54 fusal of the court to give his requested instruction on as sault and battery. App l1ant next contends for the re ersal of the judg men/- h 'aus the prose utiug attoru y w:as permitted to explain why he did not use the other girl who was in the apartment as a witness. This explanation was allowed 1because appellant's attorney had criticised the prosecut ing attorney for not calling her as a witness. The ex planation was invited error, if error at all. In permit ti11g- this explanation, th ourt admoni hed th jury not to · n idp,1· th statement of th pro uting attorney as to what she w uld hav testi:fi d had he 1bcen introduced. The admonition cured the error. Lastly, appellant contends 1 judgment because the court refused to permit him to in troduce the police record showing that a window under appellant's apartment had been hroken by a burglar on the night the alleged carnal abuse occurred. There was evidence in the record tending tt> show that the girls left the apartment on account of the noise fro� a !broken win dow. If proo£ of this character was pertinent and com petent, it sh uld have ·been made /by a witne::; cognizant of the fact, and not by a police record in another case in which none f the int re. t •d l artie w .re participants. 'J 1 h, tat would not /be b und l>. fa •t dev ,]oped in a dif fonmt case from the one up n whi h be was being tried. -1 o nor appearing, the judgment is affirmed.
1.
TAYLOR v. STATE. [182
f'or the reversal of the
. TAYLOR v. STATE. Opinion delivered June 30, 1930.
2.
CONTINUANCE}-NEIOES•SITY OF DILIOONOE.-Where witnesses had not been subpoenaed, and it did not appear that their testimony could be· had o·n another trial, it was not an abuse of the court's discretion to overrule a motion for continuance. CRIMINAL LAW--OORRO,BORATION OF ACOOMPLICEl.-Evidence in a larceny case held sufficient to corroborate the testimony of an alleged accomp, lice.
ARK.]
3.
TAYLOR v. STATE. 55
cawnon, Judge ; affirmed.
Assistant, for appellee. court of Crawford County for burglary and grand lar ceny jointly with James Wallace. Upon the trial he was acquitted of burglary, hut convicted of grand larceny, and adjudged to serve a t rm of one year in the State penit 0 ment of conviction he has duly prosecuted ail appeal to this court. several alleged assignments of error. motion for a continuance. The motion was filed the day before the trial, and stated that Adam Shaffer, tempo ra}'.ily absent from the county, would swear that on the night of the robbery he had a conversation with appellant about 12 :30 0 'clock A. M., after which they parted and appellant went east in the direction of his home. The indictment was returned on March 11, 1930, and although appellant was not tried until the 20th day of the month subpoena was not issued for the witness. It does not anpear that the witness left the State before the arrest of appellant, nor was it made to appear that the testimony of the absent witness could be had if a continuance was granted. The court did not abuse his discretion in over ruling the motion which failed to show that appellant used diligence to get the witness and that a continuance would result in securing the testimony. Hunter v. State, 180 Ark. 613, 22 S. W. (2d) 40. by the trial court were erroneous. A general objection was
CRIMINAL LAW-FJXAMINATION OF DEFElNDANT'S CHARACTER WIT NEJSS.:--A question, on cross-examination of a witness testifying to defendant's good character, as to whether other good boys had not g.one wrong held not prejudicial. Ap,peal from Crawford Circuit Court; J. 0. Kin l.?inis F. Batchelor and E. D. Chastain, for appellant. Ha,l L. Norwood, Attorney General, and Pat Mehaffy, HUMPHREYS, J. Appellant was indicted in the circuit
ntiury as a punis_bment therefor. From the judg
.Aippellant seeks a. reversal of the judgment upon The .first assignment is that the court overruled his
The next assignment is that the instructions given
TAYLOR v. STATE. [182
