and for other purposes." Section 1 of the act defines the boundaries of the highway and bridge district and creates and names it. Section 2 provides that the district shall have power to construct and maintain 60 miles of free public highways leading from Texarkana to the point on the Red river at which it may deem it advisable and suitable to construct a bridge over and across such river, etc. Section 3 appoints the commission of the district, and provides for the appointment of their successors. Section 5 provides that the board of commissioners shall have the power to build a highway from Texarkana to such point on the Red river as they may select to build a bridge over the river in connection with the highway, and that the board "shall also have power to build a bridge over said Red river at such point suitable in all respects for footmen, vehicles, railroads, and other public utilities, if, in the opinion of the said commissioners, it may be deemed necessary under this act." Suit was brought to restrain the district from proceeding with the construction of highways under the act without the construction of a bridge over the Red river, and the district contended that section 5 of the act vested in it discretion to construct the highways without also constructing the bridge. Held, that such was not a proper construction of the act, the discretion vested in the commission and district by section 5 relating only to the kind of bridge which might be constructed, and whether it should be made available to railroads and other public utilities, and not to whether such bridge might be constructed at all, so that, if the construction of both highways and bridge was impossible within the cost limit of the act, the improvement must fail.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig.

90.]

Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor.

Suit by George T. Conway against the Miller County Highway and Bridge District. From a decree sustaining the demurrer to the complaint, except as to one paragraph, as to which the demurrer was overruled, plaintiff appeals. Reversed and cause remanded, with directions.

William H. Arnold, of Texarkana, for appellant. M. E. Sanderson, of Texarkana, and E. B. Kinsworthy and T. D. Crawford, both of Little Rock, for appellee.

SMITH, J. Appellant brought suit to restrain the Miller county highway and bridge district from proceeding with the construction of certain highways pursuant to plans adopted by said highway and bridge district under the purported authority of Act No. 153 of the Acts of the General Assembly of 1915. It was alleged in the complaint: That the said district was formed for the purpose of building a bridge across Red river at a point to be selected by the commissioners between the towns of Fulton and Index, and to build a highway leading to said bridge, and other highways in connection therewith. That by the terms of said act it is provided that:

"The improvements herein undertaken shall not exceed 15 per cent. of the value of the real property of said district, subject to improvement district assessments as ascertained by the state and county assessments."

That the real property of said district amounts to only $4,000,000, so that the district is authorized to undertake no improvement that will cost exceeding $600,000, and the bridge across Red river would cost almost that sum, and after building it the district would have no funds with which to build the highways which by the terms of said act it is required to build. That said improvement was intended to be a unit, and, there being no funds with which it can be constructed as such, the said district has no right to proceed with the construction of any part of said improvement. That nevertheless the commissioners have formed plans for the building of a system of highways and have abandoned the idea of constructing such a bridge. There were allegations in the complaint questioning the authority of the commissioners to construct the highways because the diversity of the public interests of said district was such that the roads could not be a single improvement. The fifth paragraph of the complaint alleged that by the terms of said act the interest upon the bonds authorized to be issued is made a part of the cost of the improvement, but the commissioners have resolved to disregard that limitation and to issue bonds for the full amount of 15 per cent. of the assessed value of the real property in the district, and will so issue bonds unless restrained by the order of the court. The court below sustained the demurrer to all of the complaint except the fifth paragraph, as to which the demurrer was overruled, and this appeal has been prosecuted from that decree.

[1, 2] As we view this act, it is now necessary to decide the question only of the unity of the improvement authorized by the act of the General Assembly above mentioned. The title of this act is as follows:

"An act to lay off and establish a part of district for the construction of public highways Miller county into a public highway and bridge from the city of Texarkana to the various localities in the territory hereinafter described, and for the construction of a public bridge in connection with such highways over and across the Red river between Fulton and Index, and to organize and incorporate a highway and bridge district, and to provide for levying assessments and collecting the same, and for other purposes."

The provisions of the act, which are material upon the consideration of this question, are as follows:

Section 1 of the act defines the boundaries of the district and provides that the territory therein included "be and the same is hereby created and constituted a highway and bridge district and said district shall be known as the 'Miller County Highway and Bridge District.'"

Section 2 of the act provides that the said district shall have the power to construct and maintain 60 miles of free public highways leading from the city of Texarkana to

on this appeal questions only the action of the court in refusing to give certain instructions asked by him.

[1] The first of the instructions so refused declared the law to be that the indictment

in the case was a mere accusation, or charge, against the defendant, and raised no presumption of his guilt, and was no evidence of guilt, and that the jury should not permit themselves to be influenced to any extent because, or on account of, the indictment. This instruction, of course, correctly declares the law, and the court below might very well have given it, but it does not appear that this failure is error calling for the reversal of the case, inasmuch as the court gave the following instruction, numbered 4:

"(4) The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty as charged in the indictment, and this presumption of innocence should continue and prevail in the minds of the jury until they are satisfied by the evidence beyond a reasonable doubt of his guilt." Ross v. State, 92 Ark. 481, 123 S. W. 756.

"(2) The court instructs the jury that the facts relied upon to show the defendant's guilt must not only be consistent with and point to his guilt, but they must be inconsistent with his innocence; and, if such facts are susceptible of two interpretations, one of innocence and one of guilt, the interpretation of innocence must be accepted in the defendant's behalf, and you will acquit."

This instruction, and others of a similar character, are usually given in cases where it is sought to prove the guilt of the defendant as an inference to be drawn from facts and circumstances established by the proof; and, while such an instruction is no doubt proper in cases of that kind, it cannot be said that it was error to refuse to give it here. This is true because this case is a swearing match, and according to the proof on the part of the state, appellant was guilty as charged, while according to the testimony in his behalf, he acted in his necessary self

defense.

