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it was not the act of a sane man. We do not mean to say that the evidence is insufficient to sustain the verdict of the jury on this question of the defendant's mental capacity to commit the crime; but the evidence in support of the plea is of such persuasive force, taken in connection with the condition attached to the verdict implying a doubt of defendant's sanity, that we are not content to allow the verdict and death sentence to stand. No harm can result from the delay of another trial, and we are constrained to believe that a due regard for justice demands it. The defendant made full confession of the homicide, and there is no probability of the evidence being lost on account of the delay of another trial. The case rests solely upon the question of the defendant's sanity.

The petition for rehearing is granted, and the cause is reversed and remanded for a new trial.

by their verdict that they believed beyond a reasonable doubt that he was sane when he committed the homicide. We think, from this, that there were sufficient grounds for believing him to be insane, and that the court should have impaneled a jury to inquire into his condition.

Finding no prejudicial error in the trial, the verdict will not be disturbed, but the cause is reversed, and remanded with directions to the court before sentence to impanel a jury to inquire into the sanity of appellant.

BATTLE, J., dissents, holding that the case should be reversed and remanded for a new trial.

On Rehearing. McCULLOCH, J. Learned counsel for appellant, in a petition for rehearing, insist that the trial judge, in telling the jury, when the conditional verdict was brought into court, that the defendant could not be executed within 30 days, "and the supposition is that defendant's attorneys will look after his interest in all proper ways," committed error to the prejudice of the defendant, which was not removed by the subsequent withdrawal of the remarks. Counsel argue with much force that the jury, from this statement, notwithstanding the subsequent withdrawal of the statement, were led to believe that the question of the defendant's mental capacity to commit the crime would be taken care of later by counsel, and that the verdict of conviction would not be conclusive of that question. They argue that the conviction attached to this verdict offered had reference to the mental capacity of the defend. ant at the time the homicide was committed, and not to his present mental capacity, and that the jury, by attaching the condition, expressed a doubt as to his mental capacity when he committed the homicide.

We adhere to the conclusion, formerly rendered, that the remarks of the court, taken as a whole, were not calculated to prejudice the rights of the defendant before the jury. Still, after a careful examination of the record, we are impressed with the belief that the jury, in attaching the condition to this verdict, meant to express a doubt as to the mental capacity of the defendant to commit the crime, and to require a further investigation of that question, and we do not feel sure that, when this unconditional verdict was subsequently returned, the jury had been made to understand that such verdict was conclusive of that question. There is considerable testimony tending to sustain the plea of insanity. The peculiar atrocity of the act, its inexcusability, the total absence of provocation or motive, the conduct of the accused for a few weeks before the homicide, the fact that his father was shown to be atlicted with the homicidal mania, and the opinions of several physicians and an expert of great experience in the treatment of diseases of the mind, all tend with much force to show that

BATTLE, J. I concur as to the judgment of the court, but not as to the reasons given.

The jury, after being out some time, returned into court a verdict which, I think, indicated that they had not agreed as to the sanity of the appellant at the time of the commission of the offense with which he was charged. The court then said to them: “Gentlemen: The verdict is not in the usual or proper form. It will not be proper to attach any condition or limitation to the verdict. In case of conviction, the defendant cannot be executed for more than 30 days; and the supposition is that defendant's attorneys will look after his interest in all proper ways.” Appellant excepted to the last remark. The court withdrew that remark, but did not correct or explain it, and left the impression made by it remaining in full force. The result was the jury returned a verdict in about 25 minutes, in which they found the defendant guilty of murder in the first degree as charged in the indictment. I think the remark was prejudicial, and that appellant is entitled to a new trial.

WOOD, J., concurs with me.