56 made to each hJstruction, hut an xam.ination f th m re v al, that none of them ar • inher ntly wrong and, wb 11 read together, correctly de lared the law appli c bl to the facts in the case. It would extend this o;pinion and could erv no useful purpose to tout 1-ie instruction . The next assignment i. that ihe testimony of appel lant 1 s alleg a a ompli e wns not sub. "tantially 01-r b OTl},ted. Ja�1-s Wallace, the all gel1 aL'com.phlce testified in . nbstancc, that he and appellant agreed to burglarize McKinney's store in Van Bur n on th night of Mar b 1, 1930; that a little after one o'clock A. M. he entered the tore through a windo\v in tbe r ar thereof which th y bToke wi1;h a hamm r a�d handed certaiJJ good and mer chandise out to appellant· that a,s they were leaving they saw the night watchman approachin and dropped 11 part of the ·oocl and tlrn.t lnter th witne s hid tho e which were not dropped near the ri ver. The goods which were . rlror; ped were discover d the following morning and those hidden w re poinled out to the ffic rs b. Jame. Wallace. Mrs. Georg Knight t. tified that James Wallace and AJlen Taylor .a h came lo her restaurant on the night in questi n inquiring for the other �md that about mid night she saw them togeth r near the depot. George Knight, the night watchman, testified that he saw James Walfa and llen Taylor together about 2 :30 o�clock A. M. on the nig_ ht in question going towards the back of McKinney's store. Appellant's defense was that he was not with James Wallace on the night in question and that he djd not assist him in burgfarizinf)' the Mcllinney store. Tl1e tes timony of the K11i.glits sufficiently orrobornted the testi mony of the alleged accomplice to connect appellant with the crime, and th refor to support the verdict. Powell v. State, 177 Ark. 938, 9 S. W. (2d) 583. The next assignment is that the prosecuting attor ney was permitted to iinquire from witnesses who bad testified to appellant's good character whether it was
ARK.] WILBON v. WASHINGTON ],IDELI'.l'Y NATIONAL 57 INSURANCE COMPANY. not a fact that several other good boys had gone wrong. Counsel for appellant had proved that he was a crood boy on cro ·s- 'x.amination, and w do not se ·. how uny r ju dicial error resulted to him simply be ·ause the prosecut ing attorney asked th m whether they hacl n t Imo ;vn. of other good iboys going wrong. No error appearing, -the judgment is affirmed.
vVrLBoN v. WAsHINGToN FmELITY NATIONAL INsuRANcE COMPANY. Opinion delivered June 30, 19-30. 1. lNSURANCE)-,ElFFElCT OF FALSE REPRElSENTATION.-Where answers in an application for li:fe insura.nce constituted representn.tions and not warranties, a misrepresentation will not avoid the l)olicy unless wilfully •<>l' knowingly made w!,th intent to deceive. 2. lNS'URAND»---<FALSE RElP\RESEN"l'ATliON.-!<1alse representations as to the ,condition ,of his health made tby a ten-yea1·-old ap,plicant for instll'ance held not to have been made wilfolly or kno\vingly with in'l:,ent to deceive. 3. lNSUR.AN'CN--ElFFECT OF FALSE REPR;ESEJNTATIONS BY BENEFICIARY. father certifying to the correctness <>f answers in an ap.-pli� cation fo:t insurance mnde by his in.fant son was bound ,by £:alse representations therein only where he would have been liable if made in his own application. STATEMENT OF FACTS. This suit was broug·llt by Levi Wilibon, nam cl ben ficiary in a policy of .insurance issued ;by appell �' com pany upon the life of his 10-year-old child, and from the judgment against him the appeal is prosecuted. The answer aurnitted the exe ution and delivery o.f the poli •y, and defended on the grom11 that the insured Percy L. Wilbon had a serious attack of heart trouble in December, 1928, and that the answer ''No.'' was made to the question ir� the appli 0 ation for insuranc inquiring whether the in. m:ed hacl ever had heart dis ase. That (lie answer w·:1.s false and material and was wrougfully :md lmowingly made with the frnuclul >nt intent to pro cure tile policy.