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(248 S.W.) 4. Embezzlement 44(2) - Showing of an, chase and mail him a cashier's check for the

effort at concealment not necessary to es amount due, and, when she did so, to deliver tablish intent.

the note and collateral to her. Instead of Where property has been wrongfully con- doing this, appellant procured a check for verted or appropriated it is unnecessary in or- the amount from Mrs. Grantham, payable o der to show intent to show some degree of the J. A. Gurley Company, which he owned concealment.

and managed, and upon receipt of said check 5. Embezzlement em36-intent may be infer delivered the note and bank stock to her. red from wrongful conversion.

The check was deposited to the credit of J. Where there has been a wrongful conver- A. Gurley Company, and checked out for comsion of a fund, criminal intent to embezzle may pany purposes, and not for a cashier's check, be inferred from the act itself.

payable to E. T. Foster. J. A, Gurley, as

vice president of J. A. Gurley Company, noAppeal from Circuit Court, Pulaski Coun- tified E, T, Foster of the collection by letter, ty; John W. Wade, Judge.

stating therein: J. A. Gurley was convicted of embezzle "As soon as we get a return on her check, ment, and he appeals. Affirmed.

will forward cashier's check to you." Lewis Rhoton and X. 0. Pindall, both of After the expiration of a month, failing to Little Rock, for appellant.

receive a remittance, E. T. Foster made writJ. S. Utley, Atty. Gen., and Elbert Godwin (ten request of appellant to forward cashier's and W. T. Hammock, Asst. Attys. Gen., for check, to which he received the following the State.

reply:

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HUMPHREYS, J. Appellant was indicted,

"J. A. Gurley Company, Investment Bankers. tried, and convicted of the crime of embez

"Little Rock, Ark. 3-1-21. zlement in the First division of the Pulaski

"Mr. E. T. Foster-Dear Sir: I have your circuit court, and as punishment therefor letter of February 17th and have carefully was adjudged to serve one year in the state noted contents of same. I am going to tell it penitentiary, from which judgment an appeal to you just as it is. I received Bank Stock has been duly prosecuted to this court.

just as they were sent from Memphis by reg.

istered mail, delivered same and bank check for The indictment, omitting formal parts, is collection. Now in the meantime my company as follows:

issued stock and it was up to me to take the "The said J. A. Gurley on the 1st day of majority of the stock or lose control of my May, 1922, in the county and state aforesaid, company, and in doing so I drew my bank balthen and there being over the age of sixteen ance below the $800.00 mark and it was conyears, and being the agent of E. T. Foster, and tinued below. I have about $5,000.00 in colhaving then and there in his custody and pos- lection that are past due and have been expectsession as such agent, as aforesaid, eight hun- ing to get at least a sufficient amount of this dred dollars ($800.00) gold, silver and paper to remit to you but have so far failed. I am money of a value of eight hundred dollars responsible for the rule not to allow any offi($800.00), the property of the said E. T. Foster, cer of our company to borrow any money did unlawfully, fraudulently and feloniously from the company, consequently I have not make away with and embezzle and convert to asked them to advance it to me. Now Mr. Foshis own use the said sum of eight hundred dol- ter, I am attaching a 10% note to $3,000.00 lars ($800.00) as aforesaid, without the consent worth of my stock and am leaving the time of the said E. T. Foster, against the peace and open,

I would like to have you make it six dignity of the state of Arkansas."

months, if entirely satisfactory to you. If you

will give me the time you prefer I will mail The facts pertinent to the questions pre- you a check for the interest. It has not and sented by this appeal for determination are is not my intention to misuse you in this matter as follows: E. T. Foster, at the instance of and if the above arrangement is not entirely appellant, loaned Mrs. Anna Grantham $800, satisfactory I want you to notify me at once taking her note due January, 1921, to which and will make a sacrifice somewhere and raise

the money for you, bank stock was attached as collateral se

"With best personal regards, I remain, curity. On December 8, 1920, appellant, as “Yours truly,

J. A, Gurley." vice president of J. A. Gurley Company a corporation, advised E. T. Foster, who was Foster returned the 10 per cent. note and then residing in Oklahoma City, Okl., that stock immediately, stating that he could not Mrs. Grantham wanted to know where she use them, and again requested appellant.to could pay the note, offering to handle the forward cashier's check for $800. Foster collection according to Foster's wishes. The was unable to get any further response or to note and attached collateral were in a lock collect the account from appellant. The combox in a Memphis bank. E. T. Foster di- pany subsequently went into the hands of a rected a friend to forward the note and col receiver. lateral to appellant by registered letter, and At the conclusion of the testimony appelwrote appellant to have Mrs. Grantham pur- lant requested the court to direct a verdict

