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FROMHOLZ. et al. V. McGAHEY et al. (No. 145.) (Supreme Court of Arkansas. Oct. 4, 1915.) 1. JUDGMENT ©:822–CoNCLUSIVENESS—VALIDITY OF DEED-ISSUES. . A judgment dismissing the complaint in an action brought in Nebraska against plaintiffs herein to set aside a deed to them, on the ground that the grantor was mentally incompetent and that it had been procured by undue influence, from which an appeal to the Supreme Court of that state was dismissed, was res judicata in an action for partition against the defendants, plaintiffs in the former action, so that their cross-complaint, setting out the same issue as to incompetency, etc., was properly dismissed. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1454, 1488–1490, 1496–1500; Dec. Dig. Q:822.] 2. JUDGMENT 3:5822—PLEA OF RES JUDICATA –SUFFICIENCY. A certified copy of the judgment of the district court of another state, a certified copy of the amended and supplemental complaint and answer, and the mandate of the Supreme Court dismissing an appeal, were sufficient to sustain a plea of res judicata.

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HART, J. In 1909 Gertrude H. McGahey and Agatha Reisen instituted this action in the chancery COurt against Fred and Bernhard Fromholz, asking for a partition for Certain lands in Lonoke County, which they claim that they With the defendants own as tenants in Common. The defendants filed a Cross-complaint against the plaintiffs, in Which they ask for recovery of part of the proceeds of land in Nebraska which was sold by Gertrude H. McGahey. The facts are as follows:

In the year 1884 Fred W. Fromholz moved from Platte County, Neb., to Lonoke county, Ark., and died there in June, 1891. Prior to his death he had acquired about 500 acres Of land in Lonoke COunty, and also owned 200 acres Of land in Nebraska. He left Surviv

ing him his wife, Marie Fromholz, tWO |

daughters, Agatha Reisen and Gertrude McGahey, and three sons, Fred, Ewald, and Bernhard Fromholz. The first three had become adults and left home before he moved to Lonoke county. The last two children, Bernhard and Ewald, were living with their parents in Lonoke county at the time their father died. By his will Fromholz devised to his wife his Nebraska land, to Ewald 120 acres of land in Lonoke County, and to Bernhard and EWald the remainder of his land in LOnoke County. He also bequeathed to his wife and to his son Ewald certain personal property. He stated in his Will that he had already made advancements to his three Older children. Ewald died in Lonoke county in 1895. Prior to his death he conVeyed his interest in the Lonoke county land to his brother Bernhard. The Widow lived With her Son Bernhard in Lonoke county until 1901, when she went to another state to reside with her daughter Gertrude. In 1902 she conveyed by deed to her daughter Gertrude H. McGahey the lands in Nebraska Which her husband had devised to her. In 1903 she executed another deed Conveying the land to her daughter Gertrude. In the fall of 1904 a guardian was appointed for Marie Fromholz as an insane person, and Suit Was at Once brought by him in the district court of Platte county, Neb., against Gertrude H. McGahey and Agatha Reisen. The Object Of the Suit WaS to Set aside the two deeds executed by Marie Fromholz to Gertrude H. McGahey conveying her 200 acres of land in Platte county, Neb. Marie Fromholz died in 1905. Fred and Bernhard Fromholz Were Substituted aS plaintiffs. The allegations of the complaint were that Marie Fromholz, at the time she executed the deeds to her daughter Gertrude H. McGahey, was mentally incompetent to transact business, and that the execution of the deeds was procured by the undue influence of her Said daughter. An anSWer WaS filed by the defendants, denying the allegation of the plaintiffs. A great deal of testimony was taken by both sides. The court found for the defendants, and the complaint Of the plaintiffs was dismissed, at their cost. The decree recites that the cause came On for hearing on the 10th day of February, 1908, upon the amended and supplemental petition of the plaintiffs, upon answer of the defendants, and upon the evidence. An appeal was taken to the Supreme Court of the state of Nebraska by the plaintiffs, and the appeal Was dismissed by the Court. The object of the action instituted by the plaintiffs against the defendants in Lonoke chancery Court in 1909 Was for the partition of the lands in Lonoke county; the plaintiffs, Gertrude H. McGahey and Agatha Reisen, claiming to own an interest therein as heirs of their deceased brother EWald. As above stated, the defend&R's Be!Thäld and Fred Fromholz filed a cross-complaint against the plaintiffs, and asked for a recovery of a part of the proceeds of the Nebraska lands, which had been sold by Gertrude H. McGahey. They sought to set aside the deeds from Marie Fromholz to Gertrude H. McGahey on account of the mental incompetency of Marie Fromholz and the undue infiuence practiced upon her by Gertrude H. McGahey at the time the deeds Were executed. An anSWer Was filed to the CrOSS-COmplaint, in which Gertrude H. McGahey and Agatha Reisen denied the allegation of the cross-complaint and also entered a plea of res adjudicata. The court sustained the plea of res adjudicata, and dismissed the CrOSScomplaint for want of equity. The crosscomplainants have duly prosecuted an appeal to this court. [1, 2] The decree of the chancery COurt was correct. The issue to be determined in the Nebraska Suit Was Whether or not Marie Fromholz was mentally incompetent at the time she executed the deeds to the Nebraska lands to her daughter Gertrude H. McGahey, and whether or not said deeds Were procured by undue influence exerted upon her by her said daughter. The same persons instituting that action filed a cross-complaint in the present suit, and the issues in the two suits were identically the same. To maintain the plea of res adjudicata, not Only Was a Certified copy of the judgment of the Nebraska district court introduced, but also a certified copy of the amended and supplemental complaint and answer was introduced. The plaintiffs prosecuted an appeal to the Supreme Court Of Nebraska and the COurt dismissed their appeal. The mandate of the Supreme Court Was also introduced to sustain the plea of res adjudicata in the present Suit. So it Will be seen that the complete record of the Nebraska suit was introduced to sustain the plea of res adjudicata in the present action; that is to say, a certified copy of the judgment in the Nebraska suit, together With all the pleadings On Which the judgment Was founded, Were produced at the hearing in the present suit. It Will be noted that the judgment in the Nebraska Suit recited that the CauSe Was heard upon the amended and supplemental complaint, upon the anSWer, and upon the evidence. This Was Sufficient to Sustain the plea of res adjudicata. McCarthy v. Troll, 90 Ark. 199, 118 S. W. 416, and cases cited ; Hallum V. Dickinson, 47 Ark. 120, 14 S. W. 477. [3] After the cause had been submitted to the chancellor and taken under advisement by him, the defendants to the cross-complaint asked that they be permitted to introduce a certified copy of the answer in the Nebraska Suit, Which was done. The action of the chancellor in this regard is assigned as error calling for a reversal of the decree. It was within the discretion of the chancellor

