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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 his 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 admissible 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

DISCARDED EVIDENCE.

CONSIDERATION OF

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, prosecutor 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 ERROR

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the country. Their scheme was to have a foot race between two well-advertised runners. 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 hall; 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 Price— the 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

fastest. He arranged his affairs, and came to Hot Springs with $8,300, ready to impress the millionaires, and extolled the swiftness of the runner, who came, he said, from his lumber camps. The arrangements were carried out. He met the millionaire clubmen, whose castles were evidently in Spain, and they put up $2,500 as forfeit for Price, and he, with money furnished, put up the like amount for Morris. The stakes were to be $5,000 on a side, making the purse $10,000, which was finally arranged substantially as agreed. He was furnished with large sums to bet by Price and one Thompson, the manager of the club, and, what was more important in this transaction, the stakeholder. These sums were equally divided between appellant and Doucette, and they laid the bets with the millionaires. Many thousands of dollars were bet in this way. Doucette bet $100 of his own, and the stakeholder privately returned it to him, and gave color to the theory that the bets on his side were feigned for the purpose of inducing the millionaires to put up their money. In the last hour of the betting Doucette parted with his $8,300. The witnesses for appellant claim he bet to win or lose, but he gives a different version of it. The material parts of his testimony here given are taken from appellant's abstract: "Johnson and I then went to the bank and drew $8,000 in one package.

I put my money in my pocket, and Johnson and I started back to the clubroom, and I said to Johnson, 'I don't believe I will go any further with this,' and he said 'everything is all right, come on;' and so went on to the clubroom, and they wanted to bet right away. I went into the back room and Eddie Morris and Johnson followed me, and Eddie Morris opened his coat, and said, "There is your money. You bet that money you got out of the bank so as to show these people it is good money, got out of the bank in blocks, and you will get your money back.' So I went in and bet the $8,000. Mr. Johnson had a very fine diamond stud, and he bet that. I also bet two $100 bills that I still had. By that time the hacks were ready to start to the race." He says further: "I did not understand that I was to put up my $8,000, because Eddie Morris said he would give it back; that he had it in his coat pocket, and wanted me to bet my money because it was new money that came out of the bank in blocks, and the money he had in his pocket was supposed to be the referee's money. It was not my intention to put up my own money. I supposed I was to get about 25 per cent. of the winnings to pay me for my trip." Again, he says, after reiterating the substance of the above: "I considered that the money he had was mine, and I was betting his money. I never intended that any of my money should be staked on the race. I did not intend to part with my money." Doucette found "that the race is not to the swift, nor the battle to the strong," for his

He says

runner, while nobly leading, fell that he denounced the scheme, and demanded his money, but was laughed at, and the attitude of one of the party with a pistol, as he thought, convinced him that his wisest course was to say no more about it then. The appellant's witnesses say that he agreed to let the money stay with the stakeholder until he and Johnson went home to raise more money to add to the purse and have the race run over again within 30 days. The state introduced witnesses who attended similar performances at Webb City, Mo., Salt Lake City, Utah, and Aurora, Mo., and who were the several victims of those races. The same general plan and scheme was worked as in this one, and some of the participants, while varying at the different races, were the same parties as those at Hot Springs; the appellant always present and participating. The schemers appeared in different rôles in the cast, and frequent changes of names occurred, probably to fit the new rôle. The last race in evidence was at Aurora, Mo., the week following the one at Hot Springs. This seems to have been the "run off" of the Utah race, for Mr. Cobb's benefit; Mr. Cobb being the Doucette of that transaction. Three questions arise:

1. Does the state's evidence prove larceny? One of this party has been introduced to this court before, and he obtained a reversal of a conviction of larceny, and the law controlling such cases was then announced, and this laid down as the rule: "When persons conspire to cheat a man under color of a bet, and he simply deposits as a stake with one of them, not meaning thereby to part with the ownership therein, they, by taking the money, commit larceny, and not the less so though afterwards they are by fraud made to appear to win"-citing authority. Hindman v. State, 72 Ark. 516, 81 S. W. 838. The court carefully limited a conviction upon finding the facts within this rule. Doucette's testimony, if true, brings the case within the rule and the instructions. The appellant's witnesses claimed Doucette bet his money on the result of the race, and the court instructed that, if Doucette bet his money to win or lose, even though pursuant to a conspiracy inducing him to do so by false representations, yet that would not be larceny, and they must acquit. The jury were fully instructed that, no matter how fraudulent or dishonest the inducements may have been, yet if Doucette bet his money intending to part with its title and possession, the taking of it so fraudulently acquired would not constitute larceny. The appellant's rights were fully protected in these instructions.

