and praying that the cause be transferred to equity and that the contract be reformed. The cause was transferred, apparently without objection from appellee, and proceeded to final decree, which was in favor of appellee for recovery of the amount of the price of the supplies and service as stipulated in the contract. The allegations in the answer and crossbill are that appellee's agent falsely represented to the cashier of appellant bank that the contract provided for furnishing the service and supplies for a period of two years only, and that it contained merely a privilege or option for extension of the service upon notice by appellant. It appears from the testimony that the order for the supplies was secured by appellee's agent, a Mr. Woodward, by personal | solicitation at appellant's place of business in the city of Fayetteville, the cashier of the bank being the one with whom the negotiations were conducted and who signed the contract. The cashier testified that Woodward approached him on the subject at a very busy moment, and that he understood from Woodward that the contract covered a definite period of two years, with the privilege of renewing, and that Woodward did not inform him that the contract contained a provision for an automatic renewal for a period of three years unless notice to the contrary was given. He stated that, being very busy at the time, he signed the contract without reading it, and did not discover the clause in the contract about giving notice of withdrawal for nearly two years after the contract was signed. On being asked to state Woodward's language, he said he was unable to do so, but "got the impression and was led to believe" by Woodward that such was the effect of the contract. Woodward was not introduced as a witness, and the only testimony adduced by appellee was by one of its officers in Chicago, who filled the order by shipping the supplies to appellant, and conducted the correspondence with appellant. This witness testified that in a letter written to appellant, dated December 20, 1916, acknowledging receipt of the contract, there was a statement to the effect that the contract was to continue in force for "the further period of three successive years on same condition unless you notify us to the contrary on or before February 1, 1918." The cashier testified that he had no recollection of ever having received that letter, and did not find it on his files. We are of the opinion that the chancellor was correct in refusing to reform the contract and in rendering a decree in appellee's favor for recovery of the amount stipulated in the contract as written. Appellant is in the position of asking that the contract be reformed on proof of fraudulent misrepresentation con cerning its contents, and this falls within the rule that the ground for relief must be established by clear and convincing evidence. Mitchell v. Kempner, 84 Ark. 349, 105 S. W. 880; Welch v. Welch, 132 Ark. 227, 200 S. W. 139. The evidence in the case is not sufficient to establish, to the degree required by the rule announced above, fraudulent misrepresentations concerning the contents of the contract. The only witness introduced by appellant on this subject does not undertake to state the language used by Woodward when the contract was obtained. The witness merely undertook to state what his impression was at the time he entered into the contract. The statement of the witness was little, if any, more than a statement of his conclusion, and it falls far short of establishing false representations to a degree that is clear and convincing. The witness introduced by appellee testified that he wrote a letter to appellant on receipt of the contract calling attention to the fact of this automatic renewal feature of the contract. This was denied, but it was a question for the chancellor to determine, and we cannot say that the finding of the chancellor was unsupported by the evidence. This is not a case where it is shown that a definite and specific misrepresentation was made concerning the language of the contract, or that there was any superior knowledge on the part of appellee's soliciting agent as to the proper interpretation of the contract. We are therefore of the opinion, as before stated, that the evidence is not sufficient to justify a reformation of the contract. Decree affirmed. WOOD V. STATE. (No. 225.) (Supreme Court of Arkansas. March 12, 1923.) 1. Indictment and information 128, 132 (6)— Counts charging commission of crime and being "accessory after the fact" should not be joined, and election is required. While one may be charged with committing a crime and being an accessory before the fact in different counts in the same indictment, in which case the state need not elect between them, counts charging defendant with committing a crime and being an accessory after the fact, which is a second crime committed by one concealing a crime of which he had full knowledge, or harboring and protecting the criminal (Crawford & Moses' Dig. § 2310), should not be joined, and the state should be compelled to elect between them. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accessory after the Fact.