appellant to his wife. By her own admission, she was not always as considerate of her husband's feelings as her duty demanded. One of the instances she relates of his unkind treatment, when he threatened to throw a mug at her, was provoked by her own incousiderate conduct and remark while appellant was sick. To our minds, the evidence shows that both parties were somewhat at fault, and that both, by failure to exercise that "mutual forbearance and mutual forgiveness" which the relation demanded, aggravated, rather than tended to ameliorate, their unhappy conjugal state. It may be that the opposition to the marriage shown to have been manifested by appellee's mother and other near kindred was continued, as claimed by appellant, after the marriage, and was responsible in some measure for the dissensions which led to the final separation; but at any rate it appears that neither party came up to the full conjugal duty to prevent the separation. Upon the proof introduced, both were at fault, and both should have been denied relief. 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 trying to reason with her we both became angry, and had the worst 'spat' or quarrel we ever had. I told her if she was foolish enough to believe such she should have her jaws slapped. She dared me to slap her, and I did. After having realized what I was doing, I slackened the blow, and it could not have inflicted any pain whatever." He denied that he ever struck her or offered to strike her on any other occasion, or made a practice of calling her a fool. Appellant introduced two witnesses, who lived near them for several months before the separation occurred. One lived in about 50 yards, and the other, one Crenshaw and wife, lived in the house with appellant and appellee. Both of these witnesses testified that they saw no evidence of harsh or unkind treatment on the part of appellant. We think that the preponderance of the testimony is in favor of appellant, and that appellee has established no grounds for divorce. Even her own testimony and that of her two corroborating witnesses do not clearly establish the existence of a state of facts upon which a court of equity should interpose relief by a dissolution of the bonds of matrimony. In the case of Kurtz v. Kurtz, 38 Ark. 119, Judge Eakin, speaking for the court, approving the rule laid down in Rose v. Rose, 9 Ark. 507, that the personal indignities contemplated by the statute as grounds for divorce included "rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate, alienation, and estrangement," said: "It must be confessed that this position goes to the very verge of safety, and should be pressed no further. In applying it the chancellor should act with great caution to avoid the gradual approach, by imperceptible steps, to the practice of holding all matrimonial bickerings, by which parties may render each other unhappy, to be valid ground of divorce. Where there are no fixed and well-defined barriers of principle, it is difficult to limit the encroachment of precedents setting in one direction. Each so nearly supports the next that, before one is aware, the bounds of reason are passed." In Cate v. Cate, 53 Ark. 484, 14 S. W. 675, Chief Justice Cockrill said that "courts are not quick to interfere in domestic quarrels, and, where the parties are equally at fault, it must be shown at least that there is something that makes cohabitation unsafe, to move the courts to interfere." We think that this court has gone to the limit in the case of Rose v. Rose, supra, and that it would be extending the rule entirely too far to hold that a divorce should be granted upon the testimony of appellee, corroborated only by the daughter who was but nine years old at the time of the occurrences about which she undertakes to testify, and by one other witness who re The decree for divorce must, therefore, be reversed, and the cause dismissed for want of equity either in the complaint or cross-complaint; and it is so ordered. REESE v. STATE (three cases). Where, in prosecutions for unlawfully selling intoxicating liquor, the prosecuting attorney, in his closing argument in one case, said, in effect, that he would not believe any man on oath who would deliberately violate the law by running a blind tiger; that, if he would violate the law in that respect, he would not hesitate to swear a lie to get out of it; and in another of the cases said that "a blind-tiger man will swear a lie any time. This man [defendant] is not worthy of belief. Any man that will run a blind tiger will swear a lie to beat the law"the language, while not commendable, was not reversible error. Appeals from Circuit Court, Howard County; James S. Steele, Judge. John F. Reese was convicted of unlawfully selling intoxicating liquors, and appeals (three cases). Judgments affirmed. For former report, see 83 S. W. 918. Feazel & Bishop, for appellant. Robt. L. Rogers, Atty. Gen., for the State. HILL, C. J. These three cases present but one question, and it is practically the same in each case. The prosecuting attorney in his closing argument said: "That, in considering the testimony of the defendant, the jury should take into consideration his interest in the result; should consider whether his statement was made in good faith, or merely to avoid conviction; that he [the prosecuting attorney] would not believe any man on oath who would deliberately violate the law by running a blind tiger; that, if he would vio 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 statements 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 evidence, so long as he couches his remarks in language befitting his high profession and the place of its utterance-a 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 his 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. 