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vexed, and told her she was foolish for be- lates one instance of harsh language used by lieving such, and in discussing the matter or appellant to his wife. By her own admission, trying to reason with her we both became she was not always as considerate of her husangry, and had the worst 'spat' or quarrel we band's feelings as her duty demanded. One ever had. I told her if she was foolish enough of the instances she relates of his unkind to believe such she should have her jaws treatment, when he threatened to throw a slapped. She dared me to slap her, and I mug at her, was provoked by her own incondid. After having realized what I was doing, siderate conduct and remark while appellant I slackened the blow, and it could not have was sick. To our minds, the evidence shows inficted any pain whatever." He denied that that both parties were somewbat at fault, he ever struck her or offered to strike her on and that both, by failure to exercise that any other occasion, or made a practice of "mutual forbearance and mutual forgiveness" calling her a fool. Appellant introduced two which the relation demanded, aggravated, witnesses, who lived near them for several rather than tended to ameliorate, their unmonths before the separation occurred. One happy conjugal state. It may be that the lived in about 50 yards, and the other, one opposition to the marriage shown to have Crenshaw and wife, lived in the house with been manifested by appellee's mother and appellant and appellee. Both of these wit- other near kindred was continued, as claimed nesses testified that they saw no evidence of by appellant, after the marriage, and was rebarsh or unkind treatment on the part of sponsible in some measure for the dissensions appellant. We think that the preponderance which led to the final separation; but at any of the testimony is in favor of appellant, and rate it appears that neither party came up to that appellee has established no grounds for the full conjugal duty to prevent the separadivorce. Even her own testimony and that of tion. Upon the proof introduced, both were her two corroborating witnesses do not clear- at fault, and both should have been denied ly establish the existence of a state of facts relief. upon which a court of equity should interpose The decree for divorce must, therefore, be relief by a dissolution of the bonds of matri-reversed, and the cause dismissed for want of mony.

equity either in the complaint or cross-comIn the case of Kurtz v. Kurtz, 38 Ark. 119, plaint; and it is so ordered. Judge Eakin, speaking for the court, approving the rule laid down in Rose v. Rose, 9 Ark. 507, that the personal indignities con

REESE v. STATE (three cases). templated by the statute as grounds for di

(Supreme Court of Arkansas. June 17, 1905.) vorce included "rudeness, vulgarity, unmer

ARGUMENT OF COUNSEL IMPROPER LANGUAGE ited reproach, haughtiness, contempt, con

-REVERSIBLE ERROR. tumely, studied neglect, intentional incivility,

Where, in prosecutions for unlawfully sellinjury, manifest disdain, abusive language, ing intoxicating liquor, the prosecuting attormalignant ridicule, and every other plain ney, in his closing argument in one case, said,

in effect, that he would not believe any man on manifestation of settled bate, alienation, and

oath who would deliberately violate the law by estrangement,” said: “It must be confessed

running a blind tiger; that, if he would violate that this position goes to the very verge of the law in that respect, he would not hesitate safety, and should be pressed no further. In to swear a lie to get out of it; and in another

of the cases said that "a blind-tiger man will applying it the chancellor should act with

swear a lie any time. This man (defendant) is great caution to avoid the gradual approach, not worthy of belief. Any man that will run a by imperceptible steps, to the practice of hold- blind tiger will swear a lie to beat the law"ing all matrimonial bickerings, by which par

the language, while not commendable, was not

reversible error. ties may render each other unhappy, to be valid ground of divorce. Where there are no Appeals from Circuit Court, Howard Coullfixed and well-defined barriers of principle, it

ty; James S. Steele, Judge. is difficult to limit the encroachment of prec

John F. Reese was convicted of unlawfully edents setting in one direction. Each 80

selling intoxicating liquors, and appeais nearly supports the next that, before one is