[3] An instruction, numbered 3, asked by appellant, was also refused. This instruction dealt with the subject of reasonable doubt, but the law of that subject was covered in other instructions given by the court. And the same thing may be said of appellant's instruction numbered 4, which dealt with the question of the presumption of in

nocence. The court is not required to charge the law upon any question in every possible manner in which a correct statement of it can be prepared by counsel, but it is sufficient if the law be so declared that the jury may not be in doubt as to the law of that question, as applied to the facts of that case. [4] It is earnestly insisted that error was committed in the refusal to give instruction numbered 13, which reads as follows:

"(13) The court tells you that, while mere words, however opprobrious, will not justify

"(8) If you believe from the evidence, or if doubt, that the alleged assault was committed by the defendant while he was acting under the influence of passion and excitement, caused by a provocation apparently sufficient to make the passion irresistible, you will acquit the defendant of assault with intent to kill."

This instruction numbered 8 is an exact copy of the instruction numbered 8 referred to in the Coulter Case. In the Coulter Case it was held not to have been error to refuse

instruction numbered 8 because instruction numbered 13 was given; while here instruction numbered 8 was given and instruction

numbered 13 was refused.

[5] We think the instruction numbered 8 is a more accurate declaration of the law than instruction numbered 13; and, inasmuch as No. 8 was given, it was not error to refuse No. 13. In fact, we think the thirteenth instruction is not an exact statement of the law. It tells the jury that threatening acts, accompanied by opprobrious words, would be a provocation that might reduce the degree words and threatening acts would be a provoof the assault. It charges that opprobrious cation legally sufficient to reduce the degree been permitted to pass upon the sufficiency of of the offense, while the jury should have the provocation to provoke a passion apparently irresistible, as stated in instruction

numbered 8. This instruction numbered 13 concludes with the statement that the provo

cation might justify an assault with intent to kill, or be a justification of an aggravated assault. The court had defined an aggravated assault, and it is apparently a contradiction in terms to speak of a provocation which justifies an aggravated assault. An aggravated assault is committed when one person assaults another with a deadly weapon, instrument, or other thing, with the intent to inflict a bodily injury, where no considerable provocation appears, or where the cir

DENCE-SUFFICIENCY.

In a prosecution for homicide, evidence held sufficient to warrant a conviction. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig.

253.] 2. CRIMINAL LAW 608- CONTINUANCEDENIAL.

Where the showing on a motion for postponement did not clearly disclose the where abouts of the absent witness, or establish that his attendance could be procured later, the denial was not an abuse of discretion.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. mm 608.]

3. CRIMINAL LAW 596- CONTINUANCE DENIAL-ABSENT WITNESS.

The denial of a continuance on the ground of an absent witness, whose testimony would be merely cumulative, is not an abuse of discretion.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. 596.]

4. HOMICIDE 170 PROSECUTION EVIDENCE.

In a prosecution for homicide, evidence that shoes of the same last as those sold to accused, but only a little shorter, fitted tracks at the place of the crime, except as to length, is admissible.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. 170.] 5. CRIMINAL LAW 763, 764, 834-TRIAL INSTRUCTIONS.

Where accused's requested charge that his alleged confession should be carefully weighed, and a conviction could not be had on such confession without other evidence, was modified and the jury were charged that the confession should be considered along with other evidence, but conviction could not be had on the unsupported confession, accused could not complain; the charge requested being on the weight of the evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1731-1748, 1752, 1768, 1770, 2013, 2014; Dec. Dig. 763, 764, 834.]

6. CRIMINAL LAW 728-TRIAL-ARGUMENT OF COUNSEL-IMPROPRIETIES.

killing to the drug store where they were found the next morning, asserted that they spent the such other person participated in the crime night together, argument by the prosecutor that is warranted, though the evidence did not disclose it.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. 720.1

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Charles Owens was convicted of murder in the first degree, and he appeals. Affirmed. W. D. Davenport and Harry Neelly, both of Searcy, for appellant. Wallace Davis, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

McCULLOCH, C. J. Appellant was convicted of the crime of murder in the first degree, and his punishment was fixed by the jury at life imprisonment. The charge against him is that he and one John Perdue committed the offense by killing Luther Cotham at the village or town of Georgetown, White county, Ark., on the night of April 27, 1915.

[1] The principal ground urged for a reversal of the judgment is that the evidence is not sufficient to sustain the verdict, and

in disposing of that contention it is necessary to discuss in detail the circumstances of the killing and the facts and circumstances which tended to establish appellant's guilt.

Ap

with deceased and the latter's wife. He had Appellant lived at Georgetown in the house been living at Georgetown about a year, and living in the house with deceased and his wife since the month of December preceding the killing. Deceased and his wife lived in a room downstairs, and appellant occupied a room upstairs which was approached by a stairway leading up to the front porch. pellant paid no board, but was living there at the request of the deceased. The killing occurred on Saturday night, and a few days before that deceased and his wife had decided to leave there, and had spoken to appellant about the fact that they were going to leave. Shortly before that time appellant had made a proposal to the wife of deceased that she leave her husband and go away with him, but she declined to accept the invitation. About supper time on the night of the killing deceased and his wife were absent from the house, and on their return they found appel

lant in their room with the door locked. A few days before that time Mrs. Cotham tried to get appellant to quit staying at the house, but, according to her testimony, he declined to do so. Mrs. Cotham's father also testified that he talked to appellant and tried to get him to leave, and suggested that he was causing trouble between Cotham and his wife, but

7. CRIMINAL LAW 720-TRIAL-ARGUMENT OF COUNSEL. Where accused and another, who were traced by bloodhounds from the place of the

had talked to Cotham and that the latter had consented for him to stay. Mrs. Cotham also testified that about a week before the death of her husband appellant said to her that he