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[3] Error is assigned in the refusal of the court to give an instruction numbered 1, requested by appellant, which dealt with appellant’s right to act under the circumstances as they appeared to him. The instruction, howeyer, did not require that appellant Should have acted “Without fault Or CareleSSness on his part,” and it was therefore properly refused.

[4] The court gave over appellant's objection the following instruction:

“The defendant in entering his plea of not guilty seeks to justify the killing in this case by alleging that he killed Ben Lacewell in his necessary self-defense. The defense of justification as claimed by the defendant turns upon the answer to one question, and that is: What was Ben Lacewell doing at the time the defendant fired the fatal shot or shots? To establish the plea of self-defense, you must find that, at the time the fatal shot or shots were fired, there was some conduct on the part of Ben Lacewell, some overt act, some demonstration or apparent demonstration which induced in the mind of the defendant, James Branscum, while acting in good faith and as a reasonably prudent person under all circumstances surrounding the fatal encounter as they then appeared to him, an honest belief that he was in great danger of losing his life or of receiving great bodily harm. But a mere honest belief on the part of James Branscum that the killing Was necessary is not sufficient; in addition to that it must appear that the circumstances were such as made it reasonable for him to entertain such belief as the circumstances appeared to him acting as a reasonable person.”

It is urged that this instruction makes the conduct of the deceased determinative of appellant's right to fire the fatal shot and leaves out of consideration the question of appellant’s belief as to the action the deceased was about to take. Such, however, is not its effect when the entire instruction is considered together, for while it does Say that the defense of justification turns upon the answer to the question, What was the deceased doing at the time the fatal shot was fired? yet the instruction as a whole makes it plain that the conduct of the deceased referred to Was that induced in the mind Of appellant while acting in good faith. In other words, it tells the jury to find What picture was in the mind of appellant, acting in good faith and as a reasonably prudent person. If from that picture it did not appear to appellant that he was in great danger of losing his life or of , receiving great bodily harm, then the right to kill did not exist, and the instruction SO declared the law, and it is not therefore open to the objection made to it.

[5] It is finally insisted that the testimony is not sufficient to support the verdict. But the testimony of a witness named Guthrie meets the requirement of the law in this respect. He testified in part as follows:

“And there were some words passed there. I don’t know exactly the words they used—don’t Rnow just what words were passed. Anyway, I looked up as Mr. Branscum came out with this pistol; had the pistol in his right hand, and

he taken his left hand and pushed the safety down on it. And I jumped up from where I Was sitting and jumped out to one side, and I hallooed; I says, “Don’t do that, and he commenced shooting” —and, in answer to the question, “What was Lacewell doing?” that witness answered, “Well, I jumped back and turned around to look at Lacewell, and he was just standing there.”

There was testimony to support the finding that appellant was armed, and deceased was not armed, that the men had previously Quarreled, and that appellant was expecting the quarrel to be renewed. It is true there was testimony that deceased renewed the difficulty by asking appellant if he could “two-time” certain statements which the deceased accused him of having made; but there Was also testimony that appellant accepted the challenge by replying, “I can twotime anything I ever said about you,” and that he immediately drew his pistol and commenced firing. It is true that appellant was justified in firing the fatal shot according to his own testimony and that offered in his behalf; but the conflicts have been reSolved against appellant by the verdict of the jury.

No error appearing, the judgment is affirmed.

~
(134 Ark. 575)

HARKRIDER et al. v. HOWARD. (No. 307.)

(Supreme Court of Arkansas. April 22, 1918.)

TRIAL &=243-INCONSISTENT INSTRUCTIONs. It is not enough to give an instruction inconsistent, with , instructions erroneously ignoring defenses, but the instructions should be framed so as to make the charge as a whole harmonious. Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge. Action by D. A. Howard against Adam Harkrider and others. Judgment for plaintiff, and defendants appeal. Reversed, and remanded for new trial.