(three cases). Judgments affirmed. aware, the bounds of reason are passed.” In

For former report, see 83 9. W. 918. Cate v. Cate, 53 Ark. 484, 14 8. W. 675, Chief Feazel & Bishop, for appellant. Robt. L. Justice Cockrill said that "courts are not Rogers, Atty. Gen., for the State. quick to interfere in domestic quarrels, and, where the parties are equally at fault, it must HILL, C. J. These three cases present but be shown at least that there is something one question, and it is practically the same in that makes cobabitation unsafe, to move the each case. The prosecuting attorney in his courts to interfere.” We think that this closing argument said: “That, in considercourt has gone to the limit in the case of Rose ing the testimony of the defendant, the jury V. Rose, supra, and that it would be extend- should take into consideration his interest ing the rule entirely too far to hold that a in the result; should consider whether his divorce should be granted upon the testimony statement was made in good faith, or merely of appellee, corroborated only by the daugh- | to avoid conviction; that he [the prosecuting ter who was but nine years old at the time of attorney] would not believe any man on oath the occurrences about which she undertakes who would deliberately violate the law by to testify, and by one other witness who re- running a blind tiger; that, if he would vio

2. CONTRACTS-ENTIRE-SEVEPABLE.

A contract for the sale of several articles of merchandise by sample, which fixes the price of each article, and which warrants each article to be in all respects as the sample, is a severable contract, though it contains a guaranty of profits for the buyer on the resale thereof.

Appeal from Circuit Court, Garland Coun. ty; Charles D. Greaves, Special Judge.

Action by Walter Pratt & Co. against S. M. Duffie & Co. From a judgment for plaintiffs, defendants appeal. Affirmed.

Wood & Henderson, for appellants. Leslie & Huff, for appellees.

late the law in that respect, he would not hesitate to swear a lie to get out of it.” His closing argument in another of the cases contained this statement: “A blind-tiger man will swear a lie any time. This man, John F. Reese, is not worthy of belief. Any man that will run a blind tiger will swear a lie to beat the law.” On objection made by the defendant, the court declined to interfere with the argument, and, preserving proper exceptions, the cases are brought here for review.

These statements of the prosecuting attorney are nothing but the expressions of his individual opinion stated in overforcible terms. The statements do not fall within that class of stateinents where the attorney makes a witness of himself in his argument and states facts without the record. Those cases may be found discussed in Ins. Co. v. Harper & Wilson, 70 Ark. 305, 67 S. W. 755; Fort v. State (Ark.) 85 S. W. 236; English v. Anderson, 88 S. W. 583. An attorney undoubtedly has a right, if his taste and judgment calls for it, to express his individual opinion freely in discussing the facts in evi. dence, so long as he couches his remarks in language befitting his high profession and the place of its utterancea temple of justice. In this case the prosecuting attorney was at perfect liberty to express his opinion freely as to all matters in evidence attacking the credibility of the defendant as a witness, provided he framed bis argument in proper language and manner. This addressed itself to him in the first place, to the trial judge in the second place, and, lastly, to this court, not to pass on its propriety, taste, or elegance, but merely to pass on whether the circuit judge abused his discretion in permitting it, and whether it worked a prejudice to the defendant not warranted by the law or facts of the case. Without approving the language used in expressing his opinion of the testimony of the defendant, the court is of opinion that there is no reversible error in it. The court hopes that attorneys, especially those representing the state of Arkansas who act in a quasi judicial rôle, will couch their expressions of opinion in language less intemperate and denunciatory, and that the circuit judges will require it of them. Instances may arise of excesses in this line calling for reversal, but this case is not such an instance.

The judgments are affirmed.

BATTLE, J. This action was instituted by Walter Pratt & Co. against S. M. Duffie & Co. upon the following written contract:

"Walter Pratt & Co. hereby guarantee that the purchaser's gross profit from the sale of the perfumery and toilet preparations bought under this order and hereafter purchased of said firm, will not be less than 33 1-3 per cent of the amount of this order each year for a period of three years from date of invoice, and the said Walter Pratt & Co. further agree and hold themselves bound, at the end of each year if the gross profits do not amount to 33 1-3 per cent of the amount of this order for that year, to pay to the purchaser a susficient sum of money by New York or Chicago draft to make up the deficiency, if there be any, or to buy back at the purchase price at the expiration of this agreement all goods remaining on hand at that time. The foregoing is conditional on the purchaser keeping the goods tastefully displayed in his store in the show case furnished by us for that purpose, purchasing from us at least semi-annually sufficient goods to keep this department complete and up to the amount of this order, making settlement for all goods purchased of us as provided in order, sending us by registered mail at the end of each year a complete and accurate list of all goods sold, with a correct inventory of all goods on hand at that time, allowing no article to go for a less profit than is usually made on this class of goods, and using reasonable diligence in promoting the sale of these goods. Goods shipped to purchaser and not on hand or returned will be considered sold. Bond to be filed with Security Bank covering all agreements in the order.