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) 2. Criminal law 970(6)-Refusal to compal state to elect between counts held not ground for arrest of judgment. Where no testimony was offered in support of a count charging defendant with being an accessory after the fact, and the jury was instructed to consider only the question of his guilt of the crime charged in another count, no prejudice resulted from the court's refusal to compel the state to elect between the counts, and a motion in arrest of judgment was properly overruled. SMITH, J. Appellant was arraigned on an indictment containing two counts. The first count charged that he had robbed E. J. Mason. The second count charged that Jim Wise had robbed Mason, and that defendant had concealed the crime and had harbored and protected the criminal, thereby becoming an accessory after the fact. There was a demurrer to the indictment, and a motion to require the state to elect, both of which were overruled, and excep 3. Criminal law 369 (2)-Testimony as to tions saved. The testimony was directed endefendant's arrest for similar offense on pre-tirely to an effort to prove the allegations vious occasion, and articles found in his room, held incompetent. In a prosecution for robbery, a police officer's testimony as to defendant's arrest on a charge of robbery occurring 5 months previous, a conversation with him while under arrest, and a search of his room, in which were found a hat belonging to him, a mask, pistol, and sand bag, held incompetent, though the court instructed the jury not to consider it unless they found that such articles were possessed by defendant for the purpose of robbery and had something to do with the robbery, concerning which the witness testified. 4. Criminal law 1166(1)-Refusal to require indorsement of witness' name on Indictment held not reversible error. Refusal to require the state to indorse the name of a witness on the indictment, as required by Crawford & Moses' Dig. § 3010, is not reversible error, in the absence of a showing that he testified before the grand jury or introduced any issue of fact which took defendant by surprise. 5. Criminal law 419, 420(10)-Admission of police officer's testimony, as to prosecuting witness' statement that he recognized defendant as one who robbed him, held error. In a prosecution for robbery, admission of a police officer's testimony that, when prosecuting witness returned to the city where he lived, he told the witness that he recognized defendant, who also lived there, as one of the men who robbed him, held error. 6. Criminal law 814(17)-Instruction on sufficiency of testimony to support conviction, where state relies wholly on circumstantial evidence, properly refused. Where the state did not rely wholly on circumstantial evidence, an instruction as to the sufficiency of testimony to support a conviction in such case was properly refused. Smith, J., dissenting in part. Appeal from Circuit Court, Mississippi County; R. E. L. Johnson, Judge. Clint Wood was convicted of robbery, and he appeals. Reversed and remanded. of the first count; and no testimony was offered in support of the second count. At the conclusion of all the testimony, and upon the submission of the case to the jury, an instruction was given in which the jury was advised that the state elected to stand on the first count alone, and did not ask a conviction upon the second count. Defendant was found guilty on the first count, and his sentence fixed at five years in the penitentiary. He thereafter filed a motion in arrest of judgment, in which he again called into question the sufficiency of the indictment because it contained the two counts. [1] These counts should not have been joined, and the court should, at the beginning of the trial, have compelled the state to elect, because the offenses charged are not the same, and there is no statute authorizing them to be joined. One may be charged with having committed a crime himself, and as being an accessory before the fact to its commission, in different counts of the same indictment, and no election in such cases will be required; but this is true because the crime charged is the same and the counts merely allege different methods by which it was committed. Harper v. State, 151 Ark. 338, 236 S. W. 263; Gill v. State, 59 Ark. 423, 27 S. W. 598. [2] When one becomes an accessory after the fact, a second crime is committed. It is a crime which is committed by one who has full knowledge that a first crime has been committed, and who, with such knowledge, conceals it from the magistrate, or harbors and protects the person charged with, or found guilty of, the crime. Section 2310, C. & M. Digest; Joyce on Indictments, § 394. But inasmuch as no testimony was offered in support of the second count, and the jury was instructed to consider only the question of defendant's guilt of the first count, no prejudice resulted, and the motion in arrest of judgment was properly overruled. [3] Defendant assigns as error the action of the trial court in admitting, over his obM. P. Huddleston, of Paragould, for appel-jection, the testimony of Charles Craig, chief lant. of police of Jonesboro, as to an arrest of J. S. Utley, Atty. Gen., and Elbert God- defendant on a charge of robbery, occurring win and W. T. Hammock, Asst. Attys. Gen., in April, 1922, five months previous to the for the State.. robbery of Mason, and detailing a