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first section of the act, under review, as if it read “with all the powers granted and all the limitations imposed by the terms Of said act” of 1915. But the language of the first section is, “with all the powers granted

..and all the liabilities imposed by the terms Of Said act.” The Words “liabilities” and “limitations” are not synonymous. Where it can be dOne Without Violence to the language used it is our duty to harmonize all the provisions of the statute and thus give effect to the act of the Legislature.

An examination of the Alexander law Will discover that there are various powers Conferred upon the commissioners. And the act under review refers to all the powers that they have under the Alexander road law, but without the limitation upon those powers as COntained in Section 28 of the Alexander Law. The construction thus given the act harmonizes the Second Section With the Other provisions, and makes the act complete. But if appellant's contention were sound, no effect whatever could be given the Second Section Of the act and the legislative purpose, as plainly indicated by the language of the act when considered as a Whole, Would be defeated. The cause was heard upon demurrer to a

complaint which challenged the validity of the act and the authority Of the COmmissioners to complete the improvement as therein directed. The court Sustained the demurrer, and entered a decree dismissing the COmplaint for the want of equity. The ruling of the court was correct, and the decree is therefore affirmed.

(133 Ark. 570) J. R. WATKINS MEDICAL CO. v. HORNE et al. (No. 312.)

April 22, 1918.)

1. JUDGMENT ©->570(3)—VOLUNTARY DISMISSAL–NEW ACTION. Under Kirby's Dig. § 6168, providing plaintiff may dismiss any action in vacation in the office of the clerk on payment of all costs that have accrued, except an action to recover specific personal property, when the property has been delivered to plaintiff, where a foreign corporation, which had never complied with the statute authorizing such corporations to do business in the state, sued on a note, it could dismiss the action in vacation on the payment of costs to the clerk, and, after receiving authority to transact business in the state, could institute another action against defendants on the same note; the dismissal before the clerk by plaintiff not being res adjudicata.

2. DISMISSAL AND NONSUIT ©25 – SUBMISSION TO NONSUIT-TIME. At common law, plaintiff may submit to a voluntary nonsuit at any time before verdict.

3. DISMISSAL AND NONSUIT ©:40 – NONSUIT BEFoRE CLERK—ENTRY OF DISMISSAL. Under Kirby's Dig. § 6168, authorizing nonsuit before the clerk in vacation, it is proper for the clerk, as custodian of the records, to enter up an order of dismissal at plaintiff’s re*111ast

(Supreme Court of Arkansas.

4. APPEAL AND ERROR &90 – DECISION ON

MERITS. . Where the trial court over plaintiff's objections directed verdict for defendants, which verdict was returned into court by the jury, and judgment rendered upon it, the court's action amounted to a decision on the merits, and the judgment was final and appealable.

Appeal from Circuit Court, Greene County; W. J. Driver, Judge.

Action by the J. R. Watkins Medical Company against J. A. Horne and G. O. Light. From a judgment for defendants, plaintiff appeals. Reversed and cause remanded for new trial.

R. P. Taylor, of Paragould, and Tawney, Smith & Tawney, of Winona, Minn., for appellant. Burr, Stewart & Burr and R. E. L. Johnson, all of Paragould, for appellees.

HART, J. This is a suit by the J. R. Watkins Medical Company against J. A. Horne and G. O. Light, to recover on a promissory note. On August 1, 1910, the defendants, J. A. Horne and G. O. Light, executed their

