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within the rule that when persons conspire to cheat a man under color of a bet, and he simply deposits with one of them money as a stake, not intending thereby to part with his ownership thereof, by taking the money such persons commit larceny, though afterwards they are by fraud made to appear to win. 2. SAME-INSTRUCTIONS.

An instruction that if prosecutor bet bis money to win or lose, and intending to part with its title and possession, even though pursuant to a conspiracy inducing him to do so by false representations, the taking of it would not be larceny, fully protected defendant's rights. 3. SAME.

A further instruction to the effect that if the crime was consummated under the law as laid down in such instructions, before an arrangement whereby prosecutor consented to the stakeholder's keeping the money until the race was run over, the consent would not change it; but if such consent was procured before the consummation, if it was a matter of false inducement up to that point, then the consent would prevent it being larceny-was all defendant was entitled to on that point. 4. SAME-EVIDENCE-SIMILAR CRIMES.

Evidence of similar acts by defendant and his co-conspirators was admissible to show criminal intent. 5. SAME-SUBSEQUENT CONDUCT.

Evidence of a similar race, run after the one involved, was admissible, for, since admis. sible alone as reflecting light on the intent, it is immaterial what part of the series the one in question happened to be.

On Rehearing. 6. APPEAL-OBJECTIONS CONSIDERATION OF DISCARDED EVIDENCE.

Where, on defendant's objection to certain evidence, the jury are instructed that it is incompetent, it will not be considered on appeal. 7. SAME-REPUTATION-REBUTTAL-ERROR.

Where, in a prosecution for larceny, prose cutor was permitted, in response to questions by the state, to state that he had never killed a man at a certain place, as testified to by a witness, nor had he robbed his sister, and the record merely showed the introduction by defendant of depositions to the effect that prosecutor's reputation for truth and morality was bad, it not appearing whether defendant or the state brought out these specific charges, or the connection in which they were made, error in permitting the evidence in rebuttal would not be presumed. 8. SAME-PRESUMPTIONS-SHOWING OF ERROB REQUIRED.

All presumptions are in favor of the trial court's rulings, and, to call for reversal, an a sfirmative showing of error is required, not a mere showing that under some circumstances there might have been error.

Appeal from Circuit Court, Saline County; Alexander M. Duffie, Judge.

I. E. Johnson was convicted of larceny, and appeals. Affirmed.

Wood & Henderson, for appellant. Robert L. Rogers, Atty. Gen., for the State.

the country. Their scheme was to have a foot race between two well-advertised run

One of them was to be the favorite runner of a club of millionaires who were given to sports of all kinds. The other was comparatively unknown, but very swift, and known to the club racer to be swifter than him. The club racer and the club manager, privately learning the situation and the impending fate of the club favorite, were anxious to make money out of such race, and would approach some one who had ready cash and good credit at home, who would be willing to aid them, and incidentally himself, in making money out of the "sure thing." In this light it was presented to the intended victim. The party inveigled was not to bet his own money. He was merely to back the runner against the club runner with money furnished by the schemers, and bet the money the schemers furnished him. He was expected to have plenty of money in sight, and good references as to his credit at home to satisfy the millionaires that he was in their class. In varying details these plans were worked at Webb City, Mo., Salt Lake City, Utah, Aurora, Mo., and Hot Springs, Ark. In some cases it was known to the inveigled party that the club runner was going to lose the race, irrespective of speed; and in others he rested on his certain information that his man was the fastest. The inveigled party was always induced in some way to put up his own money, with an understanding that it was to be returned, and not really bet. Probably this was not difficult in the closing hours before the race, when the stakes were high and the excitement growing, and his belief that the result was a “sure thing." The "sure winner" had an unfortunate way of falling, while well in the lead, and the club runner would first reach the goal. To appease the disappointed and chagrined victim, and seemingly his friends who bet on the loser, an opportunity would be given to run the race over, giving the fallen runner's friends time to go home and repair their fortunes and increase the purse, which was to be held intact until the race was run over. In this case Johnson decoyed one Doucette, a lumberman from Texas, into the scheme for a race at Hot Springs. Doucette had formerly been proprietor of four or five saloons in different Texas towns, and over each of his saloons had been run a public gambling ball; not in connection with the saloon, he says, but incidentally located there. Notwithstanding Doucette's intimacy with gamblers, he was unsophisticated in the hands of the “Buckfoot Gang.” It was represented to him that Eddie Morris was swifter than Harry Pricethe latter the runner of the millionaire's club; that Harry knew it; and that a race could be arranged, and all that was needed was a man of his credit and cash to follow directions. He was assured by both Morris and Price, before he left Texas, that Morris was the