In the month of May, 1916, one E. L. Cotton had One Starks making staves for him. He became dissatisfied with Starks, and told One Harkrider that he wanted him to finish up the job. Harkrider replied that he knew nothing about the stave business, and for that reason would not undertake it alone. Cotton then Suggested to Harkrider that he get Mr. Howard, who was an experienced Stave man, to go in with him. Harkrider and HOWard agreed to make Staves On halves. Cotton agreed to pay them $20 for oil staves and $40 for wine staves per thousand, stacked on the yard. After Harkrider had worked making Staves about tWO Weeks Cotton insisted upon Harkrider getting rid of Howard, telling Harkrider that Howard was a rascal, and that the Hamlen Stave Company, to whom Cotton had contracted to sell staves, would not stand for him, Harkrider then

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agreed to give Howard $3 per day for his labor. The kind of work done by Howard was taking up bolts, stacking staves, and SaWing Some Staves except a part of the day. He also stacked staves on the yard When he Was not Sawing, and filed the Saws at nÓOn and evening. It WaS in the month of June when Harkrider agreed to pay Howard $3 per day. The work of getting out the Staves Was finished about the 10th of July. All told Howard Worked 42 days, including the time he was working as a partner with Harkrider. He worked some 20, 26, or 28 days after Harkrider agreed to pay him $3 per day for his services. Harkrider Was paid by Hamlen & Son, who purchased the Staves from Cotton, the balance due On the staves. Howard was not paid anything for his labor in connection with the Staves. He brought this action in the justice Court to recover for work and labor On the Staves the sum of $126 alleged to be due him from Harkrider. He had a specific attachment issued and levied upon 20,000 staves as the property of Harkrider and J. H. Hamlen & Son, upon Which he claimed a lien for his labor, all under the provisions of Subdivision 3, c. 101, of Kirby's Digest. No written answer was filed, but the testimony adduced showed that issue was joined on the allegations of the complaint and affidavit. The defendants contended under the evidence that the plaintiff did not Work 42 days in producing the Staves; that part of the time charged for was work done by plaintiff as a partner, and part of the work charged for was not such as to entitle plaintiff to a laborer's lien; that there Was no definite showing as to the time when his labor contributed to the manufacture of the staves as a laborer, and not as a partner; that, if plaintiff ever had a lien for any amount, same was lost or plaintiff was estopped from asserting same by his conduct in not notifying the defendant J. H. Hamlen & Son, Or any One connected with it, that he had or claimed a lien when it was his duty to Speak; that if he had a lien the attachment could not be sustained, because E. L. Cotton, the party with whom the contract was made for the manufacture of the staves, was not made a party.

The court at the request of appellee and over the objection of appellants granted, among others, the following prayers for inStructions:

“(1) The court instructs the jury that laborers who perform work and labor on any object, thing, material, or property shall have an absolute lien on such object, thing, material, or property for such labor done and performed.

“(2) The court instructs the jury that, if you find from the evidence in this case that the staves in this action were disposed of before the lien of plaintiff had been liquidated or released, then the purchaser, Cotton, had notice of such lien before he paid the defendant Harkrider therefor; in that event plaintiff should still have his lien, notwithstanding such payment.

“(3) The court instructs you that at the time

the staves in this action were attached that the title to said staves was in Cotton. “(4) The court instructs the jury, before the defense of payment to Harkrider is available, it must be shown by the evidence in this case that the amount paid to Harkrider Was the amount agreed upon under the contract (if you find there was a contract), and if you find from the evidence in this case that upon a final settlement between Harkrider and Cotton that the amount paid to Harkrider was less than the contract price, and that under the original contract there was yet due Harkrider a sum sufficient to pay the amount claimed by plaintiff (if you find such sum was due him), then your verdict will be for plaintiff.” There was a verdict in favor of the plaintiff below for $126. Judgment Was entered in his favor for that sum and this appeal was

taken. Other facts stated in the opinion.

