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It was said in Good v. State, 1 Lea (69 "It is only in cases where it is absolutely Tenn.) 293, 294:

certain that the omission was not prejudicial "When it is clear that the grade of of- to the defendant, in the trial court, that a fense charged is proved, and there is no room charge omitting instructions upon every offor doubt as between it and a lesser grade fense contained in the indictment can be susembraced by statute in the higher, and of tained.” course included in the indictment, to charge The court added that it was only because the law pertaining to such lesser grades of "such absolute certainty" that the assignwould simply tend to confuse and mislead ment was overruled in that case. the jury and often result in verdicts inade- [3] Chapter 32, Acts of 1911, cannot reach quate to the crime actually committed. In the vital error committed in the case before applying the rule of this opinion, courts will us. of necessity act with circumspect caution, [4] It is proper to state that the bill of exgiving to the accused the full benefit of all ceptions in the present case sets forth the the rules of law applicable to the facts de- fact that, in their addresses to the jury, both veloped in the trial of his cause.

counsel for the state and for the prisoner “When the offense charged is beyond con- took the position and argued that the pristroversy made out and is complete, it is the oner was either guilty of murder in the first duty of the court to confine its charge to such degree or entitled to an acquittal on his plea case; and so, if the offense must be the one of self-defense. It could not be treated as a charged or no offense in law, as frequently waiver of the prisoner's right to have the happens, the charge should be so restricted case submitted to the jury in the manner prethat the jury may be enabled to decide in- scribed by statute. telligently the single question presented and For the error indicated, the judgment must not be mystified by abstractions."

be reversed, and the cause remanded to the This case was followed and approved in criminal court of Knox county for a new the following subsequent cases: State v. Har- trial. grove, 13 Lea (81 Tenn.) 178; State v. Parker, Id. 221; Palmer V. State, 121 Tenn. 465, 488, 118 S. W. 1022; Frazier v. State,

SHIPP v. STATE. 117 Tenn. 430, 439–441, 100 S. W. 94; Powers v. State, 117 Tenn. 363, 372, 97 S. W. (Supreme Court of Tennessee. Nov. 29, 1913.) 815. Of these, three were murder cases, but 1. HOMICIDE ($ 282*)-TRIAL-DIRECTION OF in none of the murder cases was there a fail- VERDICT. ure to charge upon the crime of murder in

In a prosecution for homicide, where acthe second degree as well as murder in the the firing of the fåtal shot, claiming that it

cused pleaded not guilty, though he admitted first degree. In State v. Hargrove and Fra- was caused by his nervousness, and that he was zier v. State, the error assigned was the fail-only attempting to rob deceased, it is reversible ure to charge on the subject of manslaugh- error: for the court to charge that the only ter; in Powers v. State the failure to charge accused was guilty of murder in the first degree

for the jury to determine was whether the law applicable to involuntary manslaugh- with mitigating circumstances, for. Shannon's ter, assault and battery, and simple assault. Code, $ 6441, declares that the jury before Of the other cases, Good v. State involved a

whom an offender is tried shall ascertain wheth

er it is murder in the first or second degree, prosecution for robbery; State v. Parker for and it accused confess his guilt, the court shall assault and battery; Palmer v. State a con- determine the degree of crime by the verdict viction for rape. The special question now of a jury, and the court, not having the power before us, arising under Code, g 6441, could to set aside the verdict of a jury, cannot, as it not therefore have arisen in these last-men- of guilty or pass on any question of fact.

practically did in this case, direct a verdict

(Ed. Note.-For other_cases, see Homicide, [2] It follows therefore that, in every mur- Cent. Dig. & 574; Dec. Dig. 8 282.*] der case wherein the crime of murder in the 2. CRIMINAL LAW (8 753*) — TRIAL — DIRECfirst degree is involved or embraced in the TION OF VERDICT. indictment, the trial judge must charge on In a prosecution for felony, where a plea both murder in the first degree and murder of not guilty is interposed, the court can neiin the second degree. To lower grades of ther direct a verdict of guilty nor can it pass

on any question of fact unfavorable to accused. homicide and to all other kinds of crime, [Ed. Note.--For other cases, see Criminal the rule laid down in Good v. State applies, Law, Cent. Dig. 88 1713, 1727-1739; Dec. Dig. but we deem it proper to repeat the caution 3.753.*] offered in Frazier v. State, supra, as follows: "The better practice to be pursued by trial