HILL, C. J. (dissenting). My first impressions of this case were that it should be affirmed in entirety, but after consultation and consideration I concluded that the disposition made of the case on the hearing was the right decision to render. That decision gave full weight to the first verdict of the jury de manding an inquiry into the sanity of the defendant, and gave full weight to the second verdict, which found he was sane when he committed the crime. The evidence is ample to sustain the verdict of guilty, and I can see no reversible error in any of the proceedings in the trial, and to direct an inquiry into the present sanity or insanity of the defendant is the utmost which any occurrence at the trial demands, in my opinion; and therefore I dissent from the decisiou granting a new trial.

there must be an acquittal, yet, as to matANDREWS v. MINTER.

ters of mitigation, accused would be required to

furnish a preponderance of the evidence. Held, (Supreme Court of Arkansas. June 10, 1905.) that such statement was erroneous. LANDLORD AND TENANT-SALE BY LANDLORD Appeal from Circuit Court, Pike County ; -TENANT'S DAMAGES.

James S. Steele, Judge. In an action by a tenant for damages because of the landlord's refusal to deliver pos

George Cogburn was convicted of murder session, the measure of damages was the differ- in the second degree, and he appeals. Reence between the agreed rental and the rental versed. value. (Ed. Note.--For cases in point, see vol. 32,

Robt. L. Rogers, Atty. Gen., for the State. Cent. Dig. Landlord and Tenant, $ 453.] Appeal from Circuit Court, Benton Coun

RIDDICK, J. The defendant, George Cogty; John N. Tillman, Judge.

burn, was indicted by the grand jury of MontAction by W. L. Minter against Lucinda

gomery county for murder in the first degree Andrews. From a judgment in favor of

on account of the killing of Jim West. On plaintiff, defendant appeals. Affirmed on

the trial the evidence tended to show that condition that plaintiff remit a specified por

Cogburn and West had previously had a fight, tion of his judgment, otherwise reversed.

and that there was a bad state of feeling be

tween them. West said afterwards that CogRice & Patton, for appellant. E. P. Wat- burn had hit him with a rock, and some of son, for appellee.

the witnesses stated that West threatened to

get even with him; saying that he intended BATTLE, J. W. L. Minter rented from to "peck his head with the same rock.” Still Lucinda Andrews a certain dwelling house others testified that he had threatened to kill and lot in Bentonville, Ark., for six months him. With this state of feeling between them, from March 30, 1903, for which he agreed to they attended a picnic at Fancy Ilill, in that pay $8.3343 per month. He caused to be county, on the 25th day of July, 1903. West hauled and placed on the lot two loads of was in company of one Perrin. George Cog-' manure at a cost of $5. This was done with burn, the defendant, and one of his cousins the knowledge and consent of Mrs. Andrews. had a lemonade stand at the picnic, and seyShe sold the house and lot, and refused to eral of his brothers were at the picnic. Cogdeliver him possession. He sued her for burn and his brothers were probably anticidamages, and recovered $100.

pating trouble from West, for they had with He testified that the rental value of the them at the lemonade stand two Winchester house and lot was from $12 to $15 per rifles. West and Perrin came up to the stand, month; other witnesses, that it was less. | Perrin having a Colt's 44 pistol in his hand; The damage he was entitled to recover was and some of the witnesses say that West had the difference between the price he agreed a pistol also. Cogburn and his brother, being to pay and the rental value. 3 Sutherland

perhaps apprehensive that West and Perrin on Damages (3d Ed.) p. 2578. He was en. were about to assault them, fired upon them titled to recover on account of this differ- with the Winchester rifles, killing both of ence, according to his own testimony, $22, them almost instantly. Several witnesses for and $5 for the manure, making $27.

the state testified positively that at the time If he will within one week remit $73, his of the shooting neither West nor Perrin was judgment will be affirmed for $27 and 6 per making any hostile demonstration toward cent. per annum interest from October 3, the defendant or his brother. On the other 1903, the date of his judgment, and costs of hand, several witnesses testified for the dethe trial court; otherwise the judgment will fendant that Perrin and West approached the be reversed, and the cause remanded for a lemonade stand in a threatening manner; new trial.

that, as they approached, Andy Cogburn, a brother of George, commanded the peace, to which Perrin and West replied, “Damn your

peace;" that Perrin made a demonstration as COGBURN v. STATE.