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

to allow a certified copy of the answer in the Nebraska suit to be introduced, and to set aside the submission of the cause for that purpose. It follows that the decree will be affirmed.

JOHNSON v. STATE. (No. 142.) (Supreme Court of Arkansas. Oct. 4, 1915.)

1. HoMICIDE 6:228—EvDDENCE—CORPUS DELICTI. Evidence that deceased, after he had re: tired for the night, was called from his bed and requested to go about 100 yards from his house, where several persons were Waiting to see him, and that about two hours later he was found dead; that his left arm was stabbed, the muscle on it being cut and the arm broken above the elbow, and that there were other wounds on the left arm and side, and the body was badly cut and covered with blood, warranted the jury in finding that there was an unlawful killing. [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. 3:228.]

2. HOMICIDE 3:268 – EVIDENCE-QUESTIONS FOR JURY.

Under Kirby’s Dig. § 1765, providing that, a killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on accused unless by the prosecution’s proof it is sufficiently manifest that the offense only amounted to manslaughter, or that accused was justified or excused in committing the homicide, where an unlawful killing was proved, and defendant admitted that he was the one who “knifed” deceased, the court properly refused to direct a verdict of not guilty; there being no proof on the part of the state that the Offense only amounted to manslaughter, or that accused was justified or excused in Committing it.

[Ed. Note:—For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. Q:268.]

3. CONSPIRACY (3:48—HOMICIDE—EVIDENCE— QUESTIONS FOR JURY. On a trial for homicide, evidence held to make a question for the jury as to the existence of a conspiracy between defendant and H., his brother-in-law, to attack deceased if he did not make a satisfactory explanation regarding alleged defamatory remarks concerning H.’s wife. [Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 108–111; Dec. Dig. G-:48.]