HILL, C. J. The appellant was indicted by the grand jury of Garland county for the crime of larceny, and on change of venue was convicted in Saline county, and sentenced to four years in the penitentiary, and has appealed.

About 1902 a party of men, known by various names, among others, the “Buckfoot Gang," were operating in various parts of

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fastest. He arranged his affairs, and came runner, while nobly leading, fell. He says to Hot Springs with $8,300, ready to impress that he denounced the scheme, and demanded the millionaires, and extolled the swiftness his money, but was laughed at, and the attiof the runner, who came, he said, from his tude of one of the party with a pistol, as he lumber camps. The arrangements were car- thought, convinced him that his wisest ried out. He met the millionaire clubmen, course was to say no more about it then. whose castles were evidently in Spain, and The appellant's witnesses say that he agreed they put up $2,500 as forfeit for Price, and to let the money stay with the stakeholder he, with money furnished, put up the like until he and Johnson went home to raise amount for Morris. The stakes were to be more money to add to the purse and have the $5,000 on a side, making the purse $10,000, race run over again within 30 days. The which was finally arranged substantially as state introduced witnesses who attended simagreed. He was furnished with large suns ilar performances at Webb City, Mo., Salt to bet by Price and one Thompson, the man- Lake City, Utah, and Aurora, Mo., and who ager of the club, and, what was more im- were the several victims of those races. The portant in this transaction, the stakeholder. same general plan and scheme was worked These sums were equally divided between as in this one, and some of the participants, appellant and Doucette, and they laid the while varying at the different races, were the

same of dollars were bet in this way. Doucette pellant always present and participating. bet $100 of his own, and the stakeholder The schemers appeared in different rôles in privately returned it to him, and gave color the cast, and frequent changes of names octo the theory that the bets on his side were curred, probably to fit the new role. The feigned for the purpose of inducing the mil- last race in evidence was at Aurora, Mo., the lionaires to put up their money. In the last week following the one at Hot Springs. This hour of the betting Doucette parted with his seems to have been the “run oft” of the Utah $8,300. The witnesses for appellant claim he race, for Mr. Cobb's benefit; Mr. Cobb being bet to win or lose, but he gives a different the Doucette of that transaction. Three version of it. The material parts of his testi- questions arise: mony here given are taken from appellant's 1. Does the state's evidence prove larceny? abstract: “Johnson and I then went to the One of this party has been introduced to bank and drew $8,000 in one package. this court before, and he obtained a reversal