promissory note for $583.30 due and payable

On Or before Six months after date to the J. . R. Watkins Medical Company. On December 19, 1912, the Medical Company sued Horne and Light in the circuit court to recover a balance alleged to be due On the note. The defendants filed an answer, alleging that the plaintiff Was a foreign corporation and had never complied with the statute of the state of Arkansas, authorizing foreign corporations to do busineSS in the State. It also alleged that the condition of the note was illegal. On September 6, 1916, in vacation, the plaintiff dismissed the action upon the payment of the COsts to the clerk. On the 11th day of September, 1916, the plaintiff instituted the present action against Horne and Light on the Same note. In the meantime the plaintiff had received authority to transact business in the State of Arkansas. In the instant case the defendants Set up the same answer as in the original suit, and also filed a motion to dismiss the complaint because the dismissal of the Original Suit in vacation without the knowledge or the consent of the defendants and the prosecution of the instant case deprive the defendants of the right to set up plaintiff's noncompliance with our statute authorizing foreign corporations to do business in the State. The Court Was Of the opinion that under the facts Stated the plaintiff could not dismiss its action in vacation, and, by Subsequently complying with the laws of the state in regard to foreign corporations doing business here, again institute a Suit on the same note and deprive the defendants of a defense available to them in the original action. The court, therefore, instructed a verdict for the defendants. and from the judgment rendered

| .ne plaintiff nas appealed.

[1, 2] The court was Wrong. Section 6168 of Kirby's Digest reads as follows:

“The plaintiff may dismiss any action in vacation, in the office of the clerk, on the payment of all costs that may have accrued therein, except an action to recover * * * specific personal property, when the property has been delivered to the plaintiff.”

The facts in the present action do not bring it within the exception provided in the Statute. In other WOrdS, the instant CaSe was not an action to recover the possession of specific personal property. Therefore the statute expressly confers upon the plaintiff the right to dismiss its action in vacation upon the payment of the costs. This the plaintiff elected to do. It subsequently complied with the law of the state with relation to foreign corporations doing business here. It then instituted another action against the defendants on the same cause of action. This it had a right to do. If it had the right to dismiss the first action under the statute, it is equally certain it had the right to bring another. The mere fact that in the interVal it had complied with the laws of the state with reference to foreign corporations doing business here did not have the effect to deprive it of its right to bring the second āction or to render available the dismissal of the first action as a plea of res adjudicata. At common law the plaintiff may submit to a voluntary nonsuit at any time before a Verdict. Deneen V. Houghton County Street Railway Co., 150 Mich. 235, 113 N. W. 1126, 13 Ann. Cas. 134; Hancock Ditch Co. v. Bradford, 13 Cal. 637; New Hampshire Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Jones’ Blackstone, book 3, par. 500, Vol. 2, p. 1987. In the Same Section BlackStone says that after a nonsuit, which is only a default, the plaintiff may commence the same Suit again for the same cause of action; but that after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. Other cases holding that a judgment of nonsuit is not a judgment upon the meritS, and Cannot be pleaded as res adjudicata in another Suit between the same parties upon the same cause of action, are the following: Forschler v. Cash, 128 Ark. 492, 194 S. W. 1029; Hall V. Chess & Wymond Co., 198 S. W. 523; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. 99, 27 L. Ed. 878; Gardner V. Michigan, etc., R. R. Co., 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107; and extensive case notes to 49 Am. St. Rep. at page 831.

In the case of Clapp v. Thomas, 5 Allen (Mass.) 158, the court quoted with approval from March on Arbitrements, that a nonsuit, “is but like blowing out of a candle, which a man at his own pleasure lights again.” SO it Will be Seen that if a nonSuit had been taken at Common law or by Order of the Court under a statute, the final judgment by

