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In People v. Sullivan, 7 N. Y. 396, Horri- upon the condition of the defendant's mind. gan & Thompson's Criminal Defenses, pp. It follows, therefore, that the court's charge 69, 70, we find this language: "The court complained of was not error. was further requested to charge the jury Other matters complained of by appellant that if they believed the prisoner, in the heat we do not deem necessary to review. There of passion, caused the death of the deceased, being no error in the record, the judgment it is not murder. This was properly re- is affirmed. fused. The designed killing of another without provocation, and not in sudden combat,

HENDERSON, J. I believe the charge on is certainly none the less murder because the

cooling time announces a correct proposition, perpetrator of the crime is in a state of pas

and that the case should not be reversed on sion. The court was also requested to

that account, and I agree to the conclusion charge that if the jury believed that Smith,

reached having had the fight with Sullivan, and by

DAVIDSON, P.J. I dissent and will write his conduct and blows aroused and excited

my views. the passions of the prisoner, and then re

On Rehearing. turned, thereby keeping up the excited passions of the prisoner, and under such excite

HENDERSON, J. Appellant insists on sepment the prisoner stabbed the deceased, it is eral grounds for rehearing, but, in the view not murder. This request was erroneous,

we take of it, it is only necessary to conand was properly rejected. Where, after

sider two. In our opinion, the charge of the mutual combat, a question arises whether court was correct on the doctrine of cooling there has been time for excited passions to time, as heretofore announced. subside, the question always takes this form

While appellant reserved an exception to -whether there had been sufficient time to the action of the court giving the state's spe. cool, and not whether, in point of fact, the cial requested instruction, yet, in the argudefendant did remain in a state of anger.

ment in submitting the case, he failed to call The request presented simply the question attention to the same; and, while it was whether the defendant continued in anger

referred to, it was not thoroughly discussed, up to the time of killing.” Bishop, in his in the original opinion. In his motion for New Criminal Law, $ 711, subd. 2: “If the rehearing he bas presented his assignment of passion had time to cool, the offense is not error to this charge with much earnestness reduced to the lower degree, though in fact

and force. The exceptions pointed out by it had not cooled. For 'when anger, provok- him to the charge are special, and it does not ed by a cause sufficient to mitigate an instan. occur to us that the first two exceptions taktaneous homicide, has been continued beyond en point out any error in the action of the the time which, in view of all the circum- court. However, the third and last exception stances of the case, may be deemed reason

reads as follows: “Said charge in effect able, the evidence is found of that depraved negatives the defendant's right to resist an spirit in which malice resides. Section 712. attack which imperiled his life, or inspired We have no rule for determining how much him with the reasonable belief of suffering time is necessary for cooling. In the nature serious bodily injury at the hands of the of things, it must depend much on what is deceased, if he provoked or renewed the difspecial to the particular case. Commonly ficulty, no matter what his purpose may have the time in which an ordinary man under been in so doing. The court, after instructlike circumstances would cool is deemed rea- ing the jury, in general terms, if they besonable. 'If two men fall out in the morn- lieved that deceased seized property defending, and meet and fight in the afternoon, and ant believed was his, and refused to give up one of them is slain, that is murder, for the same, and they had a difficulty on that there was time to allay the heat, and their account, and that they afterwards separated, after meeting is of malice.' An hour seems and that thereafter defendant followed de. to have been thought sufficient. Three hours ceased up the road, not for the purpose of have been. Where a witness testified that renewing the difficulty, but with the honest the prisoner was 'absent no time,' though intention to demand of deceased a return of there was a pause in the fight, there it was the money which he believed deceased had adjudged not to have been a cooling.” Sec- wrongfully taken from him, and that de tion 713. "Ordinarily the sufficiency of the ceased refused to comply with his demand, cooling time and the sufficiency of the provo- and was about to make an unlawful attack cation are respectively deemed questions of upon him with a knife, and the defendant law, not of fact. But the time required to reasonably believed he was in danger of secool, for example, is sometimes, it is believed rious bodily injury or death from said atwith great propriety, submitted to the jury." | tack, and that on said account he fired and