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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of not guilty, and now insists that the court station of the testimony, there is nothing to committed reversible error in not doing so, show a felonious intent on his part, because for two alleged reasons: First, because there he made no concealment of the amount in is a variance between the indictment and the his hands belonging to E. T. Foster. We are proof! second, because there is no evidence unable to adopt appellant's construction of in the record showing any criminal intent the testimony, but, if his construction is coron the part of appellant in his transaction rect, it is not the law that some degree of with reference to the money referred to in concealment must be shown in order to es the indictment.

tablish a felonious intent where the property [1, 2] 1. The indictment charged appellant has been wrongfully converted or appropri. with embezzling $800.00, gold, silver, and ated. The case of Fleener v. State, 58 Ark. paper money of the value of $800, the prop- 98, 23 S. W. 1, cited by appellant in support erty of D. T. Foster. The proof shows that of his contention that the concealment of the the company which he owned and managed fund was necessary to establish a felonious collected $800, in the form of a check for E. intent on his part, is not in point. In that T. Foster from Mrs. Anna Grantham, received case there had been no misappropriation of credit therefor in the bank with which the the property. Upon this point the instant company did business, and expended same, case is ruled by Russell v. State, 112 Ark. contrary to instructions, for the private use 282, 166 S. W. 540, in which it was said and benefit of said company. The transac-that-, tion, in substance, amounted to the same

"One guilty of embezzlement cannot claim thing as if appellant had drawn the money immunity because he did not attempt to conout on the check and deposited it in the ceal the evidence of his crime." bank to his company's credit, thereby converting it to the use of his company, contrary [5] Where there has been a wrongful conto instructions. It is common knowledge that version of a fund charged, a jury may infer banks deal in money only when giving credit a criminal intent from the act itself, and to their depositors.

proof of the concealment of the fund is un

necessary. "The giving of credit is practically and legally the same as paying the money to the de

No error appearing, the judgment is at

firmed. positor and then receiving the money again on deposit. The intent of the parties must govern, and presenting a check on the bank with a passbook in which the receiving teller notes the amount of the check is sufficient indication of PATTERSON et al. v. ADCOCK et al. intent to deposit and to receive as cash."

(No. 150.) Morse on Banks and Banking, $ 569.

(Supreme Court of Arkansas. Feb. 12, 1923. The rule quoted from Morse was adopted Rebearing Denied March 19, 1923.) by this court in the case of Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916E, 1. Certiorarl 24-County judge in ordering 586. In that case Joe Skarda, cashier of the

election to restrain running of stock and enBluff City Bank, was indicted for receiving

tering order declaring law in effect acts in on deposit from Joe Janet $55 gold, silver,

ministerial capacity. and paper money, knowing at the time that

A county court or judge thereof in making the bank was insolvent. The proof showed an order for an election as to the question of

restraining the running of stock in the coun. that Joe Janet presented a check to the bank ty, in response to petition of voters for that for $70, receiving a credit for $55 and the purpose, as provided in Sp. Acts 1921, p. 1, and balance in cash. The court treated the credit in entering after the election the order declaras cash money, and held that there was no ing such law to be in effect, acts in a minisvariance between the indictment and the terial, and not in a judicial or quasi judicial, proof. The rule thus announced is not in capacity. conflict with the rule in Wilburn v. State, 2. Certiorari en 24–Certiorari will not lie to 60 Ark. 141, 29 S. W. 149, and the reiteration

correct ministerial act though performance of thereof in Starchman v. State, 62 Ark. 538, act involves discretion. 36 S. W. 910, Marshall v. State, 71 Ark. 418, Certiorari will not lie to correct a purely 75 S. W. 584, and Silvie v. State, 117 Ark. ministerial act even though the performance 108, 173 S. W. 857, but is in harmony with of the act involves discretion. them. The cases last cited enunciate the doctrine that the state must prove the character

3. Certiorari Om 5(1)-Review of county court's

judgment in stock law election contest must of money alleged to avoid a variance between

be by appeal, not by certiorari, unless judg. the indictment and the proof, and the Skarda

ment void on face. Case the doctrine that the state must prove

Assuming that the county court had juris. what amounts in fact to a transaction in diction to hear a contest over the result of a money of the character alleged.

stock law election held in pursuance of Sp. Acts [3, 4] 2. According to appellant's interpre- , 1921, p. 1, a judgment of that court sustaining

(248 S.W.) a demurrer to and dismissing a petition attack- order of the circuit court overruling a de ing the legality of the election was not void murter to the petition, defendants appeal. on its face, however erroneous it might have Judgment reversed, with directions to quash been, and a review of it must be by appeal as ( writ of certiorari. On motion to modify provided in Crawford & Moses' Dig. $ 2287, judgment. Motion overruled. and not by certiorari unless the judgment was void on its face,

B. E. Carter and J. M. Carter, both of

Texarkana, for appellants.
On Motion to Modify.