4. CRIMINAL LAW Q->423—ERVIDENCE-ACTS OF CONSPIRATORS. - Where, on a trial for homicide, the evidence made a question for the jury as to whether there was a conspiracy between defendant and H. to attack deceased if he did not make a satisfactory explanation regarding alleged defamatory remarks by him, evidence that on the night of the killing H. had a pistol was relevant to the issue and competent either on direct or On CrOSS eXamination. [Ed. Note:—For other cases, see Criminal # Cent. Dig. §§ 989–1001; Dec. Dig. G->

5. CRIMINAL LAW 3: 778 – HOMICIDE — INSTRUCTIONS—BURDEN OF PROVING MITIGATING CIRCUMSTANCES. On a trial for homicide it was not error to charge in the language of Kirby's Dig. § 1765, relative to the burden of proving mitigating circumstances. - - [Ed. Note.—For other cases. see Criminal Law, Cent. Dig. §§ 1846–1852, 1854–1857, 1960, 1967; Dec. Dig. <=778.] . *...) 6. HOMICIDE & 144—BURDEN OF PROOF—MITIGATING CIRCUMSTANCES. Notwithstanding Kirby's Dig. § 1765, the burden On the whole case on a trial for homicide is on the state, and when evidence is introduced either on the part of the state or defendant which tends to justify or excuse defendant's act, if such evidence, in connection with other evidence in the case, raises a reasonable doubt of defendant’s guilt, the jury must acquit. [Ed. Note—For other cases, see Homicide, Cent. Dig. § 261; Dec. Dig. (3:144.]

7. HOMICIDE 3:300 — INSTRUCTIONS — SELFDEFENSE. On a trial for homicide the court charged, in the language of Kirby's Dig. § 1798, that in ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that to save his own life, prevent great bodily injury, or prevent the commission of a felony the killing of the other party was necessary, and that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest. The court further charged, at defendant's request, that if, at the time defendant stabbed deceased, he had reasonable cause to apprehend great bodily injury at the hands of deceased, and if he had reasonable grounds to believe, and did believe, it necessary for him to use a knife as he did, and if he acted without previous fault or carelessness, the killing was justifiable, that it was not necessary that the danger should have been actual or real, but that it was sufficient if the defendant had reasonable cause to believe that he was in danger of death or great bodily harm, and that, if he acted under such belief, he would be justifiable. Held, that these instructions were not in conflict, but, when taken together, correctly declared the law, as the first instruction told the jury that it must appear that the danger was urgent and pressing, etc., without explaining to whom this must appear, while the second instruction explained that this must appear to defendant. [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 614, 616–620, 622–630; Dec. Dig. 3:300.]

8. CRIMINAL LAW (3:1043—APPEAL—RESER

VATION OF GROUNDs oF REVIEW.

Where an instruction that, if the jury be

lieved any witness had willfully sworn falsely to any material fact, they might disregard his whole testimony or believe what they regarded to be true, and disbelieve what they regarded to be false, was part of an instruction pointing out at some length the province and duty of the jury in weighing the evidence and passing upon the credibility of the witnesses, and which announced several propositions of law which were undoubtedly correct, defendant should have specifically called the attention of the trial judge to the portion of the instruction in question, and, not having done so, there was no error, as the court's language was probably the result of inadvertence or oversight.

[Ed. Note.—For other cases, see Criminal JLaw, Cent. Dig. §§ 2654, 2655; Dec. Dig. 3: 1043.] Appeal from Circuit Court, Cleveland County; Turner Butler, Judge.

Kenneth Johnson Was COn Victed Of murder in the Second degree, and he appeals. Affirmed.

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Strong had been making Some derogatory remarks about his (Hopson’s) wife. Hopson had married the appellant's sister. Hopson, in company with the appellant, Bud Miller, and Coot Childers, on the night of the killing, started to the home of Armstrong for the purpose of Seeing him in regard to What he Was reported to have Said concerning Mrs. Hopson. When they got within 100 yards of the house all stopped, except Carroll Hopson. He went on up to Armstrong’s house. He called to Armstrong, stating that he wanted to see him, whereupon Armstrong arose and dressed and went with Hopson to where others of the party were. This was about 9 o'clock at night. About two hours later Armstrong was found dead in the road near his home. His body was found lying near a thicket in a dense part of the Woods. His left arm was stabbed, all the muscle on Same being cut, and the arm Was broken above the elbow. It was a smooth break. There was another Wound also on the left arm, and a wound on the left Side, and anOther wound On the ninth rib. The body was badly cut, and was covered with blood.

There Was testimony to the effect that On the day after the killing appellant said that he Went Over to have a talk With Armstrong about remarks that Armstrong had been making about his (appellant's) people. He said: “I did not hit him but Once.” Again

he said: “I thought that I hit him only once

or twice.” Appellant made further statements to the effect that Armstrong had “knifed” him, and that he had “knifed” ArmStrong. There was testimony On behalf of appellant tending to prove that he and Armstrong were good friends, and that they were neighbors; that Carroll Hopson, appellant's brother-in-law, told appellant on the night of