W. D. Brouse, of Benton, for appellants. Henry Berger, of Malvern, for appellee.

WOOD, J. (after stating the facts as above). The above instructions granted by the court ignored the defense made by the appellant J. H. Hamlen & Son to the effect that it had purchased the staves without any notice of appellee's claim for lien, and that at least part of the labor for which appellee claimed a lien was done while he was a partner with Harkrider in the production of the Staves, and that the payment by Hamlen & Son to Harkrider for the Staves Settled for the labor of appellee on the staves while he Was Harkrider's partner. True, in another instruction the Court told the jury, in SubStance, that if Hamlen & Son had settled with Harkrider without knowledge that plaintiff claimed a lien, plaintiff could not recover of Hamlen & Son. But the instructions did not present a harmonious charge On this issue. As a Specific Objection Was made, the court should have so framed its instructions as to make the charge as a whole harmonious. The court did not in any of its instructions present appellants’ theory that appellee could not claim a lien and recover for labor done in the production of the staves while he was Harkrider’s partner and for which the latter had been paid.

The appellantS Were entitled under the evidence to have theSe defenSeS Submitted in a consistent charge. The court, over the objection of appellants, permitted testimony as to the contract price of the staves, as to whether anything was paid for culls, Whether the culls were dead culls and their value, and as to the reasonable Worth of plaintiff's labor. This testimony, and the instructions based upon it, were not germane to the issue as we conceive it, but we would not reverse for these rulings, because We do not consider them prejudicial. We call attention to them in Order that they may be eliminated and time thereby saved on a new trial.

We find no Other reversible error in the record, but for the above the judgment is reverSed, and the CauSe is remanded for a new trial.

(133 Ark. 574) CLEMENS v. SOUTHWESTERN BELL TELEPHONE CO. (No. 317.)

(Supreme Court of Arkansas. April 22, 1918.)

TELEGRAPHS AND TELEPHONES @:34 - DISCRIMINATION.—CONSTRUCTION OF STATUTE. Acts 1913, p. 346, § 1, amending Kirby's Dig. § 7948, providing that telephone companies shall supply all applicants for Service without discrimination “within ten days after Written demand therefore,” and imposing as a penalty for failure so to do “one hundred dollars and five dollars per day for each day from the expiration of Said notice until Said demand is complied with,” imposes no penalty where discrimination ceases during the ten days.

Appeal from Circuit Court, Hempstead County; Geo. R. Haynie, Judge.

Action by J. P. Clemens against the SouthWestern Bell Telephone Company. Judgment for defendant, and plaintiff appeals. Affirmed.

U. A. Gentry, of Hope, for appellant. J. D. Frank and Walter J. Terry, both of Little Rock, for appellee.

HUMPHREYS, J. Appellant instituted suit against appellee in the Hempstead circuit court to recover $170 in penalties for an alleged discrimination in failing and refusing to furnish telephone service for a period of 14 days to him, as provided by section 1 of Act 95, Acts 1913, being an amendatory act Of Section 7948, Kirby's Digest. Appellee filed a demurrer, which was overruled, and then filed an answer denying the material allegations of the complaint. The cause Was Submitted to the jury upon the pleadings and evidence, and the jury returned a verdict in favor of appellee under a peremptory instruction of the court. A judgment was rendered in accordance with the verdict, from which an appeal has been prosecuted to this COurt. The facts in substance are as follows: Appellant, a practicing physician, moved to Fulton, Ark., the early part of December, 1916. A telephone exchange was being operated by appellee in the town of Fulton in the daytime. Some years prior to this time a Dr. Weaver and other parties residing in the country built a rural line, numbered 15, leading into Fulton, which telephone line Was used by the parties On it for the purpose of Communicating with people in the town during the daytime through the use of appellee's SWitchboard. When the Operator closed the Office at night, Dr. Weaver's phone was connected With the rural line SO people On the line COuld phone him at night. Dr. Weaver died, and Dr. McKinney bought the interest in the line from Dr. Weaver's widow, and thereafter the Operator connected his phone at night with the rural line. In the latter part of December, after moving to Fulton, appellant discovered that Dr. McKinney Was getting night

Service; and he gave testimony to the effect that he complained to W. C. Hart, appellee's manager, about the discrimination in service, and offered to tap the rural line and run a line to his house and furnish his own phone and to pay the monthly rental thereon so that he might be called at night by any One residing On the line Who desired his Services; that the company declined to permit appellant to tap the line. His evidence was contradicted by W. C. Hart, who testified that no such conVersation took place between them until after he received Written notice from Dr. ClemenS in May. On the 1st day of May, 1917, appellant mailed the following written notice, or letter, to appellee: “Fulton, Arkansas, April 20, 1917.