I put my money in my pocket, and of a conviction of larceny, and the law conJohnson and I started back to the clubroom, trolling such cases was then announced, and and I said to Johnson, 'I don't believe I will this laid down as the rule: “When persons go any further with this,' and he said 'every- conspire to cheat a man under color of a thing is all right, come on; and so went on to bet, and he simply deposits as a stake with the clubroom, and they wanted to bet right one of them, not meaning thereby to part away. I went into the back room and Eddie with the ownership therein, they, by taking Morris and Johnson followed me, and Eddie the money, commit larceny, and not the less Morris opened his coat, and said, "There so though afterwards they are by fraud is your money. You bet that money you got made to appear to win”-citing authority. out of the bank so as to show these people Hindman v. State, 72 Ark. 516, 81 S. W. 838. it is good money, got out of the bank in The court carefully limited a conviction upblocks, and you will get your money back.' on finding the facts within this rule. DouSo I went in and bet the $8,000. Mr. Johnson cette's testimony, if true, brings the case had a very fine diamond stud, and he bet within the rule and the instructions. The that. I also bet two $100 bills that I still appellant's witnesses claimed Doucette bet had. By that time the hacks were ready to his money on the result of the race, and the start to the race.” He says further: “I did court instructed that, if Doucette bet his not understand that I was to put up my money to win or lose, even though pursuant $8,000, because Eddie Morris said he would to a conspiracy inducing him to do so by give it back; that he had it in his coat pocket, false representations, yet that would not be and wanted me to bet my money because it larceny, and they must acquit. The jury was new money that came out of the bank were fully instructed that, no matter how in blocks, and the money he had in his pocket fraudulent or dishonest the inducements may was supposed to be the referee's money. It have been, yet if Doucette bet his money was not my intention to put up my own intending to part with its title and possesmoney. I supposed I was to get about 25 sion, the taking of it so fraudulently acquired per cent of the winnings to pay me for my would not constitute larceny. The appeltrip." Again, be says, after reiterating the lant's rights were fully protected in these substance of the above: I considered that instructions. the money he had was mine, and I was bet- 2. It is insisted that Doucette consented ting his money. I never intended that any of after the race to the stakeholder keeping the my money should be staked on the race. I money awaiting the race to be run over. did not intend to part with my money." The court instructed the jury that, unless Doucette found "that the race is not to the they found defendant guilty under other inswift, nor the battle to the strong," for his structions, such arrangement would prevent

the taking of the money being larceny. In other words, if the crime was consummated under the law as above explained before such arrangement, then the consent would not change it; but if such consent was procured before the consummation of the crime, if it was a matter of false inducement up to that point, then the consent would prevent it being larceny. This is all that appellant could ask on this score, and that question has gone to the jury on conflicting evidence, and is at rest.

3. Was the evidence of similar acts by these conspirators admissible? The general rule, of course, is that one crime cannot be proved as tending to prove another; but when the question of intention in the performance of acts becomes material, then similar acts which tend to show whether an innocent or criminal intent is present becomes admissible. This is frequent in cases of uttering forged instruments, passing counterfeit coins, receiving stolen property, and is applied in larceny as well as other crimes. 1 Wigmore on Evidence, g 346. The question was recently considered in this court, and this rule announced: “When there is a question as to whether or not the crime charged was by accident or mistake, or intentional and with bad motive, the fact that such act was one of a series of similar acts committed by the defendant is admissible, because it tends to prove system and show design." Howard v. State, 72 Ark. 586, 82 S. W. 201. This case illustrates the wisdom of rule.

One of these races was run just after the one now before the court, and objection is made to it also on the ground that it was of subsequent conduct. This class of evidence is admissible alone as reflecting light on the intent, and it matters not what part of the series the one in question happens to be. The authorities seem uniform that when the system is admitted part of the occurrences may be subsequent to the one charged. 1 Wigmore on Evi. 88 346, 316; Wharton's Crim. Ev. $ 35.

The court is of opinion that every right of the appellant has been carefully guarded, and that he has had a fair and impartial trial.

Judgment affirmed.

whom Johnson had brought to another foot race. This is the objectionable testimony, but counsel overlook the fact that on their objection to it the court instructed the jury that it was incompetent.

