. On ant further alleged, by way of counterclaim his part, Young agreed:

and set-off, that during the year 1897 the (1) To discharge the duties required of plaintiff overdrew his personal account bim strictly and faithfully; to devote all his $80.78, and further that during the years time to the business of said company, in such 1897, 1898, and 1899 he permitted salesmen territory and in such manner as may be pre

under his supervision to draw in excess of scribed by it; to keep careful oversight of the commissions due them the sums amountthe expenses of the men under his supervi- ing to $3,748.03, for which overdrafts, it alsion, keeping their and his own expense ac- leged, the plaintiff was liable under the terms count to the lowest possible limit, and to of his contract. On the trial there were a accept said commission, as provided, in full verdict and judgment in favor of the plaintiff satisfaction for his services.

for the sum of $1,974.57, from which judg“(2) To personally inspect all notes and ment the defendant appealed. sales made by men under his supervision, and

J. M. Moore and W. B. Smith, for appelto ascertain if any promises or verbal agree

lant. Campbell & Stevensen and Smead & ments have been made by such men and left

Powell, for appellee. unfilled; to report each month to his general superintendent the work inspected and its condition; to settle the books of all men un- RIDDICK, J. (after stating the facts). The der his supervision on or about the first of plaintiff was employed by the defendant for

in

the years 1897, 1898, and 1899, to have super- For the reasons stated, the judgment will vision of salesmen selling ranges manufac- be reversed, and the cause remanded for a tured by defendant. He sued for commis- new trial, with leave for either party to sions due him for the years 1897 and 1898, amend his pleadings so as to include accounts but it appeared that during the year 1899 of 1899. It is so ordered. plaintiff had overdrawn his account, and that if the account for 1899 be considered, and plaintiff charged with the amounts advanced to him by defendant during that year, it will SHORTER UNIVERSITY V. FRANKLIN materially reduce the amount due from de

BROS. CO. fendant to plaintiff. While the services per

(Supreme Court of Arkansas. June 10, 1905.) formed by plaintiff for defendant were con

1. APPEAL-ABSTRACT FAILURE TO SET OUT tinuous during the years named, they were

INSTRUCTIONS-PRESUMPTION. performed under a separate contract; but it Where none of the instructions are set out

in the abstract, as required by Sup. Ct. Rule plaintiff to defendant on the account of 1899

9, the court will assume that they were correct. can be used as a set-off against the sums due

[Ed. Note.--For cases in point, see vol. 3,

Cent. Dig. Appeal and Error, 88 3749, 3750.) from defendant to him on the accounts for the years 1897 and 1899. When the accounts

2. SAME — REFERENCE TO TESTIMONY-SUFFI

CIENCY OF PRESENTATION. for all these years are considered, it seems An abstract of the transcript as follows: quite clear that the judgment in this case is “By reference to the testimony of ța witness? excessive, for, if every item claimed by plain

(see Tr. p. 59), etc., it is conclusively shown,"

etc., insufficiently presents the testimony to the tiff is allowed, when the accounts for 1899

Supreme Court. are considered, the judgment is still much too [Ed. Note.--For cases in point, see vol. 3, large.

Cent. Dig. Appeal and Error, 88 2595, 2596.] Again, the contract under which plaintiff 3. SAME-AMENDMENT OF RECORD IN LOWEB performed the services for defendant stipu- COURT-PRESUMPTIONS. lated that he should not permit any man un

It is in the province of the circuit court to der his supervision to overdraw the monthly

amend its record, and, in the absence of evi

dence showing error, it will be presumed corallowance due bim for his work, and that in

rect. the event of such overdraft the same should (Ed. Note.-For cases in point, see vol. 3, be charged to the account of the plaintifr. Cent. Dig. Appeal and Error, 38 3804-3806.] Now, the evidence showed that the men un

Appeal from Circuit Court, Pulaski Counder the supervision of plaintiff retained from

ty; Edward W. Winfield, Judge. time to time various sums collected by them

Action by Franklin Bros. Company against in excess of the amounts due them for their

Shorter University. Judgment for plaintiff, work, and it became a material question in

and defendant appeals. Affirmed. the case as to whether these sums should, under the contract, be charged to plaintiff,

John Barrow, for appellant. Maloney & and the loss borne by him, if the sums were

Maloney, for appellee. never refunded by such salesmen. On this point we think the court correctly stated the HILL, C. J. This is a cause originating in law in his first instruction, in which he said | justice of the peace court, and after trial on that if those sums were appropriated by the appeal in circuit court is brought here. The salesmen to their own use, without the per

contest seems to have been whether a gromission, knowledge, or consent of the plain- cery bill of $54.95 was properly charged to tiff, before such sums reached his hands, such Shorter University, or to one W. C. Cox, the retention did not constitute an overdraft, manager of the boarding department of the within the meaning of the contract. But he university. The appellant has wholly failed refused to give the fifth instruction asked by to set forth “the material parts of the pleaddefendant, in which the converse of that prop- ings, proceedings, facts, and documents upon osition was stated, to the effect that, if plain- which he relies, together with such other til did permit salesmen to retain out of the statements from the record as are necessary moneys paid them on account of sales more to a full understanding of all questions prethan their monthly allowance, then, under sented to the court for decision," as required the terms of the contract, he was chargeable by rule 9. None of the instructions are set with such amounts as overdrafts.