“Mr. Hart, Mgr. Southwestern Tel. & Tel. Co., Hope, Arkansas—Dear Sir: Being a subscriber on the Fulton exchange of your company and OWing to the nature of my profession and owing to the fact that I greatly need the use of the rural lines at all hours of the day and night, you will please instruct the operator at Fulton to leave my telephone No. 53 connected with

rural line No. 15 at all hours whèn she is not at the board to give this connection. “This demand is made for the reason that I have clients on this line who cannot reach me during the closed hours of the office. “I will gladly pay any extra charges which may accrue from this extra service, provided of course that it is reasonable. “Thanking you very kindly for your attention to this matter, I beg to remain yours very truly, “[Signed] Jas. P. Clemens, M. D.”

It was impractical to connect the phone of each doctor at the Same time With Line NO. 15, through the switchboard, and the company, for reasons best known to itself, declined to permit appellant to tap the rural line. Within ten days after receiving the written notice aforesaid, appellee instructed its Operator not to connect rural line No. 15 When it closed it at nights With Dr. McKinney's telephone, and the alleged discrimination did not OCCurthereafter.

The trial Court instructed the Verdict upon the theory that no penalty could be recovered from the company if the discrimination Was discontinued within ten days after written notice was given to appellee. The correctness of the construction placed upon the Statute in question by the Court is challenged by this appeal.

Appellant concedes he cannot recover the $5 per day penalty, because under the plain language of the statute the per diem penalty is recoverable only after the expiration of ten days’ Written notice. This concession is based upon the fact that the undisputed proof shows that appellee ceased to connect Dr. McKinney's phone with rural line No. 15 at nights upon the expiration of the Written notice given appellee by appellant. Appellant insists, however, that the $100 penalty provided in the statute applies if there was any discrimination, irrespective of whether notice

was given, and, for that reason, the question of whether there was discrimination, under the facts in the case, should have been Submitted to the jury. This suit is based upon section 1*of Act 95, Acts 1913, amending section 7948 of Kirby's Digest. Section 1 of said amendatory act is as follows:

“That section 7948, Kirby’s Digest, be amended so as to read as follows:

“Sec. 7948. Every telephone company doing business in this state and engaged in a general telephone business shall supply all applicants for telephone connection and facilities without discrimination or partiality, within ten days after written demand therefor: Provided, such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that are not imposed impartially upon all persons or companies in like situations; nor shall such company discriminate against any individual or company engaged in lawful business, by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise, under a penalty of one hundred dollars, and five dollars per day for each day from the expiration of said notice until said demand is complied with or suit is instituted for penalty for failure to comply with said demand, for such discrimination, after compliance or offer to comply with the reasonable regulations of such company and the time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused. And any person denied such telephone facilities shall also have the right to proceed by mandamus or other proper remedy to enforce the furnishing of same and the courts shall hear such applications either in Vacation or in term time and make such temporary orders relative to the furnishing of such facilities as the facts may justify, and may enforce compliance therewith, until such orders are vacated by order of the court or the judge at chambers, or such suit is finally determined.”

We think the statute susceptible of only One Construction Which is that, if a telephone company operating in Arkansas shall fail or refuse, after ten days’ Written notice, to Supply an applicant on reasonable regulations with the same telephone connections and facilities as other SubscriberS alike Situated, it shall pay to the applicant a penalty of $100 and $5 per day as long as it shall so fail or refuse. The language of the act is so plain and direct that it does not admit of any other interpretation. The purpose and intent of the act Was to impose a penalty for any character of discrimination by telephone companies betWeen SubSCriberS Situated alike after ten days Written notice. The undisputed evidence shows that the discrimination complained of Was corrected in the only manner it could be corrected within ten days after written notice by appellant. The interpretation placed upOn the act by the trial Court was correct, and, under the undisputed facts, it became the trial court's duty to direct a Verdict.