"Exchange Any goods contained in this order may be returned to us for exchange at any time. To protect us from unreasonable demands for exchange, we require that goods so returned must be accompanied by a new order for goods of an equal value. We pay freight to factory on goods returned for exchange.

"Warranty-All goods are warranted to be same in quality, material and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination, and if said goods fail to comply with said warranty he shall within five days

S. M. DUFFIE & CO. v. WALTER PRATT

& CO. (Supreme Court of Arkansas. June 17, 1905.) 1. SALES — BREACH OF WARRANTY-NOTICEWAIVER.

A buyer in a contract requiring him, in case the goods fail to comply with the seller's warranty, to notify the seller thereof within a specified time, who fails to give notice of a bieach of warranty within the time specitied, waives the warranty, and is bound to pay the purchase price..

1 Atomizer. 1500 Circulars advertising this line of goods. 1500 Circulars describing the pictures going with the

Perpetual Advertising System.
Name and address of purchaser printed on above

circulars. 3 Bottles of perfumery, retail price, 500 each, to

pay for distributing circulars. 1 Graduate. 6 Portfolio, No. 5607, containing 10 sample pictures

belonging to the Advertising System. 100 Booklets, “Suggestions." 8 Sterling Silver Thimbles, assorted sizes. 97 Envelopes containing advertising and drafts good

for one Sterling Silver Thimble each, mailed by Walter Pratt & Co. to a list of 97 names

furnished by the purchaser. 1 Walter Pratt & Co. Regulation Oak Show Case;

wood doors and wood shelves. Size 21 in. wide, 48 in. long, and 40 in. high.

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from date of arrival at destination give detailed written notice of such failure by reg. istered letter to Walter Pratt & Co. Chicago, Ill., otherwise all warranty of said goods is waived. Goods cannot be returned for credit on account, except as herein provided.

"We deliver all goods to purchaser by de livering them to the transportation company herein specified, purchaser to pay all transportation charges.

“The following is the list of goods contained in this order:

Per

Doz. Amt. R't'l. 4 Doz. Handkerchief Extracts, assorted on Easel...

$.75 $ 3.00 $ .10 Handkerchief Extracts, assorted No. 745.

2.00 4.00 .25 3 Handkerchief Extracts, assorted No. 755.............

4.00 12.00 .50 Sachet Powders

.75 3.00 .10 Persian Violet Perfume.... .40 .80 .05 1

Princess Toilet Water, No.
237

4.00

4.00 .50 % Princess Toilet Water, No. 247

4.00 2.00 75 1 Farina Cologne

4.00
4.00

.50 Velvet Talcum Powder..

.75 1.50 .10 1 Roger's Hair Grower....... 6.00 6.00 1 Benzo Hazel Cream.

2.00 2.00 .25 2 Mentholated Cream

4.00 8.00 .50 1

Invisible Toilet Powder
(white)

2.00 2.00 .25 1

Invisible Toilet Powder
(flesh)

2.00 2.00 .25 Pratt's Velvette ...........

6.00 6.00 .75 1 Pratt's Dentifrice

2.00 2.00 .25 1 Pratt's Tooth Powder....... 1.65

1.65

.25 Rosalana

4.25 12.75

.50 Princess Tissue Developer.. 6.25 6.25 Pratt's Toilet Soap..

.75 1.50 .10 Quinine Hair Tonic..

6.00 12.00 .75 Foot Relief

2.00

2.00 .25 1 Invisible Complexion Powder (white)

4.00 4.00 .50 1

Invisible Complexion Pow-
der (flesh)

4.00 4.00 1

Invisible Complexion Pow-
der (Brunette)

4.00 4.00 .50 1 Cherry Lip Pomade.

2.00 2.00 .25 Pratt's Shampoo Powder... 2.00 4.00 42 Bulk Sachet Powder, Violet 3.00 1.50

Rose.. 3.00 1.50
Bulk Sachet Powder, Helio-
trope

3.00 1.50
Crushed Sachet Powder,
Carnation

3.00 1.50
% Crushed Violet Handk't
Extract, No. 923.