The re

out, and therefore the court must assume that fusal to give this instruction we think, was the jury was correctly instructed. Koch v. error prejudicial to the defendant, because, Kimberling, 55 Ark. 547, 18 S. W. 1040; Carunder the facts of this case, it was a question penter v. Hammer (Ark.) 87 S. W. 646. for the jury to determine whether the plain- The appellant contends that there is no tiff consented to the retention of such proof to show that Shorter University agreed amounts by the salesmen under his supervi. or undertook to pay this bill, and then says: sion. If he did consent to the retention by “By reference to the testimony of T. H. salesmen of sums in excess of their monthly Jackson (see Tr. p. 59) and the testimony of allowance, he was, in effect, permitting them J. W. Walker (see Tr. p. 67), etc., it is conto overdraw their accounts, and he became clusively shown,” etc. This is what Mr. liable for such sums under his contract. Justice Mansfield described in this language:

case,

"And content themselves with a mere refer- described, that they, the said Bunch & Mcence to it (the testimony] by way of insisting | Kenzie, are to have the use and occupation upon its insufficiency.” The court added: thereof, or the use and occupation of so much “The rules of practice do not make it our thereof, as they may clear up and put in a duty to explore the transcript for the evi- good state of cultivation for the term of five dence thus omitted.” Ruble v. Helm, 57 Ark. years, free of rent. The clearing necessary to 304, 21 S. W. 470. To properly understand make this term of the contract operative shall the case, each of the five judges of this court be as follows: The said Bunch & McKenzie would have to take turn about in exploring are to cut down and remove all the timber the transcript to discover the facts of the from the land with the exception of all gum

The rule was promulgated 20 years and sycamore trees, exceeding two and oneago to obviate that slow and tedious method half feet in diameter, which trees are to be of trial in this court. For a recent discus- deadened and left standing; the said Bunch sion of the proper office of the abstract and & McKenzie are to further build a house transcript reference is made to Neal v. Bran- 16x32 feet with a partition in the middle, for don (Ark.) 85 S. W. 776. The judgment every twenty acres of land cleared land at seems to have been first rendered against T. such points as may be designated by the said H. Jackson as superintendent of Shorter Uni- E. W. Williams. It is not understood by the versity, and afterwards, on motion, which terms of this contract that the said Bunch & was resisted, amended so as to be rendered McKenzie are to clear and put into a good against the corporation. It was in the prov- state of cultivation, all of the New Ground ince of the circuit court to amend its record, hereinbefore specified, but it is especially unand, in the absence of evidence showing er- derstood and agreed that whatever amount ror, it will be presumed to be correct. The of uncleared land they shall put into cultivaappellee has set forth the substance of some tion as aforesaid, they shall have the use of the evidence, and from it and the appel- thereof free of rent for a term of five years. lant's argument of its force, it appears that It is, however, agreed and understood bethe circuit court arrived at the right conclu- tween the parties that the said E. W. Wilsion in the case.

liams shall have the option after the expiraThe judgment is affirmed.

tion of one year, to take back the lands that have been cleared and placed in cultivation by the said Bunch & McKenzie, but in doing

so he shall pay to the said Bunch & McKenzie BUNCH et al. v. WILLIAMS.

the sum of Three and 50-100 Dollars per acre (Supreme Court of Arkansas. June 17, 1905.)

per annum for each acre that they may have

so cleared as aforesaid, until the expiration LEASE-CONSTRUCTION-RECOVERY OF Posses

of the five years." Bunch & McKenzie during SION BY LESSOR. Plaintiff contracted to let defendants have

1897 cleared and put in cultivation about 40 the use for five years of so much of a tract of acres of the new ground, and erected two timber land as they might clear up. It was pro- cabins upon it, but left several hundred trees vided that the clearing necessary should be the removal of all timber except trees exceeding

standing on the land which were not 214 feet 242 feet in diameter, and that plaintiff should in diameter. In December, 1900, Williams have the option, after one year, to take back notified Bunch & McKenzie that he would exthe lands which had been cleared, on paying defendants a certain sum per acre per annum for

ercise the option reserved in the contract and each acre they had cleared. Defendants par

take back the new ground on January 1, 1901, tially cleared a portion of the land, leaving and asked them to have the ground measured some trees standing which were less than 24 to determine what was due them under the feet in diameter. Held, that plaintiff was not

contract. entitled to retake the land under the option

Bunch & McKenzie replied that without first tendering the amount to which de

they would hold possession of the new ground fendants were entitled for labor performed. until "the same is paid for according to our

contract." Williams served notice on defendAppeal from Circuit Court, Jefferson Coun

ants to quit as provided by the statute in proty; Antonio B. Grace, Judge.

ceedings for unlawful detainer, and afterAction by E. W. Williams against Bunch &

wards brought this action to recover possesMcKenzie. From a judgment for plaintiff, de

sion. But he made no tender or offer to pay fendants appeal. Reversed.

defendants for the clearing before bringing E. W. Williams, on the 5th day of Decem- the action. On the trial it was shown, as beber, 1898, rented to Bunch & McKenzie a fore stated, that Bunch & McKenzie had part of the Leland plantation in Jefferson cleared and put in cultivation about 40 acres county for one year for the sum of $4,000. of land, and had built two houses thereon of Along with this improved land Williams let the dimensions as required by the contract, them have 240 acres that had been deadened, and that they had expended in such work but not cleared, which is called "New something over $500. It was also shown that Ground" in the contract. This contract was at the end of the first year there were several reduced to writing, and so much of it as re- hundred trees under 21/2 feet in diameter still fers to this “New Ground” is as follows: “It standing on the land, to remove which at once is expressly understood and agreed between would cost several hundred dollars. Bunch & the parties that the New Ground hereinbefore McKenzie testified that it was their intention

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