if he was about to shoot Andy Cogburn, when (Supreme Court of Arkansas. June 17, 1905.) the defendant said, “Hold on there;" that MURDER_PROOF OF KILLING MITIGATING Perrin then turned and fired at defendant a

CIRCUMSTANCES — PREPONDERANCE OF Evi- Colt's 44 revolver, who returned the fire with DENCE-STATUTES-INSTRUCTIONS,

his rifle, and that about this time West also Kirby's Dig. $ 1765, provides that, a killing being proved, the burden of proving mitigating

fired at defendant with a pistol; and that circumstances devolves on accused, unless by

defendant then turned and shot him. Other the proof on the part of the prosecution it is shots were fired by a brother of the defendmanifest that the offense amounted only to

ant. In other words, the testimony of a nummanslaughter or that there was justification; and, by section 2387, when there is a reasonable

ber of witnesses for the state tended to show doubt of the defendant's guilt on the testimony that defendant was guilty of murder, while, he is entitled to an acquittal. On a prosecution on the other hand, the testimony of other wit. for murder the court correctly charged on selfdefense, and gave section 1765 as an instruc

nesses, most of whom were related to the detion, but subsequently stated that while if, on fendant, tended to show that he shot in selfthe whole case, there was a reasonable doubt, defense. The jury found the defendant guilty

of murder in the second degree, and assessed his punishment at five years in the penitentiary.

On the trial the court gave the jury very full instructions in reference to the law of self-defense and the other points involved in the case, and we see no error in these instructions. Among them was the following, which is a copy of the statute: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide." Kirby's Dig. $ 1765. This section of the statute, it will be seen, is a rule of law to be applied when the killing has been proved, and where nothing is shown to justify or excuse such act. In such a case it may well be presumed that there was no justification, or the defendant would bave shown it. In commenting on this instruction the attorney for the state said: "The court tells you that, under this instruction which I read to you, that, the killing being proved, the burden of proving circumstances of mitigation and justification devolves on the accused. Under this law, after we introduced Jim West we could have rested our case, and the burden was upon them to establish justification, and, if they fail to satisfy you by a preponderance of evidence that the killing was justifiable, then you should convict him.” To which the defendant objected, and the court said: "While it is true that if, upon the whole case, they had a reasonable doubt, they must acquit, yet, as to matters of mitigation, he would be required to furnish a preponderance of the evidence.” Now, the argument of the prosecuting attorney, as shown in the record, was not in accordance with the law. For, while it is true, as our statute declares, that, when the killing is proved, the burden of showing circumstances that mitigate or excuse the crime devolves upon the accused, where there is nothing in the evidence on the part of the state that tends to mitigate, excuse, or justify the killing, still the burden on the whole case is on the state; and, when evidence is introduced either on the part of the state or the defend. ant which tends to justify or excuse the act of the defendant, then, if such evidence, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant the jury must acquit. This is settled in this state by the statute which declares that “when there is a reasonable doubt of the defendant's guilt upon the testimony in the whole case he is entitled to an acquittal." Kirby's Dig. $ 2387. But if this statement of the prosecuting attorney was correct-that when the killing is proved the defendant must show by a preponderance of the evidence that the killing was justifiable—the