its terms would show that nothing had been adjudicated, and Would raise no estoppel to a future action. In Opposition to the rule announced, counSel for the defendants rely upon the case of the Culver Lumber & Manufacturing Co. v. Culver, 81 Ark. 102, 99 S. W. 391, 118 Am. St. Rep. 17. That case does not support the defendants' contention. At the time the plaintiff asked a nonsuit creditors had intervened and filed their claims against the Corporation; a final decree had been rendered, and the property involved had been Sold under it. The court held that other parties having acquired rights, the plaintiff no longer had the right to control the suit, and properly refused to allow her to take a nonSuit. Counsel also rely upon the rule laid down in 14 Cyc. 406. The rule is stated too broadly in the text, and the cases cited to Support the text are based on Some Such equitable principles as are announced in the Culver Case just referred to. No Such reason exists in the present case for taking the case out of the provisions of the statute, and it is governed by the express language of it. [3] As we have already seen, our statute authorizes a nonsuit in cases of this sort before the clerk in vacation, and it is prop-" er for the clerk, as custodian Of the records, to enter up an order of dismissal at the request of the plaintiff. Lyons v. Green, 68 Ark. 205, 56 S. W. 1075, and State Bank v. Gray, 12 Ark. 760. In the application of the principles of law above announced, we think the dismissal before the clerk in Vacation by the plaintiff did not bar it from instituting another Suit On the same note, and Such act Was not res adjudicata. [4] Finally, it is insisted that the plaintiff had no right of appeal in the present case because the court, in effect, only granted the defendants’ motion to dismiss the complaint, and the judgment in no way reSulted from a trial On the meritS. NO matter what the reasons were, the court, over the objections of the plaintiff, directed a Verdict for the defendants. The Verdict Was returned into court by the jury, and judgment was rendered upon it. The action Of the Court amounted to a decision upon the merits Of the Case, and the judgment is final and appealable. It follows that the COurt erred in directing a Verdict for the defendants, and for that error the judgment will be reversed, and the CauSe remanded for a new trial.

(133 Ark. 477) POWELL v. STATE. (No. 292.)

(Supreme Court of Arkansas. April 15, 1918.)

1. CONSPIRACY 3:43(6)—INDICTMENT—SUFFICIENCY.

An indictment, alleging, in substance, that

accused conspired to introduce, and caused to

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

be introduced, in the state Senate bills for the purpose of extorting money from persons adversely interested therein, is insufficient to charge conspiracy to commit a felony under Kirby's Dig. § 1617, making guilty of a misdemeanor persons conspiring to commit a felony, and making some advance thereto without committing a felony; there being no allegation that the felony was not committed. 2. CoNSPIRACY 9:43(6)—INDICTMENT—SUFFICIENCY. . - The indictment Was not Sufficient to charge conspiracy to bribe under Kirby's Dig. § 1602, as it does not charge accused directly or indirectly conspired to promise, offer to give, or procure to be promised, etc., any money, etc., to any member of the General Assembly with intent to influence his vote or decision in a matter brought before him in his official capacity, nor charge that they conspired to have Some member receive money, etc., to influence his conduct. 3. CONSPIRACY &43(8)—INDICTMENT—SUFFICIENCY. The indictment was good as charging a common-law conspiracy to extort money, a misdemeanor at common law not repealed by statute. 4. CONSPIRACY Q->31—EXTORTION OF MONEY —COMMON-LAW OFFENSE. A conspiracy to extort money was indictable # punishable as a misdemeanor at common a W. 5. CONSPIRACY (3:31—COMMON-LAW OFFENSE —REPEAL. The common-law offense of conspiracy to extort money, not being named therein, was not repealed by our statute on conspiracy (Kirby's Dig. §§ 1617–1619). 6. CONSPIRACY Q->43(8)—INDICTMENT—COMMON-LAW CONSPIRACY. In an indictment for common-law conspiracy, it is not necessary, as in case of statutory conspiracy, to allege some overt act done in pursuance thereof. 7. CRIMINAL LAW Q->713 – TRIAL - MISCONDUCT OF ATTORNEY. In a prosecution for conspiracy, it appeared that before the jury were impaneled and Sworn, the assistant prosecuting attorney announced in the presence and hearing of the regular panel that an alleged confederate of accused desired to plead guilty, but preferred to wait until his attorney could be present. Attorney for accused objected to the statement, and the assistant then informed the court that such was his information. Thereupon the court required the confederate to state if such was his desire and entered his plea, postponing sentence until his attorney could be present. Held, that there was no error in the remarks, especially as they were followed by the plea of guilty. 8. CRIMINAL LAW (3:427(5)—DECLARATIONS OF CONSPIRATORS-PRELIMINARY PROOF. In a prosecution for conspiracy to extort money by means of bills corruptly introduced in the Legislature, evidence held sufficient to show that accused designated one named as his emissary, authorized to speak for and represent him concerning his ability to defeat or kill legislation, and hence authorized admission of declarations of such person concerning connection of accused with, and interest in, bills in question. 9. CRIMINAL LAW Q:1169(5)—HARMLESS ERROR—ADMISSION OF EVIDENCE. Admission of such declarations was not prejudicial, in view of an instruction that the jury were not authorized to find existence of a conspiracy from anything he may have said or done in absence of accused, and without his knowledge, and that unless he was acting as an agent of and with knowledge and consent of accused and by his authority in making the statements testified to, the jury could not consider