Appeal from Criminal Court, Hamilton Judges undoubtedly is for them to charge up

County; S. 'D. McReynolds, Judge. on all offenses embraced in the indictment, the first degree, and he appeals. Reversed

Peter Shipp was convicted of murder in because whenever there is any doubt that the

and remanded. defendant has been prejudiced by such omission it will be error, for which it will be the W. L. Frierson, of Chattanooga, for appelduty of this court to reverse the judgment lant. w. W. Faw, Asst. Atty. Gen., for the and remand the case for a new trial.

State. *For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tioned cases.

WILLIAMS, J. In this case there was a This was error. Whatever may be the rule conviction of the plaintiff in error of the in relation to misdemeanors, the weight of crime of murder in the first degree for the authority is overwhelming to the effect that killing of one Bedell; the sentence being in prosecution for felony, where a plea of one for his execution. He has appealed and not guilty is interposed, it is not permissible assigned as error that the trial judge charg- for the court to direct a verdict of guilty or ed the jury as follows, notwithstanding he to pass on any question of fact unfavorably stood at the time on a plea of not guilty: to the defendant. This is true even though

“The defendant makes no denial of this the incriminating evidence is uncontradicted occurrence, but states on the stand that he or conclusive. Huffman v. State, 29 Ala. 40; did commit this murder, but insists that he State v. Wilson, 62 Kan, 621, 64 Pac. 23, 52 was raised up around Bedell's place, that he L R. A. 679; State v. Godwin, 145 N. C. never had any education, and that he was 461, 59 S. E. 132, 122 Am. St. Rep. 467; raised up under Bedell's tutelage to some ex- Konda v. U. S., 166 Fed. 91, 92 C. C. A. 75, tent. And from these facts his attorney, in 22 L. R. A. (N. S.) 304, and note. argument, requests the jury to find the de In the last cited case, Baker, Cir. J., said: fendant guilty of murder in the first degree “In our judgment, however, a defendant in a with mitigating circumstances. From this criminal case has the absolute right to readmission of defendant and his counsel, the quire that the jury decide whether or not the only thing left for you, gentlemen of the jury, evidence sustains each and every material is to determine whether or not you will rec- allegation of the indictment.

In a ommend mercy in your verdict, and this is dvil case, the judge may exercise the power a matter for you to determine and report. of directing a verdict for the plaintiff when If you find the defendant guilty of murder there is no conflict in the evidence and the in the first degree, without more, under the only inference that may be drawn by realaw he will have to suffer death. If you sonable minds as to the ultimate facts in find him guilty of murder in the first degree, issue favors the plaintiff. This power, we with mitigating circumstances, and so re opine, grew out of the practical administraport, then it is a question for the court to tion of the fundamental power to review, on determine as to whether he shall be sentenced a motion for a new trial, the findings of the for life or sentenced to death under the law."

jury.

But in a criminal case, if The reference in the charge is to the testi- the jury returns a verdict for the defendant, mony of plaintiff in error to the effect that the judge, no matter how contrary to the he did kill Bedell, not that in so doing he evidence he may think the verdict is, cannot committed murder in the first degree; that set it aside and order a new trial. Therehe and one Dodson had planned to rob Bedell fore, since the judge is without power to reand laid in wait in the darkness for deceas- view and overturn a verdict of not guilty, ed to leave his store to go to his residence; there is no basis on which to claim the powthat plaintiff in error did not start out or er to direct a verdict of .guilty. Our concludesign to shoot Bedell but intended to hold sion is that an accused person has the same up deceased and rob him. "Q. Now, how right to have 12 laymen pronounce upon the came it that he was shot? A. I don't know. truth or falsity of each material averment Scared-nervous, I reckon--and pulled the in the indictment, if the evidence against gun off, I reckon. I didn't intend to."