2. CONTRACTS-ENTIRE-SEVERABLE. 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 County; Charles D. Greaves, Special Judge. Action by Walter Pratt & Co. against S. M. Duffle & Co. From a judgment for plaintiffs, defendants appeal. Affirmed. Wood & Henderson, for appellants. Leslie & Huff, for appellees. 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 sufficient 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 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. "Terms: 5 per cent 15 days from date of invoice, or two, four and six and eight months net, divided into four equal pay ments, 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. On 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 pay for them, having failed to give notice of the failure of the goods to comply with the warranty within five days after they (defendants) received them. Pratt v. Meyer (MS. opinion) 87 S. W. 123. But the defendants asked the court to instruct the jury as follows: "(4) The contract between plaintiffs and defendants is an entire contract, and defendants were not required to accept any of said goods if any material part of the goods shipped under said contract were different and inferior in quality from the goods ordered." The court refused to instruct the jury as asked, but instructed them as follows: "The contract shows that several articles of goods were included in one and the same order, and that a price was fixed in said contract for each separate article. I therefore instruct you that said contract is not an entire but a severable contract, and, if any of said articles correspond with the samples, then defendants were bound to accept each of said articles as corresponded with samples, and are liable to plaintiffs for the value thereof, as the same are fixed in said contract. "If you find from the evidence that the defendants, within a reasonable time after the receipt of the goods mentioned in said contract, examined a bottle of lilac mentioned in said contract as bulk perfume, and upon such examination it was found that said bottle of lilac did not correspond with the sample, then defendants had the right to refuse to accept said bottle of lilac. "If defendants did not examine any of said goods except a bottle of lilac, then they are bound to have accepted all of said goods which they did not examine, and are liable to plaintiffs for the value thereof, as the same are fixed in said contract. "If you find from the evidence that the bottle of lilac mentioned in said contract as bulk perfume did not correspond with the sample, then you will find that that is evidence tending to show that all the bulk perfume mentioned in said contract did not correspond with the samples; and if you find that the bulk perfume mentioned in said contract did not correspond with the samples, then defendants had the right to refuse to accept said bulk perfume, and, if they did refuse to accept the same, they are not liable to plaintiff therefor." The jury returned a verdict for plaintiffs in the sum of $134.20. They evidently deducted from the amount of the order $60, the aggregate price for which the "bulk perfumes" sold. The defendants appealed. Assuming that the question as to the nature of the contract was properly raised in the trial court, was the contract sued on entire or severable? Mr. Parsons, in his work on the Law of Contracts, says: "Any contract may consist of many parts, and these may be considered as parts of one whole, or as so many distinct contracts entered into at one time, and expressed in the same instrument, but not thereby made one contract. No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable." 2 Parsons on Contracts (9th Ed.) bottom p. 672. Judged by this citation, the contract in this case is several. The lists of goods embraced in the order sued upon consist of 50 items, with the price for which each sold placed opposite the same, amounting in the aggregate to $194.20. The price of no single item exceeds $12.75. Each item was sold by a sample, and was warranted to be the same in quality, material, and in all other respects as sample; the contract as to each article, in that respect, being different; and the purchaser was furnished with a sample to enable him to determine whether the goods shipped were such as he agreed to buy. The acceptance of each depended upon a distinct test, and the price to be paid for each was stipulated. According to the general rule in such cases, the contract is several. Lucesco Oil Co. v. Brewer, 66 Pa. 351; Wooten v. Walters, 110 N. C. 251, 256, 14 S. E. 734, 736; Beach on Modern Law of Contracts, § 731; Clark on Contracts (2d Ed.) p. 453. The guaranty of profits set out in the paper sued on does not affect the severalty of the contract of sale. It applied to all the goods purchased in the same year, and was to continue for three years. The sale was in no way dependent on it. Appellants have no right to complain of the judgment against them. Affirmed. 