We might multiply authorities on this killed deceased, he would be justified in so question, but we deem it unnecessary to do doing. The court then proceeded to instruct So, taking it as thoroughly established that the jury, as follows: "On the other hand, cooling time is a question of fact, where the you are charged that, where the possession issue is in the case, to be submitted to the of personal property has once been lost, the jury as a question of fact on time, and not owner has no lawful right to regain it by such means as result in homicide. So, in this taking the charges together, were calculated case, if you believe that, prior to the shoot- to leave the jury in a confused and uncering, deceased, without defendant's consent, tain state of mind as to what was the law. seized money that was defendant's property, We accordingly hold that because the or that defendant fairly and reasonably be- court gave this charge the motion for rehearlieved was his property, and that deceased ing is granted, and the judgment is reversed refused to give up such money, and that de and the cause remanded, fendant and deceased had a difficulty on account thereof, and that, after they separated, BROOKS, J. (dissenting). I do not agree you believe beyond a reasonable doubt that with the opinion of the majority of the court defendant armed himself and followed de- | reversing the case on motion for rehearing. ceased up the road, and you further believe

If the charge complained of by appellant from the evidence, beyond a reasonable puts a restriction upon appellant's right of doubt, that defendant so armed himself, self-defense, then special charges Nos. 2, 4, and followed deceased with the intention of

5, and 6, given by the court at the request renewing or provoking a difficulty with de

of appellant, clearly cover any possible harm ceased, and that thereafter he shot and kill

in the charge complained of, and render ed deceased, he would not be justified in so

harmless any inaccuracy therein. Said charshooting and killing deceased, but, if found

ges are as follows: upon express malice, as defined in the charge,

“You are charged that it is not unlawful he would be guilty of murder in the first de

for a person to bet or wager money on his gree, and if upon implied malice, as defined,

skill and ability to throw an anpil over his would be guilty of murder in the second de

head; so that, if in this case you believe gress, and if done under the immediate in

from the evidence that prior to the shooting

that deceased and defendant mutually made fluence of sudden passion aroused by an ade

a bet as to whether or not the defendant quate cause, as defined in the charge, he would be guilty of manslaughter.” Now, the

could pick up and throw an anvil over his

head, and that each placed the money so vice here suggested is that the charge mere ly requires the jury to believe that, if ap

bet, to wit, one dollar, in the hands of one

Calvin Stuckey, as a stakeholder, and that pellant armed himself and followed deceased with the intention of renewing the difficulty,

thereafter defendant did pick up and throw he would be guilty of some offense, no matter

said anvil over his head, and did win said

bet, then you are instructed that the defendwhat occurred when he came up with deceased; that is, the charge does not require

ant would, in law, be entitled to the posses

sion of the money so won in the hands of that after meeting with deceased he do some

said stakeholder. And if, after winning said act to bring on the difficulty, but it merely

money, deceased grabbed or spatched said states, if he followed him with the inten

money out of the hands of the stakeholder, tion of renewing the difficulty, and there

and refused to give same to defendant, and after he shot and killed deceased, he would

thereafter started away with said money, be guilty of murder or manslaughter, as the

then you are charged that defendant would case might be. Clearly the charge in ques

have the lawful right to seek deceased for tion contains this vice, and it is not neces

the purpose of demanding the possession sary to cite authorities in order to show it.

thereof. And you are further charged that All the cases hold that mere pursuit of a

in going in quest of deceased he would have party with intent to bring on a difficulty does

the lawful right to arm himself in anticipanot deprive one of the right of self-defense;

tion of any attack the deceased might make that after he comes up with the party he

upon him when they met; and if you further must then do some act with intent and cal

believe that defendant looked deceased up culated to provoke the difficulty. Here the

and after overtaking him, demanded his court simply instructed the jury, if he pur

money, which deceased refused to surrender, sued bim with intent to renew the difficulty,

whereupon an altercation ensued between and he afterwards killed him, no matter

them, in which deceased cursed and abused what occurred when they met, he would be

defendant, and drew a knife upon and startguilty of murder or manslaughter, as before

ed towards defendant in a threatening manstated. At first it occurred to the writer

ner, and defendant believed, from the acts, that the special objections urged to this

conduct and declaration of deceased, he was charge did not raise the question, or point in danger of being killed or of suffering seriout the particular vice in the charge. But ous bodily injury at the hands of deceased, as before stated, we believe the third ground then he would have the lawful right to shoot relied on by appellant reaches the vice in the and kill deceased; and, if you so believe, charge pointed out above.

