that said statements were true." The appellant at the time, by his attorneys, objected and excepted to these statements; the court at the time of appellant's objections stating to said attorney for appellee, in a mild tone of voice, that such argument was not proper; whereupon said attorney said that he “apologized for said statement," but, "that plaintiff was one of the meanest men who ever came into a court of justice"; that he had destroyed his own trees and had poisoned his own cistern; and that the evidence warranted him in saying so. And Hon. W. A. Turner, one of the attorneys for appellee, in arguing said case before the jury, asserted that "he was warranted in saying, from the evidence, that the plaintiff had destroyed his own orchard, that he believed this, and was warranted in believing it, from the evidence in the case." The record fails to disclose any offer of testimony to support any of the charges. Evidence that English injured his own cistern, of course, would have been competent, but not the charges of murder. There is absolutely nothing in the record to warrant any of these remarks. Anderson's testimony is confined to denials and explanation of the evidence against him, and some of his witnesses are corroborative of him, and some are corroborative of English's evidence. These assertions, therefore, were wholly unwarranted, and were attempts of counsel to make witnesses of themselves of matters without the record. The court fell short of the duty imposed on him to enforce the argument in legitimate channels, and permitted repetitions of it, in offensive and denunciatory terms, after his mild admonitions to counsel to desist. Even if the court had acted emphatically, it is doubtful if the sinister effect of these remarks could have been eradicated. This subject has recently been gone into fully in the cases of Kansas City Southern Ry. v. Murphy (Ark.) 85 S. W. 428, and Day v. Ferguson (Ark.) 85 S. W. 771. Applying the principles therein stated, the court is of the opinion that an undue advantage has been secured by this argument, not warranted by the law or facts of the case. Reversed and remanded.

ST. LOUIS & S. F. RY. CO. v. CARLISLE. (Supreme Court of Arkansas. June 10, 1905.) 1. RAILROADS-KILLING STOCK ON TRACKINSTRUCTIONS-SPEED OF TRAIN.

Where, in an action against a railroad for negligently killing plaintiff's mule, the court instructed that defendant was not required to run its train at a low rate of speed, as to one who owned stock and allowed it to range in the vicinity of the track, an instruction that it was not negligence to run the train at 50 or 55 miles an hour was properly refused. 2. SAME-ISSUES.

An instruction that, if the rate of speed of the train was the sole cause of the injury, defendant was not liable, was also properly refused; the issue being one of care in the operation of the train, whether slow or fast.

3. SAME-NEGLIGENCE.

Plaintiff's mule was killed by defendant's train while on the right of way and track, going from the train some distance before it was struck. The view along the track was clear for at least a quarter of a mile from the point the mule entered the right of way, and, at the speed the train was running, it was evidently far enough from the mule so that, if action towards slowing down had been earlier begun, the injury could have been avoided. Held, that defendant was liable.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1489–1498.]

Appeal from Circuit Court, Washington County; John N. Tillman, Judge.

Action by J. D. Carlisle against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

L. F. Parker and B. R. Davidson, for appellant. Walker & Walker, for appellee.

HILL, C. J. This is an action against the appellant railroad company for negligently killing appellee's mule. There were a verdict and a judgment in favor of appellee. The court gave one general instruction, and it was in entire accord with the statute governing these cases. At the instance of appellant the court gave ten instructions, and refused three. Those given presented fairly every phase of the appellant's case which it was entitled to have considered, and some more favorably for it than the law authorized. The first one refused was a peremptory instruction which ought not to have been given. The next instruction refused stated that it was not negligence to run the train at 50 or 55 miles an hour. The court had just instructed, at instance of appellant, that the company was not required to run its train at a low rate of speed, as to one who owned stock and allowed it to range in the vicinity of the track. The last instruction requested which was refused stated that, if the rate of speed the train was operated was the sole cause of the injury, to find for the defendant. This was not the issue in the case, but the issue was one of 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. ·

On the evidence, the jury, if it believed plaintiff's witnesses, were amply justified in finding the verdict. The mule killed was on the right of way and track going from the train some distance before it was struck, and the vision along the track was clear at least a quarter of a mile from the point the mule must enter the right of way. At the rate of speed the train was running, it was evidently a sufficient distance away from the mule to have prevented the injury if action towards slacking the speed was earlier begun. In fact, it is doubtful if it was slackened at all.