any statements made as evidence against accused. 10. CoNSPIRACY Q->45—Ev1DENCE—ADMISSIBILITY-CIRCUMSTANTIAL EVIDENCE. In a prosecution for conspiracy to extort money by means of corrupt introduction of bills in the Legislature, it was not error to admit testimony that would have warranted an inference that accused maintained a suite of rooms at a hotel as a rendezvous for legislators and others who might be concerned in bills that were to be introduced as a part of a general plan or scheme of extorting money from certain persons or classes of persons, the court having admitted it solely to show the surroundings of accused at the time and associations he had with people congregated there, and having instructed the jury not to regard other matters or charges brought out in the testimony reflecting on accused, and only to consider this so far as it related to the charges made against him. 11. CONSPIRACY & 45 – Ev1DENCE – STATEMENT OF ACCUSED. Testimony_tending to prove that accused said he had $500 for one vote for president of the Senate, and that he said in the presence of a number of Senators that if they would stick together, they could pass or kill anything, and that he hoped they would pass drastic railroad and corporation legislation, was competent in connection with other evidence of guilt. 12. CRIMINAL LAW (3:670 – OFFER OF EVIDENCE–STATEMENT OF TESTIMONY EXPECTED. Where the state proved by a grand juror that testimony before the grand jury disclosed there were other unknown persons connected With the conspiracy charged in the indictment, there was no error in not allowing accused to call other members of the grand jury, where it was not disclosed what was expected to be proved by them, or that they would testify to a different state of facts, though the court informed the attorney for accused there was no necessity of his making a statement as to why he wanted their testimony. 13. CONSPIRACY &48—TRIAL–INSTRUCTIONs. In prosecution for conspiracy, the court properly told the jury that, while it was necessary to prove a corrupt agreement as alleged, it need not be proved by direct or positive testimony, but that it might be proved by circumstantial evidence, and that they might regard it as proved if they believed beyond a reasonable doubt the parties were actually pursuing in concert the unlawful object stated in the indictment, whether acting separately or together or by common or different means, providing all Were leading to the same unlawful results.

Appeal from Circuit Court, Pulaski County; John W. Wade, Judge.

W. W. POWell Was convicted of conspiracy, and he appeals. Affirmed.

W. H. Pemberton and Chas. Jacobson, both of Little Rock, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, ASSt. Atty. Gen., for the State.

WOOD, J. Appellant was convicted of the Crime of COnSpiracy. His punishment Was fixed at a fine of $100 and imprisonment one day in the county jail. From the judgment of conviction he appeals to this court.

The indictment Omitting formal parts is as follows:

“That the Said Walker V. POWell and I. C. Burgess did unlawfully, wickedly, willfully, maliciously, knowingly, and corruptly agree, conspire, combine, and confederate together, each

with the other and with divers persons whose names are unknown to these grand jurors, to introduce and cause to be introduced in the Senate of the General Assembly of the State of Arkansas, then and there in session in pursuance of law, two certain bills, to wit: Senate Bill No. 106, being a bill to create a new additional school revenue and to place a tax upon all carbonate or soft drinks, such as Bevo, Tablo, Just-Right, Golden, Seal, Blue Ribbon, Temp Brewing, COCA-Cola, S0da Pop, and all other drinks and extracts and preparations for making such drinks; and Senate Bill No. 344, being a bill to create an additional revenue for the state and to place a tax upon Bevo, Tablo, Just-Right, Golden Seal, Blue Ribbon, Tampo, Coca-Cola and other drinks, made of same or like ingredients, for the sole purpose of corruptly, wickedly, maliciously, and unlawfully demanding and extorting money of value from persons interested in the manufacture and sale of said, drinks, and affected by the passage of said bills and their enactment into law.”