2. The next point is that the state was permitted in rebuttal to call Doucette and elicit the following testimony: “Q. One of the witnesses, in testifying about your reputation, has testified about your killing a man. Did you ever kill anybody down there? Ans. No, sir." A similar question and answer about robbing a sister was permitted. Appellant asserts this testimony is contrary to the rule in Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. The record does not show the testimony of these impeaching witnesses. It merely shows that the defendant introduced depositions of witnesses to the effect that the reputation of Doucette (also of Cobb) for truth and morality was bad. There is nothing to show whether the defendant or the state brought out these specific charges, or the connection in which they were made. If the defendant had brought out these charges clearly, he could not complain that they were rebutted, and this might have been elicited by the state under circumstances rendering rebuttal proper, or the state might have been precluded from rebutting its own testimony. In the state of the record the court cannot presume error. On the contrary, all presumptions are in favor of the court's ruling, and it requires an affirmative showing of error to call for reversal, not a mere showing that under some circumstances this might have been er

ror.

The motion for rehearing is denied.

On Rehearing. The appellant files a motion for rehearing, and again calls attention to two alleged errors assigned in his original brief which were not mentioned in the opinion of the court.

1. Just before Doucette put up his money, Johnson bet his diamonds, and this was brought out in evidence. While Harry Price was on the stand, the prosecuting attorney in cross-examining him asked him where Johnson got the diamonds. He proved by him that Johnson bought the diamond ring from Ryan, and Ryan bought it from Boatright (two other members of the “Buckfoot Gang”), and that it had been won from one Willard,

ST. LOUIS, I. M. & S. RY. CO. V. HITT

et al. (Supreme Court of Arkansas. July 1, 1905.) 1. RAILROADS — NEGLIGENCE – COLLISION AT CROSSING-EVIDENCE.

In an action against a railroad for wrong. ful death, through negligently running a train into the vehicle decedent was driving over a crossing, evidence heid not to show that, as a matter of law, it was negligence per se for decedent to attempt to cross the track. 2. SAME-CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY.

Where, in an action for injuries through negligence, fair-minded men may draw from the facts different conclusions as to whether the care exercised by the injured party was proportioned to the danger, and such as the situation called for from men of prudence and caution, the question of contributory negligence is for the jury.

[Ed. Note.--For cases in point, see vol. 37, Cent. Dig. Negligence, &$ 296, 299.] 3. SAME--INSTRUCTIONS-ERROR.

In an action against a railroad for wrongful death, through negligently running a train into the vehicle decedent was driving over a crossing, an instruction, if the deceased or his son stopped, looked, and listened before driving upon the track, and by reason of the obstructions on the side track-the arc light main

tained by the town and the headlight of the with sleet and ice. When they reached the freight engine could not see the headlight of crossing, they found it blocked by a freight the passenger train in time to have avoided the injury, and no signals were given, and the

train on the side track, 1,200 feet long, standdeceased and his son took such precautions as

ing a few feet from the main line. A brakewould have enabled them to have seen or heard man was standing at the crossing, and they the train if such signals had been given, to

asked him when they could cross. The crossfind for the plaintiff on the issue of contributory negligence, was not erroneous, as singling ing remained blocked about 10 minutes, when out certain parts of the evidence in favor of the freight train "cut the crossing." Then plaintiff.

they discussed whether it was safe to cross. 4. SAME-OPINION ON WEIGHT OF EVIDENCE.

Luther E. Hitt got up and looked up and An instruction that if the death of de ceased was caused by the negligence of the de

down the track; extending his head beyond fendant company, a recovery cannot be defeat- the wagon cover, thereby enabling him to see ed on the ground of contributory negligence, both ways. His father called his attention unless it appears from the evidence that the deceased failed in the exercise of ordinary pru

to some cars on the track, and after discussdence, and such failure so contributed to the

ing it they concluded it was safe to cross. injury that it would not have otherwise occur- In driving across they continued to look forred, and that contributory negligence will not ward, but did not extend their heads beyond be presumed, but must be proven, was not er

the covering to see on either side. The town roneous, as an expression of the court's opinion on the weight of the evidence.

maintained an arc light almost immediately 6. SAME.