you will acquit defendant, or, if you have a We note in this connection that appellant reasonable doubt thereof, you will find him requested a number of special instructions not guilty. And in this connection you are along the same line, which were given by the charged that you must place yourself in the court, and which are correct in terms. How- position of defendant, and view the facts ever, they contravene the proposition an- and circumstances in evidence from his nounced in the charge above criticised, and, standpoint, and if, from all the facts and circumstances in evidence, you believe that the money, and in doing so he would bare it reasonably appeared to defendant at the the lawful right to arm himself, if he antime of the shooting he had a reasonable ex- ticipated any unlawful attack upon himself; pectation or fear of death or suffering serious and if, after overtaking deceased and de. bodily injury at the hands of deceased, then manding his money from him, deceased defendant would have the lawful right to abused defendant and started towards him shoot and kill deceased in defending himself with a knife, then you are charged that defrom such real or apparent danger; and in fendant would have the right to use any this connection you are charged that said force within his power to protect himself; danger need not be in fact real, but need and if, while deceased was making or in the only be apparent, viewing the same from de- act of making an unlawful attack upon defendant's standpoint at the time; and, if de fendant with a knife, defendant shot and fendant began shooting at deceased under killed deceased, then he would be guilty of circumstances indicated above, you are in- no offense, and, if you so believe, you will structed that he would have the right to con- find him not guilty. You are further char tinue to shoot so long as he believed himself ged in this connection that the fact that de in danger from such threatened attack of fendant armed himself before going to seek deceased, if any."

deceased would not impair or abridge his No. 4. “The fact that the person arms him- right of self-defense, if his purpose in seek: self before going to ask or demand posses- ing deceased was to demand his money." sion of property that may belong to him, or No. 6. “If you believe from the evidence that he believed belonged to bim under the in this case that shortly before the killing facts in evidence, does not deprive him of the defendant had won a dollar from dethe right to defend himself from an unlaw- ceased, which had theretofore been placed in ful attack made upon him. So, if you be the hands of one Calvin Stuckey under an lieve from the evidence that deceased had a agreement that, if defendant would pick up dollar in his possession, which defendant had and throw over his head a certain anvil, the won from him, and defendant, for the pur- said dollar should belong to and be delivered pose of demanding possession thereof, arm- to defendant, and that deceased immediately ed himself and sought deceased with the thereafter snatched said dollar from the view of demanding possession thereof, and hands of said Calvin Stuckey, whereupon a that, upon meeting, deceased, after cursing quarrel ensued between deceased and deor abusing defendant, advanced upon him fendant, and in which the said deceased with a drawn knife, and defendant believed drew a knife upon defendant, and threatened he was about to suffer serious bodily injury to kill him, and started away with said monat the hands of deceased or be killed by de- ey, and defendant immediately thereafter ceased, fired upon deceased with a pistol in went to where deceased was, and again deorder to protect himself from such assault, manded the possession of said dollar, and if any, on the part of deceased, then, if you deceased again refused to give it to defendso believe, you will find him not guilty, or, ant, but began to curse and abuse defendant, if you have a reasonable doubt thereof, you and to make a demonstration as though to will acquit him; and, in passing upon this is- draw a knife upon him, and you believe that sue, you will view the facts and circumstan- such facts, acts, and circumstances, taken in ces in evidence from the standpoint of de- connection with the previous wrongs done fendant as it appeared to him at the time him by deceased, and the circumstances all of the difficulty, and not as the same may taken together were of such a character as appear to you now."

to arouse in the mind of defendant such a No. 5. “You are charged that, if you be degree of anger, rage, sudden resentment, or lieve from the evidence that, immediately be- terror as to render his mind incapable of fore the killing, defendant had won a dollar cool reflection, and while in such condition from deceased, which deceased snatched and he shot and killed deceased, you are charged carried away, and refused to give up to de- that he could not be convicted of any offense fendant when demanded, then you are char. higher than the grade of manslaughter." ged that defendant would have the right to Therefore I believe the motion for rehearseek deceased for the purpose of demanding | ing should be overruled.

HARTIN COMMISSION CO. v. PELT. (Supreme Court of Arkansas. June 24, 1905.) 1. APPEAL RECORD-BILL OF EXCEPTIONSINSTRUCTIONS.

Where error was assigned to the modification of an instruction, but the instructions were neither copied nor called for in the bill of exceptions, they could not be noticed, though other parts of the transcript purported to contain the instructions.

On Rehearing. 2. SALES-IMPLIED WARRANTY.

Where a seller of cotton by description expressly refused to warrant the grade, he was not liable for breach of an alleged implied warranty that the cotton was of the grade or description used.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, $ 761.]

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

Action by the J. F. Hartin Commission Company against J. S. Pelt for damages for breach of an alleged warranty of the grade of a lot of cotton sold and delivered by the defendant to the plaintiff. Upon trial before jury a verdict was returned in favor of defendant, and the plaintiff appeals. Affirmed.