the killing that he was going to see Arm

strong to get him to quit talking about his wife; that appellant told Hopson that he would go with him, and did go; that he and Hopson and Miller and Childers went up near Armstrong's house, and when Carroll Hopson and Armstrong returned to Where appellant and the others were waiting Hopson accused Armstrong of making Statements about his wife. Armstrong denied having made the statements attributed to him, and there was some controversy over the matter, in which the appellant participated, and during the conversation appellant said, “Since you admit talking about my people, I want you to quit tagging after my children when you are passing my house, and I don’t want you to come on my place any more.” To this Armstrong replied, “You God damned little devil, you must think I am afraid of you,” and started at appellant, whereupon the fight ensued, and shortly afterwards Armstrong said, “Take him off, boys; he has cut me to pieces.” Appellant then turned and walked away; said he was hurt and Was going home. Appellant SuStained a Severe knife WOund in his Shoulder, which was about three inches in width under the Surface, and as a result Of Which appellant was confined to his bed several days. Appellant Stated that he did not go over there With murder in his heart Or to abuse Armstrong, and was going to let the matter pass if Armstrong Would quit talking about his Sister. He thought because they Were members Of the Same WOOdmen lodge he could get him to quit talking the way he had been doing. An Open knife was found Sticking in the ground near Armstrong's head. The knife was a large-sized barlow.

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

The indictment charged appellant W1th the Crime Of murder in the first degree in the killing of Frank Armstrong. No objection is urged to the sufficiency of the indictment. Appellant Was convicted Of the Crime Of murder in the Second degree, and was sentenced to 21 years in the state penitentiary. He duly prosecutes this appeal. Other facts will be stated in the opinion as We discuss the assignments of error which appellant urges as groundS for a reversal Of the judgment.

H. S. Powell, of Camden, and Paul G. Matlock, Of Fordyce, for appellant. Wm. L. MOOSe, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above). [1, 2] I. The appellant contends that the court erred in not instructing the jury, at the close of the evidence on behalf of the state, to return a verdict of not guilty. The court did not err in this ruling. The testimony On behalf . Of the State tended to ShoW that Armstrong Was killed On the night of April 22, 1914, and that he was killed by a knife in the hands of some third party. The identity of the appellant was established by his admission to the effect that On that night he had cut Armstrong With a knife. The circumstances adduced on the part of the state tending to show that Armstrong, after he had retired for the night, Was called from his bed and requested to go to the place where he was killed, and the manner in which he was killed, as indicated by the numerous Wounds he had received, Were Sufficient Of themselves to Warrant the jury in finding that there was an unlawful killing. The corpus delicti being thus established, and appellant having admitted that he was the one who “knifed” Armstrong, it then devolved upon him to prove circumstances of mitigation that justified or excused the homicide, there being no proof on the part of the state which made it sufficiently manifest that the Offense committed only amounted to manslaughter, or that the accused was justified or excused in

§ 1765; Brock v. State, 101 Ark. 147–154, 141 S. W. 756. [3,4] II. Carroll Hopson, a witness on behalf of appellant, was asked on CrOSS-examination, this question, “Do you know a negro named John Mosely?” and answered, “Yes.” He was then asked, “What did you Want with his pistol the day before the killing?” and answered, “I didn’t have it.” He further testified, in answer to questions, that Mosely did not get any pistol from him the day after the killing; that he did not have Mosely’s pistol a day or two before the killing, nor any time that year. John Mosely testified, in rebuttal, that on the night that Armstrong was killed Carroll Hopson had his (Mosely’s) pistol; that he brought it home the next morning. The appellant mov

ed the court to exclude the testimony of John

Mosely. The court overruled the motion. The Court did not err in this ruling. The testimony of Mosely was competent as Original evidence. It tended to establish the fact that on the night Of the killing Hopson Was armed With a pistol. NOW, the jury were warranted in inferring that appellant and Hopson, on the night of the killing, had entered into a conspiracy to See Armstrong, and, in case he did not make satisfactory explanation in regard to the alleged defamatory remarks attributed to him concerning the wife of Carroll Hopson, to do him perSOnal Violence. Hopson testified On CrOSS-examination: “I intended to go to see deceased, and if he made it right about talking about my wife I intended to drop it, and if he had not made it right I had not made up my mind as to what I was going to do.” HopSOn further testified: “Deceased had been doing some talking, and we wanted to see him about it.” And again: “I knew the fight was about what deceased had said about my Wife.” The appellant himself testified: “Hopson came to my house that night and brought his wife and told me that he was going over to see deceased to get him to quit talking # his wife. I told him that I would go with 1JT1. Although witness Hopson and the appellant, in their testimony, Say that on the night Of the killing they were on good terms with deceased, and disclaim any ill will towards him, and deny any intention of doing him any Violence On the Occasion, the above testimony, together with other facts and circumStances in evidence, Were Sufficient to Warrant the jury in finding otherwise, and that their visit to the home of Armstrong on that Occasion was not a friendly one. Therefore the court Was Warranted in admitting any evidence to prove that on the night of the killing Hopson had a pistol. The testimony Was not concerning a collateral issue, but was relevant to the issue being tried, and therefore competent either On direct or on

[5, 6] III. The court, at the request of the State, gave instruction No. 5, as follows:

“The killing having been proven, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by proof upon the part of the prosecution it is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide.”