4.00 2.00 .50 % Persian Rose Handk'l Extract, No. 933..

4.00 2.00 .50 % Crushed Violet Handk't Extract, No. 346..

6.00 3.00 .76 Persian Rose Handk't Extract, No. 956...

6.00 8.00 .75 1 Pearl Toilet Powder.

.75 .75

.10 1 Bottle Pink Bulk Perfume, White Rose

4.00

4.00 1 Bottle Pink Bulk Perfume, White Lilac

4.00 4.00 1 Bottle Pink Bulk Perfume, Frangipanni

4.00 4.00 1 Bottle Pink Bulk Perfume, Snow Lily

4.00 4.00 1 Bottle Pink Bulk Perfume, Jockey Club

4.00 4.00 1 Bottle Pink Bulk Perfume, Heliotrope

4.00

4.00 1 Bottle Pink Bulk Perfume, Blue Gentian

4.00 4.00 1 Bottle Pink Bulk Perfume, Jasmine

4.00 4.00 1 Bottle Pink Bulk Perfume, Red Carnation

4.00 4.00 1 Bottle Pink Bulk Perfume, Crab Apple Blossom

4.00 4.00 1 Bottle Pink Bulk Perfume, Swiss Violet

4.00 4.00 1 Bottle Pink Bulk Perfume, Wild Thorn Blossom

4.00 4.00 1 Bottle Pink Bulk Perfume, Crushed Violets

6.00 6.00 1 Bottle Pink Bulk Perfume, Persian Rose

6.00 6.00

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"Terms:-5 per cent 15 days from date of invoice, or two, four and six and eight months net, divided into four equal payments, each for one fourth of the amount of this order. When long terms of credit are taken account must be closed by notes without interest, due in two, four, six and eight months from date of invoice. 'Accounts not closed as provided above, will be subject to sight draft without further notice. Separate verbal or written agreements with salesmen are not binding upon Walter Pratt & Co. All conditions of sale must be shown on this order.

"Positively no goods on commission or open account. This order not subject to countermand.

"Hot Springs, Ark. Feb. 27, 1902. "Walter Pratt & Co., Chicago, Ill.-Gentlemen: Please ship us, care of Burlington, Cedar Rapids & Northern R’y. the assortment of goods listed above, like samples shown us by your salesman, at the prices specified and in accordance with all the terms above specified, which we have carefully read and find to be complete and satisfactory. We have no agreement or understanding with salesman except as printed or written on this order. Receipt of duplicates of this order from your salesman is hereby acknowledged. “Name of purchaser S. M. Duffie & Co.

“Walter Pratt & Co.,

"By M. Sankey, Salesman." In making the foregoing contract, plaintiffs were represented by a traveling salesman, who sold the goods referred to in the contract to the defendants by samples exhibited to them at the time the order was made. The goods were shipped, and were received by the defendants on the 9th of March, 1902. Ou the 17th of the same month they notified the plaintiffs of the receipt. Defendants tested the White Lilac perfume, which was sold to them at the price of $4, and, on a day subsequent to the 17th of March, 1902, refused to accept the goods, because the lilac perfume did not correspond to the sample by which it was sold to them. They did not test any of the remainder of the goods by the samples by which the same were sold,

According to the terms of the contract, the defendants waived the warranty and accepted the goods, and thereby became bound to

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pay for them, having failed to give notice of contracts entered into at one time, and erthe failure of the goods to comply with the pressed in the same instrument, but not warranty within five days after they (de- thereby made one contract. No precise rule fendants) received them. Pratt v. Meyer can be given by which this question in a (MS. opinion) 87 S. W. 123.

given case may be settled. Like most other But the defendants asked the court to in- questions of construction, it depends upon struct the jury as follows:

the intention of the parties, and this must be "(4) The contract between plaintiffs and discovered in each case by considering the defendants is an entire contract, and defend- language employed and the subject-matter ants were not required to accept any of said of the contract. If the part to be performed goods if any material part of the goods ship- by one party consists of several distinct and ped under said contract were different and separate items, and the price to be paid by inferior in quality from the goods ordered." the other is apportioned to each item to be