The sufficiency of the indictment was challenged by demurrer and by motion in arrest Of judgment.

[1-3] The indictment is not couched in language sufficient to charge the crime of Conspiracy to commit a felony under Section 1617 of Kirby's Digest, which provides:

“If two or more persons shall agree and conspire to commit any felony, and make some advance thereto, without committing the felony, they shall be deemed guilty of a misdemeanor.”

The indictment does not contain Words Sufficient to charge a conspiracy to bribe. It does not charge that Powell and Burgess conspired together to “directly or indirectly promise, Offer to give, or procure to be promised, offered, or given, any money, etc., to any member of the General Assembly of the State of Arkansas With the intent to influence his vote or decision in any matter brought before him in his official capacity.” Nor is the language used Sufficient to charge that they had conspired to have Some member of the General Assembly receive, and had caused such member to receive, any money, etc., to influence his Official Conduct. In other words, there is nothing in the language of the indictment to justify the conclusion that POWell and Burgess had conspired together to commit the crime of bribery, as that crime is defined under section 1602, Kirby’s Digest. If the language of the indictment were sufficient to charge a conspiracy to commit the crime of bribery, it would still not be sufficient to charge the statutory offense of conspiracy to commit a felony, because it contains no allegation that the felony was not committed, Which allegation is essential under the ruling Of this court in Elsey et al. V. State, 47 Ark. 572, 2 S. W. 337.

Learned counsel for the appellant contend that prior to the year 1607, Which Was the fourth year of the reign of James I, a conspiracy to extort money was not an offense at the COmmon law. They furthermore COntend that, if there was such an offense under the common law, the same has been abrogated by Our Statute contained in the chap

ter on Conspiracy, Kirby's Digest, §§ 1617– 1619, inclusive. A. During the reign of Edward I (1239– 1307) a statute was enacted defining conSpirators. 33 Edw. I, St. 2. Speaking of this statute in O'Connell v. Reg., 11 Cl. & F. 155–233, Lord Chief Justice Tindal says: . “It speaks of conspiracy as a term at that time Well known to the law, and professes only to be a definition of conspirators.” “That conSpiracy,” says he, “was an offense known to the common law, and not first created by the statute of 33 Edw. I, is manifest.” In State v. Buchanan et al., 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, it is held (quoting Syllabus): “An indictment will lie at common law * :k for a conspiracy to extort money from another; * for a conspiracy to cheat and defraud a third person, accomplished by means of an act which would not in law amount to an indictable cheat, if effected by an individual; for a malicious conspiracy to impoverish or ruin a third person in his trade or profession; for a conspiracy to defraud a third person not per se unlawful, and though no person be thereby injured.” “There can be no doubt,” says Mr. Hawkins, “but that all confederacies whatsoever, Wrongfully to prejudice a third person, are highly criminal at common law; as where divers persons confederate together by indirect means to £rish a third perS0n.” 1 HaWkinS, P. C. D.

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Sir James Fitzjames Stephen in his Digest Of the Criminal Law of England (page 277, art. 336) says:

“Every one commits the misdemeanor of conspiracy who agrees with any other person or persons to do any act with intent to defraud the public or any particular person or class of persons, or to extort from any person any money or goods. Such a conspiracy may be criminal although the act agreed upon is not in itself a Crime.

[4] A conspiracy of the character charged in this indictment was indictable and punishable at the COmmon law as a misdemeanor. 1 Russell on Crimes, 202, 203; Wharton’s Criminal Law, supra. “All confederacies Wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, Or his character.” 3 Chitty, Cr. L. 1139.

[5] We conclude, therefore, that the offense of which the appellant has been convicted Was a misdemeanor at the common law, and that the COmm On law is in force in this State unless the same has been repealed by our Statute On Conspiracy, Supra. See Sections 623, 624, Kirby's Digest.

B. Our statute on conspiracy provides as : follows:

“Sec. 1617. If two or more persons shall agree and conspire to commit any felony, and make some advance thereto, without committing the felony, they shall be deemed guilty of a misdemeanor.