him is clear and uncontradicted, as he unThe charge from which the above excerpt questionably would have if it were doubtful is made contained the usual instructions in and conflicting. Inasmuch as jurors are respect to the different degrees of homicide, rightly trusted, in close and difficult cases, to the presumption of innocence, reasonable maintain the peace and dignity of organized doubt, and weight of evidence.

society, surely they may be relied on in the [1, 2] The argument of counsel of the ac- plain and simple ones.” cused for error is that the portion of the In this state we have a statute (Shancharge of the trial judge quoted was tanta- non's Code, $ 6441) providing, in reference to mount to giving peremptory instructions to trials for murder, as follows: "The jury bethe jury to find plaintiff in error guilty of fore whom the offender is tried, shall ascermurder in the first degree and was an in- tain in their verdict whether it is murder in vasion of the province of the jury as well the first or second degree; and if the accusas a denial of trial by jury guaranteed by ed confess his guilt, the court shall proceed the Constitution.

to determine the degree of crime by the verIt will be noted that the trial judge tolddict of a jury, upon the examination of testhe jury that, in view of the admissions timony, and give sentence accordingly." made, the only thing left for the jury to do If on a plea of guilty the jurors are by was to determine whether or not extenuating statute made the determiners of the degree circumstances existed. The jurors could of such an accused's guilt, a fortiori the trial have drawn no conclusion from this other judge cannot be permitted to exercise that than that they were under instruction to function and instruct as in this case, where proceed upon the basis of murder in the first the accused had pleaded not guilty. degree being fixed on the accused, so far as Further, plaintiff in error testified that they were to make return.

the shooting and killing was not intentional,

but were attributable to his nervousness in courthouse commissioner fraudulently or in good carrying out the real design to rob. What- faith held to support the chancellor's finding in

favor of defendants. ever of weight or lack of weight this testimony carried was a matter for the jury, to cent. Dig. $ 308; Dec. Dig. Š 196.*)

[Ed. Note.-For other cases, see Counties, be considered when, under the statute quot- 3. APPEAL AND ERROR ($ 1009*)_REVIEWed, it came to ascertain by verdict whether

QUESTIONS OP Fact. the crime was murder in the first or second

The chancellor's findings of fact will not degree. This phase of the statute is treated be disturbed on appeal unless they are against of in an opinion by the Chief Justice at this the clear preponderance of the evidence. term in the case of Jones v. State, 161 S. Error, Cent. Dig. 88 3970–3978; Dec. Dig. 8

[Ed. Note.-For other cases, see Appeal and W. 1016, and need not be here further dis- 1009.*] cussed. Plaintiff in error was entitled to have the jury determine whether his guilt John E. Martineau, Chancellor.

Appeal from Pulaski Chancery Court; was that of murder in the second degree. Re

Taxpayers' suit for an injunction by John versed and remanded.

D. Shackleford against A. O. Campbell and others. From a decree dismissing the com

plaint, plaintiff appeals. Affirmed. SHACKLEFORD V. CAMPBELL et al.

This is a proceeding by appellant, a tax-(Supreme Court of Arkansas. Dec. 1, 1913.) payer of Pulaski county, against appellees to 1. COUNTIES (8 127*)-CONTRACTS-MODIFICA- restrain them from proceeding further in the TION-VALIDITY.