The court refused to instruct the jury as performed, or is left to be implied by law, asked, but instructed them as follows:

such a contract will generally be held to be "The contract shows that several articles

severable.” 2 Parsons on Contracts (9th of goods were included in one and the same Ed.) bottoin p. 672. Judged by this citation, order, and that a price was fixed in said con- the contract in this case is several. The tract for each separate article. I therefore lists of goods embraced in the order sued upinstruct you that said contract is not an en- on consist of 50 items, with the price for tire but a severable contract, and, if any

which each sold placed opposite the same, of said articles correspond with the samples, amounting in the aggregate to $194.20. The then defendants were bound to accept each of | price of no single item exceeds $12.75. Each said articles as corresponded with samples, item was sold by a sample, and was warand are liable to plaintiffs for the value ranted to be the same in quality, material, thereof, as the same are fixed in said con- and in all other respects as sample; the contract.

tract as to each article, in that respect, being "If you find from the evidence that the de- different; and the purchaser was furnished fendants, within a reasonable time after the with a sample to enable him to determine receipt of the goods mentioned in said con- whether the goods shipped were such as he tract, examined a bottle of lilac mentioned agreed to buy. The acceptance of each dein said contract as bulk perfume, and upon pended upon a distinct test, and the price to such examination it was found that said bot- be paid for each was stipulated. According tle of lilac did not correspond with the sam- to the general rule in such cases, the conple, then defendants had the right to refuse tract is several. Lucesco Oil Co. v. Brewer, to accept said bottle of lilac.

66 Pa. 351; Wooten v. Walters, 110 N. C. "If defendants did not examine any of

251, 256, 14 S. E. 734, 736; Beach on Modern said goods except a bottle of lilac, then they

Law of Contracts, $ 731; Clark on Contracts are bound to have accepted all of said goods

(2d Ed.) p. 453. which they did not examine, and are liable to

The guaranty of profits set out in the paplaintiffs for the value thereof, as the same

per sued on does not affect the severalty of are fixed in said contract.

the contract of sale. It applied to all the "If you find from the evidence that the

goods purchased in the same year, and was bottle of lilac mentioned in said contract as

to continue for three years. The sale was bulk perfume did not correspond with the

in no way dependent on it. sample, then you will find that that is evi- Appellants have no right to complain of dence tending to show that all the bulk per

the judgment against them. fume mentioned in said contract did not cor

Affirmed. respond with the samples; and if you find that the bulk perfume mentioned in said contract did not correspond with the samples,

DANIELS V. STATE. then defendants had the right to refuse to accept said bulk perfume, and, if they did

(Supreme Court of Arkansas. June 17, 1905.) refuse to accept the same, they are not liable

1. MURDER-INDICTMENT-SUFFICIENCY. to plaintiff therefor."

Where an indictment for murder alleged

that defendant unlawfully, feloniously, and The jury returned a verdict for plaintiffs with malice aforethought, and after deliberation in the sum of $134.20. They evidently de- and premeditation, did kill and murder deceased, ducted from the amount of the order $60,

etc., it was not objectionable because the word

"willingly" was used in the indictment instead the aggregate price for which the "bulk per

of "willfully." fumes" sold. The defendants appealed.

2. SAME-CHALLENGE OF JUROR APPEALAssuming that the question as to the na- PRESUMPTION. ture of the contract was properly raised in

Where, on an appeal from a conviction for the trial court, was the contract sued on en

murder, the record showed that a certain juror

was duly accepted by the state and the defendtire or severable?

ant, and that the state was permitted by perMr. Parsons, in his work on the Law of emptory challenge to excuse this juror after he Contracts, says: "Any contract may consist

had been accepted, it was presumable, in sup

port of the regularity of the proceedings, that of many parts, and these may be considered

the challenge was exercised before the juror as parts of one whole, or as so many distinct was sworn in chief.