3. SAME-EVIDENCE-SUFFICIENCY. Evidence held to support a conviction for murder in the second degree. Appeal from Circuit Court, Sevier County; James S. Steele, Judge. Harry Daniels was convicted of murder, and he appeals. Affirmed. Brizzolara & Fitzhugh, W. H. Collins, and Pole McPhetridge, for appellant. Robert L. Rogers, for appellee. WOOD, J. At the September term, 1904, of the Polk circuit court, the grand jury returned an indictment against appellant charging him with murder in the first degree, and, having been granted a change of venue to the Sevier circuit court, he was at the January term thereof tried upon the plea of not guilty, convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary. His motion for a new trial having been overruled, he appealed to this court, alleging numerous grounds for reversal of the judgment. The indictment was sufficient. The word "willingly" in the indictment, instead of "willfully," which latter word was doubtless intended, does not render the indictment insufficient. The utmost that can be claimed is that the word "willfully" was omitted. But the indictment, with the word "willfully" omitted, still charges that the defendant "unlawfully, feloniously, and of his malice aforethought, and after deliberation and premeditation, did kill and murder," etc. These words include all the meaning that could be conveyed by the word "willfully." The record shows that "T. B. Holman, who was a juror and a member of the regular panel of the jury, during the impaneling of the jury in this action, was duly accepted as a juror herein by the state and the defendant, and the state was permitted by the court, over the objection and exception of the defendant, to excuse said T. B. Holman by peremptory challenge, without stating or showing any cause therefor, after the said Holman had been accepted by the state and the defendant as a juror as aforesaid." This record does not show that the state was permitted to exercise this peremptory challenge "after the jury had been made up," as stated by counsel for appellant. As every presumption, in the absence of a showing to the contrary, must be indulged in favor of the regularity of the proceedings, we must presume that the state exercised this peremptory challenge before the juror was sworn in chief, as prescribed by section 2357, Kirby's Dig. These are the only grounds for a new trial which the verdict could not cure, and these are not well taken. All the others relate to alleged errors of the court during the progress of the trial which do not affect the integrity of the trial itself, and which, however egregious, the verdict of the jury upon the uncontradicted evidence has cured. The undisputed facts show that appellant was guilty, at least, of murder in the second degree, and the jury gave him the lowest punishment for that offense. Therefore no error in the introduction of the evidence complained of, the argument of counsel, or the instructions of the court could be prejudicial to the rights of appellant. His own evidence shows that he was an engineer on the Kansas City Southern Railroad, and on 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. m.,` and found the deceased, Dr. Magness, in his house, under circumstances which indicated clearly that he was committing adultery with his wife. The appellant chased the doctor, who was partially disrobed, from his house, failing, however, to catch him. The doctor left behind in the house of appellant a shirt, collar, cuffs, necktie, and hat, which afforded undisputable evidence of his identification. Besides, the unfaithful wife, when called upon by appellant for an explanation, frankly confessed to appellant that Dr. Magness was the author of her ruin, and told her husband that Dr. Magness had first accomplished his purpose by administering to her on one occasion a narcotic when she had called him in on a professional visit. Dr. Magness was the family physician and intimate friend of appellant. The appellant proceeds to tell how the betrayal of confidence by his family physician and friend, and the disclosure of his wife's infidelity, so preyed upon his mind that he could neither eat nor sleep. He shows that during the remainder of the night of the awful discovery he could not sleep. In fact, he says he neither ate nor slept from the time he came home and caught the doctor in his house until he had killed him. He says his wife had told him that Dr. Magness had said that, if he (appellant) ever came home and found him (Magness) in their house, he, Magness, would kill him, appellant. "Knowing," he says, "that he had just threatened my life, and finding this murderous thing [pistol] in my house, I saw nothing but to go prepared, as I firmly believed that man would kill me. That is the reason I took the pistol and went to the hardware store and bought the cartridges." He further portrays his feelings and subsequent conduct as follows: "I could get no satisfaction from life, knowing that that man had robbed my home and taken from me everything that I had. I sought in some manner redress for the harm and disgrace that he brought upon me. I knew that he would kill me on sight. I looked for him on the street the next day, but failed to find him. I was on the streets most of the day, but I did not see him anywhere, and felt sure that he was hiding from me. That night I could not sleep, and the next morning I went downtown, and as I passed the drug store I saw his horse and buggy hitched there in front, but did not see him. I went into the drug store; passed the last opening |