erection of an annex to the Pulaski county A contract duly let to the lowest and best

court house. bidder as required by law for the construction

The county court deemed it of an annex to a courthouse for $565,987, call. expedient to erect an annex to the present ed for a four-story building; the first story to courthouse, and the quorum court made an be of Arkansas granite, and the remaining sto- appropriation for that purpose. Gordon N. ries of Bedford stone. The interior was to be å steel-frame construction, with brick masonry Peay was appointed commissioner of public partition walls, and fireproof windows were to buildings, to superintend the erection of the be constructed on one side, next a club. After same. George R. Mann was appointed archiits execution, it was ascertained that Arkansas tect, and, as such, prepared and submitted to granite could not be quarried in sufficient quantities to erect the building within a reasonable the county court complete and detailed plans time, and, as the public needs required that it and specifications of the proposed annex, be erected as expeditiously as possible, it was with the dimensions thereof and the materiagreed, pursuant to a provision, that modifications might be made, that a different kind of als of which it was to be composed, with an stone as suitable and durable as Arkansas gran- estimate of the probable cost thereof. The ite, and making no difference in the appearance plans were approved by the county court, and of the building except in the color of the stone, the commissioner advertised for receiving proshould be substituted; a deduction in the price of $2,374 being allowed because of the substi- posals for erecting the building. In July, 1912, tution. The county having purchased and torn the contract was awarded to A. O. Campbell down the club building, it was deemed unneces, at the sum of $565,987, he being the lowest sary to construct the fireproof windows, and they were changed to conform to the other and best bidder; and a formal contract was windows. It was also found that great delay executed to erect the building according to would be had in procuring steel for the interior | the plans and specifications. The specificawork, and this was changed to re-enforced con- tions called for a four-story, fireproof courtcrete construction, which was as durable as that provided for under the original contract, house building, to be erected on the corner gave more floor space, and permitted changes of Spring and Markham streets, in the city in the interior arrangement of the building of Little Rock, Pulaski county, Ark. which could not be made with the steel and proposed building adjoins the site of the masonry construction first contemplated. A deduction in the price of $7,180 was allowed present courthouse. The first story was to because of this change. Held, that while a be of Arkansas granite, and the remaining change in the general plans of the building and stories of Bedford stone. The interior was the construction of a building of wholly different kind and character from that provided for to be a steel-frame construction, with brick under the original contract would be a palpa- masonry partition walls, and fireproof winble evasion of Const. 'art. 19, § 16, requiring dows were to be constructed on the west contracts for erecting or repairing public build- side, next to the Quapaw Club. After the ings to be given to the lowest responsible bidder, and of the statutes regulating the erection contract was executed for the erection of the of public buildings, the county court and court- building, and soon after the excavation for house commissioner, in the absence of bad faith, the foundations

commenced, certain had authority to authorize such changes, and changes in the construction of the building the contract was not void because thereof.

were suggested. It was ascertained that it [Ed. Note.-For other cases, see Counties, Cent. Dig. 88 192, 193; Dec. Dig. 127.*] was not practical to quarry Arkansas gran2. COUNTIES (8 196*)–CONTRACTS-TAXPAY- ite in sufficient quantities to erect the buildERS' ACTION-SUFFICIENCY OF EVIDENCE. ing within a reasonable time, and that a de

In a taxpayers' suit to restrain the per- lay of more than one year would be caused if formance of a contract for the erection of an annex to a courthouse, evidence as to whether the walls of the first story should be conchanges and modifications in the original con

structed of that material. It was agreed tract were authorized by the county court and that the first story should be constructed of

The

was

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Batesville stone, instead of Arkansas gran- f such regulation as may be provided by law. ite, and a deduction in the contract price of Appellant contends that under this provision $2,374 should be allowed the county by rea- of the Constitution, and under chapter 35 of son of the change in the stone. After the Kirby's Digest, the county court had no aucontract was made, the county purchased the thority to order the changes made in the ground occupied by the Quapaw Club build- plans and specifications, and that the changing, and tore down that building. It was es, as made, render the contract void. He then deemed unnecessary to construct the relies upon the case of Fones Hardware Co. fireproof windows, and they were changed v. Erbe, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. so as to conform to the other windows in the 353, to sustain his contention; but we do not building. It was also found out that great think that case an authority for the position delay would be had in procuring the steel for he has assumed. There, general plans were the interior work, and this was changed to adopted for building a bridge across the reinforced concrete construction, and a de Arkansas river in Pulaski county, and comduction, on account of the change in the petitive plans and specifications were adrer. windows and the change to reinforced con- tised for and received by the board of comstruction, was to be allowed the county in missioners. Each bidder prepared his own the sum of $7,180.