3, SAME-EVIDENCE-SUFFICIENCY.

was guilty, at least, of murder in the secEvidence held to support a conviction for

ond degree, and the jury gave him the lowest murder in the second degree.

punishment for that offense. Therefore no Appeal from Circuit Court, Sevier County; error in the introduction of the evidence James S. Steele, Judge.

complained of, the argument of counsel, or Harry Daniels was convicted of murder, the instructions of the court could be prejuand he appeals. Affirmed.

dicial to the rights of appellant. His own

evidence shows that he was an engineer on Brizzolara & Fitzhugh, W. H. Collins, and Pole McPhetridge, for appellant. Robert L.

the Kansas City Southern Railroad, and on Rogers, for appellee.

the night of August 18, 1904, he returned from a trip on the road to his home at Mena,

Ark. He arrived at his home about 1:25 a. WOOD, J. At the September term, 1904,

m., and found the deceased, Dr. Magness, in of the Polk circuit court, the grand jury returned an indictment against appellant char

his house, under circumstances which indiging him with murder in the first degree, and,

cated clearly that he was committing adulhaving been granted a change of venue to

tery with his wife. The appellant chased the Sevier circuit court, he was at the Janu

the doctor, who was partially disrobed, from ary term thereof tried upon the plea of not

his house, failing, however, to catch him. guilty, convicted of murder in the second de

The doctor left behind in the house of appelgree, and his punishment assessed at five

lant a shirt, collar, cuffs, necktie, and hat, years in the penitentiary. His motion for a

which afforded undisputable evidence of his new trial having been overruled, he appealed identification. Besides, the unfaithful wife, to this court, alleging numerous grounds for

when called upon by appellant for an exreversal of the judgment.

planation, frankly confessed to appellant that The indictment was sufficient. The word

Dr. Magness was the author of her ruin, and "willingly" in the indictment, instead of

told her husband that Dr. Magness had first “willfully,” which latter word was doubtless accomplished his purpose by administering intended, does not render the indictment in

to her on one occasion a narcotic when she sufficient. The uto st that can be claimed

had called him in on a professional visit. is that the word "willfully" was omitted.

Dr. Magness was the family physician and But the indictment, with the word "willfully"

intimate friend of appellant. The appellant omitted, still charges that the defendant proceeds to tell how the betrayal of con"unlawfully, feloniously, and of his malice

fidence by his family physician and friend, aforethought, and after deliberation and pre

and the disclosure of his wife's infidelity, so meditation, did kill and murder," etc. These

preyed upon his mind that he could neither words include all the meaning that could be

eat nor sleep. He shows that during the reconveyed by the word "willfully."

mainder of the night of the awful discovery The record shows that “T. B. Holman, who

he could not sleep. In fact, he says he neiwas a juror and a member of the regular ther ate nor slept from the time he came panel of the jury, during the impaneling of

home and caught the doctor in his house the jury in this action, was duly accepted as

until he had killed him. He says his wife a juror herein by the state and the defend.

had told him that Dr. Magness had said that, ant, and the state was permitted by the

if he (appellant) ever came home and found court, over the objection and exception of bim (Magness) in their house, he, Magness, the defendant, to excuse said T. B. Holman would kill him, appellant. “Knowing,” he by peremptory challenge, without stating or says, "that he had just threatened my life, showing any cause therefor, after the said and finding this murderous thing (pistol] in Holman had been accepted by the state and my house, I saw nothing but to go prepared, the defendant as a juror as aforesaid.” This as I firmly believed that man would kill me. record does not show that the state was per- That is the reason I took the pistol and went mitted to exercise this peremptory challenge

to the hardware store and bought the car“after the jury had been made up,” as stated tridges." He further portrays his feelings by counsel for appellant. As every presump

and subsequent conduct as follows: "I could tion, in the absence of a showing to the con- get no satisfaction from life, knowing that trary, must be indulged in favor of the regu- that man had robbed my home and taken larity of the proceedings, we must presume

from me everything that I had. I sought in that the state exercised this peremptory some manner redress for the harm and dischallenge before the juror was sworn in chief, grace that he brought upon me. I knew that as prescribed by section 2357, Kirby's Dig. he would kill me on sight. I looked for him These are the only grounds for a new trial on the street the next day, but failed to find which the verdict could not cure, and these him. I was on the streets most of the day, are not well taken. All the others relate to but I did not see him anywhere, and felt alleged errors of the court during the prog- sure that he was hiding from me. That night ress of the trial which do not affect the integ- I could not sleep, and the next morning I rity of the trial itself, and which, however went downtown, and as I passed the drug egregious, the verdict of the jury upon the store I saw his horse and buggy hitched uncontradicted evidence bas cured.

there in front, but did not see him. I went The undisputed facts show that appellant into the drug store; passed the last opening

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