jury would have to reject his defense whenever it was not supported by a preponderance of the evidence. This would limit the doctrine of a reasonable doubt to the fact of the killing, and, when that was established beyond a reasonable doubt, it would put the burden on the defendant of establishing justification by a preponderance of the evidence; and, if he failed to do so, the jury would be required to convict him, even though the evidence adduced by him was sufficient to raise a reasonable doubt as to his guilt. But it cannot be said that the defendant must make out his defense by a preponderance of the evidence, and also that he is entitled to an acquittal if on the whole case the jury have a reasonable doubt of his guilt, for the two propositions are to some extent inconsistent. Testimony not sufficient to establish a fact by a preponderance of the testimony may be sufficient to raise a reasonable doubt as to the existence of the fact. To tell the jury that they must convict unless the fact of self-defense is established by a preponderance of the testimony, and also that they must acquit if they have a reasonable doubt as to whether the defendant acted in self-defense, is telling them to follow two rules which may lead to very different results. The statute, it will be noticed, says nothing about preponderance of evidence. It says that, the killing being shown, the burden is on the defendant to show facts that justify or excuse the homicide. When, however, he introduces his proof, the question, says Mr. Wharton, arises: "Is it sufficient for him if he raises a reasonable doubt as to the defense he advances? Or must be establish this defense by a preponderance of proof in order to entitle him to an acquittal?” He answers the question by say. ing that when the defense traverses some essential ingredient of the indictment, such as malice or premeditation, it is sufficient if the proof raises a reasonable doubt. If the defendant undertakes to show that the act was done in necessary self-defense, this tends to rebut the allegation of malice; and, if the jury have a reasonable doubt on that point, they should acquit, for that is a reasonable doubt as to whether an essential charge in the indictment is true or not. It is otherwise when the defense does not traverse any essential averment of the indictment-for instance, when former conviction or acquittal of the same offense is set up. Wharton's Crim. Neg. 88 331, 334. Our statute, as before stated, has answered the question for this state in the same way, by declaring that, when there is a reasonable doubt on the whole case, the jury must acquit; thus showing that the defendant is not required to make out his case by a preponderance of the evidence. The statement of the law made by the prosecuting attorney was clearly wrong, and when objection was made to it the court should have stopped him and told the jury to disregard that statement. Tanks v. State, 71 Ark. 459, 75 S. W. 851. But the court did not do so,

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and, in effect, told the jury that wbile, if they on the ‘passing track until it came 30 steps had a reasonable doubt on the whole case, south of the depot, and about the time said they should acquit, yet that as to matters of freight train reached said passing track he mitigation the defendant must furnish a pre- turned round and looked at it, and saw it ponderance of the evidence. We have already turn, as he thought, on the passing track shown that this statement of the law is con- which he was then on, as it was the custom tradictory, and is not correct. As defendant of trains of that kind to do. He was familiar did furnish the evidence of several witnesses with the different trains on the Cotton Belt tending to show that the killing was in self- Railroad. Some are local freight trains, and defense, he had the right to have the jury some are through freight trains, and there told that it was not necessary for his acquit- are 15 or 20 passing during the day. Now, tal that the evidence on this point should pre- he walked down the passing track for some ponderate in his favor, but that, if it only distance, which was the common walkway, raised a reasonable doubt of his guilt on the and, hearing the train move rapidly, thought whole case, he was entitled to an acquittal. it would be safer to step over on the main The court so stated the law to the jury in his track and be further away, so it could pass. general instructions, but permitted the prose- Now, he used his eyes, and he thought be cuting attorney to argue to the contrary be- saw it go on the passing track, as it was the fore the jury. This ruling of the court upon custom of that class of trains to do so." The objection to the argument was, we think, er- train ran him down while he was on the roneous and prejudicial to the defendant, for main track, injuring him severely. He which the judgment must be reversed, and a brought suit, setting out in minute details the new trial ordered.

situation at the depot of the houses, trains, It is so ordered.

tracks, and all the circumstances of the unfortunate occurrence. His specifications of negligence were that the train was running

at an unusually rapid speed—at least 14 BURNS V. ST. LOUIS SOUTHWESTERN miles per hour—when it should have been RY. CO.

running not exceeding 4 miles per hour in (Supreme Court of Arkansas. June 10, 1905.) obedience to the city ordinance; that the 1. RAILROADS - NEGLIGENCE WALKING ON men in charge of the train were not keeping TRACK-CONTRIBUTORY NEGLIGENCE.

a constant lookout-had they done so, they Where one walking on a switch track in a

could have prevented the injury; that on ac. railroad yard, and who was familiar with the tracks, looked and saw a train starting, and

count of the unusual speed the train could thought that it was moving upon the track on not be stopped after appellee's servants diswhich he was walking, and he stepped over to covered his situation, whereas it might have another track, and was injured by the train,

been stopped after seeing him, had the train which was moving on that track, he was guilty of contributory negligence.