The above is taken from Kirby's Digest, § 1765. Speaking of an instruction in this language in Cogburn v. State, 76 Ark. 110, 112, 88 S. W. 822, 823, we said: . “This section of the statute, it will be seen, is a rule of law to be applied when the killing has been proved, and there is nothing shown to justify or excuse said act.”

The court in the above case declared that there was no error in the giving of the above instruction. By reference to the facts stated in the opinion it will be seen that several witneSSes for the State in that case testified that at the time of the shooting the deceased was making no hostile demonstration whatever toWard the appellant, Cogburn, and several Witnesses testified on behalf of the defendant that the deceased and another in company With him were making hostile demonstrations towards the appellant, and that the appellant shot the deceased, West, after West had fired at him with a pistol. The court in that case, while approving the instruction, Condemned and held erroneous the argument of counsel for the state which misconstrued the meaning of the instruction, and which, in effect, told the jury that after the state had proved the killing the burden was upon the defendant to establish justification, and if the defendant failed to satisfy the jury by a preponderance of the evidence that the killing Was justifiable, the jury should convict him; in Other Words, the explanation of the instruction given by the attorney was to tell the jury that after the state had established the killing the burden Shifted to the defendant to ShOW by a preponderance Of the evidence that he Was innocent Of the crime.

In Brock V. State, 101 Ark. 147, 141 S. W. 756, remarks having the Same effect Were made in commenting upon language similar to that contained in the instruction under consideration. The court, in condemning these remarks, said:

“The remarks of the counsel, sanctioned by the court in its refusal to sustain an objection to them, were a misinterpretation of the instruction that had been given by the court, and were an incorrect statement of the law.”

The court, however, in holding that the instruction itself Was correct, used this language :

“The court correctly instructed the jury in the instruction that the burden rested upon the state to prove the crime charged, and that this, burden did not at, any, time shift to the defendant. * * * The killing being proved, unless the evidence on the part of the state shows circumstances of mitigation, justification, or excuse, it devolves upon the appellant, if he relies upon such circumstances to show them, but the burden is still on the state

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to show that the defendant is guilty of every grade or degree of crime included in the indictment. The burden, in other words, in a charge for murder, never shifts to the defendant, but always remains on the state.” An examination of the statements of fact in the above cases will discover that an inStruction similar to the one under review is not erroneous when applied in cases where the evidence on the part of the defendant tends to show mitigation, justification, or excuse. The error for which the judgments Were reversed in the above cases WaS caused by the remarks of counsel in placing a misleading and erroneous construction upon the language of the statute. In the case at bar no such error Was committed, and the instruction itself is not calculated to mislead a jury, as learned counsel for appellant contend, but has only the meaning that was placed upon it in Cogburn v. State, supra, and Brock V. State, Supra. In both cases the Court clearly announces that under Such an instruction in a charge for murder the burden of proof never shifts to the defendant to establish his innocence by a preponderance Of the evidence on any phase of the testimony, but that, on the contrary, after all the testimony, both for the state and the defendant, has been adduced, the burden still remains on the state throughout the whole case to establish the Crime charged beyond a reasonable doubt. As was said by Judge Riddick in Cogburn v. State, supra: “While it is true, as our statute declares, that when the killing is proved the burden of showing circumstances that mitigate or excuse the crime devolves upon the accused, where there is nothing in the evidence on the part of the state that tends to mitigate, excuse, or justify the killing, still the burden on the whole case is on the state; and when evidence is introduced, either on the part of the state or the defendant, which tends to justify or excuse the act of the defendant, then if such evidence, in connection with the other, evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant, the jury must acquit.” [7] IV. The appellant contends that the court erred in giving instruction No. 12, as follows: “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily injury, or to prevent the commission of the felony feared by him, the killing of the other was necessary; and it must also appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.” In instruction No. 3, given at the instance of the appellant, the court told the Jury, in effect, that if at the time the defendant stabbed the deceased he had reasonable cause to apprehend great bodily injury at the hands of deceased, and if at the time he had reaSOnable grounds to believe and did believe it necessary for him to use the knife as he did, and that he acted without pre

vious fault or carelessness on his part, the

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