The judgment is therefore affirmed.

(134 Ark. 71)

STATE v. LANE et al. (No. 316) (Supreme Court of Arkansas. April 22, 1918.)

1. TAXATION Q->872 — INHERITANCE TAX PROPERTY SUBJECT. Under Acts 1913, p. 826, § 2, imposing an inheritance tax upon all property when transferred by will, where the widow accepted and retained the property bequeathed under the will, all such property was subject to an inheritance tax, since she took no dower whatever under the circumstances. 2. TAXATION 3-9905(2) — INHERITANCE TAXLIMITATIONS—ESTOPPEL. Executors, who made application within one year to have the estate appraised and inheritance tax fixed, are in no position to contend that, under Inheritance Tax Act (Acts 1913, p. 824), suit will not lie to enforce payment of in#tance tax for one year after death of testaOl". 3. TAXATION 6->905(2)—APPLICATION TO FIX INHERITANCE TAX—TIME FOR FILING. Under Inheritance Tax Act (Acts 1913, p. 824), although application of state to have estate appraised and inheritance tax fixed was filed within a year after testator’s death, where executors themselves filed application within such year, and the state's application was consolidated with executors’, it cannot be said that the proceedings were prematurely instituted. 4. ATTORNEY GENERAL C+2 — INHERITANCE TAX—STATUTES—RETROACTIVE OPERATION. Special counsel appointed by Attorney General pursuant to Acts 1913, p. 837, § 15, to Collect inheritance taxes, would have the right to proceed in all cases pending at the time Acts 1917, p. 455, transferring power of Attorney General and special counsel to an inheritance tax attorney, was passed, in View of Kirby's Dig. § 7798, providing that no action, plea, prosecution, or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provision had not been repealed. 5. TAXATION 3:906 – INHERITANCE TAX – PENALTIES—“LITIGATION TO DEFEAT PAYMENT OF TAX.’’ Under Acts 1913, p. 832, § 9, providing that a penalty of 10 per cent. shall be charged in case inheritance tax is not paid within a year, unless delay is caused by “necessary” litigation or other unavoidable delay, provided “litigation to defeat the payment of a tax shall not be considered necessary litigation,” where executors filed a statement of facts With the court within a year for the purpose of ascertaining the amount of inheritance tax, and the state excepted to the Orders and appealed the case, and the executors promptly paid the amounts fixed by the court, it cannot be said that the suit was instituted for the purpose of defeating the payment of any tax, justifying the imposition of a 10 per cent. penalty where tax is not paid within year. Appeal from Circuit Court, Craighead County; W. J. Driver, Judge. Inheritance tax proceedings in probate Court betWeen the State and Mattie Lane and another, executors. From a decision of the circuit court, sustaining an order of the probate court fixing inheritance tax, etc., the State appeals. Reversed and remanded. John D. Arbuckle, Atty. Gen., Troy Pace

and T. D. Crawford, both of Little Rock, and Gordon Frierson, of Jonesboro, for the State. Hawthorne & Hawthorne, of Jonesboro, for appellees.

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

203 S.W.—2

HUMPHREYS, J. This suit originated in the probate court of Craighead county. At the October term, 1916, thereof, an order was made on application of appellant appointing G. W. Culberhouse to appraise the property of W. T. Lane, deceased, for the purpose of ascertaining the inheritance tax due thereon to the state, and on the 26th day of December, thereafter, an appraisement of said property was filed by G. W. Culberhouse. On December 14, 1916, the state of Arkansas, through special counsel, filed a petition in said court against appellees for the same purpose. On January 15, 1917, appellees filed a formal petition in said court for the same purpose. On January 18th, thereafter, appellant, through Special counsel, filed an anSWer and exceptions to the petition of appellees, and exceptions to the appraisement of G. W. Culberhouse. The COllrt COnS0lidated the pr0Ceedings, and, upon hearing, exempted the present value of the homestead and the value of the dower interest Of Mattie Lane, widow of W. T. Lane, deceased, from the payment of an inheritance tax, and charged the estate with $3,218.25 inheritance tax, and also fixed the attorney’s fees at $321.82, and also found that appellees had paid said amount, less $190, to the treasurer of the state. This order Was rendered on the 22d day Of March, 1917, from which an appeal was immediately prosecuted by the state, through its special counsel, to the circuit court. Appellees appeared in the circuit court and moved to dismiss the appeal, which motion was overruled. The circuit court tried the case, sitting as a jury, Sustained the findings of the probate court, ascertained that appellees had paid the additional $190 adjudged against the estate by the probate Court, and dismissed the application of the state, from which the state has prosecuted an appeal, through special Counsel, to this court.