over the crossing, and the headlight of the In an action against a railroad for death freight engine was burning, shedding its at a crossing at which a freight train was

rays over the crossing. There were cars on standing on a track parallel to the main track, on which was the approaching train, so that

both sides of the crossing. The train which decedent's mules were on the main track be- struck them came from the southwest, and fore the wagon could have cleared the freight was about an hour late. Looking from train, the refusal of an instruction making it the duty of decedent, after passing the freight

where they were standing, in the middle of train, to look and listen before attempting to

Elm street, the view was obstructed by cars cross the main track, was not error.

on the spur track; a freight train was stand6. WRONGFUL DEATH-EXPECTANCY OF LIFE ing on the passing track; and down the rail-ANNUITY-MORTALITY TABLES-ADMISSI

road were two large warehouses and a coalBILITY. In an action for wrongful death, testimony

house, which completely cut off their view of a life insurance agent as to the expectancy

from the direction which the train came. of life, as shown by the mortality tables, of a The passenger engine was lighted with an man of decedent's age, and an estimate of the

electric headlight, whose beams could be amount required to purchase an annuity equal to his income, was admissible.

seen a half a mile; but the reflection of this [Ed. Note.-For cases in point, see vol. 15,

may not have been seen on the crossing in Cent. Dig. Death, 8 86.]

front of them, on account of the light thrown 7. SAME--ExcESSIVE VERDICT.

by the arc light and the headlight of the enIn an action against a railroad for wrong- gine. Luther Hitt testifies he did not detect ful death, a verdict for $10,000, which was less by $1,054 than the sum representing the pres

it, although looking ahead. The sleet and ent value of decedent's income, was not ex

ice on the ground deadened the sound of the cessive, where, though his personal expenses, to train, until, as the witnesses stated, it was be deducted, were probably more than such dif- running rather soft, and did not make as ference, the loss of his care and attention to his minor children was another element proper

much noise as usual. The train ran in past the to enter into the verdict.

crossing at a speed of from 18 to 20 miles (Ed. Note. For cases in point, see vol. 15, an hour, and without ringing the bell or Cent. Dig. Death, 88 125–130.]

sounding the whistle, struck the wagon in Battle and Riddick, JJ., dissenting.

which the Hitts were sitting, killed the fa

ther, and injured the son. The point at Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.

which they stopped and looked out from un

der the wagon sheet was 82 feet from the Action by Robert W. Hitt and others

track where they were struck. The center against the St. Louis, Iron Mountain & South

of the side track was 14 feet and 6 inches ern Railway Company. Judgment for plain

from the center of the main track, and the tiffs, and defendant appeals. Affirmed.

spur track was still between the wagon and These facts are deducible from the evi- the side track. They started to drive across dence most favorable to sustain the verdict: slowly. The brakeman at the pilot of the On Sunday night, in January, 1902, the Hitts freight engine was standing on the ground, drove from their home, near the central part and they passed in front of him, not more of Nevada county, into Prescott, a town of tban 25 feet away. No watchman was kept more than 3,000 inhabitants. They were in at the crossing. The brakeman made no a covered wagon, and arrived at the crossing effort to stop the wagon, and he knew the at Elm street after dark. The covering ex- passenger train was coming. tended two feet over them, and on either Among other instructions given were the side, leaving only the view in front unob- third and fourth, which are as follows: structed. This crossing was in the center "(3) You are further instructed that if of the town. It was a cold, windy day, and you find from the evidence that the deceased had been sleeting. The ground was covered or his son stopped, looked, and listened be fore driving upon the track, and further be- give the signals required by law was abundlieve that by reason of the obstructions on antly established, and the conflict in the evithe side track—the arc light maintained by dence on this point has been settled by the the town and the headlight of the freight en- jury. The next question, and the one most gine, if you believe these lights were burn- earnestly presented here, is that the evidence ing—could not see the headlight of the pas- showed that Hitt was guilty of contributory senger train, or the reflection thereof, in time negligence in driving on the track under the to have avoided the injury, and that no sig- circumstances set out in the statement. Mr. nals were given as defined in these in- Justice Brewer, speaking for the Supreme structions, and tbat the deceased and his Court of the United States, said: “It is well son took such precautions as would have en- settled that, where there is uncertainty as to abled them to have seen or heard the train if the existence of either negligence or contribusuch signals had been given, you may find for tory negligence, the question is not one of the plaintiff as to the issue of contributory law, but of fact, and to be settled by a jury ; negligence.