plans and specifications and made his bid The original contract provided, in effect, thereon, and the court said that it was plain that the county court should have the right that no two of the bids would be made upon to make any alterations, additions, or omis- the same basis, unless by accident, and theresions of work or material or in designs and fore, under such a plan, there could be no plans, during the progress of the erection competition among bidders. This was a of the building, that it should find necessary. palpable violation of the Constitution and It is conceded by appellant that the original statute regulating the erection of public contract was executed in conformity with buildings and bridges. Here, complete detailthe provision of article 19, $ 16, of the Con- ed plans and specifications were prepared by stitution, and with chapter 35 of Kirby's Di. the architect and adopted by the county gest, and that the same is valid in all re- court. The advertisement for bids was made spects. The county court, by appropriate in accordance with the plans and specific crders, approved the changes as set out cations adopted; and it is perfectly evident above, and the contract was modified so as that each bidder bid upon the same plans and to allow them to be made. It is contended specifications, and thus competitive bidding by the appellant that these changes were was secured. made without authority of law, and that they It is conceded by appellant that the origi. render the whole contract void. Appellant nal contract was let in accordance with the also contends that the changes were procured provisions of the Constitution and statutes by fraud, and, on that account, the contract above referred to; but he contends that the is void. The present svit was commenced on modification of the contract was made withthe 1st day of August 1913, and at that time out authority of law, and that this rendered the change from Arkansas granite to Bates the whole contract void. The original conville stone, for the first story, was finished, tract contained a provision that modifications and the greater part of the changes made in of it might be made. The evidence shows the interior, as provided for in the modifica- that it is usual to insert in contracts for the tions of the contract, was also completed. erection of buildings of any magnitude proviAppellees filed an answer in which they de- sions for modifications in the contract, so nied any fraud on their part in making the that necessary changes or alterations in the changes, and alleged that the reduction made plans of the building may be made, and such on account of the changes is fair and ade clauses have been generally held to be valid quate and represents fairly. the difference when applied to contracts made between in the cost of construction. They also claim private individuals. In the absence of constithat under the contract they had a right to tutional and statutory prohibition, there make the changes. Other evidence heard be

seems to be no good reason why such a fore the chancellor on the trial of the case clause may not be legally inserted in a conwill be stated in the opinion. The chancellor tract for a public building. The power so to dismissed the complaint for want of equity, do is recognized in 11 Cyc. 485; but the and the cause is here on appeal.

author adds that in no event can the county Jno. D. Shackleford and Henry C. Riegler, board or court make important general changboth of Little Rock, for appellant. Cockrill es in the plans of the building, and cites in & Armistead and Marshall & Coffman, all of support of the text the cases of Gibson CounLittle Rock, for appellees.

ty v. Cincinnati Steam Heating Co., 128 Ind.

240, 27 N. E. 612, 12 L. R. A. 502, and KitHART, J. (after stating the facts as above). chel v. Union County, 123 Ind, 540, 24 N. E. [1] Article 19, $ 16, of our Constitution, pro- 366. Under the laws of Indiana, as in this vides that the contracts for erecting or re- state, contracts for the erection of public pairing public buildings or bridges in any buildings must be let at public bidding after county, or for materials therefor, shall be the plans and specifications have been adoptgiven to the lowest responsible bidder under led and filed in accordance with the statute.