Stevens & Stevens, for appellant. Smead & Powell, for appellee.

MCCULLOCH, J. Appellant assigns error committed by the court in modifying the first instruction asked in its behalf and in giving over its objection several instructions asked by the defendant. The bill of exceptions recites that the court modified instruction numbered 1 asked by the plaintiff, and gave instructions numbered 2, 3, 4, 5, 6, and 7 asked by defendant, to which the plaintiff excepted; but the instructions are neither copied nor called for in the bill of exceptions, and cannot, therefore, be noticed, even though there is found in other parts of the transcript what purports to be instructions of the court of corresponding numbers. Newton v. Russian (Ark.) 85 S. W. 407. We must therefore presume that the jury were properly instructed, and as the testimony was sufficient to sustain the verdict, and no other error of the court is pointed out, the judgment must be affirmed. It is so ordered.

On Rehearing. The appellant files a petition for rehearing, alleging that the bill of exceptions contained proper calls for the instructions of the court, but that the clerk failed to copy same in this record, and asking that the judgment of affirmance be set aside and a writ of certiorari be issued to bring up the original bill of exceptions, which is exhibited with the peti. tion.

It is not alleged that there was an express warranty of the grade of the cotton. On the contrary, it is undisputed that appellee, the seller, expressly refused to warrant the grade. But it is contended that in cases of

88 S.W.-59

sales of commodities by description a warranty of the described grade or quality is implied, and that is the question sought to be raised by this instruction asked by appellant which was modified by the court. We do not deem it necessary to pass upon that question in this case, for, if the law is as contended by counsel for appellant, that rule cannot be applied where the seller has expressly refused to make the warranty. The rule is concisely stated as follows: "In the sale of goods by description there is a warranty that they shall answer the description, where it is given by way of indicating the character or quality of the article sold, and not for the purpose of identifying it merely, and when the buyer relies upon it as a warranty. It is not an implied warranty, but is construed, under such circumstances, as constituting an express undertaking that the article shall be as described.” 30 Am. & Eng. Enc. L. p. 153, and cases cited. In order to imply a warranty from the language or contract of the seller, an intention to war. rant must be apparent, and it would be anomalous to hold that a warranty of grade or quality will be implied from the sale of a commodity by description where the seller expressly refuses to warrant. Such refusal negatives any intention to warrant. Tabor v. Peters, 74 Ala. 95, 49 Am. Rep. 804; Jones v. Quick, 28 Ind. 125; Figge v. Hill, 61 Iowa, 430, 16 N. W. 339; Maxwell v. Lee, 34 Minn. 511, 27 N. W. 196; Henson v. King, 48 N. C. 419. "Whether language of description is to be construed as a warranty of quality must depend essentially upon the intention and understanding of the parties as collected from their entire contract." Maxwell v. Lee, supra. There is a difference between a contract for the sale of articles to answer to certain description and a sale of certain specific articles then in the hands of the seller, and described to be of certain grade and quality. In the former case there is, until acceptance by the purchaser, a warranty that the article shall answer the description; whilst in the latter case no warranty is implied unless an intention to warrant appears. The case at bar falls within the latter class. Appellee bad on hand at various times three lots of cotton, which he sold to appellant, but refused to warrant the grade. We find, therefore, that, treating the record as if properly containing the instructions of the court, no error is shown.

The petition for rehearing is denied.

SHARP et ux. v. FITZHUGH. (Supreme Court of Arkansas. May 27, 1905.) 1. BANKRUPTCY POWERS OF TRUSTEE AVOIDANCE OF TRANSFER.

Under Bankr, Act July 1, 1898, c. 541, 8 70e, 30 Stat. 565, 566 [U. S. Comp. St. 1901, p. 3452), authorizing the trustee to avoid any

Cent. Dig. Homestead, es 182. point, see vol. 25,

transfer by the bankrupt which any creditor in the town of Alma bought from Hillyer might have avoided, it is immaterial whether

and others for the sum of $200; another lot such transfer were made four months prior to the adjudication of bankruptcy or not.

in the town of Alma bought from Sam B. 2. HOMESTEAD_CONVEYANCE TO WIFE-COM

Locke, as guardian, for sum of $300; anPLAINT BY CREDITORS.

other lot in the town of Alma bought from Creditors may not complain of the convey- Jones and others for sum of $300; and 782 ance to the wife of the homestead, although it is bought by the husband with his own funds.

acres, known as the “G. N. Wright Farm," . in

bought from the Union Central Life Insur

ance Company for the sum of $12,000, of 3. SAME-RENTS AND PROFITS.