The material and undisputed facts necessary to a decision of the questions presented by the appeal are as follows: W. T. Lane, Sr., died testate on the 4th day of August, 1916. He bequeathed to Mattie Lane property valued at $107,450, and to W. T. Lane, Jr., property of the value of $39,725. Mattie Lane accepted and retained the property under the will. Mattie Lane became executrix, and W. T. Lane, Jr., executor, of the will.

[1] Appellant contends that the court erred in exempting from the devise the value of Mattie Lane's dower interest in Said estate from the inheritance tax act of March 24, 1913. Section 2 of that act imposes an inheritance tax upon all property, tangible and intangible, when transferred by will. Appellee cites McDaniel V. Byrkett, 120 Ark. 295, 179 S. W. 491, in Support of the decree of the probate and circuit courts exempting her dower interest from the inheritance tax.

Tax Act No. 303, Acts 1909, laid a tax upon the privilege or right of succession to the property; that the dower interest of a widow was not an interest by transfer or in Succession from the husband within the meaning Of the inheritance tax act aforesaid; but the dower was an inchoate right acquired by the wife by virtue of the marriage and consummated by the death of the husband. In other Words, it did not pass to her by transfer or in succession. The case of MCDaniel v. Byrkett, supra, is not applicable to the facts in the instant case. In this case the widow acquired the property by transmission from the husband. She accepted and retained it under the Will. She took no doWer Whatever in the estate. Property acquired by will is subject to the inheritance tax imposed by Section 2, Act 197, Acts 1913. The following authorities Sustain our construction of the act: In re Sanford’s Estate, 90 Neb. 410, 133 N. W. 870, 45 L. R. A. (N. S.) 228; Chisholm W. Shields, 67 Ohio 274.66 N, E, 93; In re Stuyvesant’s Estate, 146 App. Div. 363, 131 N. Y. Supp. 137; In re De Graaf’s Estate, 24 Misc. Rep. 147, 53 N. Y. Supp. 591; Estate of Barbey (Sur.) 114 N. Y. Supp. 725. [2, 3] Appellees contend that under Inheritance Tax Act No. 197, Acts 1913, a suit will not lie to enforce the payment of an inheritance tax for one year after the death of the testator or intestate. Appellees are in no position to make this contention, for they made application themselves Within that time to have the estate appraised and the tax fixed. The state's application was consolidated With the application Of appellees, SO it cannot be said that the proceedings were prematurely instituted. [4] Again, appellees COntend that the Attorney General, through Special counsel, had no right to appeal the case, because all the power and authority Of the Attorney General and the special counsel was transferred to an inheritance tax attorney by Act 96, Acts 1917, amending the inheritance tax act of 1913. The power to enforce the collection of the inheritance taxes in Arkansas was Vested in the Attorney General, and attorneys to be appointed by him when necessary, by section 15, Act 197, Acts 1913. The proceedings in the instant case were pending in the courts when Act 96, Acts 1917, was passed. Section 15, Act 197, Acts 1913, was repealed by the latter act, and the power to collect the inheritance taxes of the State Was placed in an inheritance tax attorney. Appellees insist that the Special counsel appointed by the Attorney General had no right to file the affidavit for appeal after the passage of Act 96, Acts 1917. Learned counsel for appellees perhaps overlooked Section 7798, Kirby's Digest, which is as follows:

“No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provi

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