been running not more than 4 miles per hour, [Ed. Note.-For cases in point, see vol. 41, as required by the ordinance, etc. The anCent. Dig. Railroads, 88 1287, 1294.]

swer denied all material allegations, and set 2. SAME-DISCOVERED PERIL-NEGLIGENCE. up contributory negligence. After the evi

In an action for injuries received by one dence was in, the court, at the request of walking on a railroad track, held, that the evidence failed to show negligence on the part of

appellee, directed a verdict in its favor. the operatives of a locomotive in not stopping the train after discovering plaintiff's peril.

H. A. Parker, J. R. Parker, and C. E. Pet.

tit, for appellant. Appeal from Circuit Court, Monroe Coun. ty; Geo. M. Chapline, Judge.

S. H. West and J. O. Hawthorne, for apAction by Burns against the St. Louis pellee. Southwestern Railway Company. From a Continental Imp. Co. v. Stead, 95 U. S. judgment in favor of defendant, plaintiff ap- 161, 24 L. Ed. 403; Ry, v. Houston, 95 U. S. peals. Affirmed.

697, 24 L. Ed. 542; Schofield v. Ry., 114 U. On the 14th day of October, 1901, appel

S. 615, 5 Sup. Ct. 125, 29 L. Ed. 224; Ry. v. lant was conducting a hay, farming imple.

Blewett, 65 Ark. 235, 45 S. W. 548; Brennan ment, and lumber business at Stuttgart. v. Delaware Railroad, 83 Fed. 124, 27 C. C.A, This business brought him often to appellee's 418; Tucker v. Baltimore Ry. Co., 59 Fed. depot at Stuttgart, where he had barns on 3, 8 C. C. A. 416. each side of the numerous switches of appellee at the depot, and wagon scales be. WOOD, J. (after stating the facts). It tween the barns, where hay and other farm is unnecessary to discuss the evidence at products were weighed. He often daily length. The appellant was guilty of contribpassed over the many switches, as well as utory negligence, accon ng to the undisputthe “main” and “passing" track at the depot. ed facts, and it was the plain duty of the On the day appellant was injured, to use the court to declare, as matter of law, that aplanguage of his counsel in describing the in- pellant had no cause of action. jury: "He had just left the depot, and saw On the question of contributory negligence a train standing just northeast of the depot this was the testimony of appellant himself, at the tank, and knew that it could not get as abstracted by his counsel: "He started

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from the depot to go to a pair of scales to cident,” thus distinguishing the case in this weigh a load of hay, and he was on what is respect from the recent case of Ry. v. Johncalled the passing track,' and, remembering son (Ark.) 86 S. W. 282, and Ry. v. Hill, 73 that a freight train was at the tank just Ark. 86 S. W. 303. northeast of the depot, about 100 yards, and Judgment affirmed. hearing it start from the tank, when it got just southwest of the depot a few feet-a point where all the switches branch out-he looked back, and thought he saw the engine JOHNSON, BERGER & CO. V. DOWNING. heading for the passing track, which it was

(Supreme Court of Arkansas. June 17, 1905.) customary for trains of that kind to do. He

1. NOTES - COLLATERAL SECURITY NOTICE then stepped across the usual traveled way

OF NONPAYMENT. between the two tracks, and, to be sure he Where defendant, after transferring a third was out of the way, he stepped over in the person's note to plaintiffs as collateral security center of the main track, and immediately

for a debt, executed his note for the full amount

of his indebtedness, he thereby waived any liathe engine struck him, when he was just

bility to him as indorser because of failure to about at the southern or western edge of make demand and give notice of nonpayment. College street, on a line with the western line 2. SAME COLLECTING COLLATERAL-DILIof College street. After he stepped on the

GENCE. main track he walked at least thirty yards,

Where plaintiffs retained as collateral a

note of a third person transferred by defendant or ninety feet, before he was struck." This before executing his note to them, they were leaves nothing for the jury. According to bound only to use reasonable diligence to collect familiar rules often announced by this court,

it, and were liable only for gross negligence in

failing to collect the note and protect defendappellant did not make that use of his senses

ant from loss, and he cannot complain of mere for his own protection which the law exacts delay in forcing payment of the collateral note. before he can recover for the negligence of [Ed._Note.-For cases in point, see vol. 7, the company that concurred in his injury.