Judgment affirmed.

Under Kirby's Dig. § 3088, making a defendant on trial for crime a competent witness, a defendant testifying is subject to a similar cross-examination as any other witness, and it is not error to cross-examine him with reference to his attempt to silence testimony against him.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 979-984.]

4. SAME-DISCRETION OF COURT-REVIEW.

The court, in controlling the cross-examination of a defendant on trial for crime, is vested with discretionary power, and it is only for an abuse thereof prejudicial to defendant that a reversal can be had.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3064; vol. 50, Cent. Dig. Witnesses, §§ 923-930.]

Appeal from Circuit Court, Conway County; Wm. L. Moore, Judge.

One Corothers was convicted of carnal abuse of a female under the age of 16 years, and he appeals. Affirmed.

Cravens & Covington and Atkinson & Patterson, for appellant. Robt. L. Rogers, Atty. Gen., for the State.

HILL, C. J. Corothers was indicted under section 2008, Kirby's Dig., for carnal abuse of Lou Eldridge, a female under the age of 16 years, was convicted, and has appealed.

1. The indictment was returned May 6, 1904, and alleged the offense to have been committed on May 10, 1904. It was essentially similar to the one in Conrand v. State, 65 Ark. 559, 47 S. W. 628. The court in that case held that an indictment charging the offense in the past tense was not vitiated by the insertion, evidently by clerical error, of a date in the future. The trial judge, in his charge, told the jury that the indictment charged the crime was committed in 1904, "and the proof shows that it was in 1903, which makes no difference." The instruction is criticised for assuming that the crime was proved. While the instruction is not happily worded, yet its meaning, in view of the facts and the connection in which it was used, is clear. However, there is no exception to this instruction, and no assignment of error based upon it, in the motion for a

new trial, and hence it is not properly for review here.

2. The appellant complains of the following action of the court: "The defendant thereupon asked the court to instruct the jury that, if the act of sexual intercourse was committed forcibly and against the will of the prosecuting witness, then the crime was rape, and not carnal abuse, which was by the court refused." The prosecutrix testified that the first act of intercourse was without her consent and against her will. She also testified to four other subsequent acts of intercourse, where the lack of consent is not shown. Discarding the first act, still the evidence sustains the verdict. But the fact that the intercourse was procured in a manner to constitute rape will not be a defense to an indictment under this statute. The charge of rape does not include this crime, as pointed out in Warner v. State, 54 Ark. 660, 17 S. W. 6, but the fact of sexual intercourse with a female under 16 years of age, with or without her consent, whether obtained by force or from lust, constitutes the crime denounced by this statute.

3. The appellant testified in his own behalf, and denied the crime charged, and explained the occasion of the trip when the first act was charged to have been committed. He testified in regard to all the material questions before the jury. The state was permitted to cross-examine him to inquire whether one Riggs, a friend of his, had offered the father of the prosecutrix $1,000 to get the girl out of the county in order to prevent her testifying against him. He denied all knowledge of any such action. There was evidence on behalf of the state tending to prove that an effort had been made by another party to get the girl away. The first case in which this court passed on the act of 1885 (Kirby's Dig. § 3088) permitting the defendant to testify in criminal cases was McCoy v. State, 46 Ark. 141, and the following rule announced: "A defendant in a criminal case takes the stand like any other witness. He is subject to the same liabilities on cross-examination as any other witnesses." This rule has been followed and applied in many cases since. It was entirely competent to attempt to prove by this witness (defendant) that he was attempting to silence testimony against him. Some of the questions asked assumed facts not proved, and he denied all knowledge of the matter inquired of, and no prejudicial error is seen in this regard. The circuit court is necessarily vested with a large discretion in controlling the examination of witnesses, and it is only for an abuse of such discretion prejudicial to the appellant that reversals can be obtained. Straw Scott v. State (Ark.) 86 S. W. 1004.