and this whether the uncertainty arises from “(4) If you believe from the evidence that a conflict in the testimony, or because, the the death of the deceased was caused by the facts being undisputed, fair-minded men will negligence of the defendant company, a re- honestly draw different conclusions from covery cannot be defeated on the ground of them. (Citing authorities.)” Ry. v. Powers, contributory negligence unless it appears 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642. from the evidence that the deceased himself The authorities sustaining this doctrine are failed in the exercise of ordinary prudence, collected in Ry. v. Martin, 61 Ark. 549, 33 S. and that such failure so contributed to the W. 1070. Testing the evidence upon this injury that it would not have occurred if he principle, it cannot be said that the facts dishad been without fault. Contributory negli- close a situation rendering it negligence for gence will not be presumed, but must be Hitt to drive onto the track. At a distance proven by a preponderance of the evidence.” of 82 feet from the track he took the precau.

The court refused to give the sixth instruc- tions required by law and common sense, iion requested by appellant, which is as fol- and, neither seeing nor hearing anything to lows:

indicate a train was coming on the main “(6) The court instructs the jury that if track, and the way being made clear, and emthey find from the testimony in this case that ployés standing near, with better opportunity at the time in question a freight train was of seeing or hearing than he had, who would standing on a track parallel to the track on doubtless warn him, for humanity's sake which the approaching train was, and that alone, if no duty rested on them, not to cross such freight train was between plaintiffs, on in front of a rapidly approaching train, and the highway, and the approaching train, so after consulting with his son, the fatal drive that the approaching train could not be seen began. While it is true the sheet of the or heard readily, then the plaintiffs had no wagon obstructed the vision on either side, right to drive on the track without taking and in a measure the hearing, yet they beprecautions after they passed beyond the lieved from their investigation the way was freight train, where they could see and hear clear, and they continued to look ahead and the approaching train, and there looking and listen. The electric arc light and the headlistening before attempting to cross the track light of the freight engine, casting their rays in front of the approaching train; and if they on the crossing, might well tend to prevent failed to do this, and in consequence of the discovery of the light from the headlight such failure were injured, your verdict should of the approaching train. The situation conbe for the defendant."

fronting Mr. Hitt was not such as requires The appellees received a judgment for $10,- the court to say, as a matter of law, that it 000. Hitt was 56 years of age; was making was per se negligence, under the circum$1,000 per annum, derived from farming, stances, to attempt to cross the track. The trading, and the mercantile business. He ringing bell or sounding whistle would doubtleft a wife and nine children, of whom six less have given the warning of the approachwere minors at the time of his death-the ing train, which was not otherwise apparent youngest about five years old. He was a to Mr. Hitt or his son. These are facts from stout, healthy man, and shrewd in business which fair-minded men may draw different affairs. A witness was asked, “What was conclusions as to whether the care exercised his character, with reference to attention to was proportional to the danger to be avoidand care of his family?" and answered, “It ed, and such as the situation called for, from was very good." Again he was asked: “You

men of prudence and caution. When such say he was a man who took good care of his are the facts of

case, then the question family? A. Yes, sir; as good as any man, must be settled by a jury, under proper inI should think."

structions. J. E. Williams and B. S. Johnson, for ap

2. The next matter assigned as error is the pellant. McRae & Tompkins, for appellees.

giving of the third and fourth instructions,

which are set out in the statement of facts. HILL, C. J. (after stating the facts). 1. The point urged against these instructions is The negligence of the company in failing to that they displayed to the jury an expression

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