which the sum of $1,000 was paid cash, and Where the legal title to the homestead is the remainder on a credit of 10 years, with in the wife, she is entitled to the rents and 6 per cent. interest, payable annually. It is profits thereof, and to property purchased with such rents and profits, and may hold the same

further alleged: That said bankrupt is the against creditors of the husband.

owner of the following personal property 4. HUSBAND AND WIFE-PROPERTY BELONG- held in his wife's name, to wit: $3,500 inING TO WIFE-IMPROVEMENTS BY HUSBAND. vested as partner in a mercantile business The wife's property is not liable to cred

conducted in the town of Alma with defenditors of the husband for augmentation of the rents and profits or enhancement of the value

ant Frank Wright, under the firm name of thereof on account of any reasonable contribu- Wright & Co.; $750 invested in the capital tion of the husband's time, labor, and skill in stock of a sawmill company in Oklahoma the management of the property.

Territory; and a note of defendant C. C. (Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Husband and Wife, 88 573, 574.]

Montague for the sum of $250, executed to

Ella Sharp in settlement of the purchase 5. SAME-INVESTMENT OF FUNDS--BURDEN OF Proor.

price of a pair of mules and a wagon and Where a husband works and manages his lot of corn sold to Montague. That said wife's farm, and, in addition, controls in his bankrupt was and is the real owner of said own right other farms of equal productiveness, and mingles the products of all at will, the

property, and placed the same in the name burden is on the wife to show, as against cred

of his wife, the said Ella Sharp, for the puritors of the husband, the amount of profits re- pose of defrauding his creditors. The deceived from her own farm, and how they were fendants John Sharp and Ella Sharp filed expended, and that funds used in purchases and investments were not furnished by the hus

their joint answer, denying that any of the band, and did not accrue from his earnings. property described was owned by John

Sharp, or that title was taken in the name of Appeal from Crawford Chancery Court;

Ella Sharp for the purpose of defrauding J. Virgil Bourland, Chancellor.

his creditors, and alleging that all of it was Suit by H. L. Fitzhugh, as trustee of the estate of John Sharp, a bankrupt, against

the separate property of Ella Sharp, and

was bought with her money, except the John Sharp and others. From a decree for

homestead 80, which was conveyed to her plaintiff, defendants Sharp appeal. Af

by the Union Central Life Insurance Comfirmed in part.

pany in consideration of her joining her husThis is a suit brought in the chancery band in a conveyance to said company of court of Crawford county by H. L. Fitz- her dower in the equity of redemption of a hugh, as trustee of the estate of John Sharp, farm known as the “Sharp Place," upon a bankrupt, against said John Sharp and his which the company held a mortgage. Mrs. wife, Ella Sharp, and others, to subject cer- Sharp also filed a separate supplemental antain property, real and personal, held in the swer, claiming the homestead 80 and the name of Ella Sharp, to the payment of the Hilton 40 as her homestead. The chancellor debts of said bankrupt. John Sharp prior to in the final decree dismissed the complaint the year 1897 failed in business, and was as to this property, and declared the same indebted to creditors in large sums, which to be her homestead, and no appeal from he did not pay. On April 29, 1902, he filed that part of the decree was taken by the his petition in bankruptcy, and was duly ad- plaintiff. The Union Central Life Insurance judged a bankrupt; and appellee, H. L. Fitz- Company and C. C. Montague were made dehugh, was by the creditors elected as trustee fendants and served with process, but failed of the estate of the bankrupt. This suit to appear. The court rendered a decree in was brought by said trustee, for the benefit favor of the plaintiff, except as to the 120 of the creditors of the estate who bad proved acres held to be the homestead of the detheir claims, by direction of the bankruptcy fendants, and canceled the legal title of Mrs. court. It is alleged that John Sharp, while Sharp thereto, and declared the same to be insolvent, and with fraudulent intent to assets of said bankrupt estate in the hands cheat, hinder, and delay his creditors, pur- of the trustee, subject, however, to the lien chased in the name of his wife, Ella Sharp, of the Union Central Life Insurance Comthe following land, viz.: 80 acres of land pany on the Wright farm for $11,000, balbought from the Union Central Life Insur- ance of the purchase price. The defendants ance Company, designated in the proof as John Sharp and Ella Sharp appealed to this the "Homestead Tract”; 40 acres bought court. John Sharp died pending the appeal, from H. H. Hilton, trustee, for the sum of and upon suggestion of his death the cause, $200, kuown as the “Hilton Forty"; one lot as to him, was abated.

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