“Sec. 1618. If two or more conspire to cheat any person out of any money or other property

by false pretenses or false tokens, and make some advance thereto, they shall be deemed guilty of a misdemeanor. “Sec. 1619. If one or more persons shall contrive and intend to have any person indicted on any false criminal charge, and make some advance thereto, although such person may not be indicted, he or they shall be deemed guilty of a misdemeanor.” It is manifest that it was not the purpose of the Legislature, except in the particulars therein named, to repeal the provisions of the common law concerning COnSpiracies. Conspiracies at the common law not named or covered by our statute are not repealed by necessary implication. There is no language in the above provisions to warrant the conclusion that the Legislature intended these as a Substitution for the entire Catalogue of common-law conspiracies. If the Legislature had intended by the particular conspiracies named to repeal all others or to have these substituted for Other COmmonlaw conspiracies not named, it doubtless would have done so in express terms. Mr. McLain Says: “Although both in England and in this country there are statutes defining conspiracies in general, and also making particular forms of combinations criminal as conspiracies, yet these statutes are deemed not to abrogate the common law as to conspiracies unless plainly so intended, and common-law conspiracies are therefore

as a rule, still punishable in the various states.” 2 McLain's Crim. Law, p. 955.

Our statute (section 1618) supra, making it a misdemeanor to conspire to cheat any person out of any money Or Other property by false pretenses or false tokens does not COVer all the ground Of Common law conspiracies to defraud.

[6] The indictment correctly charged appellant with the crime of conspiracy to defraud a certain class Of persons by extorting money from them in the manner alleged.

In an indictment for statutory conspiracies it is necessary to allege Some Overt act dOne in the pursuance of the conspiracy, but such is not the case in an indictment for a common-law conspiracy. 5 R. C. L. p. 1081, $ 27. There was no error, therefore, in overruling the demurrer and motion in arrest of judgment. [7] II. Before the jury Was impaneled and sworn, Louis Rhoton, who was assisting the

was no error in the remarks of the attorney, especially Since the remarks were followed up by the plea of guilty entered by Burgess. The jury had not then been impaneled and SWOrn to try appellant’s cause, but even if it had been a voluntary plea of guilty, at that stage of the proceedings, was certainly no more prejudicial to appellant’s cause than was the sworn testimony of Burgess before the jury detailing his participation in the alleged COnSpiracy. [8] III. The court over the objection of appellant permitted Witnesses who were in the Soft drink business to testify that One Ben Peeples told them, in substance, that there was the strongest lobby in room 404 Marion Hotel that Was ever established in the State; that they made up their minds to shake $5,000 out of the Coca-Coist ineoi, e, $5,000 out of the Anheuser-Busch people, and that there was no escape from it, and that they could kill or pass any bill that came along; that Peeples asked Witnesses to see POWell, telling them that Powell colild save these bills; that it would take a few hundred dollars, and that it was due the citiZenship Of the State to kill the bill. Appellant contends that there was no testimony in the record to show that Peeples WaS his agent Or authorized to represent him in the declarations made to these witnesses, and that their testimony therefore as to What Peeples told them was purely hearSay and incompetent. Witness Leiser, in this connection testified in part as follows:

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prosecuting attorney, announced in the pres- which they intended to have introduced in ence and hearing of the members of the reg- the Legislature, stated that he got a copy ular panel that Burgess desired to plead of the Bevo and Coca-Cola bill, and appelguilty, but preferred to wait until his at-lant looked it over and said: torney could be present. Appellant's attor- || “It is a good bill. * * * It would bring the ney objected to this statement. Rhoton in- Bevo and Coca-Cola people here.” formed the court that such was his informa-. He further said: tion; thereupon the court required Burgess “Ben Peeples could get next to them.” to state if such were his desire, and he then Burgess also testified: entered his plea of guilty, and sentence was “Defendant said that he had a man he could postponed until his attorney could be pres- get next to. , I asked him who he was; he said, ent. Exceptions were duly saved to the Ben Peeples. statement of Rhoton, but no exceptions were | One of the witnesses who was interested saved to the ruling of the court in permitting in the soft drink business testified in part

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