2. It is insisted that Doucette consented after the race to the stakeholder keeping the money awaiting the race to be run over. The court instructed the jury that, unless they found defendant guilty under other instructions, 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, § 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. §§ 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.

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,

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.

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 wrongful death, through negligently running a train into the vehicle decedent was driving over a crossing, evidence held 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 freight engine could not see the headlight of the passenger train in time to have avoided the injury, and no signals were given, and the deceased and his son took such precautions as would have enabled them to have seen or heard the train if such signals had been given, to find for the plaintiff on the issue of contributory negligence, was not erroneous, as singling out certain parts of the evidence in favor of plaintiff..

4. SAME-OPINION ON WEIGHT OF EVIDENCE.

An instruction that if the death of deceased was caused by the negligence of the defendant company, a recovery cannot be defeated on the ground of contributory negligence, unless it appears from the evidence that the deceased failed in the exercise of ordinary prudence, and such failure so contributed to the injury that it would not have otherwise occurred, and that contributory negligence will not be presumed, but must be proven, was not erroneous, as an expression of the court's opinion on the weight of the evidence. 5. SAME.

In an action against a railroad for death at a crossing at which a freight train was standing on a track parallel to the main track, on which was the approaching train, so that decedent's mules were on the main track before the wagon could have cleared the freight train, the refusal of an instruction making it the duty of decedent, after passing the freight train, to look and listen before attempting to cross the main track, was not error. 6. WRONGFUL DEATH-EXPECTANCY OF LIFE TABLES-ADMISSI

-ANNUITY-MORTALITY

BILITY.

In an action for wrongful death, testimony of a life insurance agent as to the expectancy of life, as shown by the mortality tables, of a man of decedent's age, and an estimate of the amount required to purchase an annuity equal to his income, was admissible.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, § 86.]

7. SAME--EXCESSIVE VERDICT.

In an action against a railroad for wrongful death, a verdict for $10,000, which was less by $1,054 than the sum representing the present value of decedent's income, was not excessive, where, though his personal expenses, to be deducted, were probably more than such difference, the loss of his care and attention to his minor children was another element proper to enter into the verdict.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, §§ 125-130.]

Battle and Riddick, JJ., dissenting.

Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.

Action by Robert W. Hitt and others against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

These facts are deducible from the evidence most favorable to sustain the verdict: On Sunday night, in January, 1902, the Hitts drove from their home, near the central part of Nevada county, into Prescott, a town of more than 3,000 inhabitants. They were in a covered wagon, and arrived at the crossing at Elm street after dark. The covering extended two feet over them, and on either side, leaving only the view in front unobstructed. This crossing was in the center of the town. It was a cold, windy day, and had been sleeting. The ground was covered

with sleet and ice. When they reached the crossing, they found it blocked by a freight train on the side track, 1,200 feet long, standing a few feet from the main line. A brakeman was standing at the crossing, and they asked him when they could cross. The crossing remained blocked about 10 minutes, when the freight train "cut the crossing." Then they discussed whether it was safe to cross. Luther E. Hitt got up and looked up and down the track; extending his head beyond the wagon cover, thereby enabling him to see both ways. His father called his attention to some cars on the track, and after discussing it they concluded it was safe to cross. In driving across they continued to look forward, but did not extend their heads beyond the covering to see on either side. The town maintained an arc light almost immediately over the crossing, and the headlight of the freight engine was burning, shedding its rays over the crossing. There were cars on both sides of the crossing. The train which struck them came from the southwest, and was about an hour late. Looking from where they were standing, in the middle of Elm street, the view was obstructed by cars on the spur track; a freight train was standing on the passing track; and down the railroad were two large warehouses and a coalhouse, which completely cut off their view from the direction which the train came. The passenger engine was lighted with an electric headlight, whose beams could be seen a half a mile; but the reflection of this may not have been seen on the crossing in front of them, on account of the light thrown by the arc light and the headlight of the engine. Luther Hitt testifies he did not detect it, although looking ahead. The sleet and ice on the ground deadened the sound of the train, until, as the witnesses stated, it was running rather soft, and did not make as much noise as usual. The train ran in past the crossing at a speed of from 18 to 20 miles an hour, and without ringing the bell or sounding the whistle, struck the wagon in which the Hitts were sitting, killed the father, and injured the son. The point at which they stopped and looked out from under the wagon sheet was 82 feet from the track where they were struck. The center of the side track was 14 feet and 6 inches from the center of the main track, and the spur track was still between the wagon and the side track. They started to drive across slowly. The brakeman at the pilot of the freight engine was standing on the ground, and they passed in front of him, not more than 25 feet away. No watchman was kept at the crossing. The brakeman made no effort to stop the wagon, and he knew the passenger train was coming.