Louis Josephs, Jas. D. Head, and P. P. 4. Certiorari 70(9)-When judgment will Bacon, all of Texarkana, for appellees.

not be affirmed, though writ of certiorari quashed.

McCULLOCH, C. J. There is a special Though the Supreme Court will quash a stock law in Miller county, enacted by the writ of certiorari, seeking to bring up for re- General Assembly of 1921 (Special Acts 1921, view proceedings of a lower court, where ap- p. 1), which provides, in substance, that, peal, and not certiorari, is the proper remedy, whenever 25 per cent. of the electors of any it will not affirm the order of the lower court, township shall petition the county court for where such order was not a judgment but mere the privilege to vote on the question of re ly a ministerial act, such as an order of a county judge declaring a stock law to be in effect, straining stock in that township, “the county as provided in Sp. Acts 1921, p. 1.

court or judge thereof shall make an order

for an election in such township,” the elec5. Animals 50(2)-County court held not tion to be held at the general election if there

to have jurisdiction to hear stock law election be one within six months of the date of the contest.

filing of the petition, and, if not, at a special Since Sp. Acts 1921, p. 1, stating how the election to be held within 90 days after the special stock law election may be bad on the filing of the petition; that notice of the elecquestion of restraining stock, does not, nor does tion shall be given by publication in a newsany other statute, make provision for hearing of such election contest before any court, the paper, and that the election shall be held in county court has no jurisdiction to hear such accordance with the general election laws contest, the statutes and provisions of Const. of the state. The statute further provides 1874, dealing with subject of contests, relating that the judges of the election shall make solely to elections of public officers.

returns to the county election commissioners,

who shall canvass the returns and make and 0. Animals 50 (2) Circuit court held to

file a certificate of the result with the county have jurisdiction to hear stock law election contest; chancery court has jurisdiction when clerk, and publish the same for one insertion property rights involved.

in a newspaper having a circulation in the Where nothing is involved, except a con- township. It is further provided that, if a test of the result of a stock law election, the majority of the vote be in favor of restraincircuit court has jurisdiction, Const, art. 7, 8 ing stock in the township, “the county court 2, vesting all unassigned jurisdiction in that or judge thereof shall immediately after the court; but such jurisdiction is not exclusive, filing of said certificate by the county election since, where property or contractual rights are commissioners make an order restraining involved in the result of an election putting in such animals specified in the petition from force a statute, the chancery court has juris running at large in said township." diction to hear and determine such election contest, and to afford relief where the statute has of Miller county asking that an election be

A petition was filed with the county court not been properly put into force.

held in Sulphur township pursuant to the 7. Statutes em 49-Stock law election statute terms of said statute for the purpose of put

not invalid because it fails to provide rem- ting the law into effect in that township. edy for election contest.

An election was ordered by the county judge Sp. Acts 1921, p. 1, stating how a special or county court, and was held in accordance election shall be had on the question of re- with the order, the majority of the votes, as straining stock, is not invalid by reason of its certified by the election commissioners, being failure to provide a remedy for a contest of an election thereunder, so long as a remedy exists in favor of putting the law into effect in in any of the courts under the Constitution and the township. Immediately after the filing general laws of the state.

of the certificate by the election commission

ers appellees, who are residents and property. Appeal from Circuit Court, Miller County ; county court a petition alleging errors, ir

owners in Sulphur township, filed in the Geo. R. Haynie, Judge.

regularities, and fraudulent voting in the Proceeding by L. W. Adcock and others election, and alleging that a majority of the against S. C. Patterson and others, to ques. qualified electors voting at the election did tion the legality of an election. From annot vote in favor of putting the law into order of the county court sustaining a de operation. The appellants appeared in rė. murter to the petition, plaintiff's brought sponse to this petition, and asked that they certiorari to the circuit court.