In the case last mentioned, certain taxpayers, ing. In such a case, where it can be said sought to enjoin the county from proceeding that the new work is but an incident of a in the erection of the courthouse upon the work before regularly contracted for, and ground that the specifications submitted to where it does not appear that the act of the bidders permitted alterations and chang- the parties was a mere effort to evade the es. The Supreme Court of Indiana held that statute, we do not think that the statute is the objection was unavailing, and said that applicable.” The court also said: "Where no prudent individual would make a contract the parties act in good faith, the authority for the construction of a building of any of the board to make changes without commagnitude without incorporating a provision plying with the statute referred to should be somewhere making specific and definite agree- determined, not primarily by the cost of the ments concerning extra work, and that the change, but by the relation that the change provision complained of seemed to be of that bears to the main work, and the circumstanccharacter. In the first-mentioned case, plans es that confront the commissioners when and specifications were adopted for the con- they order the change.” struction of a courthouse as required by law, In the case of Mueller v. Eau Claire Counand it was contended that there was no au- ty, 108 Wis. 304, 84 N. W. 430, the court said: thority to contract for steam heating ap- "A clause in the contract provides that: paratus for the reason that no plans or speci- 'Should said committee, at any time during fications were ever filed therefor and that the progress of the work of said heating the contract was not let at public bidding as plant, require any alteration, addition, or required by the statute. In discussing an ob- omission from the work specified, the same jection that the board had no authority to shall be done, and shall not affect or avoid contract for the steam heating apparatus, the this contract and will be added to, or deductSupreme Court of Indiana said: "In our ed from, the contract price, as may be, by a opinion the statute was not intended to pre- fair and reasonable valuation.' Upon this rent changes in plans and specifications from the plaintiffs attempt to found an argument being made in cases where it becomes appar- that it is an evasion of the statute, which ent in the progress of the work, that changes says that the board shall prepare 'complete' are required. We do not mean to be under plans and specifications for the work. This stood as holding that changes in the general 'smacks of over-refinement.' It is the clause plan of the work may be made at the usually put in building contracts to enable pleasure of the board of commissioners, but the owner to make changes, correct mistakes, we do mean to adjudge that changes may be or cause additions or omissions in order to made in details and minor particulars." make the building more truly conform to its

In the case of Board of Commissioners v. intended use. It must be construed reasonGibson, 158 Ind. 471, 63 N. E. 982, the court ably, and, so construed, would, of course, again had occasion to discuss the question. limit the changes to such as would not alter In that case, a contract to construct a court- the substantial character of the building, or house was let, in accordance with the statute, increase its cost to an unreasonable amount." to the lowest bidder, for $76,000. The con- Our Constitution and statutes governing tract contained a provision allowing changes the erection of public buildings do not proand alterations to be made. After the con- hibit the contract from providing for necestract was executed and the excavation for sary changes in the plans and specifications ; the building was commenced, it was discov- and, when this fact is considered in connecered that, owing to the character of the soil, tion with the principles of law announced the foundation would have to be laid much in the cases above referred to and quoted deeper than was provided for in the contract from, we do not think the modification made It was then suggested that a subbasement in the original contract for the erection of could be added very little more cost, and the annex to the courthouse rendered the this was done at the additional cost of contract void. $20,000. The court held the modification thum When the original contract was executed, made in the contract was valid, and, in dis- the Quapaw Club building was situated close cussing the objections to its validity, said: to the proposed annex, and it was deemed "The statute 'referred to [Rev. St. Ind. proper to provide for fireproof windows next 1881, $$ 4243, 4244] was intended as a safe to that building. Subsequently, the county guard of the public interest, and we are purchased this building and tore it down. disposed to enforce it according to its spirit. The fireproof windows then became unnecesWe do not think, however, that it was in-sary, and the county court properly changed tended to apply to a case like this, where a the contract so as to dispense with them. sudden and unforeseen emergency confronts The evidence shows that the public needs a board of commissioners after it has regu- required that the annex to the courthouse larly let a contract for a public building, and should be erected as expeditiously as poswhere it is to be desired to avoid delay, and sible, and that it would cause a delay of not to put a new contractor on the work, but more than a year if the original plan of to have the work continued by the general constructing the exterior of the first story contractor for the construction of the build- of Arkansas granite should be adhered to.

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