4. On the whole case the court is unable to find any prejudice to the appellant. The prosecutrix was severely attacked, and her moral character questioned, and the proba

Where plaintiff was employed as defendant's agent under a separate but similar contract for each of several years, to be paid by commissions on ranges sold by employés under his charge, defendant was entitled to set off the amount due by plaintiff to it on account for one of the years against sums due from defendant to plaintiff on the account for that and prior years.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 111; vol. 43, Cent. Dig. Set-Off and Counterclaim, §§ 44, 53.] 2. SAME-OVERDRAFTS-INSTRUCTIONS.

Where plaintiff's contract of employment provided that he should not permit any man under his supervision to overdraw his monthly allowance, and that in the event of such overdraft the same should be charged to plaintiff's account, and in an action on the contract the court charged that if sums were appropriated by the salesmen under plaintiff, without his permission, knowledge, or consent, before such sums reached his hands, such retention did not constitute an overdraft, within the meaning of the contract, the refusal of an instruction stating the converse of such proposition was error.

Appeal from Circuit Court, Ouachita County; Charles W. Smith, Judge.

Action by S. K. Young against the Wrought Iron Range Company. From a judgment for plaintiff, defendant appeals. Reversed.

During the years 1897, 1898, and 1899 S. K. Young was employed by the Wrought Iron Range Company to take supervision of salesmen engaged in selling Home Comfort ranges manufactured by the defendant. The company agreed to allow him for his services about $2 on each range sold by men under his supervision. But when a range was sold on credit the commission was not due until the notes given for the same were collected. On his part, Young agreed:

"(1) To discharge the duties required of him strictly and faithfully; to devote all his time to the business of said company, in such territory and in such manner as may be prescribed by it; to keep careful oversight of the expenses of the men under his supervision, keeping their and his own expense account to the lowest possible limit, and to accept said commission, as provided, in full satisfaction for his services.

"(2) To personally inspect all notes and sales made by men under his supervision, and to ascertain if any promises or verbal agreements have been made by such men and left unfilled; to report each month to his general superintendent the work inspected and its condition; to settle the books of all men under his supervision on or about the first of

each calendar month, and transmit them immediately, together with his monthly report, and all cash on hand in excess of $500.00 to said Company at Denver; any failure upon 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 than One Hundred Dollars per month until the final settlement at the expiration of this contract.

"(4) Ten per cent. of all losses upon notes received for sales made by men under his supervision during the term of this contract, shall be deducted from amount due him; and any balance due on notes for ranges taken up and returned to the Company shall be accepted as losses.

"(5) Under no circumstances will he permit any man under his supervision to overdraw the monthly allowance due him for his work; in the event of such overdraft, same to be charged to the account of the party of the second part."

A separate contract was signed for each year of service, but these contracts, with the exception of the dates, were the same.

Afterwards S. K. Young brought an action at law against the defendant company, in which he alleged that the company was owing him $774.57 for commissions due January 1, 1899, for sales made by men under his supervision for the years 1897 and 1898, and the further sum of $600 for commissions for sales made on credit during year 1898, and not realized on until year 1899, and which were due January 1, 1900, and also the further sum of $600 for services as superintendent during year 1898, outside of the contract referred to, wherefore he asked judgment against the company for the amounts named, with interest. The defendant, in its answer, denied that it was due the plaintiff any sum upon the contracts sued on, and denied that plaintiff performed any services not included in the contracts made by him, and denied that it was indebted to plaintiff anything either on the account or for extra services. Defendant further alleged, by way of counterclaim and set-off, that during the year 1897 the plaintiff overdrew his personal account $80.78, and further that during the years 1897, 1898, and 1899 he permitted salesmen under his supervision to draw in excess of the commissions due them the sums amounting to $3,748.03, for which overdrafts, it alleged, the plaintiff was liable under the terms of his contract. On the trial there were a verdict and judgment in favor of the plaintiff for the sum of $1,974.57, from which judgment the defendant appealed.

J. M. Moore and W. B. Smith, for appellant. Campbell & Stevensen and Smead & Powell, for appellee.

RIDDICK, J. (after stating the facts). The plaintiff was employed by the defendant for

the years 1897, 1898, and 1899, to have supervision of salesmen selling ranges manufactured by defendant. He sued for commissions due him for the years 1897 and 1898, but it appeared that during the year 1899 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 materially reduce the amount due from defendant to plaintiff. While the services performed by plaintiff for defendant were continuous during the years named, they were performed under a separate contract; but it is clear we think that the amounts due by plaintiff to defendant on the account of 1899 can be used as a set-off against the sums due from defendant to him on the accounts for the years 1897 and 1899. When the accounts for all these years are considered, it seems quite clear that the judgment in this case is excessive, for, if every item claimed by plaintiff is allowed, when the accounts for 1899 are considered, the judgment is still much too large.