Among other instructions given were the third and fourth, which are as follows:

"(3) You are further instructed that if you find from the evidence that the deceased or his son stopped, looked, and listened be

fore driving upon the track, and further believe that by reason of the obstructions on the side track-the arc light maintained by the town and the headlight of the freight engine, if you believe these lights were burning-could not see the headlight of the passenger train, or the reflection thereof, in time to have avoided the injury, and that no signals were given as defined in these instructions, and that the deceased and his son took such precautions as would have enabled them to have seen or heard the train if such signals had been given, you may find for the plaintiff as to the issue of contributory negligence.

"(4) If you believe from the evidence that the death of the deceased was caused by the negligence of the defendant company, a recovery cannot be defeated on the ground of contributory negligence unless it appears from the evidence that the deceased himself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if he had been without fault. Contributory negligence will not be presumed, but must be proven by a preponderance of the evidence."

The court refused to give the sixth instruction requested by appellant, which is as follows:

"(6) The court instructs the jury that if they find from the testimony in this case that at the time in question a freight train was standing on a track parallel to the track on which the approaching train was, and that such freight train was between plaintiffs, on the highway, and the approaching train, so that the approaching train could not be seen or heard readily, then the plaintiffs had no right to drive on the track without taking precautions after they passed beyond the freight train, where they could see and hear the approaching train, and there looking and listening before attempting to cross the track in front of the approaching train; and if they failed to do this, and in consequence of such failure were injured, your verdict should be for the defendant."

The appellees received a judgment for $10,000. Hitt was 56 years of age; was making $1,000 per annum, derived from farming, trading, and the mercantile business. He left a wife and nine children, of whom six were minors at the time of his death-the youngest about five years old. He was a stout, healthy man, and shrewd in business affairs. A witness was asked, "What was his character, with reference to attention to and care of his family?" and answered, "It was very good." Again he was asked: "You say he was a man who took good care of his family? A. Yes, sir; as good as any man, I should think."

J. E. Williams and B. S. Johnson, for appellant. McRae & Tompkins, for appellees.

HILL. C. J. (after stating the facts). 1. The negligence of the company in failing to

give the signals required by law was abundantly established, and the conflict in the evidence on this point has been settled by the jury. The next question, and the one most earnestly presented here, is that the evidence showed that Hitt was guilty of contributory negligence in driving on the track under the circumstances set out in the statement. Mr. Justice Brewer, speaking for the Supreme Court of the United States, said: "It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. [Citing authorities.]" Ry. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642. The authorities sustaining this doctrine are collected in Ry. v. Martin, 61 Ark. 549, 33 S. W. 1070. Testing the evidence upon this principle, it cannot be said that the facts disclose a situation rendering it negligence for Hitt to drive onto the track. At a distance of 82 feet from the track he took the precautions required by law and common sense, and, neither seeing nor hearing anything to indicate a train was coming on the main track, and the way being made clear, and employés standing near, with better opportunity of seeing or hearing than he had, who would doubtless warn him, for humanity's sake alone, if no duty rested on them, not to cross in front of a rapidly approaching train, and after consulting with his son, the fatal drive began. While it is true the sheet of the wagon obstructed the vision on either side, and in a measure the hearing, yet they believed from their investigation the way was clear, and they continued to look ahead and listen. The electric arc light and the headlight of the freight engine, casting their rays on the crossing, might well tend to prevent the discovery of the light from the headlight of the approaching train. The situation confronting Mr. Hitt was not such as requires the court to say, as a matter of law, that it was per se negligence, under the circumstances, to attempt to cross the track. The ringing bell or sounding whistle would doubtless have given the warning of the approaching train, which was not otherwise apparent to Mr. Hitt or his son. These are facts from which fair-minded men may draw different conclusions as to whether the care exercised was proportional to the danger to be avoided, and such as the situation called for, from men of prudence and caution. When such are the facts of a case, then the question must be settled by a jury, under proper instructions.

2. The next matter assigned as error is the giving of the third and fourth instructions, which are set out in the statement of facts. The point urged against these instructions is that they displayed to the jury an expression

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