From an

be made parties for the purpose of resisting For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

it, which was done. The appellants demurred from all judgments of the county court, and to the petition in the county court on the an appeal might have been prosecuted under ground that there was no authority for the that statute. Crawford & Moses' Digest, & county court to hear a contest of the elec- 2287; Missouri Pacific R. Co. v. Conway tion, and the county court sustained the de-County Bridge District, 134 Ark. 292, 204 S. murrer and entered an order in accordance W. 630. with the statute restraining the running at It follows, therefore, that the judgment of large of stock in the township. Appellees the circuit court is erroneous, and the same is then filed their petition in the circuit court reversed, with instructions to sustain the of Miller county praying for a writ of cer- demurrer of appellants and quash the writ. tiorari to bring up and quash the order of It is so ordered. the county court ordering the election, and entering the order restraining the running

On Motion to Modify. at large of stock. They alleged in their pe

[4] Counsel for appellants insist that the tition that the order of the county court for directions to the lower court should be to the election was void for the reason that 25 quash the writ of certiorari, which brought per cent. of the electors of Sulphur township up for review the proceedings in the county had not petitioned the court, and that the court, and affirm the judgment of the county election was void for the reason that notice court in accordance with the rule of practice had not been published in the manner pre- announced in the case of Bertig Bros. v. Gin scribed by the statute.

Co., 147 Ark, 581, 228 S. W. 392, In the case Appellants appeared and demurred to the referred to there was a judgment of the cirpetition, and the court overruled the demur- cuit court, and after reviewing it on certio rer, and appellants stood upon the demurrerrari we found that the judgment was valid without pleading further, whereupon the cir- on its face, and we not only quashed the writ, cuit court entered a judgment quashing the but affirmed the judgment. The difficulty, orders of the county court, and an appeal however, in the present case, is that, accordhas been prosecuted from that judgment.

ing to the views expressed in the original [1] The county court or the judge thereof opinion, there was no judgment of the counin making the order for the election and en-ty court to affirm. There was merely the tering the order pursuant to the election order of the county court, or county judge, acted ministerially, and not in a judicial or made in a ministerial capacity, and not in quasi judicial capacity. Thompson v. Trice, any judicial or quasi judicial capacity. All 145 Ark. 143, 223 S. W. 367; Capps v. Jud- that can be done is to quash the writ of sonia-Steprock Road Improvement Dist. certiorari, as was directed in the former opin(Ark.) 242 S. W. 72. The order restraining | ion and judgment of this court. the running at large of stock was a mere

[5] It is insisted, further, that we should entry of the result of the election as certified decide whether or not the county court had by the election commissioners, and was like jurisdiction to hear the contest, and, if not, wise ministerial in its nature.

where the jurisdiction was vested. The stat[2] Certiorari will not lie to correct aute under which the proceedings were had purely ministerial act, even though the per- in the organization of the district makes no formance of the act involves discretion. provision for a contest before any court or Pine Bluff Water & Light Co. v. City of Pine other tribunal, nor is there any other statBluff, 62 Ark. 196, 35 S. W. 227; McConnell ute which provides for a contest of an elecv. Ark. Brick & Mfg. Co., 70 Ark. 568, 69 S. tion of this kind. The provisions of the Con. W. 559; State ex rel. v. Railroad Commis-stitution of 1874 and all of our general statsion, 109 Ark. 100, 158 S. W. 1076; Hall v.

utes on the subject of contests of elections Bledsoe, 126 Ark. 125, 189 S. W. 1041.

relate solely to contests of elections of public [3] The statute contains no provision con- officers. It is clear, therefore, that, since ferring upon the county court authority to there is no statutory provision for hearing a hear a contest over the result of the election, contest of this sort in the county court, such but, if that court possesses jurisdiction to jurisdiction cannot be there exercised. In hear such a contest-which we do not deem the former opinion we refrained from passing it necessary to decide at this time—a review on that question, but we deem it proper now of the judgment in such a contest must be to extend the opinion by expressly holding by appeal, and not by certiorari, unless the that there is no authority for such a contest judgment is void on its face. Pritchett v. in the county court. Road Improvement District, 142 Ark. 509, The further inquiry presents itself as to 219 S. W. 21. Conceding, as before stated, where the jurisdiction rests. In Harrington that the county court had jurisdiction to hear v. White, 131 Ark. 291, 199 S. W. 92, we pera contest, the judgment of that court sus- mitted the exercise of jurisdiction in such a 'taining the demurrer and dismissing the pe- case by the chancery court, without deciding tition was not void on its face, however er- whether the jurisdiction should properly roneous it might have been. The general have been exercised by the circuit court or

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(248 S.W.) diction under the Constitution is vested in from office, and appointed one of defendants as the circuit court (article 7, § 11, Constitution grand master, that defendants were wrongfully of 1874), and it has been held by this court interfering with plaintiffs in the exercise of that jurisdiction in election contests not their duties, particularly with reference to the otherwise provided for fall within the juris- next biennial meeting, and that such order diction of the circuit court under this provi- was void, a decree finding that the next grand sion of the Constitution (Payne v. Rittman, granting an injunction, held final, where not ap

lodge meeting had been fixed as alleged, and 66 Ark. 201, 49 S. W. 814; Whittaker v.

pealed from within six months.
Watson, 68 Ark. 555, 60 S. W. 652; Sumpter
v. Duffie, 80 Ark, 369, 97 S. W. 435).