Again, the contract under which plaintiff performed the services for defendant stipulated that he should not permit any man under his supervision to overdraw the monthly allowance due him for his work, and that in the event of such overdraft the same should be charged to the account of the plaintiff. Now, the evidence showed that the men under the supervision of plaintiff retained from time to time various sums collected by them in excess of the amounts due them for their work, and it became a material question in the case as to whether these sums should, under the contract, be charged to plaintiff, and the loss borne by him, if the sums were never refunded by such salesmen. On this point we think the court correctly stated the law in his first instruction, in which he said that if those sums were appropriated by the salesmen to their own use, without the permission, knowledge, or consent of the plaintiff, before such sums reached his hands, such retention did not constitute an overdraft, within the meaning of the contract. But he refused to give the fifth instruction asked by defendant, in which the converse of that proposition was stated, to the effect that, if plaintiff did permit salesmen to retain out of the moneys paid them on account of sales more than their monthly allowance, then, under the terms of the contract, he was chargeable with such amounts as overdrafts. The refusal to give this instruction we think, was error prejudicial to the defendant, because, under the facts of this case, it was a question for the jury to determine whether the plaintiff consented to the retention of such amounts by the salesmen under his supervision. If he did consent to the retention by salesmen of sums in excess of their monthly allowance, he was, in effect, permitting them to overdraw their accounts, and he became liable for such sums under his contract.

For the reasons stated, the judgment will be reversed, and the cause remanded for a new trial, with leave for either party to amend his pleadings so as to include accounts of 1899. It is so ordered.

SHORTER UNIVERSITY v. FRANKLIN BROS. CO.

(Supreme Court of Arkansas. June 10, 1905.) 1. APPEAL-ABSTRACT-FAILURE TO SET OUT INSTRUCTIONS-PRESUMPTION.

Where none of the instructions are set out in the abstract, as required by Sup. Ct. Rule 9, the court will assume that they were correct. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3749, 3750.] 2. SAME REFERENCE TO TESTIMONY-SUFFIICIENCY OF PRESENTATION.

An abstract of the transcript as follows: "By reference to the testimony of [a witness] (see Tr. p. 59), etc., it is conclusively shown,' etc., insufficiently presents the testimony to the Supreme Court.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2595, 2596.] 3. SAME-AMENDMENT OF RECORD IN LOWER COURT-PRESUMPTIONS.

It is in the province of the circuit court to amend its record, and, in the absence of evidence showing error, it will be presumed correct.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3804-3806.]

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by Franklin Bros. Company against Shorter University. Judgment for plaintiff, and defendant appeals. Affirmed.

John Barrow, for appellant. Maloney & Maloney, for appellee.

HILL, C. J. This is a cause originating in justice of the peace court, and after trial on appeal in circuit court is brought here. The contest seems to have been whether a grocery bill of $54.95 was properly charged to Shorter University, or to one W. C. Cox, the manager of the boarding department of the university. The appellant has wholly failed to set forth "the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to the court for decision," as required by rule 9. None of the instructions are set out, and therefore the court must assume that the jury was correctly instructed. Koch v. Kimberling, 55 Ark. 547, 18 S. W. 1040; Carpenter v. Hammer (Ark.) 87 S. W. 646.

The appellant contends that there is no proof to show that Shorter University agreed or undertook to pay this bill, and then says: "By reference to the testimony of T. H. Jackson (see Tr. p. 59) and the testimony of J. W. Walker (see Tr. p. 67), etc., it is conclusively shown," etc. This is what Mr. Justice Mansfield described in this language.