conver For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be considered for no purpose, unless the jury found that these articles were possessed by defendant for the purpose of robbery, and unless they further found that they had something to do with the robbery at Jonesboro about which Craig had testified; and the court limited the testimony as requested. But, as thus limited, it was not rendered competent, for the consideration of the testimony involved a determination by the jury of the question whether defendant had anything to do with the robbery at Jonesboro, a circumstance which the state had no right to prove for any purpose. sation he had with defendant while he had [ court to instruct the jury that it was to him under arrest. Craig testified that while he had defendant under arrest he searched his room and found an old hat doubled up in the pocket of a coat which defendant admitted was his. He also found a mask in one of the pockets of the coat, and a pistol under the pillow on the bed, and in the pocket of one of the doors of defendant's automobile he found a sand bag, but defendant denied knowing that the sand bag was in the car. Craig further testified that a sand bag was an instrument used by holdup men in cases of robbery, the victim being struck with it and rendered unconscious, without being killed. Craig exhibited to the jury the hat, mask, and sand bag referred to. We think no testimony should have been admitted in regard to the commission of the first robbery, as there was no relation whatever between it and the robbery of Mason; and the majority think, for the same reason, that testimony should not have been admitted in regard to the hat, mask, and sand bag. | In 23 R. C. L. p. 1157, it is said: [4, 5] The court permitted the state to introduce and examine Ed Carey, whose name was not indorsed on the indictment. We considered this question in the recent case of Cole v. State, 245 S. W. 303, and held that the court should, on the application of the accused, require the state to indorse the names of the witnesses on the indictment, or to furnish the accused a list thereof. In that case, as in this, there was no showing that the "On the trial of one indicted for robbery, as witness in question had testified before the in the case of other criminal prosecutions, the grand jury, and we held that section 3010, general rule is that evidence is not admissible C. & M. Digest-the statute requiring the which shows, or tends to show, that the accused names of witnesses examined before the has committed a crime wholly independent of grand jury to be indorsed on the indictthe offense for which he is on trial. Under ment-was directory; and in this case, as in this rule, therefore, evidence of another sep-that, no effort was made to show that the arate and distinct robbery, committed the pre- witness in question introduced any issue of ceding night, by the defendant upon another person, in the same neighborhood, in much the fact which took the defendant by surprise. same way, is not admissible in evidence against one who is being tried for robbing a pedestrian on the street in a city by pointing a pistol at him. Such is not an exception to the rule that evidence of matters other than those charged in the information are inadmissible. It is only when the testimony as to the separate of fense will have some tendency to prove the offense charged in the information that it is admissible. It must therefore have some logical connection with the offense charged." In the opinion of the writer the testimony about finding the mask and sand bag was competent, for the reason that the instruments mentioned are those of criminals, used in the commission of crime, and proof of their possession tended to show that defendant was equipped and prepared to commit the crime charged. It was a circumstance of probative value on the question of identity, inasmuch as the defense offered was that defendant had not been sufficiently identified as the robber, the robbers being masked at the time the crime was committed; although there was no proof that a sand bag had been used in robbing Mason. In admitting the testimony of Craig, the prosecuting attorney said he would ask the The court permitted Craig to testify that when Mason returned to Jonesboro, where he lived, Mason told him he recognized defendant, who also lived in Jonesboro, as one of the men who had robbed him. This was error. In the case of Rogers v. State, 88 Ark. 451, 115 S. W. 156, 41 L R. A. (N. S.) 857, the syllabus reads as follows: "In a prosecution for robbery, the prosecuting witness cannot be corroborated by proof that two hours after the robbery he stated to a police officer that defendant committed the robbery, nor is such testimony admissible as part of res gestæ." [6] An instruction was asked on the subject of the sufficiency of testimony to support a conviction, where the state relied wholly on circumstantial evidence to secure the conviction, but the court refused to give it, and an exception was saved. A sufficient reason for refusing to give this instruction was that the state did not rely wholly on circumstantial evidence. Nordin v. State, 143 Ark, 364, 220 S. W. 473. For the errors indicated, the judgment will be reversed, and the cause remanded for a new trial. (248 S.W.) SUMMERS v. BROWN. (No. 226.) (Supreme Court of Arkansas. March 12, 1923.) 