2. Appeal and error Om781(5)-Question as to [6] It follows, from these decisions, that

interference with officers of fraternal society where nothing is involved, except a contest of

held moot after final decree not appealed

from. the result of an election, the circuit court has jurisdiction. This, however, does not exclude fraternal society to "restrain interference by

In a suit by a grand lodge officer of a the jurisdiction of the chancery court under third persons also claiming the right to the office, all circumstances; on the contrary, we are where a final decree adjudicating the legality of the opinion that, where property or con- of the next biennial meeting of the grand lodge tractual rights are involved in the result of had been rendered, and plaintiff had been rean election putting into force a statute like elected at such meeting as grand master and the one involved in this inquiry, the chancery his term had expired, litigation as to the court has jurisdiction to hear and determine validity of an order of a subcommittee of manthe contest, and to afford relief where the agement deposing plaintiff from office, and apstatute has not been properly put into force. pointing defendants for the remainder of the 8 Standard Proc. p. 16; Red River Furnace term, and relating to interference with plaintiff

was moot.
Co. v. Tenn. Central R. Co., 113 Tenn, 697, 87
S. W. 1016; Pickett v. Russell, 42 Fla. 116,
28 South. 764; Wilton v. Pierce County, 61

Appeal from Jefferson Chancery Court;
Wash. 386, 112 Pac. 386. It would be pre-

Jno. M. Elliott, Chancellor. mature to discuss now the limitations upon Suit by Thomas L. Newton and others the exercise of this jurisdiction, but we against J, I, Blakely and others for an inmerely content ourselves by deciding that junction. Decree for plaintiffs, and defendeither the circuit court or the chancery court ants appeal. Appeal dismissed. has jurisdiction under certain circumstances

Scipio A. Jones, L. J. Brown, and T. J. to hear and determine a contest like the one involved in this case.

Price, all of Little Rock, and R. S. Bowers, [7] We do not think that the validity of

of Malvern, for appellants. the statute authorizing the formation of the

J. F. Jones, of Pine Bluff, W. Leon Smith, district is affected by the fact that the statute of Blytheville, and Rowell & Alexander, oť

Pine Bluff, for appellees.
makes no provision for a contest of the elec-
tion. If a remedy exists in any of the courts
under the Constitution and general laws of

MCCULLOCH, C. J. The Grand United the state, the special statute is not invalid Order of Odd Fellows in America is a frater. by reason of its failure to provide a remedy. nal society composed of negroes, and the

The motion to modify the judgment of this branch of the organization in Arkansas is court is overruled.

incorporated under the laws of this state under the name of “District Grand Lodge No. 11 of the Grand United Order of Odd Fellows in America.” The Arkansas branch

of the order bears allegiance to the national BLAKELY et al. V. NEWTON et al.

organization and is subject to its constitu(No. 198.)

tion and by-laws. (Supreme Court of Arkansas. March 5, 1923.

The District Grand Lodge meets biennial. Rehearing Denied April 2, 1923.)

ly, and at the meeting at Hot Springs in

August, 1919, T. L. Newton, one of the ar 1. Appeal and error E 344—Decree enjoining pellees, was re-elected district grand master, Interference with grand officers of fraternal and the other appellees were elected to othsociety held final,

er offices in the District Grand Lodge. The In a suit by the officers of the grand lodge next meeting was held in the city of Pine of a fraternal society to restrain interference Bluff in August, 1921, and Newton was rewith them by defendants, who also claimed to elected, but according to a special plea filed be grand officers, plaintiffs alleging a regular since the present case came here on appeal re-election at a biennial grand lodge meeting Newton since his election ceased to be grand for a two-year term, that a resolution was adopted at such meeting fixing the next bien- master and another, one Taylor, has been nial meeting, that by order the subcommittee elected, or appointed, in his stead. of management on appeadı found the plaintiff Shortly after the Hot Springs meeting at grand master guilty of charges, removed him which Newton was elected district grand

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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