"And content themselves with a mere reference to it [the testimony] by way of insisting❘ upon its insufficiency." The court added: "The rules of practice do not make it our duty to explore the transcript for the evidence thus omitted." Ruble v. Helm, 57 Ark. 304, 21 S. W. 470. To properly understand the case, each of the five judges of this court would have to take turn about in exploring the transcript to discover the facts of the case. The rule was promulgated 20 years ago to obviate that slow and tedious method of trial in this court. For a recent discussion of the proper office of the abstract and transcript reference is made to Neal v. Brandon (Ark.) 85 S. W. 776. The judgment seems to have been first rendered against T. H. Jackson as superintendent of Shorter University, and afterwards, on motion, which was resisted, amended so as to be rendered against the corporation. It was in the province of the circuit court to amend its record, and, in the absence of evidence showing error, it will be presumed to be correct. The appellee has set forth the substance of some of the evidence, and from it and the appellant's argument of its force, it appears that the circuit court arrived at the right conclusion in the case.

The judgment is affirmed.

BUNCH et al. v. WILLIAMS. (Supreme Court of Arkansas. June 17, 1905.) LEASE-CONSTRUCTION-RECOVERY OF POSSESSION BY LESSOR.

Plaintiff contracted to let defendants have the use for five years of so much of a tract of timber land as they might clear up. It was provided that the clearing necessary should be the removal of all timber except trees exceeding 22 feet in diameter, and that plaintiff should have the option, after one year, to take back the lands which had been cleared, on paying defendants a certain sum per acre per annum for each acre they had cleared. Defendants partially cleared a portion of the land, leaving some trees standing which were less than 22 feet in diameter. Held, that plaintiff was not entitled to retake the land under the option without first tendering the amount to which defendants were entitled for labor performed.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action by E. W. Williams against Bunch & McKenzie. From a judgment for plaintiff, defendants appeal. Reversed.

E. W. Williams, on the 5th day of December, 1898, rented to Bunch & McKenzie a part of the Leland plantation in Jefferson county for one year for the sum of $4,000. Along with this improved land Williams let them have 240 acres that had been deadened, but not cleared, which is called "New Ground" in the contract. This contract was reduced to writing, and so much of it as refers to this "New Ground" is as follows: "It is expressly understood and agreed between the parties that the New Ground hereinbefore

described, that they, the said Bunch & McKenzie, are to have the use and occupation thereof, or the use and occupation of so much thereof, as they may clear up and put in a good state of cultivation for the term of five years, free of rent. The clearing necessary to make this term of the contract operative shall be as follows: The said Bunch & McKenzie are to cut down and remove all the timber from the land with the exception of all gum and sycamore trees, exceeding two and onehalf feet in diameter, which trees are to be deadened and left standing; the said Bunch & McKenzie are to further build a house 16x32 feet with a partition in the middle, for every twenty acres of land cleared land at such points as may be designated by the said E. W. Williams. It is not understood by the terms of this contract that the said Bunch & McKenzie are to clear and put into a good state of cultivation, all of the New Ground hereinbefore specified, but it is especially understood and agreed that whatever amount of uncleared land they shall put into cultivation as aforesaid, they shall have the use thereof free of rent for a term of five years. It is, however, agreed and understood between the parties that the said E. W. Williams shall have the option after the expiration 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 the sum of Three and 50-100 Dollars per acre per annum for each acre that they may have so cleared as aforesaid, until the expiration of the five years." Bunch & McKenzie during 1897 cleared and put in cultivation about 40 acres of the new ground, and erected two cabins upon it, but left several hundred trees standing on the land which were not 21⁄2 feet in diameter. In December, 1900, Williams notified Bunch & McKenzie that he would exercise the option reserved in the contract and take back the new ground on January 1, 1901, and asked them to have the ground measured to determine what was due them under the contract. Bunch & McKenzie replied that they would hold possession of the new ground until "the same is paid for according to our contract." Williams served notice on defendants to quit as provided by the statute in proceedings for unlawful detainer, and afterwards brought this action to recover possession. But he made no tender or offer to pay defendants for the clearing before bringing the action. On the trial it was shown, as before stated, that Bunch & McKenzie had cleared and put in cultivation about 40 acres of land, and had built two houses thereon of the dimensions as required by the contract, and that they had expended in such work something over $500. It was also shown that at the end of the first year there were several hundred trees under 21⁄2 feet in diameter still standing on the land, to remove which at once would cost several hundred dollars. Bunch & McKenzie testified that it was their intention