1. Taxation -855-Sale of forfeited land for nonpayment of taxes not void because taxes were improperly reduced, and tax deeds founded thereon were valid. asked said court to indorse the following resolution: "Came N. B. Nelson, Lon Slaughter and W. R. Kendrick, the board of equalization, and presented a resolution asking the approval and indorsement of their action in reducing the assessment of all the real and personal property of St. Francis county as returned by the assessment for 1914 on each list, and tract of land 50 per cent. of its present valuation." Where the 1913 assessment of lands which was to be extended in 1914 was unlawfully reduced by a county board of equalization and a According to the record of the proceedings quorum court, forfeiture of the land for non- of the quorum court, the above resolution payment of taxes in 1914 based on the assesswas adopted, and five mills was levied on ment so reduced was not void because the as-one-half of the assessed valuation of the real sessment was illegal and tax deeds in pursu- and personal property of the county. ance of a sale for such forfeiture were valid, since the extension of a smaller amount than might have been extended was merely an irregularity and favored, rather than injured, the former owner. 2. Taxation [2] The trial court canceled the tax deeds in question upon the theory that the forfeiture for the nonpayment of taxes for the year 1914 was void because the taxes were levied and extended against the lands for only 50 per cent. of their assessed value instead of their assessed value. The trial court in do 470-Reduction of assessments of real estate by county board of equalization and quorum court held illegal. Under the statute, a county board of equali-ing this agreed with the contention of appelzation had only power to equalize assessments on real estate in 1913, and the assessment so equalized by them applied in 1914, and a reduction of the assessment in 1914 by the board and a quorum court, which had no power to as sess or approve an assessment of values for taxation, was illegal. lees to the effect that the levy and extension of the taxes on said lands were void because based upon an attempted blanket reduction of the assessed valuation of the lands in the county by the quorum court at the instance of the equalization board. It is true that the equalization board had no right at that time under the statute to make a blanket reduction of the assessments of lands in the county. Saline County v. Hughes, 84 Ark. Action by Alfred Brown against C. D. Sum-347, 105 S. W. 577. In fact, the equalization mers. From a decree for plaintiff, defendant appeals. Reversed and remanded, with di Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor. rections. board had no right to equalize assessments of real estate at all in 1914. They only had the right to equalize assessments in 1913, and the S. S. Hargraves and John M. Prewett, both assessment made by an assessor and equalof Forrest City, for appellant. ized by them in 1913 held good for the year Mann & Mann, of Forrest City, for ap- 1914. It may also be observed that the quopellee. rum court had no authority whatever to assess or approve an assessment of values for the purposes of taxation. The fact, however, that the taxes were extended by the clerk against the lands upon a 50 per cent. assessed valuation directed by the combined action of the equalization board and quorum court did not have the effect of rendering the forfeiture of that year void. The right to extend taxes levied upon a larger valuation neces HUMPHREYS, J. [1] The issue presented and determined by the trial court in this case involved the vaildity of two tax deeds executed by T. C. Merwin, county clerk of St. Francis county, on June 20, 1917, to appellant, pursuant to the certificates of purchase issued on the 14th day of June, 1915, under a sale of the lands described in the deeds, for the taxes of 1914. The lands are in section | sarily included the right to extend the taxes 32, township 6 west, range 2 east; one deed upon a less or smaller valuation. The extencontaining the S. W. 4 N. E. 4, assessed in sion of a smaller amount than should have 1913 at $160, and the other including the W. been extended was an irregularity merely 1⁄2 of the N. W. 4 N. E. 4, assessed in the and favored rather than injured appellees. same year at $50. There was no assessment According to the regular assessment against in 1914, the assessment of 1913 covering each the lands for 1914, a larger sum total might year and holding good in 1914. In 1914 the have been levied thereon for general, state, clerk extended taxes against said S. W. 4 and county purposes than was levied, and a N. E. 4 upon an assessment or valuation of greater amount for such purposes might have $80 instead of $160, and against the W. 2 of been extended against the property by the the N. W. 4 N. E. 4 upon an assessment or clerk than was extended. No substantial valuation of $25 instead of $50. This was right of the appellees was invaded by either done because the equalization board of the the levy or extension of the taxes. As we county appeared before the quorum court and understand, no complaint is made that imFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes McMillen & Scott, of Little Rock, for appellee. proper amounts were levied or extended against the lands for school purposes. The valuations fixed by the assessor in 1913 were used as a basis for levying and extending the school taxes. McCULLOCH, C. J. The Director General of Railroads instituted against the City Fuel Company, in the circuit court of Pulaski county, two suits, which were consolidated and tried together, to recover freight charg The forfeiture of the lands for the nonpayment of taxes for 1914 was not void because the taxes were levied and extended against them on the 1913 and 1914 assessment, im-es on 21 carloads of material shipped during properly and irregularly reduced by the equalization board, and it was error to cancel the two tax deeds based upon the forfeiture. The decree is therefor reversed, and the cause is remanded, with directions to enter a decree sustaining the tax titles and upholding the deeds evidencing same. DAVIS, Director General of Railroads, v. CITY FUEL CO. (No. 214.) (Supreme Court of Arkansas. March 12, 1923.) 1. Carriers 194-Buyer of materials consigned by sellers under contract to one to whom buyer resold held not liable for freight not collected from consignee. Where materials were shipped by the sellers to a government quartermaster under a contract between the sellers and the buyer whereby deliveries were to be made f. o. b. at point of shipment and consigned to the quartermaster to whom the buyer had resold, and from whom the carrier failed to collect the freight which under the first contract of sale was to be paid by the buyer at destination, the sellers did not act as agents for the buyer, who was therefore not liable for the freight. 2. Carriers 194-Buyer to whom material consigned but diverted with carrier's consent while in transit to a subsequent purchaser or another destination held not liable for freight. Where material sold was resold while in transit on a consignment to the buyer, and with the carrier's consent was diverted to a subsequent buyer at another destination, who failed to pay the freight, the first buyer, the original consignee, was not liable for the charges, since the consignment became in effect a single consignment from the original point of origin to the last-named destination, the charges for which could not be split. Smith, J., dissenting. the year 1918 from various points in and outside of this state to Camp Pike. The material was purchased by the fuel company from vendors at the several points of shipment, the terms of the purchases being f. o. b. at those points, and the fuel company resold the same to the quartermaster at Camp Pike. All of the carloads, save 3, were shipped by the original vendors consigned to the quartermaster, to whom delivery was made by the carrier without collecting the freight charges. The bill of lading in each instance named the original vendor as consignor, and the quartermaster as consignee. The three cars mentioned were consigned by the original vendors to the fuel company at Little Rock; the latter resold them while in transit, and the consignments were diverted to the quartermaster at Camp Pike. The trial of the consolidated cases in the circuit court resulted in judgments against the fuel company, but the court granted new trials, and this is an appeal from the order, the statute, that, "if the order be affirmed, a stipulation being filed, in accordance with judgment absolute shall be rendered against the appellant." Crawford & Moses' Digest, § 2129. The contention of the plaintiff is that "Although the City Fuel Company was not named on the billing, either as consignor or consignee, it had sold the goods to the consignee named, and, being the owner of the goods, had caused them to be transported to Camp Pike, consigned to the quartermaster for the purpose of making delivery of its goods to the consignee, it became liable for the transportation charges." * 串 ** The law on this subject which is, in a large measure, controlling in the present case was stated in Railroad v. Gramling, 97 Ark. 353, 133 S. W. 1129, as follows: The "The owner of goods under whose direction they are shipped is liable for the freight. consignee who actually receives the goods becomes responsible for the carriage charges on Appeal from Circuit Court, Pulaski Coun- the ground that the goods are delivered to him ty; A. F. House, Judge. Consolidated actions by James C. Davis, Director General of Railroads, against the City Fuel Company. There were judgments for plaintiff, and new trials were granted, and plaintiff appeals. Affirmed, and judgment rendered for defendant. upon the condition that he will pay such charges; and from his acceptance of the goods the law implies a promise upon his part to pay such charges. But where the consignee is only the agent of the owner, and this fact is known to the carrier, such contract to pay the freight by the consignee will not be implied. * The carrier has the right to look to the consignor or owner of the goods for the payment E. B. Kinsworthy and R. E. Wiley, both of of the freight, and he may waive his lien upon Little Rock, for appellant. the goods by delivering them to the consignee For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |