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value at that time, or continue the lease at the same rate until he should pay for them.

During the term of the lease Jones, the lessee, erected two small frame houses on the lot, and was erecting a third, of brick, when this action was instituted.

The main contention in this action grows out of the clause: “The lessee is allowed to build three houses.” This clause appears in the counterpart of the lease which was retained by Jones, but is not in the one held by Hoard. As originally written nothing was said in the lease about houses. Hoard insists that the clause was inserted after the execution of the lease, without bis consent or knowledge, and Jones says it was inserted by him by permission of Hoard, and that the lease was thereafter acknowledged before a justice of the peace by both parties.

As to the first two houses erected by Jones there is no controversy. The parties agree that they were built by Jones under an agreement that Hoard would pay the value of the same to Jones when the possession of the lot was delivered according to the terms of the lease, and that the lease should continue in force, at the annual rent of twenty-four dollars, until such payment should be made. As to the third house Hoard says that he protested against the erection of it at the time Jones commenced to build it, but Jones insists that plaintiff requested him to build a storehouse, and, after be commenced to do so, objected to the kind of building he was putting up, but told him “if it would n't cost more than five hundred dollars, to go ahead and build it."

It appears, however, that it cost eleven hundred and fifty dollars or more.

46 At the hearing both parties adduced evidence in support of their respective contentions. The appraisement of the buildings by persons selected by the parties, showing the value thereof to be fifteen hundred and fifty dollars, was introduced and read as evidence.

The court decreed that Hoard should pay to Jones the sum of fifteen hundred and fifty dollars for the three houses; that Jones should surrender possession on the payment to him of that amount, and of the sum of thirty-six dollars ånd seventy-five cents due him for fencing, less the sum of fourteen dollars due Hoard for rent of the lot from the first day of October, 1890, until May 1, 1891, the date of the expiration of the lease; and that Jones pay to Hoard for the use of the lot the sum of ten dollars a month from the 1st of May, 1891,

until the improvements are paid for, and pay all the taxes, present and future, and retain possession of the lot until the amounts due him under the decree are paid; and that each party pay one-half of the costs. Both parties have appealed.

As to the alteration of the counterpart retained by Jones, it is sufficient to say we find from the evidence that it was made by Jones without the consent or knowledge of Hoard, after the execution of the lease. But this does not affect the rights of Jones under the contract actually made by the par. ties, for, the lease being executed in duplicate, there were two leases, and both were originals. Although the alteration of the lease held by Jones annulled that, the lease retained by Hoard was sufficient to sustain the contract of the parties: Lewis v. Payn, 8 Cow. 71; 18 Am. Dec. 427; 1 Taylor on Landlord and Tenant, 8th ed., sec. 165; 1 Wood on Landlord and Tenant, 2d ed., sec. 222, and notes.

As to the third house, which was in the course of construction when this action was brought, it being erected, as we find from the evidence, without the consent of Hoard, and against his protest, Jones is entitled to nothing; and, as to the other houses, he is entitled to 47 the payment of a sum of money equal to their value at the time when he shall deliver the possession of them to Hoard; and he is entitled to hold the lot and improvements, he paying annually twenty-four dollars, as rent, until the first two houses and the fences built and well dug on the lot shall be fully paid for by Hoard.

The decree of the chancery court is, therefore, reversed, and the cause is remanded for proceedings consistent with this opinion.

ALTERATION OF INSTRUMENTI—LEASE EXECUTED IN DUPLICATE. - Whero a lease is executed in duplicate, each party receiving one, both are originals; the fraudulent alteration of one of them by the party holding it does not destroy his estate under it if the other remains intact: Lewis v. Payn, 8 Cow. 71; 18 Am. Dec. 427, and note.

LANDLORD AND TENANT-IMPROVEMENTS.-As to whether a tenant is en. titled to reimbursement for improvements made upon the leased premises, see Pomeroy v. Lambeth, 1 Ired. Eq. 65; 36 Am. Dec. 33, and note; King v. Woodruff, 23 Conn. 56; 60 Am. Dec. 625, and note; McQueen v. Chouleau, 20 Mo. 222; 64 Am. Dec. 178; Vaughan v. Cravens, 1 Head, 108; 73 Am. Dec. 163, and note. Improvements of a permanent character made upon land, and attached thereto, without the consent of the owner, by one having no title or interest, become a part of the realty, and vest in the owner of tho fee without reimbursement from him: Williams v. Vanderbilt, 145 IIL 238; 38 Am. St. Rep. 486, and note.

Smith v. State.


accused of crime is not entitled to a new trial on the ground that a juror had formed and expressed an opinion before he was selected, il

he was accepted as such juror without examination by the accused. HOMICIDE.— To CONSTITUTE SELF-DEFENSE it need not to be made to appear

that the killing was actually necessary; but to justify the killing, how. ever, the accused, in acting upon the facts as they appear to him, must honestly believe, without fault or carelessness on his part, that the danger is so urgent and pressing that it is necessary to kill his assail. ant in order to save his own life, or to prevent his receiving a great bodily injury. If there is no danger, and his belief of the existence thereof is imputable to negligence, he is not excused, however honest


officer may arrest one committing a misdemeanor in his presence with. out a warrant, and, if necessary, orally summon as many persons as he deems necessary to aid him in making the arrest. In making the arrest, or in preventing an escape after the arrest, the officer or person assisting him in obedience to a summons, when resisted by the offender, is not bound to retreat, but may use such physical force as is appar. ently necessary, on the one hand to effect the arrest by overcoming the resistance he encounters, or, on the other hand, to subdue the efforts of the prisoner to escape, but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to

save his own life, or to prevent a like harm to himself, New Trial.-AFFIDAVITS OF Jurors are not admissible to show that the

jury received evidence after they retired to consider their verdict, under a statute providing that a juror cannot be examined to establish

any ground for a new trial, except that the verdict was made by lot.

J. P. Clarke, attorney general, and C. T. Coleman, for the appellee.


BATTLE, J. Bud Smith was indicted for voluntary manslaughter, committed by killing John Boyd at Sulphur Springs, in Benton county, in October, 1892. “The evidence adduced at his trial tended to show that the deceased was drinking, and that as he came out of a saloon he gave a *whoop.' Sharp, the town marshal, and Poindexter, his deputy, came to where he was, and asked who did the halflooing. The deceased replied that it was he, and they arrested him, and a scuffle ensued, in which the deceased gucceeded in getting loose.'When he had freed himself from the hands of the officers he immediately attacked the marshal, and knocked him down, and a friend, coming to this assistance, felled the deputy. As soon as the marshal recovered from his fall be fled toward and around a crowd which was looking on, the deceased following. The defendant was then standing on the outskirts of the crowd 134 whittling with a knife. Sharp, the marshal, in his flight, approached him and said, “I deputize you to help me arrest. Boyd." The defendant made no reply, but moved a step or two toward the marshal, and stopped. The deceased ran up to them with a club or gaspipe, about twenty or twenty-four inches long, in bis hand, and asked the defendant what he had to do with it, and, without waiting for a reply, struck him on the head with the club or gaspipe, and knocked him down, and, as he partially recovered, and before he was erect, struck at him again, and the defendant threw up one band to ward off the blow, and as he did so stabbed the deceased with a pocketknife in the other. Only one wound was inflicted, and from that the deceased died on the third day. Evidence was also adduced tending to prove that the defendant had never seen the deceased before his arrest by the marshal, and that the deceased threatened to kill him when he was attacking him.

The court instructed the jury, over the objections of the defendant, as to what constitutes murder in the first and second degrees, and defined express and implied malice; and among others, gave the following instructions to the jury, over the objections of the defendant:

"In order to justify the killing on the grounds of selfdefense it must appear from the evidence that the circumstances surrounding the defendant at the time were sufficient to excite the fears of a reasonable person, and that the defendant really acted under the influence of such fears, and not in a spirit of revenge. It must appear that the danger was not only impending, but was so urgent and pressing that, in order to save his own life or to prevent his receiving great bodily injury, the killing of John Boyd was necessary. It must also appear from the evidence, in order to justify the killing, that the defendant had employed all reasonable nieans within his 135

power, and consistent with his safety, to avert the necessity of taking life."

It also gave the following instruction: "The jury are instructed that if the deceased, Boyd, willfully or maliciously disturbed the peace and quiet of the town or village or neighborhood of Sulphur Springs by loud or unusual noises, or by abusive, violent, obscene, or profane language, and sucb disturbance was committed in the presence of a peace officer, then such peace officer would have authority to arrest him, and summon others to assist him in making such arrest. In making an arrest for the disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, the officer or person acting under him can exert such physical force as is necessary, on the one hand, to effect the arrest by overcoming the resistance he encounters, or, on the other hand, to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him great bodily harm, except to save his own life, or to prevent great bodily harm to him. self.

The defendant asked, and the court refused, to instruct the jury that a peace officer, or person summoned to assist him, in making an arrest of a criminal for a disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, is not required to retreat from resistance made to efforts to compel submission to arrest, but may use such force as is apparently necessary to compel such submission, and may if, in an effort to do so, he is assaulted by the criminal under such circumstances as lead him to believe he is in danger of losing his life or receiving a great bodily injury, repel force with force to the extent of taking the life of the criminal.

Upon the submission of the cause to them the jury found the defendant guilty of voluntary manslaughter, 136 and assessed his punishment at two years' imprisonment in the penitentiary. He filed a motion for a new trial, and stated, as the grounds of the same, among other things, that one of the jurors had formed and expressed an opinion as to his guilt or innocence of the crime whereof he was accused, before he was selected to try him; that the court erred in giving instructions to the jury over his objections, and in refusing to give others asked -for by him; and that the jury received evidence after they retired to consider of their verdict. To sustain the last ground the affidavit of one of the jurors was read, to the effect that, after the jury had retired, and had taken a ballot finding the defendant guilty, Ragsdale, a juror, detailed certain circumstances of the killing as of his own knowledge. The state read the affidavits of the twelve jurors, saying that they had found the defendant guilty of voluntary manslaughter before Ragsdale said any

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