Cent. Dig. Bills and Notes, 88*1007, 1067.) Ry. v. Martin, 61 Ark. 549, 33 S. W. 1070;

3. INTEREST-RATE AFTER MATURITY. Ry. V. Blewitt, 65 Ark, 235, 45 S. W. 548;

Where a note bearing 10 per cent. inter

est contains no stipulation for interest after Ry. v. Crabtree, 69 Ark. 134, 62 S. W. 64.

maturity, interest must be computed at 10 per Appellant's great familiarity with the cent. from date to maturity and thereafter at 6 tracks and trains where he was injured, and

per cent. the ever imminence of peril where there was

[Ed. Note.-For cases in point, see vol. 7, so much passing and switching, should have

Cent. Dig. Bills and Notes, g 281.] kept his sense alert, and have caused him to Appeal from Poinsett Chancery Court; Edwalk between the railroad tracks, where, ward D. Robertson, Chancellor. according to the witnesses, it was "nice and Action by Johnson, Berger & Co. against smooth," and free from all danger. The law A. R. Downing. From a decree for defendwisely and justly holds the company liable ant, plaintiffs appeal. Reversed. for its own acts of negligence which result

Appellants, Johnson, Berger & Co., a firm in injury to another. But there would be no

of merchants at Jonesboro, Ark., brought reason or justice in holding it responsible

this suit in chancery to foreclose a mortgage for the mistakes of another which it did not

executed to them by appellee, A. R. Downcause, and could not prevent, and but for

ing, on January 3, 1899, upon certain land in which there would have been no injury not- Poinsett county, to secure payment of a withstanding its own negligence. Ry. v.

debt in the sum of $521.31, evidenced by Cullen, 54 Ark. 431, 16 S. W. 169; Ry. v.

promissory note. The greater part of the Ross, 56 Ark, 271, 19 S. W. 837; Ry. v. Tip

note is admitted to have been paid; the only pett, 56 Ark. 457, 20 S. W. 161; Catlett v.

dispute being as to two credits claimed by Ry., 57 Ark. 461, 21 S. W. 1062, 38 Am. St.

appellee, which, if allowed, extinguished the Rep. 254; see, also, Ry. v. Moseley, 57 Fed.

balance of the debt. These disputed credits 921, 6 C. C. A. 641, and other cases cited in are as follows: That appellee indorsed and appellee's brief.

delivered to appellants, as collateral secuThere is no proof whatever that would

rity, the negotiable promissory note of one warrant the conclusion that appellee wan- Cox and two other persons, for the sum of tonly, maliciously, or intentionally injured $100, dated September 27, 1898, due and payappellant, or was guilty of such negligence able 49 days after date, but which was never after discovering appellant's peril as to make paid, nor the amount credited to appellee, an inference of this kind justifiable. Mo. though the appellants could (so it is alleged Pac. Ry. v. Moseley, 57 Fed. 921, 6 C. C. A. by appellee), by proper diligence, have col641. On the contrary, appellant alleges in lected said note; and he alleges that appelhis complaint that “they were running the lants neglected to present said note at matrain at such an unusual speed that it could turity to the makers, and to notify appellee, not be stopped after seeing him," and the as indorser, of the nonpayment thereof. Also evidence on the part of the engineer and that appellee indorsed and delivered to appelfireman was affirmative and positive that lants, as collateral security, the note of one they "did not see him on the main line, and Cahoon for the sum of $80, secured by chatnever knew he was there until after the ac- tel mortgage, and that appeilants, without

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